Vanishing Acts Read online

  Memory has had a spotty record in the United States court system. For a while, recovered memory was all the rage--adults went to therapists, who planted seeds for trauma that didn't really exist. Hundreds of people came out of the woodwork to accuse child-care workers of abuse and Satanism, and their recollections were allowed as evidence and treated as fact. In the mid-nineties, however, the tide began to turn. Judges steered clear of recovered memories, saying they weren't valid unless they were supported by independent evidence.

  We happen to be twenty-eight years late for that.

  Still, it's new evidence, and I'll be damned if I'm not getting it in. Delia has given me a list of the memories, the ones that are coming fast and furious now that the wire has seemingly been tripped: the lemon tree, in its entirety. A pair of boxers Victor used to own with blue fish printed all over them. Having him sit on the edge of her bed and lift her nightgown to rub her back. Victor asking her to pull down her underwear and touch herself.

  I have to treat it the way I would any other evidence. If I think too hard about it, I want to kill someone.

  I send Emma flowers at the birthing center of the hospital. The card reads "Delia has started to remember the abuse. Consider this notice of my intention to bring these memories into the trial." Two days later, she moves for a 702 hearing, to address the scientific reliability of the evidence.

  We are in the courtroom, but it's a closed hearing, just the judge and the attorneys; no media or jury. Emma wears a maternity dress, but it's pouchy and bunched at the stomach.

  Alison Rebbard, Emma's expert witness, is a memory expert affiliated with a string of Ivy League universities. She has a thin face accented by pink, wire-rimmed glasses, and she's used to sitting in a witness box. "Dr. Rebbard," Emma asks, "how does memory work?"

  "The brain can't remember everything," she says. "It just doesn't have the storage capacity. We forget most of what occurs, including events that were probably significant at the time. Now, the things that do stick ... well, they aren't like images on a videotape. Only minimal bits of information are recorded, and when we recall it, our mind automatically fleshes out the recollection by inventing details based on previous similar experiences. Memory is a reconstruction; it's contaminated by mood and circumstance and a hundred other factors."

  "So, a memory might change over time?"

  "It most likely will. But interestingly, it seems to retain its mutations. Distortions become part of the memory in subsequent recalls."

  "Are some memories true, then, while some are false?" Emma asks.

  "Yes. And some are a mixture of books we've read or movies we've seen. One of my studies, for example, focused on children at a school that was attacked by a sniper. Even the kids who weren't on school grounds at the time had a recollection of being there during the attack ... a false memory that was probably inspired by the stories they heard from their friends and on the news."

  "Dr. Rebbard," Emma asks, "is there a general agreement about when a child is capable of retaining traumatic memories?"

  "Overall, we say that events that happen before age two won't be remembered past childhood; and memories before the age of three are rare and unreliable. Most researchers believe that serious abuse after the age of four will be remembered into adulthood."

  "Delia Hopkins has not been seeing a therapist, but has been experiencing recovered memories," Emma explains. "Would that surprise you?"

  "Not given what you've told me about this case," Dr. Rebbard says. "The preparation for this trial and the testimony itself would force her to relive hypothetical scenarios. She's wondering why her father might have taken her; she's wondering if there was something in her past that might have precipitated it. It's impossible to tell whether she's actually remembering these things or if she only wants to remember them. Either way would explain a period of her life she doesn't understand, and would most likely vindicate her father's behavior."

  "I'd like to address the particular memories that Ms. Hopkins claims to have recovered," Emma says, and I jump up.

  "Objection," I say, "this hearing is only about admissibility, Your Honor. It would be premature to have the State's expert judge the reliability of memories without hearing the actual testimony of the memories and how the witness experienced them." Or in other words, you have to let my evidence in first.

  Judge Noble looks at me over his half-glasses. "Is Ms. Hopkins here to testify?"

  No, because she's barely speaking to me.

  "Not today, Your Honor," I say aloud.

  "Well, that's your problem, son. We're going to allow your offer of proof to stand as to what she might testify to in open court, and I'm going to allow Ms. Wasserstein to proceed."

  Emma approaches the witness stand. "In the first alleged memory," she says, "Ms. Hopkins remembers Mr. Vasquez wearing boxer shorts printed with blue fish. In the second alleged memory, Mr. Vasquez is coming into her bedroom at night and stroking her back. In the third, he asks her to remove her underpants and touch herself. Is this damning evidence, in your opinion?"

  "Often we'll see a subject come to a therapist with a few disconnected traumatic images, sort of like bits of a black-and-white photo. These are what we'd call deteriorated memories."

  "Isn't it possible, Doctor, that Ms. Hopkins remembers seeing Mr. Vasquez in his boxers because, like every other child on the planet, she walked in on him in the bathroom?"

  "Absolutely."

  "And what if the reason he was in her room at night was not to harm her, but to comfort her after a nightmare?"

  "Very plausible, as well," Rebbard agrees.

  "And as for the third, what if there was a medical reason for the request--for example, if the child had a yeast infection and Mr. Vasquez wanted her to apply cream to the area?"

  "In that scenario," Dr. Rebbard points out, "he's going out of his way to not touch her. The point here is that we don't have the whole memory, the whole story. Unfortunately, neither does Ms. Hopkins. She's looking at a striped tail and screaming because it must be a tiger, when in actuality it might be a house cat."

  I don't have an expert witness; I couldn't have afforded one even if I'd had the foresight to find one. Instead, I've spent the past two days poring over psychiatric texts and legal briefs, trying to find what I can to trap the State's expert during cross-examination.

  I approach Dr. Rebbard with my hands in my trouser pockets. "Why would Delia want to make up a memory that's so painful?"

  "Because the fringe benefit outweighs that," the psychiatrist explains. "It becomes a hook for the jury to hang its hat on, and acquit her father."

  "Repression is defined as the selective forgetting of materials that cause pain, isn't that true?" I ask.

  "Yes."

  "It's not a voluntary act."

  "No."

  "Can you explain dissociation, Doctor?"

  She nods. "When a person is in a state of terror or pain, perceptions get altered. Attention is focused on the present moment, and surviving. When attention becomes that narrow, there can be great perceptual distortion, including desensitization from pain, time slowing down, and amnesia. Some psychiatrists believe that removing the anxiety can lead to remembering what happened," she adds, "but I'm not one of them."

  "Even though you don't believe it, however, dissociative amnesia is a valid psychiatric condition, isn't it?"

  "Yes."

  "In fact, the DSM-IV, the bible of psychiatric diagnosis, even lists it." I lean down to the defense table and read aloud. " 'Dissociative amnesia is characterized by an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness.' That seems to describe Delia Hopkins, doesn't it?"

  "Yes."

  I continue reading. " 'It commonly presents as a retrospectively reported gap in recall for aspects of the individual's life history.' Again, that's a bull's-eye."

  "Apparently."

  " '... in recent