The Furthest City Light (8 page)

Janet went to her parents and told them she didn’t want to spend the rest of her life worrying whether her husband would come home at the end of each day. She asked them to break the news to Hal and his family. Although Hal’s mother, Louise, assured her parents that Hal was willing to choose another career, Janet refused to hear of it; her husband, she said, would always hold it against her. And so she managed to extricate herself.

“Did your parents suspect anything?” I asked.

“You know, I think they knew it wasn’t the real reason, but they didn’t ask. They just supported my decision. I’ve always been grateful, especially now.”

We picked at our food and wondered out loud why Emily hadn’t seen the writing on the wall the way Janet had.

“She probably did,” I said. “She just didn’t run.”

Janet pushed her plate away, and then dropped her napkin on top of it. Outside our window, a river of people flowed down Colfax Avenue on their way back to work. “I know this sounds ridiculous,” she said, “but I actually feel a little guilty.”

I nodded sympathetically. “It sounds ridiculous because it is, but I understand what you’re saying. Because you managed to get away, your look-alike had to suffer in your place. Emily on the cross.”

She laughed. “Something like that. It truly took my breath away when I saw her picture.” She paused. “Do you think it would be too painful for her to meet me?”

“I don’t know,” I said, giving up on my food as well. “I’ll think about it. I wish there were some way you could testify at her trial.”

Janet pulled out a twenty-dollar bill and laid it on the table. “Please, let me pay. I’d be happy to testify, but would it be admissible? I’m a paralegal, but I mostly work on civil cases.”

I made a face. “No, probably not. It was a minor incident compared to the abuse we’re alleging Emily suffered and it happened thirty years ago. I’ll file the motion, but I can’t imagine Judge Thomas letting it in.”

We stood up to go. “Well,” she said, “I’m willing to help in whatever way I can. I want to support her.”

We hugged and I watched her walk down the avenue, tall and straight, back to the law firm where she worked, the Emily that might have been. And then I thought of my real client snug in her cell at the Boulder County Jail, dreaming her life away.

***

In a murder case, you can’t file too many pretrial motions. Twenty-five is good, fifty is better. If nothing else, you might set up some error that could later be appealed if your client gets convicted. Compared to most murder cases, however, Emily’s was pretty straightforward. She’d either acted in self-defense or she hadn’t. There were no snitches in the case, no codefendant confessions, no critical scientific evidence or procedures to litigate. The blood was Hal’s, the confession Emily’s. The victim was dead and the only other eyewitness was my client.

Still, I’d managed to draft thirty-seven motions, some of them demanding additional information, some moving to suppress various searches and statements, and the rest requesting the court to rule favorably on the admissibility of “crucial” defense evidence—Dr. Midman’s and Janet’s testimony—and unfavorably on the admissibility of “highly inflammatory and prejudicial” prosecution evidence—photos of the autopsy, Hal’s life insurance policy, et cetera.

My strategy was to fight hard on every single motion as if any adverse ruling would be a major violation of my client’s constitutional rights. Because the judge would rule against me on every substantive motion, I was hoping he’d feel guilty enough to give me what I really needed: Dr. Midman’s testimony. If he did, it would be a first. I knew Jeff would strenuously oppose it, but I had the advantage of being in a jurisdiction where it wasn’t nice to make the defense lawyer cry. I
needed
my expert. I
had
to have her. If it meant lying down on the courtroom floor, kicking my pumps off and screaming, then so be it. Later, I could always change my name and practice law somewhere else.

There was only one case, a probation revocation hearing, scheduled before ours. Emily and I sat in the jury box and watched Ellen Silver—the new baby lawyer in our office—cross-examine the defendant’s probation officer. I tried to pay attention so that I could give Ellen some helpful feedback, but I was feeling too distracted. Dr. Midman hadn’t arrived yet and I was getting a little nervous.

Emily patted my hand. “She’ll be here, Rachel. She’s very reliable.”

“How do you know?”

My client smiled. “Because except for my intimate partners, I’m an excellent judge of character.”

I turned to look at her. “So Hal wasn’t your first lover?”

Emily blushed. I loved that about her. “No, I had one other boyfriend—lover—in college.”

“Tell me about him.”

She shook her head. “There’s nothing to tell. It lasted about nine months and then I received a letter informing me it was over.
C’est la vie.
So, what’s the game plan today?”

“Wait a minute. You’re changing the subject too fast. Did you love him, and why did he break it off?”

“I don’t really want to talk about it.” One of the other inmates had trimmed her hair in a very becoming way. Emily was always pretty but unlike most of my long-term clients who typically gained ten to fifteen pounds eating the starchy jail food, Emily was losing weight. I wondered if she was secretly worrying about the case but didn’t want to tell me. She hated, as she put it, “to distress” me.

I waited patiently.

“Don’t be so nosy. How could this possibly be relevant?”

I shrugged. “I don’t know whether it’s relevant or not. Maybe I am just being nosy, but I represent you on a charge of first-degree murder. Your life is in my hands.”

“Oh, for God’s sake. Yes, I loved him and he didn’t tell me the reason he wanted to end it. I felt hurt and then I got over it. Satisfied?”

“Thank you,” I said. “Speaking of past lovers, I had lunch a few days ago with a woman named Janet Ellers.”

Emily nodded. “Yes, Hal’s ex.”

“Right. How did you know her name?”

Emily smiled mysteriously. “I have my ways. Actually, Hal and I used to talk about her. We didn’t keep any secrets.”

I wondered if I should tell her what Janet looked like. I doubted he’d told her that. If it helped cut some of Emily’s loyalty toward him, I was all for it, but what if it backfired and simply caused more pain, more caving in?

“One day,” Emily said, reading my mind as usual, “I was looking through Hal’s wallet trying to find a ticket from the dry cleaners, and I found an old photo tucked behind some other pictures. It was Janet’s.”

“Oh,” I said. “So you know what she looked like?”

“She looked like me when I first headed off to college.”

“What did you do?”

“What did I do? Oh Rachel, sometimes you’re so young and idealistic, so sure of yourself. I put it back in his wallet. I knew how it felt to be rejected.”

When would I ever learn? Like all of the favorite people in my life, Emily refused to be pigeonholed. Sometimes she acted according to my invisible script, but just as often, she ignored it. How unfair, I thought: to be the best possible defense attorney I had to be a control freak, and at the same time I had to understand and even anticipate that nothing would ever go the way I expected. No wonder I was confused.

By the middle of the afternoon we’d resolved every motion except the one concerning Dr. Midman, who’d shown up on time looking sleek and elegant (a babe, Vickie would have said). There had been no surprises. As I’d predicted, Judge Thomas granted most of my discovery motions and denied everything else. Janet would not be allowed to testify, whereas the crime scene video, autopsy photos and Hal’s insurance policy were all coming in. Since each of the searches in the case as well as Emily’s statements to the police passed constitutional muster, they were also admissible.

“All right now,” Judge Thomas announced. “Shall we deal with Ms. Stein’s final motion concerning Dr. Midman?”

Jeff and I both nodded. I hoped he was as tired as I was.

“I’ve read your briefs,” the judge said, “as well as an offer of proof from the defense. I understand, however, that Ms. Stein would like Dr. Midman to take the stand and summarize her proposed trial testimony. I will allow a short presentation.”

I stood up. “Thank you, Judge. As you know, the only issue in this case is self-defense. Without Dr. Midman’s expert testimony concerning the battered woman syndrome, a jury can’t be expected to understand why my client reacted the way she did. Unless Dr. Midman is allowed to educate them concerning the syndrome and to give her opinion as to whether Ms. Watkins exhibits all of the characteristics of a battered woman, my client won’t receive a fair trial. I can’t stress how pivotal this testimony is to our case—”

“Ms. Stein,” Judge Thomas interrupted, “I understand how important you think this is. Please, why don’t we hear directly from Dr. Midman?”

“Thank you, Judge. May I assume you’ll accept her as an expert on the psychology of battered women without my having to qualify her?”

“Yes, for the purposes of this hearing only.”

Jeff was beginning to feel left out. He jumped up and stated his strong opposition to my motion, reminded the judge that no court in Colorado had ever recognized the syndrome, and how unfair it would be to the prosecution if the defense were allowed to call an expert to give an opinion about whether the defendant acted in self-defense when the defendant was perfectly capable of taking the stand and telling the jury herself.

“It’s not rocket science, Judge,” Jeff argued. “Despite Ms. Stein’s assertions to the contrary, the issue of whether a person acted in self-defense is fairly simple to determine. If you allow Ms. Stein to call Dr. Midman at trial, you’ll be allowing her to put her client on twice to say essentially the same thing. It’s unfair and it’s unnecessary.”

The judge nodded. “I understand your position as well, Mr. Taylor. And now, could we put Dr. Midman on the stand?”

I motioned to Karen Midman, who was sitting in the courtroom, to come forward. My proposed expert was indeed lovely, which never hurt. I watched Judge Thomas follow her progress from the back of the room to the witness stand. She was slender, with green eyes, and honey-colored hair that kept falling across her face. Her blue silk pantsuit fit her perfectly. She sat down, smiled at the judge, and then raised her arm for the oath. I glanced over at Jeff and caught his eye. Using standard courtroom telepathy, I told him I was sorry, but that I had to win this issue no matter what. You’re not sorry, he shot back, and I hope to God you lose.

After a few preliminary questions, I asked my expert to explain the battered woman syndrome.

She nodded. “Certainly. The syndrome constitutes a series of common characteristics that appear in women who are physically and psychologically abused over an extended period of time by a dominant male figure in their lives. Although in rare circumstances the victim may be a male, the literature suggests that the vast majority of victims are women. Dr. Lenore Walker conceived the phrase, ‘battered woman syndrome’ in 1979 in her groundbreaking book,
The Battered Woman
. I’ve included in my affidavit a bibliography of other books and studies on the subject that I’m familiar with as well.” She stopped and took a drink of water.

I waited until she put her glass down. “Dr. Midman, are you aware of any cases in this country where the syndrome has been recognized by a district court judge in a criminal case?”

“Yes. It’s been recognized in a number of states. Two years ago, for instance, it was recognized in Washington in a case called
State versus Allery
. I was the expert witness in that case. I know it has also been recognized in New Jersey, North Dakota, Missouri and Kansas. There may be other states, but those are the ones that come to mind.”

“Thank you. Could you now tell the court why expert testimony is crucial in this particular case?”

“Absolutely. In a battering relationship, violence doesn’t occur all the time. Rather, there’s a cycle of violence, which has three phases. The first is a tension-building phase, the second is the acute battering stage and the third is a tranquil and loving phase. The cycle is continually repeated until the victim becomes unable to predict her own safety or the effect that her behavior will have on the abuser. As a result, the woman is reduced to a state of learned helplessness and is no longer capable of determining exactly when she is in danger. Because Emily stabbed her husband as he was coming toward her—before he physically touched her—it’s essential that a jury understand why she reacted the way she did. In situations such as this one where an uninformed jury would not see any threat or impending danger, an expert can explain how a battering relationship generates different perspectives of danger, imminence, and necessary force.”

I nodded in agreement. “Can expert testimony help the jury in other ways as well?”

“Oh sure. Expert testimony can rebut jurors’ stereotypic assumptions by explaining why a battered woman like Emily would stay in an abusive relationship, and why she never sought help from the police or from her friends.”

I then asked my expert a number of questions about Emily’s background and history of violence. I had at least ten more questions, but stopped when I saw Judge Thomas glancing at the clock. I couldn’t afford to irritate him. I needed this expert more than I’d ever needed one in any other case I’d tried. If it had been allowed, I would have massaged the judge’s back, washed his feet and prostrated myself before him. I might have even promised never to be late for court again.

“Thank you,” I said and sat down.

“Mr. Taylor,” the judge said, “I will allow a short cross-examination.”

Jeff walked to the podium without any papers in his hand. He’d interviewed my expert a few days earlier and—if he lost this hearing—would save his real cross-examination for trial. All he’d do today was try to show how irrelevant and superfluous her testimony would be. I was confident she could hold her own, but I still felt anxious.

“She’ll be fine,” Emily whispered.