Forgetting Can Be a Big Mistake by Colin Kelly

Curt's life takes a turn that he never expected, and he realizes that it's because he forgot something that didn't seem important at the time. He also discovers that others have forgotten things that are important and that turns out to both help him and hurt him.

Mature or distressing themes. This story deals with abuse.


Chapter 15 — Don’s Bail Hearing Part 3

“Ms. Wolman, as the representative of the Contra Costa County District Attorney’s Office, what is your position in regard to Mr. Wilde’s statement?”

“Your honor, I would like to have a fifteen minute recess to review what Mr. Wilde has requested, if your honor pleases.”

“I do so please, Ms. Wolman.” He banged his gavel. “This bail hearing is in recess for fifteen minutes.” As he sat at the bench it seemed like he was looking at me. So I smiled. It seemed the nice thing to do. He got up and went into his chambers. Beth Wolman walked to where we were sitting and asked Mr. Williams and me to step outside the courtroom to have a brief conversation. She took us to a small meeting room that she said was an interview room, and closed to door behind us.

“Alright, are you as surprised as I am?” she asked Mr. Williams.

“Yes and no. The yes is because I was surprised that he went directly to the GPS bracelet and that apparently he’s done his homework. The no is because I considered that this might be one of the options to allow Don to avoid incarceration until the trial is held. I sent you a copy of my application for a temporary restraining order. It’s what I want in order to protect Curt and to make sure he doesn’t have to watch his back for the next six days. As far as bail, that’s your decision but I’d want it to be high enough to hurt Don’s wallet enough that he’ll remember that he’s paying to be out on bail.”

“We probably can’t prevent bail from being granted in this case. I’m going to ask for bail to be withheld, and if the judge disagrees then I’m going to ask for bail of two-hundred-fifty-thousand dollars, and I’ll present the judge with the application for a temporary restraining order.”

“Wait a minute! I don’t want Don to be out on bail. Why do you say that you can’t prevent bail from being granted?”

“Curtis, I think the probability that bail will be granted is just about fifty-fifty. But that could be forty-nine to fifty-one percent in either direction. Those aren’t great odds, now are they? The reason that there is now a higher probability that bail will be granted is the move to an expeditied trial.”

“When you put it that way I guess not. But I don’t want him anywhere near me. I really think that the next time he might kill me.”

There was a knock at the door and one of Beth’s assistants came in and handed her some papers, then left the conference room.

“I asked Donna to investigate Lawrence Wilde and the Wilde law firm.”

She turned back to the papers and read for a few minutes, then started flipping through them stopping once in a while to read.

She looked up at Mr. Williams. “Well, this is interesting. The law firm of Horton and Wilde is one of the most exclusive and expensive in Silicon Valley. Lawrence Wilde was a criminal attorney for ten years in Miami, then a member of the district attorney’s staff there for five years. He was recruited to join the M. J. Horton law firm to represent clients who were plaintiffs and defendants in trade secret theft and trademark infringement cases. Two years later he was made a partner, and six years ago the firm was renamed Horton and Wilde. The average hourly billing rate for Lawrence Wilde is six hundred dollars.”

I whistled. “Man, that’s what I want to do when I go to college. Is there a major in ‘Becoming a Six Hundred Dollar an Hour Attorney’ at UC Berkeley?”

Mr. Williams had a more practical question. “How is Don paying for an attorney who charges six hundred dollars an hour?”

Beth Wolman shook her head. “We haven’t done an investigation of his finances so that’s a question we can’t answer. And there’s no reason for us to do such an investigation because of the nature of the charges against him.”

“He was trying to take out a loan on my mom’s house. I don’t think she knew about it. Isn’t that illegal?”

“Curt, California is a community property state. That means as soon as your mother married Donovan Clarey he became an owner of the house. He could apply for a loan on the house, but before it would be granted her signature would be required as well.”

“Oh. That’s a good thing, I think. My mom’s really tight about money stuff and especially the house. I think it’s paid off, I guess that means there isn’t a mortgage anymore, right?”

“That’s right, Curt.”

There was a knock at the door, and the Bailiff came in and told us the judge was ready. We got up and followed him into the courtroom and again we sat in back of the prosecutors’ table where Beth Wolman was sitting. I saw Mom sitting in the first row in back of the defendant’s table.

This bail thing had taken a real turn for me. Going from thinking there would be no chance Don would get out on bail to it being no more than fifty-fifty was a bummer. Mr. Williams said he’d be wearing a GPS ankle bracelet so he could be tracked and we’d get the temporary restraining order. I wasn’t sure about that. I’d seen CSI shows where someone on bail had been wearing a GPS tracking bracelet and they figured out a way to take it off. But I guess that’s better than nothing. On the other side of that coin Don’s trial would start next Tuesday, and that was a really good thing. That way Kyle would be able to be at the trial and wouldn’t have any problems with school starting or have to travel back here from Illinois if the trial started later.

The Bailiff stood and made his usual announcement, Judge Everingham came in from his chambers, Don was brought in, and the bail hearing proceeded.

As Beth Wolman had told us, and as Don had done before, he looked at us when he came in. Then he talked to Mr. Wilde who turned around and looked at where we were sitting. I was next to Kyle who was next to Mark. They turned back and sat down when the judge pounded his gavel and started talking.

“Ms. Wolman, you were about to give the court your position in regard to Mr. Wilde’s statement regarding an expedited trial on the charges against Mr. Donovan Clarey, and conditions for granting bail and accepting a restraining order.”

“We would prefer that Mr. Donovan Clarey be held without bail. The serious injuries he inflicted on his stepson are a felony child abuse offense. We also consider him a flight risk.” When she said ‘stepson’ it made my skin crawl. There’s no way I’m any kind of son of his.

“I’m not sure that’s appropriate in this case due to the stipulations made by the defense. Assuming I decide to grant bail, what is the amount you would consider satisfactory, Ms. Wolman?”

“Two hundred fifty thousand dollars, your honor, in addition to the stipulations made by Mr. Wilde.”

Judge Everingham looked at the defense table. “Mr. Wilde, I’m certain that you have a somewhat different amount in mind. What do you consider a satisfactory bail for Mr. Clarey?”

“Fifty thousand dollars, your honor. Mr. Clarey is not a flight risk. He lives in a home with his wife. He has a very responsible position with Ensenal Corporation in the pharmaceutical sales division, and was just promoted to Western Region Sales Manager. We contend that he is not a danger to the community. In that regard, he attests that he will honor the terms of a reasonable temporary restraining order in regard to his stepson, Curtis Fischer.”

“I’ll split the difference. Bail will be set at one hundred fifty thousand dollars, along with the stipulations made by Mr. Wilde and agreed on by Ms. Wolman and Mr. Williams. In addition, I have a keep-away restraining order for Mr. Donovan Clarey from Mr. Williams, Curtis Fischer’s attorney. It pleads the court to restrain Mr. Donovan Clarey from coming within six hundred feet of Curtis Fischer or any location Curtis Fischer would reasonably expect to be frequenting, including but not limited to Los Arcos High School, any home or other location where Curtis Fischer may be living, Heather Farm Park, the Larkey Swim Center, the Walnut Creek and Ygnacio Valley Libraries, and so on, and travel routes between the home or other location where Curtis Fischer is currently living and any of the locations included in this keep-away restraining order. The time limit on this keep-away restraining order is through the completion of the trial which I understand is scheduled to begin next Tuesday. This courthouse and its environs are excluded from this keep-away restraining order. In addition, Mr. Clarey is not to travel outside of Contra Costa County until the start of his trial. The trial judge may impose further restrictions on Mr. Clarey’s travel that would be in effect during the course of the trial. Mr. Wilde, are these terms acceptable to Mr. Clarey?”

“Yes, your honor,” Lawrence Wilde replied.

“Then I declare that when a guarantee of bail in the amount of one hundred fifty thousand dollars has been presented to the Bailiff, and Mr. Donovan Clarey has signed the keep-away restraining order and it has been notarized, and the GPS tracking unit has been affixed to Mr. Donovan Clarey by a member of the Contra Costa County Sheriff’s Department, conditions of bail will have been met by Mr. Donovan Clarey. Any violation of this bail order, or alteration or removal of the GPS tracking unit, or the keep-away restraining order will be considered a violation of the conditions of bail and an order for the immediate arrest of Mr. Donovan Clarey and he will be returned to the Contra Costa County Jail with loss of the bail amount in full. Violations to this bail order are considered to be a felony because you have been charged with a felony offense. Do you understand and agree to all of which this entails, Mr. Clarey?”

Don stood. “Yes, your honor.”

Judge Everingham banged his gavel. “This bail hearing has concluded.” The Bailiff called out, “All rise,” and Judge Everingham stood and walked into his chambers.

Lawrence Wilde and Don sat talking, so we left.

 When we were outside of the courtroom Beth asked, “Can you all meet me in my office in fifteen minutes? I’d like to prep you for what will and what might happen during the trial.”

Mr. Williams looked at us and we all nodded. “I’d like to stop at Peet’s on the way to your office. I think we all need a bit of caffeine. That might take a little longer than fifteen minutes. Is that okay?”

“Only if you get me a large black non-decaf coffee and have them add two shots of espresso.”

He laughed. “That’s a lot of caffeine, Beth.”

She reached into her purse. “I need it. Here, I’ll pay for it.”

“No, this is my treat,” he replied, “I hate figuring out the change that I have to pay back when I’m buying things with money coming from more than one person.”

Beth laughed. “Okay, your treat. I’ll see you in my office in about fifteen or twenty minutes then.”

Peet’s was three and a half blocks from the District Attorney’s offices, and when Mr. Williams ordered a large coffee with two shots of espresso the barista laughed and said “This is for Beth Wolman, isn’t it?”

Mr. Williams seemed surprised. “How did you know?”

“She’s the only person who ever orders a large coffee with two shots of espresso. She’s famous here.”

It took us the whole twenty minutes to get to Peet’s from the courthouse, order our drinks and have them made, and then go to Beth Wolman’s office in a building up the street from the courthouse.

Mr. Williams set her drink on the conference table.

“Ah, caffeine! Do I need that now.” She took a big sip out of the cup, closed her eyes, and smiled.

“Let’s get down to business. The first thing I expect is that Lawrence Wilde will want to depose Curtis, Mark, and Kyle. Because he requested an expedited trial date, and we were able to accommodate him with a starting date on the 24th of July, he has very little time to hold depositions. He might even ask to hold depositions on the weekend, on Saturday.”

I could see that both Mark and Kyle were as clueless as me, I asked the question, “What are depositions?”

“They,” she replied, “are sessions where the defense can question the victim and witnesses against their defendant, and the prosecution can question those on the witness list provided by the defense and the defendant as well. Or, both sides can agree to dispense with depositions. The advantage for both sides is that we learn who will be testifying and what they are likely to say. The disadvantage for the defense is that the prosecution learns what approach they will be taking in defense of the defendant. The disadvantage for the prosecution is that their witnesses and the victim or victims can be harassed by the defense during the deposition.”

“Harassed? Can they do that?”

“Curtis, what I mean is that they can ask the same questions in different ways to see if they get conflicting answers. Actually, it’s not just the defense that will be doing that, the prosecution will be doing the same thing to the defense witnesses and the defendant as well. The results of the depositions can be used during cross examination as well to rattle witnesses, victims, and the defendant to make the jury doubt the veracity of what they are hearing.”

“What’s ‘veracity’ mean?” Kyle asked.

“The truthfulness, honesty, and accuracy of what is being said by the person in the witness stand. Now, remember that we agreed with the defense that this will not be a jury trial. That means the judge will decide the outcome and, if the result is a guilty verdict, he will also decide the term of the sentence.”

Still stuck on the deposition part, I asked, “When will we know if there’s going to be depositions?”

“We have to have 48 hours’ notice, and depositions have to be completed 48 hours prior to the trial. That means he has to give us notification no later than tomorrow morning. Let me put it this way. If he notifies us by noon today then depositions can be scheduled either Friday or Saturday. If he notifies us tomorrow morning then depositions can be scheduled on Saturday. Not only that, we have to provide each other with our witness lists by noon today, and we have to make those witnesses available on the deposition date.”

“Do you think the defense will ask for depositions? And if so, who decides on the deposition date?” Mr. Williams asked.

“To answer your second question, the dates for the depositions have to be mutually agreed upon by both the defense and the prosecution.  Do I think the defense will ask for depositions? Yes, if they want to delay things or learn what our witnesses are likely to say during cross examination. No, if they want to keep us from learning what their witnesses are going to say during cross examination. You didn’t ask if I plan on asking for depositions. The answer is no, for essentially the same reason I don’t expect Lawrence Wilde to ask for depositions. We both know who our witnesses are likely to be, so there’s no reason to take the time or cost of holding depositions.”

“What if he wants to delay things,” Kyle asked.

“That’s a good question. He might when he learns that Judge Fipps is being replaced by Judge Young. However, if Judge Fipps isn’t replaced then I will ask for a jury trial. That would be to our advantage because juries uniformly dislike child abusers.”

I had questions that I didn’t get to ask this morning about the temporary injunction that I decided to ask now. “This is about that temporary injunction. When will we hear that Don is out wandering around? How will they monitor his GPS bracelet? How is the GPS bracelet attached so he can’t get it off? What if it gets wet, like when he takes a shower or a bath or goes swimming? This whole thing about him being out on bail still scares me a lot.”

Beth took a deep breath. “Okay Curtis, I’ll answer your questions. Let me know if I skipped any of them.

“First, the Sheriff’s office will advise my staff when he’s been released. Remember, before that can happen his bail has to be guaranteed by a bail bondsman or payment of the bail amount in full. By the way, with bail as high as Donovan Clarey’s it’s very unlikely that his bail amount will be paid in full. And, assuming that all terms of his bail are met and the trial concludes, regardless of the verdict, in that case the bail amount would be returned in full. If bail is guaranteed by a bail bondsman then that’s basically a secured loan for the amount of the bail and whatever was put up as collateral for that loan will be taken by the bail bond company.

“Second, the Sheriff contracts GPS tracking and the units themselves to an outside company that specializes in GPS tracking. The unit will be installed and locked onto one of Donovan Clarey’s ankles and tested by a Deputy Sheriff who has been trained to do that job. Finally, the tracking company tests and confirms that the tracking information signal is being received at their local office.  At that point he will be released.

“Third, the GPS unit signals if it is altered or damaged or if it is removed from his ankle. The lock system is redundant, that means there are two different types of locks, both supposedly non-tamperable. I’ve been told that the only way it can be removed is to physically cut it off. Doing so sends that information to the tracking office. If he goes to a place where the signal is weak or is blocked, that information is sent to the tracking office.

“Finally, the unit is completely waterproof. They have been tested in the ocean at a depth of 350 feet, frozen in a block of ice buried in twenty feet of snow in the Sierra, and in a 450 degree oven, and they worked without any problem sending a signal that they were in an unusual environment to the tracking office. I went through the same training as the Deputy Sheriffs who are responsible for the GPS bracelets in our county.”

“You did?” I asked, and she nodded. “Wow! That must have been real interesting.”

“It was. Several of us from the District Attorney’s office took the class because we need to know how it works and whether it’s secure and makes sense for us to use as a condition of granting bail. Now, did I answer all of your questions?”

“Yeah, I guess so. Regardless, I plan to always be with others and watch were I am and who’s nearby and that it’s not Don. I’m not taking any chances.”

“That’s a good idea, Curtis. Now, what’s next is that I need to schedule individual meetings with the four of you prior to the trial on Tuesday to talk about your cross examinations. I’d like to schedule those right now. Curtis, let’s schedule your meeting first.”

“Okay, but what if Don’s attorney decides he wants to have depositions with us. That might conflict.”

“That’s why I want to schedule my meetings first. The best thing would be to do them this afternoon if you are all available.”

“You said four. I know who the three are, me, Kyle, and Curt. Who’s the fourth?” Mark asked.

“Your grandmother.”

Mrs. Hutchins looked surprised. Very surprised.

“Why would I have to testify?”

“You were with Mark and heard the shouting and crying from Curtis’s home. You phoned the police. You’re the only adult I have as a witness. Your testimony will corroborate Mark’s testimony. You are very important to my prosecution of Donovan Clarey.”

“Then that’s fine. I’ll be a willing witness. It would be best if Mark and I can have our sessions back to back so we only have to come here once.”

“What if we can schedule everyone today? Will that work for everyone? I’ll need at least a half hour with Curtis and the same with Kyle, and perhaps a little less than that for Mark and Mrs. Hutchins. Did you all come together or drive separately?”

“We all came together,” Mr. Williams replied.

“Then is everyone available to stay through all of the meetings with me, waiting before and after their meeting?”

“I brought my Kindle,” Mrs. Hutchins smiled. “I have about 30 books on it that I haven’t read yet so I have no problem waiting. I can also act as the chaperone for the boys who are waiting.” She grinned, then chuckled, so I knew she was just kidding. I made a pouty face anyway, and she laughed at that.

“Grandma, why don’t you go first?”

“That’s fine with me, Mark. Is that acceptable, Beth?”

“Yes. We could get started right now.”

“In that case Beth, I’ll head home and return when you start your last meeting,” Mr. Williams said.

“Let’s see. It’s almost eleven. Just come back at two and I should be finished or close to being finished. Then we can grab a bite to eat at Copper Skillet and talk about what’s next, and by then I should know if Lawrence Wilde called to set up depositions and what I’m going to do about that.”

“Alright, I’m going to leave. I have work piling up on my desk at home. Curt, will you be okay?”

“Sure. No problem.”

“Do you have any money?”

I checked my wallet. “I have about thirty bucks. That should be plenty.”

“Then I’ll see you all later, and you guys be good,” and he left.

Beth turned to me. “Why don’t the three of you head out and get a Coke or whatever you want, and be back in the reception area out front in a half hour.”

“Okay,” I replied. “Let’s go, guys. What should it be, Peet’s or someplace else?”

“Is there a McD’s near here?” Kyle asked. “I could go for a burger or some Chicken McNuggets.”

“I noticed one on our way back from Peet’s this morning. It’s only a block from here. Let’s go.”

We took the elevator to the ground floor and walked out of the building and down the stairs to the street. As I turned left I saw Don and Lawrence Wilde. They were walking toward us, and he saw me and recognized me. The look on his face changed. He looked mad. No, furious. Lawrence Wilde grabbed his arm but he shook it off. Kyle stepped in front of me, and Mark grabbed my arm trying to pull me back toward the building entrance. Don kept walking toward us, faster now. I was so terrified I couldn’t move.

So much for the fucking restraining order.

[Continued]

Thanks to Cole Parker for editing Forgetting Can Be a Big Mistake


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This story and the included images are Copyright 2011 by Colin Kelly (colinian). They cannot be reproduced without express written consent. Codey's World web site has written permission to publish this story. No other rights are granted.

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