The district attorney stopped her with one long hand. “Please, Mrs.—”
“Doctor,” Mary said.
“I will gladly hear what you have to say, Dr. Stipp, but only after I speak to Emma. I do not want to contaminate my impressions with yours—”
“They are not impressions. They are facts.”
“There are facts and then there are alternate facts.”
“That is the most ridiculous thing I have ever heard anyone say.”
“Be that as it may, correct procedure must be followed.”
“We insist on being present when you speak with her,” Mary said. “She has not been talking much. Nor do I press her for details that she cannot yet give. She is in a precarious state. My goal, my mother’s goal, my husband’s, has been to make her feel safe. It is a minute-by-minute process.”
“Fine. One of you may stay, but you will not prompt her in any way, do you understand?”
Amelia escorted Emma in, the girl shuffling, careful of her stitches. She was worrying one of the minute pearl buttons of her dress with her fingers. Yesterday, when they’d told her that someone would come to ask her questions, she’d responded with silence. Mary lifted Emma onto her lap as William and Amelia retreated to the hallway, hovering just out of sight. Elizabeth had again taken Claire to the back garden with a diversionary picnic.
Hotaling’s face was a mask of trained disinterest. He explained to Emma why he was there and what he needed her to do. It was important, he said, that she answer every question, because he wanted to understand. Could she do that?
She nodded, her eyes moving from his long fingers to his narrow face.
Hotaling began, balancing a small lap desk he’d brought with him on one thigh, his legs crossed, a notebook open and at the ready, a newly shaved pencil twirling in the long fingers of his left hand.
“All right. We’ll begin. How old are you, Emma?”
“Ten.”
“How old is your sister?”
“Seven.”
“Can you tell me what happened when the blizzard ended?”
“We went outside when the teacher said to go home. But Mama and Papa weren’t there,” Emma said, her voice breaking.
“I know this is hard, but you must answer every question I ask you, even when you’re sad. Do you understand?”
“Yes.”
“When your parents didn’t come for you, what did you do? Did you go back into the school?”
“No. We thought they were coming. But they didn’t. And then we wanted to go home.”
“There must have been a lot of people outside, other parents and so on. Did you ask someone you knew for help?”
“They all left us.”
“Again, did you think of going back to the school?”
“The teacher said we couldn’t. She said we had to go home because she didn’t have any food for us anymore. We were hungry. We just wanted to go home.”
“How long did you wait?”
“I don’t know. It was so cold.”
“What happened next?”
“We started to go home, but the snow was too deep.”
Mary shuddered at the thought of Emma and Claire trying to maneuver through those terrible drifts.
“Then what happened?”
“Claire sank and I couldn’t dig her out.”
“Where were you?”
“At the intersection of our street.”
“And what happened next?”
“A man stopped. He was in a sleigh. He said he would help us. He dug Claire out.”
“Did you know him?”
“No.”
Mary was astonished. Emma had barely responded to anything they had asked her.
“What did he look like?”
Emma buried her face in Mary’s chest and would not answer.
“All right,” Hotaling said. “Can you tell me whether you had ever seen him before?”
Emma shook her head.
“Can you at least tell me his name?”
“The Other Man,” she said.
“He didn’t tell you his name?”
“No.”
“Why did you call him the other man?”
“Because there were two men.”
“There were two men in the sleigh?”
“No. Just him.”
“Then what happened?”
“He put us in his sleigh.”
“Why did you let him?
“He said he would help us.” Emma was trembling now.
“Did you ask to go home?”
“I thought he knew where we lived.”
“Where did he take you?”
“To a house, near the river.”
“Then what?”
“He went inside and left us outside.”
“Why didn’t you go home?”
“The snow was too deep.”
“Then what?”
“He came outside and took us in, and the Man was there—”
“The man?”
“Yes. It was his house. And he fed us and took care of us.”
“What was his name?”
“He never said.”
“What did the other man do then?”
“He left. But sometimes he came back. And he—”
“What?”
“He—he hurt me.”
“What about the one you call the Man? Did he hurt you?”
“No. He never did. He took care of us. He gave us baths and fed us. He was nice.”
“How did the other man hurt you?” Hotaling had given off taking notes now. He’d softened his voice, too. “The reason I want you to tell me is so that you and I can tell the court the truth and he can be punished. Do you understand?”
The litany of questions that followed felt to Mary like a battering ram. Hotaling asked questions she had not yet dared to ask for fear of Emma’s fragile state. From moment to moment, it was impossible to know whether she would answer even a simple question requiring only a yes or a no answer, to say nothing of more complicated inquiries, but she did. Mary wanted to protect her from all of it, but Emma answered one after the other, sometimes with stilted clarity, sometimes with a despairing shake of her head. Anytime Mary protested—which was often—Hotaling insisted that she allow him to do his job. There are aspects of law that are distasteful, just as there are in medicine. Did he interfere in her work?
He pressed on:
Did this other man come in the day or at night?
How many times a week?
You don’t know?
Was he short, tall, fat, thin? What was his hair like? His beard?
Why don’t you know? Why can’t you say?
Perhaps you played make-believe, because you were bored? Made him up?
Did you fight him off?
How hard?
Most girls would rather die than submit. They would fight until the death.
He threatened your sister?
Did he ever hurt her?
Then why did you believe he might?
He said so? But those are just words.
Show me where he touched you.
You have to, Emma.
All right then. Did he ever put his member inside you?
At this point, William stole into the room and stood behind the district attorney, locking eyes with Emma in an effort to instill courage.
You don’t know?
Have you ever had sexual congress with anyone else?
It’s when a man or a boy puts his member inside you.
Not at school? Maybe in an alleyway?
No? But did you want to?
Are you telling the truth?
How did you get away?
W
ith a shovel?
Did you want to kill him?
Which man did you hit? Are you sure?
When Hotaling said he was finished, Mary handed over a limp Emma to Amelia, who bore her away in her arms, promising hot chocolate and cake and more sleep if she wanted it.
“What was that?” William raged, after they heard the kitchen door latch shut behind Amelia.
Hotaling was juggling his notes into his carrying case. He looked up, exasperated. “My interest as prosecutor is in convicting criminals, not in protecting witnesses.”
“Do you know what you just put her through?”
“You should be grateful I’m even prosecuting, considering the challenges. I was already committed to lodging the kidnapping charge. I just needed to verify, and though it could be argued that Emma and Claire went willingly, it’s apparent that they had a different idea of this ‘other man’s’ motivation. My object today was to decide whether or not to pursue rape charges. You understand that to win a court case that alleges rape, I have to prove unequivocally that Emma suffered unwanted penetration. Prove it, in stark, unvarnished, eminently credible, incontrovertible evidence. Sometimes girls say that men have raped them when they have not—”
“That is utter nonsense.”
Hotaling held up a cautioning hand. “Let me finish. It was my job today to ascertain the veracity of my witness—my witness—not yours. It’s interesting that Emma says that whoever it is didn’t rape Claire. Rape would be far easier to prove if Emma herself were underage, but she is not. In order to make my case, Emma has to perform perfectly in court. Perfectly. She cannot make a single mistake. She has to be strong enough to undergo the ugliness of a trial like this one, because this one will be ugly. If she cannot withstand the barrage in her own home, then she certainly won’t be able to in open court. I would be a laughingstock for bringing the case, and in the end it would all be for naught and then where would we be? No justice, no resolution. So do not tell me that I do not know my job. I had to ask those questions.
“Now, as I see it, there are several extenuating issues with this case, one of which may be difficult to navigate. Emma survived. It’s very difficult to justify a rape charge when the girl wasn’t killed. In court, survival is considered an indication of acquiescence.”
Mary shot out of her chair. “Are you out of your mind? No child would acquiesce to what happened.” She then listed, graphically, every detail of Emma’s injuries, down to the last stitch, using merciless language intended to unseat Hotaling with its precision. Taking a sheet of paper from Hotaling’s pile, William wrote down everything she said.
When Mary finished, Hotaling accepted the sheet of paper from William and added them to his haphazard sheaf of papers. “Unpalatable as they are, doctors, these physical injuries in and of themselves do not in fact prove rape. With a young girl like Emma, they prove only intercourse. Do they not? Her size? The comparative”—he cleared his throat—“ratio?”
“Dear God,” Mary said. While it was true that because of Emma’s size, she would have sustained the same injuries had the intercourse been consensual, that was completely beside the point. “You’ve completely missed the fact of her many bruises.”
“In court”—Hotaling shrugged—“rape is proved by evidence of concerted and prolonged physical resistance until the victim’s death. She was hit, apparently, but one can survive blows. In turn, she defended herself with a shovel, but he did not die. It would be better if he had—a fight to the death. As it is, under these circumstances, the defense could suggest that Emma was not raped. That she participated, then repented her immorality and staged an attempt at full resistance as a ruse, but in reality did not wish to kill her lover, and so spared him. The bruises do help us, but given your relationship to the O’Donnell girls, the defense will challenge your impartiality as an unbiased witness. You should have taken her to another doctor to be examined. But that can’t be helped now.”
“Emma was raped, Mr. Hotaling. Without a doubt.”
“That’s my job to prove, isn’t it? We will have to see how clever this young pup Jakob Van der Veer proves to be. Do you know him?”
“We do,” Mary said.
“Well, he’s out of his depth. He’s never tried a case before—except as a student at Harvard—where they lean on torts and constitutional law more than trial procedure, as I well know.”
“You went to Harvard?”
“I did. The other possibility is that Emma could be charged with assault, however you’ll be happy to know that I am the one responsible for filing such charges, and I will not be following through.”
“What?”
“This is a complicated situation.”
“It is as straightforward as they come.”
“It will be my job to make it seem so in court. You’ll be happy to know that as a result of this meeting, I have now decided to file charges against James Harley for kidnapping and rape.”
“But what of the other man? You heard Emma say—”
“With all due respect, Emma couldn’t even tell me what Harley or this so-called Other Man looks like. It’s a good thing she hit Harley, because at least we have his wound as identifier.”
“But—”
“There is no substantial evidence that another man even exists. This morning, before I came here, I interrogated Mr. Harley. He denies that there was anyone else, which is telling, because usually a defendant will do everything he can to deflect blame. And even though Officer Farrell shares your suspicions, I would be a fool to try to chase down a fictitious second man whom even the defendant swears doesn’t exist. And the only evidence Emma has offered is a rather murky description, and I have to tell you, a jury consists of men, and men will believe a man—especially a defendant who could save himself by naming someone else—over a brutalized girl any day. But no matter. I’ll craft my questions in such a way as to skirt her delusion that there was another man. Shouldn’t be hard.”
“Isn’t it possible that Harley is protecting someone?” William said.
“Would you have me pursue a ghost or make certain that Harley is incarcerated? At the very least, he kidnapped those girls. And imprisoned them, I think. I believe he raped Emma. I do, or I wouldn’t be attempting to convict him.” He began stuffing his case again with papers. “There is another thing,” he said, folding the flap of his case and setting it on his lap. “I’ve had reports that you, Dr. Stipp”—he nodded at Mary—“have been performing abortions at that clandestine clinic of yours.”
“I haven’t!” Mary said.
William stood. “Where did you hear such an outrageous thing?”
Hotaling shook his head. “I can’t say. But understand, doctors, that I take such allegations seriously.”
“Rumor,” Mary hissed. “Not allegation.”
“I had to ask. Now, Emma will be a witness. You must make certain that she’s ready.”
“Ready how?”
“Warn her of what might happen in the courtroom. It won’t be comfortable for her.”
“What if we refuse to put her through it? What if we drop the charges?”
“They are no longer yours to drop. Your chance to end this has passed. If you didn’t want her to have to testify, then you ought not to have reported the crime. Many women don’t. But you did. And now it’s my job to convict the perpetrator. Good day. I’ll find my own way out.”
—
“If this breaks Emma . . . ” Amelia said, leaving the statement unfinished.
They had put the girls to bed. Mary was staring off over the table into the back garden, lifting and replacing a spoon from the saucer of her teacup. William and Elizabeth were fingering the gold rim of their cups. Amelia was studying a berry stain on the white tablecloth. Vera had made a strawberry pie from tiny, early fruit that she was growing in a sunny corner of the garden.
The
trial was out of their hands, the train they could not stop.
Chapter Thirty-Four
The Court of Sessions tried the county’s criminal cases five times a year in the venerable City Hall courtroom that they shared with the supreme court, circuit court, and the Court of Oyer and Terminer, which occupied the chambers at other times, meaning that the earliest Harley’s trial could take place was during the Court of Sessions’ next residency beginning on the third Monday in June. The charges finally filed against him numbered three: kidnapping, imprisonment, and rape. These charges each carried a sentence of not less than ten years. If Harley were convicted on all counts, he could spend the rest of his life—or at least thirty years of it—in the Albany Penitentiary, which was situated by some mean twist of fate a quarter mile behind the Stipps’ home.
The ever voluble Horace Young blared all this information in yet another Extra Edition of the Argus that hit the streets at four o’clock in the afternoon on the second day of May, a Friday, three days after Hotaling’s first visit to the Stipps. The edition sold out within an hour, helped along by a featured quote from Lansing Hotaling, who, upon exiting the courthouse earlier that day, had declared that the city was after blood. All told, Horace Young’s articles had already earned the Argus twice its usual revenue for the year. But over the almost eight weeks since Emma and Claire O’Donnell’s reappearance, the twelve newspapers in Albany had joined in the scandal mongering. Never had the city’s publishing coffers been so full.
Incensed by the unending stream of articles, the Honorable Julius Thayer of the Court of Sessions pushed The People v. James Harley to the front of the docket. And so the day was set. On Monday, June 16, the grand jury would hear District Attorney Lansing Hotaling’s evidence. And if the jury handed down an indictment, the trial would begin immediately afterward.
On Tuesday, May 6, Jakob met with Lansing Hotaling at his office in City Hall to discuss the possibility of a plea bargain.
Hotaling received Jakob without getting up from his desk. His airless office occupied a room on the second floor of the white marble building and had a north-facing window that he declined to open. The district attorney leaned back in his seat and tented his hands. “Absolutely not. No plea bargain. Insufficient blood is let in plea bargains.”
Winter Sisters Page 23