“It’s a huge risk. If we could just persuade—”
“We can’t persuade MaryLou to do anything. Dolly might, but she wouldn’t even try.”
“So …?”
“So we have to take the shot.”
“You understand that means—?”
“All or nothing,” I cut him off. “And that’s what it’s meant from the second MaryLou pulled that trigger.”
Dolly woke me. It was around noon, but I’d been out all night. And finally found what I’d been looking for: no sign that Tiger Ko Khai had ever existed.
“Dell, the DA got the judge to order a hearing.”
“Huh?”
“That sealed witness list that the lawyer asked for? Well, Brad Swift went even further than that—he asked that the witnesses be allowed to testify over closed-circuit TV. Or even from behind a screen, through a microphone. The judge said nothing like that had ever been done before in his court, so …”
“When is this hearing thing?”
“Tomorrow morning. And, Dell, Brad said we have to bring the girls in. All of them. I don’t quite understand it, but he said we didn’t have any choice.”
“Let me just take a shower and shave, honey. Then I’ll go over to his office.”
“You’re not going alone.”
“Why am I not surprised?” I said. But Dolly was already gone.
“For the girls, he wants an in-camera proceeding,” Swift told us.
“Bullshit,” T.D. said.
“What?”
“You heard me, hoss. The judge can’t order an in-camera and still keep the case. If he speaks to witnesses to determine if they’re really scared of testifying in public, he’s hearing evidence that would prejudice him. So either he’s a moron, or he wants to dump this case on another judge.”
“It’s Judge Hurst,” Swift said. “I don’t know how smart he is. He doesn’t have a reputation for being a good law-man, but no way he’s about to give up trying a case that’s already national news.”
“So, if you just make it clear—”
“I know,” Swift told T.D. “I’m just not sure I can.”
“I’m sure,” T.D. said. “All you have to do is get your expert witnesses on the stand before you let him speak to anyone else.”
“Counsel, is it your representation, as an officer of this court, not only that your witnesses have a mortal fear of testifying, but that that mortal fear is grounded in actual reality?”
“It is, Your Honor,” Swift said, standing taller than I’d ever seen him. I could see the judge blink a few times, maybe wondering if this was the same Bradley L. Swift who had schlubbed his way through these same courts for the past dozen or so years.
“And you have expert witness testimony to support this position.”
“I do, judge. The finest in the country.”
“So you say. All right, then. Go ahead and call them—I’ll decide how ‘fine’ they are.”
T.D. didn’t look all that impressive taking the stand. Unless you looked at his eyes, and the judge couldn’t do that from where he was sitting.
Swift asked qualification questions, deliberately keeping that part short, as T.D. had told him: “Unless the judge demands more, just tell him my name and how many years I’ve been practicing, and move on. It’s better for the prosecution to put their necks in the noose than to have the judge do it. We want to protect the judge as much as we can. That way, he’ll have an even bigger incentive to keep the case.”
As it turned out, the judge didn’t say a word. Neither did the prosecution. So T.D. was able to get right to the heart of Swift’s motion.
“Each and every one of the defense witnesses is suffering from post-traumatic stress disorder,” T.D. said. “My colleague Deborah Rollo did the interviewing of all but one of them, and she’ll go into specifics to the extent the court requires. However, I’ve reviewed all the tapes, and I’m prepared to state it is my opinion that you can cover all of the victims with the same blanket. And that blanket is terror. Pure terror.”
Ignoring an audible gasp from some of the people sitting behind me, T.D. kept right on rolling:
“The crux of the issue is that these girls are still living in mortal fear. They’ve been subjected to crimes usually only committed in Third World countries. By that,” he said, holding up his hand as if to anticipate some politically correct objection, “I don’t mean gang rape. That happens everywhere. What doesn’t happen here—at least, I’ve never heard of such a case, or found one in the literature—is that the victims perceive that the community approves of the conduct of the perpetrators, the same way some cultures approve of so-called honor rape. The same way some cultures which practice so-called ethnic cleansing use rape … as a weapon of war.
“What all these victims have in common is a shared perception of community approval. As if the victims somehow deserved to be raped—that they brought it on themselves. Again, I defer to my colleague on this. But what I can tell this court is, if forced to testify in open court, if forced to reveal their identities to the whole community, the witnesses could opt for several psychological strategies, any one of which could result in permanent hospitalization. At best.”
“What ‘strategies’?” the judge demanded. With the audience completely under T.D.’s spell, he wanted to make sure everyone in the place understood whose courtroom this was. But T.D. was more than ready for him.
“Elective mutism, catatonia, decompensation—”
“Doctor, would you mind? Plain English, please,” the judge demanded, just short of annoyed.
“My apologies,” T.D. said, without a trace of deference, his tone saying, Excuse me. I thought you’d know what I was talking about, you being a judge and all. “Elective mutism is a refusal to speak. Not a refusal to answer any particular question, a refusal to speak at all. Very young children often adopt such a strategy when it’s the only way to make people stop asking them the same questions, over and over. With teenagers, they may come to believe such silence is all that saved their lives. The most extreme cases never speak again.
“Catatonia means the individual may go beyond a refusal to speak all the way to actual inability to move a muscle. Just … freeze. And not all such individuals can ever be ‘thawed out.’
“Decompensation generally refers to a state where a patient returns to former behavior that was being kept under control by therapy and/or medication. The classic example is a schizophrenic who, medicated, functions just fine. But if he comes to believe he’s doing so well that he doesn’t need the medication anymore, he stops taking it. And the result of that is quite predictable.
“Now, in the case of these particular girls—I do realize that some have now reached adult age, but each initial trauma occurred prior to that—if they had been referred to therapy, they would have been, to some extent, ‘medicated’ by individual therapy. But if they’re retraumatized—and revealing the hideous details of their prior victimization to the whole community would certainly accomplish that—it could result in a reversion to an earlier state.”
“You said ‘at best.’ ” The judge took over again, trying for control over a courtroom where every eye and every ear was tuned to a different station.
“Yes, I did. The most likely outcome of any such event would be suicide.”
This time, the gasps were so audible that I wouldn’t be surprised if the court reporter put them into the transcript.
“A decompensating schizophrenic may stab an icepick in his own ear to make the voices stop,” T.D. continued. “If suicides could talk after death, they would all say some version of the same thing: they wanted to make it stop!”
The judge had nothing to say. Swift made a sweeping motion with his hand, as if inviting any of the four people sitting at the prosecution table to take their best shot.
“Let’s go over your qualifications, shall we, Doctor?” the fat-faced guy said as he slowly got to his feet.
T.D. said nothing.
“Dr. Joel, I asked you a question.”
“No, you didn’t. You made some little speech about what you were going to do, but I’m still waiting for you to do it.”
I picked up a few muffled chuckles—arrogance isn’t popular with most people.
Fat Face opened his mouth and spilled out a string of questions he was reading off a pad he held in his hand. Every question was another strand in the noose he was tightening around his own flabby neck. From “Where did you go to school?” to “How much are you being paid?” it just got worse and worse.
He saved his Sunday punch for last: “Doctor, has any court in the United States ever qualified you as an expert witness in post-traumatic stress disorder?”
“Yes” was all T.D. answered, baiting the trap.
“How many, would you say?”
“To be honest, I’m not sure. I could look it up for you, but I didn’t come prepared with a list.”
“What did you think you were going to be doing today, Doctor, going to a tea party?” Fat Face asked, doing his best Judge Judy impression. But there’s a chasm between “reality TV” and reality—and the silence spoke for itself.
Then T.D. poked back: “I thought I was going to testify in court.”
“Well, what do you call this?”
“Up to now, just what I expected. But lame sarcasm, now, that was a surprise.”
“Your Honor!” Fat Face protested.
Swift was on his feet before the judge could say anything. “Your Honor, if the prosecutor asks a question, he either has to take the witness’s answer or rebut it. Counsel’s cute little comment wasn’t a question at all, it was nothing more than a display of snideness. If he wants an answer, let him ask a question.”
“Good idea,” the judge said, turning to the prosecutor as if he was waiting for something.
Fat Face flushed. “I ask you again, Doctor. How many courts have qualified you as an expert witness?”
“And I tell you, again, that I can’t give you an exact number without going back to my hotel and dialing up a list on my laptop.”
“Is there any reason why a man of your education and experience cannot remember how many times he has been qualified as an expert witness?”
“Sure. Too many to remember. That’s why I keep a list.”
“Can you give us a rough approximation, Doctor?”
“Well, it would certainly be more than a hundred.”
“One hundred times, you are saying? One hundred courts have qualified you as an expert?”
“At least.”
“Can you give us some examples?”
“Let’s see, in New York, the Eastern and Southern Districts; in California, the Central and Northern Districts; in Illinois, the Southern District—”
“Wait just a minute, Doctor. Is there some reason why you are only mentioning federal courts?”
“I was trying to keep the list short. In state courts, I’m trying to think of one in which I haven’t been qualified as an expert witness. Can’t think of one offhand, but I can’t swear to all fifty. Starting from here, if you go south to—”
“So you’ve never been certified in Oregon?”
“Oh, sure I have. And those cases held up all the way through the Ninth Circuit. A couple I can think of: People v. Thompson; Rogers v. Oregon …”
“So you’ve testified against the state of Oregon?”
“No. Actually, I was hired by the state of Oregon to examine the conditions of confinement in a certain juvenile prison that had resulted in a lawsuit under 42 US 1983.”
“Oh” is all Fat Face could come up with.
“Like I said, if you want a list …?”
Fat Face flapped his hand, as if to dismiss the witness. It was about as smart a move as flapping his gums had been.
“Are you saying you are finished with this witness?” the judge asked, clearly annoyed, now that he had a target that the audience disliked.
“Yes, Your Honor.”
“Very well. As you asked the witness nothing about his actual experience, the court is forced to assume that role.”
The judge stepped very carefully. When he was done collecting answers to his questions, all he said was “This court finds Dr. T. D. Joel to be an expert in the field of post-traumatic stress disorder. For the record, the Court’s finding is not intended as a limitation: Dr. Joel is clearly qualified as an expert in forensic psychology. Indeed, this court has never had before it a witness more qualified.”
Now it was Debbie’s turn.
She was dressed in power clothes: a black business suit that was a little too pinched at the waist and just a tad too short at the hemline for what some would call “professional.”
T.D. was responsible for that. “What do you want to do, sit up there, swear to tell the truth, and then lie with your appearance? You are one good-looking woman. You follow that lame hyper-feminist script—you know exactly what I mean: don’t wash your hair, don’t shave your legs, wear a shapeless dress—and you’d be lying. I’m not saying dress like you’re auditioning for a strip club, but you can’t expect them to take you as an expert if you don’t dress classy.”
Dolly dragged Debbie out of there quick. And had her ready for court in under an hour.
If Debbie was nervous, you couldn’t see it. The prosecutor let her put her credentials on the record without any kind of challenge. His fear of looking like a fool again made what the judge said next inevitable: “The vulnerable-witness protection measures are hereby granted.”
“Now we have a jury to pick,” Swift said, grimly.
“We can play this one of two ways,” T.D. said. Swift listened like he was hearing the Word. I guess he was—jury selection is a special skill, and Swift had never seen a case where an expert was brought in just to help the lawyer do his job. Never mind that T.D. was in the absolute elite of that group.
Swift’s own prestige thermometer was way past full boil. The media was gobbling up his every word, and the hints that a jury-selection specialist was needed because there were so many “unique aspects” to this case had them ravenous.
T.D. went on one of those bottom-feeder “crime” shows I’d told Swift to stay away from. I couldn’t figure out why until he pulled the trigger. A pudgy woman with a voice that could curdle milk while it was still in the refrigerator asked him why, if the client was so innocent, did her lawyer need the services of a jury-selection specialist?
T.D. said, “You think the defendant is guilty?”
“I think the video rather speaks for itself, doesn’t it, Doctor?”
“There you go. That’s why I was retained. To help spot people like you and keep them off the jury. The last person you want on a jury is someone who’s already made up their mind before they heard all the facts. Even worse would be one who makes sure everyone else knows it.”
Not surprisingly, it was a very short interview. But everyone from around here who watched it got the message. And passed it on.
The way they work it is, they bring in a bunch of people and put them in the jury box. Then each lawyer gets to ask them questions. If they show they’re prejudiced in either direction, they get thrown out. But if they’re not, and either side doesn’t want them, they can throw them off themselves without giving a reason. “Pre-empts” is what Swift called them, and each side only gets a certain number.
I’d never heard that word before, but I knew what they were saying: If you’re down to your last magazine, you have to make every shot count. If you haven’t got enough to take them all out, you want to pick off the most dangerous ones. That’s not as simple as it sounds. You don’t care about who’s the most dangerous shooter, you have to figure out who’d be the most dangerous up close. And you only get seconds to decide.
When they’d discussed it the night before, T.D. kind of took over. “We only got two ways to go. Either we want to hang the jury, or we want them to acquit.”
“Of course we want them to acquit,” Dolly said.
“You sure? See, if all we want is to hang the jury, we have to make sure the contrarians slip by. But if we want MaryLou to actually walk, we’ve got to cut those kind off at the knees.”
“I’m not sure I’m following you,” Debbie said.
“I’m sure I’m not following you,” Dolly added.
T.D. was ready for both of them. “Some people have a personality disorder where they just have to go against the herd, right or wrong. They’re so committed to their own lone-wolf image that … Well, put it this way: if the others suddenly came over to their side, they’d switch sides. You get one of those on the jury, it’s as good as hung.
“But that cuts both ways. We do that, and we’re seriously dropping the odds that MaryLou gets acquitted. So we have to know what we want, going in.”
Everyone in the room looked at Swift. The new Swift. He didn’t let us down: “MaryLou did what she had to do. And her belief that she had to act was objectively reasonable. And, therefore, absolutely justified under the law. When we’re done, if we don’t get the appropriate charge to the jury, I’d bet my license on winning the appeal. The expedited appeal.”
It took four days to pick a jury. “The longest in the history of this county,” Swift told us. Not bragging, just stating a fact.
T.D. and Debbie had split up the assignment between them; T.D. told the lawyer, “If Debbie says no, it means she spotted one of them. Sight, smell, sound, there’s no difference. If Debbie feels a wrong one, he’s off. If you can’t get him to admit he thinks all this ‘trauma’ stuff is bullshit, or that some girls are ‘thirteen going on thirty,’ or make him bite on the Polanski question, burn a pre-empt. We can’t have anyone like that anywhere near our jury.”
We didn’t. The DA had four people at his table. Took me a while to figure out that all four were DAs. Or “deputies,” like they called themselves. The DA himself couldn’t make it—he was giving a speech somewhere.
When the second DA got up and tried to ask a potential juror a question, Swift was ready for it:
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