Pleasant it is for the little tin gods - When great Jove nods ~~ Kipling
1 - Tugboat Tour
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He was in plainclothes: khaki pants and a summer-weight sports jacket. Just an ordinary-looking guy, 40-something, medium height, medium weight, medium brown hair, ever-so-slightly receding hairline. Absolutely nothing memorable physically. He’d blend into middle America. His presence anywhere would not raise suspicions.
As he approached the tug, Bea stepped out onto the lower deck, glassed in to extend its use in the less-pleasant New England weather. On midsummer days like this, she used the spacious deck with sliders open for depositions, creating a soothing environment for the deponent. For sun-worshipers, which she was not, there was still the wide-open upper deck.
“Welcome, Detective Cooper.”
“They told me about your set-up, but I thought they were pulling my leg.”
“Would you like a tour?”
“Sure.”
“Well, right here,” she said, pointing to a collapsible picnic table and chairs she had set up, “your deposition will take place.” Cooper grinned and followed Bea as she led him from the deck.
“On days when the weather is distracting,” Bea said, “I conduct depositions in the main salon.” It was a combination office and living room with paneled walls and built-in mahogany cabinets. The original bronze ports had been stripped, polished, and framed with mahogany, but she’d put off repainting the main salon ceiling.
“With a steel hull, doesn’t it get cold in here in the winter?”
“Not really. It’s well-insulated behind the interior paneling. It’s quite comfortable even in a relatively harsh winter. What I can’t control is the rolling in high winds, but I’ve become used to it.”
They walked into the galley. “While we’re here, I may as well start the coffee. It’ll be ready by the time the steno and Mrs. Abernathy’s attorney, Mr. Aguilar, get here.”
He looked with admiration at her luxuriously equipped kitchen, with its JenAir and oversize commercial refrigerator. “I hope you cook,” he said, in a remarkably even voice.
To impress him that she, too, could control herself, she responded flatly. “Almost never.”
Busying herself with putting coffee and the things that go with it on a rolling tray, Bea thought, I should soften him up in advance of the deposition.
“The previous owner either had an extraordinary chef, an enormous talent, or a talented mistress—maybe all three.”
He smiled.
She opened a door aft of the galley. “The head. Accessible from either inboard or the starboard walkway.”
Someone called, “Hello.”
“Hark, a submissive female voice!” Bea said, smiling at Cooper.
“The steno has arrived.”
She turned toward the entrance.
“Alice, we’re in here, getting the wheely ready.”
Bea treated her tray cart as if it were her best friend. Everything got wheeled.
“Be there in a jif. Just go on in and set up. I haven’t heard Joe Aguilar yet. Say welcome for me if you see him.”
“What do you do for security?” asked Cooper.
Bea pointed to a TV. “Closed-circuit, five cameras strategically placed. A search light with remote controls.
The man was into some serious toys.”
2 - Salem Revisited
“Detective Cooper, did you bring all the documents and tangible things requested in the subpoena regarding Denise W. Abernathy, Chloe Lin Abernathy, and William A. Abernathy?”
Cooper described four documents he’d brought: a rough-typed draft of a report; an application for a criminal complaint against Bill, which he’d received only the other day and which meant the DA had chosen the two-court route, beginning in District Court; handwritten notes he characterized as his “scribbled notes”; and scratch paper with both the name of a victim-witness advocate attached to the DA’s office and a notation that read Chloe Abernathy is ready to testify.
“And you purged the other documents you had in your file before you came here, isn’t that true?”
“That’s correct.”
“And that was upon whose instruction?”
“The head of the DA’s sex-abuse unit. In her opinion, it was privileged information.”
Well, that was rehearsed, Bea thought. Privilege again. No sense getting into an argument so soon. “I just want to stop for one second while I look over the papers you did bring.”
She read Cooper’s typewritten report, which summarized his visit with Denise and Chloe at home at the end of last August. Denise had been very upset and expressed feelings of guilt because she hadn’t recognized any signs of the abuse. Cooper determined the abuse had occurred on July 27, 1989. And like the earlier reporters, he perceived Chloe to be a very bright and responsive child who’d make an excellent witness, but in his opinion she required therapy.
He had spoken to Carol Tracy, who sent him her written report, and Kathleen Sweeney, the DA’s victim-witness advocate, who told him Chloe had tested positive for chlamydia. Eight months after the interview, Leavitt, Chloe’s therapist, said the child wanted to go to court against her father.
“So the face sheet of Rachel Gidseg’s 51B report and the report itself are some of the documents you didn’t bring with you today?”
“That’s correct.” Nothing like trying to hide the wooden-bat story, Bea thought. But he did say the 51B was prepared by DSS, whereas the face sheet came from the DA’s office.
“Now, who is Carol Tracy?”
“She works for the Rape Crisis Unit.
“Is her name on the face sheet and in the 51B report?”
“I believe it is. That’s correct.”
That’s it! Tracy had been the first mandatory reporter. Hers was the name whited out from the 51A.
“Did she ever send you her report?”
“Yes, she did.”
But he hadn’t brought the report with him to the deposition. He couldn’t remember whether he’d given it to anybody else. Bea inwardly raised her eyebrows on that one.
“Would you supply me the report?”
“I’d supply it upon agreement between you and the district attorney,” Cooper said slowly. “Or anyone involved in the criminal matter who can determine it isn’t a privileged document and tells me I can provide it under law.” Cooper squirmed in his seat. He was scrambling for a reasonable answer.
Not letting on she noticed, Bea asked, “What privilege are you invoking?”
“A privileged communication between Carol Tracy and her client,” Cooper said. Then faltering, he tried to claim Chloe or Denise had given Tracy a waiver, allowing her to give the report only to Cooper. He also claimed he knew of no other waiver by them.
Cooper had been coached to maintain the curtain of confidentiality still existed, even though it had been lifted for him. He maintained the curtain was between Denise and Tracy—a client and a rape counselor—as well as between Chloe and Tracy. It was a complicated area of the law, and he obviously felt uncomfortable asserting what he wasn’t sure he sufficiently understood.
The curtains had probably been lifted for DSS, the DA’s office, and maybe the Center too. Maybe even for Ruth Stanton, Denise’s therapist. Bea’s position was that once confidentiality is broken, it’s broken, putting the information within Bill’s reach, too.
Cooper apologized. “I’m only doing this upon the advice of the district attorney handling the matter. But if the judge or someone else says give it, I’ll give it.”
Bea kept a straight face. “Right. And I don’t want to get into an argument of the law.”
Bea would’ve liked to have Tracy’s report. What had Tracy asked Chloe? How many dolls did she use?
Did her report contain more information than the 51A? Tracy’s report could be a potential treasure trove of exculpatory evidence. Bea was furious it was being withheld.
That Cooper had never spoken to Rachel Gidseg prompted Bea to ask, “So you took what Rachel Gidseg wrote in the 51B report as being true?”
“Yes.”
“You never had any questions regarding the 51B report?”
“No. I assume it true, to give me a probable cause, a reason to further investigate. What I do is, I take the 51B. I attempt to make contact with the victim—the alleged victim—to determine if they’re able to testify, to get a feel for their credibility.”
“The alleged victim’s credibility?”
“But you’re never concerned with the credibility of the DSS worker?”
“No.”
“And you’re not really concerned with the competency of the DSS worker either?”
“No,” he said, adding he’d requested a sexual abuse assessment, ostensibly as an alternate source of information. He made his request through the DA’s victim-witness advocate, Kathleen Sweeney, who, in turn, asked Leavitt to provide it. She promised him a copy of her summary of Chloe’s treatment and the sexual abuse assessment, but he hadn’t yet seen them.
Was the sexual abuse assessment even done? “You never look into the mother’s role in the allegation of sexual abuse?”
“No.”
“Wouldn’t that be relevant?”
“Possibly.”
“But you didn’t do it?”
“No, that’s why it was sent further to a professional therapist for a sexual abuse assessment,” he said, fidgeting. “That’s why, you know, not being trained in child psychology—why we had requested it, because of the age.”
Listening to his disjunctive answers, Bea thought he was obviously uncomfortable with either covering his ass or having to be evasive. He was probably also unaccustomed to being deposed—depositions are unusual on the criminal side of the law—so she delved into his background on the force.
Cooper had been in the Salem Woods Police Department nineteen-plus years and was currently assigned to the detective bureau. With a Master’s degree in Criminal Justice, he had taken courses in Psychology, Child Psychology, and Rape Investigations, but not one focused on child sexual abuse. He had studied, though, how sexual or child abuse might cause juveniles to set fires, and he’d used that knowledge in arson investigations.
He couldn’t recall ever taking a course on interviewing techniques to be used with the adolescent child or a child under five or a child who had allegedly been sexually abused. And he could only guess he’d had a course on interviewing techniques at all. Although he also couldn’t recall ever being taught to use a tape recorder on a first interview of such children, he knew he had never been told to use a video on an interview, and he hadn’t on this one.
When the police were mandated to investigate 51B reports about five years ago, he was informally trained by Elaine Lamoureux, who had moved from DSS into the DA’s office. He knew nothing about her background or licensure or her training in interviewing techniques. Sometimes she accompanied police officers and critiqued their interview techniques. She’d accompanied Cooper, in particular, maybe forty times over the past five years; he had lost track.
“Was Elaine Lamoureux with you when you interviewed Chloe on August 29th?”
“No, she wasn’t. That’s why it was a very limited interview.”
“Because she wasn’t with you?”
“Well, that and the atmosphere in the home. The mother was present.”
“Because you’re a male?”
“Yes.”
“Was the mother fearful of you because you’re a male?”
“She didn’t appear to be. But not feeling totally comfortable, I’ll sometimes ask for a sexual abuse assessment.”
“So you didn’t feel comfortable?”
“Not totally comfortable, whether the child would withstand the trauma of court.”
“On a summer’s afternoon with a mother and a child, and you didn’t feel totally comfortable?”
“No. Well, no. No. It was a feeling of discomfort I couldn’t shake.”
“So it was because of your feeling of discomfort that you requested the sexual abuse assessment?”
“It was the discomfort whether the child was able to totally disclose, whether there was something there she was holding back on. I don’t know.”
Fuzzy again. Now he’s holding back.
Cooper said, “I don’t know whether I am the fresh-complaint witness or whether Carol Tracy is.”
Cooper was speaking “sex-abuse unit” lingo: A fresh complaint is one made voluntarily and reasonably promptly after the sexual abuse. A fresh-complaint witness is the person to whom the child first complains. So Cooper’s statement was curious, given that he knew Chloe had first complained to Tracy.
Whether one or both were fresh-complaint witnesses, the sole purpose of their testimony would be to corroborate and lend credibility to Chloe’s. Their testimony alone could not be proof of the crime: Chloe would have to testify to the facts first, unless there were special reasons she couldn’t testify.
But the DA’s sex-abuse unit had a problem: they had no evidence to prove when the child was raped. They didn’t want to choose a date for which Bill might have an alibi, like July 27, 1989, the date in Cooper’s scribbled notes and his typed report. But if they went with a band of time, they could say the rape occurred within it. Bill Abernathy couldn’t have three years’ worth of alibis.
So Cooper put the three-year band on his application for the criminal complaint. Then the DA could squeeze in Gidseg’s story about Chloe being abused when she was in diapers in the crib, an allegation that smacked of someone feeding a story to Chloe, who then botched the retelling of it.
“So where did you get 1986 from?” Bea asked.
Cooper came up with one more remarkably garbled, incomprehensible effort to cover the DA’s ass.
Certain Cooper had arbitrarily enlarged the time from one day to a three-year span to accommodate the DA’s office, Bea rephrased Cooper’s incomprehensible response into simple English and hoped he would answer in the affirmative. “So you subtracted three years from July 27, 1989, the day before her father left, which you had in your notes, and were able to come up with July 28, 1986?”
“Yeah.”
Perfect! “Now one of the dangers of dealing with an old complaint is that the child, particularly of this tender age, is apt to have heard a story repeatedly from the primary caretaker. Isn’t that true?”
“That’s correct.”
And, in this case, Cooper had never interviewed Denise except for that one home visit, when he’d simply told her he’d like to speak to Chloe. He hadn’t asked about Denise’s background, her relationship with the child, her therapy. He hadn’t asked whether Denise herself had been a victim of abuse, whether her father was an abuser, whether there was someone else in the family who had abused her or had access to Chloe. In fact, since contacting Chloe and Denise on August 29, 1989, Cooper had gathered information only from DSS, Tracy, and Leavitt, all of whom had already prejudged Bill to be guilty.
“And you didn’t use the dolls or go into great detail because she had been interviewed twice already?”
“That’s correct, by Carol Tracy and then DSS, possibly Rachel Gidseg. So that’s why I didn’t go any further. Just short and sweet, just talked to her and let her go into her own therapy. That pretty much, you know, explains why I felt uncomfortable.”
“But you don’t know whether the mother was as careful as you were?”
“That, I don’t know.”
“What made you feel Chloe needed therapy?”
“She’d ramble on. She was doing a lot of talking about daddy and wasn’t specific. Daddy kicking the dolls... she talked but didn’t go into specifics. Up here,” he said, pointing to his report, “where it talked about him kicking the dolls... someplace up here... I felt she, you know, at that age, was having trouble going into a lot of specific details. I didn’t want to just go into detail with her. It was just—” He hesitated. “She just wasn’t articulate in areas specific about the physical abuse.”
On one hand, Bea thought it’d be a fine statement for court, but on the other, he’d wiggle out of it by the time he took the stand.
“Did she ever discuss Mommy?”
“No.”
“Mommy was always within earshot?”
“She was relatively close and could hear.”
“You both were in the kitchen?”
“Yes.”
“How large is the kitchen?”
“Twelve by fourteen, including the kitchen cabinet area. She may have been standing in an archway leading into one of the other rooms, but not totally out of—”
“So you never really got a chance to interview the child without the mother present?”
“That’s correct. That’s why I thought she really needed the therapy.”
“Why? Because of her manner near her mother?”
“Yes, somewhat.”
“Did you ever make inquiry about her being taught karate or playing mock karate?”
“No, I didn’t know any of that about karate.” He also saw no bruises on the child, and as far as he knew, no one else did either. It was also possible, he said, the punching and kicking of the dolls could be the motions of playing karate.
“And it was Kathleen Sweeney who advised you there was a test on which Chloe had tested positive?”
“Yes, that’s correct. I knew nothing of the chlamydia test or who performed it. I didn’t even know how to spell it.”
“But you still included it on your report?”
“Yes.”
“Your job then—and I don’t mean this in a derogatory way at all—you are somewhat like an ink blotter. Your job is to just absorb all of the information from these various sources?”
“To put them together, yes.”
“Absorb it and put it into a report?”
“Yes.”
“Without necessarily checking as to its accuracy?”
“Probably, yes.” Bingo! That finishes him as a witness in either trial, criminal or divorce!
“So your job is to assume that everything told to you is 100 percent true?”
“That’s correct.”
You’re gone, Cooper. You’re gone.
Cooper also had attempted to speak to Bill without a lawyer present. When Bill didn’t meet with him, Cooper had submitted an application for a criminal complaint. Bea sensed a slight, very slight, inference that had Bill met with him, he wouldn’t have submitted the application. But Bea was convinced Bill would’ve been screwed had he spoken to Cooper alone. It would’ve been a lose-lose situation. An innocent remark could’ve been vulnerable to spin.
“Some time went by when I assumed the application was going through the summons process,” Cooper said.
“I figured I’d get a summons. I did check back on July 6th and found for some unknown reason the application had been lost. I resubmitted the complaint, and it’s now scheduled for August 23rd for
arraignment.”
That accounts for the delay between April and August, but it doesn’t account for the original nine-month delay.
“Why was there a delay?”
“We left it in Denise’s court, whether she wanted to go forward on the complaint. Do we go forward? Do we get the assessment? We pretty much left it up to her.”
So Denise was running the show. “So the only attempt you made in going behind the information to hear the other side was the attempt to speak to Bill?”
“That’s correct.”
When Bea waved the results of Bill’s polygraph in front of him, even though Cooper himself had used polygraph exams on occasion in the past, he refused to bite.
While the stenographer was packing up her machine, Bea thanked Detective Cooper for coming. He probably could have avoided the subpoena, for not too many judges were willing to enforce them against law enforcement officers.
She also suspected the assistant DA in charge had allowed him to be deposed in order to learn what questions Bea would ask and how. Bea had not tried a case in criminal court in Salem County, so no one knew her style. Cooper was expendable for that purpose. And because Cooper hadn’t played a vital role, Bea would bet he wouldn’t appear at either the divorce or the criminal trial.
3 - Maggie Rudolph
The counsel representing Maggie Rudolph’s former employer had just finished complaining to Judge Wendy Wishinghorn that Bea wanted to call the two defense attorneys as witnesses.
That was true. Bea was trying to get documents from the employer and they weren’t being produced. Bea sought an order from Judge Warner B. “Wannabee” Wasp, Wendy’s judicial mentor, and Judge Patricia Cromwell. Both of them turned her down.
Bea began. “Your Honor, this is a discrimination case, and in a discrimination case, there are two theories. You’re well familiar with them, I’m sure. Disparate impact and disparate treatment.” She went on to explain that Maggie had to show how the company treated her differently than it did males, and to do that, Maggie needed certain documents that were in the possession of the company. “I wanted a reasonable inference to be drawn from the fact that the defendants didn’t produce those documents, for those documents would have contained information favorable to the plaintiff.”
Wishinghorn said, “Thank you.”
“A reasonable inference that the documents, whatever was in them, would’ve been favorable to the plaintiff, and that’s why they weren’t produced.
The judge said again, “Thank you very much. Is there any other guidance I need on this?”
Bea gave her guidance providing her valid legal arguments and citing law cases on point, which, of course, Wendy ignored. “Thank you very much, Ms. Archibald.”
“You’re very welcome.”
“Furthermore, if plaintiff’s counsel—you, Ms. Archibald—makes any attempt to circumvent Judges Cromwell’s and Wasp’s rulings and tells the jury to ignore them and to draw an inference that the reason there was a nonproduction by counsel was because they had something to hide, I intend to instruct the jury that Ms. Archibald’s actions are impermissible, unethical, and that two judges specifically have so ruled those documents did not need to be produced, and that’s the only reason they were not produced.”
“May I then call to the stand an attorney expert in the area of employment law to address the issue?”
“That’s not before me, Ms. Archibald.”
“But by your decision now, you put it directly into issue, and perhaps, although it technically is not before you, it, in fact, has come before you because you’re putting me in a position that—”
“I stand by my ruling. You can take it up on appeal.”
Again that famous refrain, Bea mused. She’s just pretending she doesn’t care whether her ruling is reasonable or not. She’s daring me to complain by appealing to a higher court.
Considerable discussion followed, primarily between defense counsel and Wishinghorn.
Then the judge wanted to hear from Bea how many witnesses she had.
“In view of the Court’s successive rulings to not allow the documents,” Bea said, “we have to bring in testimony, so we have a long witness list.” In other words, Wendy, the damn trial could be considerably shorter if you ordered them to produce the damn documents.
Defense stalled again with a complicated story. They were resisting trial, and Bea knew the reason wasn’t that they wanted to settle.
Finally, the lead counsel said, “I know this is an impossible question, Your Honor. How long are you in this session?”
“I am in this session for the next six months, and I will try this case, God willing.”
Hearing that, Bea didn’t have to work her brain overtime to conclude, Wishinghorn wants my ass big time.
I’ll be dead before trial begins. Poor Maggie Rudolph.
4 - The Tiger and Peter Pan
“Hugh, disparate impact in Massachusetts is dead,” Bea said, disgusted with the state of the law in the Commonwealth—something she could complain about only in the privacy of her tugboat.
“It’s moribund here.”
“It shouldn’t be. We’ve said parties should be able to obtain the fullest possible discovery,” Hugh said, defending his court’s decisions.
“Well, apparently you haven’t said it loudly enough. Your subordinates aren’t listening. All I get every time, almost without fail, is disrespect and condescension when I attempt to get discovery. Like today,
Wishinghorn swallowed whole the company’s pretense that its policy is neutral, but it isn’t: it’s had a discriminatory impact on the women, particularly the professional ones who have a stake in their careers.”
Hugh didn’t take Bea’s bait. He just shook his drink and made the ice tinkle.
Hoping for some verbal comfort from him, she said, “Wishinghorn threatened to report me to the Bar. No cause, no provocation, just a motion to compel compliance with discovery requests.”
“Dear, don’t worry about it until it happens.”
“Putting my head in the sand like an ostrich isn’t going to make the problem go away, Hugh.”
“But it’ll keep you from getting ulcers.”
“Look at Leslie Calhoun’s case. That bastard defense counsel has gotten four protective orders. For what? Boilerplate reasons! Rule 37 is a toothless tiger in this state. I should’ve left Leslie’s case in federal court and brought Maggie’s there. You know the Commonwealth’s courts punish plaintiffs who don’t comply with the discovery rules. In contrast, the law cases punishing defendants for noncompliance are almost non-existent. The corporations have the money and therefore power. No one sues a poor person or an entity that has no money. So guess who can flout the rules and get away with it?”
“Relax, Dear. Let’s have a drink.”
Not ready or able to, she said, “Why don’t you get them, Love?”
When he came back in with the liquid refreshment and she began to feel tipsy, she said, “Wendy changed her hair from white to red.” He sat beside her and she snuggled into his chest, thinking she may as well get her share. “I bet she’s having an affair.”
“Bea, people can be happy without having an affair.”
“Why else the color change?”
“Does it become her?”
“Actually yes, and she looked happier... at least until I was before her.” She sipped her sherry on ice, then sipped some more before she spoke again. “Let’s go up on deck.”
“Jolly idea.”
They topped off their drinks and went up to the upper deck. There they surveyed the action on the rippling water and marveled at the wonder of the sky.
After awhile, she said, “Hugh, the backlash is phenomenal. The judiciary—probably even the governor—is making it worse. They’re worried about driving business out of Massachusetts, they’re trying to shrink overcrowded dockets, and they’re scapegoating the most vulnerable: the women, the handicapped, the old.
The hell with the rules.”
“What did you say to her to provoke her into wanting to report you to the Bar?”
“Nothing, absolutely nothing. I hardly know the woman. I had one case before her and it settled after the first pretrial conference. I saved my guy 370 thousand. One of the supermarkets was after him for indemnification for a personal injury award. It only cost him a few grand for me. He said I was cheaper than his insurance premiums would have been.”
“You always talk about her as if you want to destroy her.”
“I would’ve if I could’ve today. All she was doing was rubber-stamping two asses: her buddy, Judge Wannabee Wasp, and what’s-her-name... you know, Judge Mendelsohn’s girlfriend.”
“No, I don’t. Who’s that?”
“Give me a minute. One of your guys. History,” she tapped the edge of a fist on the rail. “Judge... Cromwell, that’s it. Patricia Cromwell.
“You’re incorrigible.”
Bea laughed and then looked up at the sky again. “Karma.”
“I’ve lost you, Dear.”
“You asked me why I always sound as if I want to destroy her,” she reminded him. “I’m trying to think of why.”
He chuckled.
“Maybe it’s just bad vibes, chemistry. I don’t know. I just know I don’t like her demeanor, her mouth—her skinny, flattened-straw mouth. She’s mean and it shows in her mouth... and her eyes. It’s in her eyes, too. She’s spoiled, nouveau riche, from the bourgeoisie.”
“How do you know that?”
She hesitated and then extended her arm out to reach for the sky. “What other kind of a mother would name her child after someone who flew with Peter Pan?”
Stay Tuned for Part 6 on Wednesday or Thursday