by Jodi Picoult
As defense attorneys go, Fisher Carrington is quite respectful. He doesn’t reduce children to jelly on their high stools in the witness box; he doesn’t try to disorient them. He acts like a grandfather who will give them lollipops if they tell the truth. In all but one case we both tried, he managed to have the child declared incompetent to stand trial, and the perp walked out free. In the other case, I convicted his client.
The defendant spent three years in jail.
The victim spent seven years in therapy.
I look up at Peter. “Best-case scenario,” I challenge.
“Huh?”
“Yeah,” I say softly. “That’s my point.”
• • •
When Rachel was five, her parents got a divorce—the kind that involved bitter mudslinging, hidden bank accounts, and cans of paint splashed on the driveway at midnight. A week later, Rachel told her mother that her daddy used to stick his finger inside her vagina.
She has told me that one time, she was wearing a Little Mermaid nightgown and eating Froot Loops at the kitchen table. The second time, she was wearing a pink Cinderella nightgown and watching a Franklin video in her parents’ bedroom. Rachel’s mother, Miriam, has verified that her daughter had a Little Mermaid nightgown, and a Cinderella nightgown, the summer she was three years old. She remembers borrowing the Franklin video from her sister-in-law. Back then, she and her husband were still living together. Back then, there were times she left her husband alone with their little girl.
There are a lot of people who’d wonder how on earth a five-year-old can remember what happened to her when she was three. God, Nathaniel can’t even tell me what he did yesterday. But then, they have not heard Rachel tell the same story over and over. They have not talked to psychiatrists, who say that a traumatic event might stick like a thorn in the throat of a child. They do not see, as I do, that since her father has moved out, Rachel has blossomed. And even without all that—how can I overlook the word of any child? What if the one I choose to discount is one who has been truly hurt?
Today, Rachel sits on my swivel chair in my office, twirling in circles. Her braids reach the tops of her shoulders, and her legs are as skinny as matchsticks. This is not the optimal place to hold a quiet interview, but then again, my office never is. There are cops running in and out, and the secretary I share with the other district attorneys chooses this moment, of course, to put a file on my desk. “Is it going to take long?” Miriam asks, her eyes never veering from her daughter.
“I hope not,” I tell her, and then greet Rachel’s grandmother, who will be in the gallery for emotional support during the hearing. Because she is a witness herself, Miriam isn’t allowed to be there. Yet another catch-22: The child on the stand, in most cases, doesn’t even have the security of a mother close by.
“Is this really necessary?” Miriam asks for the hundredth time.
“Yes.” I say it flatly, staring her in the eye. “Your ex-husband has rejected our offer of a plea. That means Rachel’s testimony is the only thing I’ve got to prove it even happened.” Kneeling in front of Rachel, I stop the motion of the swivel chair. “You know what?” I confess. “Sometimes, when my door’s closed, I spin around too.”
Rachel folds her arms around a stuffed animal. “Do you get dizzy?”
“No. I pretend I’m flying.”
The door opens. Patrick, my oldest friend, sticks his head inside. He’s wearing full dress blues, instead of his usual detective’s street clothes. “Hey, Nina—did you hear that the post office had to recall its series of Famous Defense Attorney stamps? People didn’t know which side to spit on.”
“Detective Ducharme,” I say pointedly. “I’m a little busy now.”
He blushes; it sets off his eyes. As kids, I used to tease him about those. I convinced him once, when we were about Rachel’s age, that his were blue because there was no brain in his skull, just empty space and clouds. “Sorry—I didn’t realize.” He has captivated all the women in the room just like that; if he wanted to, he could suggest they do jumping jacks and they’d probably begin calisthenics right away. What makes Patrick Patrick is that he doesn’t want to; he never has.
“Ms. Frost,” he says formally, “are we still on for our meeting this afternoon?”
Our meeting is a long-standing weekly luncheon date at a hole-in-the-wall bar and grill in Sanford.
“We are.” I’m dying to know why Patrick’s dressed to the nines; what’s brought him to the superior court—as a detective in Biddeford, his stomping grounds are more often the district courthouse. But all this will have to wait. I hear the door close behind Patrick as I turn back to Rachel. “I see you brought a friend with you today. You know, I think you’re the first kid who’s ever brought in a hippo to show to Judge McAvoy.”
“Her name is Louisa.”
“I like that. I like your hairdo, too.”
“I got to have pancakes this morning,” Rachel says.
That earns a nod of approval for Miriam; it’s crucial that Rachel’s eaten a good breakfast. “It’s ten o’clock. We’d better go.”
There are tears in Miriam’s eyes as she bends down to Rachel’s height. “This is the part where Mommy has to wait outside,” she says, and she’s trying hard not to cry, but it’s there in her voice, in the way the sounds are too round, overstuffed with pain.
When Nathaniel was two and broke his arm, I stood in the ER as the bones were set and put in their cast. He was brave—so brave, not crying out, not once—but his free hand held onto mine so tightly that his fingernails left little half-moons in my palm. The whole time I was thinking that I would gladly break my arm, my heart, myself, if it meant my son wouldn’t have to hurt like this.
Rachel is one of the easier ones; she is nervous but not a wreck. Miriam is doing the right thing. I will make this as painless as possible for both of them.
“Mommy,” Rachel says, the reality hitting like a tropical storm. Her hippo falls to the floor and there is no other way to describe it: She tries to crawl inside her mother’s skin.
I walk out of my office and close my door, because I have a job to do.
• • •
“Mr. Carrington,” the judge asks, “why are we putting a five-year-old on the stand here? Isn’t there any way to resolve this case?”
Fisher crosses his legs and frowns a little. He has this down to an art. “Your Honor, the last thing I want is for this case to proceed.”
I’ll bet, I think.
“But my client cannot accept the state’s offer. From the first day he set foot in my office, he’s denied these events. Moreover, the state has no physical evidence and no witnesses . . . . All Ms. Frost has, in fact, is a child with a mother who’s hell-bent on destroying her estranged husband.”
“We don’t care if he goes to jail at this point, Your Honor,” I interrupt. “We just want him to give up custody and visitation.”
“My client is Rachel’s biological father. He understands that the child may have been poisoned against him, but he isn’t willing to give up his parental rights to a daughter he loves and cherishes.”
Yadda yadda yadda. I’m not even listening. I don’t have to; Fisher grandstanded to me on the phone when he called to reject my last plea bargain. “All right,” Judge McAvoy sighs. “Let’s get her up there.”
The court is empty, except for me, Rachel, her grandmother, the judge, Fisher, and the defendant. Rachel sits by her grandmother, twirling her stuffed hippopotamus’s tail. I lead her to the witness box, but when she sits down, she cannot see over the railing.
Judge McAvoy turns to his clerk. “Roger, why don’t you run into my chambers and see if there’s a stool for Miss Rachel.”
It takes a few more minutes of adjustments. “Hi, Rachel. How are you?” I begin.
“I’m okay,” she says, in the smallest voice.
“May I approach the witness, Your Honor?” Closer up, I won’t be as intimidating. I keep smiling so hard my jaw begins to hurt
. “Can you tell me your whole name, Rachel?”
“Rachel Elizabeth Marx.”
“How old are you?”
“Five.” She holds up the fingers to show me proof.
“Did you have a party on your birthday?”
“Yes.” Rachel hesitates, then adds, “A princess one.”
“I bet it was fun. Did you get any presents?”
“Uh-huh. I got the Swimming Barbie. She does the backstroke.”
“Who do you live with, Rachel?”
“My mommy,” she says, but her eyes slide toward the defense table.
“Does anybody else live with you?”
“Not anymore.” A whisper.
“Did you used to live with someone else?”
“Yes,” Rachel nods. “My daddy.”
“Do you go to school, Rachel?”
“I’m in Mrs. Montgomery’s class.”
“Do you have rules there?”
“Yes. Don’t hit and raise your hand to talk and don’t climb up the slide.”
“What happens if you don’t follow the rules in school?”
“My teacher gets mad.”
“Do you understand the difference between telling the truth and telling a lie?”
“The truth is when you tell what happened, and a lie is when you make something up.”
“That’s right. And the rule in court, where we are right now, is that you have to tell the truth when we ask you questions. You can’t make anything up. Do you understand?”
“Yes.”
“If you lie to your mom, what happens?”
“She gets mad at me.”
“Can you promise that everything you say today is going to be the truth?”
“Uh-huh.”
I breathe deeply. First hurdle, cleared. “Rachel, the man over there with the silver hair, his name is Mr. Carrington. He’s got some questions for you too. Do you think you can talk to him?”
“Okay,” Rachel says, but she’s getting nervous now. This was the part I couldn’t tell her about; the part where I didn’t have all the answers.
Fisher stands up, oozing security. “Hi there, Rachel.”
She narrows her eyes. I love this kid. “Hi.”
“What’s your bear’s name?”
“She’s a hippo.” Rachel says this with the disdain that only a child can pull off, when an adult stares right at the bucket on her head and cannot see that it is a space helmet.
“Do you know who’s sitting with me at that table over there?”
“My daddy.”
“Have you seen your daddy lately?”
“No.”
“But you remember when you and your daddy and your mommy all lived together in the same house?” Fisher’s hands are in his pockets. His voice is as soft as flannel.
“Uh-huh.”
“Did your mommy and daddy fight a lot in the brown house?”
“Yes.”
“And after that, your daddy moved out?”
Rachel nods, then remembers what I’ve told her about having to say your answer out loud. “Yes,” she murmurs.
“After your daddy moved out, then you told somebody that something happened to you . . . something about your daddy, right?”
“Uh-huh.”
“You told somebody that Daddy touched your pee-pee?”
“Yes.”
“Who did you tell?”
“Mommy.”
“What did Mommy do when you told her?”
“She cried.”
“Do you remember how old you were when Daddy touched your pee-pee?”
Rachel chews on her lip. “It was back when I was a baby.”
“Were you going to school, then?”
“I don’t know.”
“Do you remember if it was hot or cold outside?”
“I, um, I don’t know.”
“Do you remember whether it was dark outside, or light?”
Rachel starts rocking on the stool, shaking her head.
“Was Mommy home?”
“I don’t know,” she whispers, and my heart plummets. This is the point where we will lose her.
“You said you were watching Franklin. Was that on TV, or was it a video?”
By now, Rachel isn’t even making eye contact with Fisher, or with any of us. “I don’t know.”
“That’s all right, Rachel,” Fisher says calmly. “It’s hard to remember, sometimes.”
At the prosecutor’s table, I roll my eyes.
“Rachel, did you talk to your mommy before you came to court this morning?”
At last: Something she knows. Rachel lifts her head and smiles, proud. “Yes!”
“Is this morning the first time you talked to Mommy about coming to court?”
“Nope.”
“Have you met Nina before today?”
“Uh-huh.”
Fisher smiles. “How many times have you talked to her?”
“A whole bunch.”
“A bunch. Did she tell you what to say when you got up into this little box?”
“Yes.”
“And did she tell you that you needed to say that Daddy touched you?”
“Yes.”
“Did Mommy tell you that you needed to say that Daddy touched you?”
Rachel nods, the tips of her braids dancing. “Uh-huh.”
I begin to close my file on this case; I already know where Fisher’s going; what he has done. “Rachel,” he says, “did your mommy tell you what would happen today if you came in here and said that Daddy touched your pee-pee?”
“Yes. She said she would be proud of me, for being such a good girl.”
“Thank you, Rachel,” Fisher says, and sits down.
Ten minutes later, Fisher and I stand in front of the judge in chambers. “I’m not suggesting, Ms. Frost, that you put words in that child’s head,” the judge says. “I am suggesting, however, that she believes she is doing what you and her mother want her to do.”
“Your Honor,” I begin.
“Ms. Frost, the child’s loyalties to her mother are much stronger than her loyalty to a witness oath. Under those circumstances, any conviction the state might secure could be overturned anyway.” He looks at me, not without sympathy. “Maybe six months from now, things will be different, Nina.” The judge clears his throat. “I’m finding the witness not competent to stand trial. Does the state have another motion in regard to this case?”
I can feel Fisher’s eyes on me, sympathetic instead of victorious, and this makes me fume. “I need to talk to the mother and child, but I believe the state will be filing a motion to dismiss without prejudice.” It means that as Rachel grows older, we can recall the charge and try again. Of course, Rachel might not be brave enough for that. Or her mother might just want her to get on with life, instead of reliving the past. The judge knows this, and I know this, and there is nothing either of us can do about it. It’s simply the way the system works.
Fisher Carrington and I walk out of chambers. “Thank you, counselor,” he says, and I don’t answer. We veer off in different directions, magnets repelled.
• • •
This is why I’m angry: 1) I lost. 2) I was supposed to be on Rachel’s side, but I turned out to be the bad guy. After all, I am the one who made her undergo a competency hearing, and it was all for nothing.
But none of this shows in my face as I lean down to talk to Rachel, who is waiting in my office. “You were so brave today. I know you told the truth and I’m proud of you, and your mom’s proud of you. And the good news is, you did such a great job, you don’t have to do it again.” I make sure I look her in the eye as I say this, so it slips inside, praise she can carry in her pockets. “I need to talk to your mom, now, Rachel. Can you wait outside with your grandma?”
Miriam falls apart before Rachel has closed the door behind herself. “What happened in there?”
“The judge found Rachel not competent.” I recount the testimony she didn’t hear. “It m
eans we can’t prosecute your ex-husband.”
“How am I supposed to protect her, then?”
I fold my hands on my desk, gripping the edge tight. “I know you have a lawyer representing you in your divorce, Mrs. Marx. And I’d be happy to call him for you. There’s still a social services investigation going on, and maybe they can do something to curtail or supervise the visitations . . . but the fact is, we can’t put on a criminal prosecution right now. Maybe when Rachel gets older.”
“By the time she’s older,” Miriam whispers, “he will have done it to her a thousand more times.”
There is nothing I can say to this, because it is most likely true.
Miriam collapses in front of me. I have seen it dozens of times, strong mothers who simply go to pieces, like a starched sheet that melts at a breath of steam. She rocks back and forth, her arms crossed so tight at her waist that it doubles her over. “Mrs. Marx, . . . if there’s anything I can do for you . . .”
“What would you do if you were me?”
Her voice rises like a snake, tugs me forward. “You did not hear this from me,” I say quietly. “But I would take Rachel, and I would run.”
Minutes later, from my window, I see Miriam Marx searching through her purse. For her car keys, I think. And quite possibly, for her resolve.
• • •
There are many things Patrick loves about Nina, but one of the best things about her is the way she enters a room. Stage presence, that’s what his mother used to call it when Nina barreled into the Ducharme kitchen, helped herself to an Oreo from the cookie jar, and then paused, as if to give everyone else a chance to catch up to her. All Patrick knows is that his back can be to the door, and when Nina comes in, he can feel it—a tickle of energy on the nape of his neck, a snap to attention as every eye in the place turns toward her.
Today, he is sitting at the empty bar. Tequila Mockingbird is a cop hangout, which means it doesn’t really get busy until dinnertime. In fact, there have been times that Patrick has wondered whether the establishment opens early simply to accommodate himself and Nina for their standing Monday lunches. He checks his watch, but he knows he is early—he always is. Patrick doesn’t want to miss the moment she walks in, the way her face turns unerringly to his, like the needle of a compass at true north.
