Question of Consent: A Novel

by Seymour Wishman

  “Why?”

  “I suppose it was because she has no reason to lie.”

  “Do you believe her?”

  “Yes.”

  “Why her and not me?”

  “I never said I didn’t believe you.”

  “You tried to make a liar out of me in front of the jury.”

  “Testing your credibility, it’s called.”

  “Why didn’t she come forward before?”

  “She was frightened. She probably thought he’d be convicted without her having to go through the ordeal of a trial.”

  “I can sympathize with that.”

  “The prosecutor told me he wouldn’t fight a relatively low bail,” I said.

  “Why not?”

  “He probably feels guilty he wasn’t able to convict Betz.”

  Lisa stood and walked toward me. She came face-to-face with me, inches away. Her face was still wet with the sweat from her rehearsal. Her hair was disheveled.

  “And you? How do you feel?” Lisa asked.

  “I feel no guilt.”

  “Why not?”

  “I was just doing my job,” I said.

  “What about now? Will you do your job for me?”

  I stared at her.

  “Let me show you something that might convince you,” she said.

  I stood amazed as Lisa pulled off her leotard from one shoulder, and then the other. She pulled it down to her waist, uncovering smooth, beautiful breasts. She continued pulling the leotard down to her hips. I saw that she had terrible scratches running down her stomach.

  “Where did you get those scars?” I asked.

  “That’s where your client scratched me when he ripped off my blouse.”

  “Why didn’t you tell me about that before?”

  “I was going to tell you.”

  “We’ll have to get photographs. This will be crucial at the trial.”

  “Then you’ll represent me?”

  I hesitated for a moment.

  “Counselor, I’ve put a question to you,” she said.

  “I know.”

  “I direct you to answer the question.”

  “Let me think about it,” I said.

  She was beautiful. She reached over and flipped off the switch to the lights. A light from the bathroom threw enough illumination for me to see her silhouette. She stepped closer to me, and reached out gracefully and began stroking the side of my face.

  I finally responded by kissing her, at first gently, then more aggressively. She pulled back from me playfully, then came closer to me, teasing me, and then pulled back again. I stepped toward her. She backed up. I advanced. It was almost like a dance, in which she was leading me over to the couch, where we finally embraced. We kissed passionately, deeply, intensely. I eased her down onto the couch. And there we made love.

  Chapter 12

  WHEN I LEFT LISA in her dressing room, I got my car out of the garage near the theater and went for a ride. I didn’t have any destination, I just wanted to calm down for a while. I headed downtown, and without really planning any route found myself in the Holland Tunnel, and then I was on the Pulaski Skyway, heading toward Newark.

  Lisa was the first client I’d ever had sex with. I knew it wasn’t such an unusual event for a lawyer; Norman had boasted of his many conquests. It was unethical, but that wasn’t the reason I’d not done it before. I simply hadn’t cheated on Jenny through all the years we had been together. And I would have resisted Lisa today if Jenny hadn’t walked out on me. There—now I felt I had yet another grievance against Jenny. “It was her fault I made love to Lisa,” I said out loud in the car, knowing full well that my accusation was preposterous.

  Lisa was some beautiful piece of work. I knew deep in my bones that getting involved with her was a mistake. I felt I was losing control, and that scared me a lot. It also thrilled me. I was sure that at some point down the road, I was going to regret taking her case on… and taking her on.

  I stopped my car in front of a three-story brick apartment house. I hadn’t been there in almost thirty years. Across the street was a solid brick wall that was the back of a movie theater. I noticed the faint brown outline of a rectangle—the two-by-three-foot strike zone we’d created for our stickball games when I was a kid. My mother used to watch me from the second-floor kitchen window.

  I looked at the window, but it was dark inside. From the time I was about eight years old until I was about fourteen, I would periodically give my mother a home permanent in that kitchen—a “Toni,” it was called. She would sit at the kitchen table and I would roll her hair up in curlers. I would wrap a small, very thin piece of paper around each curler, then slip a bobby pin into it. Then I would dab a vile-smelling liquid on the curled-up hair. I had never smelled the odor of that liquid before those permanents and never have since. My mother was always very appreciative of my helping her. “Such a good boy,” she would always say. I now missed the smell of the Toni.

  Later that evening, sometime after nine, I arrived at my house. When I wasn’t on trial, I usually got home before Molly went to sleep at about seven, but I hadn’t been paying attention to the time.

  As I entered the hall, I noticed a light on in the living room. Jenny was seated on the sofa, reading. Almost every day of the week, Jenny spent time with Molly when she came home from school, but she usually left for her new apartment before I got home. I didn’t expect her to be at the house now. She looked up from her book.

  “Hi, Michael,” Jenny said. “I let Judith go to a movie and put Molly to bed myself.”

  I took off my jacket and threw it over a chair.

  “I didn’t expect you back so late,” she said. “We could have had dinner.”

  I walked toward her.

  “Is there something wrong? I thought you’d be pleasantly surprised to see me.”

  I grabbed her hand, pulling her up onto her feet; her book fell to the floor.

  “Well, hello,” she said.

  I held both her hands behind her back as I pressed my body up against her.

  “What are you doing, Michael?” Jenny asked, trying to resist.

  I tried to kiss her, but she squirmed away. I held her tight. She stopped squirming and stared at me. This time she let me kiss her, and I kissed her passionately.

  “Michael, stop,” Jenny said.

  I led her over to the sofa. She became responsive. I unbuttoned her blouse, fumbling, almost ripping it off her shoulders. I unsnapped her bra.

  “It’s been so long,” Jenny said.

  I lifted up her skirt and pulled off her panties. I hurriedly undid my pants. And then I feverishly made love to her.

  We remained on the sofa together after we had made love. I lay on my back, staring at the ceiling.

  “I remember now how sometimes when we made love, I thought you were so angry,” Jenny said.

  I pulled up my pants and refastened my belt, then lay down on the sofa beside her again.

  “We had so many wonderful times in bed, didn’t we?” she asked, sitting up to fasten her bra and button her blouse.

  “Yes,” I said as I lit a cigarette and took a drag. “Wonderful times.”

  “Particularly after a trial,” she said with a sly smile, lying back down beside me.

  “Right. I was a regular hunter home from the hunt.” I regretted immediately sounding sarcastic. “Jenny,” I said.

  “Yes?”

  “I’m tired of feeling like such an outsider.”

  “Maybe you’ve been ‘the killer in the courtroom’ too long.”

  “I think so. Yes,” I said.

  “I… I’ve got to go,” Jenny said. She stood up, tucked in her blouse, and straightened out her skirt.

  I watched her putting on her panties.

  “Will you walk me to the car?” she asked.

  “Sure.”

  We headed toward the door.

  “I feel a little shaky,” she said. “This is the first time I’ve made love in a year.
Not just with you—with anybody.”

  I nodded.

  “Michael, this doesn’t change anything, you know.”

  “I know.” I paused a moment. “I tried to call you this afternoon,” I said. “Bear died.”

  “I’m sorry, Michael.”

  As we reached her car, Jenny turned to me. “Is that why you made love to me, Michael? Because Bear died?”

  “Of course not,” I said.

  After I watched Jenny drive away, I went upstairs. As I headed down the hallway toward my bedroom, I stopped at the door to Molly’s bedroom.

  I opened the door and entered quietly. I walked over to the bed and studied my daughter as she slept deeply and innocently. She was on her back, with her arms outstretched above her head. The bed looked way too big for her.

  I bent down and placed my finger in her opened hand. She didn’t awaken, but she grasped my finger and held it tight. I felt deep love for her. Molly was the only person in the world whom I loved without complication or reservation.

  After a moment I pulled my finger out. I tucked the blanket in under the mattress, then leaned over and kissed her forehead. She opened her eyes.

  “I’m sorry, Pumpkin. I didn’t mean to wake you up,” I said.

  “That’s all right,” she said.

  “You go back to sleep.”

  “Are you okay, Daddy?”

  “I’m fine, sweetheart. I love you.”

  “Is that still all that matters?”

  “You bet it is.”

  “Good.” She rolled over and was asleep instantly.

  I pushed back the fine hair beside her temples and kissed her forehead again. I watched her for another moment and then left.

  Chapter 13

  THE CONNECTICUT COUNTRYSIDE WAS lovely, gray and solemn. The only sounds were the wind and the creaking of the bare branches of bending trees. It was November, but as cold as winter, cold but with no snow. In the distance the rolling hills were in varying shades of dark brown and purple.

  The grave site was on a knoll surrounded, as with a collar, by a low stone wall. The last rusty beams of sun bounced off a pond, small and frozen, about fifty yards away. The gray trees looked as if their color had been sucked from them by the cold earth. Their small branches, bare of leaves, were like spikes scratching the brutal wind as it passed.

  The men wore dark suits and overcoats; the women were in fur coats and high heels. Jenny, Charles and Eleanor, Stan and Pebble, John Phalen, Cheryl Hazelton, and Judges Bennett, Taylor, and Fazio were part of the cluster of about twenty people gathered around the open grave.

  The earth was hard, and the coldness seeped through my shoes and up through the bones of my body. I was standing at the edge of the grave, next to Bear’s family: his wife, Margaret, who had always treated me like a son, and their two daughters, both of whom were older than I and whom I hardly knew.

  The priest had already spoken for a few minutes, and the casket had been lowered. I looked down for a moment. We had been to the church first, and the service at the grave was supposed to be brief. I felt very self-conscious speaking at a Catholic service, but Margaret had asked me to say a few words, and I couldn’t refuse her. I had always felt like an outsider, and it seemed particularly preposterous for me to be involved in this moment—preposterous on every level except for the fact that I had loved Bear as a father.

  “Lloyd Singer, whom most of us knew as ‘Bear,’ hated sentimentality,” I finally said as I began the eulogy. “He would have been pleased to use such an occasion to talk about what he cared about most: justice. Twenty-five years on the bench. He suffered so much at the end. That hardly seemed like justice.”

  I looked away. That wasn’t at all the way I had wanted to begin.

  Once, in my eagerness to understand how Bear’s religious beliefs supported his commitment to what he did on the bench, I had gladly accepted his invitation to attend a Jesuit retreat. During the prayer services I had watched him speak to his God with deep devotion, and I learned that he attended church every morning. Up to that point, which was near the end of my year of clerking, I’d had no idea that he was so religious. When I had asked him if he felt his commitment to love and forgiveness created any personal conflict with his work as a judge, he said he had no difficulty reconciling his religious and professional lives. He believed he was doing important work in trying to balance society’s interest in deterring criminal behavior with its commitment to protect the rights of those accused of a crime. I had always felt it was a pity I didn’t have his religious convictions.

  “Many of us in the course of a day make decisions of consequence,” I started again, “but society has given to a few the right to decide matters affecting the lives and sometimes even the deaths of strangers. People very much like the rest of us exercise this astonishing and terrible power when they serve as judges. By agonizing over their decisions—or by avoiding or repressing such agony—judges develop a special way of looking at the world, at the value of life, and at the significance of death.

  “Judges are, of course, engaged in issues of justice and process, but I’m talking here about human beings who are making awful, fateful decisions about other human beings, and the effect such responsibility has on the people who exercise it—an effect that is sometimes corrosive, sometimes humbling, and sometimes ennobling.

  “Bear lived his life with integrity, not only by scrupulously following legal ethics, but also by his own moral compass—somehow finding a way to reconcile the two. That’s not always easy. To act honorably, with self-respect. That was the way he managed to live his life. He was honest with his family—his wife, to whom he was faithful for over thirty-five years, and his two children, whom he cherished. He knew that the sum worth of our lives was defined by the way we choose to spend our days, our moments… Integrity…”

  I turned to Jenny, who was standing a few feet from me. “His work as a judge confronted him daily with the worst behavior of humanity. To remain committed to improving the human condition in the face of so much evidence of bestiality, without allowing that constant exposure to turn you into an embittered or unfeeling human being—the risk is not simply burnout,” I said. I was looking at Jenny more than at any of the other people present, but I was speaking more to myself than to anyone else. “That would trivialize the real conflict. It’s reconciling larger principles, like commitment to a justice system, with more personal moral convictions about the need to take responsibility for the consequences of one’s own actions in a particular case.”

  I knew that most people around the grave of my friend wouldn’t understand what I was talking about.

  “Some criminal lawyers,” I said, “like some of their clients, want to be above the law. They look for any slack in the legal rope attempting to bind their clients. To such lawyers, what counts is their performance, what they can get away with. At their core, these lawyers think the system is a fraud; they believe that their job is to deceive. Success for them is all sleight of hand. They interpret a jury’s guilty verdict as evidence that they have been exposed as charlatans. When they lose, they see themselves as foolish dandies, inflated with self-importance and bravado, posturing with boutonnieres in their lapels and bright handkerchiefs in their breast pockets. Sometimes I have seen myself like this; Bear, never.

  “Bear was my friend,” I pushed on. “When he presided in a courtroom, he commanded respect and attention from everyone present. Sure he could be tough, but his control over a courtroom was the envy of every judge in the courthouse. A frown from him could bring a crowd to silence without his even uttering a word. If he ever had to raise his voice or bang his gavel, it was always clear to anyone who knew him that there was nothing personal in his behavior.

  “Knowing that he was around, available for advice and reassurance, was a source of emotional support and strength. It’s hard to imagine him not being there for me anymore. I loved him dearly. And I will miss him very much…. Many of us start out with lofty ideals, but s
omehow, along the way, the harshness of life and our chosen profession, the large and small cruelties, brutalize us. There is a nobility in holding on to ideals over a lifetime. … It’s so hard…”

  I again looked over at Jenny. My tears flowed not just from the loss of my mentor, but also from the realization that I had strayed so far from the ideals with which I had begun my career… and my marriage.

  Jenny nodded toward me, almost imperceptibly, as if to say she understood.

  After the service was over, I walked toward Jenny, but several people from the courthouse stopped me along the way. I shook hands with the judges. Judge Bennett reminded me that he and Bear had been roommates in law school, and that Bear had often spoken to him of me. Bennett told me that if I ever wanted to reminisce about Bear, we should get together. Cheryl Hazelton told me that she understood my loss, and hugged me briefly. I saw John Phalen and walked over to him.

  “That was a fine eulogy, Michael,” John said. “I know you’ll miss the guy.”

  “Thank you.” I signaled to Jenny that I would be with her in a moment.

  On the way to the funeral, I had come to a decision about the case of the father accused of killing his two-year-old daughter. I assumed he was guilty. If I tried to help him, it would be out of habit or instinct, in the same way I might try to keep a vicious dog from being shot. But even if a vicious dog should not be shot, it should perhaps be restrained, I had decided. This potential new client had become a symbol to me of all the other clients I had represented over the years whom I’d hated without ever being able to admit it to myself.

  For years, for all my career as a criminal lawyer, I would have represented him because it was my job as a lawyer to do so: “Someone has to represent him”… “Everyone is entitled to the best defense”… and the rest of the cant I had so often heard myself repeat.

  When the public defender’s office had called me about this case, I hadn’t expected the assignment to trouble me. If I found a case or client so upsetting that my ability to function was impaired, I was permitted by legal ethics to withdraw—in fact, I was required to withdraw. But I knew that I could function as a good lawyer for Williams. I simply didn’t want to represent him. But that hardly seemed a professional reason for quitting the case.