THE CASE OF THE WITNESS WHO SURPRISED EVERYBODY

“You may have to fight a battle more than once to win it.”
                                        ― Margaret Thatcher

“That which does not kill us makes us stronger.”
                                        ― Friedrich Nietzsche

In the early fall of 1990, on another typically warm, clear Monday morning in Alva, Florida, twenty miles east of Fort Myers, Matilda (not her real name), was busily preparing to open the convenience store near the intersection of State Road 80 and River Road. In her mid-thirties, tall, sturdily built, with curly strawberry blonde hair to match her fair, slightly-freckled skin, Matilda was just minutes away from unlocking the doors for the 7 a.m. start of business. She was too busy to notice the man standing outside.

Two days earlier, at a North Florida prison, Damian (not his real name) was released on parole after serving a long sentence for sex crimes. Now back home in Charleston Park, a tiny residential community close to Alva, he stood at the plate glass window of a convenience store watching Matilda’s movements within the store – all alone.

Damian knocked on the glass door to get Matilda’s attention. Matilda heard the knock, and made gestures to Damian that the store was closed, and returned to her duties. Damian banged harder and shouted. Taking a closer look, Matilda noticed the person was large, muscular and seemed quite agitated. For her safety she decided not to open the store until other customers arrived. Grabbing a heavy object, Damian managed to shatter the glass door. Matilda immediately dashed out the back door. Without a car, a weapon or a cell phone, she ran to River Road leading to the narrow, two-lane drawbridge which spans the Caloosahatchee River. She figured her best bet was to cross over the bridge, find a safe place in the Alva village center, and call 9-1-1.

Damian chased after Matilda. There was no traffic to hinder his pursuit. He caught up to her at the Alva Bridge, overtook her, threw her down, and there, in early morning’s broad daylight, within view of the village center, Damian raped Matilda.

Sexual assault is one of the worst traumas any person could possibly experience. Afterward, another trauma, some say just as bad, often looms ahead – the likelihood of testifying in open court, in the presence of the accused, before a jury, at a public trial. For any lay witness who has ever given testimony in a public trial, the experience ranges from a mild inconvenience to paralyzing terror. The needle swings from the green zone, through the yellow zone to the red zone depending on how important their testimony is, the gravity of the case, and what’s at stake if the witness “blows it” on the witness stand. If he or she is the only eyewitness to a serious crime, the stress and the pressure get even worse. But the very worst of all is being the sole eyewitness to one’s own rape.

Rape cases are unique. No matter how good the forensic and other circumstantial evidence is, they rarely supply sufficient proof of the most crucial element of the crime: forcible penetration against the victim’s will and without consent. The jury must conclude that the victim’s state of mind was a settled choice not to have sexual intercourse with the perpetrator,[1] and the perpetrator’s state of mind was to overpower that will and to overcome any resistance. So, the big question is whether the encounter is a serious sex crime, as alleged, or merely two consenting adults having sex. Successful prosecution of a rape case without the victim’s testimony on those two points is almost impossible,[2] so it is essential that the victim testify. Damian’s past, along with some undisputed facts in the case will surely keep him off the witness stand. Consequently, two things must happen: the jury must believe Matilda’s testimony while Damian remains silent, and, more importantly, Matilda must show up for the trial.

For obvious reasons rape victims may be afraid to testify, but the fear of confronting the defendant at a public trial and having their credibility savagely attacked is not the only reason. Victims are often unwilling to cooperate with police and prosecutors because law enforcement is not always supportive of them. Oftentimes even they have their own doubts about the victim’s credibility and wonder if the jury will feel the same. However, if the prosecution is sufficiently satisfied that the victim will help them carry their burden of proof, they will prosecute, but there is still no guarantee she will appear in court when called.

Under these circumstances, overcoming the strong urge not to testify at all requires stout nerves and plenty of courage. For months rape victims live in dread of the forthcoming ordeal in the courtroom. Matilda had been previously warned that the defendant’s ticket to acquittal will be reasonable doubt created by the defense attorney trying to portray her either as a liar or a slut, or both. She’s also been advised that Damian will surely not testify, given his record of past sex crimes, so this will not be a he-said-she-said duel. Instead, it will all come to rest on her shoulders. What a burden that must be.

Matilda agreed to bear that burden and walked into the courtroom when her name was called. By doing so, she provided me and a courtroom full of people with one of the strangest occurrences I ever witnessed in my twenty-eight years of observing trials from the bench.

When I was assigned to the Criminal Division of Florida’s Twentieth Judicial Circuit Court in 1991, the case had already been in the pipeline for quite some time, and I had no idea what the facts of the case were until the trial started. The prosecution had earlier informed me of Damian’s abysmal criminal history. A conviction for another rape, committed within 48 hours of release on parole would send his sentencing guideline score through the roof – all the way to the mandatory maximum sentence of life without parole. We call this a “toe-tag sentence,” meaning that when the prisoner next exits prison walls there will be a tag tied around the big toe of his cold, dead body.

Given the circumstances, the prosecution was offering nothing less than a straight up plea to a toe-tag sentence. With no offer of a lighter sentence in return for a guilty plea, I assumed the prosecutors must have had assurances from Matilda that she would testify and they were satisfied she would make a credible witness. They would not have to face those dilemmas we see on Law and Order SVU where the victim’s character is highly impeachable or she is flip-flopping on whether to even show up and subject herself to the torture of confronting her assailant and airing this dirty business in court. For Damian, facing life in prison with no chance for a lighter sentence, he had no choice but to roll the dice and go to trial.

The trial was expected to be relatively short, a couple of cops, a couple of forensic experts and the victim. The defense had no witnesses except Damian, a certain bet to maintain silence. In any rape trial, the victim (whom we must refer to in court as the alleged victim) is the climactic witness, and this case was no exception. Matilda entered the courtroom wearing a plain white, long-sleeve blouse, and dark slacks. She wore very little make-up. Her hair was slightly unkempt, pulled back from her face and secured with a few hair clips. Nevertheless, she looked presentable, the type of person from which a jury, at first glance, would not draw negative conclusions. That must have come as a relief to the prosecution because in rape trials the prosecution needs every advantage they can muster to get a guilty verdict. The importance of a positive first impression of the star witness cannot be overstressed because rape cases are especially hard to win because so much can go so wrong, so fast and so unforeseeably, which is one reason why so many rape cases are never prosecuted.

Matilda approached the witness stand looking confused and frightened, which was okay because jurors would not expect an alleged rape victim to prance confidently into the courtroom. She quietly said her “I do” in response to the oath[3], and made her way to the witness stand. My seat on the bench is less than six feet from the witness stand and only one stair step higher, giving me a clear, closeup profile view of witnesses. Matilda was definitely frightened. From my vantage point, I could tell she was shaking beneath her loose-fitting blouse.

The prosecutor walked her through some softball introductory questions, mostly designed to relax her, and she managed okay. Then came the crux of her testimony – describing the assault. She fumbled for words at times and looked truly disturbed, getting more uncomfortable by the minute. Then, about seven or eight minutes into her direct testimony came that most unusual event, something I’d never seen before or since, either in real life or on television.

The prosecutor was working his way up to the most important question of the trial: “Is the man who committed the acts you’ve described present in the courtroom, and, if so, please point him out and describe an article of clothing he is wearing.” But we weren’t there yet. He asked a question building up to the big question, but there was no answer. A long pause followed. Her long silence grabbed my attention. Then suddenly her chin dropped to her chest and her eyes shut. I thought she was perhaps trying to regain composure or thinking about her answer to the question. Instead, she gradually leaned forward, eyes still shut, and then she slumped against the front of the witness stand. I thought she had fainted. The bailiff rushed to her aid as she began to gradually slide out of her seat down to the floor.

A judge’s first instinct is to determine if the witness is all right, followed within a split second after that with what must be done to prevent a mistrial. The bailiff signaled for someone in the courtroom to call 911. While attending to Matilda, the bailiff reflexively shielded her from the jury’s view. I immediately ordered another bailiff to remove the jury from the courtroom. While they exited to the jury room, Matilda was being gently lowered down from the witness stand and placed, supine, on the courtroom floor, still unconscious and unmoving. Her breathing was shallow. Her pulse was weak. Everyone was baffled. If she had fainted, she surely would have revived, but she remained unconscious and motionless. The EMTs arrived within minutes, rendered whatever immediate aid they could, then loaded her on a gurney and rushed her to the hospital.

I restored the court to order and everybody went back to their places. I have no memory of watching Damian to see what his reaction was, but I’m sure he felt encouraged. Perhaps he thought she might now be incapacitated and unable to identify him, or better yet for him, she might die. At the very least his attorney would move for a mistrial. There was no doubt the trial had definitely taken a turn in Damian’s favor, and things were obviously not looking good for Matilda and the State of Florida. I had the jury brought back into a calm courtroom. I didn’t disclose much information, other than that she had become ill and the trial was recessing for the day. When the jury left, I had no idea if the trial would resume tomorrow, or ever.

Later that day we learned what happened. Matilda suffered from diabetes, and had been so frightened about testifying that she had not eaten for three days before her court appearance. She had lapsed into a diabetic coma on the witness stand. One can only imagine the fears, questions and doubts racing through her mind that would place a diabetic into such a risky physical state. At the emergency room she was stabilized, released and cleared to return to court the following morning. The big question was whether she would show up, and if so, what effect would the events of the day before have on her today. Matilda showed up.

Outside the jury’s presence, I interviewed her in the presence of counsel to assure myself that she was capable of returning to the witness stand and resuming her testimony. Still pale, she remained nervous and frightened, but she said she was okay, and I ruled the trial could resume. The defense then moved for a mistrial, claiming the incident the day before drew sympathy from the jury and hence prejudiced his client. I denied the motion and the trial proceeded.

Matilda took the stand and without hesitation pointed out Damian as her assailant and described the clothes he was wearing. She did not waver and answered all questions to the prosecution’s satisfaction. She withstood cross examination and left the courtroom, this time under her own power.[4] As expected, Damian maintained his right to remain silent, and both sides rested. It took the jury less than two hours to find Damian guilty as charged.

About five weeks later came the sentencing hearing. Matilda appeared, but declined to exercise her right to give a victim impact statement. She knew her statement would not affect the sentence; it was already mandated by law, and nothing could change it. She chose to sit silently in the rear of the courtroom and observe. Nevertheless, I took a judge’s personal privilege to tell her that she was the bravest witness I had ever encountered. I told everyone in attendance that she not only had to endure the double trauma of being savagely raped and testifying about it, she then endured a third trauma of lapsing into a diabetic coma on the witness stand, being hospitalized, and having to return the next day to face her assailant one more time. I commended her for her uncommon courage and resilience in helping the State of Florida put a very dangerous man in prison for the rest of his life.

Matilda, the rose now restored to her cheeks, held back tears and nodded her appreciation with a wan smile.

Although I wished her the best, it’s hard to know how a rape victim’s life will turn out going forward. I write this piece approximately 30 years since she made her brave stand in my courtroom. If she is still alive, Matilda would now be in her 60’s. I can only wonder, but I genuinely hope she survived this tragic episode without much permanent harm. I’d like to think she’s fully restored, though that is unlikely given what she endured. Nevertheless, she certainly deserved to be made whole.

Damian’s life since the trial is much easier to speculate upon. He’s either gotten his toe tag or he remains locked up in a Florida maximum security prison. A lot can happen in prison. Lifers can change over time and become productive and even rehabilitated inmates. Most likely, if he is still alive, his physiological age far exceeds his chronological age, as surely his strength and energy by now have been stripped away by three decades in prison. Nevertheless, I hope he’s a better man today than he was when I last saw him. But no matter how he turned out, good or bad, he ought to remain incarcerated for the rest of his life for what he did to Matilda, so he can never do it again to another woman. At least I can take comfort in that.

[1] The victim need not cry out “No” or offer physical resistance. It’s a matter of the totality of the facts and circumstances.

[2] The victim cannot testify about to the perpetrator’s state of mind, but can describe the perp’s actions, giving rise to the inference of criminal intent.

[3] Oath-taking looks so perfunctory to lay people that they hardly notice it or think of it as some old custom carried forward for the sake of tradition. Actually, oath-taking is the witness’ key to the witness stand. If they fail to respond, decline to respond, or appear not to understand the oath (e.g., young children or low functioning adults), they are deemed incompetent and not eligible to testify. Judges know this and are trained to observe witnesses closely as the oath is administered, and must immediately do something if not satisfied that they are legally “under oath.”

[4]  In these times the name Matilda seems like an odd fictitious name to assign to our heroine. I chose it because it’s an Old English name meaning “might, strength and bravery.”