Saving Justice

by Peter O'Mahoney

  Those two jurors would be Hunter’s focus as he delivered his case.

  Hunter stood, made eye contact with juror ten, and nodded. Juror ten automatically returned the nod. Standing behind the podium, Hunter began his opening statement.

  *****

  “It’s important that right now, at the start of this case, you understand that Dr. Mackie is innocent. Right here and now, that should be your opinion. Sitting there in that jury box, you must presume that Dr. Mackie is innocent.

  The presumption of innocence is what our great court system is based on. That’s what our justice system relies upon—the presumption of innocence. At this moment, there should be no doubt, nor any question, in your mind. You must look at Dr. Mackie sitting at that table and see an innocent man.

  Dr. Mackie is a respected medical practitioner, with more than twenty years of service to his community. During that time, he has not had one complaint. Not one.

  Dr. Mackie did not assault Miss Jennings.

  That will become obvious to you as we progress through this case. In this era of attack, Dr. Mackie is an easy target.

  My name is Tex Hunter and I’m a criminal defense attorney. Along with my team, I represent Dr. David Mackie.

  We will present expert witnesses who will state that false claims of sexual assault can happen. It’s a sad occurrence when people wish to take advantage of the system, but the truth is that it does occur. According to the research studies, false claims of sexual assault happen in 10 percent of cases. That means one in ten allegations of sexual assault are made up. They are made up for a variety of reasons, however, the strongest reason is money.

  A widely respected 2009 study, authored in part by a University of Massachusetts professor, concludes that while most sexual assaults go unreported, of those that are reported, between 2 to 8% are falsely made. That’s a lot. You will hear from expert witnesses who will explain this to you in more detail.

  During this trial, you will hear that Miss Jennings instructed her lawyers to present an offer to withdraw her accusation for a one-million-dollar payment. That’s a lot of money. Enough money to motivate someone to make a false allegation.

  You will hear from the receptionist of Dr. Mackie’s medical clinic, Larissa Smith, who will testify that in five years of working for the medical clinic, no other person has accidently walked into the wrong room. Not one person in five years.

  She will also testify that no other delivery driver has ever seen into a doctor’s room, because in the five years that she worked for Dr. Mackie, she never saw the blinds to his office open. Not once. We will present photos to you that will show that Dr. Mackie’s blinds are always closed.

  You will hear from expert witness, Dr. Amelia Lofty, who will state that factors such as stress, alcohol or drugs can affect a person’s memory. She will explain that leading questions by investigators and extensive media coverage on the subject of sexual assault can cause a contamination and alteration in memory. She will explain that some people ‘want to try to remember more,’ and that could lead to filling in the gaps of an ambiguous or weakened memory with details that then start to feel like memories.

  We must remember this is a court of law. This is not a court of opinion. This is not a court where we guess an answer. We must abide by the law.

  Finding Dr. Mackie not guilty does not mean you find him innocent or that you don’t believe the witnesses. What it means is there isn’t enough evidence to make a decision beyond a reasonable doubt.

  I want you to remember that. If you find Dr. Mackie not guilty, it doesn’t mean that you don’t believe Miss Jennings. It means there isn’t enough evidence to charge the defendant.

  This is a court of law, where we listen to evidence, and only, the evidence. This isn’t where you decide an outcome based on assumptions.

  You require evidence to make a decision. You will not have enough evidence to make a decision in this case. Your only choice is to find Dr. Mackie not guilty.

  Thank you for your service to this court.”

  Chapter 20

  When Miss Katherine Jennings first stepped through the courtroom doors, all the eyes of the attendees were focused on her. She didn’t look up. She looked at the ground, head leaning forward, shoulders hunched. She dragged her feet, and refused to look in the jury’s direction. Dressed in black, almost like she was attending a funeral, her arms were crossed against her chest, and her black hair was tightly drawn back. Her entrance deserved an Oscar nomination.

  Every step she took was under the stare and judgment of the jury members. Her actions, more than her words, were on trial. No other crime demanded the attention and pressure on the victim like a sexual assault case.

  For most of his career, Hunter had refused to take on sexual assault or rape cases. He felt the justice system, the system he held so dear, was balanced in favor of the attacker, not the victim. He hated the way the victim was essentially on trial. He couldn’t bear to put a victim through the trauma of speaking about those personal experiences not only in the same room as their attacker, but in front of a room full of people they didn’t know.

  But when Dr. Mackie came to him, protesting that he didn’t touch the young woman, he saw truth in his eyes. Dr. Mackie presented the evidence, and it made sense to Hunter. Hunter considered the case for a week, investigated Dr. Mackie’s claims, and when he was satisfied the doctor was telling the truth, he took the case. With every week that passed, that truth became consolidated in Hunter’s eyes.

  Dawn Rollins stood, walked to the lectern, and started questioning with a gentle tone.

  “Miss Jennings, I understand how hard it is for you to be here today. Thank you for having the courage and bravery to step forward. Not just for yourself, but for every victim of sexual assault. May I get you anything, perhaps a glass of water?”

  “Yes, please.” Her voice was meek, quiet. “A glass of water.”

  One of the bailiffs moved to pour her a glass of water. The packed courtroom was awkwardly silent until after Jennings had taken a sip.

  “Miss Jennings,” Rollins continued. “Can you please tell the court what you were doing on the date of November 5th?”

  “I attended a medical clinic in the Gold Coast and saw a doctor for a problem I had.”

  “And is the doctor you saw on that day in this courtroom today?”

  “He is.”

  “And can you please identify him for the court?”

  “It’s that man sitting there at the defense table.” She pointed at the defendant. “Dr. David Mackie.”

  “And can you please tell the court why you went to see Dr. Mackie that day?”

  “I had a rash on my upper-thigh that didn’t go away. I’d had the rash for about five days and it was getting worse, so I thought I’d better go to the doctor to check that it wasn’t anything serious. I’d checked the internet and most websites said this sort of rash was best to get checked out by a doctor.”

  “And why not see your usual doctor?”

  “I don’t have a usual doctor in Chicago. I grew up here, but I’ve only just moved back from New York. I’ve spent the last five years living in Brooklyn, so I had to find a new doctor. Dr. Mackie’s clinic had the soonest available appointment.”

  “When you arrived at Dr. Mackie’s office, can you please explain what happened?”

  “I checked in with reception, and sat in the waiting room. There were a few people waiting, because the clinic also has other doctors working there. Five or six, I think. Dr. Mackie was on time, which I thought was good. He introduced himself, and then led me to his room. He seemed nice. He said that I seemed nervous and that I should take the two pills he had in his hands to relax.”

  “Did you know what the pills were?”

  “I didn’t know exactly, but he said they were relaxants. He asked me to tell him when I started to feel the effects of the pills. While I waited for drugs to take effect, we had a general chat. We talked about what I had been doing earlier tha
t day, about the weather and about my life. Nothing important. After about ten minutes, I told him I was feeling the effects, and that’s when he asked me to lie down on the examination bed.”

  “What happened then?”

  “I was uncomfortable about having a man look at the area around my upper thigh, but the drugs made me feel relaxed. And I thought he was a professional, so it would be fine. I...” Her lip began to tremble, and the tears welled up in her eyes. “I just didn’t expect him to do that.”

  “Take your time, Miss Jennings.” Rollins said. “When you’re ready, can you please continue and tell the court what happened next.”

  “He asked me to undress so he could look at the area better. I took off my dress, so I was just in my underwear, and lied down. He looked at the rash, but then he asked me to continue to undress and take off my underwear.” Her lip quivered again. “He even asked me to take off my bra.”

  “Did you?”

  She nodded, paused, and wiped her eyes. “Yes.”

  “Then what happened?”

  “He began to feel the area around my thigh…” Jennings covered her face with her hands and began to sob. The jury were captivated. “He began to…”

  “Take as much time as you need.” Judge Reed showed his softer side. “The court will allow you all the time you need to talk about what happened.”

  “Thank you,” Jennings dabbed her eyes with a tissue and composed herself. “Dr. Mackie said he was checking the rash. He said… he needed to look closer. He began to feel the area around my upper thigh and then he touched my private parts.”

  “Did you have a rash there?”

  “No. It was only on my thighs.”

  “What happened next?” Rollins’ voice was soft.

  “He…” She drew a deep breath. “He inserted his fingers inside me.”

  A jury member gasped. Rollins allowed the silence to sit in the room for a moment before she continued. “Did he say anything about this?”

  “He said I shouldn’t worry and that it was part of the medical examination. He told me to stay calm and to be quiet.”

  “Can you please tell the court what happened next?”

  The questioning continued for another two hours. Jennings spent the time describing the event in detail, almost word for word what was written in the victim statement. She broke down a few times to let out the tears, and Rollins offered a tissue each time. There was barely a noise in the courtroom. The crowd were mesmerized by her presentation. She was well-spoken, pretty, and vulnerable. It was hard for the jury to draw their eyes away. As the day drew to a close, Rollins finished her questioning.

  “When you went and saw Dr. Mackie, did you trust him?”

  “Yes. He was a doctor. He was supposed to be the person I turned to in need. He was supposed to protect me. I went to his office for medical advice about a rash, and I never expected this to happen. I just didn’t think it could happen to me. I’m a strong woman. My parents raised me to be strong, but I couldn’t stop him. I don’t know why I didn’t stop him.”

  “Did you protest at any time?”

  “No, I was frozen with fear. I didn’t understand what was happening.”

  “Have you been back to a doctor since?”

  “No,” Jennings shook her head. “I’m not sure I will ever feel comfortable around a doctor again. I fear them. I fear being in a room alone with an older man.”

  “Thank you, Miss Jennings. I cannot imagine how difficult that was for you.” Rollins turned to the judge. “I have no further questions.”

  When Rollins finished her questioning, Judge Reed called for a close to the day’s proceedings. Hunter had hoped to begin his cross-examination on day one, however Rollins dragged the testimony out as long as possible. It was a deliberate ploy from the prosecution. The jury left after day one with only one side of the story in their mind, and that initial impression was given time to brew in their minds overnight.

  The courtroom was full and buzzing at the start of day two, but as Judge Reed walked into the room, the crowd hushed. It became dead quiet. A nervous anticipation filled Hunter’s stomach. The Chicago Tribune ran a story about Jennings’ testimony, and it was clear which side of the fence they sat on. Although they used the word, ‘alleged attacker,’ it was hard not to read into the story. Dr. Mackie’s public reputation had taken a hit.

  When called by Judge Reed, Hunter moved to the lectern. His cross-examination had to be performed with surgical precision—he had to question the witness’ statements, but not destroy her as a person or take advantage of her vulnerability. The jury had sympathy for Miss Jennings, and any attack on her would be seen as callous and insensitive. Hunter had to be gentle and soft in his approach, and not attack the seemingly defenseless girl on the stand. His tone was calm, and his demeanor was open. “Miss Jennings, thank you for coming to the court again today. Can you please tell the court where you’re currently employed?”

  “I’m employed as a barista in a coffee shop in River North.”

  “Part-time?”

  “Yes.”

  “Do you make much money from that? Perhaps you make a lot in tips?”

  “Objection. Relevance.” Rollins said.

  “Your Honor, I’m trying to establish the witness’s credentials.” Hunter argued. “This is important in establishing the background of the witness.”

  “Go on.” Judge Reed snipped. “But make it brief.”

  “Miss Jennings, do you make a lot of money in tips from your employment?”

  “No, not much money at all.”

  “Before November 5th last year, did you have much savings?”

  “None.”

  “So would it be fair to say that your financial position was dire?”

  She nodded.

  “Miss Jennings? Please answer verbally.”

  “Yes. That would be a fair assessment.”

  “And how is your financial position now?”

  “Better.”

  Hunter could feel Judge Reed’s eyes bore into him. He was stepping as close to the line as he could while asking about her savings. “Being a barista isn’t what you always wanted to do in life, is it? What other career choices have you wanted to make?”

  “An actor.”

  “An actor.” Hunter repeated. “Did you ever act on Broadway in New York City?”

  “I was in five different shows that were off-Broadway, yes.”

  “And what was the last show about?”

  She didn’t answer.

  “Miss Jennings, what was the last show that you performed in about?” Hunter pressed.

  “It was about a woman who accused someone of sexual assault.”

  “Did the woman that you played falsely accuse someone of sexual assault?”

  “Yes.”

  “And what happened at the end of the play?”

  “Even though she was lying, the woman received a large payout from the person she accused of assault.” She felt the pressure to explain herself further. “The play was about a girl who was being bullied and physically abused by her boss. It was fictional.”

  Hunter nodded, as did one of the older men in the back row of the jury. The uncomfortable pause hung over the room for a while. “Miss Jennings, do you plan to sue Dr. Mackie in civil proceedings after this trial?”

  “I have no plans for that.”

  “But it’s possible you could?”

  “I suppose.”

  “Are you aware of the payouts that go to victims of sexual assault cases?”

  “Not really.”

  Hunter walked to his desk, removed a file, and walked back to the lectern. “Miss Jennings, yesterday the prosecution submitted your phone records to the court as Exhibit 5. They presented evidence that your first call after the appointment was to your mother, who you spoke to for fifteen minutes. After that conversation, you called two friends. The fourth call was to a victim support line for just under five minutes. All these calls were made one after the o
ther. The next call you made was two hours later. Can you please tell the court who your fifth call was to? Was it the police?”

  Jennings stared at the prosecution table.

  “Miss Jennings?” Hunter pressed. “Was your fifth call to the police?”

  “No.”

  “And who did you call?” Hunter raised his eyebrows. “And I’ll remind you that your telephone records have been entered as evidence into the court by the prosecution.”

  “I called my friend, Thomas Lane.”

  “Your friend?” Hunter raised his eyebrows. “When was the last time you talked to this friend before this date? Perhaps you talk regularly on the phone?”

  She paused for a long moment. “It had been a while.”

  “More than a month?”

  “Yes.”

  “More than two months?”

  “Probably.”

  “More than a year?”

  “I think so.” She shrugged.

  “How old is this friend?”

  “He’s in his late fifties.”

  “And this friend, a person you hadn’t talked to in more than a year, what’s their occupation?”

  She stared at Hunter.

  “Miss Jennings, please answer the question.”

  “He’s a senior high school teacher.”

  “What sort of teacher?”

  “A good one.”

  “That’s not what I was referring to, Miss Jennings.” Hunter paused. “What subject does Mr. Lane teach?”

  “Drama.”

  “You called a drama teacher before you called the police?”

  “Objection.” Rollins stood. “Asked and answered.”

  “Withdrawn.” Hunter was quick to respond. “Were you taught drama at school by Mr. Lane?”

  “In the past, yes.”

  “How many years?”

  “I can’t remember exactly.”

  “One year?”

  “No. It was more like two or three years.”

  “Was he the person you turned to when you wanted acting advice in your career?”