Lying Defendants and their Lawyers

In the Albany County Criminal Court the other day, a drama played out that essentially justified Shakespeare’s advice: Kill All the Lawyers. It was the sentencing of a defendant who had been convicted after a jury trial of raping and sodomizing a young woman he’d picked up in a bar. She woke up later, covered in her own blood, in a bathroom in his house, with a fragmented memory of the night. The jury didn’t buy his story of a consensual sexual encounter (confirming my faith generally in the good sense of juries). The judge sentenced the defendant to 20 years in prison and 15 years of post-release supervision (parole, in effect).

What caught my attention here – as a lawyer who has tried many felony cases to juries, but never a sexual assault – was how the defense lawyer conducted himself in characterizing the female victim. CONSENT is the usual defense in this type of date-rape case – a claim so routine and clichéd that I would be shamed to stoop to dwell on it, to espouse it to a jury except in the rarest of circumstances. (Attack the Victim, in the parlance of the trade). But the defense lawyer in this case had no such qualms. In his opening statement to the jury he promised: “The evidence is going to show that the sex was not just consensual – she wanted it. She asked for it. She was awake for it. She encouraged it. She moaned for it.” For Chrissakes! The lawyer continued in this vein during his cross-examination of the woman.

Interviewed outside the courtroom after the sentencing, she spoke plainly: “I will never forget the sickness I felt in my stomach as he asked me about an invented sexual encounter with the rapist sitting at the defense table,” she said. “The sickness I felt then was similar to how horribly violated I felt the night I was attacked. It was disgusting.”

The Judge’s take on the Consent Defense? “I’m in my mid-60s,” he said in pronouncing sentence. “Other than reading the Marquis de Sade in college, I don’t recall ever hearing of injuries of this type being caused by consensual sex. That was not consensual sex!”

The lawyer responded that his oath requires that he defend his client zealously.

Yeah, right. Makes me think about switching sides.

Robert Knightly