Another

Jane: The True Story of a Verdict

By Jane Kokernak In April 1998 I served on the jury for a criminal trial in Norfolk County Courthouse, Dedham, Massachusetts, in the Supreme Judicial Court. The defendant was Dennis Carlson, a white man in his mid-30s who lived in Quincy. Lead witness for the Commonwealth was his seventeen-year-old stepdaughter, Jane Phillips, who one year earlier had accused Mr. Carlson of sexual assault. The Commonwealth, represented by an assistant district attorney who was a woman in her early 30s, called its first witness, Jane Phillips herself, who described a series of encounters with Mr. Carlson, occurring from the time she was 10 years old until she was almost 15 years old, in which the defendant induced Jane Phillips into taking off her clothes and lying in bed with him, touching his penis, taking his penis into her mouth. Jane Phillips also reported that the defendant touched her breasts and placed his hand on her genitals, although she claimed no penetration of her vagina. These encounters reportedly took place in their home when Janes mother was at Bingo, or in an upstairs bedroom at Mr. Carlsons parents house, when the elder Mr. and Mrs. Carlson were downstairs in the kitchen. A few times Mr. Carlson reportedly took his step-daughter to a garage he was renting as a storage facility for an old car he planned to restore and assaulted her while she was forced to kneel in the open trunk of the car. During cross-examination, the defense attorney, a 40ish man, himself a former assistant DA, asked Jane Phillips, in several iterations, Did anyone witness the supposed incidents between you and the defendant? She answered no several times. The defense attorney asked Jane Phillips about the duration of each encounter; in the girls memory, the encounters lasted approximately 30 minutes each.

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True Story of a Verdict

Jane Kokernak

Throughout hours of questioning, Jane Phillips sat unmoving, her shoulders hunched a bit forward, her lower body hidden by the witness box. I imagined her arms tensed and her hands, cold, pressed between her knees. Her face was freckled, all over. Fine, straight brown hair cut in a ragged cap made her face an oval. Her eyes glanced down at the feet of whichever attorney was questioning her. Jane Phillips told the Court that she first reported these incidents of sexual assault to someone outside her family when she was 16 years old, on an evening when she was brought to Brockton Hospital after attempting suicide, having swallowed an entire bottle of Tylenol PM. To the nurse in the emergency room Jane made the disclosure. The nurse reportedly contacted Massachusetts Department of Social Services. Jane and a female DSS social worker visited the Quincy Police Station soon after and formally filed charges against Mr. Carlson. Local police made a cursory investigation. The testimony of two witnesses corroborated Janes testimony: that of the social worker and that of the nurse on duty in the emergency room the night Jane first disclosed the sexual assault. The Commonwealth also called two Quincy police officers to the stand to determine the extent of their investigation of the charges. During cross-examination, the defense attorney asked the police if they ever interviewed any neighbors living in the vicinity of the three locations: the house where Jane Phillips lived with her family; the elder Carlsons house in Weymouth; and the garage. No, the police officers answered, We did not interview any neighbors. Several witnesses for the defense told a different story. One was Wendy Carlson, the wife of defendant Dennis Carlson, and Jane Phillipss mother. Shorter than her short husband, with spindly calves and a bowlegged gait, she wore a cheap navy-blue suit that was over-padded in the shoulders. Dyed black, her chin-length hair seemed to be out-growing a permanent wave; only the ends were curly. Palefaced like her daughter but without freckles, her manner was caffeinated, nervous and not dead-still like Janes. Wendy told the Court that Dennis Carlson was a real father and a father figure for Jane Phillips and for her other child, Christopher Phillips, a boy about 14 years old at the time of the trial. Before Wendy married Dennis, her life with her two children was one of financial struggle and emotional insecurity. Dennis gave them stability, she said, and made her feel as if she had a real family. Asked by the assistant district attorney during cross-examination if she ever left her children alone with Mr. Carlson, Wendy Carlson answered that she did, at least once a week, on her Bingo night, when she was out of the house for less than three hours. And how did Jane seem when you returned to the house from Bingo? asked the assistant DA. Fine, the kids were fine, in bed, asleep, answered Wendy Carlson. During her testimony, the mother described her daughter Jane as a headstrong girl who was trying to break up their family out of spite, resenting that she had to do chores and come home after school directly, instead of going to a friends house or participating in an extracurricular club or sport, which Mr. and Mrs. Carlson forbade. Dennis is the traditional father figure, she said, and implied that

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True Story of a Verdict

Jane Kokernak

the defendant enforced a great deal of structure and expectation for behavior on Jane and her brother. Mrs. Carlson said she viewed her daughters suicide attempt as fakery. Dennis Carlson, the defendant, took the stand as a witness. He had the compactness of a high school quarterback, his shoulders too wide for his height. Although in a brown suit and bearded, with a streak of gray in the dark brown, he seemed boyish, eerily so. On the stand, he frequently made the statement, No, I did not put my penis in her mouth, in response to several of his attorneys queries. He admitted yes, he did spend time alone with Jane, at home, at his parents home, and at the garage, and he supplied anecdotes about several visits to those places. He gave the impression that Jane Phillips enjoyed the trips to his parents home, and when they were there, they often went upstairs to the unused bedroom to look through Mr. Carlsons old collection of LPs and 45s, which Mr. Carlson considered valuable. These encounters in the upstairs bedroom each lasted about 10-15 minutes, according to Mr. Carlsons memory of them. Other members of the householdthe defendants mother, father, and an older brother who lived nearbywere often in the kitchen when Mr. Carlson went upstairs with his stepdaughter. Mr. Carlson, which is what the defense attorney carefully and repeatedly called the defendant, made much of Jane Phillipss hanging around with a different group of peers and her studying witchcraft. Mr. Carlson told the Court that he wondered if there was a sexual component to Janes interactions with her friends, both female and male. His response was to tighten the rules of the house. I am a strict disciplinarian, he told the Court. Call me old-fashioned. The social worker, a psychiatrist serving as expert witness, and Mr. Carlsons parents and his brother were also called to the stand in a long sequence of witness examination that proceeded over several days. At the end of every day, after the jury was excused, I would go to the court parking lot and sit in my car, forehead resting on the steering wheel, sickened and exhausted, sometimes crying. I found the girl absolutely believable and my agony was not only over the sexual assault I was sure she suffered, but over how all of her family ties, blood ones and legal ones, were deserting her at this moment of her life. How they called her, in front of a room filled with more than 100 strangers and a reporter too, liar. * On the last afternoon of the trial proceedings, following the closing arguments, the Judge gave instructions to the jury. He went to great lengths to establish the presumption of innocence. He defined reasonable doubt and evidence. He explained the particular law pertaining to the case, and insisted that You must take the law as I give it to you and remarked that Sometimes jurors, by exposing themselves to a variety of things during the course of their lives, develop ideas about what they would like the law to be or develop ideas in their own mind about what the law is. You do not have that option. I repeat, you must take the law as I give it

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True Story of a Verdict

Jane Kokernak

to you and apply that law to the facts as you and you alone collectively find those facts to be. He discussed the role of the attorney, the role of the Judge, and the role of the jury. He said: We have a shared responsibility in this case, as in all cases. You are the sole judge of the facts in this case, and I am the sole judge of the law.1 I wish I had enough pages to describe the experience of sitting, day after day, in the closed Jurors Room with eleven other adults: four women, eight men. Each day started with a private ballot, a privacy we discarded after each individual jurors publicized his or her position. We got to know each other and our biases, what we did for work, where we lived, what made us angry, what kind of soda and potato chips we preferred with our lunch. Who believed Jane Phillips, who did not, who considered her a bitch, trying to bring her family down. Who disdained the stepfather, a weakling, a sicko. My grief for Jane Phillips and her misguided mother underpinned everything I said. Periodically, over the three or four days we deliberated, Arthur, our appointed foreman, called for a recess to our deliberations and took a vote. After the first day, the tally shifted incrementally, moving from the initial nine not guilty, three guilty to ten not guilty, two guilty. In order to deliver a verdict, our jury had to vote unanimously to either convict or acquit the defendant. For hours and days, only I and Mary, an older womana kindergarten teacherwho quietly knit and rarely spoke, continued to vote guilty. On the second afternoon of the deliberations, frustration and tension in the Jurors Room increased. Over and over I explained my privileging of the testimony of Jane, recalling the Judges instructions about the credibility of witnesses, that the jury was charged with evaluating testimony. My calculus was simple: I found Jane Phillips credible, Dennis Carlson a practiced liar, and the defendant, therefore, guilty. One is not asked by the Court, however, to merely believe. One is asked, as a juror, to judge. During one of our many returns to the courtroom, to consult with the Judge over a question about the law, he reminded us that a jurors role was to rule on the whether or not the Commonwealth had proven each and every element of every offense charged beyond a reasonable doubt. Our discussions in the Jurors Room lost coherence. We talked about the testimony that had been stricken from the record, and speculated about the sex life of Wendy and Dennis Carlson. Someone suggested that Wendy was a lesbian. We wondered if the defendant had sexually molested the boy, Christopher. We talked a lot about our curiosity regarding the history of this family: what happened to Jane and Christophers natural father? How did Wendy and Dennis meet? Why do teenagers get involved in witchcraft? Is it okay to spank ones children? What do other jurors think about the Judge? Could anyone read anything in his face at any time? We speculated. We guessed. We got no closer to a unanimous verdict. Some jurors were losing their patience, walking around the room, sighing, saying I cant wait to get out of here. Some sat quietly, as though waiting. About five or six of us did most of the talking.
1

Text from Mass. Superior Court Criminal Jury Instructions.

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True Story of a Verdict

Jane Kokernak

Inside, I felt like I was breaking apart. I could not imagine voting not guilty, although some of my fellow jurors attempted, vigorously, to persuade me to see the trial through their eyes. I did not try to persuade my fellow jurors to change their vote to guilty, nor did I even want to. I tried to explain my position, over and over again, differently each time, to justify my unshakeable belief in Jane Phillips. I wanted the trial to go away, for the Judge to call us back into the courtroom and say times up and then, discovering the absence of unanimity, to release us. What difference would it make, whether we delivered a not guilty verdict, or delivered no verdict, in essence a hung jury? The effect would be the same: Dennis Carlson would not go to prison. At the end of every day, during the 15-minute drive back to my house, I cried. Not just for this other Jane. I cried for myself. Cried for some end I would never get to. Cried over being alone. Cried, wanting to not choose, wanting to be absolved of the responsibility to decide. * On the fourth morning of our deliberations, we started with a vote. Eleven not guilty, one guilty, Arthur read. So, Mary, the silent knitter, had changed her vote. I said to her, Mary, talk to me. I think you believe Jane as deeply as I do. Help me. Mary looked at me but remained silent for a while. Then she said, quietly, that she remained convinced by Janes testimony and, personally, Mary believed that the defendant had indeed molested his stepdaughter. However, Mary doubted that the Commonwealth, with the assistance of the Quincy Police Department, had done their job in establishing proof of any kind. In her mind, the Commonwealth and the Quincy Police failed, and Mary could not take responsibility for the Commonwealths mistake. She saw her vote of not guilty as being consistent with her job as a juror. I dont think that not guilty is the same as saying hes innocent, she finished. We went back to the evidence and, for the first time, discussed it dispassionately. An hour passed. Im ready to vote again, I say to everyone in the room, but I feel the need to say something before I cast my vote, which will be not guilty. I pause. Its important for me to tell you that I continue to believe Janes testimony, and I have no way to express that through the verdict, which requires a different kind of thinking. So, please listen to me when I tell all of you how much I believe her. I was crying then, and I am not normally a crier, and I dont think that I had ever before sobbed, openly, in front of strangers or friends. And I didnt really care. At the time I had a sense of cracking open. Those words were in my mind: cracking open. Later, I wrote them down. I continued. I am going to vote not guilty because I see that that Commonwealth did not prove its case. And I want to thank Mary, because in voting not guilty Ive got to hang on to what she said, that voting not guilty does not mean we are claiming that the defendant is innocent. I think a lot of us would agree that, in fact, he is not innocent. I more choke than talk. I feel terrible and I wish I could tell Jane that I feel for her but my job requires me to consider the law, and not

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True Story of a Verdict

Jane Kokernak

her suffering or her bravery. I also want to say that I have a sense of doing a good job as a juror, but a terrible job as a person. We voted, unanimously, to acquit the defendant. * Its April 2003, and five years have passed. Not a week goes by that I dont think about that trial. Most of the time, I think about Jane Phillips, the victim, and her mother, Wendy. Janes plan, she told the Court during her testimony in April 1998, was to leave home following high school and attend the Massachusetts College of Art. If Jane Phillips pursued her goal, she would be a student at MCA right now. I drive by the MCA campus three or four times a week. As I pass by, I never fail to think of Jane Phillips. How is she? Will she complete her degree this spring? Does she think back on the trial? Has she incorporated artifacts from her childhood into her artwork? Is she in touch with her mother? Is Wendy still married to Dennis? Does Wendy suffer? She must. My own outer life is intact; my inner life, disrupted. Robert Frosts poem, The Road Not Taken, has been frozen into a clich that is read at high school graduations, that is used to champion risk and to promise a reward to the risk-taker. Is reward available in the poem, I wonder, or does the audience read reward into the poem? Certainly the expansive sound of the final phrase, all the difference, allows for the optimistic interpretation, and the elegiac tone of the entire poem evokes a speaker of wisdom and kindness, suitable for commencement. The poems voice is also, however, tired, as worn as the road, I think, and experienced enough to know that he probably never will come back and try the other path. His hesitancy over choosing, revealed in the I that begins the penultimate line and repeats the I (dash) that ends the previous line, could be read also as a gesture of how one must brace ones self in choosing. The two roads, after all, are not that different, really about the same, and equally lay / In leaves. It may be that choosingthe moment that the final that capturesis Frosts concern, the unavoidability of it, and not outcome, which is after all non-specific here. The sound of the poem, in fact, is filled with the blur of the wyellow wood and wanted wear and way leads to wayand we readers are surrounded by it, sonically lost in it. The poems final that, non-specific in meaning yet distinct in sound, is like a slap on a table, a loud crack. The act of choosing of judging -- and not the outcome holds the only clarity for me.

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