Cruel Justice

7

BEN STOPPED BY THE public defenders’ office and checked out the Leeman Hayes file, telling them he had been asked to represent the defendant and was in the process of deciding whether to do it. Assuming Leeman consented, they didn’t object to a substitution of counsel. Not that they didn’t think the case was important. But when a staff of four lawyers has to handle over a thousand criminal cases a year, they tend to take all the help they can get.

Before he left for the treatment facility where Leeman was being held, Ben thumbed through the file. The mystery of the ten-year trial delay soon became clear. Leeman had been arrested almost immediately after the murder occurred. His lawyer, since deceased, ordered a battery of physical and mental tests. After being presented with the results, the trial judge ruled that Leeman was not capable of assisting in his own defense and therefore constitutionally could not be tried.

Leeman was committed to a series of institutions and therapy centers. The reports received were of a kind; only the words changed. Leeman Hayes was born with a genetic condition that resulted in profound retardation. The neurological disorder affected his perceptions of and reactions to the world around him. It was like a thick sheet, a gauzy veil between Leeman and everyone else.

According to the file, Leeman was generally good-natured, but he had a temper that sometimes flared up with little provocation. During these aggravated seizures, especially given his limited ability to comprehend outside stimuli, his behavior was utterly unpredictable.

Leeman had been shuffled from one center to another for years, until last spring, when a treating psychiatrist—a Dr. Herbert Fischer—suddenly declared that Leeman was mentally capable of assisting in his own defense and remanded the case to the district court for trial. The minute orders in the file suggested to Ben that the judge had little enthusiasm for this case, but he had no choice. He set the matter down for trial.

To Ben’s dismay, the file did not suggest any exculpatory evidence to support Leeman’s not-guilty plea. Despite the recent determination of Dr. Fischer, file memos of client interviews indicated that Leeman was virtually no help whatsoever. The concept of the passage of time was beyond him. Trying to get him to focus on what happened ten years ago was almost impossible. Ben would be starting from square one.

If he took the case.

Don’t be such a sucker.

Given the circumstances, only a crazy man would do it.

Ben arrived at the clinic near Shadow Mountain just off Sixty-first in south Tulsa. After a brief conversation with the physician in charge, Dr. Montague, Ben was permitted to see Leeman Hayes. The doctor asked the woman who sat at a desk outside his office—a tall, black woman whose name tag identified her as VERA—to escort Ben to Leeman’s room.

Ben wanted to ask Vera about Leeman, but he wasn’t sure whether Vera was a nurse, or secretary, or what, and he didn’t want to offend her by asking. He decided to try to work it out for himself.

“So … you work with Dr. Montague?”

“Oh yes. Every day.”

“I see.” Ben followed her down a long antiseptic corridor. “He probably depends on you quite a bit. On a day-to-day basis.”

“That’s true.”

“You probably … check on the patients every so often. Make sure they’re okay.”

“Actually, we usually let the nurses do that.”

Aha. Not a nurse. “Do you … prepare Dr. Montague’s reports?”

“Oh yes. I do all his reports now.”

Bingo. “So you must be his personal secretary.”

Vera peered down at him. “Close. I’m a doctor.”

If there had been an available closet, Ben would’ve crawled into it. “I’m sorry. I just assumed …”

“You assumed that since I’m a woman, I must be a nurse or a secretary.”

“Not at all,” Ben said, although in truth, of all the possibilities he had considered, somehow doctor never came to mind. “I just—I assumed that since you did his paperwork, you must be his secretary. Goodness knows my secretary does all my paperwork.”

“I do his paperwork because I have to. I’m a GP—a family physician. He’s the specialist—a clinical psychiatrist with specialized training in intellectual disorders. Since I’m a mere generalist, I do the paperwork, and the dictation, and all the other grunt work. Soon I’ll probably be washing his Jaguar.”

Ben thought this might be an opportune moment to change the subject. “How well is Leeman Hayes able to communicate?”

“Only in the most rudimentary way. His verbal skills are keenly lower than even most developmentally disabled persons.”

“Developmentally disabled—”

“That’s the current politically correct euphemism for mental retardation. I know, it’s hard to stay on top of them all. If people spent half as much time developing remedies as they spent trying to tell other people what words to use, we’d probably have a cure for the common cold.”

“And, because Leeman is … developmentally disabled … he can’t communicate?” Somehow, that didn’t seem right. Ben had met mentally retarded persons before, and he’d always been able to talk to them. “Why is that?”

“How much do you know about mental retardation?”

“Not much,” Ben admitted.

‘Then you’ll pardon me if I go into my lecture mode.

Mental retardation affects about three percent of the American population. Supposedly it’s caused by genetics. Biological abnormalities.”

“Supposedly?”

Vera pressed her glasses higher on her nose. “Well, statistics have shown that a vastly disproportionate number of retarded persons come from underprivileged families.” She paused. “That’s yuppie talk for po’ folk. Now, if it’s all genetics, why is retardation visited so often on the poor? Doesn’t make any sense.”

“What do you think causes it?” Ben asked.

“I think, at least in many cases, that it’s caused by poverty in combination with negative social and cultural conditions and a lack of stimulation during the child’s early developmental years. Early training is critical—sensory, verbal, and emotional stimulation, along with training in certain fundamental skills. Problem is, many po’ folk don’t have the time or the opportunity to provide it. Or they may not be well enough educated themselves to know what to do.”

“How retarded is Leeman?”

“Eighty-seven percent of all retarded persons are what we call mildly retarded. They can be educated to about a sixth-grade level and can usually support themselves. Ten percent are moderately retarded. They can be educated to about the second-grade level and develop only minimal speech and communication skills. Three percent are severely or profoundly retarded. The severely retarded will require care throughout their lives but may be able to do some things for themselves. The profoundly retarded will never be able to do anything for themselves.”

“I read in the file that Leeman is moderately retarded.”

“True, although he’s at the low end of the moderate scale, and he has virtually no communication skills. In fact, when he was first institutionalized, he had none at all. Since then, he’s learned a few words. Not many. Mind you, he does understand some of what goes on in the world around him. He’s able to learn simple tasks and repeat them. He’s able to work with his hands and has good motor skills. He just has no way to communicate.”

“I saw a reference in the file to PKU.”

“Right. Leeman has been diagnosed as suffering from phenylketonuria, a metabolic abnormality believed to be caused by genetic errors. Not unlike Down’s syndrome. PKU is characterized by eczema, attention deficiencies, and a musty body odor.”

“And there’s no cure?”

“Actually, there is. In at least some cases, PKU can be prevented in infants who have the metabolic defect if their diet is changed before permanent brain damage occurs. Unfortunately, Leeman’s parents couldn’t afford fancy doctors and high-class hospitals. They didn’t even have health insurance. So the condition wasn’t detected. And Leeman spends the rest of his life as a retard.”

A long time passed before either of them spoke again.

“From what you’ve told me,” Ben said finally, “I’m surprised Leeman was able to caddy.”

“Oh, he was a splendid caddy,” Vera replied. “Mind you, he wouldn’t be advising people on what club to use, but he was perfectly able to schlep a bag of clubs around the course. He was strong, uncomplaining, and he knew the course like it was his backyard. In most instances, no communication was required.”

Ben nodded. “Is Leeman being guarded?”

“Only in the most superficial way,” Vera answered. “After all, he’s been in institutions of one sort or another for the last ten years. He’s not going to escape. I don’t think he’d know where to go if he did.”

“Is Dr. Montague the psychiatrist who’s been treating Leeman?”

“He’s not the one who certified him competent to stand trial, if that’s what you’re asking. That learned scholar lives in Ponca City. Met with Leeman for two hours, then rendered his expert opinion. An opinion we all find mystifying.”

“Then … you disagree that Leeman is competent to stand trial?”

“I disagree that anything has changed. Leeman is mentally retarded. His condition can’t be treated. We can try to improve his communication skills, or to train him for an occupation. But that’s it. Able to assist in a murder trial? Absurd. If he was unable to assist in his own defense ten years ago, then he still is.”

They stopped in the corridor outside a closed door. “Then how do you explain this new ruling?”

“Politics.”

“What?”

“You heard me. Politics. And the inexactitude of the psychiatric sciences.”

“I don’t follow. …”

“Despite what some doctors may tell you, psychiatry is still an inexact science. And our knowledge about mental retardation is woefully incomplete. Two different doctors, both competent, can still give wildly varying evaluations. And if one of those doctors is an arch-conservative who believes that murderers should be punished for their crimes—”

“Then you’re much more likely to get an evaluation that the accused is competent to stand trial. Is that what happened to Leeman Hayes?”

Vera smiled thinly. “Don’t ask me. I’m just a family doctor. What do I know?”