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She slept her way through what remained of the afternoon. The heat wave was still with them.
Hugh was putting his clothes on the valet. The tinkling of his change as it hit the well was enough for her to awaken. She stirred. He stopped moving. He wasn’t inclined to wake her. He watched for a few moments, intuiting that she’d had a difficult day—she wasn’t one for afternoon naps—and hoped she’d fall back into a stupor. She must have felt his gaze, though, because she opened her eyes.
He sat down on the bed beside her. Slowly, she brought him up to speed with her day. Silently, he removed a few strands of hair from her brow. He avoided getting embroiled into her arguments against Mathers. Both of them understood the possibility that Bill’s case might end up, like her other cases, on his desk. The difference here, though, was that the last time a Mathers case was before them, he and his brethren had reversed him.
“Hugh, this is getting spooky.”
“‘Even the weariest river winds somewhere safe to sea.’”
“But I’m going to fight him, Hugh,” she said as she rose on an elbow. “I’m not going to let my guy sit in prison until you decide to let him free.”
“That’s foolish. There’s only so much you’re obliged to do.”
“On a professional level,” she said, “but on a human, on a moral level, my obligation is greater.”
“Fighting him, openly challenging the court, could mean trouble for you.”
“And for you... maybe, if someone finds out about us.” She coughed, her throat drying with her growing anxiety. “Remember Bonin.”
Hugh just nodded. He did remember Bonin. Bonin was a brother, well-respected, who attended a seminar about gays when a gay case was before them. He was forced to leave the bench of the SJC.
The appearance of impropriety.
“I think we’ve run our course anyway.” She looked into his blue eyes. They were tearing. “Don’t you think?” She pulled the sheet up with both hands to her chin.
He didn’t answer.
They stayed there a while, each looking at the other, flatly, each holding back from their eyes what they really thought or felt. Numbness was a possibility.
She watched as he filled two valises with clothes and toiletries. They’d worry about the rest of his things some other time.
“You don’t mind if I don’t walk you to the deck?” she asked rhetorically.
He shook his head ever so slightly, then looked into her eyes. “I’m embarrassed.” He turned and walked out of the stateroom.
Where Is the Vagina?
“Yesterday, Ms. Tracy, you testified as to what Chloe told you at your office. Now, Chloe never said her father put his penis into her vagina. She never said that to you, did she?”
“She never said that he did it.”
That response was not unexpected. Chloe had never claimed to be hurt or feeling pain by vaginal intercourse.
“Now, the dolls—did you bring the dolls this morning?”
“Yes. I brought what’s left of them.” Tracy passed a large brown paper shopping bag to Bea.
Emptying them on the table, Bea said, “So four are left?” After establishing that only the adult male and the little girl were used by Chloe, Bea put the others back in the bag and had the child and adult male dolls marked as Exhibits 2 and 3.
“You got up and you went over to the anatomical dolls and you carried them over to her, right?”
“Correct.”
“At some point,” Bea used Cooke’s favorite phrase, “you told her it’s always better to tell a secret if someone is hurting you or someone is being hurt, right?”
“Correct.”
“And then you said, ‘What is the secret’ and Chloe answered, ‘Daddy tickles me’?”
“Correct.”
“And then you asked, ‘Where does daddy tickle you?’”
“Correct.”
“And then she said, ‘He starts at my feet.’”
“I’m going to object, Your Honor, at this point.” Cooke walked to the sidebar. Bea followed.
“Is that incorrect?” Mathers asked.
“It’s not so much incorrect, Your Honor,” Cooke said, “but we’re going into what I would say is somewhat of an objectionable area. I have been careful in my direct examination to try to follow the rules of evidence and I would say that counsel is now about to go beyond the rules. So I want to object so that I can preserve my rights to go further with this witness, if counsel is allowed to question into this area.”
Bea thought, Damn her. She’s objecting only to interrupt my rhythm. As if Mathers is not enough.
“Well, if the defendant opens up part of it, then the defendant will open up the whole shooting match as far as I’m concerned,” Mathers commented.
Where the hell is he coming from? Bea thought.
On direct, Tracy had been allowed to say that Chloe made the hand of the female doll fondle the male’s penis, that Chloe put the female’s mouth on the penis, that Bill had a virus in his penis, and that his pee-pee didn’t taste good.
How much more can I open it up?
The sidebar over, Bea asked Tracy,
“And Chloe said, ‘He starts at my feet,’ isn’t that true?”
“Yes.”
“And ‘Then my knees,’ isn’t that true?”
“Yes.”
“And then she said, ‘Then hangs me upside down.’”
“Yes.”
“And then you said, ‘He hangs you upside down’ and you wrote a little question mark, isn’t that true?”
“Yes.”
“And then you said, ‘Does he tickle you while you’re upside down?’ And she said, ‘Yes, he puts his fingers in my underwear and he touches my bottom.’”
“Yes.”
Considerable tussle between Bea and Tracy ensued over the words “bottom,” “bum,” “vagina,” and “buttocks.” Then Tracy said, “She never said those words. Those were in parentheses. That was my analysis and assessment of her differentiating between the two.”
“How did she differentiate between the two?” Bea asked. “We weren’t there. How did she do it?”
“She just pointed to her vaginal area.”
“Can you come out here to show the jury?”
Bea wanted Tracy to demonstrate what Chloe did. But, after still another tussle between Bea and the judge, Mathers forbade it.
“Counsel, please ask your next question, will you? We’re not going to have demonstrative evidence put on here. She has indicated the child pointed to her vagina. That will suffice.”
“She pointed from the front on the word ‘bottom’ ?”
“Yes.”
“And she pointed from the back on the word ‘bum’ ?”
“Correct.”
“And then you said to her, ‘Will you show me with dolls how Daddy tickles you?’”
“Yes.”
“And so Chloe started tickling the dolls. Can you show us what she did?”
In order to tickle her while he was holding her upside down, Bill would have had to hold Chloe with one hand while she was struggling, assuming the child was struggling.
While it was possible for Chloe to hold a doll that way, it would have been impossible to hold a child that way and simultaneously abuse her.
Bea believed this was also not how an abuser would realistically abuse.
“Again, I am going to object.”
“May I again, Your Honor, ask permission for her to demonstrate?”
Bea was motioned to go to the sidebar.
“I feel constrained at this point to warn you that you are approaching the limits of representation of this client to the extent of inadequate representation. You are burying your client alive with this line of questioning. I am only saying this because I am concerned this may result in the need for another trial and different counsel.”
“I’m concerned that my client will get convicted because I can’t show bias and I’ve got to show the bias and the flaws in what is being reported.”
“Take the word of someone who has been in this business for over forty years, Ms. Archibald, at the trial level. You are burying this man alive with this line of questioning. Now, if you wish to pursue it I can’t stop you. This case is on extremely thin ice from the standpoint of adequate representation. I’ll say nothing more.”
With this comment from Mathers, Bea lost it. Back in front of the witness, Bea forgot to push how the doll was held.
From thereon, Bea tried to establish not only that there was no vagina on the doll but also that there was only about an inch or an inch and a half between the waist of the doll and the bottom of the torso or the groin of the doll. One could easily conclude the child was touching the vagina even if the child thought she was touching the tummy.
“How do you know she was tickling the vaginal area?” Bea asked.
“Because she held the doll upside down.”
Watching Bea hold the doll and keep the doll’s dress in place, Carol Tracy corrected Bea. “She didn’t hold the dress.”
“May I, Your Honor?”
“Certainly.”
“Thank you.”
Bea let the dress fall down over the doll’s head. Under the dress, the doll’s panties stayed in place. “Is this how she held the doll?”
“I believe so, yes.”
Looking at the doll—whose private parts were still covered, Bea asked, “How did you know that when she put her hand in there—” Bea stopped herself as she pulled down the panties.
Surprise! There was no vagina. “That’s just a seam there, right?” Bea asked.
“I think you’re showing the back of the doll,” Tracy said.
“Well, I think the same seam exists in the front. It’s only one row of stitches, right?”
The two rectangular pieces of cloth were joined by one seam. In the groin area, the doll looked the same from the front as it did from the back. There was nothing there other than the seam. There was no vagina to tickle.
“May I pass this around for the jury?” Bea wanted the jury to inspect the doll so they could see for themselves Tracy’s observations were unreliable.
“No,” Mathers said.
That “No” was unexpected. Bea should have been able to have the doll inspected by the jury. She wanted the jury to see the doll had no vagina—no “bottom.”
Bea tried then to convey in words what the jury was not being allowed to see. “The bum and the bottom are the same place, because it’s just a straight seam, isn’t that true?”
“Objection, Your Honor,” Cooke said.
“Excluded.”
“Objection, Your Honor,” Bea said, and then asked Tracy, “What did the child do? You can demonstrate it.”
“She picked the doll up and she made sure the front was showing and she inserted her fingers inside the front of the underwear.”
“Now, where did your finger touch?”
“The vaginal area.”
“Well, vaginal area. But since that’s not really anatomically correct, it’s one seam, isn’t it?”
“I object at this point,” Cooke said.
“No, it’s not,” Tracy said.
“Excluded,” Mathers said.
“Did you then have her show you the way you just showed me?”
“No, she showed me first.”
“Why did you call it the vaginal area?”
“Objection, Your Honor.”
“You may answer that.”
“Because it’s two separate circles on the doll. One is the vaginal area and one is the anus,” Tracy said.
“Then when she pointed to the bum, where did she point?”
“She did not point to the doll’s bum.”
“May I ask her to show us the bum on the doll?”
“Yes, indeed.”
Tracy pointed to the one and only circle on the doll—in the middle of the back at about the height a belly button would be on a flat-tummied person. The circle in the middle of the back had no equivalent in the human anatomy.
“So, before when you were showing me the vaginal area, you were showing me the bum?”
No response came from Tracy, who, at that point, appeared to realize she’d pointed to the same circle both times.
So long as the circle was in the middle of the back, Tracy’s conclusion, therefore, that Chloe touched the vagina was inconsistent with the doll and was unreliable.
Suddenly the judge yelled out, “Please, Ms. Archibald. Stop it, will you please? I’m going to take a brief recess. I will excuse the jury briefly.”
The naïve observer would probably conclude the judge lost his cool because nothing seemed to make any sense. The cynical observer would probably conclude the judge, upon seeing there was only one circle and no vagina, realized Tracy’s testimony was about to be totally impeached, which, given his bias, he did not want to happen.
A sophisticated lawyer would have said Bea should have described the child doll when she put it in as an exhibit. But Bea was trying to get Tracy to admit there was no vagina on the doll because it would be by far more memorable to the jury.
Bea concluded, had Mathers waited for Bea to ask Tracy to find another circle on the doll—had he merely waited for the rest of the demonstration—what was about to happen would not have happened.
A Warning
Twenty-two minutes after the morning session began, the jury was escorted out of the courtroom and the judge turned to Bea’s client.
“Mr. Abernathy, I feel compelled to do something I have not done in nine years on the Superior Court bench on any occasion, and that is to warn you that in my judgment the representation you are receiving in this case reaches degrees of inadequacy that I think have constitutional overtones. What I am saying, in effect, is, it appears to me that the action of your counsel is burying you alive in this case. Do you understand what I am saying?”
William Abernathy nodded.
“That being the case I am going to take a moment to check some law on this subject. It is my firm conviction you are being inadequately represented and if I can do so without jeopardizing the position of the Commonwealth in your case, I will, with your permission or upon your motion, consider allowing a mistrial to afford you an opportunity to get different counsel. I want to check the law before I do that because I’m not certain I can do it without jeopardizing the position of the government, which would not be fair to the government.
“In the meantime, while I take this recess I am going to ask you to give consideration to what I have said to you and be prepared to indicate to me when I return whether it is your wish that I declare a mistrial or whether it is your motion that I declare a mistrial or whether you prefer to proceed with
present counsel representing you. Do you understand what I have said to you?”
William Abernathy said, “Yes.”
The judge withdrew to his chamber. Bill and Bea withdrew to the hallway, where she explained the ramifications of a mistrial, much of which they had discussed yesterday at lunch.
The Inevitable
“Well, here we are, a mistrial. As I said yesterday, a mistrial was inevitable. I can’t even count the number of times I moved for a mistrial on the grounds of judicial misconduct. I started in chambers even before we selected the jury. I can’t believe how he didn’t let up. He was getting even for my telling him off in chambers. Naw, I told him off because he’d already made his mind up about what he was going to do.
“God, I don’t need to give myself the guilties now. More stress. The bastard has been holding me over the coals since Minute One. Not allowing us to put in the rape, not allowing us to put in Denise’s state of mind. I can see where an appellate court could end up anywhere on that, but here there’d been judicial findings she was obsessed on the idea of rape and had intimidated the child.
That’s pretty strong stuff.” Bea got up and paced the small area in front of the bench on which they’d been sitting.
Bill just watched her. Anxious himself.
“Bill, I lost it. I lost my cool. ‘You can’t put this in, you can’t put that in.’ Damn. Then the threat of fines. Damn. Normal sweat wasn’t enough. In that oven, my clothes were like towels in a sauna.”
“What should I do?” he asked.
“First thing is to get rid of Mathers. Whether I continue representation or not, you’re going to prison if he stays on the case. That’s number one. I’m only your second problem. He’s your first. Anything we do, his recusal is the first condition. Agreed?”
“Agreed.”
“Next, was I ineffective? If I don’t know, you can’t possibly know in the legal sense. Was I smooth? Sometimes yes, sometimes no. Good, I understand with Chloe. Right, Peter?”
Peter was so new on the job he was staying out of it. He looked in shock. But he managed to respond encouragingly, “Yeah, the jury looked as if they liked how you questioned her.”
“But with Denise, no,” Bea said. “I know that. I know I did not do as well as I had hoped or as well as I should have, particularly during the voir dire. But I did give the jury something to think about when I kept on saying—at the end of the cross-exam—‘except for the issue that keeps on getting excluded.’”
“Yeah, that was cool,” Peter said.
“The jury had to be wondering what the hell was going on. That might have been enough for reasonable doubt, knowing that we wanted to tell the whole story and the court and the prosecutor didn’t.”
“Well, I think they knew,” Peter said.
“How?”
“One of the court officers told me yesterday.”
“Huh?”
“Yeah, he said that during the voir dire, the jury heard you.”
“How? They weren’t there.”
“They were only in the next room, Bea, and your voice is not what you call whispery. He said they heard the word ‘rape.’”
“Good. I’m glad they did. No jury wants secrets kept from them.”
“Wouldn’t the jury hearing something they shouldn’t have be grounds for a mistrial?” Peter asked.
“Probably, but who’s going to say they heard? You heard it, what, second- or third-hand?”
Peter wagged his head.
“The court officer in charge of the jury, he’s the one who should say something to the judge.”
“Suppose,” Peter said.
“Wonder whether he did?”
Bill listened intently, waiting patiently for instructions.
“After Mathers let Cooke and Tracy go beyond the scope of what should have been allowed for fresh-complaint testimony, I took a risk. Mathers told me at sidebar if I opened it up, it was our problem.
“As far as I was concerned, he had already opened it up. I, in fact, had to tear it apart, particularly the doll. I was shocked when I saw there was no vagina on the doll. That was a stunner. I couldn’t believe he wouldn’t let me give the doll to the jury and let them pass it from one to the other to see how the doll was made.
“That would have saved lots of those awkward questions. Well, at least the jury saw me holding the doll in those different positions with the clothes on and off as I asked them. But when he didn’t allow me to give the doll to the jury, I should have read a description of the doll into the record. That was my biggest mistake.
“But it wasn’t fatal. That doll would have gone into the jury room with them because I’d had it marked as an exhibit. And I was about to ask Tracy how many circles there were on the female doll, what they looked like, and state where they were located on the doll.
“So was I really ineffective? I don’t know. Was I smooth? No, I was not. Was my performance fatal to your case? No, I don’t think so. I won’t be able to tell until I see the transcript.
“What hurt us most was Mathers’ attitude. The disrespect. The condescension. That rattled me. Got to me. So was I ineffective or did the court goad me into being ineffective? Shoot, I don’t know. The rattling, did it bother me? Well it broke the flow. The threat of fines. Nah. That didn’t do it.” She paced again, back and forth, back and forth. Suddenly she stopped short. “You know what it was?
‘Objection. Excluded. Objection. Excluded. Objection. Excluded.’ That’s what it was.”
Peter laughed. “Sometimes he’d say excluded when Cooke didn’t even object.”
“Is that what it was? No wonder I kept going. When he ragged me for not stopping, I thought I simply hadn’t heard her. Are you sure? She just didn’t raise her pencil, maybe?”
“‘I’m sure. She didn’t raise a pencil, and she didn’t say, ‘Objection.’”
“Did she wag her head in any way?”
“Nope, at least, not that I saw.”
Bea paced again.
“I really don’t know what to tell you, Bill. I really don’t know. I always have a hard time blaming someone else for what I do. I feel so guilty if I do. Damn! I should have been better. But I’m too close to all of this now to be able to answer why I wasn’t. Better, that is. For sure, I’m too emotional for all of this happy horseshit from the bench. But my feeling passionate about the case doesn’t give Mathers the right to put me down for it. Or to trample your rights. So Bill, if I don’t know whether I was ineffective—in the legal sense—as counsel, you cannot possibly know.”
“Well, should I agree to a mistrial?” Bill asked plaintively.
“You have to. You can’t go forward by yourself. He’s not going to allow the experts. I’m convinced. His instructions to the jury will be skewed. I don’t want you convicted and sitting in prison while you appeal. They almost never overturn convictions. Even with all this talk of ineffective assistance of counsel, the higher court can say you waived that argument when you chose to go forward. You simply can’t risk it.
“Another thing—the Commonwealth now knows something they didn’t know before. They know now there was no vagina on the anatomical doll. They might get scared off from doing it another time. Who would they have left as witnesses?
“Think of it, they weren’t going to call Heather, or Detective Cooper, or Leavitt, or Gidseg. All of them were vulnerable.
“Heather became vulnerable after the depo. So did Cooper. Leavitt tried to bull her way through the divorce trial, but Goldblatt didn’t believe her. The DA got worried about that. The flashbacks, the possums, Denise’s reports to her—not knowing anything about the development of a child. Her gut feeling that you did it. That was the basis for her so-called expert opinion. No, the DA didn’t want to take a chance on her at this trial.
“The DA didn’t want Gidseg, we did. The DA wanted to avoid her because of the wooden baseball bat. We wanted her because it was so bizarre that it made clear Chloe was saying whatever wild story she thought a social worker wanted to hear.
“So who do they have left? Denise and Carol Tracy and, of course, Chloe. If another judge lets in Denise’s rape story and the six-year obsession, her credibility will go out the window.
“The child also wasn’t believed by Goldblatt and she was too smiley yesterday to be believed. She had no pain. There’s no evidence she showed pain to anyone who’s interviewed her. And Carol Tracy, I don’t think the DA knew she wasn’t licensed or that the doll didn’t have a vagina.
“And Cooke certainly didn’t know about Denise’s affidavit for the restraining order. She got away with getting the bottom of that affidavit blanked out by Mathers, but she might not with another judge.
“Let me tell you, they excise things all the time, but not this sort of stuff. They’ll black out that part of a hospital record which has, for instance, an unidentified nurse’s comment about what the patient said. That’s real hearsay. The argument to keep it in would be that it’s against the patient’s interest—the patient is now the plaintiff—and it can come in. But without knowing who the nurse was, the patient’s lawyer can’t cross-examine the nurse to find out the circumstances in which it was said, or whether the writing accurately reflects what was said or what happened. In that case, it would be too prejudicial to show to a jury. So they cover it with tape or blacken it out.
“But this was a statement under the pains and penalties of perjury written and filed in court by the person on the damn witness stand. This was not hearsay. This was something Denise represented to the court in order to induce the court into issuing a restraining order. That’s not small stuff. You don’t doctor it up. You don’t put a white bandage over it.
“Another judge may not play along with Cooke. The Commonwealth isn’t in a rosy position here either. The DA’s not going to be so quick to get another trial date.”
Now both Bill and Peter looked puzzled.
“Okay, guys, bottom line. Yes, I repeat, you should agree to a mistrial. I’ll try to get the judge to make the determination for you, Bill, that I was ineffective. As a layperson, you cannot make that legal determination. Then your next attorney can say that I, as ineffective counsel, did not properly advise you regarding double jeopardy, which cannot be controverted. After all, if I’m ineffective as counsel, all the advice I’m giving you now could very well be wrong.
“So my advice is, Go for it. One, you and I agree to nothing until Mathers recuses himself for this case forever. Two, Mathers finds me ineffective counsel. He has to lay the mistrial on me so you can be retried if the DA wants a new trial. Three, I tell him you’re not thinking about double jeopardy.
Parenthetically I have no idea what is in your mind, nor do I want to know. Parenthetically I have no idea what your new counsel will want to do, like move for dismissal on double jeopardy grounds.
Whatever I say now does not bind him or her to follow what I say. Four, you’re going to have to hire the best in town. Who do we know?”
Bill and Peter said simultaneously. “Michael Blakeley.” He was the president of the county bar association.
“Five, you’re going to stall as long as possible to go to trial. That child is not going to want to come back to court. As she grows older, there’s no way she’s going to come walking in with Roseberry.
And as an older child, she’s going to have to be a lot more convincing than she was the other day.
That’s it. Any questions?”
Peter asked, “Anyone for coffee?”
Bill and Bea said, “Sure.”
Just as Peter returned with the cups, the clerk came out to talk to Bea and Bill.
“Have you made any decision as to what you want to do?”
Bea went into negotiation mode. Some of the stress had been lifted off of her with the knowledge that Bill’s fate was no longer in her hands. She had tried earlier, to no avail, to convince him to go with a more-experienced criminal attorney.
Negotiations were peaches and cream compared to what she’d been dealing with the last three days.
She began with highballing: trying to have the court accept responsibility for the mistrial. Retrial would then be a no-no. For around forty minutes, the session clerk made numerous trips with long strides between the bench in the hallway and the judge’s chamber.
Part 36 of 41 will be posted on Friday, September 26th
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