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As a result of the indictment, Bill and Bea were to rush over to Superior Court for a second arraignment on the charges brought by indictment. Almost simultaneously, some assistant DA would discontinue the prosecution in District Court by nol prossing the case.
Fogarty promised to provide Bea with a transcript of the Grand Jury proceedings. She hoped it wasn’t as empty as Fogarty’s earlier promise to allow Bill to testify at the Grand Jury should she have decided to go that route.
She wouldn’t be pressing the motion to dismiss on lack of speedy trial grounds.
The Superior Court of Salem County was an immense and very ugly, old stone, rust-colored building from the last century. No security systems or check points had been installed, so everyone still entered through the front door atop several tiers of wide steps with short risers. No crowd waited outside—only two smokers. The entry hallway was cavernous—high-ceilinged, drab, cold—and lined with nearly empty wooden pews.
The criminal sessions were up the marble steps to the right. Years of use had worn cavities in the middle of each stair. The First Criminal Session behind double swinging doors to the left of the stairway landing was huge and wall-to-wall with people. If Bill didn’t feel he belonged in District Court, he certainly must’ve felt he was in Hell.
The clerk was calling the list of the felony cases. From here, defendants were sentenced to state prison, not jail.
When Bill’s case was called, Fogarty didn’t ask for cash bail. She did ask, though, for a stay-away order from the child.
In his conservative gray suit, shirt, and tie, and looking as though he were accustomed to wearing them, Bill didn’t appear like the usual defendant as he stood at respectful attention while Bea argued before the bench.
“Your Honor, had I known in advance of this arraignment, I would’ve brought a certified copy of the family court findings, in which the judge found Mr. Abernathy to be a ‘good man’ after a five-day divorce trial.
“The defendant has been having supervised visitation with his daughter for three years, and there is no reason why the existing long-standing arrangement should be changed.”
Significantly, Bill was not handcuffed or even touched by a court officer. One trauma avoided, thought Bea.
Bea had never seen the judge before, and there was no attorney just standing around whom Bea could ask who the judge was. She’d remember him just as another gray-haired, middle-aged male in a black robe. Nothing exceptional except uncommon common sense. He refused to issue a stay-away order.
The indictment also threw a monkey wrench into the divorce case. Goldblatt had thought it was a good idea to settle the criminal case before making any final decision as to custody and the distribution of marital property.
With the potential punishment having increased substantially, Bea had to give Bill some more advise.
“Bill, you should retain a heavy-hitting criminal defense attorney to take over this Superior Court case.”
“Who?”
“Victor Castenetti. He’s well-respected and has been a speaker about Grand Juries. He’ll probably recommend filing a motion to dismiss as soon as the Grand Jury transcript is produced.”
That afternoon, Bill contacted Castenetti, who put D. Wayne Michaelson on the job. Michaelson was a gorgeous caramel-skinned creature. Tall, firm-figured with a deep melodic voice and closely cut gray-black curly hair, he sported stylishly conservative glasses that flattered and lent him an air of sophistication. A guaranteed womanizer with Alfa Romeo wheels.
Georgia Rules of Evidence
Meanwhile, back in Maggie Rudolph’s case, “Sidebar, Your Honor,” Bea said, signaling what she had to say shouldn’t be heard by the jury—even though she would’ve loved the jury to hear it. Wannabee would cream me.
She picked up her block of paper and her pen, walked into the witness stand, and huddled next to Judge Wannabee Wasp’s bench with the two opposing counsel, Mr. Funereal and his gopher, Ms. Echo.
“Your Honor, you, Judge Cromwell, and Judge Wishinghorn denied me access to the personnel records—performance evaluations, pay and bonus data, even the job descriptions—of all the professional women in the company and their male counterparts. Judge Wishinghorn even threatened to report me to the Bar if I persisted in trying to get discovery from the company. This is a sex discrimination case. My client was entitled to the documentation that proves her claim on a theory of disparate treatment or disparate impact.
“Now defense counsel want to list the names and titles of all the professional women in the company and say to the jury, Look how well we treat women in this company.
“Without those records which were so outrageously denied me, I won’t be able to impeach the witness. Those records would have given me evidence that when a woman replaced a man in a job she was paid considerably less than her predecessor and got smaller salary increases and smaller bonuses, if any, than her predecessor.
“So to allow them now to imply that women are treated equally, the same as men, by listing merely their titles would be seriously prejudicial to Mrs. Rudolph. It is on that basis I object.”
“Take it up,” he said flatly in judicial shorthand, which told Bea that she’d have to appeal the issue because he was going to allow Mr. Funereal’s witness to name the professional women and their titles.
But Wasp didn’t stop there. Whenever objecting, she was stung again and again by him, who grinned at her like Garfield the Cat, long teeth bared. Bea would swear she saw over his head a bubble in which Gotcha! was written.
Ultimately, Wannabee allowed the witness to give a list of derogatory comments limited only by the witness’s imagination about Maggie’s performance on the job and her character.
Funereal’s witness couldn’t say who said what, and when and where, leaving Bea unable to call Maggie’s accusers to the stand and get to the truth.
“Hugh, I thought it was only Georgia that allowed that kind of anonymous hearsay. Anonymous accusers in a civil case. Talk about impaling me!”
“As the man said, ‘Take it up.’”
“Dammit, Hugh, that’s not good enough. You know damn well how much work and expense that entails. And the time it takes to hear anything— There’s a two-year lag for Appeals Court decisions these days. My god, Maggie Rudolph’s nerves are shot as it is. Can you picture the number of crazy phone calls I’ll have to field from the woman over two years?
“Dear, that’s all I can tell you. Take it up.”
“Don’t Dear me, Hugh Engle. Wannabee overruled me to get even.”
“For what?”
“I thought I told you. The Appeals Court reversed him on my brother’s case about two months before Maggie’s trial began. I was afraid of that. It was too new a wound.”
“Hmm, didn’t know that,” he said. “I thought you won that case.”
“I did. It was 137 grand plus double or treble damages coming out of district court. Then it got caught up in a Rube-Goldberg situation provoked by the defense. That was my first tort case out and I was up against a former president of MATA.
“I wanted Wannabee to review what happened below—he could’ve, you know—and let us hold on to the win. But then he allowed a four year old summary judgment—filed before trial—and dismissed it on the grounds there was no case. I’d won it after a bench trial, not even a jury.
“I didn’t even have notice that defense counsel were renewing their motion. A few judges had heard it and never acted on it and then we had the trial, so I thought it was dead and buried. When I moved to have him reconsider, he sent it up with the question, ‘Did I do the right thing on April 17th?’ Something like that. Two years later the court said, ‘No, you didn’t.’
“And at some point I let it slip to the clerk that my brother died while the case was on appeal.”
“Why’d you do that?”
“To give him a guilt trip, the bastard.” She lit up. “My brother was obsessed about the case. Maybe he’d have lived a little longer had he seen it finished and won. He wanted the money for his kids.” She took another puff, knowing she should cut back some, but it was impossible to quit with all of this shit going on. “Believe it or not, that case is still alive.”
“That so?”
“Amazing, n’est-ce pas?” She went to the galley and got them some liquid refreshment. When she came back, she said, “That’s why he wants to see me go broke. Because I keep on challenging him and his mentee, Wishinghorn... maybe even his screwee. He overruled me because he knows—as I do and you do—that you guys more often than not will say, ‘It may have been error, but it was harmless error.’”
“It may well be only harmless error.”
“See. Have you no integrity left! Harmless error, my eye! He let them use just the names of the women as the centerpiece of their defense. The defense was acting in bad faith and what Wasp did was reprehensible.”
She received no response from Hugh. What did I expect? Indignation? She knew she was kidding herself. He’s one of them. A g.d. ball-less authority figure! She hated them. She hated the hypocrisy. “Shit, he’s going to charge me out with the jury. I just know it. It’s coming. I feel it.” Bea was worried Wannabee would do what Servantnick had done to her: give an instruction that would make it impossible for the jury to find in Maggie’s favor, and Bea wouldn’t collect a dime for all her work.
“And the reformers want to do away with contingency fees. What the hell for? With judges like Wasp, we can’t make money often enough.”
“Bea, cheer up. You make money.”
“Short money. I’m forced to take short money on settlements.”
“Invest it, like what’s-his-name, your handicapped client.”
“Wasn’t that remarkable? He made a bloody fortune on the market. He’s a changed man. Sonofagun.
A real rags-to-riches story.”
“That’s what I mean—invest it.”
“Sure,” she said, disgusted. “With my luck? Every time I’ve invested, the market’s gone into a downward spiral. I don’t want to cause the market to go down again. Think of how much unhappiness I’d wreak.”
Probably sorry he’d brought up the subject, Hugh picked up their glasses and went to get some refills.
She bellowed after him, “Anyway, I should be able to earn sufficient money off my work.”
“You do,” he bellowed back.
“Bastard Wannabee, he’s never lived without a weekly salary. It’s a damn shame. We’re the only ones who’ll take the little guys’ cases. The only little-guy cases the big boys take is when the little guys are dead, half-dead, or maimed! Then it’s worth it to them.”
Hugh walked in wagging his head. His head said more than he could say aloud.
She thought, Why do women watch men’s heads but men don’t watch women’s? “I wonder if there’s an insurance-company connection between the defendants and Wasp’s old clients.”
She was about to make comment about his wagging head when he handed her a Bloody Mary and not a little wine. She laughed. “It really shows?”
“It does.” He sat down beside her on the sofa.
Later, in the stateroom, in bed, she told him she wanted him to do a certain something he never ever did, at least to her.
“Don’t ever tell me what to do!”
“Absolute power corrupts.”
“It goes both ways, Bea... both ways.”
Obscenity Revealed
Bea received the transcript of the Grand Jury proceeding, where “evidence” in any form was allowed, where the envelope for evidence was seemingly boundless. She read it out of curiosity, for this was where Castenetti and Michaelson came in. She was counting on them to use their recognized expertise to spot whether even that generous envelope was overstretched.
Castenetti and Michaelson would have to convince the court that ADA Fogarty knowingly offered false or deceptive testimony that influenced the jury’s determination to hand up the indictment against Bill.
The transcript, Bea saw, made it impossible to distinguish between jurors. Their anonymity was preserved. When a juror asked a question, the transcript read only “Juror.” There was also no way to determine the composition of the jury (for example, how many of each gender, or their ages, occupations, and ethnicity), or even whether questions were asked of potential jurors.
Substantively, of course, the transcript appeared to be complete. Roberta Leavitt, Chloe’s therapist, had told the jury who she was and what her duties were at the Center. She also told them she worked with sexually abused children.
The first question that caught Bea’s attention followed a fairly innocuous one about when Leavitt first met with Chloe.
“Who brought her there?” Fogarty asked.
“Her mother,” Leavitt answered.
A clever question, Bea thought. If Fogarty had asked who “referred” Chloe there rather than who “brought” Chloe there, the question would have dictated the answer, “The district attorney’s office.”
Leavitt then established Chloe’s age as being under sixteen, and claimed that Chloe had disclosed being sexually abused by Bill both before and after meeting Leavitt. She then graphically described acts of oral, digital, and penile penetration and repeated Chloe’s “yucky” statements, the stories of nightmares and stomach aches, et cetera.
Having covered the two bases—age and act—required for an indictment charging rape of child to issue, Fogarty added whipped cream: frequency (any time) and place (any place). She did so by leading Leavitt to say Chloe told her the “abuse occurred in her old bedroom.”
Bea was surprised because that information was nowhere in any process notes she had seen. It was Chloe herself, when questioned by Goldblatt in Judge Fessenden’s chamber, who said it was the bedroom.
Leavitt could have decided on her own to establish the place of abuse. It was more likely, though, she made the assertion in complicity with Fogarty, for Fogarty understood the desirability of naming a place of abuse... and Fogarty had a copy of the allegedly sealed transcript of Chloe’s testimony.
Fogarty also led Leavitt to say Denise was not present when the abuse occurred, which precluded the jurors from wanting to indict Denise too.
Nevertheless Leavitt said, “Denise hasn’t been able to make a clear statement of when it began, only that it happened frequently. So it’s unclear about the exact time when it started.”
That statement left Bea in a quandary. If Leavitt had been clued in to what Chloe said in the judge’s chambers, then she had to know Chloe claimed the abuse occurred six years earlier.
When the presentation should have been sufficient to persuade the jurors to indict, Fogarty asked the jury whether anyone had any questions of Leavitt.
A particularly astute juror asked, “Are there no custody problems? Is he trying to get custody of his daughter?”
No wonder Fogarty didn’t let Bill testify.
Leavitt hemmed and hawed.
Bea was curious. She couldn’t imagine Aguilar showing the pleadings to Leavitt, even though they were public records. Maybe Fogarty herself read the family court file and educated Leavitt about them. Who knows? Certainly Bea and Bill didn’t.
“I’m not quite clear exactly what the father is trying to get,” Leavitt said. “It’s not clear to me, but there are custody disputes. I’m not sure exactly what he wants, or what he’s asking for.”
“In your opinion, if there’s a custody dispute, could these words have been put in her mouth by her mother or anything like that?” the juror asked.
“It’s certainly something I’d have to look at very carefully to see whether I think this is something that’s happening, but in my opinion, no, I do not think in this particular case that’s happening. It seems clear to me this child is talking about what did happen to her, not something someone told her to say.”
Outrageous, outrageous, outrageous!
“When Chloe first disclosed, were the parents living together?” a juror asked.
“No,” Leavitt answered.
Damn. Of course, they were.
Something must not have smelled right to the juror, because he/she asked a few more questions, and finally wound back at the beginning, “Have you determined when the abuse occurred?”
“It’s not clear to me the exact date, but from what she’s saying, it sounds like it occurred at least a year or two years before that. She’s not able to pinpoint a date.”
There was no evidence as to time other than what Chloe told Goldblatt: when she was one year old.
“Three and a half?” asked a juror.
“Somewhere around there would be my guess.”
“I’m just very concerned that the mother’s putting these words to have— You know, if he’s indicted for sexually molesting his daughter, you know—”
“Yeah, and I agree with you. It’s definitely a very serious concern, so I’ve been real careful in working with her to try to sort out whether it’s a possibility, because you always have to have an open mind to that possibility when there’s a divorce or a custody issue involved,” Leavitt said, lying and hedging, “but in my opinion, that does not appear to be the case. It seems clear the mother is not putting words in her mouth at this time.”
The questions by one or more of the jurors continued. They focused on the amount of time Chloe had spent with Bill since ‘89, the supervised visits, and how many times the child had seen Leavitt. She thought seventy times was “a good estimate. I’m not good in math.” Bea grinned as she read the typical Leavitt comment.
The next line of questions was about whether Chloe’s story had been consistent. “Of course, of course,” was the gist of Leavitt’s answers to those questions.
“Has she displayed things through pictures and doll play and things?
This juror has been exposed to sex-abuse accusations somewhere. He or she might even be a social worker or psychologist. Bea wished she knew whether it was the same juror asking the particularly astute questions.
“She definitely has.”
“Was she ever given a physical to see whether there’s medically anything to be found out that she—”
“Yes, she was. That was before she began treatment with me, she had a physical exam, right after she disclosed it.” There was no physical exam!
Fogarty did not allow the juror to ask the next question. Fogarty asked it herself. “Do you know the results of that?”
“There was some positive results on a chlamydia test; however, there are some, and I’m not clear about the medical reasons, but it’s not clear whether that test is valid or not, so that’s somewhat up in the air. She was treated for chlamydia, to have, you know, the possibility be addressed, but it’s not clear.”
Look at that! She skirted answering that there was no physical evidence of penetration.
Then a juror wanted to know whether Leavitt had talked to her pediatrician. Leavitt said, “No, I have the medical notes. Mom signed a release so I have the medical notes of that.”
And, No, she hadn’t seen anything about physical changes in the notes.
Fogarty asked whether there were any other questions. When she got no response, Leavitt left the room. After some unknown period of time, Leavitt was called back. The jury questions focused on visitation. Then a juror wanted to know whether there was a court order that the father’s visitation rights be supervised?
“As far as I know, no,” Leavitt said. That part was true. But Leavitt didn’t stop there; what she then said was not only misinformation factually, it couldn’t happen legally. “It was agreed upon by the father and the mother, and DSS also had required the visits be supervised. DSS being the Department of Social Services.”
The jurors had no idea they were being duped.
Then a juror asked whether Leavitt was the supervisor of the visits. When Leavitt said she wasn’t, the juror asked who it was and whether Leavitt had spoken to her. The juror doing the questioning sounded more acquiescent than the one(s) who asked about consistency and custody. Then Leavitt explained that the weekend visits were currently being supervised at the Center.
The same or another juror asked, “Do they relate to you at all the way she reacts when she sees her father, any distress? You know, is she calm?”
“Well, I talk a lot to her mother about that,” Leavitt said.
One seemingly skeptical juror would have preferred that Leavitt speak to someone other than Denise:
“Besides her mother. Someone who’s not—”
“The visitation center at this point because of legal issues— I haven’t been allowed to talk to the visitation center about a lot of any details about the visitation, so when I asked them that, they said they were unable to let me see the records or talk about that.”
That doesn’t sound right. They all had waivers. It’s hard to believe that she can’t see the records from her own agency.
“So the only opinion you get is from the mother,” the juror persisted.
To this, Leavitt responded, “And also, you know who else I’ve talked to is the DSS worker who used to supervise the visits.”
MSPCC is not DSS, but Leavitt consistently said DSS instead of MSPCC. DSS never supervised the visits.
“Okay,” the juror said, relenting.
Generally, Leavitt continued answering whether or not there was a question before her. Of course, Fogarty didn’t stop her star witness. Leavitt managed to convey that “Chloe cares about her father. She just didn’t like what he did to her. Chloe was uncomfortable because father would want to touch her or try to get too close to her and that made her feel really uncomfortable. Or if Father was a little rough with her. You know, like holding her arm a little bit too tightly and it made her feel a little frightened. Father is consistent with his visits, once a week on Saturday. She’s the only child.”
Another juror asked, “How did the mother find out about the abuse? The daughter related it?”
“The child told the mother her father was scratching and hitting her, and the mother confronted Father, and Father said, ‘Yes, I’ve been doing that.’”
The answer avoided the talking hands.
“Then the mother brought the child to the rape-crisis center to talk about what he was doing to her, and they interviewed the child, and that’s when she disclosed the sexual abuse.”
A juror wanted to know where Denise was when Tracy interviewed the child.
Then a juror asked, “Is that kind of a standard thing, that a kid who’s complaining about being scratched has to be brought to a rape-crisis center?”
“I think a person who knew the mother said, ‘Oh, bring her in. I should interview her.’ That was the advice Mother had been given is my understanding.”
Where’s the evidence Carol Tracy worked with children?
“Do you have any knowledge why all of a sudden after two years, you’d be going to court looking for an indictment on him?”
“Oh, they’ve been—it’s been going on for a while. It just takes a long... the legal process. It’s not that it just started, it’s been going on for a while.”
Talk about avoidance. Leavitt didn’t want to fess up that Chloe hadn’t been brainwashed well enough last year and that it’s taken another year to get her ready.
For the last time, Fogarty asked, “Any other questions?”
There were none.
Someone said, “Thank you.” It was not clear who.
Then Leavitt left the room. Most of her testimony had been hearsay, testimony which she wouldn’t be able to testify to in a court of law, testimony which was not the truth, testimony which is typical of the notoriously unjust Grand Jury system.
Without a judge to rule on evidence and without the targeted person there to defend him or herself—to confront witnesses against him or to present evidence in his favor—the Grand Jury session is but a tool to be manipulated by an incumbent DA. A kangaroo court.
If the Grand Jury had been told the true facts—there was no medical evidence of rape, Tracy was unlicensed, there was no evidence she had either experience or training in questioning children to diagnose sexual abuse, and Denise was obsessed about having been raped by Bill, and with that state of mind, may have had motive to unduly influence the child—would the jury have indicted Bill?
Well after the indictment was issued, Bea learned that Chloe was kept waiting outside the Grand Jury room just in case Fogarty needed her to testify after Leavitt finished. Chloe was never called. Of course, neither was Bill. In fact, in response to Bea’s request that Bill be allowed to be present and testify, she had heard nary a peep from the DA’s office except Fogarty’s false oral promise.
“What was the vote?” Peter Cuomo, her intern, asked.
“I have no idea.”
Part 25 of the 41 part serial will be posted on Monday, September 15th