by Mark M Bello
“But not in such dramatic fashion and not without cross-examination.” Walsh began to realize this argument was hopeless with this particular judge.
“I disagree, Craig. If the boy can’t continue, I will rule his testimony be stricken from the record and order the jury to disregard. Further, I will rule we use depositions in lieu of his live testimony. Now, what’s your pleasure, gentlemen? Do you want the younger brother to try to testify live or do you want to stipulate to use his deposition testimony?”
“I want this ruling on the record,” Walsh demanded. “I plan to appeal it immediately.”
“As is your right. We’ll put it on the record, but before we do, I’d like to clean this up and make the record clear. Do you want the younger boy live or not?”
“I’ll stipulate to admitting deposition testimony, Your Honor,” Walsh conceded.
“I will also stipulate, Your Honor.” These were Blake’s first words in the entire conversation.
“Very well then,” Perry glanced at a wall clock. “Let’s go put it on the record. Afterward, we’ll adjourn for the day. We’ll pick up with the two depositions tomorrow at 9:00 a.m.”
Perry rose and led the two lawyers out into the courtroom. As the judge stated his ruling for the record, Blake stood, at attention, in front of him, his mind wandering off. A perfect day for the case became a terrible one for his clients. He wondered how Kenny and Jennifer were doing. I’ve got to get to the hospital.
Chapter Fifty-Six
Kenny spent a restful, heavily medicated, night at Children’s Hospital. Jennifer spent the night at his bedside and was not in attendance at the trial when it resumed the following day. In fact, Zack had to talk her out of dropping the lawsuit altogether. She was devastated. She underestimated the impact of public admission, and Kenny’s breakdown was the ultimate evidence of her terrible mistake.
Zack argued the boys were no longer needed. Their testimony was preserved by deposition. Her mission to protect other innocent young teens from experiencing the same fate as her boys was still important. If she dismissed, Kenny’s brave attempt to complete his testimony would be for nothing.
“Who cares?” she cringed. “Look at my son!” Kenny lay in a fetal position, virtually comatose.
“You don’t want his trauma to be for nothing, Jen. Don’t do this!”
“The cause doesn’t mean much to me, anymore, Zack. The money never mattered—take the ten million. Take your fee and donate the rest to a charity for abused children. I don’t care which one. Do that! Look at my son! Look at him!”
“He would not want you to quit, Jen. Neither would Jake. Ask Jake, Jennifer.”
So, Jennifer approached her sensitive, quiet youngest child and he convinced her to continue.
“Mom, Father Gerry is a bad, bad man. He hurt Kenny and me. Don’t let him hurt anyone else. Please?”
She couldn’t turn down that face. His look of longing was one only a mother—and everyone else in the world—could love.
“Kid would make a great lawyer,” Zack joked.
Jennifer decided to continue with the lawsuit, making Zack swear her boys would never have to set foot in the courtroom again.
Zack arrived at the courthouse promptly at 9:00 a.m. The clerk greeted him and indicated Judge Perry wanted to see him in chambers. Zack went through the side doors and into the inner hallways leading to the judge’s office. He found Perry and Walsh were waiting for him.
“How’s the boy?” Judge Perry wondered, concerned.
“Still at Children’s—he’s semi-comatose, in shock. Dr. Rothenberg thinks he’ll be okay, over time.”
“I’m praying for him,” Perry offered. “How are we going to proceed today? I’d like to complete the plaintiff’s case today or tomorrow, if at all possible.”
“I plan to present the two boys’ depositions, and then Dr. Rothenberg, my investigator, and Father Jonathan Costigan. After those witnesses, I plan to rest and, perhaps, present a witness or two on rebuttal,” Zack concluded.
He was bluffing. He had no one for rebuttal. Rebuttal was the plaintiff’s answer to the defense case. Plaintiffs were permitted to present evidence contradicting the evidence presented by the defense. Plaintiffs have the first and last words in any civil trial.
“How long do you expect the defense case to last, Mr. Walsh?” Perry inquired.
“A day, maybe two, after the motion for a directed verdict.”
A motion for a directed verdict was argued in almost every case after the close of plaintiff’s proofs. The judge evaluates whether the plaintiff has met its burden or whether jury issues still existed. In Zack’s experience, he’d seen a few granted, but not in a case like this. There was sufficient evidence of abuse and cover-up for this case to go to the jury. Walsh put on his game face, but Zack was confident there would be no directed verdict.
The striking of Kenny’s testimony and the admonishment to the jury to disregard that testimony was within the judge’s discretion. Walsh could appeal, but the ruling was not reversible error. The lawyers headed out to the courtroom to await Judge Perry and the jury. They did not speak. Blake went straight to Rothenberg and Love for last-minute discussions of their testimony.
Moloney, the Voice, greeted Walsh, as he had every day of the trial. Obviously, he wanted to know what was discussed in chambers, out of his presence. Zack was surprised the Coalition hadn’t bugged the judge’s chambers. Then again, perhaps it had. The judge and jury entered, and Perry launched into a detailed speech, instructing the jury to disregard Kenneth Tracey’s testimony. Zack was now free to read the boys’ deposition testimony into the trial record.
Zack presented the testimony through a reader, his former secretary. The secretary read the depositions with emotion, but could not produce the power, passion, and sympathy of live testimony. Still, through this reader, the boys graphically described the weekend camping trip and their repeated rape by a predator the church still chose to honor with the title of ‘Father.’
The testimony was powerful and effective, and Walsh’s reading of the cross-examination had little counter-effect. Walsh would have been considerably more aggressive had he known, at the time of the depositions, the testimony would be used at trial. His cross, for discovery purposes, was mild by comparison.
After the readings, Zack called Dr. Rothenberg to the stand. Dr. Rothenberg testified to the conversations he had with Moloney and the discovery his office was bugged. Over Walsh’s objection, he compared it to the bugging of Daniel Ellsberg’s psychiatrist’s office during Nixon’s presidency. According to Rothenberg, church hierarchy withheld the extent of the abuse.
The psychiatrist was shocked when the boys disclosed Bartholomew forced them into multiple sexual acts amounting to rape. Because Father Bill was akin to a surrogate father for the boys, Lakes had always been extended family. The church betrayed them, and the boys reacted like survivors of incest.
Bartholomew chose this particular family because it lacked a father figure. This type of family was his favorite target. Jim and Father Bill needed replacing—the boys were ripe for the taking. While Bartholomew didn’t anticipate their rejection of him, he prepared for it. He swore the boys to secrecy, threatened harm to their mother if they disclosed the abuse.
The boys experienced severe repercussions from this experience, including crying spells, mood swings, nightmares, loss of confidence and self-esteem, a lack of desire to play, poor grades, disinterest in friends, arguments over petty issues—Jennifer Tracey and both boys provided graphic testimony about the frequency and severity of these conditions.
Rothenberg continued, “The boys also have experienced painful feelings of guilt. The church and the priest have successfully made these boys feel like criminals, as if the incidents were their fault and somehow they brought this on themselves. They have been locked out of their place of spiritual worship and have suffered a complete loss of faith. They were caught in a traumatic catch-22. Their respect for the church and t
heir mother’s faith precluded them from discussing the abuse. There was no escape. Bartholomew coerced the boys into feelings of desperation.
“Compounding these serious issues, Bartholomew preyed on boys who were just beginning to become aware of their sexuality. As shocking as this may sound, some of their experiences with Bartholomew might have actually been pleasurable. This creates even more confusion, since the boys, if aroused, would not be mature enough to understand those feelings. The raging hormones of puberty are totally disrupted by incidents such as these. I am gravely concerned they may have long-term, perhaps permanent, sexual issues.
“Many victims of sexual abuse experience symptoms later in life. These include depression, flashbacks, suicide attempts, alcoholism, drug abuse, aggressive behavior, and confusion of sexual identity. These are bad enough, but they are compounded by the fact that one support mechanism these boys turned to in bad times was the church. Here, the church was the culprit. Where do they turn to sort that out? This is a complicated situation, one that will require long-term, possibly lifetime treatment.”
He went on to indicate the cost of treatment sessions and estimated long-term or lifetime treatment would cost perhaps millions of dollars. This was the trial’s first mention of seven or eight-figure expenses or damages.
Walsh’s cross-examination was rather simple. He stuck to the basics. “Psychiatry is not an exact science.” “It’s possible the boys may not need long-term care at all—only time will tell.” Rothenberg had to concede these points. Walsh asked if psychiatrists often differed in opinions relative to treatment, prognosis, and diagnosis. Rothenberg acknowledged psychiatrists often differed.
“In fact,” Walsh opined, “another psychiatrist could conclude, in this very case, that the boys’ memories of these events will slowly fade, and their current problems, as acute as they are now, will be nonexistent in adulthood.”
“He could come to that conclusion, yes, but he would be wrong,” Rothenberg opined, looking Walsh straight in the eye. The commissioned defense psychiatrist, Dr. Unatin, came to that very conclusion. Rothenberg read Unatin’s report and sought to soften the impact of his future testimony.
Walsh completed his cross-examination by asking Rothenberg if he had patients who surprised him and improved or were cured with far less treatment than anticipated. Rothenberg conceded the issue. Walsh decided to milk the issue dry.
“More than one patient?”
“Yes.”
“More than two?”
“Yes, I’ve been in practice for almost thirty years.”
“How nice for you. More than five?”
“Yes,” he conceded.
“More than ten?”
“Yes.”
“More than one hundred?”
“Yes.”
“More than five hundred?”
“No, I don’t think so.”
“You don’t think so? Don’t you know?”
“I don’t keep those kinds of statistics.”
“Oh, so it could be, you just don’t know. It could be thousands, for all you know, couldn’t it Dr. Rothenberg?”
“No.”
“Well then, how many?”
“Somewhere between two and three hundred, out of thousands of patients.”
“That’s a guess, though. It could be more?”
“Probably less.”
“Could be more?” Walsh repeated.
“Objection, Your Honor!” Blake shouted, rising. “Asked and answered.”
“He didn’t answer, Your Honor,” countered Walsh. “The question called for a ‘yes or no’ answer. I request you instruct the witness to answer ‘yes or no.’”
“The witness will answer the question ‘yes or no,’” Perry ruled.
“The answer is . . . yes,” Rothenberg conceded.
“Thank you, Doctor. No more questions, Your Honor.”
“Redirect, Mr. Blake?” Perry offered.
“Just a couple of questions, Your Honor.” Blake was on his feet. “Dr. Rothenberg, you have been treating these boys for well over a year now, is that correct?”
“Yes.”
“Would a psychiatrist who has a long-term treatment relationship with a patient be in a better or worse position to diagnose the patient’s condition than a one-time evaluating physician who establishes no doctor-patient relationship?”
“The treating physician would be in a much better position to diagnose. He knows the patient far better than the one-time evaluator.”
“Which of the two is better equipped to render a long-term prognosis or prescribe a treatment program?”
“The treating doctor, for the same reason.”
“Is there anything in Mr. Walsh’s cross-examination that would lead you to conclude you were wrong about the boys’ need for long-term care?”
“No, absolutely not.”
“Do you know Dr. Mark Unatin?”
“I do.”
“Dr. Unatin examined the boys on behalf of the defense. He opines and will apparently testify the boys will not need long-term care to improve since memories of the events at issue here will fade as they reach adulthood. He wrote a report indicating long-term treatment would be counterproductive since it keeps bad memories active. Do you agree?”
“No, I don’t. I respect Mark Unatin. He’s a fine doctor and a friend of mine. But he’s way off on his evaluation in this case. I presume he is trying to please the people who paid for his opinion.”
“What do you mean?”
“He was paid, probably very handsomely by the defense, in this case, to render his opinion.”
“Objection, Your Honor!” Walsh cried. “Dr. Unatin is a professional, a fine doctor, as this witness admits. Dr. Rothenberg may be offended a colleague disagrees with his diagnosis and prognosis, but he goes too far. He questions his colleague’s integrity. His testimony in that regard is highly inflammatory. I move it be stricken from the record, and the jury be admonished to disregard.”
The jury would be required to disregard a great deal of testimony in this case.
“Sustained. The testimony is stricken. The jury is admonished to disregard,” Perry ordered. But, the point had been made.
“Call your next witness, Mr. Blake,” Perry continued.
“Plaintiff calls Micah Love, Your Honor.” Zack turned to the gallery.
Micah rose from his back-row seat, was sworn in, and took the hot seat. He testified to being retained—sounds better than hired—by attorney Zachary Blake to travel to Berea, Ohio, to try to locate Bartholomew’s prior victims. Love told the jury that St. Patrick’s in Berea was Bartholomew’s previous placement before Lakes. Micah described activities in Berea, locating Pearl and Julius MacLean, interviewing the janitor, and then finding him dead. Eventually, the investigation led him to the two families in Coral Springs, Florida.
Micah tried to testify the families admitted Gerry sexually abused their kids and the church ran them out of town. Walsh objected to the attempted hearsay before Micah could blurt out the necessary words. Perry admonished the witness and threatened him with contempt.
Instead, Love told the jury a fascinating tale, detailing what he did and said. He met the families and convinced them they were in danger. As he was transporting the families to safety, Florida police, by sheer coincidence, arrested several men for breaking and entering the families’ homes. Micah described the plane trip and limo ride, and the assault on the Doubletree Suites Hotel, where his agents were rendered helpless with dart guns. The families disappeared after the assault. Love told the jury he prayed they escaped. A court officer wheeled a laptop computer, projector, and screen into the courtroom. The jury was treated to a very graphic surveillance video of the entire episode, corroboration of Micah’s testimony.
Walsh objected throughout Micah’s testimony. He argued the testimony and video were highly prejudicial. There was no evidence of church involvement. In fact, he argued the church was unfamiliar with these families until officia
ls were advised they were former churchgoers at St. Patrick’s.
Perry overruled the objections. The witness never testified the church was involved. His testimony established a reason why a potential group of witnesses might not be presented for the jury’s consideration.
“In fact,” Judge Perry opined, “the very first time anyone in this courtroom mentioned a possible connection between the church and the Florida incident was when you mentioned it in your objection, Mr. Walsh.”
Zack turned the witness over to Walsh. “I have just two questions, Mr. Love. You were hired by Mr. Blake, the attorney for the plaintiff, and you haven’t uncovered a single shred of non-hearsay evidence the church was involved in anything related to Father Bartholomew’s behavior in either Berea or Farmington, true?”
“Yes,” Micah admitted. “That is true . . . but . . .”
“No buts, Mr. Love. Is it true?”
“Yes.”
“As to the video that we just viewed—do you have any evidence anything we watched has anything whatsoever to do with this case or the defendants involved, Father Bartholomew, or the church?”
“No, I don’t.” Micah conceded. “But . . .”
“No further questions, Your Honor.”
“Mr. Blake?”
“You were going to say something else, Mr. Love? But Mr. Walsh cut you off. I’m sure the jury would like to hear what you were going to say?” Zack invited.
“Objection, Your Honor. He answered my question. There are no grounds for him to give a speech now.”
“Sustained,” ruled Perry.
“No further questions, Your Honor,” Zack sighed.
“The witness may step down. Any more witnesses, Mr. Blake?”
“Plaintiff calls Father Jonathan Costigan.”
Father Jon was sworn in and recalled certain key events. His conversations with the Voice were admissible hearsay. While they were out of court statements used to prove the truth of the assertions being made, they were also admissions against the interest of a party. As such, they were an exception to the rule.