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“Your Honor, I have a motion pending to limit her testimony to the scope of Chloe’s testimony. You promised to have a voir dire prior to her testifying. The time is now because there’s a great deal in Carol Tracy’s report that Chloe never said in court, so she’s dangerously apt to go beyond the scope of corroboration.”
“Well, I’ll see to it that she doesn’t. Let’s proceed.”
“Note my objection.”
End of sidebar.
Tracy identified herself as having been the director of the Salem County Rape Crisis Program since November of 1989. Prior to that date, she had worked there as a sexual assault counselor for approximately two years.
Tracy testified she received an undergraduate degree in psychology and a master’s degree in social work. Prior to working for the rape-crisis center, she participated in a forty-hour rape-crisis-intervention training, which certified her as a sexual assault counselor. One whole day out of the five-day seminar was spent in discussing interviewing and counseling children.
Essentially, Tracy backed up what the jurors had already heard from Denise. Tracy had asked Chloe her name, how old she was, and then let her play with some toys until she felt comfortable. Tracy then asked Chloe if she knew why she was here to see Tracy.
“She said yes, she knew why she was here because her father hurts her. And then I asked how he hurts her.”
“And what did she tell you?”
“She told me he punches and kicks her.”
“And during this time was she still playing?”
“Yes, she was.”
“Could you tell the jurors what next conversation took place with Chloe?”
“I just said, ‘Oh, that must really hurt.’ And she said, ‘I don’t like it. I cry when he does it.’
“What further conversation did you have with Chloe at that point?”
“I walked over to where there was a set of anatomical dolls and I picked up the set of dolls and I brought them back to Chloe.”
“Objection,” Bea said, for two reasons. Cooke had asked for conversation. The answer didn’t describe a conversation. It brought up the subject of anatomical dolls. On cross-examination, Chloe had testified she didn’t remember playing with any dolls when she was with Tracy.
Therefore any testimony by Tracy regarding play with the dolls or conversation regarding the dolls would not be corroborative of Chloe’s testimony and should not be told to the jury.
“She may have it.”
Well, he broke that promise.
“What did you do?”
“Beyond the scope, Your Honor,” Bea reminded Mathers.
“She may have it.”
“What did you do with the dolls at that point?”
“I just placed the dolls on the floor in front of Chloe. She was still playing with blocks at the time.”
“And these anatomical dolls, do they have clothing on?”
“Yes, they did.”
“Were they fully clothed?”
“Yes, they were.”
“Would you tell the jurors what took place once you had gotten the dolls and placed them near where
you and Chloe were?”
“I asked her if she would show me how her father hurts her.”
“After you asked her to show you with the dolls how her father hurt her, could you tell the jurors what you observed?”
“Out of this set of anatomical dolls, Chloe picked up a little female child doll and she held the doll out in front of her and she kicked the doll in the face.”
It was clear, harmful error to permit Tracy to establish any fact not testified to by Chloe, particularly a graphic or gruesome or even colorful fact.
“And did you have any conversation with her upon seeing that?”
“No.”
“What, if anything, further did you observe her to do at that point?”
“She then put the doll down on its back and started to repeatedly punch the doll in the stomach.”
“At that point did you have conversation with Chloe?”
“I did. Again, I validated how that must have hurt and I asked her... I said, you know, your mother told me something about a talking hand. Do you know what I’m talking about?”
“Objection.”
“You may have it.”
“Sidebar,” Bea requested.
The judge allowed it.
“Denise Abernathy is not a party to this, so her out-of-court statement would not be admissible,” Bea said. “This is not a corroboration of Chloe’s testimony because Chloe remembers seeing her once, but she doesn’t remember what went on in Tracy’s office. That’s beyond the scope of what’s allowed by the current law.”
“Your exception is noted.”
End of sidebar.
Cooke continued. “Did Chloe respond when you asked her if she knew what you were talking about?”
“She did. She said she had a talking hand.”
“And what did you do at that point when she indicated that she had a talking hand?”
“I asked her if she would show me it.”
“And did she?”
“She did.”
“Could you tell the jurors what she did to show you?”
“She just raised her hand and motioned like this.”
“And did you have further conversation with her at that point?”
“Yes.”
“Tell the jurors what that conversation was.”
“I asked her what her talking hand said.”
“And did she respond to that?”
“She said—yes, she did.”
“What did she say?”
“Beyond the scope,” Bea said.
“You may have it.”
“What did she say?”
“She said she had a secret, and her daddy wouldn’t let her tell.”
“And at that point could you tell the jurors what, if anything, you did with Chloe?”
“Yes. At that point I engaged in a conversation with her about secrets, and if somebody, namely herself, was being hurt, it would be important to tell the secret so that I could try to stop the hurt from happening.”
“And after you had this conversation with her about secrets, did you then continue to talk to Chloe?”
“Yes.”
“Could you tell the jurors what the conversation was at that point?”
“I asked her if she would tell me her secret.”
“And what did she say?”
“She said that her father tickles her.”
“Now, did you then have further conversation with her in regards to him tickling her?”
“Yes.”
“And as the conversation continued, did you have conversation with her in regards to her body touching her father’s?”
“Yes.”
“Could you tell the jurors what that conversation was?”
“Objection.”
“You may have it,” the judge said.
“Beyond the scope, Your Honor,” Bea said, again objecting.
“Could you tell the jurors what the conversation was?”
“She told me he made her touch his penis.”
“Motion to strike, Your Honor,” said Bea.
“Denied.”
“And did you ask her anything further in regards to that?”
“I asked her with what part of her body did she have to touch his penis.”
“What did she say?”
“She said her fingers.”
“And did you have further conversation with her?”
“Yes, I did.”
“What was that?”
“I asked her if there was any other part of her body that had to touch his penis.”
“What was Chloe’s response to that question?”
“She said that ‘his pee-pee doesn’t taste good. I think he has a virus in his penis.’”
“Your Honor, sidebar,” requested Bea.
“Your Honor, Chloe never said that in this courtroom,” Bea said. “Clearly that’s beyond the scope of Chloe’s testimony. Graphic details cannot be added in fresh-complaint testimony.” Tracy’s two statements were incendiary and offered to add details about which Chloe had not testified. They were intended not to corroborate what Chloe said, but to add graphic details to supplement Chloe’s accusation of oral intercourse.
“You didn’t hear the child say that the father put his penis in her mouth?” Mathers asked Bea.
“She never mentioned pee-pee in here,” Bea firmly answered.
“That’s not the rule on fresh complaint,” Cooke interjected.
“You misunderstand the concept of fresh complaint, I’m afraid, Ms. Archibald. But in any event your exception is noted.”
End of sidebar.
Bea was furious. Chloe didn’t testify to anything coming out of the penis. Tracy’s not to fill in the gaps. Mathers had been overturned on this issue before. And Mathers knew that Bea knew: she had cited the case to him in a brief. She believed it was risky, but she didn’t expect it to be fatal.
Cooke continued her questioning. “Ms. Tracy, after Chloe indicated she thought there was a virus in his penis, did you have conversation with her in regards to that point?”
“I did.”
“Would you tell the jurors what that was?”
“I asked her what made her think there was a virus in his penis.”
“Did she answer you?”
“She did.”
“Would you tell the jury what she said?”
“She said it comes out in my mouth and it doesn’t taste good.”
“Could you tell the jurors what you then did with Chloe?”
“I again got the set of anatomical dolls. They were right there and I just picked them up and moved them closer to her and then asked her to show me the ways her father had touched her.”
“And can you describe to the jurors what you observed Chloe to do at that point?”
“She picked up an adult male doll and pulled down the pants. She was surprised to see it had a penis, and said, ‘Oh, there’s a penis.’”
“Did you observe her do anything else after she removed the pants on that anatomical male doll?”
“Yes, she picked up the female child doll again and she placed the hand of the child doll on the penis of the male doll.”
“And what did you do upon observing that?”
“I asked her if there was any other way she’d had to touch his penis.”
“And did she respond?”
“She did. She took the female child doll and placed the mouth on the penis of the adult male doll.”
“Can you describe again what she did? I did not hear.” The passing sirens had drowned-out the words.
“She took the female child doll and placed the mouth on the penis of the adult male.”
“And did she say anything when she did that?”
“Not that I recall.”
“Did you have any further conversation with Chloe at that point?”
“I just thanked her for coming and sharing the information with me and I didn’t go any further.”
“Did you then leave Chloe in the room there?”
“Yes.”
“And where did you go?”
“I went out to the waiting room to speak with Mrs. Abernathy.”
“And what did you tell her?”
“I merely told her I had enough information to file a child abuse report with the Department of Social Services. And then I filed it.”
Practice Makes Perfect
With mixed expectations, Bea began cross-examining Tracy. Bea had subpoenaed her resumé, but Tracy hadn’t brought it. She claimed, however, to have begun working on her master’s degree in ‘85 and ‘86 prior to working at the rape-crisis center, but admitted to not having it when she first saw Chloe in July of ‘89. She also admitted to neither having studied how to use anatomical dolls prior to that day with Chloe nor having a supervisor.
The anatomical dolls she gave Chloe were cloth dolls with the anatomical parts of humans.
That being such an astounding claim, Bea asked her, “Do they have labia?”
“Excuse me, Your Honor, I object,” Cooke said immediately.
“You want to see them, Ms. Archibald? I’ll have them brought in here if you like,” Mathers offered.
“Yes, very much,” Bea said, surprised by Mathers’ unexpected generosity. Actually Bea suspected that Mathers didn’t want Bea to go through a litany of human genitalia and ask whether the dolls had each of the parts for the purpose of showing that the dolls were anything but anatomically correct.
“All right. We’ll have them produced tomorrow morning. Let’s move along.”
Bea began asking a few questions she thought Tracy would be able to answer without the dolls, but Tracy said she worked at a different office with a different set of dolls, and remembered very little about the set she used with Chloe.
“The set of dolls you will bring in tomorrow will be the same set you used with Chloe?”
“Yes.”
“Not the ones you’re using now?”
“Right.”
“Now, filing a complaint with DSS, you took progress notes, right?”
“Yes.”
Tracy reiterated she asked Chloe if she knew why she was there, and Chloe answered Yes.
“Now, did you ever ask how she knew why she was there?”
“No.”
“You never asked her whether she had spoken about it with anyone?”
“No, I did not.”
“Now, you knew Denise well?”
“Yes, I did.”
“And she was a client of yours?”
“Objection, Your Honor.”
“Excluded.”
“Did you ask Chloe what she and her father were doing when her father allegedly kicked and punched her?”
“No.”
“Did you make any inquiry of Chloe as to what she did or did not do with her father as day-to-day activities?”
“No.”
“Did you ever ask Denise that?”
“No.”
Never having been supervised by anyone using anatomical dolls, she had learned how to use them from reading articles. She’d received instruction, she claimed, in how to ask children questions both at rape-crisis training and in her postgraduate classes in the ‘80s.
She’d never interned anywhere, so she’d never asked kids questions out in the field. But she had received supervision for one day on interviewing children at the rape-crisis program. However, no one had ever stayed with her while she was actually interviewing children, and she’d never audiotaped or videotaped any interviews with children.
“So no one was able to say, Carol, you did this wrong or you did that right?”
“After the fact, I would bring it back to my supervisor.”
“And he or she actually read it?”
“It wouldn’t be in writing. They would more or less ask me what I did, what I said, how they responded, and give me advice as to that.”
“Please take a look at the first notes you wrote with Chloe Abernathy. You didn’t write down there, I asked her name and where she lived and all those niceties, did you? Take a look at your notes.”
“I believe I did.”
“The first question you put on there was, ‘I asked her if she knew why she was here.’ Isn’t that true?”
“The first question, yes.”
“So your notes, you don’t make them contemporaneously, do you?”
“I don’t understand what you mean.”
“When you ask Chloe if she knew, you weren’t sitting there writing a piece of paper like this.”
“No.”
“So you waited until after Chloe left, isn’t that right?”
“Correct.”
“And then you tried to remember what you asked her, isn’t that true?”
“Correct.”
“So there were lots of things you weren’t able to tell your supervisor, isn’t that true?”
“I don’t recall.”
“It’s not a matter of recall. The purpose of having a supervisor was having her tell you when you make errors—”
“Excluded.”
“And when you did things successfully, isn’t that true?”
“Objection,” Cooke said.
“Excluded,” the judge ruled.
“Well, how did you ever learn what errors you made?”
“I’m going to object, Your Honor,” Cooke said.
“Excluded.”
“Did you make errors when interviewing children?”
“Objection, Your Honor.”
“Excluded.”
“Do you play a musical instrument?” Bea was trying to convey the notion that while practice makes perfect, you must know what you did wrong in order to know what to correct.
“Objection, Your Honor.”
“Excluded.”
“But it is true that when you wrote down things for your supervisor, it was impossible for you to write down everything that happened during that session? Isn’t that true?”
“I wrote my notes immediately following all sessions.”
“I wanted a Yes or No answer. Can you give me a Yes or No answer?”
“Can you give me the question again, please?” Tracy asked.
“Isn’t it true that when you wrote those notes down for your supervisor, it was impossible for you to write everything down exactly as it happened?”
“Yes.”
“In other words your notes are only as good as your memory?”
“Uh-huh. Correct.”
“Now, so when you learned to interview children, you don’t know whether your supervisor got the full impact of what you were doing, isn’t that true?”
“Objection.”
“Excluded.”
Bastard, he’s not letting me get anywhere near whether she worked according to any standards.
“Now, to this day, have you ever had a supervisor sit in while you were questioning children?”
“Objection, Your Honor.”
“Excluded.”
“Did you ever speak to Bill Abernathy?”
“Objection.”
“She may have it.”
“No, I have not.”
“Did you ever attempt to speak to Bill Abernathy?”
“No.”
“That’s not part of your job, to attempt to speak to the person accused?”
“That’s not part of our job.”
“Do you know what a base rate is?”
“No.”
“Do you know what false allegations of sexual abuse are?”
“Objection, Your Honor.”
“Excluded.”
“Now, how many anatomical dolls did you give her?”
“I believe there were six dolls. They were a set of dolls. I brought them over to Chloe and she chose the dolls.”
“What was the breakdown of the set by gender and age?”
“Three females, three males. There’s an adult. There’s like an adolescent age and a child age of all those.”
Mathers interrupted to dismiss the jury for the day. “Depending upon temperature, we may go as late as 1:30 tomorrow or possibly stop at one o’clock,” he said. “Would you please all be here at 8:30 sharp?” Then he began lecturing the jury not to make any judgment until the end of the case.
“If you go home this afternoon and have a big discussion with your beloved spouse or the meat cutter up at Market Basket about the fact that you’re on a jury and what the case is all about and who has testified to what, you will hear from the meat cutter that he was on a jury in 1928 and here’s how he did it and therefore this is how you should do it and this kind of a case should be decided always in this particular way.
“Irrespective of how hard you try, you come away from those conversations with your beloved or the meat cutter with an impression you will find almost impossible to rid yourself of when you get into the jury room and try to decide these important issues fairly and honestly and equitably on the basis of the evidence that you heard.
“What I’m talking about is, don’t go into the jury room when this case is over with a whole bunch of impressions you got outside, either in talking with someone or reading about the case. There may be reports in the Salem Woods Daily Journal or the Salem Woods Sentinel of the evidence in this case.
“There may not be, but please, so far as newspapers are concerned, get the papers saved for you if you want to read them at a later date, but don’t allow your minds to become contaminated by that kind of exposure until the case is over and you have done your important work. Don’t talk about any of this case with anybody until you have completed your labors. Then, if you can get anybody to listen to you, we want you to talk as much as you would like to. That’s another matter.”
Mistrial at Any Price?
Bill, Bea, and Peter were joined in the hallway by Kate, Bill’s girlfriend, and Katherine Rose, his sister, for lunch. Kate and Katherine Rose had arrived in court sometime during the morning session. They split up to go in two cars to lunch.
The Chinese restaurant they chose looked like the majority of other pagoda eateries. Black and red and gold made up the color scheme. Tables were topped in off-white Formica with gold veins of various thickness running randomly over the top. The party was brought to red vinyl-covered metal chairs rather than to the red-vinyl booths.
They ordered an assortment of dishes from chow mein to sub gum and moo goo gai pan to shrimp in lobster sauce and pork strips and egg rolls.
After the waiter brought them tea and iced water, Katherine Rose asked Bea, “What’s going on?”
“What isn’t going on?” Bea began slowly listing the areas Mathers had excluded.
“Denise’s rape story, her alcoholism, her AA meetings, her depression, her obsession, her counseling, the divorce, the custody fight, anything related to the rape, like her rape groups, her friends from AA and the rape group, any of her other problems, the bottom of Denise’s affidavit, Goldblatt’s findings. Did I miss anything?
Oh yeah, not allowing her to answer the questions regarding violence, that you, Bill, had never been violent to her before. You heard Cooke’s objections and Mathers upholding them.”
The waiter began bringing the orders. They passed the dishes around—those that weren’t hot. Covers clanged. Large spoons were tucked beside them. Small pleasantries were exchanged.
“Instructing her to lie, to avoid answering a question to do with any of the things on that list,” Bea said, stopping only to put some Chinese on her plate and taking a bite before adding, “Instructing her to say, ‘I am not able to answer the question’ regardless of whether she could.
“At sidebar, he asked Cooke, ‘Has the witness been cautioned not to discuss her problems? I don’t want her to blurt it out.’ Sorry you asked yet?”
Moans, nervous laughs, grunts, chuckles were the general reaction.
“At sidebar, after instructing me to ask her a question to elicit a false answer, when I told him I didn’t want to put that answer in her mouth because it wasn’t true, he said to me, ‘Then I’ll exclude the question you asked.’” She took a sip of tea.
“Anyone mind if I light up?” No one did.
“He also allowed Tracy to add graphic stuff that even Chloe didn’t say. That was beyond the scope of proper fresh-complaint evidence. Unreal.”
“Is he going to let in the experts?” asked Bill’s girlfriend, a tall, slender, black-haired, sloe-eyed beauty. Had Kate been born in the village of her clan, she would not only have had the pick of the most eligible young men in the village, she would have been noticed by the reigning lord.
Clandestine could have become her middle name. At any hearth, she would have been described as unassumingly elegant.
“He hasn’t said yet whether he’ll allow experts,” Bea replied. “I’d guess, though, he’s not likely to.
The more he kept out about Denise, the more necessary Toffett has become to explain why Chloe said what she did in Tracy’s office.” Bea was eating and talking, not a very graceful thing to do. “I’m not a happy puppy.”
“What can you do?” Katherine Rose, a petite feminine version of Bill, asked.
Her adrenaline still high, Bea’s first reaction was to quip. “Well, I suppose I can get out of the kitchen to get away from the heat. Goodness knows, I’ve tried. I’ve lost count.... Since yesterday morning, I must have moved for mistrial more than a half-dozen times.”
Then she realized she had not properly answered the quite serious question Katherine Rose had posed. “What can I do?” Bea sighed deeply. “Well, if Mather’s as bad tomorrow as he was today and yesterday, it might be time for a mistrial at any price.” She looked at Bill. “At least you’ll not be in prison awaiting an appeal.”
“What’s a mistrial?” Kate and Katherine Rose asked at the same time.
“A mistrial is when—gosh, how do I explain it—a mistrial is when there is some misconduct in the trial process.”
“Can I be retried?”
“Depends. If a prosecutor causes a mistrial by misconduct, the defendant can’t be retried. If judicial misconduct is the cause of a mistrial, a defendant can’t be retried. But if a defendant causes a mistrial, he can be retried. Though, if a defendant moves for a mistrial, for instance, after he’s been goaded into it, he can’t be retried because he wasn’t the cause, even though he moved for the mistrial.”
“What’s prosecutorial misconduct?”
“Intentionally withholding evidence, physical evidence, exculpatory evidence, putting a witness on the stand to lie, saying highly prejudicial things.” Bea stopped to take a bite. “Over-reaching, saying prejudicial things in an opening statement or a closing argument, things that were not put into evidence at trial. Loads of different ways.”
“That hasn’t happened here,” Bill said.
“No, you’re right, not at the trial itself. Little bit of it earlier on, but we don’t have proof of it.”
“What was the misconduct?”
“Arline Fogarty taking the transcript of Chloe’s testimony out of the courthouse. She had no right to take that out. And whoever gave it to her had no authority to do so. We’ve been denied the use of it.
That’s a whole other story. Remember, Bill, I wanted to call Goldblatt as a witness. That was because we didn’t have the transcript.
“Can’t you order another copy?” Peter asked.
“No, we tried. Can you believe that the court reporter committed suicide? ‘Unrequited love,’ her boss said. And so far, no one knows where her notes are. What a shame! Such a pretty thing. So young.”
“What’ll be your reason for a mistrial tomorrow?”
“Oh, I don’t know. Probably more of the same. Denial of a fair trial from the beginning. The judge has certainly goaded me into asking for one. They call it irremediable harm to your ability to obtain a fair trial.”
“So what do you think will happen?” Bill asked.
“Well, I don’t know yet what Mathers will pull. I have to say, though, on one hand, the jury seems interested. The child just wasn’t convincing. At least I didn’t think so.”
“No, she wasn’t,” Peter said to reassure her. “The clerk said he didn’t believe it.”
“How do you know that, Peter?”
“I heard him say so, to one of the court officers.”
“How did you do that?”
“When I was on my way to the men’s room or getting coffee. Maybe when I was getting coffee.”
“Okay, there you go. And with Denise, even though the judge didn’t let us get all that stuff in, I kept on asking, ‘Excluding the subject which has been excluded, has blah-blah-blah happened?’ I was hoping the jury would see that we were trying to tell them everything, but that our hands were being tied. So on one hand, a mistrial might not be appropriate.
“But on the other, you have the judge making such irrational rulings, it’s impossible to say what tomorrow will bring. Like he said, he didn’t want to try two rapes in the case. That was his initial reason for excluding Denise’s rape. But what was his rationale for excluding that there is a pending divorce, or that there was a divorce trial, or that there is a custody dispute?
“Or her problems. I mean, that goes straight to the possibility or likelihood she would say something to the child or the child would overhear her say something to someone else. He asked her outright at that voir dire whether she said anything to the child. Of course, she said No. You can’t ask her that way. That was one thing that takes a lot more questions. So until I know what he does tomorrow, I can’t say what I’ll do. I just don’t know.”
Part 35 of 41 to be posted Wednesday, September 23rd
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