The Night Swim Page 21

  “And did he?” Alkins asked.

  “He offered to take me for a drive first. I’d never driven around in a convertible with the top down. I said, ‘Sure.’ We drove along the coast. We were heading home when he suggested we get food,” she said. “He asked me what kind of food I liked. I said pizza. He said he liked pizza, too.”

  Alkins showed Kelly the CCTV footage from the pizza place. He asked her why she didn’t alert the staff at the pizza parlor or ask to use their phone to call her parents. “Why did you return with Scott to his car?” Alkins asked.

  She told him that she had no concerns about Scott’s behavior at that point. He’d been friendly and attentive. She believed he would take her home right after they’d eaten, just as he’d promised. In the car, he suggested they eat the pizza at the beach. She wasn’t crazy about the idea, but she didn’t want to be difficult, so she agreed. He drove to a beach. Kelly had lost her bearings by then because it was late at night and very dark. She didn’t know where she was, but she knew they weren’t near town because she couldn’t see the bright lights of the marina from the stretch of beach where they sat.

  “We ate pizza and listened to waves. Scott brought beer from his car. I drank a bottle,” said Kelly. “He drank two bottles. He said he didn’t have to be up at dawn to train, so he could have fun.”

  “What happened when you finished eating the pizza and drinking the beer?”

  “Scott told me that I was really beautiful and that he liked me a lot. And then he kissed me.”

  “And did you kiss him back?”

  “Yeah, I did. We made out a bit. Nothing serious. Just kissing.”

  “And then what happened?”

  “He put his hands under my top. I pushed them off me and said that I just wanted to kiss.”

  “What did he say to that?”

  “He said he didn’t bring me out there and buy me pizza and all to get a few kisses. And then he pushed me back on the ground and put his hands inside my clothes. I tried to get out from under him, but he put his weight on me. He was strong. He was kissing me and touching me and grinding into me; I couldn’t move.” Kelly paused to wipe the tears that had collected in her eyes.

  “Did you say anything to him?”

  “I was shocked by how he went from being nice to being aggressive. I told him I didn’t want to do anything like that. I tried my hardest to get out from under him.”

  “And then what happened?”

  “He tried to unzip my jeans zipper.” Kelly let out a sob. “I pushed his hand away. He sat on me and restrained my hands. He told me to stop fighting. His voice was mean. Like a snarl. I was afraid of him.”

  “What did you do when he did that, Kelly?”

  Kelly tried to speak, but each time the sobs overwhelmed her and she wasn’t able to say anything audible.

  “Take your time, Kelly,” Alkins said gently as she gulped emotionally, unable to formulate a single sentence.

  “I said to him that I wanted to go home and to please let me go home. And I cried. Kind of like I’m crying now. I begged him to take me home,” choked Kelly.

  “What was the defendant’s response?”

  “He told me that I’d go home when he was ready for me to go home and then he kissed me again, this time with his tongue, and he unzipped my jeans. He was strong. I couldn’t get away. Even if I did, where would I go? It was dark. I had no idea where I was. I didn’t have a phone.” Her shoulders heaved again. Tears streamed down her face.

  “Could you have broken free, Kelly?”

  “No, he was holding me down while he pulled off my pants Then he pushed his leg between mine.”

  “And then what happened, Kelly?”

  “He raped me.”

  Alkins waited for Kelly to stop crying. The courtroom was silent except for the sound of her wracking sobs. Eventually, the bailiff handed her a glass of water. Kelly sipped the water, dabbed at her eyes, and nodded. Alkins took her through more questions, breaking down the rape into short, graphic details.

  “Did you at any point tell him to stop? Or let him know that you didn’t want it?”

  “I cried the whole time. He told me to ‘shut up.’ He knew I was crying. When he was finished he sat up and shoved a beer bottle at me. Told me to drink it. That it would make me feel better.”

  Kelly said she drank the rest of the beer while he downed a fresh bottle. When they were done drinking, Scott told her that he wanted to go for a swim. “You can’t beat skinny dipping after sex,” he’d told her as he pulled her up from the sand. She swam with him in the cold rough water, terrified that he might drown her to cover up for what he’d done to her.

  “When we came back to the beach, he raped me all over again.”

  Rachel watched Sophia draw Scott Blair’s handsome face and pursed mouth as he listened to Kelly’s testimony. His face was impassive. His jaw was tight.

  “I told him that I was bleeding. I begged him to take me home.”

  “What did he say to that, Kelly?” Alkins asked.

  “He said something like, ‘Not yet. I’m not done.’”

  “Is it at all possible the defendant did not realize that you were not consenting to the sexual intercourse that occurred that night?”

  “I told him that I didn’t want to do it. I told him over and over again. I tried to get away. I cried. I begged for him to let me go. He had to know that I didn’t want it.”

  “How long did it last?” Alkins asked.

  “I lost track of time. After it ended, he made me pose for a photo with him. A selfie. He put his arm around me and said, ‘Smile.’ He showed me the picture. I was naked from the waist up. He had his arms around me to cover my breasts. He texted the photo to someone and put it on Instagram.”

  “What did you do?”

  “I was so embarrassed,” she said. “I begged him to take it down. He said something like, ‘You’re right. That was a dumb move.’ He took it down, but a couple of his friends had already texted him back emojis like a tongue hanging out of a mouth. One of them asked him whether I was any good. He showed me that text. He wrote back: ‘C minus.’ He showed me that, too.”

  “Were you offended that he’d rated you like that?” Alkins asked.

  “He’d raped me. I didn’t care about his stupid rating. I was scared that he’d do it again.”

  Kelly described how she fell asleep on the sand. She suspected that Scott had put something in her beer, because she was very sleepy. She said she woke briefly to find a musty old shirt tucked over her like a blanket. She didn’t know where the shirt came from, because she said that Scott hadn’t worn a shirt like that. She was grateful for the shirt. It was cold on the beach. Its warmth helped Kelly drift off again.

  “It felt is if someone was watching me sleep. I must have been dreaming, because Scott wasn’t there. I woke up to the sound of his car door opening and then slamming closed. I looked up and I saw Scott walk over holding a sports bag. He opened it up and threw out a bar of soap, shampoo, and a towel. He ordered me to wash in the outdoor shower on the beach. And then told me to get dressed.”

  “Once you were dressed, what did he do?”

  “He threatened me. He told me next time he’d bring friends,” she said. “He also said that he’d make sure that everyone knew I was a slut if I said a word to anyone. That the only way to keep my ‘good girl’ reputation was to shut up.”

  By the time Judge Shaw called a late lunch recess, four hours had passed. Rachel had no appetite. She doubted that anyone else did, either. She saw a social worker taking Kelly Moore down a corridor into a private room. Kelly would have the lunch recess to compose herself for the cross-examination.

  40

  Guilty or Not Guilty

  Season 3, Episode 9: The Testimony

  As soon as court was adjourned for the day, I rushed out of the courtroom to the ladies’ restroom where—well, I’ll spare you the gory details. Other than to say that I’ve never felt as sick as I did that a
fternoon after watching a sixteen-year-old girl get tortured on the stand. All in the name of justice.

  Rape cases can be more traumatic to try than murder cases because the brutalized victim is there to describe what happened to her. More than that. She lives with the nightmare every … single … day … of … her life.

  Today K took the stand. She was asked about every tiny detail of what happened. And I mean every single detail. Did he ejaculate. Sexual positions. Everything. Can you imagine at the age of sixteen—hell, at any age—having to go into that level of detail to a room full of strangers? It was awful.

  Her parents clutched each other’s hands as they listened to their daughter recall the worst night of her life. Her mother went through a packet of tissues. Her father, well, he’s an ex–naval officer. He’s been pretty stoic in court so far. But tears streamed down his cheeks as he listened to his daughter recount what happened to her on that lonely beach last October.

  There wasn’t a sound in court except the rustle of paper as Mitch Akins went through a thick legal pad full of questions written out on page after page after page.

  K never strayed from her testimony. Over and over and over again, she consistently said that she told Scott Blair to stop. She pushed his hands away. She told him that she wanted to go home. She told him that she didn’t want to have sex with him. He didn’t listen. He raped her. And when he was done, he raped her again. And again.

  K’s testimony left me feeling queasy. I’m sure that it sickened the jury as well. Every day since the trial started, it’s been a running joke between the jury and the judge about what meal they would get for their lunch. Today it was obvious that the jury wasn’t interested in food when we adjourned. Who could possibly have an appetite after hearing that horrific testimony?

  The defendant had a tendency to stare into space during K’s testimony. Dale Quinn, and his team of lawyers, scribbled furiously on their notepads and traded notes as K testified. They were already preparing for their redirect even before K left the stand.

  Judge Shaw, who throughout the trial has been quick-tempered and sharp-tongued, was unusually pensive. He’s probably presided over his fair share of rape trials, but by the end of the session he looked drained.

  K’s answer each time was consistently “no.” K insisted that nobody could possibly have mistaken her responses—weeping, struggling to get away, begging to go home, the way she tried to wriggle out of his grasp, holding her legs together and covering her genitals—as suggesting that she was a willing participant.

  So, yeah, I was nauseous after I heard her testimony. But not half as sick as when K took the stand after the lunch recess for cross-examination.

  Dale Quinn is charming. He comes across as a regular guy. He loves to mention his wife and twin babies. We know their names. We know that he and his wife put bands on their daughters’ wrists to tell them apart. He acts scatterbrained. Drops stuff. Spills stuff. And then pretends to forget his train of thought before going for the jugular with a question that nobody sees coming.

  He acts dopey. He seems kind, and considerate and very friendly. It’s hard not to like him. If a survey was done, then I’m betting that Dale Quinn’s congeniality rating would be through the roof.

  But when it came to shredding K’s testimony through cross-examination, Quinn was brutal. Not in an aggressive way. He kept his voice soft; he maintained his “aw shucks” routine. But he hammered away at K with question after question. It felt as if he was very slowly and carefully destroying her.

  He asked her whether she got into the car voluntarily. She said, “Yes.”

  He asked whether Scott was nice to her. She said, “Yes.”

  He asked if she screamed in fear.

  “I tried to scream at first, but nothing came out. I was so scared that I was paralyzed,” K answered.

  “How was Scott to know that you were paralyzed with fear if you didn’t say anything?” he asked.

  “I cried and begged him to leave me alone. And I kept on saying, ‘Please, no, please.’”

  “How could you be paralyzed with fear and, at the same time, scream and beg him to leave you alone? Which one was it? Were you paralyzed with fear? Or did you scream and beg him to leave you alone?” He badgered her. “It can’t be all three.

  “Isn’t it true that you wanted to sleep with Scott Blair? He’s famous. Good-looking. You wanted to have sex with him. Didn’t you?” Quinn asked her.

  K broke down about ten minutes into the cross-examination. Quinn asked a detailed question about the rape. I can’t remember his exact question, but I think it was something about whether she’d moaned in pleasure. K turned deathly white. Her hands trembled. She took in a series of loud, sharp breaths. She was hyperventilating on the stand. Then she made a primal sound that I’ve only heard once before at a slaughterhouse. It was a deep, retching howl of pain that sent chills up the spine.

  We all thought K was about to collapse. She was having a full-on panic attack. She had her face in her hands. She sounded as if she was choking. Her father held her mother back while a social worker attended to her.

  “Your Honor,” said Alkins. “The witness has been on the stand for over four hours. It’s becoming too much. She’s just a child. Can we adjourn for the day?”

  Dale Quinn tried to score points with the jury by showing he was equally concerned about her well-being. He rushed to bring her a glass of water and then made a big show of acting magnanimously by agreeing that she could leave the stand until she was feeling well enough to continue testifying. At the same time, he made it clear that he wasn’t done with her. Not by a long shot.

  Quietly, during a sidebar I overheard, he told the judge that he hadn’t come close to finishing his cross-examination. “Eleven minutes, Your Honor,” he said. “The complainant testified for hours. All I had was eleven minutes with her. I can’t defend my client in eleven minutes.”

  K is not done yet. She’ll have to come back to court to complete her cross-examination. She barely lasted eleven minutes today. Next time, it could last hours. Perhaps even days.

  Mitch Alkins looked extremely concerned as he left court today. This from a man renowned for his poker face. He doesn’t have much of a case without her testimony. He needs K back on the stand. But at what cost?

  One of the questions I keep asking myself is whether it’s worth it. When a person goes through a terrible trauma, her mind is conditioned to forget what happened. Memory loss from trauma is a protective mechanism. It helps us stay sane.

  In this case, a sixteen-year-old girl is being asked to recount, in front of a large group of strangers, in public, every single traumatic, horrific moment of that night on the beach so that maybe, just maybe, her alleged rapist will be punished for what he did to her.

  Is she doing that for herself, or for the public good? Will it give her closure if he goes to prison? Will it vindicate her? Or will it destroy her? The pain and trauma that she has to endure to get him convicted took a terrible toll on K today. She was trembling uncontrollably. Her eyes were glassy. Her expression was agonized.

  The trauma of testifying in open court is one of the main reasons why so many rape victims opt not to testify and why so many rapes are never prosecuted.

  We saw K barely able to formulate a sentence at times. We saw her grief, and her despair. We saw the way a social worker had to support her so that her legs wouldn’t buckle under her when she took the stand. And how that same social worker almost had to carry her away because she could barely walk when she got off the stand after that brief cross-examination.

  We heard her saying “Sorry,” as she passed the prosecutors’ table, because she couldn’t bring herself to answer the horribly detailed and accusatory questions of the defense.

  The question now is whether K will return to the stand to finish her cross-examination. If she doesn’t, then Scott Blair may well walk free. This is Rachel Krall on Guilty or Not Guilty, the podcast that puts you in the jury box.

&n
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  Rachel

  Rachel could see the spring in Dale Quinn’s step as he arrived in court, brimming with confidence. He would be presenting the first defense witnesses that day: character witnesses to shore up Scott Blair’s bona fides as a card-carrying saint.

  The trial had taken an unusual turn. Kelly Moore’s sudden departure from the stand and her failure to return to finish her testimony put Judge Shaw in a quandary. He couldn’t hold up the trial indefinitely while waiting for Kelly. In the end, he ruled the defense would present its case and Kelly would return to the stand later in the trial. It was unorthodox, but judges had some leeway in sexual assault cases.

  Alkins looked grim when he walked into the courtroom. Rachel thought that he had good reason to be concerned, if there was any truth to the rumors that Kelly Moore had suffered a breakdown and might not return to the stand at all. That would be a death blow to the prosecution’s case. Without Kelly’s testimony, it was hard to imagine a scenario in which Scott Blair did not go free.

  While Rachel waited for the court session to start, she checked her messages. There was a text from Dave, an old boyfriend, telling her he’d be in Philadelphia the following week for work. He asked if she was free to meet for dinner. Rachel found it charming that Dave didn’t listen to the podcast and had no idea that she was away covering the Scott Blair trial. She responded asking for a rain check. There were several other texts from close friends telling Rachel how much they loved the new season.

  Finally, Rachel reached a text message from Pete, saying that he’d gone through the podcast’s clogged inbox and found an email from Hannah, sent two days earlier. He’d just forwarded it to her. Rachel was about to open the email when the bailiff called on them to rise for the judge. She had no choice but to turn off her phone and drop it into her handbag as she stood up.

  Dale Quinn’s first witness was Pastor Mark Fleming of the First Southern Baptist Church, which the Blair family attended. Quinn’s questions stuck to the guidelines set by Judge Shaw, who had ruled that character witnesses could testify only about Scott Blair’s truthfulness, his general morality, and his past treatment of women. Quinn was not allowed to ask the character witnesses whether they believed Scott Blair had raped Kelly Moore, or whether they thought he was capable of such an act.