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“Hi, Jimmy. Bea here. Hope it’s not too late.”
“Naw, shoot, Bea. What’s on your mind?”
“Cortland A. Mathers,” she moaned.
Jimmy Fitzgerald, an elder statesman of the Salem County criminal defense bar, laughed.
“Jimmy, I thought maybe you could fill me in. Seeing that he’s from your neck of the woods.”
“He’s giving you a hard time, I take it.”
“Understatement.” Bea filled him in quickly about the case and about Mathers’ ruling to exclude Denise’s story. “Jimmy, he’s leaving me without a defense. What Mother did or said to the child is the only possible explanation for the child’s disclosure to the rape counselor.”
“Well, you’re wrong, Bea.”
Bea didn’t know whether she should be surprised or delighted at learning something new. “Give it to me, Jimmy. Don’t spare me. This is serious.”
“The other explanation is that your guy did it.”
“Ah, shit, Jimmy.” Bea’s voice emptied like a pricked balloon.
“He’s neutered you.”
“Bastard.”
“He sure is. You know he was an assistant DA for a number of years, early on.”
“Yeah, I heard that.”
“Well, after that he went into private practice. He was an insurance lawyer. He would poison the waters of cases.”
For Jimmy to be dramatic is out of character. He’s big time serious!
“He played dirty. When he was about to be appointed, he wanted one of his sons to take over his role as partner in the firm. Something went awry, the son didn’t take over, and the firm deleted the Mathers name from its letterhead.”
“Wow! That’s unusual.”
“Sure is.” Every lawyer knew that a judge’s name on a letterhead is a great marketing tool, spelled contact or influence.
“What do you think of him on the bench?”
“Bea, you know I’m there every day.” Jimmy, like most lawyers, was afraid of retaliation. He wouldn’t—and really couldn’t—say anything that could be traced back to him. Not only he but also his clients would suffer.
Bea understood. “Stick to the scuttlebutt, my friend. From what I saw today, there’s got to be enough to go around.”
Jimmy laughed heartily again. “Relentless, as usual.” He paused for a moment. “Well, there was this homicide case. He was sitting. Diminished capacity apparently was clear and the jury found the defendant guilty only of manslaughter. Mathers was upset by the diminished-capacity finding. So when it came time for sentencing, he gave him the maximum sentence possible, twenty years.
“The defense attorney appealed and was at the Appeals Court one day. A clerk got the file and opened it and then was called away from the counter for some reason, probably the phone. The paper on the top caught my friend’s attention. It was a letter from Mathers to the court asking that the sentence be upheld.”
“Nothing like a little secret communication.”
“Yeah, that’s Mathers. He’s a mean-spirited one.”
“Did your friend report him to the judicial oversight committee?”
“Nah, but he probably should have,” Jimmy said. “I know it bothered him.”
“Maybe he thought the defendant would have gone out of control back out on the street.”
“Well, my understanding is, in this case, that probably wasn’t going to happen. The defendant’s parents wanted him to get real care and were willing to assure that he got it. You know, private institutionalization or house arrest, something like that. They were concerned the kid would never live out the term Mathers gave him.”
“I might be walking straight into hell,” Bea said, sounding depressed. “Keep your fingers crossed for me, Jimmy.”
“Will do, Bea, will do.”
Stop Seeing Shadows, Dear
“Mathers is not a nice man,” Bea said when Hugh walked in and she rubbed sleep from her eyes.
“Not a nice man at all.”
“Seeing one scumbag after another day after day works on a man, Bea.”
“Y’know him?”
“Doesn’t matter. He’ll be retiring this year,” Hugh said as he began undressing.
“It mattered to those who are innocent and sitting in jail.”
“Innocent, you say,” he said. “There probably weren’t too many of them.”
“Indignant, are we? How can you know? If they didn’t receive a fair trial, how can you know?”
“They appeal. So we know.” He let a shoe just drop, something he usually didn’t do.
“Hugh, look who you’re talking to,” she said, frustrated with the conversation having taken this twist.
“Be honest. How many of the appeals are screaming that facts were improperly excluded, criminal cases only?”
“We don’t keep those statistics.” His tone gave away his annoyance. “You know that.” And the other shoe dropped.
“Take a guess,” she said.
“You know I won’t do that.”
Her chagrin was turning to anger, but she attempted to contain it. Venting would get her nowhere. But pain showed on her face. Mathers was not the only result-oriented judge. Far too many of them let the jury hear only those facts that would bring the results the judges wanted. That was one of the tricks of the robed ones.
On the civil side, result-oriented judges would either let or not let the jury hear certain facts, depending on who was trying to get them into evidence. That was in addition to skewing the instructions on the law given to the jury. Bea had been sabotaged by Servantnick in Dawn Prakash’s sexual harassment case and, of course, by Wannabee in Maggie Rudolph’s case.
Whenever her friend Red drew such a judge, he bellowed, “The sonofabitch’ll charge me out!” With that, Red was telling the world he had a wonderful case but was anticipating that the judge would skew the instructions to the jury. If the jurors followed the law as told them by the judge, they wouldn’t be able to find in favor of Red’s client. Appealing adds years of anxiety and often prohibitive legal fees and costs. Sometimes the anxiety is prohibitive too.
Bea went into the galley and washed down three aspirin—one extra for the extra pounds—and waited for them to take effect. In the meantime, she wouldn’t let go: as she walked back to the stateroom and crawled into bed, she said, “Even if you guys decide the evidence should’ve been let in or kept out—whatever the case may have been—you say it was harmless error.”
“Because it usually is.”
“Oh, c’mon. Look at Patti.”
“Back to that are we?”
“Back to that are we?” she said in mimicry. “Yes, we are. You guys on the fourteenth floor refused to review it. I’m assuming because it was a drug case at a time when the pols were promising to be hard on drug crimes. You let your buddies on fifteen get away with accommodating everybody by discussing only the facts that would produce conviction.”
It was so obvious to her what happened at the Appeals Court. She would never accept the denial of further review. The appellate panel looked at the most important fact and just cavalierly cast it asunder. Someone must have felt guilty because it was at least commemorated by being given a mention in a footnote.
“Had they been honest,” she insisted, “they couldn’t have affirmed.”
“If I remember correctly, the Appeals panel complimented you on your argument in that case.”
“So what? That didn’t make amends to what they did to the law.” She shook her head. “It’s a shame I was so new at this game then. My law may have been good, but I didn’t know how to get around the little tap dance the assistant DA and the judge did, which kept me from getting that case to a jury. A damn shame.”
Ignoring her last remark, which to him was a throwaway, Hugh said, “Bea, there are far more cases than we can possibly review.”
She was only half-listening to him. “At least bad law wouldn’t have been made.” A number of criminal defense lawyers called and begged her to seek certiorari, review by the SJC. The law that was made would make their professional lives even more difficult.
“You really refuse to listen, don’t you?”
“I listen,” she said.
“Then what did I say?”
“Okay, I don’t know.”
“Thank you,” he said, his tone accusing her of grudgingly admitting she didn’t listen. “Bea, there are far more cases than we can possibly review.”
“Then call out for more SJC judges. You don’t. Not one peep. You speak loud enough for a new courthouse, though. New prisons. Higher salaries.”
“That’s for the legislature to decide.”
“But your voices would be heard faster than anyone else’s. You could make a difference.”
“I’m fading fast, Hugh. I’ve got to get some sleep. I have to face him again in the morning.”
“Do that, Bea. And please, Dear, stop seeing shadows.”
She was afraid of what might happen. Even yesterday’s focus on drug crime was nowhere near today’s hysteria about child sex abuse.
Given the hypocrisy of the courts, the twisting of the law, the twisting of the facts—and that’s what Mathers was doing—Bill would never get a fair appeal were she to lose the case. By the time the jurors got the case, the facts they’d be allowed to hear and the law they’d be told would already have been twisted.
As the mind does when the lights are off, Bea’s drifted to, of all things, one of Robert Bork’s books.
“By the time a man or woman becomes a judge, it is too late.” What was the rest of it? She remembered thinking, Right on! when she read it. Something about the “intellectual capital” of a person before becoming a judge. For all kinds of reasons, it wasn’t going to change appreciably once he got to the bench.
That fit Mathers. His M.O. hadn’t changed. He was still playing dirty. The title of the book was Political Seduction of the Law or something like that. It fit Mathers. There was no question in her mind that he, if not evil incarnate, was being politically seduced by the hysteria around sex-abuse crimes.
Bea had no idea what time she finally fell asleep. Just before she did, though, she was fearing it might fit Hugh, too. His guilt about liking what his schoolmaster did to him. That hadn’t changed since he’d gotten to the bench. How would he vote if Bill’s case were before him?
Backpedaling, Competency, Ingratiation
Cooke was visibly nervous: her language was convoluted. Nevertheless, before the jury was brought into the courtroom, she managed to explain that the Commonwealth has changed its position slightly as a result of some research she did the previous evening.
“An inquiry into the area I originally had boldly asked the Court to exclude, Your Honor, may well be relevant for bias as to Denise Abernathy only and impeachment as to her only.” She’s backpedaling. Cooke—or someone in her office—must have realized that forbidding Bea to cross-examine and show her bias created an appealable issue, one likely to be winnable.
Cooke continued. “I would reserve obviously my right to make objections on individual questions as that issue arises.”
Ingratiating himself, Mathers responded to her. “As I have already indicated, I’ve not foreclosed altogether the issue of the defendant showing bias on the part of the mother. I’m going to simply take it on a question-by-question basis.” The former ADA, Judge Mathers, not only took the suggestion of his former boss, the office of the DA, he literally parroted it and backpedaled too.
“That’s all I have, Your Honor,” Cooke said.
Mathers didn’t mention the opening! “Am I to understand I’m still not to mention the R word during the opening? That has not changed?”
“Of course it hasn’t.”
“Your Honor,” Bea said, “I also have a concern about the experts, as well as a concern that I’ll not be able to watch the child’s face when she testifies.”
“You may move your chair anywhere you have to, Ms. Archibald, so you can watch the child’s face.”
“Where would you suggest?”
“Wherever you can see the child’s face. If you want to sit right in front of her, that’s up to you. Just pull up a chair and sit down. Let’s go.”
They couldn’t because Chloe had not appeared for the hearing to be conducted by Mathers to learn whether the child understood right from wrong, and truth from a lie.
Third, Going into Fourth
Twenty minutes later, Cooke and some unidentified ADA tried to get the loudspeaker to work and brought a chair to where Cooke wanted the child to sit. Chloe, smiling and clutching Roseberry, was escorted so silently into the courtroom and seated that Bea and Bill were initially unaware she had appeared.
The judge walked off the bench and sat in a chair in front of her, with his back to the jury box. “What is your name?” he asked. His voice was no different than it was to the lawyers. No special words to allay fears. No words to put her at ease. No need.
The child was already smiling. She didn’t exude even a trace of fear. She’d been in this room before when Roberta Leavitt had brought her to see it. She answered him with ease. She told him what grade she was in: “Third going into fourth.”
When he asked, “Did you have a good year or were you glad to have it over?”
She replied, “Both.” She was monosyllabic, like her mother.
He asked whether she understood she would testify, lawyers would ask questions, and jurors would listen. And, finally, he told her it was important to tell the truth. “Yes,” she knew what would happen and “Yes,” she knew it was important to tell the truth.
“And would it be good or bad if you told a lie?”
“Bad.”
“And do you know if anything happens if people tell lies?”
“Yes.”
“What happens?
“They get punished.”
“I find the witness competent.” Judge Mathers had conducted a classic voir dire. The child was escorted out.
Fencing Windmills?
Mathers asked Bea. “Do you have something else you want to raise?”
“Yes, I do, Your Honor. My concern is that the DA might inadvertently bring out testimony regarding the rape or the accusation by Denise of the rape. If it does come out inadvertently and if I haven’t mentioned it in the opening, I’m going to have mud on my face, and I don’t want that to happen. So in view of the fact that it goes to the bias issue and she’s agreed we do have a right to address the bias issue, may I please, even if I have to mention it in the most imperturbable way—”
“The answer is no, Ms. Archibald. I do not want that issue raised in the opening statements of this trial. I do not want the issue raised at any other time until I see fit to change the order. You can count on the district attorney to not inadvertently mentioning anything about the subject. Ms. Archibald, try to keep your eye on the ball. Don’t fence windmills here,” Mathers said with the usual condescension.
“I’m not fencing windmills. I am keeping my eye on the ball. Again, just for the record, note my objection on that one.” Damn him. Rule: if there is something damaging against a client, the lawyer should bring it out first and explain it from the client’s perspective. It deflates the balloon before it pops. It’s less of a shock. Denise could let slip, “He raped me,” and Bill will have been ambushed. Nothing would happen to Denise. Nothing would happen to Cooke.
Ingots of Ingratiation
The jury filed into the box.
Now it was Mathers’ turn to ingratiate himself with the jurors. It was imperative that they come to look upon him not only as an absolute figure of authority and wisdom, but also as one who has human qualities despite the message of absolute power imposed by the black robe. Some judges use a joke to show their humanity or understanding of the human condition. Mathers had pointed to his personal suffering the day before when he pulled at his robe and said, “I’ve got to be at least as bad off as any of you.” Today, he complained about the noise from the outside, albeit with some justification.
“Mr. Foreman, ladies and gentlemen, thank you for your patience. We had some preliminary matters to take care of this morning. We’re advancing rapidly into the twentieth century. In this case, we have equipment to project the voice of the speaker. From time to time it may squeal at you, but bear with us because otherwise you aren’t going to hear anything with the windows in this place open.
“The Salem Woods Police and Fire Department a number of years ago reached an agreement that wherever the emergency would occur in the city, they would start their wagons by going down Atlantic Avenue, particularly in the summer months past this courthouse with their sirens wide open.
You’ll hear them every ten or fifteen minutes, maybe even a dozen times an hour, with their sirens wide open. I hope these microphones will assist us a little bit.
“As I suggested yesterday, you’re here to make determinations of fact based upon the evidence you hear from the mouths of the witnesses or from exhibits of one sort or another. Your power in resolving issues of fact is omnipotent. You have a right to accept or reject in whole or in part any evidence that is offered. It is entirely up to you to determine whether you find it trustworthy, reliable, responsible information or whether you elect to reject it out of hand. That’s your purpose here.
“My purpose is to attempt to make fair rulings based upon a somewhat complicated system of rules of evidence.
“The first thing you will hear this morning is an opening statement by the district attorney in which she will indicate to you the evidence she intends to offer for your consideration. That may or may not at this moment be followed by an opening statement by defense counsel. That’s her option whether she opens now or at a later time.
“In any event, the opening statements of counsel are an important part of a trial because they, in effect, preview for you the coming attractions. But they do not have evidentiary weight and it’s important for you to bear that in mind throughout the opening statements and throughout the trial.
“Anything a lawyer says by way of an opening statement is to assist you so that when you hear the fragments of evidence from the individual witnesses, you have some idea of where to put the pieces in the overall picture.”
This is the opportunity he’s denying Bill.
Chloe, Tracy, and the Expendables
Pointing to Bill, Laura Cooke opened by telling the jury, “The Commonwealth will be offering evidence to prove that the man seated there in the tie and the suit—the defendant in this case—raped his little daughter Chloe: that he had unlawful sexual intercourse with Chloe when she was under the age of sixteen years old.” After her dramatic opening line, Cooke gave the jury standard prosecutorial fare: telling a story that made the acts of the defendant look more heinous than they were.
Cooke was also standard prosecutorial fare in a navy blue polyester suit, light stockings, and dark navy, almost black, mini-heeled pumps. A mother of three preteenage kids, she probably weighed in at 140-150 pounds, which were tightly packed on her 5’4” or 5’5” medium frame. Her long, straight, thin blonde hair, uncut for years upon years, was gathered by a bow at the nape of her neck and trailed down her back toward ample hips. Her wire-rimmed glasses perched on a medium-length, semi-pointed nose in the center of symmetrically structured facial bones. Cooke was the idealized version of the all-American young matron with a ‘50s look. The perfect stand-in for the DA’s hard line on perverts.
Cooke became dramatic again when speaking of the crime: “Briefly, this case is about a little girl named Chloe Abernathy, whose father penetrated her body with his body. You will hear from the evidence that the defendant used his fingers as well as his male genitals, his penis, to penetrate little Chloe.”
Then she told the jury not to expect exhibits or many witnesses because sexual intercourse has generally only two witnesses. “Here, the two people present were just little Chloe Abernathy and the defendant.”
Bea slowly burned, however, when Cooke said, “Now, let me outline for you the case the Commonwealth intends and anticipates will be heard by you through the witnesses who come in and testify.”
There it was. The Commonwealth will be able to outline, but Bill won’t. He’s damn gagged me.
Cooke wasted time telling the jury where Chloe would sit. As if they wouldn’t be able to see. And then Cooke came to the “where” and “when.” Although she didn’t have to prove them, her case wouldn’t be credible without some representation where and when the crime occurred. “She was between the ages of one and five,” Cooke said. So once again the time range changed: from between two and five to between one and five, to account for the child’s testimony at the divorce trial.
“Now, Chloe was a very little girl then and therefore cannot say the exact date these incidents happened. Some adults may not even be able to. But she was around five, when she finally began to talk to somebody about what was happening and therefore couldn’t give a precise date.
The “where” was at the address of the Abernathy house. Cooke never said in which room or whether the crime occurred inside or outside the house. Maybe the child keeps changing where it supposedly occurred, speculated Bea, and Cooke doesn’t want to get caught up by that.
Next she brought out that there were marital problems and, of course, that Chloe had a secret: “A secret in 82 Howes Way that was not told by anyone until July 28th of 1989. The secret was that this man here was having intercourse with his little daughter using his fingers and his penis to penetrate her vagina and her mouth.
“You will hear that Chloe kept the little secret—actually a big secret for a little girl—until July 1989, when there was a conversation in which Chloe mentioned to her mother, Denise, a secret she had with her daddy.
“Denise didn’t know what the secret was. She wasn’t a witness to it. She wasn’t present when the intercourse took place. So the next day, Denise brought Chloe to Carol Tracy, a woman who works as a rape-crisis counselor and who has some background as far as counseling. Chloe then spoke with Carol Tracy.
“Carol Tracy will testify as to that interview. There were again only two people present at the interview and they were little Chloe and Carol Tracy.
“Carol asked Chloe to please tell her about the secret. At that point, Chloe unveiled the full details of the secret she’d carried around with her, that secret she had which had to do with something done between adults and not a little girl.
Lordy.
“You will hear that she detailed to Carol Tracy how this defendant penetrated her body, and you’ll hear her childlike words describing an adult event; how she described that the defendant put his fingers in her vagina and his penis in her mouth. And Carol Tracy will tell you about that interview and what she observed about the child.
“You will hear that Carol Tracy spoke with Denise Abernathy and that Denise subsequently got a restraining order and the defendant left the home. The secret was unveiled, and the rapes stopped.
“But Chloe will carry the unveiled secret right into this courtroom to you, the jurors. She will tell you in her own words what the defendant, her father, did to her when she was a little girl.
“The Commonwealth will offer evidence as to each and every element of the crime through the witnesses.
That’s it, Bea thought. She’s not putting on Leavitt, Cooper, Gidseg, or Heather. Gone are the stuffed animals, gone are the drawings. The depositions of Cooper and Heather finished them as witnesses.
Gidseg was too vulnerable to being made to look foolish by the wooden-bat story. And Leavitt had been used about as much as she was going to be: she had been a tool of the DA’s office, which had the audacity to use her as the star witness for the Grand Jury, where she wouldn’t be cross-examined.
Unfortunately for Bill, Leavitt had become expendable only after she was allowed to bask as queen for a day.
While Bea was concentrating on potential witnesses, Cooke was finishing up. “Ladies and gentlemen, we will offer that evidence beyond a reasonable doubt.”
Look for Part 31 on Sunday, September 21st
