Did jurors or 'poetry' acquit the accused?

By LOU MARANO  |  Jan. 4, 2002 at 8:06 PM
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WASHINGTON, Jan. 4 (UPI) -- Criminologist Gregory Matoesian writes that defense attorney Roy Black won the 1991 William Kennedy Smith rape trial by catching the alleged victim in "a patriarchal double bind" in which she was "constrained to embrace the patriarchal logic of sexual rationality, and thus be implicated in constructing the same dominational structure that oppresses her and contributes to her own subordination in the first place."

It may come as no surprise that Matoesian is an academic. The associate professor of criminal justice and sociolinguist teaches at the University of Illinois at Chicago.

In a phone interview, he told United Press International that Black prevailed through the use of "creative, improvisational poetic structures." But he also noted the importance the defense counsel placed on picking older, conservative women jurors.

Matoesian is author of "Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial," a book burdened by postmodernist academic jargon and feminist theory. It also is rich in factual detail, not all of which supports Matoesian's thesis that Black won the case because he was "most poetic."

Matoesian said he studies how language operates in the courtroom, particularly in rape trials. He spent a day with Black going over the case. "Legal outcomes" result from who uses language best, he said. "I don't think many people use it better than Roy Black," he remarked, calling the lawyer "the premier criminal trial attorney in Miami."

Matoesian told UPI that Palm Beach prosecuting attorney Moira Lasch had little choice about pressing the case. She had to do so to avoid giving the impression in "feminist circles" that a Kennedy was getting special treatment. "Roy Black felt that in this case being wealthy, being a Kennedy, being famous was the reason why the case wasn't dropped in the first place," the criminologist said.

In the book Matoesian wrote that the prosecution's case was weak at best. "There were no objective signs of physical injury. The victim had engaged in some sort of intimate behavior with the defendant, at the very least, and was attracted to him much more than intellectually, despite her claims to the contrary. Her numerous statements contained striking inconsistencies and damaging information that the defense would surely exploit."

Nevertheless, Mateosian told UPI that -- in his opinion -- the alleged victim probably told the truth. "I told Roy Black, I thought that (Smith) was going to get convicted, because she was crying, she was emotional, she was very spontaneous in the courtroom -- I totally believed her.

"And you know what he told me? He said: 'See, that's because of the jury that we pick. We picked older, conservative female jurors. Young men, when they hear her crying, fall for it."

Contrary to popular belief, Metoesian wrote, Florida vs. Smith was not necessarily a one-sided case pitting the wealthy and powerful Kennedy clan against the inadequate resources of the state and the alleged victim. The alleged victim's wealthy stepfather hired the most prominent law firm in West Palm Beach to represent her interest in the case and assist the prosecutor in any way it could.

In this "classic case of he-said, she-said," Matoesian gave the following example of Black's effective use of language. "The prosecuting attorney said it would be preposterous to think that this woman, after knowing this man for only one to two hours, would consent to having sex with him.

"Here's what Roy Black says: 'Ladies and gentlemen of the jury. It's spring break in Florida.'"

Another example?

Matoesian said that when Black cross-examined the alleged victim on apparent inconsistencies in her testimony regarding intimate physical details of the sexual encounter, "she starts crying. It's very difficult for him to question her. Every time he starts talking about the details ... she starts crying.

"He says, 'This is too hard on you. Let me play the tape.' He punches in a tape made during her statement to the detective where she is not crying. Why is she crying on the stand? She wasn't crying when she gave the statement to the police.

"So not only is Roy Black able to impeach her on the details of the substance of the testimony, he's able to impeach her language -- her emotion or lack of emotion. And, of course, she had given five statements to the police. On some of those, she was crying. He only picked the ones where she wasn't crying."

Rape shield laws prohibit attorneys from making any statements about the woman's sexual history, Matoesian said, and Black was able to get around those laws "by using ordinary language" that (according to the professor's book) "contingently constructs, rather than merely reflects," issues of consent, force and sexual history "within the patriarchal logic of sexual rationality," which he calls "a linguistic ideology for generating inconsistency."

This apparently contrasts with what the professor terms the female model of sexuality: "that sex should occur within a relational, intimate and romantic context and that it does not necessarily have to culminate in penetration."

But did the defense attorney "generate" inconsistency or reveal it? Matoesian said Black circumvented the rape shield law by establishing a chain of events for the night in question. "He said: 'You met him at the bar. You were with him exclusively. There was some kissing in the parking lot at three o'clock in the morning. You were interested in him, weren't you?'

Matoesian said that even though the alleged victim maintained, 'Those were innocent little pecks,' Black insinuated that only a sexually experienced woman would engage in such behavior.

"She took her pantyhose off in the car, for some reason," Matoesian said. "Roy Black told me he felt that was proof of foreplay."

But in the end, patriarchy could have had less to do with Smith's acquittal than matriarchy. Matoesian writes, "Although the liberal, Democratic Kennedy family was visibly upset with Black for selecting six conservative Republican jurors (indeed, at the time they felt he was 'crazy,'), they ultimately found that his counterintuitive strategy worked.

"According to Black, the jurors did not believe (the alleged victim) after a while. 'She cried too much; she kept bringing up her kid all the time for an excuse.'"

Black -- going on the advice of "Cat" Bennet, the jury consultant who died of breast cancer after the trial -- rejected the accepted wisdom that young males would be good jurors for his client and women would be bad jurors. Young males are more easily influenced, Black told Matoesian, while older conservative women are more skeptical of claims of rape.

"The jury foreman was a former Green Beret with numerous medals for combat and said he could remember every detail," Black added. "This guy wasn't going to believe she couldn't remember details 'cause she was traumatized."

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