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Abduction, Incest and Rape-Part III (of III)

III

Back in the jury room, someone said, "What about a foreman?"  No one volunteered.  I let that go for ten seconds or so and said I'd been a foreman before and chaired many meetings, so I'd volunteer and begin simply by asking everyone to talk, without stating firm decisions, about what they'd heard and been thinking.  Then we would move to the charges.   I emphasized I'd happily not do this if anyone else wished to.  There was consensus welcoming my offer.  

Julianne and I went for a salad at a nearby upscale fast food restaurant.  We had little time but covered a lot of ground. With degrees from Tufts and Columbia, she was smart and focused. I’ve counseled so many young people about their careers that I asked her to just let me spell things out about State, the IMF, NGOs, the U.N. agencies, and so forth. She knew how to listen and also how to quickly answer my questions about her strengths and interests. You couldn’t find a better person for many jobs in Washington.  She said her fiancé wanted to go into human rights work, so I talked a bit about that career path, lots possibilities, lots of frustration and obstacles.

When we all had returned from lunch,  Peter  suggested that we consider naming one of the young women as a foreperson instead of me since they were the preponderant group present. I wondered if there some alpha male rivalry afoot, but I repeated that I'd be fine with someone else acting as foreperson.  In fact, I had just gone to lunch with Julianne, who had degrees in Latin American affairs, strategic planning and organizational psychology. Why not her? Agreement came quickly. Julianne accepted, keeping her position at the white board, where she had already volunteered to write things since my handwriting is so bad.

We started with incest.  The paternity test was clear, and Ernesto’s semen was in Sofia’s vagina. No one believed Sofia had put it there. So in a general chattering that couldn’t have lasted more than a minute,  Ernesto had  lost the most decisive battle of all. The jury found Sofia credible and Ernesto not credible.   Incest was an easy charge to decide: guilty.

Abduction came next.  Anna the Russian-American said she had to have a logical basis for her judgment and it was this: if Sofia had wanted sex with Ernesto, why would she call the police afterward? What would she gain?  If he were arrested, she couldn’t have more sex with him. She couldn't blackmail him or place some other kind of hold on him. Further, she would hardly have called her boyfriend, as she did.  Nor would she have told her mother.  Consequently, Ernesto's story was illogical, and Anna concluded that Sofia didn’t realize what he had in mind. He had deceived her and used that deception to abduct her and molest her.  

Anna’s excellent logic notwithstanding, I wanted to make a general point about the videotape.  I said Ernesto and Sofia came from an honor/ shame culture. Julianne audibly agreed with this statement and with what I said next: In an honor/shame culture, you can have honor no matter how poor you are.  Dignity is another way of phrasing this quality in Latin America: dignidad.  When Ernesto raped Sofia, he took away her honor and dignity; he demolished her sense of self and knocked out the underpinnings of her existence.  Ernesto was an authority figure who, in a macho way, which did not have to be excessively violent or dramatic, cancelled her.  That's how she described her absence of feeling afterward.  The fact that she undemonstratively followed him out of the hotel room, waited in the car, etc., would be consistent with her disgrace.  She'd been degraded, rendered null.  But the calls she began to make once she got back to her apartment alone were indications that something remained.   They were her initial efforts to reverse the psychological destruction she'd experienced.  That her father would rape her was the ultimate statement of worthlessness, but that was wrong, and Sofia knew it was wrong.  Even though her mother told her she might be deported if she called the police, she persisted. This must have cost her immense effort. But her father had betrayed and violated her, and she couldn’t care about anything without first caring about restoring her dignity and honor.  

I added that the defense's suggestion Sofia was playing a game to become a victim of a violent crime who would be granted at least a green card was not credible because all undocumented people in the U.S. worry about one thing:  deportation.  They trust no authorities; they'd never believe that playing such a game ultimately would guarantee their continued residence here.

Our discussion went on, focusing on the elements. Ernesto had deceived Sofia about why they were going to the motel; he had exercised his will to deprive her of her personal liberty, which in this case could be mental as well as physical liberty, and he had the intention to molest her. Three elements were met. Now, we had no idea under what circumstances there could be a legal justification or other excuse for his action. Why that provision was an element baffled us. We never resolved it, but we knew he had no legal or other excuse for his actions.  He was guilty of abduction.

Finally, rape: Did Ernesto forcibly rape her, penetrating her vagina against her will? Yes, that's what we thought when we convicted him of incest and abduction with the intention to molest, and we continued to think so. All the elements of guilt associated with rape were met.  Ernesto was guilty.

Julianne realized that she had to fill out the verdict forms and sign them. She  asked me if this could place her in any danger. I said I didn’t think so and reviewed the forms with her as she filled them out.  I didn’t mention the Salvadoran gangs in Arlington because I couldn’t imagine them taking an interest in this case.

Someone said she was happy we’d reached these verdicts. Julianne said she wasn’t happy. I said I wasn’t happy, either. Ernesto had done awful things, but he was a human being, and now we faced something more difficult: fixing the punishment for his crimes. This would be severe.  He would be cancelled as a human being more effectively than he’d attempted to cancel his daughter. 

We returned to the courtroom, Julianne handed the verdicts to the clerk, the clerk gave them to the judge, the judge read them and gave them back to the clerk to read out loud.  Sofia dissolved in sobbing, leaning against her mother whose eyes were hard as stones, looking straight ahead but clearly seeing nothing.  Ernesto remained expressionless and motionless. Mrs. Freeman looked down at her notepad, the results obviously sinking deep within her.   She’d put an immense amount of work into this case, and she’d mounted the prosecution entirely by herself.  Assistant attorneys in “second chair” and “third chair” are TV or big city stuff.  In Arlington, you try a case alone, and you win and lose alone.  

Next we were told we would decide on punishment and given parameters for each charge. 

Incest in Virginia can be punished with a $2500 fine, or a year and a $2500 fine, or a year, or a year to ten years.

Abduction with the intent to molest carries a minimum twenty years, plus up to $100,000 fine, and can go to life.

Rape, unbelievably, carries a punishment from five years to life.

Mrs. Freeman asked Sofia to take the stand again and requested that Sofia describe what her life was like now. Weeping, Sofia said she had no energy, she did not care about things, and she could not have a normal marriage because she could not bear to have her husband (she’d apparently married Ricardo) see her naked. But through her tears, she thanked God and the jury for these verdicts.  She staggered through these statements and ended up saying, as she had before, “No puedo, no puedo.”  In other words, she couldn’t go on.

Mrs. Freeman then asked that Ernesto be given sentences that would mean life imprisonment because we had seen what Ernesto did to his daughter, who had asked for justice and only justice.

Suarez Jr. referred to the possibility that we had rendered these verdicts in the face of some element of doubt, if not reasonable doubt. We should be mindful of that in imposing sentences.

 

The sentencing phase was more difficult for the jury than the judgment phase.  Julianne wrote the possibilities on the white board, and we began puzzling over some peculiar things the judge had told us. In Virginia, if you have served 10 years of your sentence and reach 60, you are eligible for parole.  If you have served 5 years and reach 65, you are eligible for parole.  That doesn’t mean it will be granted, but since we were told Ernesto was in his fifties, we worried that no matter what sentences we imposed for each crime, he might get out of the penitentiary sooner than we thought just.  Should we recommend maximum sentences to send a message to the authorities about what we thought proper in the future...and also to reassure Sofia that we wanted Ernesto in prison for life?

On incest, some of us unhesitatingly said that ten years, the maximum, seemed appropriate.  But a young woman, Anne, noted there could be degrees of incest. What did she mean? Well, she said,  there could be serial incest, or incest with a minor. So if there was latitude, we should acknowledge that Ernesto’s wasn’t the worst incest.  Anna and I thought her point was good, so perhaps five years was right, but Viv wanted more than five years, suggesting seven or eight.  Several of us asked how we could provide a foundation of reason for seven or eight years.  At five, we were clearly punishing him by splitting the difference between the maximum and minimum. But since we’d be giving him many more years on other charges, why seven? Why eight?   We settled on five.

Next, abduction: We took the fine first. Several of us wanted to fine Ernesto $100,000.  But Sara, the mid-life architect, had trouble with the fine.  She asked where the money would go.  I said that it would go to the Commonwealth to help pay for the prosecution and ongoing incarceration.  Anne and Lara agreed. Clear as could be. Yet Sara was the type of person who sat on her concerns and said she still didn’t get it.  Sleepy-eyed Carrie took her side in a way, saying the necessary money already had been budgeted to be spent on prosecutions and incarceration, so why take more? This thought had no takers. Nonetheless Sara sat there resisting the fine without explaining exactly why. When you say you don’t understand something that’s perfectly obvious, you’ve got some principle in play; Sara somehow was offended by or mistrustful of the money issue. To begin building pressure on her to explain herself or propose an alternative, we took a vote on twenty-five years for abduction and $100,000.  Sara alone voted no. I observed that yes, twenty-five  years in itself was a long time, but if Ernesto had any money, why should he remain in control of it at our general expense?   Sam said that the abduction was the hinge to everything; perhaps that was why the minimum was higher than rape itself. I said to Sara, “Okay, give us a figure then. How much?” This put her on the spot to say no fine or some fine, and if some fine, then what fine? She said $25,000. We voted. We had our decision: twenty-five years and $25,000.

Finally, rape: I said I had no problem with life in prison.  Julianne agreed, so did Viv.  (She’d been the one who wanted a stiffer punishment for incest, too; I wondered if there was something personal driving her, but there was no way to ask and perhaps no likelihood of receiving a candid response.) Carrie said maybe life was too harsh, maybe Ernesto had had a single awful day.  Sam said, “But it was his daughter!”  Another young woman, Nell, speculated that Sofia might completely get over her trauma. I said I doubted that. She’d live with it the rest of her life, why shouldn’t Ernesto?  Sara, predictably, wasn’t comfortable with life but just as predictably did not explain why. Anna was.  Peter was.  We talked about what would be best for Sofia to hear. Someone said we were judging Ernesto, not trying to send a message to Sofia. Technically correct. We all acknowledged that. Judith suggested ninety-nine years, tantamount to life. Two young women, Carrie and Nell, and Sara shook their heads and pressed their lips together--didn’t like ninety-nine years, wouldn’t agree.  Someone proposed fifty years.  Aggregated with the other punishments or alone, that would ensure life in prison, too.  There seemed to be some sentiment up and down the table, rallying to this number.  Sara kept staring into her lap,  not going along, troubled.  I reiterated life was fine with me, partly to make fifty years seem like a concession later.  Julianne said it was fine with her, too.  Peter agreed with life again.  Carrie objected that Ernesto had not physically hurt Sofia.  Anna said that if he had, he would have an assault charge levied against him as well.  I said the psychological damage to Sofia was much worse than any physical damage. Carrie said all right, but he wasn’t a serial rapist, was he?  I said he’d preyed on his daughter for months, if not years, looking for his chance to seduce or if necessary rape her, and he had done it in possession of his faculties. This was acknowledged.  I said I’d go down to fifty if it brought us together.  I didn’t think Sara would agree, and I don’t think in her heart she really did, but she concurred.

We went out in the courtroom. The judge was handed and read the sentences.  The clerk then read them aloud. I noticed Mrs. Freeman glance over her shoulder at Sofia to see if she was satisfied.  Sofia tearily nodded.  Ernesto didn’t flinch. He remained the same throughout all the proceedings except during the second day when he was worn down on the witness stand and wept a little.

Again we were sent into the jury room where the judge came to chat with us.  She said she had no idea where five years for rape came from, ask the legislature. She said yes, she had the authority to alter our sentences but didn’t know what she would do yet.  She was friendly and thankful.   She knew this experience was tough on us, but we’d handled the job professionally and she was appreciative. Again, she was quite commendable for her relaxed, open, easy manner.  One juror asked when we could talk about what had happened. The judge said as soon as our jury duty was complete, which would be when we walked out the courthouse doors.

The room broke into hugs and handshakes.  I was a bit surprised. The jurors I felt closest to were Julianne and Anna, both born abroad.  But the young girls were warm in their hugs, too.  I don’t know how much difference it made in the deliberations that Peter moved for a different foreperson, but it did make some difference, at least in the tone.  These girls looked so young to me, but they were outspoken, and sometimes funny, perhaps showing off for the older jurors or just ignoring them.  Anne once said pizza and wings were hardly the best prelude to sex, only ribs could be worse.  Nell added that if Ernesto had rebuffed Sofia before, she doubted Sofia would persist.  A girl made one move, and if the fish didn’t bite, she didn’t try again. No way.  Carrie agreed.  Ernesto’s story made no sense to the young women, all close in age to Sofia, although the majority of them seemed more lenient toward him than the more mature jurors, Sara excepted.  Odd.  Had we older jurors grown tough and unforgiving?  Was there something about any kind of incestuous, aggressive intimacy that revolted us more definitively than it revolted the young women, who may have seen things happen in their generational cohort that we’d never seen?

It was dark, and I was dodging rush hour traffic on my bike again as I thought all this through.  At first it seemed the defense had nothing to work with except technicalities related to “reasonable doubt.”  Then came Ernesto’s total contradiction, the mirror image of what Sofia had said, placing all of his alleged behavior on her.  That had to be dealt with fairly and thoroughly. Could it possibly have been true? Apparently not.  We moved much faster in judgment than I had expected. There was no expression of uncertainty and no amorphous desire to unburden oneself and thereby find one’s emotional footing about whose credibility was greater, Sofia’s or Ernesto’s.  In fact, I’d say the younger women were even swifter in judgment than the older people while appearing, paradoxically, more forgiving, possibly out of optimism, possibly out of inexperience.  But with her thoughtful manner and unspoken reservations, Sara acquired a degree of influence that couldn’t be by-passed.  At one point, her study of phone records helped us reconstruct the exact sequence and timing of events--the narrative, if you will--in a way that helped everyone.  Sara then did the same sort of thing examining the CC TV recording.   These efforts clarified things a bit; they also provided time for different jurors to begin expressing their stray thoughts and insights.  Meanwhile, Julianne was a transparent facilitator. Her white board was well-organized and easy to follow. She didn’t impose herself on the conversation yet kept track of it for us and allowed herself room as an equal in expressing her views.

One larger thought ran through my mind: The entire process, from the prosecutor’s and defense lawyers’ point of view, hinged on the elements within the charges.  Every point they sought to elicit was designed to reinforce not a “complete” narrative but a narrative limited by the elements. Was this why Ricardo the boyfriend wasn’t called as a witness, for instance?  What about Sofia’s mother? Then there were some questions about apparent calls from Ernesto to Sofia after the event on January 25, 2012. In an exchange of notes, we asked the judge if we were reading the phone record right on that.  Was it Ernesto calling Sofia? The judge wrote a note in reply saying we had all the evidence we were going to get and we weren’t going to get anymore. For whatever reasons, the defense and prosecutors didn’t want those phone calls questioned.  Their records got there, but not their clear meaning.

So we were left to imagine certain aspects of the case because the law’s narrative is not the fiction writer’s narrative or even the historian’s narrative.   If we wanted to know whether Ernesto was trying to reclaim something lost in his life both vis-a-vis Sofia and her mother, we weren’t going to be told. If we wanted to know if Sofia could possibly have encouraged Ernesto, perhaps unintentionally or out of naiveté or some ambivalent desire to develop a closeness that made up for all those lost years, we were not going to be told.  And if Ernesto had understood from the moment he was arrested that he was doomed, we were not going to be told.

I couldn’t help wondering if the stunning realization as soon as he was brought to the police station in the early morning hours--I’m caught!--was what had made him so stoic through the trial.  Was that also when he had came up with his mirror-image defense--she pursued me, not me her--because he could think of no other defense?  In fact, had his defense attorneys never believed him, either, and therefore cooked up their tedious, step-by-step, nitpicking reconstructions of events, looking for slivers of doubt?   Certainly they could have pressed Sofia harder on her story after Ernesto gave his.  Certainly Sofia would have been a vulnerable target.  But the defense lawyers left her alone, perhaps wisely, perhaps realizing that inflicting any more pain on her would only make Ernesto’s case worse, not better.  

Ultimately, what makes a man you’d never notice in a Safeway or on the sidewalk turn on his daughter and deviously seek to possess her? How much lust and malice and resentment and private grandiosity swirls around us unnoticed when we’re in the public library or at the post office?  Did Ernesto simply not feel, because he didn’t know her, that Sofia was his daughter and therefore fair game?  Was he astonished that the United States, via Arlington County and the Commonwealth of Virginia, could array such massive resources against him?  A half dozen detectives, additional expert forensic investigators, a determined prosecutor, a legislature that had foreseen and legislated on his actions long before he took them, twelve jurors, all with college and many with advanced degrees?

I suspect Ernesto couldn’t answer any of these questions.  His behavior told us that he was a cunning man; but his cunning may have been all voiceless instinct, unexpected opportunity, and ineffable, illicit desire.  I don’t know what Sofia could say, either.   For a long time, probably decades, whatever she has to say will go unsaid or be drowned in private tears.  She is a simple, poorly educated, virtually indigent woman with two children in El Salvador and a husband with whom she can’t bring herself to have sex.  But she did have hope, and her hope was that somehow she could obtain justice and with it her lost honor, which Ernesto first stole and then attempted to utterly extinguish in court.  He didn’t literally call her a whore, as Mrs. Freeman said. But in an attempt to save himself at her expense, he effectively called her a calculating slut eager to cross the boundary of a grave taboo.  In other words, he painted a picture of her using the model he knew best: himself. 

Of course the semen and DNA played a major role in convicting Ernesto, but I think the key was him being overheard calling his ex-wife and telling her that she must say he was with her.  Even if she had done so, the CC TV would have contradicted her, and she would have perjured herself.  But Ernesto didn’t think or care about that.  He was too consumed with the fact that he, the man no one ever really noticed, had been noticed, and the gravity of his acts could only lead him into prison for the rest of his life.

 

 

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I've read that..

there is such a thing as "genetic sexual attraction" between closely related people who had been separated for a long time and don't know each other but meet when they are older. Perhaps the father felt such an attraction towards his daughter who may have even returned his affection to a degree but he obviously took it too far and didn't control his sexuality when it was not welcome. I've also read that in some countries, such as Netherland, France and  Spain, incest is legal between two consenting adults, which I find surprising given that these countries are predominantly and traditionally Catholic. I'm assuming it must be illegal in El Salvador.

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Kim Packard's observations

I had not heard of "genetic sexual attraction" but we're now in an age when the distinction between psychological and biological factors in human behavior is breaking down.  The incest taboo is ancient, of course, and may have some basis in the variables of evolutionary biology beyond the commonplace things we all say or think about it.  Setting that aside, the law is clear in the U.S. and this was not consensual.  Without researching it, I would say incest might be permitted under consensual circumstances in the Netherlands, which is a very, very liberal country, but I would love to hear a debate among parliamentarians about it in France or Spain. I suspect the circumlocutions and rationalizations and so forth would be astounding.