William Bernhardt - Primary Justice

“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 ho, 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.”

Ben was frozen in silence.

The judge, took a deep breath. “You have some nerve even protesting this decision, which we all knew damn well was inevitable. Your client has broken every regulation in the book. Feel fortunate I have decided not to issue sanctions, due to her advanced age. I think it’s pretty clear what took place here. I don’t like it a bit, and there’s no law firm in the world big enough to make me think otherwise.”