 |
| Read the Amazing Bio of Barbara C. Johnson at Amazon.com |
 |
| Available on Amazon.com |
She feared being in a trap for the unwary. The judge had reserved action on the Commonwealth’s motion to preclude them from testifying. Bea needed the experts to testify to the development of a child’s memory, the danger of using the anatomical dolls during the first interview, the danger of leading questions, and the suggestibility of a child’s memory.
If she mentioned them and then didn’t call them as witnesses, Cooke would be able to call that failure to the jury’s attention in her closing argument. Even if Cooke didn’t mention it, Bill’s defense would look foolish. Bea simply didn’t trust Mathers.
“We are here today because of memory, memory, memory, memory,” Bea began, “to determine whether Chloe Abernathy’s memory is valid.”
She then called the jury’s attention to the timespan during which the alleged rapes occurred. “The dates, the ages of the child are critical. Pay attention to them as the child speaks and unveils her so-called secret. We are dealing with a child in a crib, wearing diapers. What can a five year old child remember about what happened when she was one year old? That is what you have to determine when you hear all the testimony.
“You will hear that Denise had a drinking problem.”
“Objection, Your Honor.”
Not hearing a ruling from the judge, Bea just continued. “You will also hear that Denise had other problems.”
Mathers grunted. Bea turned and, responding to a nod from the judge, walked to the far side of the bench for a conference with him and Cooke outside the hearing of the jury.
At the sidebar, Bea said, “I didn’t mention the rape.”
“I’m not going to have Denise put on trial in this case, Ms. Archibald. You are not to go any further into Denise’s drinking problem or any other problem she had.”
Bea objected to Mathers’ ruling.
As Bea returned to the jury, Mathers instructed the fourteen jurors: “The jury will disregard the comments of counsel. Denise, the mother of this child, is not on trial here. The child’s father is on trial.”
Bea unpressed her lips enough to give another slice of an opening statement.
Mathers spoke up again. “This is argument.” He’d said nothing when Cooke had argued.
Bea continued to give disjointed slices of her opening statement in between objections and sidebars.
“This is an opening statement,” Mathers cautioned her in front of the jury. “You are to indicate the evidence you wish to present to the jury and not argue the case.”
“The jurors will expect to hear all of that,” Bea replied. “I apologize if I said it the wrong way.” The word “hear” is the magic word to be used in an opening statement. But because it’s boring to listen to that word in each sentence, lawyers—including prosecutors—slip into improper argument.
Nods between Cooke and the judge and Cooke’s rising brought Bea to the sidebar again.
“Have you tried at this level before, Ms. Archibald?” Mathers asked, appearing puzzled, which was odd since he had caused the aberration of the opening statement. And the tone of his voice was more condescending than concerned.
“Yes, I have.”
“You are arguing the case. You are putting conclusionary material to the jury.”
Bea knew her opening statement sounded as if it were her first. It had absolutely no flow, no rhythm, and made no sense. She was not being allowed to elicit evidence about the rape or why Denise was at the rape center, at the rape groups, at AA, or Goldblatt’s finding that she intimidated the child or how she had influenced Chloe to say all those horrifying things about her father. All the continuity was ripped out of her statement like threads being pulled from cloth.
Bea didn’t believe in distorting the truth or rewriting history. It was one of the things that drove her to hate the practice of law. Prosecutors rewrote it, divorce lawyers did it, employment defense lawyers did it, other defense lawyers did it, and judges did it.
Now Mathers was forbidding her to let the truth be known when a man’s liberty was at stake.
“We’re going to have experts testify.”
“Well, that may or may not be the case,” Mathers said. There Bea heard it. It was likely Mathers would not allow the experts to testify.
Mathers continued to caution Bea. “But for the moment, will you please outline what you expect to prove in this case and not describe. You’re not going to prove that a controversy about the use of anatomical dolls occurred. You may hope to prove a controversy. You may hope the jury will draw that conclusion, but it is not up to you to conclude.”
Bea was then certain that Mathers had no intention of allowing Toffett to testify.
Bea walked back to the jury. “Okay,” she said, to gain another few seconds to think where she could go from here. Maybe she should have declined giving an opening at all.
A few seconds was not enough time to think. Bea stumbled her way through, telling the jury they’d hear that when Chloe finally had a medical examination, no evidence of penetration was found.
“I’m going to object, Your Honor,” Cooke said. Another sidebar.
“Judge, I absolutely object to that. This child had a chlamydia test that was positive.”
“That’s not true,” Bea said.
“It is true, Judge. It’s in the records that she had a positive chlamydia test.”
“Are you saying that it’s not in the record?” Mathers asked Bea.
“I’m saying they did the wrong test and they treated her for something she didn’t have. We have plenty of experts to bring on.”
“You just told this jury the examination showed nothing.”
“Physical examination. I did not talk chemical examination. Physical examination. The other was a test of outdated cultures that came back marked outdated cultures. “
“But it’s not for you to decide whether these tests are valid.”
“It says right on the lab report.”
“Judge, for the record,” Cooke interposed, “this child was treated with an antibiotic as a result of a positive chlamydia test. A medical doctor prescribed a prescription for her for that.” Cooke had no evidence of that prescription. It was not written in Chloe’s medical records.
“If that was so,” Bea countered, “you would’ve put that doctor on your witness list.”
“You are going to stand there and tell me the district attorney is making an untrue representation to me? Is that your position, Ms. Archibald?”
He wants me to accuse Cooke of lying. That would be like dropping an A-bomb. What will he do if I do accuse her? So Bea tried to say Yes, but with some tact. “My position is that I’m asking you to look also at the absence of evidence to support her position, Your Honor. If she had a valid—”
“Well, I’m asking you in the future, keep quiet. I’m asking you from now on to draw no more conclusions of fact in front of this jury and complete this opening statement in short order or I will fine you every time you pull this.”
Fucking bastard... and I’m going to have to pay his pension.
Mathers wasn’t through with Bea. “I’ve got to draw one of two conclusions: either you are totally incompetent or you are doing this on purpose. I’m going to take the second option and fine you if you don’t cut it out.”
Absence of medical evidence, barred! She marveled at this fanatic forbidding her to tell the jury there would be no medical evidence of vaginal penetration in a rape case!
Bea walked back to the jury thinking at least she didn’t have to worry about the jury seeing her sweat:
It was 95 degrees in the courtroom. They’d attribute it to the weather. She was wearing a sleeveless blue-green silk dress with a matching three-quarter length unlined coat-jacket. It was wet through and clinging to her abundant form. It was embarrassing.“Now, I forget where I was,” she said to the jury. There was no sense even trying to fake it. They knew she was in deep doodoo.
“I think I was on September 18th.” She paused, her nerves raw. “On September 18th, they brought the child to a group called Victims of Sexual Addiction. You will hear testimony that there were other children who shared their stories of sexual abuse with her.”
“Again, Your Honor.” Cooke said.
“Then you will see in Mother’s diary—”
“Wait a minute. Hold on, now, Ms. Archibald.” Mathers waved her to the sidebar.
“Why is a page from the mother’s diary admissible?” Mathers asked.
“Because it shows—”
He interrupted her. She had wanted to say that on that page Denise wrote Chloe was preparing her story for the other children.
“I want you to discuss nothing about the mother’s diary until I see the mother’s diary,” Mathers said.
“Then I will rule whether anything is relevant about the mother’s diary.”
One more topic was barred from her opening. Mathers was going to forbid her to put in any of the evidence.
Back to the jury. There was no sense continuing an opening statement. It wasn’t so much that it was embarrassing to be constantly interrupted, it was that the judge’s obvious disrespect for Bea had to affect the jury’s perception of her. Bea was certain her credibility had gone down the drain fast, and Bill’s defense with it.
“Now, I want to wrap this up,” she told the jurors. “After the Victims of Sexual Addiction meeting, Chloe went to the Salem Woods Family & Community Center and was supposedly treated by Roberta Leavitt. As a result, you will hear that Chloe, over the past three years until this past March, has been prepared to testify in court and in the divorce trial and here today.”
“Objection.”
“Okay. That’s excluded,” Mathers barked. “The jury will disregard any reference to a divorce trial.”
Bea found that ruling outrageous too. Cooke had mentioned the couple’s marital problems. Okay for the prosecution, but not for Bill!
“And what we will attempt then, after you hear the various witnesses, the various women who have been mentioned, we will bring in some experts who will address the issues of memory, the contamination of memory, the suggestibility of a child’s memory.”
What the hell, she had thought, the jury by now is so aware that Bill is not being allowed to tell the whole story, that evidence is being excluded, it might be fine to allow them to expect to hear experts—so when the experts are finally precluded from testifying, they would suspect this, too, was being kept from them—that the evidence was being manipulated.
“Your Honor, I’m going to object,” Cooke said.
“I will allow this and give an instruction.” He had not told Bea not to mention the experts. Nor had he yet ruled Toffett and DeSegonzac could not be qualified as experts or not testify.
“And then you will hear various people speak of Bill, people who know him in the community, in his business. You will hear them speak of him and of his reputation. Then, of course, you will hear Bill himself. And the DA will have a chance to cross-examine him to a fare-thee-well. You will hear all of that testimony as well.
“I just want to leave you with one point: I’ve left you with a lot of wide-open gaps in these few minutes and a lot of things to say ‘Gee, I need an answer to that. I need to know a little more about that.’ So you have a lot to listen to very closely over the next week or so. Because we will attempt to prove there is more than reasonable doubt that Bill Abernathy ever committed the horrendous acts which the Commonwealth says he committed. Thank you very much.”
Bea turned, went to her table, sat down, and almost immediately, the door to the outer hallway opened.
Goldilocks Plus Two
The beautiful, small-boned, blonde-haired wisp of a girl, Chloe Abernathy, nine years old, entered, all smiles, into the now-filled courtroom holding Roseberry, a long-eared spaniel-looking stuffed animal. Every eye was on her.
She was put in a chair about five feet away from the jury. Bea moved her chair over as far as possible but could see the child’s face only slightly from the side while she was testifying. Bill couldn’t see the child’s face at all from where he was sitting. He could see the back of her head and Peter, a bit in profile. Chloe could not, of course, see Bill at all.
Cooke placed her chair between Chloe and the jury, but didn’t block the jurors’ view of her. “Now, you have a microphone on. I’m going to ask you to keep your voice up so the jurors can hear you.”
“Yes.”
At Cooke’s behest, Chloe stated her name, age, date of birth, and grade in school.
“Just keep your voice up,” Cooke reminded her. The loudspeaker system wasn’t functioning properly at that moment.
“Okay.”
“Back a couple of years when you were living at Howes Way, who lived there with you?”
“My mother and my father.”
“And did you have your own bedroom?”
“Yes.”
“Now, can you tell the jurors back when your mother and father were both living there at Howes Way in Salem Woods... can you tell the jurors if there was anything that happened with you and your dad?”
“I was abused.”
Bea hoped the jury would be surprised to hear Chloe use that adult word in a legal context.
“When you say you were abused, what do you mean by that?”
“Well, he hurt me really badly.”
“Okay. And when your dad hurt you really badly, did you tell anyone right away?”
“No.”
“Why was that?”
“Because I was afraid he would kill my mother and me.”
“And when your dad hurt you, did he say anything to you?”
“I don’t remember.”
This was helpful, Bea thought. She had a fear, but didn’t say Bill said anything to her that would make her have that fear.
“Now, you said your dad hurt you really badly. Do you remember were you in the house when that happened?”
“Yes.”
“Did it happen anywhere else?”
“No.”
“And do you remember did it happen more than once?”
“Yes.”
“And do you know the number of times that it happened?”
“No.”
“Now, do you know whereabouts in the house it happened?”
“Upstairs in his room.” Somewhere other than where the crib was. This is new.
“And is that the only place it happened?”
“Yes.”
“Now, who was in the room when this happened?”
“Just me and my dad.”
“And was your mother living at home at that time?”
“Yes.”
“Do you know where she was?”
“She was usually downstairs.”
“Now, Chloe, can you tell the jurors how your dad hurt you really badly?”
“Well, he punched me. He kicked me.”
“Where did he punch you?”
“Near my stomach.”
“And he kicked you?”
Chloe just nodded.
“Whereabouts did he kick you?”
“In my legs.”
“Did he do anything else?”
“Yeah. He stuck his private parts in mine.”
“Did you see his private part?”
Chloe just nodded.
“Do you know what the name for his private part is?”
Chloe just nodded.
“What is it?”
“A penis.”
“And what is your private part called? Do you know?”
“Vagina.”
“Do you recall whereabouts you were when he stuck his private part in yours?”
“On the bed.”
“Can you tell the jurors how that happened, how your father did that? How did you get to his room in other words?”
“Well, he usually asked me if I would go upstairs with him and I said yes.”
“And when you would go upstairs, can you tell the jurors what would happen once you went upstairs?”
“He let me jump on the bed, and then a few minutes later he would jump on the bed with me and hold me down.”
“How would he hold you down?”
“He would just jump on me.”
“And at that point, once he jumped on you, what did your dad do?”
“He helped me up and then he started abusing me.”
“You say he helped you up. How would he help you up?”
“Just pull my arm.”
“Once he helped you up, what did he do to you?”
“He started abusing me.”
“What did he do at that point?”
“Usually punched me first.”
“And then after he usually punched you, what did he do then?”
“Then he would kick me after that.”
“And did anything happen after that?”
“Yes. He would stick his penis in my vagina.” Chloe said this softly and uncertainly.
“Can you keep your voice up because I’m not sure that the mike is actually picking up?”
Go ahead. Blame her hesitancy on the mike!
“Okay.”
“What did he do after he kicked you?”
“He stuck his penis in my vagina.”
“And can you describe to the jurors what you felt at that point?”
“Scared.” What about pain?
“And do you know, did your dad do anything further?”
“No.”
“Did he touch you any other way?”
“No.”
“And did you touch his body any other way?”
“No, I don’t remember.”
“Now, aside from your dad touching you inside with his penis, did he touch you with anything else?”
“No.”
“And when he would touch you with his penis, where were his hands?”
“On my arms.”
“And did his hands go anywhere else?”
“No.”
“Now, did you ever touch your dad’s body with anything?”
“No.”
“When your dad would put his penis inside you, were you able to see his body?”
“I don’t remember.”
“Do you remember, was he wearing clothes when this would happen?”
“No.”
“And what about you? Were you wearing any clothes?”
“No.”
“Now, after this had happened—more than once?”
Chloe just nodded.
“Let me ask you this. Do you know when this happened? What date it happened on?”
“No.”
“At some point did you tell your mother about what happened?”
“Yes.”
“And do you remember before you told your mother what happened, did you tell anyone else what happened?”
“Yes.”
“Did you speak to a woman by the name of Carol Tracy?”
“Yes.”
Cooke should have asked “Whom did you tell?" But Chloe probably would not've remembered Tracy’s name, a woman she met once for a short while four years ago.
“And did you tell her what your dad had done?”
“Yes.”
Again, another leading question. The proper question should have been, “What did you tell her?”
Then it would have been up to Chloe to say, “I told her what my dad did.” But Chloe probably couldn’t remember what she told Tracy so many years ago.
“And did you talk to her about a secret?”
“Yes.”
Another leading question. The answer—“the secret”—is within the question. Cooke should have asked, “Did you tell her anything else?” Chloe could then say, “Yes,” “No,” or “I don’t remember.”
Then Cooke should have framed another question to bring out the words “a secret.”
“And what was the secret you talked to her about?”
“That my father abused me.”
“And did you tell her the details of that secret?”
“Yes.”
“And did you tell her about some touching your dad did with you?”
Another leading one.
“Yes.”
Bea’s objection to leading questions was clear on the record from the pre-trial meeting in chambers, so she didn’t object to the leading questions. She didn’t want the jury to think she was blocking the child’s story. Most of all, after the jury had seen and heard the child, she didn’t want to argue with or be put down by the judge in front of the child.
“Did you tell her about your dad tickling you?”
More suggestive questioning. The question assumed daddy tickled her, a fact not yet in evidence.
“I don’t remember.”
“Did your dad tickle you?”
“Yes.”
“And when would he tickle you?”
“When he thought it was a good time to have fun.”
Wonderful answer!
“And when your dad would tickle you, where would he tickle you?”
“Usually on my neck.”
“Okay. Did he tickle you anywhere else?”
“I don’t remember.”
“Did you talk to Carol Tracy about your dad touching you with his fingers?”
Chloe just nodded.
“Objection. Sidebar, Your Honor.”
“I’ll allow it.”
“How did your dad touch you with his fingers?”
“Well, he scratched me.”
“Where did he scratch you?”
“On my arms.”
“And did he touch you anywhere else with his fingers?”
“I don’t remember.”
“Now, did you talk to Carol Tracy about other touching your dad did with you?”
“Yes.”
“And what other touching did you talk with her about?”
“About him punching me and kicking me.”
“Anything else?”
“And putting his penis in my vagina.”
“And did you talk with her about your dad touching your mother at all?”
A slip!
Chloe just nodded.
“What did you tell her about your dad touching your mouth?”
“That he put his penis in my mouth.”
“And do you remember, did he do that?”
“Yes.”
“And when he put his penis in your mouth, did you see his body?”
“I don’t remember.”
“Whereabouts were you in the house when he put his penis in your mouth?”
“On the bed in his room.”
“In his room?”
Chloe just nodded.
“Was anyone else in the room?”
“No.”
“And do you remember where you were positioned in the bedroom when he put his penis in your mouth?”
“No.”
“Can you describe to the jurors what it was like when he put his penis in your mouth?”
“It was like—”
“How can you describe it? Can you describe it?”
“No.”
“Did you describe it, do you know, for Mrs. Tracy?”
“I don’t remember.”
“Was Carol Tracy the first person you told about this secret?”
“Yes.”
“And after you told Carol Tracy about this secret, did you talk to other people about it?”
“I don’t remember.”
“Let me ask you this. Have you ever talked about what you just told the jurors here today with anyone besides Carol Tracy?”
“I don’t remember.”
“When you say you don’t remember, do you remember not talking to anybody about it or do you not remember what you said?”
“I don’t remember what I said.”
“But do you remember actually talking to people like Roberta Leavitt?”
“Yes.”
“And you said you talked to your mother?”
“Yes.”
“Did you talk to other people as well?”
“Yeah, my friends.”
“Anyone else you can think of that you talked to?”
“Nope.”
“Now, you talked to me before today, didn’t you?”
Chloe nodded.
“Do you know how many times you talked to me?”
“Nope.”
“Do you know when you first met me?”
Chloe just shook her head.
“After you told Carol Tracy and talked to her, did you go back to your house to live at 82 Howes Way?”
“Yes.”
“When you went back to 82 Howes Way to live, where was your dad?”
“He was living somewhere else.”
“And did he touch you any more after you spoke to Carol Tracy?”
“You mean when I saw him?”
“Yes.”
“Yes, he scratched me.”
 |
| Also Available on Amazon |
Chloe nodded again.
“Did he ever touch you in any other way after you told Carol Tracy what happened?”
“No.”
“And when you would see your dad afterwards, were there other people there when you would visit with him?”
“Yes.”
“I have no further questions, Your Honor.”
Look for Part 32 of this 41 part real life novel by Barbara C. Johnson
