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 33 — Motions and a Big Mistake

Now that the Judicial Panel had been selected, the Judge called for motions.

The Prosecution made a number of motions that didn’t make any sense to me, probably because I’m not an attorney. The motions had to do with things like allowing rebuttal witnesses to be added to the witness list (allowed, on an individual basis at Judge Young’s discretion); accepting written statements from Doctor John Leonard and Nurse Karen Carpenter who worked on setting my arm when I arrived at Valley Medical Center (that one had an objection from Lawrence Wilde who said he should be able to cross examine the doctor and nurse but Judge Young shot him down and agreed with the Prosecution that written statements were acceptable); and a lot of others that seemed to be procedural stuff (because they used that word, ‘procedural’, a lot, in their motions); Judge Young approved of about half of them.

The Defense had their list of motions. They asked that Judge Young declare Donovan Clarey innocent by Summary Judgment (Judge Young denied the motion without comment; that’s what he said, “I’m denying this motion without comment,” which to me sounded like a comment); closing the courtroom during my testimony so my injuries could be shown to the Judicial Panel with privacy to protect me since I’m a minor (denied as not necessary; I agreed with the Judge’s decision because I wanted people to see my injuries, and I didn’t understand why not showing what Don had done to me in order to protect me would be necessary); the sequence of Prosecution witnesses (approved); almost all the rest were yada-yada-yada as far as I’m concerned, except the most interesting one which had to do with bringing Otto Vanvelick in to give testimony and the Prosecution objected because he’d been convicted of perjury in Don’s bail hearing (Judge Young allowed Vanvelick to testify but declared him as a hostile witness so the Prosecution would have more leeway in cross examining him).

Motions concluded at twelve thirty. Judge Young declared the trial adjourned for lunch and that it would continue at two o’clock. I stood up and turned around. I didn’t see my mom and wondered where she was. As we walked out of the courtroom we met with Mrs. Hutchins, Mark, and Kurt then stopped at the guard’s table. He checked our names and gave us our lunch vouchers.

“You guys like Mexican food?” I asked everyone in general. They all said ‘yes’ or nodded.

I asked the guard, “Is there a good Mexican restaurant near here?”

“Ah, yes, La Cuchara. It’s close. Take Court Street to your right as you exit the building, and at the intersection turn left. That’s Main Street. It’s about three blocks down on your right, next door to the bank. It’s included on your voucher. Tell them Marco sent you. You’ll get churros for dessert on the house.”

“You know the owner?” Mr. Williams asked.

“Yes, she’s my mamacita.”

We grinned and thanked him, and the six of us headed for the exit doors and the walk to La Cuchara.

“You guys are taking Spanish. What’s the translation of ‘cuchara’?” Mrs. Hutchins asked.

I looked at Tom and he shrugged his shoulders. I grinned.

“This is a word I’d think Tom would know because he loves to eat. A cuchara is a spoon, and La Cuchara means The Spoon.”

“That’s a good name for a restaurant,” Tom said, “and now I’ll never forget that word. I remember that we had that in first year Spanish when we learned the words for going to a restaurant. Puedo tener una cuchara, por favor?”

“And what’s that, por favor?” Mr. Williams asked him.

“May I have a spoon, please?”

I bumped fists with Tom. “Creo que tendríamos que hacer el pedido de su padre, no te parece?” (I think we oughta do the ordering for your dad, don’t you think?)

“Absolutamente!” (Absolutely!)

Mr. Williams shocked us when he replied, “De ninguna manera!” (No way!)

“You were fooling us!” Tom shouted.

“Yup. I might not be taking a Spanish class now, but I took a total of six years in high school and college. I knew that it would help me with Hispanic clients. I remember enough of it to understand most of your prattling.”

“Your dad is full of surprises,” I told Tom.

“Cierto que, Curt, cierto que!” (True that, Curt, true that!)

“I would prefer that you don’t use that phrase, Tom, even in Spanish,” Mr. Williams said.

“Did you understand what he said?” Tom stage whispered to me.

“No. Must be some strange foreign language,” I stage whispered my reply.

By this time Mark and Kyle were laughing.

Mrs. Hutchins shook her head. “Michael, are these boys always like this?”

“Unfortunately, yes. You raise them the best you can and the next thing you know they become teenagers. It’s so sad.”

“Yes, it is. I’m also stuck with two of them right now.”

Mark turned to Kyle. “See, no matter what we do we aren’t appreciated by the old folks. That’s what’s so sad.”

“Old folks!” Mrs. Hutchins and Mr. Williams shouted simultaneously. He looked at her and said, “I don’t see any old folks, do you Andrea?” and she shook her head.

We continued joking back and forth like this and laughing, which caused others walking on Main Street to look at us, probably wondering what was so funny.

We arrived at La Cuchara, gave the waitress our vouchers, and told her that Marco had sent us.

“Tell Marco that Maria said ‘Hi’ and that she wants to know when he’s going to stop by for a meal, okay?”

Mark replied, “We’ll do that, Maria.”

She handed us our menus. “Just wave if you have any questions about the menu, and when you’re ready to place your orders.”

All of us loved our lunch, and we were almost, but not quite, too full for the churros. These were a medium length twisted fried-dough pastry, rolled in a sugar and cinnamon mix as soon as they came out of the fryer. Sort of like cinnamon-sugar donuts, but long and straight and lots crunchier on the outside. We each got two. I saw Tom looking at the second churro on Mrs. Hutchins’ plate. She saw his hungry expression and quickly rescued it and make quite a show of eating it, bite after bite, smiling and closing her eyes with pleasure. Maria came by and offered each of us another churro. Tom took her up on the offer, but the rest of us did not.

On the way back to the courthouse we talked about what had happened this morning and what Mr. Williams expected to happen this afternoon.

“What you’ve seen is a typical start to a criminal trial. I expect that there will be more motions, mostly from the Defense, this afternoon.”

“This is all pretty boring. Can you explain what some of the Prosecution and Defense motions were about?” I asked.

“Curt, I can talk about that with you, but not with anyone being called as a witness. That means Tom, Mrs. Hutchins, Mark, and Kyle. So what I’d prefer to do is talk to you alone after we get home this afternoon.”

“How come we can’t hear what you’re going to tell Curt?” Tom asked, with nods from the others.

“It’s part of court rules,” Mr. Williams replied. “I’m Curt’s attorney. He’s the victim in this trial. I’m not allowed to say anything about the trial, including the preliminary motions and the selection of the Judicial Panel, when anyone who is a witness is present. All four of you are witnesses who have been called to testify about what you know relating to the circumstances being considered to decide if Donovan Clarey is guilty or innocent. You’ll notice that we didn’t discuss the trial when we walked to the restaurant, nor when we were having lunch. And, we’re not going to discuss them on the way back to the courthouse.”

“Okay, I understand,” Tom said. “So you’ll explain all this after the trial?”

“I can do that,” his dad replied.

We got back to the courthouse and had to go through the guard’s inquisition once again. This time it wasn’t just Tom because Mrs. Hutchins, Mark, and Kyle were also witnesses. The guard addressed Tom first. “Thomas Williams, as a witness in this trial you will have to remain outside of the courtroom once the trial begins…” That’s when I tuned out and began looking around to see if my mom had returned. If so, I couldn’t see her in the lobby.

Faster than I’d expected everyone was cleared and the guard let us enter the courtroom. I saw Mom sitting near the back on the right side of the aisle. I tapped Mr. Williams’ shoulder.

“Can I talk to my mom?”

“Unfortunately, no you can’t, and for the same reasons I talked about during our walk back to the courthouse.”

“But I’ve been talking with Tom, and Mark, Kyle, and Mrs. Hutchins, and they’re all witnesses. Why can’t I talk to my mom?”

“Tom, Mark, Kyle, and Mrs. Hutchins are witnesses being called by the Prosecution. You mother is being called as a witness for the Defense. That’s what makes a difference. You’re the victim, and as your attorney I’m an adjunct of the Prosecution and I have the responsibility to control what you say and with whom you have conversations, and to prevent you from being told things about the trial by others. I can’t do that when you talk to your mother. You can talk to her after the trial is over, but not before. Otherwise the Prosecution or Defense could be charged with witness tampering.”

“What if I still lived at home with my mom?”

“That would be an issue the Judge would have to consider. You and your mother might be directed to not speak with each other about any issue related to the trial, or you might be moved to a temporary living situation with someone like me as your guardian.”

“That last part is what I already have, right?”


“This is really complicated stuff, isn’t it,” I remarked.

“Yes, it is. If there’s suspected witness tampering the case might be thrown out of court and Don would get off. The Prosecution could file for a new trial, but that would be difficult because one or more witnesses passed information to one side or the other. That is something both sides work hard to prevent. It’s one of the reasons that attorneys get the big bucks.” Mr. Williams grinned. “That’s probably the primary reason Tom wants to become an attorney. The big bucks.”

“I’m not so sure he wants to become an attorney, Mr. Williams.”

“Oh, thank God! I’ve been under the misapprehension that he planned to go to law school. It’ll be a lot cheaper if he follows a different career path.”

Tom walked up. “Hey, I heard my name being discussed. What’s up?”

“Okay, Curt, you take this from here,” Mr. Williams told me. He got up and went to the Prosecution table and started a conversation with Beth Wolman.

“Alright, what were you and my dad talking about, Curt?”

“Court rules and regulations and procedures. And why I can’t talk to my mom about anything related to the trial until it’s over, and your dad doesn’t want me to talk to her at all during the trial.”

“I guess you think that’s harsh, don’t you?”

“No, I understand why it has to be done that way. Otherwise the Defense could claim that I’d passed information to her or vice-versa. She might grill me for information about what the Prosecution’s planning, or she might tell me something about what the Defense is planning. It could get very complicated and the case might be thrown out of court. Then Don would get off and the Prosecution probably wouldn’t file for a new trial because of witness tampering.”

“Do you have any idea what’s going to happen this afternoon?”

“Hey Tom, you’re the attorney’s son. You should know more about this sort of thing than I do.”

The Bailiff entered the courtroom and in a loud voice announced, “All witnesses present in the courtroom will need to exit the courtroom within the next five minutes. See the guard outside the courtroom door who will direct you to the witness rooms. Thank you.”

“That’s me again,” Tom said. “I’ll see you later, Curt.” He got up and I turned and watched him leave along with Mrs. Hutchins, Mark, Kyle, and my mom. Several other people I didn’t recognize left at the same time. I turned back and watched the Bailiff who once again sat at the table in front. After a couple minutes the Court Recorder entered and set up her equipment, and then the Clerk of the Court came out and sat down.

After a few more minutes the door to the Judge’s chambers opened and Judge Young walked out and stepped up to his chair on the bench. The Bailiff stood and announced, “All rise.” Everyone stood. “Hear ye, hear ye, the Superior Court for the County of Contra Costa is in session. The Honorable Judge Anthony Young is presiding. All having business before this court present yourselves and you shall be heard. You may be seated.”

Everyone sat down. The Judge banged his gavel.

“The trial of Donovan Clarey will continue at this time. I have been advised that the Defense Attorney has a series of motions to present to the court for consideration. Unless there is an objection by the Prosecution we will hear those motions at this time.”

Beth Wolman stood and addressed the Judge, “The Prosecution has no objection to any motions that are material to the process, procedure, or conduct of this Trial. We reserve the right to object to any specific motion that does not meet these criteria.”

I looked at Mr. Williams and he put his finger to his lips. Okay, I could wait. Maybe this would be interesting.

Lawrence Wilde stood and made his statement. He used a lot of legalese that I didn’t understand, but I caught the gist of what he wanted. He’d done some more vetting of Judge August Carmichael and discovered that he should have objected to including him on the Judicial Panel. That’s what he wanted to do now. I could tell by looking at Judge Young’s expression that this did not please him.

“Mr. Wilde, you had an opportunity to evaluate the three candidates for the Judicial Panel. You were told that you were given an opportunity to select one Judge to be excluded from consideration for the pool of candidates. Both the Defense and the Prosecution had the same opportunity. You did not avail yourself of this opportunity, and neither did the Prosecution. The result is that a highly competent Judicial Panel has been selected and impaneled.

“I want to hear your reasons, but not in open court. Therefore I want to meet with you and Ms. Wolman in my chambers.”

He stood. So did the Bailiff who stated that there would be a brief recess. The Judge turned and left the courtroom, and the Court Clerk led Lawrence Wilde and Beth Wolman to the Judge’s chambers.

“What’s going on?” I asked Mr. Williams.

He whispered his reply. “Remember I told you that if I made the decision for the Defense that I’d exclude Judge Carmichael. I think that the Defense team finally discovered that Judge Carmichael is legendary for ruling against attempts to use concepts like gay panic by the Defense. How they could have missed that I don’t understand.”

I whispered my reply. “You said that Lawrence Wilde and his law firm have no experience defending someone in a criminal trial. Could that be the reason they missed this?”

“Yes. But it’s still no excuse.”

“What do you think the Judge will do?”

“Toss out their motion. Then they could appeal to a higher court, or Don could fire Lawrence Wilde and Horton and Wilde as his defense attorneys. Either of these options would extend the time of the trial. Don seemed eager to conclude the trial quickly so he could take that job in Los Angeles. That’s why they decided to use a Judicial Panel instead of a jury. So I don’t think that he’d want to do anything that would delay the trial.”

Poor Don. It seems like he steps into dog poop every time he turns around. How appropriate. How perfect. I grinned.

It took almost ten minutes before Beth Wolman exited the Judge’s chambers. I expected Lawrence Wilde to follow her, but he didn’t.

I turned to Mr. Williams and whispered, “What’s going on?”

“I think Lawrence Wilde is having a new one reamed into his butt just about now. Judge Young is not kind to attorneys who don’t do their job.”

It took another five minutes before Lawrence Wilde exited the Judge’s chambers and sat down at the Defense table. He spent a minute whispering with Don until Judge Young came out, sat down, and banged his gavel.

“The Defense motion is denied. Are there any other motions?”

Lawrence Wilde stood and addressed the Judge without being recognized.

“I’d like to…”

Judge Young banged his gavel, hard. It echoed in the courtroom and I saw that it startled Lawrence Wilde.

“Would you like to be recognized, Mr. Wilde? If not, please sit down. If so, please stand and wait until I recognize you.”

Oh my god! This lawyer was digging his own grave.

Lawrence Wilde remained standing and waited until Judge Young, his voice dripping scorn, said, “You wish to be recognized, Mr. Wilde?”

“If it pleases Your Honor.”

“You are recognized.”

“I request a recess so I can have a meeting with my client.”

“Request granted.” The Judge banged his gavel. “This trial is held over until tomorrow morning at ten o’clock. He banged his gavel again, stood, and exited the courtroom through the door to his chambers.

There seemed to be a stunned silence, then all at once everyone in the gallery started talking. I looked at Beth Wolman, then at Mr. Williams.

“Curt, wait here for a moment,” Mr. Williams said, and then he walked to the Prosecution table, talked with Beth Wolman for a few seconds, then returned.

“Curt, all of us are asked to attend a meeting in Beth Wolman’s office with her and some of her staff, right now. Is that okay with you?”

“Sure! I have nothing better to do. Besides, I want to find out what happened.” I grinned, and so did Mr. Williams.

“Let’s collect the rest of our group from the witness waiting rooms and head across the street. Don't' say anything to them about what happened in the courtroom.”

“Okay,” I replied. I figured that this meeting with Beth and her staff would be very interesting and I could keep my mouth shut until then.

When we got to the lobby Tom, Mrs. Hutchins, Mark, and Kyle were waiting for us. Mr. Williams told them that we had a meeting in Beth Wolman’s office, and since they were unaware of what happened they were curious but not excited about the meeting.

When we got to the District Attorney’s offices we were led directly into the large conference room. There were five staff members sitting around the table, and as we walked in so did Beth Wolman. The size of the group surprised me. We sat down, though Beth remained standing at the head of the table.

“Some of you are unaware of what transpired in court today, and even though some of you were there you’re not aware of what transpired in Judge Young’s chambers.

“To summarize, Lawrence Wilde finally discovered that from the Defense point of view, Judge Carmichael is probably not a good candidate for the Judicial Panel.” There was some laughter from Beth’s team.

“He made a motion to have Judge Carmichael excluded from the Judicial Panel. Judge Young expressed his displeasure with this motion by calling me and Mr. Wilde into his chambers. Mr. Wilde suggested that he hadn’t been given enough time to determine that Judge Carmichael had a prejudice against the primary argument that the Defense team planned to use to show that Donovan Clarey is innocent. Judge Young told him that it is inappropriate for him to reopen the opportunity to exclude any name from the list of candidates for the Judicial Panel.

“Mr. Wilde said he might appeal to a higher court, and wanted a postponement of the trial. Judge Young said that if Mr. Wilde presented a motion to postpone he would issue a denial. He pointed out to Mr. Wilde that the use of a Judicial Panel had been requested by the Defense team to speed up the trial. He pointed out that the courts went out of their way to accommodate Mr. Clarey and his Defense team, and that he, as the Judge appointed to hear the trial, saw no reason to slow down the trial at this point. Mr. Wilde said that to exclude one Judge from the Judicial Panel would be easy to accommodate since only one name had to be selected to replace Judge Carmichael. Judge Young said that isn’t how it works, and granting Mr. Wilde’s motion would establish a precedent that would negatively impact the way Judicial Panels would be selected in the future.

“Mr. Wilde suggested that his client could change attorneys. Judge Young said that’s the prerogative of the accused. He reminded Mr. Wilde that if Mr. Clarey wants an expedited trial a change of attorney would not be conducive to achieve that objective.

“I had almost no part in the discussion. Let’s just say that Judge Young was unmoved by Mr. Wilde’s pleadings. Finally Judge Young asked that I exit his chambers and he continued to meet with Mr. Wilde. I don’t know what transpired. I could guess but I will not talk about that.

“So, where we are is that Judge Young granted a motion by Mr. Wilde for him to have a recess to meet with his client. The way he did that is to hold the trial over until tomorrow morning at ten o’clock.

“You now know everything I know. I expect that Judge Young will proceed with the trial tomorrow morning as if none of this happened. The first thing is that the three members of the Judicial Panel will be introduced. Next will be opening arguments by the Prosecution and the Defense. That will be followed by calling and examining of witnesses by the Prosecution, and cross-examination by the Defense. I don’t expect that there will be enough time to complete the examining and cross-examination of our witnesses tomorrow. I think that we’ll get half-way through our witness list, and that’s a maybe and only if we’re lucky.”

She looked directly at me, Tom, Mrs. Hutchins, Mark, and Kyle. “I’ve told everyone here what transpired this afternoon, including what transpired in Judge Young’s chambers, because it is a matter of public record and will be included in today’s Court Report, a public access service that’s on the internet. There were reporters in the courtroom today, and this may make tonight’s or tomorrow morning’s newspapers. It’s better that you heard it from me, correctly, instead of reading about it in the newspaper, or possibly seeing it on the TV news tonight.

“Any questions?”

There were a lot of questions from Beth’s staff, so she interrupted.

“I think the legal details that my staff is bringing up aren’t of interest to those of you who’ve come over with Mr. Williams. So I assume that you would prefer to leave now.”

“Yes, I agree,” Mr. Williams told her. We all stood up, said our good-byes, and left.

When we got outside, Mr. Williams said he wanted to make a quick announcement. “Okay, what will happen tomorrow morning is that the trial will actually begin, with Prosecution witnesses called to testify. Is everyone ready?”

We all said “Yes” and Mrs. Hutchins, Mark, and Kyle headed for the public parking lot, and we went the other direction to the County employee parking garage which Mr. Williams could use since he represented me in a criminal case and that gave him free parking.

As we walked to the parking structure Tom looked at Mr. Williams. “Say, Dad, could we stop at BuyMart on the way home? They’re having a sale on the seven inch tablets. I need one for my Algebra 2, Chemistry, and Photography classes this year. Otherwise I’ll need a graphing calculator and they’re almost as much as a tablet.”

“And how much is ‘almost as much’ going to set me back?”

“Well, the new Google tablet is just under two hundred dollars, plus tax. It’s an Android tablet so it will run all the Android and Amazon apps, and I can use it as a music player instead of my smartphone and as an eReader because both Kindle and nook apps are available for it.”

“Is this going to have monthly charges like your cellphone?”

“No, it doesn’t have a cellular connection. It connects to the internet through WiFi and we already have that at home so it’s no extra cost. It can connect to the WiFi at school, too.”

“Alright, Tom, you get me the information on this tablet and let’s sit down after dinner and decide what to get you.”

“Fantastic, Dad! You’re the best.”

“I suppose you’ll need one as well, Curt?”

“Yes, afraid so. I’m taking Geometry, Chemistry, and Web Design this year. A tablet will be much better than a graphing calculator and it’s only about twenty five dollars more.”

“Okay, you two put together one set of information and tomorrow we’ll go to BuyMart on the way home.”

“Just like Tom said, Mr. Williams, you are the greatest.”

As we drove home I wanted to ask Mr. Williams what he thought would happen tomorrow. Then I thought that maybe he wouldn’t want Tom to be involved in that discussion since Tom was a witness for the prosecution. I decided to wait until I could talk to him in private at home.

Tom headed upstairs and I followed Mr. Williams into the kitchen.

“You wanted to ask me something, didn’t you, Curt.”

“Yes. What do you think Don’s attorney will decide to do?”

“That,” he replied, “should be Don and his attorney. They’ll have to decide together. My guess isn’t worth the napkin I’d use to write it on.” He looked around to make sure that Tom wasn’t listening. “Tell you what, let’s go into my office.”

He walked in and I followed him, closing the office door behind me.

“I don’t think they’ll appeal the Judge’s decision to not grant a special exclusion for Judge Charmichael. It’s also not going to fly if they decide to take it to the Appeals court. So the question is really up to Don.

“Will he fire Lawrence Wilde and look for a new attorney? I don’t think so. Remember, his new employer is paying for Horton and Wilde to defend Don. I don’t think Don has the income to pay for an attorney on his own.

“Will he be willing to see what Judge Charmichael might or might not decide about the gay panic defense? I think that’s the most likely scenario. I don’t know if the other two members of the Judicial Panel would be willing to accept that kind of defense or not. Despite Judge Charmichael’s well known opinions about this kind of far-reaching Defense strategy, this is probably the least risky approach for the defense.”

“I see what you’re saying. That makes sense.”

“Don has another out if the trial goes against him. He can claim incompetent council and submit an appeal for a new trial.”

“What about the cost of a new attorney?”

“If Don doesn’t have the funds to pay for an attorney, he can ask for a Public Defender and one will be assigned to represent him.”

“This isn’t any less complicated than what we talked about in the courtroom today.”

“That’s the way today’s jurisprudence works, Curt. What you and Tom need to do is get a good night’s sleep and be ready for the trial tomorrow. I assume that you’re ready to go.”

“Yes, I am.”

“I suggest that you rest before Barbara has dinner ready.”

“I think I’ll take a nap. Today’s been sort of heavy-duty.”

“That’s a good idea. I’ll see you in a couple hours.”

I went upstairs and walked into my room and had to laugh. I saw Tom lying on my bed, wearing only his favorite T that read ‘Your boyfriend thinks I’m hot’ and maroon bikini briefs, with his eyes closed, snoring softly. I shut my bedroom door and set the alarm for six p.m. Then I got undressed down to my T and briefs then laid next to Tom. As I fell asleep I felt Tom take my hand in his and he let out a soft sigh.



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