Authors: Joanna Connors
But before the endless silence, we had to get through the trial. And before the trial we had to work with the prosecutor. The prosecutor whose files and notes I had on my desk in 2007.
Allan Levenberg ranked as the top lawyer in the county prosecutor’s major trials division, which handles homicide and rape cases. He was a compact man, so fond of order and precision that the other prosecutors called him “The Brownshirt” behind his back. Unlike a lot of lawyers I met later as a reporter, whose offices resembled landfills of paper and file boxes, he kept his as neat as an army barracks before inspection.
Two decades after he worked on my case, when I began digging into it as a reporter, I discovered that he had, in fact, been in the military. He was an officer and a Green Beret, and volunteered for two combat tours in Vietnam. He led paratroopers in jumps and learned to speak Vietnamese. The year after my trial, he joined the federal Organized Crime Strike Force, which was busy dismantling the last remaining vestiges
of the Cleveland Mafia, thanks to the testimony of its former boss, Angelo “Big Ange” Lonardo, the highest-placed mafioso ever to turn snitch, and a favorite witness of then U.S. attorney Rudy Giuliani.
Levenberg died in 1998 of leukemia. I found his obituary in the
Plain Dealer
library. His final cases, it said, dealt with an FBI sting that went after corrupt Cuyahoga County jail guards.
In late July of 1984, before I’m supposed to appear in front of the grand jury, my husband and I go to meet Levenberg in the Cuyahoga County Justice Center, a monolithic, twenty-six-story tower near Lake Erie that was built in the mid-’70s in the heavy, fortresslike style of architecture known as Brutalist. Which is a fine description for what went on in there.
The entrance, a three-story concrete-and-brick space, is meant to be a light-filled atrium. It feels more like a Stalinist’s idea of a mall food court. Few people linger there after getting their morning coffee. The elevators are slow and always crowded, especially in the mornings when lawyers and witnesses are trying to get to the courtrooms on the upper floors. The prosecutor’s office has a sad little lobby with exhausted furniture and a clerk who sits behind a sliding glass window, guarding a hive of tiny assistant prosecutors’ offices.
We meet with Levenberg in one of those tiny offices, squeezing ourselves into the two chairs wedged between his desk and the wall.
Levenberg will prove to be stern and flinty in his dealings with me, but that day he’s almost gleeful as he talks about my case, which, he makes clear, is not really my case. He represents the people of the State of Ohio, he tells us. I am just the main witness.
I now know why Levenberg was so jolly that day. Prosecutors know how difficult it is to bring a rape case to a jury, even now, particularly in cases where the victim knows the perpetrator: date rapes, acquaintance rapes on college campuses, rapes by family members and friends. If the alleged rapist claims the sex was consensual, the jury has to weigh the victim’s word against the defendant’s.
In 1984, legislators and courts had begun to change rape laws, which until then had, among other things, held that a husband could not be accused of raping his wife, allowed defense lawyers to present the victim’s sexual history as evidence, and required a corroborating witness to the rape.
These had their roots in the earliest known written laws. Susan Brownmiller’s indispensable 1975 best-seller,
Against Our Will: Men, Women and Rape
, taught many readers—including me—the history of rape and the laws governing it. I first read it in a women’s studies class, a class where I discovered how much I did not know about the hard-fought crusade women had waged, and were still waging, for the independence and rights I took for granted. At the time, I didn’t fully appreciate how revolutionary some of Brownmiller’s ideas were.
I am indebted to Brownmiller for her history, which started with the Babylonian Code of Hammurabi dating to 1780 B.C.
Back then, what happened to me would not have been a rape at all, simply because I was married. Under the Babylonian Code, only virgins could be raped. Married women who were unfortunate enough to be raped were instead considered adulterers, and if their husbands did not absolve them of this “crime,” they were bound and thrown into the river along with their rapist. Later versions of rape laws—in the Old Testament, for instance—called for stoning to death both the rapist and his victim.
In the Code of Hammurabi and later, raped virgins were exempt from these suspicions, though the laws still did not consider them to be the victims of a crime. The victims were instead their fathers, since women were legally the property of their fathers until they married. Therefore, rape was a property crime, the theft of a woman’s valuable, marriage-ready virginity.
Through subsequent centuries, rape remained an offense against the woman’s father or husband, usually resolved with a payment to the father and, sometimes, the daughter’s forced marriage to her rapist, since no other man would want a defiled virgin as a wife.
In English law—which served as the template for much of American law—rape was not defined as a forced sexual crime until the twelfth century, though even then the victim was the father or husband, because he had lost the honor and value of the woman.
These ancient laws also reflected a widespread suspicion that women accusing men of rape were lying—a belief system
that is still operative today. Almost every time a star athlete or celebrity is accused of rape, for example, there’s an inference that the charge is false, brought by a scorned, or vindictive, or drunk, or willing woman against an innocent man. We see it in the Bible, in the story of Joseph the slave and the wife of his master, Potiphar. This wife lusted after Joseph, who refused to lie with her. Scorned by a slave, the story goes, she got even by accusing him of rape. It shows up centuries later in British law, in the cautionary words of a judge during the seventeenth century. Rape, said Lord Matthew Hale, is “an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho never so innocent.”
In America, rape was entangled with slavery and, later, the Jim Crow laws. Before the Civil War, masters were free to rape the women they kept as slaves—though no one called it rape—and could even purchase them for that single purpose. These attitudes remained long after emancipation, when rape was, in much of America, legally considered a crime only if a black man raped a white woman. As for black women, neither the law nor the general culture protected them from rape, while white men accused of rape enjoyed the fullest protection of both.
During the 1800s, white men who raped white women were fairly safe from the law, since women needed to prove both their own chastity and their physical resistance to bring an accusation against a white man. Police and juries wanted to see violent injuries on the victim’s body, or at least torn and bloodstained garments.
If the alleged rapist was black, he faced a jury of white men and punishments of hanging or castration.
This was just a little of the history behind one of the first things Levenberg said to me that day we went to meet him in July of 1984.
“You’re the ideal witness.”
If Levenberg were a man who found anything in the world delightful or humorous, he would laugh, he is so happy. As it is, he smiles a tight smile and continues.
He explains that I’m the perfect witness because I’m a journalist, trained to observe details and remember them. But I know what he really means. To him, I’m the perfect victim because I happen to fulfill just about all the requirements of a woman accusing a man of rape, going back to before the Civil War. I am white, educated, and middle-class. I resisted, and I have a cut on my neck, bruises still healing on my spine, and a torn and bloodstained blouse to prove it. I immediately ran to report the rape.
Needless to say, David Francis is the perfect defendant: black, poor, and uneducated, with a criminal record.
If only I’d been a virgin, too, Levenberg would have had everything he needed for a swift and successful trial.
He tells my husband and me that, as ideal as I am as a witness, he does not have to rely on me alone. They have the scrap of paper the detectives found on the stage at Eldred, the one with the phone number for David Francis’s mother.
Levenberg says he will prepare me for the trial later, closer to the court date. He tells me not to worry. “This is a strong rape case,” he says. “This is a very strong rape case.”
I try to stop, but the closer we come to the trial date, the more I worry. What if the jury notices the inconsistencies in my descriptions? In one statement, I said Francis had very dark skin; in another statement, just dark skin. Or maybe medium. Did I say “light” at one point? I can’t remember. And if I had been face-to-face with him for an hour, why couldn’t I answer the cop when he asked if he had wispy facial hair or sideburns? Why didn’t I see the tattoo until we were outside? Why couldn’t I say exactly how tall he was? Just how observant was I, really?
Summer ends, fall begins. I continue to collect worries, pinning them to my brain like rare butterflies.
Levenberg calls from time to time to report developments. In September, Francis’s public defenders ask for a pretrial hearing to submit motions. The court schedules it for September 13, but Levenberg says I don’t need to be there. That morning, in any case, it’s canceled. Levenberg calls to tell me that the night before, the jail guards found a knifelike weapon in Francis’s cell. The court reschedules the hearing for the day before the trial. In October, I get a subpoena to appear in the courtroom of Judge Harry Hanna at 9:00 a.m. on Monday, October 22.
A few days before that, my mother flies to Cleveland to help me get through it. I’m still upset by her pressure to sue the university and her enthusiasm for my husband’s plot to hire a hit man, but I need her. At this point, my anxieties are ringing bells and setting off fireworks.
Levenberg calls my husband and me in to prepare me for my testimony. He takes me through the questions he’ll ask me, and tells me how the defense lawyers will probably question
me. He says they will focus on my ability to describe and then identify the rapist when I was so terrified, and to see details in a dark theater. He talks about them like they’re our enemy and we’re about to go into battle.
The defense lawyers are right about the eyewitness identification, I will learn in the coming years when I cover a few trials. After DNA evidence becomes available and affordable in the 1990s, lawyers for the Innocence Project and others start using it to help inmates who have credible claims of innocence. Of the 312 DNA exonerations from the first one in 1989 to 2013, mistaken eyewitness testimony was to blame in 73 percent of the wrongful convictions. These eyewitnesses probably told juries that they were 100 percent certain of their identifications.
In 1984, we don’t have DNA, but we have something just as good, if not better. We have the tattoo.
Levenberg loves the tattoo. “How nice he gave us his name,” he says. “It’s like a rapist’s business card.”
After about an hour of talking about the case, Levenberg asks my husband to leave the room—he has something he wants to ask me alone.
When we’re alone, Levenberg leans back in his chair and regards me across his desk.
“So I need to know one last thing,” he finally says.
Another pause.
“Why the
hell
did you go into that theater?”
I will forever remember Levenberg asking me that question, but I will not remember my answer. Whatever I said, I know it was not what I wanted to tell him, which was a simple, declarative “Fuck you.”
After not saying “Fuck you,” I left his office, collected my husband in the waiting area, went down in the elevator, walked to the car, drove home, and went inside. Then, and only then, did I allow myself to cry. Which I proceeded to do for about five hours, while my mother sat with me and occasionally rubbed my back or hugged me or said, “Oh, sweetie,” and my husband paced and worked up a fury at this new enemy, Levenberg, who sent him out of the room so he could make me feel like the whole thing was my fault. I could see his mind working. I knew he was thinking about revenge.
“Well, it
was
my fault,” I said, with great huffing and stammering between my sobs. “I did go into that theater.”
Why? Why was I so stupid? My own prosecutor, the one who told me I was an ideal witness, had just shown his hand. He thinks I’m an idiot, not ideal in any way.
I hated and distrusted Levenberg from then on, even when I had to depend on him during the trial. At the same time I knew, but could never admit, that his question was reasonable. Not long ago, a lawyer I know told me Levenberg probably asked it because he thought the defense lawyer would ask on his cross-examination of me, and he wanted me to be ready. But if that was the case, why would he send my husband out of the room? I suspect Levenberg thought the question would anger him.
It turned out that the defense lawyer never did ask me why I went into that theater. But when I decided to write about the rape, more than two decades later, Levenberg’s question remained unanswered.
Remember that warning that went off in my head, when the stranger in the hallway asked me if I wanted to see the lighting? Twenty-three years later, I can recall every breath of that moment: his casual offer, the smell of the Kool he was smoking, the instant of alarm I felt, my all-too-brief hesitation before I went ahead. In that moment I knew I shouldn’t have anything to do with this stranger.
I went into the theater for one reason: Because he was a young black man.
I could not allow myself to be the white woman who fears black men.
My decision came out of what James Baldwin called “that panic-stricken vacuum in which black and white, for the most part, meet in this country.”
Would I have gone into the theater if a white man with claims of working on the lighting had suggested it? I don’t have an answer to that question, no matter how many times I ask it of myself. I do know that I was far more likely to be attacked by a white man. Interracial rapes, despite the media depictions and the drummed-up cultural panic that goes back to the Reconstruction era, are much rarer than same-race rapes. According to the Bureau of Justice Statistics, white victims are raped by white assailants in 74.9 percent of reported sexual assaults. Only 16.4 percent of the cases involve black offenders and white victims. When the victim is black, the offender is also black in 74.8 percent of the cases.
This comparatively low incidence of interracial rape may exist, in part, because rapes by family members and acquaintances are far more common than rapes by strangers. The BJS statistics show that only 25 percent of rapes are committed by strangers, versus 69.9 percent by nonstrangers.
But here’s the most startling statistic in the BJS report: When the victim is black, the reported offender is white in 0 percent of the cases. Instead, the reported offender’s race is “Not known or not available” in 25.2 percent of the cases.
How can this be true? Statistics of reported rapes do not tell the entire story, rape crisis experts say, because many rapes
go unreported. The reasons are many, but given the grave distrust of the police in much of the black community, it’s not hard to imagine that black victims would not choose to call them—particularly to report a rape by a white man.
When I left my body and watched my rape, the primitive fear center of my brain was busy recording everything and storing it up for future panic, a panic that embedded itself and still dictates my reaction when I am alone somewhere with a man I don’t know. My heart gallops without warning. My breathing grows shallow. I flush. My startle reflex, when anyone approaches me from behind, is so exaggerated I unnerve people, who find themselves apologizing to me without quite knowing what they did wrong.
My body still screams “Danger!” when I’m alone and a strange man approaches, black or white. But because of David Francis, for many years the fear was sharper with black men. I started going through red lights when I drove through Hough late at night. I averted my gaze on sidewalks when a young black man came toward me. I stepped out of elevators when I found myself alone in one with a black man, and walked up the stairs instead.
The first time that particular fear revealed itself I was in New York on assignment. I had arranged to rent an apartment near Lincoln Center because, I told my editor, it was cheaper than a hotel and I could make my own breakfast. But in truth
I yearned to be someone else for two weeks, a young single woman in New York, embarking on a brilliant career. Safe in the crowds of the city, I wanted to walk everywhere, fearless and anonymous.
On the second or third day, I was alone in the building’s elevator when it stopped at a high floor. A black man in a leather coat got on. I nodded at him, he nodded at me: the usual elevator good manners. But even as I nodded, a panic attack ambushed me. I slumped against the back wall of the elevator, dizzy and sick, and steadied myself by focusing on the lit-up floor numbers that marked our slow descent. I was behind the man, but the elevator was lined with mirrors. I prayed he wouldn’t notice me. I prayed I would not throw up. When the doors opened, he exited without a glance back.
The rest of the time I was there, I walked up and down the twenty-eight flights of stairs to the apartment.
The fears, the panic attacks, the thrumming heart—this new fear of black men shamed me more than the rape.
When Chris Rock said, “I was born a suspect. I can walk down any street in America and women will clutch their purses tighter, hold on to their Mace, lock their car doors,” he was talking about me. I hated that he was talking about me.
It didn’t matter that I worked with black men, that I had black neighbors and friends. I could hear the arch response echo in my head: “Oh, you have a black friend?”
I remembered, from my Bible as Literature class in college, what St. Paul said to the Romans: “I have the desire to do what is good, but I cannot carry it out. For I do not do the
good I want to do, but the evil I do not want to do.” My fear was evil, and it was stronger than my will.
I wanted, desperately, to uphold my values and judge others on the content of their character. But how can one judge the character of a man waiting in a theater lobby in an otherwise empty building, smoking a Kool?