Best Intentions

by Joseph T. Klempner

  But even then, she’d known better.

  Even if Stephen were somehow to win and get his daughter back - as unlikely as those things now seemed - he’d need a long period of healing with Penny. It wouldn’t be fair to any of the three of them to have Penny return home to find that, during her absence, a woman had moved in and was sharing her father’s bed. Penny would feel horribly threatened, Stephen would be torn between the two of them just when his daughter needed his undivided love, and Theresa would be left with the guilt of having driven a wedge between them.

  It simply wouldn’t work. It couldn’t work.

  And yet she came to the trial and took a seat in the second row, her hands carefully folded to hide the Band-Aids across her knuckles.

  Where else, after all, was she supposed to go?

  “All rise! Part One of the Supreme Court, in and for the county of Columbia, is now in session. The Honorable Priscilla McGee, Justice of the Supreme Court, presiding. Please be seated. For trial, the People of the State of New York versus Stephen Barrow.”

  Sitting alongside his lawyer at the defense table, Stephen tried to smooth the wrinkles out of his sweater. It was an old sweater, worn and badly moth-eaten in spots. Together with faded jeans and an old pair of work boots, it comprised his latest edition of street clothes, the things he’d happened to be wearing the day of the McDonald’s incident - which, depending upon your particular orientation, had come to be referred to as either the kidnapping or the lunch break.

  “I assume,” said Justice McGee, “that both sides are ready for trial.”

  “The defendant is ready,” said Adams.

  “The People are ready,” said Jim Hall.

  How weird, thought Stephen, that with those two little responses, the balance of my life is about to be decided.

  “As you already know,” said the judge, “I’ve revisited the issue of the child’s testimony. There will be no television used. If you want to call the child, Mr. Hall, she’ll have to testify like any other witness, in open court.”

  “Exception,” said Hall.

  A hundred years ago, trial lawyers were required to voice their disagreement with a judge’s ruling by uttering the word “exception.” This was so even when the lawyer had already made his position known - either by raising the point in the first instance with the word “objection,” or by arguing the issue, orally or in writing. Although the requirement has long gone the way of the court crier and the powdered wig, the expression continues to survive in some areas, particularly among older professionals and in the Deep South. Jim Hall was neither old nor Southern. His use of the word in this instance was motivated by a bit of frustration and was intended to convey his personal disapproval to Justice McGee. He said, “Exception” because he wanted to get under her skin just a little bit. He knew she was still on his side; he just wanted to make sure she remembered.

  “Your exception is noted,” said the judge, who wasn’t above playing games. Which in this case meant responding to a meaningless comment with an equally meaningless comment of her own.

  “I’ve also given additional thought to Mr. Barrow’s waiver of a jury trial. What’s your position on that now, Mr. Adams?”

  “My client would like a jury,” said Adams. Having read the judge’s letter, he saw no need to argue the point further.

  “Then a jury he shall have.”

  “Exception,” said Jim Hall again.

  “Noted,” said McGee. “Bring in the panel.”

  A hundred and six white people filed into the courtroom. For the rest of the day, they would be questioned by the judge and the lawyers on every imaginable subject, from what they did for a living to which magazines they read to how they felt about creationism. Stephen’s only previous experience with the jury system had been a dozen years ago, when he’d been living in Manhattan’s Greenwich Village and had been summoned to serve on a drug case. “The defense lawyer looks familiar to me,” he’d been compelled to tell the judge. “I may have seen him in my neighborhood.” He was thanked for his candor and promptly excused.

  Almost all of these jurors, it seemed, knew Jim Hall, or one of his assistants, or somebody in the sheriff’s office or the state police. A couple of them shopped at the Drug Mart in South Chatham. Most had heard of the case, either by reading Tom Grady’s articles in the Herald or by hearing mention of it from those who had. At first Stephen thought the judge might have to excuse them all. Instead she simply asked them, “Can you assure me you’ll be fair in spite of that?”

  “Oh, yes,” they all told her.

  It was much the same story when it came to the subject matter of the case. Although they visibly squirmed in their seats at the mere mention of child pornography, few of the jurors admitted to having strong feelings on the matter. Those who did were asked if they could set those feelings aside and give the defendant a fair trial anyway.

  “Absolutely,” they said.

  By late afternoon, it seemed Flynt Adams had exhausted his challenges on those jurors who were first cousins of Jim Hall, had campaigned for him in more than one of his elections, or were currently married to state troopers. Hall, in turn, had knocked off anyone who had facial hair (including one unfortunate housewife from Ghent), had ever opened a copy of Playboy, or appeared to be a day under fifty.

  They were left with a jury of smooth-faced, middle-aged folks who - while they themselves had certainly never set eyes on a centerfold - promised they were ready to forgive anyone who had.

  Justice McGee broke for the day.

  “So what do you think?” Stephen asked his lawyer.

  Adams looked up from his notes and shrugged. “They look okay to me,” he said.

  What planet was he living on?

  Cathy Silverman was elated. On Friday, she’d had what she considered a breakthrough session with Penny Barrow. Not that it had started off well, what with the child’s familiar insistence that her father hadn’t posed her, had never taken similar photos in the past, and had neither rewarded her nor punished her to gain her compliance.

  Exasperated, Silverman finally lost it. “Look,” she said, “You’re lying to me. I know your father abused you.”

  Penny, as she did whenever things got stressful, rearranged her baby blanket with one hand and raised the other to her mouth. Thumb-sucking would be next; it always was. Only this time, Penny surprised Silverman.

  “How do you know?” she asked.

  The manuals were quite clear on this point. The idea was to give the subject the impression that you knew everything. That way, she’d come to realize that you could see right through her attempts at deception and that she was going to have to tell you the truth sooner or later.

  “It’s my job to know,” said Silverman. “I went to school for, many, many years, just so I’d be able to know all there is to know about things like this. I’m an expert.”

  “Well,” said Penny, “if you know all the right answers, why don’t you just tell them to me? That way, I’ll know them, too.”

  Silverman paused to think about that. Was the child being sarcastic with her, trying to manipulate the interview? Such things happened, she knew, but usually with older subjects. Six was pretty young for that. And then Silverman recalled what she’d been taught was Rule Number One in behavioral science: Always look for the simplest, most obvious explanation. To Silverman, the simplest explanation behind what Penny had just said was this: Penny finally was ready to drop her denials and confirm what Silverman had strongly suspected all along, and had now come right out and said she knew to be true - that Penny’s father had indeed abused her. At the same time, however, Penny needed to make it look as though she were simply going along with Silverman. That way, it wouldn’t seem as though she were turning on her own father.

  And in that moment, Cathy Silverman realized that all this poor child was asking her for was a way to tell the truth that she could somehow live with. After all she’d been through, she deserved no less.

  “Did
your father make you bend over naked like that?” she asked, immediately followed up with a whispered, “Yes, he did.”

  “Yes, he did,” said Penny.

  “Had he made you do things like that before? Yes, he had.”

  “Yes, he had.”

  “How many times? Three or four.”

  “Three or four.”

  “Did he punish you if you refused? Yes, he did.”

  “Yes, he did.”

  “How? He’d spank me.”

  “He’d spank me.”

  “Did he reward you if you did as he told you to? Yes, he did.”

  “Yes, he did.”

  “How? He’d give me treats.”

  “He’d give me treats.”

  “What kind of treats? Candy, ice cream, strawberries.”

  “Candy, ice cream, strawberries.”

  “Excellent,” said Silverman. No matter that the child’s affect was slightly flat; that was to be expected in sex-abuse cases. “Now, here’s what I’m going to do. I’m going to ask you the same questions, but this time I’m not going to tell you the right answers. Do you think you can remember them yourself?”

  “I’ll try,” said Penny.

  They ran through the exercise again, this time without Silverman supplying the answers. Except for not being able to list the treats, Penny did fine. “Wonderful,” said Silverman. “One last time, and then we’ll be finished for the day, okay?”

  “Okay.”

  And they did it a third time. Only this time, just prior to asking the questions, Silverman quietly flipped a little switch under her desk. The switch activated a hidden video camera across the room. The microphone that worked in conjunction with the camera was taped to the underside of the chair in which Penny was sitting.

  “Did your father make you bend over naked like that?” asked Silverman.

  “Yes, he did,” said Penny . . .

  When he heard the news of Cathy Silverman’s breakthrough with Penny Barrow, Jim Hall was every bit as elated as Silverman. Personally, Hall had had his doubts about the child and had decided to put off calling her until the very end of his case. By doing that, he’d be able to see how things were going, and make a last-minute decision as to whether he needed her testimony at all.

  But this changed everything.

  “Tell you what,” Hall told Hank Bournagan, who’d delivered not only the good news but the videotape to back it up. “We’re gonna do this thing chronologically, just like the events themselves unfolded. We’ll let those jurors relive it for themselves. I’m gonna lead off with the kid, have her describe how her daddy forced her to pose.”

  “Want to put her on before she changes her mind, huh?”

  Hall smiled. “She can’t change her mind, Hank. That’s the beauty of the videotape.”

  “Right,” Bournagan agreed. You tended to do that a lot when you worked for Jim Hall.

  “Then I’ll call the three Drug Mart witnesses - first, the one he dropped the film off with; next, that Priestley woman, who saw they were kiddie porn and called nine-one-one; and last, the clerk he picked them up from. From there we’ll shift to the troopers, get in the arrest and the confession.”

  “Sure works for me,” said Bournagan.

  “And goddamn if it won’t work for the jury, too. Roll that tape one more time, why don’t you?”

  Flynt Adams, of course, knew nothing of Penny Barrow’s conversion, or the videotape that documented it. As far as Adams was concerned, this case was still winnable - as long as he could either keep Penny off the stand altogether or somehow contain her testimony so that she added nothing significant to the prosecution’s case. If he could do either of those things, the case would come down to the photograph itself. And Adams believed that any group of reasonable people - including those twelve jurors they’d picked earlier in the day - would be unable to agree that the photo, standing by itself, was “lewd” enough to constitute a “sexual performance.”

  Adams worked characteristically late that Monday night, preparing his opening statement and reading through 100 pages of witness statements Jim Hall had dumped on him at the close of the day’s court session. Hall hadn’t done so out of any sense of fair play; the law required him to turn the stuff over, and even then he’d waited till the last possible moment to do so.

  Then, when he was finished reading the statements, Adams spent another hour researching the law on how old a child had to be in order to be sworn in as a witness. It was after 2:00 when he finally went upstairs to bed. And even then, he lay awake in the dark for another forty-five minutes, listening to the regular breathing of his wife and thinking of questions to ask, issues to raise, and arguments to make.

  Trials were like that for Flynt Adams.

  Stephen barrow had trouble falling asleep that night, too. But in Stephen’s case, the problem was that he was still having difficulty adjusting to life back in jail. He’d grown accustomed to sleeping with Theresa, with having her warmth beside him, her reassuring voice when he awoke in the middle of the night and remembered his daughter was under a different roof.

  In place of that, he had his bare lightbulb back, the eternal flame burning in the middle of his ceiling. Stephen had always noticed those ads in the backs of magazines for energy-saving bulbs that lasted for thousands of hours and were guaranteed to work for ten years before giving out, or your money back. He’d always thought about sending away for a couple of them, just to see if they really worked, but he’d never gotten around to it. They were probably bogus, he’d decided, a total rip-off. After all, had he ever heard of anyone who’d ever bought one?

  Now he had.

  He put his forearm across his face, closed his eyes, and prayed for sleep. He knew it wouldn’t be right to pray for an acquittal; for someone who wasn’t accustomed to praying (and was far from convinced there was anyone up there listening to you in the first place), it struck him as an unseemly thing to do. Kind of like praying for his daughter’s return. It was simply too much to ask, right out of the blue like that. But sleep? Surely it was okay to pray for sleep.

  Are we ready to bring in the jury and proceed with opening statements?” asked Justice McGee.

  “Yes, your honor,” said Flynt Adams.

  Instead of answering, Jim Hall rose slowly from his chair. From his own seat, Adams could see that his adversary was holding something in his hands, but he couldn’t make out what it was.

  “Your honor, yesterday afternoon, pursuant to the Rosario requirement, I turned over to defense counsel copies of all statements of witnesses the People intend to call at this trial. Late last evening, quite unexpectedly, I came into possession of a videotape of one of my witnesses. It was only made this past Friday, and I didn’t even know of its existence until it was delivered to my office. I’ve had a copy made for the defense, and one for the court, as well, and I’d like to turn them over at this time.”

  “Please do so,” said the judge. “Mr. Adams?”

  Adams had jumped to his feet midway through Hall’s speech. “May we know who the witness is,” he asked, “and when Mr. Hall intends to call him?”

  “Certainly,” said Hall, who appeared to be enjoying every minute of this. “Though it’s not a him, it’s a her. The name of the witness is Penny Barrow, and-”

  “This is outrageous!” Adams shouted. “This is nothing but an ambush! We haven’t had a chance to look at this. And I don’t believe his story for a moment, that he didn’t know it existed until it suddenly fell into his lap yesterday evening.”

  For once in his life, Flynt Adams was wrong about Jim Hall. Which only goes to show that not all snakes bite all the time.

  They found a VCR and allowed Adams and his client to view the videotape in the sheriff’s office. It didn’t take long: The whole thing lasted less than three minutes. There was Penny, sitting in a chair, her Baba draped over her lap. And there was Cathy Silverman, sitting maybe five feet away from her, asking her questions in a relaxed, conversational tone.
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  “Did your father make you bend over naked like that?” Silverman asked.

  “Yes, he did,” Penny answered.

  Twice Adams rewound the tape and played it through again in its entirety. Penny’s answers were the same each time. She was even able to describe what sort of treats her father had given in order to get her to perform for him.

  “This is devastating,” said Adams.

  Stephen could only nod weakly. He’d seen and heard his daughter’s responses three times now, and he still didn’t know what to make of them.

  “I’ve got to know,” he heard Adams saying to him. “Is she telling the truth or not?”

  She was his daughter. For all intents and purposes, he’d raised her, made her what she was. He’d taught her above all to be nice to living things, to take responsibility for her own actions, and to tell the truth. What was he going to say now, that she was a liar?

  Which prompted Stephen to ask himself the unthinkable, the one question it had never before occurred to him to ask. Was it possible that she was telling the truth? Could he have done those things to her, after all, and then somehow managed to forget? It didn’t seem likely. And yet, here was his daughter. . . .

  “I’m your lawyer,” Adams was saying. “I need to know.”

  Stephen looked at him. He wanted to scream out, “NO! NO! NO! Can’t you see she’s lying? How can you even think I could have done something like that?” But the scream wouldn’t come; the words wouldn’t form. He was left to sit there helplessly, and shrug.

  “I don’t think so,” he said, finally. “I don’t think so.”

  There are moments in every trial, Flynt Adams knew. Jurors who seemed perfect for the defense disqualified themselves, surprise witnesses crawled out of the woodwork to bite you, cops remembered damaging things they’d neglected to put in their reports, alibis dissolved, or the defendant took the witness stand and destroyed himself.