Authors: David Kessler
“You’re honor we have the right to raise the issue of what this witness actually wanted.”
“Is the defendant changing to a consent defense?”
“No, but the intentions of the witness have a bearing on her overall credibility.”
“Then phrase it as a question Ms. Phoenix, not as an inflammatory statement.”
“Miss Newton, did you
want
to have sexual relations with the driver of the car?”
“No of course not.”
“Then would not the wisest course of action have been
not
to get into his car in the
first
place?”
“I suppose so.”
“Yet you
did
get into the car?”
“I didn’t think about it.”
“Nevertheless would you not concede that by getting into a stranger’s car you advertised that you had less concern for the consequences than the average female?”
“Objection!”
Again Sarah Jensen was on her feet. Andi tried to sound calm as she replied.
“Your Honor, if I may quote a ruling of Justice Compton in the California Court of Appeal – ‘Under such circumstances it would not be unreasonable for a man in the position of the defendant here to believe that the female would consent to sexual relations.’”
“Your Honor, counsel for the defense forgets that Justice Compton specified that it only applied – quote ‘in the absence of an emergency situations’ unquote. In this case, the vict– witnesses car had broken down in the middle of nowhere and her cell phone battery was dead. Furthermore, the official grounds for the reversal was that the trial judge allowed the jury to consider the defendant’s previous conviction for a sex offense – for which he was still on a suspended sentence.”
Ellen Wagner nodded.
“I believe that it was also pointed out that if it were applied consistently it would also allow hitchhikers to rape drivers and allow drivers to rape male hitchhikers and hitchhikers to rape male drivers.”
Andi was feeling flustered. She had overplayed her hand and Alex was now looking at her with unconcealed anger. The judge continued.
“I am directing the jury as a matter of law that the act of getting into a stranger’s car does not in itself entail an absolute forfeiture of the protection of the law against rape.”
Sarah Jensen sat down, casting a smug side-glance at Alex, who in turn looked somewhat frustrated.
“Miss Newton,” Andi continued, “is it possible that the reason you felt you had no choice but to hitch a ride is because you were
tired
of trying to get your car started and anxious to get back into town?”
“Yes,” said Bethel, grateful for the chance to revert back to one-word answers. She had said in direct examination that she had been
unable
to restart the car on her own. She hadn’t noticed the subtle shift in wording that Andi had introduced into the questioning.
“And is it not also possible that, being
tired
, you may have been mistaken about at least
some
of the details of the event – not the major details perhaps, but at least the minor ones.”
“Yes,” said Bethel nervously. The prosecutor had looked away from her just after the question was asked and this was a pre-planned warning sign.
“For example,” Andi continued, “if you say you were raped, then there is certainly no reason to doubt you. If you say you didn’t give your consent to sex then
you
ought to know what you wanted and no one should question
that.
But is it not
possible
that you might be mistaken in what is, at the end of the day, just one of the details? Like the
identification
of the rapist?”
“The man who raped me is your client Elias Claymore,” she said with grit in her voice.
“But did you not initially tell the police that the man who raped you was in his
early twenties
?”
“I did at first.”
The voice was weak. But more significantly, Alex noticed that she was no longer relying on one-word answers, even when she could get away with them.
“Would you say that this
accused
is in his twenties?”
She looked round at Claymore
“No. But when I came back after lunch, I told them he was older?”
“Ah yes, when you
came back
. And that was when you also told them that you’d seen the rapist on a TV talk show.”
“Yes.”
“And how old does the accused look to you now?”
“About fifty.”
“Fifty eight actually. So how could you confuse him for a man in his twenties?”
“I don’t know,” she replied weakly, wiping a tear out of one of her eyes.
“And what made you realize that he was older?”
“Like I said, I saw him on a TV in a store window. He was presenting the talk-show. But I didn’t know who it was. Only I realized that it was him when I saw his face in close-up.”
“But you saw the rapist in close up didn’t you?”
“Yes.”
“And you thought he was in his twenties.”
“I was frightened.”
“Frightened would hardly make fifty eight seem like twenties would it?”
“I was confused.”
“Are you
sure
you’re not confused now?”
“No.”
“You’re
not
sure if you’re confused?”
“No I mean I’m not confused now.”
“Is it not possible that at the second photo line-up you identified a man who may perhaps have,
in his youth,
looked
like
the man who raped you, but who in fact was a completely different man?”
“I don’t understand.”
“Is it possible that you saw an older man on TV who
looked
a bit like an
older version
of the man who raped you and so you decided that this man
was
the rapist?”
“No. Look I know what I’m saying! The man who raped me is that man sitting over there!”
Andi paused, put on the look of one who was hurt but still defiant, and spoke in a slow but impassioned voice.
“Is this the first time that you’ve accused a man of rape?”
Bethel looked over to the prosecutor who nodded discreetly. Andi could have made an issue of such non-verbal communication, but she chose to ignore it, putting pressure on Bethel to answer.
“No.”
The voice was weak and accompanied by a girlish sniffle.
“Is it not a fact that you made a similar accusation against a fellow high school student called Luke Orlando two years ago?”
“Yes.”
“And then you retracted it and admitted that you were lying?”
Claymore squirmed uncomfortably when he heard this.
“I
wasn’t
lying.”
“Then why did you admit that you were lying at the time?”
“Because after I withdrew the accusation, my family and friends were all pestering me to reinstate the accusation and that was the only way I could get them off my back.”
“Oh so you admitted you were lying
after
you withdrew the accusation?”
“Yes. But it wasn’t a lie! He
did
rape me!”
“So
why
did you withdraw the accusation if it was true?”
She opened her mouth to speak, but no sounds came out.
“You can take a moment to compose yourself Miss Newton,” said the judge, gently.
“It’s complicated.”
“Would you like a sip of water?” asked the judge.
Without waiting for an answer, the judge signaled one of the bailiff’s to refill the water cup that Bethel had drained slowly while testifying under direct examination. When Bethel had taken a few sips and calmed down, the judge nodded for her to continue.
“I knew that if I followed through with the accusation I’d be subjected to this sort of thing... and...”
“
What
sort of thing.”
“Like...
this...
”
The tears were flowing again.
“Oh you mean cross-examination.”
“
Yes
,” said Bethel in a little-girl voice, her eyes squinting to dam up the tears.
“But isn’t that my
job
?”
“Yes.”
The voice was almost a whine by now.
“So you were afraid because you knew the prosecutor would do his or her job?”
“I was afraid of how he’d make me seem.”
“And how was that Miss Newton?”
“Like a slut.”
“Why do you think he’d make you seem like a slut?”
“Because that’s what they do.”
“They?” asked Andi, raising his eyebrows.
“Lawyers. Defense lawyers.”
“Is it only defense lawyers who do that sort of thing Miss Newton?”
At the prosecution table, Sarah Jensen tensed up. She knew that Andi was leading Bethel into dangerous territory, and she could object. But she couldn’t afford to let it seem to the jury as if she was protecting the witness from being tested. So she held back. With any luck Andi would just create sympathy for Bethel by attacking her in this way.
“I don’t know what you mean.”
“Oh I think you do. Didn’t the boys in your high school vote you the “slut of the year” in their student magazine poll?”
“Yes,” she cried, sobbing bitterly into her handkerchief. “But I wasn’t like that at all. I wasn’t a slut. It was just the boys being silly.”
“But
they
evidently thought it was true Miss Newton.”
Sarah Jensen finally rose to her feet like an avenging angel, realizing that she had let it go on too long.
“Your Honor,” this is hardly relevant to the proceedings. The witness objected to the way the boys had characterized her even at the
time
.”
“That may be ,Your Honor,” Andi responded, “but the witness’s past behavior pertains to her veracity.”
Sarah Jensen tried again.
“That may be relevant to the previous rape accusation, Your Honor. But how the victim was characterized
by others
is another matter. This poll was done in a high school by a group of
adolescent boys.
It merely reflects the adolescent boys’
mentality
. It hardly represents reliable evidence of the victim’s past
behavior
.”
Justice Wagner hesitated. After a few seconds, she spoke slowly.
“It may not be the most reliable evidence Ms Jensen, but it is evidence.”
“But it is not evidence of a form that permits cross-examination. If defense counsel wants to introduce this evidence, she should call the author of the student magazine article and the rules of hearsay evidence should be strictly applied.”
“That would surely restrict the content of his testimony to the point of rendering it worthless,” said the judge.
“In that case, let defense council call the boys who
answered
the opinion poll.”
“That would be extremely impractical Ms Jensen.”
“In that case I reiterate my objection to the evidence. If this evidence is deemed to be relevant, then at least it should be admitted in a form that lends itself to the test of cross-examination of its sources.”
“No I don’t agree Ms Jensen. I think it’s important to protect the accused’s right to a fair trial, and that includes testing
this witness’s
testimony, by allowing defense counsel to put these points to her,
Sarah Jensen sat down, frustrated. Emboldened by the judge’s decision, Andi pressed her advantage home, determined to make up for the earlier debacle about the Justice Compton decision.
“Miss Newton,” Andi continued. “Can you think of any reason why fifteen boys should unanimously vote you “Slut of the year”?”
“Because they’re a bunch of fuckin’ creeps!” she cried sobbing profusely.
“And is it not true, Miss Newton, that you took part in a student charity event dressed as a slave girl?”
“Yes,” she said, continuing to cry. She had been dressed more modestly than a girl
–
or man
–
on the beach. But in court it sounded so different from the reality.
“And on another occasion did you not appear as a stripogram”
“It was a
kiss
ogram!”
The court erupted into laughter, crushing her with the weight of total humiliation. She had tried to put the matter into context, to counter the poisonous seeds that this greasy shyster was sowing. But in retrospect, arguing over the terminology sounded farcical.
At the defense table, Claymore lowered his head and stared at the table in front of him, unable to watch what was unfolding before his eyes. But no one noticed Claymore. The last thing everyone remembered of that session, was Bethel Newton’s face with the tears of humiliation streaming down her cheeks. And amidst all the politics and legal shenanigans, it was all too easy to forget that this was a human being.
But no one looked at Andi, either. If they had, they would have noticed that she too was crying.
“You know that according to Bethel’s statement about Orlando, he assaulted her with one end of a little league baseball bat?”
Andi and Alex were in the car, driving back to the office across the Bay Bridge to finish some paperwork. The atmosphere was tense. They had been sitting there in stony silence until Andi broke the silence with her hint of moral criticism.
“I know,” said Alex, uncomfortably.
“And you also know that Orlando forced her to perform several sexual acts while threatening to bust head open.”
“I know she
said
he did,” Alex replied, still not giving anything away by his tone.
“And you think she made all that up?” asked Andi, contemptuously.
Alex shrugged. Andi spoke again.
“You know that another girl came forward at the time of the Orlando case and confirmed that Orlando had done the same thing to her?”
“Yes.”
“She said he pulled her hair and treated her like a rag doll, just like Bethel Newton said.”
“So?”
“And he boasted to her about having assaulted other girls and threatened to ‘rearrange her face’ if she told anyone. Do you think they
both
made it up?”
“How do you know all this?” asked Alex glancing sideways briefly to assess what she was thinking by the look on her face.
“It’s in the report. Pity you didn’t bother to read it.”
Alex’s face was neutral.
“I
did
read it,” he said coolly.