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Taking the stand

The baby was abandoned in a box near a dumpster on April 27, 1989. On May 8, an anonymous call led detectives to Judy Pemberton, 42, who was arrested and charged with child abuse and abandonment. She went to jail and was released on bail. She returned home to Russell Hayes, the baby's father. Meanwhile, the baby stayed in state custody. It was a strange, tense time for George and Megan Cochran. Their neighbor, Judy Pemberton, had been arrested, accused of abandoning her baby in a box next to a dumpster. She went to jail, was charged with a felony and released on bail awaiting trial. Now, she was back home again. Life was supposed to return to normal. But for the Cochrans, normal was not recognizable anymore. What should they think of Judy? What should they say to her?

George Cochran couldn't stop thinking about what his neighbor had done. He poured out his confusion in a diary, asking questions everyone else was asking, too:

May 11. I don't know why this whole thing bothers me, but I've become obsessed with it. I tape everything that goes with it. My God, I even write down all this stuff. Why can't I let it go? Do I really have to know why she did it? Do I have to voice my approval or disapproval? Why must I understand it all?

There are no neat answers to those questions. Mothers who have abandoned their babies offer insufficient, often unconvincing explanations. Some say they don't remember the act or don't understand it, says Dr. Robert Sadoff, a forensic psychiatrist at the University of Pennsylvania School of Medicine. Sadoff has treated 25 women who have abandoned their babies. Most were young white women who were poor and had little education. All of the babies died.

The women often deny they are pregnant, even to themselves, Sadoff says. Then they may experience a traumatic, unattended birth, which can trigger certain conditions _ a post-partum psychosis or a dissociative reaction _ that result in an irrational act, such as abandoning the baby. Later, the mothers may say the babies, like their pregnancies, were not real to them. They deny what they have done until they are pushed to accept responsibility, Sadoff says.

"If you ask them, "Do you realize you are killing a human being?' they say, "No, I'm just getting rid of something.' But if you push them, "Do you realize you flushed your baby down the toilet?' they realize it."

Judy's friends and family searched for answers.

Russell Hayes was mystified. He lived with Judy and never dreamed she was pregnant. He wondered whether he was partly to blame for the abandonment because he was not at home when Judy gave birth. He couldn't get Judy to talk about what she had done. She said she panicked, she didn't know why she had done it _ that was all. Perhaps knowing how the subject upset her, Russell dropped it.

Mary Duncan, Russell's aunt, thought Judy might have been afraid she and her husband, Raymond, and Russell would disapprove of her if they knew she was pregnant. Maybe she thought she would lose her new-found family.

Marci Gilbert, Judy's sister-in-law, had known Judy for 16 years. Judy had a bad temper and a sharp tongue at times. She could be self-centered and immature; she acted more like 22 than 42, especially with Russell. But Judy was not a baby killer.

Tampa psychiatrist Michael Maher looked for answers, too.

On July 20, Judy met the fourth and final time with Maher. Judy's lawyers had asked Maher to evaluate her and to testify later in court if necessary. Maher had counseled three other women who had abandoned babies and testified in two trials.

Maher surveyed the blond, quiet woman sitting in his office. The summer obviously had taken its toll on Judy. She wasn't getting any sleep. She looked exhausted. Her looming trial and sentencing haunted her. She swayed from being sweet and loving to blowing up at the slightest provocation, usually when the baby or her case was mentioned. At the same time, Judy and Russell had serious financial problems. Judy was in no condition to work. One of their cars was repossessed. Bills piled up. They had no medical insurance. Judy had not seen a doctor since the birth.

Maher had made some observations about Judy. Sitting in his office, she looked calm. But beneath that thin layer of calm, she was, Maher believed, immobilized. She could not think for herself. She was deceptively passive, answering Maher's questions fully but asking none of her own. She was neither hysterical nor distraught; she didn't cry or beg for help. She didn't seem remorseful.

But Maher thought she was very sorry and angry at herself for what she had done. She was terrified, and her only defense was her hostility.

Maher thought that Judy had experienced an unacknowledged pregnancy, literally a lack of conscious awareness that she was pregnant. Most women begin their pregnancies with conflicting emotions but soon resolve them. But a few women _ teen-agers especially _ deny their pregnancies until the day they give birth. If a woman is alone when she gives birth to a baby she doesn't consciously expect, she may react by distancing herself from the baby _ and by abandoning it. That's what Judy did, Maher thought.

Judy also mentioned to Maher that about 11 months before the baby was born, she had missed two menstrual periods. She took an over-the-counter pregnancy test; the results were negative. This likely reinforced her conclusion that she was in menopause, not pregnant.

But the real mystery, Maher thought, was why Judy denied the pregnancy for so long.

He looked at Judy's past: The end of a 21-year marriage. Her move from Colorado to Tampa. The financial struggle to support herself, her 20-year-old daughter and newborn grandchild. Then meeting and falling in love with Russell Hayes and beginning to enjoy life for the first time in years. Within a few months, the unplanned pregnancy. The pregnancy itself dramatically different from her first pregnancy 20 years before - no morning sickness or notable weight gain.

Maher hypothesized that Judy pushed the unthinkable out of her conscious mind. This set up the unexpected birth.

He also noted that it was after her daughter was born that Judy's husband apparently started leaving her alone often. Had Judy subconsciously felt abandoned because she had a baby?

Still, Maher knew there had to be deeper reasons for the denial, reasons that only long-term therapy could uncover. But he wondered: Judy was the youngest of six children. Her mother was 37 when Judy was born.

Describing this, Judy casually told Maher, "I was a late-in-life baby. My mother thought she was all done having children. Then I came along."

During the summer of anticipation and preparation for the trial, Russell and Judy anchored each week around their hour visit with the baby at the W.T. Edwards District Administration Office in Tampa, operated by HRS. They called him Rusty now, short for Russell.

Judy cradled Rusty, she cooed, she bought him clothes and talked about Cub Scouts and Little League baseball. She was ready to mother him, she insisted. She could handle it. But she was moody and volatile. She would get mad if she had to wait for the baby or if she wasn't the first to hold him. Once, she stomped out of the building.

She also had seen a counselor, as Maher had suggested. But she thought the counselor insinuated she was lying, and she stomped out of his office, too.

Clearly, thought Marci Gilbert, Mrs. Duncan and HRS workers, Judy would be unable initially to care for her child, no matter what happened in court. HRS was strongly considering giving temporary custody of Rusty to the Duncans. When Russell and Judy were ready, perhaps they could gain permanent custody of their son.

Mrs. Duncan was delighted. She had spent her life taking care of other people. Now, just as her house seemed empty, she was going to have another baby. I guess the Lord says, "You still gotta take care of somebody," she thought. The Lord knew why I never had no kids; he was gonna send me all I can handle.

Aug. 14, Hillsborough County Courthouse Annex, Tampa. Judy stood outside Courtroom 8 with Russell, Mrs. Duncan and Marci Gilbert. She hovered in a small alcove behind a bench. Her arms were folded, her face was a tense mask. The others surrounded and talked to her in low, gentle tones.

She was here for a pretrial conference. Judy was charged with child desertion, a third-degree felony - a serious charge, but the lowest of the six felony grades. Luckily, her baby had survived. If he had died, Judy could have been facing a murder charge, as does Claire Moritt, a college student who in October had a baby in a dormitory bathroom who was later found dead in the toilet. Moritt's trial is scheduled to begin in March.

Judy's lawyers were assistant public defender Brian Donerly, a veteran who usually handles high-profile murder cases. He had assisted in two other baby abandonment trials. He knew that such cases elicited strong emotion, making it hard to get a fair trial.

Andrea Wilson had six years' experience in the public defender's office. She handled most of the interviews with Judy. Wilson was skeptical of Judy's story at first, but grew to respect and believe her. Judy was straightforward, cooperative, occasionally wry and sarcastic and seemed to hide nothing. But each time they met between June and August, Judy was more agitated, exhausted and terrified. To calm Judy, Wilson often switched to safe topics: How's Russell? How's the baby?

Today Donerly and Wilson had to decide how to plead Judy's case. The best scenario: Judy would plead guilty. Psychiatrist Maher would testify. The judge would sentence Judy to probation and counseling.

But before they chose this route, Donerly and Wilson wanted some assurance from Hillsborough Circuit judge Harry Lee Coe Ill that he would be lenient. Sentencing guidelines indicated Judy should be sentenced to probation, one year in jail or a combination of jail and probation. But Coe could give her the maximum sentence, five years in prison. And he had a reputation for giving harsh sentences.

Around the courthouse, Coe is known as "Hangin'Harry." The Florida Supreme Court recently has overruled three of Coe's sentences imposing death sentences against juries' recommendations.

Coe is tall , wiry, with wavy dark hair, sharp features and a blunt courtroom manner. Once a pitcher for the Tampa Tarpon's minor league baseball team, he still aims straight and hard, right down the middle. Intolerant of theatrics, long-winded explanations and soft sentences, he is known as a bottom-line kind of judge. If you commit a crime, you deserve to go to jail.

Bottom line, even Judy admitted she had abandoned her baby.

At 9:30 a.m., Wilson and Donerly stood with Judy in front of Coe. Wilson began talking about unacknowledged pregnancy. She described a recent news story about a woman who was with her husband at Walt Disney World, complained of back pains, went to a clinic and gave birth to a 6-pound baby.

"Dr. Maher obviously can tell you more about the way this happens than I can," Wilson said.

"Is she pleading guilty or not guilty?" Coe asked bluntly.

"Well, Judge, we wanted to see if we could get some indication of -"

"No. I'm not going to plea negotiate the case."

Silence. Wilson seemed a bit taken aback. She tried again. "Is there anything else that you would like to know about the circumstances and -"

"Well, I would want to hear from anybody that wants to be heard. But I'm not going to plea negotiate it. She's either guilty or not guilty, and I'll do what I think is appropriate after I hear from every-"

"Your honor, we felt that it would be better for everyone involved if we could try to work the case out, we hope -"

"I'm not going to plea negotiate it."

Trial was set for Aug. 21.

Aug. 21. Judy sat with Donerly and Wilson at the defense table in court. She wore a black and white polka-dot skirt and blouse, nylons and black flat shoes. Her hair was pulled away from her face, which gave her an unexpectedly girlish look.

This was the first day of her trial. Everything was going dismally for the defense.

Donerly and Wilson had thought they had only one plea option: Not guilty by reason of insanity. They had filed the necessary motions, with Maher's diagnosis: Judy Pemberton suffered from post-traumatic stress syndrome, resulting from the traumatic, unattended birth. The syndrome is characterized by mood swings, memory loss, confusion, depression, lack of sleep - all symptoms Judy had exhibited.

Judy's legal defense was built around Maher's theory and the testimony of Judy's bowling partners, who said Judy had not looked or acted pregnant.

For 20 minutes, Donerly and Wilson argued with Coe about the insanity defense.

Judy sat staring at the floor. At one point, she began shaking so violently the bailiff had to bring her a chair.

Finally, Coe ruled out the insanity defense, saying Donerly and Coe filed their motions too late. Donerly thought Coe was just using a technicality; lawyers using the insanity defense rarely meet filing deadlines, and judges rarely disallow the defense on that basis.

Coe also ruled that whether Judy knew she was pregnant was irrelevant. And he limited the kinds of questions the defense could ask potential jury members. For instance, Wilson was unable to ask whether jurors understood menopause.

The rulings smashed Judy's defense. Maher was out. The bowling partners were out. Extended discussion of menopause was out.

The prosecution had 11 witnesses testifying. Donerly and Wilson were left with only one.

Judy.

Aug. 22. Judy hunched over the defense table, her head in her arms or slightly raised, a pile of crumpled tissues in front of her. Wearing a blue print Western style dress, white stockings and white boots, she was soon to testify, all alone, in her own behalf. She did not look equal to the task.

Sometimes she looked like an old woman. Other times, she looked like a little girl. Maher had earlier prescribed mild tranquilizers to help Judy sleep. She had decided to take some to get her through her testimony, and the drugs' effects were obvious. Judy's eyelids drooped, her body sagged, and she seemed remote - not quite connected to everything that was happening.

Donerly and Wilson did not know Judy would take the tranquilizers, but they figured it was better for her to be tranquilized than hysterical on the stand. Her erratic behavior during the past several weeks worried her lawyers. Earlier in the hallway, Judy leaned against Russell, muttering, "I'm going to prison," or asking Wilson, "Am I going to prison today?" Then, without warning, she called Coe "a bastard." Her lawyers knew these outbursts could dash any hope for sympathy. Who, they wondered, would testify: the friendly Judy or the hostile one?

Assistant State Attorney Rolando Guerra called one witness after another: detectives Dennis Hallberg, Larry Lingo, Albert Frost and others from the sheriff's office. The Nawrockis also testified, one at a time: 11-year-old Ryan, who found the baby, Ryan's sister, Melissa, and his mother, Lisa. All testimony was brief and straightforward, explaining how the baby was found in a videocassette recorder box under a tree near a dumpster; how another box containing bloody towels and other evidence was later found in the dumpster; Judy's arrest and confession, how nurses called the baby "Jack-in-the-box." The defense did not cross-examine most witnesses.

Guerra referred often to the table full of evidence: the VCR box Judy had placed her baby in, the box that contained the towels, photos, maps and other exhibits, all drawing a clear picture of events.

Judy quietly cried or stared off into space. She stuck her tongue out at a photographer. At one point she took her engagement ring off, gave it to the bailiff, whispering something. The bailiff found Russell, seated toward the back of the courtroom, and gave him the ring. Russell tried to catch Judy's eye, but she did not look at him.

Throughout everything, Russell, Mrs. Duncan and Marci Gilbert sat together toward the back of the courtroom, looking as if they were at a funeral.

Vincent Tifer, Judy's former boss at Hallmark Packaging Inc. in Tampa, was subpoenaed by the prosecution to testify against Judy. He had wanted to do the opposite. Tifer testified that Judy went to work the day after she had a baby and seemed normal - by implication, cold and remorseless.

Wilson cross-examined, asking one question. Did Judy look pregnant the day before she had the baby? No, Tifer said.

As Tifer stepped down, he said in a loud voice, hoping the jury would hear, "Good luck, Judy!"

Within two hours, the prosecution rested its case. Coe called a brief recess. Judy, Mrs. Duncan, Marci Gilbert, Michael Maher, Donerly and Wilson retreated to the public defender's office upstairs. This is where they went during breaks - away from the noisy crowd, and, especially, the media.

During the breaks in her three-day trial, Judy usually just lay down on a couch. One time, when the couch was being used, she curled up on the floor in Wilson's office with her head behind a filing cabinet. She cried, or asked, "Why are they treatin me like I'm a monster?"

Another time, as Judy sat with Marci, Russell and Mrs. Duncan, she cried and said, "I don't know how any of you can love me after what I did."

That, Marci knew, was Judy's way of saying, "I'm sorry."

Russell was strong for Judy. When she was upset, he took her by her shoulders and said, "Judy, it's going to be okay." But he was scared, too. Shortly before Judy testified, Russell sat alone in the near-empty courtroom, before the trial resumed. He rubbed his face with his hand and shook his head. His face reddened.

"I just don't know what I'm going to do," he said.

"The first witness we intend to call," said Donerly, as the trial resumed, "is the defendant, Judith Pemberton."

The bailiff took Judy's arm. Judy shuffled to the stand. She took the oath in a barely audible voice. She sat down.

Andrea Wilson asked gently, "Judy, would you tell us your name, please?"

Judy started to cry. "Judith Pemberton."

"You need to speak up so we can hear you, Judy."

Judy sobbed. "I can't. I can't."

"Try again," Wilson said. "Tell us your name?" Wilson was relieved. Judy finally gathered herself and answered basic questions. Her address, age, whether she had children.

Wilson asked Judy to describe her pregnancy with her daughter 20 years ago. Judy said she had all the signs. "The classic morning sickness, swelling feet. They got very large and very large stomach, very large breasts. In fact, I was quite sick during the whole pregnancy. I gained water to the extent that I had to take cholesterol and water pills to get rid of it."

"How long were you in labor?"

"Oh, about 24 hours."

"Did you know right away when you went into labor?"

"Oh, yes."

Wilson talked about May 13, 1988, when Judy met Russell Hayes.

"I remember exactly," Judy said. "It was at the bowling alley, and he was wearing black slacks and a black sweater, and I adored him at first sight. I knew he was right."

Wilson tried to establish that Judy and Russell had a stable, loving relationship, and that Judy thought she was in menopause. She also established that Judy had taken an over-the-counter pregnancy test.

"Of course," Wilson said, "We all know now that you (later became) pregnant . . . did you ever feel that you were pregnant?"

"No, I didn't get big enough."

"Did you gain weight?"

"Some, yes, but I was also eating an awful lot because the man I was married to before was very much against gaining weight. He was a physical fitness _ I hate to use the word "nut,' _ but he was very fanatical about physical fitness and any weight gain was a no-no."

"Was your relationship with Russell a little different?"

"Yes. He doesn't care. I mean, you know, he isn't exactly skinny himself, but he doesn't care."

Everyone in the courtroom laughed. Russell turned scarlet, and lowered his head and he and Mrs. Duncan laughed. It was the only jovial moment in the trial.

Wilson compared the difference in symptoms. During Judy's first pregnancy, "Did you feel her move inside you?"

"Oh, yeah, you could see my stomach was undulating. She was just turning."

"Kicking?"

"Oh, yes, especially in my right ribs. She made them very sore."

"Did you feel any movement the second time?"

"With Rusty? No."

Judy clutched a tissue in her hand, and occasionally raised it to her nose.

"Do you remember having the baby?" Wilson asked.

"I remember some _ some pains, but when he came out, there he was. I don't remember having him but all of a sudden there he was."

"What did you think?"

"I didn't know where he came from."

"Did you know that it was your baby?"

"He must have been. He was attached to me. I don't remember, you know. I don't know. He was there."

"What did you do?"

"I cleaned him up as much as I could and tied the umbilical cord and wrapped him up."

"What were you thinking while you were doing those things?"

"I don't know. I don't think I was thinking. I was acting almost on instinct, I think."

"After you cleaned him and wrapped him, what did you do?" Wilson asked.

"From that point, I don't know. It's very unclear."

"Judy, how is it possible that you were pregnant and didn't know it?"

"I don't know. I have no idea."

When you look back on what happened to you, do you see it clearly?"

"No. It's a dreamlike state."

"What do you mean?"

"It doesn't seem real."

"Do you see yourself in these dreams?"

"I see somebody in that dream, but I don't know if it's me."

: Assistant State Attorney Rolando Guerra is a solid, stocky man with dark, perfectly trimmed hair and a confident, square-shouldered walk. Before he began cross-examining Judy Pemberton, he put the VCR box next to her on the stand, so close that the box crowded her.

This was the worst part of everything for Russell. He was so afraid for Judy up there. She hadn't been pushed very hard yet. Russell knew that was about to change.

Guerra grilled her on details of the birth, questioning her previous testimony that she didn't remember most of what happened that day.

You deliver the baby, tie the umbilical cord, clean the baby up, clean yourself up, Guerra began. "What did you do with the baby?"

"I put him on our bed."

"And you found the box. You open it up and you put the baby in the box?"

Judy nodded.

"Correct? You took _ "

"So they say," Judy said.

Guerra showed her the towel. This is the one she wrapped the baby in, correct?

"I can't recall. I don't know. I suppose it is."

Judy said she didn't remember any of her actions, putting the baby in one box, the other items in the other box. Guerra kept trying.

"After you put the baby in the box, and you got that box of garbage, you went looking for the keys to your car, right?"

"I don't know."

"You don't recall that?"

Judy shook her head. "I don't recall a lot of that time."

When Detective Frost interviewed her at Hallmark Packaging the next day, Guerra asked a few minutes later, "You knew by that time you had had the baby?"

"I wasn't sure," Judy said.

"You weren't sure at that point?"

"No."

"Well, of course, you didn't have it any more, right?"

"I didn't think I had it in the first place, not knowing I was pregnant."

The day she was arrested, Guerra said, Judy denied knowing about the baby, but "when they told you all the evidence that they had against you, you finally told him, "It's my baby,' didn't you?' "

"I guess they shocked it out of me. I don't know. I was _ "

"They shocked it out of you?"

A few minutes later, Guerra picked up a photograph. "This is your kitchen?"

"Yeah, it looks like it."

"When those kittens were born in that kitchen, you didn't put them in a box and throw them in a dumpster, did you?"

"Objection, your honor!" Wilson said. "He is goading the witness, and it's totally irrelevant."

Coe overruled the objection.

"You didn't get rid of those little kittens when they were born, did you?" Guerra repeated.

"Oh, no, sir."

Guerra asked why Judy didn't call anyone. She didn't know.

"That baby wanted you, didn't it?" Guerra demanded. "You held it?"

"Only enough to clean it up."

"And then you just got rid of it and threw it like trash by the dumpster, right?"

"No, sir. I laid it on the bed to make sure it was taken care of."

"Just long enough to go get your kittens food, right?"

"Pardon?" The sarcasm was wasted on Judy.

"I have no further questions."

Judy's ordeal on the stand was over. For a moment, she sat there. Then, unnoticed by nearly everyone, including the jury, she slowly stretched out her fingers and caressed the VCR box.

Judy's testimony covered familiar ground. But one item never came up: The dumpster was a central image in this case. Guerra worked on that, implying that putting a baby near a dumpster was the same as putting it in the dumpster. The defense had even filed a motion to prevent him from saying that the baby was placed in the dumpster.

But both sides missed the fact that the dumpster had not been taped off as part of the crime scene, that detectives did not at first connect the baby and the dumpster.

As the media waited in the hallways, Judy ranted in an adjacent room. She hated Guerra. She hated Coe. "Why won't they let me say what I want?" she shouted. "I'll go talk to those reporters! I'll tell them a few things!"

Judy giving television interviews in this condition was a worst-case scenario for Donerly and Wilson. They finally calmed her down and she went home. But she still fumed. In all the news stories and that day in court, everyone kept calling the baby "Jack-in-the-box," the name given to him by the hospital nurses.

That evening, Judy called the television stations. "Quit calling my baby Jack-in-the box," she said. "That's not his name.

"His name is Rusty."

About the reporter

Sheryl James, 38, is a Times newsfeatures writer. A native of Detroit, she graduated from Eastern Michigan University and was a reporter for the Greensboro (N.C.) News & Record before coming to the Times in 1986. The information in this series was gathered from interviews, court files, transcripts and police records. Some quotes are taken from transcripts; other conversations and thoughts are based on people's recollections.

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