06.Evil.Beside.Her.2008 (33 page)

The phone rang continually in Linda Bergstrom’s apartment in the weeks before the trial. Throughout the night, the answering machine clicked on and off as James obsessively telephoned from the county jail. Usually she’d try to ignore the constant interruptions, but sometimes it wore her down until Linda accepted a call, relayed at a cost of $1.30 each by a jail operator.

“I’m going to get out of here,” James would say. “I didn’t do anything so awful to them. It’s your fault. You turned me in.”

“I didn’t have a choice,” she’d tell him. “You should have gotten help. I tried to get you to see a doctor.”

Always she would remind him that the divorce she’d filed for soon after his arrest was final. She was no longer his wife.

“You’ll always be my wife,” he countered. “Till death do us part, remember? I’m going to get out of here and we’ll be a family again.”

In desperation, she had her number changed to an unlisted one. Somehow he managed to get it and called again, angry that she’d tried to avoid him. At her request, Southwestern Bell installed a block on her phone to stop his incessant badgering. Then James traded away food to other prisoners in return for their friends and relatives patching him through on three-way calling. Nothing she did seemed to be able to stop him.

At the district attorney’s office, the plans for the upcoming trial were taking shape. Bergstrom didn’t yet know, but
Rosenthal’s plan was to try his best cases, the four actual rapes and the burglary of Sandy Colyard. By grouping them, he reasoned it would be easy for a jury to see that Bergstrom’s intention was also to rape Colyard. As backup, he decided to hold in reserve the attempted sexual assaults on Jenny Karr, Andrea Hoggen, Ann Cook, and the others. “I didn’t want to confuse the jury by throwing too many cases at them,” Rosenthal reasoned. “And I wanted to keep some as a fallback in case I got a bad jury or did a bad job. I wanted more ammunition ready.”

Yet he had doubts about his star witnesses’ willingness to testify. As the trial neared, a contagious case of cold feet made its way through their ranks. Kim Greenmen, the mother, had left her husband and was living in San Antonio. She’d just started a new job and didn’t want to take the time off. Cindy McKenzie, the saleswoman, was afraid if anyone found out about the rape, it could make people view her differently, maybe hurt her career. Maggie Heller, out of the hospital but still having a difficult time coping, wasn’t sure she was strong enough. And Jesse Neal had disappeared. Rosenthal couldn’t find her. The only one who seemed anxious to testify was Sandy Colyard, and hers wasn’t an actual rape case; the charge still stood as burglary.

When the courthouse scuttlebutt brought the prosecutor the information that Easterling had asked for money from the judge to hire an investigator to help in Bergstrom’s defense, Rosenthal was even more worried. After checking with his witnesses and finding no one an investigator had approached, he came to the conclusion that Easterling intended to work another angle.

“I knew he was probably hiring some expert witnesses, probably a psychologist,” Rosenthal said. “I figured I better find an expert of my own.”

The doctor Rosenthal consulted was Michael Jones, Ph.D., a psychologist specializing in adult survivors of abuse. When the prosecutor forwarded a videotape of Bergstrom’s confession and a copy of his file, he asked Jones to draw up a profile
of Bergstrom for him. “I need to know about this guy,” he told him. “Make me a twenty-four-hour expert in rape.”

When Jones called Rosenthal back a week later, he began with the impressions he’d gleaned from the taped confession. “This guy really believed he had a minimal impact on his victims,” Jones explained. “That’s dangerous. In fact, he left deep scars. In his fantasy, he was on a date with these women while he held a gun to their heads. Think of the next time a boyfriend or husband makes love to them. Think of the confusion they’ll feel. They’re going to have all the symptoms of post-traumatic stress disorder. Two times more likely to commit suicide or experience depression within two years after the attack. Three of four women have a major change in life because of rape: divorce, relationship, their jobs. They can’t sleep, have exaggerated responses to problems. It has profound effects.

“As to Bergstrom, he lives in a fantasy world with major distortions and has a tremendous lack of empathy. This guy’s going to say he’s sorry. He’s only sorry he got caught.”

“What about treatment?” Rosenthal asked. “What if the defense argues he can be put on probation, monitored and treated?”

“This is such an entrenched problem and he’s hurt so many people that he’s demonstrated he can’t be trusted to be outside prison walls,” Jones said. “Some treatment, it could be argued, is better than no treatment. But there’s no real evidence that there’s a treatment guaranteed to work. It’d be a real roll of the dice.”

Rosenthal came away from the conversation with Jones convinced the only treatment for James Bergstrom was a long-term stay in the Texas prison system. “Other people you put in prison, there is at least the anticipation that prison will be such a bad place that it’ll factor into whether or not they will commit that crime again,” he’d say later. “But I didn’t think that with Bergstrom it would matter. I think he’s the kind of guy who will eventually give in to his impulses again. It would just be a matter of time.”

Then Easterling and Bergstrom threw Rosenthal the kind of pretrial curve ball that could leave a less experienced prosecutor slicing air. The day before their date in the courtroom, Bergstrom changed his plea in all five cases to guilty, but he wanted a jury, not the judge, to sentence him. He planned to beg for forgiveness and throw himself on the mercy of a jury of his peers.

“It scared me when he came in and admitted he was doing wrong and apologized, pleaded ‘I’m sorry…’ I was afraid,” Rosenthal recounted later. “Because you don’t know what a jury will do. They might be touched enough to give him leniency. You can never predict how remorse will play to a jury.”

Jury selection in the sentencing trial of James Bergstrom commenced at half past nine on the morning of September 29, 1992. State District Judge Carl Walker opened the proceedings by reading the indictment, four counts of aggravated sexual assault with a deadly weapon and one charge of burglary. Possible penalties ranged from probation to life imprisonment.

Quickly during voir dire, the defense attorney’s and prosecutor’s opportunity to question prospective jurors, the issues that would dominate this, the sentencing phase of the trial, became finely defined. “Have you or any member of your family ever been the victim of a violent crime?” Danny Easterling asked, attempting to weed out anyone who harbored a personal grudge that could influence the sentence. Then, as an indication of what he would ask jurors to do later, “Would you be open to considering probation as an option in this case if the circumstances indicated it?”

When it was the prosecution’s turn, Rosenthal took the opposite approach. “Would you, in the proper case, be able to assess a punishment as severe as life in prison?” he asked each prospective juror. Then, “Have you seen any news reports on this case that would hinder your ability to keep an open mind?”

Three hours later, James Bergstrom had his jury—ten women and two men.

By the time the prosecution mounted its attack that afternoon, Chuck Rosenthal theoretically had everything in place
to put James Bergstrom in jail for a very long time. All four rape victims and Sandy Colyard had finally and reluctantly agreed to testify. The day before the trial, an investigator for the DA’s office had tracked Jesse Neal to a small town outside Houston. Rosenthal had driven there with Tonry to appeal to her in person. “All I could tell the women was that this was the only way to keep Bergstrom from doing it to someone else,” Rosenthal recounted later. “None of them wanted to see him out on the streets again.”

As in Washington State, Texas law prohibited Linda Bergstrom from testifying against her ex-husband. She sat silently on one of the massive courtroom benches, surrounded by reporters who noted her every expression. Though she had anticipated this day for years, she felt no exhilaration, rather a deep sadness and an all-consuming fear. “I knew if they didn’t put James away for a long time, he’d come after me,” she’d say later. “He knew I was the one who put him in jail, and he’d want revenge.”

As angry, threatening, and dangerous as James Bergstrom had been with his ski mask on stalking victims, in front of the jury entrusted with deciding his fate, he cultivated the manner of the timid, mild-mannered plant worker his friends at Devoe & Raynolds would have recognized. It was Easterling’s job to get as light a sentence as possible for James Bergstrom, and his client’s demeanor fit the defense’s primary argument, that Bergstrom was ill and needed therapy, not imprisonment, and that if the jury put him away, James Bergstrom would only emerge from a Texas prison an angrier and more brutal predator.

Rosenthal watched Bergstrom’s demeanor warily. “I hate to go to trial,” he said later. “I do it all the time, but I worry through it every time. You just don’t know what a jury is thinking. What is and isn’t selling.” Bergstrom’s conspicuous repentance troubled the prosecutor as he called each of the five women to the stand to testify. It was paramount that the jury understand the damage Bergstrom, this man who
now sniveled pathetically before the jury, had dealt each victim.

The prosecution went first.

The first witness on the stand that afternoon was Sandy Colyard, the fourth-grade teacher. She recounted in vivid detail how James Bergstrom, wearing a white hard hat and carrying a clipboard, had knocked on her door on her first day of spring break that March. Then she spoke of her terror when, minutes later, she saw a ski-masked man staring back at her in her bathroom mirror. “He told me to do exactly as he said and I wouldn’t get hurt.” Colyard grimaced. “He was holding a gun to my head.”

“How has this affected you?” Rosenthal asked.

“It was three or four months before I could even sleep at night,” Colyard maintained. Anger seething, she focused on Bergstrom, who stared repentantly at the floor, periodically rubbing his eyes until they were rimmed a bright red.

As he would with each victim, when Easterling took the floor, he attempted to minimize Bergstrom’s attack on Colyard.

“Could the gun have been a BB gun or something like that?’ he asked her.

“I don’t know,” she said. “It looked real to me.”

Next the prosecution called Detective Frank Fidelibus, who recounted Colyard’s identification of Bergstrom and the events on the day of his arrest. With Fidelibus, Rosenthal made the point that at least one of James Bergstrom’s victims had seen his face and would have been able to identify him whether or not he’d admitted his guilt. That, he hoped, would mitigate the defense’s portrait of Bergstrom as the cooperative and eager confessor.

When Easterling took over, he continued to grasp anything that shined a favorable light on his client.

“Isn’t it true that Mr. Bergstrom was cooperative?” he asked during cross-examination.

“Yes,” Fidelibus answered.

“In fact, he signed the consent to search both his car and apartment, didn’t he?”

“Yes, he did.”

“What happened to you after Mr. Bergstrom sexually assaulted you?” Rosenthal asked Maggie Heller when she took the stand.

“I spent five weeks in a psychiatric hospital,” she said, clutching a handkerchief like a lifeline. “I just couldn’t forget what happened. I don’t like nighttime now. I’m still affected by it.”

“What did he do with the gun?”

“It was cold,” Heller said. “I could feel it pressed against my back. I asked him not to hurt me.”

“Didn’t he loosen the bindings on your hands when you said they were too tight?” Easterling then asked Heller.

“Yes,” Heller said. “He did.”

“Didn’t he say he was sorry?”

“Yes.”

“I kept asking him, ‘Why are you doing this to me?’” Jesse Neal, the waitress, explained to Rosenthal when asked how the attack had changed her. “Afterward, I just couldn’t concentrate on anything. I even lost my job. I just couldn’t function. I couldn’t tell anybody what happened.”

“Didn’t he say he was sorry for having to do this to you?” Easterling asked Neal.

“I don’t remember,” she said, her voice thick with rage and confusion. “Maybe. I don’t see why someone has to do something like that.”

“I can’t be in the house alone anymore,” Cindy McKenzie, the saleswoman with the long black hair, said when
Rosenthal asked how the attack had affected her. “Every time I hear a sound I start to cry.”

“What did he do with the gun?”

“He put the barrel between my legs,” she said, grimacing.

“What did Mr. Bergstrom tell you as he was leaving?” Easterling asked.

“He told me to keep the door locked in the future,” McKenzie whispered.

“Where was your daughter while James Bergstrom was sexually assaulting you?” Rosenthal asked Kimberly Greenmen.

“I don’t know,” she said, staring at Bergstrom throughout her testimony. “She was in the kitchen watching from under a table when he came in.”

“Didn’t Mr. Bergstrom tell you before he left that your baby was okay?” Easterling asked.

“Yes,” she said. “He did.”

After Kimberly Greenmen, the prosecution rested.

The defense called its first witness: Irene Bergstrom. Prompted by Easterling, she gave the family history. How she’d met her husband in Greece while he was in the service. How James had been born in a military hospital in Germany, attended parochial school, played basketball and tennis, earned good grades, and never got in any trouble.

“You understand your son was arrested for sexual assaults?” Easterling asked her.

“Yes.”

“What was your reaction?”

“I was in shock,” James’s mother said, her eyes wide at the prospect that her son could have been guilty of such acts. “I couldn’t believe it.”

“What is your son’s attitude like now?”

“He cries a lot. He’s sorry.”

“What, in your estimation, would be a proper sentence for your son?”

“Something where he would get medical help.”

“Would you be willing to assist in that?”

“Yes. That’s my firstborn son. It hurts.”

Rosenthal asked the harder questions.

“Didn’t you know about your son’s problems?”

“We didn’t know he was raping girls,” Irene Bergstrom persisted, her voice rising in alarm. “We asked him, ‘Are you doing anything wrong, James?’ He said, ‘No.’”

When Easterling brought James C. to the stand, James’s father looked nervous and tired.

“Mr. Bergstrom, what was your reaction to your son’s arrest?”

“A combination of feelings. Crushed, enraged, I felt he’d failed me and the world. That he was kind of a Jekyll-and-Hyde combination, in conflict with the image others had of him. I knew he was mentally upset, somewhat dysfunctional. It seemed to me that he needed some kind of treatment…What little portion of goodness there’s left in him would be eroded away in prison without treatment.”

Next Easterling introduced his first expert witness, Walter Quijano, Ph.D., a former chief psychologist for the Texas Department of Corrections. He talked about the “limited slots” available in the prison program designed to treat sexual offenders and the unlikelihood that James Bergstrom would find adequate treatment within prison walls.

“How would you characterize James Bergstrom?” Easterling asked.

“He has a long-standing deviant sexual history. He first noticed it at a very early age between ten and twelve when he noticed he enjoyed watching television shows that used the combination of force, violence, and nudity or seminudity. He had a young girl he tied down and noticed he enjoyed that. He sexually assaulted her…He has a compulsive component. The thought of using force in sex introduces itself, it interjects into his thinking.

“There are a number of clinical impressions. One is pedophilia, a deviant attraction to prepubescent children. This has not reoccurred since the abuse of the girl. The second is voyeurism. The next is sexual sadism. In order to achieve sexual arousal, there is a need to humiliate another person or use force. He falls under the classification of rapists that is the power rapist. That is, the object is to overpower the woman and to have sex. The object is not so much the sex but the overpowering of the woman.”

Then, when asked by Easterling, Quijano suggested an alternative treatment in a restrictive setting—the type of program involving electronic monitoring, group and individual therapy, and Depo-Provera, the testosterone-depleting drug sometimes referred to as chemical castration.

“Is it possible that with this type of program, Mr. Bergstrom’s problem could be controlled?” Easterling asked.

“It is possible, with much treatment and supervision,” Dr. Quijano answered.

Using the information gleaned from his crash course on power rapists, Rosenthal then took over Quijano’s questioning.

“I suppose,” said Rosenthal, “you’re aware of research in the treatment of sexual offenders?”

“Yes.”

“In terms of treatment, is there much data?”

“No.”

“We really don’t understand it well?” the prosecutor pressed.

“No,” admitted Quijano. “In fact, there’s almost no empirical data.”

“Do you know if there’s a moderate chance, a good chance, of recovery?”

“In terms of recovery?” Quijano qualified. “If by recovery you mean the disappearance of this impulse, this compulsion, no, that is not probable. Mr. Bergstrom is very ill.”

“In terms of the Depo-Provera, isn’t it true that testosterone naturally drops with age?” Rosenthal asked. “Most rapists aren’t over forty, are they?”

“That’s true.”

“Wouldn’t Mother Nature and Father Time be as effective as Depo-Provera?”

“Yes,” said Quijano. “It would.”

“Obviously the prison system would be a secure setting for Mr. Bergstrom, wouldn’t it?”

“Yes,” Quijano admitted. “It would.”

The final expert was Dr. Michael Cox, a clinical psychologist at Baylor College of Medicine. As he had with Quijano, Easterling asked Cox to describe James Bergstrom’s illness.

“Obviously this is a very serious and tragic disorder,” the doctor explained. “It will take many years to feel at all confident that you’ve begun to turn around this particular disorder. The fantasy of bondage has been around for a long time, and to suppress and manage that fantasy takes a lot of intervention.” Then Cox, like Quijano, outlined a program including electronic monitoring and treatment that he judged suitable for James Bergstrom.

When it was his turn to cross-examine, Rosenthal pointed at the jury box. “Dr. Cox,” the prosecutor asked, “can you give these people any kind of guarantee Mr. Bergstrom can be rehabilitated?”

“I’m not in the business of selling appliances,” Cox said. “I don’t give guarantees. I can give probabilities and prognostic statements to the best of my knowledge. That’s as far as I can go.”

James Bergstrom, the trial’s final witness, was next. Seated on the stand, he nervously worked his hands, kneading his palms, often staring up at the ceiling as if to quell tears. He rubbed his eyes, sometimes sobbing quietly, as Easterling took him through a short personal history for the jury. He talked about his years on the Pearland High School varsity basketball team, his refereeing for the YMCA, his tenure on a Trident nuclear sub, his honorable discharge, his stable employment of eleven years at Devoe & Raynolds. Finally he mentioned his “problem.”

“It was something that ate away inside me. Something I fought day to day. I hate myself for that, for the problem I have. I need help,” he said. Then, to the astonishment of anyone who had listened to the women’s terrifying accounts of their rapes, “Thank God, I’m not a violent person who would seriously hurt anyone.”

Bergstrom said that he’d been writing a letter of apology to his victims. “I pray every day to God that they and their families won’t be forever hurt.”