Gideon - 04 - Illegal Motion

by Grif Stockley

  “For God’s sake, Lucy!” I cry, feeling my face burning.

  “I’m no different from any other lawyer in this state.

  If I can make a buck, I’ll do it. If there’s something wrong with that, you’re going to have to put most of this country out of its misery. All I’m trying to say is that Dade should take this offer and then get on with his life.

  The prisons are filled with people who either entered into a plea bargain or wish they had. If you’re looking for a hero, I nominate the man who’s prosecuting Dade. After this morning, I wouldn’t have given a plugged nickel for our chances to knock this case down to carnal abuse and a six-year sentence, but the prosecutor made this offer because he said Robin’s parents have finally been convinced not to put their child through a trial if they can get this deal.”

  These sentiments have come straight from my gut, and I am out of breath when I finish. Lucy makes a small fist with her right hand but shows no other emotion.

  “I

  thought you’d be different.”

  “Well, I’m not,” I say hoarsely.

  “I can’t change history.

  By the way, I’m sorry about your grandmother. My daughter thinks that under the circumstances she was raped. I guess she was. I can’t do anything about that, just as I can’t really do anything about the kind of person who will serve on Dade’s jury. All I can do is tell you what’s likely to happen to Dade if he goes to trial.”

  She unclenches her hand.

  “You’re putting your racism on that jury,” she says fiercely.

  “That’s what’s making you afraid.”

  Is that what I’m doing?

  “I know what people are like,” I say, breaking it down as simply as I can.

  “And so do you.”

  Her jaw flexing in anger and her dark eyes flashing, she leans across the table to shake a long black finger in my face.

  “I don’t want my son in prison, you hear me!”

  Pushing up from the table with both hands, she walks past me and through the door. I am already tired, and it is not even nine o’clock. I close my eyes, wishing I had kept my mouth shut about what has motivated me in this case. In the other room, I hear all three talking at once, Lucy’s voice the loudest. I strain to hear but can’t distinguish more than a few words. I hear Lucy saying, “If you didn’t do it …” and then her voice is drowned out by Roy and Dade.

  Just moments later, all three are back, surrounding the table. Dade glares at me as if I were a prisoner who had been charged with some heinous crime.

  “I want to go to trial,” he announces.

  “I’m innocent.”

  I judge by the expression on Lucy’s face that she is fully supportive of this decision.

  “That’s fine with me,” I say automatically.

  “I’ll do the best job I can.”

  “See that you do,” Roy adds, in a menacing tone.

  I don’t like to be bullied by anyone, especially a client who isn’t paying me a third of what a case is worth, but Roy, I have the feeling, is out of the loop here. This is between Dade and his mother, I surmise, without any hard evidence to support my intuition. I have the distinct feeling he has chosen to do what he thinks will maintain her image of him. To save his pride, Roy has been given his say, but it is his mother whom Dade wants to please. As I am leaving, ten minutes later, only Lashondra, who is re arranging toilet paper on the shelf next to bar soap, waves good-bye. If she were the client, I’d feel a lot better.

  Furious, I gun the Blazer hard westward through the desolate flatness of the Arkansas Delta, already feeling the pressure imposed by Dade’s decision. I know who will be the fall guy in this scenario. Yet, damn it, would he really be risking a trial if he weren’t innocent? Dade and Lucy will drive to Fayetteville Sunday morning so we can work on his testimony. Roy will stay in Hughes to keep the grocery open. Damn. He can’t even take off to see his son’s trial.

  I call Binkie from my office and give him the bad news.

  “I think, he’s making a mistake, Gideon,” Binkie says, sounding disappointed.

  “I do, too,” I confess, as I pull Dade’s file from my briefcase. I had hoped when I walked into my office there would be a phone call from Lucy. There is nothing else to say and I hang up with a sick feeling in my stomach.

  Gordon Dyson is waiting for me outside Judge Butler’s chambers with an embarrassed grin on his face. This shouldn’t take long even if “Gucci” shows up. I shake hands with Dyson, who hands me an envelope, presumably my fee.

  “How is your son taking this?”

  Dyson smiles.

  “He’s pissed as hell. He called his mother, but I talked to her and it’s okay. I don’t think he’s even gonna show.”

  I take off my overcoat in the poorly ventilated building.

  The Blackwell County courthouse is undergoing extensive repairs, and the building the county is using has all the charm of a bus station in a third world country.

  We enter the judge’s outside office, and his secretary tells us to go right on back. The judge will take Mr.

  Dyson’s testimony in his chambers.

  Sonny Butler is an ex-prosecutor and likes cops. He greets my client like an old friend, and I relax, knowing this will be a piece of cake. Across Sonny’s massive desk they chat, each bragging about how well he is doing.

  Why the hell not? Cop to businessman, prosecutor to judge. They both have prospered as a result of crime.

  Butler is not a bad judge for a man who claimed during his recent campaign that any person who didn’t believe in the death penalty would change his mind if his wife were raped and killed in front of him. His opponent, my old boss at the public defender’s office, Greta Darby, cracked that it was hard to tell whether Sonny was running for judge or executioner. To know Greta is to hate her, and I voted for Sonny, despite his ranting during the campaign.

  Sonny kids Gordon about evicting his son and needles him gently about his failure to prosecute him under Arkansas’s criminal eviction statute, the only one left in the country, according to Clan.

  “His mother would have killed me,” Gordon says sheepishly, which makes me realize he had considered it At this moment a woman charges into the room, followed by a college-age kid who has to be “Gucci.” My client’s face, now ashen, tells me it is his wife.

  “Dora Lou, what are you doing back here?”

  “I couldn’t let you throw our son out on the street!” she cries dramatically. It is obvious she has had no sleep for some time. She must have come straight from the airport.

  Her bright orange jumpsuit, the color county prisoners wear, is badly wrinkled. Beneath her reddened eyes are plum-colored pouches that emphasize the rest of her under baked pie crust of a face. In contrast, Dyson’s son is wearing an immaculate blue pinstriped three-piece suit.

  “Your Honor, can we take a minute?” I ask plaintively.

  Judge Butler nods and motions us outside. Lawyers are the first line of defense against unruly litigants.

  “What is he going to do?” Mrs. Dyson shrieks once we are outside in the hall. She gestures at “Gucci,” who is staring pitifully at his father.

  “Go to work full-time like most other Americans?” the ex-policeman asks, his voice trembling as it rises to a new level.

  “You hate him!” his wife rages.

  “You hate him because he looks like me!”

  This insight is fraught with danger, and I intervene, pulling my client to one side and whispering, “Can’t you bribe him to leave? Give him a new car, a thousand for a couple of months’ rent, and we’ll go back to my office and sign a contract that if he moves home again he agrees to sign over the title to you.”

  Gordon Dyson contemplates his family and nods.

  “A

  contract won’t mean anything, but maybe he’ll have a wreck and kill himself.”

  Fortunately, “Gucci,” perhaps fearing that he might die unexpectedly in his sleep if he remains h
ome, agrees. An hour later after mother and son have departed my office, I escort Gordon to the elevators and offer to return half my fee.

  “We didn’t actually go to court.”

  “We were close enough,” Dyson mutters as the door opens.

  “Hell, I’d rather give it to you than to him.”

  I thank him, and go back inside to work on Dade’s case. What is this world coming to?

  Monday morning the Fayetteville media circus begins early. Dade is not even out of the Blazer when a college age kid with three cameras around his neck spots us and begins snapping pictures. Out on the sidewalk in front of the courthouse there is a small contingent of demonstrators carrying signs: stop the violence, justice for women, and of course, women against rape. It must be twenty degrees, but there are five or six girls bundled up in brightly colored ski jackets, knit caps, mittens, and earmuffs and looking miserable. I recognize Paula Crawford and wonder how Sarah will feel when she shows up.

  Paula and I never had our lunch. Since the dorms aren’t open, Sarah has spent the night with a friend from Fayetteville and will be arriving later. Two reporters shove microphones in Lucy’s face, but as I have instructed, we smile and keep walking.

  “Is it true that Dade turned down a deal?” the beautiful green-eyed reporter from Channel 5 asks. Like a zombie, I give her a frozen grin, not even bothering with “no comment.”

  Inside the second-floor courtroom, I shake hands with Binkie, who squints hard at Dade as if to say that he has had his chance at mercy. Without a word, he turns his back and sits down next to his assistant Mike Cash, who, I suspect, will be seen but not heard today. I notice that Binkie is wearing a new suit, too. Though it can’t make him look handsome (his rawboned face precludes anyone but his mother from regarding him that charitably), the nice fit of the light blue herringbone worsted wool, padded in the shoulders, fills him out and gives him less of an angular, hillbilly look. Like myself, someone has taken a look at Binkie’s courtroom apparel and said it was time to dial 911 and ask for an emergency department store run. Judging by his demeanor, I have the feeling that by not forcing my client to take the deal he offered, I have lost some respect in his eyes. Yet, there is nothing I can do about it now.

  After I have seated Dade and organized my files around me on the table (I have revised my opening statement five times in the last two days and have it outlined in a yellow legal pad on top of the stack to my right), I watch spectators being admitted into the courtroom and try to rein in what I hope is a temporary panic attack. The glittering, expectant expressions on the faces of some of the doddering old men suggest they are hoping for a blood bath. Yet, these are probably the regulars who have seen every trial for the last twenty years. I smile uneasily at Dade, who seems to be holding his breath. He is looking at his mother. Lucy, to my dismay, has dressed in black as if she were attending Dade’s funeral. Her dress, plain and unadorned by jewelry, emphasizes her light skin. Is she thinking about what it will be like to visit her son in the hellhole that is Cummins prison? Last night at the restaurant at the Holiday Inn (Dade’s choice), she was unusually quiet, as if she had already resigned her self to a bad outcome. Prom the defense viewpoint, a criminal trial is like surgery on a high-risk patient. Denial becomes difficult when the patient has been propped and the cutting is about to begin.

  At the door I see the Perrys, who are clutching hands like three children lost in the woods. Despite Blanche Perry’s bravura performance at their home in Texarkana, they don’t want to be in a Fayetteville courtroom any more than we do. This morning Blanche Perry is nothing but a frightened parent, just as I would be if the situation were reversed. Her eyes flutter rapidly as her husband whispers in her ear. In the name of justice, her daughter is about to undergo one of the most wrenching experiences humanity has devised. If the jury finds Dade innocent, Robin faces a lifetime of humiliation. I marvel at my willingness to add to it. I was itching to call Joe Hofstra at this trial. Not for the first time in my career, I realize the job of defense attorney is too much of a game for me.

  I’ll walk away from this courtroom thinking I’ve won or lost. The Perrys may leave here feeling their daughter has been stripped of all her dignity. No wonder they were willing to capitulate and settle for something far less than they think justice demands. Maybe they know something I don’t. I wonder if even now it is not too late to accept Binkie’s offer. If their expressions are any guide, the Per rys would go for it. Robin, who will be leaving the court room after the witnesses are sworn in, has an ethereal Alice-in-Wonderland quality about her. Her breasts have been made to disappear under a simple white wool dress that extends from her throat to the floor, and her blond hair is in bangs. The word “virginal” doesn’t do her jusdee. This girl, I must remember, takes communication seriously, and she will be telling the jury she couldn’t act sexually aggressive if she were given lessons every day for a year. Not one word will be spoken about this past summer’s torrid affair. Ladies and gentlemen, this young woman is not what she seems. Just ask her professor. If only I could. Yet, even as I think of it, the sleaziness of such a tactic finally hits me. Sarah could have been seduced by Beekman. If she were, would that automatically make her less credible if she got raped later by another man? Obviously not. Though it makes my job more difficult, I finally admit to myself that it was only justice that I lost the motion to introduce into evidence Robin’s past sexual conduct.

  Before we begin the process of selecting the men and women who will decide this case, I look over my proposed instructions, which the judge will read to the jury before closing arguments. Arkansas rape law, from my research, seems to be typical of other jurisdictions.

  “Penetration however slight…” is sufficient to show the act occurred; proof of a threat to the victim satisfies the statutory definition of “forcible compulsion.” This case, like almost every criminal case I’ve ever tried, will turn on the facts, not legal arguments.

  A jury is seated quickly, probably too quickly, since Binkie knows the jury panel and I don’t. We end up with only one African-American, the wife of an assistant professor in the music department. Maria Chastain, age thirty, with two children who are at home during the Christmas vacation with her husband, appears intelligent and thoroughly delighted to get out of the house. The rest of the panel is a mixed bag that includes three retirees, two people who own their own businesses, one professor from the university, a claims adjuster, two schoolteachers, a civil engineer, and an unemployed waitress. By Blackwell County standards this is a well-educated jury, but I’d prefer them to be more shrewd than smart. Curiously only one, a retired executive who worked for Tyson’s, has admitted to being a hardcore fanatic Razorback supporter (though in answer to my question, four of the six men and three of the women raised their hands to signify they knew the last time the Hogs had played in a bowl game). Binkie used most of his peremptory strikes to exclude any male under thirty; I systematically knocked off women who seemed a little too knowledge able about WAR and the women’s movement. Naturally, none of them would admit she couldn’t be fair to an individual accused of rape, thus denying me the opportunity to exclude them for cause.

  By eleven o’clock we are ready for opening statements. As fast as this case is going, we could be through tonight. In four long strides Binkie places himself in front of the jury rail and slowly scans the twelve men and women who will decide Dade’s fate. He folds his arms across his chest and studies the floor as he begins modestly “Ladies and gentlemen, I’ve never sat on a jury, and frankly I’ve always wondered how I would discharge this truly awesome responsibility, because in this kind of case, there has got to be a temptation to come to the conclusion that it’s just too hard to decide who to believe. I hope as we listen to each witness, you’ll all fight against that. In this part, the opening statement, I’m bound by the rules not to argue that Robin Perry was raped by Dade Cunningham, and so is Mr. Page when he has his turn.

  All we can say right now is what we expect ea
ch witness will say. Later, Judge Franklin will, in his formal jury instructions tell you the elements of rape, but in the end you twelve women and men will have to decide who is telling the truth and who isn’t….”

  I watch helplessly as some of the jury already begin to nod in agreement. From our questions to them in voir dire, some of them surely have already guessed from Binkie’s questions that there is no physical evidence in the case, and now he is stealing the lines I had planned to deliver. But what else can either of us say? All he can do is ask them to place their faith in the word of a twenty year-old girl, and as he takes them through the expected testimony of his witnesses, ending with Robin’s, I try in vain to think of how to use Binkie’s words about belief to my advantage.

  When my turn comes, I leave my notes on top of the table, forcing myself to rely on my memory. I have a bad habit of fumbling around and reading too much if I don’t.

  I walk to a spot a foot in front of the lectern so I won’t be tempted to hang onto it while I speak. Clan has told me that on occasion I look more like a lizard hanging on a rock than an advocate for a client while I’m addressing the jury. I take a deep breath to still the bad case of nerves I developed during Binkie’s straightforward recitation of what he expected Robin to say. Beside me, Dade remained motionless for the most part but began to blink rapidly during Binkie’s description of the actual moment of intercourse. Too many moments like that and we can start worrying about the length of the sentence.

  “Mr.

  Cross began his opening statement by rather eloquently imploring you to do your duty in this case and come to a conclusion, witness by witness, whether that person was telling the truth. Ladies and gentlemen, I think it is within the rules that I can tell you Judge Franklin will instruct you, in fancier words, that you weren’t expected to check your brains at the door. Nor is anybody asking you to have a religious experience and decide this case on faith.

  Dade Cunningham will swear to you he didn’t force Robin Perry to have sex that October night, and Robin Perry will swear that he did, but in many respects their testimony will be identical. As I go through what I expect the witnesses to tell you, ask yourselves whose version of the events makes the most sense before you bite the bullet and decide who’s telling the truth and who’s not….”