Other people

Thirty-seven Widmer

When I was a young man I would have dismissed the notion of precognition as unsuitable for discussion. Buck Rogers was fiction. Laser beams were comic book devices. Men flew, but not in space. You see how the very science I accepted with faith has now turned me into Square Alice at the Mad Hatter's table. Today, young people like Francine take precognition for granted, as the Greeks did. The period in which rationalism flourished was historically short. It was a comfortable period for well-brought-up people. Then the carpet was yanked.

It was thoughts such as these that I brought with me to the meeting in Lefkowitz's office because I did in fact have a clear precognition that it would be a remarkable meeting. Francine was to be there, and her attorney, of course.

Once upon a time the bride was brought by the father, but on this occasion I arrived in the anteroom alone, minutes before Francine arrived with Thomassy. My thought was that they had come straight from their shared pillow. Then I thought the pillow had most probably been under her hips.

We greeted each other with inane pleasantries, and were spared the possibility of extended conversation by being ushered into the disappointing presence. Lefkowitz, a rotund young man, attempted to conceal his incipient corpulence with a vest; the Phi Beta Kappa key and chain across it merely called attention to the concealment. Of course I was prejudiced. This young assistant district attorney, undoubtedly with political ambitions, was probably from a recently well-to-do background, unmistakably Jewish in his physiognomy as well as name. He deferred to Thomassy a bit too much. He called me sir, but his gesture to take a seat was casual; with Thomassy, I thought he would put the chair under the man. He designated Francine as the most minor of his visitors by giving her a chair to one side, as if he expected her to be an auditor only.

Lefkowitz ordered coffee. This meeting was too serious for coffee. The others declined also. Lefkowitz, his hospitality drained, retreated behind his desk and spoke.

"I am going to be trying the Koslak case," he said, "and I thought it would be useful if we met for a general discussion. I could then see Miss Widmer separately to go over the details."

It was as if a midshipman had announced himself the new captain of an aircraft carrier.

Thomassy said he was pleased that Lefkowitz would be personally involved in this important case and asked him what tack he proposed to take in its prosecution.

Lefkowitz, addressing himself to Thomassy and me and pointedly ignoring Francine, gave the schoolbook answers, summarizing the facts, declaring the crime would be proved by the testimony of the victim and corroborated by other circumstantial but condemning evidence, and he would be calling for punishment for the perpetrator as a lesson to others. Under different circumstances, I could have allowed myself a moment's amusement, but I saw the tic in Thomassy's jaw.

"Well," said Thomassy, standing, "we might as well drop the case."

"Please sit," said Lefkowitz, alarmed and standing.

They both sat at once.

"All right," said Thomassy. "Let's put the problem on the table. If you use the textbook approach, it'll come down to her word, his word, reasonable doubt. We can't depend on passing pieces of paper in the courtroom. The strategy has got to be worked out right here, putting together all the experience we can muster."

"Of course," said Lefkowitz, fingering his key. "I will be discussing the details of the presentation with other prosecutors on the staff and with Mr. Cunham, and my presentation will have the benefit of their combined experience."

"To be realistic," said Thomassy, "the track record of this office on rape prosecutions is…"

He was going to give Lefkowitz a precise figure from his notes. Into the momentary silence, I said, "Deplorable."

To my surprise, Lefkowitz said, "Quite right, Mr. Widmer. But I'm sure you know the pitfalls in the way of getting convictions."

"George," said Francine.

I could see Thomassy didn't like being called George in front of me.

"George," she said, "how would you present the case?"

"Yes," said Lefkowitz, "I was about to ask."

"Do you want your stenographer in here?" Thomassy asked Lefkowitz.

"I'll take notes if they become necessary."

I had the distinct impression that his embarrassment stemmed not from Thomassy's seniority but from the presence of a woman of his own age in the room.

"All right," said Thomassy. "How this case goes depends in some measure on the opening presentation. I'm sure you can put it in your ball park before Brady tries to put it into his ball park. Mr. Lefkowitz, I'm positive you've arrived at the same conclusion I have. Your theme is force. That's the issue. But before you press that, the jury has got to get used to the idea that sex is not the issue. Otherwise, we're in Brady's ball park, the victim is not a virgin, she's experienced, sexy looking, maybe sexy feeling, all you need is a hint that she's concupiscent and it could raise a reasonable doubt in the minds of the jurors as to whether she tempted Koslak, and Brady's off and running. We have to create an atmosphere in that courtroom right from the start that defuses talk about sex, that takes the Victorian dirty-mindedness that still infests us all to one degree or another and puts it on the table as something that is not at issue. Force is the issue, not standards of moral conduct."

Thomassy took a deep breath. He looked at me, at Francine, and then at Lefkowitz. His audience was paying attention.

"Okay," Thomassy continued, "how do we do it? How do we play back to the jury a tape recording of what they themselves really think when they think sex? Mr. Lefkowitz, every lawyer handles things a bit differently, but suppose you were to get up close to the jury and ask them, each of them, to think of the worst kind of sex they ever heard about, the sexual thoughts that most repel them. Suppose you got them to play the tapes inside their heads, gave them a chance to think of whatever kinky things clutter their consciences. Then let them off the hook. Remind them everybody thinks things like that from time to time. We're not here to evaluate anyone's sex life except as force is used to push it on other people."

For a moment I thought Francine was going to put her hand on Thomassy's. I wished her not to do that, not for my sake, but for Lefkowitz's. He had enough to contend with without being exposed to the personal relationship between victim and advocate.

Lefkowitz wrote down one word on his yellow pad. I prayed the word was "force."

Then Thomassy continued. "From your presentation the jury is certain to conclude that the issue is not temptation. Of course the victim is not at age twenty-seven a virgin. She has the same moral standards as innumerable scientific surveys have shown to be predominant in her generation — which is different from the jury's generation unless you're damn lucky and can get some younger people impaneled. She is a professional woman. Educated. She lived alone out of choice. She had no reason to suspect that a neighbor she saw frequently in the building would introduce himself into the apartment by deceit, as the testimony will show, and then use force to foist his sexual demands upon an unwilling person. I'm certain you'll set it up so that when Brady goes through his shtik, the jury will hear it against the background of what they remember from your presentation."

I wished Lefkowitz took more notes. A man like Brady could eat him alive.

"I'm sure most of this has occurred to you," said Thomassy.

"Yes, but do go on," said Lefkowitz. "It's useful to hear you frame it your way."

I concealed my smile. That young pup has learned his tricks.

"Good," Thomassy continued. "It won't hurt to consider the point that ordinary men and women have very little understanding of the enormity of rape as an experience.

"Suppose you were to convey to the jury the idea that everybody hears all the time and nobody believes. The two big crimes are supposed to be murder and rape, but everybody thinks murder is terrible and rape is something to be discussed with the women's movement.

"Why the different attitudes to rape and murder? You've got to get the answer across. We're used to murder. All the literature we're exposed to from the time we're kids deals in murder. Start with the Bible, Cain kills Abel. Take the jury through Mickey Spillane, if you have to. Murder is commonplace in our imaginative lives. The ten commandments put it straight, Thou shalt not kill. When it comes to forcing sex, the commandments hedge. Thou shalt not covet thy neighbor's wife. Hell, everyone covets his neighbor's wife from time to time. The issue is force. The commandments may fudge it, but the law does not. Rape and murder have been the two big capital crimes. You've got to bring them together in people's heads. I mean the people on the jury.

"Some judges will let you get away with a hypothetical instance. Let's try this. If you eliminate all other people except the potential victim, murder is still possible in the form of self-murder, suicide, still a crime on the books. But if you eliminate all other people, rape is impossible. What you're left with is masturbation, and that's not a crime. In a rape case, we need to focus on the other person. There's no doubt about who the other person is. Koslak. He just says he didn't force it. So we concentrate on the issue of force."

The thought occurred to me that if I had heard a lecturer like Thomassy in law school, I might possibly have been tempted in a different direction. Law as the theater of ideas in a forum of power? Ah well, for me it was too late. Thomassy was going on. I couldn't afford to miss any part of it. To Lefkowitz he was saying, "You're Jewish, aren't you? Well, let me suggest something else for your consideration.

"There are a lot of things one can't suggest directly to a jury. Every lawyer has a different way of getting things across by body language, intonations, allusions, subliminally. I'm sure you'll be able to find a way to reminisce about various things. There'll be a lawyer at the accuser's side who is of Armenian extraction. Perhaps that lawyer has a strong feeling about rape because the Armenians, the first Christian community in modern times, were early in this century subjected to rape as well as murder by the Turks on a scale that, in your reflections, can only be described as genocide. In fact, you yourself can allude — you'll know how to do it without rattling the judge — to the fact that you, representing the people's case in this courtroom, cannot forget that in this century, in which six million of your coreligionists were exterminated, many of the women, the attractive ones, had the option of choosing repeated rape in the SS brothels instead of death, and that after the experience of rape, many chose death. You'll have alluded to the Christians and the Jews, and if you can keep Brady from objecting, you'll have covered everyone in this jurisdiction. What you are accomplishing with all the finesse you can muster, all the indirection at your command, is to get the jury to see rape in all its historical enormity. Once you do that, Brady won't be able to mock, disparage, or trivialize what happened. I'm certain you can do it."

Lefkowitz poured himself an inch of water from the carafe on his desk. "Mr. Thomassy," he said, "I respect your experience, but do you really think the judge would let me get away with that?"

"It all depends on how you do it," said Thomassy. "Look, one thing you can count on is that none of those jurors will have been a victim of rape or be related to a rape victim. Brady'll knock them off for cause before they're impaneled. Therefore, it is your obligation, you explain to the judge, because people know so little about the crime of rape, to give them some background, some filling in."

"I was hoping," said Lefkowitz, "to avoid emotionalism in my presentation."

"I don't expect you to be emotional at all," said Thomassy. "You're far too skilled for that. You're just alluding to facts about the historical context quietly. Be as cool as you want to be. The emotion will be in your listeners."

Thomassy's puffing up of Lefkowitz seemed to be working. The young man billowed with each stroke. He turned to me, and said, I thought a touch condescendingly, "Mr. Widmer, you've had longer experience at the bar than either of us. Do you have any points you'd care to have me consider?"

I would have had him consider his youth and his mortality. What I said was, "Mr. Lefkowitz, my practice, as you may know, is very different from Mr. Thomassy's. I've never uttered a word inside a courtroom. I would find it exceedingly difficult to present this case."

"Mr. Widmer," said Lefkowitz, "I've had a good deal of experience these last two years, in criminal matters I mean, and my percentage of convictions, on cases where I presented the cases not just prepared them, is significant and rewarding."

I could guess that Francine was not entirely happy with Mr. Lefkowitz, but Thomassy, with a glance, kept her from saying something. They had had a previous agreement on the point, I was certain.

"I think it would be useful in the opening presentation," said Thomassy, "to cover two more points. Murder is a single act. When it's finished, that's the end of it. The victims of rape, when they are allowed to live, or when they give in so that they can live, then have to spend the rest of their existences with the disgust and terror and memory of it. Rape is a continuing crime because long after it is committed it goes on in the head of the victim."

"A good point," I said.

"Excellent," said Lefkowitz. I wonder what he wrote down on that pad of his.

"My last point," said Thomassy, "has to do with the importance of this particular case. From time to time we've had the experience in this county of a rapist who focuses on youngsters, ten- and twelve- and fourteen-year-olds. When he's caught, the mother refuses to let the child testify. She takes the child to a psychiatrist, and the psychiatrist discourages public testimony because it could be traumatic for the child. He doesn't worry too much about the private testimony the child is giving him because that's therapy and he's being paid for it. Well, we're all against child rapists, right, and we're furious when the guilty escape the law because the underage victims aren't allowed to testify. But the truth is that many women who are raped feel exactly as the mothers of the children do, they don't want to go through the public experience, the drawing out of their private lives, the humiliation, the obscenity of the details. They fink out. In this case, the jury is going to hear from an extraordinary victim, the rare, brave young woman with the strength to testify, the moral strength to be unwilling to duck her responsibility to the rest of humanity. Don't make her into Joan of Arc. Just make damn sure that in your opening she comes across as someone deserving of respect. That's the word to write down: respect."

"I already have," said Lefkowitz.

"It's your meeting," said Thomassy.

"I think I've got what I need out of this larger meeting," he said. "I'd like to go over the details of the actual event from my notes with Miss Widmer, if that's all right with you gentlemen."

I said Thomassy and I would wait for her in the anteroom and take her to lunch afterwards.

Outside, we went to the men's room, the bridegroom and the father of the bride in adjoining urinals, listening to their respective tinkles. It would have been more comfortable to skip a urinal in between, but also obvious.

"Well," said Thomassy, "I think she's safe with Lefkowitz."

I had to laugh.

"I mean in the office," said Thomassy. "He could blow it in the courtroom."

I had to agree. "What do you think are our chances?"

Thomassy didn't answer. I didn't know if he was thinking or preoccupied.

"Realistically," I said.

We both took extra time to make sure the last drop went, then zipped up, washed up, and strolled down the corridor together before he replied.

"Lefkowitz is no match for Brady."

"Our case is good." Why our case? And how did I know it was good? I sounded like a layman.

"Ned, good cases are of no value if your advocate isn't shrewder than the other guy, or doesn't know where the power lies. We have one chance."

"What's that?"

"Work on Brady so he knows he's playing with me and not with the kid Lefkowitz."

We walked back the way we had come. "George," I said to him, "when you were in school, did you think of justice as the lady with the scales and all that?"

"In the streets of Oswego, Ned, things aren't much different from Manhattan. They don't let you get away with cock and bull. Clout counted. Not justice." He looked at me. "Were things different at Groton?"

"No. Of course not. The parents pretended, of course. And the masters. But not the boys. Did you pay the piper?"

"Piper?"

"The leader. The bully. Whatever you called him."

"I worked around him."

"A mite harder working around Lefkowitz."

"Yup."

"Well, never fear," I said. "I'm no authority on tactics, but it seems to me your suggested presentation was rather brilliant. If only we could hire an actor for the role."

"Why thank you, Ned." He seemed genuinely pleased. "Glad you steered Francine to me?"

"Not entirely."

Back in the anteroom, we sat apart. I thumbed through a U.S. News and World Report. When Francine emerged, Thomassy, who was not reading, went to her first. They said something to each other, I couldn't overhear, and he took both of her hands only for a split second. I thought Are we at last mingling our genes with the barbarians', or have we found a way of protecting ourselves?

We went to lunch. I was the supernumerary.