Damaged (34 page)

“Sure. I'll find out where he is and set up the visit, okay?”

“Yes.” Mary realized that Abby was being tactful. “Oh, I can't do it myself, I have to go through you. Because if we lose today, I have no legal rights to even visit Patrick.”

“Right.” Abby nodded sadly. “Even as his lawyer, you have to go through me because he's a minor child in DHS custody.”

Mary groaned. “This is a nightmare. I don't even want to think about how this impacts his schooling. He goes from hard-core residential care in the foster system to Fairmount Prep? How is that tenable? How long is it before he gets into trouble in the residential home and it undermines him at Fairmount Prep? Meantime, he falls further and further behind in school. Who's drilling him at home for his dyslexia? Nobody.”

Susan sipped her soda. “Unfortunately, I share Mary's concern. I've seen cases where children like Patrick, with high levels of anxiety and depression, engage in self-harm and even become suicidal in foster care. In addition, Patrick is bereaved, so he's in crisis. He's at risk in foster care, even if it's only for ten more days.”

“Oh no.” Mary moaned.

John patted her back. “Hang in there. We took a blow to our bow, but we'll have to deal. Obviously, we should change our trial strategy. I don't think you should testify first anymore.”

“I don't either,” Mary said.

Abby shook her head. “Why? Mary makes the case. She can tell the judge our side of the story and say why Patrick did what he did. In my experience, he doesn't get a lot of people of her quality stepping up to be temporary guardians. As soon as he hears her, he'll see that she's terrific.”

“Or delusional,” Mary said, but nobody laughed.

“Nah.” Abby met her eye with sympathy, and so did Dr. Bernardi, if more reserved.

John took a thoughtful sip of water. “I still think Mary shouldn't be the first witness. We need to offer Judge Green solid professional opinions, not ones that might be swayed by emotionality, from an alleged accomplice after the fact. Chan-Willig is arguing that Mary is overlooking Patrick's dangerousness, so we have to prove that Patrick is not dangerous, using an impartial expert opinion.” John turned to Susan, sitting to his right. “Susan, that's where you come in. You have the psychiatric credentials. I think you should be our first witness and give the testimony that we discussed.”

“Um, well, hold on, John.” Susan hesitated, glancing around the table at everyone, with a new pursing of her lips. “Abby and Mary, I'm sorry, but I don't think that I can testify today, after what Detective Randolph testified to. I felt confident of my risk assessment of Patrick until now, but the points that Detective Randolph made gave me concern. I'm sure that you all are correct and that Patrick is harmless, but I simply cannot stake my professional reputation on my previous risk assessment, given that there's a question in my mind that Patrick might have administered that lethal dose to Edward.”

“Really?” John recoiled, aghast. “I said in open court that we'd put you up.”

“Susan, please, no,” Mary begged. “You know Patrick would never kill Edward. You spoke to him about Edward's relationship to him.”

“Sorry, John, and I know, Mary.” Susan stood up to go, picking up her purse. “But now I have a
tiny
bit of reasonable doubt about Patrick's dangerousness. The fact is, you don't want me to take the stand when I have
any
doubt. I wouldn't be a very good witness for you, any longer. If Chan-Willig cross-examined me about my opinion, I couldn't say anymore that I held it to a reasonable certainty, given that Patrick is suspected of murder. I just couldn't. I'm very sorry.”

“I understand, Susan.” John rose and walked her to the door. “You wouldn't be a good witness for us if you had any doubt. Judge Green is too smart a judge not to detect that, and Chan-Willig is too worthy an adversary not to destroy you over it on cross-examination. We appreciate your honesty. Thank you for your time.”

“Yes, thanks, Susan.” Mary tried mightily to hide her disappointment. Their case was going down the tubes before her very eyes. “I'm sorry, but you're right not to testify if you're not one hundred percent sure. That would only hurt our case more.”

“That's what I thought. Good-bye.” Susan flashed them a final smile, then John opened the door, they all said good-bye, and she left, with John closing the door behind her.

“Mary, remain calm.” John returned to his seat, talking.

“I'm trying.” Mary turned to Abby. “You're still on board, Abby?”

“Yes, totally.” Abby grinned. “I'm not going down without a fight.”

“That's the spirit!” Mary said, thinking of her patron saint, St. Jude of Lost Causes.

John squared his shoulders. “We can adapt without Susan.”

“I'll go first,” Abby said, rallying. “Judge Green likes me, so there's that. I think that's why he went our way, on your doing the questioning.”

“Good.” John nodded. “Here's what I'm thinking, now. Judge Green believes that the safe decision is to leave Patrick where he is, but I want to move him off that position. I want to open his mind to the possibility, if not the likelihood, that Patrick is in danger if he stays in foster care. So, denying Mary's petition and leaving the status quo in place creates legal liability for DHS, the City, and perhaps even for the Court.”

“Okay.” Mary brightened. It was a sound legal strategy, turning the tables on Chan-Willig, and John was using all of his litigation skills in the family law context.

Abby looked over. “Okay, and in my testimony, I don't think I should emphasize how much Patrick really wants to be with Mary and that they like each other. That would be my usual testimony. As Child Advocate, I speak for Patrick. But that only reinforces Chan-Willig's position that because of her affection for Patrick, Mary might be blinded and Patrick is manipulating her.”

Mary nodded. “Agree.”

John asked, “So what will you say, Abby?”

“I would testify that I don't think Patrick is dangerous. He's the poor little runt who gets bullied, is all. Agree?”

“Yes,” John answered. “Specifically, I'm going to question you about the gun and you can testify about Patrick's remorse. Also that he felt desperate and that's why he did it.”

“Okay, and I think it was truly because he was leaving the only home that he's ever known, the morning after his grandfather died. It's horrible, and he felt powerless. The gun was an easy answer, but he never would've shot it, ever. I think he knew it wasn't loaded anyway.”

John nodded. “Good. Then I'm going to ask you about the fight over the wallet in the Crisis Center and elicit from you that it was instigated by the other kid. Does that sound right?”

“Yes, totally.”

“Perfect.” John faced Mary, and his eyes met hers with concern. “You're up after Abby. Ready to testify? You're really going to have to sell it.”

“I know.” Mary felt her chest tighten. “Is there anything I should change about my testimony? Am I supposed to act like I don't care about Patrick? That I'm not emotionally invested in him?”

“No.” John flashed her a reassuring smile. “Just be yourself and we'll do fine. Just speak from your heart. The judge will need to hear how much you really want to take Patrick.”

“I can do that,” Mary said, worried sick.

 

CHAPTER FORTY-ONE

John faced Judge Green. “Your Honor, I'd like to call my first witness, Child Advocate Abby Ortega.”

“Good. She's one of my favorite people.” Judge Green motioned Abby forward with a pleasant grin. “Ms. Ortega, it's always a pleasure to see you. You brighten my day.”

Abby came forward, smiling. “That's why I make the big bucks, Your Honor.”

“Ha!” The judge laughed, and everyone smiled, including the clerk. Mary realized that any form of humor was a welcome break in a dependency courtroom. John had told her that the only part of family law practice that he truly loved was adoptions, because it made everybody happy.

Abby was sworn in and sat down, and John began his direct examination, taking her methodically through her testimony and eliciting every point they had discussed, without objection. Abby's demeanor was so natural and winning on the stand that Judge Green listened carefully.

“Your Honor, I have no more questions.” John returned to counsel table, and Mary smiled at him.

Chan-Willig rose. “Your Honor, I have cross-examination.”

“Please proceed.” Judge Green nodded.

“Thank you, Your Honor.” Chan-Willig faced the witness box. “Ms. Ortega, we've worked together in many cases, haven't we?”

“Yes.” Abby smiled. “Not that we always agree.”

“Fair enough.” Chan-Willig smiled back, and so did Judge Green, on the dais. “Ms. Ortega, I think it's fair to say that you are generally of an optimistic and positive nature, isn't that correct?”

“Yes.” Abby's smile turned wary.

“Ms. Ortega, you testified, did you not, that you liked Patrick when you met him and interviewed him, isn't that correct?”

“Yes, I liked him very much. I thought he was a good kid.”

“Ms. Ortega, you must have been surprised to hear Detective Randolph's testimony that Patrick is suspected of murdering his grandfather Edward, isn't that correct?”

“Yes.”

“Ms. Ortega, isn't it correct that no matter what Detective Randolph testified, you don't think Patrick murdered his grandfather, is that correct?”

“Yes.”

“And you were probably also surprised to hear that he pulled a gun on Ms. Solo and Ms. DiNunzio, isn't that correct?”

“Yes.”

“Ms. Ortega, you testified that you did not believe that Patrick was going to fire the gun, is that correct?”

“Yes, that's my testimony.”

“Ms. Ortega, isn't it correct that you based your belief that Patrick didn't kill his grandfather and that he wasn't going to fire the weapon on your subjective belief that he was a ‘good kid'?”

Abby hesitated. “Well, yes. It was my assessment of him, of his nature. He is not aggressive. He's the kind of kid who gets bullied.”

“But isn't it true in your experience that children who are bullied can become aggressive?”

“Well, yes, but not him.”

“Ms. Ortega, isn't it true that it is objectively aggressive to pull a gun on another human being?”

Abby blinked. “He felt sorry he had done it and I'm sure he knew it wasn't loaded.”

Chan-Willig frowned. “Ms. Ortega, as an attorney, aren't you aware that brandishing a handgun constitutes a terroristic threat in violation of Section 2706 of the Pennsylvania Crimes Code?”

“I guess so, but—”

“Yes or no?”

“Yes,” Abby admitted.

“So now, Ms. Ortega, you
have
to agree, do you not, that it is objectively aggressive to pull a gun on another human being?”

“Well, it's not very nice,” Abby answered slowly, but Judge Green wasn't smiling anymore.

Chan-Willig paused. “Ms. Ortega, in your time as a Child Advocate, have you ever been physically threatened with a weapon by any of the children you were interviewing?”

“No.”

“Ms. Ortega, have you ever been threatened with a fist?”

“Yes.” Abby pursed her lips.

“Ms. Ortega, when you were threatened with a fist, isn't it true that you felt aggressed upon?”

Abby paused. “Yes, but that case was different from Patrick's.”

Chan-Willig frowned. “Ms. Ortega, isn't it correct that the only reason that that case is different is because you like Patrick?”

“Well, yes,” Abby answered, flustered. “But it's hard to say which came first, the chicken or the egg. I like Patrick because he's a good kid and he would never do that.”

Chan-Willig nodded. “Isn't it possible that
because
you like Patrick, you underestimate his dangerousness?”

Abby hesitated. “No, and I reiterate, I don't think he would have hurt anyone.”

“Even though he is suspected of murder?”

“Yes.”

“And even though he aimed a gun at two women, in violation of the criminal law of this Commonwealth?”

“Yes.”

“I have no further questions, Your Honor.” Chan-Willig returned to counsel table, making a show of giving up.

Mary felt a wave of abject despair. Abby's sweet and loving nature had just undercut her own credibility, and Judge Green's opinion about Patrick's dangerousness would remain unchanged. Mary looked over, heartened to see John rising for redirect examination, an attempt to rehabilitate Abby's testimony.

John rose. “Your Honor, I have redirect, if I may.”

“Go ahead, Mr. Foxman.” Judge Green pursed his lips. “But please, not too long.”

“Certainly, Your Honor.” John stayed at counsel table. “Ms. Ortega, you have obvious affection for Patrick, don't you?”

“Yes.”

“Ms. Ortega, do you feel that the affection you may have for Patrick impairs your judgment about his putative dangerousness?”

“No.” Abby shook her head, emphatically. “Not at all.”

“So it is still your opinion that Patrick does not present any danger to the safety of Ms. DiNunzio or others?”

“Yes,” Abby answered firmly.

“Thank you.” John turned to Judge Green. “I have no further questions, Your Honor. I'm ready to call my final witness, Mary DiNunzio.”

Chan-Willig looked over, arching an eyebrow. “What about Dr. Susan Bernardi? Isn't she testifying?”

John didn't miss a beat. “Dr. Bernardi had to go,” he answered, without elaborating.

 

CHAPTER FORTY-TWO