Jack B. Swerling, Esquire
Lawyers use legal technicalities all the time to make evidence disappear in a trial. But that’s nothing. I’ve seen real disappearing magic in a courtroom. I saw my lead counsel, Jack Swerling, disappear in the middle of a rape trial. I mean, P O O F, and he was gone.
We were in the Aiken County Court of General Sessions finishing up the trial. Things were not going well as they often don’t in such cases. This trial started going down hill when the defendant showed up for court wearing, I kid you not, a red, satin toreador suit. His toreador jacket just reached his hips above his skintight toreador pants atop his white leather platform shoes. His inappropriate attire turned out to be the least of his problems.
The evidence introduced by the Solicitor during his trial was that the defendant and his friend, who was a cooperating witness for the prosecution, met two young women in a juke joint one Saturday night. They bought the women drinks and were all having a good time when the men asked if the women wanted to go somewhere to have some more fun. The girls agreed and off they went in the defendant’s car. The defendant pulled off the main road onto a road that led nowhere. He parked and raped the woman sitting next to him on the front seat. When he finished, he turned to ask his horrified friend why he hadn’t raped the woman in the back seat and his friend mutters something about not wanting any part of it. So, the defendant climbed over the seat and raped the girl in the back seat while his friend squished himself far as he could against the rear door and window to stay out of the way. Meanwhile, the girl in the front seat got out of the car and started running back down the road towards the main road. When the defendant finished raping the girl in the back seat, he opened the back door, climbed out, chased the first girl down, and raped her again.
And what was the defense of this toreodor defendant’s choosing? Why consent, of course. He was insulted anybody would even think he had to force himself on a woman. They came willingly, he said as if that was all that needed to be said. Jack was trying to finish up his direct examination of the defendant as quickly as he could when he asked, “So, is that the only times you had consensual sex that night? Twice with the girl in the front seat, and once with the girl in the back seat?” To which the defendant replied, “No, when I got home later that night, I pulled myself off in the bathtub.” Nobody in the courtroom moved or made a sound. It was as if time itself froze. Not believing what I’d heard, I looked around for lead counsel but he had just up and disappeared.
I was stuck in this frozen world of disbelief when I began hearing the muffled sound of Judge George Bell Timmerman banging his gavel on his bench in the background. I looked in his direction I saw he was motioning for me to approach the bench. I was just second chair and looked again for my missing lead counsel but, he was still nowhere to be found. I rose and walked towards the bench. As I got closer, his honor covered the microphone with one hand and motioned me still closer with the index finger of his other. I leaned in and was struck dumbfounded when the judge asked me in a whispered voice, “After this trial is over, can you talk to your client about getting me a transplant?” The judge didn’t wait for my answer and dismissed me back to counsel table with a backhand wave of his hand.
As I turned around, all of sudden, time itself restarted and everything returned to normal the courtroom. There was lead counsel, seated at the defense table with a puzzled look on his face wondering what I was doing up at a sidebar talking to the Judge without him.
I needed an explanation but, even a new lawyer like me, knew it was not the time to talk about it in the presence of the jury. The rest of the trial passed much as I expected until the jury began their deliberations. Just when I figured we’d have time to talk about lead counsel disappearing, the jury began arguing in the jury room which, in Aiken County, is located right behind the jury box. Everyone could hear the jury was getting louder and louder and started sounding more and more like they were getting ready to come to blows. Lead counsel asked the bailiff if there was anything to be concerned about and the bailiff said, “No, the judge sent them in a lunch menu from a Chinese restaurant and they’re arguing about what to order from column A and what to order from column B.” After the jury finished lunch, it only took them about an hour to convict our client on all three counts of rape.
On the ride back to Columbia after the verdict, I tried to ask Jack about his disappearing act, but he acted like he had no idea what I was talking about. I tried many other cases with him after than but he never admitted he disappeared that day. He taught me more than anybody else about how to try cases but not how to disappear in a courtroom.
I have thought about this many times since when I wished I could disappear during a trial. When I wished I could click my heels three times and wish my wing tips to take me anywhere else but always to no avail.
* I have deleted the name of my lead counsel because to this day he adamantly denies he disappeared in the courtroom. I just as adamantly know he did.
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