Unreasonable Doubts

by Reyna Marder Gentin

  “Damn,” said Deb. “Can’t say I have ever wanted to sleep with a client before, but for him, I would make an exception.”

  “How does a guy with that kind of intelligence and those looks turn out to be so evil?” Liana mused.

  “You didn’t just ask that, did you?” Deb said with mock incredulity. “Remember, you no longer have to pretend to look for the good in your client, but you can’t trash talk him either. Stay neutral, Counselor, if that’s the best you can do. Now get to work, before Gerry does another patrol.”

  Before she cracked the binding on the two-thousand-page transcript, Liana stole another glance at the photograph of Danny Shea in the file. His eyes bore into her from the page, and she giggled, wondering at her own bad timing that she had sworn off “liking” her clients just as Shea landed on her desk. But she followed Deb’s advice and kept the thought to her herself.

  She settled down in her chair and ran her thumb through a big chunk of pages at the beginning of the transcript. The first four hundred or so were the record of the jury selection, the judge’s instructions to the jury before the trial started, and the opening statements of both the prosecutor and defense counsel. She’d pore through these later, dissecting each word as she looked for the legal errors that often could be found in what appeared to be the more mundane parts of the trial.

  For now, Liana decided that she’d treat herself by starting with the actual story of what happened. This was the best part—like reading a dime-store crime novel where you could root for the bad guy, the defendant, without feeling guilty, because you knew in advance that he ended up in prison where he belonged. She flipped to the page with the heading “Direct Examination of the Complainant” and let the movie play out in her head. Jennifer Nash stated her name and address for the record and swore to tell the truth:

  The Prosecutor: Ms. Nash, how old are you?

  Ms. Nash: I’m 19.

  The Prosecutor: And how old were you on July 4, 2010?

  Ms. Nash: I was 18.

  The Prosecutor: I want to direct your attention to July 4, 2010. Were you a student at that time, or were you working? What were you doing that day?

  Ms. Nash: I graduated from high school in the spring. I was working in the McDonald’s near my parents’ apartment so I could make some extra cash for school in the fall. I was planning to go to Kingsborough Community College in September.

  The Prosecutor: Okay. I want to focus on the night. What were your hours at the McDonald’s?

  Ms. Nash: I was working a 6 p.m. to 11 p.m. shift.

  The Prosecutor: And did you finish at 11 p.m.? Where did you go after work?

  Ms. Nash: Well, I was supposed to meet my boyfriend, Daryl, after work. But he texted me he wasn’t coming. I was pissed off, because I thought he might be cheating on me with this girl who he knew from his summer job. I guess I was kind of crying when I came out of the McDonald’s, and then I saw him.

  [Witness points at the defendant].

  Defense Counsel: Objection, Your Honor. We had no notice that an in-court identification would be made today.

  The Court: Well, I think that was pretty spontaneous, Counselor. I don’t think the prosecutor knew either. Anyway, you have indicated in the pretrial proceedings, and I don’t want to get specific in front of the jury, but that identity will not be contested, so the objection is overruled.

  The Prosecutor: Okay, Ms. Nash. So you saw the defendant. Where did you see him and what happened?

  Ms. Nash: I saw him outside of the McDonald’s. He was in that little playground, just sitting on one of the benches. I guess I looked upset. He came up to me and asked me if I was okay.

  The Prosecutor: Ms. Nash, do you need to take a break? Would you like a tissue?

  Give me a break. We know she’s emotional; do you really have to rub it in the jurors’ faces? Get on with it.

  Ms. Nash: No, I’m okay.

  The Prosecutor: So what happed after the defendant asked you if you were okay?

  Ms. Nash: Well, it was July 4th, and he asked me if I wanted to watch the fireworks and whether my building had a rooftop we could access. He said he had some weed, and we could smoke and just relax up there. I guess I sort of wanted to get back at Daryl, and I didn’t want to go home, so I said yes.

  The Prosecutor: And then what happened, Ms. Nash?

  Ms. Nash: Well, we started to go to the door that went up to the roof, and I realized this was probably stupid—I mean, I didn’t even really know this guy, and he was kind of old. So I told him I’d changed my mind.

  Liana could hear her mother’s voice in her head: A girl is always entitled to change her mind.

  The Prosecutor: So what happened after you told the defendant you had changed your mind?

  Ms. Nash: Well, he sort of was, like, pulling me up the stairs, but the whole time he was also telling me it would be fun, and he had some weed, and he had a six-pack of Budweiser. I mean, he kind of convinced me to go up there, and he was sort of forcing me at the same time.

  Defense Counsel: Objection, Your Honor. I mean, what is the jury supposed to make of that?

  The Court: Well, I guess the jury will make of it what it will. Please continue.

  The Prosecutor: Okay, Ms. Nash. So you went up the stairs with the defendant. Did you reach the roof? I know this will be difficult, but you need to tell the members of this jury what happened to you when you got up to the roof.

  Ms. Nash: So we got up to the roof. First we smoked a joint, and then we drank some beer. I was feeling a lot more relaxed, and I was kind of forgetting about Daryl a little, which was good. We saw some of the fireworks going on out over the water. I guess it was nice for a little bit. Then he asked me, did I want to dance? I said, “What? There ain’t no music up here, how are we going to dance?” And he said he had some music on his iPhone and he would turn it on. So he did, and we kind of slow danced a little.

  Liana found herself drifting, trying to remember the last time she and Jakob had slow danced. She loved that feeling of holding him close and swaying to the music; no dancing lessons were required, but Jakob still felt self-conscious. When she looked up, Deb was staring at her. “Girlfriend, you were far away there for a minute.”

  “Yeah,” said Liana. “My rape case took a suddenly romantic turn, and it kind of got me thinking. Am I still allowed to say stuff like that?”

  “Honey,” Deb said, “in the confines of our little office, you can say whatever the fuck you want.” Liana had never been more grateful for Deb.

  The Prosecutor: What happened after you slow danced with the defendant?

  Ms. Nash: Well, we were dancing, and then all of a sudden, he had my back up against the wall, and he was kissing me and rubbing his hands up and down my body. I guess the weed and the beer had kind of made my brain mushy, because at first I was like, “Okay, this is cool,” but then he unzipped my jeans and pulled them down, and before I knew it, he was pushing himself in me. I was screaming and crying and trying to get out from under him, but he had one hand over my mouth and the rest of his body pinning me against the wall. He was ripped, like a weight lifter or something—he was so strong. Maybe I could have that tissue now?

  The Prosecutor: Of course. You take your time. This is very traumatic.

  Defense Counsel: Objection, Your Honor. If the prosecutor could please refrain from commentary.

  The Court: Yes. I think the testimony will speak for itself.

  The Prosecutor: I’m sorry, Your Honor. Okay, Ms. Nash, if you could go on and just finish telling the jury what happened.

  Ms. Nash: Okay. Well, he kept going at it for a while; I don’t think he really finished, but he got pretty close, and then I noticed my younger brother and one of his friends had came up on the rooftop, I guess to watch the fireworks. I yelled, “Jimmy!” and this guy froze, and I was able to get free and run—I left my purse on the roof, but I ran down the stairs with my brother and into my parents’ apartment on the fourth floor. I told them what had just h
appened, and they called the police.

  The Prosecutor: And where was the defendant during this time, if you know?

  Ms. Nash: Well, when I saw him, he had zipped up his jeans, and he was waiting in the lobby of the building. He was just standing there when the police came. He didn’t try to run or nothing.

  The Prosecutor: Okay, Ms. Nash. Now, you had not given the defendant permission to have sex with you that night, had you?

  Ms. Nash: No, I didn’t.

  The Prosecutor: And did the police take you to the hospital and have the doctors collect a rape kit?

  Ms. Nash: Yes.

  The Prosecutor: That’s all I have for the complainant at this time.

  The Court: Very well. We will take a short recess before the cross-examination, if anyone needs to use the facilities, now would be a good time.

  Liana realized that, having downed several cups of coffee before and after she’d come to work that morning, she needed to use the facilities herself, and this seemed like as good a time as any. When she opened the door to the ladies room, Deb was standing at the sink, splashing water on her face.

  “Hey,” Liana said. “I was so lost in the testimony that I didn’t even see you leave the room.” She looked more closely at Deb. “You know, your color doesn’t look too good.”

  “I’m not feeling great. I’m sure it’s just the stress of getting that final brief in. No biggie,” Deb said.

  Liana was instantly flooded with the memory of the first time she’d ever heard Deb’s name. She’d been hired for the job but not yet started when Gerry asked her to the barbeque he hosted at his brownstone in the Village each summer. Gerry loved to entertain, and he’d invited the attorneys and the staff over for sliders and shwarma chicken and cedar-planked salmon. As Liana chatted with her soon-to-be colleagues, someone mentioned that Deb was not there because she wasn’t feeling well.

  “I heard she thinks she might have toxic shock syndrome,” one of the attorneys announced.

  “Oh my God. That could only happen to Deb,” the paralegal sighed.

  “What’s toxic shock syndrome?” one of the men asked.

  “It’s a bacterial infection caused by leaving a tampon in too long.”

  Liana, always on the squeamish side when it came to bodily functions, was horrified that something so personal would be bandied about so casually, especially in front of her, a total stranger. She quickly crossed the small backyard to escape the conversation. Deb hadn’t had TSS, but it was an incident Liana had trouble erasing from her mind.

  “Have you thought about seeing a doctor? I could go with you, if you want.”

  It was not an offer lightly made. Liana had a fear of all things medical that bordered on a clinical phobia, the source of which any amateur shrink or good hairdresser could have diagnosed. Liana’s father had suffered his first heart attack when she was eleven, an event that would be traumatic for any preteen girl but was worse for an only child. As things panned out, Liana had been a twenty-six-year-old woman when her father passed away. But those intervening fifteen years had been suffused with subconscious dread and filled with medical close calls—she had been summoned from school to her father’s bedside on numerous occasions. The experience of growing up that way had robbed her of a casual serenity that she admired in others who’d had more placid childhoods. It also meant that she almost never saw a doctor.

  “You have no idea what it’s like having a two-year-old and no husband and no help. When would I possibly go see a doctor?” Deb sounded upset, and Liana backed off. Of course she had no idea what it was like to have a two-year-old. When Deb turned to go into the stall, Liana left her in the bathroom and returned to her desk, not wanting to intrude further.

  She opened the transcript to the cross-examination of the complainant. This was where the defense attorney, if he was worth his salt, could make the most sympathetic victim look like an outright liar. But it was a delicate affair when the charge was rape—you had to be very careful not to make it look like you were blaming the victim while simultaneously demonstrating to the jury that there were two sides to the story. Liana always got excited at this point, irrationally anticipating that the complaining witness would suddenly cave and admit that, in fact, the defendant had done nothing wrong at all. Despite Gerry’s accusation that she wasn’t pro-defendant enough, Liana knew that she engaged in this fantasy, even though she knew that the defendant ultimately had been convicted by the jury and that’s why she now had the case. At this moment, she was entirely in Danny Shea’s corner.

  Defense Counsel: Ms. Nash, did you say that Mr. Shea—that’s the defendant, but I prefer to call him Mr. Shea—did you say that he was a total stranger to you on July 4, 2010?

  Ms. Nash: Yes, he was a stranger to me.

  Defense Counsel: But you had seen him around before, right? In the McDonald’s, or maybe in the neighborhood?

  Ms. Nash: Well, yeah, I guess so. I had seen him a few times.

  Defense Counsel: In fact, he had eaten in the McDonalds that very evening? Ordered a Big Mac and fries from you, about 9:00?

  Ms. Nash: Yes.

  Defense Counsel: In fact, he often ate at the McDonald’s, and he would sort of engineer the line so that he could place his order with you, isn’t that right?

  Ms. Nash: I guess. I didn’t really pay much attention to him.

  Defense Counsel: Well, Ms. Nash, Mr. Shea was always pleasant; he would say hello and goodbye and thank you, right? He kind of stood out that way from some of the other customers that came in, didn’t he?

  Ms. Nash: You could say that. He was polite.

  Defense Counsel: And he stood out in another way, didn’t he, Ms. Nash? He was very handsome, wasn’t he? I mean the kind of looks that most women would notice, wouldn’t you say?

  Ms. Nash: I don’t really know. He wasn’t my type.

  Defense Counsel: No? Yet you agreed to meet him when you got out of work that night to go have a date on the roof?

  Man, this attorney is good.

  She wasn’t often impressed with defense counsel at trial, especially those who were appointed for indigent defendants. She knew from her own experience doing appeals that, while there could be some very highly qualified and talented attorneys who worked for public interest organizations like hers, a lot of the attorneys who took these jobs were scrubs. So far, this guy was one to write home about. He had already succeeded in suggesting that Nash was hiding something—specifically, that she had at least a passing acquaintance with the defendant and maybe more.

  Ms. Nash: Well, I agreed to go up there at first, but I didn’t know what he was going to do to me.

  Defense Counsel: Okay. But you were sort of friendly with Mr. Shea; he always said hello, and he was polite, and he had taken a certain interest in you, night after night in the McDonald’s. And then he noticed when you were upset about Daryl, and he seemed genuinely concerned about you, right?

  Ms. Nash: I guess you could say that.

  Defense Counsel: Well, Ms. Nash, I don’t want to put words in your mouth. I’m just trying to get an understanding of what happened here. So here’s this guy. He’s a little older than you; he’s kind of hot. He’s made a point of trying to talk to you over the last few weeks at your job. Then you get off work on July 4 and he’s waiting for you outside—just sitting in the playground, right? Nothing threatening there, right?

  Ms. Nash: No, not then.

  Defense Counsel: Okay. So you go up to the roof—you testified that you shared a joint; you each had a beer. You are feeling better than you did earlier in the evening?

  Ms. Nash: Yes.

  Defense Counsel: Then Mr. Shea takes it to the next level. He asks you to dance. You dance. So far, so good, right?

  Ms. Nash: Yeah. The dancing was weird, but it was okay.

  Defense Counsel: Okay. So you dance for a while, and then Mr. Shea makes his move. He kisses you.

  Liana was embarrassed to admit it to herself, but her palms were sweaty. She didn
’t realize how mesmerized she had become by the rhythm of defense counsel’s cross-examination, and she was totally immersed in the slow dance and the kissing that followed. Sometimes, the transcripts dragged, and it was hard for her to become engaged in the action. This one was a page-turner. Liana wondered if the women on the jury had been similarly carried away, especially with Danny Shea right there in the room with them. But she knew that the verdict of guilt had been unanimous, so clearly the female jurors had been able to focus better than she.

  Ms. Nash: Yes. He kissed me, and then he raped me.

  Defense Counsel: Objection, Your Honor. That’s the ultimate question for the jury. It is improper for Ms. Nash to testify to that.

  The Court: Okay. Let’s everyone cool off. Continue your cross-examination.

  Defense Counsel: Okay, Ms. Nash. Now, you were living with your parents at this point, is that correct?

  Ms. Nash: Yes.

  Defense Counsel: And they were cool with you hanging out with Daryl—they knew Daryl. But you knew they wouldn’t be too happy if they knew you had gone up to the roof with a guy you just knew casually from the McDonald’s, right?

  Ms. Nash: No. They definitely would have been angry about that.

  Defense Counsel: So when your younger brother came up to the roof and saw you messing around with Mr. Shea, you were afraid he would tell your parents, weren’t you?

  Ms. Nash: No, that’s not how it was. Jimmy saw that he was hurting me.

  Defense Counsel: Well, didn’t you think Jimmy would go down to the apartment and rat you out to your parents, and that’s why you took off so fast—even leaving your purse there on the roof?

  Ms. Nash: No, you’re twisting what happened.

  Defense Counsel: Am I? Didn’t you just testify that Mr. Shea waited around in the lobby for the police to arrive? Why would he do that if he had just raped you?

  The Prosecutor: Objection, Your Honor. He’s badgering the witness.

  Defense Counsel: Withdrawn, Your Honor. I am done with this witness.