Bad Faith

25

Karp waited patiently as the tough-looking police sergeant placed his hand on the Bible and was sworn in as the People’s next witness. They were in the second day of the trial of John LaFontaine, a.k.a. the Reverend C. G. Westlund, in front of New York State Supreme Court judge Henry Gresham Temple III and just getting to the heart of the matter.

Outside, Indian summer had given way to fall, with the deciduous trees in Manhattan putting on a display of color that amazed even longtime locals. However, it reminded Karp that Halloween, and his appearance as the grand marshal of the annual parade in the Village, was only a few days away. He wondered briefly how that night would go, but at the moment his focus had to be on the trial, and more narrowly on his witness Sergeant Trent Sadler: “Did there come a time when one of the men with the defendant attempted to prevent you from doing your duty?”

Karp turned toward the spectator section and smiled slightly at his wife, who was sitting a few rows back behind the prosecution table. When he’d received the call from Fulton that Marlene had been shot and was in the hospital, it was all he could do not to hop on the next plane and fly to Memphis. But she was the one who stopped him.

“I’m okay,” she’d said, taking the phone from the detective. “Katz and I will have matching scars, but I’m more worried that when Westlund, or LaFontaine, doesn’t hear from Bernsen, he’ll skip town. Talk to Fulton and Detective Winkler, but there’s plenty to arrest him on now. You can baby me later.”

Karp had talked to the two detectives and then acted quickly. When two of Fulton’s detectives arrived at the Avenue A loft, LaFontaine was already packing several suitcases, one of which contained more than $200,000 cash. He’d been arrested, however, without incident and taken to the DAO, where Karp had been waiting for him in an interview room.

As expected, the itinerant preacher had refused to give Karp a statement and demanded a lawyer, which had ended their conversation. However, not before they’d engaged in a little back-and-forth.

“You’ll never make it stick, Karp,” LaFontaine said scathingly.

“You’re going to swing on this one, LaFontaine,” Karp replied evenly. “No plea bargain. No rationalizing. Just the trial, conviction, and prison.” It wasn’t the sort of give-and-take he would normally have engaged in with a defendant, but in this case, he had a reason.

Shortly thereafter, Karp went before a grand jury, which indicted LaFontaine for depraved-indifference murder.

LaFontaine had invoked his right not to talk to Karp. But that didn’t prevent him from issuing statements to the media-mostly through his lawyer and the public relations firm they hired-from his cell in the Tombs. The gloves, as thin as they had been before, were all the way off now. The Jewish district attorney of New York County was anti-God and anti-Christianity, especially fundamentalist Christianity, as represented by the Reverend John LaFontaine and faith healing. And much to his consternation, all Gilbert Murrow could counter with was that the DAO would not try the case in the media but would let the facts speak for themselves at trial.

Unfortunately-Or fortunately, depending on how you see two fewer dirtbags in the world, Karp thought-Frank Bernsen had not survived being shot by Marlene and then Fulton, though the official cause of death was drowning in the Mississippi River. Nor had Sister Sarah, whose full name had been Sarah Westerberg, the owner of a lengthy criminal record that included larceny, criminal impersonation, and prostitution, made it to the hospital alive with a gaping head wound.

Their deaths had benefitted LaFontaine in two ways. They could not roll over on their boss. His defense attorney, J. R. Rottingham, a rotund, bug-eyed, blustering self-anointed sage who fancied himself a constitutional scholar, had been quoted early and often saying that any “alleged” criminal activity would have been conducted by Frank Bernsen and Sarah Westerberg without the knowledge of his client, “who would be shocked if the allegations are true.”

This was a case without a smoking gun, or even a single dramatic witness who could pull it all together from the witness stand, especially as Nonie Ellis was still missing. It was a case that would be built of small pieces, from the ground up.

There had been some discussion in the office, particularly between him and Guma, who was sitting second chair, about whether to dismiss “without prejudice” the indictment against LaFontaine until Ellis could be located; a warrant had been issued for her, but she’d disappeared. But both men had agreed that LaFontaine would run, possibly with the help of the ATF, which had so far refused to cooperate.

So, feeling somewhat like a fighter going for the heavyweight title with a hand tied behind his back, Karp had nevertheless entered the ring. As he’d stated in his opening remarks earlier that week, the People would prove that John LaFontaine, a.k.a. C. G. Westlund, had systematically preyed on the vulnerable families of seriously ill children, including the Ellises. That he’d identified his targets in Memphis with the aid of hospital administrator Dr. Maury Holstein, and that he’d used his position as the families’ spiritual adviser to dissuade them from seeking medical attention for their kids, “knowing full well that these innocent children would die painful, lingering, and preventable deaths while their parents, who had given their trust to this man and feared his condemnation, stood by praying and watching helplessly.”

As he spoke, Karp had walked over to face the defense table, staring implacably down at LaFontaine, whose long hair was swept back behind his ears, and his beard had been neatly trimmed. The false preacher had done his best to smile up at him, though it had come off as strained. “And he did it not out of religious conviction,” Karp said, accusing him to his face, “but for the most venal, despicable motive of all: he did it for money. And that, ladies and gentlemen, is what we will prove, so that you will have no choice but to find this … this charlatan, this flimflam man … guilty of depraved-indifference murder.”

The defense had countered as expected: that LaFontaine was being persecuted for his religious beliefs, “which are at the very heart and soul of our rights as Americans.” He was only a spiritual adviser to whom frightened families had turned in times of great crisis.

“Did he express to them his own dearly held belief that only God heals, and only God decides who lives and who dies? Of course,” Rottingham said as he stood in front of the jurors and looked from face to face. “But isn’t the expression of one’s religious beliefs one of our most dearly held rights? It didn’t mean he forced anyone to adhere to his beliefs. The only people responsible for not seeking medical attention for Micah Ellis are his parents.”

Knowing that he would have to deal with the insurance policy issue, Rottingham had then blamed it on Frank Bernsen and Sarah Westerberg, though without admitting that there had been any wrongdoing. “And if it is shown-and that, ladies and gentlemen, is a big if-that anyone would profit from the death of Micah Ellis, it was not my client, but two other persons. One of them connected with the ministry, yes, but operating without the Reverend LaFontaine’s knowledge. Two people who unfortunately-or might I suggest conveniently for the persecution, I mean prosecution, of my client-died in Memphis during a shootout with the police, and so they are not with us to answer our questions.”

Following the opening statements, Karp had moved quickly through his witnesses. He called Assistant Medical Examiner Dr. Gail Manning to testify that Micah Ellis had died from general organ failure caused by brain tumors. She said there was evidence of seizures and that the boy was probably blind, unable to control his muscles, “and in extreme pain that was not alleviated by any commonly used painkillers” when he slipped into a coma and died.

Dr. Manning had been followed by the paramedics, Justin Raskov and Donald Bailey, who’d been called to the scene where Micah Ellis lay dying in his parents’ apartment. They relayed how LaFontaine and two of his men had blocked their way into the building.

“That guy there,” Bailey said, pointing at LaFontaine, “stood in front of the door with his men and quoted Scripture, saying that we couldn’t pass and if we tried, he’d come out with a sword against us.”

“Surely you understood that my client was speaking in biblical hyperbole?” Rotterdam asked on cross-examination.

“I took it as a direct threat,” Bailey countered. “It wouldn’t have been the first time some nut with a sword came at me in New York City. It was pretty clear he and his boys weren’t going to let us in, not until the cops showed up, and even then one of them tried to attack the cops.”

“Was the man who tried to attack the police officers named Frank?” Karp then asked on redirect.

“Yes, I believe it was. That guy there,” Bailey said, again pointing at LaFontaine, “called him Brother Frank. The cops hauled his butt off to jail.”

Now, on the second day of the trial, Karp called Sadler to the stand to recount his version of the facts. “Sergeant, explain to the jury the facts and circumstances as you observed them when you arrived at the scene.” he said.

“The defendant and two other men attempted to prevent me and the paramedics from going into the apartment to aid the sick child.”

“And did he refuse to comply with a direct, lawful order from you to move out of the way?”

“He did.”

“At some point, sergeant, one of the men with the defendant attempted to prevent you from doing your duty?”

Sadler looked straight at Karp. “Yes, one, Frank Bernsen, attempted to assault me and my officers. He was subsequently subdued, arrested, and charged with assault on a police officer and attempting to interfere with emergency personnel in the performance of their duties.”

“During this obstruction and assault by Bernsen what, if anything, was the defendant doing?”

“The defendant was in charge and gave Bernsen one of these,” the sergeant said, demonstrating LaFontaine’s gesture.

“Let the record reflect that the witness indicated the defendant used his head in such a manner as to direct Frank Bernsen to physically confront the police sergeant and his men,” Karp said.

A few questions later, after discussing what the sergeant encountered inside the apartment, Karp asked, “What, if anything, occurred as Micah Ellis was being loaded into the ambulance?”

“A large crowd of what I guess you’d call the defendant’s followers had gathered on the sidewalk and were trying to prevent the paramedics from transporting the boy.”

“How was the defendant involved in this?” Karp asked.

“He was egging them on,” the sergeant said. “He invoked some religious injunction and said in substance that we were affronting the will of God. And that’s when some of the crowd began to demand that we stop and moved forward in a confrontational manner.”

“And how did you respond?” Karp asked.

“I called for backup,” Sadler replied. “It was getting pretty dicey but then the kid’s father asked everybody to settle down and that seemed to calm the crowd.”

“I have no further questions, Your Honor,” Karp said, turning toward Judge Temple.

“Your witness, Mr. Rottingham,” the judge, a heavyset, round-faced man known for being a straightforward, matter-of-fact, and short-tempered jurist, said.

“Did the defendant actually say anything to encourage Frank Bernsen to move toward you in a manner you assumed to be an attack?” Rottingham said as he rose from his seat.

“I didn’t assume anything,” Sadler shot back. “If I hadn’t sidestepped him and stuck him with a Taser, he would have been on me.”

“So you say.”

“So I know.”

“But you haven’t answered my question,” Rottingham said. “Did my client say anything to Frank Bernsen to instigate this alleged assault?”

“No. Like I indicated, just the head motion,” Sadler retorted. “But it was clear as day what he wanted.”

“To you maybe.”

“Yes, to me, and to my men, and to others as well.”

“And when the boy was taken-against his parents’ will-”

“The mother’s will maybe; the father was okay with it,” Sadler said, correcting him.

“Okay, against the mother’s will from the apartment,” Rottingham continued, “did the Reverend LaFontaine attempt to physically block the paramedics?”

“No.”

“So all he did was voice his displeasure?”

“He was agitating the crowd, trying to get them to stop us.”

“Did he say that?”

“No, he implied it.”

“I see, so you’re a mind reader,” Rottingham said scathingly. “Did anyone in this crowd attempt to physically stop the paramedics from transporting Micah Ellis to the hospital?”

“No. Like I said, the father interceded and things calmed down.”

“So essentially, the Reverend LaFontaine and his congregation were exercising their free speech rights?”

“No, that would not be the case,” Sadler shot back. “Inciting to violence and obstructing police action is not a First Amendment right, most respectfully.”

After the midmorning break, Karp called Dr. Aronberg to the stand and began by asking him to lay out the chronology of Micah’s diagnosis and treatment. “It was hard on the boy,” the doctor said, “but I was encouraged by the results. But then he failed to return for post-treatment checkups, and his parents did not respond to our attempts to contact them.”

“What is the likelihood he would have survived if this treatment plan had continued?” Karp asked.

“With his type of tumor, which was slow-growing, the survival rate is about seventy percent if we get to it in time and treat it aggressively,” Aronberg said.

“And if untreated?”

“The child would die.”

“Doctor, you are aware of what happened to Micah Ellis and Natalie Hale, is that correct?”

Aronberg dropped his head for a moment and then nodded, looking up. “Yes, they are deceased.”

“And did you recently look for their medical records at the hospital where they were treated by you?”

“I did.”

“What did you find?”

“Nothing. Their records had been expunged.”

“Is that unusual?”

“Yes. It’s simply not done … at least it’s not supposed to be done.”

“Can you think of any legitimate reason why they would have been expunged?”

“No. There is no legitimate reason to expunge patient records.”

“Is this something that could have happened by accident, or say a power failure, or any other reason aside from an intentional effort to get rid of these records?”

“No. It was intentional. Even the backup files had been erased.”

“Objection!” Rottingham bellowed. “The witness is not competent to come to that conclusion. I ask that his answer be stricken from the record!”

Judge Temple held up his hand to have Rottingham hold his thought. He then leaned toward the witness and asked, “Doctor, how do you conclude that this was intentional?”

“Your Honor, when I was questioned about this matter, I conducted my own inquiry with the hospital computer technicians,” he said. “They demonstrated how the system works, including its fail-safes that would prevent anything except an intentional purging of the records. Which in their experience, and mine, had never occurred before.”

“Very well, thank you, doctor,” Temple said, and turned back to Rottingham. “Do you wish to probe further, now that you’ve opened the door?”

Red-faced, Rottingham stood silently, reached into his vest pocket, and withdrew a handkerchief that he used to mop his brow. He then sat down, ignoring the angry glare of his client.

Karp let Dr. Aronberg’s explanation sink in for a moment and then changed direction slightly. “Doctor, when a new patient is admitted to the hospital for treatment, do they-or in the case of a minor, do their parents-fill out any forms regarding family history, religious preferences, and economic status?”

“Yes, a fairly large document actually, particularly if they are applying for financial assistance.”

“So this form might indicate which religious denomination the parents might adhere to?”

“Yes.”

“And whether one or both parents were unemployed?”

“Yes.”

“So someone with access to this form, as well as the medical records, would know quite a bit about the patient and his family, including their home address?”

“Absolutely.”

“And who would have access to the medical records and this personal information?”

“Someone in the hospital administration.”

“Thank you, doctor, those are all of my questions for now,” Karp said.

Rottingham rose and walked over to the jury box, turning to Aronberg as he asked his question. “Do patients with Micah’s diagnosis always die if untreated?”

The doctor looked at him for a long moment before answering. “As with any disease, there are extremely rare instances of an astrocytoma tumor going into spontaneous remission.”

“And what causes a spontaneous remission?” Rottingham asked, looking now at the jury.

“We don’t always understand the mechanism,” Aronberg admitted. “We do know that the human mind and body sometimes surprise us with their ability to combat disease without medical assistance.”

“Or what some people might call a miracle, or divine intervention?”

“Perhaps,” Aronberg said. “And I have no problem with the idea of divine intervention, though I believe that God works through the intellect of human beings and that, God-inspired or not, there is a scientific reason behind spontaneous remission that is beyond our current understanding.”

“That’s a nice speech, doctor,” Rottingham said, “but what it boils down to is that sometimes spontaneous remissions, or what some people would call miracles, occur and you don’t have a scientific, or medical, explanation for it. Isn’t that true?”

“That’s correct,” Aronberg said.

“But until, or perhaps I should say if, that day comes, when you can explain these occurrences, your thoughts on the matter are no more valid than those of someone who believes that a spontaneous remission is an act of God.”

“I suppose so,” the doctor replied.

Rottingham strolled over to the defense table and stood next to his client. “Doctor, have you ever had any contact with the Reverend LaFontaine?”

“No.”

“Have you ever seen him before arriving in this courtroom?”

“No.”

“Did the parents of Micah Ellis or Natalie Hale ever tell you that they were no longer going to allow their children to be treated by you because the Reverend LaFontaine told them not to?”

“No.”

“And, doctor, in your research into the expunged records, did you turn up anything that indicated that the Reverend LaFontaine had anything to do with it?” Rottingham asked, placing a hand on his client’s shoulder.

Aronberg looked down at his hands. “No, I saw nothing to indicate he was involved.”

Rottingham smiled. “Thank you, no more questions.”

As Aronberg stepped down and passed between the defense and prosecution tables, Karp glanced at LaFontaine, who was looking at him with a slight smirk on his face. Pride before the fall, Karp thought, and turned away.