The Mongol Reply

by Benjamin M. Schutz

  “Really,” Carlson said, tapping his finger against his nose as he pondered the meaning of an envelope full of cash.

  Don Blake asked, “Did he say where he got the money from?”

  “No. He told me it was none of my business. Tom told me that all the time about money. He made it; he could do what he wanted with it.”

  “Anything else, Lou? If not, I’ll be on my way. We’ll see what Sid turns up.”

  “That’s fine, Don. Listen, I really appreciate what you’ve done.”

  The two men stood and shook hands. As Blake walked away, Carlson looked past him to the entrance.

  “One second though, Don. Why don’t you stay around for awhile?”

  Standing in the doorway was Al Garfield, his coattails swept back, thumbs hooked behind his belt. Tom Tully was staring malevolently at them and before him, held in place by his shoulders, was his son, who, seeing his mother, threw his eyes to the floor.

  CHAPTER FORTY-FOUR

  Morgan Reece woke and spent two hours searching for his blindside in this case. He approached each piece of data from every perspective he could imagine. He battled these spectral foes and his own doubts until he was convinced that his blindside was just that, and no amount of searching was going to make it otherwise.

  He heated an artichoke and mushroom focaccia from Cenan’s Bakery and ate it with his first cup of coffee. He showered and had a second cup as he put on his uniform. A navy blue suit, plain white shirt and subdued blue tie with red dots. The Commonwealth was conservative and expected its experts to be the same. Over his third cup he reviewed the record one last time. Reece preferred to work without a net, not bringing his files to court unless subpoenaed. That forced the attorney to deal with him, not his jottings and speculations that can take the case off target and into nooks and crannies that fit the attorney’s agenda. A photographic memory made this approach possible.

  At nine-thirty he walked into the judicial center, checked with the docket clerk for the courtroom assignment, rode the elevator up to the fifth floor and looked for Lou Carlson and Al Garfield. He walked down the hall towards the courtroom, and exchanged greetings with other attorneys he knew until he was outside Courtroom 5A. He peered in and saw Tom Tully and his son in one witness room. Across the corridor, staring sadly at her son, was Serena Tully. The two attorneys were arguing in the courtroom. Reece entered and saw a burly, grey haired man sitting in one corner, his arm stretched across the back of the witness bench.

  “Good morning, gentlemen.”

  “Not for long.” Garfield snapped.

  “I see.”

  “I don’t think so, Doctor.” Garfield said, and cut between Carlson and Reece towards the door and his client.

  Reece and Carlson shook hands. “Hello, Lou. Sorry to see you under these circumstances. I thought these days were behind you.”

  “So did I. So did I. I saw the bruises on that woman’s throat and next thing I knew I was in Hallowell’s courtroom turning back the clock. It was like coming upon an auto wreck. Somebody’s got to do something. You’re there, you do it.”

  “How’s Lori taking it?”

  “Not too bad. I had good facts to work with. Plus she despises Al Garfield. Always has. He being on the other side clinched it. I do have to turn over my license to practice to her once this is done.”

  “I remember how you looked in that courtroom, Lou. Your face was the color of your hair there.” He pointed at his graying temples. “Your mouth was open, but you couldn’t make a sound.”

  “I was in so much pain, I couldn’t scream. I couldn’t believe it took so long. I thought your heart just burst and you’d fall over dead. You know, instantaneously.”

  “Your eyes were completely rolled back in your head. You looked blind and insane until the medics got there.”

  “You know what the worst part about this is?” Carlson asked, turning sideways to shield his next comment from invisible ears.

  “I can guess.”

  “I love it. That’s what scares me. I could do this all over again. I needed that heart attack to wake me up. Nothing less was going to get me to cut back. Even then I couldn’t cut back. I had to quit. This is it for me. One and out. Then back to law school. Do what I can to keep the Albert Garfields out of this line of work.” Carlson turned back.

  “I’m going to ask you to go beyond the judge’s question about dangerousness. I want to get her equal access to the children. Do you have an opinion on that?”

  “Yes, but I’m the court’s witness. You want to hear it, go get Garfield over here. I’ll be glad to tell you both.”

  “What about letting the little boy testify? I don’t know why Tully’s got him here but I have to figure the worst.”

  “Lou, you know my position on that. If you want to hear it about this case, go get …”

  “Albert. No thank you.”

  The big man in the corner got up to leave. He glanced briefly at the other two and pushed through the door.

  “Who was that?” Reece asked.

  “No idea.” Carlson said. No need to give Reece information he couldn’t protect.

  “I thought he might be their expert, here to listen to my testimony.”

  “No. If they want to second opinion you, they’ll go to Henry Pecorino. Why shop, when Henry always has the opinion you need.”

  “I’ll wait outside until the bailiff calls me. Good seeing you again, Lou.”

  “Likewise, Morgan.”

  Reece went out into the hall and paced back and forth, his mind empty, waiting for the questions to bring all of his experience to bear on the data he’d collected. It was too late to prepare any more. He knew what he knew. What he didn’t would become abundantly clear in the next few hours. One last time he reminded himself that expertise was not omniscience.

  The bailiff brought the parents into the courtroom. Tom Tully took his son with him. Not a good sign. Reece went back to pacing. The man from the courtroom was seated at the far end of the hall, intently reading a newspaper.

  A few minutes later, little Tommy came back out. Reece went over to him.

  “Good morning, Tommy.”

  “Hi.”

  “Can I sit here with you?”

  “Uh-huh.”

  Reece sat and looked down at the boy. He was sitting on his hands and kicking his legs vigorously. “Day off from school, huh?”

  “Yeah. Dad said he’d take me out to McDonald’s after this is over.” Tommy looked up, smiling at the thought.

  “Do you know what this is?”

  “Yeah, this is the court. The man on the high chair is the judge. He’s the one who decides things.”

  “What’s he going to decide today? Do you know?”

  “Yeah, my dad said he’s going to decide if my mom can come back to the house.”

  “That’s right. Do you know why your dad wanted you to be here today?”

  “So I could talk to the judge.”

  “I see.”

  Reece sat back and stared out the window across the top of the Fairfax skyline. Nearest were the colonies of law offices that surround the judicial center, then the original county courthouse, in use for almost two hundred years, and beyond that the commercial crossroads of the city that sprung up around the courthouse and the government center. In the distance, he could see the campus of George Mason University.

  “Doctor Reece,” Tommy asked, tugging at Reece’s sleeve.

  “Yes, Tommy.”

  “Do I have to talk to the judge?”

  “Do you want to?”

  “No. Not with my Mommy there.”

  “What if she wasn’t there? Would you talk to the judge alone?”

  “I won’t be alone. That man said he’d be there to ask me questions.”

  “The man who is sitting with your dad?”

  “Yeah. He said it was important for me to answer his questions.”

  “Do you know what his questions are?” Reece was skating perilously close to
violating the rule forbidding witnesses to discuss their testimony.

  “Yes. We talked in his office, before we came over here. He told me what to …”

  “That’s okay, Tommy. Suppose you were alone, all alone with the judge, would you talk to him then?”

  “I don’t want to,” Tommy said, kicking out a foot. He tried to steady a trembling upper lip with his lower one, but couldn’t.

  “Dr. Reece, Judge Kenniston is ready for you.”

  Reece started and looked up at the bailiff in the doorway.

  “I’ll be right there.”

  He looked back at the little boy struggling to control his face and everything behind it.

  “I don’t know, Tommy. I’ll see what I can do.”

  CHAPTER FORTY-FIVE

  Morgan Reece settled into the witness box, adjusted the microphone and nodded towards Judge Kenniston.

  “Good morning, Doctor. Do you understand the purpose of today’s hearing?”

  “Good morning. Your Honor. The purpose is to determine whether Serena Tully constitutes a danger to her husband or her children such as would warrant exclusion from the marital residence. This is a portion of the scope of the entire custody evaluation I am conducting.”

  “Are you prepared to address that question today? Have you proceeded far enough in your evaluation to reach a conclusion on this question?”

  “Yes, I have, Your Honor.”

  “Dr. Reece is the court’s own witness. As such he will present his testimony in response to questions from the bench. The parties’ attorneys, Mr. Carlson and Mr. Garfield, will each have an opportunity to cross-examine the witness. Are there any questions before we begin?”

  “Yes, Your Honor, I have some questions.” Albert Garfield stood. “Though Dr. Reece is the court’s expert witness, we are entitled to cross-examine him as to his qualifications, or to accept the proffer of his expertise and stipulate to his qualifications. I would like to know what types of opinions he’s going to offer today and his qualification to render each of them.”

  Lou Carlson’s antennae were quivering. Something was wrong here. Very wrong. Nobody challenges the qualifications of the court’s chosen expert. Why would Garfield have let him be appointed if he had grounds to challenge? Had he learned something new in the course of evaluation? Why do this now? Why not wait for Reece’s opinion, attack him on cross-examination? Al must know his client’s story was a scam from the start. There was only one certainty. Al Garfield didn’t posture, he didn’t grandstand. He never pulled a trick he didn’t think he had a decent chance of winning. And he did his homework. He was on to something; something he thought would carry the day.

  Morgan Reece told himself to relax. You have no idea what Garfield’s up to. You know his client hasn’t got a case. Attacking the expert is the weakest form of cross. He’s got to do something. This case isn’t all that unusual. Relax, you always expect the worst, he reminded himself. Most of the time it didn’t happen. When it did …

  “Dr. Reece will be asked to reach a conclusion about Mrs. Tully’s dangerousness. The foundation for that opinion being the data he’s collected in his evaluation, interpreted through a combination of his experience and knowledge of his field. What part of this do you wish to challenge, Mr. Garfield? To explore these matters in any depth will require allowing Dr. Reece to testify at some length. Do you wish to make your objections to Dr. Reece through questions prior to a presentation of his foundation? How else are we to know the areas that he has ventured into and to assess his expertise in these areas?”

  “I withdraw my objection, Your Honor. I believe they will be best saved for cross-examination.”

  Interesting move, Carlson thought. How much will it distract Reece, wondering what he’s got up his sleeve? Will it force him to hedge his bets, qualify his opinion until it’s as enlightening as a sampler?

  “You may begin, Dr. Reece. Please tell the court what your data base is.”

  Reece recounted his interviews, the collateral records he reviewed, the tests he administered or had done by his consultants. Garfield and Carlson scribbled furiously. Reece scanned the courtroom. The bailiff was obviously bored, Tom Tully scowled at him and Serena was biting her lip and had started to blink with anxiety. The court reporter’s staccato clicking was the only other sound in the room. Reece caught Judge Kenniston’s eyes for a second and went on to finish laying his foundation.

  “Dr. Reece, these information sources, are they typically relied upon in the practice of custody evaluations?”

  “Yes, Your Honor. Custody evaluations should always use multiple methods of data collection. These are the fundamental methods used by evaluators. I have not yet done my direct observations of the children with the parents, but everything else is completed.”

  “Is an assessment of violence or dangerousness a routine part of a custody evaluation?”

  “Not routinely, Your Honor. If the particular facts of the case include allegations of spousal violence or child abuse, then it is essential to evaluate those issues in a custody evaluation. It doesn’t show up in every case, but where it does it must be attended to.”

  “How long have you been doing custody evaluations, Dr. Reece?”

  “About fifteen years, Your Honor.”

  “The number of evaluations you’ve conducted?”

  “Approximately two hundred custody evaluations. An equal number of evaluations of abuse in the context of a custody or visitation dispute, and probably half that many case reviews of other evaluators’ work.”

  “How many of these cases included the issue of spousal or domestic violence?”

  “Allegations of such violence occur in the majority of these cases, probably sixty to seventy percent. Demonstrated or proven histories of spousal violence are actually rare. They are generally dispositive of the question of custody and as such aren’t referred for evaluations.”

  “Have you formed an opinion in regards to the allegations that Serena Tully posed a danger to either her children or her husband, Thomas Tully, and if so, what is the foundation for your opinion?”

  “I have formed an opinion, Your Honor.” Reece began. Everyone in the courtroom leaned forward. All eyes were on Reece; the court reporter’s fingers were poised over her transcriber. Carlson and Garfield both knew that the court’s expert’s opinion was the single biggest factor in predicting the court’s ruling. This was the unveiling, the presentation of Morgan Reece’s sculpture, his construction of the truth of this family. Who would be going for the jackhammer?

  “My opinion is that Serena Tully is not a danger to either her children or her husband. Starting with the children, my opinion is based on the following: my direct observation of her interactions with them in my office. Granted her sudden absence is probably a factor in the degree of attachment I saw, they did not act at all like children afraid of their mother. In addition the report of Felicia Hurtado was consistent with this. Her observation over a number of months of the children with their mother did not include any reports of harsh discipline or fear. This woman is an employee of Mr. Tully’s. If there is any likelihood of bias in her reporting it would be to favor Mr. Tully, her employer. Her green card application is contingent upon his sponsorship of her. The fact that her report goes against this pull is noteworthy. The children’s psychological testing is also consistent with these reports. The mother figure is perceived as quite nurturing and supportive on both tests. The boy, Tommy or Junior, did not express any fear of his mother. In fact, the question itself struck him as very odd. The little girl, Tina, seems to be suffering a good deal from her mother’s absence. She was not interviewed, but her play indicated a wish for her family to be intact, with the mother back in the house.

  “The question with her husband is a little more complicated. Ms. Tully has no history of violent behavior directed at anyone but herself. In the course of the recent stresses two allegations have been made and one act of violence appears to have occurred. The allegation that led
to the original exclusion order was that she ‘threatened to do a Manassas,’ or sever Mr. Tully’s penis. This threat is alleged to have occurred in the context of an argument in the home. A fight was observed, or rather the end of an argument was observed by the housekeeper, Felicia Hurtado. She confirmed that Ms. Tully kicked her husband in the shins and threatened to scratch his eyes out. Later an altercation broke out at Tommy or Junior’s elementary school. The report of both parties is consistent. Ms. Tully fled with the child. Mr. Tully pursued. He caught up with her, grabbed her by the hair, took the child from her and flung her to the ground. She got up and pursued Mr. Tully, now fleeing with the child. She attempted to regain the child. As part of her efforts she bit her husband. He retaliated, striking her with sufficient force to render her unconscious and produce a large contusion on the side of her face.

  “Mr. Tully in fact was the first to resort to violence in this matter. Ms. Tully reciprocated and so did he. This points up the difficulty in assigning ‘danger’ to one of the parties in some of these domestic situations. What is occurring is a cycle of mutual provocation escalating until one or both cross over into violent behavior. Who crossed the threshold first may vary from situation to situation in these volatile pairings.

  “The ‘fight’ that Felicia Hurtado witnessed was by Ms. Tully’s report the end of a cycle in which Mr. Tully had restrained her against her will and provoked her by making offensive remarks about sex acts he wished to perform on her.

  “My opinion is that an exclusion of Ms. Tully from the marital residence is unfair to her. She poses no more of a risk to Mr. Tully than he does to her.

  “This is a very volatile pair. Subsequent to her exclusion, Ms. Tully was apparently assaulted by someone who said she would be killed if she didn’t sign a settlement. Her belief is that this person was employed by her husband to intimidate her into relinquishing any claim to property or the children. I understand this matter is being investigated by the police.