I sat down, satisfied. I’d had no chance of winning with such an objection, but I knew the jury was incapable of putting my impassioned remarks out of their heads. The judge I had clerked for would have been outraged had I grabbed for this kind of little advantage in a trial before him. He used to call a lawyer who knowingly made improper statements in front of a jury “an edge grabber,” and he would hold the lawyer in contempt if he did it again in his courtroom.
The rage I had exhibited during my objection slowly faded as John Phalen plowed on. I never actually lost my temper in a trial unless I wanted to. But as contrived as those displayed emotions were, when I acted them out they were real to me, as real as anything in my life. That was why juries usually believed me. They had believed me for almost twenty years as a defense lawyer pleading for acquittals, and before that they had believed me when I had been a prosecutor pleading for convictions.
Judge Bennett delivered his charge to the jury in a dry, flat tone, as if he were reading some bloodless, boring statute like the Mechanic’s Lien Act. Bennett’s tone and the familiar words of the general instructions—“the obligations of jurors… reasonable doubt… evaluating testimony” and on and on—were numbing to me. But two of the jurors were leaning forward, cupping their hands behind their ears. Wonderful institution, the jury, I thought.
I felt my mind slip into a kind of automatic pilot, relying on reflex to catch variations from the standard charge. Resting my chin on my fist, I drew on my yellow legal pad a series of little stick figures hanging from little stick scaffolds. Bennett charged on. I didn’t expect to lose, but drawing the little hanging men amused me, while my anxious client leaned over, as I had known he would, to look at my notes.
After two years of prosecuting cases I had decided that I no longer cared about getting people convicted and sent to prison. I believed at the time that I wasn’t sufficiently engaged in what I was doing. Sure, I had still wanted to win, but that was simply because I always hated to lose anything. Things would be different when I was a defense lawyer, I had thought. The object of the game would be to keep people out of jail. That would be worth the fight.
At some point, some unnoticed point well before the cross-examination of Ms. Lisa Altman, I had finally given up—for reasons I didn’t yet understand—the illusion that there was a moral component in my work. Skill, sure, but anything nobler was just plain bullshit.
Finally Bennett got to the specific instructions defining the crime of rape. I put my pencil down and tried to concentrate. This was the most important part of the charge, and Bennett dropped the pretense of not reading his notes.
“If a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that render resistance useless, it must be shown that she did, in fact, resist the assault. …”
Leaning back, I looked over to my right at my client. The defendant sat with his legs crossed, his sweating, short-fingered hands folded in his lap, his shoulders raised and pushed back. He must have thought he looked relaxed. I knew the jury couldn’t see the man’s chest pumping those short, quick breaths.
I was always aware of the way I looked to juries. I wanted to appear comfortable with myself—earnest, sincere, and, above all, honest—more interested in the substance of my cause than appearances. I always wore simple gold-rimmed glasses and traditional penny loafers, and, unlike most of my colleagues, I refused to wear polyester. Since my recent divorce I had moved from three-piece Brooks Brothers suits to the more rumpled look of corduroy.
I could remember paying attention to the way I sounded even when I was in high school. I had run for president of the student government, and for a crucial speech before the assembled student body I had practiced with a tape recorder for hours to purge my New Jersey accent. Not only did I win that election, but I never said “dese” and “dose” again.
“… This resistance must be by acts and not mere words, and must be reasonably proportionate to the victim’s strength and opportunity. It must be in good faith and without pretense, with an active determination to prevent the violation of the person, and must not be merely passive and perfunctory. …”
The defendant wore heavy wing-tipped shoes and tight black socks that went above the calf. As he sat with his legs crossed, I could see the white skin and coarse black hairs on his leg above the sock. At my insistence he was wearing an appropriately serious navy blue suit with a plain white shirt and subdued tie.
“… However, the fact that a victim finally submits does not necessarily imply that she has consented. Submission to a compelling force, or as a result of being in fear, is not consent. …”
The defendant’s eyes darted back and forth from one juror to another, searching for evidence of their thoughts. He had a flag of skin like a rooster’s leading from his neck to his chin. The tunnel-like nostrils in his upturned nose gave him a strong resemblance to Porky Pig. Can you imagine, I thought to myself, those fat lips pressing close to anyone you loved? Not one of my better-looking defendants. The prosecutor had missed his strongest argument: How, but by rape, could this ugly creature hope to get over with a woman like Lisa Altman? How could a woman so beautiful ever consent to be touched by such a pig?
I responded in my mind to my own argument: Ladies and gentlemen of the jury, as evidence of how depraved and promiscuous this woman is, look at this disgusting and vulgar son of a corporate executive that she chose to degrade and debase herself with. Just look at that face of his. Wouldn’t you have run or called for help just on seeing him? But she did neither. She must have wanted him because of some deep psychological problem of self-worth.
“… It is only required,” the judge went on, “that the female resist as much as she possibly can under the circumstances, and the circumstance and conditions surrounding the parties at the time of the alleged offense are to be considered in determining whether adequate resistance was offered. …”
“Do you think it’ll be all right?” my client whispered.
I nodded.
A short while later three court officers placed their hands on a shared Bible and swore, as the court clerk intoned, “to take the jury to some convenient place and suffer no one to speak to them, nor speak to them yourself.”
The court officers led the jury out of the courtroom, and the judge banged his gavel.
Nothing left to do but wait for the verdict, I thought as I stood and headed out of the courtroom.
Chapter 3
A FEW MOMENTS LATER the elevator doors closed behind me, and I felt the air seep out of me. The heaviness in my arms and shoulders, the effort in my breathing, were unusual this early in the deliberations. The beat of my pulse pounding in my left ear usually came after the verdict, when the tension of waiting was over.
I grabbed my arm and began to rub it. It was more of an itch than a pain, more like tiny needles pricking my skin. I realized I was rubbing the spot that my client had touched after I had completed my cross-examination of the woman. I couldn’t bear the sight of my client. Ever since Jenny had left me, I had become increasingly critical of my work, increasingly unhappy about how I was using my skills and energies. This case was not making me feel any better about myself.
I had applied to law school convinced that I could satisfy some noble expectations as a lawyer. Although I had never articulated what those expectations were, I knew I cared about the poor and the defenseless; I might have had only a hazy sense of what justice was, but I had a deeply felt, intuitive sense of injustice. I hadn’t talked out loud about such things, because I hadn’t wanted to sound self-righteous or naive, but that outrage over injustice had never anticipated the prospect of representing monsters—which was what I now considered most of my clients to be.
The excitement with which I had begun my career as a criminal defense lawyer—convinced as I was that idealism and ambition were not incompatible—rather quickly dissipated with the realization that the practice of law was a business like an
y other. I had been nervous about whether I could get clients, but they came. Within a year I was working seventy hours a week and earning a good living. And that workload had continued in the years that followed.
I always felt exhausted after a trial, and that was particularly true now. But it would be months before I would fully realize how different this case was from any other in my career—and the effect it would have on my life.
For most of my years of trying cases, an acquittal would invariably make my spirits soar. Now, in the twenty-second year of my practice, I doubted if I were still capable of that kind of hit. Instead, coming down from the tension and excitement of a trial simply left me feeling depressed. I had never understood the source of that depression. Maybe it was somehow similar to postpartum blues. But wherever it came from, it was real, and with the end of this trial approaching, the depression was already palpable.
Hundreds, I had represented hundreds—trying to keep them out of jail, keep them on the streets. I could no longer deflect the realization—this chilling glimpse of myself—that I had used all my skill and energy on behalf of a collection of criminals. William Betz was rich and had paid me $70,000 to prevent the state from proving he was guilty of rape beyond a reasonable doubt. But who knows? Maybe Betz was innocent.
Most of my clients were poor and probably paid me all the money they had or could steal. Some of my cases were assigned by the Legal Aid Office. The Supreme Court had decided a while ago that everyone, even an indigent, was entitled to a lawyer in a criminal case. As a result, some portion of impoverished clients were assigned by the public defender to private attorneys, who were paid on an hourly basis by the state. About a quarter of my cases came to me this way. These cases didn’t pay nearly as well as the work with private clients, but if you handled a number of them at the same time, the money would add up.
The clients assigned by the public defender were the poorest in every respect. Sure, some of the poor ones might have been guilty of crimes brought on by poverty, but their victims hadn’t caused their poverty, and most of the victims were equally poor. And most of those equally poor victims didn’t go out and mug or rape or kill.
The elevator began to descend. Jenny had waited with me during my first few trials. We would pace the corridors together, chain-smoking, chatting and laughing nervously about details of our life. After those early trials but before Molly was born, Jenny had made a point of being close to the phone at her office. I’d call her several times while I waited for a verdict, and call her again immediately on hearing the news.
It was touching, I thought now, how desperately Jenny had wanted to believe in the innocence of my clients. She, understandably, had become less involved with my work around the same time she had become pregnant and stopped working. After Molly was born, Jenny was too occupied to focus much on who I was taking on as clients. Believing my clients were innocent victims had at one time also been important to me. It must have been.
The elevator stopped to let off and take on passengers. Waiting for a verdict. Waiting for a case to start. For a jury to be picked. A witness to arrive. I waited badly. Such a waste of time. I was incapable of accomplishing anything during these intervals. Certainly not work. Though I sure as hell had work. This case had taken a lot more time than I had expected.
I leaned against the gray metal wall of the elevator. Sometimes it felt as if I had always been waiting. Waiting to get out of law school, waiting to get married, build a law practice, have a child, get a divorce, and still I was waiting: this time to find a point to my life. At least the jury’s verdict would be back before then.
“What do you look so upset about, Michael? Did the judge sentence you instead of your client?”
I hadn’t noticed the man standing next to me in the crowded elevator. It was Norman Dogbein. “Hi, Norman. How you feeling?” I asked.
Norman, in his late fifties, had had a heart attack a couple of years ago in the middle of a summation, but that hadn’t kept him from taking a lying prosecutor into the corridor a few weeks ago and decking him with a good right. I always admired people who could express their grievances.
“I’m fine, Michael. Fine,” he said, and turned to a little black kid about five years old standing in front of us. The boy, who had plaintive dark eyes, was sandwiched between his mother and a cop. “Hey, sonny,” Norman said.
The kid looked up at Norman.
“What’s the rap, sonny?” Norman asked, smiling playfully and motioning with his head to the man in uniform next to him. “The fuzz pinch you for running numbers?”
The kid smiled back at Norman, but at the same time pressed closer to his mother.
The cop didn’t seem to find the question amusing.
Norman turned back to me. “I hear you’re on your feet up in Bennett’s court. How’s it going?” When Norman spoke, he’d lean his large head toward you.
The elevator doors opened. “Buy you a cup of coffee?” I asked.
Norman nodded. We walked toward the cafeteria.
“I guess I should feel good about it. The jury just got the case,” I said.
“Bennett’s a mean bastard.”
“Not so bad. I’ve known him for years.” I held the cafeteria door for Norman. “Jesus, I’m exhausted.”
“You get along with those WASP cocksuckers,” Norman said.
“Get along with them? I wouldn’t say that. One of them just divorced me.”
“I’m not surprised. Who could live with you?”
“I can’t imagine,” I said, and it occurred to me that Bennett wasn’t a WASP; he was an Irish Catholic. Obviously, Norman didn’t make fine distinctions between “goyim.”
The cafeteria was like a large renovated airplane hangar. The walls must have originally been painted yellow, but now seemed closer to brown. Vertical blinds kept the fluorescent light from escaping out the long, narrow windows. The smell of ammonia hung in the air—the linoleum floors must have already received their afternoon mopping.
I led Norman through the turnstile, past the steaming wells of the serving counter. From the stainless-steel urn, I poured coffee into two plastic foam cups. “Here. Sip it, Norman. It’ll make us humble.”
“Fat chance,” Norman said.
“Hey, Mr. Roehmer, I thought you were terrific today.” One of the old spectators who frequently attended my trials startled me from behind.
“Thank you,” I said. “It’s good to see you.”
“You really nailed the broad yesterday. I mean you really banged her,” he said, and gave me a dirty wink.
“It went all right. Take care of yourself,” I said, and started to walk away. I liked the idea of fans more than their compliments.
“I bet the jury’ll be back in less than an hour.” The man pushed back the large horn-rimmed glasses that had slipped down to the bulb of his nose.
“We’ll see.” I walked away. I hoped he was right about the time it would take for an acquittal—and that it would be an acquittal.
I made my way to the corner of the room, trying not to squeeze the cup too hard. I sat with Norman for about a half hour and listened to his “war stories.” I’d heard them a number of times before. Norman, it seemed, had endless energy with which to retell his triumphs. We had shared a number of coffees over the years.
At one point Allen Swid, a reporter who covered the courts for a local paper, approached the table. Plump and balding, he walked as if he were carrying a bucket of water on his head. I nodded to Allen.
“Gentlemen,” Swid said. “Anything doing?”
“We’re doing waiting,” I said.
“Yes, I know. I left before the charge. Had to make a call. Standard charge?”
“Standard charge,” I said.
“Any mistakes? Anything you’re angry about, Michael?”
“Bennett is too careful to make mistakes.”
“The state would have had a much better shot in your case if they’d had a confession,” Swid said.
&nbs
p; “We don’t call them confessions anymore, Allen,” Norman said. “We call them involuntary statements. ‘Confessions’ is too depressing a phrase for defense lawyers.”
Allen Swid glanced at Norman and flashed a quick smile, but his interest was in my case, and he kept his attention on me. “You got to admit you were pretty brutal with the woman,” Swid said.
“We do the best we can,” I said. I had more than once seen casual comments of mine turn up in Swid’s articles. I wasn’t about to give him anything quotable.
“And a woman who overcame polio, no less,” Swid said. At ten, Lisa had apparently beaten the disease by sheer determination. Fortunately I had been able to keep away from the jury as irrelevant information any reference to her heroic struggle with the disease, and the ignorance of her impoverished parents in not having gotten her vaccinated.
“You were really more vicious than I’d ever seen you before. You think that’s true?”
“And what the hell do you think a good lawyer like Michael uses a courtroom for, anyway?” Norman asked.
“What do you mean?” Swid asked.
“I mean, a courtroom’s where a lawyer’s supposed to act out all his emotions. Cathartic, therapeutic. And I’ll tell you one thing: it’s better than going home and beating your wife.”
I looked at Norman and wondered how much he was joking.
“But, after all, Michael, this was a simple case, only one eyewitness—the alleged victim.” Swid was baiting me. “A cyclops—isn’t that what you call these one-eyewitness cases?”
“She’s a most beautiful and appealing witness, and she knows how to look sympathetic. Very hard to deal with,” I said.
“Seriously,” Swid went on, “don’t you think it was peculiar that not one person from her ballet company came to the trial? I was looking to do an interview, but there wasn’t one person, not a dancer, no one.”
“I noticed,” I said. “But some of her fans were there. I overheard some of them talking.”
Question of Consent: A Novel Page 3