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Bea was playing Earth Mother to Bill’s controlled cool exterior when the court officer came in and summoned Bea into Judge Cortland A. Mathers’ lobby. She was surprised. Bill rose to accompany her.
“Counsel only,” the court officer said. Bill sat back down. Bea gave him and Peter an I-don’t-know-what’s-up shrug, grabbed her briefcase, and followed the court officer into the judge’s lobby. There was barely enough space for her, ADA Laura Jane Cooke, the clerk, the judge, one court reporter, and one stenographic machine to fit.
She had expected to see Mathers with some sort of sling. A week earlier a court officer had told Bea and Bill that Mathers had broken his shoulder while on vacation at the Cape and that maybe Bill wouldn’t pull him for a trial judge. Obviously, Mathers had dragged himself in for this special occasion. He was known to insist on hearing all the rape cases in this court. They were his favorite.
She was surprised when the judge began with hearing pending motions: eight by Cooke and four by Bea. Given that hearings are generally heard in a public courtroom, Mathers’ obvious intention to deny Bill his right to hear the arguments and the judge’s decisions caused Bea a few more-than-anxious tingles.
In each motion, Cooke wanted something special: to allow Denise to be in the courtroom during Chloe’s testimony, to ask leading questions of Chloe, to ban the public from the trial, to set up the courtroom so that it’d be impossible for Chloe to see her father or for him to look at her while she testified, to prevent Bill from offering evidence of Denise’s rape story and her subsequent obsession on it, to review Bea’s opening statement, to preclude Bill’s experts from testifying, and to videotape the direct and cross-examination of the experts if they did testify.
Outrageous, all of them. Cooke also wanted to add one of Denise’s sisters as a witness, but the Commonwealth still hadn’t given Bea a complete list of its witnesses.
With hackles silent but raised, Bea handed her oppositions to both Cooke and Mathers. “I received those eight or nine motions from the ADA on Friday night after five o’clock and these are my responses.” It had taken her the whole weekend to research and write them. She had filed her own motions four and a half months earlier, in advance of a previously scheduled trial date.
“Briefly, Judge, if I could just give the Court some factual background,” Cooke began, and then continued with her explanation to the judge that the victim, who was then nine years old, had disclosed on two occasions—when she was around five and a half—that she was raped by her father when she was between the ages of almost two and five years old.
Mathers showed interest in the date of the secret.
“It was perhaps around July 24th or thereabouts,” Cooke replied. “The two witnesses the Commonwealth will be offering as fresh complaint are Carol Tracy, who is literally the first person the child told, and—”
“That’s the psychiatrist or psychologist?” Mathers asked.
“No, she’s not a psychologist, Judge. She works with the rape-crisis center. She has a bachelor’s background and now has a master’s. She was working on her master’s at that time,” Cooke asserted without a blink.
This was information Bill had been deprived of by not allowing Bea to depose Tracy. Dick Fast had reported the very recent master’s degree, but he had no information revealing that she was attending school in 1989. Bea’s stomach muscles tightened. It was a wonder she didn’t have ulcers.
“She’s a mandated reporter?” Mathers asked.
“Mandated reporter.” Cooke confirmed. “Then the father was removed from the home, and mother got a restraining order. When DSS interviewed the child on August 3rd, the child made additional disclosures.”
“And it’s just those two dates that you intend to offer?”
“Fresh complaint,” Cooke said elliptically. “As to the defendant’s motion to preclude fresh complaint, I would say it is somewhat premature. We haven’t heard the child testify. We anticipate she’ll relate what she has related always to everyone. But I think this motion is a little bit premature because it’s asking for the testimony of the fresh-complaint witness to be limited to what the child testifies.”
Sure, Bea thought, what anyone else adds to the alleged details is unimportant.
“I probably have no problem with that,” Mathers said, “but we need to see what the child says. Beyond that, the case law is clear: you can’t offer evidence as substantive proof through a fresh-complaint witness.”
Damn right!
“But I don’t see that as being something you can decide at this point in time,” Cooke added.
Why not? Your Honor,” Bea said, “May I give my version of the facts, which are skewed from the Commonwealth’s version of the facts?”
“Yes.”
Bea emphasized that Denise had obsessed for six years on Bill having raped her, and as a result of that obsession, Denise had brought Chloe to the rape-crisis center. To show that Tracy was not the first person with whom the child spoke about the abuse—that is, she was not the fresh-complaint witness—Bea said, “The very first question Carol Tracy asked the child was ‘Do you know why you are here?’ The child responded ‘Yes.’ There had to have been a conversation between the child—”
Now Mathers interrupted. “Ms. Archibald, I’m not the jury in this case. I don’t want you to argue your case to me.”
Damn him coming on this way. She was angry also because he was so wrong. He was the one to decide the issue of whether the complaint was fresh.
“I haven’t heard anything I can consider relevant to the motion before me.”
Damn him. Cooke just said Tracy and some DSS person were the fresh-complaint witnesses. They weren’t. If the incidents did happen, then Denise had to be the fresh-complaint witness. If they didn’t, Denise gaslighted the child.
“The facts are not quite as reiterated by the Commonwealth.”
“How do you know what the Commonwealth is going to present here?”
“I have all the work by Carol Tracy and Rachel Gidseg and all the other social workers. It’s written and I’ve read it all and have deposed many of them.”
“Are you saying that what the district attorney has alleged will be introduced in evidence will not be introduced in evidence?”
“No, I’m saying what they’ll try to introduce into evidence and what they are alleging to you now is not true.”
“Well, what in the world has that got to do with this motion?” Mathers said in a condescending tone.
What the shit is this? Bea thought. Drop it. You’ve got a dozen motions to go. Better to have him reserve judgment and not anger him right off the bat. “Fine,” she said, “I filed it ahead of time simply to have it here.”
“I’ll reserve judgment on that motion.” Mathers said. “I suggest that when you have an objection, let me hear about it.”
“I think the appropriate time to do that motion is after Chloe testifies,” Bea said. “Thank you very much, Your Honor.”
“Sequester witnesses? Anybody have a problem with that?” he asked.
“I have one exception, Judge, that I filed,” Cooke said.
“I’ll deal with that. But generally I will sequester the witnesses.
“Pretrial instructions to the jury. I will give essentially probably what you’ve got here, Ms. Archibald. If there’s anything omitted that you think should be added, tell me when I get done.”
“Thank you, Your Honor.”
Mathers then told counsel he’d ask the prospective jurors the questions judges are required to ask. The primary one being one Bea had requested: Have you or any member of your family or relative been the victim of a sexual assault or rape or been accused as the perpetrator of a sexual assault or rape?
He omitted the word “friend” from my instruction. Well, two-thirds of a loaf is better than none. Bea had used the cluster of words—you, family or relative, and friend. If the judge asked if the prospective jurors were abused, they might hesitate, out of embarrassment, to raise their hands. By asking if anyone in the cluster was abused, they’d be more likely to raise their hands and say someone else was abused. The personal abuse would be private until they got to the bench.
He refused to ask the remaining questions Bea had requested, but said he would save Bill’s rights. That was standard fare: if Bill were convicted, he could appeal Mathers’ refusal while sitting in jail.
“Do you have any further motions, Ms. Archibald?” Mathers asked.
“Yes, I do.” She had motions asking the court not to allow Leavitt and Detective Cooper to testify as corroborative witnesses. She also wanted the Commonwealth to identify the witnesses it was calling.
“I’ll defer any action on those motions until I hear this case.”
You bastard. It would be nice to know who the Commonwealth’s witnesses are going to be before I open.
Tying
Bea’s Hands and Mouth
“There’s also the motion on the mother,” Bea said to the judge. “You’ve dealt with it once, but I’m renewing it now, at time of trial, which is what you originally suggested. Ms. Cooke also made a motion on Friday that deals with the same issue: whether I can introduce evidence as to Mother’s story of the rape, because our theory is that she unduly influenced the child. Evidence of proof that she spoke to the child prior to the child speaking to Carol Tracy is in the first question I mentioned earlier: ‘Do you know why you’re here?’ We want to explore that and—”
“I’m not going to try a rape case on this mother, Ms. Archibald. The issue here is, Did he or did he not digitally or orally rape this child?”
“And the only way to get a proper answer to that, Your Honor, is to bring in the evidence of the mother’s obsession and her undue influence on the child. The mother had access to the child for six years. She said, If I can’t get him for rape, I will get him through the child. That is our theory.”
“Who did she say that to? You said she said that. Who did she say that to?” he asked with confrontation dripping from his voice.
“I think to herself, Your Honor. It’s clear that if a woman obsesses about the rape for six years—”
“My ruling at this time, Ms. Archibald, is there is to be offered in evidence not one whit of anything having to do with a rape of the mother until I see some reason to change that ruling. So, going into this trial, I’m not going to allow a peep about any claims the mother has about being raped by this guy.” Listen to that: “this guy.” Listen to that condescension: Bill is presumed guilty! So much for “innocent until proven guilty.”
“Your Honor, may I ask, then, for clarification. This is quite important. What I hear you say is if it comes out that the child was brought to the rape-crisis center—”
“I’m not going to get myself cornered in this ruling. My ruling at this time is, that evidence is excluded. I’m not suggesting you may not renew your request as the trial proceeds.”
“What about during the opening?”
“Don’t say a word about it on opening.” Mathers’ face spoke an ominous message.
“But that’s the whole theory of the case, Your Honor.” Bea hoped her voice didn’t sound whiny.
“Well, it may be your theory of the case. It’s not my theory of the case.”
Damn, it’s Bill’s theory that counts, not the court’s theory. The court cannot possibly have an independent theory of the case after a few minutes. Courts are supposed to gain an understanding of the case as they hear the evidence.
“There are special—”
“I don’t want to hear anything about the rape of the mother in this case in an opening statement and I don’t want any questions bearing on that issue in this trial unless and until something occurs that would give me pause to reconsider the ruling.”
“But Your Honor, may I please say for the record, the defendant has the right to demonstrate special circumstances are here. I don’t think you can deny there are special circumstances. Because under the Bohannon Rule—”
“What are the special circumstances?”
“The special circumstances are that the mother obsessed for six years she was raped by this man.”
“Why do you say she obsesses about that?”
“Well, I’ve heard twice from her own lips, once at deposition and once in the divorce trial, the story of this rape, and there was no rape. Even Judge Goldblatt in the divorce court made the finding this was an obsession.”
“Did she say there was no rape?”
“She says there was absolutely rape.”
“Who says there was no rape?”
“Everybody else who heard it, including the judge downstairs. Actually everyone just called it ‘obsession.’ If you heard the story you would know—”
“You feel she should have gotten over it by then?”
“Yes. That’s why it’s important for the jury to hear the story. If you hear it, you’ll know this is evidence of a sick woman—a really sick woman. Let me just say this for the record, please, Your Honor. The jury has the right to determine whether Denise Abernathy is obsessed and if it finds she is obsessed, it has the right to decide whether her obsession on the so-called rape was enough to make her bring undue influence upon the child to get even with him.”
“Did she ever seek an indictment for rape?”
“She certainly came into this court and got a restraining order alleging he raped her. I have the RO if you’d like to see it.”
“No. Did she ever seek an indictment? Did she go to the police?”
“We do not know.”
“We do not know?” Mathers asked, perplexed.
“That’s right.”
“I think we know,” Mathers said.
Bea thought, That’s curious. How?
“Well, we know he wasn’t indicted, but we don’t know whether she tried. I have no idea. I do know she said, at trial and at deposition, that she became an alcoholic. She became depressed. She never went to a psychiatrist for an official diagnosis, but that was her own description of her behavior. She lost all interest in life. She didn’t enjoy anything, going outside, or playing with the child. She just became totally uninterested in life. We’ve got an extensive story that her own attorney brought out on direct in the divorce trial. And under the special circumstances of this, she had five years to bring it to the child. We know the child has said one statement when she was almost seven, during the divorce trial. We know that because, downstairs, in the judge’s lobby with a stenographer present, the child, when asked when this all occurred, said it happened six years ago, which put her in diapers and in the crib. The question is whether she could remember, in fact, being raped when she was one year old. So there is even a question as to supposedly when all this began. According to the child it happened when she was one year old. Now she’s nine. She’s been trained to testify. We have that in writing as well. She was prepared to testify in court and—”
“You are arguing to me,” Mathers commented.
Of course, Bea thought, that’s what attorneys do at motion hearings: argue the law, argue the facts. But rather than be facetious, Bea said, “I know, because I feel it’s so important that I be able to give the jury a theme of this case in opening, Your Honor. Otherwise, why are we here?”
“We’re here because your client is falsely accused. I presume that’s your position.”
At least he caught that. “Yes, but we’ve got to be able to show it. And if you’re going to tie our hands so that we can’t show why we believe—”
“I’m going to tie your hands to the extent that you’re not going to try another case within this case.”
“We’re not trying— Your Honor, my client has to be able to demonstrate the bias of the mother. We know the child was very young when she made this alleged disclosure at the age of five. And we have to show the mother had access to the child and had motive, a plan, a design, a state of mind, an intent to bias this child, to unduly influence this child. And it was a result of the motive, plan, design, state of mind, vulnerability—everything that is included in the rules—that she then taught the child that the child was raped. You don’t bring a five year old child generally to a rape-crisis center. I’d say that would qualify under the Bohannon Rule as special circumstances.
“The defendant is entitled to show evidence of bias. In this case, the child herself has come to believe these allegations are true. She’s been told by everyone who has spoken to her that her daddy did this and her daddy did that. We believe that the child has absolutely no independent memory of these acts.
“If you tie our hands, he will absolutely not have a fair trial. And I’ve got to be able to present to the jury on the opening what I expect them to hear. If you’re telling me I can’t tell them they’ll hear anything, then you’re essentially putting a gag order on me and then I’d have to move for mistrial.”
“There’s also the motion on the mother,” Bea said to the judge. “You’ve dealt with it once, but I’m renewing it now, at time of trial, which is what you originally suggested. Ms. Cooke also made a motion on Friday that deals with the same issue: whether I can introduce evidence as to Mother’s story of the rape, because our theory is that she unduly influenced the child. Evidence of proof that she spoke to the child prior to the child speaking to Carol Tracy is in the first question I mentioned earlier: ‘Do you know why you’re here?’ We want to explore that and—”
“I’m not going to try a rape case on this mother, Ms. Archibald. The issue here is, Did he or did he not digitally or orally rape this child?”
“And the only way to get a proper answer to that, Your Honor, is to bring in the evidence of the mother’s obsession and her undue influence on the child. The mother had access to the child for six years. She said, If I can’t get him for rape, I will get him through the child. That is our theory.”
“Who did she say that to? You said she said that. Who did she say that to?” he asked with confrontation dripping from his voice.
“I think to herself, Your Honor. It’s clear that if a woman obsesses about the rape for six years—”
“My ruling at this time, Ms. Archibald, is there is to be offered in evidence not one whit of anything having to do with a rape of the mother until I see some reason to change that ruling. So, going into this trial, I’m not going to allow a peep about any claims the mother has about being raped by this guy.” Listen to that: “this guy.” Listen to that condescension: Bill is presumed guilty! So much for “innocent until proven guilty.”
“Your Honor, may I ask, then, for clarification. This is quite important. What I hear you say is if it comes out that the child was brought to the rape-crisis center—”
“I’m not going to get myself cornered in this ruling. My ruling at this time is, that evidence is excluded. I’m not suggesting you may not renew your request as the trial proceeds.”
“What about during the opening?”
“Don’t say a word about it on opening.” Mathers’ face spoke an ominous message.
“But that’s the whole theory of the case, Your Honor.” Bea hoped her voice didn’t sound whiny.
“Well, it may be your theory of the case. It’s not my theory of the case.”
Damn, it’s Bill’s theory that counts, not the court’s theory. The court cannot possibly have an independent theory of the case after a few minutes. Courts are supposed to gain an understanding of the case as they hear the evidence.
“There are special—”
“I don’t want to hear anything about the rape of the mother in this case in an opening statement and I don’t want any questions bearing on that issue in this trial unless and until something occurs that would give me pause to reconsider the ruling.”
“But Your Honor, may I please say for the record, the defendant has the right to demonstrate special circumstances are here. I don’t think you can deny there are special circumstances. Because under the Bohannon Rule—”
“What are the special circumstances?”
“The special circumstances are that the mother obsessed for six years she was raped by this man.”
“Why do you say she obsesses about that?”
“Well, I’ve heard twice from her own lips, once at deposition and once in the divorce trial, the story of this rape, and there was no rape. Even Judge Goldblatt in the divorce court made the finding this was an obsession.”
“Did she say there was no rape?”
“She says there was absolutely rape.”
“Who says there was no rape?”
“Everybody else who heard it, including the judge downstairs. Actually everyone just called it ‘obsession.’ If you heard the story you would know—”
“You feel she should have gotten over it by then?”
“Yes. That’s why it’s important for the jury to hear the story. If you hear it, you’ll know this is evidence of a sick woman—a really sick woman. Let me just say this for the record, please, Your Honor. The jury has the right to determine whether Denise Abernathy is obsessed and if it finds she is obsessed, it has the right to decide whether her obsession on the so-called rape was enough to make her bring undue influence upon the child to get even with him.”
“Did she ever seek an indictment for rape?”
“She certainly came into this court and got a restraining order alleging he raped her. I have the RO if you’d like to see it.”
“No. Did she ever seek an indictment? Did she go to the police?”
“We do not know.”
“We do not know?” Mathers asked, perplexed.
“That’s right.”
“I think we know,” Mathers said.
Bea thought, That’s curious. How?
“Well, we know he wasn’t indicted, but we don’t know whether she tried. I have no idea. I do know she said, at trial and at deposition, that she became an alcoholic. She became depressed. She never went to a psychiatrist for an official diagnosis, but that was her own description of her behavior. She lost all interest in life. She didn’t enjoy anything, going outside, or playing with the child. She just became totally uninterested in life. We’ve got an extensive story that her own attorney brought out on direct in the divorce trial. And under the special circumstances of this, she had five years to bring it to the child. We know the child has said one statement when she was almost seven, during the divorce trial. We know that because, downstairs, in the judge’s lobby with a stenographer present, the child, when asked when this all occurred, said it happened six years ago, which put her in diapers and in the crib. The question is whether she could remember, in fact, being raped when she was one year old. So there is even a question as to supposedly when all this began. According to the child it happened when she was one year old. Now she’s nine. She’s been trained to testify. We have that in writing as well. She was prepared to testify in court and—”
“You are arguing to me,” Mathers commented.
Of course, Bea thought, that’s what attorneys do at motion hearings: argue the law, argue the facts. But rather than be facetious, Bea said, “I know, because I feel it’s so important that I be able to give the jury a theme of this case in opening, Your Honor. Otherwise, why are we here?”
“We’re here because your client is falsely accused. I presume that’s your position.”
At least he caught that. “Yes, but we’ve got to be able to show it. And if you’re going to tie our hands so that we can’t show why we believe—”
“I’m going to tie your hands to the extent that you’re not going to try another case within this case.”
“We’re not trying— Your Honor, my client has to be able to demonstrate the bias of the mother. We know the child was very young when she made this alleged disclosure at the age of five. And we have to show the mother had access to the child and had motive, a plan, a design, a state of mind, an intent to bias this child, to unduly influence this child. And it was a result of the motive, plan, design, state of mind, vulnerability—everything that is included in the rules—that she then taught the child that the child was raped. You don’t bring a five year old child generally to a rape-crisis center. I’d say that would qualify under the Bohannon Rule as special circumstances.
“The defendant is entitled to show evidence of bias. In this case, the child herself has come to believe these allegations are true. She’s been told by everyone who has spoken to her that her daddy did this and her daddy did that. We believe that the child has absolutely no independent memory of these acts.
“If you tie our hands, he will absolutely not have a fair trial. And I’ve got to be able to present to the jury on the opening what I expect them to hear. If you’re telling me I can’t tell them they’ll hear anything, then you’re essentially putting a gag order on me and then I’d have to move for mistrial.”
Cooke and the Power of the Crown
“What do you say about this?” Mathers asked Cooke, his voice filled with consideration for her.
“Judge, my understanding is that there have been numerous depositions and a master’s hearing, but there’s been no evidence by anyone that this mother coached this child,” Cooke responded in a we’re-on-the-same-team voice. “The child, in fact, denies the mother ever told her anything.” This is a first! Bea had seen no document declaring that the child denied Denise telling her anything.
Cooke continued. “The mother denies it. What she says is the child said, ‘I have a secret and Daddy won’t let me tell.’ There was a discussion in the father’s presence in which the child says something about a hitting game, but would not tell the mother.
“The mother was involved with a rape-crisis counselor and said ‘Maybe if I bring her to a professional, I can get to the bottom of what the problem is here.’ In fact, according to the defendant’s testimony at the probate hearing, the mother had really nothing to do with this child, and he was really the sole caretaker of this child. But in any event, the fact she was raped— I’m not even certain this child knows the mother was raped.
“The mother certainly has never made any statements to the effect that if she can’t prosecute—because she probably could prosecute him—but she’s never made these statements that if she can’t get him for a rape of her, she would then have her child go through this. There just is no basis for it in this case.
“I think to have defense counsel go into that area is absolutely not within the realm of bias. Bias may be that she doesn’t like the man, but there’s got to be some nexus between the child’s allegation and testimony and this woman’s bias.
“This mother will testify—only briefly by the Commonwealth—just to simply let the jury know when they lived at a particular home—because the child being at an age where she can’t really quite frankly tell you whether a year is six years or ten years. This child can’t say anything other than I remember it was happening when we lived in this house on Howes Way. And she can describe it as occurring in particular areas in the house, but she can’t say ‘it was when I was two’ or ‘It was when I was three’ or ‘It was when I was four.’ She can say it was happening until she told and it stopped.
“So, I would say, unless counsel can demonstrate where the nexus is, it is not an area that should be gone into. And I have not seen any testimony or evidence that would in any way ever connect this mother’s alleged abuse to this child.”
Bea jumped in after Cooke’s nonstop monologue, to address the nexus between Chloe’s statement and Denise’s obsession. But she got into nothing but an argument with the judge.
“But it still doesn’t have anything to do with the mother’s alleged rape,” Mathers said.
“It does,” Bea said with determination.
“It’s got nothing to do with the mother’s rape. It’s got nothing to do with the mother’s treatment,” Mathers sternly added.
“Well, then I move for a mistrial, Your Honor.”
“Your motion is denied. The defendant’s rights are saved.”
“What do you say about this?” Mathers asked Cooke, his voice filled with consideration for her.
“Judge, my understanding is that there have been numerous depositions and a master’s hearing, but there’s been no evidence by anyone that this mother coached this child,” Cooke responded in a we’re-on-the-same-team voice. “The child, in fact, denies the mother ever told her anything.” This is a first! Bea had seen no document declaring that the child denied Denise telling her anything.
Cooke continued. “The mother denies it. What she says is the child said, ‘I have a secret and Daddy won’t let me tell.’ There was a discussion in the father’s presence in which the child says something about a hitting game, but would not tell the mother.
“The mother was involved with a rape-crisis counselor and said ‘Maybe if I bring her to a professional, I can get to the bottom of what the problem is here.’ In fact, according to the defendant’s testimony at the probate hearing, the mother had really nothing to do with this child, and he was really the sole caretaker of this child. But in any event, the fact she was raped— I’m not even certain this child knows the mother was raped.
“The mother certainly has never made any statements to the effect that if she can’t prosecute—because she probably could prosecute him—but she’s never made these statements that if she can’t get him for a rape of her, she would then have her child go through this. There just is no basis for it in this case.
“I think to have defense counsel go into that area is absolutely not within the realm of bias. Bias may be that she doesn’t like the man, but there’s got to be some nexus between the child’s allegation and testimony and this woman’s bias.
“This mother will testify—only briefly by the Commonwealth—just to simply let the jury know when they lived at a particular home—because the child being at an age where she can’t really quite frankly tell you whether a year is six years or ten years. This child can’t say anything other than I remember it was happening when we lived in this house on Howes Way. And she can describe it as occurring in particular areas in the house, but she can’t say ‘it was when I was two’ or ‘It was when I was three’ or ‘It was when I was four.’ She can say it was happening until she told and it stopped.
“So, I would say, unless counsel can demonstrate where the nexus is, it is not an area that should be gone into. And I have not seen any testimony or evidence that would in any way ever connect this mother’s alleged abuse to this child.”
Bea jumped in after Cooke’s nonstop monologue, to address the nexus between Chloe’s statement and Denise’s obsession. But she got into nothing but an argument with the judge.
“But it still doesn’t have anything to do with the mother’s alleged rape,” Mathers said.
“It does,” Bea said with determination.
“It’s got nothing to do with the mother’s rape. It’s got nothing to do with the mother’s treatment,” Mathers sternly added.
“Well, then I move for a mistrial, Your Honor.”
“Your motion is denied. The defendant’s rights are saved.”
Martyrdom
or Not
Still in the small, overcrowded chamber, Bea said, “I cannot go forward, Your Honor. I’m willing to be put in contempt. I cannot go forward without putting in evidence of the wife’s bias. If I have to go to jail, I will. I am not going to go forward.”
“I’m going to impanel this case, Ms. Archibald. You’re here. You have an obligation to defend this—”
“I cannot do that. You’re absolutely hamstringing me. I cannot. It’s simply impossible to go forward if I can’t show all the facts in this case and how they led up to an accusation being made six years later. Then I cannot go forward. There is no way this man can get a fair trial and I have to most strenuously object. And if a mistrial on that basis won’t do it, then I ask Your Honor to recuse yourself.”
“That motion is denied. The defendant’s rights are saved.”
“I believe you’ve shown your prejudice and you should recuse yourself. There’s no way this man is going to get a fair trial under your interpretation. I think you’re making decisions for the jury, for things that really belong as ppof their role. You’re usurping their function.
“This defendant has a right to show evidence of bias. He has a right to demonstrate that these are false allegations. He has a right to delve as much as possible and we know exactly what the statements are. This is not a fishing expedition. We’ve been through this in the divorce court. Even since then, we’ve gotten full copies of notes that weren’t made available to us before then, and we know there are alternative reasons for this child saying certain things at certain times.
“If I cannot go into that evidence, this man will not get a fair trial. I believe strongly and I absolutely cannot go forward in trial. If you’re going to put a gag order and hamstring me and put me in handcuffs on that issue, I absolutely can’t.”
“Why don’t I take up the Commonwealth’s motions?” the court said, ignoring Bea’s protestations. “Motion for a special courtroom setup. Are you asking that the child be seated in front of the witness box?”
“I am, Judge,” Cooke said. “I would ask that she be able to be seated in a chair next to the stenographer’s table; that the attorneys, myself and Attorney Archibald, be seated when we question the child; that the defendant and counsel sit at the table to the right of the prosecutor’s table behind. Also, the child would like to have a stuffed animal with her if she could.”
Bea said, “Your Honor, I am not going to have the child only face the jury,” Bea was addressing the seating arrangement as described in the Commonwealth’s motion. “In order for me to ask questions, I’d have to ask them to the back of her head and frankly I think that’s a very frivolous motion on the part of the Commonwealth.
“I have no problem with the child sitting during her testimony. I have no problem with the child having a table in front of her during her testimony. I have no problem with her having a security blanket or a teddy bear or Roseberry or any kind of security object. I have no problem with those things.
“You do have to remember, though, the child is not four or five. She is a nine year old and she is about to learn long division. So although we are dealing with a younger child, we’re not dealing with an infant or a toddler. I am not going to have to question her speaking to the back of her head. I want to see her face. I want to see her eyes.”
“I will see to it that you do not have to question her talking to the back of her head.”
“Ms. Cooke also put in her motion that she wants the defendant to sit way in the back— The whole thing is stacked to guarantee this man has absolutely no fair trial rights at all. Your Honor, I’m serious. I’m willing to go to jail in standing for the proposition that I am absolutely not going forward today if I cannot bring that evidence. It’s as simple as that. You can put me in jail and take my license. That’s it. I’ll write about it and put it on a talk show when I get out of jail. But I am not going forward without being able to do it. I can’t be any stronger than that, Your Honor.
“There is no way I am going forward on this case today without being able to get into the mother. The rest of these motions amount to nothing because I’m not going forward.” Through all that, Bea had not once raised her voice.
Nor did Mathers. In fact, he said nothing.
“Judge,” Cooke added, “my proposal is to simply use the same setup I’ve used in this courtroom before. Counsel doesn’t have to sit with their back—a chair can be put sideways so everybody is right there.”
Bea’s response was immediate. “I want to be able to see the child. I want the child to be able to see the defendant. I don’t want the mother in the room when the child is testifying. The idea the child needs safety from the father in the courtroom is absurd. This man is in the medical profession. This is absurd. This is the most manipulating— It is making a sham of the system, some of the Commonwealth’s requests in this motion. I simply repeat, I am not going forward without being able to produce evidence of the mother. I don’t know whether this is a waste of court resources of time and all our time in hearing the rest of these motions at this time. I suppose we can resolve—”
“There’s not much doubt that a lot of this time is a waste of court resources,” the judge said.
“Yes, I’m not going forward. You can do anything you want to me, Your Honor. I’m not going forward.” In this small chamber, Bea was acutely aware she had to restrain both her normally deep, resonant voice and her emotion, at least the outward vestiges of them. Inside she was boiling, but her words were not mincing. Even were they said quietly, they were, she was sure, having a memorable impact.
“All right. We’ll see where you get off this train, Ms. Archibald.” Mathers remained calm and totally in control. Bea suspected he was accustomed to inner rage. She surely could not have been the first lawyer to challenge him. She was sure his villainous reputation had been well-earned. And given his flagrance, Mathers was, in fact, probably relishing every minute of her impotence.
“I believe I’m already on the train to the end and that’s fine. I’m willing to risk it.”
Mathers ignored her comment. “Motion for closure of the courtroom during testimony. Do you object to that?”
“Yes. It should be a public trial,” Bea said. Shit, Cooke wants a secret kangaroo court.
“I will allow it to be public.”
Listen to that presumptuous language, Bea thought. He will “allow” it to be public! He has no basis for closing it.
Part 29 of 41 is scheduled to post on Thursday, September 18th
Still in the small, overcrowded chamber, Bea said, “I cannot go forward, Your Honor. I’m willing to be put in contempt. I cannot go forward without putting in evidence of the wife’s bias. If I have to go to jail, I will. I am not going to go forward.”
“I’m going to impanel this case, Ms. Archibald. You’re here. You have an obligation to defend this—”
“I cannot do that. You’re absolutely hamstringing me. I cannot. It’s simply impossible to go forward if I can’t show all the facts in this case and how they led up to an accusation being made six years later. Then I cannot go forward. There is no way this man can get a fair trial and I have to most strenuously object. And if a mistrial on that basis won’t do it, then I ask Your Honor to recuse yourself.”
“That motion is denied. The defendant’s rights are saved.”
“I believe you’ve shown your prejudice and you should recuse yourself. There’s no way this man is going to get a fair trial under your interpretation. I think you’re making decisions for the jury, for things that really belong as ppof their role. You’re usurping their function.
“This defendant has a right to show evidence of bias. He has a right to demonstrate that these are false allegations. He has a right to delve as much as possible and we know exactly what the statements are. This is not a fishing expedition. We’ve been through this in the divorce court. Even since then, we’ve gotten full copies of notes that weren’t made available to us before then, and we know there are alternative reasons for this child saying certain things at certain times.
“If I cannot go into that evidence, this man will not get a fair trial. I believe strongly and I absolutely cannot go forward in trial. If you’re going to put a gag order and hamstring me and put me in handcuffs on that issue, I absolutely can’t.”
“Why don’t I take up the Commonwealth’s motions?” the court said, ignoring Bea’s protestations. “Motion for a special courtroom setup. Are you asking that the child be seated in front of the witness box?”
“I am, Judge,” Cooke said. “I would ask that she be able to be seated in a chair next to the stenographer’s table; that the attorneys, myself and Attorney Archibald, be seated when we question the child; that the defendant and counsel sit at the table to the right of the prosecutor’s table behind. Also, the child would like to have a stuffed animal with her if she could.”
Bea said, “Your Honor, I am not going to have the child only face the jury,” Bea was addressing the seating arrangement as described in the Commonwealth’s motion. “In order for me to ask questions, I’d have to ask them to the back of her head and frankly I think that’s a very frivolous motion on the part of the Commonwealth.
“I have no problem with the child sitting during her testimony. I have no problem with the child having a table in front of her during her testimony. I have no problem with her having a security blanket or a teddy bear or Roseberry or any kind of security object. I have no problem with those things.
“You do have to remember, though, the child is not four or five. She is a nine year old and she is about to learn long division. So although we are dealing with a younger child, we’re not dealing with an infant or a toddler. I am not going to have to question her speaking to the back of her head. I want to see her face. I want to see her eyes.”
“I will see to it that you do not have to question her talking to the back of her head.”
“Ms. Cooke also put in her motion that she wants the defendant to sit way in the back— The whole thing is stacked to guarantee this man has absolutely no fair trial rights at all. Your Honor, I’m serious. I’m willing to go to jail in standing for the proposition that I am absolutely not going forward today if I cannot bring that evidence. It’s as simple as that. You can put me in jail and take my license. That’s it. I’ll write about it and put it on a talk show when I get out of jail. But I am not going forward without being able to do it. I can’t be any stronger than that, Your Honor.
“There is no way I am going forward on this case today without being able to get into the mother. The rest of these motions amount to nothing because I’m not going forward.” Through all that, Bea had not once raised her voice.
Nor did Mathers. In fact, he said nothing.
“Judge,” Cooke added, “my proposal is to simply use the same setup I’ve used in this courtroom before. Counsel doesn’t have to sit with their back—a chair can be put sideways so everybody is right there.”
Bea’s response was immediate. “I want to be able to see the child. I want the child to be able to see the defendant. I don’t want the mother in the room when the child is testifying. The idea the child needs safety from the father in the courtroom is absurd. This man is in the medical profession. This is absurd. This is the most manipulating— It is making a sham of the system, some of the Commonwealth’s requests in this motion. I simply repeat, I am not going forward without being able to produce evidence of the mother. I don’t know whether this is a waste of court resources of time and all our time in hearing the rest of these motions at this time. I suppose we can resolve—”
“There’s not much doubt that a lot of this time is a waste of court resources,” the judge said.
“Yes, I’m not going forward. You can do anything you want to me, Your Honor. I’m not going forward.” In this small chamber, Bea was acutely aware she had to restrain both her normally deep, resonant voice and her emotion, at least the outward vestiges of them. Inside she was boiling, but her words were not mincing. Even were they said quietly, they were, she was sure, having a memorable impact.
“All right. We’ll see where you get off this train, Ms. Archibald.” Mathers remained calm and totally in control. Bea suspected he was accustomed to inner rage. She surely could not have been the first lawyer to challenge him. She was sure his villainous reputation had been well-earned. And given his flagrance, Mathers was, in fact, probably relishing every minute of her impotence.
“I believe I’m already on the train to the end and that’s fine. I’m willing to risk it.”
Mathers ignored her comment. “Motion for closure of the courtroom during testimony. Do you object to that?”
“Yes. It should be a public trial,” Bea said. Shit, Cooke wants a secret kangaroo court.
“I will allow it to be public.”
Listen to that presumptuous language, Bea thought. He will “allow” it to be public! He has no basis for closing it.
Part 29 of 41 is scheduled to post on Thursday, September 18th
