Gideon - 04 - Illegal Motion (26 page)

Here, the tears well up in her clear blue eyes. This isn’t quite the version we had rehearsed (she told me Glenetta didn’t have a clean towel, not that she didn’t have one at all), but in juvenile court not every attorney will pick up on the discrepancy between the story she is telling now and the statement she made to the police and to the social worker. If she is charged with a crime, the attorneys in the prosecuting attorney’s office will be swarming all over her.

I pause in my questioning to let the tears come. Her credibility here is everything.

“What happened then, Gina?” I ask, putting as much sympathy into my voice as I know how.

She brushes her eyes with her knuckles and continues in a low but intense tone.

“I ran upstairs and saw she had managed to turn the tap and I snatched her out of the water and went and called 911” I glance at Judge Sloan’s face. He is one of our younger judges with kids still in grade school. I am hoping he will remember what it is like to have small children bumping into corners of tables, running shoeless over hot-air vents, pulling pans off stoves. If you turn your head for a second, and all of us do, they have fallen or grabbed a pair of scissors from a table. I will remind him of this during my closing argument, but likely he will have made up his mind long before then. I can’t read his expression, but he is listening closely to Gina, and that is all I can ask. He has to be wondering what if he returns the child to her and he’s wrong, will this young woman do it again? He knows as well as I do that child abuse isn’t usually a one-time event. The next time the child may be DOA. I break the crucial moments down for Gina, so she can give the judge as much detail as possible and then finish with her visits to the hospital.

“They watch me like I’m going to steal her,” Gina says bitterly, her voice hostile for the first time.

“I don’t think the nurses care whether I visit Glenetta or not. They just want to see how I act.”

No one from the other table will deny this. If she weren’t visiting regularly or showed little interest in Glenetta when she did, someone from St. Thomas would have been called to testify about her behavior and demeanor.

Instead, I have subpoenaed the records and have forced a nurse to tell the judge she has come to see her child almost every day and has acted appropriately (talking, holding Glenetta’s hand even though the child had been barely conscious in the beginning) during her visits.

“Were you angry at Glenetta the morning this accident happened?” I ask Gina, whose own anger at the nurses at St. Thomas has given her voice some steel. It is imperative we overcome the testimony by Glenetta’s doctor that child abuse of this type sometimes occurs as a punishment for bedwetting.

Gina shakes her head as if she has never considered being angry at her child in her life.

“Not at all,” she says.

“She was in a good mood, laughing and playing like she always did. Her bath is one of our favorite times because she’s always so happy in the mornings.”

I ask if Glenetta is completely potty trained and how she is punished. Seemingly without a hint of guile, Gina turns to Judge Sloan and tells him that her child occasionally has an accident in her pants but what two year old hasn’t? As for punishment, you don’t hit children. All it does is teach them to hit back. As a prostitute, a successful one anyway, a woman must be a successful actress, and it crosses my mind that Gina is playing the role of the good mother no less skillfully than a woman who convinces a man she is dying to have sex with him. Being the hopeless creatures of ego we are, men want desperately to believe women, and as I listen to my client’s answers, I realize how lucky she is that this case didn’t land in Anne (Queen Anne) Tongin’s division. It wouldn’t even be close. I introduce into evidence the photographs of the bathtub fixtures Gina has taken. A child, they clearly show, could easily have turned the handle.

During my closing argument, I tell the judge that the burns , though horrible, were accidental and that a single negligent act is not child abuse. Harley Sloan, who likes to brag he has been mistaken for David Letterman, is courteous and attentive. Instead of displaying impatience (he has three more cases to hear this afternoon), he follows me closely as if he is still pondering the outcome.

As I review the evidence favorable to Gina, I remind him that it is indisputable she called 911 and by so doing saved her child’s life. Gina Whitehall’s behavior through out this case simply does not fit the profile of a child abuser. Do I believe my own words? I don’t know.

At the end of the hearing. Judge Sloan says he wants a few minutes, and we are in recess. Outside on the grass in brilliant sunshine, Gina, like a condemned prisoner taking her last cigarette, lights up and asks me anxiously, “How’d I do?”

I look across the street at McDonald’s, and, having missed lunch, wonder if I have time for a chocolate milkshake. Probably not, and besides, it would be stretching civilized behavior to mention food at a time like this.

Even if my client has given the performance of her life, the odds are against her.

“You did great,” I tell her sincerely If I were your customer, I’d give you a tip. Did she hold her kid down in a tub of unbearably hot water? Regardless of what Sloan does, I’ll never know the answer for certain. There is no doubt in the minds of anyone involved in the presentation of the case by the Department of Human Services. They have all been righteously indignant The pictures are too horrible not to provoke out rage. Yet, as Gina testified, no one feels worse about what happened than she does (with the exception of Glenetta).

“I don’t have any money to pay you yet,” Gina says, not quite able to look me in the eye.

I am afraid she is about to suggest again that I take it out in trade and say hastily, “You don’t need to worry about that now.”

She gives me an uncertain smile and studies the shrubs in front of the building.

“I want to pay you.”

I nod, knowing this is her way of expressing gratitude, regardless of the outcome.

The bailiff, an elderly ex-cop named Sonny McDill, whom I’ve known for years, waves at me through the glass window that the judge has reached a decision.

Knowing this haste is not a good sign, I take a deep breath, realizing that I’ve come to like Gina.

“I think they’re ready for us,” I say, as gently as I can.

In plain view of Sonny she flips the cigarette into the shrubs, and I resist the urge to tell her to pick it up, realizing I think of her as a child and not a woman.

As Judge Sloan enters the courtroom, I search his face for an answer, but he seems preoccupied as if he has al ready mentally moved onto the next case.

“Be seated, please,” he says nodding to Sonny to close the door.

These moments in a courtroom before a decision is announced are an eternity and usually the climax of wishful thinking. Somehow, despite the evidence, the jury will acquit, the judge will remember what it was like when he was young,
etc.
Virginia, not only is there a Santa Claus, but out of all the billions of boys and girls, he remembers your name! We sit down and I turn and catch Steve Huddieston’s eye. He looks as if he has been holding his breath since the judge left the room. His almost bug-eyed expression suggests that he couldn’t be more impressed than if the United States Supreme Court had chosen to announce its most momentous decision in an obscure Arkansas courtroom. Yet, for Gina and her daughter, no decision will affect their lives more decisively.

“This is an especially difficult decision,” Judge Sloan begins, looking directly at the social worker, Laura Holmes, who filed the petition on behalf of the department “because of the seriousness of the injuries to the child, but in this particular case I am persuaded by a number of factors that Ms. Whitehall did not injure her child deliberately, and therefore I’m dismissing the petition against her.”

Tears spurt from Gina’s eyes as she gasps with joy, and I glance at the social worker, who is crying just as hard.

Joe Heavener is outraged.

“Your Honor,” he says, his voice high with indignation as he struggles to his feet.

“There was overwhelming medical evidence in this case!”

“Sit down, Mr. Heavener,” Judge Sloan says placidly.

“And I’ll tell you the reasons for my decision. Just be cause you bring in a doctor to testify doesn’t mean I’m obligated to accept his testimony. What would be the point of having judges to hear these cases? I’m the finder of fact here, and I wasn’t persuaded by the evidence that the child was held down….”

Like a schoolboy naming the causes of the Civil War, the judge begins to tick off on his fingers the evidence favorable to Gina. While he does, I think how this decision would have been virtually unthinkable only a few years ago. It has only been since 1987 that the Arkansas Supreme Court has required juvenile proceedings to be truly adversarial. I pat Gina on the back and whisper that after the judge is finished she should go thank Steve Huddieston who now seems a little stunned by his part in the outcome. In his summary Judge Sloan has noted that he found Dr. Huddleston’s testimony helpful in understanding why Glenetta simply didn’t crawl out of the tub when she began to be burned by the water.

Outside the courtroom I pump Steve’s hand and ask him if he would be interested in doing more research for me some other time. His hands in his pockets, he stares at the floor and says sheepishly, “One case like this is enough for me. I’ll worry about this kid until she leaves home.”

“All you did was give the judge information,” I assure him, “he wouldn’t have had otherwise.”

Apparently relieved to be thought in some manner as a technician, Steve’s face brightens visibly.

“I guess so.”

Outside in the parking lot, Gina, her face shining with joy, gives me a big hug.

“You were great!”

Hardly, I think, but she got her money’s worth. I’d give what little I’m getting on this case to know if she really burned her kid deliberately.

“Was it an accident?” I ask.

“You can tell me now.”

“Of course it was!” she says indignantly.

“I wouldn’t hurt my child!”

I say quickly, “I didn’t think you did.”

Driving back to the office, I muse on what a dumb question I asked her. Nearly every defendant I’ve ever represented says he or she is innocent. It’s the nature of the beast. Did Dade rape Robin? That’s an even dumber question.

“dade would have made all the difference in the world against Auburn,” Clan says, staring out my window into the street below. Each Monday he comes into my office and dissects the Hogs’ performance from the previous Saturday.

“They knew we didn’t have anybody who could get open long without Dade.”

The Razorbacks kept it close (21 to 14), but it was painfully obvious how much they missed Dade. Only five completions in twenty attempts and none more than ten yards.

“It serves them right,” I say, still angry about the administration’s decision to uphold the “J” Board.

“If they lose the rest of their games, you might see some heads roll.”

Clan lets out his belt a notch, even though it is only nine in the morning.

“People have been fired for less.”

He was almost absurdly pleased that I got the dependency-neglect petition against Gina dismissed on Friday. I noticed he took off the rest of the day. Surely he isn’t still sleeping with her. If he is, he deserves what he gets.

“It pisses me that Carter didn’t even mention Dade on his TV show Sunday. It’s like the Soviet Union when they used to rewrite their history. Dade never existed. I wanted him to be a character witness at Dade’s hearing, but he wouldn’t do it.”

“The pressure on coaches must be enormous,” Clan says, taking up for him.

“He probably had done all he could do for Dade.”

“Shit! If they’re winning, they can get away with murder.”

My phone rings. Julia tells me it is Binkie Cross, calling from Fayetteville. I give Clan the thumbs-up sign, and pushing the button on the speakerphone, I tell Julia to put him through. This could be good news.

“Binkie Cross, Gideon,” Binkie says, wasting no time on pleasantries.

“I’d like Dade to take a polygraph. If he passes, I really might be able to see my way to a dismissal.”

Polygraph tests aren’t admissible in court in Arkansas unless both sides agree. Yet, law enforcement types use them frequently to weed out suspects. Clan nods. What does Dade have to lose? I ask, “Has Robin taken one?”

“Her parents are balking at it,” Binkie admits.

“They think it’s an insult. I understand their feelings, but if your client were to pass with flying colors, and she still won’t take it, it’d be a lot easier to justify a dismissal.”

Damn right it would, Clan mouths the words.

“Let me talk to him,” I say, “and get back to you. It might take a couple of days. I’ll have to talk to his parents, too.”

“No big rush,” Binkie says.

“Just give me a call, and I’ll set it up.”

“I’ll do it.” Before he gets off the phone, he tells me he has subpoenaed the tape of the “J” Board hearing and will provide me a copy of the transcript when it has been typed. I look down at the calendar on my desk. Though it promises to be a gorgeous, mild Indian summer day, we are into the second week of November. Still, the trial is almost two months away. I thank him and hang up, thinking this is about as good an offer as Dade is going to get “If he dismisses charges, the school might reverse itself and put Dade back on the team,” Clan points out.

“It’d be worth a shot.”

I pick up the phone and call Dade but as usual get his answering machine. I leave a message for him to call me as soon as he gets in. Because he has only been suspended for the rest of the season, he is still being allowed to keep his athletic scholarship and live in the dorm. Actually, the university could have been a lot tougher on him. Before Clan leaves, I ask, “You’re not still screwing Gina, are you?”

Standing at my door, he nods like some three-mont hold puppy who has been caught standing in his water dish.

“It’s not really like you think,” he says.