The Wall: Chronicle of a Scuba Trial
Chapter 7

Trial, Day 4 - Thursday

Pearson puts Ms. Schwartz back on the stand.

"Ms. Schwartz, you testified yesterday that Mr. Kirkland talked to you on your return from Nepal?"

"Yes, that's correct."

"How did he know you had returned?"

"Oh, there were three of four messages from him sent to my mother's home. He said it was important, call him right away when I returned. I knew what it was about. Anyway, I had terrific jet lag, and called him a few days later. We had a long conversation on the phone, then two or three more and I agreed to come to Cleveland."

"Hadn't he been in touch with you in Nepal?"

"No, no one was in touch with me, really. I spoke with my mother two or three times, but never with Mr. Kirkland."

"But surely she had his messages for you to contact him?"

"She might have, I don't know, but the last thing I needed was some subpoena demanding that I come home from the summit of Mt. Everest. So if she did she didn't tell me."

"Are you being paid for your testimony here today?"

"No, but he is picking up my expenses. And just so you know, full disclosure type of thing, I waggled an assignment on Cleveland from Long Island's Newsday, so I don't mind sticking around your fair city an extra day. Newsday doesn't mind either, because it's not costing them anything, and if they publish my story I'll get something. Anyway, it's my first time here, and there's been some kind of rejuvenation, so it's an interesting story, with the Rock and Roll Hall of Fame and all."

"But you are not being paid anything beyond your expenses?"

"No, as I already said, Mr. Pearson."

"Now your testimony about the weights Ms. Knowlton wore on that dive, why is that so important?"

"I don't know, I guess she was over-weighted, and Mr. Kirkland thought it was important, and I do remember it vividly, but I can't interpret that for you."

"You have no idea why that was important?"

"Well, I have an idea, of course, but I'm no scuba expert, and I wouldn't want to speculate. So I am only reporting what I saw, but couldn't tell you with any authority why that might be important in this courtroom."

"Ms. Schwartz, how long did you stay on Grand Cayman after the accident?"

"We stayed another two days. We had one long interview with the authorities the day after, and then that was it for us with the investigation, but we dove that day also, and flew home the next day. You know, you can't fly the day you dive."

"Were you interviewed by a Dr. Bergofsky?"

"No, that name doesn't ring a bell. The only interview I remember was with someone from the Georgetown Coroner's office. Just that one."

"And why didn't you mention the weights to the investigator from the coroner's office?"

"Well, I wasn't asked that specifically, and it might lead to speculation I wasn't prepared to answer, so it just didn't come up, quite frankly."

"Well, how then did it come up in your phone conversations with Mr. Kirkland?"

"Well, he kept asking me was there anything unusual, anything at all, about Ms. Knowlton on that boat trip. The second or third 'anything unusual' and I remembered the weight thing, and the more we talked the more it all came back to me. You have to understand, for the past year or so my mind has been at altitude and scuba was the furthest thing from it. But as I sit here today that scuba trip is now as vivid as yesterday."

"Did Mr. Kirkland ask you, 'How much weight did Ms. Knowlton carry' or anything like that? Or was it just open-ended question like 'anything unusual'? Please answer if you can remember."

"OBJECTION!"

"Overruled."

"Yes, I can remember. He did not mention weights to me, I mentioned it to him, if that's what you mean."

"Could you recount for us what you remember of the boat trip back to the dock after the accident?"

"Yes, doom and gloom. I could write about it, and one day I probably will. It was one of those bright, sunny Caribbean days -- oh, I'm sorry, I sound like a travel piece. Anyway, it was a nice day weather-wise, but everyone on the boat was either crying or silent. You see, it was a death boat, a morgue scene. People with significant others were holding hands, not wanting to let go. It was the longest boat ride of my life. Only about 20 minutes actually, but it seemed eternity. As we departed the boat we were met by a Georgetown official at the dock. He took everyone's name and hotel registration as we got off the boat, and asked for our island departure dates. Since we had all just scuba dived he knew we couldn't leave the island the same day, of course, and said he would contact us within 24 hours. I guess they can also check the airlines to make sure when you're departing. Anyway, after we gave that information we were free to go."

"And what did you do the rest of the day?"

"Frankly, nothing. We just sat around the pool. Fortunately, no one at the hotel knew we had been on that boat, so people just left us alone. About 6 p.m. we had a message that the Cayman authorities would meet us at the hotel the following morning at 8 a.m. in the lobby, and a number to call if we couldn't meet them. We met them, my boyfriend and I."

"You were interviewed in the hotel lobby?"

"No. We went into one of the offices there."

"Was your conversation recorded?"

"Yes, it was. They said that was pretty routine, and it didn't bother me."

"Did your boyfriend also know about the weights?"

"No, actually. My brief conversation with Ms. Knowlton was when he was on the other side of the boat. There's a lot of motor noise when these dive boats are under way, so someone three feet away won't pick up any conversation. So with the Cayman investigator Henri had less to say then me, if you know what I mean."

"Thank you, Ms. Schwartz. No further questions."

Kirkland rises.

"Ms. Schwartz, thank you for coming to Cleveland. I have no further questions."

Everyone expects the judge to break, but she instead speaks about an unusual change in proceedings.

"Yesterday, I was called in the late afternoon by Attorney Kirkland. He told me Mr. Harrison is in town and will testify once more. He explained that he and Mr. Harrison thought it would be best to demonstrate the effects of extra weight on a diver, and could do so last night in Mr. Harrison's training pool, then show the videotape today. Let the record show that a last minute videotape would not be admissible in court unless Mr. Pearson was present at the taping, and that was not feasible. We placed a conference call to Mr. Pearson. Mr. Kirkland then asked if a live demonstration would be admissible, and I agreed. However, I will not prolong this trial unnecessarily, so I insisted it be done this morning or not at all. Therefore Mr. Kirkland and Mr. Harrison have agreed to put on a demonstration, and will do so this morning in the Marriott Hotel swimming pool down the street. The hotel management has agreed to close the pool for one hour upon our arrival. A van is waiting downstairs to take the jury, myself, the court stenographer and the lawyers to the entrance of the hotel, where we will be escorted directly to the indoor pool. In addition, Mr. Kirkland has arranged for a court videographer to tape the demonstration. Even though we will be out of the courthouse, everything that occurs at poolside will be under the rules of the court, and I admonish you not to talk among yourselves about anything to do with this case. Those in the viewers' gallery will receive passes to the pool from my bailiff as you exit the court, but you can walk to the hotel. It is only 5 minutes away. We will see the demonstration and then can replay the tape in this court this afternoon if requested. I apologize for these last minute preparations, but would like to proceed with the demonstration. Does anyone have any questions?"

Everyone nods agreement, no questions. There is anticipation about the field trip and the court empties quickly. Viewers in the gallery include the Knowltons, now re-united, who walk the street alone. They and other members of the gallery arrive a couple of minutes before the courthouse van, and are escorted to the pool.

* * *

The trial has gone from mild tedium to entertaining. The jury certainly welcomes the change of venue. At the pool are Mr. Harrison and a female assistant, situated at the deep end. He has a scuba tank and BC vest sitting on a chair, and a bunch of lead weights at his feet.

The jury is huddled together a few feet beyond Harrison, between him and the far wall. The judge and stenographer stand next to the witness. Harrison is sworn in, at poolside, but not his assistant since she will not be testifying. The inside temperature is warm and they are wearing bathing suits and a short wet suit top of the kind used in Caribbean diving. The pool is large for a downtown hotel, about 40 by 20 feet, and 12 feet deep at this end.

Kirkland, in his three piece suit, begins the interview. An echo makes it more difficult to hear than in the courthouse, but the videographer and the stenographer are recording.

"Mr. Harrison, we have heard testimony to the effect that the deceased wore extra weights. What effect could that have had on her buoyancy?"

"It would make her more negatively buoyant, more apt to sink than to float. If I may demonstrate?"

"Please."

"In my bathing suit with this jacket top and my scuba equipment on, I would never sink. I would be positively buoyant because the clothes and equipment tend to make me float. So I need to put on weights if I want to sink. With just 6 pounds of lead weight I can counterbalance the tendency to float, and then sink or float just by controlling my breathing. Then if I exhale fully - get rid of all the air in my lungs - I will sink. If I take a deep breath and fill my lungs with air, then I will float. That's called neutrally buoyant, when you can control your position in the water just by your breathing, and that's ideal. So for me, with this equipment, I achieve that ideal by wearing 6 pounds of lead weights."

"So for every diver there is a different amount of weight they wear to become neutrally buoyant?"

"Yes, it depends on how much equipment you carry, what kind of protective clothing you wear, on your percentage of body fat, and whether you're in fresh water or salt water, those are the main factors."

"And what is the average weight when diving in Cayman during the summer, would you say?"

"OBJECTION! That would be hearsay. Mr. Harrison does not operate a scuba shop in Grand Cayman."

"Overruled."

The sound of 'objection' and 'overruled' at poolside lends an eerie quality to the proceedings. In fact it is almost like satire. You expect some guy to rush in and push everybody into the brink. But this is not make believe and it doesn't happen. This is still a court of law.

"In my experience, which is actually considerable in Caribbean diving, it's generally between 4 and 12 pounds. That would encompass just about everyone."

"What about colder climates?"

"Yes, more weight is needed in colder climates, where you have to wear bigger, thicker wet suits. But in warm southern waters, 4 to 12 pounds should encompass most people."

"Could you demonstrate being neutrally buoyant, Mr. Harrison?"

"Yes, I am going to get in with my BC completely deflated, and breath slowly and quietly, wearing 6 pounds of lead weight on my belt." He shows the cameraman that he is wearing two 3-pound weights. He jumps in and floats and for the next minute, to demonstrate neutral buoyancy; when he takes a deep breath he floats clear on top of the pool, then when he exhales he begins to sink down below the surface; inhale, exhale, it becomes clear that he is controlling vertical movement only by breathing. His hands are together in front. After a minute he exits the pool.

Except for flippers he has on all the equipment needed to scuba dive.

"Excuse me, just a minute Mr. Harrison," Kirkland interrupts.

"Why weren't you wearing flippers? We noticed the divers in the video all hand on flippers."

"Well it's harder to get in and out of the pool quickly with flippers, so I left them off. For me they are neutrally buoyant, so they won't affect the demonstration.

"OK."

"Now I will double my weight to 12 pounds, and do the exact same maneuver except that I will sink because of the extra weight. After I sink to the bottom I will inflate my BC and rise back up and re-establish neutral buoyancy; that is, by putting air into my BC I will counterbalance the extra 6 pounds of lead weight I am carrying. First, though, I will sink to the bottom, then by inflating the BC with some air rise to the top and float again, with neutral buoyancy. Then I will deflate the BC - you will hear a rush of air come out - and I will sink again, because I am overweighted." He shows the camera his 12-pound weight belt and puts it on, then jumps into the pool.

He floats, then we hear a faint rush of air and he sinks 12 feet coming to rest next to the drain. Not a limb has moved. He is breathing from his scuba tank slowly, and his bubbles rise to the surface. As per instructions, the cameraman focuses on Harrison's torso, so that when he inflates his BC the action is caught on tape; with inflation Harrison rises up and floats once again. He repeats this maneuver, then emerges from the pool, dries himself off and comes before the assembled.

Kirkland asks: "Mr. Harrison is there anywhere else you can put extra weights except on your belt?"

"OBJECTION!" The loud sound reverberates over the pool.

"Overruled."

"Yes, the BC has pockets, you could put extra weights in your pockets. I will do one more demonstration with the same 12-pound weight belt, but add another 6 pounds in my vest pockets, 3 pounds in each pocket. You will see that I will sink much faster."

He jumps back in, and indeed with 18 pounds of lead, instead of 12, sinks faster. He adds air to his BC, floats up, exits the pool.

"Thank you, Mr. Harrison, I have no further questions."

"Mr. Pearson?"

"Your honor, I would like to reserve my cross examination for later today, when we will be in drier surroundings."

"OK, it is now 10:45 a.m. We will meet again in the courtroom at 1 p.m."

The active participants all go back to the van. Everyone else drifts away.

* * *

After lunch, Mr. Kirkland puts Mr. Harrison on the stand. They decide not to play the videotape, but just to go over some points.

"Mr. Harrison, if the deceased wore extra weight, how would that affect her buoyancy?"

"It would make her negatively buoyant, which means she would have had to add air to her BC to float on that wall dive. Then, if she deflated the BC, she would sink. That would be unavoidable unless she exerted a lot of kicking to say afloat. If she did not kick real hard to stay up she would sink, absolutely."

"And the more weight she wore, the more she would sink?"

"Yes, without at doubt."

"Thank you, Mr. Harrison, no further questions."

Pearson rises. He has all afternoon, if he wishes, to cross examine this repeat witness..

"Mr. Harrison, how much did you charge Mr. Kirkland for that demonstration?"

Harrison pauses, then:

"Well, he just called my yesterday afternoon, and---"

"I understand, just answer the question, please."

"500 dollars."

"Thank you. No further questions."

* * *

Kirkland calls his last witness, Jennie Knowlton's boyfriend.

"Please state your name."

"Jonathan Archer."

"And where do you live, Mr. Archer?"

"Edina, Minnesota. That's a suburb of Minneapolis."

"Are you in school?"

"Yes."

"Where?"

"Columbia University."

"Is that where you met Ms. Knowlton?"

"Yes."

"And you graduate?"

"This coming spring."

"And you have agreed to testify today?"

"Well, I have been subpoenaed to testify."

"Why is that?"

"You would have to answer that, Mr. Kirkland."

"You are in the middle of your studies, I take it."

"Yes."

"So it was difficult to get away."

"Yes."

"Well, we'll try not to keep you here too long. What are your plans after college?"

"Law school."

"You've been accepted?"

"Yes, to New York University."

"Mr. Archer, was this your first dive trip together?"

"Yes."

"Were you each certified independent of the other, or did you take the course at the same time?"

"We were certified independently, before we met. It was one of our mutual interests."

"So when you decided to take a vacation together, scuba sort of just fit, is that it?"

"Yes, we had always wanted to go to Grand Cayman, and its well known for scuba diving, so we decided to go. It's off season in July but actually the diving's good all year round."

"How many times had you dove before the last dive, if you recall?"

"We had made three other dives together, the day before. Two during the day and a night dive?"

"And they were to shallower depths?"

"Yes, the first two were about to 40 or 50 feet only, neither one a wall dive, and the night dive was only about 25 feet."

"Were they uneventful?"

"What do you mean?"

"Well, were there any mishaps, any accidents, anything that would make them out of the ordinary."

"No, we did fine. There were no problems."

"And the next day you had two more dives planned? Yes, the first one was deep, that was the wall dive, and the second one was going to be at Stingray City, which obviously was not done."

"Mr. Archer, would you please recount the events of that day, when Ms. Knowlton disappeared, as best you can remember them."

He recounts, and nothing new is learned. We hear of the sunny day, the boat ride, the dive briefing, events all too familiar by this fourth day of trial.

"So you were her buddy for the entire dive?"

"Yes, you don't change buddies during a dive."

"Well, were you aware of Jennie when the moray came into view?"

"Yes, I made sure Jennie could see the moray, so she was definitely with me at the beginning, but then I was just as transfixed as anyone. I had never even seen a moray before, and didn't look around again until the divemaster first noticed someone was missing."

"Do you have any idea how or why Jennie drifted away?"

"No, I do not."

"Have you spoken to her family since then?"

"Yes. There was a memorial service here in Cleveland a week later, and I went to that."

"Since the service?"

He thinks for a minute. "No."

"What were the circumstances of the two of you being in Grand Cayman that week? Was it merely a vacation?"

"Yes, a trip we had planned in the spring."

"Were you planning to ask her to marry you then?"

"OBJECTION!"

"Sustained."

"How long had you been living with Ms. Knowlton."

"OBJECTION. The witness has not testified to living with Ms. Knowlton. He is leading the witness with these questions."

"I withdraw the question, your honor. Mr. Archer, you and Ms. Knowlton were staying in the same hotel room at Ocean Realm?"

"Yes."

"Were you also living with her in New York?"

"Yes. She had moved into my apartment mid-way through her sophomore year."

"Did her parents know?"

"I assume so. It was certainly no secret. Yes, they knew. They came to visit on parents' weekend. They didn't actually come to the apartment, we met them at their hotel, but they certainly knew. They called her at my place often."

"Well, were you planning to get married?"

There is a noticed pause.

"It had been discussed."

"Did you have a date set?"

"No, we were not formally engaged if that's what you mean."

"Were you two dating in September, 1995?"

"Yes, we had met that summer."

"Do you know the circumstances by which Ms. Knowlton was admitted to the Columbia infirmary and observed overnight following a tylenol overdose, on September 22, 1995?"

"OBJECTION. He is again leading the witness!"

"Overruled."

Mr. Archer pauses another long moment.

"We had had an argument, and she over-reacted. It was a prank more than anything, but I got scared and took her in. She only took 10 tablets and it wasn't serious. But they pumped her stomach and kept her overnight for observation."

"What was the argument about?"

"I don't remember."

"Was she referred to a psychiatrist?"

Another long pause. "Yes."

"Do you know that psychiatrist's name?"

"No, I honestly don't remember."

"Your honor I am introducing infirmary records from Columbia University dated September 22, 1995. They have been subpoenaed with court's permission. They indicate that Ms. Jennie Knowlton was admitted following an overdose of Tylenol tablets, and that it was deemed a suicide gesture, and that she was referred to psychiatrist Dr. David Marcus for an appointment September 23, the next morning. She kept that appointment, but records from Dr. Marcus have not been forthcoming. He has through his attorney formally rejected the subpoena under New York confidentiality statutes, and the issue is at this moment unresolved. I will therefore enter the infirmary records into evidence, and note that additional vital medical records are not now available." Pearson hands the infirmary record to the court reporter, who stickers it and hands it back.

"Mr. Archer would you please read the infirmary record."

He reads from the record:

9/22/95. 1 a.m. - 19 y-o. . .

"I'm sorry Mr. Archer, but there is some medical shorthand in there; if you'll note just above the shorthand the full words, and if you'll include that I think we'll understand this so much better. So y-o is year old, and so forth. Go ahead, please read "

"OK. I'll start again." And he reads.

9/22/95. 1 a.m. - 19...year-old...Columbia sophomore, white female... admitted to infirmary by boyfriend following tylenol overdose 2 hours ago. Following 'spat' with boyfriend. . .One previous suicide attempt in high school, per patient, no records at Columbia. She says 'nothing serious,' just argument with parents. Saw psychiatrist in Cleveland senior year, none now. Past medical history neg. Patient alert, oriented, in no distress. Appears depressed. Stomach lavaged 250 cc --- several pill fragments removed. Tylenol level sent. Dr. Smith informed. Asks for 2^nd level at 4 hours after overdose. Patient...admitted for overnight observation.

"Good, please continue."

3 a.m. Patient sleeping. Stable...vital signs. Blood drawn for 2^nd tylenol level, sent to...Presbyterian.'

5 a.m. Blood level 20 mg. Non-toxic. Acetyl...cysteine not indicated.

9 a.m. Patient stable, agrees to see psychiatrist. Asks that parents not be called. Will defer to psych. Dr. Marcus will see her at 10 a.m. Left with boyfriend Jonathan Archer, Columbia sophomore, under own recognizance.

"And you took her to Dr. Marcus's office?"

"Yes."

"It's on campus?"

"Just off campus. He sees a lot of college students."

"Did you go in with her?"

"No, I waited outside."

"And what happened afterwards?

"Nothing, really, she had a few more sessions with him, and everything was fine afterwards."

"Did she take any medication, any anti-depressants?"

"No, not to my knowledge?"

"Did she ever tell her parents?"

"No, I don't think so."

"What about that earlier suicide attempt, in high school?"

"I know nothing about it."

"You never discussed it?"

"No, this is the first I have learned about it."

"Was she a depressed person?"

"OBJECTION!"

"Sustained."

"Mr. Archer, in your own words please tell the court about your relationship with Ms. Knowlton."

"We were boyfriend and girlfriend, we lived together, we loved each other. It was that simple."

"And you have no idea why she killed herself?"

"OBJECTION! Your honor this is outrageous. He is leading the witness and horribly begging the question. I move that question be stricken and Mr. Kirkland be put in line."

"Sustained. Mr. Kirkland, one more question like that and you will be formally admonished. Please watch the leading nature of your questions."

Clearly, Kirkland wants to plant some seed in the minds of the jurors, even at the risk of a formal admonishment, which can always lead to a contempt charge if one is not careful. Perhaps his question is out of line; the Knowltons don't flinch, though. Perhaps they are becoming numbed by this (to them) obscene defense.

"I apologize, your honor. Mr. Archer, can you think of any reason why, on July 15, 1996, Ms. Knowlton might have wanted to try to take her own life or bring harm to herself?"

"No, I cannot." There is an edge to his answer. Witness and questioner are now staring at each other, seasoned lawyer and pre-law student, waiting for the next surprising question . . . or answer..

"Could it be because she wanted to get married and you refused?"

"That's ridiculous! Jennie had no reason in the world to want to kill herself. And I didn't refuse to get married. That's equally ridiculous."

"Could it be because you had a big fight in Grand Cayman, and she wanted to get back at you?"

"Absolutely not."

"Could it be that she actually threatened suicide because you were non-committal about marriage?"

"Absolutely not."

"Did you know she was pregnant?"

"OBJECTION! Your honor, I have had enough. Mr. Kirkland is badgering the witness, he is leading the witness, and he is prejudicing the jury. I demand that the question be withdrawn."

"Your honor," says Kirkland, calmly, too calmly, like he is holding a full house and doesn't care what the other side thinks, "I have a document that will show my questions are not leading, are not prejudicial, are not badgering. I will introduce this document to the court but I respectfully ask that the question of the witness be considered and answered. I will remind the witness that he is under oath."

Judge Whittaker calls Kirkland and Pearson before her. She evidently doesn't know whether to let Kirkland proceed or honor Pearson's objections. She asks for the document and Kirkland hands it over. The judge spends a few seconds examining it, and hands it back.

"Overruled. Mr. Archer may answer the question."

Archer swallows noticeably, then says: "I'm sorry, would you please repeat the question?"

"Gladly. On or during that trip to Grand Cayman, did you know that your girlfriend Jennie Knowlton was pregnant?"

Archer stares at Kirkland, glancing ever so briefly at the piece of paper held in the lawyer's hand. There is silence in the courtroom. Every juror is looking at him, this pre-law student, who seems unsure of how to answer a simple 'yes or no' question. Uncomfortably, the silence continues.

"Please answer the question, Mr. Archer."

"Yes, I knew."

"When did you learn?"

"On the trip. She told me the day before."

"The day before she disappeared?

"Yes, right after the night dive."

"And you were the father, is that a fair assumption?"

"Yes."

"And she asked you to marry her right away, did she not?"

"Look, Mr. Kirkland, we discussed it, sure, but we discussed other things also, and no way did she try to kill herself - and her baby - because of what we discussed or didn't discuss."

"Did you also discuss the hazards of diving while pregnant?"

"OBJECTION!" Mr. Kirkland is again leading the witness. He is not the expert on scuba diving hazards."

"Sustained."

"Let me re-phrase the question. Did you and Ms. Knowlton discuss whether or not the dives should be canceled because she was pregnant?"

"No."

"And are you personally aware of the potential hazards of scuba diving while pregnant?"

"OBJECTION!"

"Overruled."

Archer looks quizzically at the judge, then at Kirkland.

"You may answer the question, Mr. Archer."

"I'm sorry, am I aware of the hazards of diving while pregnant?"

"Yes, that's correct."

"No."

"Did you or Ms. Knowlton discuss this with the divemaster or anyone before the next day's dives?"

"No."

"You just did the dives, not concerned about whether they could harm the fetus."

"No, that's ---"

"OBJECTION! Your honor, this is way out of line. He is badgering the witness, intimidating the witness. Mr. Kirkland is not here to give testimony of his own!"

"Sustained. Mr. Kirkland, please be careful."

"Your honor, if I may, we have a dead woman and child. She dove while pregnant. If you will allow me to quote from Dr. Martin's book, on the subject of diving while pregnant." Here he picks up the book and opens to the relevant passage. But before the first word he is interrupted.

"No, I will not allow you to quote from that book. You had your chance when the author testified. Anything you quote is inadmissable. Furthermore, I must agree with Mr. Pearson that this line of questioning is tantamount to intimidation and badgering. Please close the book."

Obediantly, Kirkland closes the book and walks over to the table and sets it down. He picks up another document and walks back to the witness stand.

"Mr. Archer I have in my hand a 2-page trial exhibit introduced earlier in the week. Would you please look at it and tell the jury what it is?"

"It's the Ocean Realm Waiver that Jennie signed."

"OBJECTION! That document has already been introduced and has been acknowledged, your honor."

"Overruled."

"Now please go to the second page. What is the title of that page?"

"Medical Questionnaire."

"Now please read the first sentence."

He reads. "Answer yes if any of the following apply."

"Okay. Now go to the bottom of the right hand column, where it says for women, and please read that."

He reads: "Are you pregnant or do you think you may be pregnant?"

"And please tell us which box is checked, the 'yes' or the 'no' box."

In a low voice, "the 'no' box."

"I'm sorry, did you say the 'no' box, Mr. Archer?"

"Yes, that's correct."

There is some noticeable shifting of weight among a few jurors. They may be expecting a wrathful response from the defense attorney over this revelation, but Kirkland remains surprisingly muted. In a calm, friendly voice he asks:

"Why do you suppose she answered that way, Mr. Archer?"

"I honestly don't know, sir." His tone indicates he clearly doesn't.

"Because she hadn't yet told you?"

"Possibly."

"Or because she was afraid they might not let her dive?"

"That's possible too, I just don't know."

"I understand. Let me ask you another question. Mr. Archer, how much do you weigh?"

"What?"

"How much do you weigh? It's a simple question. And how tall are you?"

"I'm 5'10" and weigh 170."

"And when you scuba dive in the Caribbean how much lead weight do you carry?"

"I'm sorry, what does that have to do with ---"

"Please, Mr. Archer, just answer the question if you can remember."

"Eight pounds."

"And your girlfriend, how much did she weigh, and her height?"

"About 115, she was about 5'5". Look, please, what does this have to do with ---"

"And how much weight did she carry on her scuba dives?"

"How should I know? I mean, I didn't track that type of thing."

"You never helped her put on the equipment, hand her her weight belt, that sort of thing?"

"Yes, I helped her, but---"

"Well, how much weight do you think she wore on her dives? You dove several times with her, did you not?"

"OBJECTION. Mr. Archer has already stated his answer. He doesn't know."

"Overruled."

"How much, Mr. Archer?"

"I would estimate about the same thing, 6 or 8 pounds."

"Would you be surprised if I told you 16 pounds?"

"Yes."

"Why?"

"That's a lot of weight, I guess."

"Mr. Archer, if you normally took 8 pounds of lead weight, and instead you carried 16, what would happen to you?"

"I would have trouble with my buoyancy, and would have to inflate some air in my BC to keep from sinking. . ."

"Thank you. No further questions."

At that, the piece of paper in Kirkland's hand is stuffed neatly into pocket, and is not introduced into evidence.

Pearson rises.

"Mr. Archer, I am Attorney Pearson, and I represent the Knowlton family. We have met before, is that correct?"

"Yes, at my deposition last year."

"Were you subpoenaed for that deposition?"

"No."

"And why were you subpoenaed today."

"Because I said I couldn't come."

"Why not?"

"Because I am in the middle of my studies, and I had nothing more to say."

"Did you mention Ms. Knowlton's pregnancy during your deposition?"

"No."

"Why not?"

"No one asked."

"Did you think it was important?"

"No. Not in terms of what happened, I mean."

"What impact do you think this information has on the Knowltons, who sit in this courtroom today?"

"I don't know. I'm sure it doesn't make them feel good. I know I feel horrible about it."

"So the Knowltons have lost not only a beautiful, gifted child, but a future grandchild as well, is that correct?"

"You could look at it that way."

"Yours and Jennie's son or daughter, is that correct?"

"OBJECTION. Counsel has already established that fact."

"Sustained."

"Your honor, I have no further questions." Pearson returns to his seat.

"We will recess for half an hour. After the break we will hear closing arguments, first from Mr. Pearson for the plaintiff, then Mr. Kirkland for the defense."