xix
Trial
The people Jack talked to were his wife, his son, his daughter, and me. I’m not sure he opened all of his options entirely to any of the four, but he did indicate turbulence ahead and he asked each of us for advice.
I have to believe he took it.
Kelly, who was closest to the case, was the most direct. “You been hang-dogging around here for over a year now,” she told Jack. “That woman has you so tied up in knots you can’t think straight about yourself or about Dylan, or about us. You don’t sleep, which means I don’t sleep. Ever since that Human Rights thing, that bitch has been standing at the foot of our bed watching me sleep. ‘I consider your relationship exploitive, unprofessional, and demeaning to women. I’m so emotionally devastated I can’t perform my job.’ Fuck! For five years I’ve been waiting for you to kick Virginia Coyle in the cunt. Now you want to hand her a few thousand of our money?
“In two years it’ll be some other up-tight bitch with another paranoid fantasy tryin’ to get her a hand in your pocket. And not to jack you off, either. ‘He looked at me cross-eyed. He said a dirty word . . . and you know he has a history.’ You fight this thing through now, or it will haunt you for the rest of your life. Me too. And I don’t think I can live with that bitch in my house.”
“She’s a whiner,” Timm told his father. “We had them at the Academy, and we’ve got them in the fleet. We even had them at flight school, and that’s a pretty elite place. America’s full of them these days: losers looking for a free ride. If you try to unload them, they whine some more. I’m with you. I lived with you for years. I know what kind of guy you are. I know the advice you’d have given me. Do what needs to be done. By all means necessary.”
“Marcus is right about Busiris,” I told Jack. “People here credit you with bringing down the Third Reich. You can’t try Busiris up there, though. I don’t think a judge would allow it. Busiris would stonewall everything—if they could. On the payoff, Marcus may be right. You might end up with a lot of money . . . plus the vindication you seem to need. Then again, you might end up in a real mess. There’s been no talk in the English department, even if Vicky is up to her old tricks. She’s been generally wigged out lately anyway, and we all try to keep our distance. The real action would be in Administration, and I don’t know anyone there now. Whatever you do, I’ll stand with you. So will your old friends.”
It was Jenny Lynn, however, who most steeled Jack’s resolve. Jenny was his main concern, the person whose affection he most feared losing. “That whole statutory rape bullshit was hanging out there. And my general absence from her life, and the divorce, and whatever her mother had or had not said, and the bad feelings over Bryn Mawr. Our relationship had been through the mill. Then came this fucking law suit with more outrageous allegations. I sounded like Andrea Dworkin’s Predator Male incarnate.”
“You ever hear of Camille Paglia?” Jenny Lynn asked Jack. Jack could not make a connection.
“I got her ‘Endangered Rock’ essay pasted on my door.”
“I’m gonna send you a book, dad, and you’re going to love it. You ever heard of new wave feminism? Katie Roiphe? Christina Hoff Sommers?”
“I’m the wrong guy to ask about that, Lynn.”
“Don’t feel bad, dad. None of the people at Bryn Mawr had either. Well, they had but they hadn’t. The women’s studies types knew what new wave feminists were saying, but they were too stuck in dead ideologies to listen. That’s one reason I left there. Feminism has, like, gone beyond seventies ideas. You’re stuck in the sixties and early seventies, and you don’t understand academic feminists. They’re stuck in the late seventies and the eighties, and they don’t understand what’s happening today. What have they got to say to Madonna, and women’s sports, and dance line? The old feminists are just as irrelevant as you, if you don’t mind my saying so, I love you lots. Maybe they’re more irrelevant.
“Paglia is one of the new ones, although she’s also a sixties freak. You’d love her.
“Listen, I got to read you this. ‘An enlightened feminism of the 21st Century will embrace all sexuality and will turn away from the delusionalism, sanctimony, prudery, and male bashing of the MacKinnon-Dworkin brigade. . . . Let’s get rid of Infirmary Feminism, with its bedlam of belly achers, anorexics, bulimics, depressives, rape victims, and incest survivors. Feminism has become a catch-all vegetable drawer where bunches of clingy sob sisters can store their moldy neuroses.’ That’s Paglia. She wrote that for Playboy magazine. I heard her talk once in Philadelphia. There were demonstrators all over the place, waving placards and chanting slogans. Old women’s studies types. The losers’ club. That’s what this Coyle woman is. The whole East Coast was full of them. Blow her off, dad. She’ll just make your life miserable. Camille is great. I’m going to bring you her book myself. I’ll be there tomorrow.”
“I’m not sure what’s up,” Jack warned his daughter. “They’re trying to make something of Kelly and me. They may go back to Busiris. They’re interviewing all kinds of other people, including all my former students.”
“Get with it, dad. I spent two years in college dorms and four years with undergrad college girls. Even you can’t begin to imagine some of their fantasies. We’ll have a long talk when I get up there.”
This was late August 1996 before classes began. I drove north and spent a week in Lake-of-the-Woods with Jack, Kelly, Jenny Lynn and Marcus. The week was warm, comfortable, even optimistic, one of the high points of my life. I left with confidence in Jack’s future, deepened respect for Kelly and Jenny Lynn, and sincere regret that I had not known DeLotta during his Busiris year. I also left with an assignment: recruit, as confidentially as possible, Busiris witnesses to neutralize testimony from Victoria Nation.
Fall 1996 should have been an especially painful period in Jack’s life. Virginia’s most recent charges were general knowledge around the university and the town. As was the fact that Jack had, presumably because of his enormous guilt, been cut out from the herd for a separate, early trial. Barclay had requested copies of Jack’s grade rosters from 1984 through 1991. Although DeLotta had argued that the university was violating student confidentiality, Barclay had been given what he asked for and was reportedly interviewing all Jack’s former students—especially Jack’s former female students, and especially those with low grades—regarding harassment and sexism. Meanwhile, of course, DeLotta was examining Coyle’s grade rosters for purposes of his own.
Every other day Jack’s phone would ring. “Professor Creed, this is Amy Larson, from Contemporary American Lit. three years ago. I got a call from a Mr. Barclay yesterday asking about you. Some of my friends have received similar calls. I told this man I’ve got nothing but good things to say about you and the class. I thought you should know about this.”
There were preliminary interviews of friendlies and hostiles by both camps.
There were depositions and rumored depositions.
Jack persevered, all witnesses report, with grace and aplomb. Together Jenny Lynn, Kelly, and Camille Paglia had redeemed women in Jack’s mind and provided him with enormous energy as he entered the fall term. He ignored the distractions as best he could, and dove into teaching and Bob Dylan. He still mentally rejected the possibility of a trial.
December 9, 1996, brought plaintiff, defendant, and their respective counsels to Lake-of-the-Woods for a day of pretrial maneuverings and motions. Some seemed to Jack mere posturing or demonstrations of power. Most seemed without substance, but Jack was no lawyer, what did he know? He tried to follow DeLotta and Barclay, but dropped after a couple of hours into a reverie regarding the mind of this person who had come so inconsequentially into his life half a decade earlier. What kind of a childhood had brought Virginia Coyle to this insanity? What Hoosier darkness had she fallen into in Women’s Studies at Indiana U? Or had some chromosomal abnormality predestined her to malice and paranoia? What went on behind her gray eyes and porcelain face? What were her expectations? Hopes? Fears? Was she really as calculating as DeLotta suggested?
The thought of Virginia, Victoria Nation, Francine Fitzner, and Roger Barclay pouring over entries in his personal diary and materials in his Busiris personnel file made his skin crawl.
At day’s end, Jack had to ask Marcus for a recap and an assessment.
“It went fine,” DeLotta told his client. “And it’s going to be fine.
“They’ve added no names to that earlier list of potential witnesses, and I’ve deposed all the people I think they’re going to use. You’ve read Virginia’s complaint and her deposition. Nothing has been added. I don’t think they’ll subpoena Kelly: she’d be a very hostile witness, and they really wouldn’t get much from her. We’re conceding your relationship, saying, in essence, “So what? Jack and Kelly broke no university rules. If their relationship posed a problem for your woman, that’s her problem.’ ”
“Kelly won’t be asked to testify?”
“We concede her. There’s no point in denying the obvious: you and she were seeing each other while she was a student and you were her teacher. Now you’re married. So what? We won’t call her either. As a character witness for you, she’s too obviously prejudiced to be convincing. As an example of your predatory relationships with women, she’s not exactly the example they want. Kelly is out.
“They’ve got relevant passages from your diary, of course, and they might try to make capital of some of your language regarding Virginia, especially that February 11 entry. Nothing serious, though, and your diary is full of profanity. You weren’t picking on Virginia. Barclay will look a little mean spirited, snooping through a man’s private journal. We can make more capital off that than he gets out of the entries. I think dragging your diary in would be a mistake on Barclay’s part.
“He might go into your published works. He provided Judge Mortland about a hundred photocopied pages. He might want to use the women’s movement essay, especially the sections on gender differences as applied to career trajectories and work ethic. He’s got your belt. He’s even got some sample comma splice from some grammar exercise you handed out five years ago: ‘Bright Kari was not, a good time she was.’ Virginia reads a sentence like this as clear proof of sexism. Of course she’d never read it before this year, so God alone knows how it contributed to a hostile environment when she was at Novum.
“Barclay is still trying to get into the Busiris business, what he’s calling your ‘long history of sexism and racism,’ but also your ‘life of duplicity and guile.’ Mild-mannered college prof by day, Anarchist Extraordinaire by night. The Busiris file is his case, and he knows it. He’s entitled to that letter in the Republican-Standard, but he’d like to use the student complaints. I doubt he’s actually talked with the students, though. They’re not on his list of potential witnesses, which figures. Maybe he has talked to them and knows they’ll retract their previous complaints on the stand. At least Gayle, Jackson and Robertson would. They’re my witnesses if he brings any of the others. I did not mention that I’ve lined up Gayle, Jackson and Robertson, and when I saw no Busiris students on his list, I substituted an alternative list of my people which does not contain Gayle, Jackson and Robertson. In a couple of months we will provide each other with updated lists. I’ll see what happens then.
“Before today, Barclay thought he could use letters without authors, but I got him to understand he could not. What he’ll do next, I’m not sure.
“He’d like somehow to get to Lily Lee, and maybe a few others, to establish a pattern of behavior that antedates your present wife, but that stuff is so buried and so hearsay. . . .”
“I’d like to keep Lily Lee out of this,” Jack told Marcus.
“Kelly, as I said, is no problem. Lily might be . . . another matter. You have denied Barclay’s request for access to your Busiris files, although Judge Mortland is familiar with their contents and could order them opened.”
“Where did he get them?” Jack wanted to know.
“Fitzner and Nation, beyond any doubt. They were leaked long ago, although old BTU wishes to god they hadn’t been. Fitzner and Nation are both in hot water. As much as Barclay wants to use those files, Busiris wants him not to use those files, because therein lies a good portion of your potential law suit against Busiris. Technically, of course, neither Mortland nor Barclay has seen a document dated before 1990, except for your Novum personnel file. I’ve objected to the introduction of anything from the Busiris files on the grounds they contain false and unsubstantiated allegations and would be extremely prejudicial to the jury. I had to object. Otherwise you’d lose any potential lawsuit against Busiris.”
“Why the fuck should Virginia Coyle collect for Blondie Robertson’s or Alonzo Jackson’s pain and suffering?” Jack wanted to know.
“She doesn’t. Not directly. The other letters establish a pattern of behavior which makes more probable your alleged sexism and harassment of the plaintiff. That’s the usual argument. The real purpose is to make you look like a creep.
“I tried a new argument. Strictly as an experiment, and in addition to arguing that the Busiris stuff was irrelevance and prejudicial.
“I told Mortland, ‘Look, my guy is married to his former student. They were seeing each other, in public, while he was a teacher and she was a student. It’s fair to surmise they were sacking out together at the time. He admits it, we admit it. The school accepted it, the world accepted it. So he admits he was sexually active with at least one student. Maybe there were others, before or after, in whom he consummated or expressed an interest, but he doesn’t admit that. It might be logical to assume there were. So how many coeds was my man involved with? One? Five? Ten? A hundred? We’re not saying, except we admit, at least one.
“ ‘Let’s for the sake of argument say it’s a fifty. Let’s say counsel for the plaintiff can bring to court a veritable parade of fifty women who will testify that Jack Creed hit on them some time in the last ten years. He cannot, of course, but for the sake of argument, let’s say my colleague can present the court with fifty women who were hit on by Professor Creed. This, my esteemed colleague would argue, demonstrates the likelihood that my client hit on his.
“ ‘Fifty seems like a very large number, but in fact the testimony of even fifty women would not demonstrate the likelihood that my client hit on Virginia Coyle. The testimony of only fifty women would, statistically, prove an overwhelming unlikelihood. Jack Creed teaches on the average 90 students a term, or 270 students a year. Half of them are women. Some are returning students—a group conspicuously absent from the rosters of the plaintiff, incidentally—but Professor Creed meets at least 120 new female students a year. He also meets probably fifty more women who are not students. Per year. In the last ten years Jack Creed has interacted with 1,700 women. Fifty harassed women would still represent only 3% of the women Jack Creed has met. 3 in 100 is less than your odds of cutting a deck of cards to a one-eyed jack. It would be far more likely that the plaintiff belonged to the 97% my man had not harassed, than to the 3% my colleague would have shown Professor Creed to have harassed. My esteemed colleague would need the testimony of approximately 850 women to make it even odds that Jack Creed harassed his client. Of 900 women to establish even a marginal likelihood.
“ ‘My colleague cannot provide five women, let alone fifty. Over a period of twenty years, not ten. And he’s been looking, now, for the better part of a year.
“ ‘Therefore, all testimony not specifically related to the specific alleged harassment, discrimination, and libel of Virginia Coyle by defendant Creed is irrelevant to this case.’
“I’ve been waiting three years to make that argument to a judge. I don’t know how Mortland is going to rule on my motion, but it’s a big one. I don’t even know how we hope he rules. If he disallows my objection, we have a long and sensational trial, followed by a juicy law suit on which we collect a huge settlement from Busiris almost without arguing the case. If he allows my objection, we have a short trial. Most of Barclay’s case goes right down the toilet. As does most of our suit against Busiris, incidentally.
“I don’t want to be cocky, Jack, but I’d say you’re in a win-win situation.”
“So what do I do for the next three months?” Jack wanted to know.
“Teach your classes, and enjoy your wife. Read Bob Dylan. There’s nothing else to do right now. The Judge has it all, and I do mean it all. Your diaries, your personnel files from Novum (now open) and Busiris (for the moment closed), Virginia’s files from Novum State and Mount St. Mary’s (if you’re worried about yours, you should see hers . . . although I, again technically, haven’t seen them), lists of witnesses, depositions, preliminary arguments, her little published article and another she’s working on, excerpts from just about every book or article you ever wrote, her files from the Human Rights Commissions, even two hundred pages of her medical records. Mortland also knows about her lawsuit in California, as does Barclay, who has kissed goodbye to his dream of a quick and easy Novum State settlement. Mortland also knows about the police investigations at Riverton and their findings.
“Now the Judge is going to mull all this over and make some rulings. You might as well forget the case and leave the lawyering to me.”
DeLotta left Lake-of-the-Woods “to do some work to pay our bills,” as he put it.
Jack met his classes, read his Dylan, and tried his best to enjoy his wife.
The long northern winter ground on, a bitter cold winter in 1996-97, lows of minus thirty, highs of minus fifteen. Snow everywhere, and ice, and not a thaw the entire winter.
The days weighed more than the layers of heavy snow on Jack’s roof.
On February 3, 1997 Judge Mortland summoned Barclay and DeLotta to his chamber for rulings on pretrial motions. Jack waited nervously at school with Lloyd Cowley, Marilyn Schneider, Ed Haley, and a dozen or so potential witnesses, all of whom would, if asked, tell what they knew . . . all of whom would gladly have given a month’s salary not to have to say a word.
“They’re cutting a deal even as we speak,” Lloyd Cowley predicted. “My brother-in-law is a lawyer. He says none of these things ever come to trial. Both sides posture and huff, and then they settle on the courtroom steps.”
“Tell that to O. J. Simpson.”
“That’s a murder case.”
“DeLotta’s in no mood for settlement,” Jack told Lloyd, unsure in his heart of hearts just what he himself hoped for. “How would we settle, except to have the thing dismissed?”
“That would surprise me,” said Marilyn Schneider. “Judge Mortland has a reputation for being fair, and something of a reputation as a woman’s judge. I’m sure he wanted to give Virginia every opportunity to present her case, to be fair.”
“Marcus says he hasn’t seen a case yet,” Jack said. “Which is also my opinion. But I’m prejudiced. Anyway, I do not anticipate a dismissal at this date.”
Having given Virginia Coyle every opportunity to present her case, and having weighed a veritable mountain of evidence, Judge Mortland chose to allow VC to do her thing, but to draw a tight circle.
“For the mutual benefit of both your client and yours,” he announced to Roger C. Barclay and Marcus DeLotta, “I am going to rule inadmissible all evidence and testimony on matters material before the moment of Dr. Coyle’s application to Novum State University. I am also going to rule inadmissible all evidence and testimony material to investigations of either the plaintiff or the defendant outside of the complaints presented in the plaintiff’s complaint of 22 November 1995.
“In short, fellows, this trial will focus on three central issues: was the plaintiff sexually harassed by the defendant? Was the plaintiff sexually discriminated against by the defendant? Did the defendant libel the defendant in her profession? Evidence or testimony not materially related to those three issues is out.”
Judge Mortland also announced that, since the plaintiff seemed convinced she had been wronged, as evidenced by her repeated efforts before the Human Rights Commission and his bench, he was allowing her the trial she sought. “This is a new area of law,” he explained, “and we must explore it carefully. The charges are not, therefore, dismissed. Although the plaintiff retains the option of withdrawing her complaint.”
“He drew a very close circle,” DeLotta reported to Jack’s supporters. “This will be a sharply focused trial and a short one. Most of you will not even testify. At least not at this trial. Jack should have pretty smooth sailing. A sane person would drop the case at this point, but one thing I’ve concluded: Virginia Coyle is not a sane person, and Roger Barclay is going to go as far as she pays him to go.”
Jack breathed, he thought, a sigh of relief. Kelly was safe. So was Lily Lee. The ghosts of Shirley Friedman, Anne Brower, Sandy Chase and Alonzo Jackson disappeared like melting snow in April.
Jack sailed confidently through the balance of winter term and, on DeLotta’s advice, spent the last week of February skiing with Kelly in the Black Hills.
On March 6 they returned to Lake-of-the-Woods for a few days of final consultation with DeLotta. They were joined by Jenny Lynn, who left Madison to be with her dad, and by me. I had no official leave from Busiris—I just didn’t give a damn. Timm could not get leave from his duties in California. “In an emergency, I’ll be there,” he promised his father.
Roger Barclay and Virginia Coyle arrived in Lake-of-the-Woods on March 8.
Victoria Nation arrived on March 9. As did Rose Marié Creed.
So the players assembled for what, after all the huffing and puffing, shaped up as a neat and tidy trial. There was no national press in Lake-of-the-Woods during the second week of March 1997.
On the afternoon of March 9, the day before his trial began, I had the longest, most intimate conversation with Jack I’d had in several years. Marcus was buried in paper and strategy. Kelly and Jenny had rented Reality Bites for a little eighties-generation bonding. Both Jack and I were restless, and both of us were having trouble following the film’s cultural references. Jack was beginning to show his contempt for its confused, neurotic characters—and thus for his wife and daughter’s generation. The atmosphere inside the house was becoming brittle, and, although clouds hung low and a snow storm threatened, I suggested a walk.
Within two minutes we were trudging across the snowy Wisconsin landscape on County C, Jack in his steel-toed Red Wings and a black ulster that dated to his days in Wales, I in a borrowed down-lined parka that Kelly had bought him for Christmas.
For a couple of minutes we walked in silence, down the dry center of the road, our breath forming short clouds in front of us. Jack seemed lost in thought, which I mistook for trial anxiety.
Finally he said, “One generation abandons the enterprises of another like stranded vessels.”
“Henry David Thoreau.”
“I didn’t get it, Tucker.”
“Jack?”
“The film. I didn’t get any of it. I felt no empathy with the protagonist or her wacko friends. Utterly fucking hopeless. I wouldn’t lift a finger to help any of them. Go to the barricades with those assholes? They don’t know what a barricade is.”
“That’s the new breed, old man. You don’t see as many of them here as we do at Busiris.”
“I’m one of the Old Ones, Tucker. Me and Dylan. I don’t know what happened.”
“It all seems to go around. We’re a generation removed by now. Maybe two. Your daughter was right about that.”
“I’m so far from home right now, I wouldn’t recognize my own living room if I walked through it.”
“If two people travel far enough in opposite directions, the meridians on which they travel begin to converge.”
“Meanwhile the moon goes on unattached through the heavens.”
“You’ve done a lot of things for a lot of people, Jack.”
“Mostly women,” he declared flatly. “Virginia’s right: I’m a ladies’ man. I spent my life earning money mostly for women. All that happened was that they hit me up for more. Or hit me on the head. Or hit the road. Timm, on the other hand, has never asked me for a thing in his life. Or you. Or Marcus. One of the many significant differences between men and women.”
“That is not something you’d want to say in front of a jury.”
“Not something you’d have to say to men. Women? They wouldn’t understand if you spelled it out in six-inch letters.”
“Jenny’s not that type. Or Kelly, from what I’ve seen.”
“When we started in the seventies, everything was similarity. ‘Anything you can do, we can do as well.’ Now it’s all differences. The emphasis has shifted. Having bought their way into the league with an argument based on equality, they petition immediately to alter the rules to allow for inequalities.”
“Another generation of women is doing the arguing.”
“There are two fundamental differences between men and women,” Jack declared. “One is that women take sex more seriously than men. I mean the physical, mechanical act of sex. They believe the gift of their bodies is the greatest gift they can make a man, and any man who accepts that gift owes them forever. Sex to a woman is the culmination, an end. For a man sex is urgent, even more urgent than for a woman, but for men, sex is just a beginning. The gift of her precious body gets a woman inside his front door. No further. Once she’s banged a guy, a woman thinks she’s in the bedroom of his life, when she’s still sitting in the front parlor. Because she misunderstands, she goes no further and remains forever locked outside the empty bedroom of his heart.
“Because he underestimates her gift, he never understands how callous he looks running off on adventures with other people. She fills the emptiness with a child and withdraws. He gets jealous. The child grows up and moves away. He can’t understand her emptiness and her anger, and his role in it.”
I nodded agreement.
“The other difference is that women talk and men act. This difference results in two misunderstandings. One is that women figure that if a man hasn’t talked something through with her, she’s been left out of the decision. A second result is that women assume that men who aren’t talking aren’t thinking. I know women who honestly believe that when they ask a man what he’s thinking and he says, ‘Nothing,’ he’s really thinking about nothing at all. Kelly’s better at that, and Jenny Lynn. But all women like to talk.”
“A third difference is that women make better storytellers,” I added. “And words and looks, which seem too trivial to a man, can seem harassing to them.”
“No woman really understands what a man gives up for a relationship,” Jack said.
We walked a minute in silence, birch and pine to either side, and the silent snowy fields. A truck pulled up to a distant intersection, turned left, its red tail lights the only color in the evening sky.
“We create so much guilt for ourselves,” Jack said finally.
“Beginning with our parents.”
“With mothers. More mothers than fathers. Mothers understand intuitively that guilt is the mainspring of Western Civilization. Family, church, school. It starts early, and it never ends. Women are geniuses at making you feel guilty about doing what they wanted you to do in the first place.”
“Or one woman hauls you into court for complying with the wishes of another woman. Quite a system.”
“It’s our fault for letting them get away with it. American men have lost control of their women. The culture is shot.”
“Something else we might not want to say on a witness stand.”
“I couldn’t explain it anyway, Tucker. Not in a week of testimony. Better I don’t even try.”
“You’re the defendant. You’re entitled to a trial in front of your peers. Even the radical feminists agree, when it suits them, that women and men are different. You should have an all-male jury.”
Jack just chuckled.
We walked again in silence.
“What happened to Lily Lee?” Jack asked finally.
“I don’t know,” I said. I didn’t.
“DeLotta says she left Busiris under some kind of cloud.”
“Andy lost his job at the bank. She lost her job at Busiris. Sound odd to you?”
“It wasn’t me who mailed those letters.”
“The only way to know for sure is to pick up the phone.”
“I’m with Kelly now.”
“You’re a proud man, Jack.”
“And a discrete man. Even when it costs me.”
“You’re not through the woods yet.”
“Oh, there are ways of pushing it,” Jack said wearily. “And there are ways of not pushing it. I’m a pretty contented guy when I’m left to teach and write.” He slowed to a standstill in the middle of an intersection. The toe of his Red Wing pivoted on the macadam. “The kids are okay at this school, Tucker. I draw a lot of energy from them. I’ve got the Dylan biography. I’ve got work enough to last a lifetime,” he said dreamily.
We turned back toward the farmhouse.
“So it really wasn’t you in 1985?” I asked him.
“It really wasn’t me. Oh, maybe a couple of things relevant to the basketball investigation, but I didn’t go burning libraries or smashing innocent buildings. If it makes you happy, I’ll take the credit.”
“That’s just one thing you get credit for. In Riverton you grow larger each year. By now they think Lumberjack Creed was seven-foot-two inches tall, dined on railroad spikes, and snacked on tenpenny nails. And the number of his women . . . ‘like the stars, my friend, like the stars’.”
“Of his women, a man should not speak. Even to his best friend.”
“You mentioned one. No others.”
“And I apologize. To you and to Lily. And to Kelly, who is a very fine woman. Which is all you, or the court, or Marcus DeLotta, or Thought-and-Action Police Person Virginia Coyle will ever, ever hear from me about my women.”
Jack fell again into silence, then spoke only studied irrelevancies. As we reached the drive, he looked one last time down the road to the west. “Well,” he said quietly. “The women are inside eating popcorn by the fireside. We are out here in the snow. And somewhere out there is Timm, flying his F/A 18. You plant acorns, Tucker, you’re gonna get oaks.”
After a rollercoaster year of sensational allegations and rumored wars, the trial itself seemed almost anti-climactic. Most of the 11th was devoted to jury selection and opening arguments. Jack, wearing a gray suit and a paisley tie, sat respectful and attentive in the defendant’s chair. Virginia Coyle sat stiffly in the plaintiff’s. She had limped dramatically into the room on crutches, having injured her ankle, the court was told, taking indoor ice-skating lessons in Minneapolis. She tried to look hurt both physically and emotionally, but appeared to me, and several others, oddly triumphant.
“She must know something she’s not sharing with Barclay,” DeLotta observed following the afternoon session. “He’s worried. He knows he hasn’t got a case, and he knows he hasn’t prepared what he does have. He’s just collecting Coyle’s money. I wouldn’t be surprised if Mortland cited him for contempt.”
“Maybe she’s just happy to be having her trial,” Kelly thought aloud.
“Virginia always did like to be the center of attention,” said Marilyn Schneider.
“She’s a bitch, dad,” Jenny told Jack. “You can tell just by looking at her. Too bad she didn’t get hired at Bryn Mawr. She’d have done real well there.”
“What I want to know,” Jack wondered aloud, “is what your mother is doing here. And what Victoria Nation is doing here.”
“I honest to god don’t know, dad,” Jenny told Jack. “We haven’t talked since she got here. I know she’s sore at me. She knows I’ve been up here lots, and we haven’t been getting along too well lately. Maybe she’s come to watch the execution.”
“Barclay has listed as a potential witness a Ms. X,” DeLotta mentioned for the first time.
“Who’s that?” Jack wanted to know.
“I don’t know. This happens, not often, usually in cases where revealing the witness’s identity might threaten him or her with harm or harassment or intimidation. The person would have to be someone from the list of potential witnesses we reviewed last year. Could be your ex-wife. Could be Miss Vicky. It could be somebody else entirely. But anything this witness might have to say would have to pertain to the 1990-1992 time frame set by Judge Mortland. It could also be there’s no ‘Witness. X,’ and Barclay is just trying to make you sweat.”
“I’m not saying a word about your mother,” Kelly told Jenny Lynn, “but that Victoria Nation certainly does not like me. I could feel the bad vibrations clear across the courtroom. I think she had them focused like a laser beam, right at my head.”
“Yeah,” Jack said a little sheepishly, “it was kind of like the front portal of one of those European cathedrals: the elect on the one side, the damned on the other.”
DeLotta looked tired. “I’ve lost a lot of my enthusiasm since the judge gave us such a narrow focus,” he admitted. “I should have expected as much. No judge in Lake-of-the-Woods, Wisconsin is going to go for the big picture and possibly set major precedents.”
“The law, in its majesty, rises above all substantive issues,” Jack said. “We can open the focus if we want, Marcus. Fuck, we can do anything we want.”
“If you’re the one to lift the lid on Busiris, Jack, you blow your Bucks bucks. There’s nothing Barclay would love more than for you to mention Busiris. He’ll be all over you in a minute. That’s one topic to avoid.”
“What a revolutionary idea. Forcing a jury of ordinary men and women to deal with ideas. How totally rad!”
“We did force one thing, though, and if it stands through appeal, it will be a major precedent.”
“The previous history?” Jack suggested.
“Exactly. Wide and deep has been standard procedure. This is a new game. Her background played into your hands a little bit, but I think an appeals court will let this stand. That’s a big ruling to take from this case. The decision, and the argument that got it.”
“What do you think of the jury?” Jack wanted to know.
“We got a good jury. Barclay likes it because it’s all women. He went for gender because he thinks they’re going to be sympathetic to Ms. Coyle.
“I went for class. Every one of those women works an eight-to-five job. Most of them work for pretty low wages. Two are divorced. I’m betting that they know real harassment, and they know real hunger. Virginia Coyle, Ph. D. is not going to impress them with her tale of suffering. Did you see them when she said she’d broken her ankle ice skating? This case is over. They’re not even listening. I’m going to keep her on the stand as long as I can, just to keep her in front of them.
“And you, Jack, when your turn comes, keep your answers short and businesslike. I’m even going to ask that you be excused for Tuesday and Wednesday afternoons so you can meet your classes. I don’t think Mortland will go for it, but it’s a good ploy. Creed is the worker. Coyle is strictly leisure class. Class is more significant than gender. This jury is not going to award her a penny. You heard it first here.”
Virginia Coyle began her testimony on Tuesday. She spoke slowly and with an accent foreign to the northern Wisconsin ear. Nor was her vocabulary the jury’s. When her attorney asked her to explain terms, she did so with a sneer which offended the working-class women judging her case. She made a great to-do about her broken ankle. She wore a very fashionable dress and a heavy gold chain. Her attorney dressed well also. Too well.
On Wednesday, Virginia repeated the errors of Tuesday. True to his word, DeLotta kept her on the stand a long while, nearly expending the judge’s patience and nearly, Judge Mortland warned him in a recess, losing his jury.
The plaintiff rehearsed her versions of the conversations of February and April 1991, of her first and subsequent encounters with Jack. She did not testify that Charles Creed had offered to trade his support for sexual favors. Under cross-examination she even admitted, “I didn’t get the impression that Professor Creed actually wanted to go to bed with me!” The attempt to be humorous, or realistic, or simply to admit graciously the obvious, fell flat. Virginia spent nearly half an hour deconstructing the multiple symbolic statements made by any male who wore a belt buckle in the shape of a pig. The more she sought to transform a Jack’s ear of corn into a penis, and thus a symbol of male chauvinism and contempt for women, the more obtuse and divorced from reality she became. Finally the jury began laughing, and Judge Mortland had to remind them to maintain decorum. He was chuckling to himself as he spoke.
Under cross-examination, Virginia seemed deliberately evasive on dates and particulars of the harassing telephone calls. She backed off her story of Jack requesting a grade change.
“Did Professor Creed name the student?” DeLotta wanted to know.
“He did.”
“Did you recognize the name?”
“I did not.”
“How did you know he was having a sexual relationship with this student?”
“He told me.”
“He volunteered that information to you over the telephone.”
“Yes.”
“This was a telephone conversation.”
“Yes.”
“How did you know the voice on the telephone was Dr. Creed?”
“It sounded like him.”
“Did the voice on the telephone identify himself as Dr. Creed?”
“No.”
“So this person, whoever he was, called you to announce that he was having a relationship with a student and would appreciate your changing the student’s grade?”
“That’s correct.”
“You have testified that the relationship between Professor Creed and Ms. Ayers made you uncomfortable ‘from the moment I arrived at Novum State’?”
“I considered it improper.”
“You would, then, at the time of the phone call, have recognized the name ‘Kelly Ayers’.”
“That’s correct.”
“Did Kelly Ayers ever take one of your classes?”
“I don’t remember her being in any of my classes.”
“I can tell you, Professor Coyle. She did not. Would you like a moment to examine all of your class rosters?”
“That will not be necessary.”
“So the relationship announced in this phone call could not have been Kelly Ayers, since she was not in your class, and you would have recognized her name.”
“I accept that.”
“If the voice on the phone was the voice of the defendant, Professor Creed, then Professor Creed must have chosen to reveal to you on the telephone that he was involved with another student, at a time when everyone else in the university, including yourself, knew he was dating Ms. Ayers?”
“I am merely reporting the conversation.”
“Could you speculate on why Professor Creed would choose to reveal to you of all people the fact that he was two-timing his future wife?”
“Objection”
“Sustained.”
“Ms. Coyle, did the person on the telephone specifically identify himself as Professor Creed? . . .”
By Wednesday afternoon it was clear to everyone in the room that unless DeLotta really blew his case, Coyle was roadkill.
Newlund testified on Coyle’s behalf, mainly on contractual matters relating to the difference between a fixed-term and a tenure-track position, and on the role of departments in advising the Vice President on hires and renewals. He described Virginia Coyle as a “competent” teacher and a “valued” colleague. Newlund said nothing about the illegal meeting at the Silver Dollar Bar. (“If he had,” Marcus pointed out, “I would have made him tell the jury how Jack objected to settling Virginia’s fate in Virginia’s absence and volunteered himself for the February 11 warning. That testimony would only have hurt Barclay’s case.”) Barclay introduced two affidavits from former students who claimed to have benefited from the classes of Professor Coyle, whom they found “tough but fair.” He produced not a single student or colleague who could testify to receiving or witnessing sexual harassment or gender discrimination from Professor John Charles Creed between spring of 1990 and summer of 1992.
Barclay did not call as witnesses either Rose Marié Creed or Victoria Nation. Rose Marié disappeared on March 9, after Jack had finished his testimony. During her days in Lake-of-the-Woods, she never explained the reason for her presence, except to tell Jenny Lynn, “I’m not here to testify. I just thought I ought to be here.” She made no effort to contact Jack, and she did not hang out with Victoria Nation. Jack thought she was trying to unnerve him. My own suspicion, unsupported by anything Rose Marié ever said, is that she felt Jack had endured more than enough and wanted somehow to show support, and possibly to move toward reconciliation.
Victoria Nation, on the other hand, had definitely come to make a statement and to watch what she hoped would be an execution. As Tuesday passed, and Wednesday morning wore into Wednesday afternoon, and Roger C. Barclay rested his case without calling her—or the mysterious X-rated Witness—Nation began to understand that not only would the trial end without her having her say, it would probably end with Creed fully vindicated. In the courtroom she became increasingly agitated, drawing the attention first of Judge Mortland, and finally of several jury members, who, seated with their backs to the public, turned around more than once to determine the source of a whisper or a gasp. Her first intrusion was a rather staged gasp of sympathetic horror—an audible “Ohhhh!” or “Poor thing!”—when Virginia recounted the story of Jack’s “That’s cute!” remark at Schneider’s party. His Honor reprimanded Victoria with a very severe look directed right at her. On the occasion of her second outburst, he stopped the trial and addressed the public collectively, reminding everyone that the decorum of the court was to be preserved, and that violations of that decorum would not be tolerated. When Barclay announced shortly before 4:30 on March 12, “The prosecution rests, your honor,” and Nation let fly a very audible “No!” Judge Mortland barred her from the courtroom.
“The court will recess until 9:00 a.m. tomorrow morning,” he directed. “The jury is dismissed. Will the bailiff please detain the woman responsible for that last outburst.”
Victoria seized this opportunity to take her case directly to the judge and to the jury, which had not yet left the courtroom. “Your honor, a terrible travesty of justice is going on in this court. I can’t remain silent in the presence of this gross miscarriage of justice. The sins of a very wicked man are being deliberately concealed from this jury. . . .” Vicky was quite dramatic, something right out of cinema.
“The bailiff will clear the courtroom,” Mortland ordered. “Persons material to this case are directed to return at 9:00 tomorrow. Persons who are not material to this case will absent themselves from the courtroom.”
As the jury, ushered by the bailiff, left the room, Victoria moved toward Judge Mortland to plead her case further. He cut her off with the raised finger of a stern father: “Madam,” he told her, “I have no idea who you are, but you are not, to my knowledge, a principle or a witness in this case, and therefore have no necessary presence in this courtroom. This is a public tribunal, but your disruptions are intrusive and contemptuous of court. I do not expect to see you in this room again, and if I do, basing my actions on your past performance, I will direct the bailiff to remove you.
“This is a kangaroo court,” Nation insisted. “I myself have provided you with damning evidence that this jury is not being allowed to see. I’m sure Mr. Barclay has shared my evidence with you. The women on this jury must understand this man is a male chauvinist pig who has spent his life protected by the patriarchy. His abuse of women must not be allowed to continue. Oh, Virginia, honey. . . .” Victoria turned to Virginia Coyle, then back to Judge Mortland. “Your honor, I have known this man for twenty years. He is a wicked, wicked man. . . .”
“Remove this woman from this room,” Judge Mortland directed the bailiff. Then he turned his attention to Roger Barclay. “Is she one of yours, counselor?”
“I had no idea, your honor.”
“The woman is out of control. If she shows her face in this courtroom again, she’s cited for contempt. You’re this close to being cited yourself. You are directed to explain during recess to her and to your client that she has just given me more than ample grounds for declaring a mistrial, and Mr. DeLotta more than ample grounds for filing an appeal should he desire.” Thereupon His Honor retreated to his chambers, and Barclay left to search for his client, who was in the hallway comforting a nearly hysterical Victoria Nation.
“Too damned much!” Jack told Marcus over dinner. “I can’t follow that act!”
“You want to know why I left Bryn Mawr?” Kelly asked rhetorically.
“You’re such a wicked, wicked man,” Kelly twitted Jack.
“You think that she affected the jury much?” Cowley wanted to know.
“Sure she influenced the jury. If we didn’t have it already, Miss Vicky just handed us the case. The jury already considered V.C. some kind of mandarin. Now they know she’s got a bunch of wacko friends. After that ‘Oh, Virginia, honey,’ they’ve probably pegged her as a dyke. Jesus! If Bailey could bring Victoria Nation to California, Simpson would walk. I’m just afraid Mortland will have to declare a mistrial. Vicky set Jack up perfectly. You know, I have begun to feel a little sorry for Barclay. The schmuck!
“Jack, tomorrow is kill-the-clock time. I get you on the stand. I ask you very succinct questions. You give me very brief answers. Just the way we rehearsed. Same when Barclay cross-examines. You get off the stand. And stay away from Busiris. Same tomorrow, Lloyd. Simple questions, simple answers. Lloyd, I’m not sure I’m going to call you or anyone else. I want the jury to remember Virginia and her insane sob sister.”
“Sound bite justice,” Jack said.
“Trial law is a performance art,” Marcus told Jack. “Like teaching. Only in this business, you get paid better.”
Victoria Nation did not hear Jack’s testimony on the 9th. Barred from entering the courthouse, she had got up a cardboard placard and was picketing on the front sidewalk. “Kangaroo Court” read one side; “This Way to Miscarriage,” read the other. We saw her when we arrived at 8:30.
Barclay nearly had a stroke.
“Who is this insane person?” Kelly wanted to know, “and what did you ever do to her?”
DeLotta seemed concerned. “I don’t want a mistrial now,” he said. “I think we have this locked.”
Jack’s testimony went well, although to DeLotta’s succinct questions he offered rather expansive answers. His lawyer might have been trying to kill clock, but Jack—always the teacher—was trying to help the jury focus and analyze issues. On the whole, Jack’s gamble paid off. Whereas Coyle came across as a cold and calculating Mandarin, Creed appeared the perfect Boy Scout: warm, concerned, patient, sincere, thoughtful and helpful. For three hours, with one fifteen-minute recess, Jack recited his version of Coyle’s dismissal, portraying himself as a reluctant agent of the collective will of Novum students, faculty and administration, as one who had risked great vulnerability out of consideration for the plaintiff . . . as one whose patience—like that of the jury and judge—had worn finally to the breaking point.
Barclay began his cross-examination around 3:00. It lasted only seventy-five minutes. Unfocused to begin with, Barclay started bad and went downhill from there. Either he had no strategy other than to undermine the defendant’s credibility and break, somehow, into his history at Busiris, or Jack’s repeated retreats into contextual philosophies interspersed with sudden forays into very specific anecdotes frustrated his plan.
When Barclay introduced parts of the diary, Jack readily admitted, “Yes, I did refer to Virginia Coyle ‘a ditz.’ I was writing in my journal. I did not expect my journal to be made public. I doubt any of us expect our journals to become the subject of a public discussion. If we did, I suspect we’d all lie like carpets. Because diaries and journals are private affairs, we can be absolutely honest with ourselves.” Big points for the defendant.
At some moments, Jack was more the attorney than the witness.
“Prior to the department meeting at which Professor Coyle’s application for a tenure-track appointment was considered, did you prepare a chart reflecting her grades as compared to departmental and university grades?”
“I did.”
“And is this that chart?”
“It appears to be.”
Barclay entered Jack’s grade chart as exhibit 31.
“Now in preparing this chart, did you consult with Professor Coyle?”
“The charts were prepared from Professor Coyle’s grade rosters, a copy of which was on file in the department office. For the department and the university figures, I simply asked the registrar to ask the computer to tally totals and percentages of A’s, B’s, C’s, D’s, No Credits, Incompletes, and Withdrawals. I thought the computer would be more accurate than I. And more disinterested.”
“I didn’t ask how the figures were arrived at, I asked whether or not you consulted with Professor Coyle.”
“The manner of collection is important, because it explains the chart’s inaccuracy. Your client has asserted that my figures misrepresented her grades, and, I have discovered, they do.”
“Misrepresent?”
“These figures are tremendously inaccurate in one regard,” Jack admitted.
“Inaccurate,” Barclay repeated.
“On the number of withdrawals,” Jack continued. “As I said, I prepared the figures for Professor Coyle from her grade rosters. Students who drop a class during the first week of the term do not appear on grade rosters, although they do remain in computer memory. First week drops are not included in Professor Coyle’s totals, but they are included in departmental and university totals.
“How significant is the difference, this jury might wish to know,” Jack continued, questioning himself.
“Last week I requested the registrar to retrieve the record of first-week withdrawal from all of Professor Coyle’s classes, if she could, and give me an accurate number of withdrawals from each class for each term. She could and she did. In every case the chart I prepared underreports Coyle’s withdrawals by at least 50%. In the fall of 1990, for example, where the chart reports 15 withdrawals, the actual total is 34. For winter the chart records 17. The actual total, including first-week drops whose names did not appear on the grade roster, is 42.
“The bottom line is that the percentage of withdrawals from Virginia Coyle’s classes is five times the departmental and university average, not twice the departmental average, as this chart shows.
“Otherwise, I believe the figures are quite accurate.”
Although he perceived he had been had, Barclay persisted with his own line of questioning. “Professor Creed,” he wanted to know. “Were these figures shared with Professor Coyle at any time before the department meeting? Was she given any opportunity to respond to them?”
“I discussed grades and withdrawals with Professor Coyle on February 1, 1991. Marilyn Schneider had discussed grades and withdrawals with Professor Coyle before that. And of course Professor Coyle had prepared her own grade rosters. While Professor Coyle did not see the chart, she had been confronted with the point they were making. Which she has consistently chosen to duck.”
“It’s correct to say you knowingly prepared materials which bore heavily on the plaintiff’s future employment, but you did not share those materials with her?”
“Virginia did not see the charts,” Jack admitted. “Perhaps if she had,” he added, “she would have corrected my inaccuracy.”
Several members of the jury smiled.
“This meeting of February 11th,” Barclay proceeded. “Were any records kept of that meeting?”
“Except for a brief four-item agenda, a copy of which I provided Professor Coyle, the meeting was off the record.”
“Was that at the plaintiff’s request?”
“It was at my suggestion. I thought it best that our discussion not be part of her record at that time. Especially our discussion of student complaints, but also the business about grades.”
“The plaintiff has testified that she found your suggestion for an off-the-record meeting threatening. Did it occur to you that your suggestion might be perceived of as threatening?”
“Mr. Barclay, by February, 1991, we all knew we had a problem with your client. Part of the problem was that she refused to admit there was a problem. Several members of the department thought she had been warned sufficiently. I was the one who argued for one more warning. As a faculty member and acting assistant dean, I saw three options. The first was no meeting and thus no warning. The second was an off-the-record meeting with a very clear warning. The third was a formal meeting with union representative, documents and minutes. All three options had advantages and disadvantages. I just thought at that particular time, Professor Coyle was entitled to a clear, off-the-record explanation of problems and possible consequences.”
“Was there perhaps something in your own personal experience that made you especially sensitive to Dr. Coyle’s predicament?” Barclay wanted to know.
“Objection,” said DeLotta.
“Overruled.”
“Well,” Jack said thoughtfully. “I think probably all of us here—including members of the jury, his honor Judge Mortland, and even you yourself Mr. Barclay—has at one point in our lives been in a situation where we’re not seeing things quite clearly and we’re getting ourselves into trouble. At this moment we need objective advice, but being what we are, we usually don’t actively seek it. Even friendly criticism is threatening. In retrospect, if we’re fair, we appreciate somebody taking the time to tell us, ‘Look, you might want to step back a little and take a look at yourself.’ Especially if their advice has helped us avert serious disaster. I thought Professor Coyle was in that situation, and that’s the courtesy I was trying to extend to Professor Coyle.”
“In your discussion did you use the terms ‘seduction’?”
“I believe I told her that teaching is a seduction, which it is: an attempt by the experienced teacher to bring reluctant and naive students from one position to a more advanced position. Not by force, or threats, but by attraction. Teaching is the art of winning hearts and minds.”
“Did you suggest Professor Coyle be more friendly and more accessible?”
“I suggested she be more religious in keeping her office hours. Friendlier would not have hurt either. You catch a lot more flies with sugar than with vinegar.”
“Dr. Creed, you’re a professor of English. Would you agree that ‘seduction’ and ‘accessible’ are sexually charged words?”
“Like most English words, both ‘seduction’ and ‘accessible’ have several denotative meanings, and many connotative meanings. Like the words ‘rose’ or ‘blue.’ Maybe the rose signifies love. Maybe it signifies the Tudor monarchy. Maybe it signified the Lutheran church. Maybe ‘blue’ means someone is sad. Maybe it means something is pornographic. Maybe it means ‘true blue.’ In a specific context ‘seduction’ is sexually suggestive, and ‘accessible’ could be sexually charged.
“In other contexts they are not. Even your client has admitted that she did not believe I was trying to get her to go to bed with her. In that situation I was certainly not using ‘seduction’ or ‘accessible’ with any sexual charge. In the context within which I used them, ‘seduction’ and ‘accessible’ are no more specifically sexual than the word ‘religious’ is specifically Christian in the context in which I used it a moment ago.”
“You’d agree, however, that in someone else’s mind those words might have been sexually charged.”
“Not in that context. Dr. Coyle is a professor of literature. She knows she can’t take a word or a symbol out of context and mean whatever she wants it to mean. If communication depends solely on the listener’s or reader’s frame of reference, anything any of us says can be interpreted any way anyone wishes. Communication becomes impossible. I’m perfectly willing to let this jury decide whether ‘I suggest you be friendlier and more accessible to your students’ and ‘try more to seduce your students into learning’ are hitting on the plaintiff.
Jack continued.
“Intention is really the core of this case,” he said. “And of the issue.”
Marcus stretched himself ostentatiously in his seat, hands clasped behind his head, in an attempt to attract Jack’s attention and remind him “short and to the point.” But Jack was off into a philosophical analysis.
“If anything, I tried my best to treat Virginia Coyle as I would treat anyone else, as I would have wanted to be treated myself. I feel in this case like . . . let me tell you a story. When I was a little kid in elementary school, maybe second grade or third, I was not very good at sports. I wasn’t athletic, and I didn’t know the rules. Especially I didn’t know the rules about baseball. We’d play baseball in the fall and spring during gym class, and I was always striking out. This didn’t make me very popular with the other kids.
“One day I noticed that some kids who didn’t swing at the ball got to go to first base anyway. I figured that since I couldn’t hit the ball, I would not swing, and get to first base that way. Then I would be a hero.
“But the umpire kept calling strikes on me anyway.
“So I figured I must somehow be moving the bat in a way that looked like a swing. Maybe I was anticipating the pitch and somehow twitching my arms. I figured if I didn’t know when the pitch was coming, I couldn’t flinch. So I stood up there with my eyes closed.
“And the umpire called strikes anyway, and I was out.
“In this case I feel like I’m standing up at the plate, trying my best not to swing, and Virginia Coyle is still calling strikes on me.”
The jury smiled.
“Professor Creed, did you ever describe Dr. Coyle’s attire as ‘cute’?”
“No.”
“Can you be absolutely certain?”
“Absolutely. I would never use the word ‘cute’ to describe a woman. I had been sensitized long ago to the fact that baby chicks are cute, but women are not cute.”
“How did that sensitizing come about, Professor Creed?”
“I saw the movie Bull Durham.”
“Might any other events in your history have helped to sensitize you?”
“Objection,” DeLotta said.
“Sustained.”
“Was there a point in your life when you might have used the word ‘cute’?”
DeLotta objected again.
Mortland asked where the questioning might be headed.
Barclay pointed out that the defendant’s published works, from the period relevant as well as prior to 1990, gave ample evidence of sexism and insensitivity on language far less delicate than “cute.” This insensitivity, he argued, contributed materially to the hostile working environment which caused the plaintiff’s poor performance and resulted in her unemployment.
Mortland allowed the question to stand.
Jack, who could see Barclay’s direction, answered simply, “I do not now apply the word ‘cute’ to women.”
“I asked whether there was a point in your life when you might have used the word ‘cute.’ ”
“And I said, ‘I do not apply the word “cute” to women.’ ”
“Shall I repeat my question?” Barclay wanted to know.
“Only if you want me to repeat my answer.”
Mortland looked slightly irritated. DeLotta looked worried.
Jack pointed his index finger at Barclay. “The rules of this procedure, Mr. Barclay, are simple. You ask the questions and I answer the questions. As much as I might want to, I can’t ask questions. If I have a problem with your questions, there’s nothing I can do about them. Likewise, you can’t answer questions . . . and if you have a problem with my answers, there’s not really very much you can do about them.”
Judge Mortland sat up in his chair. “The witness is warned he may be cited for contempt for refusing to answer counsel’s questions. However, the court feels that this area of questioning is leading nowhere, and directs counsel to move on to other areas.”
Barclay tried once more.
“Dr. Creed, you testified, in a deposition, I think, that in all the time Virginia Coyle taught at Novum State, you heard only one person say anything good about her. Only one person complimented her performance in any way. Only one single person who appreciated what she gave to that institution as a teacher. Is that correct? Only one person at Novum State had anything good to say about Professor Coyle?”
Jack thought for a moment. “Well,” he said thoughtfully, “there were probably more than one on Virginia’s side.”
Barclay beamed with the pleasure of finally winning a point.
“I remember talking once to the vice president of student affairs,” Jack continued, “and Peter told me that, as far as he could determine, student opinion was about 80% against Coyle. Now that would leave 20% uncommitted or in favor. There must have been more than one person in that other 20%.”
Barclay’s jaw dropped slightly. He paused. “I have no further questions of the witness,” he announced abruptly at 4:15, March 13, 1997.
“The defendant may step down,” Judge Mortland directed.
And Jack was finished.
“What a schmuck!” DeLotta chortled over dinner. “Rule number one in law school—okay, rule number two, after ‘get the money up front’—is always never ask a question in court when you’re not absolutely sure of the answer. That was beautiful. 80%. Where did you come up with that?”
“It’s a true story,” Jack told him.
“We’re in very good shape,” DeLotta assured Creed. “Although you nearly blew it a couple of times. Short and to the point. Remember? Obviously you’re a teacher and a writer. I’ll never make a trial lawyer out of you. Absolutely hopeless.
“Tomorrow morning I’m going to call Marilyn because she’s a woman and, depending on how things go, Ed Haley and Paul Resinski. I think the morning will go very quickly. We start 9:00. I expect an 11:00 luncheon recess. Judge Mortland talked to us this afternoon and indicated he would not like to begin summary until tomorrow afternoon. We all expect this case to be to the jury by tomorrow night. Barclay is just going through the motions, hoping to find something for an appeal, but we’ve got more basis for appeal than he does. He knows he lost this case when the judge drew a tight circle. He knows he’s lost his jury. Hell, he’s lost his client. She’s off somewhere with Victoria.
“Worst of it all, he’s lost his case against the university and the state system. He knows, and I know too, that once this jury comes in with a ‘not guilty’ verdict, Judge Mortland is going to dismiss the balance of Coyle’s complaint. His position is completely hopeless. Jack has just saved the state of Wisconsin, literally, hundreds of thousands of dollars. On this case alone. On other cases for which this will set a precedent? Millions. I do not exaggerate. Believe me, my esteemed colleague has experienced these past three days a lawyer’s worst nightmare.”
“You must feel pretty good, dad,” Jenny said. “I thought you were great.”
“Me too, me too,” Kelly mimed.
“I can do this shit,” Jack whooped.
“Steak dinner,” Cowley announced. “On me.”
“Tomorrow,” Jack said. “I have never in my life trusted the American judicial system. Why start now?”
We went, as a group, as had become our custom, to dinner at the Silver Dollar.
“How do you feel?” I asked Jack later that evening after he, Kelly, Jenny Lynn, and I had returned to the farm. He had been, I thought, in a mellow mood, calm and even confident.
“I had a few things I wanted to say that didn’t get said,” he admitted. “On the other hand, a whole lot of things didn’t get asked that I’m just as pleased didn’t get asked.”
He smiled for a second. “You know, Tucker, I fought this whole thing through, and managed to keep Kelly out of it entirely. I think that was the main thing.”
“And other people, and other things,” I reminded him.
“Yeah,” he said quietly. “And other people. That seems like a very long time ago.”
“It was.”
“For part of me, that was only yesterday. For another part of me, it might as well be something I read in a book. Or dreamt. That’s what is meant, I guess, by ‘the modern dissociation of sensibility’.”
“So how do you really feel?”
“Pretty good. Marcus is a smart cookie. He’s called every shot right so far. Let’s hope he’s right again.”
For the first night in two years, Kelly reported, Jack slept continuously for eight hours.
Marcus correctly called all Friday’s shots except the one that mattered.
Beginning at 9:00, Marilyn Schneider described the party at which Jack’s “pattern of overtly hostile and sexist behavior” allegedly began. Then, invited by DeLotta, she recounted her visit to the plaintiff’s class and her warnings and suggestions, formal and informal. Finally she gave her version of the events which led to the end of the plaintiff’s employment at Novum State. She finished at 10:30. Ed Haley testified that in voting on the tenure-track he had not felt prejudiced by any remarks Jack or Linda might have made outside the meeting, that he had made up his mind based on evidence, and that he believed the rest of the department had done the same. Paul Resinski testified that, as far as he could determine, Jack Creed had “bent over backwards” to be fair to the plaintiff and had “given her every possible warning that her performance was substandard and every possible opportunity to improve her performance.’” The defense rested at 12:15. When we left the courthouse for lunch, Victoria Nation was nowhere to be seen. We later learned that Judge Mortland had issued an injunction forbidding her from appearing “in or within 500 yards of the Chippewa County Courthouse.”
Summary presentations began at 2:00 and lasted until 3:30. DeLotta asked for full acquittal. Barclay asked for $100,000 in punitive damages on each count, $65,000 in legal fees, and “such compensation for pain and suffering as the jury feels appropriate.”
The court recessed from 3:30 until 4:00. At 4:00 p.m., March 14, 1996, Judge Mortland delivered his instructions to the jury. “These are complicated, and I want you to understand them,” he told them. “I have prepared three sets of eleven questions each. The questions on each set are nearly identical, but you must go through the eleven questions three times each, answering every question, every time, ‘Yes’ or ‘No.’ The first time through the eleven questions, you will be considering the matter of harassment. The second time through you will be considering the matter of sexual bias. The third time through you will be considering the matter of libel.
“You will answer the three sets of eleven questions. That’s a total of thirty-three questions. Then you will proceed to one set of four questions. Answer these four questions no matter how you answered the previous thirty-three. These questions concern monetary awards. You are to write in the blank after each question the amount of money you feel should be awarded the plaintiff for each of the four considerations. If the amount is $0, your foreman should write $0. If there are any questions, I will be available in my chambers to answer them.
“Should your deliberations continue past 6:00, the bailiff will bring you a dinner provided by the county.” With a wry smile he added, “It’s a pretty good dinner, too.”
By 5:00 p.m. on the evening of March 14 the jury was sequestered, and Jack was in the Silver Dollar Bar munching popcorn and drinking a beer with his wife, his daughter, his lawyer and his friends.
“You should call Timm,” Kelly suggested. “You didn’t talk to him last night, you know.”
“After the verdict is in,” Jack said. “California is two hours earlier than we are anyway. How long you give them, Marcus?”
“They have to elect a foreman. It’s a complicated set of instructions. They’ll want dinner—it’s the least the county can give them, and one of the few perks of jury duty. My guess is 7:30, maybe 8:00. If they’re not back by 9:00, we’re in some trouble.”
“That was a hell of a lot of money,” Lloyd Cowley observed. “Where would Jack ever come up with that kind of dough?”
“Barclay can ask for anything he wants,” Marcus pointed out. “What the jury gives him is a whole other thing. And if we don’t like what they give him, we can appeal. Hell, we’ll appeal anything other than full acquittal.”
“I got a brother-in-law who’s a lawyer,” Lloyd Cowley said. “He says sometimes you end up paying $20,000 in legal fees on a jury award of $100.”
“Thanks for the news, buddy,” Jack laughed nervously. “Maybe I should call Timm now, before the verdict.”
“Wait, dad,” Jenny advised. “You’re going to be a happy man. I can tell.”
The group ordered another round of drinks. “Might as well whoop it up,” DeLotta told them, looking at his watch. “We can’t get ourselves into too much trouble now.”
At 7:45 Marcus received the phone call he’d been awaiting. “Judge wants us back,” he announced. “The jury has reached a decision. This bodes well.”
At 8:10 the plaintiff and her lawyer, the defendant and his lawyer, and interested friends (excluding Victoria Nation) and, now, members of the local media, gathered in Courtroom B of the Chippewa County Courtroom. The jury returned. Judge Mortland requested that the jury foreman return to him his series of questions and began to read to the plaintiff and the defendant his questions and their answers.
“Was the judge’s explanation of sexual harassment law clear to you?”
“Yes.”
“Do you understand the State of Wisconsin law prohibiting sexual harassment?”
“Yes.”
“Did you understand the testimony presented by prosecution and defense related to the matter of sexual harassment?”
“Yes.”
“Was the evidence presented in this trial sufficient to permit this jury to determine whether the plaintiff was sexually harassed by the defendant?”
“Yes.”
“Is it the determination of this jury that the evidence presented indicates the plaintiff was sexually harassed by the defendant?”
“No.”
Marcus DeLotta looked at his client and shook his clenched right fist briefly above his lap, just below the level of the courtroom table. Jack smiled slightly. “Yes,” cheered Jenny Lynn, below her breath.
Virginia Coyle’s face betrayed no emotion at all.
Roger Barclay stared dreamily into space.
“Was the evidence presented in this trial sufficient to permit the jury to determine whether the plaintiff was sexually discriminated against by the defendant?”
“Yes.”
“Was the judge’s explanation of gender discrimination law clear to the jury?”
“Yes.”
“Do you understand State of Wisconsin law prohibiting gender discrimination?”
“Yes.”
“Is it the determination of this jury that the evidence presented indicated the plaintiff was sexually discriminated against by the defendant?”
“No.”
Jack gave Marcus a quick punch in the arm.
“Was the judge’s explanation of the State of Wisconsin law on libel clear to you? . . .”
“This jury finds the following sum adequate and full compensation to the defendant for sexual harassment.”
“Zero dollars.”
Virginia Coyle’s face remained frozen.
“This jury finds the following sum adequate and full compensation to the defendant for sexual discrimination.”
“Zero dollars.”
‘Go, dad,” cheered Jenny Lynn.
“This jury finds the following sum adequate and full compensation to the defendant for pain and suffering.”
“Zero dollars.”
Roger Barclay pursed his lips.
“This jury finds the following sum adequate and full compensation to the defendant for legal fees.”
“Zero dollars.”
Marcus and Jack embraced quietly. Jenny Lynn and Kelly high-fived each other.
Judge Mortland asked the jury if the statements he had just read accurately reflected their deliberations. The foreman indicated they did. His honor declared the court recessed.
Virginia looked in disbelief at her attorney, who whispered something to her, packed a few papers in his briefcase, and rose to leave the room. Jack’s friends, wife and daughter, and a local reporter rushed to congratulate a defendant nearly, at last, on the verge of tears.
“Go dad!” cheered Jenny Lynn.
“Just great, just great,” Lloyd kept repeating. “Steaks are on me.”
“It’s enough, almost, to restore a man’s faith in American justice,” Marcus suggested.
“Yeah . . . almost,” Jack retorted. “What’s three years of my life tied up in a non-case, as long as I don’t have to pay any money.”
“Now you can phone Timm,” Kelly told her husband.
“I want to phone Timm,” Jack told the crowd.
“There’s a pay phone right out the door and to the left,” the bailiff said.
Jack was dialing the number when Victoria Nation accosted him from behind. “You’re a male chauvinist pig,” Victoria announced, “and you’re going to hell.” He turned as she spoke, and her first bullet caught him just above the left ear. Her second bullet caught him full in the face. Her third bullet hit his foot.
She was headed for the judge’s chamber when the bailiff brought her down.