The Silken Tent My Letter to the World September, 1999

I awoke Friday morning to discover that the storm had ceased and the morning light promised that the day would have a clear early autumn quality. The wind had stripped weak limbs from trees along our street, and some properties were strewn with torn leaves and broken branches. Out on the main road, however, I discovered huge trees heaved up whole, some lying along the roadway or smashed against  people's cars and homes with most of the front yard attached to their rootballs.

Power was out in large sections of the city's northern suburbs, and I could get neither gas nor cash from the ATM at the Uni-Mart at the corner of Rt. 39 and River Road. The storm, it seemed, had swept through Dauphin County more like a tornado than a hurricane, devastating some areas and leaving others merely wet.

Still gripped by the pathetic fallacy, I thought about the decision I would soon be called upon to make. My experience as a juror had taken up a week of my life, but my greatest sacrifice had been having to miss one of my daughter's field hockey games, and long term effects were likely to take the form of lots and lots of writing material. The real principals in the case would see whatever verdict we reached affect the rest of their lives.

Only two matters were left before the jury would retire to decide the case -- the attorneys' closing arguments and the judge's instruction.

Summations are opportunities for trial lawyers to display their oratorical skills, to wax dramatic about the heinous nature of the crime and the victim's continued suffering or the obvious innocence of the accused and the continued pain that an unwarranted verdict of guilty would pile on to his already shattered life. To their credit, both the district attorney and the defense counsel in the matter of Tammy vs.Larry delivered reasoned, if slanted, recaps of the evidence and the testimony.

The district attorney emphasized the ordeal that the trial process forces upon a woman who lodges such a complaint. She is victimized again in having to tell her story aloud to strangers, in having her credibility and character called into question, in having details of her life that have no bearing on the charge nevertheless laid out for all to judge. Victims of sexual assault are known to become so discouraged during the process that they withdraw the charges, unwilling to subject themselves and their families to the continued stress. That Tammy stuck with this for fifteen months spoke to the truth of what she said.

The defense attorney allowed that something happened to Tammy that night, but it did not involve his client in the way that Tammy alleged, it had not happened at his client's home, and justice would not be served in finding Larry guilty of a crime that had not even taken place. Tammy, he suggested, had concocted the story to get Michael's attention and sympathy and as a way to open up a new relationship with him, a strategy that proved ultimately futile. Involving the police and criminal charges against Larry had been her parents' decision, and she found herself unable, for fear of parental and legal repercussions, to stop the process. While he sympathized with Tammy's dilemma, he could not allow her to make an innocent man a convicted felon.

The judge's charge to the jury laid out the specifics of what constitutes indecent assault and indecent exposure, an explanation so thorough that we were left with no question about what "is" is. We were reminded that the charges were separate, and we could return a finding of guilty on one but not guilty on the other, guilty on both, or not guilty on both.

We were not told what any potential penalty a conviction would carry, because punishment was not our concern. The judge reminded us that a consideration of the facts was the primary vehicle by which we should reach a decision, but that we could also apply common sense and life experience in interpreting the testimony. He excused the two extra jurors, passed the verdict slip through the bailiff  to the first juror seated across from him (who became, by default, our foreman), and sent us upstairs.

As we filed out, I looked for the first time since opening day at the gallery behind the prosecution table (I had avoided this on other treks out and in). Tammy had laid her head on her father's shoulder and was dabbing at her eyes. Her mother was riveting each of us with a hard, solemn stare.

Once a jury retires to deliberate, their movements and ability to communicate with others is even more controlled than before. A tipstaff took our lunch order (sandwiches from the unappetizing selection in the dinky basement lunch counter, restricted by the fact that it was Friday and they were out of stock on most items until Monday) because we would not be allowed to leave until we had reached a verdict, or at least until nightfall.

If we had a question, it had to be written on a slip of paper, placed in a sealed envelope, and delivered silently by the foreman alone to the tipstaff stationed outside the door. In Pennsylvania, jurors are not allowed to take notes during a trial nor to have a printed transcript of testimony available. A portion of testimony would be read back to us if requested, and the judge would give an oral explanation about points of law if something remained unclear. This would, of course, entail our returning to the courtroom and assembling the judge, the attorneys, the accused, and the stenographer, all of whom were free to go to lunch or attend to other matters elsewhere.

After the lunch order was taken and the tipstaff had left, we sat in silence for a moment.  It was 10:30. Someone suggested a quick poll. We were as evenly divided as we could possibly be -- four said Guilty, four said Not Guilty, and four were Not Sure. I was one of the Not Sure.

Of the four Not Guilties, only one had what I would call the wrong reasons -- that is, she judged Tammy to be a slut who teased and flirted, who put herself in a dangerous situation and deserved what happened to her. In other words, the juror accepted Tammy's story but absolved the attacker of any responsibility for his actions. We had to remind this juror (repeatedly) that it was not Tammy who was on trial, nor even accused of any crime.

Of the four Guilties, two of them had some doubt about the story of what happened at the pool, but were certain that an indecent assault had taken place behind the chip rack and were appalled at this behavior from an adult married man. They had to be reminded that nothing that had taken place in the convenience store was part of the indictment, even though an explanation of what happened there had taken up a fair amount of time.

The three other Not Guilties had reasonable doubt that Tammy was there that night. They pointed out that there was only her "She Said" testimony that placed her there. There were no witnesses who saw her car there, no one to whom she told her destination when she left her house, no one who had even heard Larry invite her there. Her incorrect description of the pool's landscape was a further indication to some that she had fabricated the story.

Another Guilty based her (the jury now had ten women and two men) decision on the belief that women do not invent tales of sexual assault and stand by their stories for months. She reasoned that the penalty for indecent assault was probably short, if any, jail time, and it was more than likely Larry would be given probation. Thus Tammy's only motive or reward would be a moral one: the satisfaction of knowing Larry had been judged to have hurt her.

The Not Sures had various reasons. For myself, the crux of the matter had to do with being able to place Tammy at the pool on the night in question. I was willing to allow her the mangled description of the fence, reasoning that she was concentrating on the assault and pulled from her memory the picture of the fence with which she was most familiar. (Although I also know that victims of sexual assault also often concentrate with particular care on just such a detail as a fence, as a way to distract themselves and maintain some control.)

I was also willing to accept her contention that she had not cried out for fear of causing pain to the family members in the house. I believed she felt some guilt at placing herself in the situation, although I would not let that absolve Larry.

But if Tammy were telling the truth, then the friend with the Father's Day troubles had to be lying. It was easy for me to believe that he was lying to protect his friend. But it was not easy for me to believe that the very professional and forthright defense attorney would not see through the lie, and I could not accept that he would suborn perjury.

Our debate was careful and calm, and I will forever have respect for my fellow jurors for their willingness to listen to alternative lines of reasoning. for the attention they gave each person's point of view. We listened, we talked, and ultimately quieted ourselves for a period of reflection before taking a final vote. At 2:00 we signaled the tipstaff that we had reached a unanimous verdict and were ready to return to court.

My seat in the jury box did not allow me to see Tammy and her supporters without twisting awkwardly. I did, however, have a clear view of the accused. His demeanor had been utterly neutral throughout the proceedings, and he sat now as he had for two days, showing us an open but unreadable face.

The process of reading a verdict is exactly as it appears in courtroom dramas. The judge asks the formulaic question -- "Has the jury reached a verdict?" "We have, your honor," the foreman replies. The verdict slip is then passed from foreman to bailiff to judge, who opens it, notes its message without reaction, and then passes it back.

The foreman then rises, and the bailiff asks, "What say you on the charge of indecent assault?"

"We find the defendant not guilty."

"What say you on the charge of indecent exposure?"

"We find the defendant not guilty."

"So say you one so say you all?"

We nodded and murmured our assent. At the first verdict Larry closed his eyes and let his head drop, and I could see the tension drain from his shoulders. He raised his head then and looked directly at us, his face reflecting relief, and perhaps a subtle sign of thanks. His wife let out an audible but controlled sigh. No sound could be heard from Tammy's area.

We were discharged with the thanks of the court not only from this trial, but from our subpoena to be available as jurors. Our service was concluded and we were free to resume our normal lives. As we were led out of the courtroom and up the stairs for the final time, I looked over at Tammy. She and her mother both now fixed us with the same cold stare.

The courthouse was virtually deserted. We returned briefly to the jury assembly room on the fourth floor to collect jackets and bags. Another juror and I boarded an elevator. It stopped at the third floor, and when it opened I could see the district attorney leading Tammy and her family toward it. My companion pushed the Close Doors button just as the prosecutor turned to reroute them. On the main floor I rounded the corner of the elevator bank to see Larry and his entourage, including his attorney, having a conversation in the corner of the lobby. I slipped out the side door and reached the parking garage (where only jurors are allowed to park) without being seen.

As I had anticipated, the air was crisp and bore the scent of autumn and apples under a clear blue sky. I drove home, changed my clothes, and by 3:30 I was at a middle school field hockey game, cheering my daughter and her teammates whose faces and forms showed me the joy and strength and innocence of youth.