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Goldblatt clarified for Aguilar. “I’ll allow the objection because she’s objecting on the grounds that Mrs. Abernathy has no evidence of the daughter being hurt.”
Legal arguments about objections continued. Aguilar said, “It’s not relevant if the daughter was hurt. She’s depressed because she believes her daughter was hurt.”
So the judge himself took over and asked, “What was your state of mind at the time that led to your feeling of depression in 1989?”
Denise finally got the chance to answer. “I believed my daughter had been hurt by her father.”
“That’s it!” Bea exclaimed. “The alleged hurt came in as Denise’s belief and not as an actual fact.” Aguilar must be disappointed. He expected more. Otherwise he would not have asked.
A GAL or Not a GAL
“I have Maryellen Murphy,” Aguilar said. “She’s a Family Service officer.”
“She wasn’t on your witness list,” Bea said. And then an argument began as to whether Murphy was a guardian ad litem, a GAL.
A GAL is not the child’s attorney. A GAL’s purpose is to tell the court what’s in the best interest of the child. They don’t. They tell the courts what is in the best interest of any child, generally speaking.
In Massachusetts, a statute protects GALs from being sued by people against whom they commit wrongdoing. That immunity from suit encourages negligence. A GAL’s appointment to get her hair done before her dinner date is more important than writing the report due to be filed in the court. That the family’s anxiety level has become perilous is unimportant. She needs to take enough time off to get a manicure, too.
Bea was not concerned about Murphy’s dinner dates. The woman looked as if her dinners consisted of a few quarts of Ben & Jerry’s or Häagen Dazs. What were her personal problems? Had she been sexually abused as a child? Would her report target Bill as an abuser?
A child’s attorney is supposed to tell the courts the wishes of the child client. Chloe did not have an attorney to represent her wishes.
Goldblatt quickly cut Bea and Aguilar short. “That’s not a question for me. That’s a question for a sitting judge. There’s a judge around, and he’ll decide whether she can testify.”
Aguilar, of course, was lying. Even Heather and Leavitt, in their process notes, had memorialized the appointment of Dr. Gene Frechette as the new GAL. And Bea and Aguilar had filed a stipulation for Frechette’s appointment. The sitting judge had suggested using Frechette, a Ph.D., not a medical doctor, in his lobby, after subtly acknowledging that Murphy was incompetent as a guardian ad litem.
The hearing before Goldblatt was suspended for the day and Aguilar, Bea, and their clients went to a sitting justice to hear their argument for and against Murphy’s appearance as a witness.
Tummy Puff
While she was sorting and opening her mail, Bea heard Hugh’s footsteps at the outer door. She dropped the junk mail into the round file, opened the mail from lawyers, and left unopened the mail from courts. When and how she opened the latter would depend on her mood, her strength, and her resilience. If the judge had allowed her motion to preclude Murphy, today would have been a good day for opening them immediately. But he hadn’t, so when she saw the court mail, her stomach went into knots.
Sidling up to her back, Hugh unclipped her hair, lifted and smelled it, and kissed the side of her neck.
“Good evening, Darling. How was your day?”
“One that I hope you’ll make better,” she purred.
“That’s a mission possible.”
She stood on her toes, pulled him down a bit, and oscillated her hips playfully against his groin. With her other hand holding the thin Superior Court envelope to her teeth, she ripped it open; it could be either a notice or a decision. Nothing momentous. The Appeals Court envelope, however, was thick. That meant it contained an opinion. The Patti decision. She needed emotional help to read it. She felt his arms behind her, found his hands, laid them on her stomach, and guided his fingers into kneading that very sensitive area where her sides met what he affectionately called her tummy puff.
Once jump-started, his hands cruised on their own very capably. She opened the thick envelope.
Hugh didn’t stop. He’d been here before.
She opened the other. “Damn.”
Hugh removed the papers from her hands, prodded the backs of her knees, lifted her skirt as he laid her on the floor, and through her pantyhose massaged the crease between her thighs and her groin. Warm and tingly, like her lips felt when as a kid she blew on a comb through wax paper. Then he placed his lips against the phantom wax paper covering her crease majeur, and blew bit by bit, from one end to the other.
“Hi,” she said as he lay propped up on his elbow beside her, tipped her head, and brushed a glass of her favorite chardonnay against her lips.
“Better now?”
“Much.” She grinned and mouthed the words “Thank you.” It was too soon to hear the sound of her own voice.
“They said your position was unassailable.”
She blinked her eyelids languorously. “At least Patti never went to jail.”
When Patti went to pay his fine, the clerk didn’t accept his money. The court had lost the record of his conviction. Deep-sixing was the courts’ way of seeing that some justice was done without embarrassing the judge who’d eclipsed it. The ramifications from the initial denial of justice were, of course, generally irreversible.
Hugh gave her another sip.
She closed her eyes.
He kissed her eyelids and lay her head down. He massaged her temples, letting a finger of each hand swirl and massage her ears. Her blood flowed to her breasts, her nipples, her hips, her groin. He was her private Hugh Plan, donated by the Supreme Judicial Court to make restitution for the damage done by his brethren to two of her cases.
After her guttural cries of joy subsided, he turned her over and lifted her jacket and blouse, unhooked her bra, spread himself across her ample buttocks and soothed every muscle beneath the surface of her back that was not unstressed enough in the opinion of his judicial fingers.
He unbuttoned and unzipped her skirt and slid her pantyhose down.
“Yes, oh, please. Yes, I love you.”
So oiled was she that his member accidentally slid, pushing the temple of her pleasure firmly against the floor, where it pulsated to the length of him brushing by as it entered and left repeatedly until it entered and finally stayed.
“Dansay, dansay!” she cried out. It was a Japanese word Hugh had taught her. He’d probably learned it from a geisha. Man, man! he heard, loving it. He had made her beg. And he believed she meant it when she said she loved him. My josay, mine, he thought. My woman, only mine.
Later, surrounded by the bubbling water in the spa and repasting on liquids, they spoke.
“It was unassailable, but they didn’t reverse,” she was saying.
“Because they want to get the drugs off the street.”
“But the right way, Hugh... the right way, according to the law. You guys can’t nail the law down and then change your interpretation of it on a whim. The lawyer works. The client hopes. For what? The system can’t continue changing the law with each case decided. The judges can’t ignore settled law and then change it to support their result-oriented decisions.”
“It’s for the public good.”
“You mean the governor and politicians want it that way because it wins elections.”
“No, Dear, they want it that way for the public good.”
“Then the pols should change the law. Otherwise, everyone’s rights, like Patti’s, will be violated.
Patti was just fixing his car when he was searched. When he produced his license and registration, that should’ve been the end of it.”
“But he had a joint on him.”
“He would’ve been lucky to get one puff out of his joint, it was so small. Marijuana should be legalized, anyway.”
“It leads to harder drugs, Dear.”
“Then we should make them all legal. Take the profit motive out of the drug business, crime will decrease.”
“Then we’ll have an epidemic of overdosing.”
“Self-destruction is a different problem. At least families won’t go broke or disintegrate solving it.
Kids won’t learn in prison what they never learned outside of it. No overcrowded jails and prisons. Court budgets won’t look so small. The Chief Justice will be able to afford recall justices like my Goldblatt.”
Hugh laughed.
Bea leaned over to kiss his shoulder. “I’m sorry, Love. We’re both too tired for this conversation.”
“Yes, Dear, we are.” He chuckled. “Refill?” he asked as he leaned over for the wine bottle.
“Sure, why not? The trial will still be on Aguilar’s shoulders in the morning.”
“Anything happen of note today?
“I moved to keep the GAL who wasn’t our GAL off the stand. I lost because Aguilar said she wasn’t removed from the case.”
“But your case is not going to rise and fall on her testimony.”
“True, but he lied.”
“Bea, you’re so quick to say someone lied.”
“Disagree. Doesn’t matter. I just can’t tolerate the willingness of the courts to overlook lying.”
“Finality, Bea. The cases wouldn’t end.”
“Disagree again.”
“You’ve told a few yourself, Bea.”
“Sure have. Necessary ones, though.” She laughed. “I draw a distinction between necessary ones in one’s personal life and outright lies in court.”
“You’re rationalizing, Darling.”
“Suppose so, but I won’t forget.” She leaned her head against him. Aguilar wasn’t the first lawyer to lie, nor would he be the last. “Love, I do so hate the business.”
“We’ll retire. I’ll take you to Dordogne.”
Anatomically Correct Dolls
Aguilar was trying to convince the Honorable Justice Leonard Goldblatt that Roberta Leavitt was an expert in child sexual abuse.
Over my dead body, Bea thought. This woman is absolutely not an expert in anything.
Most of Leavitt’s testimony at trial was in stark contrast to her testimony at deposition. Where at her depo, she couldn’t remember what she’d learned at school, seminars, or conferences—never mind who ran or presented them—at trial Leavitt supplied precise identification of the courses, dates, and presenters. She still, though, couldn’t describe the substance of her education. If she’d learned anything from them, she hadn’t retained it.
Bea had to be make sure Aguilar couldn’t prove Leavitt was an expert and that she was a fresh-complaint witness. She was about the tenth person to interview Chloe. And Bea had to prove the existence of considerable controversy in the community surrounding the use of anatomical dolls.
Leavitt persisted in using the buzz words of her profession. The judge had asked her, “What did you see?” Leavitt’s response should have been “I saw X, Y, and Z.”
Goldblatt personally verbally wrestled with her about her definition of cognitive presentation.
The judge also asked, “What have you observed during the counseling sessions?”
It took quite a bit of time to squeeze her observations out of her mouth. The judge persisted.
“Her play with anatomically correct dolls and with puppets tends to be very aggressive as well as sexualized. She often yells at an adult male anatomically correct doll.”
“She yells at it?” asked Goldblatt with surprise.
“Yells at the doll, ‘Stop it Daddy,’ that kind of stuff.”
“Objection, Your Honor. I move to strike on the basis that it’s highly prejudicial. She could be yelling at the adult male because she heard her mother yell at—”
“She’s only reporting what she saw. I’ll have to make a final fact finding based on subsidiary fact.”
“Your Honor, this woman has also made a conclusion which I move to strike—the ‘aggressive and sexualized play’—on the basis that the child yelled.” Bea finally captured Goldblatt’s attention. Seeing him become aware of that, Bea sat up straighter and began speaking more slowly.
“Your Honor, she’s using yelling to justify her conclusion of aggressive and sexualized play. There is nothing to say this child didn’t yell at the adult male because she continually heard her mother yell at her father.” Her words had remained firm, her voice, soft. “For example, saying ‘Stop it Daddy’ does not mean that the play is ‘sexualized.’”
“That’s possible,” the judge responded. He looked at Aguilar. “The only question before this witness is what did she observe.” Then he himself asked Leavitt the next question: “Mr. Aguilar asked you what you observed and you say you saw her yell at an adult male doll and say stop it?”
“In addition to yelling at the doll and saying, ‘Stop it Daddy,’ she would hit the doll’s penis while she said, ‘Stop it Daddy.’ So that’s aggressive and sexualized.”
Leavitt won that round, Bea thought.
Where there is controversy, so-called scientific evidence may be considered unreliable. So it is with how a child plays with anatomical dolls. Standards exist, but they’re not widespread or well-known.
The law is not yet definitive, and is unlikely to be for years to come. So for now, Leavitt’s conclusions were in the eye of the beholder, in this case, Goldblatt. And even though Aguilar hadn’t shown that conclusions from observing the child’s use of the dolls were reliable, Goldblatt appeared to want to reserve his opinion as to how much weight he’d give them when he made his decision.
“She may testify to what she saw,” Goldblatt ruled. “Those are arguments to be made before the judge who will make the final decision.”
Bea disagreed. The ruling on whether conclusions can be drawn from how the child played with the anatomical dolls must be made before evidence was taken in court. So for the record, she said, “It cannot be used; the use is improper.” Not that her statement would do any good.
On the other hand, Goldblatt could just be curious as to what Leavitt was going to come up with. In the end, he could discount all of her conclusions. Bea would have to wait until she saw his report. There he’d have to say whether abuse occurred and which of the parents was fit to have custody.
In the meantime, Bea had to make a record, to say something so that the court reporter could transcribe Bea’s objection where a reviewing court could see it.
“I’m going to allow her to answer the question,” Goldblatt said. “The question is, ‘What else did you observe?’”
“Are you talking about anatomically correct dolls?” Leavitt asked the judge, and then gave a lengthy answer.
Bea moved to strike part of her answer.
Goldblatt picked up on Bea’s argument and instructed Leavitt, “Don’t come to any conclusion. Just tell us what you saw.”
“Again I have a continuing objection,” Bea said.
Goldblatt nodded. “I understand your objection.” Then he looked at the witness. “Can you tell us specific dates and observations of the child playing with the anatomically correct dolls?”
Leavitt was allowed to look at her notes. “The first time she used a doll in a session was on November 16 of ‘89.”
Goldblatt asked her to describe the session.
Again using her notes, Leavitt began.
Bea said, “Again Your Honor, the child by this time has been extremely contaminated.”
“Well, that will have to come out in testimony. This witness can testify as to what she saw. That’s the very purpose of testimony.”
“Your Honor, my objection here is that this is not a fresh-complaint witness. No fresh complaint was made to this woman. Her testimony is also not corroborative of anything Chloe said. The child hasn’t yet testified; she hasn’t even been declared unavailable to testify.”
“Ms. Archibald, you have every opportunity to cross-examine this witness, but she has her right to give the direct testimony and the plaintiff has the right to call her.” Goldblatt continued writing his note. “I’ll note your continuing objection.” He then took over for Aguilar and directed his instruction directly to Roberta: “Now you’ve testified on that session, she picked up the play telephone and asked you to call her daddy. Let’s take it from there.”
“So I took the phone and said what would you like me to say to your daddy, and she said, ‘Tell my daddy not to hurt me.’ So I said on the phone ‘Chloe wants me to tell you that she doesn’t want you to hurt her anymore.’ And I said, ‘Chloe, would you like me to say anything else to your dad?’ And she said, ‘Not to punch me anymore, tell him not to kick me anymore, and tell him not to put his penis in my mouth because it tastes yucky.’”
“What else did you observe in that session?”
“Her play following that became sexualized. She took puppets and had the puppets—she said they were sucking breasts for milk.”
“Objection, Your Honor.” Sesame Street, Bea thought. This is the beginning of the stuff Chloe learned on Sesame Street.
“She used the puppets. She called the hedgehog puppet a ‘possum puppet,’ and she said the puppets were ‘sucking breasts.’ She took the male doll and unclothed it. She next took the unclothed male doll and upon seeing the penis she called the penis ‘yucky’ and began hitting it. And that’s when she yelled, ‘Stop that Daddy.’”
“Please continue,” Aguilar said.
Leavitt continued reading from her notes of other sessions. Bea could object again to her reading them, but it’d be futile. Leavitt would just say again she couldn’t recall exactly without reading them. “And that was it, she again started with the possum puppets sucking breasts,” Leavitt added.
“Objection. She skipped over the part where she said Chloe admitted she saw it on Sesame Street.”
“You may bring that up on cross-examination,” Goldblatt said.
Aguilar asked Leavitt, “Can you briefly describe for the Court what those anatomically correct dolls are?”
“We have a set of—we have several sets of anatomically correct dolls. There is an adult male which comes fully clothed and there are also changes of clothes. There are adult females. There is a female child. There is a male child. That’s the set I usually use. The dolls in my office are fully clothed, but there are changes of clothes and a blanket and other things the child can use in their play.”
Bea saw a significant error with the set. There should be more than one adult male, in order to give the child a choice in naming them. It was predictable the male one would become “Daddy.”
“All those dolls were available when Chloe came in?” asked Goldblatt.
“They were just sitting in the room.”
“When you say ‘anatomically correct,’ do you mean the male has a penis?” Aguilar asked.
“That’s correct.”
“And the female has breasts and a vagina?”
“That’s right.”
Leavitt continued to testify by reading directly from her notes.
Bea said, “Your Honor, I do object. This woman has seen this child we know for fifty or sixty solid hours. We will gladly stipulate that if a child can say it, the child said it. I have no doubt in the world that the child continued with this kind of play. I’ve read the notes, and I have no doubt she heard the child say it.
“Your Honor, I can save us a lot of time by stipulating that yes, she said Daddy did this and Daddy did that. They’ve got that all in there, Your Honor, I guarantee you. My problem is that this is not fresh, that this is the tenth person.”
“That may all come out on cross-examination.”
“Can we at least shorten it?” Bea asked. “Must we go through day by day for two years?”
“I can’t exclude any lawyer from presenting his case as fully as I think is necessary. It’s a very serious problem we’re having here.”
“Absolutely it’s a serious problem, and we will be here two days cross-examining this woman,” Bea said, exasperated.
“That may be.”
Aguilar said, “If counsel is willing to stipulate the notes go into evidence—”
“Absolutely not,” Bea said looking at Aguilar. “They’re garbage.”
“Let’s proceed,” Goldblatt said. “Let’s proceed with the examination. We’ll keep going until eleven and take our usual five-minute break.”
“It’s not my intention to go over every session,” Aguilar promised after the break. He looked at Leavitt. “Please continue.”
“Chloe on the phone told her father not to kick her, not to scratch her, and not to put his penis in her mouth. And then she used the play phone and pretended Father kept calling her back and wanted to talk to her and she didn’t want to talk to him and hung up on him. To end the play, the possum’s throat was feeling sick and the possum threw up. That’s how she ended the play.”
Aguilar then had Leavitt select five sexually graphic sessions to read, including the one in which Leavitt began explaining the court process to Chloe.
Every once in a while, Goldblatt interrupted her, “Hold on a minute.” He was obviously having a problem writing as fast as she was talking. When she saw him stop writing, she’d continue.
Bea interrupted during the iteration of the sessions. “Again, Your Honor, I object because Chloe isn’t here to testify and be cross-examined.”
“Judge, we do intend to bring in the child,” Aguilar said.
“One day they’re bringing in the child—”
Goldblatt shut both of them up. “Right now I’m just listening to this witness testify as to what she observed and what she heard. She may testify as to that.”
“I’m objecting that there is no foundation here to show that this child—”
“Those objections may come in at the appropriate time, but not now. One more question, then we’ll break.”
So Aguilar had Leavitt iterate what took place at one more session.
Running up to eleven o’clock, the judge doubled the break-time from five to ten minutes.
Anatomically Grotesque Dolls
Every recess is essentially a pit stop. This one was no different. Bea needed a cigarette more than she needed to talk to the Toffetts or DeSegonzac or Bill, so she walked out to the front stoop of the courthouse. Smokers were the new second-class citizens.
Until Aguilar finished his direct examination, Bea would have to rely on objections. Too many objections, though, would anger Goldblatt. She had to choose and state her objections carefully.
The testimony was complex, from the point of view of the rules of evidence, the rules by which a trial lawyer has to live. The testimony raised more questions than it resolved. Complicating matters were the statutes and the new case law interpreting them, which overruled the hearsay rules and accommodated the free-wheeling way-out mind-blowing whirlwind testimony of the new sex-abuse industry workers.
As she wandered back inside from the chilly March air, the Toffetts and DeSegonzac were still shaking their heads from the shock of the early morning session. As Bea joined them, Wilburt Toffett quipped, “We don’t call those anatomically correct dolls; we call them anatomically grotesque dolls.”
During the brief recess, Aguilar was unwilling to talk about some kind of stipulation to avoid going through Leavitt’s notes for the nine months preceding this trial.
Part 16 of 41 coming to Political Truth Serum on the weekend
