The Silken Tent My Letter to the World September, 1999

It is one of the basic tenets of the American justice system that a person is presumed innocent until proven guilty, and that the burden of proof rests with the state. At the beginning of a trial, jurors are cautioned not to make any assumptions about the defendant merely because he has been arrested and charged with a crime. Similarly, there is to be no inference drawn from the fact that an accused chooses not to testify in his own defense. It must be the facts, and the facts alone, which decide the case.

The defense attorney had promised in his opening statement to show that Tammy's version of what happened at Larry's pool was not a distortion of facts, but a fabrication. The first witness he called was a young man who identified himself as a remodeling contractor. Larry had hired him and his partner to make some changes and additions to the pool area of his property, specifically, a raised wood deck and a new fence.

The partners operate their business as an adjunct to full time employment. Because they are just getting started, they sometimes rent certain pieces of equipment that they do not yet own. The defense attorney introduced into evidence a work diary kept by the remodelers that indicated they had built a new wood deck across the back of the house, covering a grassy area where the picnic table had always been. The diary was dated and annotated with costs of materials, mileage figures, and other bits of information useful to maintaining a business.

Two weeks before the night in question, they removed the chain link fence, erected a stockade fence along each side of the pool area, and set posts across the back of the property, awaiting the arrival of sections of a decorative wood fence, the design of which Larry's wife had yet to choose. Also introduced into evidence was a receipt for the rental of a post hole digger, dated the day the contractor said he removed the fence and prepared the post holes. In addition, the defense produced pictures of the pool area, now with the new wooden fence in place, which had been taken on a bright winter's day six months after the alleged incident.

According to the defense, then, Tammy was describing the pool area as it had looked the summer before, when she had been a frequent guest at the place. She and Michael had broken up just after New Year's, so it had been six months since she had been there at all. And because she had no relationship with Larry and his wife apart from being Michael's girlfriend, she was unaware that a remodeling project had even been planned.

The next witness was the non-uniformed state police detective who had taken up the investigation some six weeks after the incident, after the case had been transferred from the tiny office in the town where everybody knows everybody else to the main office in the capital city. The officer testified that in his first interview, Larry insisted that no such incident had taken place. He had been at home that night with his wife, his young son, and a friend whom he did not wish to name. The wife had gone to bed early because she was ill, the son was watching a movie on television, and Larry and the friend were sitting in the enclosed lounge area at the back of the house having a conversation.

At some point during the questioning, Larry indicated he wanted the advice of a lawyer. Following standard procedure, the detective stopped the interview at once and asked Larry to call him when he had secured counsel. It would be three weeks more before Larry and his attorney would appear for further questioning.

The defense then called several witnesses in quick succession. Because the night in question was Father's Day, all seemed quite certain about where they were and what they were doing. Larry's wife testified that they had invited a number of guests to enjoy a cookout and watch the U.S.Open golf tournament, even though the patio remodeling was not complete.

She became ill during the cookout, and when her guests left at the conclusion of the tournament, she immediately went to bed. Unable to sleep, she spent most of the evening and night hours moving between her bedroom and the bathroom, which overlooks the pool area. She heard the voices of her husband and his friend and the sound of the tape her son was watching. She testified that had there been a struggle, however brief, in the pool itself, she would have heard it.

The rookie officer who had completed the initial investigation testified that he had observed no obvious bruises on Tammy consistent with a struggle in a pool in which her back had been pinned against a cement wall. He asked her and her mother to go into the bathroom and examine her body for marks. They found a small bruise about the size of a thumb on the back of Tammy's right upper arm, and a scratch on her left wrist. The officer did not photograph these marks because he had not brought his camera.

The final witness, Larry's friend "Craig," testified that he had called Larry at about 9:00 and asked if he could come over to discuss a problem. It was Father's Day, and he was disappointed that his former girlfriend had not let him spend enough time with their baby daughter. Nevertheless, Craig's wife was upset about the amount of time he had spent with his other family, and arguments ensued all around. He knew that he was at Larry's house from 9:30 until 11:30 because it takes a half hour to get from his house to Larry's, and his wife said he had to be home by midnight.

The defense rested without our ever having heard Larry's voice.

Court was adjourned then for what should have been a ten minute recess. The jury was taken to the deliberation room and served the afternoon snack -- a choice of cold sodas or fruit juices. Hot drinks are available only during the morning break. A clammy chill had overtaken the courtroom, indeed the whole building, as the storm built through the day, and I for one could have used a cup of cocoa.

Jurors are not supposed to discuss a case among themselves until all testimony has been offered and they have retired for formal deliberation. Thus we talked of many things, we eleven women and three men, during the time we were confined upstairs. I discovered that one juror had been a college classmate, although we hadn't known each other then. Another was outraged that the Bible is no longer used as an object upon which a witness swears, nor does a witness say that his testimony will be true "so help me God." When told that there are some people who do not revere the Bible and some people who do not call their supreme authority "God," she said those people have no business living in our country. An electric company lineman, observing the storm, said he figured he'd have to report for work no matter what time we might finish on Friday.

Our conversation was so lively that we hardly noticed that the ten minute break had become forty. When we returned to the courtroom, the judge assured us that the delay had not been caused by anyone connected with the trial. It had been caused by the President Judge's need to take care of some matters involving our judge. Evidently, you don't tell the P.J. that you've just sent a jury out for ten minutes and you need to get back.

It was by then nearly 4:00. Jurors held after 4:30 are entitled to certain extra services -- among other things, dinner at a downtown restaurant of the judge's choosing, transportation home if they walked or took a bus, or an armed escort to their vehicles (which are parked in a cavernous underground garage).

Thus only one more witness appeared before us. Tammy was recalled to the stand. The district attorney led her through a series of questions and answers establishing that her main focus while she was struggling in the pool had not been the fence, but her fear that she could not stop the attack from escalating and her embarrassment at having put herself in this situation. Regarding the pictures, she noted that they were taken in full sun and did not themselves actually represent the way the pool looked that night. She had seen it through her fear and struggle on a night that was lit only by a thin sliver of moon two days before new.

Finally, her eyes brimming and her voice wavering, she looked directly at the defendant, and then turned to the jury and said loudly, "This happened to me. I am not lying."

By the time I left the courthouse the rain was so heavy that my windshield wipers couldn't keep up, and I proceeded through the downtown traffic only partly sure I was not about to hit something. I started across a railroad bridge that would allow me a shortcut through a heavily wooded area to my house, saving me about six miles. Halfway across I was turned back by a police officer who had just arrived to set up barriers. The creek at the far end had risen, as it always does in even less severe rain, and the bridge was closed.

At home I took a long shower that only partly dispelled the chill that had seeped into my bones. I put fresh sheets on the bed, slathered myself with my favorite lotion, its scent a mixture of almonds and vanilla, and put a thin layer of Noxema on my face. Noxema always brings back my grandmother and a time in my life when I was utterly loved and protected and had no responsibility beyond reading aloud to her. I keep a jar of it on hand for just such a night as this.

In literature, the term  pathetic fallacy refers to the poetic but incorrect ascription of human feelings to the essentially impersonal force of nature, as in "cruel sea" or "weeping sky." I could not help falling victim to this fault in reasoning as the wind howled and lashed the house first from one direction and then another. It seemed to mirror the conflicting stories I'd heard that day, both equally plausible, at least to me. I knew I faced a difficult decision, one no prayer nor meditation nor childhood scent nor cup of sweet herbal tea was likely to make any easier.