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  “Ms. Stein,” Judge Thomas interrupted, “I understand how important you think this is. Please, why don’t we hear directly from Dr. Midman?”

  “Thank you, Judge. May I assume you’ll accept her as an expert on the psychology of battered women without my having to qualify her?”

  “Yes, for the purposes of this hearing only.”

  Jeff was beginning to feel left out. He jumped up and stated his strong opposition to my motion, reminded the judge that no court in Colorado had ever recognized the syndrome, and how unfair it would be to the prosecution if the defense were allowed to call an expert to give an opinion about whether the defendant acted in self-defense when the defendant was perfectly capable of taking the stand and telling the jury herself.

  “It’s not rocket science, Judge,” Jeff argued. “Despite Ms. Stein’s assertions to the contrary, the issue of whether a person acted in self-defense is fairly simple to determine. If you allow Ms. Stein to call Dr. Midman at trial, you’ll be allowing her to put her client on twice to say essentially the same thing. It’s unfair and it’s unnecessary.”

  The judge nodded. “I understand your position as well, Mr. Taylor. And now, could we put Dr. Midman on the stand?”

  I motioned to Karen Midman, who was sitting in the courtroom, to come forward. My proposed expert was indeed lovely, which never hurt. I watched Judge Thomas follow her progress from the back of the room to the witness stand. She was slender, with green eyes, and honey-colored hair that kept falling across her face. Her blue silk pantsuit fit her perfectly. She sat down, smiled at the judge, and then raised her arm for the oath. I glanced over at Jeff and caught his eye. Using standard courtroom telepathy, I told him I was sorry, but that I had to win this issue no matter what. You’re not sorry, he shot back, and I hope to God you lose.

  After a few preliminary questions, I asked my expert to explain the battered woman syndrome.

  She nodded. “Certainly. The syndrome constitutes a series of common characteristics that appear in women who are physically and psychologically abused over an extended period of time by a dominant male figure in their lives. Although in rare circumstances the victim may be a male, the literature suggests that the vast majority of victims are women. Dr. Lenore Walker conceived the phrase, ‘battered woman syndrome’ in 1979 in her groundbreaking book, The Battered Woman. I’ve included in my affidavit a bibliography of other books and studies on the subject that I’m familiar with as well.” She stopped and took a drink of water.

  I waited until she put her glass down. “Dr. Midman, are you aware of any cases in this country where the syndrome has been recognized by a district court judge in a criminal case?”

  “Yes. It’s been recognized in a number of states. Two years ago, for instance, it was recognized in Washington in a case called State versus Allery. I was the expert witness in that case. I know it has also been recognized in New Jersey, North Dakota, Missouri and Kansas. There may be other states, but those are the ones that come to mind.”

  “Thank you. Could you now tell the court why expert testimony is crucial in this particular case?”

  “Absolutely. In a battering relationship, violence doesn’t occur all the time. Rather, there’s a cycle of violence, which has three phases. The first is a tension-building phase, the second is the acute battering stage and the third is a tranquil and loving phase. The cycle is continually repeated until the victim becomes unable to predict her own safety or the effect that her behavior will have on the abuser. As a result, the woman is reduced to a state of learned helplessness and is no longer capable of determining exactly when she is in danger. Because Emily stabbed her husband as he was coming toward her—before he physically touched her—it’s essential that a jury understand why she reacted the way she did. In situations such as this one where an uninformed jury would not see any threat or impending danger, an expert can explain how a battering relationship generates different perspectives of danger, imminence, and necessary force.”

  I nodded in agreement. “Can expert testimony help the jury in other ways as well?”

  “Oh sure. Expert testimony can rebut jurors’ stereotypic assumptions by explaining why a battered woman like Emily would stay in an abusive relationship, and why she never sought help from the police or from her friends.”

  I then asked my expert a number of questions about Emily’s background and history of violence. I had at least ten more questions, but stopped when I saw Judge Thomas glancing at the clock. I couldn’t afford to irritate him. I needed this expert more than I’d ever needed one in any other case I’d tried. If it had been allowed, I would have massaged the judge’s back, washed his feet and prostrated myself before him. I might have even promised never to be late for court again.

  “Thank you,” I said and sat down.

  “Mr. Taylor,” the judge said, “I will allow a short cross-examination.”

  Jeff walked to the podium without any papers in his hand. He’d interviewed my expert a few days earlier and—if he lost this hearing—would save his real cross-examination for trial. All he’d do today was try to show how irrelevant and superfluous her testimony would be. I was confident she could hold her own, but I still felt anxious.

  “She’ll be fine,” Emily whispered.

  Oh Emily, I thought, I would rather you take care of yourself.

  “Good afternoon, Dr. Midman,” Jeff said. “Have you ever misdiagnosed a client?”

  The witness smiled. “I’m sure I have, at least initially.”

  “You spent approximately six hours with the defendant?”

  “That’s correct.”

  “Would you agree that many clients lie to their therapists?”

  “Some do. Some lie because they’re not ready to face the truth, because they’re in denial.”

  Jeff nodded. “This defendant, even six months ago, would have told you she wasn’t a battered woman. Correct?”

  “Objection,” I said, “calls for speculation.”

  Jeff looked at the judge. “Let’s see if the witness can answer it.”

  “I’ll allow the question,” Judge Thomas said.

  “Yes,” Dr. Midman said. “In fact, she still denies it.” She swept a few strands of hair off her comely face and nodded at the judge who nodded back.

  “But,” Jeff continued in a louder voice, “now that she’s facing a charge of first-degree murder, she’s willing to tell you about all those prior instances of violence.”

  “That’s correct, but she still tends to minimize the violence and the effect it’s had on her.”

  “Dr. Midman, isn’t it true that if the defendant is lying about those prior instances of violence, then your diagnosis of her would be incorrect?”

  My expert leaned forward to emphasize her answer. “Yes, but I don’t believe she’s lying.” Then, she sat back and crossed her legs. Confident but not arrogant, the kind of expert lawyers dream about but almost never find.

  “Well, as far as I know, there are no eyewitnesses to these acts of violence, no witnesses who can even corroborate that they occurred.”

  Dr. Midman nodded. “Unfortunately, that’s often the case. The abuse happens in private and the victim is usually isolated from her friends and family. Many if not most battered women won’t reveal the abuse until they feel safe. Although Emily feels terrible about her husband’s death, she’s now safe from him and can begin to tell the truth about what her life was really like.”

  Jeff was beginning to look frustrated. “Dr. Midman, since there’s no way to verify whether these instances of violence actually occurred, your diagnosis depends entirely on whether the defendant is telling you the truth.”

  “Yes, but by virtue of my training and experience, I’m confident that I can accurately evaluate the information a client shares with me. And, of course, I didn’t base my diagnosis solely on what Emily actually told me or thinks she told me.”

  Jeff was getting nowhere and he knew it. “Just a few more questions, Dr. Midm
an. When all is said and done, only the defendant knows for sure whether she acted in self-defense or not.”

  “I agree.”

  “And no one, besides the defendant, knows for sure what happened in the seconds before she stabbed her husband.”

  “I agree with that as well.”

  When Jeff finally sat down, Judge Thomas declared a recess, promising to return in thirty minutes with a decision. Ellen Silver, our newbie who’d stayed all day to watch the hearing, now came bounding over to the defense table. Her blond bun had come undone and there was a splotch of mascara (which I never wore because it often streaked) above her left cheekbone. She looked about seventeen, but must have been at least twenty-four.

  “Rachel, you were wonderful!” Her eyes shone with the excitement and unmistakable hunger every new public defender feels when they first begin to realize that lawyering could get them higher than any recreational drug.

  “Thank you,” I said. “But it doesn’t matter if I don’t win.”

  “Oh you will. You have to!”

  Her enthusiasm would be tempered in a year or two, but for now it made me smile and at the same time ache a little, as if I were an accomplished athlete at the top of my game, but for how long?

  I left Emily with a sheriff’s deputy who was obviously fond of her. I heard them joking about some of the inmates as I walked Karen Midman out of the courtroom.

  “That was perfect,” I told Karen. “Thank you. I’ll call you this evening with the judge’s ruling.”

  Karen took off her jacket and folded it under her arm. “I always forget how tiring it is to testify. You have to really pay attention. Now, all I want to do is curl up with a glass of wine and a Marge Piercy novel. You must be exhausted.”

  I flashed her my best world-weary smile. “I have miles to go before I sleep, so I can’t afford to notice.”

  She looked concerned. “Don’t let yourself get wiped out, Rachel. These are very difficult cases. In my experience, jurors are not particularly sympathetic to this defense. No matter what you tell them, they still think the woman should have left.”

  During the recess, two more colleagues showed up to root for me. Ray Martinelli, my best friend in the office, really liked Emily and hoped she’d be acquitted, and Larry Hanover, our office head, came to see whether I would make new law. I was surprised how grateful I was for their support. Lately, I realized, I’d been isolating myself in my office thinking I didn’t have the time to wander through the halls and joke around with everyone. I’d forgotten how sweet it felt to be a member of the gang, my chosen professional family.

  We all stood when Judge Thomas entered the courtroom and took the bench again. After adjusting his black robe, he waved at us to sit down.

  “Okay,” he said. “I promise to have a written order by next Wednesday, but I’m prepared to rule as follows: I believe the defendant is constitutionally entitled to present a defense and I am convinced that she can’t do that without presenting evidence concerning the battered woman syndrome. I will therefore allow the defense to call Dr. Midman as an expert on the psychology of battered women and to opine, if she chooses, on the ultimate issue of whether the defendant acted in self-defense. I will not, however, allow the expert to recite the defendant’s statements that were made to her, since I am persuaded that the Stiles case, cited by the prosecution, prohibits their introduction into evidence as an exception to the hearsay rule. This means, of course, that I expect the defendant will take the stand and be subjected to cross-examination, which seems only fair. If the defendant, however, chooses not to testify, that is certainly her right, but I will reconsider my ruling and very likely grant the prosecution’s motion prohibiting Dr. Midman’s testimony. I hope this is clear to both sides. Any further motions based on this ruling should be filed no later than next Friday. Thank you everyone. Court is adjourned.”

  I’d won. It was going to cost the public defender’s office another few thousand dollars, but it would be worth every penny. For a couple of seconds, I allowed myself to sit quietly and bathe in the happy news. If I’d believed in God, I would have thanked her profusely. After my colleagues came up and congratulated me, Jeff walked over and offered us twenty-eight years.

  “You did a great job,” he said. “Twenty-eight is my final offer, though. You have a week to decide.”

  “I don’t need a week, Jeff. We’re going to trial.”

  He shrugged. “It’s your choice. Just because you have an expert doesn’t mean a jury will acquit her. A life sentence means forty real years before parole eligibility. Maybe you should think about it.”

  “There’s nothing to think about.”

  When he left, I turned to my client who hadn’t said a word since the ruling.

  “We won,” I said, smiling. “We now have a decent chance of winning at trial.”

  “That’s wonderful,” she said. “You’ve worked so hard. I hope you can go home now and relax.”

  I studied her face, which as usual gave nothing away.

  “You’re not afraid to win, are you?” I asked.

  Instead of blurting out something inane, Emily considered the question as if it truly mattered. “Well, I might be—I probably am—but I’m more afraid of losing. I hope that’s good enough.”

  “It’s good enough.”

  As I drove home, I noticed the atoms in the air were dancing all around me, that the stoplights were pulsing rhythmically as if they were alive and breathing. Oh well, at least it was worth it, a small price to pay if it saved my client. I thought about Ray’s bleeding ulcer and Larry’s high blood pressure and considered myself lucky. If I closed my eyes, I knew I’d see all the colors of the rainbow bursting through my poor tired capillaries. No problem: I kept my eyes open, concentrated on driving.

  Chapter Five

  I remember the last time I made love with a man. His name was Michael Burnside, and I’d met him at a wild New Year’s Eve party given by one of my classmates. I was twenty-four, in my last semester of law school.

  Michael, who was five years older than me, was already a successful personal injury attorney in Denver and was looking to settle down. After just a few months of dating, I could tell he was a man with a plan: work hard, make money, buy things, marry, have children, enjoy life, retire, buy more things, die. Sharing his life sounded like I’d spend it sitting next to him on a train speeding across a big flat state like Kansas and at the end of the ride, I would be old but not in the least amazed. On the other hand, he was handsome in a blond god kind of way and surprisingly sweet, which I valued. He also had the most beautiful white teeth I’ve ever seen.

  Although Michael owned a house in Denver, we spent most of our nights in my tiny studio apartment right off Broadway within trotting distance of the law school. The last time we made love was in May 1974. It was six in the morning and bright sunlight was already pouring in through the one east-facing window in the apartment. We could hear the first batch of traffic rumbling up Broadway, the early birds getting their worms.

  After Michael had been on top for a while, I flipped us over so that I could sit up and control the amount of penetration. We were both sweating. I remember gazing down and admiring the muscles in his chest, his biceps, the easy way he held me above him, his beautiful white teeth. I remember checking my alarm clock to make sure I’d have enough time to shower before my eight o’clock seminar. And then, I remember looking down again and seeing Dr. Silber, my childhood dentist, grimacing with pleasure, about to come, and attempting to hold off for as long as possible.

  I closed my eyes, but the image of my dentist (a nice pleasant man who gave everyone sugarless chewing gum that had no flavor) persisted. When I’d been his patient, Dr. Silber had never acted inappropriately, never given me any reason to suspect he’d show up unbidden like this fifteen years later. Seeing him again, without an appointment, was a bad surprise, like slamming into a wall at fifty miles an hour. After a few seconds, I gave up and let him finish without me.

>   I averted my gaze in the shower hoping by the time I’d toweled off, Michael would have pushed Dr. Silber aside, but twenty minutes later my dentist was still there, waving goodbye to me from Michael’s BMW. I stood on the porch and watched him drive away.

  “See you later, babe,” he called, unaware that our days together were seriously numbered.

  Dr. Silber wasn’t the first kindly man from my childhood to show up and spoil my relationships with the opposite sex. Murray Goldman, the stoop-shouldered rabbi at my Hebrew school, killed any slight attraction I might have had toward a fellow law student who used to rock back and forth while we studied together. And my fifth-grade schoolteacher Mr. Tierney—a short man with a beard and a pronounced goiter—slowly poisoned my relationship with a grad student in my last year of college. To be fair, my boyfriend, who’d stopped shaving and had a wild look in his eyes, had already begun to remind me of Charles Manson before Mr. Tierney took over.

  The truth was there was nothing wrong with any of the men I dated. They just weren’t women. My mind was simply doing what it could to alert my body that it was barking up the wrong tree. A few months before I ended it with Michael, I’d caught a glimpse of two women kissing passionately on the corner of Pearl and Broadway and felt electrified. Later, when I replayed the kiss in my mind (over and over), I realized I’d never felt riveted to someone the way they seemed to be, that I’d never been in love. I’d always assumed I was too dignified to fling myself at another grownup and possibly lose myself in the act of flinging. Until I came out of the closet, romantic love had always struck me as either frivolous or dangerous. Overblown, like Marilyn Monroe, and ending disastrously the way she did.

  Turns out I was just a lesbian. By the time I met Vickie at twenty-seven, I was a seasoned veteran of Sapphic love with the requisite number of medals pinned to my chest and plenty of shrapnel in my arms and legs to prove it. The first time I saw Vickie sitting in a restaurant, I couldn’t take my eyes off her. She was dark, handsome, vivacious, possessing that je ne sais quoi. After five or six dates, I decided she was the love of my life and that I was finally ready to commit: to fling myself at the same body—which looked remarkably similar to mine—every day forever and ever. Are gays and lesbians more narcissistic than straight people or just more honest about it? But I digress.