Against the Wind

by J. F. Freedman

  “The prosecution wants you to feel sorry for this poor woman.

  They want you to feel so sorry for her that you’ll convict anyone that they tell you killed her son, even if who they tell you didn’t do it. Well … I guess that’s okay. Although this seems to me to be pushing it. It’s theatrical and a little underhanded, but they have a job to do.”

  I walk back to my table, take a sip of water, cross the room so that I’m standing near the prosecutor’s bench, able to look at them, Mrs. Bartless, and the jury all at the same time.

  “What isn’t okay,” I tell the jury, “is that they’re using her. And worse; they’re using you. They’re afraid they don’t have a real strong case against the defendants here, so they’re going to ask you to convict them not on evidence, but because this poor woman in a wheelchair lost a son and someone has to pay.

  “The problem is, they’re right. They don’t have a strong case. So they’re going to cloud the issue. But ladies and gentlemen of the jury: this trial is not about Richard Bartless’s mother. Like him, she too is a victim, and she, too, is being made to suffer.” I pause once again. “Let me ask you this—hasn’t she suffered enough already?”

  The jury looks at her. A few of the women squirm. This is a ticklish situation; I don’t want them to feel so sorry for her that they’ll eat anything thrown at them, but by the same token I must defuse this issue, get it out in the open and out of the way. I have to get them to stop seeing her.

  “We’re all on trial here,” I tell them. “But in this trial, only these defendants can be found guilty, and they alone can permanently suffer. They can be sent to jail, or even executed, for a crime they did not commit. I don’t have to prove that; that’s the prosecution’s burden. As you deliberate during this trial, please remember that. The prosecution must conclusively prove guilt, beyond a reasonable doubt.

  “There’s already been enough suffering over this murder. Let’s not put anyone through any more suffering. Not Mrs. Bartless. And not these four innocent men. I’m confident that you will judge this case on the facts presented, and although you’ll feel in your hearts, you’ll make your decision with your minds. And when you do that, you’ll make the only decisions you can. You will find my client and the other defendants not guilty.”

  IT’S BEEN A fucked weekend. It was inevitable, after the high of my opening statement—there was nowhere to go but down. That evening I was the toast of the town; I’d beaten the state boys at their own game, at least for one day. There isn’t a lawyer alive that doesn’t want to stick it to the prosecution whenever he can because they have everything going for them. So when they’re hoisted by the petard of their own clumsiness it makes all private lawyers feel good. That’s always been my personal feeling, anyway.

  What I wanted was to be with a woman, and I couldn’t. Mary Lou is there but that’s out; after my holier-than-thou speech about professionalism I’d be a fool to make a play for her. The only way something like that would work would be if it was true love. I’m not ready for true love again, I don’t seem to be very good at it.

  Saturday morning. We caucus in my office. Since the prosecution will lead off we’re in a holding pattern, kind of. We have an idea of what they’re going to do and we prepare as best we can around that.

  Mary Lou lingers a moment after the others leave. She looks very young and appealing, in sandals, T-shirt and jeans, hair pulled back, almost no makeup.

  “I thought about you last night.”

  “So did I,” I reply.

  “I’m attracted to you. Not just the lawyer stuff, the courtroom. You.”

  “You’re seeing me at my best.”

  “So what?”

  “So nothing I guess.” What does she want? Straight-forwardness is hard for me to deal with, I prefer deviousness. Maybe that’s why Patricia and I fell away from each other. She’s straight, too.

  “We could see each other,” she says. “I don’t mean sleep together. Be together.”

  That’s novel.

  “I mean, look, Will,” she continues, “we’re working together on a murder case. We’re in lock-step until this is over. Let’s not be polarized because we want to make love and can’t or won’t. That’s ridiculous, isn’t it? You don’t shy away from Paul or Tommy, do you? You wouldn’t brush me off if I was two hundred pounds and had warts on my chin. So why stay away from me because we have the hots for each other? That’s like some kind of junior high school trip.”

  She walks to the door, turns back to me. “You know where to find me,” she says. “So find me.”

  A few minutes after she leaves, Andy sticks his head in. No farther. We regard each other silently.

  “I heard you breathed fire,” he says, breaking the ice.

  I kind of nod, shrug.

  “Hell, that’s what you do, Will. Nobody better.”

  “Thanks.”

  “You’ve got a good team.”

  “We’re good together,” I say. “How’re you doing?” I have to ask in spite of myself.

  “Getting along. A little dry, actually. It’s quieter around here. Your leave of absence is costing us but we’re okay.”

  “Good. I mean that you’re okay.” Fuck it, I’m too concentrated to grind any other axes right now.

  “I want to see you win, Will.”

  “That makes two of us.”

  “The case and the other stuff.”

  “Like I said, me too.”

  He cocks a friendly finger at me, turns away. I feel good; I’m not the only one that’s suffered from this.

  “CALL RITA GOMEZ.”

  I watch as the state’s case takes the long walk from the back of the room to the stand. She forces herself to keep her gaze straight ahead, wobbling unsteadily in her new, unaccustomed high heels, scrupulously avoiding eye contact with any of the bikers. Lone Wolf is staring at her with a singular intensity, an almost palpable heat radiating from his eyes.

  “Keep it locked up,” I caution.

  He’s still as a statue, his eyes boring in at her. Sooner or later she’s going to have to look at him; when she does she might explode. The others stare at her, too. She was prey to them before, a defenseless muffball in the company of mean, off-the-wall predators; now she’s the prime threat to their lives, the barrier between them and the free world, and they only know one way to react to something that basic: eliminate it. They can’t do it physically, not in here; they’ll try to do it through force of will. It can happen, I’ve seen it done.

  She’s a sad case, a K-Mart window mannequin. Her hair’s been done up with so much styling gel it’s as stiff as frosting on an Italian wedding cake. They obviously took her shopping for a new wardrobe but they let her pick it out—a bad mistake, even Moseby with his lack of taste must see that, the bright dress a size too small, horizontally-striped in alternating bars of yellow, red and green, stretching tight across her breasts and can, the skirt too short, the pantyhose too dark and shiny, heels too high, she must have plucked this outfit out of the Frederick’s of Hollywood catalogue, it makes her look like the whore we’re going to show her to be. Whoever put her makeup on (it couldn’t have been her) used a trowel; her eyelashes are so coated with mascara they look like a tiny row of rosary beads. Blood-red lipstick, rouge, purple eye-liner, all over so much base that her face has the frozen look of the Joan Crawford dummy at Knott’s Berry Farm’s Wax Museum, the whole thing’ll crack the first time she opens her baby-doll mouth. She’s barely twenty-one and they’ve got her looking like an eighty-year-old grotesque out of a Fellini film. Although better that, I suppose, than the rash of nerve-acne it’s only partially able to cover.

  Four men might die because they had sex with this pathetic girl. Talk about holding life cheap.

  I catch myself; I’ve awakened to similar, and not so long ago. A harsh reminder of what can happen when you let your cock do the thinking.

  Moseby handles her well, the church deacon counseling the vulnerable young thing who’s f
allen on hard times but only temporarily, she’s of good stuff at heart and will see the error of her ways and assume a position as a decent member of the community. Slowly, patiently, he leads her through the day and night of the crime.

  She’d gone to the bar with the victim early in the evening, she starts out, it was still plenty of light out, they’d had a few drinks, just a couple, they weren’t drunk or nothing, the bikers had cruised on in, made a big macho scene, scared the daylights out of everyone …

  “This is fucking bullshit,” Lone Wolf whispers fiercely.

  “Fine,” I hush him. “We’ll catch her lies on cross-examination.”

  “The jury’s hearing this shit!”

  “That’s okay,” I tell him. “The more she lies and gets caught the better it’ll be for us.”

  “But she’s under oath, man,” he persists. “How the fuck can she just sit up there and lie like a fucking rug?”

  “You been sleeping under a rock or something?” I ask with a degree of incredulity. “What do you think goes on in a trial? You’ve been around this block before.”

  “And they put us down,” he snorts contemptuously.

  “Cool it,” I tell him. “It’s important I listen closely to this.” I push a legal pad in front of him. “Make notes for me.”

  He starts scribbling furiously. I turn my attention back to the stand.

  Richard had ranked on these guys, she’s saying, they’d all been out back in the parking lot and he’d realized he was crazy to fuck with; excuse me (she’s embarrassed enough to blush, it’s almost as if she’s been coached to screw up, play the bimbo, then recover, it reminds me of that movie The Verdict, where James Mason says to the prominent old anesthesiologist, don’t say ‘aspirated,’ say ‘throw up.’ Don’t say ‘messed with,’ Moseby would’ve told her when they were going over her story, say ‘fucked with’ and then make a show of remembering where you are and correct yourself, it makes you real to the jury, they’ll be more likely to believe you), to mess with them, she continues, so he rabbited and ran off and left her, they all went back inside, hung around the rest of the night, so on and so forth. I’ve got her grand-jury transcript in front of me, I leaf through it as I listen, she’s right on the money, virtually word for word.

  That’s to be expected, of course: she’s been coached. All witnesses are, it’s S.O.P. It can be a double-edged sword, though, sometimes it can be to the other side’s advantage; if they crack, slip up on cross, they can wind up chasing their own tails, and blow everything. It’s happened to me more than once.

  Rita Gomez continues on, about how when the bar was about to close the bikers asked if anyone wanted a ride home and she said she did because they had scared off her ride so they said they’d take her and instead of dropping her off where she was living they kept on going up into the foothills and raped her.

  “Objection.” Paul is immediately on his feet. We have a strategy, the four of us working in tandem, in situations like this we want him to make the objections as much as possible, he’s got that courtly old gentleman image, the jury won’t find him threatening or obnoxious, as they might with a young Hispanic male, a young and obviously aggressive female, or a well-known sharp hired gun. Paul’s nice old Gregory Peck. When Gregory Peck plays a lawyer his clients are always innocent.

  Martinez, an experienced jurist, immediately excuses the jury; he knows that what Paul’s about to state could bring a mistrial if the jury is present.

  “Rape has nothing to do with this trial,” Paul says to Martinez, once the jury’s been removed. “There’s been no charge of rape, no medical evidence or representation from the prosecution at any time.”

  “She’s telling us what happened, your honor,” Moseby replies.

  Martinez shifts his look to Rita. “We’re not here to find out whether or not these men raped you. This is to find out if they murdered somebody. If you want to bring rape charges, that’s a separate matter.”

  “But they did,” she says, confused. “Rape me.”

  “We’re trying to show a pattern of continuing unlawful behavior on the defendants’ part, your honor,” Moseby presses, “both in the past and in this specific instance, on that very night. If the murder had resulted because these fellows here had been robbing a bank and killed the guard wouldn’t we be able to talk about the robbery as well? We are going to show that this killing didn’t take place in some vacuum; these guys do all kinds of bad stuff and the murder was the culmination on that particular night.”

  “But my client and the others are not on trial for murder and rape, your honor,” Paul says. “It’s not an ancillary charge, it’s never even been brought up.”

  Martinez thinks a moment.

  “I’m going to allow this line of questioning to continue,” Martinez finally answers. “Be aware that this is not a trial about rape. I’m allowing the prosecutor to introduce it because it might have had or still have an effect on the witness’s testimony and behavior at the time. But if the prosecution wants to bring that charge in, they will have to bear the burden of introducing evidence that a rape occurred and that these defendants committed it upon this witness, and that it was germane; by that I mean part of and crucial to the case before you.”

  Turning to Moseby, he warns him: “If this turns out to be a false lead, I may have to declare a mistrial, and I most emphatically do not want one of those in my courtroom.”

  Paul sits down, upset. We all are. Now it’s not just murder, which is trouble enough; now it’s a gang-rape on top of that, the appetizer to the main course. I’m not so sure, though, that it’s necessarily going to hurt us any more in the long run than we have been already. The fact that she alleges rape doesn’t make it so, and if we can eventually prove that she willingly had sex with them (we can’t say they didn’t fuck her at all, there’s too much on the record that says they did), it could taint everything about her.

  I motion to Ellen, the paralegal who’s also doing some investigating for us, to come over. She’s young but capable, I’d like to find a way to sponsor her into law school. I issue instructions briefly to her, in hushed tones out of anyone else’s hearing. She makes notes while I talk, and immediately leaves the room.

  Rita continues on. As she gets closer to describing the murder her voice, already low and tentative, gets lower, almost a whisper. Martinez asks her to speak up. She does, then drops again. Then Mary Lou asks for more voice, Tommy does too.

  The jury is leaning in to hear her. I’m not crazy about that, it means they have to direct all their attention to her. I object, too. Martinez becomes a little more forceful in telling her to speak up, but he’s protecting her, she’s a scared dumb girl who, if she’s telling the truth, was brutally traumatized; even if it’s only partly true, it was a shitty, scary experience.

  Moseby knows the judge is sympathetic, as is usually the case in a prosecution, plus she’s Hispanic like Martinez, there’s an unspoken protective coloration here, so he defends her rigorously, knowing he’s got the most important ally on his side in this aspect of it: she’s scared, they threatened to kill her, she’s not the one on trial.

  To me, though, she is. All prosecution witnesses are. The burden of proof is on the state, which I’ve always taken to mean that their witnesses must be credible. They’re on trial to be. Often they’re not; they lie. For lots of reasons. Sometimes they don’t even know they’re lying. They have an idea and it becomes their tangible, physical truth.

  I’m inside my own head. Rita Gomez is on trial in the courtroom of my inner mind and I’m devising ways to get her to tell the real truth. Because what she’s saying now is bullshit, there may be some truth in it, maybe it’s mostly true, but the bullshit contaminates it all, it’s all spoiled. The rotten apple theory. It’s a good theory, it often turns out to be real.

  Her narrative has us back up the mountain now, her and the victim and the bikers, now they’re stabbing him, now they’re cutting off his Johnson and sticking it in his mouth, no
w Lone Wolf has taken out the pistol and is shooting the corpse. Her description is complete and graphic.

  The jury is cringing. Some look from her to the defense table. It’s hard to keep a tight asshole at times like these. Yes, the bikers are terrible people, I wouldn’t want one of them marrying my daughter, and this is more guilt by past association, but this kind of testimony could convict a saint. And it’s stuck in the courtroom’s consciousness now, everyone’s: judge, jury, defendants, all who have entered here. It sticks to us like fear sweat, you can smell it.

  “Is this the murder victim, Richard Bartless?” Moseby asks her, holding up a two-by-three-foot blowup. “As you knew him?”

  A touched-up high school graduation picture of a sweet young man. Moseby turns it, so the jury can see it clearly.

  “Yes, sir. That’s Richard.”

  The room is hushed. If ever one picture was worth a thousand words, ten thousand; it’s one of those moments when you want to bury your head under a metaphorical rock and hope it goes away, while knowing it probably won’t.

  I glance at my colleagues. We all feel the same—like shit.

  The witness is coming down the homestretch with her story now. They brought her back to the motel, laid her one last time (“at least they got one thing right,” Lone Wolf confides to me, “and notice she didn’t say ‘rape’”), swore her to secrecy under penalty of suffering a variation of the victim’s fate, and rode off. And she hasn’t seen them from that day to this. Until now.

  “And those men,” Moseby concludes. “Are they presently in this courtroom?”

  “Yes.”

  “Would you point them out for the benefit of the jury?”

  She stands, setting herself, poised on the balls of her spike heels. For the first time since she’s set foot in the courtroom she looks directly at them. She shakes as she extends her right arm full length, makes a fist, and points an accusing finger. The famous fickle finger, this one a knuckle-chewed digit with a fake inch-long nail painted bright red: the scarlet finger. “It was them.”