Accused? Guilty by Barbara C. Johnson

Accused? Guilty by Barbara C. Johnson - Epilogue

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A Magician’s Sleight of Hand

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Blakeley’s closing was astounding. He argued inferences, facts never put into evidence, but that could be inferred from the facts which were.

“The evidence appears, I represent, and my argument is that it seems to be fairly agreed upon that after the child was born, the focus of Mrs. Abernathy was her depression or the alleged rape by Mr. Abernathy in the bedroom back in July of 1983, which resulted in the conception of Chloe. This was something she dwelled on, she focused on, she obsessed on. She turned to drink. She ended up drinking for a period of two years.

“Can you imagine what that household was like for two years? You heard the evidence as to him working. He would come home from work. He would just about hit the door, when she’d say, “The rapist is home.” What type of atmosphere is that, do you think, for a child of three years of age, four years of age?”

While listening to Blakeley, Bea thought, Had I even mentioned any of these facts, I would have been found in contempt, fined, or reported to the Bar. “The rapist is home.” Brilliant. Bea had never gotten a fully satisfactory answer from Bill as to what Denise had said when she nagged him.

“You remember Carol Tracy. You can consider her bias, you can consider Carol Tracy’s attitude, you can consider Carol Tracy’s attitude when dealing with people. Is there passion there? Would you want Carol Tracy judging an issue involving you when she stands there on that witness stand and says I didn’t need it, I don’t care, I know what it was, I know what happened? Do you take notes? No, I don’t take notes, remember that? No, no, I don’t take notes.

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“If you’re in the medical field, if you’re a doctor or a nurse of someone, you take notes. Why do you take notes? To be accurate, to refresh your memory, to have some ability to document something.

You don’t sit there and indicate you’re not interested in taking a video recording, perhaps, or an audio recording. The American Psychologist Association, they’re not a bunch of numbskulls. This is a group of people whom you can assume have some intelligence or knowledge, and the rules and regulations... couple that with her bias, which is dripping from her on the witness stand, and couple that with the obvious bias of the mother. There is no evidence, there is no evidence, there is no evidence.

“The mother, this woman who has focused and obsessed for ‘83, ‘84, ‘85, ‘86, ‘87, ‘88, ‘89 about being a rape victim. You heard her testimony on the stand as to the alleged rape that occurred. And then in 1989, in one of her group sessions, she discloses she has a concern.

“I asked Carol Tracy, Did the child say anything to you about being molested while she was in diapers? No. Do you deal with DSS? Do you know who DSS are? Do you understand the DSS? Yeah, I know 51A. 51B, I don’t know anything about. I don’t know what he’s reading from. I don’t know what that is.

“Well, if the indication is that the child complained to her mother her bottom was itchy and the father comes into the room and wakes her up and bothers her and, in fact, there was the pinching and the punching playfully, and the mother mentioned that in her group, and Carol Tracy interviewed the child for possible sexual abuse, it’s the mother, it’s Carol Tracy.

“Where is it coming from? What is this all about, about going into the bed and waking her up? Where is all the part about the indication that the child was penetrated, hitting, pinching, kicking, and sex while she’s wearing diapers and sleeping in her crib? And then the child is being in a position where she’s molested by her father, statements being made that he struck her with a baseball bat.

“What is this all about? And Carol Tracy says, No, she never disclosed anything in the group, never said anything about the crawling in and out of bed. Doesn’t know where that came from, doesn’t know what he’s reading from.”

Bea was laughing and crying at the same time. Blakeley had lucky breaks, and he’s making them into scrambled eggs. Maybe scrambled eggs is his style. If his pace was slower and if he had not exhausted the two women, Denise and Tracy....

“Carol Tracy indicates the child made a disclosure to her. You heard her testimony as to what the child said. Carol Tracy says I wrote that down, Carol Tracy says It’s in my report, and there’s nothing in there about that. Well, how about Carol Tracy’s indication in her report, also, that the child calls herself a ‘thing’?”

“The child calls herself a ‘thing.’ The child is reacting in a fashion that she is becoming, making statements. The child is living in that household, she is brought by the mother to see Carol Tracy, and Carol Tracy sits down with her and with the anatomical dolls and then starts using leading questions, and the child makes statements.

There is absolutely, absolutely indication of manipulation, indication as to the source of this virus. Virus, where do you think a virus comes from? A microbiologist, the mother, she tests, deals with blood and things like that. Says the penis and the vagina. This child was four or five years old. Penis? Vagina? Remember Carol Tracy saying, ‘Oh, open up the doll,’ and ‘Oh, it’s got a penis’?”

Is that enough to deal with the “yucky” statement? Will the jury buy it?

“And then what does Carol Tracy do? Positive reinforcement, you know, positive reinforcement.

Thanks her for telling the truth. Does she talk to anyone? Does she do anything? Does she investigate? No. Just Thank you for telling the truth. How many times do you think over these years the child has been thanked for telling the truth? And during that period of time, you can see from the evidence as to the reinforcement, the circumstances surrounding the visitations. These are not rules— These are Denise’s rules. The no-whispering rule. The no-touching rule. Can you see how it’s kind of like tightening the circle there?

“The time goes by. Time goes by. Now, you have supervised visitation rights, and during that period of time, he continues to see his daughter. While he continues to see his daughter, he can’t hug her, he can’t touch her, and God forbid if she should touch him, because Denise doesn’t think she should be able to touch him, either. The indication is nobody knows where that came from until it was brought out in the records.

“Then she comes in here and tells you people he just, you know, saw her a couple of times in court, no big deal. Well, didn’t you write a letter a year later and recommend something to the court? Might have, yeah. Didn’t you recommend visitation rights be revoked, and he shouldn’t even visit with the child a year later?

“And then what did she react to, do you remember that? She looked at me like I had three heads. I didn’t do that. And then I showed her her letter. Again, it’s in the records, it’s there. I recommend visitation rights be revoked. How dare she? How dare she?

“And then I asked her, based on what? Is it based on the faint memory she has of something the mother said? What was the evidence, Ms. Tracy? Talked to the mother a couple of times. Just like when Denise was on the witness stand and indicated she had a faint memory of bringing this five-year-old child to her classes, a faint memory of this child being in the groups, the sex offenders’ groups, the sex addicts and their families’ groups.

“And then I ask, Did the child indicate to you other kids were molested by their daddies, too? No, no. Once again, it’s in the records. Well, do you recall this? Did you say that? Do you see this? Read it. You said that. This child talked to kids who had been allegedly molested by their fathers, there have been groups, they have been read to.

“This is like in North Korea when you have somebody in a concentration camp and you read out of the little red book there, remember? And you read to people and you talk about being a victim, and you’re a victim, and then one year turns into two years, you’re a victim. Thank you, you’re telling the truth, you’re a good little girl. Daddy’s no good, we hate Daddy, I hate Daddy, Daddy can’t touch me, Daddy can’t see me, I can’t even brush the hair out of Daddy’s eyes.

“And it just goes on and on and on, 1992, ‘93, ‘94, ‘95, ‘96, ‘97. How many times has this child— Ten... ten social workers, psychologists, therapists, using the term loosely. Well, you wouldn’t pay for the therapy. And what’s his indication? No, I wouldn’t pay for the therapy after I had an indication as to what the therapy was. The therapy was nothing more than the commonwealth preparing her to testify.

“You’ve got a man who comes before you and describes his interaction with his daughter. He described his feelings with his daughter. He has attempted to maintain contact with her against incredible odds.

“The documents, the records, the evidence referenced in this trial, Heather Bruce’s notes, all of the circumstances involving the visitations, the mother again denying that she would punish the child until she saw the record, twenty minutes in her room on one occasion because she felt the child was manipulating and she felt the child was trying to lure her father into the kitchen.

“The documents that indicate Denise: Denise calls, Denise wants, Denise says, Denise thinks, Denise wants and demands. Denise, when she’s confronted, didn’t like one of the people, one of the facilitators, because the individual confronted her and said, Don’t you listen? You have an avoidance tendency. And then she talked to a social worker about the visitation and has no memory, of course, of sitting with the child in her lap for twenty minutes and refusing to talk to this individual. Where did this come from?

Bea wondered, too. This time the mirage is Michael’s.

“These are things that you have to grapple with because when you consider what has gone on in this case over these years, you know, everybody starts out with their hopes and their dreams and, you know, you’re going to have a wonderful life, and things happen in life, and this family has been tortured, this family has gone through so much.

“A jury cannot make it all go away, cannot make it better. Your job is to consider whether or not the government has presented evidence that proves to you beyond a reasonable doubt, beyond a reasonable doubt.”

His closing was a magician’s sleight of hand. Bea was not sure Blakeley even realized what he was doing. Tortured language. Conveyed passion. And masterfully, he ended the closing with an emotional crescendo.

When her adrenaline rush stopped, she wondered whether if the jury acquitted Bill, Blakeley would have won it as much as the prosecution lost it.

Necessary to Consider the End

On April 16, 1997, after two days and two hours of trial, during which Chloe, Denise, and Carol Tracy testified on behalf of the prosecution, and Bill, his auburn-haired colleague (Jennifer Ouelette), his sloe-eyed Kate, and his supervisor at Hanksville Community Health Center testified on behalf of the defense, a jury of five men and seven women deliberated for under two hours, including lunch, and found Bill Abernathy not guilty after almost eight years of Hell.

Two or three jurors later told Jennifer it was cut and dried.

Rachel Gidseg, Detective Charles Cooper, Norma Fellows, Heather Bruce, Roberta Leavitt, Maryellen Murphy, and many unnamed others were not called to testify. They had already done their part in ruining the relationship between a loving father and a loving daughter.
Chloe turned thirteen years old the day after the jury’s decision.

And Kate became a June bride.

Pitbull

The Appeals Court notified Judge McGill’s court that they upheld McGill’s decision, which had called for two different sums to be paid by Bea to no one in particular and by no particular date, and that the Supreme Judicial Court upheld theirs.

But Pitbull lied his way into an unretractable position: he had said the defendant companies no longer existed. Although Bea had evidence to show the opposite was true, Pitbull could not change his position.

Then to whom would the execution issue?

Not being able to answer this question, no execution, which would have ordered the sheriffs to collect on behalf of the allegedly defunct defendant companies, issued.

The possible successor corporations weren’t interested in the small amount of money; they were still fighting the issue of liability in the third and remaining employment discrimination case: Rita Petrillo’s.

When Petitioner Pitbull sought a writ of execution against Bea for the fines for being held in contempt, the clerk of McGill’s court gave Pitbull an execution for a little more than eight hundred dollars against Bea, but the execution called for Bea to pay the money to the Commonwealth, not to Pitbull, his law firm, or his defendants. Pitbull was not an Attorney General, so he couldn’t use the execution and returned it unsatisfied to the court. The amount had always been unimportant. Bea had fought it on principle.

Had there been a real order, Bea could’ve lost her license to practice law. She didn’t. In fact, she had sought from the Bar Counsel an amicus curiae brief to support Leslie Calhoun and had been refused.

If she fought them, the whole disgusting unjust matter would have reached the public through the press. At that time, the code of silence ruled.

Bea and Leslie Calhoun waited for the Appeals Court to notify the lower court of the appellate panel’s and the SJC decisions. That never happened. Bea surmised the decision about the award of appellate fees to Pitbull’s allegedly defunct corporate clients had been deep-sixed somewhere between the 14th and 15th floors of the Suffolk County Courthouse.

Bea wondered which of the Supreme Judicial Court justices caused that to happen.

She had not seen Hugh after he’d gone out the door.

EPILOGUE . . . . . What’s past is prologue ~ Shakespeare

Bea was fussing around with flower pots on the upper deck. She nipped off the dead blooms of the narcissus and braided the leaves. The yarrow was a riot of coronation gold surrounded by an assortment of white blooms short and tall, delicate and bold. Here and there, she had some mint, thyme, basil, and even dahlia and columbine. She wanted to experiment with some old-fashioned plants rediscovered by an old friend, Jo Ann Gardner, and shared in The Heirloom Garden.

The phone rang. Bea picked it up and pulled out the antenna. “Good afternoon,” she chimed.

It was Bill. “The day after the verdict,” he said, “I called Chloe for her birthday. I told her I didn’t blame her and that I’m safe now.”

Chloe was his weakness. Over the next few minutes, Bea learned he continued to call the child weekly, even when he was away on his honeymoon. Chloe was cool, he said. He wondered aloud, “Where is she? It’s like she’s been in a cult for eight years. She needs therapy away from Denise’s influence.”

Then one day Chloe called him. Kate’s voice was on the answering machine.

“When I called her back, she asked whether the woman on the machine was my girlfriend and was I going to marry her. I told her, ‘Yes, I am, next week.’ I also told her I had lots of other things to tell her, but I hadn’t been able to tell her anything because of the situation. She wanted to know, first, if Kate had kids.”

Bea could hear his smile. “Did you invite her to the wedding?”

“Yes.”

“And?”

“She hesitated but finally said No.”

“Was Denise listening in?”

“No. No, I don’t think so.”

“Well, I suppose she’d still have to tell her mother where she was going.”

“I suppose, but I was disappointed anyway. After the wedding, though, I asked her ‘Do you have any questions for me?’ So she asked me when I proposed.” He laughed. He was obviously excited by the child’s interest.

“I also asked her whether she wanted to see me.”

“Did she?”

“No... she said No.” He sounded disappointed but not surprised. “Well, at some point, I asked her if she’d like to meet Kate. I told her she could bring a friend with her and choose a restaurant they’d like to go to.”

“Good idea.”

“Above all, don’t waste anymore money on someone like Cavanaugh. Just ask Chloe again directly from time to time. Let her be the one to decide if she wants to see a psychologist. Let her take the lead. At least you can talk to her privately, without Denise listening.

The steam should be out of Joe Aguilar by now. Just remember, though, the court still controls matters to do with the child, so when Chloe agrees to see you, ask for normal visitation rights.... No hurdles are left except Chloe herself.”

“One more thing. This you’ll find funny,” Bill said and then chuckled.

“What’s that?”

“Heather Bruce moved into the condominium neighboring Kate’s,” he laughed. “I don’t think she recognized me.”

He laughed again.

“That’s because you sound like another man. Your voice is an octave or two lower.”

“I know. A few people said I look twenty years younger now.”

“Oh, did you meet with Blakeley yet, for a post-trial briefing?”

“Not yet. I wrote him a Thank You letter and he answered. He said people had remarked how nervous he was. He said it was difficult defending a client who is 100 percent innocent in these child sex-abuse cases. It’s so unpredictable.”

Bea heard Bill’s beeper. “Oh, yes, I’ve got a new beeper,” he said. “When you connect, just punch in your number.” Bill gave her his new number.

“Go ahead. Call that one back. And call me to say you and Kate are pregnant.”

“I will.”

The phone call invaded the flowers’ space. Bea pushed the antenna back down and went inside. She grabbed a giant mug of coffee and headed for her recliner.

Cortland A. Mathers had retired from the bench when he reached seventy years of age in 1996.
After retiring, he became a mediator of civil cases in a court-sponsored alternate dispute resolution group. He offered his services as a mediator for Maggie Rudolph’s employment discrimination case, which Bea was prosecuting. Bea laughed.

Bill never called to tell Bea whether he and Kate were pregnant. Bea received, instead, a notice that Bill filed for bankruptcy to get rid of Bea’s last bill. Red Luther had warned her.

He said when one of his male clients in a family-court action got a girlfriend in the middle of the case, he’d tell the guy to get rid of the girlfriend or he’d withdraw from the case.

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Accused? Guilty by Barbara C. Johnson - Part 40

Accused? Guilty by Barbara C. Johnson - Part 40 of 41 parts of a true to life story

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Rationalization

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Bea was suffering her own personal distress during the questioning of Denise. She tried to recall why she hadn’t asked Denise about the no-whispering rule? Right, she had not been allowed to discuss Denise’s problems. Without being able to show the background, she feared being perceived as attacking an innocent, blameless mother from protecting her child who was suspected of being abused.

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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Accused? Guilty by Barbara C. Johnson - Part 38

Accused? Guilty by Barbara C. Johnson - Part 38 of the 41 part true to life serial

Read the Barbara C. Johnson Bio at Amazon.com

Repeat Performance

Available on Amazon.com

Blakeley’s opening was not as bad as Bea’s, but it was unimpressive. He offered no theme for the defense. He was probably inhibited by not knowing what Chloe would say four years later, four years older. Bea was hoping less was more.

Chloe was, again, the Commonwealth’s first witness. Cooke had her describe where she went to school and the layout of the house, but didn’t take a chance on being surprised by the karate and swimming classes again. So early on, she had Chloe say Bill had taken her. That was to be expected, but Bea knew the child had been unscrupulously prepared when Cooke asked, “Can you tell the jurors during that time if your mom or dad was working?”

“Yes, both my parents were working.” Denise was working only every other Sunday. Cooke was leaving lots of time for Bill to be alone with Bill in the house. Bea thought, The more time to rape you, my child. Damn Cooke. How dare she? She knows the truth.

Cooke asked, “How about when you were at home with your dad, were there times you were alone with him?”

“Yes.”

“And can you recall whereabouts in the house that you would be alone with your dad?

“In the living room and in his bedroom.” This is new. What’s she going to have happen in the living room?

“And where would your mom be when you were alone with him in the house?” Here it comes, here it comes. Bea wanted to scream.

“Either at work or—Yeah, at work.”

Cooke, you unethical bitch.

The bedroom scene, as at the first trial, began with Bill letting Chloe jump on the bed. “And he’d let me jump on the bed.”

Would a child who knew she was about to be raped want permission to jump on the bed?

“Now, can you tell the jurors, did anything else ever occur with your dad in that bedroom beside the tickling you just told us about?”

“He would sometimes jump on the bed with me and then knock me down and take off my clothes and stick his penis in my vagina.” Chloe was cold, detached, showing no emotion whatsoever, looking straight ahead at her mother, who was strategically seated in the rear of the courtroom on a line behind Bill and Kate.

“Do you recall what types of clothes you were wearing when he took off your clothes?”

“No.”

“When he would do that, can you tell the jurors what you felt at that point.”

“Scared.”

Peter, Peter, if you were only here. No pain, Peter. No pain.

“Can you tell the jurors what you were feeling or what you were thinking at that point?

“I was confused and scared.”

If it happened more than once, then why was she confused? She would have known what was about to happen.

No, she didn’t say anything to her dad and he said nothing to her. And mom was again downstairs in the living room either taking a nap or reading when her dad pushed her down on the bed.

“Aside from what you just described, did anything else ever occur in the bedroom when you were alone with your dad?”

Chloe didn’t respond.

“Do you recall where he would touch you when he would be on top of you?”

“He’d be holding my arms down.”

“Do you know approximately how long that would go on for?”

“I don’t remember.” And she didn’t remember when or how often it happened, just that it happened more than once.

“Did anything else happen in the bedroom between your dad and yourself that you can recall?”

“No, just the tickling and everything.”

“Did he ever touch you in any other way?”

“Well, when he tickled me, he would sometimes put his hands down my underwear.”

“And when he would put his hands down your underwear, can you describe where his hands would go?”

“On the surface of my vagina.”

“And what part of his body would be touching the surface of your vagina?”

“His fingers.”

No, she never said anything to him at that time, nor did he say anything to her. Nor did he touch her in any other way, nor did she touch him in any other way.

“When your dad was on top of you and your clothes were off, can you tell the jurors, what about his clothes?

“They’d be off, too.”

“When he would take his clothes off, did you see his body?”

“No, my eyes were closed.”

“And when would you close your eyes?”

“When he was on top of me.”

“Now, when you were upstairs in the bedroom, can you tell the jurors whether or not you ever saw any parts of your dad’s body?”

“No.”

“Did your dad ever touch you in your mouth?” That was a leading question and was improper.
Is Chloe unwilling to testify? Is that why Cooke reverted to leading her? Also, the child had already said he didn’t touch her anywhere else. Blakeley didn’t object. He, like Bea, didn’t want the jury to think he was interfering with the child’s story.

“Yes.”

“Can you describe for the jurors when he would touch your mouth?”

“He would put his penis in my mouth.” And that happened in the bedroom more than once.

“Do you recall or can you describe to the jurors what that was like?”

“It didn’t taste good.”

“Do you know where your mom was during those times when he would put his penis in your mouth?”

“Downstairs on the couch.”

No, she never said anything to him at that time, nor did he say anything to her. And yes, it happened more than once on separate days.

“Do you recall or do you know how old you were the first time that it happened, Chloe?”

“Three.”

“Now would you describe when you would go swimming with your dad or to karate, how would you describe your relationship with your dad then?”

“I was close to him then.”

“Now at some point, did your dad talk to you about talking about what was going on in the bedroom?”

Improper, leading question.

“Yes.” But she didn’t recall when or the number of times he talked with her about what was going on in the bedroom.

“Can you tell the jurors what your dad told you with regards to what was going on in the bedroom?”

“He said if I ever told anyone, he would kill my mother.”

“And how did you feel at that point, Chloe?”

“Very, very scared.”

Rules and Raping

Blakeley started slowly with questions about karate and about the gi, the side-tied karate shirt, and her little belt. Then he dared what Bea had not.

“Do you remember your father hitting you in the head with a baseball bat?”

“No.”

“No? Do you remember telling the lady— Do you remember talking to the people from the social work department about this case, you know, a couple of times?”

“Yes.”

“And do you remember or did you ever say to the woman, any one of the people you spoke to, that your dad hit you with a wooden baseball bat on your head and on your bottom, and that he left marks?”

“I don’t remember.”

“Do you remember saying he would hit you and punch you and hit you on the face with his hands and that he left marks on you all over?”

“Yes.”

“Do you remember your father coming into your bed with you? Do you remember saying that to the person?”

“Yes.”

“And do you remember... your memory, do you recall saying you were in your diapers?”

“Yes.”

“You remember your father coming into bed with you when you were in your diapers.”

“I don’t remember that, no.”

Would the jury be able to distinguish between Chloe remembering whether something happened and Chloe remembering whether she had told someone? Blakeley had picked out the most outlandish events to ask Chloe about. Blakeley shouldn’t need Toffett now, Bea thought.

She remembered Carol Tracy. Probably only because she’d been reminded about her. It seemed unlikely she’d remember a 30- or 40-minute visit with Tracy that had occurred eight years earlier.

“And do you remember, did your mother tell you why you were going there?”

“No.”

“Did you know why you were going there?”

“Yes.”

“And why were you going there?”

“Because I was going there to tell about my father raping me.” Bingo, Blakeley, you did it. The inconsistency was beautiful.

“Raping you? And when you went into Ms. Tracy, did she give you some, like, doll things to play with, do you remember?”

“I don’t remember.”

She remembered the no-touch rule, but she remembered they could hug each other.

“And what was the no-whispering rule?”

“He couldn’t whisper to me and I couldn’t whisper to him.”

“Okay, and who would make those rules, do you know?”

“I don’t remember.” Neither did she remember getting into trouble with her mother because she hugged her father.

Then Blakeley mined the same treasure that Bea did. He asked her about hearing stories from other kids about how they were abused.

“Did your mother take you to a place where they had classes or a group of people talking about things like this?”

“Yes.”

“Do you remember talking to other kids who had things happen to them like this?”

“Yes.”

“And did they tell you things that happened to them.”

“Yes.”

“Did you also go to, do you remember, like a camp with other kids that were from... that were abused by their fathers?”

“No, I don’t remember.”

“You would hear stories from other kids about how they were abused or raped, though, by their fathers, right?”

“Yes.”

Meet My Beautiful Daughter

Bea paced the corridor. Having finally heard Chloe as a young teenager, Bea was tempted to leave. I’ll regurge if I have to listen to Denise again, but maybe I should go in just to see what Blakeley will do differently. To do that, she’d have to listen to Cooke, too.

“I moved into the third bedroom,” Denise was saying flatly as Bea walked in and sat on a bench in the rear of the room. Denise had just finished telling the jury about the beginning of her marriage to Bill.

In very short time, Bea could tell that Cooke was skipping the rape. That’s strange. She knows Blakeley has permission to ask about it, and will. How come she didn’t ask about it? The first rule of thumb for a litigator is to let a jury know the bad stuff before your opponent does. In that way, you can prick the balloons before they make a gala display.

When Cooke directed Denise’s attention to the day of the talking hands, Denise iterated as she had three times before that it was the “hands” which told her the secret. But Cooke didn’t bother to have Denise testify that Chloe, the human being, spoke while she was playing puppets. If Blakeley’s smart, he’ll leave it alone. I wish I had.

Denise was in the middle of the Carol Tracy story, which was being told exactly as it had been before, when Cooke and Denise added something new.

“And how did you introduce her?”

“This is my beautiful daughter, Chloe, and this is my friend, Carol.

Only one other item differed for evidentiary reasons: because Bea had argued it was improper to talk about what Chloe did with the anatomical dolls and because Chloe hadn’t remembered playing with them, Cooke had Denise throw in a piece of information that hadn’t come out before. That was something that allegedly occurred when Chloe came out of Tracy’s office.

“Chloe went and got the dolls and showed them to me,” Denise said.

Tracy was a corroborative witness who should add nothing new substantively; Denise was not, legally. Tracy shouldn’t have added facts to which Chloe hadn’t testified, but she had. Also the way a child played with the dolls was proof of nothing. Denise, as an ordinary witness, was not confined by the restriction imposed on a fresh-complaint witness. Bea thought everyone but litigators would be bored by any discussion of the distinction, until they knew they could go to prison if the two evidentiary situations weren’t distinguished.

“And what did she do with the dolls when she showed them to you?”

“She showed me the male doll had a penis and the female doll didn’t have any underwear on.” Yes,

Denise and Bill had taught Chloe to call a penis a penis and a vagina a vagina.

Bea was bothered. Had Cooke and Denise set up a time bomb about the rape of ‘83 to blow up during Blakeley’s cross-examination?

The next episode of this story will post tomorrow, Monday - September 29th

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Accused? Guilty by Barbara C. Johnson - Part 37

Accused? Guilty by Barbara C. Johnson - Part 37 of 41 parts of a true story

Read the Barbara C. Johnson Bio at Amazon.com

Suspense in news is torture ~ Milton

A Gentleman

Available on Amazon

Bea received a gentlemanly letter from Michael F. Blakeley. He wrote that he was “very impressed by the scope, detail, effort, and quality of her obvious conscientious representation” of Bill.

Bea thought it too profuse, but she admired his generosity and the letter did give her some solace. What was particularly kind, she thought, were the words, “Regardless of Judge Mathers’ observation, I feel that you have provided Mr. Abernathy with legal representation second to none and that you should be commended accordingly.” He also wrote he might be in touch with her regarding further developments on the case.

Below “Warm regards” and his signature, there was a little happy face, one of those emoticon buttons. Bea smiled. Wouldn’t have thunk it.

Two months later, Michael predictably argued double jeopardy as grounds for dismissing the case. Considerately, he sent Bea a copy of it. He’d characterized the interplay between Mathers and her as “spirited pretrial and post-trial sparring.” She chuckled.

She was neutral about Michael trying to make her look blameless: he had to make her look good in order that the motion not appear frivolous. But she put his graciousness into the back of her head before putting the letter in the file. She never did know how to accept a compliment. Doesn’t matter, he wouldn’t have written the motion had there not been at least some truth in what he said. The transcript had to support him... and me.

Waiting

In August ‘93, Blakeley said the best thing that could’ve happened was getting Mathers to recuse himself from the case, but the DA was pushing for trial.

In September, Blakeley was prepared to argue Mathers’ declaration of mistrial was inappropriate. Bill was hopeful. Blakeley seemed confident. But the hearing on the motion to dismiss was postponed from September to October.

Then, because it made no sense to argue the motion before the particular judge sitting on the bench, Blakeley further continued the hearing to November.

And finally, because Blakeley had a conflict in his schedule with another case, to the second week in December 1993.

Having grown accustomed to continuances in court, Bill took everyone’s advice to enjoy as much out of life as he could. He played hard. By the end of ‘93, Bill felt guilty that Kate was getting dragged through more of this, and phoned Denise to talk about finalizing the divorce. He perceived Denise as threatening. What if she accused him of assault?

Between Christmas 1993 and the first week of January 1994, Bill was in criminal court a few more times. Blakeley told him the delays were inevitable, but that a legal issue might end it all. Bill was comfortable with Blakeley in court, but the pressure of just being in court was hard on him.

He told Larry Kupersmith, whom he continued to visit, “My lawyers say ‘Just be thankful you’re not in prison. Don’t worry about visitation.’”

In 1994, the motion to dismiss was denied, the appeal of the denial was also denied, then three different trial dates were set: June, September, and October. All were canceled.

“I’m just numb,” Bill told Larry. Pressure on Bill to get the trial over with was terrific because Kate was upset by the delays. She not only wanted a family, she wanted to marry in the Church—which meant Bill would need an annulment—and Blakeley was telling Bill he should want to avoid trial.

“Trial is too unpredictable, William,” Blakeley said. “You’ve waited this long—five years—a while longer won’t matter much. If you can avoid trial, it’s worth it.”

“I’m in a state of disbelief. I was convinced the motion would do the trick. I’m so disappointed,” Bill said.

“Well, in the meantime, I have other cases. That’ll give you some time to think over what you want to do.”

Around this time, Bill phoned Bea. “Bea, I really miss Chloe. What do you think we can do about visitation?”

“What we can do and what we should do are two different things. So much of my answer depends on what Blakeley wants to do. And, of course, on what you want to do. But I recommend you follow Blakeley’s lead, whatever he’s telling you. Which brings me to ask, what is he telling you?”

“He’s telling me to be patient.”

“There you go. Well, from my point of view, until the criminal case is resolved, you can expect supervised visitation only. And before even that will happen, you’re going to have to suffer another court-appointed psychologist’s circus, like the one Rhonda Cavanaugh gave us. Denise still hasn’t agreed to an alternate location for the supervised visits. So to get over that hurdle will mean more visits to family court.

“After trial... after trial, if you’re acquitted, Denise will lose, I assume, some of her piss ‘n’ vinegar, and getting unsupervised visitation rights—if not custody—should be quicker and cheaper.

“On the other hand, if you’re convicted, visitation and custody would be moot, and you will have wasted both time and money on trying to get them. So I don’t want to do anything until I hear loud and clear from you what you want to do.”

“I can’t fight for visitation. I’m out of money,” Bill said.

“That’s a cop-out. Money is a consideration, but it shouldn’t be your primary consideration. If I’ve made it sound like it is, I’m sorry.” She was worried about sounding unempathetic, given that her fees had been considerable. “Your primary consideration is the impact of whatever you do on Denise.

So far, she’s been pretty obdurate, if you will, regarding sites for visitation. And from what I’ve heard from you about the number of times there’ve been continuances, she doesn’t appear to be on the DA’s back panting for a trial.”

Bea could hear him inhale, that nervous gesture of his. “Because she gets my check regularly and isn’t on welfare.”

“Right on,” Bea agreed. “But if you push for visitation, she’s going to push for trial. She doesn’t want to let you near the child.”

Bill opted to wait fighting for visitation until after the trial.

In December ‘94, Blakeley said, “Trial will probably be in February.” Eventually four different trial dates were set in 1995: March, July, September, and December. All were canceled.

By September, Bill’s imagination began working overtime. “I fear prison,” Bill said to Larry. “I fear losing Kate and Chloe. I fear losing all I have.” But Bill was still playing hard.

In December ‘95, Blakeley again said, “Trial will probably be in February.” Eventually three different trial dates were set in 1996: February, July, and August. All were canceled.

At the beginning of ‘96, Larry wanted to know what Blakeley’s strategy was, but Bill had no answer to pass along. Bill told Larry, “I plan to talk with Blakeley. He seems to be delaying, but I’m not sure why.”

“Hi, Michael,” Bill said when he phoned Blakeley. “What’s the latest in strategy?”

“William, pursue the divorce and try to get supervised visitations. Chloe is almost twelve years old. She’s a big girl now. I know you speak to her every week, but maybe you can learn more of who she is now if you actually get to see her on a regular basis. Let Bea know.”

“Hi, Bea,” Bill said. “Blakeley said it was unclear why the DA isn’t pushing for trial.”

“Unclear?” Bea was amazed. “The DA isn’t pushing probably because Chloe doesn’t want to testify.

You’ve kept in touch with her through those weekly phone calls. And Denise is probably not pushing the DA because you’re not pushing for visitation.” She chuckled. “You guys. It’s clear as a bell.” She laughed. “Did he say anything about getting the divorce?”

“He said, ‘Go get it.’”

“Full steam ahead. Finally!” Bea sighed in relief. “I have to agree with him. Getting the divorce now, prior to the trial, is a good idea. We can make lemonade from the lemon. If Denise believes you’re going to be convicted, you might get away with very little alimony for a short time, which normally would be unheard of for a long-term marriage.”

“That sounds great,” Bill said, excited. “It would be less of a financial strain if Kate and I get married.” Bill then laughed somewhat self-consciously. “And she’s quite anxious for children. She’s worried about the time clock.”

“I’ve run across that before,” she said. “But I can’t promise when the divorce will come to fruition,” she cautioned him. “Bill, I know you and Kate are churchgoers, so I hesitate to say this, but it’s the
‘90s. You could get a jump start on a family.”

He laughed.

“Of course, if you’re convicted, would Kate want to be a single mother?”

There was a small, almost imperceptible, groan.

Her jump-start suggestion was not going to be a hit. “Look, you really do need this divorce now.

And, as I said, it’s likely Denise won’t hold out for big alimony. She’s already resigned to the idea of welfare after the conviction. She’ll fight the custody, though, and that’ll put us back to where you were two years ago.”

“The custody,” Bill said, “Every time I think of giving up custody, I feel as if I’m abandoning Chloe and that I’ll lose her forever.”

Daring the Divorce

“Look, Bill, seeking custody made sense six years ago, and we gave it a good shot. But now Chloe has been with her mother for more than five years. It would probably be traumatic—with or without the criminal charges pending—for custody to change now from Denise to you. None of us could’ve foreseen what happened these past years. So dropping your claim for custody would actually be realistic.” She was speaking slowly, just in case he wanted to get a word in edgewise, but he didn’t say anything. “It also makes sense in terms of your plans to start a new life with Kate. Think how difficult it would be for her to become a mother overnight to a live-in stepchild under these circumstances.”

“Oh, I never know what to do. It hurts so much just to think of it. I keep on avoiding it.”

Bea could sympathize with his indecisiveness. “At least talk it over with Kate. It’s her life too. Then get back to me. Loud and clear, remember. Loud and clear. So I’ll know what to do.”

It took Bill a month or two to call Bea back and say he was willing to drop his claim for custody. One point resolved.

Without hesitating, Bea sent a letter to Aguilar to start negotiations for a settlement with Denise. A flurry of letters were exchanged between Bea and Aguilar, including financial statements, and eventually with Leonard Goldblatt.

Bea and Bill were surprised by Denise having saved so much of the child-support and alimony payments he’d made over the years.

“She never went out,” Bill said. “Where would she have spent it? The mortgage is small and I cover the insurance and the medicals. And I’ve bought Chloe a lot of the big stuff, as presents, you know, like a bicycle and a computer.”

So it was not difficult to understand why Denise was stalling on the divorce and not pushing the DA. She was getting the mortgage paid off. He didn’t have access to the child. And she had never felt threatened by him. She would continue to stall. That was predictable.

Yet, while all this was going on, Bill said to Larry, “It’s a relief to take some action.”

“Kate still by your side on this one, Bill?” Larry asked.

“Yes, and she seems pleased that things are finally moving.”

“But,” Bill said to Bea, “I still plan to push for supervised visitation.”

“That’s okay. I thought you would,” Bea said. “You realize, pushing for visitation is apt to waken the sleeping giant. She’ll push for the trial hard now.”

“Yeah, I’m expecting that. But I’ve got to get it over with anyway. Otherwise I’ll lose Kate, too, and I don’t know if I’d be able to handle that.”

“Okay. Get me some names of alternative supervisors so I can propose a plan for the supervised visitation. I still have the other names on file, but we don’t know whether they’re still willing, et cetera.”

Shortly thereafter, Bea set up a conference call with Goldblatt and Aguilar in hopes of finding a solution to the impasse, short of having to go into court on the visitation issue.

In May, both Kate and Bill met with Blakeley. “Do you want to risk going before the judges there or wait it out?”

“It’s been 7 years 7 months, Michael, since this all began. I’ll let you know this week.”

Bill and Kate then visited Larry and asked whether Bill should go ahead with trial or not. It wasn’t Larry’s call to make. “I want to get it over with too,” Kate told Larry, “but there is a risk of a peculiar jury.” At that visit, Larry learned that Kate didn’t see the value of Bill’s visits to him.

“I want to see Chloe. To do that, I have to get it over with,” Bill told both Blakeley and Bea. “So, it’s a Go.” Blakeley and the DA had already set the second of the trial dates for the year.

Blakeley and Bea told Bill the judge was a good one. Bea knew the judge from a civil case and had been impressed by her uncommon intelligence. Blakeley knew of the judge by reputation. But then Blakeley hesitated—probably because the judge was a former assistant DA on a women’s issues team. “William, you’re better off delaying. I suspect the case will be dismissed at some point.”

“When?”

“It’s unclear when.”

“But that would mean more waiting.”

“William, the juries are just too unpredictable these days. The juries are convicting. Cases that shouldn’t be lost are being lost.” Blakeley told him about a dentist from a nearby affluent suburb who was convicted. Apparently he and his friend who tried the case thought acquittal should have been possible. “Weigh your fear against the outcome of jail. You could lose after all this hoping and working hard.”

A month later, Blakeley was still warning Bill. “There are risks in trusting a jury to straighten all of this out—even if it’s a good case. You’re better off waiting. Eventually there’ll be a dismissal. So go ahead with the divorce and see if there’s a way to get visitation.”

But Blakeley was still curious as to what Chloe was like. “I’m troubled by the child’s willingness to cooperate and testify against you if you didn’t do any of the acts with which you’re charged.”

“Better go with the advice of your lawyer,” Bill’s friends were still advising him.

“The hardest part of waiting is not seeing Chloe. I can’t talk to her without Denise listening in on the extension, which makes seeing her all the more important. If I give up the trial, I may feel as if I’ve given her up. I’ve focused for so long on getting to trial, getting to see her, and a chance to tell my side of the story and have someone listen. And now, I have to wait again.”

Throughout the Fall, Denise was delaying settlement.

“Why is Denise resisting any visitation plans?”

“Because if you and Chloe are reunited, Chloe might balk at testifying against you,” Bea said.

“How’s Kate holding up?”

“I could lose her. That’s another fear.”

“Look, I’m going to file a motion to resurrect the visitation. At this point, it can’t put things any more up in the air than they already are.”

In the motion, Bea summarized the history of the abuse/rape issue and sent a copy to Blakeley, providing him a page and a half outline to use for the criminal trial, if it went forward. It contained Denise’s rape story and her problems, Carol Tracy’s lack of qualifications, Denise’s conversation with Chloe before bringing her to Tracy at the rape-crisis center, the vagina-less doll, and Rachel Gidseg’s wooden-bat story.

At the last minute, Bea prepared an agreement for the divorce, made multiple working copies of it to cut and paste as necessary, and asked Judge Goldblatt to attend the court hearing on visitation and be ready for action.

Bea explained what she was going to do to Bill. Once she had his approval, which came quickly, she sprang the agreement on Denise and Aguilar. Surprised, they bit. The bait for the agreement was Bill’s giving up the custody fight. They were willing to negotiate. Bea and Aguilar huddled on a wooden bench in the basement of the courthouse near the family service offices.

“Joe, none of us knows what’s going to happen. Denise believes he’ll be convicted. He’s hoping he won’t be. Given the conviction rates, I, personally, think it’s best to assume conviction. Agreed?”

“Let me ask my client.” And off he went to the connecting hall, where Denise waited.

He returned and sat down. “Yes, we can assume that.”

“Good. That means she’d have peace of mind if the house is in her name. The mortgage is almost paid off. He’ll give over his share of the house in lieu of support.”

“The court won’t accept that.”

“In these circumstances, they’ll be delighted the house issue is settled.”

“They won’t approve it.”

“Let’s settle the rest and give them a whole package.”

“I have to ask her.”

“Okay, let’s settle the rest first.”

“Their cash,” he said.

“She keeps hers. He keeps his. And she waives any interest she might have in his pension.”

“Let me check with her.” And off he went.

He came back. Denise began wanting five years of support payments to continue.

“One year,” Bea said.

“Four years.”

“Split the difference. He won’t try to get back the $10,000 she took.”

“She doesn’t care about the time share. He can have it.” And so it went. Believing Bill would be convicted, Denise agreed to a small amount of alimony for three years.

Given it was unlikely Denise would remarry, Bill could’ve been saddled with supporting her for life.

She’d go back to work within the year so she could contribute to the support of the child, which would reduce Bill’s payments, and get her own insurance. He’d keep her on his only if it didn’t cost him any extra. The child would apply for all scholarships, grants, and student loans. Denise and Bill would share equally the residual costs of college and uninsured medicals. Denise didn’t anticipate he’d be around to make any type of payments or provide insurance anyway.

While Aguilar was running back and forth between Bea and Denise, Bea and Bill discussed the possibility that if he were found not guilty, he could seek modification of the custody because of a substantial change in circumstances. Nothing in the agreement precluded that because Denise and Aguilar believed Bill would be found guilty.

Given that the house was valued around $90,000 and the court may very well have split it 60-40 in Denise’s favor—or even 70-30, which was not at all unheard-of when the husband’s salary is appreciably larger than the wife’s—financially, Bill was going to make out remarkably well.

A judgment nisi—an intermediate judgment that would become final unless Denise or Bill appealed or asked the court to set it aside—was issued on November 21, 1996. Goldblatt was delighted. He had waited through it all, speaking to old friends populating the court that hearing day. Then Bill immediately phoned Kate and surprised her with the news that judgment nisi had entered, news which he himself almost didn’t believe.

“I’ve kept it a secret from her, but I bought her an engagement ring,” Bill told Larry and Bea. “I’ll surprise her with it when the divorce is complete.” The no-fault divorce would be final on February 21, 1997.

Agreeing that Bill should see Chloe, a family service officer was going to interview Chloe and set up visits with a psychologist that Bill and Denise chose. After several months, the psychologist and another were not taking new clients or clients having sex-abuse issues, so visitation was held up once again.

Immediately after the judgment nisi, Denise, as predicted, began pushing the DA to bring the rape case to trial. It was set for February 18. Blakeley asked for a new date because the judge was a known hanging judge.

Bea knew of the next judge, Wendell Ankora, coming in. “He’d be excellent,” she told Bill, so he told Blakeley the judge was acceptable. The trial date was set for April 10, 1997.

During the last month before trial, Bill visited Larry twice and was very teary. Crying, he said, “My biggest fears are losing all I have... my plans for the wedding, Kate, my future... I could go to prison. I’m not in control.” Suffering terrible anxiety, Bill didn’t schedule another appointment. “I’ll call.”

Blakeley at the Bar

Before jury selection, Judge Ankora reconsidered the motions filed by both Bea and Cooke and heard by Mathers four years earlier, in 1993. Ankora’s courtroom was much wider and deeper than the first courtroom and had a pleasant gallery, several tiers deep, available for an audience. Mathers’ courtroom had only had one bench and a few collapsible chairs.

Ankora asked why Judge Mathers would not allow Denise’s background to come into evidence. Cooke did not answer and Blakeley didn’t know, so Ankora not only allowed Blakeley to make inquiry into Denise’s background, he told Blakeley to take his time and do it slowly.

After hearing Ankora’s ruling, Cooke withdrew, in one fell swoop, her motions to limit the scope of defendant’s opening statement, to view the defendant’s opening statement, to preclude Bill’s experts, to videotape the experts, to close the courtroom, and to have a special courtroom seating arrangement. Arguably some may have become moot because of Chloe’s older age, but Blakeley didn’t even have to argue that. Cooke knew that Ankora was not Mathers.

Chloe and Bill would see each other while she testified; the right of confrontation was preserved in full, although an exception was made again for Denise from the general sequestration order. The usual rules applied for leading questions.

Blakeley wouldn’t call DeSegonzac because he had become part of a front-page story when a sex offender, whose release DeSegonzac had recommended, re-offended when back in the community. And Blakeley would wait to determine whether he would need the memory expert, Toffett, because Chloe would be thirteen years of age.

“William,” Blakeley said when they came out of the courtroom, “tell your friends to be sure to get inside the courtroom early after jury selection and sit behind you.” Blakeley was referring to over a dozen of Bill’s friends—in addition to his family—Bill had asked, upon Blakeley’s request, to appear every day in court.

“Okay,” Bill said quickly.

“I don’t want Laura Cooke to fill those seats with the DA’s people.” It’s common practice for slew of assistant DAs to show up at trials... to learn, teach, offer suggestions, evaluate.

“Okay.”

“Be sure Kate sits directly behind you. I want the jury to be aware of her.”

“Okay,” Bill said without hesitation, thinking this was a slick move, but also upset his sloe-eyed Kate was being used as evidence that he hadn’t raped his daughter.

Because the law had changed since the first trial, Bill was allowed to sit in on jury selection in Ankora’s chambers. He was impressed not only by how intelligent Ankora seemed but also how patient and relaxed he was. Blakeley asked Bill his opinion on each potential juror. In contrast to the two hours that jury selection took with Mathers on the bench, jury selection with Ankora took a day and a half.

None of the public was allowed in the courtroom during jury selection, so Bill’s supporters and Bea waited in the corridor outside the DA’s office to see who came and went. Who was being prepared by the DAs and the victim witness advocates? That’s what Bea wanted to learn. She almost didn’t recognize Chloe. She walked just like Denise, and held herself in the same way. Roseberry was not to be seen. The stuffed dog had been replaced by fashionable black ankle boots. And Chloe’s short, curly, blonde hair had become long, curly, and reddish.

After jury selection was complete, but just before lunch and the witnesses were called, Blakeley came out of court like a cat on a hot tin roof. Pressure is getting to him, Bea thought. He’s scared. Guilt is murky. His customary gait of rolling from heel to toe was exaggerated. He was walking almost solely on the balls of his feet. This isn’t the usual defendant. Like the dentist recently, as he'd told Bill, so many innocents are getting convicted.

Cooke came out of court and spotted Bea. Bea noticed her too. Cooke must have lost twenty-five or thirty pounds and had a pasty, anorexic look. Even her nose looked sharper. Almost immediately, with a glance to the side at Blakeley, Cooke syruped out a greeting, “Hi, Bea. Are you here to help Michael?”

Blakeley roared at Cooke, “Don’t you harass her!” The chatter of everyone in the hall became still and all eyes jerked to him. Bea, who had been sitting on a bench, spasmed in surprise.

Embarrassment poured into Cooke’s face. With more color in her face, Cooke defensively asked Bea, “I didn’t harass you, did I?”

Of course, Cooke hadn’t, but not wanting to side with Cooke against Blakeley, Bea said, “Who, you?” With that, Cooke walked off to the DA’s office. She had been playing a game of one-upmanship, but Blakeley was electrified.

Look for Part 38 of 41 to post on Sunday, September 28th

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Accused? Guilty by Barbara C. Johnson - Part 24

Accused? Guilty by Barbara C. Johnson - Part 24 of 41 - A True to Life Serial

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I Don’t Belong Here

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On the day set for a probable cause hearing, Bea and Bill arrived in District Court only to learn Fogarty had brought the case to the Grand Jury at the last minute. Her purpose was to avoid the probable cause hearing, where she would’ve had to tip her hand and show her strategy.

As a result of the indictment, Bill and Bea were to rush over to Superior Court for a second arraignment on the charges brought by indictment. Almost simultaneously, some assistant DA would discontinue the prosecution in District Court by nol prossing the case.

Fogarty promised to provide Bea with a transcript of the Grand Jury proceedings. She hoped it wasn’t as empty as Fogarty’s earlier promise to allow Bill to testify at the Grand Jury should she have decided to go that route.

She wouldn’t be pressing the motion to dismiss on lack of speedy trial grounds.

The Superior Court of Salem County was an immense and very ugly, old stone, rust-colored building from the last century. No security systems or check points had been installed, so everyone still entered through the front door atop several tiers of wide steps with short risers. No crowd waited outside—only two smokers. The entry hallway was cavernous—high-ceilinged, drab, cold—and lined with nearly empty wooden pews.

The criminal sessions were up the marble steps to the right. Years of use had worn cavities in the middle of each stair. The First Criminal Session behind double swinging doors to the left of the stairway landing was huge and wall-to-wall with people. If Bill didn’t feel he belonged in District Court, he certainly must’ve felt he was in Hell.

The clerk was calling the list of the felony cases. From here, defendants were sentenced to state prison, not jail.

When Bill’s case was called, Fogarty didn’t ask for cash bail. She did ask, though, for a stay-away order from the child.

In his conservative gray suit, shirt, and tie, and looking as though he were accustomed to wearing them, Bill didn’t appear like the usual defendant as he stood at respectful attention while Bea argued before the bench.

“Your Honor, had I known in advance of this arraignment, I would’ve brought a certified copy of the family court findings, in which the judge found Mr. Abernathy to be a ‘good man’ after a five-day divorce trial.

“The defendant has been having supervised visitation with his daughter for three years, and there is no reason why the existing long-standing arrangement should be changed.”

Significantly, Bill was not handcuffed or even touched by a court officer. One trauma avoided, thought Bea.

Bea had never seen the judge before, and there was no attorney just standing around whom Bea could ask who the judge was. She’d remember him just as another gray-haired, middle-aged male in a black robe. Nothing exceptional except uncommon common sense. He refused to issue a stay-away order.

The indictment also threw a monkey wrench into the divorce case. Goldblatt had thought it was a good idea to settle the criminal case before making any final decision as to custody and the distribution of marital property.

With the potential punishment having increased substantially, Bea had to give Bill some more advise.

“Bill, you should retain a heavy-hitting criminal defense attorney to take over this Superior Court case.”

“Who?”

“Victor Castenetti. He’s well-respected and has been a speaker about Grand Juries. He’ll probably recommend filing a motion to dismiss as soon as the Grand Jury transcript is produced.”

That afternoon, Bill contacted Castenetti, who put D. Wayne Michaelson on the job. Michaelson was a gorgeous caramel-skinned creature. Tall, firm-figured with a deep melodic voice and closely cut gray-black curly hair, he sported stylishly conservative glasses that flattered and lent him an air of sophistication. A guaranteed womanizer with Alfa Romeo wheels.

Georgia Rules of Evidence

Meanwhile, back in Maggie Rudolph’s case, “Sidebar, Your Honor,” Bea said, signaling what she had to say shouldn’t be heard by the jury—even though she would’ve loved the jury to hear it. Wannabee would cream me.

She picked up her block of paper and her pen, walked into the witness stand, and huddled next to Judge Wannabee Wasp’s bench with the two opposing counsel, Mr. Funereal and his gopher, Ms. Echo.

“Your Honor, you, Judge Cromwell, and Judge Wishinghorn denied me access to the personnel records—performance evaluations, pay and bonus data, even the job descriptions—of all the professional women in the company and their male counterparts. Judge Wishinghorn even threatened to report me to the Bar if I persisted in trying to get discovery from the company. This is a sex discrimination case. My client was entitled to the documentation that proves her claim on a theory of disparate treatment or disparate impact.

“Now defense counsel want to list the names and titles of all the professional women in the company and say to the jury, Look how well we treat women in this company.

“Without those records which were so outrageously denied me, I won’t be able to impeach the witness. Those records would have given me evidence that when a woman replaced a man in a job she was paid considerably less than her predecessor and got smaller salary increases and smaller bonuses, if any, than her predecessor.

“So to allow them now to imply that women are treated equally, the same as men, by listing merely their titles would be seriously prejudicial to Mrs. Rudolph. It is on that basis I object.”

“Take it up,” he said flatly in judicial shorthand, which told Bea that she’d have to appeal the issue because he was going to allow Mr. Funereal’s witness to name the professional women and their titles.

But Wasp didn’t stop there. Whenever objecting, she was stung again and again by him, who grinned at her like Garfield the Cat, long teeth bared. Bea would swear she saw over his head a bubble in which Gotcha! was written.

Ultimately, Wannabee allowed the witness to give a list of derogatory comments limited only by the witness’s imagination about Maggie’s performance on the job and her character.

Funereal’s witness couldn’t say who said what, and when and where, leaving Bea unable to call Maggie’s accusers to the stand and get to the truth.

“Hugh, I thought it was only Georgia that allowed that kind of anonymous hearsay. Anonymous accusers in a civil case. Talk about impaling me!”

“As the man said, ‘Take it up.’”

“Dammit, Hugh, that’s not good enough. You know damn well how much work and expense that entails. And the time it takes to hear anything— There’s a two-year lag for Appeals Court decisions these days. My god, Maggie Rudolph’s nerves are shot as it is. Can you picture the number of crazy phone calls I’ll have to field from the woman over two years?

“Dear, that’s all I can tell you. Take it up.”

“Don’t Dear me, Hugh Engle. Wannabee overruled me to get even.”

“For what?”

“I thought I told you. The Appeals Court reversed him on my brother’s case about two months before Maggie’s trial began. I was afraid of that. It was too new a wound.”

“Hmm, didn’t know that,” he said. “I thought you won that case.”

“I did. It was 137 grand plus double or treble damages coming out of district court. Then it got caught up in a Rube-Goldberg situation provoked by the defense. That was my first tort case out and I was up against a former president of MATA.

“I wanted Wannabee to review what happened below—he could’ve, you know—and let us hold on to the win. But then he allowed a four year old summary judgment—filed before trial—and dismissed it on the grounds there was no case. I’d won it after a bench trial, not even a jury.

“I didn’t even have notice that defense counsel were renewing their motion. A few judges had heard it and never acted on it and then we had the trial, so I thought it was dead and buried. When I moved to have him reconsider, he sent it up with the question, ‘Did I do the right thing on April 17th?’ Something like that. Two years later the court said, ‘No, you didn’t.’

“And at some point I let it slip to the clerk that my brother died while the case was on appeal.”

“Why’d you do that?”

“To give him a guilt trip, the bastard.” She lit up. “My brother was obsessed about the case. Maybe he’d have lived a little longer had he seen it finished and won. He wanted the money for his kids.” She took another puff, knowing she should cut back some, but it was impossible to quit with all of this shit going on. “Believe it or not, that case is still alive.”

“That so?”

“Amazing, n’est-ce pas?” She went to the galley and got them some liquid refreshment. When she came back, she said, “That’s why he wants to see me go broke. Because I keep on challenging him and his mentee, Wishinghorn... maybe even his screwee. He overruled me because he knows—as I do and you do—that you guys more often than not will say, ‘It may have been error, but it was harmless error.’”

“It may well be only harmless error.”

“See. Have you no integrity left! Harmless error, my eye! He let them use just the names of the women as the centerpiece of their defense. The defense was acting in bad faith and what Wasp did was reprehensible.”

She received no response from Hugh. What did I expect? Indignation? She knew she was kidding herself. He’s one of them. A g.d. ball-less authority figure! She hated them. She hated the hypocrisy. “Shit, he’s going to charge me out with the jury. I just know it. It’s coming. I feel it.” Bea was worried Wannabee would do what Servantnick had done to her: give an instruction that would make it impossible for the jury to find in Maggie’s favor, and Bea wouldn’t collect a dime for all her work.
“And the reformers want to do away with contingency fees. What the hell for? With judges like Wasp, we can’t make money often enough.”

“Bea, cheer up. You make money.”

“Short money. I’m forced to take short money on settlements.”

“Invest it, like what’s-his-name, your handicapped client.”

“Wasn’t that remarkable? He made a bloody fortune on the market. He’s a changed man. Sonofagun.

A real rags-to-riches story.”

“That’s what I mean—invest it.”

“Sure,” she said, disgusted. “With my luck? Every time I’ve invested, the market’s gone into a downward spiral. I don’t want to cause the market to go down again. Think of how much unhappiness I’d wreak.”

Probably sorry he’d brought up the subject, Hugh picked up their glasses and went to get some refills.

She bellowed after him, “Anyway, I should be able to earn sufficient money off my work.”

“You do,” he bellowed back.

“Bastard Wannabee, he’s never lived without a weekly salary. It’s a damn shame. We’re the only ones who’ll take the little guys’ cases. The only little-guy cases the big boys take is when the little guys are dead, half-dead, or maimed! Then it’s worth it to them.”

Hugh walked in wagging his head. His head said more than he could say aloud.

She thought, Why do women watch men’s heads but men don’t watch women’s? “I wonder if there’s an insurance-company connection between the defendants and Wasp’s old clients.”

She was about to make comment about his wagging head when he handed her a Bloody Mary and not a little wine. She laughed. “It really shows?”

“It does.” He sat down beside her on the sofa.

Later, in the stateroom, in bed, she told him she wanted him to do a certain something he never ever did, at least to her.

“Don’t ever tell me what to do!”

“Absolute power corrupts.”

“It goes both ways, Bea... both ways.”

Obscenity Revealed

Bea received the transcript of the Grand Jury proceeding, where “evidence” in any form was allowed, where the envelope for evidence was seemingly boundless. She read it out of curiosity, for this was where Castenetti and Michaelson came in. She was counting on them to use their recognized expertise to spot whether even that generous envelope was overstretched.

Castenetti and Michaelson would have to convince the court that ADA Fogarty knowingly offered false or deceptive testimony that influenced the jury’s determination to hand up the indictment against Bill.

The transcript, Bea saw, made it impossible to distinguish between jurors. Their anonymity was preserved. When a juror asked a question, the transcript read only “Juror.” There was also no way to determine the composition of the jury (for example, how many of each gender, or their ages, occupations, and ethnicity), or even whether questions were asked of potential jurors.

Substantively, of course, the transcript appeared to be complete. Roberta Leavitt, Chloe’s therapist, had told the jury who she was and what her duties were at the Center. She also told them she worked with sexually abused children.

The first question that caught Bea’s attention followed a fairly innocuous one about when Leavitt first met with Chloe.

“Who brought her there?” Fogarty asked.

“Her mother,” Leavitt answered.

A clever question, Bea thought. If Fogarty had asked who “referred” Chloe there rather than who “brought” Chloe there, the question would have dictated the answer, “The district attorney’s office.”

Leavitt then established Chloe’s age as being under sixteen, and claimed that Chloe had disclosed being sexually abused by Bill both before and after meeting Leavitt. She then graphically described acts of oral, digital, and penile penetration and repeated Chloe’s “yucky” statements, the stories of nightmares and stomach aches, et cetera.

Having covered the two bases—age and act—required for an indictment charging rape of child to issue, Fogarty added whipped cream: frequency (any time) and place (any place). She did so by leading Leavitt to say Chloe told her the “abuse occurred in her old bedroom.”

Bea was surprised because that information was nowhere in any process notes she had seen. It was Chloe herself, when questioned by Goldblatt in Judge Fessenden’s chamber, who said it was the bedroom.

Leavitt could have decided on her own to establish the place of abuse. It was more likely, though, she made the assertion in complicity with Fogarty, for Fogarty understood the desirability of naming a place of abuse... and Fogarty had a copy of the allegedly sealed transcript of Chloe’s testimony.
Fogarty also led Leavitt to say Denise was not present when the abuse occurred, which precluded the jurors from wanting to indict Denise too.

Nevertheless Leavitt said, “Denise hasn’t been able to make a clear statement of when it began, only that it happened frequently. So it’s unclear about the exact time when it started.”

That statement left Bea in a quandary. If Leavitt had been clued in to what Chloe said in the judge’s chambers, then she had to know Chloe claimed the abuse occurred six years earlier.

When the presentation should have been sufficient to persuade the jurors to indict, Fogarty asked the jury whether anyone had any questions of Leavitt.

A particularly astute juror asked, “Are there no custody problems? Is he trying to get custody of his daughter?”

No wonder Fogarty didn’t let Bill testify.

Leavitt hemmed and hawed.

Bea was curious. She couldn’t imagine Aguilar showing the pleadings to Leavitt, even though they were public records. Maybe Fogarty herself read the family court file and educated Leavitt about them. Who knows? Certainly Bea and Bill didn’t.

“I’m not quite clear exactly what the father is trying to get,” Leavitt said. “It’s not clear to me, but there are custody disputes. I’m not sure exactly what he wants, or what he’s asking for.”

“In your opinion, if there’s a custody dispute, could these words have been put in her mouth by her mother or anything like that?” the juror asked.

“It’s certainly something I’d have to look at very carefully to see whether I think this is something that’s happening, but in my opinion, no, I do not think in this particular case that’s happening. It seems clear to me this child is talking about what did happen to her, not something someone told her to say.”

Outrageous, outrageous, outrageous!

“When Chloe first disclosed, were the parents living together?” a juror asked.

“No,” Leavitt answered.

Damn. Of course, they were.

Something must not have smelled right to the juror, because he/she asked a few more questions, and finally wound back at the beginning, “Have you determined when the abuse occurred?”

“It’s not clear to me the exact date, but from what she’s saying, it sounds like it occurred at least a year or two years before that. She’s not able to pinpoint a date.”

There was no evidence as to time other than what Chloe told Goldblatt: when she was one year old.

“Three and a half?” asked a juror.

“Somewhere around there would be my guess.”

“I’m just very concerned that the mother’s putting these words to have— You know, if he’s indicted for sexually molesting his daughter, you know—”

“Yeah, and I agree with you. It’s definitely a very serious concern, so I’ve been real careful in working with her to try to sort out whether it’s a possibility, because you always have to have an open mind to that possibility when there’s a divorce or a custody issue involved,” Leavitt said, lying and hedging, “but in my opinion, that does not appear to be the case. It seems clear the mother is not putting words in her mouth at this time.”

The questions by one or more of the jurors continued. They focused on the amount of time Chloe had spent with Bill since ‘89, the supervised visits, and how many times the child had seen Leavitt. She thought seventy times was “a good estimate. I’m not good in math.” Bea grinned as she read the typical Leavitt comment.

The next line of questions was about whether Chloe’s story had been consistent. “Of course, of course,” was the gist of Leavitt’s answers to those questions.

“Has she displayed things through pictures and doll play and things?

This juror has been exposed to sex-abuse accusations somewhere. He or she might even be a social worker or psychologist. Bea wished she knew whether it was the same juror asking the particularly astute questions.

“She definitely has.”

“Was she ever given a physical to see whether there’s medically anything to be found out that she—”

“Yes, she was. That was before she began treatment with me, she had a physical exam, right after she disclosed it.” There was no physical exam!

Fogarty did not allow the juror to ask the next question. Fogarty asked it herself. “Do you know the results of that?”

“There was some positive results on a chlamydia test; however, there are some, and I’m not clear about the medical reasons, but it’s not clear whether that test is valid or not, so that’s somewhat up in the air. She was treated for chlamydia, to have, you know, the possibility be addressed, but it’s not clear.”

Look at that! She skirted answering that there was no physical evidence of penetration.

Then a juror wanted to know whether Leavitt had talked to her pediatrician. Leavitt said, “No, I have the medical notes. Mom signed a release so I have the medical notes of that.”

And, No, she hadn’t seen anything about physical changes in the notes.

Fogarty asked whether there were any other questions. When she got no response, Leavitt left the room. After some unknown period of time, Leavitt was called back. The jury questions focused on visitation. Then a juror wanted to know whether there was a court order that the father’s visitation rights be supervised?

“As far as I know, no,” Leavitt said. That part was true. But Leavitt didn’t stop there; what she then said was not only misinformation factually, it couldn’t happen legally. “It was agreed upon by the father and the mother, and DSS also had required the visits be supervised. DSS being the Department of Social Services.”

The jurors had no idea they were being duped.

Then a juror asked whether Leavitt was the supervisor of the visits. When Leavitt said she wasn’t, the juror asked who it was and whether Leavitt had spoken to her. The juror doing the questioning sounded more acquiescent than the one(s) who asked about consistency and custody. Then Leavitt explained that the weekend visits were currently being supervised at the Center.

The same or another juror asked, “Do they relate to you at all the way she reacts when she sees her father, any distress? You know, is she calm?”

“Well, I talk a lot to her mother about that,” Leavitt said.

One seemingly skeptical juror would have preferred that Leavitt speak to someone other than Denise:
“Besides her mother. Someone who’s not—”

 “The visitation center at this point because of legal issues— I haven’t been allowed to talk to the visitation center about a lot of any details about the visitation, so when I asked them that, they said they were unable to let me see the records or talk about that.”

That doesn’t sound right. They all had waivers. It’s hard to believe that she can’t see the records from her own agency.

“So the only opinion you get is from the mother,” the juror persisted.

To this, Leavitt responded, “And also, you know who else I’ve talked to is the DSS worker who used to supervise the visits.”

MSPCC is not DSS, but Leavitt consistently said DSS instead of MSPCC. DSS never supervised the visits.

“Okay,” the juror said, relenting.

Generally, Leavitt continued answering whether or not there was a question before her. Of course, Fogarty didn’t stop her star witness. Leavitt managed to convey that “Chloe cares about her father. She just didn’t like what he did to her. Chloe was uncomfortable because father would want to touch her or try to get too close to her and that made her feel really uncomfortable. Or if Father was a little rough with her. You know, like holding her arm a little bit too tightly and it made her feel a little frightened. Father is consistent with his visits, once a week on Saturday. She’s the only child.”

Another juror asked, “How did the mother find out about the abuse? The daughter related it?”

“The child told the mother her father was scratching and hitting her, and the mother confronted Father, and Father said, ‘Yes, I’ve been doing that.’”

The answer avoided the talking hands.

“Then the mother brought the child to the rape-crisis center to talk about what he was doing to her, and they interviewed the child, and that’s when she disclosed the sexual abuse.”

A juror wanted to know where Denise was when Tracy interviewed the child.

Then a juror asked, “Is that kind of a standard thing, that a kid who’s complaining about being scratched has to be brought to a rape-crisis center?”

“I think a person who knew the mother said, ‘Oh, bring her in. I should interview her.’ That was the advice Mother had been given is my understanding.”

Where’s the evidence Carol Tracy worked with children?

“Do you have any knowledge why all of a sudden after two years, you’d be going to court looking for an indictment on him?”

“Oh, they’ve been—it’s been going on for a while. It just takes a long... the legal process. It’s not that it just started, it’s been going on for a while.”

Talk about avoidance. Leavitt didn’t want to fess up that Chloe hadn’t been brainwashed well enough last year and that it’s taken another year to get her ready.

For the last time, Fogarty asked, “Any other questions?”

There were none.

Someone said, “Thank you.” It was not clear who.

Then Leavitt left the room. Most of her testimony had been hearsay, testimony which she wouldn’t be able to testify to in a court of law, testimony which was not the truth, testimony which is typical of the notoriously unjust Grand Jury system.

Without a judge to rule on evidence and without the targeted person there to defend him or herself—to confront witnesses against him or to present evidence in his favor—the Grand Jury session is but a tool to be manipulated by an incumbent DA. A kangaroo court.

If the Grand Jury had been told the true facts—there was no medical evidence of rape, Tracy was unlicensed, there was no evidence she had either experience or training in questioning children to diagnose sexual abuse, and Denise was obsessed about having been raped by Bill, and with that state of mind, may have had motive to unduly influence the child—would the jury have indicted Bill?

Well after the indictment was issued, Bea learned that Chloe was kept waiting outside the Grand Jury room just in case Fogarty needed her to testify after Leavitt finished. Chloe was never called. Of course, neither was Bill. In fact, in response to Bea’s request that Bill be allowed to be present and testify, she had heard nary a peep from the DA’s office except Fogarty’s false oral promise.

“What was the vote?” Peter Cuomo, her intern, asked.

“I have no idea.”

Part 25 of the 41 part serial will be posted on Monday, September 15th