Spelling to Communicate Goes on Trial, Part V

This is the sixth installment in a series on a Spelling to Communicate (S2C) lawsuit against a school district. You can read more about the background in my first post, but, in brief, the lawsuit arose because the school district, the Lower Merion School District of Lower Merion PA, refused to hire an S2C “communication partner” for the parents’ non-speaking autistic son (A.L.).

This series focuses, specifically, on a hearing that occurred on December 3rd of last year that I now have permission to write about. The hearing was a Daubert hearing, aka a “voir dire” (an oral questioning/examination) of several of the plaintiff’s expert witnesses whom the School District sought to disqualify.

In my previous three posts (starting here), I described and excerpted the examinations and cross-examinations of three people:

• Dr. Anne Robbins, the neuropsychologist whom A.L.’s parents hired to do an independent, neurocognitive assessment of A.L.: an assessment that was based, in part, on output that A.L. generated via S2C
• Dr. Wendy Ross, a highly celebrated figure in the Philadelphia autism and neurodiversity scene and A.L.’s former developmental pediatrician, who testified under oath that she believes that S2C works for A.L.
• Tom Foti, the founder of the local S2C clinic and the designated communication partner for A.L. for A.L.’s testimony at the upcoming trial that was scheduled for January 7th.

Takeaways from the previous posts include, from Dr. Robbins:

• That A.L. has average or above listening comprehension capabilities but (on certain nonverbal subtests) didn’t understand what she was asking him to do.
• That A.L. couldn’t point to a numbered choice on a stationary surface but could point to a number on a held-up letterboard.
• A.L.’s scores, based on S2C-generated output, were much higher on verbal subtests than on nonverbal visual pattern subtests: a striking reversal of what’s generally found in autism.

From Dr. Ross:

• That apraxia is something that affects “any body part that moves” (not really), and that bodily apraxia is associated with autism (not really).
• That she’s witnessed evidence of facilitator control over messages in some of her patients: the first public admission of facilitator control that I’m aware of by someone who believes that S2C is valid.
• That clinical observation trumps formal testing and that holistic assessments trump scientific measurements, and that observations that “the board is not being moved and no one is touching him” establish that A.L.’s S2C-generated output must represent messages coming from A.L. rather than from his communication partner.
• That there’s more cause for concern about falsely accusing someone of not communicating than about the possibility that this person’s communication is being hijacked, and his personhood suppressed, however unwittingly, by someone else.

And from Mr. Foti:

• The usual misrepresentations of the usual studies: “Penn State,” “Cambridge,” and “Virginia,” consistently (and inaccurately) cited as showing evidence either of the need for S2C, or of the validity of S2C.
• That placing the letterboard on a stationary surface is something that “has never been tried” in S2C. Instead, the steps towards what’s (inaccurately) called “independent typing” are a held-up letterboard followed by a held-up keyboard: a sequence that favors facilitator cueing over accommodations for alleged fine-motor challenges.
• That those subjected to S2C depend on their facilitators not just for linguistic expression, but also for comprehension, struggling to understand stuff that’s read out loud to them by someone other than their communication partners.
• That a written code of ethics prohibits S2C “practitioners” from participating in message-passing tests but does not rule out a non-practitioner “communication and regulation partners” participating in such tests.

This ethical loophole, as it turned out, would become a practical reality in the course of the examination and cross-examination that directly followed Mr. Foti’s—namely, the examination and cross-examination of A.L., the person at the center of the lawsuit.

My series on the Lower Merion S2C lawsuit has been alternating with Janyce’s series on the Telepathy Tapes, and as I mentioned in my first post, some of the courtroom drama, while not nearly as extraordinary as telepathy, was arguably as odd as Oz. As in the Land of Oz.

The examination and cross-examination that were about to occur, it’s important to note, were more precisely an examination and cross-examination of the Foti-A.L., facilitator-client dyad, with Foti holding the letterboard and A.L. pointing to letters. This raises the question of how such a dyad should be referred to in the hearing excerpts I present here. In the official transcript, whoever is on the stand is simply called “the witness”; for clarity, I’ve substituted “the witness” with names. In the case of the Foti-A.L. dyad, I’ve decided to use the name “Foti.” That’s because the authorship of the S2C-generated messages was very much in question, while the person doing the speaking was unequivocally Mr. Foti.

As for A.L., as has been the case throughout this hearing, he is referred to in these proceedings as “Alex.”

Once again, I’ve put my commentary in bracketed italics and elided the parts of the examination that are more procedural in nature and/or less relevant to the questions that concern us here at FacilitatedCommunication.org. These questions are, as before: what can we learn about the validity of the instances of S2C that have arisen in this case? Now, with A.L. taking the stand but with his answers generated through S2C, our main question is what we can learn about the validity of S2C from what unfolds during live, unedited, S2C message generation. As I noted in my last post, most videos of FC/S2C/RPM are controlled, edited, and curated by proponents, who make only the best ones public. Videos that aren’t edited and curated (e.g., those recorded during live interviews and aired by third-party organizations) are generally far less convincing, even to naïve observers. The same is generally true of live observations.

My observations, however, were skewed by the position from which I viewed the S2C. The “bar” that separates the main part of the courtroom—with the judge’s bench, the witness box, the counsels’ tables, and the jury box (which in the case of a civil trial is on the right-hand side of the room)—kept me at some distance. The school district lawyers had a somewhat better view, and I’ll include their observations in this post. All of us, however, had to observe the pointing at an angle. That’s because A.L. and Foti were positioned the same way they would be for the actual trial: right in front of the jury box with their backs to the jury, so that the jury members could observe the pointing head-on. At this hearing, there was no jury and the jury box remained empty. The only people with anything like a head-on view of A.L.’s typing, therefore, were his facilitators.

As A.L. was led up to the stand and the logistics were worked out as to who on the judge’s side of the bar was to sit or stand where, I negotiated my way past the elderly gentleman who was now sitting between me and the aisle and over to what seemed like the best available vantage point: as far to the right of the room as I could go, on my side of the bar, without being too far away from the letterboard to observe at least its movements, if not precisely which of its letters were being pointed to.

First on the agenda was the direct examination by Ms. Reimann, the same member of the parents’ legal team who had examined all the other witnesses in this hearing. She addressed A.L. directly:

Reimann: Hi, Alex. How are you feeling? You look like you are a little bit nervous. Are you nervous?

[Foti holds up the letterboard, and A.L. begins pointing to letters. A.L.’s pointing is slower than in some of the instances of S2C I’ve observed; perhaps somewhere between a half to a whole second per point, occasionally with longer pauses. Foti reads out each letter as it’s poked, pausing every so often to speak out the phrases that he judges the letters to have spelled. Sometimes Foti repeats these phrases, perhaps as a confirmation of some sort. The entire process is slow, with regular intervals of total silence between pokes. The board moves ever so slightly up, down, right, left—despite Foti’s assurances in his cross-examination that he avoids such movements. (Such movements are, in fact, impossible to avoid. And they tend to move the client’s extended index finger closer to the next letter it pokes—suggesting that the facilitator subconsciously knows what comes next.)]

Foti: I, a-m, I am, v-e-r-y n-e-r-v-o-u-s, I am very nervous. I am very nervous, period. I am very nervous.

[“Period” presumably means that A.L. has touched the “done” icon in the lower right-hand corner of the letterboard. But from my vantage point, I simply cannot see with any accuracy which letters/symbols are being pointed to.]

 

Picture of Katharine Beals’ letterboard.

Reimann: Okay. Well, you know me, right?

Foti: I do.

[“I do” is the first answer that isn’t first spelled out letter by letter. To give Foti the benefit of the doubt, it’s only three letters long, and “I” doesn’t really need spelling out.]

Reimann: I told you what this was going to be like today, it was going to be stressful. So I want to ask you a couple of questions. Can you tell us a little bit more about how you are feeling?

Foti: T-h-e-s-e m-o-m-e-n-t-s, these moments, a-r-e i-n-t-e-n-s-e, these moments are intense, t-o m-e, to me. These moments are intense to me.

[It takes a reader only a moment to read this response; at the rate of A.L.’s letter poking, it took Foti perhaps 30 seconds to say it.]

Reimann: Is there some kind of–is there a genre of music that you like?

[In Foti’s ensuing responses, we start to hear more than just letters read aloud and formulated into phrases; we start hearing verbal prompts directed at A.L. We also start to see Foti pulling away the letterboard from A.L., pausing, and then placing it back in front of A.L.’s finger: a facilitator behavior that was referred to during Foti’s cross-examination as a “reset.”

The sequence, as I recall it, went as follows (I rely on my memory here as I’d stopped taking notes in order to give this my undivided attention): first Foti pulled the board away; then he put his hand on A.L.’s thigh and gave him the verbal prompt, as if to calm or reassure him; then, after a pause, he brought the board back to A.L.’s finger. Throughout the process, Foti appeared to be genuinely focused on A.L.’s well-being.

But here’s the rub. When asked during his earlier cross-examination about the rules for resets, Foti had stated that he resets the board only when A.L. points to three letters that “don’t make sense.” As an example (see my last post), Foti had cited q-v-a and q-v-b, contrasting these with q-u-o, which he had suggested does make sense. But none of the three-letter sequences that Foti calls out during the current proceedings, as we’ll see below, are like q-v-a and q-v-b; indeed, none of them fail to “make sense”—anymore than q-u-o fails to make sense. Therefore Foti, according to the rule that he described earlier while under oath, shouldn’t ever be pulling away the letterboard during these proceedings.

As for the verbal prompts, I’ve put these in boldface. In fact, in what follows, I’ve boldfaced everything that isn’t either a calling out of letters or a reading out of what those letters spell.]

Foti: M-u-s-i-c i-s m-y, music is my, music is my haven–is my haven. And you are two [to? too?] up.

[“Haven,” curiously, isn’t spelled out. Neither is “you are two up,” which sounds more like a prompt. While “two” is what’s in the official transcript, it would make more sense either as “too” or as “to.” That is, either it’s part of “too up”, as in a directional cue to A.L. to point lower. Or it’s “to,” as in an anticipation by Foti of the “t-o” that A.L. is about to point to (see below). Of course, anticipating letters would indicate that Foti already knows what A.L. wants to communicate (a possibility that was raised in Foti’s cross-examination and discussed in my last post). If “to” is an anticipation of what’s next, then “up” perhaps serves as a directional cue for A.L. to point higher.

Both possibilities—“too up” and “to; up”— are, of course, concerning in terms of facilitator influence.]

Foti: [Continuing] T-o. Nice and direct as you can.

[I think this prompt coincided with one of the above-described “resets.”]

Foti: [Continuing] My haven, t-o m-o-r-e c-a-l-m-n-e-s-s, music is my haven to more calmness–to more calmness, period. Music is my haven to more calmness.

[This strikes me as a prototypical FC-generated utterance—abstract, emotional, and vaguely metaphorical. Nat at all how young men typically talk. But consistent, perhaps, with how facilitators typically imagine autistic non-speakers.]

Foti: [Continuing] And i, a-m, s–keep an eye on the target.

[Another reset? Generally A.L.’s eyes appear to be on the letterboard, though from my angle it’s hard to be sure.]

Foti: [Continuing] e-s-c-a-p-e. It is an escape. It is an escape, period.

[Somehow the “i, a-m, s” has turned into “it is an.” This raises a question about where Foti'’s eyes are, or at least where his attentional focus is: is it more on the target phrase he has in mind, and less on where A.L.’s finger is actually pointing?]

Foti: [Continuing] Right on top of it. I-t-h. All right. Let's stay with i-t.

[Is Foti questioning A.L.’s selection of “h” after “i-t”? But then he allows the “h.”]

Foti: i-t-h. I-t-h, okay. Go ahead. It's helped me to in the sense.

[Foti has accepted the “h” but has inserted an “s” in between the “t” and an “h,” yielding “it’s.” He’s also once again stopped reading the letters out loud and has somehow formulated an additional phrase or two: “helped me to” and “in the sense.” Subsequently, “in the sense” disappears from the developing message, which makes me wonder whether it was actually just a prompt.]

Foti: [Continuing] a-l-l–it has helped me to allow–it has helped me to allow–to allow–t-i–it has allowed me

[“it’s” has become “it has;” a-l-l has somehow become “allow”; “helped me to allow,” in turn, has somehow become “has allowed me;” and it’s not clear where the t-i fits in.]

Foti: it has allowed me to out–Let's go back. Maybe “o”?

[No letters are read out loud for “to out,” but it seems that Foti has judged “out” to not “make sense” here.]

Foti: [Continuing] It has allowed me to talk without

[Or maybe “out” has become “talk without.” No letters are read out loud for “talk” or “with.”]

Foti: [Continuing] m-y, i-m-t-e-n–it has allowed me to talk about my intense and f-e-e-l-i-n-g-s. It allows me to talk about my intense feelings. My intense feelings. My intense feelings.

[“it has allowed“ has become “it allows;” “talk without” has become “talk about;” and i-m-t-e-n has become “intense.”]

Foti: [Continuing] And h-a–I am having a–I am having

[“h-a” somehow becomes “I am having,” with “i-a-m” added before it (or perhaps the “and” in the transcript was actually “I am”) and “v-i-n-g” added after it.]

Foti: [Continuing] l-i–let's be direct and slow down there. Having it is like–backtrack to that.

[Another “reset”? But also a “backtrack”?—This is a term I’ve never heard before, and a form of facilitator influence that Foti didn’t include in his earlier examination. Whatever a backtrack is, it seems to have involved the elimination of “I am” from before “having” and the addition of “it is” afterwards. The “like” that follows “is” also isn’t read out, at least at first.]

Foti: [Continuing] Having it is, l-i-k-e, having it is like breathing. Having it is like breathing. Tom p-e-t-t-y i-s m-y g-u-y. Tom Petty is my guy.

[No letters read out loud for two key words: “breathing” and “Tom.” When Foti neglects to read out the letters, which is occurring with increasing frequency, I start to wonder how many of those letters were actually pointed to—something I can’t see from my vantage point.]

The Judge: All right. Let's have counsel–can we have counsel ask some questions?

Ms. Reimann: Sure.

[And so begins the cross-examination of A.L. by the school district’s lawyer, Mike Kristofco.]

Mr. Kristofco: Sure. What I would like to do, Your Honor, is to show Alex a picture and ask him about the picture, but I'm not sure whether Mr. Foti is willing to do that.

[In a Zoom meeting the night before, we—the three school district lawyers, plus Howard Shane and myself as the two expert consultants—had discussed the possibility that Kristofco might be permitted to conduct a message passing test during this voir dire hearing. We had even gone through some pictures that Kristofco had downloaded from Clipart. The idea was to use unambiguous images with unusual details, such that to adequately describe them one would have to use some somewhat unusual words. Words, that is, that A.L. is unlikely to be able to come up with and spell out on his own—unless, of course, the literacy skills evinced by his S2C-generated messages were genuinely his.]

The Judge: You are going to show them both the picture, right?

Kristofco: That kind of defeats the purpose if I show them both the picture.

[Indeed it does.]

Kristofco: So I guess the question is, is Mr. Foti willing to act as the communication partner if I just show Alex the picture and he doesn't see it?

[At this point, A.L.’s mother, who as I recall is sitting with Foti and A.L., speaks up.]

Ms. Binder-Le Pape: Your Honor, I don't want to put Tom in a position where he has to choose between the court and his ethics code. If I may replace him as the communication partner?

[I couldn’t believe what I was hearing. Was A.L.’s mom actually offering to participate in a message-passing test? Was this the same person who had written a piece on the main S2C website back in 2021 listing four reasons why A.L. shouldn’t have to participate in such a test—the “most important” being that “he doesn’t want to, and we respect his choice”?]

The Judge: That's fine. Does that work?

Kristofco: Yes. We can do that.

[Mr. Foti stands down, leaving A.L. with just his mother.]

The Judge: All right.

Ms. Binder-Le Pape: [Addressing A.L.] Stay there a second. Mr. Kristofco is going to show you a picture and then he is going to ask you some questions.

[It’s interesting that she feels the need to explain to her son what Mr. Kristofco was planning to do even though Kristofco had already made that clear using more or less the same words.

Binder-Le Pape steps down, leaving A.L. alone in his seat with his back to the empty jury box. She turns away from him to face the gallery and the small number of spectators and tightly closes her eyes. She does this with so much confidence that I’m starting to wonder if she somehow knows that the message-passing test—which I can’t believe is about to happen—will validate all her claims about the legitimacy of S2C, the high levels of literacy it has unlocked in her son, and the Lower Merion School District’s violations of his rights.

In other words, I’m starting to wonder if A.L. will somehow identify whatever’s in the picture that Kristofco is about to show him.

Kristofco opens a folder and takes out a sheet of paper that is blank on one side. I have no idea which picture is on the other side; we may have gone through a half dozen last night.]

Kristofco: I have a copy I can give the court.

The Judge: That's fine.

Reimann: Can I have a copy?

The Judge: Well, yeah, let her have a copy.

Kristofco: I will give a copy to you.

Reimann: Can I have a copy now?

Kristofco: Right when I am done.

[She’s clearly not happy; she wants one now. So do I; I’m wracking my brain, trying to call to mind all the pictures we went through—rather quickly—the night before.]

Kristofco: [Turning to A.L., who is now sitting without his mother] Alex, I am showing you a picture. If you can take a look at that. Okay. I am going to ask you a question about the picture, okay?

[Kristofco shows the picture. I can’t see it, and Binder-Le Pape clearly can’t either. Kristofco puts the picture away; as promised, he’s given a copy to Reimann. Binder-Le Pape returns to sit next to A.L.]

Kristofco: [Continuing]. Alex, can you explain what is happening in the picture that I just showed you?

[Binder-Le Pape holds up the board. The letter pointing is much faster than it was with Foti—perhaps half a second or less, on average, between selections. From what I’ve heard, she is his main facilitator, facilitating him for much of the day, and it shows. Binder-Le Pape does not read out the letters as they are pointed to, however, but waits until she deems the message to have been fully constructed before speaking it out in full.

As when Foti facilitated, I’ll use the facilitator’s name, and not “A.L.,” as the name for the current witness. My rationale is the same as before: Binder-Le Pape is the one doing the talking and everything else is in doubt.

The silence that stretches out while A.L. points to letters finally ends and Binder-Le Pape speaks.]

Binder-Le Pape: What is happening is you don't want me to testify.

[Why didn’t I see this coming?]

Kristofco: I would request that the court ask the witness to answer my question.

[At this point, the judge walks over to A.L.]

The judge: Hi, Alex. How are you? I am Judge Marston.

[More letter pointing; more silence. As before, I can see the board but not which letters are selected. Then Binder-Le Pape speaks.]

Binder-Le Pape: Nervous as hell.

The Judge: Okay. Everybody who comes in here is as nervous as you are. And I know it does not make it any better. It's not that counsel does not want you to testify, we are just trying to figure out the best way for the jury to be able to hear you speak. So, he showed you a picture. Do you remember seeing the picture, Alex? Do you remember seeing the picture?

[Some brief letter pointing.]

Binder-Le Pape: Yes.

The Judge: Okay. What is in the picture?

[More letter pointing with a long stretch of silence.]

Binder-Le Pape: Not sure what you want me to describe. This is really insulting. Everyone else just allowed writing or speaking.

The Judge: Alex—

[More letting pointing; a shorter stretch.]

Binder-Le Pape: Why I am different?

The Judge: We know you talk to us with a letter board, so we want to hear you talk to us. Counsel is asking you a question, and he is not trying to insult you, he just wants you to tell him. What did you see in the picture?

[More letting pointing.]

Binder-Le Pape: I don't remember.

The Judge: We can show it to you again, okay?

[More letting pointing; a longer stretch. My notes indicate that Binder-Le Pape’s hand is shaking as she holds the letterboard. I’m not whether I only just noticed this, or whether it was shaking from the start of the examination.]

Binder-Le Pape: Stop. If you don't believe in me, is it worth having a trial?

The Judge: All right. I think now would be a good time to take a break. And, Alex, ultimately that is your decision with your lawyer and your parents about whether or not you want to have a trial. All right. That's a decision you have to make. I don't make that decision. All right. I think we should take a break.

[We all filed out of the courtroom. The Lower Merion special education coordinator came up to me and introduced herself. I had spoken to her by phone a couple of times but didn’t know what she looked like. From my initial spot in the back row, I had had an unobstructed view of her sitting on the far side of the gallery in the front row (the gallery being relatively empty). But from behind she had looked just like Dr. Wendy Ross, one of the plaintiff’s witnesses (see above). She reassured me that she wasn’t Ross, and we joined the Lower Merion legal team in a nook in one of the hallways. Or maybe we all went down one of the elevators first.

One of the most memorable things we shared during this approximately one-hour interlude was something that had occured to all of us, given the readiness with which A.L.’s mother had cooperated with the message-passing test. That is: that A.L. would somehow spell out what was in the picture—and that the whole case would blow up in our mortified faces. So much for the idea that skeptics are only selectively skeptical.

Nor were all of us that skeptical. One of the members of the school district’s legal team confessed that he found A.L.’s spelling pretty convincing. He was having trouble seeing how every letter could have been cued. This was a sobering revelation. The fact that someone as familiar as he was with the arguments against S2C still thought it looked convincing in practice underscored how easily a jury could decide for the plaintiffs.

Another member of the legal team—someone who’d been involved in the case from the beginning—had been able to transcribe some of the A.L.’s letter selections. She showed us what she had, which included strings of letters that neither made sense nor corresponded to anything that his facilitators had read out loud.

A.L., as we had seen, did not describe the picture. And so what should we make of what A.L. actually had spelled out: most especially, “Is it worth having a trial?” Was this a reflection of something stirring in his mother’s subconscious? Was it a face-saving excuse for the plaintiffs to drop the lawsuit? To drop the suit, that is, not because they didn’t have a strong case, but because A.L. had had enough of the indignities and/or didn’t think he’d get a fair trial?

Or, more likely, not to drop the lawsuit, but to settle it. The school district, I learned during this interlude, had already made a financial settlement offer to the plaintiffs: a private settlement that would avoid setting any precedents for future S2C cases. But the parents, perhaps eager to secure a precedent for their many S2C-using peers in the district, had thus far refused to accept it.

Suddenly it was time to return to the courtroom. A.L. and his mother were already back in their spots, their backs to the empty jury box.

Were we about to hear the plaintiffs drop their suit? This was, actually, hard to believe. The suit, by now, had been carrying on for over five years, traveling up and down the judicial hierarchy, from district to appellate, with appeals and denials and appeals and remands. And now, at long last, it was about to get the trial that the plaintiffs had so long been seeking. With a jury that, given how convincing A.L.’s letter pointing had looked to a member of the opposing side, and given how gullible the public has been about S2C stories and S2C videos, was very likely to side with A.L. and his parents.]

The Judge: Okay. Are we ready to proceed?

Kristofco: Yes.

The Judge: Okay. I don't know if Alex–can Alex hear me right now?

[Alex is wearing the headphones he wore when he first arrived in the courtroom. Possibly he had stopped wearing them during the earlier examinations.

Once again, his mother is facilitating him. Some silent pointing; no letters called out. Then his mother reads out a reply to the Judge’s question that appears to reference the headphones.]

Binder-Le Pape: Just makes things quieter.

The Judge. Okay. That's fine. I just want to make sure he can hear me. I understand what Alex was communicating to us earlier, and I certainly understand his frustration. But, Alex, this is a trial that you have brought with your parents. And the way a trial proceeds is the defense gets to ask questions. So they are not trying to insult you in any way, but we just want to figure out today how this is going to work when we spend time in here with actually the jury behind you. So I do need you to answer counsel's questions if you can, okay? You can just answer me yes or no.

[Some more silent letter pointing, and then his mother reads out a reply.]

Binder-Le Pape: I'm sorry for earlier. I was wrong. So let's do it.

[Do what? Is there really going to be another message-passing test?]

The Judge: Okay. Perfect. And you don't have to apologize. The only thing I will say is that I think it's going to be really helpful if your mom, who is acting as communication partner right now, says every letter.

[I’m glad she made this request, especially given how revealing the letter calling was when Foti did it.

There follows some discussion of whether Mr. Foti is still around—he isn’t—and about whether he’s still going to be A.L.’s communication partner at the upcoming trial, which Reimann suggests should be addressed in a “follow-up discussion.”]

The Judge: Okay. All right. Then let's just proceed. I guess I will move back.

 Binder-Le Pape: I have to move while he shows him the picture.

The Judge: You are right.

[Things proceed just as before. Binder-Le Pape steps down, faces the gallery, and closes her eyes, showing just as much confidence as earlier. Kristofco opens his folder and takes out another sheet of paper that is blank on one side. I wrack my brain and try to remember the half-dozen pictures that could be on the other side.]

Kristofco: Alex, I'm going to show you a picture, and I'm going to ask you to please to take a look at it and study it. In a minute, I'm going to ask you a question about it. Okay?

[As before, the picture is put away and Binder-Le Pape returns to A.L.’s side]

Kristofco: Okay, Alex, can you please explain for me what was happening in the picture that I just showed you?

[Binder-Le Pape holds up the board.]

Kristofco: Looks like he said “l”.

[Binder-Le Pape is clearly not used to reading letters out loud.

As I did with Foti’s facilitation, I’ve put in boldface the additional words Binder-Le Pape speaks that don’t seem to correspond to the letters she calls out. Some of that, at least initially, appears to be directed at the court—i.e., apologies for forgetting to read all the letters out loud.]

Binder-Le Pape: l-o, sorry, t-s, lots, o-f, lots of, p-e-o-p-l-e, people, s-t-a-r-i-n-g, staring

[At first I think he’s describing the picture.]

Binder-Le Pape: for wrong–for always–I'm not used to–w-a-n-t, want, t-o, want to, s-a-y, want to say, w-o-u-l-d, would, l-i-k-e, would like, s-o-m-e, some, t-h-i-n-g, would like something s-o-m-e, some, t-i-m-e, some time, t-o p-r-e-p-a-r-e, prepare, m-y, my, a-n-s-w-e-r. I would like some time to prepare my answer.

[What’s in the picture that warrants “preparing an answer”?

At this point Binder-Le Pape’s speech is directed at A.L.]

Binder-Le Pape: [Speaking to A.L.] Take a couple of deep breaths. I don't think Mr. Kristofco is looking for a lot.

[Then the pointing resumes. The board is definitely trembling. I have to wonder if Binder-Le Pape knows what’s coming next.]

Binder-Le Pape [Speaking as A.L.’s facilitator]: I-t, it is a, p-i-c-t-u-r-e, picture, o-f, of

[The regular pointing rhythm has stopped. I can see that A.L.’s hand is now hovering in the lower right-hand corner of the board where the “done” icon is.]

Binder-Le Pape: w-o-n-g, wrong, s-t-a-r-t. start begin.

[“Wrong start; begin”—it sounds as if A.L. has requested some sort of reset.]

Binder-Le Pape: [Continuing] I-t, i-s, it is a, p-i-c-t-u-r-e, picture, o-f, of,

[The pointing rhythm stops again. A.L.’s hand is once again hovering in the lower right-hand corner of the board. The board is trembling—I realize that A.L.’s mother’s hand is trembling only a little, but at the far end of the board, which is closest to me, that trembling is amplified. Does she know what’s coming next?

A.L.’s finger moves away from the “done” icon. Here it comes.]

Binder-Le Pape: s-w-e-e-t, s-w-e-e-t-s w-i-t-h, with, k-i-d-s, kids.

[Every time I tell this story, I wonder at the psychological wizardry. Of all the possible ways to retroactively connect the dots from sweets to tornadoes, this could easily be the most compelling one out there, on Earth and in Oz. And it occurred just moments after Kristofco, like Toto with the wizard, pulled back metaphorical curtain from the picture.

Can facilitators have sudden, subconscious epiphanies? Is there such a thing as a subconscious epiphany? How did all this square with the trembling letterboard and the uncertainty it suggested about which letters were coming next? Psychologically rich though the subconscious minds of facilitators are, and deeply revealing though all this could be about all of our minds and all they do to protect us against dreadful realities, those same protective instincts may prevent these and other questions from ever being answered.]

Kristofco: I don't have any more questions, Your Honor.

The Judge: Okay. Counsel, Do you want to ask anything?

Reimann: May I have a moment, please?

The Judge: Sure.

[There’s a brief pause. I don’t remember exactly what Reimann does, but as I recall she’s sitting all alone. She has only herself and her documents to consult with.]

Ms. Reimann: I don't have anything. Thank you.

The Judge: Okay. Thank you, Alex. Thank you.

Binder-Le Pape: t-h-a-n-k, y-o-u, thank you, f-o-r, for, l-e-t-t-i-n-g, letting, m-e, me, c-o-m-e, come, h-e-r-e, come here, t-o-d-a-y, today. I know, i, k-n-o-w, t-h-a-t, I know that, i, d-i-d-n-t, that I didn't, d-o, do, w-a-n-t-e-d. Start again. What–what you, w-a-n-t-e-d, wanted, b-u-t, but i, a-m, I am, g-l-a-d, glad, I g-o-t, I got, t-o, to, t-r-y, try.

The Judge: What was the last word?

 Binder-Le Pape: [Speaking now in her role as A.L.’s facilitator] “Try.”

The Judge: Alex, you did a great job, and it was very impressive to see you today. So thank you so much for coming, and you should not think that you didn't do what we wanted you to do. I just wanted to get a sense of how this would work in front of the jury before we did that to you, because all people that come into this courtroom before juries get nervous, even more nervous than they do today. So I sort of wanted to have a dry run, so to speak, just so you would understand how this works.

[She is gracious and kind, and it’s unclear what she makes of what just happened or, for that matter, who, exactly, she’s addressing now.]

Binder-Le Pape: t-h-a-t i-s, that is, v-e-r-y, very, k-i-n-d, kind, o-f, of, y-o-u, you.

The Judge: Thank you, Alex, but you don't have to thank me. I am just doing my job.

Binder-Le Pape: [Speaking as A.L.’s mother] Can I just explain to him that the jury is going to be right there?

The Judge: Yes, the jury would be behind you.

Binder-Le Pape: [Speaking to A.L.] The jury is going to be sitting, when we come back for the trial, okay, just so you know. So the setup will be mostly like this and the witnesses will be where you saw Dr. Ross. Well, you didn't see her. Dr. Ross was up there earlier. And you will be here, and you and Tom will be here, and the people will be behind you.

 Binder-Le Pape: [Facilitating A.L.’s response] w-h-a-t, what, d-a-y, what day, d-o w-e s-t-a-r-t?

 Binder-Le Pape: [Replying to A.L.] January 7th.

[If A.L. is as aware of what’s going on as she thinks, shouldn’t he already know what the court date is? I’ve known it for nearly two months now, since the day after the presidential election.

The whirlwind of emotions has slowly unwound. I can’t remember what I was feeling by this point. But now, as I revisit this transcript after all these months, I’m finding this part of it profoundly sad.]

The Judge: All right. But you are excused for today. We have a little bit more business to take care of related to some other matters, but thank you very, very much for coming today, Alex.

Next up is the cross-examination of the person whose examination began this series: Dr. Anne Robbins, A.L.’s neuropsychologist. What will she make of the results of the message-passing test?