Gideon - 04 - Illegal Motion (41 page)

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 each 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….”

I talk for thirteen minutes and don’t screw up any body’s name or forget any major detail. When I come back to the table, the expression on Dade’s face tells me I made a decent impression on him, anyway. Too bad he can’t vote.

binkie calls as his first witness Robin’s roommate, Shannon Kennsit. It is a good choice. She is a slightly awkward-looking girl with a manner so engaging that you do not even notice she is as chunky as a jar of peanut butter. Shannon captivates the jury with her admitted weakness for the Razorbacks. Describing the time she first met Dade at the party on Happy Hollow Road, she can’t keep a smile off her round face.

“Robin threatened to give me a tranquilizer to calm me down! I can’t re member being more excited except for the night the Hogs beat Duke for the national championship. It was like going to meet somebody you knew you’d see playing in the pro bowl someday.”

Anticipating the direction I’d like to take this case on crossexamination, Binkie asks about Robin’s feelings for Dade. Shannon unselfconsciously tugs at the side of her mauve sweater to adjust her bra. This girl couldn’t be more relaxed than if we were seated in her room at the Chi Omega House.

“She said she liked him. I asked her once if she meant did she like him as a boyfriend, and she said just as a friend. She said he really tried in class, and she admired that. Lots of players don’t care about school, but she said Dade did, and she was glad to help him.”

As the most important witness (besides Robin) Binkie will call. Shannon is utterly believable, and she describes the moment that Robin’s crying woke her up with such genuine feeling that it is impossible not to be moved.

“She was already in bed when I came in about twelve and didn’t say anything, but about four I heard her crying.

She couldn’t stop, and I turned on the light. She looked awful! She was just crying and crying. I kept asking her what was wrong, and finally she said that Dade had raped her. I thought. Oh my God, how terrible! She’s got to go to the police or the hospital or someplace! But when I said this, she just shook her head.”

I close my eyes, realizing I have been affected by what I’ve just heard. There is no doubt in my mind (nor can there be in the jury’s) that Shannon is telling the truth.

Robin’s suffering was profound, at least to this girl. She has finally made her roommate and best friend real to me in a way that Robin herself has not. Why? All this time I’ve been able to think of Robin as an actress. What if she’s not? I glance at Dade. He is hunched over the table with his right hand over his eyes. I nudge him and he lowers the hand to his lap and sits up straighter, but it doesn’t matter. Nobody is watching him. From behind the podium, Binkie asks, “Why didn’t you wake up your housemother or call her parents?”

“She wouldn’t let me!” Shannon says, her voice anguished

“I wanted to, but she kept saying that nobody would believe that she had met him off campus just to study together. She said she was afraid that her parents would think she had been dating him. They’re real conservative

I glance quickly at the Perrys, who appear slightly dazed. What if I were Gerald Perry? I’d want to kill Dade.

“What happened then?” Binkie asks, like some second banana prompting a talk-show host.

“I continued to try to convince her that she had to go to the hospital. She kept saying he didn’t hurt her, but I told her it didn’t matter. She had to go tell somebody! Finally, about five-thirty she said okay, and I drove her to the hospital.”

“Did you see her that evening before she went over to the house on Happy Hollow Road?” Binkie asks.

Shannon presses her hands together under her chin as if this were a difficult question.

“I sat next to her at dinner that night and she told me later in the room she was going out to that same little house we went to in the spring so she could help Dade get ready for a speech in communi cations the next day. I wish I had said something or gone with her. Then it wouldn’t have happened.” Tears well up in her eyes. From the right sleeve of her sweater, she pulls out a tissue and dabs at her eyes.

I scan the transcript of the “J” Board hearing and her statement but find nothing inconsistent. Binkie asks her if she knows whether Robin had any alcohol before she left the sorority house.

“Not that I was aware of,” Shannon says, “and we were together from about five until she left around eight that night.”

“She smelled like wine!” Dade whispers fiercely in my ear.

I nod, not sure I believe him, since he has already lied to me on this subject.

Binkie asks if Robin described what Dade had done to her, but Shannon wrinkles her nose in distaste.

“I didn’t ask her. It seemed too personal. If she had wanted to tell me, I would have listened, but she was too upset to make her talk about something like that. I knew she’d have to go over it a million times anyway.”

Binkie keeps her on me stand for another ten minutes going on about the details of the time before she took Robin to the hospital, but according to Shannon she did most of the talking. Abruptly, Binkie announces, “Your witness.”

I take my time getting to the podium, wondering how honest this girl will be under crossexamination. I start off focusing on the party she attended in the spring.

“Did you talk to Dade the entire time?” I ask after a couple of preliminary questions.

“No, I talked to Harris and Tyrone and some to the two girls who were there. Tyrone actually wasn’t very nice,” Shannon sniffs.

So far I haven’t met anyone who is a member of Tyrone’s fan club.

“Do you remember if you were in the same room all the time with Dade?” I ask.

“No, he was in the kitchen part of the time talking to Robin,” Shannon says. This was a big event in her life.

She remembers it all.

I return to the table and pick up the “J” Board transcript.

“Do you recall saying in answer to a question at Dade’s disciplinary hearing in November that Robin was, and I’m quoting here, ‘kind of a private person’?”

“Yes, but we always talked about everything,” Shan non insists.

“She never told you the details of what happened between her and Dade the night she said she was raped by.

him, did she?” I ask.

“Not really,” Shannon says, her voice defensive.

“Just that he raped her.”

Suddenly, it hits me that Shannon probably is the type of person who didn’t want to know the details. She may not have ever really asked Robin, and this was why Binkie never got specific with her in his questioning. I tell the judge I have no more questions and sit down be side Dade.

Binkie confirms my suspicion by having no more questions for Shannon. He introduces Robin’s medical records through Joan Chestnut, the nurse from Memorial who saw Robin. Binkie and I have agreed that since Dr.

Cowling had no time that day to do more than a physical examination, his nurse will read into evidence his brief entries that he observed no trauma and will be allowed to explain that the doctor was called to an emergency in Springdale before he had finished talking to her.

As I have feared, Joan Chestnut bristles with competence. She explains that in her long experience there is no typical rape victim.

“How a woman reacts after having been raped depends on many factors,” she says in a strong, careful voice that needs no amplification.

My only consolation is that today she does not look like a nurse. Apparently unable to resist the possibility she might be photographed or filmed, she has piled her blond hair on top of her head and is wearing a fancy sequined black dress that would be more appropriate for a cocktail party than a court appearance. Binlde must have died when she showed up at the courthouse not wearing her scrubs. She repeats substantially what she told me earlier, yet, here again is an absence of specifics, which Joan Chestnut shrugs off as normal. She tells Binlde that having to repeat me step-by-step actions of tee perpetrator simply forces the victim to relive the honor of he event and is beyond some women’s power to do so soon afterward.

“It’s all some women can do to say something like, “He forced me to have sex with him,”

” she says didactically.

“I might have been suspicious if she had come up with some elaborate story which took her thirty minutes to tell.”

“As a nurse giving care to a patient, you weren’t immediately concerned with investigating whether Robin Perry might have been making up this story, I presume?”

I ask on crossexamination.

Joan Chestnut crosses her long, not unattractive legs and swings her left shoe, which has a four-inch heel, Maybe she has a date after she is through testifying.

“If a person is making up symptoms, for whatever reason, and it happens occasionally,” she says, her tone now droll, “it’s just as important that we be alert to misinformation as opposed to real symptoms. As you are surely aware, these days a hospital’s resources are severely restricted.”

Though she has mentioned a subject most people don’t have much sympathy for, I beat back an urge to spar with her. She has admitted that some people who go to a hospital lie, and I’m satisfied with any little bone thrown my way. People like nurses, even if this one looks like an aspiring Junior Leaguer.