The Middletown Press (Middletown, CT)
Norm Pattis: ‘How dare I’ cross-examine accuser at trial
How dare I ask questions about text messages, alcohol consumption and what an accuser wore on the night she claimed she was raped by an acquaintance? That’s the media’s take away after last week’s acquittal of Saifullah Khan in New Haven. The former Yale student was accused of sexually assaulting a classmate on Halloween night in 2015.
Time magazine, Buzzfeed, The New York Times and a host of other publications wrote about the trial. In the days following the verdict, reporters focused on isolated aspects of the case. Only one newspaper captured the nuances of the trial — the New Haven Register — and it did so by publishing lengthy accounts of the testimony after each of seven days of evidence.
I’ve long been skeptical of press coverage of trials. From time to time, I’ve picked up a newspaper after a day in court only to read about a proceeding that looked a whole lot different to the reporter than it did to me in court. In general, court reporting is a lost skill.
But reaction to the Khan case gave me a whole new appreciation of “fake news.”
I attacked the accuser showing her text messages between her and the accused; I questioned her about her attire the night of the claimed assault; I challenged her on what she drank that night.
Yes, I did all of that — and more. But here’s the kicker — the state introduced all of this evidence first. You wouldn’t know that reading press accounts.
The state charged Khan with four different types of sex assault: two relied on a claim he used force to compel intercourse and/or sexual contact; one was based on assertion that the accuser lacked the capacity to consent to sexual intercourse because she was intoxicated. The fourth count was misdemeanor sexual contact.
The accuser — I don’t call her a victim because the jury’s non-guilty verdict rejected her accusations and found my client not guilty — claimed not to recall most of the events the night of her assault. She claimed to have drank too much, and to have, in effect, blacked out.
I challenged her on how much she had to drink, showing her plastic cups and asking her to estimate the volume of liquid in each as she drank. She fumbled through this testimony in a manner that cast doubt on the amount she drank. I did this in order to rebut the prosecution’s claim she drank to the point of losing consciousness.
The accuser did vomit on several occasions on Halloween night. She claimed it was because she drank too much. The state offered no medical evidence about this.
Because she waited a day and a half to report her claim to the police, the only physical evidence of having vomited was her clothing. There were minute fragments of some material the witness claimed was vomit on her clothing. The state introduced each piece of her cat costume, including the sequined mini-skirt and tube top, holding each up for the jury to see.
I asked her one and only one question about her choice of costume, asking her why she did not choose a long-flowing Cinderella costume. Yes, I did that to call attention to her choice of clothing. The costume was scant and alluring. My client testified he found it so.
Why was this relevant? In the week’s leading up to Halloween, the accuser and my client exchanged numerous text messages. The state offered those into evidence. The accuser testified in response to the state’s questions that the messages did not reflect any romantic interest in my client. In other words, the state put this issue into the case.
I cross-examined the accuser using the messages and asked her to explain obvious flirtatious remarks and symbols she used in the texts. She began to lose the jury when she tried to explain obvious interest in my client. When she said she hadn’t really read the sonnet she sent my client — Shakespeare’s Sonnet one — she was in trouble. I’m still waiting for an answer I can understand as to why she sent Mr. Khan the following lines: “From fairest creatures we desire increase, That thereby beauty’s rose might never die….”
I’ll say it again: each and every one of these pieces of evidence was offered by the state in its case.
And why was that necessary? Because the state wanted to show lack of consent and lack of capacity to consent. My task as defense counsel was to the turn the state’s interest against it, and that meant impeaching the accuser.
She testified for the better part of three days. But only about a third of that time was on cross-examination. Yes, she wept during the testimony. But she did so in response to questions from both sides.
To politicize this case and to suggest the questions I asked the accuser set back woman’s rights or was otherwise an exercise in unconscionable conduct is not just wrong, it is asinine. Any defense lawyer has the responsibility to crossexamine a witness on topics on which the state has the witness testify. We did nothing unusual.
Ironically, none of the testimony that has drawn so much ire may have been critical to how the case was decided. This was a hesaid/she-said case. Jurors had good cause to be skeptical of the testimony of accuser and accused. What jurors could take at face value was a surveillance video of the two walking across Yale’s campus moments before arriving at her room. The state said it showed her stumbling, relying for support on my client, and, at one point, walking with eyes closed.
In closing argument, I challenged the jury to watch that video again. It showed no such thing, I said. One juror told a reporter after trial that the jury watched the video several times in the three hours it took to decide the case. The juror reported that the video did not show what the state contended it did. It certainly looked to me like two young lovers walking across campus. We showed a freeze frame of it as one of our exhibits.
When I asked the accuser if that was her in the photo smiling, she, of course, denied it, claiming she was shivering.
Part of the #MeToo movement thinks that sexcrime accusations should be treated differently. One writer told me this case proves why men should not be permitted to defend these cases, suggesting that the fundamental rights to counsel and to confront witnesses need genderspecific rules. That is repulsive nonsense, and would not be tolerated in any other context.
The accuser claimed my client raped her. She needed to earn the right to be called a victim by convincing a jury what she said is true. My client testified that she invited him back to her room after he left her in the entryway to her suite; she asked him if he had condoms; she disrobed in his presence; she asked him if he enjoyed the fellatio she performed.
I’m not surprised that my client was acquitted. And I am not surprised the state prosecuted. Yale has enormous clout and power in New Haven. The university’s treatment of sexual assault complaints is appalling. Accusers are deemed victims without proof, and fundamental fairness in investigation of these complaints is sorely lacking. Perhaps this acquittal will shed light on what comes of assuming that every accusation is true.
Those who decry the verdict, or defense tactics, based on incomplete reporting of the case are reacting like hysteric fools. Their motives might be pure enough, but data on which they rely is, if not fake, then certainly misleading.