Jack Swerling , Esquire
Beyond a reasonable doubt is such a nebulous legal defense that judicial attempts to define it are rarely helpful. That’s why a good lawyer never gives up trying to prove a client’s innocence and relies on reasonable doubt as a defense only as a last resort. Jack B. Swerling taught me proof of innocence is often found in facts others overlook in a rape case he tried in Lexington County.
It was a tough case fraught with racial tension right from the beginning. Jack was hired to defend a black employee accused of raping a white waitress at an exclusive country club restaurant. The alleged victim had hired a lawyer herself and was making noises about suing the club for forcing her to work after hours with the rapist. The employee admitted he had sex with the waitress but thought it was consensual right up until she bit him on the shoulder and he broke off the encounter. He had no idea she would accuse him of rape until the Lexington County Sherriff’s Department arrested him the following morning.
The club house and restaurant where the rape allegedly occurred was located in the center of a grated community built around the golf course. Jack met with the club manager and was given a tour. The manager walked Jack through the kitchen to the double door entrance to the employee break room where the waitress claimed the rape occurred. Jack asked the manager about the client. How long had he worked for the club? Since it opened, nine years ago. What was his job? He did anything and everything that needed doing for the club and any of its members anytime. Had he ever caused any trouble at the club before? Absolutely not, he was universally liked and trusted by everyone. Jack asked whether the waitress was required to work late? No, while they appreciated staff pitching in to clean up and close down the restaurant, it was not required. Had this waitress ever worked late before? No. As he drove back to the office, Jack worried the case would inevitably be the word of a white women against the word of a black man and he didn’t like the odds.
So, Jack set out to try and prove his client’s innocence. He noticed the police had taken the victim’s word for everything and never questioned anybody else in the restaurant the night of the alleged assault. Jack started by asking the manager for the names of everyone who worked or had dined at the club that night. Everybody affirmed what the manager had said about the employee being liked and trustworthy, but Jack picked up on something important the police had overlooked. The women diners that night were uniformly upset by the sheer blouse the young waitress had worn. Jack remembered the forensic photographs of the waitress taken at the ER showed her wearing a buttoned up, high neck shirt that was anything but sheer.
Jack knew women can feel unclean after a sexual assault, shower, and change cloths before calling the police but the change of her shirt seemed deliberately deceptive. Looking through the police reports Jack noticed the waitress was a student who mentioned she’d taken a woman’s rights course. He dug deeper and found out the course, in addition to teaching the importance of not bathing or changing closes to preserve evidence, also taught the singer, Connie Stevens, had sued Howard Johnson’s for $8 Million dollars after she was raped in one of their motels. While this, coupled with her already hiring a lawyer, cast suspicion on her changing clothes and gave her a financial motive to fabricate her story, it didn’t prove she wasn’t raped. So, Jack kept looking for evidence of his client’s innocence.
He dug into the details of her story. She said after everybody else had left, the employee came up behind her in the kitchen and hit her in the face explaining a slight bruise noted in the ER report. She said she was dazed but clearly remembered he picked her up, opened one side of the double door leading from the kitchen to the break room, and carried her inside. She said he was still on top of her when she regained her senses, bit him on the shoulder, and got away. That explained the bite mark on the client’s shoulder photographed when he was arrested. She had excuses for everything. She ran so fast he couldn’t catch her, she was traumatized, afraid, wanted to talk to her boyfriend before calling the police, she felt dirty, so she bathed and changed clothes. Jack sensed her story wasn’t adding up so he kept looking for proof of his client’s innocence.
There was one fact in her story that everybody overlooked but Jack. The normal width of an interior door is 36 inches but not when a door is part of a double door set. The width of the double door leading from the kitchen to the break room was only 30 inches. Six inches may not seem like much of a difference, but it is if you’re trying to carry another person through the opening. A man holding a woman can’t pass through a 30-inch door. To prove the point, Jack had a carpenter build a replica of the double doors and had two volunteers about the same size as his client and the waitress try and get through it in the court room. Front to back or sideways, they simply couldn’t fit through.
There was plenty of evidence other lawyers would have relied upon to show reasonable doubt. Her lying about having to work late, her changing clothes, the convenient bite mark and too easy escape, her waiting two hours to call the police, and her hiring a lawyer to sue the club all could have raised a reasonable doubt, but Jack never gave up looking for proof of innocence which he found from an irrefutable fact everybody overlooked. The narrow width of the interior double door that made her story impossible. Jack’s persistent search for proof of innocence led to the first acquittal of a black man accused of raping a white woman in Lexington County that anybody could remember and taught me an important lesson I never forgot.
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