by Mark M Bello
“Take it to her, Zack.”
***
Zack and Jennifer returned to the counsel table after discussing the offer. Zack passed Walsh on the way and shook his head. Walsh stopped. He stared at Jennifer in disbelief. He leaned over to Moloney, who glared at Jennifer Tracey.
The bailiff yelled, “All rise.” The back door opened, and Judge Perry entered the courtroom. The litigants and spectators rose and were seated when ordered. Perry asked about preliminary issues before bringing in the jury. There were none, and upon Perry’s order, the jury members filed in and were seated.
“You may proceed, Mr. Blake,” Perry permitted.
“Thank you, Your Honor. Plaintiff calls Kenneth Tracey.”
The bailiff opened the doors to the back of the courtroom and motioned to the other side. Through the doors walked Kenny Tracey in his new suit, a fine-looking young man. He made no eye contact with anyone. Contrary to Zack’s advice, he stared at the floor on his way to the witness box. The clerk swore him in, and he was seated as a witness.
“Your Honor, considering this witness’s age and the delicate subject matter involved in this case, I request permission to ask leading questions.”
“Mr. Walsh?” Perry inquired.
“Within reason, I have no objection, Your Honor,” Walsh assented, prompting another glare from Moloney. Walsh’s career as an attorney for the church was probably coming to a rough conclusion.
“Very well then, Mr. Blake. You have limited license to lead the witness. Don’t abuse it.”
“Thank you, Your Honor, and thank you, Mr. Walsh, for your kind consideration,” Zack nodded a gesture of thanks.
“Your name is Kenneth Tracey?”
“My friends call me Kenny.”
“Okay, Kenny, it is.”
Zack walked him through hard times, the death of his father, the arrival and subsequent departure of Father Bill, and his introduction to Father Gerry. He handled most of the questions with relative ease. It was time to discuss the subject matter at the heart of the case.
“When Father Gerry invited you on the camping trip, what was your reaction?”
“I didn’t want to go.”
“Why not?”
“I don’t know. I just didn’t.”
“Didn’t you like Father Gerry?”
“Up to that point?”
“Yes, Kenny, up to that point.”
“He was okay.”
“Then why didn’t you want to go?”
“Because I figured it would be like Father Bill.”
“What do you mean?”
Zack did not expect that answer and didn’t like the comparison of Father Gerry to a role model like Father Bill. Kenny knew what he was doing, though.
“I thought I’d get to like him, and he’d leave, like Father Bill. Everybody leaves, except mom.” Kenny’s eyes teared, and he glanced at his mother. She was proud of him and scared for him at the same time. Zack smiled. He loved that answer!
“That’s why you didn’t want to go on the camping trip?” Zack queried.
“Yes, sir.”
“What changed your mind?”
“Mom made us go. She thought it would do us good.” He recalled, distraught at the memory.
“Some bad things happened on that camping trip, didn’t they, Kenny?” Zack prodded.
“Yes, sir,” Kenny whispered. The judge, the jury, the gallery listened in rapt silence.
“Can you tell us, in your own words, what happened to you and what you witnessed happening to your brother on the camping trip?”
Kenny cringed. “Yes, sir. It’s pretty disgusting.”
Zack paused, allowing Kenny time to gather himself. “We can take it, Kenny. Take your time.”
“I-I can’t,” Kenny labored.
“Let me see if I can help,” Zack offered, gently tiptoeing through this crucial testimony. He approached the witness box, amiably, and leaned on its ledge.
“Did Father Gerry ask you or your brother to remove your clothing on the trip?”
“Y-yes, sir,” Kenny recounted, in torment.
The questions and answers continued, a deliberate, torturous process. Zack prodded Kenny to continue and Kenny, cumbrously but courageously, responded.
“Where did this happen?” Zack pressed, eying the jury.
“In his cabin.”
“What were you doing in his cabin?”
“He came into our cabin and announced that my brother and I won the contest.” Kenny winced at the memory.
“What contest?”
“I didn’t know. I-I didn’t remember any contest. But I remember being excited we won.”
“What happened next?”
“He told us we were special and got to sleep in the special cabin.” Kenny glared at the floor, tightening his resolve.
“And that special cabin turned out to be his?”
“Yes, sir.”
“What happened after he told you to remove your clothes?”
“We asked why.”
“And what did he say?”
‘‘The Lord loves clean bodies, and so do I.’ He made us take a shower before bed so we would be clean before the Lord.”
“Then what happened?”
“We went into the bathroom and took off our clothes. We got into the shower.” Kenny broke eye contact from Zack, the jury and the gallery, in anguish.
“What happened next?” Zack continued.
“All of a sudden, the shower door opened, and Father Gerry walked in with us, totally naked! I couldn’t believe it!” Kenny shook with fear and rage.
“Are you okay, son? Would you like to take a break?”
“N-no, sir. I’m okay,” he calmed.
“So the three of you took a shower together?”
Kenny glanced at the floor.
“Yes, sir.”
“Did Father Gerry do anything in the shower that made either of you uncomfortable?”
“Objection, Your Honor!” Walsh was on his feet.
“What’s your objection, Mr. Walsh?” Perry requested.
“The witness can only speak for himself, not his brother.”
Zachary realized Walsh was correct. What he was actually doing was trying to disrupt cadence and distract Kenny.
Zack would not have it. “I’ll rephrase, Your Honor. Did Father Gerry do anything to you in the shower to make you uncomfortable?”
“Yes, he did.” Kenny continued, unruffled by the interruption. “He s-soaped up his hand and started washing Jake’s and my private parts,” he recalled, flustered by the memory, being forced to relive and recount it. Kenny trembled, head down, and continued to stare at the floor. Zack glanced at Jennifer. Witnessing her son’s courageous, tormenting testimony was almost more than she could bear. I was a fool to force my boys into this nightmare.
Zack read her mind, shared her pain, but plodded on. “By private parts, do you mean your genital areas?” They entered the danger zone. While they rehearsed this testimony, Zack was apprehensive.
“Yes, sir.” Kenny’s eyes met Zack’s. Zack counseled the boy to do this. They were two good friends, alone, engaged in an everyday conversation. But there was nothing usual about this conversation.
“Did he do anything else to you in the shower?” Zack continued.
“No.”
“After the shower ended, what did Father Gerry do?”
“He insisted on toweling us off. He started rubbing my genitals with a towel—Jake’s too.” Kenny uttered. Zack wished he could stop, end the nightmare, this instant. But Kenny demanded the opportunity to tell his side, clear the air, and cleanse his soul.
“What did you guys do?”
“Nothing. We looked at each other, like ‘What’s going on here?’”
“Then what happened?”
“He gave us nightshirts and underpants, and we started to get ready for bed.”
“And did you finish putting these articles of clothing on?”
“No
, sir.”
“Why not?”
“Gerry grabbed our underpants. He told us we wouldn’t need them— he was going to perform a special ritual and we needed to be naked underneath our nightshirts.”
“What happened next?”
“He told us to get into bed.”
“Did you listen to him?”
“Yes, we were scared!” He began to shake and sob, still in control.
“Kenny, we can take a break. Please, tell Judge Perry, and he’ll give you a few minutes.”
“No, I’m okay,” he claimed. He wiped his eyes and cheeks with the sleeve of his suit jacket.
Zack walked over to the counsel table, and Jennifer handed him a tissue, which he carried to Kenny.
“Then what happened?” Zack resumed.
“He set up a small television with a built-in DVD and put on a DVD.”
“What kind of DVD?”
“A dirty one. Men doing it to other men.”
“Men doing what to other men?”
“You know . . .” He looked down at the floor. “Doing it, having sex. Gerry asked us if we ever did that.”
“What did you tell him?”
“We told him no.”
“Was that the truth?”
“Of course, it was.”
“Is that still the truth?”
Kenny paused. “No! No, it’s not!” he suddenly screamed. He trembled and tears rolled down his cheeks.
“Do you need to take a break, Kenny? I think you need a break.”
“N-no, I want to finish.” He wiped his tears with a tissue his mom gave him.
“Are you sure?”
“I’m sure.”
“Why isn’t what you told Gerry the truth anymore?” Kenny didn’t like the use of ‘Father’ in front ‘Gerry,’ so Zack stopped using it.
Kenny paused. He took two deep breaths, picked up his head, and stared straight into the eyes of his predator.
“Because he did it to us and he made us do it to him!”
Kenny was highly agitated. He grimaced and pointed at Gerry.
“I know this is difficult, Kenny, but what did he do to you?”
“He did those sex things, like in the movie he showed us. He hurt us!”
“What kinds of things, Kenny?”
Kenny began to shake and sob, fighting to be brave, but losing the battle.
“God doesn’t love me anymore . . .” Kenny blurted, disconsolate.
Zack was caught off guard.
“What? Why doesn’t God love you, Kenny?” He prodded.
“Because I did bad things, Jake too,” Kenny agonized, becoming hysterical. Jenny stood up in her place at the participants’ table and gestured to Zack to end Kenny’s suffering. Zack chose to ignore her.
“What bad things, Kenny? What did you and Jake do?”
“What Gerry made us do!”
“Then Gerry is the bad one, Kenny, not you.” Zack reasoned. Walsh jumped to his feet.
“Objection, Your Honor—calls for a legal conclusion. Behavior is for the jury to determine, not the plaintiff’s counsel.”
“Sustained. The jury will disregard Mr. Blake’s last remark,” ruled Judge Perry. He studied the boy on the stand.
Zack paused, desperately trying to give Kenny time to regain his composure. Kenny seemed to calm a tad, Zack continued, and Jennifer resumed her seat.
“Do you have trouble sleeping since this happened, Kenny?” Zack inquired.
“Y-yes, sir,” Kenny trembled.
“Why?”
“I have bad dreams.”
“What are the dreams about?”
“Gerry.” The rapid, rehearsed cadence seemed to have returned.
“What happens in the dreams?”
Kenny became distraught. “He does different things in each dream.”
“Rather than go through each dream, why don’t you tell us about the absolute worst one, okay?”
“Okay.”
They practiced this testimony several times. Kenny also discussed this particular nightmare with Dr. Rothenberg. However, these nightmares were quite terrifying. Zack hoped the boy could maintain a modicum of composure in front of the jury. This was a crucial moment in his testimony.
“Okay. Uh . . . Gerry and I are in a cabin. He’s dressed as a priest.”
“Black jacket, black shirt, black pants, white-banded collar?”
“Yes, sir.”
“What happens next?”
“He comes toward me. He . . .uh . . . p-pulls his clothes off with one rip, kinda like Superman, ya know?”
“Yes, Kenny, we know,” Zack smiled. “Please continue.”
Judge, jury, and the entire courtroom audience were hushed, immersed in each word, each sentence, affixed to the edges of their seats.
“He comes closer and closer,” Kenny sobbed. “He has no face. He becomes a monster. He keeps coming, closer and closer. He’s right on top of me,” Kenny screamed, now hysterical.
He looked to Jennifer, then to the sky, standing, shaking. “Mommy,” he pleaded, in agony, “make him stop! Make him stop!” he screamed.
Jennifer jumped from her seat. Kenny collapsed in a heap, trembling, slumped down in the witness stand. By the time Jennifer reached him, he had pushed through the door of the witness stand and fallen to the floor. He lay curled in a fetal position.
“No! No! Make him stop, Mommy!” He screamed, in delirious agony.
Jennifer stooped to the floor, sat and cradled her son in her arms.
“No more questions!” she shouted. “No more! This stops, now!”
Bailiff, remove the jury, immediately!” snapped Judge Perry, springing into action. The court officer quickly escorted the jury out of the courtroom.
Walsh jumped to his feet. “Your Honor, if we are not allowed to cross-examine, we move for this witness’s entire testimony to be stricken from the record, with the jury admonished to disregard.”
The objection was cruel and heartless but shrewd and calculated under these exigent circumstances.
“We’ll cross that bridge if and when we come to it,” Perry suggested. “For now, we are in recess. Let’s get this boy some help!”
Zachary and Rothenberg lifted Kenny off the witness stand and carried him out of the courtroom, through the private doors of the inner hallway, closely followed by a tearful, distraught Jennifer Tracey. The spectators watched in shocked silence. As the doors closed upon Kenny’s exit, the courtroom was a den of excitement. Reporters scattered out the door to call in or write stories. Others frantically pecked on laptops and tablets.
If Kenny were unable to continue, Judge Perry could instruct the jury to disregard the testimony as though it had not been given. Cross-examination was an absolute right of the defendant in any case. Even if stricken, the testimony was riveting, unlikely to be forgotten by the jury, regardless of any cautionary instruction. This terrifying moment for Kenny Tracey was a powerful example of the impact of child sexual abuse.
Out in the hallway, the bailiff led Rothenberg and Blake into an empty jury room. They laid Kenny, gently, on a conference table. Rothenberg asked the bailiff for a glass of water. Rothenberg cradled Kenny’s head and slowly put the glass of water to his lips. The water dribbled down his chin as he murmured and shook.
“He’s in shock. We need to get him to a hospital.” Rothenberg kneeled next to Jennifer, extending his support, the calm professional in a sea of panicked amateurs. “Call an ambulance,” he directed the bailiff.
“Right away, sir.” The bailiff appreciated the urgency.
Sirens could soon be heard, first in the distance, and then louder as the ambulance approached the courthouse. Paramedics arrived, and, with assistance from Rothenberg and Jennifer, carried Kenny to the ambulance and rushed him to Children’s Hospital, a few blocks away.
Blake remained behind to confer with Walsh and Perry in the judge’s chambers. Zack walked back into the courtroom where Walsh was engaged in conversation with Moloney.
Zack motioned for Walsh to join him in the private hallway, and they walked together into the judge’s office. Perry was standing at the outer secretarial office and, upon seeing the two lawyers, invited them into his chambers.
“How’s the boy?” Perry wondered, concerned.
“I don’t know, Your Honor. He’s in shock. Paramedics took him to Children’s,” Blake advised.
“Children’s is one of the best pediatric hospitals in the country. He’s in good hands.”
“Your Honor,” Walsh continued his previous argument. “It is obvious this boy will be unable to continue. Furthermore, I bet his mother will refuse to allow his little brother to testify, under the circumstances.”
“You can’t make rulings based on defense counsel’s speculation, Your Honor,” Blake pleaded, disgusted to be having the conversation. “We don’t know anything, yet. I would request a short continuance, at this time. Besides, if the boys are unable to testify, their depositions would be appropriate alternative testimony pursuant to the Michigan Court Rules.”
“That’s true. What about it, Mr. Walsh?” Perry tapped his fingers on the desk.
“I object to that, Your Honor. Until Jake Tracey takes the stand, and, perhaps, falters, we don’t know he can’t testify,” Walsh opined, suddenly changing his tune.
“You would prefer to place the young man in the same situation as his older brother? Even if Kenny can’t continue, and I exclude his testimony, that was quite troubling, don’t you think? Do you want the jury to witness such an event twice?”
“I don’t, Your Honor. That’s why I move for a mistrial, right now.”
“On what grounds, Mr. Walsh?” The judge grumbled.
Blake maintained silence.
“On the grounds Kenny Tracey’s testimony was heard by this jury. Without cross-examination, it is highly prejudicial to the defendant, even with a cautionary instruction to disregard.”
“If I instruct the jury to disregard and the depositions are read, there would be little, if any, prejudice, since the deposition testimony and the courtroom testimony was remarkably similar until the boy’s breakdown. Your cross is preserved, and we can do the same for the younger boy.”
“In my opinion, Your Honor, the harm is irreparable. The jury has heard too much. These jurors had their proverbial heartstrings tugged. We cannot repair the damage.”
“The same damage would have been done if the depositions were read. The testimony was almost identical.”
