Accused? Guilty by Barbara C. Johnson - Part 7 of this Multi-Part Serial
Refuge from the Menagerie
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| An Amazing Real Life Story |
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| Available on Amazon |
Winter and summer, the beautiful
wide steps leading to the unused front door and the narrow alley leading to the
used side door were packed with anxious grunges getting what might be their
last gasps of fresh air. They didn’t know what awaited them inside.
Bea, like other lawyers, had become
inured to their personal excesses, their pains, their complaints. Most of them
were guilty of something—maybe less than that with which they were charged, but
guilty of something. Most of them would plead out. The older ones would brazen
it out: they would strut and say, in Big Man style, “You do the crime, you do the
time.” The younger ones didn’t know that yet: they were still inventing
excuses. In the end, the police officers would meet their quotas and the DA
would have an impressive conviction rate to advertise come election time.
Finding a space on a back street,
Bea walked toward the complex from the rear and looked for Bill as she wove her
way around the front and into the alley past druggies, who were sniffing;
bipolars, who didn’t take their lithium because they felt fine and then got
stopped for driving under the influence; alcoholics, who were unwashed and
disgustingly pungent; and the usual delinquents, petty criminals, and felons.
Everyone had to be inside the
courtroom for the clerk’s call of the list: arraignments first, then pretrial
conferences, plea bargains, motions, trials last.
Once a case was called, the
defendant who remained free would go back outside. A few found seats on the
benches in the hallways; they were those who had a girlfriend minding both
their out-of-wedlock children and spare space on the bench. The girlfriends
didn’t shed many tears. Their meagre and sporadic child-support payments would
stop, but they wouldn’t be battered, and welfare would pick up the slack.
The few times Bea saw tears, it was
a teenager who knew her boyfriend would be going away for a while. Too many movies, Bea would think.
Crocodile tears. Once he was gone, she’d find another to cry for.
Today, Bea found Bill in the
courtroom itself. He had found refuge from the menagerie on one of the pews. A wise choice, she thought. The older
and more serious defendants waited respectfully in court. They were the ones
who’d been brought up still believing there was such a thing as justice.
During the break, Bill accompanied
her outside, where she could have a cigarette. There was nowhere to get a cup
of coffee. Someone was missing a chance to make a buck. Bill was fairly silent.
He didn’t moan, grunt, cry, or complain. He simply kept looking around. Then he
said quietly, “I don’t belong here.”
“Keep remembering that. You’re not
one of these people, and those who know you know you don’t belong here.” She
threw her butt down and carefully stepped on it. “C’mon, let’s go in and scout
around.”
While they waited for the elevator,
Bea said, “When you’re in front of the bench, just answer the questions the
court asks. Don’t try to tell the judge anything. He’s not interested. Not now.
The sole purpose of the arraignment is to learn what you’re pleading. My sole
purpose here is to see which assistant DA has been assigned to the case and
then make an effort to make nice to him.”
“Do you know who it is yet?”
“No, but we’ll see who it is during
the arraignment.”
Bill laughed his nervous laugh.
“I know you have to get back to the
hospital, but if you can, stick around long enough for me to see whether the
ADA is receptive to a friendly chat. I want to introduce you, so he—or she—can
see you’re not the usual criminal... and I’m not afraid to have you speak in
front of him.”
“Oh,” he said, sounding a bit
surprised. “Okay, I’ll stick around.”
Bea watched the procession of
assistant DAs come in and arrange their files on the table in front of them.
None of them just came and sat down and waited. They were all on the move. As
defense attorneys spotted “their” assistant DA, they seemed to pounce on them.
Negotiations were underway. Bea found it interesting to see who got the
attention and who didn’t. She tried to separate the nebbishes, ineffectual unfortunates, usually in shinier suits, from
the more successful counsel, in suits of good cloth and cut. The assistant DAs
usually walked to a private spot with those defense counsel they appeared to
know well.
Bea and Bill didn’t lose sight of
why they were there, though. From the moment Bill’s name was called, the
arraignment went quickly. The assistant DA assigned to Bill’s case was
Democrates Eleutheria, a small-boned, trimly built young man with a pleasant
face and an easy smile. He left the courtroom when they did, after Bill pled
not guilty and the court set a date for a pretrial conference.
“Mr. Eleutheria,” Bea called after
him, delighted his surname meant “Freedom.”
He turned, “Demos, please.”
"Thank you. Demos, yes. I used to
have a good friend by that name. That’s a challenging name to live up to as a
district attorney.”
Demos’ eyes twinkled.
“I’d like you to meet my client.”
Demos looked surprised, but he
didn’t miss a beat. Bea introduced them.
Then Bea used his ethnicity as a
segue to find out more about him. Bingo. Demos
Eleutheria also went to Holy Cross. “Oh, Bill went there too.” Both men lit up
and began comparing notes. The exchange was not the normal one between an
assistant DA and a criminal defendant. It became one that could have taken
place during any Homecoming weekend on campus.
Thank goodness. Day’s mission accomplished. Timing is everything. And at the right time, Bea and Demos cut
through some of the red tape. But she still had to win the motions she’d be
filing, in addition to a motion to dismiss the criminal charges.
A
Way Out?
With a sigh of relief, Bea received
Chloe’s drawings from Roberta Leavitt. After studying the drawings and the few
comments by Chloe about the pictures that Leavitt recorded, Bea concluded there
wasn’t much there for an expert to work with to prove sexual abuse.
A phone message from Leavitt came
next: she couldn’t make it to her deposition. That prompted Bea to delve into
the DSM-IIIR, a manual containing the definitions of all mental disorders. She
looked for sections corresponding to Leavitt’s comments. Bea hoped they’d help
her determine whether it was worth a fight to get Roberta back for another day
of frustration. Ultimately Leavitt’s second day of deposition was continued
from August 29. No new date was agreed upon.
She and McFadden, MSPCC’s in-house
counsel, tried reaching agreement regarding the documents Bea wanted from MSPCC
and DSS. She phoned Aguilar again, this time regarding both Denise’s decision
to fight Bill’s access to her doctors’ records and mutually convenient dates
for the depositions of the social workers and Denise.
During the next two days, Bea wrote
deposition notices, discovery motions, memoranda, and proposed orders, prepared
for Denise’s deposition and, after rereading for the umpteenth time the Code of
Massachusetts Regulations, she cursed James Phinney, Bill’s prior counsel, for
not claiming an appeal of DSS’s decision supporting the accusations of physical
and sexual abuse. Could she at this late date, after arraignment, claim one? No
way.
He
Raped Me
Bea had seen Denise before, in
court during motion sessions, but had never spoken to her or heard her voice.
This day, on the lower deck, against a backdrop of a warm, overcast horizon,
Bea’d get her chance to meet and speak to her. Denise was slim, almost gaunt,
with the eyes of a tired basset hound and short, tawny hair to match. This
deposition would be Bea’s first chance to learn what was behind those eyes.
“My name is Denise Willow
Abernathy.”
An alto
voice.
Denise’s background was as Bill had
told Bea. “Most of my work was in microbiology,” she said. “I performed testing
of cultures for pathogenic organism and sensitivity testing.”
She’d been working at a large
hospital with a large staff and a large patient population. She continued
working until a few months before Chloe was born. About a year after giving
birth, Denise became a part-time medical technologist: eight hours every other
Sunday.
As soon as Bea began asking Denise
about her dating history, Aguilar, almost immediately, erupted. “I am objecting
to the relevance of this to the divorce. Are we going to go through her history
of dating and the guys she dated?”
“Mr. Aguilar, I don’t want this to
be an intimidating time. I’m here just for fact-gathering, not for accusations.
Right now I want to make this a comfortable day.” If the information Bea sought
would probably lead to the discovery of admissible evidence, it was relevant.
Both Bea and Aguilar knew that was the backbone of discovery.
“That’s fine, but I’m not going to
sit here while you go through the entire history of her dating,” he said,
fuming. “I’m saying it’s not relevant.” He was afire, punctuating each word
with a bang on the table. Suddenly he turned and brusquely instructed Denise,
“So don’t answer the question.”
“Mr. Aguilar, this is not the U.N.
You’re not Mr. Khrushchev. I’m trying simply to conduct a rational
fact-gathering deposition for facts I’m entitled to.” Her voice, while
animated, was still quiet and firm.
Aguilar went on for what seemed to
be ten minutes about how he wasn’t going to wait for Bea to finish this line of
questioning because she wasn’t paying for his time.
She’d heard this before. Aguilar
didn’t want Bea to get evidence of Denise’s psychological make-up, which might
just lead to evidence of what she may’ve said to the child about abuse or rape,
and her reasons for doing so. Bea was hoping Denise would let it slip that she
wanted to get back at Bill for raping her—at least for what Denise believed was
rape—and Bea’d be delighted if Denise’s disaffection of the male of the species
and her reasons for filing the latest 51A about Bill’s short running shorts
slipped out too.
“She’s not going to answer that
line of questioning period. So move on to the next question or we’re going to
leave and then you can get a motion to compel and let a judge decide these
questions.”
Bea looked at him. He was slime in
a suit, like many other divorce lawyers she knew. He appeared to have loads of
cases; it was likely he accepted small retainers, or may have even given his
clients a “not-to-exceed” price, which meant the lawyer had to eat any “extra”
time the divorces took. To minimize the time he ate, he pounded tables, yelled
at and insulted opposing counsel, and, of course, threatened to seek sanctions
or to report opposing counsel to the Bar. Bea called his bluff by ignoring him.
As she did often in Aguilar’s
presence, she counted to 10 silently until he stopped railing. She kept track
of how many 10s she had counted. Her self-imposed saintliness—her response to
the Bar’s requirement of civility—had its limits. Finally, she snapped, “Will
you please shut up? Here’s what we’re going to do: I’ll ask a question. You’ll
give a one-word objection. Mrs. Abernathy will not answer. I’ll ask the next
question. You’ll object. And so forth. We’ll at least get on record the
questions you refused to let her answer.”
“That’s fine with me,” Aguilar
said.
“Terrific,” Bea said.
Denise revealed she dated from
between the ages of 19 and 22 or 23, but Aguilar objected to her stating how
many people she had dated.
“You don’t have to discuss your
sexual history with her,” Aguilar said to Denise.
“So you are declining to let her
say whether she was intimate between the ages of 18 and 23, whether she was
intimate with a male? Is that what I am hearing?”
“Yes,” Aguilar replied.
A lawyer must not instruct a client
not to answer a relevant question at a deposition. Even if the question is irrelevant,
but will lead to admissible evidence, it may be asked. Here, because of the
accusation that Bill transmitted had chlamydia to Chloe, the question was
relevant. If Denise could have gotten chlamydia from someone else and then
transmitted it to Chloe in the birth canal, Bill had the right to know.
“Now, after meeting Bill Abernathy,
was that when you stopped dating?”
“No. When I went out with Bill for
the first time, I hadn’t been dating for two years previous to that.”
“Were you intimate with Bill
Abernathy prior to getting married?”
“Yes.”
“And for how many years prior to
getting married were you intimate with Bill Abernathy?”
“Two and a half.”
Bea was surprised by the quickness
and exactitude of the response. Most of Denise’s responses were slow.
“Were there any particular goals
the two of you had set out that you wanted to do, dreams, fantasies, you know,
as a young couple getting married?”
“We talked about maybe having
children someday. Because both us were interested in pursuing our careers, we
had no more definite plans than that.”
“Now, when you say you talked about
having children someday, did you use methods of birth control?”
“Foam and condom... always both
together.”
Denise was certainly not shy or
embarrassed, Bea mused. In fact, she answered
these questions more quickly than she did the earlier ones.
“Did you ever use the withdrawal
method as a means of contraception?”
“Never.”
“What was your relationship with
Bill like during the two and a half years before you married him?”
“We had fun together. Going out to
eat. Going to see plays, going to movies, talking to each other.”
“And your sexual relationship was a
normal one?”
“Yes.” Denise’s answers once again
slowed to a snail’s pace.
Bea tried to reassure her. “I am
not asking for intimate detail, but can you describe in some way what your
sexual relationship was at that time?”
“I thought it was good. I’m not
sure what you are asking me.”
“Well, he came home one weekend
every month from school?”
“Yes.”
“So that was the frequency of your
sexual relationship for the first two years?”
“Yes.”
“And did you enjoy sex?”
“Yes.”
“It was a fun thing?”
“Yes.”
“Did you ever laugh during sex?”
“Yes. It was fun, nice, warm.”
“Playful?”
“Playful, yes.”
Bea continued to probe the
relationship. She didn’t want to get ambushed with Denise’s perspective during
the divorce trial.
“And how was your relationship then
with Bill?”
“Problems... there were problems.”
“When did those problems begin?”
“Pretty much immediately after we
got married.”
“And what kind of problems were
there?”
“He started working more hours,
stopped talking to me. I found him inaccessible. He wasn’t available for me to
talk to him. He was not the man I
thought I was marrying. As soon as they got married, he got very busy elsewhere
and avoided being with me.”
It boiled down to Denise being
upset by the number of hours Bill was putting in at work. “He had been working
fifty or sixty hours a week, and he started working seventy-five to eighty
hours a week,” Denise complained. The many hours he put in may have been simply
by virtue of the kind of job he had, but they put a strain on their
relationship.
“Do you believe he was dating other
women at the time?”
“No. He was just working
seventy-five to eighty hours a week and working out athletically.
“Bit by bit, I gave up. He was
running. He was going to the Y, the YMCA, and weightlifting; he was also going
out socially with a group of friends once or twice a week.” She had forgotten
their names, but they were long-time friends of his. She claimed not to know
where he had met them.
“And then what happened? Keep on
describing the relationship at that point after you got married.”
“We had fun together, but when we
had disagreements. We couldn’t seem to get anything settled. I didn’t feel like
I could fight with him.”
“Was it a fight or just
disagreement? Did it reach yelling proportions?”
“Sometimes I’d yell. He never would
yell.”
“And when you yelled at him, what
did you tell him?”
“I object,” Aguilar said with
vigor. “Are you talking about each and every time she yelled at him? We’ll be
here for a few days.”
Denise understood and answered
without looking for approval from Aguilar. “I was angry at him because if we
had a disagreement, he’d say, ‘I’m sorry, I won’t do that again,’ or ‘I’ll do
something else the next time,’ and then he wouldn’t. It was just words that he
said. He wouldn’t change his behavior. And when I was arguing with him, a lot
of times it was because I couldn’t get beyond him saying, ‘I’m sorry, I’ll
never do that again.’”
Bea spoke softly. “What kinds of
behavior did you tell him to change that he didn’t seem able to change?”
No response came.
The court stenographer typed, “No
response.” The gloomy darkness of the day may have made the waiting more
noticeable.
“In general,” Bea said.
“I wanted to talk with him about
the hours that.
Bea waited.
Aguilar waited.
The stenographer waited.
The basset continued to look tired,
but it began moving its mouth. “I wanted to talk with him about my feeling that
he was running away from me, but I couldn’t talk to him about my concerns.”
“What were your concerns?”
Again Bea waited for what seemed an
eternity.
Finally, the stenographer again
typed, “No response.”
“What concerns did you want to talk
to him about? The hours, we know.” Again Bea waited. To reassure Denise, she
said, “You are doing very well.”
“I wanted to talk to him about the
fact we couldn’t talk.”
“So that even if you had time, you
wouldn’t have been able to talk?”
“Uh-huh... yes.”
“You weren’t communicating.
Communication for whatever reason had fallen apart?”
“Yes.”
“Now, how long did this persist?”
“Throughout the marriage.”
“And did you still have a sexual
relationship with Bill?”
She nodded. “Sex was always very
good.”
“And it continued and it was still
playful and fun?”
“Yes.”
“And you enjoyed that?”
“Yes.”
“With what kind of frequency, once,
twice, three times a week, seven days a week? What kind of frequency are we
talking about?”
“Twice a week.”
“And would that be during the week
or during the weekend?”
Again no response from Denise.
Slow, slow, slow. Be patient, Bea. A handful of patience is worth more than a bushel of brains.
“We had no set pattern.”
“It was spontaneous then?”
“Yes.”
“When the mood struck?”
“Yes.”
“Very good.” Bea again invoked a
saintly patience. Slowly and softly, she said, “And then what happened?”
Still no response.
Aguilar wanted a time frame. “What
happened when?”
“What year was it that you stopped
having at least playful sex or fun or enjoying each other when the mood struck
you?”
“Sexually?” Denise’s tone was still
flat.
“Yes.”
“Sexually it stopped being good in
1983.”
“In 1983. Go ahead. What happened
to make it suddenly stop being good?”
“Bill raped me.” Again the tone of
Denise’s voice didn’t change. She could have said, “He brushed his hair.”
“When was that?”
“In July 1983.”
“And in what way did he rape you?”
“He wrestled me to the bed. He held
me down. He entered me. He ejaculated.”
“Now, up to that point nothing
between you had changed. Did you still have playful, healthy, normal fun sex?”
“Sexually, yes.”
“However, at that point— Okay, you
said he wrestled you to the bed?”
“Yes.”
“And he had never wrestled you to
the bed before?”
“No.”
“Was anything, prior to him
wrestling you to the bed, any different than it had ever been before?”
“Yes.”
“What happened that day?”
“While I was at work, I got a phone
call from my sister informing me that my mother had been hospitalized. So I
finished up my work quickly and went home early. I don’t remember what time.”
“And then what happened? See if you
can describe that day.”
“I went home and told Bill my
mother was in the hospital and I was upset. I asked him to comfort me.”
“And then what happened?” Bea
waited. She could hear the water lapping at the boat while they waited for
Denise’s response. No one dared make a sound.
“He came and put his arms around me
and hugged me.” Denise’s tone remained as monotone when she remembered being
hugged as it had been when she remembered testing pathogenic organisms. “And
then he started making sexual advances toward me.” Her back was slightly tilted
forward, her forearms resting on the table.
“And then what happened?” Bea
waited.
“I pushed him away.” Her slender
fingers were lightly entwined with each other. Her eyes were entwined only with
space. Her lips glided, barely meeting, her voice soft. “I told him I didn’t
want that right now. And I started talking about making plans to go see my
mother that afternoon. And he approached me again. He followed me from room to
room. He kept making sexual advances and I kept telling him no.”
“Then what happened?” Bea prodded.
The space between question and answer was so elongated, so punctuated by pain,
the scene in the room seemed surreal. Has
she not told this story before to anyone
Suddenly Denise’s mouth moved.
“Then I think I figured what the heck, I’ll let him do it and then maybe I can
get some comfort. And so I didn’t— I stopped resisting. And we got on the bed.
And then he just stopped. I asked him what was wrong. And he said nothing, but
he wasn’t interested in pursuing the sexual intercourse. So I got off the bed
and started making arrangements, plans, to go and visit my mother again.
“Then he got off the bed and came
over to me, pushed me down by my shoulders, started kissing me, and I told him
no, I didn’t want to. Then he held me down with his body weight by lying on top
of me. I told him to stop. I said, ‘What are you doing?’ And he started
moaning. The louder I yelled, the louder he moaned. He had his eyes closed. And
I was hitting him on the shoulder. And he started hugging me up around the
shoulders so my arms were up above my head. Then I started pushing and rolling
against him, and I managed to get halfway out from under him. I said, ‘Wait, at
least let me— He grabbed... he grabbed my hips and he held me down. And he
raped me.”
“Then what happened?”
Silence.
Bea and Aguilar and the
stenographer waited for Denise’s response, which never came. Bea watched as
Denise shifted her eyes to stared at some undefined point in space. Finally,
Bea resumed questioning. “And you were already on the bed at that time?”
“Yes.”
“And you had said wait a minute.
You were trying to adjust yourself. And when you said he raped you—”
“I was not trying to adjust
myself.”
“Okay. Maybe you can go back and
explain it, because I think you lost me just a little bit there.”
Another silence. And a stare into
space.
“You were already on the bed,
right?”
“I’m not sure I understand what you
are asking me now.”
“Okay. When you say he raped you,
do you mean he entered you again? Because he had already been inside of you.”
“No.”
“So when he was holding your
shoulders, he wasn’t inside of you?”
“No.”
“Okay. I thought he was already
inside of you at that time.” Bea said, seeking confirmation.
“No.”
“I see. So then what happened?”
“After he ejaculated?” Denise
asked.
“How long did he stay in, for
instance? How long did it take him to ejaculate? A few seconds, a few minutes?”
“A few seconds. Right away.”
“And then what happened?”
“I rolled him off me. He didn’t
resist. I went into the bathroom.”
“And then what happened?”
“I was in the bathroom. I don’t
know how long. I came out. Then I asked him why he did that.”
“Did you have any clothes on? What
clothes were you wearing?”
“At which point?”
She’s right. “Sorry,”
Bea apologized for the confusion. “Well, you said he followed you around?”
“Yes.”
“So he followed you around from
room to room. What kind of clothes were you wearing then?”
No immediate response.
“You were wearing slacks?”
“Yes.”
“And when he followed you from room
to room, were you house cleaning?”
“No.”
Take her away from the subject. Come back to it in a little while. “That was a five-room apartment?”
“Yes.”
Bea then asked lots of questions
that paled in comparison to the questions about the rape and abuse. On those
issues rested Bill’s freedom from prison. Finally, much later, Bea got back to
the alleged rape scene.
“Now that day, you were working.
You came back and you were in your clothes and he followed you from room to
room. And what were you doing? Were you going in all five rooms?”
“I don’t remember.”
“Okay.” Silently saying to herself Okay, okay, okay was like putting safe
space between her own aggressiveness and Denise’s seeming fragility. “You said
he kept making sexual advances and you said ‘No,’ and then you said, ‘Okay, I
won’t resist any more,’ and then you went to the bedroom?”
“Yes.”
“What clothes were you wearing in
the bedroom?”
“At the point—”
“When you decided you wouldn’t
resist him anymore?”
“We undressed.”
“You both undressed?”
“Yes.”
“And so then all that activity
after that was with you both disrobed?”
“I had my bathrobe on.”
“So then, after you went into the
bathroom and you came out, what happened?”
Denise did not respond.
“What was the next thing to happen
that day?”
“That day? I asked him why he did
that.”
“Why he entered you?”
“What I said was, ‘Why did you do
that?’”
“Okay. And what did he say, if you
remember?”
“He said, ‘That was great. Was it
good for you?’”
The response was so classic that
Bea had to work to constrain herself from smiling. “And what did you say?”
“I said, ‘Why did you do that?’”
“And what did he say?”
“He said, ‘I don’t know.’ And he
got up and walked out.”
“So you never answered him was it
good for you?”
“No.”
“You had your bathrobe still on
when you went downstairs?”
“Yes.”
“And then what happened?”
“I don’t remember.”
Why would her memory stop there? “Okay. And then what happened generally in the marriage? Did you
continue as you were before, other than for that one day?”
“No.”
“What happened? How did the
marriage begin to change?”
No response.
Bea rephrased the question. “How
did the relationship begin to change? And again. “Was he still working
seventy-five to eighty hours a week?”
“I don’t remember.”
“Was that the day you conceived Chloe?”
“Yes. Excuse me. Can we take a
break?”
You’ve
Come a Long Way, Baby
Bea grabbed some coffee and a
cigarette. Had Denise wanted to take a break in order to confer with Aguilar?
Bea was delighted to have gotten
Denise’s story of the rape. According to Denise, Bill seemed supportive and
loving, concerned that Denise wanted or needed comforting when she heard her
mother was ill.
But Denise’s details differed
slightly from Bill’s on whether she continued to want to be comforted by him
even after he lost his erection. Was the coupling consensual? That was the
question. The big one.
Under these circumstances, did Bill commit marital rape? The law says once a woman says no, the act is
rape. But this was Denise’s husband. Should the line be the same for marital
rape as it is for stranger rape?
That question led Bea to consider
that many young women would consider themselves lucky to find him. That he
worked many hours didn’t trouble Bea. Better than having a bum who didn’t work
at all. Denise could’ve done worse. Perhaps Denise was lonesome having Bill
absent so much, but when he was there, he was there. It was better than having
a womanizer.
Coming This Week - Look for Part 8 of this Serial
