Best Intentions

by Joseph T. Klempner

  “Well, isn’t that nice. What do you have to say about the defendant’s change of heart, Mr. Hall?”

  “It’s my understanding,” said Hall, “that Mr. Barrow executed a written waiver. It should be right there in front of you, your honor, in the court papers.”

  “And so it is,” said the judge. “Isn’t this your client’s signature, Mr. Adams?”

  “I’m sure it is. But-”

  “And yours, as his attorney.”

  “Yes.”

  “Is this the first mention you’ve made of this, this change of heart?”

  “Yes, but-”

  “Well, it seems to me that you’ve been engaging in judge-shopping, and I’m not going to tolerate it. I find that the defendant’s jury waiver, having been voluntarily and intelligently made, stands. If it was good enough for Justice Wainwright, it’s good enough for me. Mr. Adams, your motion to withdraw it is denied. When can both sides be ready to try this case?”

  “Two days,” said Hall.

  Adams couldn’t believe what he was hearing. “Your honor,” he said, “the defendant has a constitutional right to a trial by a jury of his peers.”

  “And I’ve already ruled that he waived that right, as the law permits him to do. This case will begin, and hopefully end, May twenty-second. That’s three weeks from today. And that’s all, gentlemen.”

  “Can she do that?” Stephen asked once they were outside.

  “No,” said Adams, “not really. But she just did.”

  “So what do we do about it?”

  “There’s nothing much we can do. Then again, it might turn out to be a blessing in disguise.”

  “How’s that?” Stephen wanted to know.

  “I’m pretty sure she’s wrong on the law,” Adams said. “I think the cases say you can insist on a jury, up until the time the trial actually begins. So if she goes ahead and makes us go nonjury, over our objection, and finds you guilty, all she’s done is to give us a great issue for appeal.”

  “And how long would an appeal take?”

  “Oh, a year, maybe. Less if you’re in prison.”

  “Great. So in the meantime, I go to prison, and Penny stays with her mother.”

  Adams could do no better than to nod in agreement.

  “I don’t want an appeal!” Stephen shouted. “I want this over. I want my daughter back! Don’t you understand that?”

  “Of course I do. And I’m doing all I can, you know that.”

  “I don’t know that. I don’t know anything.”

  “There are rules,” said Adams, “and I have to play by those rules, whether I like them or not. You know that as well as I do.”

  “Yeah, yeah,” said Stephen, who wanted to ask why the rules never seemed to apply to the Jim Halls of the world or the Priscilla McGees. But he knew he’d only be wasting his breath. “So what do we do now?” he asked.

  Adams looked at his watch. “In exactly twenty minutes,” he said, “we go up to Justice Wainwright’s court.”

  “I thought he was off the case.”

  “Yes and no,” said Adams. “He’s off the criminal case, but that means he’s now on the civil case. I’ve brought on an order to show cause, to see if I can’t get you visitation rights with your daughter.”

  “When were you going to tell me?”

  “Frankly, I was afraid to. I didn’t want to get your hopes up.”

  “If there’s anything you don’t have to worry about,” said Stephen, “it’s getting my hopes up too high.” They shared a chuckle; it was about as close to a laugh as either of them was going to get.

  “Why shouldn’t Mr. Barrow have visitation?” Justice Wainwright asked Jane Sparrow. “After all, he hasn’t been convicted of any crime, and as far as abusing or neglecting his daughter, he hasn’t even been accused of anything like that.”

  Sparrow rose from the table where she and Ada Barrow had been sitting. Sparrow and Barrow, thought Stephen; they made quite a pair.

  “Dr. Silverman’s reports are replete with evidence that Mr. Barrow has been abusing his daughter all along, in a variety of ways,” said the lawyer, waving a sheaf of papers in the judge’s direction. “Not only that, but Dr. Singh discovered all sorts of findings consistent with sexual abuse.”

  “I just love that phrase,” said Judge Wainwright, “and I’ve read all those reports. And I have to tell you I think most of what’s in there is pure hogwash. What happened on the criminal case this morning?”

  “It was adjourned three weeks,” someone said.

  “Very well,” said the judge. “Effective immediately, the father shall be permitted one visit per week with his daughter. The visits will be on neutral ground - in other words, at neither the father’s home nor the mother’s. Each visit will be one hour in duration, and will be supervised by a certified social worker, whose fee shall be the responsibility of the father. Any questions?”

  “Yes,” said Jane Sparrow, her beady eyes narrowed to pinpoints. “Why on earth are you subjecting the poor child to this?”

  “Fair question,” said Justice Wainwright. “Only it’s one you folks should have asked yourselves a long time ago.”

  Stephen was elated.

  It was going on three months since he’d last seen his daughter. In that time, he’d been arrested, freed, indicted, and locked up again; he’d spent a month and a half in jail, barely surviving the experience; he’d been nursed back to health and led to believe things were almost over, only to have the carrot pulled away from him once again. And in all that time, the only contact he’d had with his daughter had been a single card from her.

  Now he was about to see her.

  Flynt Adams made the arrangements, locating an agency in Albany to supervise the visits. When Ada Barrow refused either to deliver Penny to the agency or to permit Stephen to pick her up at her home, Adams saw to it that one of the agency’s social workers would double as a chauffeur, driving the child the thirty miles to and from the visit site. The additional expense, of course, was to be borne by Stephen, but he couldn’t have cared less.

  He was going to see his daughter.

  The first visit took place three days after Justice Wainwright’s order. Stephen spent the morning worrying about what jeans to wear, whether he’d shaved closely enough, the length of his hair, the smell of his breath. He thought of stopping off to buy a gift for Penny, but decided that might be interpreted as an attempt to buy her affection. He cleaned his car, both inside and out. He tried his best not to leave home too early, but still arrived half an hour ahead of schedule.

  He felt like he was going on a first date - then quickly banished the thought, fearful that someone might read his thoughts and attach sexual significance to the analogy. Still, he had no idea how his daughter was going to react to him, especially after so long. Would she fling herself into his arms? Or would she cower in the corner? Was she still the same old Penny, or after all this time away from him had she bought into the notion that her father was the ogre some were painting him as?

  The social worker/chauffeur was a young graduate student named William (Stephen missed his last name, and never did learn it). William came into the waiting room alone in order to prepare Stephen for the visit. He was tall, thin, had bad skin, and wore glasses that were much too big for his face.

  “Here are the rules, Mr. Barrow. No leaving the room with your daughter, for any reason. No intimate contact, no discussing any aspect of your case or your daughter’s upcoming testimony. No passing of notes, whispering, communicating by gesturing, or speaking in a foreign language.”

  As if he and his six-year-old might suddenly lapse into American Sign Language. Or Japanese, perhaps.

  “And remember this. Your daughter’s been through a lot lately. Give her a chance to get used to you, okay? Sometimes these things take a while.”

  “Okay,” said Stephen. There was no way he was going to question anything, not when some kid who looked barely seventeen had the power to yank his daughte
r away from him at any given moment for some perceived violation of the rules. “Okay,” he repeated.

  William nodded thoughtfully and departed. When he returned a moment later, he was leading Penny by the hand.

  Stephen was struck immediately by how tall she looked. Here he’d been away from her for only a couple of months, and yet it seemed she’d shot up during that time. Other than that, she looked thin, and maybe a little tired. And she was carrying her old baby blanket. What had she called it? Her Baba.

  “Hi, Daddy,” she said, with what struck him as a nervous smile. Not fearful, but not exactly flinging herself into his arms, either.

  Sometimes these things take a while.

  They sat at a tiny table, Stephen’s butt stuffed into a chair meant for someone half his size. “I’m fine,” Penny kept telling him. “I’m not too thin. I miss you, too. I am eating, I promise.”

  While she seemed genuinely happy to see him, it was as though there was a part of her that wasn’t quite there, that had been left behind somewhere.

  “Are you going to school?” he asked her.

  “Mommy says soon. Right after things are over.”

  “Does Mommy read to you, at least?”

  “Sometimes. She’s not such a good reader.”

  “Are you warm enough?”

  “Uh-huh.”

  “Do you need anything? Like for next time?”

  “Some books. Ones I can read by myself. A couple ‘Junie B. Jones’ would be nice.”

  “Anything else?”

  “A pen. Mommy only gives me crayons.”

  “Okay.” “That’s it?”

  “My orange sneakers. The ones with the purple laces.”

  And before he knew it, the hour was up.

  The second visit, a week later, went about the same. Again Penny seemed happy enough to see her father, but to Stephen there was still something missing. His daughter lacked the spark he’d been so used to, the mischievous quality he loved about her. She smiled, she even laughed once or twice, but generally she seemed subdued, flat. The thought even occurred to him that they might have her on some sort of medication.

  “Are you eating okay?” he asked her.

  “Yes, Daddy.”

  “Taking your Flintstones?” Those were her vitamins.

  “Yes.”

  “Taking any other medicine?”

  A look from William, who always sat nearby, told Stephen the question was off-limits. But if Stephen was concerned with Penny’s listlessness, William was impressed with the interaction between father and daughter. At the end of the meeting, before driving Penny back to her mother, he let Stephen look over his shoulder as he filled out an evaluation form. Stephen couldn’t read the entire thing, but he was able to make out part of it.

  Father and daughter seem quite comfortable together. Daughter exhibits no fear of father and is relaxed in his presence. There is no evidence of any intimidation or other improper behavior, and it is the opinion of the undersigned that the visits should continue and perhaps even be extended in length.

  If William was simply looking to increase his hours and the pay that went with them, that was quite all right with Stephen. “Who does this go to?” he asked.

  “To the court,” William told him. “Do you happen to know the judge’s name?”

  “McGee,” said Stephen. “Priscilla McGee.”

  It was only on the drive home that Stephen realized he’d misspoken. McGee was now the judge on the criminal case. (How could he have forgotten?) It had been Wainwright who’d ordered the visits and should, therefore, be getting the evaluations. So that afternoon, Stephen phoned William to report his mistake.

  “Too late,” William said. “I already faxed it to Judge McGee.”

  “Well,” suggested Stephen, “maybe you better fax a copy to Judge Wainwright, too.”

  “Good idea.”

  The result was that both judges ended up reading the evaluation. And just as Priscilla McGee was about to toss hers into the trash can beneath her desk (she never would have allowed visits in the first place, and wasn’t particularly moved by the fact that they were going well), in walked her colleague, waving his own copy of the report, a smug I-told-you-so look on his face.

  “So much for the DA’s need for closed-circuit TV to protect the Barrow child,” he said.

  And for one of those rare moments in her professional life, Justice McGee found herself cornered by the facts, and forced to acknowledge that she’d have to reverse one of her rulings. “Hilda,” she said to her secretary, “send a letter to the parties on the Barrow case. Tell them we won’t need television for the child’s testimony after all.”

  She looked back at Wainwright, as if to say, Satisfied? But he wasn’t finished with her.

  “While we’re on the subject,” he said, “somebody told me you wouldn’t let the defendant withdraw his waiver of a jury trial. I told my source he must be mistaken, that you’d never do a thing like that.”

  McGee said nothing. Instead, she broke off eye contact and suddenly seemed distracted.

  “You know they’ll reverse you in a minute for that,” Wainwright told her. “It’s a Constitutional right, Priscilla, with a capital C.”

  “Constitutional rights get waived all the time,” snapped McGee. “People waive their Miranda rights, they consent to having their cars searched, they plead guilty instead of going to trial. How’s waiving a jury any different?”

  “It’s different,” said Wainwright, “because the appellate decisions say so. Barrow’s changed his mind, and he’s done so before it’s too late to do anything about it. Read the cases.”

  Again McGee was silent. Reading the cases was something no one had ever accused her of doing to excess. To be sure, there were judges who made their reputations by being legal scholars. Priscilla McGee just didn’t happen to be one of them.

  And so it was that in the space of five minutes, and without even knowing about it, the prosecution was dealt two setbacks, and the defense finally caught a couple of breaks. The only problem was that Hilda, Justice McGee’s secretary, was every bit as inefficient as her boss was unscholarly. Told to send the letters that Thursday, she put off writing them until Friday (when the copy machine happened to be undergoing repairs and was out of service) and didn’t get them into the mail until late Monday. The carrier picked them up Tuesday morning. Delivery being somewhat unpredictable in rural New York state, Jim Hall’s copy arrived at his office the following afternoon (though Hall himself had left for the day without seeing it). Flynt Adams didn’t receive his copy until Thursday morning. He tried to reach Stephen Barrow right away with the good news. But Stephen, early as always, had by that time left for his next visit with Penny.

  They say airplane disasters invariably result not from any single cause, but from an almost impossible confluence of events. Not only does a previously undetected worn part suddenly overheat and break, but the alarm that should alert the crew has been disconnected because it kept coming on even when there was no problem. At the same time, a backup system fails to kick in for some unfathomable reason, and the pilot (experienced, but fatigued by a long wait prior to takeoff, and distracted by unusual weather conditions) fails to notice the drop on the oil pressure gauge. Eventually the broken part, the extra weight the plane took off with, and the additional drag of ice accumulated on the wings, are just enough to render the craft vulnerable to a sudden, unexpected burst of wind shear, extremely rare for that particular time of year.

  So, too, did that Thursday’s disaster have many contributing causes.

  Not only had Justice McGee’s secretary been derelict in getting the letters out to the lawyers, the Postal Service less than diligent in its appointed rounds, and Stephen Barrow neurotically early in leaving for his visit with his daughter, but William was having a very bad day.

  William, of course, was the young man chosen to supervise the visits and to serve the secondary function of Penny’s chauffeur. Unlike the rest of Willia
m’s life, which was, for the most part, vague and uncentered, the problem William was having that day was extremely focused. The site of its focus was the rear molar of the lower left quadrant of his mouth. William had what is generally referred to in dental parlance as an abscess, or a second-degree, fully impacted infection.

  Or, in laymen’s terms, one hell of a fucking toothache.

  William was, to begin with, not too good at pain. Hangnails bothered him; paper cuts caused him to cry out; blisters brought him to his knees. He’d gone to bed Wednesday night with a dull, throbbing ache in his mouth, only to awaken sometime around 3:30 with searing pain. His dentist couldn’t see him until late in the afternoon. In the meantime, he advised William to gargle with warm salt water and take a couple of aspirin.

  William had taken eight so far, and it wasn’t yet noon.

  Somehow he toughed it out. He picked up Penny Barrow and managed to drive her to the center. (Luckily, the kid was quiet; conversation was something William simply couldn’t have handled.) At the center, he tried to find someone to sit in for him and supervise the Barrow visit. At $100 an hour, that was rarely a problem, and often he could get someone to do it for sixty or seventy, pocketing the change. Today, no one would do it for the full $100. Fillmore was busy with a client, Mazeroski was in Syracuse attending some crisis intervention seminar, and Balzitch was out sick. That left Utstein, who immediately started giving William an argument about individual responsibility.

  In the end, William did it himself. Or tried to. Downing two Tylenol and two ibuprofen on top of the eight aspirin, he found a chair in the corner of the room, covered his eyes with a damp washcloth, and prayed for death.

  At the same time, across the room, Stephen was thinking he noticed a distinct change in his daughter. On the first two visits, she’d seemed happy to see him. Reserved, to be sure, but the circumstances could have more than accounted for that. Today, however, she was downright apprehensive. Her hug was unenthusiastic. She was unusually quiet, answering his inquiries with monosyllables. At the same time, she seemed to have something she wanted to say. Her eyes darted around the room, never quite meeting his. She kept glancing over toward William.