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| Part Four |
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Her calm was interrupted by a groan-like buzz from her portable phone. Instinctively she knew, were she to answer it, she’d hear something unpleasant. It was that sort of Saturday afternoon when people were doing anything but talking on the phone.
She answered it anyway. “Good afternoon.”
“Hi, Bea. I don’t really know how good it is,” Bill said anxiously. “I think we’re in for more trouble. Denise didn’t want to let me in to see Chloe today until I went home to change from my running shorts. She said they were too short.”
“Did you go home to change them?”
“No, I refused.”
“Well, there’s no sense speculating what she’s planning to say or do. Did you get to see the child?”
“Yes.”
“Okay then, don’t let this ruin your weekend. Are the shorts like, for instance, L.L. Bean’s shorts?”
“Yes, I guess so, but I didn’t buy them from L.L. Bean.”
“Just take a picture of them. I’ll put my summer catalog into your file for comparison purposes, just in case.”
“Yeah, good idea. I’ll take a picture.” Bill laughed.
As always, she heard a little schoolboy’s voice peppered with a touch of nervous timbre. “Don’t be worried. The sun will come up again in the morning.” She attributed his otherwise evident control to his visits with Laurence Kupersmith, his psychologist.
“But Bea, she filed another complaint with DSS.”
“Damn. For what? Just because the shorts were short? What the hell is wrong with that woman?” The seagulls had to have heard her.
“No. For letting my penis fall out of them.”
“I don’t believe this!”
“Believe it. I just received notice I’ve been accused of letting my penis fall out of my running shorts and scaring—”
“Whoa. Wait a minute. I’m losing something here. I thought this happened only today.”
“Okay. Sorry. The 51A is for last week. I wore my running shorts last week to the visit. I’d been running before the visit. Today when I went for the visit, I was also wearing shorts, different shorts, but shorts. It was today that she didn’t want to let me in the house until I went back home to change them.”
“Gotcha, I think. Is there a signature on that complaint?”
“Let me look,” Bill said. “Yeah, this 51A is signed by Roberta Leavitt.”
“That’s Chloe’s therapist at the Center?”
“Yes.”
“Well, DSS has 10 days to investigate and support or not support the complaint. That means if we do anything, it has to be immediately. Let me think for a sec.”
After the pause, she said, “Bill, are you up to filing a 51A against Denise? It’s unlikely to result in a finding that supports your position, but it may very well accomplish three things: It may inhibit her—or someone for her—from filing another one of these; it may make DSS hesitate to support this new 51A against you; and it removes the likelihood of another criminal charge for sexual assault on a specific date. That’s important to them, to have a specific date. They don’t have one yet. So I’d like to cut ‘em off at the pass on this one. And we have nothing to lose by bringing it.”
Bill was all for it. When the sun ducked below the horizon, she drafted Bill’s answers to the questions on the 51A form to initiate a complaint of abuse at DSS:
My wife has emotionally and psychologically abused our daughter, Chloe, as well as me, over the past four years. As a result of Denise’s obsession with having been sexually abused herself, she has essentially brainwashed Chloe with the vocabulary and lurid descriptions of sexual abuse, descriptions that have captured the attention and imagination of every investigating social worker.
23 - Prison Pill Dispenser
“I passed the lie detector test,” Bill told his psychologist, Larry Kupersmith, who’d kept Bill together after Bill had been shocked by the allegations and was ready to go into hiding. “But I’ve had a running battle with Denise. She complained my shorts were too short when I came to visit. I got a notice from DSS about it.”
“What did your lawyer say?”
Bill chuckled. “She filed a complaint with DSS for me about Denise’s mental abuse of me and her abuse of the system.”
“When will you find out what’ll happen?”
“Oh, we already found out. Denise’s complaint was not supported by DSS. Of course, neither was mine,” Bill laughed. “We—my lawyer and I—didn’t expect mine to be supported. We only hoped it would make someone over there sit up and take notice and cancel Denise’s crazy complaint. And it did. Thank goodness!”
“Anything else?”
“Just more craziness,” he said. “My father wants to take Chloe to dinner—just to McDonald’s, nothing fancy—but she’s afraid he’ll talk to Chloe about the accusations.”
Bill then told Larry the wooden baseball bat story. “We didn’t even own a baseball bat. I doubt even Denise knew Chloe told that story. You know, I could go to prison for the rest of my life if stories like that are believed. It’s scary.... You want to hear something even crazier? Last month I got a third job... at the prison.”
“Really?”
“Really. I need the job so long as I have to pay alimony and child support and legal bills. But I don’t want to live there too. It would be the end of my life.”
Then, professional to professional, Larry asked Bill about the ailments Bill saw at the prison.
“They’re primarily somatic and stress-related complaints. Hyperventilation, for instance.” Bill said he had seen them in the hospital as well as on his rounds in the cell blocks. “You know, this isn’t the first time I’ve worked at a prison. I worked at Walpole for about two weeks when I first became a physician’s assistant.”
“You did?”
“Yeah. It was a real eye-opener. There was a rash of fights and fires. I was assigned to giving out pills in cell block 10, the worst block. The prisoners threw urine at the guards. The guards were sadistic. They weren’t from the highest echelon of society to begin with, y’know? There was an aide who was mentally retarded. The guards taunted him. Can you imagine? It was a mess. The IV solutions were contaminated. The head medic was a pimp in the Combat Zone. The doctor was an alcoholic and a druggie. It was really awful.”
“Anything else as exciting?”
Larry laughed. “Not quite.” Then he thought, “My girlfriend left two weeks ago and I miss her.” Bill shrugged. “But she’s detached herself from me before, so there’s always hope. I’ll just have to wait and see.”
Looking at his watch, Larry noticed they had a few minutes left. “What else is new? Anything?”
“Not really. I’m still meditating and exercising four, five times a week. Basketball, karate. It keeps me from obsessing about the criminal charges. The nights are hard. Hard to concentrate. The loneliness is difficult. I’m worried about my reputation if this gets out of hand.” Bill looked down. “So I need a quick resolution, but a trial is risky.”
24 - Too Late Is Not Better Than Never
Bea received the lab reports, and she immediately phoned Bill to tell him the good news. Mistakes were made. No wonder Dr. Matthews was anxious. Someone sent outdated cultures to be tested. And the lab performed the wrong test for diagnosing chlamydia in children. It could give false positives. The lab pointed all that out right on the test results. A pleasant surprise. She immediately phoned Bill to tell him the good news.
She hadn’t got the records from Denise’s obstetrician, because the records were lost. Too long ago to remember Chloe’s condition at birth. Bill sounded disappointed.
“He forwarded his records to Matthews when you moved to Salem Woods.”
“Moan,” he said.
“Well, you can look at it from the good side too. There’s no record of Chloe having had any physical symptoms of a sexually transmitted disease.”
“I meant to ask, did Matthews show up for his deposition?”
“No, and he didn’t report me to the Bar Counsel either. He did send me Chloe’s medical records, though.”
“And?”
“The records showed nothing, including what happened at Chloe’s second examination.”
“You mean the results of the exam were not in the file?”
“Right. And the examining physician, Selina Garabedian, is no longer associated with Matthews’ office. I traced her whereabouts and learned she’d left for Texas.”
“Texas?”
“Texas. I decided to stop looking for her. In the divorce case, Denise has the burden of proving abuse, and in the criminal case, the DA has the burden of proving rape. So if they want to use medical evidence of penetration to make their cases, let them call the Texas Board of Registration and find Garabedian.”
“Let me ask you this. Are you still going to try to get Matthews for a deposition?”
“Not for this round. As it stands, there’s no medical evidence of penetration or sexual disease or even of plain old vanilla physical abuse: the records show Chloe had only normal childhood ailments.”
“That sounds good.”
“Not really. They still have Chloe. When she’s been asked who-dunnit, she’s said Daddy. That lets your father-in-law, Charlie Willow, and Denise’s nephew off the hook.”
“And with all those security guards, the social workers and Denise, no one on my side can talk to her.” He sounded devastated. “What about the other depositions?”
“Ruth Stanton, Denise’s therapist, refuses to be deposed. I’ll have to go to court for an order.
“The DSS social worker, Rachel Gidseg, the bat lady—”
Bill chortled at Bea’s shorthand.
“She’s temporarily disabled by surgery and had to postpone her deposition.
“One of the MSPCC social workers, Kristin Uhler, has moved on. But Uhler was assigned to the case only a few weeks. The cost of deposing her is not worth the return. I’m sure I can get stipulations to the authenticity of her notes if they ever become necessary, and that’s all I need. I’ll still be able to argue Chloe has been subjected to an unreasonable number of interviews.”
Thinking aloud, for her own benefit as much as for Bill, she said, “Even the redacted records from DSS and those from MSPCC showed perhaps eight or ten people had questioned the child. None of the interviews appears to have been audiotaped or videotaped. And no record appears to have been made of the questions asked or the methods used. That’ll make it more difficult to show they used the wrong interrogation techniques; however, a few of the records mentioned the use of so-called anatomically correct dolls.”
“So, are the depositions finished?”
“No, no. Roberta Leavitt is not avoiding her deposition. Neither is Detective Charles Cooper. Both depositions are scheduled for the end of July.”
25 - Summer Sorrows
Hearing an unfamiliar voice when she answered the phone, Heather asked, “Who’s this?”
“Roberta. Roberta Leavitt.” There was surprise in her voice.
“You don’t sound like yourself.”
“It must be my cold. A summer cold.”
“Feed a cold, starve a fever. Eat something. How’d you get it?”
“I went jogging with a blind date and it rained.”
“Yeah? And?”
“Our glasses got fogged.”
“And?”
“We stopped for cover.”
“And?”
“We got soaked. Summer shower mixed with sweat equals summer colds.”
Heather, who rarely laughed, laughed heartily. She enjoyed hearing little titillating things from time to time. “Joking aside, what’s up?”
“Denise Abernathy,” Leavitt said. “A few weeks ago she said Chloe’s father implied it was the child’s fault he left the home. So I spoke to Chloe about it during her therapy. She said, ‘It wasn’t me who was telling daddy to get out.’ I followed up by speaking to Denise again. I promised her I’d ask you to speak to him.”
“Well, I’ve already seen him this week. But I tell you what, I’ll be making a visit to the Abernathy home the day after next. I’ll speak to Denise then, get filled in a little more, and speak to him next week. Okay?”
“Wonderful.” Leavitt paused. “Tell him we’ve received no payments for the last two months. Ask him to pay up for the visits.” Leavitt sounded as if she enjoyed asking Bill to finance Chloe’s so-called therapy.
As Heather walked to the front door, she saw Chloe’s nose pressed against the window facing onto the porch landing.
Denise opened the door and started in almost immediately. “Chloe and I have been tense and anxious all week. I told Bill his comment to Chloe upset her.” She gestured to Heather to be seated on the sofa.
Chloe sat at her mother’s feet.
“Of course, he didn’t listen to me. He never does.”
Chloe looked up at her mother.
Denise ignored Chloe. She continued talking, slowly but dogmatically. “So it’s even more important you know Chloe is scared and upset by his approaching her like that. She also told me she doesn’t want him to talk to her about it on the Saturday visit.”
Turning to Chloe, Heather asked, “Do you want me to tell your father not to speak to you like that again?”
“No,” Chloe said.
Heather looked at Denise to get her reaction. There was none.
Denise’s expression had not changed, but she had more to say: “Chloe does not look forward to the visits. He’s relentless at the home visits. He hugs her and has her ride on his back.” Denise’s voice was usually a dull monotone with no overtones, but deep—unexpected from such a small-boned woman. Today it had a firm, passionate tone; it was a voice you didn’t fight with.
In a conciliatory tone, Heather said, “Chloe has never told me the physical closeness at the office visits bothers her. Maybe you should dress Chloe more appropriately for the visits. For instance, in slacks versus dresses.” Remarkably, Heather not only wrote that conversation in her visitation notes, but she also said it in front of Chloe.
“Good idea,” Denise said. “But be sure he obeys the no-whispering rule. I make sure he doesn’t whisper when he’s here.”
“I’ve already told him. He said he had no problem with it.”
“Oh, yes. Something else. I’m upset he moved so close to us. I told him it was insensitive and untactful of him.”
“And what did he say?”
“He told me it was not threatening. He’s so manipulative. He does whatever he wants. He doesn’t consider anyone else’s feelings.”
“I’ll pass your feelings on to him. By the way, he agreed to pay for half of the last seven visits at the Center and for next week’s visit as well.”
26 - Stained Forever
“On behalf of Bill Abernathy, whom I represent, this is to request permission for him to appear before the Grand Jury and give testimony in his own behalf.”
So began the letter Bea dictated in anticipation of Bill being indicted. She also prepared a waiver of immunity. Without it, Bill might not be allowed to testify. In fact, most potential defendants aren’t allowed to appear before a grand jury.
She wondered, Why is the DA’s office waiting to bring criminal charges? One possibility was that Chloe might not be ready to testify. The child might also have retracted her statements.
She wouldn’t have the answer that day, so she turned her attention to a more difficult task, the one of explaining to Bill why she couldn’t predict how much or how quickly attorney’s fees would mount up.
She got him on the phone. “Bill, I’m sorry, but it’s impossible to predict how much your defense will cost. It depends on where the DA brings the case. If he believes he has a strong case, he’ll take it straight to the Grand Jury. He’ll come out with the indictment and arraign you only once—in Superior Court—and eventually try you there.
“If the case is weaker or the sex-abuse unit needs time to develop it or wants to keep tabs on you—to keep you from leaving the state, for instance—while the DA’s office is developing the case against you, the DA’ll bring the complaint and arraign you first in District Court and then take it down the road to Superior Court for trial.”
Bill asked, “So we could end up in two courts?”
“Right, which would make it more expensive.”
He moaned.
“I’m sorry, but we have no choice in the matter. It’s the DA’s call.”
“When will we know?”
“I don’t know, but being arraigned in District Court is likely to be better in the long run. We can buy time. Memories fade, witnesses disappear. We’ll have time to complete the discovery in the divorce case—to get the documents and depose witnesses.
“Of course, no matter which court the DA brings the case in, we can learn who the Commonwealth’s witnesses are going to be, whether the DA is going to bring in an expert on child sex abuse, and so forth, but we can’t depose witnesses in the criminal case.”
“Why do they need to go to two courts, though?”
“Because a rape charge is a felony, and felonies must be tried in Superior Court. The most you might get in District Court is a probable cause hearing. But that’s rare, because the DA’s office doesn’t want to tip its hand to its strategy.... Whatever the DA wants, the DA usually gets.”
“What’s probable cause?”
“It means the DA has enough eggs in his basket to justify a full trial... to give the appearance that he could prevail at trial.”
“Well, the DA has those reports, doesn’t he?”
“Right. He’s got a half-dozen eggs already.” She paused. “You still with me?”
“Yes, I’m here. Not happy, but here.” He sighed. “It doesn’t look good, does it?”
“Not very. All the prosecutor needs is Chloe saying you did the acts they’ve charged you with. As a bonus, the prosecutor can use Carol Tracy to corroborate Chloe’s assertions by saying your daughter told her all about what you supposedly did.”
“If it’s that easy, how do you expect to win at a probable cause hearing?”
“I don’t,” Bea said matter-of-factly.
“Then why should we waste time and money asking for the hearing?”
“Because it’d be a great opportunity to learn who the DA’s witnesses will be, what they’re planning to testify to at trial, whether they claim to have any physical evidence, and if so, what it is.”
“What happens if the judge says there isn’t probable cause?”
“Don’t count on it.”
“And if there is?”
“If we lose, the DA gets to go directly to Superior Court without having to go to the Grand Jury.”
“But what if we do win?”
“The case is dismissed.”
“What happens then? Can they bring the case again?”
“Yes, but it won’t be dismissed,” she stressed. “Bill, I must caution you. Don’t build your expectations too high.” The phone went silent again.
“Bill, we don’t even know yet where the DA is going to bring the case.”
“What’s taking them so long to decide?”
“They’re delaying to gain time to gather or manufacture evidence—enough to withstand a PC hearing or convince a Grand Jury to indict.”
“How much does it take to convince a Grand Jury?”
“Not much at all.” Bea answered. “A bologna sandwich will do it. At its worst, the Grand Jury process is an obscenity. It’s totally manipulated by a DA.”
“Oh great.”
Not that a judge would be much better in this case. A sex-abuse issue is so highly charged, not many, if any, bench judges would find a lack of PC. Any judge who did would risk being condemned in the Boston Globe for having dismissed a suspected child rapist.
Bea knew, too, that District Attorney Terence Kevin “TKO” O’Shaughnessy was infamous for bringing and pressing weak cases as hard as he did strong ones. His office would fight like hell before having to tip its hand. At the slightest hint of vulnerability, he would make a bee-line for the Grand Jury.
And sadly, in these cases a jury can never prove the innocence of a defendant. A jury can only say it had a reasonable doubt that the defendant was guilty. Not guilty, or acquittal, does not equal innocence. The stain made by the allegation of child rape remains forever.
27 - No-Touching Rule
Chloe was playing under Denise’s feet when Denise called Heather. “Chloe doesn’t like it when her father touches her. She told me he touches hard and scratches her. Chloe wants you to tell her father not to touch her.”
“I can do that.”
“It should be reciprocal. Chloe cannot touch her father either. She also wants me to tell him she doesn’t like it when he says he lives so close.”
“I can do that, too.” Heil, mein Führer! Natürlich.
At the next office visit with Bill, Heather followed Denise’s instructions as soon as he came in. Chloe had not yet arrived.
“Heather, I don’t believe Chloe said those things or laid down these new rules,” Bill began. “You’ve seen Chloe and me play together. If you’d noticed Chloe was unhappy about the way we played together, you would’ve said something then.” He paused. “Look, Denise is vindictive, and for her own reasons, she is intimidating Chloe and using her as a pawn.”
“Well, she told me Chloe is uncomfortable with you touching her.”
“I disagree,” he said firmly, turned his back, and walked to the other side of the room.
Then Heather’s tongue slipped. “Well, Mother has worked on Chloe again regarding the touching.”
“She sure has,” Bill said.
“Hi, Heather, it’s Roberta. I’m phoning as promised to let you know Chloe is ready to talk to a judge. She says she wants her dad to be arrested. I’m about to call the victim-witness advocate, Kathleen, at the DA’s office. When Chloe is interviewed by them, I’ll go with her.”
“Good idea.”
“I sure hope this doesn’t drag on for months and months.”
The day after Leavitt phoned her, Heather paid another visit to Denise and Chloe.
“Heather,” Denise said, “Chloe is continuing to have nightmares.”
“How long has this been going on?”
“Since her father moved closer. I’m worried, too. I’m worried he might try to kidnap her while she’s outside.”
“Well—”
“I thought he’d lose interest in her as time went on. Now I wish he’d shrivel up and die.”
28 - Goldmines to Be Found
“Be right with you, Love. I haven’t opened my mail yet.” She brought it back to the sofa.
“Bloody hell! Would you look at that!” Bea exclaimed after opening a large manila envelope from Bill. “The DA is in the therapy business!” She continued to review the papers Bill had picked up for her. District Attorney O’Shaughnessy, his wife, First Justice Frederick Fessenden of the family court in which the Abernathy case was brought, and a few other notables were listed as incorporators of Salem Woods Family and Community Center.
Hugh walked in and handed her some wine.
“Thanks.” She told him what she had just learned.
“Really? Let me see those.” She handed him the papers.
Hugh read them. “Sounds bland enough. The Center’s purpose is only to provide counseling,” he said, then read aloud, “‘for families and family members in need of services—’”
Bea interrupted him. “Yes. There probably were good intentions, but—”
“It’s a decent purpose.”
“Oh, I admire the concept, but it’s untenable. The DA has a private ear to everything that goes on in the Center.”
“You don’t know that and you can’t prove it.”
“I’ll prove it.”
“How are you going to do that?”
“I’ll get hold of their notes. I already know the ears of all the social workers are connected.”
“How do you know that?”
“Denise signed reciprocal confidentiality releases. M’god, she even had Chloe sign one. What does a five and a half year old know about releases? That means Heather, Leavitt, Stanton and any other social workers have been able to send and receive information to and from each other about both Chloe and Denise.”
“And?” Hugh asked.
“In that loop of reciprocal releases are also Denise’s divorce lawyer, Dr. Matthews, and the Salem County DA’s office. That means each of the caseworkers can parrot the conclusions of each of the others.
“You can yell about it when you have the evidence. In the meantime, the Center has the obligation to provide therapy for the child and a space for her to play with her father.”
“But not a place that’s filled with spies.”
“Whether the child has been sexually assaulted or not, it’s likely she’s been traumatized by the whole process.”
“That’s true, but—”
“No buts. Whether or not the abuse is proved, she needs therapy and play space.”
“Damn you for playing dumb. No releases of information were given to Bill. That’s downright dangerous.”
If there were goldmines to be found, they’d be in the social workers’ process notes. If Bea were lucky, the notes would show that the social workers didn’t inquire into the Abernathys’ family history, ignored the lab reports, never noticed the absence of medical confirmation of digital or penile rape, and used the wrong techniques to elicit information from Chloe, all of which could lead to false allegations of abuse and rape.
In family court, Aguilar had raised the specter of sex abuse. He had to prove by a preponderance of evidence that Bill had sexually abused Chloe. In criminal court, the DA needed to prove beyond a reasonable doubt that Bill had raped the child. Two different standards of proof. Two different time schedules.
Which front should I face first?
In this day, public opinion being ruled by passion rather than by thought, juries are convicting criminal defendants, whether they are nursery school teachers, Sunday School priests, or gasping grandparents. You get buried, you stay buried. There would be no community effort to dig you out. The custody of Chloe was at the end of a long tunnel inside a mountain of public hysteria where cave-ins occurred regularly. Bea hoped her strategy to get a speedy divorce trial would work, and tried to take the offensive in the criminal case before still another roof caved-in.
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Look for Part 5 to post on Wednesday, August 27th