by Mark M Bello
“For the ride home, the boys quietly got in the back seat. They usually fight over the front. They were silent the entire way home. I checked my rearview mirror. Kenny was glaring at Jake. He put his finger to his lips and ordered Jake silent. Jake had tears in his eyes. I couldn’t imagine what was going on, but I knew, right then, something was terribly wrong.” Jennifer winced at the memory.
“What happened next?” Zack probed.
“Not much. Their sullen behavior grew worse over time. They became more and more withdrawn. After two weeks or so, I decided to visit Father Gerry.”
“Why?”
“Why what?”
“Why Father Gerry as opposed to anyone else?”
“Because I was convinced whatever was wrong had something to do with the camping trip. I thought maybe one of the other kids had done something to embarrass the boys. I wanted to see if Gerry knew anything.”
“What happened next?”
“I went over to the church and found Gerry outside in the garden. I told him Jake had been silent and tearful and Kenny was broody and silent. When I asked what was wrong, Kenny exploded at me. I asked Gerry if he had any idea what it was all about.”
“What, if anything, did Gerry say?”
“He offered to come over and talk to the boys. I invited him to dinner. I didn’t know . . . how could I know?” Jennifer began to cry.
“Would you like to stop for a moment?” Zack inquired.
“No.” Jennifer composed herself. “I’m okay.”
“You’re sure?”
“I’m sure.”
“What happened next?”
“That monster came to my house for dinner,” she charged, disgusted at the memory. She glared at and pointed to Bartholomew.
“Objection, Your Honor. Please admonish the witness to refrain from personal attacks in front of this jury. While I am sure the jurors can imagine how Mrs. Tracey must feel, such outbursts are inappropriate,” Walsh argued.
“Your objection is sustained. The witness will answer the questions posed and will refrain from editorializing,” Perry ordered, addressing Jennifer.
“What, if anything, happened at dinner?” Zack continued. Inserting “if anything” into the middle of the question, on direct examination, prevented it from being ruled a leading question.
“I didn’t tell the boys Gerry was coming. I wanted it to be a surprise. I thought they liked him. The boys came downstairs, saw Gerry, and refused to come to dinner,” she recalled.
“What happened next?”
She paused, searching her memory. “Gerry offered to go up the boys’ room and talk to them. God help me. I sent their abuser into their bedroom, alone!” she screamed. “I didn’t know . . . I didn’t know . . . I didn’t know!” She buried her head in her hands, crying. Thank God, the boys aren’t in the courtroom.
“Your Honor, a brief recess to allow Mrs. Tracey to regain composure?” Blake urged.
“Mr. Walsh?” the judge inquired.
“No objection, Your Honor.”
“Very well, then. We’ll take a ten-minute recess. The jury is admonished not to discuss the case until it is presented for the verdict.”
Zachary escorted Jennifer out into the hallway.
“Are you all right?” he consoled.
Jennifer dried her eyes with a tissue.
“I’m fine. Some guilt feelings I thought I had buried surfaced at the wrong time.”
“Guilt feelings? What do you have to feel guilty about?”
“I sent the boys on that camping trip. They didn’t want to go. I invited that animal to dinner and sent him up to their room. Perhaps if I had been more attentive to the signals my boys were sending me, this might never have happened.”
“Jen, the only way this incident could have been avoided is if the church dumped Gerry long ago and sent him to a treatment center instead of to a parish. This is their fault, not yours, not the boys. Got it?”
“I got it. Aye, aye, Captain.” She saluted.
“Jen—I . . . I . . .”
Jennifer put her finger to his lips and silenced him.
“Not now, Zack. I can’t deal with anything but this trial and this moment. We can discuss anything, everything, in the future, but first, I need to get through the present.”
She gestured at the courtroom, which held some of the keys for her, her sons, and any relationship she and Zack might have.
Jennifer fell silent and looked up at Zack.
“They’ll be calling us back soon. I’m being as gentle as I can. Walsh will be much worse,” Zack warned.
“I know. I’m fine. I’ve got to deal with the guilt and pain. Lakes is my church. It’s been a rock for my family. It’s supposed to represent God,” Jennifer whimpered.
“And it still will, Jen. The parish isn’t the culprit. People are the culprits. When people in power change their policies, the institution will be fine. But for God sakes, it certainly isn’t your fault.”
“You’re right, of course. Thank you,” she sighed.
“You’re welcome. You ready?”
“Yes, let’s go.”
They returned to the courtroom, where Jennifer maintained her composure throughout direct examination. Zack took her through Gerry’s dinner visit and the boys’ conversation she overheard after he left. They discussed Father Jon’s visit, the offer of treatment with Dr. Rothenberg, and the visits to Rothenberg capped by the stunning revelation that Gerry molested the boys. Jennifer described the absolute shock she experienced when Dr. Rothenberg first told her and the disgust she felt after being advised of the extent of the priest’s conduct.
She recounted Rothenberg’s conversation outside the clinic, and her total disbelief in discovering the Coalition was monitoring her house, the doctor’s office, and her church. She described the meeting at Little Daddy’s with Rothenberg and Costigan and their pact to turn the tables on the Coalition. Finally, she explained the boys’ ongoing treatment and their progress.
“They aren’t loving anymore. They’re alternatively withdrawn and quiet, then, explosive or tearful. They don’t kiss me goodnight. They were enthusiastic altar boys with Father Bill and Father Jon and were never discipline problems. After Father Gerry, their grades dropped. They display flashes of anger and argue over petty things. They have drastic mood swings and stay in their room for long stretches. They rarely play sports and have virtually abandoned their friends. They’ve lost confidence and self-esteem. They were happy guys, but not since this happened.”
“Have you talked to the boys?”
“Oh, yes, when they’ll let me,” she commiserated.
“What do you talk about?”
“I tell them what happened wasn’t their fault. I assure the boys they were victims, not criminals. For some reason, they feel guilty. I tell them I’ll protect them, and nothing like this will ever happen again!”
“When you look over there, at Father Gerry Bartholomew, what goes through your mind?”
“Anger and disgust, pity, then anger again. I can’t get the images out of my mind,” she trembled.
“What images, Mrs. Tracey?”
Jennifer paused, took a deep breath, and glared at Gerry. The jury was on the edge of their seats in anticipation.
“God help me,” she cried. “Gross, detailed images. Use your imagination! I can’t clear these disgusting images from my mind! They are haunting me!”
“No more questions,” Zachary snapped, turning the witness over to a stunned Walsh.
“You may cross-examine, Mr. Walsh,” Judge Perry stated.
“Th-thank you, Your Honor, may I have a moment?” He needed to recover from the end of direct testimony.
“Take your time, Mr. Walsh,” Perry permitted.
After a few moments, Walsh took a labored breath and began his cross.
“Mrs. Tracey, I’m sure you understand it’s my responsibility to ask you some questions.”
Jennifer nodded.
“I’ll
be as gentle as I can, but I have an obligation to my client, understood?”
Jennifer nodded again.
“Y-you’ve never actually s-seen F-father Bartholomew abuse anyone, h-have you?” Walsh battled to regain composure.
“No, sir, I haven’t, but the images are as real as they can possibly be.”
“You don’t know whether Father Gerry actually did the things you imagine, do you?”
“I know what my kids told me. Those are the images I see.”
“You are a widow, are you not?”
“Yes, I am.”
“And your husband died about four years ago, correct?”
“Just about.”
“And after that, Father Bill became a father figure and he was transferred, correct?”
“Yes.”
“Isn’t it true, Mrs. Tracey, your boys took the death of their father very hard?”
“Yes.”
“And they took Father Bill’s transfer almost as hard, didn’t they?”
As far as Zack could tell, Walsh was recovering nicely. He made an interesting point. Rather than attack Jennifer’s story, he attacked the source of the boys’ depression. Zack would have to counter. Even if the boys were mildly depressed before the camping trip, Zack decided, Bartholomew’s assault made everything much worse.
He could make this a classic “eggshell skull” case. The argument was this: If your client has an egg for a head and the defendant’s negligence causes it to crack, the defense can’t blame the plaintiff’s soft head. This theory is used to combat a defendant’s use of a plaintiff’s pre-existing condition as a mitigating factor in a personal injury case. In the Tracey case, “mild” depression becomes a far more severe diagnosis of major depression and post-traumatic stress disorder because of Bartholomew’s sexual misconduct.
“Yes, I suppose they did,” she conceded.
“Very well, then, after Father Bill left, Father Gerry replaced him, correct?”
“Correct.”
“The boys never liked Gerry, from day one, did they?”
“No, they never had time to warm up to him.”
Walsh was walking into a trap. He couldn’t avoid the follow-up question. The rules of witness interrogation advise lawyers never to ask a question they don’t know the answer. On cross-examination, lawyers should ask only questions that can be answered “yes” or “no.” Witnesses should not be permitted to editorialize. Walsh’s next question breached both rules, and he was severely punished for his lapse in judgment.
“Why is that?”
“Well . . .” Zachary and Jennifer rehearsed for this moment. “It took Father Bill about two months to gain the kids’ confidence. He treated them special when he discovered they’d lost their father. The first breakthrough in their relationship was when Bill took the boys on an overnight trip. They came back happy, telling stories, laughing, and telling me what a great guy Father Bill was. The rest was history. Two months after Gerry arrived, he took the boys on an overnight . . .”
“Your Honor . . .” Walsh tried to stop her, suddenly aware where she was going.
“You asked the question, Mr. Walsh. The witness may finish her answer,” Perry ruled, suppressing a smirk. “Proceed, Mrs. Tracey.”
“As I indicated, he took the boys on an overnight and sexually molested them! No, Mr. Walsh, they didn’t like him. But they had a damn good reason, wouldn’t you agree?” She grumbled.
Jennifer glared at Walsh, then Gerry, and then back to Walsh, as she and Zack had rehearsed.
Walsh paused and uttered, “no more questions.” He sat down.
The gallery was buzzing. Moloney leaned over and began a heated conversation with Walsh. Zachary and Jennifer made eye contact and shared a quick smile. The judge pounded his gavel for order.
“Do you have redirect, Mr. Blake?”
“No, Your Honor, I’m quite satisfied.”
“Call your next witness, please.” Perry suppressed a grin.
“Your Honor, due to the lateness of the hour, I would respectfully request we adjourn until tomorrow,” Zack suggested.
Zack wished to score points with the jury on two counts. Jurors were surely tired, and he wanted to send them home with Jenny’s testimony as their last memory.
“Any objections, Mr. Walsh?” Perry requested.
Walsh turned from Moloney.
“None, Your Honor,” he concluded, which prompted another lecture from the Voice.
“Very well, then. Court is adjourned until nine o’clock tomorrow morning.”
The courtroom erupted in conversation after the judge and the jury withdrew. The press grabbed tablets and cellphones or typed laboriously on laptop computers. Walsh and Moloney were arguing. Blake, Rothenberg, and Jennifer stepped into the hallway and engaged in a group hug.
“That was amazing!” Rothenberg exclaimed.
“It worked like a charm,” Zack beamed.
“It wasn’t me, Zack. It was you!” Jennifer praised.
“How did you know he’d compare relationships with Father Bill and Jim?”
“Because he needed an alternate source for the boys’ troubles, something for the jury to consider. Jim and Father Bill were obvious choices. Walsh helped by arguing the boys never gave Gerry a chance.”
“It was perfect, Zack,” Rothenberg agreed.
“How do you think it played to an outsider?” Zack wondered.
“All I can tell you is the jury ate it up. Jurors were on the edge of their chairs,” Rothenberg opined.
“Do you really think so?” Jennifer challenged.
“Absolutely,” responded Rothenberg. “I’ve been in court countless times, and I have never witnessed anything like that.”
“We still have a lot of work to do. We have your testimony, Doc, and the boys to prepare for. Hopefully, the caller will show up or the Berea families, and I need to be ready.” Zack brought them back to reality.
“You’re right, of course,” Rothenberg admitted. “But what a moment in sports history!” He declared.
“Hopefully the first of many,” Zack prayed.
Chapter Fifty-Five
Judges in all jurisdictions have one thing in common. They always ask the litigants and jurors to arrive at eight-thirty or nine in the morning, while they always arrive at nine-thirty or ten. Before reconvening, various emergencies and criminal matters must be disposed of.
Tracey v. Bartholomew was not a special case to Judge Perry or his staff. Perry completed the morning’s business at ten-thirty. When the trial resumed, Kenny Tracey would take the stand. He sat in the hallway, dressed in a new gray suit his mom bought for the trial. He was nervous and very uncomfortable. Zack sat next to him on a wooden bench, going over his proposed testimony.
Jennifer watched the two of them from across the hall, a short distance away. She wondered whether she was doing the right thing. Her boys were on public display, forced to discuss things too repulsive for most adults to handle. How would two young boys handle this moment? Would the experience set their treatment progress back? Would they be able to articulate their feelings to a packed courthouse? These questions would be answered soon, but she found no comfort in the fact it would soon be over.
She was terrified for them and herself. If anything went wrong and they were harmed further, it would be her fault. The boys decided to pursue litigation. She insisted on leaving the final decision to them. However, Jennifer was the one who decided there would be no private deal, no confidential settlement. The boys weren’t presented with the opportunity to settle or refuse to give testimony. Jennifer decided all of that for them. For the good of all children, she, alone, decided to use this case as a rallying cry for abuse victims. Gerry used and abused her kids. Was she now doing the same thing? That possibility was haunting her. She was having second thoughts.
I could settle this right now. The boys would be set for life and receive all the treatment they need. Why am I putting them through this?
The bailiff
came through the courtroom doors to announce Judge Perry was ready to proceed. Jennifer was startled out of her thoughts. Blake, Kenny, Rothenberg, and Jennifer stood and entered the courtroom, closely followed by Walsh and Moloney.
Walsh tapped Zack on the shoulder and motioned him to join him in the inner hallway before the judge and jury arrived. Zack followed him into the hall.
“Before the boys are forced to testify, I’ve been authorized to increase my offer,” advised Walsh.
“What’s the increase?”
“We’ll pay ten million dollars, plus lifetime treatment,”
Zack needed to sit, but there were no chairs in the hallway.
“Any conditions?” he managed.
“Nondisclosure of settlement terms, no admission of liability,” Walsh continued.
“What about Gerry?”
“What about him?”
“Jennifer wants him defrocked, and she wants a guarantee he’ll never receive a parish assignment again.”
“They won’t defrock him, Zack. I don’t know why, but they won’t,” he sputtered, frustrated. He glanced up and down the hallway as if he was about to say something he shouldn’t. “As for the parish assignment, he’ll never be assigned to a parish. It’s not possible, after the publicity generated by this trial.”
“Will they guarantee that in writing?”
Walsh looked down at the floor. “I don’t think so.”
“For Christ’s sake, Craig,” Zack snarled. “Why the hell not?”
“I don’t know. Arrogance? They won’t be told what to do. They’ll do the right thing, but not because someone orders them to. No one can dictate how they run their church except their brethren and God.”
“That’s the biggest crock of shit I’ve ever heard.”
“Maybe so, but it is their position. Please take it to Mrs. Tracey.”
“She won’t accept. You know that, don’t you?”
