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My Child, My Marriage
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With no courtroom available, nine people and a stenographic machine crowded into one windowless conference room roughly ten feet wide by seven feet deep. Aguilar and Bea introduced themselves to the Honorable Leonard Ezra Goldblatt, who then swore in the witnesses present and announced he didn’t want opening statements.
Aguilar began by calling Denise Christine Abernathy to testify. When she talked about Chloe and the marriage, she said “my child” and “my marriage” rather than “our child” and “our marriage.” That pronoun, Bea believed, illuminated some of the couple’s problems.
Denise spoke softly, but as she went on, her voice became such that Bea, even from only three feet away across the table, could barely hear her and had to ask the court to tell her to speak up.
Denise gave the history of the couple’s togetherness before the marriage deteriorated.
Bea recorded her answers: “We enjoyed going out to eat a lot—in the beginning, for dinner once every two or three weeks—and drinking fine wines. We also enjoyed going on trips a lot and to concerts and parties. We rented movies and went to the movies. Bill joined the YMCA, but I had two weeks’ vacation every year, so we’d go on a major trip; then long weekends. We owned a luxury timeshare unit in New Hampshire on Lake Winnipesaukee, where we took boat rides. We didn’t go up there to ski, though we did like eating up there.”
Aguilar introduced the evidence showing the lifestyle to which Denise had become accustomed. Bea didn’t mind. It made Bill look good.
Denise spoke about the couple’s personal property, the kinds of entertainment her child enjoyed, the nursery school Chloe attended.
She claimed her efforts to find a part-time job were unsuccessful owing “to all the counseling and support services that my daughter and I are involved in right now.” Bea hoped Goldblatt’s thinking paralleled her own when she’d first heard Denise’s excuses for not working.
Denise then answered endless questions regarding finances about which there was no dispute and which, if Bill were convicted in criminal court, would’ve been much ado about nothing anyway. He’d be able to pay nothing.
“Let’s take a break,” the judge said.
Thank goodness.
After the break, Aguilar finally got to what Bea considered important: child care. This would show where and when Bill had touched the child legitimately.
When Chloe was first born, Denise and Bill shared taking care of her, but Denise was the primary caretaker. She cooked, washed windows, shopped for Chloe’s clothing. She was also responsible for disciplining the child, and usually planned the birthday parties.
Bill did the food shopping, the vacuuming and the laundry, as well as taking care of the lawn and the rubbish and shoveling the snow.
Item by item, Aguilar approached an obsession with percentages: “When Chloe came home from the hospital, we both fed her, but I had primary responsibility for feeding her. We both bathed Chloe half of the time. We both changed her diapers. I did it probably 80 percent of the time. We both took her to the doctor. We both changed her sheets if she wet the bed or something, but I did it more often. We both generally supervised her play time with friends, but I did it about 80 percent of the time. We both took her for haircuts. We both arranged for babysitters.”
As she did at her deposition, she said the marriage was good and she had sexual relations with her husband two or three times a week, perhaps, until the summer of 1983.
“And what happened in the summer of 1983?”
“Bill held me down and forced me to have sex with him.” This time, Denise told the rape story more quickly but less dramatically than at the deposition. It lost something in the retelling.
But now Denise added punchlines, probably inspired by Aguilar while he was preparing Denise to testify. Arguably he could say she had remembered more as they prepared.
“And how did having sexual intercourse make you feel at that time?”
“Shocked, angry.” She hadn’t said that at her deposition.
“Did it affect you physically in any way?”
“It hurt.” Nor that.
“What about mentally? How did you feel?”
“Upset, angry, shocked.” Nor that.
She left out a lot: that she had found sex fun, that she made sexual overtures every couple of months because of her “sexual needs,” that without sexual intercourse, they had no marriage, and that she had wanted to find a way to be close to him.
Bea had a small victory when Goldblatt struck the talking-hands story from the record because married partners cannot testify what one spouse said to the other. Aguilar never made another stab at getting the story into evidence. It had been struck, and it remained struck.
Because Denise didn’t see or hear Tracy file the mandatory report, Goldblatt refused to consider that the report had been written or filed or that DSS supported Tracy’s suspicion. And Aguilar was in trouble again when he tried to get Denise to speak for Chloe about the sexual abuse allegations and for Leavitt about how much Leavitt had helped Chloe.
“I understand what you’re asking, but it certainly can’t come in as to the truth of the matter,”
Goldblatt said. “I don’t know what other purpose you may be asking that for, so I’ll have to sustain the objection.”
Bea thought, Oh, this judge is good.
“After your husband moved out of the house, can you describe to us any problems you noticed Chloe having?” Leading.
“Yes, she refused to sleep in her old bedroom after Bill left. She sleeps with the light on all night. She cut the bed sheets in her old bedroom.”
“Anything else?” Aguilar asked.
“She’s afraid to be alone with her father. She’s been tense and nervous at times.”
Reference to Chloe having nightmares and flashbacks was not allowed, because Denise could not have observed them.
Two months prior to trial, Denise had observed Chloe drawing “a picture of a grown man with an erection and a curly-haired child with an open mouth and a mother, a woman with tears.” There’s the open mouth.
This was classic sex-abuse testimony. Were a witness to say the child drew an open-mouthed child, an expert might give the opinion that the open mouth indicates oral sex occurred.
Bea wondered, Now that Aguilar has the mouth evidence in, whom is he intending to put on as an expert who could express an opinion? He had no expert on his last-minute witness list.
“Do you have the drawing with you today?”
“Yes, I do.” She produced the picture. It was in a bound notebook.
Bea objected. “There hasn’t been adequate foundation.”
Aguilar quickly said, “Chloe’s available to be cross-examined,” but then in a flash, he realized he had no intention of calling her, so he quickly changed his representation: “You can call her,” he said, flushed. “You have the right to call her as a witness.”
“I’m not calling her as a witness.” Bea didn’t want the judge to think she or her client wanted to cause the child any stress or pressure. Bea wanted Aguilar to call her so Bea could cross-examine her, particularly because Bea didn’t know her except through Bill and the process notes. If Bea called the child on direct, she’d not be able to cross-examine her except under special circumstances.
There was a big difference between a direct examination and cross-examination. On direct, Bea would ask, Who? What? When? Where? How much? How far? How long? And then what happened?
But she would never ask why because a good lawyer never asked a question without knowing the answer. On cross-examination, though, Bea could lead Chloe’s testimony; she could control her and lead her away from the pat answers she’d been taught by Leavitt and Mom. Direct was more difficult, although it appeared easier. Cross was more fun.
The judge asked Denise, “Did you see her draw the picture?”
“Yes.”
The picture looked like an anatomical doll.
Not having seen the pictures before, Bea was allowed to look at them. There were quite a few drawings she liked: a picture where Chloe wrote, “I love daddy,” drawings of children with closed mouths, smiling faces, hands with fingers, feet with toes.
The opposite characteristics are supposedly indicative of sexually abused children. If Chloe had omitted hands or fingers, Aguilar could have argued that she was in denial of the abusive act.
Although there were definitive studies about the artwork of the sexually abused child, Bea hadn’t yet seen all of them. And the studies she had seen hadn’t convinced her to discard what she knew from her own common sense: that appendages are added to a child’s drawing as the child develops.
Fortunately, the book of drawings wasn’t accepted as an exhibit because it hadn’t been shown to Bea prior to trial. So none of the anticipated arguments about the drawings came into evidence.
Not knowing that the five year old Chloe had a “diary,” Bea had never specifically asked for it. Being ambushed by the production of any documents was the risk she took when she didn’t pick up the glove thrown by Aguilar when he didn’t identify the documents he intended to use at trial. But the specter of ambush at trial was always out there—even when a list was produced.
In this case, it was better to let documents surface at the divorce than at the criminal trial, where Bill risked prison. The only risk at this trial was that Bill wouldn’t get custody, which he probably wouldn’t get anyway.
Obviously, now that Bea knew the diary existed, she could get a copy of it before the criminal case, if necessary.
Aguilar then failed to get the diagnosis of chlamydia into evidence.
“Did Chloe have any symptoms of chlamydia?” Aguilar asked.
“No, but I did give her antibiotics.
After the results of the chlamydia test were received, what did you observe?”
“Nothing.”
Goldblatt, his voice growing stronger, asked Aguilar, “What did she observe about her daughter? That’s really what I want to know. She said she had no observations and the child had no symptoms. I can’t accept the medical diagnosis.”
Aguilar would need a doctor to testify and he didn’t have one.
He hadn’t followed the statutory procedures to introduce medical evidence in Court, so he finally acquiesced. “I understand my client is not able to make a diagnosis.”
Goldblatt wouldn’t conclude that Chloe had chlamydia.
“Before her father visits, Chloe is tense and anxious,” Denise said. “After the visits, she’s quiet, sometimes upset. She sometimes goes upstairs and punches her punching bag. On the Saturday visits, they play games,” she said. “One game is that Chloe is a bull who is goring Bill.”
“How do you feel about Chloe testifying this week?”
“I don’t want her to testify, and I hope it’s not necessary.” Here it comes. They are going to try to keep Chloe from testifying.
“As her mother, what kind of effect do you think testifying would have on her?”
“This would be very hard for her. I feel she’d be torn between her father and me.”
That’s an insufficient reason to keep Chloe off the stand.
If Chloe were not called as a witness, Aguilar would have to call someone else to testify to what Chloe would have said as a witness. Tracy was “iffy” for him, given that she’d been unavailable for deposition. Ditto for Gidseg. If the court deemed Chloe unavailable as a witness for Aguilar, she’d be unavailable for Bea, too.
At the Checkerboard Tablecloth
The Toffetts, Desegonzac, Bill, and Bea went for lunch around the corner. The men walked ahead of the women.
The first thing Lillian Toffett asked Bea was, “Where was the rape?” Bea said that was the point, there was no rape. Seeing the men out of earshot, they laughed about men losing their erections at a critical time and then wanting to show their mate that they could do it after all.
They talked in the shorthand of older women who knew their men: “This was commonplace, not rape,” Bea and Lillian agreed.
“It certainly had nothing to do with sexual prowess,” Bea said.
“Right, it has more to do with clinical circumstance,” Lillian said, using the jargon of her profession.
Lillian and Bea concurred that if what happened to Denise was rape, husbands would be serving successive life terms.
“Her biological family was dysfunctional,” Bea said.
“That’s where Denise’s depression comes from,” Lillian said.
Bea nodded. “But I can’t prove it.”
Even though the sausage-shaped restaurant was not busy, the service was slow. To rush it along, all five of them ordered lasagna. And to give them something to nibble on until their lunch was served, several baskets of hot rolls appeared immediately on the clean, red-and-black checkerboard tablecloth.
Trying to avoid overindulging in the rolls while they waited, Bea looked around the pleasant room.
The walls were covered with pictures of clipper ships and small fishing vessels fighting tall green waves with foamy crests.
While she enjoyed looking at the majestic waters instead of the sweet rolls, the men voiced their opinions of the morning session.
DeSegonzac was pleased because Denise confirmed much of what Bill had told him during the interviews and testing. Wilburt Toffett was anxious to hear more about Denise’s interaction with the child and the opportunities Chloe had for learning about sexual activity when she attended the sex-victims’ groups.
Bill was anxious but smiling.
All were struck by Denise’s eyes, the vacant look, the unemotional delivery. All agreed she came across as a sick young woman. All were impressed by Leonard Goldblatt. The man exuded fairness.
Bea used napkins to jot down notes as the experts told her what to ask after lunch.
I Didn’t Like the Leader
Bea decided the best way to soften up Denise was to go after not what Aguilar had brought out, but what he hadn’t. The first issue was Denise’s alcohol consumption.
Her eyes blank, Denise admitted the booze made her less interested in day-to-day activities—TV dinners replaced real meals; housekeeping chores were done less frequently; ahe enjoyed the things she did with Chloe less than she probably would’ve had she been sober—but she insisted that the care of Chloe didn’t lessen, and that she remained depressed for less than a year. She would not admit, though, telling Tracy that she had been raped by Bill.
After a struggle, Bea got Denise to say not only that she believed she’d been raped by Bill one Saturday afternoon in 1983, but also that she didn’t tell Tracy the rape had occurred six years earlier. It was important to Bea that Goldblatt see the six-year interval in blinking neon.
Goldblatt kept scribbling during Denise’s testimony about her therapy with Stanton and the root of her depression, that “her” marriage was going downhill. Every once in a while, he asked a question to make sure he had all the facts. He was particularly interested in knowing how many visits Denise and Chloe had made to the rape-crisis center in July 1989.
The entire line of questioning about the rape center was like pulling teeth. Even to simple questions,
Denise didn’t respond. She just looked off into space.
“You said both of you took Chloe to the doctor. Was there a time when, as a result of seeing the doctor, Chloe needed any medication?”
Denise again failed to respond.
Bea then asked Denise about what the doctor had ordered for Chloe’s constipation, and Denise responded, “At one point she was constipated, yes. The doctor recommended that Chloe be given a suppository. I didn’t want to administer the suppository, so Bill did.” Bingo. That helps prove he’s innocent of sexual anal touching and her feeling wet afterward.
“And Chloe was upset by that, wasn’t she?”
“Yes.”
Denise did not remember whether Chloe had screamed, but did recall her being upset by it. Denise didn’t say how old the child was then, only that she began talking at a year old and was making sentences between one and two.
“At first, I wasn’t sure I wanted a child, but when I was three months pregnant,” Denise said, “I realized I did want to keep my child, to deliver her, to love her and take care of her.” She didn’t say that at her deposition, Bea thought. She didn’t know the child was a girl then either!
Denise got back on track when she admitted she still had mixed emotions when Chloe was born.
Denise’s hermetic existence and Chloe’s lack of both socialization and learning experiences outside school, the absence of social activities, went to the heart of the custody issue.
Denise didn’t have close friends for long. She had particular friends—two women from AA for a year or two, and two women from her rape-counseling groups for a year—but her involvement with them was severely limited. She refused to say who they were. By 1990, she was back down to one friend from AA.
Bea hoped to prove Chloe had overheard Denise’s phone conversations with those women and learned about sexual activities from them.
Denise had been to the house of one of her friends with Chloe, perhaps twice, and had gone, again with Chloe, to lunch and the movies with another, but for the most part she didn’t share other activities with the child.
Given that Denise specifically and intentionally identified only a Mrs. X as one of two close friends, the absence of phone calls to or from and visits with Mrs. X was curious and extraordinary. Perhaps Denise purposely didn’t mention the phone because of Bea’s earlier suggestion that Chloe could’ve been influenced by overhearing her mother on the phone to friends.
Denise did admit, though, to speaking with Mrs. Y on the phone roughly once every week or two for “usually” fifteen or twenty minutes each time. Denise also saw Mrs. Y at the AA meetings, but that was it: Denise shared no other activities with Mrs. Y in or out of Chloe’s presence.
Denise talked to Miss B, a rape-group friend, on the phone once or twice a week for anywhere from five minutes to an hour. That was more often than she did with her AA friends and far more than she did with her other rape-group friend, with whom she talked on the phone only once every two or three months.
If Chloe did overhear conversations about sex abuse, the conversations with Miss B were, Bea believed, the ones Chloe probably overheard. Significantly, Denise’s friendship with Miss B from the rape group predated Chloe’s alleged first disclosure to Tracy.
“When you were talking to any of the four women, did you discuss the sexual abuse or the rape or the alcohol?”
“Yes, I discussed my problems with them.”
Good. Now the question becomes, How much of the discussions and exactly what did Chloe hear?
Bea didn’t ask this question though, because Denise would probably say either that she didn’t remember or that Chloe hadn’t overheard any of them. I won’t be able to pin her down. Bea was better off with the question left open. Goldblatt could use his imagination.
Denise acknowledged that Chloe had been by her side at the evening AA meetings since 1989 and that Chloe went twice to Victims of Sexual Addiction run by Hilda Crowley, the group for which Chloe was preparing her speech. About two dozen people were there.
She never admitted she’d had to fill out a psychological profile, the one on which she’d scored high on the avoidance scale.
Because Bea didn’t know which test it was, what was actually being measured, and how to interpret the score, she let the issue pass.
Although Goldblatt allowed Bea to ask what Denise said at that meeting, Denise said, “I gave no more information than my name, rank, and serial number. I also remember I said I was scared.”
She didn’t tell them why she was scared; nor did anybody ask her why she was scared.
Should I show or not show Denise’s handwritten entry that Chloe was preparing her speech for the next Victims of Sexual Addiction meeting? Bea thought. The upside of showing it would be that it might prove Denise was trying to cover up the speeches. But the downside was, it might also imply that Chloe perhaps had a story of sex abuse to tell. Bea had come full circle, back to wondering where the story had come from: from other stories she heard or from her own life experience? Would the judge presume Chloe had heard detailed sexual-abuse stories at the first meeting?
Because Denise denied that members told their stories at the first meeting, and it was unclear from her diary whether Chloe was composing her story after the first or second meeting, the judge could not presume Chloe had heard sexual-abuse stories after the second meeting, so Bea decided not to offer the diary page.
Of course, no one had heard Chloe’s planned speech, except perhaps Denise, but she wasn’t going to tell Bea and it appeared neither she nor Chloe had told Heather or Leavitt. The social workers certainly would have recorded that in their notes.
“Did the other people also stand up and say, ‘Hi, I’m Mary Jones. I’m scared’?”
“No.”
“What did they say?”
“They introduced themselves and just gave some information about themselves.”
“Information why they were there?”
“I don’t remember.”
“Can you try to remember?”
“I don’t remember.”
“Can you try a little bit?”
“Judge, I’m going to object,” Aguilar said.
“She’s answered. She doesn’t remember,” Goldblatt said.
“What were you scared about?” Bea asked.
“I was scared about introducing myself to a large group of people. I was scared about the situation I was in, where I had just discovered my daughter had—”
“Wait a minute,” Bea said.
“Objection, Your Honor,” Aguilar said. “I’m going to demand she be allowed to answer.”
“She may answer,” the judge ruled.
“I was scared about the situation I found myself in, where I had just discovered my daughter had been sexually abused by my husband.”
“Fair enough. Now, you didn’t discover it, did you? Just Yes or No.”
“I don’t understand.”
It was in August and September of 1989 that she discovered Chloe had been sexually abused.
“Did you ever see your husband sexually abuse your child?”
“No.”
Cleans up the stab wound a little. That would leave open the question how Denise “knew” her daughter had been abused. Aguilar would have to rely solely on innuendo and Leavitt’s hearsay. The DA would have to rely on Chloe and, significantly, on Leavitt’s preparation of her.
“Did you stand up and say tell the others, ‘My husband abused my child’?”
Denise evaded answering. Eventually she said some women did stand up and say that; some didn’t.
At the second meeting, the facilitator read from a book and asked the attendees to comment on it.
“Did Chloe sit by your side through this?”
“No. She went with the children’s group.” The children’s ages, Denise testified, ranged “from early teens down to two or three, younger than Chloe.”
“So she was with the children’s group during the second meeting?”
“Yes.”
“And do you have any idea what happened in the children’s group?”
“No, I don’t know.”
If I ever brought a kid of mine to a place like that, Bea thought, I’d know what should happen and what did happen.
Later, Denise said the children’s meeting took place in another room.
“Do you know whether they shared sexual abuse stories?”
“I don’t know.”
“You didn’t continue going to Victims of Sexual Addiction?”
“No, I did not.”
“You didn’t like the group?”
“I did not like the group.”
“You didn’t like the leader?”
“I did not like the leader.”
Leave it there. Let Goldblatt surmise that Crowley was suspicious of Denise’s story.
“And you didn’t make any friends there?”
“No.”
“Do you have any other kinds of social activities that take place outside the world of your problems, just where you can forget them all?”
“Yes.”
“What kinds of things are those?”
Denise’s blank look re-appeared.
Goldblatt appeared to be listening closely.
Denise never took Chloe to the Y, but had taken her to the beach twice and allowed her to swim in a neighbor’s pool many times. Because Denise didn’t swim, a friend who worked with her on Sundays helped watch Chloe play at the beach. And the neighbor watched at the pool.
“Has Chloe ever shown you what she does at the karate class?”
“Yes.” Chloe had shown her the bowing and how they kick out, but she hadn’t shown her how they do chop-chop or how they use their hands at the karate class.
“So have you seen Bill and Chloe playing at play karate?”
“No, I never have.”
“So when you mentioned the secret about the hitting and the kicking, that had nothing to do with the play karate or practicing for the karate classes?”
“That was never suggested to me, and I never thought that until this moment.”
“Who would have suggested it to you?”
“Bill.”
“Did you ever ask Bill?”
“No.”
“You just accused him, didn’t you?”
“Objection.”
“Sustained.”
One of the last subjects to wrap up was Denise’s ability or inability to be employed, and the value of her services were she to land a job. If Denise was a malingerer, Goldblatt had to know. If she was mentally ill, then Bea wanted to drive it home. Bea believed if Goldblatt perceived Denise as disturbed, he’d find that Bill had not sexually abused Chloe.
Because Bill’s pretrial efforts to see Denise’s therapist’s notes and have her mentally examined were denied, Denise’s inability to be employed could not be shown directly. Her mental inability could be and had been shown only circumstantially, by showing Denise’s very strange answers about friends, lack of socialization, her disharmony with or self-imposed isolation from her siblings, and her ongoing untreated depression.
Bea established that Denise didn’t try very hard to find a job and that her daily activities—meetings, reading, patting kittens, baking bread, gardening, crossword puzzles, and Nintendo—were insufficient reasons for not working. Bea also established the reasonable rate of pay for Denise’s work, were she working, would be $15 an hour.
To call the judge’s attention to the ghosts of possible sexual abuse in Denise’s biological family, Bea asked Denise about the issue. Denise’s answers wouldn’t matter. Only the raising of the issue mattered. Denise, of course, said she didn’t remember telling anybody that, and denied the abuse.
“When Attorney Aguilar was questioning you, you said, ‘Chloe would find it hard’ to testify ‘because she would be torn between her father and me.’ In other words, you know that Chloe loves her father?”
“Yes.”
“And she misses him?”
“Yes.”
“Judge, I’m going to object to this line of questioning. I wasn’t allowed to have it on direct examination. I don’t know why she should be allowed.”
“It came up, Mr. Aguilar, in a slightly different context,” the judge said. “I don’t think that was the question. I’ll let her have it and if you have to get back to it on redirect, you can.”
Then the judge asked Denise, “What was your answer as to whether Chloe misses him or not?”
“Yes,” Denise said very quietly.
Accused? Guilty is a Johnson serial published in part - Look for Part 15 of 41 coming