Thomassy took a deep breath. He looked at me, at Francine, and then at Lefkowitz. His audience was paying attention.
"Okay," Thomassy continued, "how do we do it? How do we play back to the jury a tape recording of what they themselves really think when they think sex? Mr. Lefkowitz, every lawyer handles things a bit differently, but suppose you were to get up close to the jury and ask them, each of them, to think of the worst kind of sex they ever heard about, the sexual thoughts that most repel them. Suppose you got them to play the tapes inside their heads, gave them a chance to think of whatever kinky things clutter their consciences. Then let them off the hook. Remind them everybody thinks things like that from time to time. We're not here to evaluate anyone's sex life except as force is used to push it on other people."
For a moment I thought Francine was going to put her hand on Thomassy's. I wished her not to do that, not for my sake, but for Lefkowitz's. He had enough to contend with without being exposed to the personal relationship between victim and advocate.
Lefkowitz wrote down one word on his yellow pad. I prayed the word was "force."
Then Thomassy continued. "From your presentation the jury is certain to conclude that the issue is not temptation. Of course the victim is not at age twenty-seven a virgin. She has the same moral standards as innumerable scientific surveys have shown to be predominant in her generation — which is different from the jury's generation unless you're damn lucky and can get some younger people impaneled. She is a professional woman. Educated. She lived alone out of choice. She had no reason to suspect that a neighbor she saw frequently in the building would introduce himself into the apartment by deceit, as the testimony will show, and then use force to foist his sexual demands upon an unwilling person. I'm certain you'll set it up so that when Brady goes through his shtik, the jury will hear it against the background of what they remember from your presentation."
I wished Lefkowitz took more notes. A man like Brady could eat him alive.
"I'm sure most of this has occurred to you," said Thomassy.
"Yes, but do go on," said Lefkowitz. "It's useful to hear you frame it your way."
I concealed my smile. That young pup has learned his tricks.
"Good," Thomassy continued. "It won't hurt to consider the point that ordinary men and women have very little understanding of the enormity of rape as an experience.
"Suppose you were to convey to the jury the idea that everybody hears all the time and nobody believes. The two big crimes are supposed to be murder and rape, but everybody thinks murder is terrible and rape is something to be discussed with the women's movement.
"Why the different attitudes to rape and murder? You've got to get the answer across. We're used to murder. All the literature we're exposed to from the time we're kids deals in murder. Start with the Bible, Cain kills Abel. Take the jury through Mickey Spillane, if you have to. Murder is commonplace in our imaginative lives. The ten commandments put it straight, Thou shalt not kill. When it comes to forcing sex, the commandments hedge. Thou shalt not covet thy neighbor's wife. Hell, everyone covets his neighbor's wife from time to time. The issue is force. The commandments may fudge it, but the law does not. Rape and murder have been the two big capital crimes. You've got to bring them together in people's heads. I mean the people on the jury.
"Some judges will let you get away with a hypothetical instance. Let's try this. If you eliminate all other people except the potential victim, murder is still possible in the form of self-murder, suicide, still a crime on the books. But if you eliminate all other people, rape is impossible. What you're left with is masturbation, and that's not a crime. In a rape case, we need to focus on the other person. There's no doubt about who the other person is. Koslak. He just says he didn't force it. So we concentrate on the issue of force."
The thought occurred to me that if I had heard a lecturer like Thomassy in law school, I might possibly have been tempted in a different direction. Law as the theater of ideas in a forum of power? Ah well, for me it was too late. Thomassy was going on. I couldn't afford to miss any part of it. To Lefkowitz he was saying, "You're Jewish, aren't you? Well, let me suggest something else for your consideration.
"There are a lot of things one can't suggest directly to a jury. Every lawyer has a different way of getting things across by body language, intonations, allusions, subliminally. I'm sure you'll be able to find a way to reminisce about various things. There'll be a lawyer at the accuser's side who is of Armenian extraction. Perhaps that lawyer has a strong feeling about rape because the Armenians, the first Christian community in modern times, were early in this century subjected to rape as well as murder by the Turks on a scale that, in your reflections, can only be described as genocide. In fact, you yourself can allude — you'll know how to do it without rattling the judge — to the fact that you, representing the people's case in this courtroom, cannot forget that in this century, in which six million of your coreligionists were exterminated, many of the women, the attractive ones, had the option of choosing repeated rape in the SS brothels instead of death, and that after the experience of rape, many chose death. You'll have alluded to the Christians and the Jews, and if you can keep Brady from objecting, you'll have covered everyone in this jurisdiction. What you are accomplishing with all the finesse you can muster, all the indirection at your command, is to get the jury to see rape in all its historical enormity. Once you do that, Brady won't be able to mock, disparage, or trivialize what happened. I'm certain you can do it."
Lefkowitz poured himself an inch of water from the carafe on his desk. "Mr. Thomassy," he said, "I respect your experience, but do you really think the judge would let me get away with that?"
"It all depends on how you do it," said Thomassy. "Look, one thing you can count on is that none of those jurors will have been a victim of rape or be related to a rape victim. Brady'll knock them off for cause before they're impaneled. Therefore, it is your obligation, you explain to the judge, because people know so little about the crime of rape, to give them some background, some filling in."
"I was hoping," said Lefkowitz, "to avoid emotionalism in my presentation."
"I don't expect you to be emotional at all," said Thomassy. "You're far too skilled for that. You're just alluding to facts about the historical context quietly. Be as cool as you want to be. The emotion will be in your listeners."
Thomassy's puffing up of Lefkowitz seemed to be working. The young man billowed with each stroke. He turned to me, and said, I thought a touch condescendingly, "Mr. Widmer, you've had longer experience at the bar than either of us. Do you have any points you'd care to have me consider?"
I would have had him consider his youth and his mortality. What I said was, "Mr. Lefkowitz, my practice, as you may know, is very different from Mr. Thomassy's. I've never uttered a word inside a courtroom. I would find it exceedingly difficult to present this case."
"Mr. Widmer," said Lefkowitz, "I've had a good deal of experience these last two years, in criminal matters I mean, and my percentage of convictions, on cases where I presented the cases not just prepared them, is significant and rewarding."