Against My Will

by Benjamin Berkley

  “So noted.”

  Trying to disguise the smile on my face, I turned to faced June as she was eagerly awaiting my explanation of what had just transpired.

  “All right, counsel,” Judge Faust announced. “Being that there are no other witnesses, and considering the time of day, this court is adjourned until tomorrow morning at 9 a.m., at which time we will hear from Ms. Landau, who will present her closing argument.”

  The next day I had butterflies in my stomach as court returned to session.

  “Good morning, Ms. Landau; good morning, Mr. Pontrelli. Are you ready to proceed with your close, Ms. Landau?”

  “I am, your honor.” Slowly rising from my seat, I walked toward the jury box and placed my yellow pad on the small wooden podium that faced the jurors. I had memorized the first six paragraphs of my opening statement as I thought it would be most effective.

  “Good morning, ladies and gentlemen,” I said assuredly, making sure I made eye contact with every member of the jury. “This is the last time I will have a chance to talk to you. And I want to say right up front that I thank you in advance for the job that you have ahead of you. It is not an easy task to decide one’s guilt or innocence. But I am confident that you will make the right decision.

  “And this morning as I stand before you, I am here not only as June Robbins’ lawyer, and the assistant district attorney who prosecutes persons who commit crimes against others in the county of Los Angeles. But I am also here on behalf of a woman. A woman who has been sexually assaulted against her will. And, despite such a grievous act, incredible allegations have been made against her suggesting that it was consensual.”

  I approached the rail of the jury box and continued.

  “In this country, surely we will always continue to recognize that you are innocent until proven guilty. And if you have been engaged in some conduct people might disapprove of, it doesn’t mean you are guilty of a crime. But, if that allegation is of a crime, then the State has to prove all of the elements of the crime beyond a reasonable doubt. And without all the elements, you must find the defendant not guilty.

  “Now, at this point you may think that I am doing a wonderful job for Mr. Pontrelli. In fact, perhaps my closing statement sounds like it should be coming from his mouth. But ladies and gentlemen, all of the elements are here. And the defendant was engaged in conduct that was a crime.

  “But I guess the first question to ask is whether there has been a crime committed.

  Unlike cases of murder, where the presence of a dead body points to the fact that there has been a crime, or in a case of robbery where whatever was stolen and then recovered is marked as Exhibit A, or assault where there are overt signs of physical harm, the perpetration of this act of sexual intercourse against Ms. Robbins did not leave a discoverable trace.

  “What then, does a jury start off with? The oath of a woman who says she was raped and the not guilty plea of a man who denies it. As such, in this situation, you must weigh oath against oath. And juries have managed to convict or acquit based on whose oath they decided to trust. But marital rape is the only crime in which, by law, the victim is female and the offender is male. In a court of law, where the victim becomes the complainant, and the offender becomes the defendant, oath against oath at all times means the word of a woman against the word of a man.

  “So let’s begin to break them down,” I said as I returned to the podium and turned to the first page of my notes.

  “The defendant would want you to believe that the sexual act between a husband and wife was consensual. After all, my client invited him to her home while they were still married, she shared a bottle of wine with her husband, and they had sex. End of story.

  “But it is not that simple. My client and the defendant were separated and not living together as husband and wife when the sexual act occurred. And even if they were together, just because there was at one time a wedding band on her finger, it did not give the defendant the absolute right to have sex with his wife if it was against her will. I repeat,” I paused, “if it was against her will.”

  “Curiously,” I continued, “despite the fact that we want to believe that we are a progressive society and have shed our biases, there is still a double standard regarding sexuality. A male who has had many female conquests is still portrayed as virile and a conqueror. While a female who has had many sexual partners is considered promiscuous.

  “It is interesting that before 1979, California law did not recognize that a wife could be raped by her husband. But the state legislature in that year wrestled with that notion and decided that a woman does not give up her right of consent to sexual intercourse by virtue of marriage, and that the existing definition of rape treats married women in an unequal and unfair fashion. Further, the legislative intent said that existing law reflects archaic notions that the wife is a man’s property to be used or abused as he sees fit.

  “I want to read directly from the code; it is Penal Code Section 262 (a), so that there is no doubt or confusion or misinterpretation as to what the code says.”

  I paused momentarily as I pick up the thick blue code book and opened it to the page that I had paper clipped.

  “‘Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following.’

  “And part one reads:

  “‘Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.’

  “Note, it reads ‘of the person who is the spouse.’ And when the alleged act of the defendant, Mr. Robbins, occurred June was still his spouse.

  “But Mr. Robbins apparently is a supporter of the notion that June was his property, as he forced himself on his wife.

  “But she is not then, nor ever was, his property,” I said, turning to the defendant.

  “And whether there is a ring on her finger or not,” I paused, looking squarely into the face of each juror, “she always had the right to say no. The defense has also paraded what attorneys refer to as character witnesses. Their sole purpose in testifying is to destroy the character of June, so as to portray her as a woman with a reputation. A reputation to have casual sex. And the defense will argue that she no longer had the right to claim she was raped or had sex against her will because, well, whether it was her husband, or some casual partner, my client wanted it. She asked for it and it was with her consent.

  “The truth, however, ladies and gentlemen, and what you must continue to remain focused on, and not let yourself be persuaded by some other version of what happened that night, is that sex was consensual when June agreed to have sex with her husband. But on that night, she did not consent and she was raped,” I said, raising my voice, “by that man, the defendant Steven Robbins,” I said pointing to him.

  I paused briefly to take a sip of water.

  “Now Mr. Robbins’ attorney is a very fine person.” I paused again as I turn to look at Pontrelli. “And he has a job to do. And he is paid to do his job. And paid well. And just like if you were hired to paint a house, or make a delivery, or watch your sister’s child, it would be expected that you would do your job well. To the best of your abilities.

  “But Mr. Pontrelli, with all due respect, because I do respect him, is providing a disservice to you. He has painted my client as a cold, callous, individual who has had a promiscuous sexual past. And he is asking that you disregard the forced sexual act. And he has tried to confuse you that June Robbins is not a victim but the perpetrator; that she was the reason why Mr. Robbins acted the way he did. And Mr. Pontrelli would like you to forgive his client because he said he is sorry. And we should all go home to our families and friends, forget about what has happened, turn on the television and watch our favorite show, answer our e-mails, and go on with our lives.

  “And I know that, after days of testimony and hearing the lawyers argue about technicalities of this and that, and y
ou having to sit through hours and hours of this, that at the end of the day it really does not concern you. That you would like to go home. You would like to relax, turn on the TV and résumé your life.

  “But for that to happen, it would be awfully selfish on all of our parts. You see, June Robbins cannot go on with her life. Yes, she has filed for divorce to end her marriage. But that is a paper transaction. One day a court issues a license that says you are married and now you are not. But, unlike us, when she leaves this courtroom, she will always carry the memory that she was violated. That she was sexually assaulted, and this act was against her will. It is something that will stay with her for the rest of her life. When she is alone with her thoughts, when she puts her head to her pillow at night, when she thinks about her past, it will always be with her.

  “So I respectfully ask that you give her back her life. She can never erase from her mind what happened that night. But by returning a verdict of guilt, you can take that first step to help heal her wounds and send a message that a woman may always say no.

  “And there is one more thing I want you to consider. The defendant comes from a powerful family. And he has all the money in the world to fight this charge. However, as you are deliberating, I want you to forget about the size of his family’s checkbook. Otherwise, when there is no justice, the rich win and the poor are powerless.

  “As you deliberate, remember that someone is lying. So is it my client who has testified that what happened that evening was without her consent? Or was it the defendant who said that his wife wanted to have sex?

  “You know, when I hear the phrase ‘he said, she said,’ it is usually followed by that other phrase that the truth lies somewhere in between.

  “The problem is that, if we give in to that statement, that the truth lies somewhere in between, we become victims. And we become weak. And we start to doubt ourselves. And then we doubt our institutions. And then we start to doubt the law. But today, you are the law.”

  I paused, stepping closer to the jury and repeated my last line. “Today, you are the law. Not some book. Not the lawyers. Not the marble statutes or the trappings in the court. But you. You are the law. And I have faith in you.

  “In my religion, we say act as if he had faith. Faith will be given to you if, if we are to have faith and justice, we need only to believe in ourselves and act with justice. I believe there is justice in our hearts.”

  Looking into the eyes of each juror, I thought about that last time when I saw Jacob. As he asked for my forgiveness, I remembered noticing a blade of grass that had found its way to the surface through a crack in the concrete pavement and was struggling to survive knowing that at any second someone could come along and snuff out its life. If June never called the police, her life would have been snuffed out.

  “So ladies and gentlemen. When you walk into that deliberation room, and go over all the testimony that you heard from the last five days, you will get tired. For some, you will think about getting home to see your kids, or having a nice quiet dinner with your spouse, or going to the movies or doing all of that laundry that has piled up.

  “But I need your help. And you don’t owe me anything but I am asking for your help.

  I want you to take a legal pad,” I said as I held up my pad. “And as you read the testimony, I want you to consider the full tapestry of June’s life with the defendant. To do so, you need to get into her mind. And I want you to make a list of everything you feel.

  “If you feel June’s fear, write it down.

  “It you feel my client was scared, write it down.

  “And if you felt she was dominated, write it down.

  “And then I ask you to put yourself in the position of my client. Would you fear what my client feared? Would you be scared? Would you feel dominated against your will?

  “And I ask that you share these emotions with your fellow jurors. Talk to each other. Engage in conversation. Let it out as June has so that you feel what she feels.

  “And when you add up all of these emotions, there can be only one conclusion. And that is that the defendant willfully had sexual intercourse with his spouse without her consent.

  “Finally, do not compromise your views. If you believe the defendant is guilty, or if you believe you don’t know or if you believe I haven’t satisfied you beyond a reasonable doubt, if you believe he may be guilty but you don’t know and you’re not satisfied beyond a reasonable doubt, don’t give in to convenience. Don’t give in because you want to get out of here and go back to your families and friends and return to the life you had before all of this. Don’t give in for anything. Vote your conscience as you would want it to be voted on your behalf. Thank you.”

  As I finished, I smiled and panned the jury, making eye contact one last time.

  “Thank you, Ms. Landau. Anything further from the People?” asked Judge Faust.

  “Nothing, your honor,” I said, taking my seat as I prepared myself for the Michael Pontrelli show.

  Chapter Thirty Four

  “Mr. Pontrelli. Your close.”

  As Pontrelli rose, the message light started blinking on my Blackberry. Shielding the screen with my hand, I checked the message. It was from Cliff.

  “One day to your birthday. And it’s a surprise!”

  My last surprise was the day I met Jacob. But I knew this one would be much better.

  “Thank you, your honor.”

  Pontrelli walked to the podium. And with all his dramatic flair, he made his case to the jury why his client should be found not guilty, while all I could do was patiently sit as an observer, hoping that the jury would not buy his story.

  But after twenty long minutes, I could sense that Pontrelli was reaching the end of argument. And I glanced at the jurors. Were they buying what they heard or had I sold them on June’s version?

  It was so hard to read their faces and I turned my attention to the clock hanging to the left of the jury box. It looked like the same clock that I use to stare at in high school as I waited for my geometry class to be over. Those last few minutes of every class seemed like eternity. I remembered sitting in fear that I would be called upon by Mrs. Miller to answer a question for which I never had the correct answer. And now, once again, I found myself staring at the minute hand as it clicked its way to 4 p.m., knowing that Judge Faust would cut Pontrelli off and have him come back tomorrow morning if he went past Faust’s closing time. Finally, Pontrelli flashed once again his expensive veneers at the jurors and spoke his last words.

  “And I know, as God is my witness, you will all do the right thing.”

  I was expecting a more memorable line to end his oration. But I was also relieved this part of the trial was now over.

  “Very well. Thank you Mr. Pontrelli.” Judge Faust then turned to the jury and began his jury instructions. Moments later, with the sound of his gavel pounding against the bench, court was adjourned.

  “Now what?” June asked as we stood and the judge exited the courtroom.

  “We wait. This is the difficult part. The jury will go back and go over all of the evidence and hopefully they will decide in our favor,” I explained.

  “And if they don’t?”

  “Let’s not go there. I will call you as soon as I get word that that the jury is returning.”

  June and I hugged and I started to call my office when Pontrelli approached.

  “Nice work, counselor. I just hoped you didn’t ruin your client’s life.”

  “Excuse me?” I asked defiantly.

  “I have been doing this a lot longer than you have. And I can read a jury. They will be back with their verdict very shortly. And if I had to bet, it doesn’t look good for your client.”

  Maintaining my professionalism, I smiled politely and walked out.

  I decided to take side streets rather than getting onto the freeway and reached my apartment in less than 30 minutes. All I wanted to do was kick off my shoes and lay down.

  As I entered the driveway,
I was hoping that Beatrice would not be waiting for me as I was just too tired to make conversation. To my relief, she was not. But standing guard and waiting for my arrival was Cabby, who meowed and twined his body through my legs.

  “Hi sweetie, you want a treat?” I reached for the purple package of dry snacks that my cat lived for and dropped a few pieces into his bowl.

  “I am so tired Cabby. But how was your day?” I asked as I opened the refrigerator door only to be greeted by three containers of days old Chinese food, a plastic container with wilted salad, and a bottle of Diet Coke that had lost its fizz days ago. As Pontrelli’s last words resonated in my mind, I stared at the days old food thinking that I should have taken Cliff up on his offer earlier this morning to have dinner. But I also knew he was going to take me to some place special tomorrow night for my birthday and he didn’t need to spend more money tonight.

  “Cabby, I think you’re going to have a better dinner tonight than me.” I closed the refrigerator door and walked into my bedroom. But after slipping on my favorite sweats, I returned to the kitchen determined to find something to eat.

  “Let’s look here, Cabby.”

  I opened the pantry closet and surveyed my choices.

  “I can make myself a tuna sandwich, Cabby. Oh, but wait, there’s no bread. How about macaroni and cheese? I don’t think so. Wait, what’s this?” I said, reaching for a can that had been pushed towards the back of the shelf. “Hmm, Campbell’s Vegetarian Vegetable Soup. Ok, Cabby. I think we found dinner.”

  Also in the back of the pantry was a box of crackers. As I ate my soup and stale crackers and drank my flat soda, I tried to guess what Cliff’s surprise tomorrow night would be.

  “What do you think, Cabby? Where do you think he is taking me?”

  Cabby seemed disinterested and jumped onto his pillow.

  “Well, now I have no one to talk to. Ok, let’s look at the mail.”

  For the last couple of nights, I was too tired to go through my mail and I had let it pile up on the kitchen table.