by D. W. Buffa
“Good. Now, Alethia – that’s a very pretty name. Is it common where you come from? Do many other girls have that name as well?”
“No.”
That was all she said; no explanation, no discussion of where the name came from or what, if anything, it meant.
“No? I suppose if you have a name that pretty it’s even nicer if you’re the only one to have it.”
The girl sat on the very edge of the witness chair, her legs held close together and to the side, her hands folded delicately in her lap. Her eyes, as Darnell noticed, seemed to change color with the light. At first he had thought they were blue, or rather a bluish green, but now they seemed a color he had not seen before, yellow, almost gold.
“Now, Alethia,” Clark continued, doing what she could to ingratiate herself, to let the girl know that she was on her side. “I know this is painful, but would you please tell the jury what happened, how you were raped?”
The girl had no idea what she was talking about. The word meant nothing.
“I understand; you still have problems with the language. By raped, I mean when he forced himself on you, had intercourse with you.”
“He didn’t hurt me.”
Hillary Clark tried to be patient. “Yes, Alethia; but he was bigger, stronger, older – he didn’t need to hurt you to have his way. So, please, describe to the jury what happened, what he did to you.”
“Made love, you mean?”
“That’s usually the way we describe the act of intercourse when both parties engage in it voluntarily and of their own free will; but all right – when you made love.”
The girl had a surprising capacity for detachment, an ability well beyond her years to see things the way someone else, someone who did not know the meaning of what had been done, might see them. Slowly teasing a curl in her hair, she smiled at the memory of what had happened.
“I loved him, and he loved me.”
There was a short, breathless pause. Something about her seemed to change. The hint of innocence, the sweet possibility that what she was describing was a young girl’s infatuation, was pushed aside and banished forever by a second, more certain thought. The look in her eyes had turned seductive.
“He wanted me and I wanted him. Don’t you understand? – I didn’t want anyone else; I wanted him. He didn’t force me; he didn’t make me do anything I didn’t want to do. I wanted him.”
Like a teacher, or a priest, about to lecture a recalcitrant child, Hillary Clark shook her head.
“I understand that’s what you think, but I also understand that you only think that because of what he did.”
The girl looked at her as if she were completely mad.
“He took advantage of you, took advantage of your innocence and your youth.” Clark turned to the jury just long enough to let them know that this was significant. “He didn’t have to use physical force, he could dominate you mentally. He’s your brother, isn’t he? You’re his sister.”
The girl admitted this without embarrassment and without apology. It was hard to avoid the thought that, whether out of ignorance or some twisted set of loyalties, she refused to think that this was wrong. Or was there some other reason, Darnell wondered as he sat there watching the girl and the puzzled, startled, and yet still entranced expressions on the juror’s faces. But if there was another reason, what was it and would it make things any better or only worse? He tugged on Adam’s sleeve.
“Is she really your sister? Did you both have the same parents?” he whispered intently. “You need to tell me; I need to know.”
Adam, wearing the same dark blue suit he did every day, turned and started to say something, another cryptic response, but when he saw how determined Darnell was to have an answer, he changed his mind and nodded solemnly.
“It’s always been the way. No one can remember when it wasn’t,” he added with a peculiar, stoic glance as if there was something particularly venerable about a rule that made no sense. Darnell caught at it.
“To have…with your sister?”
But Adam had turned back to watch the girl and listen to what she would say next.
“So your brother, who is much older,” Clark persisted, “convinced you that it would be all right, that there was nothing wrong – but you weren’t old enough to make that decision; the fact that it was incest proves that you didn’t know what you were doing, that he used his influence to -”
“Objection, your Honor,” said Darnell calmly, as if he only wanted to help. “If counsel doesn’t want to ask a question, I have a few I’d like to ask.”
“Sustained,” ruled Judge Pierce. “Ask a question, Ms. Clark. This isn’t closing argument.”
Hillary Clark had not moved her eyes from the witness.
“Just to be clear, did your brother – your older brother – have sex with you?’
“Yes.”
“On one occasion, or more than that?”
“More than that.”
“How often?”
“I don’t know.”
“You don’t know? Because it happened so often?”
“As often as we felt the need.”
“As often as you…? Just to be sure, is your brother older or younger than you are?”
“He came into being before.”
“Came into being – that’s an interesting way of putting it.” Clark, afraid that her own witness had become hostile, tried to be friendly. “He was born before you were. And would you tell the court, please, how old you are?”
This was no trivial question and Darnell knew it. Even consensual sex could be rape if the girl was underage. He was about to ask a question that would have gotten him laughed out of most courtrooms, but with nothing to lose there was no reason not to try it. Besides, whichever way the judge might rule, there was a point he had to make. Before the girl could answer he was on his feet lodging an objection.
“You object, Mr. Darnell?” asked Judge Pierce, doing nothing to hide her surprise. She watched the way he put his hand inside his jacket, straightening his tie like someone about to make a major announcement. That was something that could not be taught, the ability to make everything you did – every word, every gesture – seem important in itself and necessary to what you were trying to do. It would not have worked if he ever had to think about it, worry whether the effect would follow from the cause; it worked because after half a century everything he did seemed natural. It was, she thought, one distinct advantage of getting older.
“You object, Mr. Darnell – to what, exactly?”
“I object to the question about the young lady’s age.” He said this as if some great principle of the law was at stake.
“You object to…? Could you be a little more specific, because I’m afraid I don’t see how that question could possibly be objectionable?
“If I could be permitted to ask a question of the witness in aid of objection, I believe the grounds for my objection will become apparent.”
“By all means.”
Darnell turned to the witness. His face fairly glowed with good will and benevolence.
“I know this question will probably strike you as strange, but please, if you would, just answer it honestly. The question is this: Do you have any conscious recollection about your birth? In other words, do you remember being born?”
There was an undercurrent of laughter, a sense in the courtroom that it was some kind of joke, a way to break the tension, an attempt by the legendary William Darnell to ingratiate himself with the witness by letting her have a brief respite from the intensity of the trial. But the girl did not laugh, she smiled.
“No, I have to say that I don’t.”
Darnell turned to Judge Pierce as if that should be the end of it.
“I’m sorry, Mr. Darnell, I still don’t….”
“If she has no independent knowledge of her own birth, then she can only know what others have told her, which means that the only answer she can give to Ms. Clark’s question about
her age would be hearsay and, for that reason, inadmissible.”
Hillary Clark was beside herself.
“That’s not only wrong, it’s ludicrous. Everyone is presumed to know how old they are.”
“Presumed, Ms. Clark?” Darnell looked at her with a quizzical eye. “Presumed by whom?”
“By the law, Mr. Darnell. Witnesses are all the time asked to state their age.”
“In an American courtroom?”
“Of course in an American courtroom,” she replied, rolling her eyes at the sheer temerity with which he had introduced something as monumentally irrelevant as this.
“In America, where in every county we have a complete and accurate record of births and deaths? In America, where anyone can upon demand - for purposes, for example, of a judicial proceeding in which age is a crucial element of the case - produce a copy of their official birth certificate – Is that what you mean?”
Now, too late, she saw where this was going. She cast a pleading eye upon Evelyn Pierce, but the judge, ignoring her, bent forward, eager to take up the argument.
“Is it your contention, Mr. Darnell, that in the absence of an official record proving the victim’s – the alleged victim’s – date of birth, the prosecution is barred from introducing any other evidence about her age?”
“No, not quite. The prosecution could certainly introduce the testimony of the parents, or of the doctor – if there was one - who delivered the baby; anyone who was there and has direct knowledge of the date the witness was born. That testimony would not be hearsay; this testimony is.”
Judge Pierce studied him with new admiration. In a desultory fashion, she scratched the side of her neck.
“I’ve been on the bench a long time, but that’s one argument I’ve never heard, and I must say, it’s difficult to see what’s wrong with it. Ms. Clark, do you have anything you want to say about it?”
“There’s a reason you haven’t heard that argument before. No one in their right mind would make it, no one -”
“Careful, Ms. Clark,” warned Judge Pierce. “You better make sure you can win an argument before you start questioning the sanity of someone by whom you might be defeated!”
The courtroom burst with laughter. Hillary Clark’s cheek turned red. Darnell, quite on purpose, seemed mildly amused.
“What I meant, your Honor,” Clark insisted, “was that whether or not there are available official records, everyone knows their own age. In the same way, I might add, that everyone knows their own name. Or would Mr. Darnell try to argue that a witness couldn’t testify to that unless he could produce an official document to prove it?”
“I certainly would,” replied Darnell with a quick, decisive nod, “if one of the central elements of the case, one of the things the prosecution had the burden to prove, was the witness’s true identity. But let me, in my turn, ask Ms. Clark a question: If the witness wasn’t here, if you didn’t have her on the stand to testify, would you argue that you didn’t have to produce some official document to prove her age, if her age was, as it is here, essential to the case?”
“No, of course not; but we have the witness, and I will say it again: her testimony on the question is sufficient.”
To everyone’s confusion, Darnell seemed almost to agree with her.
“I suppose my objection is a bit radical. Very well – withdrawn.”
“Withdrawn, Mr. Darnell?” inquired Judge Pierce. “It’s a rather interesting question, one that -”
“Very well, I won’t withdraw it. Would your Honor care to rule on it?”
For one of the few times anyone could remember, Evelyn Pierce laughed in court.
“‘Hoisted on my own petard,’ as the saying goes.” Pursing her lips, she pondered her decision. “It is an interesting issue, but one that requires the time and expertise of an appellate court. So I’m going to overrule the objection and you can reserve it, should you need it, on appeal. Now, Ms. Clark, please continue. You were asking the witness how old she was.”
“Seventeen,” announced Alethia before Hillary Clark could even ask. “Seventeen last month.”
“Which means that two years ago, when your brother made you pregnant, you were only fifteen years of age,” said Clark in a voice full of pity. “Only fifteen,” she repeated with a scornful glance at the defendant. “No more questions.”
Darnell seemed surprisingly indifferent to the court’s ruling on an objection to the girl’s testimony about her age. Stranger still, his first question on cross-examination was to ask her to repeat it.
“How old again did you say you were?”
“Seventeen,” she replied with the same, eager smile she had shown him before.
Darnell was practically bouncing up and down on the balls of his feet.
“Fifteen, from what you said in response to Ms. Clark’s question, at the time you conceived your child. Is that correct?”
“Yes, fifteen.”
It is the first rule of cross-examination never to ask a question to which you do not already know the answer the witness is going to give. What set an attorney like William Darnell apart from the rest was the knowledge, or rather the instinct, of when to break it.
“But would I be wrong in assuming that where you come from, on that island where you lived, it’s considered normal for a young woman that age to bear children?”
“No, you wouldn’t be wrong. Fifteen, as young as thirteen even – whenever a girl becomes a woman.”
Darnell cast a cautious glance at the jury.
“Yes, I think we understand. Now, just so there is no confusion on this point, you admit you had relations with the defendant and you insist that they were consensual, that he didn’t in any way force you?”
“Force me? It’s what I said: He’s the only one I ever wanted.”
Something about the way she said it, something in her voice, made Darnell look more closely.
“The only one you ever….Yes, I see. Well, never mind for now. I have only one or two more questions for the moment. You weren’t forced to have sex with the defendant, but you became pregnant, and then, for some reason, shortly after the baby was born the baby died. I don’t want now to discuss the circumstances of the baby’s death; all I want to know is – whatever happened, whatever Adam did – was that also with your knowledge and consent?”
The courtroom stiffened. There is no other word for it. The reaction of two hundred people was identical to what any one of them would have done had they been left alone to hear and confront that dreadful question. The girl appeared to feel sorrier for Darnell, who had to ask it, than she did for herself.
“I knew what would happen; I knew there wasn’t any choice.”
“Thank you, my dear; that’s all I have.” He had taken only two steps before he turned back. “There is one other question I have to ask. Did you know that I first wanted to talk to you weeks ago, long before the trial started?”
“No, no one told me that.”
“No one told you that the lawyer for the defense in this case had asked to interview you, to hear from you directly about what had happened?”
The girl remembered. She thought it was her fault.
“No, I mean yes; they asked me if I wanted to talk to Adam’s lawyer. I asked if I could see Adam instead. Did I do something wrong?”
“No, you didn’t do anything wrong. But someone did,” he added, shaking his head at the way both he and the court had been lied to.
“Your Honor!” cried Hillary Clark as she tried to explain.
“Not now, Ms. Clark; but later – you can be sure of that – later we’ll listen to what you have to say. Are you finished with the witness, Mr. Darnell?”
“Yes, for now; but I reserve the right to call her as a witness for the defense.”
With a weary, dispirited sigh, a commentary on the way the prosecution had abused the rules, Carolyn Pierce glanced at the clock on the wall in back.
“It’s getting late, Ms. Clark. I believe th
is was to be your last witness. Do you plan to call another?”
Embarrassed and momentarily chastened, Hillary Clark said she did not. She took a deep breath to steady herself and then, in the formal phrase that always ended the first phase of a trial, announced in as strong a voice as she could muster, “The prosecution rests.”
Judge Pierce began to remind the jury that they were not to discuss the case, but Darnell was already on his feet, waving his arm.
“I have a matter for the court, your Honor.”
Evelyn Pierce was tired, but not too tired to remember what Darnell was asking her to do. She told the bailiff to take the jury to the jury room.
“I take it you wish to make a motion, Mr. Darnell,” she said as soon as the door shut behind the last juror.
Darnell made the motion always made at the end of the prosecution’s case, asking that the charges be dismissed on the ground that, even if left uncontroverted, the evidence offered was not sufficient to prove the guilt of the defendant. He knew he did not have a chance on the charges of incest and murder – both had been as good as admitted – but rape was a different matter.
“The girl herself testified that while they had relations, those relations were entirely consensual. In the absence of any evidence that the girl was forced, the only thing left to the prosecution is to prove rape by statute, that the girl was too young, and the boy too old, for there to have been consent. Far from proving this, the prosecution hasn’t even offered evidence on it.”
“That’s absurd,” replied Hillary Clark. “The testimony of the girl was admitted over Mr. Darnell’s objection. She testified she was only fifteen when this occurred, when her brother began to molest her.”
“I object to the use of that word, your Honor; it’s just another example of the prosecution’s willingness to confuse accusation with proof. Yes, the girl’s testimony was admitted. Yes, under the evidence admitted the girl was only fifteen. But the prosecution has managed to forget the most important element in any case of statutory rape: the existence of a statute. There is no applicable statute in the case – none that has been introduced – specifying the age below which a female cannot give consent. And even if, as unfair as this would be, the prosecution wants to say that we should apply our own statute – a statute these people could have known nothing about – that statute, which sets the age of consent at eighteen, requires that the age difference between the male and the female be at least three years. In other words, your Honor, the prosecution, to make its case, has to demonstrate not just that the girl was fifteen, but that the defendant was more then three years older. The prosecution can’t call the defendant to testify against himself, and, as Ms. Clark admitted just a few minutes ago, in the absence of the direct testimony of the person in question, a birth certificate, some official record, is required. I don’t remember seeing one, your Honor.”
