Primary Justice (Ben Kincaid series Book 1) (18 page)

“Opening statements, gentlemen.”

Ben rose to his feet, then realized that Sokolowsky was also standing. Sokolosky’s motion was first on the docket. That meant he spoke first.

“I think it would be better if we spoke one at a time, son.” The judge chuckled, then looked to his clerk for a response. The woman grinned.

Mortified, Ben sat down.

Sokolosky walked to the podium. “Your honor, as you say, this is an extremely simple case. It is also a textbook litany of wanton misbehavior, of disobedience to the laws and policies of this state, and a testament to the prudence of the judicial tenets announced by courts such as this one.” He gestured deferentially to the judge.

“Your honor, Emily X is a foundling. Bertha Adams
found
the child. She did not report her discovery to the Department of Human Services, although she was advised to do so. She did not report the finding to any of several missing child agencies active in this state. She did not attempt to find suitable foster parents or to locate the child’s biological parents. She simply took the little girl home, to lead a cloistered, secluded life. She lied to her neighbors and kept the little girl to herself.

“In this day and age, we hear many rumors about elderly people snatching children from shopping centers and forcing them to become domestic servants or … to adopt even more revolting roles. While we are not suggesting that anything like that has occurred—”

The hell you aren’t, Ben thought.

“—there is something … unusual about Mrs. Adams’s handling of this matter.”

Sokolosky shuffled through a file. “The Department has prepared a report, your honor, based upon what little information is known about the woman who calls herself Bertha Adams. Although I do not wish to appear indelicate, the Department earnestly believes that she is not a suitable foster or adoptive parent for several reasons. She fails to meet many, indeed most, of the objective criteria established by the Department.”

Sokolosky gave a copy of the report to the bailiff, who then handed it to Judge Mayberry. He gave another copy to Ben.

Ben quickly glanced over the report. It was a graph-style report titled “Parent Evaluation.” Long graph lines indicated the areas of inadequacy.
Age
was the longest. The report also noted her lack of experience at child raising, the absence of any regular income of her own, and, without explanation, the fact that she was a single parent.

Ben closed the report folder, furious. The report was intentionally misleading.

“Your honor, we do not doubt that Mrs. Adams has formed some sort of attachment or”—he paused meaningfully—“dependence on the child she has kept for so long. But we have been charged by the state of Oklahoma to try to find the best home possible for each such ward of the state. We have an extensive list of ideal parents who would simply love to adopt a little girl, even one as old as Emily. We respectfully request that this court deliver custody of the child to the DHS so that we can assign her to a permanent home.” Sokolosky collected his papers and sat down.

The judge evidently felt the need for some levity. “
Now
it’s your turn to talk, son,” he chuckled. He looked again to his clerk for a response, which she freely gave. How nice to have your own standing audience, Ben thought.

Ben rose, attempting to exude confidence. He placed his notes on the podium. He had meticulously planned his strategy for his opening argument. He couldn’t possibly justify the way Jonathan and Bertha had kept Emily without telling anyone, so he was better off not dwelling upon it. Instead, he would emphasize Bertha’s warmth and good nature, her nurturing of the child despite difficult circumstances, and the bonding that had taken place.

“Your honor,” he began. His voice sounded scratchy. He cleared his throat and started again. “Your honor, I notice that, although the DHS complains that my client doesn’t meet many of their generalized, preconceived qualifications, they have never stated that she is or would be an unfit parent. Emily has lived with Mrs. Adams for almost a year now, and yet the DHS has made no complaints whatsoever about the child’s treatment during that time. Mrs. Adams may not have followed the proper procedures, but I submit that she nonetheless has earned the right to be considered Emily’s foster parent in loco parentis. I understand that the Department has its rules and procedures, and that it likes to see that they are observed. But the dispositive legal question in a proceeding of this nature is: What is in the best interests of the child? A slavish devotion to administrative procedure is not more important than the child herself, and I’m sure that this court cannot be fooled into making a decision that holds otherwise.”

“Don’t underestimate me,” the judge said. Again, the chuckle, the quick glance to the peanut gallery. Ben had the distinct feeling he was not making an impression.

“Thank you, son,” the judge said suddenly. “I think I’ve grasped your point.”

Ben stammered, then fell silent. He wasn’t half-finished yet.

“It’s pretty clear to me that these two motions are mutually exclusive,” the judge continued. “If I give the DHS the girl, I can’t let Mrs. Adams adopt her. And if I let Mrs. Adams adopt the girl, then the DHS ain’t gonna get her. So I’m going to consolidate these two motions and make a single decision at the conclusion of the hearing. If the Department has no objection, I’m going to ask Mr. Kincaid to call Mrs. Adams to the stand, ’cause it looks to me like she’s the only person I’m gonna need to hear from to decide this one.”

Sokolosky half rose with a little bow. “No objections, your honor. We concur.”

Consolidation. Cut straight to the key witness. Again, the hurry-up treatment. Why was Mayberry so determined to conclude this hearing?

Ben called Bertha to the stand. She took her seat at the judge’s lower left with relative ease, but it was clear to Ben she was extremely nervous. Realistically, Ben knew he couldn’t count on her for much.

Slowly and methodically, Ben took Bertha through the course of her life with Emily. How her late husband brought her home. How they took her to the police, but no trace of a parent could be found. How happy Emily made their home. How, at the suggestion of Joseph Sanguine, they found a lawyer to help them legally adopt Emily. Following Ben’s prior recommendation, she did not mention Emily’s neurological condition. Bertha spoke in a flat, even tone of voice. Ben knew that her nervousness was affecting her voice, but he was worried that it might be making her sound disinterested or artificial.

The judge listened to her testimony without comment or expression.

“Mrs. Adams,” Ben continued, “if this court allows you to adopt Emily, will you do everything in your power to raise her in the best possible way?”

“Yes,” she answered simply.

Damn. Ben didn’t know what to do. That leading question was her opening to expand on her testimony, to deliver a persuasive speech, to convince the court of her earnestness. Ben had prepared her for this before the hearing. In her nervousness, though, she had forgotten everything. She had given a dry, one-word, almost noncommittal answer.

“Let me ask you again, Mrs. Adams.”

“Objection,” Sokolosky said, rising to his feet. “Asked and answered.”

“Sustained,” the judge responded without hesitation. “Anything further, counsel?”

Ben couldn’t think of anything more to do. “No more questions,” he said.

Sokolosky rose and walked to the podium to begin his cross-examination. Ben noticed that his long yellow legal pad apparently contained pages of canned questions. He hoped Sokolosky’s plan was not to badger Bertha into saying something harmful by keeping her on the stand for an unbearably long period of time. He sensed that Bertha was already close to her limit.

“Mrs. Adams, you’ve kept Emily for almost a year now, is that correct?” Sokolosky was adopting a businesslike, just-the-facts-ma’am approach. Distancing himself and the court from the situation and its inherent emotionality.

“Emily has stayed with us, yes.”

“You reported discovering her to the police, didn’t you?”

“Yes, I’ve said that.”

“But, Mrs. Adams, the police told you that you should contact the Department of Human Services, didn’t they?”

Bertha hesitated. “Yes.”

Sokolosky continued to drive his point, home. “In fact, I think it’s safe to say that they assumed you would do so, don’t you?”

“Well, I don’t know. Perhaps. Yes.”

“Yes. Probably you even
assured
them that you would. But you didn’t, ever, at any time, contact the Department, did you?”

Bertha looked downward. “No.”

“No. You kept your little treasure to yourself.”

Ben didn’t know what to do. Nothing Sokolosky said was really objectionable. Obnoxious, yes. Prejudicial, sure, but a judge, unlike a jury, is assumed to be able to sort the prejudicial from the probative without help from counsel. Ben didn’t see Mayberry as the sort of judge who would enjoy a lot of time-consuming objections, especially when he was so anxious to move things along.

“I expect Emily is quite a good little helper to have around the house.”

Bertha’s face changed slightly. “No,” she said, with a soft laugh, “not really.”

For the first time, Sokolosky smiled. At the judge, not Bertha. “Oh, now, Mrs. Adams, haven’t you ever asked Emily to help you … oh, let’s say, wash the dishes?”

“Y-yes, of course, but—”

“Maybe to take out the trash.”

“Yes. Certainly—”

“Fetch you a drink. Do the ironing. Keep you company.”

“It isn’t
like
that,” Bertha protested. Her voice rose in pitch with her agitation. Sokolosky had put her on the defensive; she sounded defensive. “You’re trying to make it sound like—”

“Just answer the questions, Mrs. Adams.” The judge cut her off in midsentence. “Your counsel will make the speeches for you, no doubt.” He looked down disapprovingly at Bertha.

“But he’s making it sound like—”

“I won’t tell you again, Mrs. Adams.” The judge looked away. Bertha held her tongue.

Sokolosky took a long pause, letting the awkward moment fester. “Just answer one question for me, Mrs. Adams,” he said finally. “Just one simple yes-or-no question. In the entire time that Emily has lived with you, can you honestly say that Emily has developed a strong attachment to you?”

Ben looked up at Sokolosky. He
knew
.

Bertha hesitated. Ben could see her eyes watering.

“Objection, your honor!” Ben found himself on his feet before he had consciously formed the thought.

The judge looked at him with a raised eyebrow. “Really, son? Sounds probative to me. What are the grounds for your objection, pray tell?”

Ben stuttered and hemmed. He didn’t have any grounds. And he didn’t want to refer to Emily’s disorder. “It just … it isn’t fair, your honor.”

The judge nodded his head with an exaggerated bobbing motion. “Oh, the ol’ it-just-isn’t-fair objection.” He laughed, and Sokolosky laughed quietly with him. Opportunistic bastard, Ben thought. “I don’t think I’m familiar with that one, Mr. Kincaid. Perhaps I need to reread the Oklahoma Rules of Evidence.” Even Derek got a laugh out of that one.

After the courtroom settled down, the judge returned his attention to Bertha. “Overruled. The witness
will
answer the question.”

“I don’t remember it,” Bertha said, in a trembling voice.

Sokolosky chirped in to refresh her memory. “I asked you if you can honestly say that Emily has formed a deep attachment to you. Unlike Mr. Kincaid here, I don’t think it would be so outrageous to find that two people who have lived together for nearly a year are fond of one another. Has she ever told you she loves you?”

“No,” Bertha said softly.

“I don’t think the court heard that.”

“
No
,” she said, much louder, her head turned down. Tears were streaming from her eyes.

“Does she invite other children over to meet you?”

“No.”

“Does she ever wake up in the morning and call your name?”

“Of course not,” Bertha said. “She isn’t able to—”

“Yes or no, Mrs. Adams.”

Ben steeled himself. “Objection.”

Sokolosky cast a downward glance at Ben. “Again, Mr. Kincaid?”

He knows, Ben thought, glaring across the room at Sokolosky. The bastard. He knows and he won’t let her explain. “Your honor, the witness has a right to explain her answer. The court can’t force her to answer yes or no.”

The judge spoke, his voice tinged with irritation. Ben immediately realized it was a mistake to tell the court what it couldn’t do. “This is cross-examination, Mr. Kincaid, not direct. You may recall some discussion of cross-examination in law school. Mr. Sokolosky has the right to ask yes-or-no questions, and when he does, she is obliged to answer them in a like fashion.” He leaned back in his chair. “You’ve already had ample opportunity to develop the facts on direct, Mr. Kincaid.”

Sokolosky didn’t miss a beat. “Mrs. Adams, I repeat: Does Emily ever wake up in the morning and call out your name?”

“No,” Bertha whispered. She was crying full force now. Her makeup was smeared hideously. She was totally broken.

Ben swore silently to himself. The fact was she looked guilty. And incompetent. Like someone who got caught. No one you’d trust a little girl to.

Sokolosky paused yet another significant moment, then said, “I think that’s enough, your honor.”

Judge Mayberry rustled a few papers in his hands. “I am prepared to rule.”

“But, your honor,” Ben said, rising to his feet. “My redirect—”

“Not necessary. I’ve reached a decision.”

“Your honor, I have a right to rehabilitate my witness.”

The judge’s voice rose to a shout. “Son, you don’t have a
right
to anything! This court sits in equity, and it can do damn near anything it pleases. It’s time for you to cease this whining every time you don’t get your way. You sound like a two-year-old, not an officer of the court.” He mimicked Ben in a squealing voice. “ ‘I have a right, I have a right.’ ” He pointed his finger directly at Ben. “If you’re going to practice law in my court, son, you’re going to have to grow up.”