Chapter 27

"The defense calls Doctor Claire Montgomery to the stand," said Matthew.

Roger stood. "Your honor, I fail to see the relevance of anything this witness could bring to the issue. I must object. Mental state is not at issue here. The accused did not plead based on insanity, either temporary or otherwise."

Matthew spoke clearly. "Your honor, I have already indicated that I'm trying to establish motive for my client's actions. This witness's testimony is crucial to that endeavor."

"Your objection is noted," said the judge to Schwartz. "Since the defense appears to be trying to do your job, I'm going to allow the witness until such time as it becomes clear that her testimony is irrelevant."

Claire was sworn in. The first few minutes were used by McDill to establish her experience and the number of times she had testified in trials as an expert witness, which he then asked the judge to classify her as. Her credentials were unassailable. Gunderson looked at Roger.

"No objection." Roger sounded mildly disgusted.

"Proceed," said the judge.

"Is Lacey Fetterman your patient?" was Matthew's first question.

"Yes," said Claire. "She has given me permission to divulge information that would normally be confidential." Claire had done this many times and knew how to get in tidbits of data without being asked for it.

"Under what circumstances did she become your patient?"

"She had been involved in an explosion, which caused extended unconsciousness and some swelling of the brain. The attending physician's report, when she was in the hospital, had a Glasgow Coma Scale rating of three, which indicated she was in a deep coma upon admittance. When she awoke from the coma, her memory was faulty, and she was referred to me for diagnosis and treatment." Claire left out who referred Lacey to her and let those present draw their own conclusions.

"What kind of memory problems was she having?" asked McDill.

"Initially there were indications that she had some memories that were false, and that she apparently didn't remember some facts of her personal history. I diagnosed her with partial amnesia, brought on by the physical trauma caused by the explosion. That didn't explain the false memories, though, which are usually caused by psychology, rather than physiology. False memories are usually displacing real ones that threaten the patient. I needed to try to expose which memories were false, and why they had been suppressed."

"And how did you do that?" asked McDill.

"I hypnotized her," said Claire.

"Objection!" said Roger. "Statements made under hypnosis out of court are not admissible. Further, the accused is the best witness in this instance."

Matthew put his hands in his pockets and faced the judge.

"Your honor, I haven't asked the witness what her patient said under hypnosis."

"But you're going to," suggested the judge.

"I submit that this hypnosis only refreshed memories that had been suppressed."

"Your honor!" groaned Roger. "Now the counsel for defense thinks he's a doctor!"

"Sidebar, gentlemen," said the judge.

Both attorneys approached the bench, on the side away from the jury.

"Your honor," whispered McDill. "The only reason my client confessed to the crime is because she remembered it under hypnosis. Prior to that she had no memory of it. Hypnosis is the reason we are having this trial in the first place."

"This is highly irregular," said Gunderson, who wasn't concerned with the hypnosis issue itself. Testimony "refreshed" by hypnosis had been found to be admissible in a number of cases during appellate review. He was more concerned with the behavior of the defense counsel. "You're hanging your client out to dry." He looked from McDill to Schwartz. "And YOU'RE trying to stop him. This was supposed to be a routine process, gentlemen, but you two are making it into something close to a travesty."

"Her confession was corroborated by conditions at the scene," insisted Roger. "It doesn't matter how she remembered. It only matters that she DOES remember."

"Now you're suggesting that her testimony IS admissible," pointed out the judge.

"Your honor," whispered McDill. "I ask you to treat her confession as a discretionary admission. There is precedent for that, under which you are the judge of the reliability of her statement, since it resulted from hypnosis."

Judge Gunderson narrowed his eyes. "You're fishing for a mistrial, hoping I'll consider her confession to be unreliable because it was obtained under hypnosis."

McDill blinked. "I hadn't thought of that, sir," he said. "But it's a good point."

"Nice try, counselor, but the prosecutor is right. I didn't allow the taped confession, but I did listen to it, and her account of things does match the evidence at the scene."

"Then it's refreshed memory," argued McDill. "And that makes it admissible as well."

"We're arguing about something that hasn't even taken place yet," said the judge. "You haven't put her on the stand yet."

"This is the foundation for the reliability of what she's going to say," said Matthew.

Gunderson thought for ten or fifteen seconds. "Go sit down," he muttered.

When they had, the judge turned to the jury.

"I'll instruct you on the hypnosis issue later, when I send you to deliberate. I'm going to overrule the prosecutor's objection, but that doesn't mean I'm awarding any reliability to information obtained under hypnosis. That's going to be your job." He didn't say it out loud, but both attorneys understood he was going to allow testimony based on refreshed memory, rather than discretionary statements. That let him off the hook in the appellate process, should there be one. He looked at Matthew and said, "You may go on."

Matthew stood and approached Claire.

"Please describe what you learned during the treatment of Mrs. Fetterman."

"I learned that there were two different issues involved in her loss of memory. I believe the trauma from the explosion acted on a physiological basis to stop her conscious mind from thinking about the things that had happened before that. That was anatomical. At the same time, psychologically, her brain began to suppress certain undesirable memories. When she woke from the coma, her memory had undergone something like sanitization, where bad memories were no longer available to her conscious mind and a set of false memories had been created to fill the gaps left by the repressed memories. In other words, when she woke up, she forgot things she didn't want to remember and believed things she wanted to believe."

"OK," said McDill. "So how can you tell the difference?"

"It's a little complicated," said Claire. "I'll try to explain. False memories are easier to expose, because there is no history for them. In this case, in her waking state, she couldn't remember being married, but believed another man was her current boyfriend. Under hypnosis, the circumstances were exposed to be something completely different. Under hypnosis, she remembered she'd been married and that her husband had divorced her. That was trauma she wanted to forget, so she replaced the ex-husband with another man who she WANTED to be her boyfriend. The coma enabled her brain to repress the bad memory of her husband and the divorce, and manufacture the false memory of being happily in love with this other man." She stopped to see if McDill had any questions about what she'd said.

"Go on," he said.

"One of the problems is that sometimes repressed memories can return without warning. The divorce is a good example. There were lots of people who knew she'd been married, and about the divorce, so sooner or later she'd be confronted with the truth. She was even using her married name. At some point it was likely that the unpleasant memories would return, causing emotional trauma. That was one of my concerns. She had other repressed memories too, though, which were of much more concern, because the trauma that caused them to be repressed was much greater. If those memories were triggered unexpectedly, it could have destroyed her emotionally. What I tried to do was bring them back under controlled circumstances, so that the disturbance of exposing them wouldn't be so harsh."

"So how do you know whether the repressed memory is real or not?" asked Matthew.

Claire looked over at the jury box. "When a person is under hypnosis, he or she is not a zombie, like many think. They exhibit emotion and response to stimuli as if they were awake. Those responses can be affected by suggestion from the hypnotist. For example, if someone remembers something scary and dangerous during a session, he or she will react with honest fear. But the hypnotist can assure the patient that there is no immediate danger, and that all is well, so that the fear doesn't prevent progress in dealing with the situation. In some cases, the patient can then be instructed to remember the incident when the hypnotic session is over, with the same understanding that there is no immediate danger. It can then be dealt with on a conscious level."

"Could you explain how you discover a repressed memory?"

"It helps if you know the facts," said Claire. "I was aware there had been a rape investigation. I took her back to the day before the rape and asked her to describe what was happening. She did so, and kept going until she said there was a knock at the door, and that there was a man there saying there was a gas leak in the building. She stopped then and became terrified. I had to reassure her that there was no real danger, and that this was just a simple memory of something that was past. Her behavior, as she described what happened, was controlled by my suggestion, but she was in obvious distress."

"Please relate what she said."

"It's graphic," warned Claire, looking at the judge.

"Under the circumstances, that's understandable," he replied. "I rely on your professionalism to moderate it where you can. You may paraphrase, initially, since the defendant intends to testify. I may have to recall you if she does not take the stand."

Claire looked back at the jury and spoke directly to them.

"The man produced a knife and threatened her with it. He made her disrobe and made her watch him disrobe. He demanded that she tell him what parts of his body she found to be attractive, and punished her when she refused. He did that by striking her with his fist, twisting her nipples with great pressure, and pressing the tip of the knife to her throat. He demanded that she ask him for sex. She refused and was punished. When she acceded to his demand, he required her to put a condom on his erect penis. He told her she wasn't worthy of receiving his sperm yet, but that if she was a good girl, someday he would consent to impregnating her. He had sex with her for a period of time she couldn't identify, but which she characterized as going on for what seemed like forever. We had to take a break there, because she became hysterical at that point."

"So you stopped," said Matthew.

"No. I calmed her by telling her these things she was remembering were like the chapters of a book that could be closed any time she wanted it to be. I suggested they were something like a dream, and that they were over and could not harm her. Then we went on."

"All right," said Matthew.

"When I told her to describe what was happening, her distress was clear, but muted. She said she recognized the signs that she was going to have an orgasm and didn't want to. She was confused, because it was wrong for this to happen. The man started laughing and went faster. She tried to push him off then, but he was too heavy."

Claire paused, before going on.

"The patient was crying openly at this point. Tears were running down her cheeks. This is an example of the kind of emotion I was describing earlier that is not suppressed by hypnosis. It is highly unusual, rare in the extreme, for someone under hypnosis to be able to fake this kind of emotion."

Claire turned to look at Matthew, instead of the jury, where there were open mouths and looks of disgust.

"When she couldn't stop the orgasm, the man said, and I quote, 'Cum, slut! Cum on my prick you disgusting whore!'"

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