2008
Before she ever laid eyes on the packed court, on the formidable judge on the raised bench, or on Craig sitting at the defense table, Bobbie had waited in an ancillary room in quiet solitude while Diana Elstree, the most bewitching of criminal defense attorneys, a woman who made it her life’s work to ensure that no innocent person be locked up, turned to the jury and delivered in her opening statement a perfectly rehearsed, critical message.
“Ladies and gentlemen,” she began, “our justice system tells us that if you have a reasonable doubt then you cannot find a defendant guilty. That’s the law. It’s not a special favor to this man that reasonable doubt means he cannot in these United States be convicted, it is the way in which our judicial system works, a system all of us in this room are sworn to abide by. But you already know that. The honorable judge has already explained to you that this man must be presumed innocent until proven guilty.
“I will show you that Mr. Kirtz is innocent, but I want you to know that innocence is not what you are deciding. You are deciding whether the evidence proves he is guilty. You are going to hear a lot of things in this courtroom about what allegedly took place thirty years ago. The prosecution is asking you to declare that these historic acts took place and to make that declaration without any reasonable doubt in your mind. That is a big ask. Especially, as I will show you, because there is not one piece of physical evidence against my client.
“Not only no physical evidence—there is no circumstantial evidence, and absolutely no witnesses to the alleged sexual offenses, either. That piece of furniture over there we call a witness stand will only be used for character witnesses in this hearing. None of the witnesses for the prosecution actually saw anything.
“With no evidence against him, my client nonetheless took a polygraph test. Voluntarily. You can read the polygraph report yourselves, but shall I tell you what it says? It’s inconclusive. It says nothing. After thirty years of silence, a woman has taken it upon herself to accuse Mr. Kirtz—her stepfather—of a historic crime nobody saw, with evidence nobody can produce. And while it may be true that in the state of Maryland there is no statute of limitations on sex crimes against children, there is still the requirement of a burden of proof.”
A lesser lawyer than Elstree might have leaned harder on the historic nature of the case, but what Elstree set out to do was chip away at the fragile evidence, then convince the jury that to convict a man on so little proof was unethical. Elstree was a showman, but even stronger than her presence in the courtroom and her ability to charm a jury was that she was a principled professional with a long-held belief of her own, one handed down by the second president of the United States, John Adams, whom she quoted as she finished her opening statement. Walking over to the jury, she leaned on the railing in front of them, and as though reciting the Lord’s Prayer, she said, “It is more important that innocence be protected than it is that guilt be punished.”
Closed up in the ancillary room, unaware of anything taking place in the courtroom, Bobbie heard none of this. If Elstree had been warned by the judge not to argue the law, Bobbie did not hear. If she’d been stopped midway and asked not to make closing arguments during her opening statement, Bobbie did not hear. Nor did she see the jury warming to the defense. She did not notice the one juror who nodded as Elstree finished her remarks. But somehow, even before she stepped onto the stand, Bobbie knew the defense counsel had won over jurors. Equally she knew that the man on trial was not innocent. Craig had done exactly as she described, and more. Bobbie reminds herself of the facts when the recess is over and she returns to the witness stand to continue the cross-examination with Elstree. As the questions begin, she tries to keep herself focused, in control of her emotions, and absolutely solid in her testimony. She’s good for a while, but as time drags on, Elstree digs into her, and she feels the case sliding south.
“So after the crash, you thought Mr. Kirtz was dead, is that correct?”
“Yes,” Bobbie says.
“Did he have a pulse?” Elstree says.
“I don’t know,” says Bobbie. “I didn’t check.”
“You didn’t feel for a pulse?”
“No.”
“Did you listen to his heart?”
“No.”
“Did you check that he was breathing?”
Bobbie thinks about the fact that she did not even check such a simple thing. Then she says, “No.”
“What did you do, then, to determine that he was dead?”
She ought to have done something, she knows, but she can’t recall touching his body. She remembers wishing she could bring herself to crawl over it to get out the window. But this, she understands, is nothing she should admit. “I don’t know,” she says.
“Is it fair to say you don’t remember?”
The courtroom is silent. Bobbie’s head is pounding. She feels a tingling in her arms, too, another stress response that she can do nothing to control. Meanwhile, Elstree continues, “This is a pretty important fact—a man being dead or not. And you can’t remember this?”
Bobbie feels she is being cornered. “I didn’t know if he was dead or not,” she says.
“Is it possible that you don’t remember because you were not there?”
“No.”
“That you imagined you were in that car because it played such an important part in what happened next, when your mother devoted herself to Mr. Kirtz?”
Dreyer objects, Elstree withdraws. The judge seems to agree with Dreyer but Bobbie answers the question anyway, saying, “I did not imagine it.”
“After the crash, am I correct in saying your mother became very involved with Mr. Kirtz?”
“Yes.”
“Caring for him, taking care of his bills while he healed, even moving him into the family home?”
“Yes.”
“And that before the car accident none of this had transpired?”
Bobbie understands where Elstree is going with this line of questioning but is at a loss, as she has been so many times today, to stop her. “Yes,” she admits.
“Suddenly, all this attention to Mr. Kirtz. Did you want Mr. Kirtz to live with your mother? Yes or no?”
She knows that Elstree wants the jury to imagine her as jealous and misguided, a lonesome teen who grew into a resentful woman, now coming to testify against a man just because she hates him. But she is helpless to prevent the picture coming into view. “Well, given what he’d been doing to me, you can imagine I didn’t like it.”
“So, your answer is no?”
Bobbie hesitates. “That’s correct,” she agrees.
The room is silent as Elstree says, “You say he had sex with you around the time of your fourteenth birthday. Is that correct?”
“Yes.”
Elstree does her best to describe what is meant by sex, an excruciating explanation that nonetheless seems to put a favorable gloss on it.
“From what you told the DA, there were no witnesses, correct?”
“I explained that. I knew it would get Craig in trouble—”
“I am not asking you about that. I’m asking you to name a person who saw any sign of sex taking place between your and Mr. Kirtz.”
Bobbie says, “Daniel Gregory knew.”
“Did he or anyone else see anything that would suggest that Mr. Kirtz was having sex with you?”
“Objection!” Dreyer’s voice again. “Irrelevant.”
The judge overrules and Elstree continues, saying, “So nobody saw any sign of attraction. To your knowledge, did anyone ever see you and Mr. Kirtz together without the presence of your mother or another supervisory adult?”
Bobbie wants to tell her that she hadn’t wanted to be seen, that she was terrified of being seen. Also, that she has already said as much to the court. She explained all this first thing this morning, when Dreyer asked her to describe what had happened. But she understands she is supposed to answer yes or no, even though neither of these words are adequate. “No adults,” she says finally.
“Does that mean that nobody saw you alone with Mr. Kirtz?”
“Daniel Gregory did,” Bobbie says quietly.
“Yes,” says Elstree, and then thumbs through some notes on her table. “You had a romantic relationship with him, correct?”
“Yes.”
“Any other person you can name right now ever see you alone with Mr. Kirtz?”
Bobbie shakes her head, then stumbles through an explanation. But all it amounts to is that no, nobody saw a thing. She hates to admit this. She is aware of the jury watching her, of the judge beside her in all her robes and splendor. She feels puny, sitting in the witness stand. And she feels wrong.
Elstree says, “During the time that this sexual relationship was allegedly taking place, did you tell your mother about it?”
She hadn’t. She has so often wished she’d said something, anything, no matter how difficult that might have been, but she had said nothing.
“No,” she says.
“And nobody saw any such event take place?”
“Objection, asked and answered,” says Dreyer.
She does not want to answer this question again but the judge, remarkably, rules against the objection and requests her to do so.
“Can you answer into the microphone?” Elstree asks.
“No, nobody saw,” says Bobbie.
“At the time, did you tell your mother your wishes that Mr. Kirtz not live with you?”
“Yes,” says Bobbie. “Yes, I did.”
“But your mother allowed him to live with you anyway?”
“Yes.”
“Did your mother ever explain why she asked Mr. Kirtz to live with her? Did she tell you that she loved him, for example?”
“No.”
“Did she tell you that he brought in a substantial income that would help the family, help you?”
“No, absolutely not.”
“Are you aware of this income?”
Bobbie shakes her head. “No,” she says.
“So you had no idea why it might be a good thing for your mother and, perhaps, even for you if Mr. Kirtz came to live with you in the family home?”
Bobbie says no, she did not. She feels demoralized, humiliated. Why would it have been a good thing for Craig to live with them? “I can’t recall any good reason,” she says. In fact, she could never figure out why her mother even liked Craig, let alone why she loved him. He was rude and intrusive and filthy and rank, and yet June seemed to take in none of this. Every once in a while he’d make a gesture—a dinner out, a bouquet of flowers—but these were only moments and did not deserve the great importance June placed on them. Her mother was crazy about him—isn’t that the expression, crazy about a person? “You’d have to ask June.”