A large and unspoken question hung over the last two days of tearful testimony by the surviving victim in the South Park rapes and murder: How would the defense treat her on cross-examination?
It was answered late this morning, as the prosecution finished its questioning and defense attorney Ramona Brandes rose to approach the witness stand.
Brandes, I should note here, is one of two defense attorneys representing Isaiah Kalebu. The other is Michael Schwartz. Until this morning, Schwartz had been handling all of the cross-examinations that I witnessed. For today's cross examination of the surviving victim, however, Brandes was asking the questions.
I find it hard to imagine that wasn't part of a conscious attempt to somewhat defuse the tension of the situation by having a woman check, and re-check, the story of the surviving rape victim.
Calm, firm, and not outwardly rattled by the very fine line she had to walk, Brandes led off with a number of questions about the knives "he"—she always used the word "he," not the name of her client, "Kalebu"—used in the assault. What were the handles like? Were they knives from the house?
Perhaps the point of this was to establish a lack of long-term premeditation: That the assailant just, spur-of-the-moment, grabbed his knives from the victims' kitchen. If that was indeed the point of this line of questioning, it didn't change what had already been made clear in previous testimony: The man used one knife that he pulled from the pocket of what are believe to be his jeans, and another knife that either came from inside the house or didn't—the surviving victim is not sure.
These two women, the attorney and the witness, held each other's gazes tightly in the courtroom. Brandes was not going to let go of her duty: Defend her client. The surviving witness was not about to let go of her duty: Tell her truth.
Brandes wanted to know about the times when the man acted "normal" and "very human" toward the victims. For example, the time when he allowed Teresa Butz, who was killed in the attack, to have a glass of water—didn't that show a lack of callousness?
"So she can better use her mouth on him?" the surviving victim replied, tersely. "I don't see that as not being callous."
What about when the two victims begged for their lives by telling the man they were good people, and the man responded with something like: "Do I seem like a good person?"
Was he he being sarcastic when he said that?
"Absolutely," the surviving victim said.
Again, I'm not sure where Brandes was headed with this. Questions like these—as well as questions Brandes asked about the way the man stroked the victims, the way the man apologized when a knife nicked the surviving victim early in the attacks, the way the man requested lube before he anally raped the women, as if all those actions somehow constituted kindnesses—questions like these are so potentially inflammatory, so likely to disgust the jury, that it was hard to believe Brandes was asking them in open court.
Perhaps more damaging to the defense: Any shred of kindness or consideration by the assailant that Brandes was able to establish today could very easily undercut a future defense based on Kalebu's mental state at the time. Remember: The defense team hasn't officially said what exactly their defense to the charges is, other than "general denial." But a lot of people think a "diminished capacity" defense may be coming, and if the defense today established that the South Park rapist and murderer acted in a way that showed he had compassion, showed that he understood the pain and terror he was causing—well, then I'm not sure how they can later argue that he didn't understand the consequences of his actions.
Brandes asked whether the surviving victim had gotten the impression that her and her partner's sexual orientation motivated the attack.
"No," the surviving victim said.
Brandes asked whether the surviving victim complied that night because she thought the man was just a rapist, just wanted "pussy" as he'd put it.
The surviving victim said yes, that's why they'd complied.
"And when he did start cutting... That was toward the end of the encounter?"
"At that point you started to resist? And this is the first time you’ve ever resisted?"
If a number of jurors didn't hear this as blaming the victim for waiting too long to fight back, I would be very surprised. Brandes seemed to realize she was at the end of the line, possibly well over the line.
She asked: And it all went very quickly after that?
Yes, the surviving victim replied.
"No further questions," Brandes said.