The Silken Tent My Letter to the World September, 1999

Testifying in open court is an experience few ordinary people are prepared for. Lawyers, police officers, and forensic specialists are accustomed to the atmosphere and the routines of a trial and can become quite practiced in delivering their information in a crisp, dispassionate way that makes it easy for a stenographer to record and a jury to hear. Victims, accused perpetrators, and others who have become involved are often people who never speak in public but are nevertheless called upon to remember details of things that happened months before and to give an account of incidents which they never thought would become important to anyone else.

Our justice system has a long history of making this process particularly difficult for a woman who accuses a man of a crime with sexual overtones. The victim is forced to discuss matters and describe feelings of an intimate nature with language so specific that there can be no question about how the events unfolded. The defense must subject her to questions designed to raise reasonable doubt about the truth of what she says. Her character and her motives are called into question, at least indirectly, and it can sometimes be difficult to remember who is on trial.

When Tammy finished her account of what she said happened to her at Larry's pool one June night fifteen months before, she seemed drained. Her voice had wavered at times, and though she sometimes dabbed at her eyes with a tissue, she did not begin to weep. The prosecutor gave her a smile as she yielded the floor to the defense.

Mr. Weber, the defense attorney, chose to remain seated as he began his cross examination. He addressed Tammy as "Ms. Gilbert" in a tone that was neither belligerent nor patronizing. Nevertheless, Tammy immediately took on an attitude of defensive anger. Her back stiffened, her eyes narrowed, and she put her hands on the rail of the witness box as if about to leap out of it.

Mr. Weber first reviewed with her the events that night in the convenience store. He seemed intent on establishing that the physical bantering with its sexual overtones that had taken place between Tammy and Larry was common whenever she visited the store, and that she had not objected to it before that night nor during it.

Then he asked Tammy to describe the pool area. He specifically asked her about the boundaries of the property, about the look of the walkway from the house to the concrete decking, about the location of the picnic table. She described a chain link fence that surrounded the pool. It extended, she said, from the stairs leading from the back door to the concrete deck all around the perimeter of the pool and the grassy area where the picnic table was. It was this fence that she viewed as Larry pinned her back against the wall of the pool and demanded sex. She could see it over his shoulder, gleaming in the moonlight. Mr. Weber pressed her for an accurate description of the fence. She held up her hands, forefingers and thumbs pressed together. It looked like this, she said. Like diamonds.

Mr. Weber asked Tammy about her training as a lifeguard. He elicited from her that she had indeed been taught how to subdue a person in panic in the water, even someone larger and stronger than herself, and how to extricate herself from a person's grasp if she had no choice but to preserve her own safety during a rescue. When asked if she had applied these measures during her struggle with Larry, she responded that she had not. When asked why, she reiterated that she feared the scene that would ensue if Larry's wife or young son were to appear.

Then he asked her how she knew it was 11:15 when she called Michael from her car. She looked at the clock. He asked if it were indeed her cell phone she had used and if she were indeed in her own car speeding toward Michael's as she talked. Absolutely. Was it possible, the attorney wondered, that someone else's cell phone had found its way into her car that night? Not a chance, was the reply.

Anyone who follows courtroom dramas on television will be familiar with this scene. An attorney has led a witness to declare without reservation that a particular fact is so. He even offers several alternatives, all rejected by the witness who continues to aver that the way she says it was is the way it was. And then the attorney moves in.

Mr. Weber rose from his chair and picked up a piece of paper. He showed it first to the prosecutor, who asked to examine it. She frowned as she looked it over, and then handed it back to the defense counsel. He then showed it to the court clerk and had it marked as evidence. And then he showed it to Tammy.

*"Do you recognize this document?" he asked. When she said that she did, he asked her what it was. She said it was her cell phone bill. He asked her to look at the bill and read the list of calls. She frowned as she peered at it, but before she could say anything more the prosecutor objected.

There followed then a sidebar, which is actually a conversation held directly in front of the judge's chair. The attorneys mount the platform and huddle across the expanse of the judge's desk. Their conversation is, remarkably, inaudible to the jury which is sitting only a few feet away. This particular sidebar lasted probably a full minute, and when it was over the defense attorney retrieved the cell phone bill from Tammy. Just before he sat down at his table he asked her if she paid the bill herself. She said that she did, but that she never looked at the details, she just wrote a check for whatever amount was on the bottom line. With that, the defense attorney concluded his cross examination.

We never saw nor heard about the cell phone bill again.

The prosecution called several more witnesses. There was the officer who had started the initial investigation, a rookie state policeman who arrived at Tammy's mother's house at 2:00 a.m. and who took until 11:00 to complete paperwork and interview witnesses even though his shift ended at 7:00 and he was scheduled for a week's vacation. Also called were Michael, Tammy's mother, and Tammy's friend Cindy, whom Tammy had phoned while on her way to Larry's house to report that she couldn't hang out with Cindy because she was going swimming.

The most dramatic testimony, besides Tammy's, came from "Steve," one of the gang who habitually hang out at Larry's store. He had been there that night, witnessed the horseplay behind the chip rack, and had given a statement to the rookie officer at about 9:00 the next morning. I noticed that Steve had spent both days of the trial sitting on what had become the defense side of the gallery, beside a woman who was obviously Larry's wife.

It was clear from the outset that although Steve had been called by the prosecution, he was most hostile to the prosecutor. When she asked him about statements he had made to her, he said that he remembered talking to her because her phone call had awakened him, but he didn't remember what he'd said.

Ms. Orsini looked at him with the same look Sam Waterston gives on Law & Order when a witness suddenly deviates from the testimony on which he's been coached. She shuffled through her papers and produced a document that Steve said he recognized as the statement he gave to the police officer the morning after the incident, outlining what had happened in the store. He said he wrote it and he signed it, but it was largely false. He said he didn't really remember the horseplay and his fear that Tammy was in a situation that she couldn't handle.

He said he'd written those things because he was frightened and uncomfortable and wrote what he thought the officer wanted him to write. He was now recanting his statement.

Ms. Orsini was left with no choice but to recall the officer, who testified that he had not told the witness what to write, that he had let the witness talk about what had happened without guiding his recollection with suggestive questions.

Court had been in session for nearly four hours. The storm had increased in intensity, and I knew that a fierce wind had begun from the way the spears of rain slammed against the windows. We were excused for a short lunch, and I was left wondering why so much time had been spent on testimony regarding events at the store, since no one alleged that any crime had been committed there.

(*Dialogue rendered in quotation marks here is to be taken as a narrative device used to recreate what has been retained in the writer's memory and not as a reliable transcript of what was actually said.)