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An unlikely story

Every trial is a story.  The prosecution has a story.  The defense has a story.  Oftentimes, the defense story is nothing more than that the prosecution hasn't proved their story beyond a reasonable doubt.

The prosecution's story in my rape case was that four black guys in their twenties and thirties picked up a drunk 19-year-old white girl from in front of the casino, took her back to their house, took turns raping her, then dropped her off at a local gas station, where she promptly called the police.

That's a pretty good story.  And since there was DNA all over the place -- including places you don't want to know about -- the defense story had to be consent:  that the girl chose to have serial sex with four guys, and her faculties were not impaired when she made that choice.

I liked the prosecution story better.  So did Frank and Rich, who were representing the other two defendants.  Didn't matter what we thought; any plea deal would have to be a package, with all three defendants signing on (the fourth wasn't caught), and Frank's guy wasn't going to cop to anything.

One of the problems of trying a case with co-defendants is that the lawyers can wind up stepping all over themselves:  you want to make some points, but buy the time it's your turn to cross-examine, the points have been muddied up and the jury is bored to death anyway.  That never happened here.  Frank did a great job of setting the table, Rich did a methodical job with the major points, and I'd tidy everything up.  Here's a vignette:  me cross-examining the DNA analyst about why the rectal swab came back positive.  "Wouldn't it be possible after sex in the missionary position for semen to leak from the vagina and into the anal cavity?"  "Yes," she replied.

Mother would be so proud.

We've come a long way in our treatment of women and sex offenses, but it still boils down to the character and credibility of the woman.  To sell our story, we had to cast the alleged victim for the role of someone who would agree to have sex with four guys, and the 19-year-old girl here, whom we'll call Molly, fit the bill perfectly.  Not because she was trampy, although that was a part of it.  She wasn't very bright.  She testified about being raped with as much emotion as you'd expect from someone describing their lawnmower being stolen.  And she was such an obviously damaged soul with so few boundaries in her life, her story so full of inconsistencies, that no juror would find her credible.

They didn't.  After seven days of trial, the jury was out little more than an hour, with an acquittal on all twenty-one counts.  I did my best to comfort the prosecutor.  "Jeez, after that one, Scott, you deserve a nun for your next victim."

Mother would be so proud.

Rich and I were assigned counsel, and the maximum fee for a felony one in Cuyahoga County was $1,000.  That's what it had been for the past quarter century, anyway, but the powers-that-be loosened the purse strings, and now it's all the way up to $1,500.  That was effective February 1, but only applies to cases assigned after that date, and we'd been assigned four months ago.  I actually had about 55 hours in the case, and at the exorbitant hourly rates -- $50 for out-court-time, $60 for in-court -- that came to over $3,800.  Rich, who had about the same, suggested we file for extraordinary fees, and I agreed.  We asked for $2,000, and figured they'd at least give us the $1,500 under the new rates.

A week later, I walked into the judge's courtroom.  There were a bunch of schoolkids clustered around the bench, but he looked up at me and said, "Mr. Bensing, I thought you did an excellent job trying the case, and I denied your motion for additional fees." 

It didn't go particularly well after that.  His final comment to me was, "We appreciate what you guys do."

Mine was, "Yeah, you just don't want to pay for it."

I start another rape trial next week.  I was assigned to it back in October.


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