Mitigating Circumstances

by Nancy Taylor Rosenberg

She could hear the phones ringing outside and hear footsteps passing the door. “State of California v. Daniel Duthoy…case No. H23456.” The dial tone rang in her ear as her body moved with his. “Additional pleading should read: The defendant occupied a position of trust while committing the crime.” Richard was moaning now. “Don’t stop,” he said. She continued: “By his role as a Big Brother to the victim, he was therefore in a position to gain his trust in order to perpetrate the crime and used this position for this purpose.” She bit her lower lip to keep from crying out and let herself fall back onto the table, trying to make as little noise as possible. There was a recording now on the phone. “If you’d like to make a call, please hang up and call again.” It was over.

  They repaired their clothing and Lily wiped her lipstick off his mouth and cheek with her finger, leaving only a pinkish blush. “I love you,” Richard blurted out. “I know you don’t believe it…I wouldn’t either. You’re the woman I’ve been looking for all my life. You’re strong, smart, passionate…you’re radiant.”

  Lily put her finger across his mouth. “Hush,” she said, “or I’m going to be unemployed and humiliated beyond belief. Besides, I’m up to my asshole in work.” His words of affection she discarded; all men loved you the few minutes after they left your body. He looked crushed. She continued in a tender, soft tone. “I know something big is happening here. I don’t know exactly what. I know I want it to keep happening. Not like this, not in the office, but…my life and my emotions are going a million different directions right now. Can you understand that?” She was pleading with him with her eyes, her fingers playing with the edge of his jacket lapel, still sitting on the table and thinking how irresistible he looked this minute with his dark hair falling onto his forehead. “I need time,” she said, “and I can’t afford to be reckless.” She didn’t want to bring up her marriage—to tell him that she wanted out, that she wanted more than an affair. She wanted the whole ball of wax.

  “There’s never time, Lily,” he said. He crushed a piece of paper into her hand with two numbers on it: his home and car phone. He left first, and after a few minutes she also left, looking up and down the hall, relieved that no one had seen them.

  She returned to her office and started plowing through the cases, infused with energy. Not an inch of veneer showed on top of the desk; it was littered with papers, files, open law books. The credenza in back of her was stacked with files. Her head propped up on one arm, her tortoiseshell glasses down on the center of her nose, she was fully engrossed in the case in front of her when the phone rang. She pushed the hands-free button but continued to read. Clinton Silverstein appeared in the doorway, holding a file in one hand and slapping it against the other, his mouth tense, his brow furrowed. She caught him out of the corner of her eye and waved him into the room.

  “Which case? Oh, Robinson. It’s assigned. We pled the prior and the enhancement for the weapon. Peterson should have it in the morning.” She tapped off the speaker and directed Clinton to one of the green chairs in front of her desk with a diagonal glance of her eyes.

  “This case you just assigned me is a fucking joke.” He waited for her to respond, but all he heard was metal crackling on plastic as she sat back in her chair and it moved on the heavy mat beneath it. “The victim weighs over two hundred pounds—probably from the waist down, from the butt shots—has a record of prostitution, and even admits she was working at the time of the offense. What I’d call it is ‘failure to pay.’ She decided to cry rape when the trick didn’t pay.”

  “It’s a kidnapping and attempted rape,” Lily snapped.

  “But no deals? You can’t be serious. Your victim is not credible. Have you seen the mug shots of this defendant? Hell, he’s a good-looking guy. He even smiled for the camera; he knows he’s going to walk even if you don’t.” Clinton dropped his stocky body in the chair.

  Lily removed her glasses and tossed them; they appeared to fall in slow motion, landing on the paper-padded desk without a sound. “Do you think a woman can’t be raped if she weighs two hundred pounds?”

  “It’s the entire case. The victim’s a hooker. All the witnesses are hookers. She admits she negotiated a price for sex. All he did was punch her in the face a few times. So what’s the big kidnapping all about: the fact that he shoved her head down and drove her to a city dump and then tossed her out of the van? What the hell do you expect when you’re in that line of business? Did she think the guy was going to get front-row seats at the opera?” Clinton shook his head. “I’d say we offer him a plea on misdemeanor battery and he’ll plead out at arraignment; as part of the agreement, we’ll ask for ninety days in jail and three years supervised probation. Then we’ll have a conviction on record. Taking it to trial means we may end up with nothing but egg on our faces.” Clinton sat back in his chair, smug in his analysis.

  Lily’s eyes were cold steel. She leaned forward. “What makes this case so weak in your eyes makes it even stronger in mine: the fact that this young man could easily find sex partners but he picked this woman—this disgusting woman, in your eyes—to vent his rage.” She stopped and swallowed air, aloft now on her beliefs. “You know what? I think he was going to kill her, and it just wasn’t as easy as he thought it was going to be.”

  Clinton ran his fingers through his permed hair. It stood on end. “But what is the whole point if he walks? I still don’t agree with you.”

  “The point is that we give it our best shot and treat this case with as much outrage as we would if the victim had been a Sunday school teacher…that we don’t demean her or demean ourselves. That’s the point. Prepare the case for prelim, Clinton.”

  He stood to leave. “It’s also moving the calendar, Lily—trying cases it makes sense to try and disposing of the others. I know Butler is against plea bargains on sex offenses, but he can’t mean all of them. We’ll do all the preparation and the victim won’t even show. Mark my words.”

  She called him back from the door. Her voice was almost seductive, chilling in its purposeful modulation. “This is your next case. Perhaps you’ll be more willing to champion her cause.”

  He walked to a position near her desk. There was only one photo in her outstretched hand.

  Lily’s voice was a commentator’s monotone. “You’re looking at Stacy Jenkins, age eight years, nine months. Stacy attended school for about six months during the first grade and was never allowed to return. Her stepfather is an accountant with a salary of about $65,000 annually; her mother a registered nurse.”

  “Is she dead?” Clinton said.

  Lily saw his hands shaking and just looked at him without answering.

  “I mean, her eyes are open, but was the picture taken posthumously? Is this a homicide?”

  Lily had thought the same thing when she first saw the picture. The child’s eyes were void of the essence of human life, her brown hair was stringy and limp. All over her body were round, angry red circles, and on her chest were jagged, fresh scars.

  “No, she is not dead,” Lily said flatly and continued. “Stacy’s stepfather began forcing her to commit sex acts about the time he removed her from school. Each time she cried, he burned her with his cigarette. One time she defecated. He pried off her nipples with a pair of pliers. Mother went along with everything, it seems, and used her nursing skills to treat her wounds.”

  “How did this come to light?” he asked. “My own daughter will be nine next month.” His mouth was open, jaw limp, his voice elevated. “This is my first case involving a child.”

  Lily’s head was down, engrossed in another case. She spoke without looking up. “Mom brought her into E.R. one night with a raging infection on the verge of death. Apparently, even she had her limits. We’re charging her as a codefendant on all counts.” Lily now looked up, her eyes dull and tired. “Our biggest hurdle is to stack the counts as high as they will go, but of course, we have to document each one as a separate crime and a lot will depend on Stacy. You’ll be interviewing her with a socia
l worker next week.” She stopped and looked hard at Clinton. “By the way, either cut your hair or get some conditioner. You’ll scare the child to death with that hair.”

  As soon as Clinton wandered out of her office, Lily hit the number one button on the auto dial and called home. She massaged the throbbing in her temples as the rapid tones came out over the speakers. Trying to ease the tension in her neck, she rolled her head around. She looked at the case file in front of her and saw Stacy Jenkins’s face, then her own face superimposed over the child’s.

  “John, it’s me. I don’t think I’m going to get out of here before eight. I’m buried. Tell Shana for me.” She could hear pans rattling in the background; John was making dinner. He got home every day at four-thirty. Some days he didn’t work at all.

  “I’m coaching Shana’s softball game tonight. You promised her you’d come, you know.”

  Lily’s chest was burning, and she reached behind her and unsnapped her bra through the fabric of her dress. Had she really promised she would come tonight, or was she losing her mind? John sometimes manufactured statements like these to increase her guilt, tighten the screws.

  “Don’t worry, she never expects you to show anyway.” His deep voice throbbed with venom. “We know your work is more important. For the past two years that’s all you seem to be concerned about—your work.”

  “I’ll see you at the ballpark.” She wanted to scream at him, tell him that she’d buried herself in her work to escape the emptiness of her life, her marriage—that she felt like an outsider in her own home, with her own child. But it was no use. She started to hit the off button, but stopped. “And, John, even though you and Shana have a short memory, I’ve only missed one game.”

  She disconnected and placed her head in her hands for a few brief seconds. Thumbing through the stacks of files on the credenza, she counted seven that had to be reviewed and assigned by four o’clock the following day. She was working on three simultaneously and even now realized that valuable time was slipping through her fingers. Looking at Shana’s dazzling smile in the photo on her desk, she observed Carol Abrams in the doorway. How long had she been there?

  “I need to talk to you about Lopez-McDonald, but it can wait.” She spoke slowly and looked at the floor, moving her feet around. “I didn’t mean to barge in, but your door was open.”

  So she had heard the conversation with John. Lily mustered up a feeble smile. “How about nine o’clock sharp? We’ll both be fresh.”

  “I have an appearance at nine; make it ten and you’re on.” She paused, an awkward silence, her eyes still searching Lily’s face. “You know, we should have lunch someday, if time ever permits. I have two kids, ten and fourteen. It’s tough sometimes, really tough. You know what I mean?”

  Lily compared herself to Carol, so pert and perfect at the end of the day. Every blond hair was in place and her suit was hardly wrinkled, her lipstick a bright, moist pink. Hard to believe it was so tough for Carol when she looked so good. Lily ran her tongue over her cracked, dry mouth. “Maybe they made a mistake, Carol. You should have this job instead of me.”

  Carol smiled and shook her head. “Nope. You can keep it. By the way, I personally think you’re going to be the best damn chief this department ever had. How about that?” She winked and bounded out of the office.

  A few hours later when Lily left, a heavy briefcase weighed down each arm. The sun was setting and it was getting chilly; she felt it through the thin silk of her dress. Jogging at a stiff pace to her red Honda in the parking lot, she pulled one arm up to look at her watch and realized she would have to speed to get to the ballpark—the game had already started. She dropped both the cases on the ground and started digging blindly in her purse, willing her fingers to touch the cold metal of her keys. She dumped the entire contents of her purse on the hood of the Honda, and the keys hit metal with a ting, rolling to the asphalt along with a lipstick and a phone bill she had failed to mail. The breeze picked up the envelope and she had to chase it across the parking lot.

  Finally in the driver’s seat, she saw the garbage from her purse still on the hood on the car. She started to just drive off and let it fall, knowing most of it should have been discarded long ago. Then she thought better and the same reasons she had collected it caused her to get out. With the palm of her hand, she shoved all the business cards, receipts, and old validated parking tickets back into her open purse, except for a small piece of paper, the one Richard had crushed into her hand earlier that day with his phone numbers. Her fingers ran across the paper, smoothing the wrinkles, touching something he had touched. She folded the paper like a note passed in high school and put it into her checkbook. Something had started in her life, and soon she would never be the same. She knew it, could feel it. Something was vibrating all around her, like the white noise they used at the office to disguise the relentless office clamor. When she got back in the car, she turned the heater on high. It might have been sixty-five degrees, but Lily was freezing.

  CHAPTER 5

  He was laughing, excited, watching her run around in the parking lot, rumbling for her keys. He slapped his hands in glee against the window and left his fingerprints there. He never left fingerprints, never touched things when he was in places where he didn’t belong, and he had been in many such places. “I’m here,” he yelled at the window. “Look up.”

  “You fucking crazy man,” Willie said. “Who you yelling at, boy? Why you always standing at da window?” Willie was reading a thin paperback called Charly, and he rolled over on his bunk. Every time they came with the little cart, the big black man took another book.

  He turned and looked at the man, his face frozen, his eyes glazed, the excitement gone. “Cause I’m leaving this shithole. That’s my woman out there. Comes to see me every day, man.”

  Willie put his size-thirteen black shoes on the linoleum floor, leaned forward, arms on his thighs. “Dat ain’t your woman. I’ve seen what you lookin at, boy. She call da cops on you even open you mouth ta her. Don’ you hyeah me when I speak?”

  “You’re nuthin’ but a fuck-ass killer, man. Your black ass’ll be in the joint and I’ll be out fucking. They gonna let me out. They never gonna let you out.”

  The big man stood and took heavy steps toward the window, toward his cell mate, backing him into the corner. Then he turned and unzipped his pants, urinating in the open commode. “You be back, boy, ev’n dey let you out. Don’ make me come crost dis floor.” Then he turned and looked at him, his eyes large white beacons.

  Just then the doors to all the cells in the quad opened with an electronic whine and metallic clang. Willie stepped out into the common room. The Latino remained in the corner, afraid to move. He heard dinner trays rattling on the stainless steel tables, smelled the food, but he didn’t go out. Crawling onto his top bunk, he turned his face to the wall and thought of her. This was her fault. The more he thought about her, the more anger filled him, the less afraid he was of Willie. This morning he’d watched her and remembered something, another time and place that he’d seen her. For a second he thought that she might be a judge, someone who had sentenced him in the past. There were a lot of lady judges now. They were the worst, absolutely the worst. All the inmates felt the same. Having a woman judge punish you was like having your fucking mother punish you. And they all hated men. Everyone knew that. No woman would want to dress up in a long black robe and be around criminals all day who was normal. Women were basically whores. They let their tits hang out and wore their dresses so any man could see between their legs, and then they screamed when men looked at them and wanted to fuck them like the whole thing was one big surprise. Woman were stupid, cock-teasing whores.

  Latin men knew how to train their women. They didn’t let a lousy woman push them around, tell them what to do. Latin men were the bosses. They did what they damn well pleased and if the lady didn’t like it, they’d just find a new lady.

  He couldn’t get her face out of his mind.


  She could be an attorney, he thought. Maybe one of the court-appointed lawyers he’d had in the past. But he’d never had a woman lawyer. He’d never let a woman fuck up his case and land his ass in prison. Then he remembered who she was.

  She was a district attorney.

  It wasn’t his case, but he’d been in the courtroom at the time, waiting for his case to come up. He’d been fascinated by her freckles and her legs. She had long legs, good legs—legs he could imagine pinned beneath him. They’d be shaved and slick as glass. They’d slide against his skin.

  He leaped from the bunk and headed for the glass window, wanting to see her car again, wanting to remember her. Sometimes she came to her car at lunch-time. She hated Hispanics. In the courtroom the day he had seen her, the defendant had been Hispanic, a rival gang member, someone he knew from the streets of Oxnard. She had called the man an animal, told the court that gangs were like a black plague taking over the city. What did she know about anything? In his neighborhood the cops didn’t protect a person. Gangs were the only way to survive. She probably lived in some fancy house, in some fancy neighborhood. She probably pulled her little red car into her own garage, never having to come out and find the windows smashed in and the radio gone. Once they had even stolen the seats from his car. He’d come out to go to work one morning and his car had been sitting there at the curb like an empty tin can, everything of value completely gone, the car gutted and stripped. What did she know?

  He was going to fuck her and make her beg. He was going to teach her about fear. Then shed know.

  After he fucked her, he’d find the brother on the street that she had prosecuted, and he’d walk right up to him and tell him, “I fucked her, man. I fucked the redheaded whore who sent you to jail that time.” He laughed. “You owe me, man,” he’d say. “I fucked her for you, man.”

  She would beg him, plead with him. His chest swelled in anticipation. Willie was nothing to be afraid of, he decided, confident again. He went outside and got his dinner, banging the tray against the metal table.