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 32 — Judicial Panel is Selected

When we got to the door of the courtroom a guard stopped us and Beth Wolman gave him our names. He had a laptop at his table and checked the names. We had each received a letter stating that we had to appear at the court today with a copy of the statements we made to the police. He asked to see the letters that we had received from the court. My letter identified me as the victim, Tom’s letter identified him as a witness for the Prosecution, and both listed Mr. Williams as our attorney.

The guard addressed Tom. “Thomas Williams, as a witness in this trial you will have to remain outside of the courtroom once the trial begins and until you are called to testify. You can enter the public gallery now and remain there until the Bailiff announces that the trial is to begin. At that time you’ll exit the courtroom and I’ll lead you to the witness waiting room where you are to wait until you are called to testify. During the time that you are waiting you are not to speak to anyone about the trial other than your attorney, Mr. Michael Williams, or an officer of the court who shows you their identification. Your name is in the computer as a witness and it indicates that you are not expected to testify until tomorrow. You don’t have to remain here until tomorrow, but if you do then once the trial begins you will have to be present and check in at this desk, and must remain in the witness waiting room and only enter the courtroom when called to testify.

“When you are called to testify you will be escorted to the courtroom. After you have given your testimony, unless told otherwise by the Bailiff, you can remain in the public gallery or leave the courthouse.”

He handed the letter back to Tom.

“Do you have any questions?”

“Yes,” Tom said. “Can we sit together in the courtroom until the trial starts?”

“Sure. The Bailiff will make an announcement that all witnesses have to leave the courtroom just before the trial starts. You’ll exit and I’ll show you and any other witnesses to the witness waiting rooms. Anything else?”

“Yes. Once I’m in the witness waiting room can I go to the bathroom, and it’s lunchtime can I leave to go eat?”

“The witness waiting rooms are in a separate section and there are restrooms for men and for women. An officer of the court will tell you when it’s lunchtime and direct you to my station. Iíll give you a voucher good for your lunch at any of the restaurants listed on the voucher, and the voucher is good for up to the maximum amount listed. You will have to pay any charge in excess of the maximum amount. Once the voucher is used it is turned over to the restaurant for payment. So don’t use your voucher to just buy a cup of coffee.” He grinned. “Just a reminder, until you’ve been called to testify you are not to speak to anyone about the trial, including when you go to lunch. Any other questions?”

Tom shook his head and said, “No.”

He addressed me next. “Curtis Fischer, as the victim in this trial you can remain in the courtroom at all times unless directed otherwise by the Judge or the Bailiff. You will also receive a lunch voucher to be used as I described.”

He checked us off on the laptop then stood up, keyed a code into a pad at the side of the door, and after it clicked he opened the door to the courtroom and we followed Beth Wolman. The door closed behind us with a loud click.

“Curt and Tom, for the time being you can sit anywhere in the public gallery.” Beth Wolman pointed to the rows of seats that faced the front of the courtroom.

“I would have called this seating area the audience,” I said.

Mr. Williams looked at me. “Calling it the audience makes it sound more like a place you’d go to for entertainment. Calling it the public gallery sounds more judicial.”

“Oh. Then where should we sit?” I asked him.

“Since there’s no one here, I think the first row on the left side near the center aisle. That will give you the best view of what goes on, including a view of the witness box.”

Tom and I sat in the second and third seat, and Mr. Williams sat on the aisle. Beth Wolman walked through the gate in the fence between the public gallery and the trial area and sat down at the Prosecution table. After a few minutes, two men walked in and joined her.

“Who are they?” I asked.

“They are on the District Attorney’s staff. They will assist Beth during the trial. Their job is to provide her with information. Notice that they brought in a stack of documents in folders and a laptop computer. The table at the left is for the Defense team and the defendant. The area where the Judge sits up in back is called the bench. The table in front of the bench is where the court recorder and the Bailiff sit. The jury box is at the right. Since this is not a jury trial, the three members of the judicial panel will sit at that table in front of the jury box. The Judge’s chambers are through the door that you can see at the left behind the bench. If the defendant is currently incarcerated the door in the wall at the left is where he or she will be brought into the courtroom. The window just this side of that door is a guarded room where the defendant can be placed if they present a danger to the court or are unruly. The chair that’s on this side of that window is for an officer from the sheriff’s department. The officer escorts an incarcerated defendant from the holding cell that’s at the back of the building into the courtroom or the viewing room, remains there during the trial, and escorts the defendant back to the holding cell. If the defendant isn’t incarcerated they enter the courtroom just as we did, and there is usually no officer on duty during the trial. If there is an officer on duty, he or she will be the only person in the courtroom who is armed.”

“Wow, thanks. I didn’t know what most of these parts of a courtroom were called. That’s interesting about having an officer from the sheriff’s department present sometimes and not others. Don is out on bail. Does that mean he walks into the courtroom like we did, or is he put in the holding cell and brought into the court like an incarcerated defendant?”

“Since Don’s on bail, he enters like we did. If his bail had expired, or he’d been charged with violating the terms of his bail, he would have been incarcerated at that point and would be treated the same as any incarcerated defendant.”

“Can he come in by himself, or does he have to come in with his attorney? And will he still be wearing the ankle tracking bracelet?”

“A defendant who isn’t incarcerated has to be accompanied to the defendant’s table by their attorney. They can come in and wait in the public gallery until their attorney arrives. Don will continue to wear the ankle tracking bracelet until the verdict has been read.”

We sat for a few more minutes. I watched Beth Wolman whispering with her two assistants and wondered what they might be talking about. She seemed happy, so I figured it must be something good for the Prosecution and bad for the Defense.

A guy in a uniform entered the courtroom through the door at the left side that Mr. Williams had said was used to bring incarcerated defendants into the courtroom. I looked at Mr. Williams.

“That’s the Bailiff, Curt.”

“Oh, okay. Thanks. This courtroom is really different than the one where Don’s bail hearing was held, isn’t it?” I asked Mr. Williams.

“Yes, it is. Trials are more involved than bail hearings, and that’s why the layouts are different in this courtroom including the jury box, even though it’s not being used for Don’s trial.”

The Bailiff walked in front of the bench. He stood there facing the public gallery and said, in a loud voice, “All witnesses present in the courtroom will please exit the courtroom within the next five minutes. Please check in with the guard outside the courtroom door. He will direct you to the witness rooms. Thank you.”

“That’s me,” Tom stated. “I gotta leave. It sucks. If I’d known that I wouldn’t be called to testify until tomorrow I wouldn’t have bothered coming in today. Now I have to go to the witness room and just sit there until lunch. I don’t get to see what goes on in the court until I’m called to testify.”

“Hold up for a minute, Tom. I’m going to talk to Beth and see if you can’t stay until the trial itself starts.”

“Thanks, Dad.”

Mr. Williams walked over to where Beth Wolman and her assistants sat looking over documents. I saw her look up and they started talking. After a bit she motioned for the Bailiff to come over to her table, and the conversation continued with him.

“Maybe she’s getting the Bailiff to make an exception for you,” I told Tom.

“I hope so. Can you imagine what it would be like sitting in that witness room by myself? Or with other witnesses, maybe some for the Defense? Maybe with old man Vanvelick?”

“I think they keep the Defense and Prosecution witnesses separated.”

“How do you know that, Curt?”

“The Bailiff said witness rooms. That’s plural. It makes sense to do that. Witnesses for the two sides being together in one room might result in arguments or fights. They sure wouldn’t want that to happen. Think what it would be like if you and Vanvelick were in a witness room together.”

“I wonder if he’s here.”

Tom and I turned around and looked to see who else had come into the public gallery. I saw my mom, Mark, Kyle, and Mrs. Hutchins, and several people I didn’t know. Mr. Vanvelick wasn’t here. I turned back and whispered to Tom, “No Vanvelick. Mark, Kyle, Mrs. Hutchins, and my mom are here. If they are witnesses why aren’t they getting ready to leave the courtroom?”

“Good question. Maybe they won’t have to if Beth Wolman and my dad are able to work something out with the Bailiff so we can stick around until the actual trial starts. And Vanvelick could be here, either outside at the guard station or in the witness room.”

We sat watching the conversation at the Prosecution table. The Bailiff turned and walked to the door that Mr. Williams said went to the Judge’s chambers. He knocked, opened it up about half way and said something then walked in, shutting the door behind him.

“Looks like the Bailiff’s asking the Judge,” Tom said.

At the Prosecution table Mr. Williams turned and held up two fingers.

“Looks like we’ll know in a couple minutes,” I told Tom.

It took a little longer than two minutes for the Bailiff to return to the courtroom. He talked to Beth Wolman and Mr. Williams, then walked back to where he’d made his announcement earlier.

“Judge Young has is allowing that any witnesses who wish to stay can do so until the testimony begins or when he specifically requests that you leave. Thank you.”

Mr. Williams returned and grinned as he sat down.

“Thanks, dad. This is a lot better than sitting in a witness room. Curt and I were talking, and we wondered if there are separate witness rooms for the Defense and Prosecution witnesses.”

“Yes. Actually, there are six witness rooms. Let me see that letter you got from the court.”

Tom handed him the letter and he quickly scanned it.

“I wanted to check if you’re identified as a witness who has to be kept separate from other witnesses, but your letter doesn’t have that checkbox marked.” He pointed to some checkboxes along the bottom of the letter. “The box that is checked is the one indicating that you are a minor but the box that indicates that you need witness assistance is not checked.”

Mr. Williams returned the letter to Tom.

“What’s witness assistance mean?”

“If you were a minor under eithteen, or had a disability and required a wheelchair, things like that.”

“Oh. So a minor is anyone under eighteen?” I asked.


Kyle and Mark walked up to the end of our row.

“How you guys doing?” Kyle asked.

“Great,” I replied, and Tom said “Good. How come you guys are sitting in the back by yourselves?”

Mark replied, “My grandma thinks we shouldn’t be near you guys otherwise there might be some sort of collusion or something.”

“Well, that’s not necessary,” Mr. Williams told Mark. “You can move here if you want to sit near us.”

“It’s okay back there. It’ll keep my grandma happy. And a happy grandma is a grandma who’ll take us to the mall afterwards.”

“That’s cool. My dad’s going to take us to BuyMart afterwards,” Tom said.

“And when did I say that I’d take you to BuyMart today? And for what purpose would we go to BuyMart?”

The Bailiff came out and announced that the trial was about to begin and we should take our seats. I whispered to Tom, “You were saved by the bell, or more correctly, by the Bailiff.”

“True that!” he whispered his reply.

Kyle and Mark left to return to their seats.

Don and his attorney, Lawrence Wilde, entered the court from the back and went to the Defense table. They were followed by a woman and a man who I assumed were the attorney’s assistants. Lawrence Wilde walked over to the Prosecution table and shook hands with Beth Wolman, then returned to the Defense table and they sat down. The Clerk of the Court and the Court Recorder came out and took their seats.

The door to the Judge’s chambers opened and Judge Young walked out and stepped up to his chair on the bench. The Bailiff made his announcement.

“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 presiding. All having business before this court, give attention and you shall be heard. You may be seated.”

Everyone sat down. The Judge banged his gavel.

“The representative of the District Attorney’s office may introduce herself then name the accused and state the charges.”

Beth Wolman stood. “My name is Beth Wolman, Assistant District Attorney for Contra Costa County. Mr. Donovan Clarey is charged with felony physical abuse of a child, felony endangerment of a custodial child, and felony gross battery upon a child. In addition, Mr. Donovan Clarey is charged with misdemeanor resisting arrest. The victim is Curtis Fischer, his age is fifteen years old and was that age during the commission of these felonies and the misdemeanor. Curtis Fischer is the stepson of the accused. The described events occurred on the thirteenth of July, two-thousand twelve. We will prove the substance of these charges, and will recommend that Mr. Donovan Clarey be penalized to the full extent of the law.”

Beth Wolman sat down. The Judge addressed the Defense.

“The representative for the defendant may introduce himself then state Mr. Donovan Clarey’s response to these charges.”

Lawrence Wilde stood. “My name is Lawrence Wilde of Horton and Wilde. I am the attorney representing Mr. Donovan Clarey, the defendant in this matter. Mr. Clarey admits that he did physically strike Curtis Fischer and cause his wounds. However, Mr. Clarey will plead not guilty to the charges. We will beg for leniency from the court, and recommend that Mr. Clarey be sentenced to time served plus community service as determined by the court. We will prove that Mr. Clarey was overtaken by events that caused him to react in a manner that he sincerely regrets. We will demonstrate to the court that his actions were the result of a gay panic”

Despite a gasp from some of those in the public gallery when Lawrence Wilde said Don’s actions were the result of a gay panic, the Judge continued as if nothing ridiculous had been said.

“The Defense has requested that the trial be conducted without a jury of peers. Due to the nature of the charges, instead of the Trial Judge rendering the decision, the trial will be conducted with a judicial panel which will have that responsibility. I will select the three members for the judicial panel. I will not be a member of that panel. The judicial panel will consider the evidence that will be presented by the Prosecution and Defense, and will render their verdict. The selection of the members of a judicial panel differs from selection of a jury of peers. There is no cross examination of the candidates for a judicial panel, and they will not be present during the selection process.

“There are nine names that have been identified as candidates. I will select three at random, drawing three sealed, blank envelopes each of which contains the name of one candidate. I will open the three envelopes and state the names of the candidates. The Court Reporter will enter those names in our CRS, Court Reporting System. A brief curriculum vitae of the three candidates will be available through the CRS.

“The Prosecution and Defense can each select any one candidate and have their name removed from the pool of candidates for the panel.”

“You will have fifteen minutes to review the backgrounds of the first three candidates, and if you wish you may identify one candidate, and only one candidate, that you wish to have excluded from consideration. To replace any candidate excluded from consideration another envelope will be drawn and that name will be added to the pool so there are again three candidates. You will have five minutes to review the background of each new candidate added to the pool. This will continue until a pool of three candidates has been selected with no objection.

“We will complete the judicial panel selection this morning. After that the Prosecution and Defense can, if they wish, make motions which must be sent to me through CRS. I expect to consider and act on these motions before lunch today.

“Are there any questions from either the Prosecution or the Defense?” Judge Young waited a few seconds. I noticed that the sequence was opposite what Beth Wolman told us this morning. I guessed that judges can do things their own way.

“Since there are no questions, I will begin the selection of the pool of candidates for the judicial panel. Will the Clerk of the Court please bring me the lockbox which contains the envelopes with the names of the Judicial Panel candidates.”

The Clerk of the Court stood, took a small black metal box out of her briefcase, and handed it to the Judge. He unlocked the box and opened it, removing three small white envelopes one at a time with his right hand, holding it up, and transferring it to his left hand which he kept raised so we could see the envelopes. I wondered why he did it so cautiously. When he had three envelopes in his left hand he locked the box and handed it to the Clerk of the Court.

“I now have three envelopes. I will now open them and as I do so I will state the name of the candidate for the Judicial Panel.”

He opened each envelope in turn. The names were Judge August Carmichael, Judge Evelyn Wood, and Judge Ann Rae.

“You now have fifteen minutes to consider the current pool of candidates. Remember that you can, one time, select a Judge to be excluded from consideration for the pool of candidates.

“I instruct those in the public gallery to refrain from speaking out loud. If you need to speak to your neighbor, please do so in a whisper.”

Mr. Williams leaned over so both Tom and I could hear his whispered comments. “If these three are on the panel it’s very good news for the Prosecution. Judge Wood is known as a child advocate. Judge Carmichael is legendary for ruling against attempts to use unusual concepts, like gay panic, by the Defense. Judge Rae is even handed, though I’d place her on the child advocate side of the ledger. If I were to be asked, I’d recommend that the Defense use the one exclusion they have to remove Judge Carmichael from the pool of candidates.

“I don’t think the Prosecution will use their exclusion. They are in good shape even if the Defense excludes Judge Carmichael.”

I watched the Prosecution table. One of the assistants held up three fingers on his right hand. He pointed to his ring finger and the whispered among themselves for about a minute. Then he pointed to his middle finger and they whispered but only for about half a minute. Then he grabbed his index and shook it. Their whispering became more agitated, and after a few seconds he folded his index finger into his palm so only two fingers were being held out. He lowered his hand and they continued to whisper for a couple minutes. Finally all there nodded, and Beth Wolman keyed something into her tablet.

While I watched this action I also glanced at the Defense table. One of Lawrence Wilde’s assistants seemed to watch the Prosecution table. Interesting. I thought that maybe Beth Wolman and her assistants were trying to fool the Defense. My granddad has a saying for that; ‘Leading them down the garden path.’ I don’t really understand it, but I’d guess it means ‘Leading them astray’.

The Bailiff stood and announced, “The fifteen minute time period has ended.”

Judge Young banged his gavel.

“We have a pool of three candidates for the Judicial Panel. Please write on a sheet of plain paper, your name and either the name you wish to exclude or write that you do not wish to exclude any of the candidates. Fold your page into quarters with the contents inside, and hand it to the Clerk of the Court when she comes to your table to collect it.”

When Judge Young opened the two sheets of paper he looked up.

“The Prosecution does not wish to exclude any member of the current pool of candidates.

“The Defense does not wish to exclude any member of the current pool of candidates.

“That means that with the current pool of candidates we have selected the Judicial Panel for the trial of Donovan Clarey. It consists of Judge August Carmichael, Judge Evelyn Wood, and Judge Ann Rae. The Panel will be seated tomorrow.

“I will now entertain motions from the Prosecution.”

I looked at Mr. Williams and he noticed. He grinned and shrugged his shoulders. I would have said ‘whatever’. I wondered if Beth Wolman actually confused the Defense. Maybe she’d tell me if I asked her after the trial. Or maybe not. Whatever. That made me chuckle, and Tom looked at me. I grinned and shrugged my shoulders.



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

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This story and the included images are Copyright © 2011-2013 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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This story may contain occasional references to minors who are or may be gay. If it were a movie, it would be rated PG (in a more enlightened time it would be rated G). If reading this type of material is illegal where you live, or if you are too young to read this type of material based on the laws where you live, or if your parents don't want you to read this type of material, or if you find this type of material morally or otherwise objectionable, or if you don’t want to be here, close your browser now. The author neither condones nor advocates the violation of any laws. If you want to be here, but aren’t supposed to be here, be careful and don't get caught!