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“I object strenuously to that. We are here—”
“Your exception is noted and your rights are saved.”
A real one-note Charlie, aren’t we? Bea thought, but aloud she said, “I do want to put on the record why I object, Your Honor. I notice you haven’t read my opposition, so you’re certainly not giving a fair shot to the defendant. You’re just looking at the Commonwealth and saying Yes or No.
“We are here solely because this child has been led—her entire planned testimony, everything she has said to all the social workers, including the rape-crisis counselor, who wasn’t even a social worker at the time—she was barely out of school herself and had really no educational training, no experience to do what she did, to question the child.
“We are here because of leading questions. Now, to compound it by saying these leading questions can come into court is outrageous.”
“Ms. Archibald—” the judge said.
“I want to go on record, Your Honor. I’m challenging you.”
“You sure are.” Even with this brief acknowledgment of the verbal sparring, Mathers’ voice had a matter-of-fact quality to it.
“I know,” she said. “You told me last time I was, so I’m well aware,” Bea said, recalling the animosity of the motion session before Mathers a few months earlier. “We come from different poles of the Earth.” No one had to wonder where Bea was coming from. She was always out front.
She continued, getting back to the law. “I want to say something for the record so the Appeals Court will know. There are two cases the Commonwealth cites to support using leading questions. They were both murder cases. One of them was for a thirteen year old brain-injured child. Because the child was brain-injured, the court allowed leading questions. In the second case, the child was still in shock as a result of having seen her father murder her mother and therefore she was allowed to be led.
“The facts in this case pale, absolutely pale, in comparison with those cases. There is no justification and no support with any of the authorities—”
“Ms. Archibald, I will hear any objection to any question the Commonwealth puts to this child that you want to make and I will rule on that objection.”
“Your Honor, I do not want to be put in the position where I am forced to object to every question. Because the jurors don’t know direct questions from leading questions, it would make us look either like fools or as if we were trying to block a story from coming in to the jury. So I refuse to be put in the position where I have to object to every leading question Ms. Cooke asks.”
“Your rights are saved.”
“Again I move for mistrial and a motion to recuse.”
He ignored her and said, “Commonwealth’s motion for exceptions to any sequestration order. In this motion, the Commonwealth requests the child’s mother be present.”
Cooke said, “I asked the child who she would like to have in the courtroom with her when she testified and she said she would like her grandfather and her mother to be in the courtroom.”
“You object to that?” Mathers asked Bea.
“Absolutely.”
“I will allow the mother’s presence during the child’s testimony but not at any other time.”
“That is the dangerous part,” Bea emphasized, “because the mother in the divorce court was found to intimidate the child. She has set up her own special set of rules that are not those typically used by typical parents and that she’s going to use to intimidate the child.
“There has been a finding, a specific finding, in another court on a different floor in this very courthouse, that, in fact, the mother intimidates the child. I do not want the child to be intimidated by the mother here in the courtroom.
“One other thing not mentioned there is—although they want her not to see the father and the child is supposed to face the jury—where is the mother going to sit during the child’s testimony? Will she sit behind the father? Or is the mother sitting next to the jury box? This is absolutely absurd. The mother should not be there and certainly should not be in visual contact with the child at any time.”
“Your objection is noted. Your rights are saved.”
“Motion to videotape portions of the trial,” Mathers said.
“Objected to as well, Your Honor,” Bea said. Cooke wanted to videotape the testimony of Bill’s experts. Bea believed Cooke and her DA were particularly interested in Toffett because they had never encountered him. They wanted to save his testimony so she could pow-wow with other assistant DAs in her office before having to cross-examine him.
That was the beauty of working in a large office with knowledgeable people: you had ever-present sounding boards. She and her colleagues would attempt to find flaws in his testimony. Then Cooke would cross-examine him extensively.
Should any assistant DA encounter Toffett at some later time, the assistant DA would attempt to impeach him in those later cases with the flaws they found in this one.
“I will deny that motion.”
“You’re denying it. Thank you,” Bea said. She was not overly surprised. One, it would take up a lot of time in his courtroom. Two, he might be planning not to let the experts testify at all.
“Motion in Limine No. 1. That motion is allowed.” That was the Commonwealth’s motion that would keep Bea from questioning Denise about her alleged rape and from alluding to it in the opening statement.
“Again, objection, Your Honor. I move for mistrial and recusal again.”
Looking at still another of the Commonwealth’s motions, Mathers simply said, “Defense counsel to outline or provide any recitation of any intended opening statement prior to commencement of trial. I’m not going to require that.”
Cooke piped up, “I would just ask briefly to be heard. My concern is that whenever this case is discussed by counsel, it is discussed in such a fashion in which the probate court and the probate’s findings are brought out and I’m just concerned the issue is going to be raised in an opening statement.”
“But we’re not even going to open.” Bea interjected. “I’m going to jail instead.”
“No, I’m not going to send you to jail, Ms. Archibald. That’s exactly what you want me to do. I have not the slightest intention of sending you to jail.”
“Well, I’m prepared. I’m not going forward, Your Honor. I’m not going to obey the Court in this particular instance.”
“Then we will have some disciplinary problem. There’s no question about that,” Judge Mathers said.
“There’s no question about that,” Bea concurred.
“But you aren’t going to end up in jail.”
“I don’t care. I don’t imagine they have air-conditioning there, so I’m grateful for that, Your Honor. But I’m not going forward under these conditions.”
“I will not allow Motion in Limine No. 2.”
“Which is?” Bea asked. The judge didn’t respond. Bea didn’t know the motions by number. Bea assumed Mathers was denying Cooke’s motion for a copy of Bea’s opening statement, but it didn’t matter since Bea wasn’t being allowed to put anything of value into it.
Bea expected he wouldn’t rule on her experts now either, which would further limit what she could include in her opening statement. If Bea promised to present evidence at trial and then didn’t do it, Cooke could comment about the omission during her closing argument. So Bea didn’t want to risk telling the jury they’d hear expert testimony if Mathers wasn’t going to allow her to call an expert to the stand.
“Normally I will expect counsel to observe propriety in making an opening statement. In Limine No. 3—I’m taking no action on that one. I’ll deal with it later.”
“Which one?” Cooke asked. It was impossible to know to which motion he was referring.
“The location of the child,” Mathers promptly answered. Look at that—the prosecutor gets an answer when she asks to which motion he is referring, but I don’t.
“I can show the Court what I did with—I think it was Judge McCoy when I tried a two-defendant child case,” Cooke suggested.
“Before the child is brought out, I am going to review it.”
“I’m not going to go forward, Your Honor.”
“Well, we’ll see.”
“Even if you have to go to the Bar, I’m not going to go forward. I’m going to put my license on the line. I really feel very, very strongly about this. So strongly, I can’t—well, I just said it. I’m willing to give up my license. I feel that strongly.”
“That may make it all worthwhile.” Mathers neither grinned nor groaned. His tone was flat and his face unrevealing. “Okay. I’ll take a brief recess and then we’ll call the jurors in and see what happens.”
Dealing with the motions in this nonpublic way gave Cortland A. Mathers considerable opportunity to pull what he had just pulled. Were the case appealed, the secret nature of the proceeding would never come out. An appellate opinion would not reflect that Mathers had conducted a kangaroo session. It would, instead, probably cream Bea for being outspoken.
Bea walked out of the lobby thinking, How the hell am I going to tell Bill what just happened?
Not the
Back of Her Head
By the time the judge and his clerk walked into the courtroom at noon, Bea had told Bill much of what happened in the lobby conference. Even though prudence was already out the window, Bea had decided to go forward in order to hear as much of the Commonwealth’s case as possible before the inevitable happened. She would, she knew, continue to challenge Mathers, because she had to make a record for the Appeals Court, but she didn’t expect his heart to have changed during the last thirty minutes or to change throughout the trial.
The clerk intoned, “Your Honor, before the Court is the matter of the Commonwealth v. William A. Abernathy. The defendant is present in the courtroom and represented by Attorney Bea Archibald. For the Commonwealth, Assistant District Attorney Laura Cooke.”
“Why don’t you tell me now what you propose as far as this witness is concerned?” Mathers asked Cooke. It was strange to hear the judge say “witness” when the jury had not yet been impaneled. Which witness?
“Oh certainly, Your Honor,” Cooke said. She appeared to be clued in. “The setup I’ve used in the past is to seat the jury in the jury box.” That’s funny. Where else? Cooke then moved around the courtroom explaining the seating arrangement she had devised in another case. “And Judge McCoy also came down himself from the bench. Judge McCoy sat in a chair right beside the witness stand, but at the end of the jury box.”
No way in hell will Mathers abandon his throne—even for a minute.
Cooke must have seen the judge’s expression as she made that last pitch, because her voice became increasingly softer. When she stopped, she had not demonstrated where she wanted Bill to sit. Her boss may have told her during the break to drop that one. It was overreaching—removing the defendant from his seat in court—something an Appeals Court would scrutinize closely.
“What is your position, Ms. Archibald?”
“I have no problem with the child being seated as long as I’m not looking at the back of her head.” Bea then sought assurance her movement wasn’t restricted between where she’d have to sit in order to see the child’s face and where her briefcase was. Bill, however, would be sitting at counsel table; he was the one who would be denied the opportunity of seeing the child’s face as she spoke.
“Where will Mother be sitting in this?” Bea asked. “The mother, I’d like out during the child’s testimony. I don’t want Mother to be seen. If Father cannot be seen, then I don’t want Mother to be seen, particularly where there is a finding that Mother intimidates the child.”
“I’m going to make an exception for the mother.”
There followed some discussion where Mother would be seated. After all the brouhaha, and Bea’s objections noted, Chloe would not see Denise while she was testifying. The child would only know her mother was there.
“I still object to Mother even being in this courtroom while the child is testifying.”
“I understand that. Your rights are saved. I will prohibit no one from being present in the courtroom who is not going to be a witness. Okay. Bring the jurors.”
He misspoke.
By the time the judge and his clerk walked into the courtroom at noon, Bea had told Bill much of what happened in the lobby conference. Even though prudence was already out the window, Bea had decided to go forward in order to hear as much of the Commonwealth’s case as possible before the inevitable happened. She would, she knew, continue to challenge Mathers, because she had to make a record for the Appeals Court, but she didn’t expect his heart to have changed during the last thirty minutes or to change throughout the trial.
The clerk intoned, “Your Honor, before the Court is the matter of the Commonwealth v. William A. Abernathy. The defendant is present in the courtroom and represented by Attorney Bea Archibald. For the Commonwealth, Assistant District Attorney Laura Cooke.”
“Why don’t you tell me now what you propose as far as this witness is concerned?” Mathers asked Cooke. It was strange to hear the judge say “witness” when the jury had not yet been impaneled. Which witness?
“Oh certainly, Your Honor,” Cooke said. She appeared to be clued in. “The setup I’ve used in the past is to seat the jury in the jury box.” That’s funny. Where else? Cooke then moved around the courtroom explaining the seating arrangement she had devised in another case. “And Judge McCoy also came down himself from the bench. Judge McCoy sat in a chair right beside the witness stand, but at the end of the jury box.”
No way in hell will Mathers abandon his throne—even for a minute.
Cooke must have seen the judge’s expression as she made that last pitch, because her voice became increasingly softer. When she stopped, she had not demonstrated where she wanted Bill to sit. Her boss may have told her during the break to drop that one. It was overreaching—removing the defendant from his seat in court—something an Appeals Court would scrutinize closely.
“What is your position, Ms. Archibald?”
“I have no problem with the child being seated as long as I’m not looking at the back of her head.” Bea then sought assurance her movement wasn’t restricted between where she’d have to sit in order to see the child’s face and where her briefcase was. Bill, however, would be sitting at counsel table; he was the one who would be denied the opportunity of seeing the child’s face as she spoke.
“Where will Mother be sitting in this?” Bea asked. “The mother, I’d like out during the child’s testimony. I don’t want Mother to be seen. If Father cannot be seen, then I don’t want Mother to be seen, particularly where there is a finding that Mother intimidates the child.”
“I’m going to make an exception for the mother.”
There followed some discussion where Mother would be seated. After all the brouhaha, and Bea’s objections noted, Chloe would not see Denise while she was testifying. The child would only know her mother was there.
“I still object to Mother even being in this courtroom while the child is testifying.”
“I understand that. Your rights are saved. I will prohibit no one from being present in the courtroom who is not going to be a witness. Okay. Bring the jurors.”
He misspoke.
Has He
Got That Look?
At 12:20, when around eighty people filed in so jury empanelment could begin, the courtroom was a hotbox: the temperature was somewhere in the 90s. Not a heat person, Bea had already wilted.
As tradition requires, the clerk, a white Irish male in his late thirties, read the indictment and identified Cooke and Bea. He even identified Peter Cuomo as co-counsel. He then told counsel they had the right to challenge twelve jurors—not only six, because there was a potential life sentence for the charge of rape—without having to state a reason for doing so. The lawyers didn’t need to state the reason for challenging them. To object to other potential jurors, they would need to state the cause.
Minutes before the jury venire entered the courtroom, both Cooke and Bea had received a copy of eighty jurors’ forms, which contained all the information the attorneys would learn of a juror unless the person approached the judge’s bench. In Massachusetts, not only are there no juror investigations, an attorney barely has time to read the forms before jury selection begins.
As Cooke and Bea were looking over the forms, the clerk called the names of fourteen people and told them to be seated in the jury box.
Then Mathers began, “Ladies and gentlemen, the case we are about to impanel involves the allegations made against the defendant that on or about February 1st, 1985, and July 28th, 1989, he did assault Chloe Abernathy, a child under sixteen years of age with intent to have sexual intercourse or unnatural sexual intercourse with and abuse the said Chloe Abernathy and did unlawfully have sexual intercourse or unnatural intercourse with and abuse said child.
“Those are the allegations that appear in this case. Ladies and gentlemen, I’m going to put a set of questions to you in a moment and ask the court reporter to record a negative response unless I see a juror raise his or her hand. If you do that, would you please be prepared to give your juror number to one of the nearby officers? Then we’ll proceed from that point on.
“Jurors, let me say this. It is my intention to get the jury impaneled in this case today. It would be my plan to try between 8:30 or 9:00 until one o’clock. By that time, this oven heats up, as you will notice, so that it becomes unbearable and nobody can be expected to concentrate on anything. After about one o’clock in the afternoon, the sun gets up around this side of the building.”
While pulling a piece of his black robe into a point, Mathers said, “In case any of you have ever wondered why nomadic Arabs wear white sheets, you ought to put on one of these. I’ve got to be at least as bad off as any of you.”
The judge then began querying the prospective jurors. None of the venire members was related to Bill or to the attorneys, or had any interest in the case. But hands went up in response to the next three questions: Have you formed any opinion of the case? Might you have any bias or prejudice regarding this case? Is there any reason why you cannot remain indifferent as to the outcome of this matter?
He told the people he expected the case to last seven trial days. “It may be shorter than that. I doubt very much longer. If anyone has non-elective surgery or a daughter being married in Palo Alto, California, or non-refundable airplane tickets or some such reason as that, I will entertain requests for deferment.”
He then asked the question Bea had proposed: “Have you or any member of your family been the victims of sexual assault or a rape or served as a juror on a sexual assault or rape case?” Hands went up and the court officer noted the jurors’ numbers.
“The first thing I want to discuss is the presumption of innocence.” He droned on about the concept so many folks ignore: that the presumption of innocence is the bulwark of our criminal justice system.
Mathers went on trying, hypocritically, to make clear, a defendant is under no duty or obligation to prove anything whatsoever. What the potential jurors would not hear is anything revealing that Cortland Mathers loved to hear the kinky parts of rape cases, and had no intention of letting anyone—innocent or guilty—charged with the crime go free.
Because people often jump to conclude a defendant is guilty if indicted, Mathers did say a few more sentences so he’d look fair to the Appeals Court if a defendant appealed: “An indictment does not constitute evidence of anything. The evidence is the testimony the jury will hear from this witness stand and that the jury finds credible and reliable and dependable.”
Then Mathers got down to pressing business. “Now, I need to ask you all two questions. Is there anyone who has failed to follow my law lecture I just gave you?” Mathers asked and looked around the room. “I presume, since I see no hands raised, everyone has understood what I’ve had to say.
“Is there anyone here who for whatever reason would be incapable of applying those principles without reservation of any kind if seated as a juror in this case?”
The juror in seat 2 had a question. Mathers rose and walked to the side of the bench, where he was joined by Cooke and Bea and the juror, who told them what her problem was.
“I just don’t know if I could be involved in this type of case,” the woman said. “It upsets me and I just—”
“Well, life is real. It’s necessary that citizens do these jobs,” Mathers said, pumping more adrenaline in order to convince her to change her mind about serving. “The issue here is the issue of guilt or innocence. I’m sure you would have no desire to see an innocent man convicted of what you probably feel is a horrendous crime.”
“I do, Your Honor. But it upsets me. I have children of my own and it just upsets me.”
“It upsets me. I’ve got six.”
“I’m sorry. Those are my feelings, Your Honor.”
“Do you feel you would be incapable of making fair judgments based on the evidence you heard in this case as to whether this man is guilty or innocent?”
“I don’t know, Your Honor.”
“What does that mean?”
“I don’t know whether I could or not.”
“Well, would you be affected if this were a murder in the first degree, extreme atrocity?”
“I don’t know, Your Honor. I’m not familiar with this. I’ve never done this before.”
“You don’t want to do it this time, is that what you’re telling me?”
“I’d like not to, please.”
“All right. I’ll excuse you.”
The clerk called out the name of the next person having a problem.
“I’m a secondary school teacher and a child advocate, number one. Number two, we’re planning a move next Tuesday. Three, during this summer as a schoolteacher, I push a paintbrush with a colleague of mine to subsidize my wife’s unemployment for the past two years. So a seven-day stretch would really cause some hardship to the family because it would mean my wife would have to do all the preparations for the move.”
“I’ll excuse you.”
The clerk called the next juror. “Your Honor, my father is a Salem Woods Police officer. He has worked throughout the years and I would not be impartial. I would believe what the child says.”
“All right. I’ll excuse you.”
The clerk motioned to the next juror to approach the bench.
“My brother-in-law is being charged with rape and a good friend was convicted of child rape. I don’t think he did it, but he’s in jail.”
“What I need to have you tell me is, Would those experiences or would that relationship interfere with your ability to make fair judgments in this case as to whether or not this defendant is guilty or innocent?”
“I don’t think so.”
“Can you put those things out of your mind and decide this case on the basis of what you hear from the witnesses in this case?”
“I think so.”
“All right. I’ll ask you to remain.”
In quick succession, six women between twenty and forty, each of a different ethnicity, approached the bench and were excused: Half of them had day-care problems or paid-vacation plans. One said, “I can’t do this case. I was raped when I was twelve and I just can’t do it.” A second said, “I was sexually assaulted at the age of nine. I don’t think I can.” A third said, “My sister-in-law and my husband were sexually abused as children. I don’t know if I could maintain impartiality in this case. I also have a situation where I’ve been unemployed since Christmas and I’ve been offered a job to start tomorrow.”
Of the fourteen potential jurors in the box, ten had approached the bench, and of the ten, nine had been excused.
The clerk called the next nine names. The first, Paul Ferreira, who had not raised his hand at the beginning of the empanelment, was told to take a seat in the box. But the second, Sally McElroy, approached. “I’m not sure I can remain impartial in this case because I was molested as a young girl,” she said.
“What we would ask of you here is that you sit and listen carefully to the evidence in this case and make a determination whether the evidence as presented is something you find reliable and dependable and credible and whether or not it established these proofs beyond a reasonable doubt.”
“I feel I can do that.”
“You feel you can do that?”
“Yes.”
“You think that your past experience would interfere with your ability to do that in any way?”
“No, not at this age,” McElroy said.
Bea would challenge her.
“Okay. Then please be seated.” The sidebar ended and the clerk needed only seven more people to fill the box this time.
When the box was full, Cooke and Bea told the clerk whom they were challenging, and the clerk excused each one. Now, four replacements were needed.
“Panel No. 3, Juror No. 15, Joanne Pearl.”
She approached. “I work in a day care and I work with a child who was sexually abused. We had no reason to believe this had happened, because the parents wouldn’t have ever thought—and they were found guilty. It was very difficult. And I know everyone is innocent until proven guilty, but I don’t know.”
“I don’t understand what you’re saying. What you are being asked to do here is to listen carefully to the evidence and make a determination whether—”
“I just wanted to let you know.”
“Let me finish,” Mathers admonished her. “After you’ve heard all the evidence, I will instruct you as to the elements that make up the crime alleged by the government and it will be up to you to decide whether it has been proven beyond a reasonable doubt. Now, you have had experience or contact with another case of this nature apparently.”
“Right. With the family.”
“You weren’t a juror in that case.”
“No.”
“You didn’t hear the evidence. You don’t really know what the evidence was.”
“Right.”
“You know there was a conviction, but that really has nothing to do with what we’re asking of you here.”
“Right.”
“But you’re the only one who can answer this question. Would you be able to put that other matter out of your mind and decide this case on the witnesses and the evidence presented in this case? Or would it affect your ability to decide these issues fairly?”
“That’s fine. That’s what I wanted to tell you. I know he’s innocent until proven guilty, but when you asked about family, it wasn’t a family matter, but I was involved. I wanted you to know I was a teacher involved.”
“Do you think you could sit and make fair judgments in this case?”
“If I listen carefully, yes, I can do that. But I just wanted to let you know.”
“Fine. I’m going to ask you to be seated.”
“Panel No. 3, Juror No. 15, Joanne Pearl, is now in seat 5 in the jury box,” the clerk intoned.
Bea liked Pearl, who at least was willing to keep an open mind. Would Cooke challenge her?
The clerk told the court, “One of the sitting jurors would like to approach the bench.” George Jones had learned only the night before that his daughter was working for the DA’s office. His form didn’t show the affiliation: he had filled it out before reporting for duty. Telling Mathers that would not interfere with his ability to be fair, Jones was seated. Believing either Jones wasn’t close to his daughter or he would overcompensate, Bea decided not to challenge him. He was honest enough to come clean.
Thomas Goehring, a 45 year old white male who was an air-conditioning customer service engineer, was called. He tried to get out of jury duty because of a business meeting, but Mathers didn’t buy it.
Given that Mathers would empanel only two alternate jurors, he was counting on no more than two emergencies arising midtrial.
Then there was a pathetically funny one. “I just can’t help thinking that he’s guilty,” the man said. “The minute
I saw him I thought that he did it.”
“Has he got that look?”
“Well, maybe the fact I was molested myself as a child.”
“I’ll excuse you.”
With the box full once again, Cooke and Bea made their challenges. More venire members were called, seated, and excused. Finally only one more was needed. That was Robert Eliasen.
“Ms. Archibald, have you any further challenges?”
Bea looked carefully at the jury forms. “Yes, I do, Your Honor.”
“Well, let’s have them.”
Bea challenged Sally McElroy “for cause” because the juror said that although she was raped as a child, she thought it wouldn’t affect her, but she didn’t know.
Mathers summarily denied Bea the challenge.
“Do you want to use a peremptory on that?” the clerk asked, helpfully.
Bea didn’t want to waste her peremptory challenges, free challenges without any reason required, if she could get one off the panel for cause.
“Yes.” Bea also challenged another woman.
Jury selection continued until three men took the last seats, 3, 8, and 14.
“Your Honor,” the clerk said, “let the record show that the attorneys for the defense and Commonwealth are content with the jury.”
The final jury was composed of 3 white women and 11 men, of whom 10 were white and one was black. The women were 24, 46, and 61 years of age. Four of the males, including the lone black, were in their 20s, three in their 30s, two in their 40s. The others were 59 and 62. All could have been vulnerable to false allegations of rape. Until they were sent to deliberate, no one would know which jurors would be the alternates.
Bea told Peter to list their occupations and watch their reactions throughout the trial. Peter was swift. He was young but he knew instinctively what to watch for.
“Ladies and gentlemen, I very much appreciate your patience in these conditions. It is almost unbelievable in the year 1993 that we would be expected to conduct public business under these circumstances. The record ought to disclose that this courtroom has been somewhere in the vicinity of 95 degrees, I would guess, for the past two hours during this empanelment process. I thank you for your kindness in this regard.
“I’m going to excuse you now. We will adjourn now till 8:30 tomorrow morning and we will begin with the opening statements of counsel at that time. I’ll then have a little more to say to you ladies and gentlemen.”
Back on the tug, Bea made a clean copy of her jury diagram. She thought Joanne Pearl was her best bet.
But Peter believed the young men felt vulnerable to date rape and false allegations because so little was needed to convict. And Bea hoped the married men around Bill’s age with kids would put themselves in Bill’s shoes and consider how vulnerable they’d be if animosity arose in their families.
It was still early evening. Hugh was busy elsewhere. Fifteen minutes, she thought. A nap. A quick nap. She fell asleep wondering what Chloe would say. She had told a different story to each social worker. Leavitt, at least the fifth person to talk to Chloe, Detective Cooper, and Heather—all of whom Bea had deposed—were not on Cooke’s last-minute witness list. So Tracy, the rape counselor, was the only possible fresh-complaint or corroborative witness.
At 12:20, when around eighty people filed in so jury empanelment could begin, the courtroom was a hotbox: the temperature was somewhere in the 90s. Not a heat person, Bea had already wilted.
As tradition requires, the clerk, a white Irish male in his late thirties, read the indictment and identified Cooke and Bea. He even identified Peter Cuomo as co-counsel. He then told counsel they had the right to challenge twelve jurors—not only six, because there was a potential life sentence for the charge of rape—without having to state a reason for doing so. The lawyers didn’t need to state the reason for challenging them. To object to other potential jurors, they would need to state the cause.
Minutes before the jury venire entered the courtroom, both Cooke and Bea had received a copy of eighty jurors’ forms, which contained all the information the attorneys would learn of a juror unless the person approached the judge’s bench. In Massachusetts, not only are there no juror investigations, an attorney barely has time to read the forms before jury selection begins.
As Cooke and Bea were looking over the forms, the clerk called the names of fourteen people and told them to be seated in the jury box.
Then Mathers began, “Ladies and gentlemen, the case we are about to impanel involves the allegations made against the defendant that on or about February 1st, 1985, and July 28th, 1989, he did assault Chloe Abernathy, a child under sixteen years of age with intent to have sexual intercourse or unnatural sexual intercourse with and abuse the said Chloe Abernathy and did unlawfully have sexual intercourse or unnatural intercourse with and abuse said child.
“Those are the allegations that appear in this case. Ladies and gentlemen, I’m going to put a set of questions to you in a moment and ask the court reporter to record a negative response unless I see a juror raise his or her hand. If you do that, would you please be prepared to give your juror number to one of the nearby officers? Then we’ll proceed from that point on.
“Jurors, let me say this. It is my intention to get the jury impaneled in this case today. It would be my plan to try between 8:30 or 9:00 until one o’clock. By that time, this oven heats up, as you will notice, so that it becomes unbearable and nobody can be expected to concentrate on anything. After about one o’clock in the afternoon, the sun gets up around this side of the building.”
While pulling a piece of his black robe into a point, Mathers said, “In case any of you have ever wondered why nomadic Arabs wear white sheets, you ought to put on one of these. I’ve got to be at least as bad off as any of you.”
The judge then began querying the prospective jurors. None of the venire members was related to Bill or to the attorneys, or had any interest in the case. But hands went up in response to the next three questions: Have you formed any opinion of the case? Might you have any bias or prejudice regarding this case? Is there any reason why you cannot remain indifferent as to the outcome of this matter?
He told the people he expected the case to last seven trial days. “It may be shorter than that. I doubt very much longer. If anyone has non-elective surgery or a daughter being married in Palo Alto, California, or non-refundable airplane tickets or some such reason as that, I will entertain requests for deferment.”
He then asked the question Bea had proposed: “Have you or any member of your family been the victims of sexual assault or a rape or served as a juror on a sexual assault or rape case?” Hands went up and the court officer noted the jurors’ numbers.
“The first thing I want to discuss is the presumption of innocence.” He droned on about the concept so many folks ignore: that the presumption of innocence is the bulwark of our criminal justice system.
Mathers went on trying, hypocritically, to make clear, a defendant is under no duty or obligation to prove anything whatsoever. What the potential jurors would not hear is anything revealing that Cortland Mathers loved to hear the kinky parts of rape cases, and had no intention of letting anyone—innocent or guilty—charged with the crime go free.
Because people often jump to conclude a defendant is guilty if indicted, Mathers did say a few more sentences so he’d look fair to the Appeals Court if a defendant appealed: “An indictment does not constitute evidence of anything. The evidence is the testimony the jury will hear from this witness stand and that the jury finds credible and reliable and dependable.”
Then Mathers got down to pressing business. “Now, I need to ask you all two questions. Is there anyone who has failed to follow my law lecture I just gave you?” Mathers asked and looked around the room. “I presume, since I see no hands raised, everyone has understood what I’ve had to say.
“Is there anyone here who for whatever reason would be incapable of applying those principles without reservation of any kind if seated as a juror in this case?”
The juror in seat 2 had a question. Mathers rose and walked to the side of the bench, where he was joined by Cooke and Bea and the juror, who told them what her problem was.
“I just don’t know if I could be involved in this type of case,” the woman said. “It upsets me and I just—”
“Well, life is real. It’s necessary that citizens do these jobs,” Mathers said, pumping more adrenaline in order to convince her to change her mind about serving. “The issue here is the issue of guilt or innocence. I’m sure you would have no desire to see an innocent man convicted of what you probably feel is a horrendous crime.”
“I do, Your Honor. But it upsets me. I have children of my own and it just upsets me.”
“It upsets me. I’ve got six.”
“I’m sorry. Those are my feelings, Your Honor.”
“Do you feel you would be incapable of making fair judgments based on the evidence you heard in this case as to whether this man is guilty or innocent?”
“I don’t know, Your Honor.”
“What does that mean?”
“I don’t know whether I could or not.”
“Well, would you be affected if this were a murder in the first degree, extreme atrocity?”
“I don’t know, Your Honor. I’m not familiar with this. I’ve never done this before.”
“You don’t want to do it this time, is that what you’re telling me?”
“I’d like not to, please.”
“All right. I’ll excuse you.”
The clerk called out the name of the next person having a problem.
“I’m a secondary school teacher and a child advocate, number one. Number two, we’re planning a move next Tuesday. Three, during this summer as a schoolteacher, I push a paintbrush with a colleague of mine to subsidize my wife’s unemployment for the past two years. So a seven-day stretch would really cause some hardship to the family because it would mean my wife would have to do all the preparations for the move.”
“I’ll excuse you.”
The clerk called the next juror. “Your Honor, my father is a Salem Woods Police officer. He has worked throughout the years and I would not be impartial. I would believe what the child says.”
“All right. I’ll excuse you.”
The clerk motioned to the next juror to approach the bench.
“My brother-in-law is being charged with rape and a good friend was convicted of child rape. I don’t think he did it, but he’s in jail.”
“What I need to have you tell me is, Would those experiences or would that relationship interfere with your ability to make fair judgments in this case as to whether or not this defendant is guilty or innocent?”
“I don’t think so.”
“Can you put those things out of your mind and decide this case on the basis of what you hear from the witnesses in this case?”
“I think so.”
“All right. I’ll ask you to remain.”
In quick succession, six women between twenty and forty, each of a different ethnicity, approached the bench and were excused: Half of them had day-care problems or paid-vacation plans. One said, “I can’t do this case. I was raped when I was twelve and I just can’t do it.” A second said, “I was sexually assaulted at the age of nine. I don’t think I can.” A third said, “My sister-in-law and my husband were sexually abused as children. I don’t know if I could maintain impartiality in this case. I also have a situation where I’ve been unemployed since Christmas and I’ve been offered a job to start tomorrow.”
Of the fourteen potential jurors in the box, ten had approached the bench, and of the ten, nine had been excused.
The clerk called the next nine names. The first, Paul Ferreira, who had not raised his hand at the beginning of the empanelment, was told to take a seat in the box. But the second, Sally McElroy, approached. “I’m not sure I can remain impartial in this case because I was molested as a young girl,” she said.
“What we would ask of you here is that you sit and listen carefully to the evidence in this case and make a determination whether the evidence as presented is something you find reliable and dependable and credible and whether or not it established these proofs beyond a reasonable doubt.”
“I feel I can do that.”
“You feel you can do that?”
“Yes.”
“You think that your past experience would interfere with your ability to do that in any way?”
“No, not at this age,” McElroy said.
Bea would challenge her.
“Okay. Then please be seated.” The sidebar ended and the clerk needed only seven more people to fill the box this time.
When the box was full, Cooke and Bea told the clerk whom they were challenging, and the clerk excused each one. Now, four replacements were needed.
“Panel No. 3, Juror No. 15, Joanne Pearl.”
She approached. “I work in a day care and I work with a child who was sexually abused. We had no reason to believe this had happened, because the parents wouldn’t have ever thought—and they were found guilty. It was very difficult. And I know everyone is innocent until proven guilty, but I don’t know.”
“I don’t understand what you’re saying. What you are being asked to do here is to listen carefully to the evidence and make a determination whether—”
“I just wanted to let you know.”
“Let me finish,” Mathers admonished her. “After you’ve heard all the evidence, I will instruct you as to the elements that make up the crime alleged by the government and it will be up to you to decide whether it has been proven beyond a reasonable doubt. Now, you have had experience or contact with another case of this nature apparently.”
“Right. With the family.”
“You weren’t a juror in that case.”
“No.”
“You didn’t hear the evidence. You don’t really know what the evidence was.”
“Right.”
“You know there was a conviction, but that really has nothing to do with what we’re asking of you here.”
“Right.”
“But you’re the only one who can answer this question. Would you be able to put that other matter out of your mind and decide this case on the witnesses and the evidence presented in this case? Or would it affect your ability to decide these issues fairly?”
“That’s fine. That’s what I wanted to tell you. I know he’s innocent until proven guilty, but when you asked about family, it wasn’t a family matter, but I was involved. I wanted you to know I was a teacher involved.”
“Do you think you could sit and make fair judgments in this case?”
“If I listen carefully, yes, I can do that. But I just wanted to let you know.”
“Fine. I’m going to ask you to be seated.”
“Panel No. 3, Juror No. 15, Joanne Pearl, is now in seat 5 in the jury box,” the clerk intoned.
Bea liked Pearl, who at least was willing to keep an open mind. Would Cooke challenge her?
The clerk told the court, “One of the sitting jurors would like to approach the bench.” George Jones had learned only the night before that his daughter was working for the DA’s office. His form didn’t show the affiliation: he had filled it out before reporting for duty. Telling Mathers that would not interfere with his ability to be fair, Jones was seated. Believing either Jones wasn’t close to his daughter or he would overcompensate, Bea decided not to challenge him. He was honest enough to come clean.
Thomas Goehring, a 45 year old white male who was an air-conditioning customer service engineer, was called. He tried to get out of jury duty because of a business meeting, but Mathers didn’t buy it.
Given that Mathers would empanel only two alternate jurors, he was counting on no more than two emergencies arising midtrial.
Then there was a pathetically funny one. “I just can’t help thinking that he’s guilty,” the man said. “The minute
I saw him I thought that he did it.”
“Has he got that look?”
“Well, maybe the fact I was molested myself as a child.”
“I’ll excuse you.”
With the box full once again, Cooke and Bea made their challenges. More venire members were called, seated, and excused. Finally only one more was needed. That was Robert Eliasen.
“Ms. Archibald, have you any further challenges?”
Bea looked carefully at the jury forms. “Yes, I do, Your Honor.”
“Well, let’s have them.”
Bea challenged Sally McElroy “for cause” because the juror said that although she was raped as a child, she thought it wouldn’t affect her, but she didn’t know.
Mathers summarily denied Bea the challenge.
“Do you want to use a peremptory on that?” the clerk asked, helpfully.
Bea didn’t want to waste her peremptory challenges, free challenges without any reason required, if she could get one off the panel for cause.
“Yes.” Bea also challenged another woman.
Jury selection continued until three men took the last seats, 3, 8, and 14.
“Your Honor,” the clerk said, “let the record show that the attorneys for the defense and Commonwealth are content with the jury.”
The final jury was composed of 3 white women and 11 men, of whom 10 were white and one was black. The women were 24, 46, and 61 years of age. Four of the males, including the lone black, were in their 20s, three in their 30s, two in their 40s. The others were 59 and 62. All could have been vulnerable to false allegations of rape. Until they were sent to deliberate, no one would know which jurors would be the alternates.
Bea told Peter to list their occupations and watch their reactions throughout the trial. Peter was swift. He was young but he knew instinctively what to watch for.
“Ladies and gentlemen, I very much appreciate your patience in these conditions. It is almost unbelievable in the year 1993 that we would be expected to conduct public business under these circumstances. The record ought to disclose that this courtroom has been somewhere in the vicinity of 95 degrees, I would guess, for the past two hours during this empanelment process. I thank you for your kindness in this regard.
“I’m going to excuse you now. We will adjourn now till 8:30 tomorrow morning and we will begin with the opening statements of counsel at that time. I’ll then have a little more to say to you ladies and gentlemen.”
Back on the tug, Bea made a clean copy of her jury diagram. She thought Joanne Pearl was her best bet.
But Peter believed the young men felt vulnerable to date rape and false allegations because so little was needed to convict. And Bea hoped the married men around Bill’s age with kids would put themselves in Bill’s shoes and consider how vulnerable they’d be if animosity arose in their families.
It was still early evening. Hugh was busy elsewhere. Fifteen minutes, she thought. A nap. A quick nap. She fell asleep wondering what Chloe would say. She had told a different story to each social worker. Leavitt, at least the fifth person to talk to Chloe, Detective Cooper, and Heather—all of whom Bea had deposed—were not on Cooke’s last-minute witness list. So Tracy, the rape counselor, was the only possible fresh-complaint or corroborative witness.
Look for part 30 of 41 parts to this real life serial on the weekend