Question of Consent: A Novel

by Seymour Wishman

  “I am not, Counselor,” Judge Grosso said with irritation. “I’ll ask the question any way I see fit. When I’m done, you can ask her your question. Miss Davis, please answer me. I take it your experience might affect your decision in this case. Is that correct?”

  “I honestly don’t know. I’m afraid it might,” Miss Davis said.

  “Okay, Mr. Roehmer, how would you phrase the question?” Judge Grosso said.

  “Miss Davis, you said that that unfortunate incident happened twenty years ago,” I said. I knew this juror was going to be excused, but I didn’t want the judge to excuse her. I wanted the prosecutor to have to use one of his challenges. “Would that experience still influence your judgment in this case? Would you hold it against this defendant or against the state and therefore be unable to reach a verdict solely on the evidence presented in this case?”

  “I guess not,” Miss Davis said.

  “If you take an oath to decide this case solely on the evidence presented here, you would follow that oath, wouldn’t you?” I asked.

  “Yes, I would.”

  “Your Honor, I would object to excusing this juror,” I said. “I believe her when she says she would abide by her oath to evaluate this case on its merits, notwithstanding her prior experience.”

  “I’ll excuse this juror. You can return to the jury control room,” Judge Grosso said to Miss Davis. “Counsel can return to their places.”

  Grosso and I glowered at each other for a moment, and then the prosecutor, the court reporter, and I returned to our places.

  “If any of you have served as jurors before, please indicate so by raising your hand,” Judge Grosso said to the remaining jurors in the box.

  Three jurors raised their hand.

  “Okay. Would that experience influence your ability to be fair and impartial jurors in this case?” Judge Grosso asked.

  The three jurors shook their heads.

  “I take it by your silence that the answer is no,” Judge Grosso said.

  “Your Honor, may we ask what kind of cases these jurors sat on?” I asked.

  “All right,” Grosso said, and turned to the jurors. “But don’t tell us what the verdict was or if there was a hung jury. Juror Number Three?”

  “Burglary. It was a burglary.”

  “Juror Number Five?”

  “It was a drug case.”

  “Juror Number Ten?”

  “Mine was also a drug case, but we couldn’t reach a verdict,” the woman said, apparently unaware that she had ignored the judge’s instructions not to reveal if she had been on a hung jury.

  “Satisfied, Mr. Roehmer?” Judge Grosso asked.

  “Thank you, Judge. You’re too kind,” I said. Murder cases like this one were much better prepared than cases involving less serious crimes. I knew that jurors who had sat on a less serious charge would be impressed by all the witnesses and scientific evidence in the case they were about to hear against Lisa. If this were a burglary, I’d have been eager to keep a juror who had sat on a murder case, because he’d be seeing much less evidence and far fewer witnesses.

  I was determined to excuse everyone but the juror who had been on a hung jury. The prosecutor would excuse her—John wouldn’t take the risk that she had been the holdout on that jury. A hung jury would be a loss for the prosecutor. There would probably be a retrial, but if the second trial also resulted in a hung jury, the prosecutor would, I was sure, have to dismiss the charges against Lisa.

  “If any of you have heard or read anything about this case, please indicate so by raising your hand,” Judge Grosso said. A photograph of Lisa was on the front page of two of the city’s tabloids that very day. Betz’s trial had received enormous attention, and this trial against Lisa was the climax to that buildup. I had never seen anything like it.

  Every single juror in the box raised a hand.

  “Okay,” Judge Grosso said. “Do any of you who have raised your hand feel that what you have heard or read about the case would prevent you from arriving at a decision in this case solely on the evidence presented at the trial?”

  No one raised a hand.

  About an hour later I was standing in front of the jury box speaking to the prospective jurors.

  “Ladies and gentlemen of the jury,” I said, “my client is charged with the most serious crime: murder. The evidence will show that she was the victim in this case, the victim of a nightmare that had gone on for months.”

  “Mr. Roehmer,” Judge Grosso interrupted, “it’s a little early for a summation. We’re supposed to be picking a jury. If you have a question, ask it.”

  “Of course, Judge. I was just getting to it.” I restrained my anger because I knew I risked alienating the jury if I talked back to the judge. A jury saw a judge as the sole authority in the courtroom, officiating in an unbiased way over the trial, in control of everything that went on throughout the contest. I kept my attention on the jury.

  “You will hear testimony about my client’s state of mind during the period leading up to the killing and at the critical moment of the shooting,” I said. “What I need to ask—and I ask it reluctantly, but it is essential that I do so—is whether any of you have ever had occasion to feel sexually harassed or sexually threatened.”

  Grosso pounded his gavel. “I’m not going to allow that question,” he said. “It would be a terrible invasion of this jury’s privacy.”

  “Your Honor,” I said.

  “They are not on trial here. It’s hard enough to get jurors without subjecting them to improper questions,” Grosso said.

  “Your Honor, may counsel approach sidebar?” I asked.

  “Of course,” Judge Grosso answered.

  John and I returned to the side of the judge’s desk, along with the court reporter, who placed her machine once again on the judge’s desk.

  “Your Honor,” I said, “the testimony regarding the defendant’s mental state is crucial to my case. If any of the jurors have felt sexually harassed, that would be important information about the jurors. In order to avoid the chance of embarrassment, perhaps each juror could be questioned privately in your chambers.”

  “I’m not going to allow such questions in private or in public,” Judge Grosso said. “You have no right to invade the privacy of these people.”

  “But Your Honor, I have a right to determine if they have some preconceived notions about fears of sexual assault.”

  “Then ask them that, but I won’t allow you to put these people on trial here. Their personal histories are private, and should be allowed to remain that way.”

  “I don’t want to put them on trial. I just want a fair trial for my client.”

  “And I’m here to make sure she gets one. Now let’s get on with it.”

  “If I’m limited to asking only if any of them have any prejudices against people who say they are afraid of being raped, they’re simply going to say they don’t.”

  “I’ve made my ruling. I don’t intend to continue arguing with you. Go back to your place, and let’s move on.”

  “Judge, I don’t think you’re being fair.”

  “Don’t whine. We obviously disagree, but I’m the judge, and I’ve ruled.”

  “And so will an appeals court.”

  “That sounds like a threat, Mr. Roehmer. You, like any lawyer, have a right to appeal, but you don’t have the right to threaten me. I’ll hold you in contempt if you do it again. Do you understand?”

  “Yes, sir.”

  Judge Grosso was fuming. Judges were usually aware when lawyers were trying to build a record for reversal on appeal, and they usually didn’t take it personally. But I had a real adversary in Judge Grosso, and I wasn’t doing a very good job of protecting my client from him. Grosso could try to bury Lisa in a variety of ways that would be hard for an appeals court to notice. A cold transcript would not convey the impression of a voice dripping with sarcasm or seething with anger; an appellate judge reading the transcript could easily miss the infl
uence of a skillful judge’s manner or tone on the outcome of a trial. I knew things could, and probably would, get worse—a lot worse.

  “So what do you think about the jurors?” I asked Lisa about an hour later. The time had come to make some decisions about which people should rule on whether Lisa had planned to kill Betz or whether she had acted out of self-defense.

  “I don’t like the guy in the third seat,” Lisa said.

  “Why? He seems fine to me.”

  “He frightens me. There’s something about his eyes that reminds me of him.” I knew that by “him” Lisa meant Betz.

  “He’s an engineer. I like engineers. They measure things as part of their work, and I think they look at ‘reasonable doubt’ as a wall the prosecutor’s got to build.”

  “Please, Michael. He frightens me.”

  “Okay. Anyone else?”

  “No, I guess not. What do you think?” Lisa asked.

  “The kraut in the back. I think her name’s Grosstuck or something. I want to get rid of her.”

  “The name might be German, but she didn’t speak with an accent.”

  “Lisa, call it a quirk, but my parents fled Europe just before the war. I don’t keep Germans on my juries, whether they talk with an accent or not.”

  “Michael, my father was German.”

  “Then I wouldn’t keep you on one of my juries either.”

  “Okay. Anyone else?” Lisa asked.

  “Look at the way the guy at the end of the first row is looking at you. Look at that smile.”

  “He just looks nervous to me.”

  “That’s not nerves. Trust me, Lisa.”

  “I trust you, Michael.”

  “The guy in the middle, in the back row.”

  “What’s wrong with him? He’s got three daughters. I think he’ll be protective of women,” Lisa said.

  “I have a feeling he fools around himself. He’ll be protective of men. When he hears the testimony, he won’t think abut his daughters being assaulted, he’ll probably think of his own reactions to women.”

  I stood. “Your Honor,” I said, “the defense will excuse Jurors Number Three, Five, Seven, and Fourteen.” The problem was that I didn’t want to be left with an all-woman jury. I was taking a risk on who would be called to replace the jurors I’d just excused.

  “Very well,” Judge Grosso said. “Call the next jurors. Let’s finish this up, gentlemen, and get on with the trial.”

  As the questioning of the new jurors began, I thought about the choices I had just made. I knew my attitude toward a jury simply reflected my view of people in general. That was the way the system worked. I had to pick juries by making fundamental judgments about human nature on the basis of superficial information; and on those judgments I was betting on the way the particular jurors would respond to my efforts to influence or—more accurately—manipulate them. Looked at this way, my choices of whom to include in or exclude from the jury revealed more about me than about the jurors who would ultimately decide Lisa’s fate.

  Chapter 24

  ON THE AFTERNOON AFTER the jury selection was completed, I was able to keep an appointment at Molly’s nursery. Her teacher had written me a note to say that my Molly was having some difficulty with one of the other kids in her class.

  When I spoke to the teacher, a Mrs. Talbot, she told me that Molly and a little boy in the class by the name of Kevin were constantly fighting.

  “What is it that they are fighting about, Mrs. Talbot?” I asked, trying not to sound hostile.

  “Well, it’s not the content of the fighting that worries me. It’s that it is almost constant. And it’s terribly disruptive for the others in the class.” Mrs. Talbot nodded at me as if she were hoping that I would understand. I didn’t.

  “Are you telling me that you don’t know what they fight about? Have you asked either of them?”

  “Of course. They fight over this and that. Each fight is over something new. I’ve spoken to the little boy about hitting girls, and I’ve repeatedly told Molly that her behavior in fighting back is unbecoming to a young lady. Nothing seems to help.”

  “Then, the little boy seems to be starting these fights?”

  “The boy may be the first to start hitting, but I’m afraid it’s because Molly taunts him. That’s why I thought it was important to speak to the parents.”

  “Well, I’m glad you did, Mrs. Talbot. Don’t you ever again tell my daughter that defending herself in a fight is unbecoming to a young girl. Do you understand?” I didn’t mean to slam my fist on the table I was sitting at, but it certainly caught Mrs. Talbot’s attention.

  When I saw Molly that night, I told her not to torment this kid anymore.

  Chapter 25

  “LADIES AND GENTLEMEN, NOW that you have been selected as jurors,” I said, beginning my opening statement, “it is my opportunity to stress to you that you will have to decide this case solely on the basis of the evidence that is introduced during the trial.”

  I knew that my major threat to an acquittal was going to be the judge. I decided I would have to begin immediately to make the jury believe that Grosso was being unfair. The jury came to court convinced that a judge was an impartial, fair umpire. I knew that was often untrue. Grosso was clearly out for a conviction, and I had to plant seeds in the jurors’ minds that this judge was being unfair. This was the trickiest and probably most difficult way to win a case, but I didn’t think I had any choice.

  “What I or the prosecutor tell you during the course of the trial is not evidence,” I said. “And for that matter, not even something that the judge tells you is evidence. The judge is supposed to be a fair arbiter of the rules of procedure and the laws you must apply. My client is presumed innocent, and that presumption stays with her throughout the trial. And nothing that the prosecutor says, nothing even that the judge may say, alters that fundamental principle. By your oath you have sworn, in effect, not to be bullied by the prosecutor or by the judge, but to decide the case fairly on the evidence presented. Thank you.”

  When I finished, I returned to my seat at counsel table next to Lisa.

  “Members of the jury,” Judge Grosso said, glancing over to the members of the press in the front row of the spectator seats, “Mr. Roehmer is quite correct when he indicates that I run this courtroom. Nothing the lawyers say is evidence. And by your oath you have sworn to accept the law you will apply in this case from me, not from the prosecutor and not from Mr. Roehmer.”

  It was clear to me that I was right in seeing Grosso as an adversary, and he certainly understood what I was trying to do in my opening statement—he knew I had thrown down a gauntlet. His response was his effort to neutralize what I had said. And we both knew he had succeeded.

  When a judge pretended to be fair and disinterested, but was in fact neither, his pretensions infuriated me. By force of will I would restrain my rage, because I was constantly aware that the object of the trial was not to persuade the judge but to persuade the twelve common folk in the jury box.

  Outwardly, in front of the jury, I had to project an image of respect, even deference, toward this judge who was out to convict my client. I knew that when Grosso ruled against me during the course of the trial, I must appear obedient, almost childlike, in my acceptance of his decision. If he reprimanded me for overstepping proper bounds, I would meekly accept this public chastisement, in the hope that the jury would interpret this as evidence of earnest submission rather than playacting to make a good impression.

  “Before we get on with the first witness,” Grosso said, “I’d like to see counsel in my chambers without the court reporter.” He stood and left the courtroom and entered his chambers.

  John and I followed the judge inside.

  Grosso walked behind his desk as John and I entered, and began pacing back and forth. He was furious. “I can see by the way things are starting in this trial, Roehmer, that I’m going to wind up holding you in contempt,” he said. “You’ve been needling me from t
he moment you stepped into my courtroom. Jabbing at me, punching me, every time you open your mouth. And I’ll be goddamned,” he shouted, “if I’m going to let you get away with it.”

  “You are out of your mind,” I yelled back. “And you can do what you like with me. If you want to send me to prison for contempt, go ahead. But I can tell you this: I intend to break my ass to see that my client gets a fair trial. This case should have been dismissed. The only reason it wasn’t is that you want it for your own agenda.”

  “Bullshit! I wouldn’t dismiss it because this woman went to that guy’s apartment and coldly blasted the hell out of him.”

  “If there weren’t front-page stories waiting for you in this trial, we wouldn’t be here.”

  “You have no shame!” Judge Grosso said.

  “Not over anything I’ve done or anything I’m going to do in this case. If you give my client a fair trial, she’ll be acquitted. And if she doesn’t get a fair trial, I’m going to make sure an appellate court will know it.”

  “You ungrateful bastard. You’ve been baiting me from the get-go. I have a good mind to hold you in contempt and send you to jail directly from here.”

  I pounded the judge’s desk. “Try it,” I said, looking him directly in the eye. “You’re not going to intimidate me. The contempt you’re talking about is in my mind, not in anything I’ve said or done in your courtroom. Is that all?”

  “Get out of here,” Judge Grosso said.

  I stomped out of his chambers.

  “What was that about?” Lisa asked as I returned to my seat next to her. “I could hear screaming going on in there.”

  “The guy’s nuts. Absolutely paranoid.”

  “What did he say?”

  “He said I’ve been taunting him from the moment I walked into this courtroom, that I’ve been trying to control the proceedings and belittle him.” Of course I had been trying to control the proceedings. It’s what every good lawyer tried to do in a trial. Grosso must have tried to do the same thing when he was a lawyer.

  “Calm down, Michael,” Lisa said.