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“So noted,” Goldblatt said. “Go ahead.”
Aguilar asked Leavitt, “Can you give us a general sense of the sessions from June 25th through the present instead of going through each one individually?”
Leavitt’s testimony was more of the same, about her father having hurt her, but also about her ambivalent feelings toward her father. “She loves her father and she misses him sometimes, but she doesn’t like when he hurts her, and she does not feel safe with her father.”
And Bea kept objecting. “There is absolutely no showing that this is anything but pure fantasy and pure brainwash. We don’t know how much Mrs. Abernathy—who’s obsessed with a rape that never occurred and who has had full access—brainwashed the child.”
“Judge, I’m going to object to this line of argument,” Aguilar said, with a measure of righteousness.
“She may testify as to what the child told her, but it’s not necessarily the truth, whatever the child told her,” the judge said.
Goldblatt spoke again directly to Leavitt, “Generally what has she told you in the sessions?”
“What she has told me is that she would like her visits to remain supervised, that she does not feel safe alone with her father.”
Then Aguilar stepped back in. “Ms. Leavitt, as a result of your involvement with Chloe’s therapy and your job background, including your education and subsequent training, have you formed an opinion as to whether or not Chloe was sexually abused?”
“Objection. She has not been qualified as an expert.”
“Judge, I believe we’ve more than amply qualified her as an expert.”
“Qualified her as an expert in what?” Bea argued. “All you proved is that she took some courses where she arrived at nine, went for lunch at twelve, came back at one, took another coffee break at two and left at three-thirty.”
“I may find she’s an expert,” Leonard Goldblatt ruled.
Surprised, Bea sputtered, “You’re kidding.” That minute she expected an axe to fall. The spontaneous expression was quite improper.
“No, I’m not kidding,” the court said patiently. Goldblatt appeared to sense Bea’s surprise.
Bea likened it to declaring a mother of nine children an expert but a mother of two children, not. The mother of nine might have more diapers and chauffeured more kids to school but fewer parenting skills. Experience doesn’t necessarily translate into knowledge... or competence.
Of course, Goldblatt could hear everything Leavitt had to say and then ignore it if he found what she said not credible.
Aguilar repeated the question. He then followed it with the mandatory follow-up questions to an expert.
“Yes, I have an opinion.”
“What is that opinion?”
“My opinion is that she has been sexually abused by her father.”
“Can you tell us the basis and grounds of your opinion?”
“There are several factors leading up to my opinion. One is the symptoms that she has presented. The symptoms include a history of nightmares, history of somatic complaints that don’t have a medical basis, fear of her old bedroom, and medical, physical evidence of chlamydia.” Goldblatt and Bea wrote continuously as
Leavitt spoke.
Goldblatt addressed Leavitt again. “Do you want to start that over again?” He wanted to fill in the blanks of what he’d missed the first time around.
Leavitt did, adding, “Chloe also feared her old bedroom, where the child stated the abuse had occurred, and had complaints of stomach aches, for which a doctor found no medical evidence or basis.”
“Anything else?” Aguilar asked.
“Those are the main symptoms if I remember. That’s part of the basis.”
The last five minutes of Aguilar’s direct examination was essentially building the basis for the court to deem Chloe unavailable to testify because it would be anxiety-provoking, and for the court to order Bill to foot the bill for any future therapy Chloe was likely to need.
“Objection,” Bea said. “This general report of anxiety. What does a five year old child know about reporting anxiety?”
Seeing some validity to that concern, Goldblatt said, “Let’s have the exact words.”
Aguilar said, “I’m not asking what the child said. I’m asking for Ms. Leavitt’s opinion, her impressions as to how the child has done.”
“The only opinion she’s given me now is she’s doing well in school. Let’s limit the report,” Goldblatt said.
Bravo! Gone is the so-called report of anxiety.
“In your opinion does she need continued therapy?”
“Yes, I feel she does,” Leavitt answered, but she didn’t know how long it would be necessary. As to the cost of future therapy, she replied, “Our agency charges $45 an hour.”
Closing Holes
This cross-examination was critical. Bea not only had to impeach Leavitt’s pseudo-expert opinions in this trial, she wanted to get “stuff” that could be used to impeach her in the criminal trial and maybe in a private suit by Bill later, if immunity didn’t protect her, for ruining his and Chloe’s lives.
One thing Bea would not do: she wouldn’t ask Leavitt about standards or guidelines she worked to; her answers would be pure cockamamey.
“Who referred the case to your employer, Salem Woods Family and Community Center?” The question should have been an easy one to answer. It wasn’t.
When Leavitt finally replied, “The DA’s office,” Goldblatt actually exclaimed, “The DA’s office!”
Once the cat was out of the bag, it couldn’t be put back in.
From that point on, Bea met less resistance.
When the case reached the Center, the sex-abuse team, of which Leavitt was a member, decided that an assessment was unnecessary because the child had allegedly disclosed to Carol Tracy and that immediate treatment was appropriate. Neither was a psychological evaluation done. Because, as Leavitt understood, none was recommended.
“Did you ever ask yourself why, if there has been no assessment and no psychological evaluation, is this child in therapy?”
After hearing Leavitt’s several attempts at answering, Goldblatt jumped in again and then asked Leavitt,
“How did you know what type of program to develop? What type of program did you develop?”
Bea hoped Goldblatt would be as unimpressed with Leavitt’s answer as Bea was. Basically Leavitt said, Let them play, then you draw whatever inferences you want from their playing.
Bea began her cross-examination of Leavitt. “Do you know whether it’s acceptable practice or controversial for someone to use anatomical dolls at the first visit with the child?”
“It depends on who you ask.”
“Is there a controversy?”
“I would say there is a controversy. Some people feel comfortable with it and some people don’t.”
Given her usual answers, getting that was almost a miracle. If there’s a controversy over the use of a “scientific” instrument, the results from using that instrument are considered unreliable and a court generally won’t admit them into evidence. So Leavitt’s acknowledgement of the controversy should negate any disclosures Chloe made while playing with Tracy’s or Gidseg’s or Leavitt’s anatomical dolls.
“If Carol Tracy turns out not to be a social worker and has had no training, would it have been a dangerous thing to interview the child upon the first interview to use anatomical dolls?”
“I wouldn’t use the word dangerous, but I would recommend against it if she had no credentials and no training.”
She didn’t have an opinion on Denise’s rape because it wasn’t relevant to Chloe’s treatment. She had never asked Denise about the alleged rape.
Because cross-examination is also a time for filling in miscellaneous factual holes, Bea set out to close them.
“Now, is there anywhere in your notes where you mention anything good about the father?”
“Yeah, I talk about Chloe loving her father and things that Chloe told me she liked about her father.”
“But you never wrote those things in your report, did you?”
“I always wrote if she said she liked something about her father.”
“Would you look? Would you take a few minutes?”
“This could take a while. I certainly could tell you off the top of my head, but I really would have to read about one hundred pages of progress notes to get you specifics.”
But Goldblatt was curious. He said, “Ms. Archibald asked you to find that in your notes. Ms. Leavitt, you may look through that during the lunch hour.” Right on, judge, that’ll show her bias if the stuff isn’t in there.
“You said Chloe had certain symptoms such as nightmares which formed the basis of your opinion that Mr. Abernathy sexually abused Chloe. Now, nightmares are not uniquely characteristic of sexual abuse?” Bea asked.
“That is correct.”
“So a child can have a nightmare if she saw a scary cartoon or if she hears her mother yelling a lot or if she watched the Ninja Turtles for instance. Is that right?”
“That is correct.”
Familiar with Chloe’s history of constipation, Leavitt conceded that stomach aches alone wouldn’t indicate sexual abuse; they’d be a part of a cluster of symptoms.
“Your understanding was Mother never saw any symptoms of sexual abuse prior to that disclosure?”
“No. My understanding is that Chloe never disclosed sexual abuse to Mother.”
“Well, what did you understand Mother saw prior to the disclosure other than the talking?”
“Nightmares.” There was no evidence of Chloe having them prior to her alleged disclosure to Tracy. Bea would leave this answer alone, since it could be assumed that everyone dreams and has nightmares throughout their life whether abused or not.
“Mother saw no symptoms other than nightmares that were related to sexual abuse?”
“My opinion is that the cluster of symptoms were there; however, Mother may not have drawn the conclusion of sexual abuse.”
“With what regularity did the child have nightmares, if you know?”
“All I can tell you is when she was brought in for the intake by the Center, if my recollection is correct, the nightmares were occurring about two or three times a week.” This wasn’t in any document Bea had seen.
Roberta admitted her process notes for April 18, 1990 read, “Possibility of ‘flashbacks’ needs further pursuing.”
Bea said, “A week later on April 23rd, Chloe came in—shortly after her sixth birthday—and said she has flashbacks?”
“She didn’t use the word flashbacks.”
“But you have quotes around the word flashbacks, don’t you?”
“That was my mistake. That was my word. I must have miswrote it. I must have been unclear, because that was not Chloe’s word.”
“But generally looking at these notes when you put quotes, you mean it’s Chloe’s own word?”
“I made a mistake,” Leavitt admitted.
Bea wanted to scream You didn’t answer the question!
“Because a five year old child wouldn’t use that.”
“The reason was she made a mistake. It’s okay,” Goldblatt said, protecting her.
Bea anticipated she would get the same nonresponsive answer even if she rephrased, so she just moved on, pointing out other mistakes or misleading statements Leavitt made in her notes.
“It was Mrs. Abernathy who told you about the shorts incident prior to your session with Chloe, isn’t that true?”
“Yes,” she said.
At end of the session, Leavitt admitted Chloe said it was difficult to discuss the incident. When Leavitt asked her to discuss it, Chloe again said, “It was too hard.” But the next week Chloe, after being home with her mother, was fully conversant about the penis falling out of his shorts.
“The next week halfway into the session, I asked her again about that visit, and reminded her that the previous week she had told me there was something difficult for her to talk about. That’s when she told me about her father wearing short shorts and his penis falling out.”
Then Bea asked, “And she became conversant about it a week later. Somewhat similar to the ‘flashback’ that Denise said Chloe had?”
“That’s not true. That’s not what I said.”
On June 4th, Roberta learned Chloe had accompanied her mother to meetings for both AA and families of the sexually abused. Leavitt hadn’t, however, heard that the other children told Chloe all about the abuse they’d suffered.
Leavitt didn’t know it, but her last two answers had been golden. Bea hadn’t been able to get direct evidence of the children at Victims of Sexual Addiction sharing sex-abuse stories. Here Leavitt didn’t deny the children shared those stories, she said only that Chloe hadn’t told them to her. And she admitted implicitly the possibility that she herself shared the information with Heather even though she didn’t remember having done so.
Goldblatt could therefore assume the children shared sex-abuse stories and it was likely Chloe had heard them, but didn’t share them with Leavitt. Bea and Bill would have to wait to find out what Goldblatt assumed when he issued his report.
Goldblatt called time out for lunch. “Okay. We’ll stop here until two.”
Not in New Hampshire!
Wilburt Toffett addressed his wife when they got outside where none but their group could hear. “An expert!
Can you imagine, Lillian?”
“It’s frightening, isn’t it?”
“She wouldn’t be an expert in New Hampshire,” the doctor said.
“Can you imagine the treatment Chloe’s getting?” Lillian shook her head. “Preposterous, isn’t it?”
“She makes the case for the mandatory use of recording devices, audio or visual,” Adolphe said.
“Chloe will probably need therapy for the rest of her life just to recover from the likes of Roberta Leavitt and all of this,” Lillian said.
Everyone ordered one kind of parmesan or another. “Parmesan, it must be Tuesday.” A chuckle or two was heard.
“How many times do you think she wrote ‘Chloe loves Bill’ in her notes?”
“Yeah, how many times?”
“We can’t make book; Bea must know.”
“How many times, Bea?”
“Don’t know. Didn’t count. Not too many, for sure,” Bea said. “It probably depends on what she thinks is favorable to him. And that might be fewer than I think.” Bea took a bite of her parmesan. “We’ll just have to wait.”
“Bea, we have to meet early tomorrow morning,” Toffett said. “I’ll have a list of questions I want you to ask me.”
“Around eight o’clock okay?” Bea asked.
“Fine. I’ll bring a copy of the guidelines, too.”
“Terrific. Isn’t it amazing? She didn’t even seem to understand what standards were? Heavens forbid,
standards!”
“Do you think Aguilar will call Chloe as a witness?” DeSegonzac asked.
“He’s been all over the place on that, but he made an attempt yesterday with Denise and today with Leavitt. All that anxiety stuff. But I think he’s going to have to put her on. He didn’t make out enough to show she was unavailable. If he does, Dr. Toffett, I’d love to get your testimony before Chloe’s. I want the judge to be educated so that when he does hear Chloe, he knows how to interpret it.”
“Absolutely, absolutely. I must go on before Chloe. Yes, that makes sense.”
“I wonder whether the child will feel too much pressure in that tiny room,” Lillian Toffett said.
“Claustrophobic, isn’t it?”
“I wonder how she’s going to react to me,” Bill said. “You know, we’re always in a small room together these days, but she’s never had to say I did all those things in front of me.”
Everyone fell silent when he said that. No one appeared to have thought of it. Or at least, no one had mentioned it before.
On that note, Bill picked up the tab.
The Expert Without Clothes
“I found two incidents in my book over the break,” Leavitt said.
“Has Chloe ever said anything else good aside from those times?”
Lucky no one made book at lunch.
“As I said previously, she talks about loving her father and having mixed feelings about her father. She has said that on several occasions.”
“Then, how often would you say that she said she loved her father?”
“I can’t really put a number on it.”
“Every meeting?”
“No.”
“Every other meeting?”
“I would say maybe—I don’t know—fifteen times. That’s just a guess.”
“You didn’t write that down fifteen times?”
“Every time she said it, I wrote it down, yes.”
“But you could only find it twice today?”
“No, because you asked me to look for the specifics of what she liked about her father. I didn’t look for each time she— I must have misunderstood.”
“You’re saying in the progress notes, there are fifteen times she said she loved her father?”
“No, I’m estimating approximately fifteen times she may have said that.”
“Did you write down every time she mentioned her father’s penis?”
“Yes, I did.”
“But you didn’t write down every time she said she loved her father?”
“No, I did write down she loved her father. I just didn’t count during the break.”
Leavitt’s claim to have read articles on child memory prompted Bea to ask her, “At what stage in child development is a child between zero to two? Between two and six or seven? Around seven?”
Leavitt struck out on each and every answer. Her excuses were many, from “I’m doing it off the top of my head” to “I’m not sure” to “It’s been a long time since I studied this.”
She simply didn’t know.
“No, I have a gut sense of what to expect of children’s memory at different ages. However, I can’t give you the actual term of some of those theories.”
Bingo! The Expert Without Clothes. Out with education and training. In with guts.
Bea then asked Leavitt several questions: “Can a child at three, for instance, remember what happened to it at the age of two? Can a child of four remember what happened at two? Can a child at five remember what happened to it at the age of two?”
Leavitt, as usual, didn’t answer the questions. Bea thought she was trying to cover up that she didn’t know the answers, not that she was being evasive.
The contrast of Dr. Toffett and Leavitt as experts in memory and child development had to be dramatic.
There could be no question, when it was all over, on whom Goldblatt had to rely for his decisions. It was critical that he believe none of Leavitt’s conclusions.
“Now, do you know how to tell the difference between when a child is lying and when a child is telling the truth?”
“There are a lot of criteria that you would use to look at the child’s statement.”
“What are they?”
“You would look at the consistency of the statement. You would look at a child’s after-effect. The after-effect being consistent with the telling of the event, with what they’re telling.”
“In other words, their body language?”
“No, effect is their emotion. Body language can be part of that.”
“Whether tears are in their eyes, whether they’re eyes are liquid and poolly?”
“That can be an example.”
“Any other things?”
“You would look at the child’s language, how the child tells the disclosure. You’d look at other symptoms involved—if they’re consistent with what the child has disclosed—and play therapy—look at the child’s play and see if the play is consistent.”
“Have you read any studies about the suggestibility of a child?”
“Yes, I have.”
“Have you put what you learned by reading those studies into use in your practice?”
“You would look at how rehearsed the child’s disclosure sounds.” Nonresponsive again. The answer should
have been Yes or No. Not what you “would look at,” but what did she do.
“Anything else?”
“Again you would see if a child was told to tell this kind of stuff. If a child’s play didn’t fit a child who’d been sexually abused, you’d look at the whole picture.”
“How would you define a lie?”
“Something that is not true.”
“If Chloe said, ‘Yes, there is a Santa Claus,’ would she be lying?”
“She believes there is a Santa Claus. So she doesn’t think she’s lying.”
“That’s right because she has no intent to deceive, does she?”
“No.”
“Therefore, she wouldn’t have a particular emotional effect?”
“Um-mm.”
“And she would be consistent probably from week to week, wouldn’t she?”
“That is correct.”
“And her language would be just normal, wouldn’t it?”
“Possibly.”
“You wouldn’t see any other symptoms there, right?”
“Not necessarily.”
“But what she said wouldn’t also be representative of truth either, would it?”
“That’s correct.”
“It would be a fact that Chloe believes in Santa Claus, but it wouldn’t be representative of truth that there is a Santa Claus?”
“That’s correct.”
“Now, do children lie or not lie about sexual abuse?”
“Objection,” Aguilar said.
“I think she may have this question if Ms. Leavitt is an expert,” Goldblatt said.
“Studies show that the majority of children who disclose sexual abuse have been sexually abused. Most of the studies I’ve read show that; however, I cannot say that no children have told untruths about sexual abuse.
I can’t say that.”
That was brave of her in the face of Aguilar’s objection. “Now, but you did consider a possibility of false allegation here?”
“Yes, I did.”
When Bea asked whether she looked into the history of the mother, Leavitt responded, “History about what?”
“When you were considering the false allegation, you didn’t think it was relevant to get to know what Mr. Abernathy was like, what his side of the story was?”
“I didn’t feel it was appropriate at the time in my treatment to meet with Mr. Abernathy,” Leavitt said. “It would’ve been appropriate if and when Chloe felt safe.” That Chloe wouldn’t have been there or known that Leavitt spoke to Bill didn’t make any difference.
“Now, did you ever learn about a child’s memory being distorted by multiple presentations?”
“Yes, I have learned that.”
“Did you consider a possibility of the child’s memory being distorted by the multiple presentations in this case?”
“I considered it as a possibility.”
Bea ran down a list of people who spoke with Chloe. Leavitt agreed she was at least the fifth person to have interviewed the child: Carol Tracy, Rachel Gidseg, Detective Cooper, Norma Fellows, who was the Center’s intake worker, and Leavitt herself. She understood from Fellows that “Chloe didn’t wish to discuss the sexual abuse. So she didn’t discuss it with her.” So Fellows didn’t ask anymore questions.
“Please explain to us what you learned about when a child’s memory is distorted because of multiple presentations.”
“Some studies talk about multiple interviewing being difficult for the child. After several interviews, the child may not give as accurate a disclosure. The studies do not say that the initial disclosure was inaccurate or false, but what they say is, as more interviews happen, it’s possible that the child statements may become less accurate.”
“Or distorted?”
“Yes.”
“Do those studies presuppose that a competent, trained, experienced individual does the initial interview?”
“I don’t know. I can’t tell you offhand.”
“In your opinion, is it a common practice by social workers such as yourself to use leading questions on initial interviews to determine whether a child has been sexually abused?”
“Asking leading questions is not common practice.”
“Why’s that?”
“Asking leading questions is not common practice because the methods of choice would be for the child to be able to disclose and use their own words, and not be led by the interviewer so that the disclosure would be more accurate.”
“Is it a common practice, if you know, to use anatomically correct dolls the first time interviewing a child for sexual abuse?”
“I think she answered that question earlier,” Goldblatt said. “Re-answer if you don’t think you answered,” he suggested, evidently questioning his own memory.
“I believe that many people use anatomically correct dolls when they interview children about sexual abuse.”
“Is it something you would do?”
“Yes, it is something I would do.”
“But you know about the controversy with anatomically correct dolls?”
“Yes, I do.”
“Why is this dangerous?”
“I think some people have concerns about anatomically correct dolls. However, the studies I’ve seen do not bear out those concerns. So when you say the word ‘dangerous,’ it depends.”
“Suggestibility? Might that be it?”
“Some people have said that, but studies I’ve seen have not.” Good, the controversy is established to the point where Dr. Toffett can take over.
Fourth Down
“You testified on cross-examination, you don’t use audiovisual equipment or you didn’t in this case. Can you tell us why?” Aguilar asked Leavitt.
“I don’t use them in my treatment sessions because it’s often seen as intrusive by the child.”
Aguilar then attempted to rehabilitate Leavitt on the flashbacks story, but only succeeded in reaffirming that Leavitt had made a mistake.
Aguilar’s questioning confirmed Bea’s snowball and suggestibility theories: the more time spent with a social worker, the larger the story becomes.
“Cross is limited to the two questions taken up on redirect,” the judge said.
On recross, Bea used the flashback report as a segue to ask Leavitt whether she spoke to Denise before and after each of the meetings. Bea’s purpose was to highlight Denise’s role in the alleged treatment of Chloe.
Leavitt gave a Leavitt response: “It just varies.”
“Why didn’t they do the sexual-abuse assessment again?”
“I don’t remember that being raised at the intake meeting as an issue, but it’s a possibility.”
Look for Part 17 of a 41 part serial next Monday