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Blakeley had been allowed to question Denise about her alcoholism, the rape story, the rape groups, her personal counseling, the divorce, and more. As a result of his questions, Denise was coming across as not the blameless mother.
Bea could have shown Denise’s control, but to what avail? She wouldn’t have been able to account for Chloe’s initial disclosure. The impact would not have been the same. Self-doubt, counterproductive self-doubt was the ultimate punishment Mathers had given Bea. She would never forgive him that.
Hugh hadn’t helped.
Corroboration
Carol Tracy was four years older since she had last testified in this case. She’d had four years more of no one questioning her judgment and four years more of no accountability. She also now had a degree and a license as a social worker which she didn’t have when she interviewed Chloe.
ADA Cooke began by asking Tracy to explain a rape-group meeting in which Denise participated.
“And did Mrs. Abernathy indicate to you what her concern was at that point?” Cooke asked.
“About the talking hand, yes.”
“Aside from the talking hand, did she indicate any... did she elaborate any further beyond what you just described?”
“She described the punching and kicking, and that was all she talked about that evening.”
“And what are anatomical dolls?”
“They’re dolls that are detailed like a person would be.”
Blakeley said, “I’m sorry, detailed like what?”
“It has the anatomical parts that a person has.”
Cooke then instructed Tracy to explain what happened when interviewing Chloe. “Tell the jurors what next happened.”
“When I asked her if she would tell me what the talking hand said or tell me what the secret was, she said her daddy tickles her.”
“Your Honor, excuse me,” Blakeley said, “at this point, I think it’s incumbent on me to ask the court to instruct the jurors on the limited use of this evidence in the sense of fresh complaint.”
“Correct,” the court said, and proceeded to give, in Bea’s view, an accurate description of a fresh complaint and the corroborative purpose of a fresh-complaint witness’s testimony.
“I asked where he tickled her.”
“And did she explain to you?” Cooke asked.
“She did.”
“What did she explain?”
“She said he starts at her feet and moves up her legs, and then he hangs her upside down.”
“Did she say anything further to you at that point?”
“Not at that point,” Tracy said.
“I was just surprised he had hung her upside down,” Cooke commented, for emphasis on the act.
The remainder of Tracy’s testimony was the same as it had been, with the same graphic details.
“She said his pee pee doesn’t taste good and she thinks he has a virus in his penis.” Blakeley didn’t object to this comment, even though “pee pee” wasn’t a fact to which Chloe had testified.
“Did you inquire further of her at this point?”
“I said, ‘You think he has a virus in his penis? What makes you think that?’”
“And what did she respond?”
“She said it comes out in her mouth and it doesn’t taste good.”
I Didn’t Say I’d Never Say It
The Massachusetts Coalition Against Sexual Assault had twenty-one centers across the state. The Salem Woods center was one of them and Carol Tracy was its director. Although the American Psychological Association recommended videotaping or audiotaping, the MCASA did not, and according to Carol Tracy’s description of its policies, it sounded like it was Invasion of the Body Snatchers of the ‘90s.
In beginning his cross-examination of Tracy, Blakeley said, “Is it your understanding this coalition has a position that a child being interviewed for alleged abuse by his or her father or mother, perhaps, should not be tape recorded?”
“It is the stance of the coalition that you keep minimal records as possible.”
“That you keep— What is that?”
“As minimal records as possible.”
“As minimal records as possible.” Blakely, too, was emphasizing what was important to him.
“Um-hmm.”
“And, in fact, you would agree with me that you don’t even take notes yourself, until after your meeting, or whatever it is, is over, and then you go and reconstruct question and answer, right?”
“Reconstruct?”
“Well, let me ask you this. Do you sit there right in front of the child and take notes?
“No, I would never do that.” Tracy sounded pompous.
“Because you’re trained not to do that, right?”
“Right, I would never do that.”
“So you have no audiotape or videotape, right?”
“Right.”
“And you have no notes, right?”
“Correct.”
“What you do is, later you go back and reconstruct or write what your memory is of what was said at that time, correct?”
“Um-hmmm.”
“Now, in your studies, did you also study the use of what you referred to as... what did you call them, anatomical what?”
“Anatomically detailed dolls.”
“Isn’t it true that originally you guys used to call them anatomically correct dolls and—”
“Yes, that’s true.”
“But now you’ve changed. You’ve been taught to use the words ‘anatomically detailed’ dolls, right?”
“That’s correct.”
“And that’s because there is quite a controversy in your field about the use of these things, isn’t that right?”
“Restate the question for me,” Tracy said.
“The reason you changed the words in your mind from ‘anatomically correct’ dolls to ‘anatomically detailed’ dolls is because there’s a controversy about these dolls in your field, correct?”
“I don’t believe that’s why the term was changed, no.”
“Well, you would agree with me that certainly articles have been written in various psychological magazines, child sexual abuse magazines, dealing with these dolls?”
“There’s controversy around using them when you’re inexperienced, correct,” Tracy said.
“Back in 1989, when you had Chloe Abernathy in the room, were you experienced then?”
“I wouldn’t say I was an experienced anatomically detailed-doll interviewer, no, at that time.”
“You were not an experienced individual in using these dolls?”
“At that time with the dolls, no.”
“I’m asking you about the date when you indicated you were going to report a 51A against this man.
You were not experienced in using those dolls, were you?”
“Not with the dolls, but I didn’t need that.” Tracy continued to be argumentative.
“In fact, the dolls you refer to as anatomically detailed, they are disproportionate in the size... They have the penis, they have breasts, they have all that stuff right on the dolls themselves, isn’t that right?”
“Disproportionate in size?”
“Yes, isn’t it true they focus the child’s attention right on the sex organs themselves?
“No, that’s not true.”
“You don’t obviously have the dolls anymore, right?”
“No, I don’t.”
They were deep-sixed?
“Okay, but you do have, you can identify these things as to what they look like, can you? Teach a body of lay people? Does that ring a bell?”
“No.”
He showed her an advertisement for anatomically correct dolls, but she claimed her dolls hadn’t looked like that. Bea suspected Blakeley was using the advertisement that was in her files when she passed them on to him. The dolls at the first trial didn’t resemble the advertisement at all. She never thought to warn him, because she thought he knew the dolls were exhibits and should have been in the custody of the Probate & Family Court.
Blakeley began asking whether the dolls were circumcised or uncircumcised. Even Bea thought that was over the top, but she had asked about labia.
Leaving that topic he went on to ask, “Are you familiar with things called the Thematic Apperception Test, TAT?”
“Yes, I am.”
“Are you familiar with the studies that have actually come out? Are you familiar with the Institute for Psychological Therapists?”
“No.”
“Are you familiar with the use of the TAT test that would allow a blank screen in the sense of the child’s mind, as opposed to focusing on naked bodies or focusing on anatomical design through those anatomical dolls?
“I’m very aware of what TAT is. It’s not my training.”
“It’s not your training, right?”
“No.”
“That’s because you’re not a psychologist.”
“Right.”
“But you know the American Psychological Association has recommended that only trained psychologists or trained individuals should use these anatomically detailed dolls, correct?”
“That is their wording, it’s not the licensed clinical social worker’s belief.”
“So the licensed clinical social worker, which you are, would differ with the American Psychological Association, correct?” Blakeley didn’t flinch going head to head with her.
“Correct.”
“And you feel if you’re trained properly, it’s okay to use those things?”
“Correct.”
“But in this case, you agree you were not trained properly to use them, correct? But you didn’t need them anyway.”
“I would give you that.” This was an unexpected concession from Tracy to admit for all intents and purposes she had worked to no standards when she interviewed Chloe. “That’s right, I wouldn’t have needed them anyway.”
Blakeley then asked if she would agree that the use of the anatomically so-called correct dolls focus the child’s thoughts, fantasies, and feelings into matters pertaining to the anatomy of the human body.
“No, I don’t agree at all.”
“You’ve already indicated to the jury you actually haven’t had much interaction with either her or her mother, anyway, other than this initial July 1989 involvement and running into them in court on occasion, right?”
“I’ve said that about Chloe, but Denise Abernathy was in a group of mine.”
“Before the disclosure, correct?”
“Yes, and after.”
“Is it your understanding, by the way, that the American Psychological Association recommends and suggests that a psychologist or psychiatrist who does not keep adequate notes of sessions and procedures actually is in violation of the APA professional standards?”
“I’m not a psychologist. I don’t know their guidelines.”
“Okay, but as far as social workers are concerned, you don’t have to do that.”
“We have different guidelines, correct.”
Denise had come for an individual session, but when she heard there was a group, she wanted to be part of it. Tracy had spoken to Denise for about an hour to learn why she was there.
“What did she tell you about the rape involving her husband?”
“Correct.”
She evaded that question!
“When was this conversation?”
“I don’t know.”
“And there are no records at all of this, right?”
“There might be records of that. There might be a log showing a one-hour individual session and the date, but there’d be no written information about it, no.”
As far as the discussion you had with Mrs. Abernathy, it’s fair to say you kind of counseled her a little bit at that point?”
“I really don’t remember. I remember she came, she wanted to talk about being raped by her husband, she wanted to know what the services were. I talked to her about our individual and group services.”
In that talk, Tracy didn’t ask about her background. Tracy also didn’t ask whether she was married to Bill, whether there was a child in the house, whether he was in the household with them, whether she was seeing a doctor, perhaps, for depression or anything, whether she was in some type of counseling or therapy, whether she drank, whether she had AA involvement.
“Did you know anything at all about her at all?”
“It wasn’t relevant.”
“And what was relevant was that her husband, Bill Abernathy, raped her, right?”
“Correct.”
“And as a result of him raping her, she needed some therapy and treatment, right?”
“It was not therapy. We don’t consider it therapy, just counseling.”
“Well, do you recall her statement about her child being abused by her husband?”
“She told me she had a concern—”
“Excuse me, with all respect, can you say yes or no? Did she make a disclosure in the group that her child had been abused by her husband?”
“Correct.”
“And the disclosure was to the effect that he had been crawling in and out of bed with her, isn’t that right?”
“Never heard that.”
“You make a face at that. That’s not true?”
“Never heard that information.”
“You never heard that information.”
“I never heard he was in and out of bed with her.”
“You never heard what?”
“That he was in and out of bed with her. You just told me that.”
“How about an itchy bottom? Did you ever hear that disclosure, Ma’am?”
“Never, never.”
“Well, did you ever have occasion to discuss with Chloe Abernathy about her mother talking with her father about the secret and the hitting game? You remember that, don’t you?”
“No, I do not. Never heard that term.”
“Did you disclose to Rachel Gidseg that, ‘The child complained to her mother her bottom was itchy and about her father coming into the bedroom at night and bothering her. Mother mentioned this in her group.’ Did you say that to Rachel Gidseg?”
“No, never,” Tracy answered firmly.
With permission, Blakeley approached Tracy and showed her the 51B report.
After she read the section Blakeley pointed out to her, Tracy said, “That’s not what I recall.”
“You at no time, then, have a memory of Denise mentioning in her group anything about him crawling into bed and her bottom being itchy or anything like that?”
“Never.” There was no quiver in her voice.
Bea, once again, was upset thinking of the wasted, anxiety-filled years caused by Mathers not allowing her to mention the rape group in the first trial. All of this could have been brought out four years ago had Mathers not forbade me mentioning the rape and the rape group, and even earlier had the Probate Court judges not let Tracy avoid the subpoena to deposition.
Still referring to the 51B report by the bat-lady, Blakeley again quickly asked, “And do you recall Mother mentioning that Chloe was abused with a bat?”
“That’s somebody else’s words you’re reading, that is not mine,” Tracy slashed back indignantly.
Blakeley staccatoed, “So that’s not what happened. Is that your testimony, right?”
“I’m telling you those aren’t my words,” she insisted angrily, coming right back at him.
“So your testimony is you did not interview Chloe for possible sexual abuse—”
“I interviewed Chloe—”
“But you just came in about the talking hands.”
“I interviewed Chloe.”
“All right, hold on now,” Ankora said, intervening.
Apparently unaware the court had spoken, Blakeley said, “And as far as Chloe’s disclosure—”
Ankora interrupted, “Excuse me, Mr. Blakeley.”
“Yes, Sir.”
The judge said, “I just want to step in here as the referee for a moment. I want to make sure there’s no punching after the bell, and have everyone talk, oh, about twenty percent more slowly, because we’re accelerating and we’re stepping on each other’s words, and I’m concerned that the jurors aren’t getting a chance to absorb the answers and the questions. So if we just slow down about twenty-five percent, I think the same points and the same information will come in, and at the same time, the jurors will get a chance to absorb the information.”
The tempo lost, Cooke took an opportunity to bring them to sidebar. There, Cooke complained that Blakeley had misunderstood and misrepresented all of the records in the case throughout the course of the trial.
“Your Honor,” Cooke continued, “I’m asking the court to rule that he cannot inquire any further into what Rachel Gidseg wrote or said or anything else unless he can specifically point to where it says Rachel Gidseg got it from this witness.”
Blakeley said indignantly, “Isn’t that amazing I have to be under a limitation in cross-examining this person when this kid is talking about being molested in bed in her diapers and getting hit on the head with a baseball bat.”
“It’s not there,” Cooke said.
“But it was, Your Honor. The report read, ‘She also stated her father hit her with a wooden baseball bat on her head and on her bottom and left marks.’”
The court observed, “That’s the problem we had this morning. It’s a sophisticated evidentiary problem now.”
Essentially the judge was saying that as a DSS document, it could be used for cross-examination, but there were serious evidentiary problems with what was in the documents. “In substance, you’re entitled to use that material, but in form, you cannot be siphoning it in, you know, in large chunks.”
The document was not an exhibit, for Gidseg was not available to authenticate it.
Then the judge added, “The other problem is this. I think the witness is becoming argumentative.”
Blakeley began again. “Do you recall when Denise Abernathy introduced the child to you she called you Carol?”
“I guess.”
“And then did she say to you, ‘And this is my beautiful child’?”
“No.”
Tracy impeached Denise again! This time with something the jury could clearly seize upon.
“Are you aware the use of these dolls compels or directs the child to put an object into a hole, if there is one? Like a penis into a mouth or any opening. Have you ever read any studies like that?”
Bea chuckled silently. That was my observation, too—sexualized Fisher Price.
“Of course, I’ve read studies. I haven’t read the study you’re talking about.”
“As to the focal point on the penis or on the vagina or the mouth on these dolls?”
“No.”
“And then you—after Chloe was finished talking, you then thanked her for being honest, correct?”
“I thanked her for coming. I thanked her for—”
I
nterrupting, he insisted, “You thanked her for being honest.”
“I thanked her for talking with me. I thanked her for telling me the truth.”
“Did you thank her for being honest—”
“Correct.”
“Did she appear to be uncomfortable at any time talking to you for the half-hour dealing with the dolls and talking about these things?”
“No. She appeared hesitant at one point, when she didn’t want to tell the secret.”
“And then, obviously, you were about to coax that out of her, right?”
“Coax?”
“Well, you were about to talk to her about it, right?”
“She must have felt comfortable.”
“And you told her again you were really glad she told you, and you were going to get the hurting to stop, correct?”
“I was going to try to help her to get the hurting to stop, correct.”
Tracy seemed familiar about Denise wanting changes in the visitation status. She claimed not to remember who told her. Bea suspected it was Joe Aguilar, since his law office was one floor below the rape center in the almost-abandoned building.
She remembered writing a letter to Maryellen Murphy and recommending visitation be revoked.
Tracy made a face at Blakeley.
“Well, how about the letter, ‘I strongly urge that visitation rights be revoked in this case.”
“Can I see it again?”
“Sure. Right here,” Blakeley said, indicating where the stance was.
“That’s what it says.”
“That’s what it says. So you look at me and you make a face like, ‘I’d never say that.’ You wrote that—”
Then Tracy interrupted Blakeley: “I didn’t say ‘I’d never say that.’”
“You wrote that to the Probate Court, didn’t you?”
“Right. I never said— I didn’t say ‘I never said that.’”
“Okay, I’m sorry, but I misunderstood your testimony. You strongly urged that visitation rights be revoked in this case, correct?”
“That’s what the letter says.”
“And you wrote it on the Center’s letterhead, signed it as the program director, and sent it to the Probate Court, right?”
“I guess so.”
“And that’s based only on your faint recollection of what Denise might have told you as a person in your group as a rape victim, correct?”
“I guess so, correct.”
“You guess so.”
“Yeah.”
The Moon is Made of Green Cheese
Redirect examination of Tracy was so brief, it seemed as if it almost never happened. There were two bench conferences, both provoked by Cooke.
In the first, she wanted the court to allow Tracy to appraise her own interview of Chloe eight years earlier now that she had more experience.
Blakeley objected. “It’s self-serving. My objection is on record. It’s clearly objectionable.”
In the second, Cooke wanted permission to introduce a handwritten version of the 51A report into evidence. Tracy was present to authenticate it. Blakeley could not have gotten the 51B report into evidence because the author of the report, Rachel Gidseg, was in Florida and not available to authenticate the document and be examined.
Cooke’s problem had arisen when Tracy denied facts that the DSS bat-lady, Gidseg, had written in her 51B report. Gidseg had written that Denise told her she had shared with her rape-victims group several of Chloe’s complaints, such as Chloe having an itchy bottom and Bill having come into her bedroom at night. And Tracy, who had not seen Gidseg’s report and had not heard Denise testify, denied Denise told the group about those complaints.
Cooke accused Blakeley of both implying that Tracy had told those things to Gidseg and concluding that Tracy’s notes were inaccurate because they didn’t contain references to those complaints.
Blakeley said, “I resent the implication, that I took something out of context, Your Honor. I haven’t taken one thing out of context in this trial. It’s her rope. Well, who did it come from? It didn’t come from Chloe.”
Ankora said, “Well, if we have the author of the 51B here, she can authenticate it and she’s still subject to cross.”
Not so. Gidseg can't authenticate it and be available for cross. She's in Florida! Her report would be inadmissible.
Blakeley said, “If I cross-examine Ms. Tracy one more time, this jury is going to knock me down.
Everybody’s had it. It’s obvious she’s hostile. The prosecutor can get up there and say, ‘Isn’t it true that the moon is made out of green cheese?’ and Carol Tracy will bend over to be nice. All I have to do is get up and say ‘Tell me your name,’ and she’s going to take my head off. And to get into putting her self-serving written reports into evidence is improper.”
Ankora, at all times quite pleasant to both attorneys, said to Blakeley, “Let me ask you this. Would it help if we called it a day?”
Cooke said, “No, I think we ought to get rid of this witness now, Judge, and just be done with it. The Commonwealth’s going to rest at this point.”
Ankora revealed his sympathy with Blakeley. “Your concern is that you’ve repelled the jury so they don’t want to listen to anymore of your questions. I’d like to help you out and give you an overnight to dispel them.”
“Thank you, Judge, I appreciate that, but I don’t need an overnight. I’m all set.”
The judge nodded. “You’re entitled to cross her by means of the 51B report at this point or tomorrow morning, if you’d like.”
“No, let’s just be done with it. I don’t need tomorrow morning, Judge.”
“Well, all right, I’m going to permit the 51A to be admitted and permit some final cross by means of the 51B report. I think in the end, all of this does not come to a great deal on the matter of substantive evidence.”
“Note my objection,” Blakeley said, regarding the admission of the 51A.
No, Never
“It’s your testimony,” Blakeley was asking Tracy, “that at no time did Denise Abernathy say to you the child told her that her bottom was itchy, is that correct?”
“She never told me that.”
“Did Mrs. Abernathy ever say to you that Chloe’s father would come into her bedroom at night and, quote, ‘bother her,’ end quote, and wake her up?”
“Never told me that.”
“And is it your testimony the mother never then mentioned these issues in your group, Carol Tracy?”
“She never told me those things you just read to me, no.”
“And it’s also your understanding that you never discussed those topics with Rachel Gidseg, correct?”
“I would never have the knowledge, no.”
“Have you ever seen a report filed by DSS on these types of cases?”
“No.”
The court accepted the 51B report for identification, not as an exhibit, which meant it would not go into the room with the jurors when they deliberated.
Then, to close on a strong note, Blakeley again asked Tracy, who had been sequestered during
Denise’s testimony, whether Denise had introduced Chloe to her by saying, ‘This is my beautiful daughter.’
Tracy said “No.”
Final episode/epilogue of this story will post tomorrow, Wednesday - October 1st
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