by Rene Fomby
He checked his watch. It was almost eight thirty, and people had started to shuffle into the courtroom, lawyers and their clients hoping to squeeze something in this morning before the judge got started with the main event. The DA’s desk was still empty, as was the jury box just beyond. A box that would stay empty today.
At a quarter till, ADA Lewis finally made her appearance, scowling at him briefly as she spread her trial notes across her desk. “You’re sure not doing me any favors with the boss, taking this to trial,” she complained.
Harry smiled back sweetly. “Ms. Lewis, with all due sincerity, let me assure you that I don’t really give a rat’s ass about either you or your boss.”
“Well, that’s an attitude that’ll get you into all kinds of trouble around here,” she shot back. “Just see what it buys you when you come sniffing around upstairs asking for favors.”
Harry studied her for a brief moment, sizing her up. “Ma’am, I may be just a baby lawyer, but the last ADA I went up against wound up getting her little butt fired. And the judge in that case is now sitting in federal prison. So I assure you, I have absolutely no interest in ever asking you for a favor. Quite the opposite, actually. In fact, I’ll offer you a favor right now. Hand me a dismissal in this case and I won’t give you the courtroom spanking of your entire professional life today. Deal?”
Harry could see her jaw clench at that, exactly the reaction he was looking for. Make her mad, and she’ll respond by getting more aggressive. Enough so that she’ll be focused on the winning and not the thinking, on trying to beat him instead of making sure he didn’t win. Too much offense can sometimes be very hard on the defense.
“Kiss my ass, Crawford,” she growled, turning away and focusing on restraightening her assorted piles of notes.
Just then Judge Henry entered the courtroom. “All rise!” the bailiff called out as the judge motioned with her hands for everyone to remain seated. “The 180th District Court is now in session, Judge Maureen Henry presiding,” the bailiff announced.
The court clerk handed the judge a stack of documents as she sat down. Scanning them quickly, she looked up and saw that Harry and his opponent were already in place. “Mr. Crawford, Ms. Lewis, everything still on for our trial today?” she asked.
“Defense stands ready,” Harry announced.
“State is ready,” Lewis responded.
“Okay, then, Ms. Lewis, do you mind if I inquire as to where Ms. Clark is this morning? Your victim?” the judge asked, indicating the empty seat beside the ADA.
“She’s here, your honor, sitting with her father until we get started.” She turned and pointed. “She’s still a little—fragile—about everything that happened.”
“Very well, then. It looks like I have a few small things to get out of the way this morning, and then we’ll begin.” She nodded in Harry’s direction. “Mr. Crawford, we’ll bring your client in when the courtroom’s cleared out a little. I trust you’ve had an opportunity to meet with him this morning?”
“I have, your honor,” he answered. “And my client speaks next to no English, so we have an interpreter present to help out with all that.”
“Excellent. Glad to see you’re on top of things. Well, my guess is we’ll be starting up in about thirty minutes. If either of you has something pressing you need to take care of, you’re free to leave. Just be back here by nine thirty sharp.”
“Thank you, your honor,” Harry said, and with a short nod toward Lewis, grabbed his briefcase and headed toward the back of the courtroom.
※
Lewis’ opening statement was pure boilerplate, which probably helped her, Harry thought, because her case totally sucked pond water. Gina Clark sat quietly beside her, hands in her lap, staring straight ahead throughout the entire speech. A speech that seemed to drag on and on, never really drawing any blood.
When it came his turn, then, Harry decided to keep it brief. Unlike jury arguments, he knew that opening and closing statements before judges should be kept tight and to the point. The emotional appeals and other tricks that worked so well with jurors often had the opposite effect on judges, who had quite literally seen it all. A thousand times over.
He stood to the right of his desk, his left hand barely touching it. Unlike Lewis, he would do this all on the fly, with no notes. Even with all the fluttering going on in his stomach. To his far left, the interpreter was seated next to Alfredo, ready to echo his every word in Spanish. “May it please the court. Counselor.”
He nodded off to his right, in the direction of ADA Lewis, without ever looking her way.
“Your honor, this case boils down to one fact, and one fact only. My. Client. Didn’t. Do it.
“Now, I know that’s what you’d expect me to say. That’s what they all say, you’re thinking. But here’s the thing. As you listen to all of the witnesses in this trial, and as you wade through all of the evidence, ask yourself this: why does all of the physical evidence in this case say one thing, while Gina Clark, sweet little innocent Gina Clark, says something completely different?”
He paused to pick up a stack of papers, which he hefted in his left hand. “Usually, your honor, cases like this come down to he said, she said. A boy and a girl, all alone, so only the two of them know what really happened that day. In solving those cases, without any way to know just who exactly is telling the truth, it all comes down to credibility. And sometimes, just sometimes, it comes down to a difference in perspective. He thought she was saying yes, while she thought she was saying no. All while neither of them was actually saying anything at all. That’s what makes sexual assault one of the trickiest types of cases to try. Without any physical evidence proving what really happened, we’re all just left guessing about the whole thing. And hoping we guessed right.”
Harry paused for dramatic effect, letting his words hang in the still courtroom air. “But today, we don’t need to worry about what he said. And we don’t even need to worry about what she said. Because, as you’ll soon see, their two voices are raised together, perfectly in chorus. They both agree.”
He waved the papers in his hand slightly, drawing the judge’s attention to them. “And then we have the other voice speaking to us in this room. The actual physical evidence. Like I said, very rare in these kinds of cases. But when you have it, when the actual physical evidence is abundantly clear as to what happened that day—or, more to the point, what did not happen—well, then, we don’t really need to listen to anyone else. The proof is in the pudding, as they say. And when that pudding is spooned out and handed around today for everyone to have a taste, well, then, you’ll come to same conclusion that we have. The only conclusion that’s consistent with the facts in this case, the only conclusion that makes any sense at all. Alfredo Herrera, my client here. Alfredo Herrera. Didn’t. Do It.” He set the papers back down on the desk and returned to his seat. “Thank you, your honor.”
※
Lewis opted to call the investigating officer first, who Harry didn’t even bother crossing. And then Gina Clark’s father, who testified about all of the events of the day that he had been part of—taking her to the orthodontist, dropping her off at the mall, picking her up late in the day and driving her to the church, then the panicked trip to the hospital for the rape test. Clark was dressed in what probably was his Sunday best, black trousers and a shirt that at one point had been sparkling white, and now had permanent sweat stains lining the collar and armpits, darkened slightly from years of use.
“And when you found out what had happened, how did that make you feel?” Lewis asked.
Harry flew out of his chair. “Objection, your honor! Relevancy!”
Lewis spread her hands and smiled at the judge. “It goes to the damage that this man,” pointing to Alfredo Herrera, “did to an innocent, fifteen-year-old girl. It goes to what he took from her in those few brief moments, in the back seat of his car.”
Judge Henry looked bored. “I’ll allow it.
Overruled.” In practice, judges rarely sustained an objection during bench trials. Unlike impressionable jurors, they reasoned, they were especially well suited for sorting out the truth from the lies, and largely immune to the various ways attorneys tried to nuance that truth. And to some degree that was right. But only to some degree.
Lewis turned back to face Thomas Clark. “Again, Mr. Clark, how did that make you feel?”
Clark had his head in his hands, rubbing at his face. “It made me feel like I had failed her. That I had failed to do what every daddy is supposed to do for his little girl. Protect her. And that’s a pain I carry with me to this very day.”
“And your daughter,” Lewis asked softly. “How did she take it? What was the aftermath of that brutal, vicious assault on her?”
“It was hard. Very hard. She pulled back inside of herself. Stopped confiding in things to me, became withdrawn, secretive. It’s hard, you know, raising a daughter by yourself, without a mother. But when Naomi died, I didn’t really have a choice, did I?” He looked up, and turned his gaze on his daughter. “I tried to be there for her, but it wasn’t easy, you know? Making a living, keeping things running around the house, making sure I got her off to school and got her fed in the morning and at night. Things a man never should have to face. Woman things, you know? And when she stopped talking to me, sat off on her own little island, hiding out alone in her room, I didn’t know how to reach her. So when that bastard—”
The judge leaned over to gently admonish him. She could understand the depths of his feelings right now, but proper order still needed to be maintained. “Mr. Clark, I’ll remind you you’re in my courtroom—”
“Yes, your honor,” he stammered. “Sorry. I’m just so—well, sorry, it won’t happen again.”
Lewis gave him a moment to compose himself, then started back in. “Mr. Clark, you were telling us that your daughter acted isolated, withdrawn. How long did that go on?”
“Even to this day, ma’am. Though she seemed to be getting better, up until we got that phone call. The call from you, saying you’d caught the guy. Then she fell apart all over again. It was like she couldn’t stand to face him again, even after all this time. That’s how deep her wound goes, I guess. Something you can’t ever fix, no matter how hard you try.”
Clark’s eyes had watered up, so Lewis stepped up to the witness stand with a box of tissues, which he gratefully accepted. She hesitated, then seemed to decide that this was a great moment to drop the witness straight into the lap of her newbie opponent. She waved her hand to the side as she stepped briskly back to her desk. “Pass the witness, your honor,” she said in what she hoped was her softest, most compassionate voice.
Harry stared at his notes, plotting out how exactly to move forward. With a jury, he might be tempted to go easy on the old man, given the emotions that had now settled over the courtroom. But as he looked up into the eyes of the judge, looking for any sympathy, all he saw was impatience.
“Mr. Crawford? Cross?” she finally said, pressing him to get on with it.
“Yes, your honor.” Harry returned to his usual spot, standing in the center of the courtroom, his left-hand fingers barely brushing the side of his desk. He stared at the crusty-looking old man sitting up on the witness stand, still struggling with how to proceed. “Mr. Clark, all of this happened well over twelve years ago.”
“Yes, sir. Twelve years, four months and twenty-one days,” he answered quickly, an answer Harry knew had been well rehearsed.
“Right, like I said, twelve years ago.” Harry locked eyes with the father, hoping he was sending a clear signal that he wouldn’t tolerate any more dancing around during his cross. But knowing that he still probably needed to get in a few good licks to the side of this guy’s head before he finally stopped trying to fight. “And you weren’t personally there when the sexual assault allegedly occurred.”
“No, and if I had been, I’d a killed the guy before he ever laid one hand on my girl.” Clark looked up at the judge. “That’s just a figure a speech, your honor. I wouldn’t a actually killed him. But you know what I mean.”
“Yes, Mr. Clark,” she replied. “But I’ll remind you, you’re here testifying under oath, so please try to control yourself a little better moving forward.”
“Yes, your honor,” he promised, turning back to face Harry.
“Okay, Mr. Clark, as we were saying, you weren’t actually present at any time when your daughter and Mr. Herrera were together at the mall.”
“That’s right,” Clark agreed, reluctantly. “But I didn’t have to be there to know what had happened. As a father, I could see it on her face the moment I picked her up that something was wrong. And then when she asked me to take her to the church to see her youth minister, I knew for sure something bad had happened.”
“Did you ask her about it?” Harry asked, going for the setup, the doodle-bug cross Sam had taught him.
“No, but I learned about it later, after she had talked to the priest at the church. When they told me she’d been raped, and that I needed to take her straight away to the hospital.”
“Did she ever talk to you about what happened? Did she ever share any of the details about what happened between her and my client at the mall?”
“No,” Clark drawled, shaking his head slowly. “That ain’t the kind of conversation a man has with his daughter. A man ain’t supposed to get into sex-ial details with his daughter. That just ain’t right.”
“Yeah, I understand you.” Harry reached over to check a box on his notepad. Now it was time to close the trap. “So, she never actually talked to you about any of that. Did she at least share with you the medical reports from the hospital, or what she said to the police later on that week?”
“No, she didn’t need to.” Clark was beginning to fidget a little on the stand. “Alls I needed to know was that she was raped. That’s a way lots more than any father ever wants to hear from his little girl. A way lots more.”
“Gotcha.” Harry leaned over and picked up a pile of medical records, the results from the medical examination that night at the hospital. “And you say you went straight from the mall to the church. And from there, straight from the church to the hospital, right?”
“That’s correct.”
“And you’re sure you didn’t go anywhere else in between. Didn’t stop off at home, for instance, to let her get cleaned up a bit?”
Clark gave him an indignant look. “No, like I said already, I took her directly to see her youth minister, and then straight to the hospital.”
“And when you dropped her off at the mall that morning, after she’d had her braces removed, did you know what she was wearing?”
Clark thought back, all the while wondering where this shifty lawyer was going with all this. “Seem to recall, she had on jeans, and some kinda pull-over top.”
“No, Mr. Clark, I’m sorry. Maybe I asked that wrong.” Harry made a point of looking down at the medical records. “I meant, what she had on under those clothes. As the hospital reported, ‘pink lace bikini panties and a pink Victoria’s Secret bra.’ Did you know about that?”
Lewis was instantly on her feet. “Objection, your honor! What does her underwear have to do with any of this?”
The judge leaned forward slightly. “I assume, Ms. Lewis, you’re objecting to relevance. Mr. Crawford, can you explain what relevance her underwear has to this case?”
“Just getting to it, your honor,” Harry replied. “Mr. Clark, did you know she was wearing that kind of underwear? Did you buy that for her?”
The judge eased back, seemingly forgetting about the objection, and Clark shot a quick and wary glance at his daughter. “No, no,” he stammered. “I would never. Not for a young girl.”
“So she just had her braces off, feeling pretty for the first time in years. And then she puts on her sexiest underwear and heads for the mall, where she winds up in a heavy make out session with a boy she’d n
ever met before. A boy who didn’t even speak English. Is that about it?”
Clark nodded, just barely, looking confused. Lewis was squirming in her seat, acting for all the world like she was trying to come up with a way to object to all this, but failing. Harry checked off another box on his notepad. “And when you picked her up that evening, you said she looked a bit unsettled. How did the rest of her look? Was her hair mussed up a bit? Was her clothing a little awry?”
“Well, yes,” Clark agreed. “I mean, she’d just been raped, fer God’s sake. What would you expect her to look like?”
“And yet you said nothing to her about how she appeared. You didn’t comment at all on how she looked when she got in your car.”
“Like I said, I didn’t need to. I could tell at a glance something was wrong, soon as she got in the car. That morning, she’d been all bubbly about losing her braces. Now she was all pulled back, not wanting to talk. She just sat there, silent, as we drove toward the house. Then she suddenly announced she wanted me to take her to the church.”
“That’s St. Theresa Catholic Church, down off Interstate 35.” Harry suggested.
That’s right.”
“Okay, sir, let’s get back to those medical records we talked about. You say you’ve never seen them. Never talked to anyone about what’s on them.”
Clark hesitated for a second, glancing over at Lewis for support, but she was staring off into the distance, a stony look on her face. “No, that’s right,” he finally answered. “Don’t know what’s on ‘em. Don’t really need to see ‘em. I already know what happened.”
Harry smiled, enjoying the moment before he finally pounced, finally closed the doodlebug. “So I guess that means that you don’t know that the doctors found absolutely no evidence of any sexual assault. No evidence of sexual activity of any kind, in fact.” He watched as Clark’s eyes darted toward his daughter, who was now looking down at her hands, hands that were buried in her lap.
