The Trial You Won't See

If daytime television were always this good, "Days of Our Lives" and "Oprah" would be in big trouble. Once again, the magic of the medium allowed Americans to watch a real-life drama undress itself before their very eyes. Two months ago, the venue was the U.S. Senate: Anita Hill against Clarence Thomas. Last week, it was room 411 of the Palm Beach County courthouse: a 30-year-old woman vs. William Kennedy Smith. The stakes were different; so, too, the charge. Yet all the nation, tuning in to cable coverage, had the same question: who was telling the truth-and who was telling a lie?

The question went unanswered in October, even as Thomas narrowly won confirmation to the U.S. Supreme Court. It's as likely to go unresolved this time around. Even though a jury will reach a verdict, only the most needle-nosed of lawyers will interpret it as truth. A trial is not so much a rendering of scientific truth as it is an accommodation of social policies, a balance of interests and, of course, a game akin to cat-and-mouse. Nobody could mistake the Smith trial for a dispassionate inquiry into What Really Happened at the Kennedy compound last Easter weekend. Both sides can agree only that they met, they talked, they danced and then left the now infamous Au Bar for the Kennedy family's oceanside compound in the early hours of March 30. The truth of what happened next--brutal rape or act of consensual sex--will never be known.

The courtroom theater more than lived up to its advance billing. It was a rape complainant's worst fears come true: her bra and panties held up to the nation as evidence, an aggressive defense attorney ripping her story. An electronic smudge hid her from the camera, but the rage and pain of Smith's accuser was just as indelible. "Your client raped me!" she defiantly told defense counsel on cross-examination. For followers of America's First Dysfunctional Family, it was a treasure trove: Teddy Kennedy, 25 pounds lighter but still a bit puffy, wishing he'd "gone for a long walk on the beach instead" that night; his son Patrick, transfixed on the stand like a deer caught in Jeep headlights, recounting his morning-after "joke" to Smith, asking whether he had used condoms the night before.

If truth were really the object of this proceeding, then Judge Mary Lupo wouldn't have refused to let the jury hear from three other women who claim they were sexually assaulted by Smith in the '80s. "He grabbed me by the wrists, threw me over the couch ... pinned [me] to the floor by his wrist with him on top of me," one of the women, now a Washington physician, told investigators. This was evidence both sides knew was pivotal and its exclusion gave the defense a victory even before the jury was impaneled. (Of course, the jury may know about the allegations anyway, since they made headlines in July.)

If truth were the goal in West Palm Beach, the jurors would have been able to consider the alleged victim's psychological history; that she had three abortions; perhaps even that she was photographed in a T shirt reading DECADENCE IS A WAY OF LIFE. But the rules of evidence--which protect both accused and accuser-- create their own universe. In the case of the alleged prior assaults, the judge ruled that they weren't similar enough to the current charge in order to satisfy Florida law. It's not that they were irrelevant; they were so powerful that they might overwhelm the jury.

As the prosecution presented its case last week and the defense strived to tear it apart, the dissonance between the trial-you-see and the trial-you-don't was easy to notice. The reasons, though, were not. A star witness for the state, Anne Mercer, performs poorly. Why did prosecutor Moira Lasch call her? Ted Kennedy takes the stand. He evokes his family's tragic past and reminds the jury that he would have heard anything that night since he slept with the windows open. Why did Lasch call him? Defense attorney Roy Black has Rolls-Royce credentials. Why did he turn so coarse when questioning the accuser? In the middle of the battle, neither judge nor counsel is available to provide the answers. Trials, however, are more than isolated events. As in a game of chess, seasoned lawyers can spot the stratagems and gambits underlying the routine moves.

Things weren't supposed to go so badly so quickly for the prosecution. Opening statements on Monday were straightforward enough. Lasch drew a portrait of a "cruel and violent" act by the defendant against a woman's will. Black, overselling his case, brazenly told of "a totally consensual act of love between two people." Lasch's Smith was the wily monster; Black's was a normal fellow being punished by a vengeful lover who hated men. All they could agree on was that intercourse in fact took place. After the accounts of several minor witnesses, Mercer--a tall, blond, blazered woman, wearing a double strand of pearls and a tight headband-took the stand. It was the logical time for her to testify: she was the friend that the alleged victim summoned to the Kennedy house. A key witness, she was supposed to corroborate the victim's condition that night.

But her monosyllabic answers to Lasch surely chilled the jury. Worse, her grudging admission to the relentless Black-that she accepted $40,000 to appear twice on the tabloid show "A Current Affair"-portrayed her as a mercenary willing to sell out a friend. Black went in for the kill when he read from a statement she made to investigators about her comments to Smith during her "rescue" of the accuser. "I'm sorry we had to meet under these circumstances," Mercer had said. Mercer tried to hit back. "Sir, you are painting me as a liar." Which is exactly what Black succeeded in doing. She was a fiasco for the state's case, a classic capitulation under cross-examination. "Starting with Mercer was crazy," says Northwestern law professor Ronald Allen. "When your first major witness performs horribly, you leave jurors wondering about your whole story."

Because Mercer was such a disaster, Lasch called the alleged victim to the stand Wednesday-earlier than the prosecution apparently had planned. Her surprise appearance stunned the courtroom. Articulate and credible in an intensely painful setting, the accuser obviously represented the heart of the state's case against Smith. All the experts and friends in the world couldn't win over a jury that didn't believe her. Much as Smith wore an earthy rumpled sports jacket to contrast himself with starched lawyers, she came in conservative garb: a single strand of pearls and a little stickpin on a charcoal-gray suit. It was the opposite of her tabloid depiction as party girl.

Over two days, she offered a tableau of a diligent single mother with a sickly daughter meeting a nice Jekyll at a bar who becomes a raping Hyde hours later. She powerfully recounted the alleged attack and the nightmare that followed. "I thought he was going to kill me," she sobbed. Still, for all the prosecutor's efforts to paint Smith as a volcanic drunk, the victim was able to put only one beer in his hand. And while her sobs and wrenching "I don't know's"-- Newsday counted more than 160 failed recollections--parried many of Black's questions on cross-examination, they also left a series of blanks at key intervals. Why did she go to the house after a purported rape? Why can't she remember when she took off her pantyhose? On that empty slate the defense this week will paint a very different story. The much-discussed pantyhose, for instance, will be a central feature in Black's presentation of the defense; Black will argue that it was taken off during heavy sexual activity long before the alleged rape.

Black took pains to avoid looking like a bully. Each time the woman broke down ("Why do you have to ask me questions like that?"), he asked for a recess. His hope: to make her look more manipulative than maligned. He also chose to forgo questions on the physical abuse the woman allegedly suffered as a child; that was the one area of her past that the judge ruled was admissible. The alleged victim did best on the redirect examination by Lasch. Bouncing back from four hours of pounding by Black, she explained why she was going through this ordeal. "I didn't want to live the rest of my life in fear of that man," she testified, shaking her finger at the defendant's table. "And I didn't want to be responsible for him doing it to someone else." The only trouble was the last sentence, which Black pounced on because it had nothing to do with Smith's guilt or innocence. Black objected and, in a private sidebar with the judge, presumably asked for a mistrial; the judge simply told the jury to ignore the remark. Washington defense lawyer Greta Van Susteren suggests a tired Lasch was either "sloppy or stupid."

Questioning the accuser gave Lasch and Black the best chance to demonstrate their styles. Lasch "is about as tasty as cold oatmeal," says Gerry Spence, the prominent Wyoming lawyer. "Yet you have the sense that she's real, that she's not hiding anything." Since Lasch has had a superb record in 12 years as a prosecutor, her dry, monotone delivery seems to help her avoid seeming slick or glib. Black, by contrast, is concentrating on befriending the jurors. "They're going to hesitate before they convict Roy Black's client," says New York University law professor Stephen Gillers, "They're thinking Black is a nice guy. He wouldn't defend a rapist."

Ted Kennedy, the U.S. senator from Massachusetts and Smith's uncle, was supposed to boost the prosecution's portrait of drunken debauchees gone wild that night. Capitalizing on any anti-Teddy feelings wouldn't hurt either. "Guilt by association," Allen labels it. Nonetheless, calling the senator carried risk. Prosecutors are minimalists: they call witnesses to supply evidence that can't be gotten any other way. Kennedy didn't have much substantive to add to the events of March 30. And he obviously wasn't looking to help.

Whisked into the courtroom Friday after lunch, Kennedy conjured up little of the bloated image he's known for. Dressed in a sedate suit and striped tie, he looked the part of the senator. He testified that he talked to the alleged victim only briefly at Au Bar, the nightspot where Smith met the woman. The senator knew nothing of whatever transpired on the lawn at the compound. It was 40 minutes of largely useless testimony. The judge blocked Lasch's attempt to ask him about his exploits there earlier in the week, specifically the night he took an old girlfriend out. And she barred questions on whether he had misled investigators who came to the house.

As it turned out, Kennedy's grace may have helped his nephew. The senator said he lamented ever going out that night, even if he did to unwind after an emotional family discussion about the death in 1990 of Smith's father, Stephen. Kennedy said Stephen became "another brother" to him. Tears streamed down the nephew's face. Black also managed to invoke the family's heritage of sorrow, including a reference to his dead brother Bobby.

Later Friday, the senator's youngest son, Patrick, was sworn in, Patrick, a 24-year-old state legislator in Rhode Island, had gone out to Au Bar with his father and cousin. He knew more than his father, providing a sharply different account than the alleged victim of the chronology of March 30. In addition, he recounted a conversation with Smith that night in which his cousin said this woman was behaving strangely. She called Smith "Michael," she asked for his driver's license, she said she'd been to the estate before. The morning after, Kennedy said he asked Smith whether he'd used "protection. " "He said, 'No, but thank God I pulled out'," Kennedy recalled. Since Patrick's testimony set up the defendant's own case this week, Lasch's hope in calling him herself was to get a preview-and maybe poke holes in it. The tactic didn't work.

Lasch's last witness--an expert on rape-trauma syndrome--was excluded, so the prosecution's case ended Saturday with a whimper. Black then began to parade an array of forensics specialists to the stand: architect, gynecologist, meteorologist. Their task is to suggest that the accuser's version doesn't make sense: someone would have heard her cries, her clothes would be torn, her bruises worse. These alone can plant the requisite doubt in a jury. But they are the preliminaries. Smith is the main event. He doesn't have to testify, but it's almost a certainty he will. "This guy has to," says Jack Litman, the New York lawyer who defended Robert Chambers in 1988 in the Preppy Murder case. "He's been walking around telling too many people it's a damnable lie."

If he testifies, Smith will tell his side: about a date, consensual sex and an angry woman bent on revenge. Black's various cross-examinations laid the framework, but it is the defendant who will have to seem believable. That isn't always easy. In demeanor alone, Spence says Smith needs work. "He's got this omnipotent smile," Spence says. "It looks like he's trying to be a sweetie pie." By taking the stand, Smith will be betting everything. "You change the focus of the whole trial," says Dan Webb, the former Chicago federal prosecutor who questioned President Reagan during John Poindexter's Iran-contra trial. "Nobody will even remember the cross-examination of those earlier witnesses."

Smith faces a greater danger. If he slips up--if he makes his history with women an issue or gives himself a character reference--he'll open the door for the prosecutor to impeach his credibility. How? By calling those three women to testify about his alleged attacks on them in the '80s. "You can be sure Black will lecture Willie about this," Van Susteren says. "It's like a mine. Once you step on it, you're cooked."

Barring such a blunder, discounting all the experts and sideshow witnesses, the case of the State of Florida v. William Kennedy Smith will likely come down to who those six anonymous jurors believe. The accuser or the accused? Him or her? It may not be the truth, but in the end it seems pretty fair.