Question of Consent: A Novel

by Seymour Wishman

  It was not that I was concealing any dark and terrible secrets. In fact, I thought now, there didn’t seem to be anything in my early years to suggest the tough, cutoff person I would become. No, that couldn’t be true, I realized suddenly—there must be memories that would provide clues… vague memories, hidden, I was sure, behind many fine lace curtains. I knew that at some point I would have to try to draw the curtains back.

  “My parents used to talk of a lawyer as a power broker,” I said to Lisa, “someone who knew the rules and the players; he could make contacts, get things done—he would have the education and, even more important, the credentials.”

  My parents were painfully self-conscious about being poor. Their poverty was more than just the absence of money. It made them feel doomed to be outsiders forever, powerless, at the mercy of hostile forces and malevolent people. The idea of their son as a lawyer literally meant having someone who could speak for them, who could assert their rights and protect them from being victims of events over which they had no control. For my parents, “the law” implied a rational order in the world, and the lawyer was the person who upheld that so desperately needed order.

  “My mother was photographed when she was seventeen. Her hair was cut short in a boyish style and she wore no makeup. She was dressed in a simple white blouse and black skirt. She sat stiffly with her hands clasped together on her lap, staring into the camera, her dark eyes opened wide. But the eyes looked frightened, almost as if she were waiting for something or someone to slap her. I used to carry that picture around with me in my wallet.”

  “May I see it?” Lisa asked.

  “I must have lost it,” I said.

  Chapter 18

  LATER THAT NIGHT, LISA and I were in bed. We had made love. The blankets covered us. I was smoking. This was the bed that William had thrown Lisa on, the bed on which he had raped her.

  “What are you thinking about?” Lisa asked.

  “The medical examiner confirmed that there was skin under William’s nails,” I said.

  “You sound surprised.”

  “Relieved. Not because I didn’t believe you, but because these guys are often incompetent.”

  “Now that they have this information, why don’t they drop the case?”

  “The prosecutor’s under pressure. Look at all the press this case has gotten.” The tabloids had had Lisa’s picture on the front page at least a half dozen times, with headlines that should have been reserved for the outbreak of World War III.

  “The press has made a big deal out of me, but that’s not my fault,” Lisa said.

  “Of course not, but the prosecutor doesn’t want to take responsibility for dismissing it. It’s easier for him to let the jury decide. I’m sure he thinks some people on a jury could decide that you killed Betz out of revenge.”

  “Do you?” Lisa asked.

  “No.”

  “It wasn’t revenge, Michael. I swear it.”

  I nodded.

  Lisa leaned over and kissed me. And then we made love again.

  “The hardest part of the trial will be in dealing with the fact that you went to his apartment—and with a gun,” I said sometime later. We were still in bed.

  “But I brought it to his apartment in order to protect myself,” Lisa said.

  “Of course. But if he had come to your apartment, you could have refused to let him in, or threatened him with your gun without killing him.”

  “That’s true.”

  “‘That’s true’ isn’t good enough. The prosecutor is going to rip into you on this. You saw what I did to that victim in court today.”

  “I was so frightened. I just wasn’t thinking?”

  I nodded. “That’s better. You were terrified.”

  “Right,” Lisa said.

  “You knew you couldn’t call the police about the threats because you were sure they wouldn’t believe you. Right?”

  “Yes.”

  I took a deep pull on my cigarette. I knew only too well that some criminal lawyers told a client what to testify to, even when they knew the testimony was untrue. (Although “preparing a witness” in that way is unethical, disbarment rarely results because neither client nor lawyer is likely to tell, and usually there is no other witness to such conversations.) On the other hand, as a lawyer I had the obligation to explain to the client the implications of her testimony, and help her phrase it in a way that would be most impressive to a jury. Of course, I knew there was a thin line between doing that and prompting perjury.

  “When you got to his apartment and he threatened to harm you if you didn’t have sex with him…?” I probed.

  “I was in a state of panic.”

  “Exactly. And it was only when he started toward you that you grabbed the gun out of your pocket-book and pointed it at him.”

  “That’s right,” Lisa said.

  “You squeezed the trigger again and again, you don’t know how many times, until you stopped pulling the trigger.”

  “Yes. Yes.”

  “Then when did you get your scratches?” I asked.

  “What?”

  “The scratches on your stomach. The strongest evidence we have of your innocence is the scratches on your stomach. If you shot him when he first came after you, when could you have gotten your scratches?”

  “Of course. You confused me. He walked toward me, then he lunged and ripped my clothes. That’s when he scratched me. I backed away. And when he came at me again, that’s when I shot him.”

  “Better. Lisa, you can’t get rattled and forget something like that. The scratches are crucial.”

  “I understand,” she said.

  I lit up another cigarette.

  “How do you think we’ll do?” Lisa asked.

  “It depends on the jury. If they believe you, we’ll win. If they don’t, well, we’ll see. I think it’s credible.”

  “At least I won’t have you cross-examining me in this trial.”

  “John is a tough lawyer,” I said. “Don’t underestimate him.”

  “Does he really think I planned to kill him?”

  “I think he believes you were raped last time. He probably doesn’t know what really went on when you shot Betz.”

  “I don’t get it. If he has his own doubts, then why would he be trying to convince a jury to convict me of murder?” Lisa asked.

  “He’s just doing his job.”

  “I don’t know how you people do it. Don’t you believe anybody?”

  “He gave you a break on the bail. But that doesn’t mean he won’t press hard for a conviction. You have to be ready for a tough cross-examination.”

  “Is there anything I should do differently from what I did in the last trial?”

  “Yes. We’ll go through it. You’ll be ready by the time we get to court.”

  “I don’t know what I would have done if you hadn’t agreed to represent me,” Lisa said.

  “It’ll all depend on our getting the right jury, and how the judge lets me try the case.”

  “Do we know which judge we’ll have?”

  “Yes. Grosso.”

  “What’s he like?”

  “I’ve never tried a case with him. He’s only been on the bench a year. I hear he’s a twerp.”

  “Well, that’s frightening.”

  “If we play our cards right, I’m sure we can get him on our side.”

  “When do we go to trial?” Lisa asked.

  “After I finish a drug case. Then we’ll go. It won’t take long.”

  “I feel so safe in your hands.”

  I smiled. “Let’s go through it again.”

  “What happens to us after the trial?” Lisa asked. “I mean assuming that I’m acquitted.”

  “Let’s take one step at a time,” I said, although that was a question I had already asked myself dozens of times. At this point I only knew that I desperately wanted to win the case for Lisa. I was sure she was innocent, and I was sure I was in love with her. And I was al
so convinced that more was riding on this case, both personally and professionally, than on any other in my career. And I couldn’t bear to contemplate the consequences of a conviction.

  Chapter 19

  THE NEXT MORNING I woke up and realized I was next to Lisa, in her bed, in her apartment. The clock on the table next to me said 7:30. I had spent dozens of nights at her apartment, but I was still almost always disoriented when I woke up.

  I picked up the phone and dialed home.

  “Hello,” Judith said in her British accent.

  “Judith?” I said.

  “Good morning, Michael.” There was a touch of disapproval in Judith’s voice, but I felt I had it coming.

  “Something came up, so I couldn’t get home last night. How’s Molly?” I had been making this kind of early-morning call about twice a week lately, and I was feeling guilty about it.

  “Molly’s fine. We’re about to go off to nursery.”

  “Okay. I just wanted to check in. I’ll see you later. I’ll be home to change and then I have to be in court. Tell Molly I’ll see her tonight.”

  I was in the courthouse two hours later to file a motion to compel the state to give better medical treatment to Sherry Parruco, the client of mine who had not used enough lighter fluid to burn her boyfriend. Sherry was doing her time in the women’s prison. She had been diagnosed as a diabetic when she’d gone into insulin shock soon after arriving there, but the officials at the prison hospital, out of spite or incompetence, had not been giving her the medication she needed.

  After dropping off the motion papers at the clerk’s office, I headed to the cafeteria. I was still troubled by the thought that I had secured Larsen’s acquittal by making a direct appeal to the jury’s prejudices against gays. What I had done was immoral—there was no way of getting around that. Maybe it was within the guidelines of ethical conduct for a lawyer, but I knew it was personally immoral. And that had been a case in which I hadn’t cared about my client in any personal way. It frightened me to think of what I would be willing to do to win Lisa’s case.

  I was also worried about whether or not I would be able to conduct Lisa’s trial with that same kind of professional detachment that was needed to be effective. I knew I’d never forgive myself if I lost my temper. The irony was how successful my professional detachment had made me against Lisa when I was defending Betz. Look what my skill had put Lisa through as a result of that win!

  I opened the door and stepped onto the small stage of a platform which looked down on the enormous room that was the cafeteria. At tables scattered about were a flock of court attendants, a whisper of witnesses, a plague of lawyers, an infestation of people suing people, and a fistful of people accused of crimes. In the far corner by the window, I noticed a woman and four men seated around a rectangular table: a pride of judges—Leonard Grosso, Dick Bennett, Lois Shearer, Tony Fazio, and Andrew Taylor.

  I descended the stairs and moved to my left, pushing through the turnstile. I poured coffee into a plastic foam cup and walked over to Lucille, the woman at the cash register. In her mid-sixties, Lucille had worked in the courthouse cafeteria at least since the time I’d clerked for Bear. She was an eccentric, feisty pistol who terrified most people with whom she came in contact.

  “Good morning, Lucille,” I said, handing her some money.

  “Yeah. Good morning,” she responded snappishly, ringing up the register.

  “Well, you seem particularly chipper today,” I said.

  “I learned to fake it in charm school. Did you get any more bums off today, Counselor?”

  “Lord knows, I try, every day, in every way,” I said.

  “Everybody still a potential client?” she asked.

  “Seems that way,” I said, smiling at the running joke we shared. I took my change and moved on.

  I made my way to a table near the judges where three of my friends—Darren Gallagher, Norman Dogbein, and Ashley Josephs—were sitting. I lowered myself into an orange plastic chair.

  “Gentlemen,” I said, nodding at my friends.

  My friends nodded back.

  Darren Gallagher and I had been in the same class in law school. Although we had never been close, we had worked together, some twenty years before, setting up a student civil rights organization. I had always found Darren to be a bit self-righteous and an opportunist. I couldn’t fault him for being ambitious, not without feeling like a hypocrite myself, but his self-righteousness sometimes got on my nerves. He was the chief trial lawyer for Legal Aid, but he introduced himself to strangers as a movement lawyer, which was ridiculous. His criminals were like everybody else’s, only poorer.

  The judges were less than twenty feet away. Darren was staring at Leonard Grosso, the judge with whom I would be spending the next few weeks trying Lisa’s case. Grosso was dressed in a tight-fitting, double-breasted suit with wide lapels and pronounced shoulder pads.

  “So when he’s being led out,” I could overhear Grosso say, “the guy calls to me, ‘You know, Judge, for such a little guy you give really big time.’” Grosso, his coarse black hair combed straight back, laughed louder than the other judges at the table. Darren Gallagher, at my table, glowered with a mixture of contempt and envy.

  “Darren, you look as if you could kill someone,” I said.

  “You wouldn’t believe the way they talk,” Darren said.

  “Darren’s problem,” Norman Dogbein said, “is that he sees judges as father figures, and he feels personally betrayed every time they act like schmucks.”

  “Look how smug and self-satisfied they are,” Darren said.

  “You’re too harsh,” I said. “For most of them it’s a kind of semi-retirement, just a gavel at the end of the rainbow.” I knew I was sounding generous, although I usually had as much anger toward judges as Darren.

  “They go nuts once they get their robes,” Ashley Josephs said. Josephs was young, barely thirty, with eyebrows that seemed to meet to form one long line. We had tried a drug case together several years before. Our clients had been young ghetto kids charged with possessing a kilo of marijuana with the intent of selling it. The cops had found the evidence in my client’s apartment. It was Ashley’s first trial, and he’d been frightened. We’d gone through the whole trial together, and as we’d waited for the verdict, Ashley had gotten more nervous. He couldn’t stand the prospect that his client would be convicted. The prosecutor had offered both our clients a plea to mere possession, and as the jury was deliberating, Ashley talked his client into taking it. About an hour later the jury brought back a verdict of not guilty of all charges against my client. Had he waited that extra hour his client would almost surely have been acquitted too. Ashley and I both remembered that plea whenever we got together.

  “I was in court when Grosso was still a defense lawyer like us,” Norman said. “He was defending this beautiful woman accused of killing her husband. He was in the middle of his summation, standing in front of the jury. Suddenly he points at his client and with intense seriousness says, ‘I ask you, ladies and gentlemen of the jury, are these the legs of a murderess?’”

  Everyone at the table laughed.

  “Michael, you missed hearing Norman tell us yet again about his first case,” Ashley said.

  “Not again, Norman,” I said. “Have you no sense of decency?”

  “I gave you your first case, you ungrateful whore,” Norman said.

  “How can I forget it? Haven’t I thanked you recently?” I asked. “The creep could have gotten life. He owed me two-thirds of the fee, and I never saw him again. Thanks a lot, Norman.”

  “You knew you wouldn’t get the money,” Norman said. “You wanted the case. Tell the truth.”

  “Maybe so,” I said. “You learn.”

  “You learn that if you’re a criminal lawyer, you’re working for criminals,” Norman said, as he so often did.

  “I know: Mother Teresa doesn’t need a criminal lawyer,” I said, which Norman also said quite often.

/>   “Right. If I’ve told you once, I’ve told you a hundred times,” Norman said.

  John Phalen, carrying a cup of coffee, arrived at our table. “Mind if I join you?” John asked as he placed his cup across from me and sat down.

  “Careful, everybody. It’s the virile fist of the state,” Norman said.

  “Oh, Michael, congratulations on the Larsen case,” John said.

  “Thanks. One of my prouder moments,” I said sarcastically.

  “Another win, Michael?” Norman asked. “And you haven’t told us about it?”

  “I’d just as soon forget it,” I said.

  “Michael’s client puts a twelve-inch bread knife into the stomach of his male lover. Leaves him with a million stitches. And Michael gets his man off,” Ashley said.

  “What was your defense, Michael?” Norman asked. “That he mistook the victim for a challah?”

  “That’s not bad, Norman: the old challah defense,” Ashley said.

  “My guy’s gay, right?” I said. “He’s the victim’s lover, for Christ’s sake, and he keeps calling the victim a faggot.”

  “It was a nice win,” John said.

  “I made a blatant appeal to the jurors’ prejudices against gays,” I said.

  “I heard about it,” John said.

  “I don’t ever want to do something like that again,” I said.

  Judges Taylor and Grosso arrived at the table.

  “And how are our most distinguished members of the criminal bar today?” Judge Taylor asked.

  All of us at the table nodded at the two judges, except Darren, who took a sip of coffee and stared at Judge Grosso.

  Grosso leaned over the table. “I was just telling my brothers on the bench that the reason Cain didn’t get a death sentence for killing his brother wasn’t so much that God was against capital punishment as because Cain didn’t have a lawyer to muck things up for him.” Grosso smiled at what he regarded as good-natured kidding.

  “Well, Judge,” I said, “I’ve sometimes wondered how much worse it would have been for all of us if Eve had taken a bite out of a judge instead of the apple.”