6

Wyatt Jackson stood ramrod straight as he faced the three judges who would decide this appeal. He gave them little deference, sometimes interrupting as they fired questions at him. Paige admired his tenacity but thought he was alienating the panel. Either way, it didn’t help her nerves to have the lawyer for the other side set such a combative tone.

Jackson’s main antagonist was Judge Anna Colson, who was also probably the swing vote on the panel. She did not seem to be buying the ineffective assistance of counsel claim.

“I understand we have this relationship going on,” she said, peering over the top of wire-rimmed glasses. Judge Colson had a pudgy face and thinning gray hair. “But I’m not seeing where it affected the way Ms. Benton tried the case. What would you have had her do differently?”

“Everything,” Wyatt said confidently. “She called no character witnesses. She didn’t cross-examine the victim about prior sexual history.”

Colson practically snorted at that argument. “Perhaps you’ve heard of this thing called the rape shield statute,” she said.

“It doesn’t protect victims if the prosecution puts the victim’s prior sexual conduct in play,” Wyatt shot back.

“I’ve looked through the entire transcript and didn’t see that happen here,” Colson responded.

“Volume 1, page 372,” Wyatt Jackson said without consulting his notes. “When Ms. Hernandez was asked whether the sex was consensual, she said, quote, ‘I would never consent to sex like that,’ end quote. That’s a plain statement about her prior sexual conduct, and defense counsel should have jumped all over it.”

“You’ve got to be kidding,” Colson scoffed. “If I were the trial judge, that wouldn’t be enough for me to let someone like you cross-examine a victim on her sexual history.”

“A zealous defense lawyer should have at least tried, Your Honor. This case is worse than the Thornburg case, and the defendant got a new trial in that one.”

Colson leaned back in her chair and crossed her arms, apparently unconvinced. Paige was surprised Wyatt had even mentioned the Thornburg case. It was a ruling from a trial court in Richmond that wasn’t binding on the court of appeals. In Thornburg, a defense lawyer who was married to an attorney in the commonwealth’s attorney’s office had not only failed to inform his client but had failed to call a single witness. He had fallen asleep during the prosecution’s case. Not surprisingly, the trial judge had granted a new trial.

Paige had come across dozens of similar cases during her research, but none of them were from the Virginia Court of Appeals or the Virginia Supreme Court, the only two courts that were binding on this three-judge panel. In her opinion, Wyatt had made a mistake even mentioning Thornburg.

Paige watched as the red light at the front of the podium came on, signaling the end of Wyatt’s twenty-five minutes. Out of respect for the court, Paige always concluded in a single sentence when that happened. But Wyatt pulled himself up to his full height and, without asking the permission of the court, continued to plow ahead.

“In Shakespeare’s play As You Like It, one of the characters says that ‘love hath made thee a tame snake.’ Here, Ms. Benton was a tame snake. She didn’t strike when she had her chance, and my client is entitled to a new trial with somebody not afraid to do so.”

“Thank you very much,” Judge Colson said curtly.