Read an Excerpt
Question of Consent
By Seymour Wishman
OPEN ROAD INTEGRATED MEDIACopyright © 1995 Seymour Wishman
All rights reserved.
The criminal courthouse at 100 Centre Street in downtown Manhattan was a massive structure, with two entrances in the front and windows—tall and narrow like gun slits—running up the side of the building.
A wooden rail separated the trial participants in the well of the courtroom, which took up the front third of the room, from the crowd of spectators seated in the rows behind the rail. Twelve regular and two alternate jurors were in the jury box, intently studying the witness.
I stood on the opposite side of the courtroom, near a window, leaning back on the wooden rail, about thirty feet away from the witness. I had stood there through most of the direct examination, occasionally looking out the window, not taking notes, with my arms folded across my chest. I certainly would not have appeared to the jury to be particularly impressed with the testimony or anxious about the time a few moments from now when I would cross-examine the witness—and that was, of course, exactly the impression I wanted to leave.
It was just another trial, or so it had seemed to me at the time, and Lisa Altman was just another victim ... or alleged victim. She might have been telling the truth, or she could just as easily have been lying—it didn't matter to me. All I knew for sure was that I was doing my job, defending my client the way I was supposed to, trying to win yet another case. And when it was my turn, after the prosecutor had finished with her, I would try to destroy her.
The acoustics were lousy. Not much sound bounced off the lowered ceiling in the courtroom, making me strain to hear every word. But I managed to catch every nuance, without appearing anxious.
The fluorescent lights were too bright. A glare bounced off the imitation marble wall behind the witness so that if I stared too long, the witness's image jumped out at me. I periodically focused on the beautiful, twenty-nine-year-old woman in the witness chair. I would hold my gaze on Lisa Altman for a few moments, then look away.
Newspaper reporters were in the first two rows of the spectator seats, more reporters than I'd ever seen at one of my trials before—but of course, Lisa was an international celebrity. The thought occurred to me that if I were one of the world's greatest ballet dancers, known for brilliant interpretations of tragic roles, I would probably get this kind of turnout on a regular basis.
The reporters looked more skeptical than the rest of the audience, but then, they usually did at my trials. On balance, the press treated me well, although I would have been happier if they had called me "ruthless" a little less often.
Judge Richard Bennett was on the bench. I had been in his court many times before. Some judges insisted on controlling every aspect of a trial, but Dick Bennett would let the lawyers try their cases without interfering too much in their cross-examinations. With his graying temples and bright blue eyes, Bennett was a commanding presence in the courtroom. But there was little he could do to protect the witness from me. On the other hand, the judge was a tough old bastard, and I knew that if the jury convicted my client, Bennett was certainly going to send him to the clink for a long time.
The court clerk was working on a crossword puzzle at his desk in front of, below, and to the right of the judge. The court reporter was silently typing into her little machine at her place in front of, below, and to the left of the judge.
The prosecutor, John Phalen, was seated at counsel table, taking Lisa through the direct examination. John was in his late thirties, with wiry, thinning hair that he brushed carefully to make it look fuller. He wore the basic polyester, double-knit suit so popular among law enforcement authorities.
The defendant, William Betz, was at the other end of counsel table, next to my empty chair.
The prosecutor should not have been seated. He should have been standing at the far end of the jury box. I always stood there when interrogating one of my own witnesses. That guaranteed that in answering my questions, the witness spoke loudly enough for the whole jury to hear. By standing behind the jury, I also forced the witness to face the jury and establish some eye contact.
I knew I would begin my questioning of Ms. Altman almost playfully, as I slowly tried to gain control over the length and tempo of her answers. Gradually I would gain control not only of the responses, but of the witness herself. I would dominate her, beat her, humiliate her, and finally dismiss her—at least that was my intention.
"Your witness," the prosecutor announced.
I watched one of the newspaper artists drawing with pastels. I recognized myself on the pad—the long, narrow nose, the slightly messy hair, the accusing finger pointing at Lisa Altman in the cross-examination that was about to begin. Lisa looked very attractive in the drawing. The artist, however, could have been a little more generous toward me. He looked up and winked at me.
"Your witness," the prosecutor said again.
I scanned the jury. Mostly women, they waited expectantly. I preferred to have women on the jury when another woman was being judged. For Lisa to be lying she would have to be moved by cruelty and spite. And women, I felt, were very good at understanding cruelty and spite. Women were more suspicious, less accepting, more vindictive. I didn't care whether Dr. Orloff, my shrink, thought my view of women jurors was distorted.
"The jury a lawyer picks looks like the inside of his own neurotic head," I had recently joked at a cocktail party. But deep down inside I really didn't include myself as one of the "neurotic." I won most of my cases, and that should have been proof for Dr. Orloff that my jury choices weren't neurotic.
"The witness is yours, Mr. Roehmer," Judge Bennett said. He leaned back, his head resting on the bump of a pillow on top of his black leather chair.
I nodded to the judge. I'd heard the prosecutor, but I wanted to build some anticipation before beginning. I took several menacing steps toward the witness.
I was well aware that all eyes in the courtroom were focused on me. The jury was composed of twelve critics to be persuaded; they watched my every movement. Spectators had filled the courtroom to cheer their favorite players. The witness, the client, the court attendants, the court reporter taking down every word—all were there to see and appreciate. God, there was much that I still loved about trials.
Lisa Altman sat with her legs crossed—well-defined, muscular legs. Her hands rested, one over the other, palms up, on her lap; she had long, lovely fingers. She wore a handsome brown tweed suit. Her blond hair was pulled tight in a bun behind her head. Her eyes were fixed on me—pale gray, cold eyes conveying a self-possession, a confidence, that seemed to me a kind of bravado intended to challenge me. We both knew I had to break her to succeed, and although I might have been imagining it, I sensed, in the slight tilt of her head, a dare. But at the same time, I could feel a vulnerability beneath that affect of defiance.
I began with my hands in my pockets, my weight evenly distributed. "You said on direct examination that you make a living as a ballet dancer," I said in a casual, conversational tone, my eyebrows arching upward. "Did you ever study acting?"
"Yes," Lisa Altman answered quickly.
I immediately sensed her tension. That would make it easier. The nervousness would create the impression she was evading or lying.
"Wouldn't you say that you're acting while you dance?" I spoke slowly. I always tried to speak slowly in front of a jury.
She shifted stiffly in her chair. "Yes."
"About how many hours a day do you practice?"
"Eight, ten hours. But most of that is simply physical exercise, not acting." Lisa must have known—with good reason—that traps were being laid for her by this professional manipulator who knew all the rules.
"But surely much of that is rehearsing performances?"
"Yes, of course."
"And you practice five, six, sometimes even seven days a week, don't you?"
"In fact, you've received excellent reviews for your acting abilities, haven't you?"
"Why, you've been called one of America's most expressive, most convincing dancers, haven't you?"
I knew that the courtroom was a very different theater, and that her acting abilities in this arena hadn't been tested yet. Mine had been. I smiled. "Yes, you're very good."
"Objection," John Phalen said from his seat at counsel table.
"I withdraw the remark. But I did want to ask," I said, maintaining my focus on the witness, "how many performances have you given so far in your life? Hundreds, would you say?"
"Yes, hundreds," she said defiantly.
I liked beginning in an unexpected area. If I could rattle the witness, I knew I had an edge on the rest of the cross-examination. And since there was no risk in these questions, I could, at the very least, get a feeling of how she'd move. I was already pleased. Her short answers were a good sign. Eventually she would try to lengthen her answers with explanations, but I sensed I could set a pattern of short answers that I would be able to force her back to later. Dominating a witness meant limiting and controlling all responses.
"In fact, you performed on stage the night after the incident in question, didn't you?"
"Now, you said on direct examination that you never met the defendant before that night, isn't that correct?"
"Yes, that's correct."
"Never met him backstage or anywhere else, correct?"
She hesitated. "Yes."
I could see that the jury sensed she wanted to say more. Since the line I was pursuing wasn't crucial to my attack and since I wanted to avoid giving the impression I was trying to trick her, I backed off. "Did you want to improve that statement?"
"Well, actually, I do remember about a week before that night, after a performance, he pushed into me backstage. But we didn't actually meet."
I shook my head disapprovingly. "Now, now, Ms. Altman, my question was-didn't you say on direct examination that you never met the defendant before the night of the alleged incident?"
"Perhaps I was being too literal. But we didn't really meet."
"So the defendant had bumped into you prior to that night?"
"Have my questions been helpful to you in jogging your memory?" I asked, almost playfully.
"Perhaps I was too literal. It was a misstatement."
"Do you remember making the same, how shall we say, 'literal misstatement' to the grand jury? Do you remember saying to the grand jury"—I read from my transcript—" 'No, I never met him before that night'? Do you remember saying that, Ms. Altman?"
"I guess I do. Yes."
"You were under oath when you testified before the grand jury, weren't you, Ms. Altman?"
The witness nodded.
"You have to answer out loud so the stenographer can take it down for the record. What is your answer?"
"Yes," she said, leaning forward a bit.
"Then the statement before the grand jury was"—I pretended to grope for a phrase—" ... a literal misstatement also, wasn't it? Because now you admit that you did, in fact, see the defendant as recently as a week before the incident."
"No, I don't remember being asked."
I walked over to counsel table. "Permit me to refresh your recollection," I said. I searched through several books of transcripts waiting in a pile on counsel table. I came to the one I was looking for and flipped the pages to the passage I wanted. I walked slowly over to Lisa with the book in hand. She reached for it. I slowly pulled the book away. Lisa watched me, observing every movement I made as I walked in front of the witness stand. I could tell she was a woman who didn't like to be teased.
"When you said 'backstage,' I remembered him pushing into me. I told him to watch where he was going."
"Then you not only saw him, but you admit speaking to him at that time?"
"I spoke to him. I told him to watch where he was going. That's all I said."
I smiled. "Yes. You saw him and spoke to him. You now admit doing both after twice swearing you did neither."
The courtroom was quiet. I stood in front of Lisa with my arms outstretched. I studied the witness as she stared at me. The two long muscles at the front of her neck were taut.
Although my approach to cross-examinations varied with each witness, I knew the experience of testifying was almost always terrifying. No matter how relaxed Lisa pretended to be, she had to be nervous.
She had to abide by the rigid rules of the court, although she had not been informed of these rules in advance. I knew the rules. She didn't have a script or choreographer's plan. She had no control over events as she was scrutinized by a jury and an intimidating, robed judge looking down on her. I had control over the events of the "cross." I could yell at her, shoot rapid-fire questions, be sarcastic, or accuse her outright of being a liar. I didn't know if Lisa was telling the truth. It was simply my job to make her appear to be lying. That's what any criminal lawyer worth his salt would have seen as his job.
As time passed and the cross-examination continued, Judge Bennett sat passively, patiently, as he had to, waiting. If ever I slipped and gave him the opportunity, the judge would slam me in front of the jury. But I was being careful. I might risk contempt when the jury was out of the courtroom, but in their presence I was respectful of the judge. With my remark about Lisa's acting skills, I had almost gone too far, but not quite, and I had withdrawn the comment right away. I doubted the judge had expected me to be aggressive like that so soon. No, the only function for Judge Bennett, patient Judge Bennett, was to wait. The judge must have felt frustrated and angry at his inability to help the witness. Lisa Altman was going through the first stages of a process she would not be able to control, and the judge had to accept that she was in my hands. Poor Judge Bennett couldn't do anything for her. He, too, had to play by the rules.
It was fifteen minutes into the cross, and I had planted myself ten feet in front of the witness. I stood directly between Lisa and John Phalen, blocking her view of her only sure ally in the proceedings. John didn't realize how isolated a witness could feel. I would never have abandoned one of my own witnesses like that.
"You sensed him following you?" I was asking my questions with directness, the conversational tone long gone.
"I felt his presence," Lisa responded immediately. "It was dark and I only saw his shadows in the darkness." The veins bulged blue on the back of her left hand as it smothered the fist of her right. I, of course, noticed that, and it pleased me.
"You heard him?" I didn't care how she answered. I wanted a rhythm, a rhythm of my questions and her answers, a rhythm of me demanding and her relenting. I would get her to shorten her answers; then I would have her.
"I heard his footsteps behind me, following me. I felt ..."
"Did you try to run?" I knew she had told the police that she had walked directly home without calling for help.
"I was too frightened to run. I felt somehow that would anger him. I don't know why. I guess ..."
"But you were in excellent physical condition from exercising sometimes ten hours a day, seven days a week, isn't that true?"
"Yet, you didn't run?"
"No, I didn't run."
"Did you cry out for help or go for a cop?"
"I was too nervous. I wasn't thinking."
"You didn't call for help?"
"I sensed that for some reason it was just between the two of us. I was just trying to get away. I didn't think of anyone else."
"You went straight for your apartment?"
"It was my home."
"You led him straight to your apartment?"
"I wasn't 'leading' him anywhere. I thought I'd be safe there."
"You unlocked the front door, and you both entered the building together?"
"I thought I would be safe there. It was my home." Lisa coughed, then coughed several times more.
I turned to the court officer standing by the window. "Could the officer bring the witness some water? She seems to be having some difficulty."
"If the witness is having any difficulty, she can ask me for water. She seems to be doing fine," Judge Bennett said.
"Actually, Judge," Lisa said, "I would appreciate some water."
Excerpted from Question of Consent by Seymour Wishman. Copyright © 1995 Seymour Wishman. Excerpted by permission of OPEN ROAD INTEGRATED MEDIA.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.