Read an Excerpt
I have always been best at closings.
Without any significant forethought, I can walk into a courtroom, face a jury, and deliver a speech that leaves them burning for justice. Loose ends drive me crazy; I have to tidy things up to the point where I can put them behind me and move on to the next case. My boss tells anyone who'll listen that he prefers to hire prosecutors who were waiters and waitresses in former lives -- that is, used to juggling a load. But I worked in the gift-wrapping department of Filene's to put myself through law school, and it shows.
This morning, I've got a closing on a rape trial and a competency hearing. In the afternoon, I have to meet with a DNA scientist about a bloodstain inside a wrecked car, which revealed brain matter belonging to neither the drunk
driver accused of negligent homicide nor the female passenger who was killed. All of this is running through my mind when Caleb sticks his head into the bathroom. The reflection of his face rises like a moon in the mirror. "How's Nathaniel?"
I turn off the water and wrap a towel around myself. "Sleeping," I say.
Caleb's been out in his shed, loading his truck. He does stonework -- brick paths, fireplaces, granite steps, stone walls. He smells of winter, a scent that comes to Maine at the same time local apples come to harvest. His flannel shirt is streaked with the dust that coats bags of concrete. "How is his fever?" Caleb asks, washing his hands in the sink.
"He's fine," I answer, although I haven't checked on my son; haven't even seen him yet this morning. I am hoping that if I wish hard enough, this will be true. Nathaniel wasn't really that sick last night, and he wasn't running a temperature above 99 degrees. He didn't seem himself, but that alone wouldn't keep me from sending him to school -- especially on a day when I'm due in court. Every working mother has been caught between this Scylla and Charybdis. I can't give a hundred percent at home because of my work; I can't give a hundred percent at work because of my home; and I live in fear of the moments, like these, when the two collide.
"I'd stay home, but I can't miss this meeting. Fred's got the clients coming to review the plans, and we're all supposed to put in a good showing." Caleb looks at his watch and groans. "In fact, I was late ten minutes ago." His day starts early and ends early, like most subcontractors. It means that I bear the brunt of getting Nathaniel to school, while Caleb is in charge of the pickup. He moves around me, gathering his wallet and his baseball cap. "You won't send him to school if he's sick..."
"Of course not," I say, but heat creeps beneath the neck of my blouse. Two Tylenol will buy me time; I could be finished with the rape case before getting a call from Miss Lydia to come get my son. I think this, and in the next second, hate myself for it.
"Nina." Caleb puts his big hands on my shoulders. I fell in love with Caleb because of those hands, which can touch me as if I am a soap bubble certain to burst, yet are powerful enough to hold me together when I am in danger of falling to pieces.
I slide my own hands up to cover Caleb's. "He'll be fine," I insist, the power of positive thinking. I give him my prosecutor's smile, crafted to convince. "We'll be fine."
Caleb takes a while to let himself believe this. He is a smart man, but he's methodical and careful. He will finish one project with exquisite finesse before moving on to the next, and he makes decisions the same way. I've spent seven years hoping that lying next to him each night will cause some of his deliberation to rub off, as if a lifetime together might soften both our extremes.
"I'll get Nathaniel at four-thirty," Caleb says, a line that, in the language of parenting, means what I love you once did.
I feel his lips brush the top of my head as I work the clasp on the back of my skirt. "I'll be home by six." I love you, too.
He walks toward the door, and when I look up I am struck by pieces of him -- the breadth of his shoulders, the tilt of his grin, the way his toes turn in in his big construction boots. Caleb sees me watching. "Nina," he says, and that smile, it tips even more. "You're late too."
The clock on the nightstand says 7:41. I have nineteen minutes to rouse and feed my son, stuff him into his clothes and his car seat, and make the drive across Biddeford to his school with enough time to get myself to the superior court in Alfred by 9:00.
My son sleeps hard, a cyclone in his sheets. His blond hair is too long; he needed a haircut a week ago. I sit on the edge of the bed. What's two seconds more, when you get to watch a miracle?
I wasn't supposed to get pregnant five years ago. I wasn't supposed to get pregnant, ever, thanks to a butcher of an OB who removed an ovarian cyst when I was twenty-two. When I had been weak and vomiting for weeks, I went to see an internist, certain I was dying from some dread parasite, or that my body was rejecting its own organs. But the blood test said there was nothing wrong. Instead, there was something so impossibly right that for months afterward, I kept the lab results taped to the inside of the medicine cabinet of the bathroom: the burden of proof.
Nathaniel looks younger when he's asleep, with one hand curled under his cheek and the other wrapped tight around a stuffed frog. There are nights I watch him, marveling at the fact that five years ago I did not know this person who has since transformed me. Five years ago I would not have been able to tell you that the whites of a child's eyes are clearer than fresh snow; that a little boy's neck is the sweetest curve on his body. I would never have considered knotting a dish towel into a pirate's bandanna and stalking the dog for his buried treasure, or experimenting on a rainy Sunday to see how many seconds it takes to explode a marshmallow in the microwave. The face I give to the world is not the one I save for Nathaniel: After years of seeing the world in absolutes, he has taught me how to pick out all the shades of possibility.
I could lie and tell you that I never would have gone to law school or become a prosecutor if I'd expected to have children. It's a demanding job, one you take home, one you cannot fit around soccer games and nursery school Christmas pageants. The truth is, I have always loved what I do; it's how I define myself: Hello, I'm Nina Frost, assistant district attorney. But I also am Nathaniel's mother, and I wouldn't trade that label for the world. There is no majority share; I am split down the middle, fifty-fifty. However, unlike most parents, who lie awake at night worrying about the horrors that could befall a child, I have the chance to do something about them. I'm a white knight, one of fifty lawyers responsible for cleaning up the state of Maine before Nathaniel makes his way through it.
Now, I touch his forehead -- cool -- and smile. With a finger I trace the slight bow of his cheek, the seam of his lips. Asleep, he bats my hand away, buries his fists under the covers. "Hey," I whisper into his ear. "We need to get moving." When he doesn't stir, I pull the covers down -- and the thick ammonia scent of urine rises from the mattress.
Not today. But I smile, just like the doctor said to when accidents happen for Nathaniel, my five-year-old who's been toilet trained for three years. When his eyes open -- Caleb's eyes, sparkling and brown and so engaging that people used to stop me on the street to play with my baby in his stroller -- I see that moment of fear when he thinks he's going to be punished. "Nathaniel," I sigh, "these things happen." I help him off the bed and start to peel his damp pajamas from his skin, only to have him fight me in earnest.
One wild punch lands on my temple, driving me back. "For God's sake, Nathaniel!" I snap. But it's not his fault that I'm late; it's not his fault that he's wet the bed. I take a deep breath and work the fabric over his ankles and feet. "Let's just get you cleaned off, okay?" I say more gently, and he defeatedly slides his hand into mine.
My son tends to be unusually sunny. He finds music in the stifled sounds of traffic, speaks the language of toads. He never walks when he can scramble; he sees the world with the reverence of a poet. So this boy, the one eyeing me warily over the lip of the tub, is not one I recognize. "I'm not mad at you." Nathaniel ducks his head, embarrassed. "Everyone has accidents. Remember when I ran over your bike last year, with the car? You were upset -- but you knew I didn't mean to do it. Right?" I might as well be talking to one of Caleb's granite blocks. "Fine, give me the silent treatment." But even this backfires; I cannot tease him into a response. "Ah, I know what will make you feel better...you can wear your Disney World sweatshirt. That's two days in a row."
If he had the option, Nathaniel would wear it every day. In his room, I overturn the contents of every drawer, only to find the sweatshirt tangled in the pile of soiled sheets. Spying it, he pulls it free and starts to tug it over his head. "Hang on," I say, taking it away. "I know I promised, but it's got pee all over it, Nathaniel. You can't go to school in this. It has to be washed first." Nathaniel's lower lip begins to tremble, and suddenly I -- the skilled arbitrator -- am reduced to a plea bargain. "Honey, I swear, I'll wash this tonight. You can wear it for the rest of the week. And all of next week, too. But right now, I need your help. I need us to eat fast, so that we can leave on time. All right?"
Ten minutes later, we have reached agreement, thanks to my complete capitulation. Nathaniel is wearing the damn Disney World sweatshirt, which has been hand-rinsed, hastily spun through the dryer, and sprayed with a pet deodorizer. Maybe Miss Lydia will have allergies; maybe no one will notice the stain above Mickey's wide smile. I hold up two cereal boxes. "Which one?" Nathaniel shrugs, and by now I'm convinced his silence has less to do with shame than getting a rise out of me. Incidentally, it's working.
I set him down at the counter with a bowl of Honey Nut Cheerios while I pack his lunch. "Noodles," I announce with flair, trying to boost him out of his blue funk. "And...ooh! A drumstick from dinner last night! Three Oreos...and celery sticks, so that Miss Lydia doesn't yell at Mommy again about nutrition pyramids. There." I zip up the insulated pack and put it into Nathaniel's backpack, grab a banana for my own breakfast, then check the clock on the microwave. I give Nathaniel two more Tylenol to take -- it won't hurt him this once, and Caleb will never know. "Okay," I say. "We have to go."
Nathaniel slowly puts on his sneakers and holds out each small foot to me to have the laces tied. He can zip up his own fleece jacket; shimmy into his own backpack. It is enormous on those thin shoulders; sometimes from behind he reminds me of Atlas, carrying the weight of the world.
Driving, I slide in Nathaniel's favorite cassette -- the Beatles' White Album, of all things -- but not even "Rocky Raccoon" can snap him out of this mood. Clearly, he's gotten up on the wrong side of the bed -- the wet side, I think, sighing. A tiny voice inside me says I should just be grateful that in approximately fifteen minutes it will be someone else's problem.
In the rearview mirror, I watch Nathaniel play with the dangling strap of his backpack, pleating it into halves and thirds. We come to the stop sign at the bottom of the hill. "Nathaniel," I whisper, just loud enough to be heard over the hum of the engine. When he glances up, I cross my eyes and stick out my tongue.
Slowly, slow as his father, he smiles at me.
On the dashboard, I see that it is 7:56. Four minutes ahead of schedule.
We are doing even better than I thought.
The way Caleb Frost sees it, you build a wall to keep something unwanted out...or to hold something precious in. He considers this often when he builds, fitting sparkling granite and craggy limestone into niches, a three-dimensional puzzle drawn thick and straight across the edge of a lawn. He likes to think of the families inside these baileys he constructs: insulated, safe, protected. Of course, this is ridiculous. His stone walls are knee-high, not castle-worthy. They have large gaps in them for driveways and paths and grape arbors. And yet every time he drives past a property he's shaped with his own heavy hands, he pictures the parents sitting down to dinner with their children, harmony wrapping the table like mosquito netting, as if literal foundations might lay the pattern for emotional ones.
He stands at the edge of the Warren property with Fred, their contractor, as they all wait for Caleb to put on a show. Right now, the land is thick with birches and maples, some tagged to show the potential location of the house and the septic system. Mr. and Mrs. Warren stand so close they are touching. She is pregnant; her belly brushes her husband's hip.
"Well," Caleb begins. His job is to convince these people that they need a stone wall surrounding their property, instead of the six-foot fence they are also considering. But words are not his specialty; that's for Nina. Beside him, Fred clears his throat, prompting.
Caleb cannot sweet-talk this couple; he can only see what lies ahead for them: a white Colonial, with a screened porch. A Labrador, leaping to catch monarch butterflies in his mouth. A row of bulbs that will, next year, be tulips. A little girl riding a tricycle, with streamers flying from the handlebars down the length of the drive, until she reaches the barrier Caleb has crafted -- the limit, she has been told, of where she is safe.
He imagines himself bent over this spot, creating something solid in a space where there had been nothing before. He imagines this family, three of them by then, tucked within these walls. "Mrs. Warren," Caleb asks with a smile, the right words finally coming. "When are you due?"
In one corner of the playground, Lettie Wiggs is crying. She does this all the time, pretends that Danny socked her when the truth is she just wants to see if she can get Miss Lydia to come running from whatever it is Miss Lydia's doing. Danny knows it too, and Miss Lydia, and everyone, except for Lettie, who cries and cries as if it's going to get her somewhere.
He walks past her. Walks past Danny, too, who isn't Danny anymore, but a pirate, clinging to a barrel after a shipwreck. "Hey, Nathaniel," says Brianna. "Check this out." She is crouched behind the shed that holds soccer balls as soft as ripe melons, and the ride-on bulldozer that you can only ride on for five minutes before it's someone else's turn. A silver spider has stretched a web from the wood to the fence behind it, zagged like a shoelace. At one spot a knot the size of a dime is tangled in the silk.
"That's a fly." Cole pushes his glasses up on his nose. "The spider, she wrapped it up for her dinner."
"That's so gross," Brianna says, but she leans closer.
Nathaniel stands with his hands in his pockets. He thinks about the fly, how it stepped onto the web and got stuck, like the time Nathaniel walked into a snowdrift last winter and lost his boot in the muck at the bottom. He wonders if the fly was just as scared as Nathaniel had been of coming in barefoot through the snow, of what his mother would say. Probably the fly had just figured it was going to take a rest. Probably it had stopped for a second to see how the sun looked like a rainbow through that web, and the spider grabbed him before he could get away.
"Bet she eats the head first," Cole says.
Nathaniel imagines the wings of the fly, pinned to its back as it is turned and wrapped tight. He lifts his hand and slashes it through the web; walks away.
Brianna is fuming. "Hey!" she yells. And then, "Miss Lydia!"
But Nathaniel doesn't listen. He looks up, surveying the top beam of the swings and the jungle gym with the slide that's as shiny as the blade of a knife. The jungle gym is taller by a few inches. Settling his hands on the rungs of the wooden ladder, he begins to climb.
Miss Lydia doesn't see him. His sneakers send down a rain of tiny pebbles and dirt, but he balances. Up here, he is taller than his father, even. He thinks that maybe the cloud behind him has an angel fast asleep in its center.
Nathaniel closes his eyes and jumps, his arms glued to his sides like that fly's. He doesn't try to break his fall, just hits hard, because it hurts less than everything else.
"Best croissants," Peter Eberhardt says, as if we have been in the middle of a conversation, although I've only just walked up to stand beside him at the coffee machine.
"The Left Bank," I answer. We might as well be in the middle of a conversation, come to think of it. Except this one has been ongoing for years.
"A little closer to home?"
This I have to think about. "Mamie's." It's a diner in Springvale. "Worst haircut?"
Peter laughs. "Me, in my middle school yearbook."
"I was thinking of it as a verb, not a noun."
"Oh, well, then. Wherever Angeline gets her perm." He holds out the coffee and fills my cup for me, but I'm laughing so hard some of it spills on the floor. Angeline is the clerk of the South District Court, and her coiffure resembles something between a muskrat curled on her head and a plate of buttered bowtie noodles.
This is our game, Peter and me. It began when we were both assistant DAs in the West District, splitting our time between Springvale and York. In Maine, defendants can come to court and plead innocent, guilty, or request to meet with the prosecutor. Peter and I would sit across from each other at a desk, trading court complaints like aces in a poker game. You do this traffic ticket, I'm sick of them. Okay, but that means you get this trespassing charge. I see Peter far less now that we are both trying felonies in the superior court, but he is still the person I'm closest to in the office. "Best quote of the day?"
It is only ten-thirty; the best may be to come. But I put on my prosecutor's face and look solemnly at Peter, and give him an instant replay of my closing in the rape case. "In fact, ladies and gentlemen, there is only one act that would be more criminally reprehensible, more violating, than what this man did -- and that would be to set him free to do it again."
Peter whistles through the space in his front teeth. "Ooh, you are the drama queen."
"That's why they pay me the big bucks." I stir creamer into my coffee, watch it clot like blood on the surface. It reminds me of the brain matter case. "How goes the domestic abuse trial?"
"Don't take this the wrong way, but I am so freaking sick of victims. They're so..."
"Needy?" I say dryly.
"Yes!" Peter sighs. "Wouldn't it be nice to just get through a case without having to deal with all their baggage?"
"Ah, but then you might as well be a defense attorney." I take a gulp of the coffee, leave the cup on the counter, three-quarters full. "See, if you ask me, I'd rather get through a case without them."
Peter laughs. "Poor Nina. You've got your competency hearing next, don't you?"
"So, whenever you have to face Fisher Carrington you look...well, like I did in that middle school yearbook. On the verge of being scalped."
As prosecutors, we have a tenuous relationship with the local defense attorneys. Most of them we hold a grudging respect for; after all, they are just doing their jobs. But Carrington is a different breed. Harvard-educated, silver-haired, stately -- he is everyone's father; he is the distinguished elder gentleman offering advice to live by. He is the sort of man juries want to believe, just on general principle. It has happened to all of us at one time or another: We put up a mountain of hard evidence against his Newman-blue eyes and knowing smile, and the defendant walks.
Needless to say, we all hate Fisher Carrington.
Having to face him at a competency hearing is like getting to Hell and finding out that the only food available is raw liver -- insult added to injury.
Legally, competency is defined as being able to communicate in a way that the fact finder can understand. For example, a dog may be able to sniff out drug evidence but can't testify. For children at the center of sexual abuse cases -- ones where the abuser hasn't confessed -- the only way to get a conviction is to get the kid to testify. But before that happens, the judge has to determine that the witness can communicate, knows the difference between the truth and a lie...and understands that in court you have to tell the truth. Which means that when I am trying a sexual abuse case with a young child, I routinely file a motion for a competency hearing.
So: Imagine you are five years old and have been brave enough to confess to your mother that your daddy rapes you every night, although he's said he'll kill you for telling. Now imagine that, as a practice run, you have to go to a courtroom that seems as big as a football stadium. You have to answer questions a prosecutor asks you. And then you have to answer questions fired at you by a stranger, a lawyer who makes you so confused that you cry and ask him to stop. And because every defendant has the right to face his accuser, you have to do all this while your daddy is staring you down just six feet away.
Two things can happen here. Either you are found incompetent to stand trial, which means the judge throws out the case, and you don't have to go to court again...although you have nightmares for weeks afterward about that lawyer asking you horrible questions, and the look on your father's face, and most likely, the abuse continues. Or, you are found competent, and you get to repeat this little scene all over again...this time, with dozens of people watching.
I may be a prosecutor, but I'm also the first to tell that if you cannot communicate in a certain way, you cannot get justice in the American legal system. I have tried hundreds of sexual abuse cases, seen hundreds of children on that stand. I have been one of the lawyers who tugs and pulls at them, until they reluctantly let go of the make-believe world they've dreamed to block out the truth. All this, in the name of a conviction. But you cannot convince me that a competency hearing itself doesn't traumatize a child. You cannot convince me that even if I win that hearing, somehow, the child doesn't.
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.
"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?"
"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?"
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?"
"Have you seen your daddy lately?"
"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.
"Did your mommy and daddy fight a lot in the brown house?"
"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?"
"You told somebody that Daddy touched your pee-pee?"
"Who did you tell?"
"What did Mommy do when you told her?"
"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?"
"Have you met Nina before today?"
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?"
"And did she tell you that you needed to say that Daddy touched you?"
"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 means 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.
Copyright © 2002 by Jodi Picoult