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Relaxing in the salon of Costaki II, Bea asked Hugh, “Did you see the article in the Lawyers Weekly about discovery disputes?”
“Not yet.”
She read, “‘Frustrated by abuses and delays, some courts have begun taking a more hands-on approach to overseeing and resolving discovery disputes.’
Let’s see. ‘The recent trend among Massachusetts judges to act on discovery abuses may be in response to the loud complaining by some members of the Bar about discovery-related problems, suggested Boston lawyer J. Owen Todd, a former Superior Court judge.’
Good to know I’m not alone. Did I tell you Todd told me he thought my German lady’s case was interesting? Nice guy. No wonder he didn’t want to stay on the bench.”
“Ouch.”
“Suffer.” She laughed.
“Why do you want me to suffer?”
“How else can I retaliate against you?” She continued reading. Suddenly she exclaimed, “Oh, my!”
“What now?”
“The rest of the article. I got to him!”
“What on earth are you talking about? Bea, you babble. You must drive them crazy.”
“They don’t know what crazy is, do they, Love? ‘Superior Court Judge Warner B. Wasp observed that, “In general, courts are prepared to take more time with these problems than they might have been in the past. Before, there was an unwillingness to go into the briar patch. But now there is more of a willingness for judges to take a hands-on approach and to find constructive ways to resolve things.”
“So?”
“The briar patch. The briar patch. In one of my pleadings, I drew some analogy to weeds in a garden.... I don’t remember which case, but I guarantee you he was thinking of me when he came out with the briar patch comment.” She smiled, then burst out laughing.
“Out with it,” Hugh said.
“I used to put a long Latin expression in each of my briefs to Wishinghorn after she pulled that shit on me. Make the bitch go to Black’s Law Dictionary and look it up if she knew what to look for.”
“Do you know whether she knows Latin?”
“Of course not.”
“Then why did you bother?”
“To aggravate her. Gamesmanship. One-upmanship. All quite proper out of Black’s Law and always used in the proper context. To finesse her. I hear she’s an inveterate bridge player. She knows what finesse is all about.”
“You do go over the top.”
“Hugh, I live over the top.”
“So you do.”
“Don’t be so righteous,” Bea said. “You’re here with me. Did I mention, one of my cases is in the article?”
“Is it really?”
“Yup, my mother’s case, the one where Steve Gordon, the one from Worcester, claimed he was her lawyer and she didn’t even know him. Remember that?”
“You didn’t let me forget it.”
“That’s because you guys are responsible for the Office of Bar Counsel, and Rosenfeld and Vecchione and Frederickson refused to take action against Gordon.”
“I thought Anne Kaufman wrote that decision.”
“She did, but I had sent the complaint to Vecchione, and she sloughed it off to Kaufman. Blatant fraud. Larceny. For God’s sake, Hugh, the court, that Judge St. Cyr, was complicitous.”
“Now, now, Bea. Don’t get your dander up again.”
“I’ll get it up if I want to. They were just covering St. Cyr’s ass. I wanted the case reviewed. He said, ‘Too late.’ It wasn’t. I argued there was no signed judgment, and no judgment had entered on the docket. Then they altered the docket. I was lucky I’d thought of getting a certified copy of the docket sheets before they were altered and the judgment back-dated. Damn immunity. Just think if the public could sue you guys, how much more attentive all of you would be to the public’s concerns.”
“Why didn’t you bring it to the Commission on Judicial Conduct?”
“Don’t patronize me, Hugh. When’s the last time they went after one of you?”
That question needed no response. They both knew the answer. Instead, he said, “Read me what the article said.”
“Well, after saying the case was one of two cases most often cited as evidencing this new ‘no-nonsense’ attitude toward abuse of the discovery process, it said my case, quote, ‘involved a lawyer who was sanctioned for calling a witness at a deposition a fool, a liar and a son of a bitch.”
“That was Wannabee’s decision.”
“Right. In the malpractice case.”
“Why did you sue Gordon for malpractice?” Hugh asked. “I don’t think we ever discussed that.”
“Well, when Wrentham District Court wouldn’t retransfer the case to Superior Court for review and to the Appellate Division and Bar Counsel wouldn’t act and the Globe and the Herald weren’t interested in an exposé, I was stumped.”
“And you didn’t have my shoulder yet to cry on.”
“Right,” she agreed. “I’m not sure you would have been able to stop me.”
“Probably not,” he said.
“You have to realize I wasn’t her lawyer on the Wrentham case. I came in on it only after Gordon tried to get money from her for fees for nothing.”
“Get on with it.”
“Okay. Since Gordon claimed he’d been her lawyer, he couldn’t come in to a second court—Superior Court, in this case—and argue he wasn’t her lawyer. That meant I shouldn’t have had a problem establishing an attorney-client relationship, which I needed in order to sue.
“Gordon also never filed any pleading on her behalf and hadn’t filed an appearance in the case prior to his seeking a lien and getting judgment against her. That, too, meant I shouldn’t have had a problem proving he’d been negligent: he hadn’t done anything that an ordinary, competent attorney would have done.
“So my first count was for a declaratory judgment that Gordon was her lawyer. The other counts were breach of contract and negligence. I also added counts for fraud, violation of the consumer protection act, and emotional distress. The latter because my mother had fainted dead away one day in Filenes when I told her about the judgment he got. An ambulance took her from Filenes to the hospital. What a day! I thought she was a goner. After all, she was already a few years past 80.”
Remembering at least some of the case, he said, “And then Wendy allowed Gordon’s summary judgment and said your mother’s complaint, which you wrote, was frivolous and awarded attorney’s fees to the insurance lawyers.”
“Right,” she said. “Wendy didn’t understand the purpose of the count for a declaratory judgment and concluded there was no attorney-client relationship between Gordon and my mother. That was the basis for finding it frivolous. They’ll never collect. That judgment is a piece of TP, toilet paper.”
“And Wannabee had already slapped your wrist for being unprofessional.”
“Right, a few months earlier. And then he sent his 35-page decision to Lawyers Weekly for publication. That was around two months before Maggie Rudolph’s trial. That’s probably why he was on my case all during that trial.
“I was upset about the publication because I never called Gordon a sonofabitch. I mean, everyone who knows me knows I swear, so what Wasp said had to appear true, but it wasn’t, and the transcript shows it. Gordon had been yelling. I told him, ‘You can say the same thing without yelling.’ But he wouldn’t stop. His insurance lawyer just sat there with a smirk on his face, goading him on. I must have repeated that to Gordon at least five times. The last time, I said, ‘Sonofabitch,’ but as an exclamation, not an epithet. And that’s what I wrote to Wasp. But Wasp chose to believe it was an epithet.
“He said, ‘discovery problems are a low-level fever that runs through the system. Sometimes, an abuse is particularly egregious.’
For the less serious discovery problems, Wasp suggested holding a status conference to find out what is causing the friction or appointing a discovery master. If that doesn’t work, he said, “sanctions might be imposed as a last resort.”
“Well, he certainly didn’t do that in Maggie’s case,” she huffed. “He’s such a hypocrite.” She wagged her head. “And, of course, no one laid a hand on Pitbull. He should have been named the Poster Boy of Incivility. Five years and not one piece of paper, and eight—can you imagine?—eight protective orders for not one valid reason.”
“Calm down, Dear.”
And she did for a while. “You know, Wannabee said he wasn’t disappointed by not being appointed to the federal bench, but this spate of availability to the press makes me question that. Why else all this public self-aggrandizement?”
A month later, Wannabee was interviewed again by the local lawyers’ newspaper. Bea had to read the interview twice.
She read it to Hugh. “‘Superior Court Judge Warner B. Wasp told Lawyers Weekly that demonstrative evidence is ‘underused’ by lawyers. ‘There are a lot of things lawyers could do to better communicate the evidence, including photos, videos, charts and diagrams,’ Wasp said. ‘It’s a powerful way to communicate.’ Blah blah blah. ‘It doesn’t have to be exotic,’ agreed Wasp. ‘It can be as simple as a map or a calendar to mark off days.’”
Hugh said, “Good advice.”
“He doesn’t mean it. He let me use my projector, but he wouldn’t let me use the most important demonstrative evidence we had, the time line showing all the tasks Maggie did and when she did them.”
“Did you have the tasks in evidence?”
“I did.”
“You must have pissed him off.”
“If I did, he deserved it, the hypocritical bastard.”
Hugh looked grim.
“You know what I just thought of?”
“What?”
“Well, Wendy didn’t find the complaint frivolous until after Wannabee published it. I bet he put a little memo in the file for her.”
“You’ll never prove that.”
“True,” she retreated. “But it certainly leaves room for conspiracy to retaliate against a lawyer who challenges one of them.”
“Doesn’t prove that either.”
“I wonder whether Wannabee has the courage to reveal how you guys operate.”
“You’ll never know, Dear.”
“It’d prove my theory that judicial decisions are based improperly on facts outside of a motion or outside of trial.”
“Doesn’t prove it.”
“But you could talk to me about what goes on in your court,” she said. “I bet your colleagues tell their wives what goes on.”
“I’m not under their mattress, Dear.”
Acid dripped from the “Dear.”
“Boy, I’d love to be a cleaning lady for one night in that courthouse.”
“Has he made a decision on your motion for a new trial?”
“Not yet,” she smiled. “What do you suppose he’s waiting for? It’s almost a year and a half since trial. Unusual, huh?”
A month after that conversation, Wannabee denied Bea’s motion for a new trial. She wasn’t surprised he didn’t report her to the Bar even though during the trial he had found her in contempt three times.
She knew he had no basis.
“Two bits, Hugh, he was waiting for the trial transcript. He probably wanted to quote what he thought I’d said that made him find me in contempt during that farce of a trial.”
“Did he quote you in the decision?”
“No, of course not. There was nothing to quote. He probably just hadn’t taken his valium those days.”
“Well, he must have said something about it.”
“Sure.”
He insisted, “What did he say, Bea?”
“He wrote that my ‘approach’ to the trial process was ‘the moral equivalent of war.’” She chuckled.
“What’s funny about that?”
“Maggie kept on complaining I wasn’t standing up to him enough.”
“About the contempts, Bea... what did he say about the contempts?” Hugh sounded concerned, probably because of possible disciplinary action against her.
“He said he wasn’t doing anything about them because my performance ‘was an aberration produced by a confluence of circumstances unlikely to recur.’ Curious, huh? I wonder what the circumstances were that confluenced.”
Before they retired, Hugh said, “You never used to curse.”
“I wasn’t in this business then.” After a while, Bea said, “We need a forum.”
“Who’s ‘we’ and what forum?”
“Lawyers. We lawyers don’t have a forum for our war stories, to compare notes, to spread the word about the traps judges set for the wary as well as the unwary. We don’t have a forum.”
“What about the Lawyers Weekly? Letters to the Editor.”
“Puh-lease. Actually, a while back, Lawyers Weekly did announce they were going to start a war-story column and invite lawyers to write in. But the column never ran. I watched for it. I assume it never got off the ground because lawyers feared retaliation if they went public. And if I’m right, that’s a shame.”
A Fashionable Myth
For the next month Bea wrote more motions in Bill’s case, including one seeking $10,000 from the Commonwealth to retain experts. A judge she’d not seen before in superior court allowed it for half that amount. He was somewhere between forty-five and fifty years old and probably hadn’t been on the bench long enough to become cynical.
She wrote jury instructions.
She spent hours reading recent articles and studies on sexually abused children, false allegations, and the suggestibility of children’s memory.
Experts known for their testimony at sex-abuse trials were the target of her phone power. Some of them were charlatans. Some, legitimate. All charged $2,500 a day plus expenses for their testimony and $250 an hour to review the case and prepare.
Only the wealthy could hope to escape the trap of a charge of child rape. The government needed only to produce some third person to testify a child said the defendant did it. The government didn’t even have to identify a specific date or time or place at which the alleged crime occurred.
In the divorce court, the “where” and “when” was Chloe’s crib when she was an infant. In the application for the criminal complaint, the “where” was unspecified and the “when” was when Chloe was between two and five. For the Grand Jury, the DA changed the place to her bedroom when she was four or five. What will be the “where” and “when” at the criminal trial?
Around that time, Stephen Ceci’s videotaped study of children’s capacity to lie was aired on 48 Hours on CBS in a segment entitled “Lying and Deception.” That children do not lie was a fashionable myth.
Considering the possibility the Commonwealth might present one of their usual experts on child sex abuse who always testified children do not lie, Bea ordered the tape to show—if she could get it admitted—a controversy existed over the issue of whether children do or do not lie.
Bea and Bill had been in and out of court sparring with both ADA Cooke and one judge or another.
If Bill was tense, he didn’t show it. He managed to squeeze in another vacation for a few days with Kate. Bill was disappointed by Cavanaugh’s report, and his hope for a quick resolution of seeing Chloe again had been smashed. Now he just wanted to get the trial over quickly.
If he were acquitted, at least Denise and Aguilar wouldn’t be able to use the criminal case as a weapon to keep him from seeing his daughter.
If he were convicted, the issue would evaporate. He’d be in prison and there would be no sense in running into court with motions for permission to see Chloe.
But at no time did Bill forget Chloe. He continued to phone her every week and send her a small gift, like a Red Sox cap, every week or two. Chloe seemed to enjoy them. For her ninth birthday, he bought her a bike and a helmet. He was angry he couldn’t see her face when she received them, and had to rely on his sister and father to drop them off at the house. He felt powerless.
Bea notified both Goldblatt and Aguilar on April 24, 1993, the criminal trial had been continued at the request of ADA Cooke from May 3 to June 1. Bea suggested the rescheduling of their next meeting to some date in June after the trial. They had all waited so long, one more month wouldn’t matter much. She told them it was unlikely the date would be changed again because the case was getting musty in terms of the right to a trial within a year, at least after excluding any continuances caused by the defendant.
By the end of the month, Cooke had a murder trial scheduled and ten other trials pending, so she requested a continuance from June 1. Heather Bruce, the original visitation supervisor, vanished. The court allowed Bea’s motion to see Leavitt’s latest process notes, but Leavitt produced them to the court, not to Bea. Then the court wouldn’t allow Bea to photocopy the notes; she would be allowed only to hand copy them.
The judge’s clerk promised to provide Peter the use of a table in the jury-deliberation room, where he had to sit for hours hand copying the notes.
Bea let Goldblatt and Aguilar know the new date for the criminal trial was July 12, 1993.
The Missing Link
Peter returned, anxious to discuss Roberta Leavitt’s notes with Bea. “Read them, Bea.”
“Later, Peter, I will. Summarize please.” Bea couldn’t read his handwriting.
“Okay, there’s about two years of sessions. They haven’t changed much. She’s still preoccupied with sexual abuse, Bill hurting children, or Denise kicking him out. And Chloe’s still playing with stuffed animals.”
“She sounds too old for that.”
“Hmmm. I don’t know. At some point, Leavitt wrote Chloe stated the flashbacks had been ‘dissipating.’ I remember because it was quite a mouthful for a seven year old. I think that’s what she was at the time.”
Bea laughed. “Leavitt again. Why does she keep on laying her conclusions on Chloe? Does she really think a reader wouldn’t be able to tell the difference between her thoughts and Chloe’s?”
“Could have been Denise telling Leavitt that Chloe said it.”
“I think you’re right.”
“Leavitt also wrote that Chloe hates men, but is angry because she doesn’t have a father.”
“That’s a repeat too.”
“Do you want to hear about pictures Chloe drew?”
“Do I? I suppose I should know what to expect if the Commonwealth calls an expert to testify to their relevance? Shoot.”
“One picture was of daddy scratching Chloe. Another was of Daddy putting his penis in Chloe’s mouth and Chloe saying ‘Oh, oh my, I don’t like it.’ And a few others. Leavitt wrote they had an avoidant quality.’”
“Aha!” Bea exclaimed. “I’ll bet Leavitt’s equating ‘avoidant’ with ‘denial.’”
“What do you make of this, Bea?”
“What?”
“During one session, Leavitt drew three circles for faces containing only eyes and asked Chloe to tell her what she saw.”
“Leavitt probably expected a classic response.”
“Huh?”
“A classic response from Chloe regarding oral penetration. Something like, ‘I don’t have a mouth. Now my daddy can’t put his penis in it.’”
“Anything else?”
“Chloe remarked she was worried her father would hurt or kill himself, even though she sometimes felt like punching him in his face.”
The remark prompted Bea to think Chloe had never described what it felt like to be punched.
“That’s what’s missing!”
“What?”
“For a kid who can articulate her feelings so well, it’s curious she never talks about the pain she had to have felt if Bill sexually abused her, or punched her for that matter. That’s what’s missing!”
Peter’s mouth was open when they heard the deck door close. Bea looked up at the closed-circuit screen over her desk.
Please, Dear, Don’t Ask
It was Mick, the postman. Bea got special service because she gave special presents at Christmas time. Mail requiring a signature was delivered to the tug if Mick was on duty.
There was a pit in her stomach. Two letters from the Supreme Judicial Court. They were thin.
She had been notified, within days of filing the petitions for rehearing in the Appeals Court, that the panels had refused to grant rehearing. Yet, believing the higher the court, the higher the quality of judge, she had held out hope. Surely the SJC would see the injustice and reverse the panels’ decisions.
But had the SJC reversed two 3-person appellate panels, the envelopes would’ve been thicker: the SJC would have given their Appeals Court brethren the courtesy of explaining the rationale for reversing them.
“Peter, let’s take a break,” she said. “I have a terrible feeling a cloud just passed overhead.”
“What came, Bea?”
“Two decisions from the SJC.”
“Why don’t you open them?”
“I’m afraid to.”
“Afraid?”
“Yes, they’re thin. They must have denied further appellate review.”
“Well, you won’t know unless you open them.”
She handed him the mail. “Here, you open them.” She walked to the galley and yelled in from there.
“Do you want anything?”
“No, thanks.”
She poured some sherry over ice and grimly drank it.
“Bea, you okay?”
“I’m fine. Don’t worry, I’m fine.” She topped off her glass and walked back to the salon, thinking she should have mixed something stronger.
She curled up in a corner of the sofa. “Well.”
“You were right. Not good. They denied both FAR applications.”
“There is no justice.”
Now it was Peter’s turn to look grim. The law had been his dream. He didn’t need to hear Bea’s cynicism.
“Peter, look at me. I’m a wreck. This business is too adversarial. And it doesn’t serve justice.”
Peter just looked down.
“Our system is the best in the world,” Hugh said when he arrived on the tug.
“But it’s going down the tubes in Massachusetts.”
“We do what we can, Bea.”
“Hugh, the monthly conference where you guys allegedly review the FAR apps must be a charade. I don’t believe those applications were read. Otherwise review would’ve been granted.”
“We each have two clerks, which is why you must file eighteen copies of everything. They are read, I can assure you.”
“Unbelievable,” she said as she paced the salon. “Then who voted against us?”
“Bea, you know I wouldn’t and must not tell you that.”
“Just tell my why the vote was No.”
“Please, Dear, don’t ask me to.” He’d never pled before.
She turned and went to the stateroom. She hadn’t finished discussing Leavitt’s notes with Peter.
Tomorrow, she thought.
I had better get Bill off in the criminal case, or else he’s going to prison for a long, long time. There’s little likelihood the Appeals Court or the Supreme Judicial Court would reverse a guilty verdict.
School for Sexual Abuse
Peter continued where they’d left off. “They finally sent her to a school to learn about sexual abuse.”
“Where’d you see that?”
Peter went over, took the notes from her, and read aloud. “‘Chloe began attending a 10-week group for girls who have been sexually abused.’ So she was exposed, it seems, to all sorts of stories by the other kids about sexual abuse.” He handed his notes to her. “Read on, Bea.” He went to the galley to make some fresh coffee. He was as much a coffee-holic as Bea.
She read. Chloe began as a “quieter” member of the group but became more aggressive as time went on. To the fifth meeting, Chloe brought her new diary and a “feelings” book she made for sharing with the group.
Raising her voice, Bea bellowed, “Peter, did Leavitt write about the contents of the book or whether the group was supportive?
“No. She also didn’t give the name of the group, its leader, or whether it was a private or public entity. She was probably afraid you’d manage to get her notes again.
“Boy, I wonder whether the group had to keep progress notes.”
“Be nice if we could get our hands on them,” Peter said.
“Sure would be.”
Silence fell over both of them, as if they each understood they’d never see those notes.
But with his youthful enthusiasm, Peter bounced back quickly. “Did you see where Chloe was uncomfortable because the group was noisy, which reminded her of her father yelling?”
“Yeah,” said Bea. “She complained the noise gave her a headache.”
“I think she knew or at least sensed she wasn’t really a member of the group.”
“The remark is off-center, too,” Bea added. “According to Denise, Bill didn’t yell, Denise did.” Bea lit up. “There’s always the possibility Chloe said that for Leavitt’s consumption, to show she’d adopted at least some of the images from the abuse group.”
“That’s what I meant when I said it was a school of sexual abuse.”
“They must have decided to send her there after her story to Goldblatt fizzled. Aguilar could’ve told them that even before the report issued. Whenever it was, they learned they had a lot of work to do on her to get her ready to testify at the criminal trial.”
Peter handed Bea a freshly-filled mug. “Oh, thank you, Sir. Such great service.” Smelling the fresh aroma and feeling its heat, she cautiously took a sip of her life-saving addictive java.
“Denise’s name has disappeared from the notes, and so has any reference to the DA’s office or to Heather or to any other adult or agency. That’s probably the result of my curiosity at Leavitt’s depo about communications between everyone involved with the case. The less to impeach her with.” A precautionary move.
“This is funny. Look at what Leavitt wrote after she asked Chloe to draw Judge Goldblatt. ‘This is Chloe speaking to the judge, Roseberry is growling grrr! because she hates the judge. Chloe doesn’t like the judge either, she didn’t like the way his hair is.’ Blah-blah-blah. Chloe then scribbled over the picture of the judge.”
The story didn’t tickle Peter’s funny bone. Instead, he asked, “Did you get to the threats, Bea?”
“I did, indeed. Chloe said the first time Bill had threatened her were she to ‘tell’ was after she had gone to that group.”
“They had to prep her, Bea, for her Grand Jury appearance. After the Grand Jury met, her fears increased about her father killing her. She drew a picture of herself at school having problems doing her work. Supposedly she had flashbacks to thoughts of his threat. One drawing was of herself lying in a pool of blood, her mother finding her, and her father watching.”
“Peter, how do you suppose she drew flashbacks?”
“She probably said it to Leavitt.”
“It’s so frustrating,” Bea moaned. “These notes are so inaccurate, let’s read them only to find things to impeach Leavitt with.”
“What we don’t know is who told her what an indictment was, or what it meant to her father.”
“Well, we know they’ve given her one helluva guilt trip!”
“They didn’t stop there,” Peter said.
“Give me a minute to finish reading this and catch up with you.” Bea read, after meeting “her” new lawyer, Fogarty, Chloe was concerned both that her father would run away from the police and they’d shoot and kill him, and that a judge might not believe her. Bea wondered whether Denise had told Chloe that Goldblatt hadn’t believed the child.
That Bill would kill both mother and daughter if Chloe told what he did was a continuing theme in the notes. So were Chloe’s worries and nightmares about him killing her. Sometimes it was too hard for Chloe to talk about it, but she did say, “I’m worried about my mother being killed by my father.”
Subsequently, she “celebrated” that she was with her mother and safe.
On the other hand, she was “frustrated” about not seeing her father after the visits were stopped by Denise and the Center. She called him a “jerk” for refusing to sign a paper for the visitation center.
Denise’s words out of Chloe’s mouth?
“Leavitt wrote that Chloe thinks her father will be happy I’m changing jobs because he doesn’t like me.” Of course, the child would have no way of knowing whether Bill liked Leavitt, except through Denise or Leavitt herself.
At the next-to-last session with Leavitt, Denise signed a release to allow Leavitt to share information with a new therapist, a Dr. Sashahara.
When Bea didn’t see any mention of Chloe’s artwork at school, Bea assumed it was free of genitalia. Otherwise the teachers would have said something when Leavitt contacted them. So Bea concluded Chloe had learned via reinforcement it was only Leavitt, Denise, and the DA’s staff who were interested in sex-speak.
“Okay, I suppose we should begin with Chloe’s first complaint.”
Peter agreed.
“I’m most concerned with the early disclosure, the one to Carol Tracy. The only way to overcome that is to show that Denise talked to the child about rape, and the child’s imagination took over from there.”
Peter said, “I’m more concerned about how you’re going to get around Chloe’s statement that ‘Daddy had a virus in his penis, and it doesn’t taste good.’ Oh, yeah, and the statement that ‘Daddy’s pee pee also doesn’t taste good.’”
“Well, at the divorce trial, she didn’t come out with statements like that. So if she doesn’t say them aloud at the crim trial, they shouldn’t be able to come into evidence. That’s why I brought the fresh-complaint motion... to be sure that only corroborative evidence comes in. If Chloe doesn’t say it, neither can Tracy.
“You were lucky at the divorce trial,” Peter said.
“Damn lucky. Aguilar knew how to question, but he was no prosecutor. And I don’t think he personally prepared the child to testify.”
“He left it up to Leavitt.”
“Sure, but since then, she’s heard the stories of other kids and she’s spoken with Fogarty and Cooke.
How much have they taught her? Did they use Tracy’s report to remind her what she said to Tracy?”
“Probably.”
“And they’re part of the sex-abuse team. They’re pros with this stuff. That’s why this, to use Bill’s term, is scary.”
Peter just rolled his eyes.
Bea lit up and took a few welcome sips of her favorite brew.
Peter wouldn’t let her stop there. “What are you going to do, Bea, about the “yucky” statement in the 51B report?”
“Well, the crazy baseball bat story is in the same report, and that incident couldn’t have happened. So I’m going to try to impeach the entire report, to throw the “yucky” story out with the bat story. I think I have a good shot of doing that.”
“Are you going to call Gidseg as a witness?”
“Sure am. I subpoenaed her. She’s the one who wrote the 51B.”
“Isn’t that risky?”
“Yes, of course, but it proves the child’s imagination was working overtime. The big question is, can it help me prove her imagination was also working when she spoke to Carol Tracy?”
“Would a child of that age know the words penis and vagina?”
“Well, Bill said they had taught the child the real words, and ‘yuck’ and ‘yucky’ were Denise’s words. So the problem becomes, Will Bill’s declaration be credible, or will it come over as self-serving?”
“I can’t answer that for you, Bea. I still haven’t met the guy face-to-face,” Peter said, sounding sympathetic.
“Bottom line, Peter, the one big hope is that the jury will see that Denise is bonkers and could’ve taught the child almost anything. It’s really the only possible explanation for the disclosure to Tracy, that Denise had talked to the child about abuse or rape.”
“Well, I don’t think you should have a problem with Leavitt’s notes if they call her. She keeps on calling him a ‘hurty guy’ or a ‘jerk.’ All those other things Leavitt said Chloe said are with adult words. I don’t think a child who calls her dad a ‘hurty guy’ would have had the vocabulary to say the other stuff.”
“I don’t either. But she’s been exposed to all those sex-abuse stories. She’s had to have learned a lot.”
Bea had needed to hear Peter’s perspective. A perspective from a young male. Young males tended to end up on juries. They didn’t always have jobs, so they didn’t have a work excuse to get out of jury duty. They weren’t burdened with the daycare of young children. And they were reticent about raising their hands in response to the questions posed to them during the jury-selection process. They were ciphers.
Attorneys were left only with the information on the form which the potential jurors had to send in to court, and with little, if any, reason to challenge the seating of a young man.
Peter’s point of view was potentially quite valuable at trial. While Bea would be questioning, he’d watch the jury for their reactions. He fill her in at the breaks.
Look for Part 28 of 41 to appear on-line on Wednesday, September 17th
