Grif Stockley - Illegal Motion

After I have seated Dade and organized my files around me on the table (I have revised my opening statement five times in the last two days and have it outlined in a yellow legal pad on top of the stack to my right), I watch spectators being admitted into the courtroom and try to rein in what I hope is a temporary panic attack. The glittering, expectant expressions on the faces of some of the doddering old men suggest they are hoping for a blood bath. Yet, these are probably the regulars who have seen every trial for the last twenty years. I smile uneasily at Dade, who seems to be holding his breath. He is looking at his mother. Lucy, to my dismay, has dressed in black as if she were attending Dade’s funeral. Her dress, plain and unadorned by jewelry, emphasizes her light skin. Is she thinking about what it will be like to visit her son in the hellhole that is Cummins prison? Last night at the restaurant at the Holiday Inn (Dade’s choice), she was unusually quiet, as if she had already resigned her self to a bad outcome. Prom the defense viewpoint, a criminal trial is like surgery on a high-risk patient. Denial becomes difficult when the patient has been propped and the cutting is about to begin.

At the door I see the Perrys, who are clutching hands like three children lost in the woods. Despite Blanche Perry’s bravura performance at their home in Texarkana, they don’t want to be in a Fayetteville courtroom any more than we do. This morning Blanche Perry is nothing but a frightened parent, just as I would be if the situation were reversed. Her eyes flutter rapidly as her husband whispers in her ear. In the name of justice, her daughter is about to undergo one of the most wrenching experiences humanity has devised. If the jury finds Dade innocent, Robin faces a lifetime of humiliation. I marvel at my willingness to add to it. I was itching to call Joe Hofstra at this trial. Not for the first time in my career, I realize the job of defense attorney is too much of a game for me.

I’ll walk away from this courtroom thinking I’ve won or lost. The Perrys may leave here feeling their daughter has been stripped of all her dignity. No wonder they were willing to capitulate and settle for something far less than they think justice demands. Maybe they know something I don’t. I wonder if even now it is not too late to accept Binkie’s offer. If their expressions are any guide, the Per rys would go for it. Robin, who will be leaving the court room after the witnesses are sworn in, has an ethereal Alice-in-Wonderland quality about her. Her breasts have been made to disappear under a simple white wool dress that extends from her throat to the floor, and her blond hair is in bangs. The word “virginal” doesn’t do her jusdee. This girl, I must remember, takes communication seriously, and she will be telling the jury she couldn’t act sexually aggressive if she were given lessons every day for a year. Not one word will be spoken about this past summer’s torrid affair. Ladies and gentlemen, this young woman is not what she seems. Just ask her professor. If only I could. Yet, even as I think of it, the sleaziness of such a tactic finally hits me. Sarah could have been seduced by Beekman. If she were, would that automatically make her less credible if she got raped later by another man? Obviously not. Though it makes my job more difficult, I finally admit to myself that it was only justice that I lost the motion to introduce into evidence Robin’s past sexual conduct.

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.