Gideon - 04 - Illegal Motion (37 page)

I glance at Judge Franklin’s stenographer. A handsome woman, in her early sixties, I would guess, she, too, seems to be irritated at me. Hasn’t your client caused trouble enough? How dare you accuse a professor? I warn myself against the typical paranoia of the outsider and busy myself with the display on Judge Franklin’s walls. A hunter, he has pictures of himself surrounded by dead animals and dogs. Yet, even in this masculine corner of the world, he may be offending somebody. He asks me to summarize my position, and as precisely as I can, I take him through my argument. I conclude by saying, “The bottom line. Your Honor, is that Robin Perry’s past sexual conduct is part and parcel of this case. There was no rape, or if there was, it was purely in the mind of Robin Perry, who couldn’t stand the thought that she was about to lose the attention of Dr. Hofstra, and my evidence is going to show that this morning.”

Judge Franklin grunts and asks abruptly, “Does the prosecution want to respond?”

“Indeed, I do. Your Honor,” Binkie says, his voice already harsh and combative.

“This case is no different from any other situation in which the defense tries to put a rape victim on trial. Following Mr. Page’s reasoning, evidence of prior sexual conduct by any rape victim can be introduced to show some supposed motive to lie. To allow this type of evidence would be to circumvent the rape shield law in its entirety. The probative value of any evidence of a prior sexual relationship in this case is out weighed by its prejudicial and inflammatory nature, which this court has the discretion, fixed by statute, to prohibit. Mr. Page wants to put the University of Arkansas on trial. Your Honor, instead of his client.”

This is weak. Binkie is down to his last bullet. The judge looks at me, and says, his voice slightly ironic, “Is that what you’re trying to do, Mr. Page?”

Binkie is already anticipating my closing statement to the jury Monday, but I’m damned if I’m going to admit it.

“The last thing I want to do in this case is take on the university. Judge. What this case has been about since day one is credibility. If Robin Perry had any motive to lie about what she says occurred to her as a result of my client’s actions, the jury is entitled to hear it.”

Binkie tosses his pen on the table, a gesture ordinarily reserved for a jury and not a hearing back in chambers.

“He wants to turn the case into a circus. Judge,” he complains.

Poor Binkie. This case is unraveling right in front of him. Judge Franklin leans back in his padded chair and puts his hand over his eyes as if to shield the prosecutor from his sight. Finally, he says, “Well, let’s go out to the courtroom and hear some testimony.”

I feel in control of things for the first time. If this hearing goes as I intend, we could conceivably get a dismissal by Binkie this afternoon. This case will be a black eye for too many people. I come out to the counsel table and smile at Dade, who has been waiting in the courtroom with the other witnesses, who include Lauren, Robin, Joe Hofstra, and Robin’s roommate. Shannon Kennsit. Following my advice, Dade is wearing the same too-tight suit he wore at the administrative hearing. If I have my way, he’ll wear the same clothes throughout the trial, if there is one. The last thing I want him looking like is some slick black pro athlete. As he sits down by me, I tell him that things are going fine. All he will have to do to day is watch. I “invoke the rule” so that the witnesses will not be present in the courtroom. As Judge Franklin instructs each witness not to discuss his or her testimony with any other, I glance back and forth between the faces of Robin and Joe Hofstra. They are about as far from each other in the courtroom as two people can get. As Lauren leaves the courtroom for the witness room, I nod at her, trying to get her to smile. She looks more scared than I would like. Yet, testifying can be an unnerving experience if you haven’t done it before. I forget how young these kids are.

Before Robin can make her exit, I tell the judge I will call her as my first witness. I want to hear what Robin and Joe Hofstra say first, so I can try to keep Lauren from getting sandbagged. Robin looks at the judge, who tells her to remain in the courtroom and directs her to the witness box. For this hearing she is wearing black heels, a red and green jumper, and a white blouse. She looks stunning. Her blond hair is soft and silky and has grown out since I last saw her. Since the only issue is her past sexual conduct, the judge cautions me to ask only the most basic preliminary questions, and in less than a minute I get to the point.

“Ms. Perry, have you at any time had a sexual relationship with Dr. Joe Hofstra?”

Though I expected to have to pull the story from her, Robin answers without any hesitation, “Yes, I did. It occurred last summer. I was in his history class the first term of summer school and began seeing him in June. I stopped seeing him at the end of the summer session in August. I haven’t been alone with him or talked to him since then.”

Binkie has her well prepared, and though I didn’t expect her to admit that she was sleeping with Hofstra at the time she was raped, I am impressed at how poised she is concerning a subject that has to be a source of embarrassment to her. I can’t imagine it will last too long.

There is too much pressure on her.

“Did you tell anyone you were having sexual relations with Dr. Hofstra?”

“I told Lauren Denney, who was my roommate last summer.”

“Did you tell Lauren Denney this fall approximately a week before you say you were raped by my client that you were still sleeping with Dr. Hofstra?”

Robin’s face flushes.

“No! I never told Lauren any such thing!”

I press her.

“You don’t recall having a conversation with her to that effect one day after cheerleading practice as you were walking across campus?”

“I didn’t tell her that!” Robin says, losing her compo sure.

“I hated Lauren by that time!”

She begins to cry. I ask, “You don’t recall telling Lauren that afternoon you’d do anything to keep the relation going with Dr. Hofstra, or words to that effect?”

“No! No! No!” Robin yells, wiping at her eyes.

“I

didn’t ever, ever tell her any such thing.”

“Isn’t it a fact that you hated Lauren, in part at least, because you were afraid she would tell others that you had been sleeping with your professor?”

“She’s a liar!” Robin blurts.

“I knew I couldn’t trust her not to tell, even though she said she wouldn’t.”

“But you told somebody, didn’t you?” I ask, knowing I have an easy guess.

“Didn’t you tell your roommate this fall. Shannon Kennsit?”

Binkie gets to his feet and objects, “Your Honor, who she told is irrelevant.”

Judge Franklin shakes his head, not even requiring me to respond.

“I don’t think so. Answer the question.”

Robin, still wiping her eyes, answers, “I can trust Shannon. I did tell her.”

“Isn’t it a fact that you trusted Lauren enough to share an apartment for three months last summer?”

“I didn’t know her very well,” Robin says, sniffing.

“You had been a cheerleader with her the entire past year, hadn’t you?” I scoff, and wait for her answer.

Robin mumbles, “But I still didn’t know her.”

This is a good stopping place, but I need to get her to admit how intimate she and Hofstra became.

“How often did you see Dr. Hofstra last summer?”

Binkie pops out of his chair.

“Objection, Your Honor!

The issue is whether Ms. Perry was raped by Dade Cunningham in October, not what was happening in the summer.”

On my feet, I respond, “The issue is her credibility.

Your Honor. If this was a casual, one-time thing, it might be a lot easier to believe her testimony that she broke it off.”

“Answer the question,” Judge Franklin says, looking at Robin.

Binkie is furious, but he can’t do a thing except sit down. Robin blushes deeply.

“I would go up to his office after class two or three times a week to talk to him.”

“How many times did you have intercourse?” I press.

Binkie again objects.

“Your Honor, that question is irrelevant,” he says.

“It doesn’t prove one thing in this case.”

“I would hope it tends to show. Your Honor,” I say, “how deeply involved they were.” I look at Franklin, willing him to agree. The more specifics I can get out of her, the more likely Hofstra is to contradict her.

“You have to answer,” Franklin instructs her.

Robin closes her eyes as if she has begun to pray. If Sarah could have known what Robin would go through, I doubt she would have given me any information.

“I

think,” she says through her tears, “six separate occasions.”

I draw out the moment, pretending I am making notes.

“Where did these six separate acts of intercourse take place?”

“I met him every time at the Ozark Motel.”

The Ozark! I almost laugh out loud. I haven’t even watched a dirty movie there.

“Who paid for the room?”

Binkie objects, and Judge Franklin tells me to move on.

“That’s not what is at issue here” he says, giving me a hard look.

I could make an argument, but not wanting to piss him off, I don’t.

“Why did you end the relationship in August?”

Robin’s eyes are as red as the material of her dress.

“I felt guilty,” she says, her voice now thin and reedy like an old woman’s.

“I met his wife and children at his office.

Before I went home that weekend, I told him we had to stop. He knew it, too, and agreed we shouldn’t see each other again.”

Until she came back for the fall semester, I think, certain my cynicism is justified.

“So either you or Lauren is lying about whether you said you were still involved with your professor in October, is that correct?”

“I’m telling the truth!” Robin insists.

“Tell me, Ms. Perry,” I say, unconcerned what her answer will be, “did you care about the truth of the statements that were being told to Professor Hofstra’s wife on the six occasions you slept with him?”

Binkie is on his feet objecting.

“Your Honor, there is no evidence of any statements. Counsel is assuming facts not in evidence. I doubt if he was going home and telling his wife, “Honey, I had some really great sex with a student today.”

” “Sustained,” Judge Franklin rules, smirking at me.

Though I violate the law school rule that a lawyer is supposed to end crossexamination with some kind of admission, if possible, I pass the witness to Binkie. I have made my point. If you’re having an illicit affair, it is a little hard to stand up and brag about what an honest person you are, whether you’ve told any outright lies or not.

Walking even slower than usual, Binkie comes over to the podium and has Robin reinforce her testimony that she broke off the relationship with Hofstra during the summer, but he stays away from the details of the affair except its time frame.

“Did you go home or remain at the university the end of the second semester summer school in August?”

Robin, who is no longer crying, says, “My algebra exam was over August eleventh, and I didn’t return to school until almost two weeks later for the fall term.”

Binkie, slouching against the podium, asks, “Did you have any contact with Dr. Hofstra during this period?”

“None at all,” Robin responds.

“Did you have any contact of any kind with Dr. Hofstra after you returned to school for the fall term?”

“No, I didn’t!” Robin says even more vehemently.

I let her step down, certain she hasn’t killed us. Beside me, Dade is wideeyed at Robin’s testimony. It is clear she didn’t give a speech in communications class about what she had done during summer vacation.

“I call Joe Hofstra,” I say, feeling my stomach tighten with anticipation.

Sporting a beard he didn’t have when I went to his office almost two weeks ago, and wearing a black suit and black wingtip shoes, he looks as if he has dressed for his own funeral. I don’t waste any time trying to bury him.

“How many times did you have intercourse with Robin Perry?”

He looks helplessly at Binkie, and puts his hand to his mouth. For a moment I think he will be sick right on the witness stand.

“Six, six, I think,” he stammers.

“Who, Dr. Hofstra, in your opinion, initiated the relationship between you and Robin?” I ask, realizing I will enjoy making this guy sweat.

Hofstra hesitates, knowing this is an important question. His career as well as a sexual harassment suit may hang in the balance.

“She began dropping by my office a couple of times a week,” he says carefully.

“She was smart and an excellent student, and I enjoyed talking to her. After my class ended the first semester of summer school, I called her. She agreed to see me, and I began getting a room for us at the Ozark Motel.”

“Did you ever go to her apartment that summer?”

Hofstra looks pained but says, “I went there three or four times.”

This is news to me, but it shouldn’t come as a surprise that Lauren didn’t know everything. If Hofstra weren’t such a sleaze, I might feel sorry for him. In addition to his miserable expression, his voice exudes the right tone of contrition, the perfect note of guilt. He is letter perfect in his role as erring husband and teacher. I realize his wife will probably forgive him and nothing will happen to him. For all I know, some of his male colleagues may be secretly envious when this case is all over.

“While you were there, did you ever see Robin’s roommate Lauren Denney?”

“She came in once while I was at the apartment,” Hofstra admits.

“I think Robin thought she was gone for the weekend. I got up and left.”

Grudgingly, I realize that Binkie has done a great job of wood shedding this guy. It couldn’t have been easy.

“Who ended the affair, in your opinion?”

Hofstra tugs at his collar.

“It was a mutual decision.”

This is a departure from the party line, but if he wants to save his marriage, he had to say it.

“Do you recall what was said by each of you to end your relationship?”