by Jeanne Winer
When I returned to the defense table, Donald looked much more optimistic.
“It was good,” he said, “real good. Even I understood what she was talking about.”
After a short recess, Jeff began his cross-examination. In order to accommodate my expert’s schedule, we’d all agreed to go straight through until he finished and then break for lunch. As I’d expected, Jeff spent very little time attempting to discredit my expert’s credentials or the literature she relied on. Instead, he focused like a laser beam on the obvious problems in my case: no one had ever witnessed any serious violence between Hal and Emily; Emily hadn’t claimed self-defense to the detectives who arrested her; people often lie about their motives for killing others, especially if they’re facing imprisonment; if Emily had experienced only a minimal amount of violence in her relationship, then her fear of being hurt wouldn’t be legally “reasonable” and she wouldn’t be entitled to claim self-defense; and no one but Hal and Emily were present on the night of the killing, and now no one but Emily was available to testify about what really happened. At exactly one thirty, he asked his last question. His blood sugar must have been very low.
“And so, Dr. Midman, if Emily Watkins wasn’t really a battered woman and her real motive that night was to collect on her husband’s insurance policy, then all of your testimony concerning the battered woman syndrome would be irrelevant, wouldn’t it?” It was argumentative and stupid, but I didn’t object. I knew my expert could take care of herself.
Dr. Midman turned and looked directly at the jury as she answered. “You’re right, Mr. Taylor. If Emily wasn’t a battered woman, my testimony would be irrelevant. But I’d stake my reputation on my opinion that she was, and that she was acting in self-defense when she stabbed her husband. Her motive that night wasn’t greed. It was far more basic, to protect herself.”
Jeff stood still for a moment looking pale and frustrated. And then he sat down. He needed food.
I stood up. “No redirect Your Honor.”
Judge Thomas checked the clock, then told everyone to be back at three. Which gave me an hour and a half. As soon as the jurors were gone, I grabbed my briefcase and hurried over to thank my expert. She was stuffing her blazer into her overnight bag.
“You were great,” I said. “Now, if I can just get my client to testify, we might even win.”
She zipped up the bag. “These are tough cases, Rachel, even when everything goes right. Call me when you get a verdict.”
“I will. I hope you make your plane.”
“Thanks,” she said. “Good luck.”
I checked my watch and then began trotting toward the exit. If traffic was light, I could make it to the jail in fifteen minutes. Alice caught up to me outside the courthouse.
“Let me come with you,” she said. “Emily might listen to me.”
“All right,” I said, then noticed her chest was heaving and her face was even redder than usual. “I’ll get my car and pick you up right here.”
She nodded, too out of breath to say anything else.
We had to wait at least ten minutes before the jail receptionist could find someone to escort us back to the women’s module. When we got there, a black deputy named Penny, who loved Emily almost as much as I did, promised to pull her out for us, even if she didn’t want to come. We waited in the dayroom, staring at the battered piano, the AA slogans scribbled on a portable blackboard, the Bibles and religious pamphlets strewn across the table. There was a stack of unwashed food trays on the floor that smelled like congealed meatloaf.
Alice took it all in, but didn’t say a word.
I pointed to a red plastic pitcher on the table. “Do you want any Kool-Aid?”
She managed a tiny smile. “No thank you.”
I hesitated. “It’s tough,” I said. “Especially if you’ve never been here before.”
“Yes,” she said, “it is.”
When my client finally walked in, her shoulders slumped at the sight of us. She was wearing her usual navy blue uniform.
“Emily,” Alice said, her voice breaking a little.
“Hello, Alice. It’s wonderful to see you. I wish it were under better circumstances. This must be very upsetting for you.”
Alice shook her head. “I’m fine,” she said firmly. “There isn’t much time. Your lawyer and I have come to discuss your decision not to testify.”
Emily turned to me. “I knew you’d come, but it won’t make any difference. I can’t do it, Rachel. I just can’t.”
Alice moved her hand, motioning me to step back a little. “How long have we been friends, Emily?” she asked.
Emily looked surprised. “Almost thirteen years, I think.”
“Thirteen years,” Alice repeated. “Yes, that’s right. And in those thirteen years, I’ve never asked you to do anything just for me. Especially something you didn’t want to do.”
Emily stared at her. “Alice, I would do anything in the world for you. You know I would, so please don’t ask me to do this.”
Alice shrugged, as if she had no choice. “But I am. I’m asking you to please testify, Emily.”
I kept my mouth shut and waited. The minutes ticked by. We heard someone shouting an obscenity, a burst of laughter, then the sound of a toilet flushing. In the hallway, a group of inmates were complaining about not getting their full hour in the yard. One of them, a current client with sores all over his face from shooting too much speed, rapped on the glass and grinned at me. A guard knocked on the door and then came in to collect the food trays.
Finally, Emily nodded. “Okay,” she said. “I’ll testify.”
“You will?” I asked.
“Yes,” Emily said, looking at Alice.
“Well that’s…wonderful,” I said. “Are you sure?”
“Yes, I’m sure.”
“Great.” I looked at my watch. It was almost twenty to three. “You can do this, Emily, and we can win. Dr. Midman did a fabulous job explaining everything. The jury will be much more sympathetic now. Tell Penny you need your court clothes and that you need to get to the courthouse as soon as possible. She’ll make it happen. I’ll tell the judge you’re coming.”
On the drive back, Alice and I were both quiet. Whenever I looked over at her, she was staring straight ahead. As I pulled up in front of the courthouse to let her out, she turned to me and said, “She has to testify, right? There’s no other way?” As if I were an oncologist and she were asking if her friend really needed chemotherapy.
I nodded. “Yes, she has to testify. You did the right thing.”
She let out a deep breath. “All right, then. I’ll see you inside.”
***
At a quarter past three, Sunny was escorting Emily over to the defense table. My client looked calm and resigned, like a martyr being led toward a bonfire. As soon as she sat down, I put my arm around her and leaned in close.
“It won’t be as bad as you think,” I whispered. “You can do this, Emily. I know you can.”
After a moment she nodded, and I knew she was ready.
Once the jury was seated, I stood up and announced, “The defense will now call Emily Watkins to the stand.”
Without any hesitation, my client walked to the witness chair, held up her right hand, and promised to tell the truth, the whole truth, and nothing but the truth. She smiled briefly at the jury, and then turned her attention to me.
I kept my direct examination as short as possible, leaving out any questions that weren’t absolutely essential. I began chronologically with her marriage to Hal and ended with the night she stabbed him. I asked simple questions and she gave simple thoughtful answers. It seemed as if the jury was paying close attention and a number of them looked sympathetic. Toward the end of my examination, I asked why she hadn’t told anyone about the abuse and she said, “If you’d asked me this question a year ago, I would have said because I was ashamed and because I loved my husband and didn’t want to get him in trouble. But the truth is, I didn’
t tell anyone because saying it out loud to another person would have required me to acknowledge it to myself. As long as I lied about it to others, I could lie about it to myself. Does that answer your question?”
“Yes,” I said. “Thank you.”
After an hour, her answers began to sound more uncertain, a sure sign she was close to her limit. I smiled at her and said, “Just three more questions, Emily, and we’re done. I know how distressing this is and I can assure you that Mr. Taylor is a kind man and won’t belabor his cross-examination.”
Jeff immediately stood up, shaking his head at my little speech. “Judge, I appreciate Ms. Stein’s confidence in me and will do my best not to…belabor my cross-examination. For the record, I intend to only ask questions I consider to be crucial and relevant.”
“Thank you, Mr. Taylor,” Judge Thomas said, then turned to me. “Ms. Stein, if you would please finish your direct.”
“Certainly, Your Honor.” I turned back to my client. “All right, Emily, question number one: did you kill your husband for the money?”
She shook her head and smiled. “No, I’m sure I didn’t.”
“Question number two: at the moment your husband approached you, did you think he was going to hurt you?”
“To the best of my knowledge, I did.”
“And finally, question number three: did you kill your husband in self-defense?”
“Yes,” she said, “to the best of my knowledge, I did.”
I paused for effect. “No further questions,” I said, then walked back to the defense table and sat down.
Not bad, I thought. Her answers hadn’t been perfect, but she hadn’t waffled on anything crucial. I knew from a friend who was a long distance runner, that a marathon was twenty-six miles, three hundred and eighty-five yards. I studied my client’s face. She looked tired but determined. If this was a marathon, she was halfway there. Come on Emily, just thirteen miles, one hundred and ninety-three yards to go.
“Mr. Taylor?” Judge Thomas said.
Jeff stood up and sauntered to the podium with a sheaf of papers in his hand. “Ms. Watkins,” he said, “if I understood your testimony correctly, you loved your husband, you miss him and you wish you hadn’t stabbed him?” His voice sounded gentle, almost sympathetic.
“Yes, that’s true.” She hesitated. “But I thought I had to stab him.”
“Although looking back, you might have been wrong?”
She stared at him. “Yes, in retrospect I might have been wrong.”
“But you want the jury to believe that at the time you felt you had no choice?”
She shook her head. “You make it sound as if I had any time to think about it. I didn’t think, I just stabbed.”
“And so,” Jeff continued, sounding as if he were just trying to clear things up, “it’s only in retrospect that you determined you had to stab him?”
She looked a little confused. “At the time Hal approached me, I assumed he was going to hurt me. I reached out instinctively and stabbed him. In retrospect, I understand I did that because I thought I had to.”
“And you came to this understanding some time after you’d been arrested?”
She thought for a moment, the way I’d coached her: if it sounds as if he’s trying to trap you, wait a few seconds before answering. “Well, I didn’t have time to understand my actions when it was all happening.”
“And so,” Jeff repeated patiently, “you came to this understanding some time after you’d been arrested, after you’d spoken with your lawyer.”
I jumped up. “Objection, Your Honor. That’s privileged and Mr. Taylor knows it. He’s implying that I suggested self-defense before my client told me what really happened.”
“Your Honor,” Jeff said, “I’d ask that counsel for the defendant be admonished for her statements and that the jury be instructed to ignore them.”
“Well,” I countered, “I’d ask that the prosecutor be admonished for asking inappropriate questions that call for privileged information.”
Judge Thomas waved his hand at both of us. “Please, let’s try to get through this as civilly as possible. You are both professionals. Please act accordingly. The last objection made by Ms. Stein is sustained. I’d ask that neither counsel make any more speaking objections. Just state the objection and the grounds. Understood?”
“Yes, Your Honor,” I said. “Thank you.”
Jeff waited for me to sit down, and then began again. “Ms. Watkins,” he said, sounding a little less gentle, “you’ve testified that you wished you’d had the courage to leave your husband?”
Emily nodded. “Yes.”
“But you didn’t?”
“No, unfortunately I didn’t.”
“But you didn’t really want to leave him either?”
She smiled ruefully. “No, not really.”
“And you weren’t seriously thinking of leaving him, even if you occasionally wished you’d had the courage.”
For a moment, Emily looked defensive, but then she shook her head. “Well, I had that bag packed, but no, I don’t think I ever seriously thought I would leave him.” She paused. “Unless maybe if things got even worse.”
Jeff nodded, but it wasn’t a friendly nod. He wanted to win more than he wanted to be nice. “So let me get this straight: sometimes you wished you could leave him, but you really didn’t want to?”
“Correct.”
“And you really didn’t intend to?”
Emily sighed. “No, not really.”
Her face was so pale it was hard to imagine she’d ever looked tan and healthy. Picture the finish line, Emily. Picture the sun on your face, your very own garden.
Jeff, meanwhile, kept his eyes on his quarry. “Ms. Watkins, you lived with your husband for ten years?”
“Yes.”
“You slept with him every night?”
She blushed a little. “Except when he was sick or intoxicated.”
“But almost every night?”
“Yes.” She sat very straight with her hands in her lap. She would not equivocate unless there was a reason.
“You could leave the house anytime you wanted?”
“Of course.”
“You could have taken that packed bag and left any time you chose.”
“Yes,” she said, “I could have, but I chose to stay.”
The jurors were looking a little less receptive. The high school principal in the back row had his arms crossed in front of him, and a few of the older women were shaking their heads. “That’s right,” Jeff said. “You chose to stay. Despite the drinking and the occasional meanness, you chose to stay.”
“Yes, it was my choice.” Emily leaned forward to emphasize the point, as if she wanted everyone to know she was taking full responsibility.
Jeff paused for a moment, pretending to look thoughtful. “And yet, Ms. Watkins, there was a part of you that was tired of living with your husband?”
She sighed again. “Yes, that’s true. Part of me was.”
“Part of you wanted to leave?”
“Yes.”
“That’s the part that packed a suitcase and left it hidden in the hall closet?”
“Yes, yes it was.” She was nodding at him as if they were old friends having tea. But he’s not your friend, Emily. He’s the prosecutor.
Jeff continued. “But there was a problem.”
She looked confused. “What problem?”
“You didn’t have enough money to leave.”
She shook her head. “That wasn’t the reason.”
“Ms. Watkins, you testified on direct that you and Hal had about twenty-five thousand in savings?”
“I think so. I didn’t pay much attention to our finances. Hal did.”
“And so if you’d divorced him, maybe you’d have ended up with half. Not enough to live on for very long.”
Suddenly, she looked offended. “I could have worked, Mr. Taylor.”
Jeff smirked a little. “Ms. Watkins,
you’d never had a paying job in your life, only volunteer work.”
“So what?” She was actually angry. I hoped she’d stay that way. It would give her the energy to stay sharp and keep going. The energy to save her own life.
“You weren’t sure you could get a job, were you?” Jeff asked.
“No, I wasn’t sure, but I thought maybe at the library or the Humane Society. I also thought about teaching English as a second language.”
“But you had no experience at that.”
“True.”
“And most nonprofits generally rely on volunteers, don’t they?”
She hesitated. “Yes, that’s also true.” She was caving in again.
Jeff looked down at his notes. “You and your husband lived mostly on his pension. Is that correct?”
Emily nodded. “Yes, well we tried to. Sometimes we had to use our savings.”
“And Hal’s mother owned the house you lived in?”
“Yes, she did.”
“So on your own, separate from Hal, you didn’t have much?”
“No, that’s true.”
“Half the savings, at best.”
“Yes.” She was doing the nodding thing again. Watch out, Emily.
“Maybe about twelve thousand dollars.” He paused. “Before the lawyers.”
“What lawyers?”
“The divorce lawyers.”
She looked at him, straightened up a little. “Mr. Taylor, I never went through these kinds of calculations in my mind. Ever. I wasn’t planning to leave my husband. Not seriously.”
“Even though you say he was periodically violent?”
It was time to give my client a rest. I stood up and said, “Objection, Your Honor, the question whether my client was going to leave her husband has been asked and answered numerous times.”
“Your Honor,” Jeff said, trying not to sound as irritated as he felt, “I am trying to do my cross. I’d appreciate being allowed to do it without frivolous objections.”