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CHAPTER 3

The next thing I saw was David carrying him out and then I went to the bathroom and threw up.

—Jessica Schwarz

Scott H. Cupp, of the state attorney’s office, chief of the Crimes Against Children Unit, was assigned to oversee the legal aspects during the investigation of Andrew Schwarz’s death. Michael Waites met with him on Tuesday, May 4, to review what they had learned to date and to request subpoenas for various medical records.

Cupp, originally from Pittsburgh, Pennsylvania, was the youngest of three children in a middle-class family. His father was a production planning engineer for U.S. Steel and his mother was a housewife. Before deciding, at the age of twenty-four, to go back to school, Cupp drove a cab, worked in a steel mill, sold cars and insurance.

Having already decided he wanted to be a lawyer, he enrolled at Duquesne University and—much to his father’s disappointment—majored in English instead of one of the sciences.

After graduating from Western New England College School of Law in Springfield, Massachusetts, he promptly moved to Florida, where he became a prosecutor with the state attorney’s office in Fort Myers.

Prior to arriving in West Palm Beach in January 1993, Cupp was prosecuting child abuse and adult sex crimes in Florida’s Third Circuit. The Third Circuit consists of seven counties—Suwanee, Columbia, Lafayette, Madison, Hamilton, Dixie, and Taylor. The area is sparsely populated and beautiful. The towns of Live Oak, Lake City, Madison, Jasper, Mayo, Cross City, and Perry are reminiscent of the Old South.

The Third Circuit boasted some of the finest prosecutors that Cupp had ever met. State attorney Jerry Blair and ASA Bob Dekle had tried and convicted Theodore Bundy. And, although Bundy was convicted of other homicides—committed in other jurisdictions—his death warrant was carried out for the Third Circuit conviction for the murder of twelve-year-old Kimberly Leach.

The Third Circuit was where Cupp “cut his teeth,” prosecuting crimes against children, and it was an eye-opening and rewarding 3½-year experience.

Cupp listened to Detective Waites’s audiotaped interview with Jessica Schwarz, conducted in an interrogation room at the sheriff ’s office at 10:50 the previous Sunday morning, May 2—immediately before the detective had questioned David Schwarz.

Cupp would have given anything for a video accompaniment, but he was forced to rely on his imagination. Maybe that was for the best. He listened to the voice—the inflections—the tonality. He pictured her posture—her expressions—her body language.

On the tape, Waites asked her about the previous night. About A.J.’s routine. About his state of mind.

Jessica: He was acting fine. He . . . he ate all his dinner. Ate everything. He was talking. As a matter of fact, he was singing. I don’t remember why. He was fine. Waites: What did he do throughout the evening?

Jessica: Umm . . . he was reading a book and brought it in and asked me what a word was and I told him. He was out in the living room with the girls. They were doing their hair. And that’s about it. I mean, then he . . . everybody . . . the kids went to the bathroom, brushed their teeth, and went to bed.

Waites: Okay, what time would A.J. normally go to bed?

Jessica: On a Saturday, normally between nine and ten, but last night it was closer to nine than ten. They all went to bed at the same time last night.

Waites: Do you remember what A.J. was wearing when he went to bed?

Jessica: Ninja Turtle pants and uh . . . uh, a T-shirt . . . a dark T-shirt.

Waites: Did you see him after he went to bed? Did he wake back up at all before you went to bed?

Jessica (hesitantly): I fell asleep watching Bonanza and, uh . . . and I didn’t wake up until I got up to . . . uh . . . I was going to have a piece of cheese and I was thirsty and he usually shuts his door when he goes to bed and it was opened....

Waites (patiently): Okay.

Jessica: And I called him, and there was no answer.

Waites: Then what happened after that?

Jessica (answering with more confidence): I searched the house and the garage, and then I woke my husband up. Waites: And after you woke your husband up?

Jessica: Well, he wasn’t really awake, you know; I got him out of a sound sleep. And he sees A.J. in the pool and says, “Oh, my God,” and jumped in the pool. Waites: Uh-huh.

Jessica: I didn’t look.... I . . . I caught a . . . I don’t know where he was in the pool or what position or anything. I didn’t get that close. Waites: Hmmm.

Cupp thought it was an interesting answer. A qualification that wasn’t necessary. Why would she do that?

Jessica: The next thing I saw was David carrying him out and then I went to the bathroom and threw up.

(Waites then took her through the rules of the pool, when the kids were allowed to swim and when they weren’t. Were they allowed to swim naked? Were they allowed to dive?)

Waites: When A.J. was found, he didn’t have any clothing. Had he ever before gone in the pool without clothing? Jessica: Yes. They all had.

Waites (surprised): They had?

Jessica: Yeah.

Waites: So that’s nothing that would be . . .

Jessica: Well, it wasn’t a practice.... They made a game out of it and, you know, they got thrown in with their clothes on. And I’ve turned around and—all of a sudden—their clothes were off—bathing suits were off—and . . . I mean, it wasn’t a habit, but they made a game out of it a few times.

Waites shifted gears and asked her about the counseling A.J. was receiving, about his guardian ad litem, and about the intervention of the Department of Health and Rehabilitative Services.

In the guardian ad litem program, the court assigns guardians to individual children who—for whatever reason—have their young lives brought before a judge. Divorce, abuse, delinquency, the distribution of a trust—many matters can lead to the need for a guardian. The guardian was to work for one overriding concern: the best interest of the child.

Cupp was intrigued by the way Jessica answered the questions: the incessant rambling as she jumped from one thought to the other, as if every question were an attack. The lack of sorrow—it was absent from her words and indiscernible in her voice—and the defense mechanisms as she fended off questions about A.J.’s numerous interactions with psychologists and social workers.

Waites: You told me earlier that A.J. was in counseling. And that was at South County in Delray?

Jessica: Yeah.

Waites: How often would the guardian [ad litem] come?

Jessica: Every two weeks and he’d call a lot and he’d stop by. He came over and gave all the kids Easter baskets.

Waites: How did it come about? The guardian ad litem?

Jessica: He was court-appointed. To follow up on, uh, how he was doing in school. To talk to him—how he was, um, how he was at home, how he was at school—if he had any problems. I mean, he’d take him out for walks, you know, just.... He talked to us, but it was mainly A.J.

Waites: You also said earlier that HRS had been out to the house before—is that associated with the guardian?

Jessica: Yes, the social worker would talk to the guardian. The social worker would come and check on the kids—A.J.—and talk to us. And she was trying to help him be back on Medicaid because we couldn’t afford the counseling.

Waites: How long has A.J. been going to counseling?

Jessica: Over a year, but his counselor went on to a different job—so they were short a counselor—so he hadn’t been in a couple of weeks. But two weeks ago, he went to the psychiatrist and he said he would call this week coming up—with, hopefully, they would have hired another counselor.

Waites: Okay. The psychiatrist—is that down in Delray? South County?

Jessica: There’s only one down there, yeah, that takes care of all of them.

Waites: Have there been problems in school?

Jessica: Not that I . . . no.

Cupp sensed that she wanted to answer quickly, but her voice suggested she knew that straight-out lying wasn’t a good idea.

Jessica: A.J. had problems on and off. Waites (encouraging her): Uh-huh.

Jessica: Now, um, I’m going to tell you that for a long time I didn’t get along with his teacher. Then we all had a meeting.

Cupp made a mental note to have Waites contact A.J.’s teacher as soon as possible.

Jessica (continuing): The guardian, the teacher, me, David, HRS, and we came to a very good understanding. What was happening was that A.J. was leaving for school at seven-thirty and not getting there until eight-thirty. And nobody told me right off the bat—like it wasn’t important that I know. They waited till, like, report card day to write it [up], and I had no idea. And then, um, we set up [this meeting]. He was eating his snack on the way to school. I finally got a note home saying, “Please send him with a snack,” and I wrote a note back saying, “I do send him with a snack—every day.” And he had his name on the board a couple of times . . . nothing . . . nothing serious, and his grades were okay.

The words rolled off her tongue. Cupp had to remind himself that this was a woman whose stepson had been found dead less than five hours ago.

Jessica: He could concentrate.... I mean, he could hold his concentration long enough to get his grades, study. . . . [They were] a little up and down, but nothing . . . so the teacher and I were writing notes back and forth five days a week. I would write [her].... She would write a note on Monday, seal it in an envelope, and [have him] bring it to me. A.J. didn’t like that.

Jessica didn’t want to let go of school and snacks, but Waites finally diverted her when he asked about A.J.’s guardian ad litem, a gentleman named Richard Zimmern.

Richard Zimmern was a retired pediatrician, who was originally from Stamford, Connecticut. He left his practice in 1989, after thirty-five years, and retired to Florida. He volunteered time to the guardian ad litem program in Palm Beach County. A.J. was fortunate to have the doctor assigned to him during the summer of 1992—for the last eleven months of his short life.

Jessica: A.J. came [to us] equipped with a guardian ad litem. He had one in Fort Lauderdale because—

Waites: Oh, okay.

Jessica (adding quickly): That’s where it all started.

Scott Cupp was still listening for the smallest morsel of grief, and wondered if what came next passed for it.

Jessica: I don’t believe we’re sitting here talking about him [in] the past [tense]. Um, anyway, everything started in Fort Lauderdale.

Cupp tried to judge the quality of the brief reference to A.J.’s passing. He wanted to give the woman the benefit of the doubt.

Waites: Okay. What type of problems had there been in Fort Lauderdale?

Jessica: Sex. He was sexually abused, physically abused, mentally abused.... Um, the mother was—she had both of her kids dealing crack. She’d stuff their pockets and tell them where to go and she trained them to lie. A.J. could lie just like his mother. He could look you right in the eye and lie, and swear to God on it, and cry on it, and insist on it. And it was like trying to deprogram somebody. And her husband—her second husband—is in jail for the sexual abuse. I don’t know why she never went—but she got out of it.

Waites: This is A.J.’s natural mother?

Jessica: Right.

(Waites told her about the interviews conducted that morning with some of her neighbors and asked if there were any problems that could have been misinterpreted by anyone.)

Jessica (exasperated): If I was gonna do something that shouldn’t have been seen, I would have done it in the house, I guess.

After a while, she admitted—almost proudly—that, yes, she sure was loud and, yeah, pretty much always yelling at someone or another. But other than that, well, no, she couldn’t think of anything.

Waites rephrased his question, wanting to make certain that Jessica had the opportunity to admit that maybe her behavior, on occasion, might be the kind that a neighbor could possibly misunderstand.

Cupp could almost see her shrugging.

Jessica: Right now, I really don’t think so.

Jessica may have been crude and loud, but she wasn’t—Cupp decided—dumb. She made certain that Waites was aware that she and David had inherited damaged goods three years earlier.

According to Jessica, when A.J. came to live with them, he was hyper, abused, inattentive, mischievous, untrustworthy, and conniving.

But none of that went very far toward explaining why A.J. was dead. Or perhaps it did.

“What about chores?” Waites asked. “I mean, was he made to, like, say, do the yard or . . . ?”

Jessica answered eagerly, “Yeah, he did the yard. Last time, we all did the yard. Time before that the lawn mower broke. He did trim—trimmed the garden.”

Cupp listened closely, remembering the neighbors’ comments about A.J. trimming the lawn with scissors.

Jessica continued, “David would borrow somebody’s lawn mower, you know. The grass wasn’t that, well . . . We’ve only been doing the lawn for . . . A.J. would do the garden. The girls did the back garden until the dogs ripped them up, and…”

Rambling, dodging, searching. Scott Cupp knew that Waites was waiting her out.

Eventually, knowing better, Waites asked, “As far as the trim, it’s something he would do with a weed-eater?”

Jessica: Yeah.

Waites: Or a small pair of hand shears or . . . ?

Cupp leaned closer to the tape recorder.

Jessica: Okay, he’d start out with the weed-eater, and he’d run around the yard with the weed-eater for maybe ten minutes; then he’d put it away, and none of it was done. So then he’d go out with the clippers, and it still wasn’t done. And then one time, he went out there and weed-eated the whole backyard to where there was no grass. I mean, no grass. The trim wasn’t done, but the yard was all whacked down, and he was very proud of that. He . . . he . . . he [said], “Look what I did! Look what I did!” And I looked and there was nothing but dirt.

Cupp had listened to hundreds of witness interviews and conducted a hundred more himself. Guilty parties, invariably, shared a common trait. Either they don’t say a word, or the words just roll off their tongues—out of control. Jessica was a poster child for the latter. Guilty of what was the question.

Waites: Was he fairly well coordinated? Accident prone?

Jessica: No, he was . . . He’d trip over his own feet a couple of times a day, but nothing serious. I mean—Waites (prodding): “I mean” . . .?

Jessica: Oh . . . I got called on child abuse two months ago because I was in the house—Jackie and him were outside. He was putting Jackie’s bike away, and he must have tried to ride it, and he smashed his nose into the handlebars. When he came into the house, there was no bruises. There was no blood, but his nose was growing. And it sounds horrible right now, but I laughed because his nose was growing right in front of my face. And I gave him some ice, and it was fine. I said, “Does it hurt?” And he said, “No.” And he went on playing. Waites: Okay.

Jessica: And then the next day when he woke up . . . well, I woke him up for school . . . and when I went into his room . . . when I shook him a little and he turned over, his eyes were black. His nose was black and blue, and I had to wash his eyes out to open them. I mean they were swollen shut—just about. So I kept him home from school. We went to JFK (hospital). I couldn’t even park in the parking lot—I had to park on the side street. That’s how busy this place was. So I spoke to a doctor and I said, “Here’s what happened. Here’s the child. If I sit here and wait for five hours, are you gonna do anything?” He went, “No, just take an X ray.” So I took him home. Took him to the doctor. The doctor set up the X ray. He got an X ray taken, and that was it. Put ice on it. And that was it.

Waites: Had you ever noticed any bruises that—

Jessica: He showed me a few bruises on his legs and his arms.

Waites: I mean, things that wouldn’t be normal for a ten-year-old? Like, if he’d fallen off the bike or fallen on the playground or, you know, maybe look like he’d been in a fight with another kid or . . . ?

(Jessica answered that she had only seen him fighting once, on the way home from school, and that he had had a few bruises on him.)

Jessica: I think the last time I saw that boy naked was well over a year ago. Um, he showed me one or two bruises. He’d get them here on his legs. He showed me a wicked one on his leg once, and I . . . I said, “How’d that happen?” He said, “I don’t know.”

Waites: But, I mean, like on the forearms and maybe the chin area, the knee area? Those type bruises.

Jessica: And his thigh, you know; when he was wearing shorts, I saw it.

Waites: The front part of the thigh? The back part of the thigh?

Jessica: The side.

Waites: Okay. You were telling me you found him in the garage a couple of weeks ago?

Jessica: Last week.

Waites: Last week?

Jessica: Yeah, he was making noise in the garage and hit himself in the head with the cane. I had a cane left over from my knee surgery.

Waites: He was hitting himself on the top of the head or—Jessica: Just banging.

Waites: All over?

Jessica: Yeah, he was just . . . and I’ve never seen that behavior on him before, so I guess I should have smartened up right then. (She paused and continued after a moment.) I noticed he didn’t get angry when he should have. He didn’t talk. He didn’t know he was allowed to get angry. I told him, “If you have a problem with me, or the girls, or at school, or kids, let us know. And if you have to yell, you have to yell.” He was never allowed to do that.

Scott Cupp made a note to have Waites talk to the natural mother as soon as possible, even though he was sure the detective already had that on his agenda.

Waites: How was A.J.’s attendance at school?

Jessica: On and off. When he first came, it was bad— then it got good. Then he got bad again. He kept getting earaches. And he’s so skinny that when you gave him medicine, he’d get sick. So we went to the doctor’s a lot of times and then you get him home, give him the medicine, and he’d throw up. And then he never got a temperature of hundred and one—it was always a hundred and three. It was either normal or very high.

(After they discussed several of A.J.’s friends, Waites brought the interview back to the neighbors.)

Waites (as if it were the first time): Have you ever had any problems with your neighbors?

Jessica (sounding surprised): Oh . . .

Waites: Have they ever called HRS or anything like that?

Cupp had battled long and hard with Health and Rehabilitative Services over the years. They were notorious for letting cases slip through the cracks. And A.J.’s was most assuredly shaping up to be one of those.

Jessica: Yes, uh, one time they came to the house. First time . . .

Cupp noticed that she immediately contradicted herself.

Jessica: A.J.’s mother used to call HRS. Patsy, her daughter, she used to call HRS even from Fort Lauderdale. I mean, I was on the abuse line so much it was ridiculous. And they’d come out every time. It started when Jackie was still in diapers. They checked all the kids, and they’d keep the investigation going for a while; then they’d drop it, and then it would happen again.

(Jessica nonchalantly referred—once again—to the broken nose and black eyes that A.J. had suffered.) The last time, it was with the nose. Somebody said I did it to him, so they came. A cop with a gun and the HRS investigators took Jackie away—I mean fast—into A.J.’s room and talked to her and looked at her. But Lauren wouldn’t go. She was pissed. Very pissed, asking why we always have to go through this. She wouldn’t talk to anybody. She just sat there and said, “I’m not going to talk to anybody. You have no right to come into my house and talk to me, and I’m not saying a word.” So she was just pissed off.

Cupp wondered if Waites could hear the distinct difference in the attitude and tone she exhibited toward her two girls, Lauren and Jackie. Cupp heard pride, affection, and involvement. As Jessica rambled, Cupp tried to put words to her feelings about A.J. Even though A.J. was dead, all Cupp could hear was irritation, exasperation, and a general feeling of distaste and disapproval. He wondered if he was being too cynical or judgmental.

Jessica: She was very pissed off. She said to A.J., “Why does this always happen? Why do we always have to go through this?”

Cupp could hear just how much Jessica liked the fact that her ten-year-old daughter was “pissed” at the cops and the HRS investigators.

Jessica: And Jackie just babbled everything to the cop. I mean, she just yapped her mouth off. . . .

Cupp listened to this part again. A complete reversal of feeling. Here she was angry and disgusted with her younger daughter for “babbling everything” to the investigator, as if she were betraying her mom with every word. Now he couldn’t wait to watch the videotape that Detective Calloway had made of Jessica alone with her daughters in the police interview room. All Calloway had told him about the tape was, “You’ve got to watch it. Amazing.”

Jessica continued—without prompting from Waites—to talk about the incident involving A.J.’s broken nose. By all accounts, including his own, A.J. had fallen against the handlebars of Jackie’s bicycle. None of the neighbors seemed to believe it. A.J.’s guardian ad litem didn’t believe it.

Jessica (ranting): They (the HRS investigator and the detective) brought A.J. into the garage and made him show them how it happened, because I didn’t even see.... His hair was longer then, and he had a bruise here, under his bangs. I didn’t even see it. And the cop, you know, said to the HRS people, “Let’s go. He did it. He did it. She didn’t do it.” So then I got called in to talk to HRS. They said it was a neighbor who called them. And a girlfriend of mine who lives over on the next block, she said HRS had called her about me. And I said to her, “I’m so sick of HRS! You tell them—the next time they call you—that I watched Silence of the Lambs, and that I’m that crazy doctor, that crazy man that eats people. You tell them that I’m eating my children because I’m so sick of all the accusations. It’s ridiculous.” And she . . . it was . . . you know . . .

Jessica hesitated, as if suddenly becoming aware of what she had just said. All Waites said was “Yeah.” He was leading her.

Jessica gushed something about A.J.’s half sister, Patsy, and his natural mother, Ilene, and how “that family is whacked.” Then she ran out of steam.

Waites gave her one last chance, asking, “Okay, is there anything else you can think of right now?”

Scott Cupp wasn’t expecting anything worthwhile, and he was sure Waites wasn’t either. They were both surprised.

Jessica mumbled, “No. When we do . . . when we do find out about A.J. . . . all I know . . . oh, all I know is, it’s gonna be a zoo at my house, and I know I’m gonna react. I know I’m gonna end up in jail for hitting somebody.”

“Damn!” Scott listened to a stretch of silence and tried to picture the expression on Waites’s face. Eventually he heard him say, “Well, let’s conclude the interview at this time.”

Cupp rewound the tape, staring at the spools as they spun around. Now the work started.