Sol Stein - Other people

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.