Rape Case Comes with a Price Tag

We stand just outside of a courtroom in the hallway of a courthouse somewhere in the Midwest.  We are silent for a few seconds as he just looks at me, bewildered.  And then with speed and intensity that surprises me, he just throws himself at me.  He throws his arms around my neck and just . . . weeps.  Not silent tears like you get in a movie theater.  I mean the kind of weeping you get when you really really mean it.  His voice breaks and he keeps repeating unintelligible things into my chest as the tears continue to fall and his whole body just convulses.  

I immediately look down the hall, noticing that it is packed with people who all immediately stop doing whatever it is they are doing and look at us.  I try to imagine what these people see or think.  Two big guys in an embrace outside of a courtroom.  Me, in my typical black suit looking as always the stereotypical criminal defense attorney. Whatever. They don't see the tattoos, scars or just plain mileage.  My client, a button down shirt and pants barely large enough to cover his obvious size and strength, and yet, falling to pieces, vulnerable. And what I do next is the only thing I can imagine.  I throw my arms around this man, my client and pull him in. Put my hand on the back of his head and just squeeze.  I don't give a shit what these people think.  

How we got to this place is still an odyssey that I'm trying to figure out.  I received a call from another attorney who'd received a call from this man's family about this very difficult rape case.  For some reason, the attorney couldn't or wouldn't take it but referred it to me. I was on vacation in California when the call came through. As I listented to the facts and allegations on my phone, I looked around at my family jumping around the car.  What a weird juxtaposition that was. They laugh and jump as I listen to the facts and quickly try to organize my thoughts. 

Upon my return to Minnesota, I have the family come into the office to talk.  We talk about this nightmare and what they, no, what we can do about it.  And from the beginning, things just don't add up. There is just something here that doesn't make sense. Just doesn't seem to fit.

They know each other. They are out drinking with a bunch of other people. They end up in an apartment together with those same people. They clearly have sexual contact. But, that's when the stories diverge. Further, this woman's statements and claims strike me as not only inconsistent with statements given by others but also inconsistent with other statements she herself gives.  After all, facts are facts and some things just don't change.

Over the next year, we are in and out of court a half a dozen times and the ramifications of him being convicted just seem to get worse and worse.  He is looking at years and years in prison.  It might as well be forever from his perspetive. It isn't just the prison or the fact that his family will be destitute. There is something else too, the sexual predator registration requirement for anybody convicted of anything rolling out of a criminal sexual conduct conviction.  This will dog him for the rest of his life and he knows it and so does his family.  

Throughout the year, one interesting thing does stay consistent however. My client stands by his story.  I didn't rape her.  I didn't!

As the fight continues, the pressure to win increases along the way.  When I was a prosecutor years ago, you fight for the amorphous "state."  As a defense attorney, you are in the trenches and are surrounded by your people, those accused and the families and children who wave goodbye to their fathers and mothers, sisters, brothers, etc. who go to prison if you lose.  So, it becomes very very personal, or at least it does for me.

On the day of trial, I'm ready.  I've lived with this case for so long.  I've tried to contemplate every angle. I know every objective fact and every subjectve statement. I know what kind of jurrors I want. I know the world that I want to build for them in opening statements. I know how I want them to feel. And now it is the time.

The jury has been brought up and we are ready to go.  I've tried a lot of cases but this one feels a lot more personal to me.  And with all of the time that I have spent, there is still something about the claims made, the statements given, and just my belief in the human experience, that tells me that there is still something wrong here, that this just did not happen.

We end up in the Judge's chambers. Me, the prosecutor and the judge. Damn, when did I get so old?  I'm older than both of these people. Shit.  

And then the prosecutor drops her bomb.  She has witness issues.  Oh boy.  It changes everything.  As a former prosecutor, I rememeber trying to convict people of crimes without the cooperation of the complaining witness, the victim,  It is damn near impossible.  And in a date rape case where it is a he said, she said circumstance, its insane. 

At this point the prosecutor knows she's lost, sort of.  She can't really move forward today but she always has the option to dismiss and then recharge.  They generally hate doing this but it has certainly happened to me and to others as well.  My concern in that the complaining witness/victim could always change her mind and we may likely be back in the position.

So, the offers from the prosecutor start coming.  Instead of the years and years in prison, we can amend the charges down to a lesser felony and no jail time.  This sounds great considering what my client faces but if you are innocent, it may not be enough.  Also, the charge would still require registration as a sex offender.  So, he's screwed for future jobs, current job, apartments or anything else of value.  My client says no.  Gutsy, I think!  

The prosecutor offers an even better deal, no jail and a gross misdemeanor.  However, the registration requirement continues.  Nope.  Aint gonna happen. Wow, I say under my breath.  

So I say, "let's try the case."  We get ready to stand up and pick a jury.  Hell, I'm ready anyway.  

Then the prosecutor takes it a step further. "I'll just dismiss and come back again and recharge."  Damn.  I don't want this because I know its possible.  So, I suggest something else.  How about a continuance for dismissal?  The advantages to this are that it is not an admission, it requires no registation, it is not a conviction and ultimately the case is completely dismissed. And, most importantly, it locks in the prosecutor into a deal so that they can't possibility recharge and prosecute my client again.  To my surprise, the prosecutor agrees.  

I sit with my client and lay out his options slowly and as clearly as a can.  He looks like he's getting every third word. I can't blame him.  If it were me, I'd probably be worse.  So, I do it again. And again until his head clears. He likes it and wants to take it despite his continued claims of innocence. Remember, he is admitting nothing.

As we go on the record in the courtroom and I lay out the deal for the court, I keep looking at my client.  He looks confused, stunned, angry, sad all combined.  As I finish putting everything on the record and he agrees, I grab my client and turn him and and push through the double doors into the hall where he stares at me. Where everybody seems to be staring. Right where I started this story.

Coming down the elevator, my client refuses to wipe the tears from his face.  Trust me, nobody would say a word about them regardless.  As we are about to separate, he throws himself at me one more time.  I whisper in his ear, "Go home.  Kiss your family."  The words catch in my throat.  Now its me shaking.

Walking to my car, I feel numb. I realize that I'm breathing hard and that my face is wet.  I can't seem to stop the tears this time. I stand there as people walk by and look away uncomfortably not wanting to see but watching despite it. I don't even care.  

This is the nature of doing a job like this. Its real life. Its really hard. Its visceral and if you are going to fight the fight, then you better be prepared for the costs, emotional or otherwise. So, I wipe my face, pick up my bag, and know that while what I do is not rocket science, and I'm not changing the world, I did one little thing for one person and his family on this day.

At least for right now, that has to be good enough for me.