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A Gentleman
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Bea thought it too profuse, but she admired his generosity and the letter did give her some solace. What was particularly kind, she thought, were the words, “Regardless of Judge Mathers’ observation, I feel that you have provided Mr. Abernathy with legal representation second to none and that you should be commended accordingly.” He also wrote he might be in touch with her regarding further developments on the case.
Below “Warm regards” and his signature, there was a little happy face, one of those emoticon buttons. Bea smiled. Wouldn’t have thunk it.
Two months later, Michael predictably argued double jeopardy as grounds for dismissing the case. Considerately, he sent Bea a copy of it. He’d characterized the interplay between Mathers and her as “spirited pretrial and post-trial sparring.” She chuckled.
She was neutral about Michael trying to make her look blameless: he had to make her look good in order that the motion not appear frivolous. But she put his graciousness into the back of her head before putting the letter in the file. She never did know how to accept a compliment. Doesn’t matter, he wouldn’t have written the motion had there not been at least some truth in what he said. The transcript had to support him... and me.
Waiting
In August ‘93, Blakeley said the best thing that could’ve happened was getting Mathers to recuse himself from the case, but the DA was pushing for trial.
In September, Blakeley was prepared to argue Mathers’ declaration of mistrial was inappropriate. Bill was hopeful. Blakeley seemed confident. But the hearing on the motion to dismiss was postponed from September to October.
Then, because it made no sense to argue the motion before the particular judge sitting on the bench, Blakeley further continued the hearing to November.
And finally, because Blakeley had a conflict in his schedule with another case, to the second week in December 1993.
Having grown accustomed to continuances in court, Bill took everyone’s advice to enjoy as much out of life as he could. He played hard. By the end of ‘93, Bill felt guilty that Kate was getting dragged through more of this, and phoned Denise to talk about finalizing the divorce. He perceived Denise as threatening. What if she accused him of assault?
Between Christmas 1993 and the first week of January 1994, Bill was in criminal court a few more times. Blakeley told him the delays were inevitable, but that a legal issue might end it all. Bill was comfortable with Blakeley in court, but the pressure of just being in court was hard on him.
He told Larry Kupersmith, whom he continued to visit, “My lawyers say ‘Just be thankful you’re not in prison. Don’t worry about visitation.’”
In 1994, the motion to dismiss was denied, the appeal of the denial was also denied, then three different trial dates were set: June, September, and October. All were canceled.
“I’m just numb,” Bill told Larry. Pressure on Bill to get the trial over with was terrific because Kate was upset by the delays. She not only wanted a family, she wanted to marry in the Church—which meant Bill would need an annulment—and Blakeley was telling Bill he should want to avoid trial.
“Trial is too unpredictable, William,” Blakeley said. “You’ve waited this long—five years—a while longer won’t matter much. If you can avoid trial, it’s worth it.”
“I’m in a state of disbelief. I was convinced the motion would do the trick. I’m so disappointed,” Bill said.
“Well, in the meantime, I have other cases. That’ll give you some time to think over what you want to do.”
Around this time, Bill phoned Bea. “Bea, I really miss Chloe. What do you think we can do about visitation?”
“What we can do and what we should do are two different things. So much of my answer depends on what Blakeley wants to do. And, of course, on what you want to do. But I recommend you follow Blakeley’s lead, whatever he’s telling you. Which brings me to ask, what is he telling you?”
“He’s telling me to be patient.”
“There you go. Well, from my point of view, until the criminal case is resolved, you can expect supervised visitation only. And before even that will happen, you’re going to have to suffer another court-appointed psychologist’s circus, like the one Rhonda Cavanaugh gave us. Denise still hasn’t agreed to an alternate location for the supervised visits. So to get over that hurdle will mean more visits to family court.
“After trial... after trial, if you’re acquitted, Denise will lose, I assume, some of her piss ‘n’ vinegar, and getting unsupervised visitation rights—if not custody—should be quicker and cheaper.
“On the other hand, if you’re convicted, visitation and custody would be moot, and you will have wasted both time and money on trying to get them. So I don’t want to do anything until I hear loud and clear from you what you want to do.”
“I can’t fight for visitation. I’m out of money,” Bill said.
“That’s a cop-out. Money is a consideration, but it shouldn’t be your primary consideration. If I’ve made it sound like it is, I’m sorry.” She was worried about sounding unempathetic, given that her fees had been considerable. “Your primary consideration is the impact of whatever you do on Denise.
So far, she’s been pretty obdurate, if you will, regarding sites for visitation. And from what I’ve heard from you about the number of times there’ve been continuances, she doesn’t appear to be on the DA’s back panting for a trial.”
Bea could hear him inhale, that nervous gesture of his. “Because she gets my check regularly and isn’t on welfare.”
“Right on,” Bea agreed. “But if you push for visitation, she’s going to push for trial. She doesn’t want to let you near the child.”
Bill opted to wait fighting for visitation until after the trial.
In December ‘94, Blakeley said, “Trial will probably be in February.” Eventually four different trial dates were set in 1995: March, July, September, and December. All were canceled.
By September, Bill’s imagination began working overtime. “I fear prison,” Bill said to Larry. “I fear losing Kate and Chloe. I fear losing all I have.” But Bill was still playing hard.
In December ‘95, Blakeley again said, “Trial will probably be in February.” Eventually three different trial dates were set in 1996: February, July, and August. All were canceled.
At the beginning of ‘96, Larry wanted to know what Blakeley’s strategy was, but Bill had no answer to pass along. Bill told Larry, “I plan to talk with Blakeley. He seems to be delaying, but I’m not sure why.”
“Hi, Michael,” Bill said when he phoned Blakeley. “What’s the latest in strategy?”
“William, pursue the divorce and try to get supervised visitations. Chloe is almost twelve years old. She’s a big girl now. I know you speak to her every week, but maybe you can learn more of who she is now if you actually get to see her on a regular basis. Let Bea know.”
“Hi, Bea,” Bill said. “Blakeley said it was unclear why the DA isn’t pushing for trial.”
“Unclear?” Bea was amazed. “The DA isn’t pushing probably because Chloe doesn’t want to testify.
You’ve kept in touch with her through those weekly phone calls. And Denise is probably not pushing the DA because you’re not pushing for visitation.” She chuckled. “You guys. It’s clear as a bell.” She laughed. “Did he say anything about getting the divorce?”
“He said, ‘Go get it.’”
“Full steam ahead. Finally!” Bea sighed in relief. “I have to agree with him. Getting the divorce now, prior to the trial, is a good idea. We can make lemonade from the lemon. If Denise believes you’re going to be convicted, you might get away with very little alimony for a short time, which normally would be unheard of for a long-term marriage.”
“That sounds great,” Bill said, excited. “It would be less of a financial strain if Kate and I get married.” Bill then laughed somewhat self-consciously. “And she’s quite anxious for children. She’s worried about the time clock.”
“I’ve run across that before,” she said. “But I can’t promise when the divorce will come to fruition,” she cautioned him. “Bill, I know you and Kate are churchgoers, so I hesitate to say this, but it’s the
‘90s. You could get a jump start on a family.”
He laughed.
“Of course, if you’re convicted, would Kate want to be a single mother?”
There was a small, almost imperceptible, groan.
Her jump-start suggestion was not going to be a hit. “Look, you really do need this divorce now.
And, as I said, it’s likely Denise won’t hold out for big alimony. She’s already resigned to the idea of welfare after the conviction. She’ll fight the custody, though, and that’ll put us back to where you were two years ago.”
“The custody,” Bill said, “Every time I think of giving up custody, I feel as if I’m abandoning Chloe and that I’ll lose her forever.”
Daring the Divorce
“Look, Bill, seeking custody made sense six years ago, and we gave it a good shot. But now Chloe has been with her mother for more than five years. It would probably be traumatic—with or without the criminal charges pending—for custody to change now from Denise to you. None of us could’ve foreseen what happened these past years. So dropping your claim for custody would actually be realistic.” She was speaking slowly, just in case he wanted to get a word in edgewise, but he didn’t say anything. “It also makes sense in terms of your plans to start a new life with Kate. Think how difficult it would be for her to become a mother overnight to a live-in stepchild under these circumstances.”
“Oh, I never know what to do. It hurts so much just to think of it. I keep on avoiding it.”
Bea could sympathize with his indecisiveness. “At least talk it over with Kate. It’s her life too. Then get back to me. Loud and clear, remember. Loud and clear. So I’ll know what to do.”
It took Bill a month or two to call Bea back and say he was willing to drop his claim for custody. One point resolved.
Without hesitating, Bea sent a letter to Aguilar to start negotiations for a settlement with Denise. A flurry of letters were exchanged between Bea and Aguilar, including financial statements, and eventually with Leonard Goldblatt.
Bea and Bill were surprised by Denise having saved so much of the child-support and alimony payments he’d made over the years.
“She never went out,” Bill said. “Where would she have spent it? The mortgage is small and I cover the insurance and the medicals. And I’ve bought Chloe a lot of the big stuff, as presents, you know, like a bicycle and a computer.”
So it was not difficult to understand why Denise was stalling on the divorce and not pushing the DA. She was getting the mortgage paid off. He didn’t have access to the child. And she had never felt threatened by him. She would continue to stall. That was predictable.
Yet, while all this was going on, Bill said to Larry, “It’s a relief to take some action.”
“Kate still by your side on this one, Bill?” Larry asked.
“Yes, and she seems pleased that things are finally moving.”
“But,” Bill said to Bea, “I still plan to push for supervised visitation.”
“That’s okay. I thought you would,” Bea said. “You realize, pushing for visitation is apt to waken the sleeping giant. She’ll push for the trial hard now.”
“Yeah, I’m expecting that. But I’ve got to get it over with anyway. Otherwise I’ll lose Kate, too, and I don’t know if I’d be able to handle that.”
“Okay. Get me some names of alternative supervisors so I can propose a plan for the supervised visitation. I still have the other names on file, but we don’t know whether they’re still willing, et cetera.”
Shortly thereafter, Bea set up a conference call with Goldblatt and Aguilar in hopes of finding a solution to the impasse, short of having to go into court on the visitation issue.
In May, both Kate and Bill met with Blakeley. “Do you want to risk going before the judges there or wait it out?”
“It’s been 7 years 7 months, Michael, since this all began. I’ll let you know this week.”
Bill and Kate then visited Larry and asked whether Bill should go ahead with trial or not. It wasn’t Larry’s call to make. “I want to get it over with too,” Kate told Larry, “but there is a risk of a peculiar jury.” At that visit, Larry learned that Kate didn’t see the value of Bill’s visits to him.
“I want to see Chloe. To do that, I have to get it over with,” Bill told both Blakeley and Bea. “So, it’s a Go.” Blakeley and the DA had already set the second of the trial dates for the year.
Blakeley and Bea told Bill the judge was a good one. Bea knew the judge from a civil case and had been impressed by her uncommon intelligence. Blakeley knew of the judge by reputation. But then Blakeley hesitated—probably because the judge was a former assistant DA on a women’s issues team. “William, you’re better off delaying. I suspect the case will be dismissed at some point.”
“When?”
“It’s unclear when.”
“But that would mean more waiting.”
“William, the juries are just too unpredictable these days. The juries are convicting. Cases that shouldn’t be lost are being lost.” Blakeley told him about a dentist from a nearby affluent suburb who was convicted. Apparently he and his friend who tried the case thought acquittal should have been possible. “Weigh your fear against the outcome of jail. You could lose after all this hoping and working hard.”
A month later, Blakeley was still warning Bill. “There are risks in trusting a jury to straighten all of this out—even if it’s a good case. You’re better off waiting. Eventually there’ll be a dismissal. So go ahead with the divorce and see if there’s a way to get visitation.”
But Blakeley was still curious as to what Chloe was like. “I’m troubled by the child’s willingness to cooperate and testify against you if you didn’t do any of the acts with which you’re charged.”
“Better go with the advice of your lawyer,” Bill’s friends were still advising him.
“The hardest part of waiting is not seeing Chloe. I can’t talk to her without Denise listening in on the extension, which makes seeing her all the more important. If I give up the trial, I may feel as if I’ve given her up. I’ve focused for so long on getting to trial, getting to see her, and a chance to tell my side of the story and have someone listen. And now, I have to wait again.”
Throughout the Fall, Denise was delaying settlement.
“Why is Denise resisting any visitation plans?”
“Because if you and Chloe are reunited, Chloe might balk at testifying against you,” Bea said.
“How’s Kate holding up?”
“I could lose her. That’s another fear.”
“Look, I’m going to file a motion to resurrect the visitation. At this point, it can’t put things any more up in the air than they already are.”
In the motion, Bea summarized the history of the abuse/rape issue and sent a copy to Blakeley, providing him a page and a half outline to use for the criminal trial, if it went forward. It contained Denise’s rape story and her problems, Carol Tracy’s lack of qualifications, Denise’s conversation with Chloe before bringing her to Tracy at the rape-crisis center, the vagina-less doll, and Rachel Gidseg’s wooden-bat story.
At the last minute, Bea prepared an agreement for the divorce, made multiple working copies of it to cut and paste as necessary, and asked Judge Goldblatt to attend the court hearing on visitation and be ready for action.
Bea explained what she was going to do to Bill. Once she had his approval, which came quickly, she sprang the agreement on Denise and Aguilar. Surprised, they bit. The bait for the agreement was Bill’s giving up the custody fight. They were willing to negotiate. Bea and Aguilar huddled on a wooden bench in the basement of the courthouse near the family service offices.
“Joe, none of us knows what’s going to happen. Denise believes he’ll be convicted. He’s hoping he won’t be. Given the conviction rates, I, personally, think it’s best to assume conviction. Agreed?”
“Let me ask my client.” And off he went to the connecting hall, where Denise waited.
He returned and sat down. “Yes, we can assume that.”
“Good. That means she’d have peace of mind if the house is in her name. The mortgage is almost paid off. He’ll give over his share of the house in lieu of support.”
“The court won’t accept that.”
“In these circumstances, they’ll be delighted the house issue is settled.”
“They won’t approve it.”
“Let’s settle the rest and give them a whole package.”
“I have to ask her.”
“Okay, let’s settle the rest first.”
“Their cash,” he said.
“She keeps hers. He keeps his. And she waives any interest she might have in his pension.”
“Let me check with her.” And off he went.
He came back. Denise began wanting five years of support payments to continue.
“One year,” Bea said.
“Four years.”
“Split the difference. He won’t try to get back the $10,000 she took.”
“She doesn’t care about the time share. He can have it.” And so it went. Believing Bill would be convicted, Denise agreed to a small amount of alimony for three years.
Given it was unlikely Denise would remarry, Bill could’ve been saddled with supporting her for life.
She’d go back to work within the year so she could contribute to the support of the child, which would reduce Bill’s payments, and get her own insurance. He’d keep her on his only if it didn’t cost him any extra. The child would apply for all scholarships, grants, and student loans. Denise and Bill would share equally the residual costs of college and uninsured medicals. Denise didn’t anticipate he’d be around to make any type of payments or provide insurance anyway.
While Aguilar was running back and forth between Bea and Denise, Bea and Bill discussed the possibility that if he were found not guilty, he could seek modification of the custody because of a substantial change in circumstances. Nothing in the agreement precluded that because Denise and Aguilar believed Bill would be found guilty.
Given that the house was valued around $90,000 and the court may very well have split it 60-40 in Denise’s favor—or even 70-30, which was not at all unheard-of when the husband’s salary is appreciably larger than the wife’s—financially, Bill was going to make out remarkably well.
A judgment nisi—an intermediate judgment that would become final unless Denise or Bill appealed or asked the court to set it aside—was issued on November 21, 1996. Goldblatt was delighted. He had waited through it all, speaking to old friends populating the court that hearing day. Then Bill immediately phoned Kate and surprised her with the news that judgment nisi had entered, news which he himself almost didn’t believe.
“I’ve kept it a secret from her, but I bought her an engagement ring,” Bill told Larry and Bea. “I’ll surprise her with it when the divorce is complete.” The no-fault divorce would be final on February 21, 1997.
Agreeing that Bill should see Chloe, a family service officer was going to interview Chloe and set up visits with a psychologist that Bill and Denise chose. After several months, the psychologist and another were not taking new clients or clients having sex-abuse issues, so visitation was held up once again.
Immediately after the judgment nisi, Denise, as predicted, began pushing the DA to bring the rape case to trial. It was set for February 18. Blakeley asked for a new date because the judge was a known hanging judge.
Bea knew of the next judge, Wendell Ankora, coming in. “He’d be excellent,” she told Bill, so he told Blakeley the judge was acceptable. The trial date was set for April 10, 1997.
During the last month before trial, Bill visited Larry twice and was very teary. Crying, he said, “My biggest fears are losing all I have... my plans for the wedding, Kate, my future... I could go to prison. I’m not in control.” Suffering terrible anxiety, Bill didn’t schedule another appointment. “I’ll call.”
Blakeley at the Bar
Before jury selection, Judge Ankora reconsidered the motions filed by both Bea and Cooke and heard by Mathers four years earlier, in 1993. Ankora’s courtroom was much wider and deeper than the first courtroom and had a pleasant gallery, several tiers deep, available for an audience. Mathers’ courtroom had only had one bench and a few collapsible chairs.
Ankora asked why Judge Mathers would not allow Denise’s background to come into evidence. Cooke did not answer and Blakeley didn’t know, so Ankora not only allowed Blakeley to make inquiry into Denise’s background, he told Blakeley to take his time and do it slowly.
After hearing Ankora’s ruling, Cooke withdrew, in one fell swoop, her motions to limit the scope of defendant’s opening statement, to view the defendant’s opening statement, to preclude Bill’s experts, to videotape the experts, to close the courtroom, and to have a special courtroom seating arrangement. Arguably some may have become moot because of Chloe’s older age, but Blakeley didn’t even have to argue that. Cooke knew that Ankora was not Mathers.
Chloe and Bill would see each other while she testified; the right of confrontation was preserved in full, although an exception was made again for Denise from the general sequestration order. The usual rules applied for leading questions.
Blakeley wouldn’t call DeSegonzac because he had become part of a front-page story when a sex offender, whose release DeSegonzac had recommended, re-offended when back in the community. And Blakeley would wait to determine whether he would need the memory expert, Toffett, because Chloe would be thirteen years of age.
“William,” Blakeley said when they came out of the courtroom, “tell your friends to be sure to get inside the courtroom early after jury selection and sit behind you.” Blakeley was referring to over a dozen of Bill’s friends—in addition to his family—Bill had asked, upon Blakeley’s request, to appear every day in court.
“Okay,” Bill said quickly.
“I don’t want Laura Cooke to fill those seats with the DA’s people.” It’s common practice for slew of assistant DAs to show up at trials... to learn, teach, offer suggestions, evaluate.
“Okay.”
“Be sure Kate sits directly behind you. I want the jury to be aware of her.”
“Okay,” Bill said without hesitation, thinking this was a slick move, but also upset his sloe-eyed Kate was being used as evidence that he hadn’t raped his daughter.
Because the law had changed since the first trial, Bill was allowed to sit in on jury selection in Ankora’s chambers. He was impressed not only by how intelligent Ankora seemed but also how patient and relaxed he was. Blakeley asked Bill his opinion on each potential juror. In contrast to the two hours that jury selection took with Mathers on the bench, jury selection with Ankora took a day and a half.
None of the public was allowed in the courtroom during jury selection, so Bill’s supporters and Bea waited in the corridor outside the DA’s office to see who came and went. Who was being prepared by the DAs and the victim witness advocates? That’s what Bea wanted to learn. She almost didn’t recognize Chloe. She walked just like Denise, and held herself in the same way. Roseberry was not to be seen. The stuffed dog had been replaced by fashionable black ankle boots. And Chloe’s short, curly, blonde hair had become long, curly, and reddish.
After jury selection was complete, but just before lunch and the witnesses were called, Blakeley came out of court like a cat on a hot tin roof. Pressure is getting to him, Bea thought. He’s scared. Guilt is murky. His customary gait of rolling from heel to toe was exaggerated. He was walking almost solely on the balls of his feet. This isn’t the usual defendant. Like the dentist recently, as he'd told Bill, so many innocents are getting convicted.
Cooke came out of court and spotted Bea. Bea noticed her too. Cooke must have lost twenty-five or thirty pounds and had a pasty, anorexic look. Even her nose looked sharper. Almost immediately, with a glance to the side at Blakeley, Cooke syruped out a greeting, “Hi, Bea. Are you here to help Michael?”
Blakeley roared at Cooke, “Don’t you harass her!” The chatter of everyone in the hall became still and all eyes jerked to him. Bea, who had been sitting on a bench, spasmed in surprise.
Embarrassment poured into Cooke’s face. With more color in her face, Cooke defensively asked Bea, “I didn’t harass you, did I?”
Of course, Cooke hadn’t, but not wanting to side with Cooke against Blakeley, Bea said, “Who, you?” With that, Cooke walked off to the DA’s office. She had been playing a game of one-upmanship, but Blakeley was electrified.
Look for Part 38 of 41 to post on Sunday, September 28th
