Jane Doe January (18 page)

Back in Cambridge, I have John's obituary from
The Times
on my tablet, along with a transcript Evan has sent me, of Libbi's recent, similar case, which is over four hundred pages. I carry them with me everywhere. My iPad feels figuratively heavy.

Libbi's told Evan: no plea. We're going to trial. I can use her recent case to help me prepare.

The recent case is the same as ours in that it's a cold-case stranger-rape of a college student in Shadyside; different in that the man had worn a mask, threatened with a weapon not just bare hands, and that he'd finished with his DNA on her clothes not in her body. As in our case, there are two victims in court, but in this case only one rape being tried, because the other victim is getting her own trial in her own county; she only testifies in this case in support. Libbi goes for two things: contesting DNA-test accuracy, and contesting the
victims' descriptions. She doesn't touch victim credibility, or grill them unduly. That's good. I can prepare for this.

I look to the transcript to set my expectations. That trial took three days, at least the part that I'll be there for. Before then, there were pretrial motions and jury selection for the attorneys and judge. Libbi asked for a postponement (I must expect this), and was denied at least in part because the main victim had traveled.
Good
.

I settle in and read it.

In the pretrial requests, Libbi says “you know” as an interjection three times in a single paragraph. She doesn't speak like a teenager anywhere else. Maybe she was nervous at the start.

In the jury instructions, the judge is expansive. He explains everything that's going to happen, and the jury's main duty, which is to assess the credibility of witnesses. Everyone who testifies is a “witness,” whether victim, police, scientist. You can be a regular witness, testifying to something you experienced, did, or saw; or an expert witness, testifying to a subject you know a lot about. The jury is also charged not to get information about the case from anywhere but the courtroom, and not to talk to anyone about it, not even each other. He tells them flat out: you can't trust what the media reports, so don't read or listen to anything about the case. He says that the typical daily schedule will be nine thirty to eleven, lunch, then one thirty to about four thirty. Not too long a day, but he promises that listening to testimony is taxing.

He also points out that it may be difficult to hear, and that the heaters will be turned off (it was January) because they're noisy. Evan had told me the same thing about the air conditioners when we'd thought our trial would be in June. Pretty, landmark building; uncomfortable to work in.

Everyone has a role. The judge isn't referred to as the judge, but as “the Court.” The prosecutor is “the Commonwealth,” meaning Pennsylvania. Her name is Ms. Necessary. One of the foren
sic scientists they mention is Mr. Askew. It feels like a Restoration comedy. Aprill testifies in this case, too, and her name is misspelled throughout, with just one
l
.

The prosecution has the burden of proof, so they go both first and last: first opening statement, first to present their case, last of the two closing arguments. They sit closer to the jury. They're given those advantages because they have more work to do. The defense already has an advantage: the presumption of innocence.

The Commonwealth's opening statement recaps the entire crime. I suppose Evan will do that, too. My testimony will be a repeat, but with feeling. They'll need to hear it from me. They'll need to hear it in my voice, not just my words.

Libbi's opening statement for the defense is dramatic: “[The accused] is somebody's son. He is somebody's brother. He also sits before you today an innocent man. He is not innocent because I tell you he is innocent or because [the judge] instructs you about the presumption of innocence, he is innocent because the Constitution of the United States of America and the Constitution of the Commonwealth of Pennsylvania says that [the accused] is cloaked in the presumption of innocence. That means that you have to presume that he is innocent unless and until Ms. Necessary, if she is able, proves to you each and every one of the elements and each and every one of those offenses beyond a reasonable doubt.”

Okay, I'll expect grandstanding.

If they go chronologically, as they did at the hearing, I'll go first: Jane Doe January before Jane Doe November. Actually, we're only anonymous in the press. In the trial they'll use our names. Everyone will know them; they just won't be supposed to use them outside of the courtroom.

In this similar case that Evan sent me, the victim's account is simple and direct. It looks easy.
I can do this.
She literally just tells
what happened, plainly, with occasional prompts from the prosecutor. Questions about the present come first:
Where do you live? What do you do? Are you married?
These were chosen to put her at ease, and to show her to be successful and settled; presumably they're customized for each victim. Next: all that had happened twelve years ago. Pages and pages of it.

Libbi's cross-examination seems simple at first read-through, but she's going after quality of lighting, initial descriptions of the assailant, and little details that it turns out are differences between this rape and the one that will be testified about later. She'll use all of these in her closing argument to claim that her client couldn't have done both.

Evan and I will have to prepare for this, go over my descriptions to the police carefully, establish that I did see Fryar clearly then and that I do recognize him now. I would never want to rely on eyewitness testimony alone, but, with DNA agreement, I trust my visceral recognition to seeing his picture on Google, in an impromptu lineup.

This case comes down to a battle over the accuracy of DNA identification, in part because the DNA samples here are not as robust as those from our case. The prosecution's big expert is the man whose company was employed to identify the remains of victims of 9/11. He doesn't physically analyze DNA; he takes DNA analysis results and uses statistics and patterns to fill in blanks. The key is that the computer does this neutrally, without reference to any suspected match. In isolation, his computers predicted a match of the rape evidence to this defendant that was in the quadrillions, statistically many times more precise than the human analysis. (My evidence, just from the human analysis, is rated many times more accurate than that, with six more zeroes, so we won't need an expert like this for our case.) He talks so long that there's a lunch break halfway through.

The reason that this DNA dispute is the centerpiece is because the prosecution has nothing else (as the defense will point out witheringly in closing arguments). In stranger-rape, there's no relationship, no buildup, no threats or escalating behavior. The victims here in this case can't even point to his face, because he was masked. It will be similar for us, though I'll have his face to point at. Libbi will sneer that we have “nothing else” to put him in my apartment: no witnesses, no fingerprints, no history. (Of course, if we did have history she would argue consent.) She wants DNA to be the cherry on top of traditional, low-tech evidence. In stranger-rape, though, that's often all there is.

After finishing on the high note of the 9/11 expert and his quadrillions, the prosecution rests. Before the defense even begins their response, Libbi makes a motion for acquittal, based on lack of evidence. It is denied.

Among her witnesses, Libbi calls the defendant's sister, who has photos from her baby's baptism in the same year that the rapes took place. The prosecution objects to the baby niece and the priest in the pictures as irrelevant and potentially prejudicial, but the photos go in as evidence anyway.

Libbi uses the pictures to dispute the victims' descriptions of the little bits of hair and head that they were able to see around the mask, and the color of the skin of his arm, whether “pale,” as one victim said, or “tan,” as in the photographs and as his landscaping job would suggest. The sister testifies to an appendix scar that neither victim noticed.

This makes me nervous. Physical descriptions are hard for me. I barely use them in my writing. I'm much more able to describe how someone makes me feel, and what they do. That's what my descriptions were about: “big” meaning powerful and husky, not tall. “Baby-faced,” meaning incongruously sweet-looking. I daren't
try to describe clothes or hair, which I could too easily get wrong (though the jacket Georgia described at the hearing prompted instant and deep agreement). I must review whatever I said then and stick to it. In the notes, Bill had noted “zipper” because I'd said he'd zipped up his pants, but I don't know if I actually saw that it was specifically a zipper or just assumed it, and meant only that he closed his pants. I hate this.

The third day of this recent trial starring Libbi begins with the option for the defendant to present character evidence. The judge says, “Under the laws in Pennsylvania, an individual of good character is [considered] not likely to commit a crime, and [so] evidence of good character is sufficient to raise a reasonable doubt as to whether that individual committed the crime [with] which he or she has been charged; do you understand that? . . . You have the right to present character testimony . . . Character testimony is not somebody's personal opinion, rather it is that individual's understanding of what your reputation is.”

The defendant declines to speak on his own behalf or to present character witnesses. Considering that he has a weapons conviction, drug conviction, and had been arrested for involvement in a robbery plot from which he'd gone on the run for four years before he was identified by a tipster watching
America's Most Wanted,
that seems wise. The defense rests, and launches into closing arguments.

Libbi appears to be pretending not to understand why some DNA was excluded. Every bit of DNA has two parts: one from the subject's mother, and one from the subject's father. In some of the DNA bits that were deemed of insufficient strength to count in the report, only half of the pair was found. It makes perfect sense that an “insufficient” portion would be incomplete, and that the sufficient-to-report bits were whole. In all of the insufficient cases, the testable parts of the insufficient data did match the defendant;
it's just that there was also a piece missing. Libbi implies that these missing parts were potentially exonerative, and therefore deliberately excluded to strengthen the case, while the opposite is true: if the lab had been keen to rig the results, it would have been better to lower the standard and claim those matches. Libbi's tricky.

She harps on the variance in height between witness approximations versus his actual 5′7″ as testified by his sister. Libbi claims that one victim had described him to be 5′8″ and the other 5′10″, a strange thing to focus on considering how close 5′8″ is to his precise height. And, though it's partly true that the victims said those numbers, Libbi doesn't tell the whole truth. The victims had claimed those heights as the top of the possible range, but 5′6″ as the bottom. The Pittsburgh victim had said that her assailant was “approximately 5′8″ or so or 5′6″.” The other county's victim had said, “I thought between 5′7″ and 5′10″, 5′6″ and 5′10″. He wasn't very tall.” Perfectly accurate, and probably better than I would do, even to guess the height of someone I know well and regularly stand next to.

This kind of brazenly skewed quoting from Libbi makes sense of the judge's later reminder to the jury to base their decisions only on actual testimony, not on the attorneys' summations. “Their statements and arguments and questions are not evidence. The only evidence that you would use to decide this case comes from the witnesses that have come forward to testify and the exhibits that have been given to you.” The jurors are to have each taken their own notes of the testimonies. That's what they should trust, and their own memories.

Libbi ends theatrically: “When Ms. Necessary started her opening statement to you she told you that she represents the Commonwealth. She does. You might take from that that for the Commonwealth to prevail in this case you have to convict my client. I would ask you to think about it a little bit differently. The
Commonwealth isn't just Ms. Necessary and Detective Campbell and [the victim], the Commonwealth is you and I and [the judge] and [the accused] and [his] family. So what should we be worried about as citizens of the Commonwealth? We should be worried about getting our verdicts right, about returning just verdicts. A just verdict has to be consistent with the facts as you find them with the law that [the judge] is about to instruct you and with that burden of proof beyond a reasonable doubt. If your verdict is just, then all of us in the Commonwealth will prevail.”

Then the prosecution closes, answering all of Libbi's spurious claims. Libbi had insisted that the two rapes were very different from one another, very unlikely to have been committed by the same person, because one victim had been punched and the other had only been threatened, among other small variations. The prosecution takes that on handily. Ms. Necessary (her name is Jan, but I adore her last name too much to call her by anything else) says to the jury:

“On TV, rape cases are very dramatic and brutal and because it is TV they show a woman being dragged off the street and being kidnapped and repeatedly tortured. All those shows [show] sadistic rapists. There are other kinds of rapists that use power to overcome his victims. He uses just enough power. He is not interested in torturing the victim, just interested in sexually assaulting her. I submit to you [that] that is what the defendant did in each of these cases. He used just enough power, just enough force, to get his victim to submit to what he wanted to do.

“Now if the victim resists then he uses more power, more force. For example, [the first victim] said she sort of panicked when he started taking her shirt off and she was fighting him even though he had a gun. What did he do? He punched her in the stomach and knocked the wind out of her. He punched her in the mouth and subdued her so she did not continue with her resistance.