“As soon as Brenda mentioned Sally, Clara just clammed up,” Michele said. “Alice Umbach had scared her out of her wits. Whenever Brenda mentioned Sally, Clara just climbed on my lap and wouldn’t talk.
“Then Brenda told me I had to be careful about leaving James around Clara,” Michele said. “And I told her, ‘I’ve been married to this man for seven years. He’s the most honest man I’ve ever met. With my history with my grandfather, I would pick up on something like that. He’s never given me the slightest hint of ever being that way. He’s a wonderful father.’ And she said that for my protection I had to make sure Clara is never alone with James. She said, ‘You have to think the worst.’”
Michele was near tears. “Clara has always been a shy child,” she said. “She never has warmed up to strangers easily. And they’re misinterpreting her personality and using it against us.
“I feel like this whole thing is to trap us,” she said. “It’s like they’re trying to trap us into admitting that something happened that didn’t, like they’re trying to break up our family.”
Michele had told Ms. Keller that her gynecologist had examined Clara a few days earlier and had found no evidence of sexual abuse. “That doesn’t mean anything,” Ms. Keller had replied. “He could have partial penetration. He could put his tongue on her. He could fondle her.”
“Nothing we do means anything,” James said. “I’m getting tired of being the target. I feel like turrning around and going on the offensive. I’m tired of just sitting around waiting for things to happen to me.”
While James and Michele were worrying about Clara’s refusal to talk to Ms. Keller, Alice Umbach’s attempt to videotape Sally’s accusation was failing, too. “For some reason, the minute that we walked into the videotape room, Sally was terrified,” her report says. “She did not like the dolls, she did not like the room, but I went ahead and convinced her to stay. As I started the tape…when we started about the abuse, she all of a sudden got up, cried, asked for her mother and literally ran out of the room.”
They returned to Ms. Umbach’s office, and, with Stephanie present, Sally told of being touched by a man and told of a man masturbating in her presence. She said Clara also was present, and that the man was James. Ms. Umbach didn’t insist on talking with the child alone, as she had with Clara.
Carol Gregston, a detective with the Youth and Family Crime Division of the Dallas Police Department, joined them, and the child repeated her accusation for her.
“Carol seemed quite reluctant to file on this case, saying Sally is a very poor witness,” Ms. Umbach’s report says. “I told Carol that I felt there was sufficient evidence to at least go ahead and refer it to the grand jury. Stephanie felt the same way. I told Carol that I did not want to wait to see if there was any physical evidence….
“Carol then started talking about waiting for a couple of years before they filed the case, waiting for the child to be older so she could testify better. Stephanie stated that she did not want her child to have to go through this in a couple of years. I also reminded Carol that we were going to have the child in play therapy and that she would be a lot better witness by the time the case came up. The reason Carol had a problem with this was because she felt the witness had to be led a little bit. She could not basically just say, ‘What has happened between you and James and Clara?’”
In late July, Dr. Powitzky asked James to return to his office for a consultation. He allowed James to tape-record their conversation. Dr. Powitzky confronted him with the stories that Sally had told to Ms. Umbach and that Ms. Umbach had passed on to Ms. Keller.
James again denied that he had ever touched Sally, except when he had to clean her up after she dirtied her pants while playing at his house—an accident that had happened frequently during the months Stephanie was potty-training her.
“One time I had to put her in the bathtub, she was so bad,” James said. “Once I hosed her off with a garden hose outside. I had to wash her clothes and let her have some of Clara’s.”
As he was concluding the consultation, Dr. Powitzky said: “It’s going to be an uphill fight for you. Apparently she’s a very verbal little girl…. I’ll just be real blunt with you. Sometimes we’ve worked with guys, I never would have thought they had done anything, and then finally they’ll just come out and say, ‘Yeah, I didn’t do that, but I did do this….’
“If that were your case, which you’re saying it’s not, I just wanted to give you a chance, because obviously your wife and your daughter are going to go through a lot more rough time. If you did do something and you’re denying it, it’s going to be rougher on them than if you did do something and you admit that you did something.”
James, barely containing his anger, replied: “I have never had a sexual thought about a child in my entire life. Period.”
“Got it,” Dr. Powitzky said.
By Aug. 10, seven weeks into his ordeal, James thought it was about to end. A physician finally had examined Sally and found no physical evidence of sexual abuse. Once the police got around to interviewing him, James thought, the case would be dropped. “When the police get involved, they’re not going to look just at me,” he said, “they’re going to look at all sides of it. There’s no evidence against me except the statement of this little kid. And my lawyer thinks they’ll look at that and say, ‘Is this all there is? We’re not going to make fools of ourselves for something like this.’”
James and Michele had begun to plan a vacation with her family in Michigan in September. “After my interview with the police, I feel like we can go without looking like we’re trying to run away,” James said.
But the police didn’t show up. Not long after her meeting on June 28 with Alice Umbach and Stephanie and Sally, Detective Gregston had gone on vacation, and when she returned, she was assigned temporarily to other duty. She never went to James’ house, and never interviewed Clara, who—according to Stephanie and Sally—was a witness to a felony and also a victim. She never questioned anyone in James’ neighborhood. Her entire investigation consisted of three conversations with Sally.
She told me later that she had been hampered by the fact that Clara was seeing Brenda Keller instead of a DHS psychologist, and by the fact that James had a lawyer. “He had a right to do what he did,” Detective Gregston said, “to contact an attorney the moment he was notified that an investigation was under way.”
Meanwhile, Detective Gregston and her sergeant were getting phone calls from Stephanie and Alice Umbach, pressuring them to take the case to the grand jury. Neither the detective’s reluctance nor the physician’s failure to find evidence that Sally had been molested had shaken their resolve. “Although Stephanie seemed very disappointed (with the doctor’s report), I told her that I still felt Detective Gregston would go ahead and file against James…for indecency with a child,” Ms. Umbach’s report said.
Two months after James was accused, Detective Gregston finally called him and asked him to come to police headquarters for questioning. James referred her to his attorney. The detective then called Gary Noble and asked him to bring his client in for a polygraph.
“He has already taken a polygraph,” Mr. Noble replied. “It clearly shows he’s telling the truth.”
Detective Gregston said she still wanted to talk to James, “to get his side of it.”
“I can tell you his side of it,” Mr. Noble said. “He didn’t do it.”
Mr. Noble finally agreed to bring James in, and he made an appointment. Later, he changed his mind. “We had nothing to say to her,” he said, “except that James didn’t do it.” He decided not to keep the appointment, but he failed to inform Detective Gregston. And, Detective Gregston said later, he didn’t return her phone calls. So she went before the Dallas County grand jury and recommended that James be indicted for aggravated sexual assault.
He was.
About 11 a.m. on Sept. 7 James was working in his studio. He heard a whistle and looked out the window. A uniformed
police officer was standing in his back yard. “Are you the owner of this house?” the officer asked.
“Yeah,” James said.
“Come out front and talk to me a minute.”
James walked through his house and opened the front door. Four policemen were standing on the front porch. One of them called James by his name.
“Yes?”
“You have been indicted by the grand jury. We have a warrant for your arrest.”
The officers handcuffed and frisked James and put him into the back seat of a police car. As they were about to haul him away, Michele and a friend arrived home from a shopping trip.
“Stephanie had taken off from work and had come home and set up a camera on a tripod and was videotaping James’ arrest from her front door,” Michele told me a few minutes later. She was crying. “This just drives me crazy,” she said. “It’s so humiliating. The whole thing is so disgusting. I’m just glad Clara is in school and wasn’t here to see it. She wouldn’t have been able to understand. She has been affected by this much too much already.”
James was released 13 hours later on $10,000 bond.
The indictment reread at the arraignment in Judge Thomas Thorpe’s 203rd District Court on Sept. 20 said that “on or about the first day of November 1988,” James “did then and there knowingly and intentionally cause the penetration of the sexual organ, namely the vagina of Sally, a child, by the finger of said defendant, and, at the time of this offense, the said child was younger than 14 years of age.”
“How do you plead? Guilty or not guilty?” Judge Thorpe asked.
“Not guilty,” James replied.
His trial was scheduled to begin Sept. 27, but the judge, Mr. Noble and Assistant District Attorney Faith Johnson, who was prosecuting the case, agreed to postpone it until Oct. 20.
After the hearing, Michele told me she was worried about her father, who had loaned them the money to hire Gary Noble. “He’s taking this hard,” she said. “He’s very upset and very angry. His heart has been giving him a lot of trouble.”
A few days later, Michele received a call that her father had had a heart attack at his home in Michigan. Later that same day, James’ stepsister called to tell him that his father, who had been ill for a long time, had died in North Carolina.
As James was returning home from his father’s funeral, he met Michele and the children at D/FW Airport, where they were getting on a plane to Michigan to visit Michele’s father.
On Oct. 17, when Michele had been gone about two weeks, James’ bail bondsman called him. The man was angry. “You missed your trial date,” he said. “Now they’ve forfeited your bond. They’ll issue a warrant for your arrest.”
Terrified, James tried to call Gary Noble. He was in the midst of a trial in Denton.
Later that day, Mr. Noble learned that a slip of paper stating that James’ trial date had been changed from Sept. 27 to Oct. 20 either hadn’t been placed in the court’s file folder as it should have been, or it had been lost. Neither the defense nor the prosecution showed up in Judge Thorpe’s courtroom on Sept. 27, but as far as the judge was concerned, James was a fugitive from justice.
Mr. Noble advised his client to stay away from his home, in case an arrest warrant had been issued and the police were looking for him. James spent an uneasy night at my house.
When the snafu was straightened out, he went before Judge Thorpe again. The judge was still fuming. “I guess you realize that if you are convicted of this you could get life in prison as a maximum punishment,” he said.
“Yes, sir,” James said.
“How do you plead to this, guilty or…”
“Not guilty!” James shouted.
But James still wasn’t close to his day in court. Faith Johnson had decided to run for district judge on the Republican ticket and had passed the case on to another prosecutor, Lynn Carsunis. Ms. Carsunis asked the judge to postpone the trial again so that Sally could have minor surgery for a recurring throat problem. Judge Thorpe, whose office was in chaos anyway because Dallas County’s criminal courts were in the midst of a move from the courthouse to the new Frank Crowley Courts Building, reset the trial for Dec. 11.
Michele and James began thinking everything would be resolved by Christmas.
Then, in late November, the judge decided to hold a hearing to determine Sally’s competency as a witness. He set the hearing for Jan. 12 and reset the trial for Jan. 29, 1990.
In January, however, Sally underwent throat surgery again. The competency hearing wouldn’t be held until March 28.
“Meanwhile, Sally is getting older and older, which makes her a better witness,” Mr. Noble said. “She was two years old when the abuse allegedly happened, and she’ll be almost four when she testifies. I’m convinced she’s being coached. I’m sure they’re rehearsing her very thoroughly.”
James’ anger was collapsing into resignation. “What happens happens,” he said. “There’s nothing I can do about it. It’s the way the system works. I’m sure the DA’s office thinks, ‘Well, let’s see if he’ll crack. Let’s see if he’ll run out of money.’ But I’m a patient man.”
When the day for the competency hearing finally rolled around, Lynn Carsunis was no longer prosecuting the case. She had resigned to become the director of the proposed Dallas Children’s Advocacy Center and had been replaced by Patrick Kirlin.
As the hearing began, the judge came down from the bench and sat near the table where Sally sat with her mother. Both of Sally’s grandfathers and one of her grandmothers were there, but her father, Fred, wasn’t.
“Let me give her an oath…” the judge said. “Sally, I’m the judge, and I’m going to listen to what you have to say. But I want you to make me a promise. Will you?”
Sally nodded.
“You know what I want you to promise me?”
“What?”
“That you will tell me the truth, just exactly what happened.”
“OK,” Sally said.
“Will you promise me that?”
Sally nodded.
Mr. Kirlin asked her questions about herself, her parents and her grandparents. He asked her to name her favorite colors, to count to 10, to tell him about her trip to Disneyland. “If I told you that there was a big elephant sitting in that chair,” he said, “would I be telling you the truth or would I be telling you a lie?”
“Lie,” she said.
“Why is that?”
“Because elephants don’t sit in chairs.”
“Is there one over there right now?”
“No.”
“OK. Good girl.”
Gary Noble then asked Sally about her day care center, her favorite story, her favorite food, about toys, about Christmas gifts: “What did you get?”
“Butterflies.”
“Butterflies? Real butterflies?”
“Yeah.”
“Boy. How many?”
Sally held up her hand as if counting on her fingers.
“Five butterflies?” Mr. Noble said. “Six butterflies? Ten butterflies?”
“Yeah.”
Then suddenly Mr. Noble asked, “Did James do anything to you?”
“No,” Sally replied.
“What are you going to do after you get out of here?” Mr. Noble asked.
“I’m going to get some chips,” Sally said.
Mr. Noble asked her several questions about potato chips, then said: “Are you afraid of James?”
“Yes,” she replied.
“You are? Did James do something to you?”
“No.”
He asked her about James and Michele, and about Clara. “They also have a little boy, don’t they?” he said.
“No.”
“They don’t?”
“No.”
“A little younger boy?”
“No.”
He asked her about Mickey Mouse and Pluto and Daffy Duck and Bugs Bunny. Then he asked: “Did Clara do something to you?”
“No,
” Sally said.
“Did Stephanie do something to you?”
“No.”
“Did Michele do something to you?”
“No.”
“Did somebody do something to you?”
Sally looked at her mother. “Yes,” she said.
“Who?”
“James.”
“What did he do?”
“Don’t know.”
“You don’t?” Mr Noble said. “Do you mean by that you don’t know or you don’t want to tell?”
“Don’t want to tell.”
“When James did something to you,” he said, “who was there?”
“No one,” Sally replied.
If Judge Thorpe should decide Sally was incompetent to testify against James, the DA’s case would collapse and there would be no trial. But by April 5, he still hadn’t issued a ruling.
“I’m drained of all my energy,” James said. “All I’ve been doing is taking naps and sitting by the phone.”
Later that day, Michele called me. “We’re going to trial,” she said. “The judge ruled her competent. Can you believe this? Is this real?”
James, on the other hand, suddenly was exhilarated. “I had almost made up my mind to insist on a trial if it had been dropped,” he said. “I don’t know if I actually would have gone through with it or not, but I like to think I might have. I’m so angry that I want to fight. I want to get into an arena where at last the truth will come out and I can have my say.”
Judge Thorpe set the trial for April 24. A few days before it was to begin, Mr. Noble learned that Fred wasn’t planning to attend, that he would be out of town on business. Mr. Noble subpoenaed him. Darryl Hughes, the private investigator, took the subpoena to Fred’s house and knocked on the door.
Fred answered. Sally was with him. Mr. Hughes handed Fred the subpoena. “Hello, Sally,” he said.
Sally smiled. “Hi.”
“How do you know my daughter?” Fred asked.
“I’m a detective,” Mr. Hughes said.
The Bride Wore Crimson and Other Stories Page 13