Rhode Island News

Superior Court Judge Frank Williams is the new chief justice of the Rhode Island Supreme Court. In 1998, a Providence Journal story provided a revealing look at Williams and his thinking as he presided over the highly publicized Block Island rape trial.

6.21.1998
VIEWS FROM THE BENCH
They're arguing consent. She says she's helpless.
An inside look at how the judge in the Block Island rape case sees — and shapes — justice

By MARIA MIRO JOHNSON
Journal-Bulletin Staff Writer

FRIDAY, APRIL 17
Superior Court Judge Frank J. Williams is on an Amtrak train, heading home from an awards dinner for Civil War scholars (he is one himself) in New York City, going over the facts of the case before him.

The facts are these: A 21-year-old woman is on the dirty floor of a Block Island bar after closing time, early Oct. 6, 1996, and three men — one of them the town's top official, who also owns the bar and employs her there — are all over her.

"They're arguing consent," says Williams, "she says she's helpless. End of the bar, on the floor."

Williams, 57, has been to the island twice in his life, and one of those times, he remained on the boat that brought him there. He says he doesn't know the Yellow Kittens Tavern — "or is it Yellow Kitten?" — from Capriccio, but understands that it's a summer hangout.

"Then I hear, there's a billiard table . . . And I says to myself, You know, this isn't really good sex. There's a billiard table. You could go home. You could go to the car. You could go to a motel room. I say, this is weird."

"I'm not the tryer of fact," he says, "but I'm a human being, like the jurors, and you're gonna wonder] What the hell is going on, at 1:30 on a sticky floor with three men?

"So, sure, I have questions about it. And I think about these facts. But I haven't really — and I'm glad I haven't — formed an opinion as to the ultimate question."

Typically, judges don't talk this freely. They don't publicize their hypothetical musings, their view of how a trial is going, their prediction of how it will all turn out. Over the next two months, spanning two trials stemming from the Yellow Kittens incident, Williams will do all of those things.

When he throws a temper tantrum in his chambers about some late motion filed by a lawyer, or when he and his overworked law clerk get a little silly at the end of a long day, he never asks to go off the record.

When he's weighing the issues as he formulates a ruling, he explains his thinking.

Williams has offered this extraordinary access because, he says, he thinks it could help the public to understand the justice system.

He worries that, what with erroneous depictions of the court process in popular culture and media coverage that he considers superficial at best, the public gets a distorted picture.

It doesn't help, he says, that Rhode Island's judiciary has suffered a few black eyes in recent years - from the resignation in disgrace of Chief Justices Joseph Bevilacqua and Thomas Fay to the new revelations about disarray at traffic court.

What Williams wants people to know, he says, is that "the system works," that "there are people out there, a vast majority of people, that make things go."

"It's been traditional that judges not talk to the press, that we not talk to the public, that the outside world has to accept us the way we are.

"And I'm convinced that that is not the way of the next millennium."

Williams is an experienced mediator - he did arbitration work in his lawyering days — so his mind naturally runs to how trials can be avoided. As the train trundles along, he lays out the necessary circumstances:

"Assuming, only assuming, that everything was consensual, a very big assumption, and that there was no helplessness, and there was, for whatever reason, desire, some drinking, libidos to be satisfied — on everyone's part — spontaneity, the whole aura, ambiance, whatever, and it happened.

"And the next morning, or as soon as it happened, there were feelings of regret, that this was not good sex, that this was not good friendship, and everyone's feeling a guilt about it."

The men should have gone together right away to see the woman, he says — maybe brought her flowers, apologized, tried to "defuse and talk through the emotional trauma" before she became a complaining witness.

"What's there to lose?" Williams says. "If it works, great] If it doesn't work, are the defendants in any worse shape than they would be if they didn't go?"

The judge leans back against the seat. "Course you know I'm just hypothesizing. It's too late."

The only way to avoid a trial now is to find some middle ground, he says, but "then the state would want them to plead to some lesser charge. Assault? They're not going to do it. I mean, this is war.

"And I accept it. As much as I love to be a peacemaker, I know from my Army experience that there's a time where the line is drawn. And you cross the line. And you're at war."

War is a recurring metaphor.

Judge Williams, a cavalry commander in the Army, is the only Vietnam veteran in Rhode Island's judiciary. He views every trial as a military patrol, and himself as the platoon leader.

Ever since the Block Island rape case landed on his docket last year, he says, he's been dealing with "incoming."

Mainly it's because of the defense team, who are pursuing what the judge calls a "scorched earth policy." Their motions challenge every large and small aspect of the case, everything from the judge's practice of using visual aids in his jury instructions to the constitutionality of the state's sodomy law.

"I don't think they quite know what to make of me," he muses as the train thrums along the Connecticut shoreline. "They don't think I've got enough criminal experience. They're trying to educate me. And I don't want to say they're patronizing, but I have to deal with that. It's not upsetting me and it's not causing me to react negatively to them, but I sense that."

The prosecutors, too, have kept him busy. They discovered in March, on the Friday before jury selection began, that they'd neglected to transcribe a taped interview the woman had with the state police.

"I was on the ceiling," Williams recalls. "I was ballistic. If I thought the prosecutors were doing this intentionally, they'd be hanging by the lamppost]"

The judge admits he can be impatient, and says he tries to compensate for it by giving people a "long leash." But now and then, he finds himself biting the bent knuckle of his index finger, Italian-style.

He is, in fact, Italian-American (his paternal grandfather changed the family name from Guglielmo to avoid discrimination). Growing up in Cranston, he was an Eagle Scout in the same troop as Stephen J. Fortunato Jr., who would also become a Superior Court judge.

After serving in the Army, Williams clerked for Atty. Gen. Herb DeSimone; four of his coworkers there also became Superior Court judges: "Dick Israel, Al DeRobbio, Billy Dimitri and Rico Campanella."

Williams got his law degree from Boston University and set up a practice, handling a range of cases, everything from municipal disputes to probate work. "Even some divorces, except I gave it up," he says. "I didn't like it, I didn't like it. It was too emotionally wrenching and I didn't like the process. It was demeaning. I didn't like Family Court.

"My last divorce case, I procrastinated so much — and I'm not a procrastinator — that the parties got so fed up, they reconciled. Which is exactly what I wanted to have happen. I even sent part of my fee back."

He worked as a solicitor for several towns before becoming a probate judge. Governor Almond named him to the Superior Court in 1995.

It meant taking a pay cut from about $250,000 to $100,000 a year, he says, but he gets such satisfaction from the work, "I tell the governor, 'You added 10 years to my life when you appointed me."

The tape-transcription snafu took a week and a half to resolve, during which jury selection began anyway.

A questionnaire prepared by the defense team gave prospective jurors an idea of what they'd be in for. Among the 90 questions:

"Do you have a fixed opinion that no woman would ever willingly engage in sexual activity with more than one partner at the same time?"

"What are your views of sex outside of marriage?"

"Please state your opinion: Women and men should be equally responsible about their drinking. . . . Adult women who are drinking should be allowed special protection about decisions they make regarding sexual matters . . . Women are less responsible than men about decisions they make in such situations."

Question number 80 asks: "Can you assure the parties and the court that you will not speculate nor allow fellow jurors to speculate about theories, suspicions, or other possibilities that are not addressed by the evidence?"

This has to do with the much-speculated-about "date-rape drug," the suggestion that the three men slipped the young woman a mickey.

The flurry of pretrial motions includes a request from the defense that the judge warn the jury against theorizing about whether any such drug was used.

Judge Williams is inclined to do so.

Because "where's the evidence of it?" he'll say later, explaining his decision. "I don't see it. Look, I'm not saying that there's not an argument for it, but I cannot allow, based on the evidence, the jury to infer a date rape drug."

But then how to explain why the woman would fall to the floor after two and a half drinks? According to one document in the case file, she says she returned from the restroom to find her drink missing, and one of the men gave her his. Doesn't that suggest a possibility?

The judge is unconvinced.

"Is it a chance? Is it possible? Anything's possible. We deal in probabilities, because anything's possible. Jurors are finders of fact. How can they find such a fact, based on the evidence they heard?"

This is just one example of how, though courtroom dramas on TV focus on lawyers arguing and witnesses testifying, a huge fact of trial life is the way judges shape the proceedings by what they allow or don't allow the jury to hear.

Another big issue is whether Williams will permit the defense to make any reference to anything the woman might have done in the past — competed in a bikini contest, for instance, or had a summer fling.

This time, relying on high-court precedents, the judge rules for the state. He is adamant — and will restate his conviction more than once during the trial, when the defense presses him on it — that all that matters is what happened that night, and whether she was physically helpless.

"Helpless" is the operative word.

The defendants are not charged with rape as it is typically defined, as in, the overcoming of a person by force or coercion. They are charged, rather, under a provision that outlaws taking advantage of another's physical helplessness.

The statute says: "A person is 'physically helpless' under the law if she is unconscious, asleep or for any other reason is physically unable to communicate unwillingness to an act."

Doesn't that present a Catch 22? the judge is asked. For if the woman was that incapacitated, how could she recall exactly what happened that night? And if she can recall what happened, how could she have been helpless?

"Well, that's the problem with the frigging statute," says the judge.

Why not dismiss the charge? "It's not unconstitutional," he says. "And it's not that vague or ambiguous that it makes it faulty. It's just problematic," a "tough standard."

It is up to the jury to decide — "in their mind and conscience and heart" - whether the standard's been met.

MONDAY, APRIL 20. 8:30 a.m.

"Battle stations," says the judge, in his chambers.

Though he woke at 3:30 a.m., his mind "whirring" with pretrial business, he feels good, he says. The adrenaline is flowing.

His first mission of the day was to take his wife, Virginia, to the airport to catch a plane to Texas, where she'll visit her mother for a week. He'll miss her, he says, but "it's like going on patrol. Life is R&R until you go into combat and then you say good-bye to your family and you go do your thing. That's all."

Judge Williams is a tall man, with gray eyes, a Roman nose, and a wide mouth. He has a handshake that swallows normal-size hands and an open, casual way with people; he says "aw-right, folks" and "fuhgeddabout it]" and, when pleased, gives a great, arm-pumping thumbs-up. In spring, he wears a sweater vest - same style, different color - every day, giving him an avuncular air..

In an hour or so, he will put on his black robe and start the rape trial of Edward F. McGovern Jr. and Phillip D. O'Donnell. (Giacomo F. "Jack" Capizzano, who gave a statement to the police which the judge believed implicates the other two, will be tried subsequently.)

But first Williams has a few details to attend to.

He meets with his law clerk, Erika Leigh Kruse, to talk about some motions he has yet to rule on.

Kruse, 26, is a lawyer who has been clerking for Williams since September, doing research and helping him draft rulings. The judge relies on her quick mind and strong work ethic. Today, they'll confer on the question of whether Capizzano's behavior toward the alleged victim after the Yellow Kittens incident is admissible, and whether the defense is entitled to a witness's statement.

The judge also meets with his sheriffs about security in the courtroom, then with lawyers for both sides, to go over some procedural matters.

Then he calls in the media, a phalanx of a dozen or so newspaper, television, radio and wire service reporters and sketch artists.

It would make an interesting essay, he tells them, after shaking each one's hand, to explore "why this case, of all first-degree sexual cases, should get the attention it's gotten. I look at it a little differently, I think, than you do, but you're in a different profession than I am.

"Except," he adds, "we're intertwined - more than you know. Okay. Let's get out of here."

Minutes later, everyone is in place: the judge up on the bench; the jury in the box; the defense team and their clients — a serene-looking McGovern and a wan O'Donnell - at one table; the prosecutors at theirs, though without the alleged victim, who will be in the courtroom only when testifying.

The gallery is filled with friends and family of the accuser and accused, as well as curious spectators and the media.

The judge, seen from the gallery, is just a head and robed shoulders, the fluorescent light hitting the angles of his bony nose and forehead in a way that makes him look like a bird of prey.

He makes himself less fearsome, though, with his words, as he tries to inspire the jury by quoting Abraham Lincoln:

I do the very best I know how - the very best I can; and I mean to keep doing so until the end. If the end brings me out all right, what is said against me won't amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference.

The judge has a thing about Abe Lincoln.

Up there on the bench, he is flanked by bronze busts of the martyred 16th president and says he benefits from mental conversations with him throughout the day.

His conversation with the rest of us is laced with Lincoln quotes, familiar and obscure, and so are his legal decisions. He recently threw out a lawsuit, saying, "This is nothing more than trying to turn a horse chestnut into a chestnut horse," a line from the Lincoln-Douglas debates.

The judge's chambers and Richmond home are shrines to Lincoln, filled with photographs, drawings, still more statues, and memorabilia. The library in his home is among the largest privately held Lincoln collections in the country.

Recently, Pulitzer Prize-winning historian Doris Kearns Goodwin visited it, to do research for a book on Lincoln's cabinet. Williams himself has written or edited more than a dozen Lincoln books and articles and is constantly busy writing more. He is chairman of a national organization, The Lincoln Forum.

William Safire once inscribed a book, "To Frank Williams, Abraham Lincoln's surrogate on earth."

The judge does not discourage the comparison. Lincoln, after all, was his inspiration for going into the law. Like Lincoln, he says, he has always had a sense of himself as "different."

"Not that I was better. Not that I'm brighter, stronger — just different. I know I don't think like other people."

"Counsel ready to open?" Williams says. "Let's do it."

The lawyers give their opening arguments, which basically boil down to what the judge said a few days earlier: "They're arguing consent. She says she's helpless."

The alleged victim is a petite woman, with red hair to her shoulders. When she takes the stand to tell her version of the events, she seems sturdy and resolute, though occasionally, during a pause in the proceedings, she'll look at the ceiling and draw a long breath as if steeling herself to get through this.

Her testimony is, by necessity, sexually graphic; the jury needs to hear who was touching precisely what. (At one point, a television reporter mutters, "I can't use this.")

The jury is attentive, and the witness gets her story out with little interruption by objecting lawyers.

Afterward, in his chambers, Williams looks on this smooth start with satisfaction, then immediately starts thinking about tomorrow.

TUESDAY, APRIL 21. 8:30 a.m.

Shortly after the courthouse opens, one of the security guards knocks on the door of Judge Williams's chambers. He thinks the judge ought to know something.

The alleged victim was walking through the metal detector, he reports, when she turned to a friend behind her and quipped, "What did you do with your knife?"

It's a small thing, a wisecrack like that, but courthouse security is one of the judge's worries. A few days before the trial began, he actually got up in the middle of the night, obsessing about it, and the next day, he instructed the guards to be extra watchful during this trial.

Williams nods to the guard, tells him to write it down.

The alleged victim is back on the stand today, to be cross-examined by defense lawyers C. Leonard O'Brien and Lise Gescheidt.

O'Brien takes an accusing tone with the witness but she appears unperturbed and replies matter-of-factly.

She's adamant about certain things - that she never sat on Ed McGovern's lap, for instance — and is emphatic that, although her drink of choice, a concoction of peach schnapps, vodka and fruit juice, is called Sex on the Beach, and although she is flirtatious sometimes, she did not consent to sex with the three men, and was helpless against them.

But, she is asked, didn't she tell the state police that she actually helped Phillip O'Donnell in the act of intercourse? The woman replies that he lifted her hand, that she did nothing on her own.

It's all interesting, yet the pace of the trial feels slow.

At one point, pausing in her cross-examination, Gescheidt begins flipping ahead through the pages of her grand-jury transcript, explaining, "I don't want to be redundant."

"I appreciate that," says Judge Williams. "I like to see you turn those pages, Miss Gescheidt."

The gallery laughs to know that even the judge is restless.

Later, in chambers, the judge declares this a real "narcolepsy day," but says that's typical for the second day of a trial.

"All of us were so geared up yesterday to ensure that we got going that it was sort of a letdown today," he says.

He's asked the lawyers to please put their heads together and shorten the list of witnesses, since some are slated to be called by both sides.

"I don't want to lose this jury and have them zonked out. They were fine today, but how much longer can they go through this inching along?"

That night, the judge goes home to his house in the woods, makes himself dinner, reads the paper, and plays with his two Doberman pinschers, obtained from animal rescue organizations — Bob III and Liza.

WEDNESDAY, APRIL 22. 8 a.m.

The dogs "took all the tension away from me," he says this morning. "You put your arm on them and the tension of the day flows through the arm into the dogs and they take it, see. They still have that same look of love. It doesn't bother them at all like it bothers us humans."

Despite the pet therapy, Judge Williams has been awake since 3:30 a.m.

Thinking, thinking, thinking.

"The mind is always going," he says. " 'The little engine that knew no rest.' " (That's how Abraham Lincoln's last law partner, Billy Herndon, characterized the president's mind, Williams explains.)

When the trial begins, the judge tries to quicken its tempo:

He refuses the lawyers a bench conference to nitpick over two lines of testimony.

He cuts off a line of questioning — "There are six people in the bar after hours. What else do you think they're going to be doing? Drinking and looking at each other]"

He decides he's heard enough from Yellow Kittens bartender Annie Hall, who goes on too long about Phil O'Donnell's abilities as a chef — "Okay, let's move on, or we're gonna be wanting a taste. It's 4 o'clock. Tea time."

While the court stenographer replaces a roll of paper, he takes a pulse reading — "How's my jury holding up? Good."

What's curious about today's witnesses is that, although the prosecution calls them, they contradict the young woman's recollection of what happened in the hours leading up to the alleged assault. Not only that, they offer new testimony that makes the woman look bad - about how, for instance, in a barside exchange about whether she's a "girl" or a "woman," they heard her refer crudely to her breasts.

What was going on there? the judge is asked when he's back at his desk in his chambers. Why is the prosecution calling witnesses who are helping the defense?

The judge answers patiently, as one might a school child: "That's a point, isn't it? It may be because they're trying to call them as their own witnesses to take the sting out of leaving the defendants to call for them."

Another question: Is the jury likely to conclude that the alleged victim is lying, just because she can't remember exactly where certain people were sitting at what moment, or the fact that she ate popcorn that night?

"That's the jury's call," says Williams, listing other discrepancies that could cast doubt on the young woman's testimony: "What about wearing and not wearing the cowboy hat? What about sitting on Ed's lap? What about the backrub? What about whether she was sick or not? What about going to the women's room? These are all the things the jury has to consider."

His own opinion of day three is that the testimony was "pretty cumulative" — law talk for repetitive.

How many times, he says, do we have to see Exhibit 32, a photograph of the tavern's interior, and hear who was on which bar stool, and where the women's room is, and which lights were on? - "I thought Lise Gescheidt was going to ask what size was the wattage of the bulb over the cash register]"

The last straw was when the defense tried to enter into evidence a light-up clock that hangs on the Yellow Kittens wall. He rolls his eyes.

He still has no opinion about the credibility of the witnesses.

"I'm a willful guy," he explains. "If I'm willing a fair, balanced courtroom, I'm going to will myself to focus on being detached, without an opinion. Easy, easy, easy for me to do."

It's a knack he's developed from doing this work, he says. He can listen to people's opinions all day — indeed, he's curious about what people in the gallery are saying — and he might even be forming an opinion himself, but when he needs to judge something on the evidence, he's able to stick all of that into a separate compartment of his brain.

"I become very detached, very aloof. I don't have to solve it." He's feeling "sort of loose" about the trial, in fact.

So then why is he frowning?

"I'd like to get back to do some Lincoln stuff, to tell you the truth. I'm getting a little restless."

THURSDAY, APRIL 23. 9:30 a.m.

A charter pilot who is a friend of the alleged victim testifies that she was upset by what happened at the Yellow Kittens, and that, later that day, after they talked about it, they went together to the police station.

O'Brien, cross-examining him, questions his motives: Doesn't he own a 1 8percent interest in a bar that competes with the Yellow Kittens?

"Objection," says the state.

"Absolutely sustained," says the judge, and abruptly calls for a break.

In his chambers, he rolls his eyes again. He almost lost his temper, he says, as he almost did yesterday about the clock.

Just remembering the clock business sets him off again, how the defense lawyers and the bartenders went on about this clock, that clock, the tedium of it. "It wasn't even clear which clock was in and which clock was out, and the pull chain, and the thing, and who gives a ----!"

He smiles at himself; we're at that point in a trial when people get testy. "Every single trial that I have, there's a moment."

He bends over as though he's carrying a heavy pack and begins a slow slog across the carpet to demonstrate his point about the long patrol.

"By the morning of day four," he says, standing up straight again and looking about as if lost, "you're going, 'Ay! Hello? Hello? Where are we in the woods here?'

"Then it's like" — he cracks an imaginary whip — "khhh! khhh! Move it! Let's go! I'm dying up there, and the jurors are dying!"

He knows some judges don't intervene like he does. "They just sit back and rock, and I can't do that."

Sheriff Keith Place knocks on the door to say the jury is back from lunch. "Let's do it," says Williams. "I'm getting my robes on."

As he does, he repeats his favorite line about this case — "It's lousy sex."

When the judge is reminded that lousy sex isn't a crime, a female staff member (unwilling to be quoted, lest her grandmother read it) cracks: "It should be."

Now everyone is back in the courtroom except the jury. The prosecution has rested. The defense is making its case for acquittal and, in a separate motion, for dismissing the sodomy charge, a crime better known in Rhode Island as the "abominable and detestable crime against nature."

The judge refers to it as "abominable and detestable," for short.

Neither motion is news to him. The defense team filed them back in January, and he's been working on the rulings ever since.

The gallery is rapt as defense lawyer John "Terry" MacFadyen argues them in court, for he lays out quite neatly the core conflicts in the state's case.

How, he says, can the alleged victim claim to have been helpless to communicate by words or gestures if she was plainly awake, and able to speak? "Nowhere at any time on this record did she ever assert she was unable to speak."

And while "she certainly was in no shape to resist a sexual assault," he says, these men aren't charged with forcible rape as it is traditionally defined. "The issue is, was she able by any means to communicate?"

MacFadyen cites several cases (not Rhode Island ones) in which women — one of them a quadriplegic and another mentally retarded — were found to be physically capable of making their displeasure known, either by speech or signals.

He argues, a bit less legalistically, that in a "social context of romance and seduction . . . relaxation blurs into intoxication" and "it's unfair to assign to the male total responsibility for the end result."

To do so, he says, is "patronizing and demeaning" to women.

The state responds by insisting that the woman was plainly in no shape to consent.

Her headache, nausea and dizziness had worsened to the point where she could no longer stand up, and she lay motionless on the floor, feeling heavy and sick, says prosecutor Stephen Dambruch.

And while the woman does acknowledge "a small degree of movement at the very end of things," when she signaled to Capizzano to get off her, says Dambruch, that doesn't change the fact that she was physically helpless "during the rest of the attack."

In his chambers during a break, Judge Williams talks about how he'll rule on these motions:

As fine as MacFadyen's argument was, he says, and though this is "a very close question," he'll deny the judgment of acquittal. "I very seldom take things away from the jury. Let them conclude it."

As for the sodomy charge, Williams will throw that one out on constitutional grounds.

It's a gutsy move, because the state Supreme Court has already upheld the law, but he doesn't like its reasons. The high court neglected, he says, to deal with the "equal protection argument" — that the statute discriminates against unmarried people.

The language of the law is broad, and makes no mention of marital status.

It is illegal, however, to charge married couples with a sex offense if the act is private and consensual. And so, since married couples can't be prosecuted for having oral sex, Judge Williams contends (as did Judge Alton Wiley, in the 1994 ruling the Supreme Court overturned) that it is unconstitutional to prosecute unmarried people for it.

Asked whether that problem shouldn't be solved legislatively (in fact, within weeks the General Assembly will repeal the law), he says, "I'm a judge that's supposed to look at constitutional arguments, aren't I? Equal protection? Due process? Don't I get a chance to look at them?"

He smiles. He's having fun, he admits it - "Oh, yeah, this is the best part, the intellectual exercise." Compared with this case, his usual workload is like "falling off a log."

Soon, trial resumes — and almost immediately, he's irritated.

At one point, during a bench conference, he scolds the lawyers for the tedium: "I haven't heard a probative thing in 30 minutes. Now let's get on with it."

Later, in his chambers, he rants a bit.

"The bartenders — Annie, Johnnie, Bill. Phil's sitting here. Tom's over here. Liz there. The lightness in the ladies' room. The Jagermeister," Jagermeister (pronounced YAY-ger-myster) being a syrupy chilled liqueur that's a favorite of some Yellow Kittens employees.

Referring to a Yellow Kittens employee who said he jumped over the bar to get one, the judge says, "You know, I almost said, 'It's a wonder you didn't fall on your ass.' "

(He's become very skilled, he says, at sticking all such thoughts into an imaginary cartoon bubble over his head.)

The judge changes gears: He has an appointment in Providence to get his hair cut, but it's raining and he doesn't feel like going, he has so much going on.

"I can't even open my mail, I can't pay my bills, I can't do my E-mail, I can't do Lincoln," he complains.

He calls the hairdresser.

"I'm in the middle of doo-doo here," he tells her. "Oh, do you? My law clerk has a blinding headache, too. It's gotta be the weather. We think it's the case we have right now, that's what we think . . . "

Then he's quiet for a long time, except for the um-hmmms. He tells her, "I have to keep a level playing field, you know that, you understand that, I have to be fair and impartial. . . "

When he hangs up, he confirms that, yes, the hairdresser — like almost everyone he knows — has opinions about the case, but mostly, she wanted to talk about his hair, how wrong it looks in the courtroom sketches — " 'the part was too wide, that's not how I do it.' "

"People are funny, I'll tell you," he says.

He draws a deep breath and glances toward Kruse. "This, too, shall pass, Erika. Look, we're midway through the trial and they haven't carried us out yet. We're not" — he strums his lips with a forefinger — "drooling. Hello?"

He rises from his chair — "Aw-right, I'm gonna call it quits."

FRIDAY, APRIL 24, 8 a.m.

"I love it," says the judge about his job. "Even on a bad day, I love it. Beats the grim reaper."

Asked about anything that's difficult or unpleasant to face — sentencing someone to a long prison term, for example, or defining cunnilingus to a jury — Williams will invariably compare it with his Vietnam experience, and decide that the hard thing before him is not so hard.

Beats the grim reaper. Beats death. Beats counting body bags. Anything above that is better.

He has been at his desk since just past dawn, and now he's hungry. He pushes a button near his desk to summon the sheriff. When the sheriff doesn't appear, he pushes the button again. "I could be here dying, in extremis, you know?" says the judge, pretending to be miffed.

When Sheriff Place shows up at the door, Williams sends him out for the newspaper and an egg sandwich from Dunkin Donuts.

Between bites, Williams answers questions about the previous day. Why, for example, did he get so upset when O'Brien asked the pilot about his 1 0percent interest in a bar?

The judge's eyes flash.

"There are eight zillion bars there. Who cares? I mean, he's gonna specifically go out and pork McGovern? That's the implication. Now, that could rebound — not disastrously, not fatal — against Lenny for pulling that ...

"You don't think they just fell off the turnip truck yesterday, do you?" he says of the jurors. "They don't like stuff like that!"

He takes a breath and looks at the ceiling, incredulous.

And yet, he says, O'Brien's contentiousness reminds him of himself when he was a lawyer — "I was the original 500-pound gorilla. I would attack everything," O'Brien is a world-class worrywart, he says, but "I respect him for it."

The same goes for Gescheidt — another worrier, but "you can have a little more fun with Lise." He recommended her to Governor Almond for a District Court judgeship.

Williams has not worked before with one of the two prosecutors, Steve Dambruch. But his relationship with Alan Goulart is grounded in the day-to-day routine of getting through the criminal calendar. Unlike in larger jurisdictions, where a pool of judges hears criminal cases, Williams is the only such judge in South County. So just about every day, he sees the same lawyers for the state, and they have an easy rapport.

Today, the judge will rule on the two motions before him; as it happens, there is something for everyone. For the prosecution, a refusal to acquit. For the defense, a dismissal of the sodomy charge.

He makes sure copies of his ruling are distributed to friends and colleagues, especially Judge Wiley, who is vindicated by it. As do many judges, he also makes sure copies go to the media. (One unusual recipient on Judge Williams's list is C-Span, run by Brian Lamb, whom the judge knows through his Lincoln work and who has an interest in judicial issues.)

Williams is savvy enough not to expect too much ink in the Journal-Bulletin. Today is Friday, and he knows the Saturday paper is tight.

Now the defense case begins, and the first witness is Ed McGovern, to be followed by Phil O'Donnell.

McGovern, 50, begins haltingly, through sniffles and tears — with a story that is familiar to Rhode Islanders who have followed his long political career — how nearly 30 years ago, he came to Block Island for the weekend and wound up spending the rest of his life.

McGovern seems as benign as a defense lawyer could hope. He is extremely thin, with pale yellow hair and a graying beard, and he speaks in a calm, deep voice, softly slurring his S'es. At one point, he mentions that he likes to dance, but it's hard to imagine it, he has such a stillness about him.

McGovern talks warmly of the Yellow Kittens — "my place" — how it's practically a community center, a place where political events, weddings and even funerals are held.

He traces the trajectory of his island leadership — from zoning board member on up to first warden.

"I guess, mostly, my legacy was preserving open space, the rural character of Block Island. When I first took office, 7 percent of the island was preserved as open space. Now it's closer to 40 percent. I have a goal - had a goal," he says, a little bitterly, "of 50."

Are you active in government now? O'Brien asks him.

"No," he says.

When did you stop?

"A year and a half ago," when the charges were filed.

Back then, he was separated from his wife of 26 years, Marcia, because of his drinking, he says. "My lifestyle carried some baggage. Meetings, socializing - and she really didn't want me to drink at all." (He says he has since quit.)

And because he was living alone, he says, he had more time to socialize with his employees, including the one who would charge him with rape. On many summer nights, the socializing would continue well past closing time, "sometimes till 4 o'clock."

Once, during that summer of '96, after sharing confidences about family problems in the darkened, empty bar, McGovern had tried to kiss the young woman, but "she just kind of gently put her hand up and said maybe it wasn't a good idea." McGovern didn't push it and, by both his and her accounts, there were no hard feelings.

They disagree, of course, about the events of Oct. 6.

As Judge Williams leans back in his chair and searches the ceiling tiles with his eyes, McGovern tells of "horsing around" with the woman for quite a while at the bar.

He was feeling pretty unstable when he finally stood up, he says, and when he turned around, he saw her lying on the floor. He offered to help her up, he says, but she wanted to stay put. He says he kissed her and that she kissed him back, that she had her hand behind his back or neck.

Hearing this last part, the mother of the alleged victim whispers, "Oh, God!" in disgust. The judge, meaningfully or not, runs his hand over his head and face as though tired.

McGovern says he continued to kiss the woman and to fondle her breasts, but that he felt confused when O'Donnell began kissing her, too, and, so, in his dizzy state, he headed home. He says he wasn't there when his friends had sex with her.

In fact, he says, he had no idea O'Donnell did have sex with her until the next day, when the two of them went together to see a lawyer.

At this, the young woman's mother clicks her tongue and looks sharply away.

When O'Donnell takes the stand, he seems more nervous than McGovern, and more indignant.

[The woman] reached up and put her left hand around my neck and pulled me down to her," he says, anger in his voice as he addresses the jury directly. "She put her tongue in my mouth! ... I won't pretend I'm Superman and can go home when an attractive woman is kissing me."

A young-looking 32 years old, with short, brown bangs split over his pale forehead. O'Donnell has worn an expression of deep dread all week. As he testifies, his wife, Laurie L. Hazard, leans forward in her seat, gazing intensely at him.

In O'Donnell's version of events, the young woman not only agreed to have sex, but asserted, "I love it." He says she called out his name during the act, and also lent a hand.

More than a few observers in the gallery murmur that O'Donnell seems very credible to them.

He testifies till late in the afternoon. When Gescheidt wraps up her questioning, Williams, opening his arms wide, talks to his jury before sending them home.

Forget the case, he says. No reading or listening to the news. "If the creeks don't rise," deliberations will begin on Tuesday. "Keep your powder dry."

The jurors file out, smiling at this quaint instruction, and as soon as they're gone the lawyers are at the bench, arguing in hushed voices. Williams is whispering, too, but his volume increases until he can be heard all over the courtroom.

"...For now and evermore, her previous sexual activity is inadmissible in this proceeding ... lack of probative value...lack of personal knowledge by Phil O'Donnell hearsay. . . "

By the time he's done, he's shouting:

"...NOT WHAT THE HELL HAPPENED SIX MONTHS EARLIER!"

"It was getting a little edgy there," he says afterward, pacing around his chambers, past the thigh-high bronze Lincoln busts on the floor. He says the defense team wanted to introduce comments O'Donnell had heard about the alleged victim.

Nice try, says Williams, still steamed.

"As far as this judge is concerned, based an these facts in this case, all that matters is what the state of mind was for the alleged victim and the two defendants on the night and morning in question. Not what happened six months earlier! Got it?"

The judge asks Kruse to pick up some lunch. He thinks he'll have the potato and leek soup. He's tired of grilled cheeses and Caesar salads - "I couldn't have it again. I've been having it every day. They're calling it the Judge Lincoln Special. Get the number 3 with Diet Coke and the creamy soup, potato and leek, and pick out another sandwich for me, like tuna or whatever."

By the way, he adds, nice job today on that abominable and detestable — "I'm proud of you." The two of them had worked on the ruling for weeks.

When Kruse returns, with the lunches, he fills her in on what she'd missed of the day's testimony. He found the witnesses, very well-prepared, he says, stopping short of saying whether he believes them - "The case isn't over yet."

"We're moving," though, he says, as if that's what interests him more. "I think we're all settling into this thing."

MONDAY, APRIL 27, 8 a.m.

It was a busy weekend, says the judge, but a relaxed one, "because of the way the week went."

He played with the Dobermans - his "babies" - and cleaned the house and entertained friends who spent the night on Saturday. On Sunday, he had dinner at Justice Maureen McKenna Goldberg's home in Matunuck. His contribution to the meal was his special lemon-lime chiffon pie — "lighter than air". He had it chilling in the jury room refrigerator while he caught up on some work at the courthouse earlier that afternoon.

"See what today brings," he says this sunny Monday. "I don't want to lose this. "We're in a good momentum now. Gotta keep the momentum going. Get it to the jury, I think."

His biggest worry: "A hung jury."

When he woke at 3 — again — that's what was plaguing him, the fear that at least one juror will disagree with the others and, "the case from hell" will have to be retried.

"This case is ripe for it," he says. "Just dynamically, just the chemistry, just the issues — cultural, legal, moral and everything else. I can't put a finger on it. It's just a feeling that I have. Incoming!".

With his teeth, he pulls the pin on an imaginary grenade and sends it winging across the room.

But who knows? He could be worrying for nothing. After all, the muffled, happy commotion he hears through the wall of his chambers suggests, that the group in the jury room has bonded. A bunch of them even went to lunch together.

"That's good for a verdict."

The main event today is the cross examination of Phil O'Donnell, and his testimony will contradict McGovern's.

On the night in question, he says, McGovern did not disappear, but lay nearby — and might have even kissed the woman while O'Donnell was having sex with her.

O'Donnell makes no excuses for his behavior but takes pains to portray himself as something of a gentleman. The prosecutor, Alan Goulart, smirks at this: Is O'Donnell trying to say he was worried about the young woman's feelings the whole time?

O'Donnell replies, "Mr. Goulart, I wish I could tell you like a tape recorder. I can't."

All he knows is, he came out of the rest room into the darkened bar to find McGovern and Capizzano on the floor with the woman, and he asked her, "Are you okay with this?," whispering it so as not to offend his friends.

When they were through having sex, he says, he and she had a drink together. "I didn't want to be rude... and just say good night and leave. I wasn't sure how to say good night . . .. especially, with Jack there. I didn't want to say good night to her in front of Jack, I guess."

At this, the young woman's mother huddles into her husband's shoulder.

O'Donnell says he and Capizzano escorted the woman to her apartment, where O'Donnell bid her, "Good night, sweetie."

"That's a term of endearment my wife and I use for each other."

When he woke in the morning, he was ashamed of himself for having cheated on his wife and, yes, he says, concerned about the woman. "I didn't want [her] to think I had lost respect for her."

The defense rests. The jury is sent home for the day.

"How do you think Alan's cross was?" asks the judge in his chambers. Personally, he liked it, especially the way he illuminated conflicts With McGovern's testimony. "Ed McGovern's always there, even though Phil doesn't know exactly what he's doing.

"And you know they're going to argue it. "You know Steve (Dambruch) is going, to close, and he's going to bring up every inconsistency, and the question, "Who are you going to believe here?"

Who does he think they are they going to believe here?

The judge says he doesn't care.

"A verdict, that's what's going to count. We need a verdict."

TUESDAY, APRIL 28 8:30 a.m.

"They've gotta come back with a verdict or we've lost the case, we've lost the battle. This is the attack. All the troops are in position. Ready to go. All armed."

First thing, the judge will meet with the lawyers to go over the jury instructions.

The defense wants him to tell the jurors to discount any thoughts that a date-rape drug was used. (He'll agree to do this.) Also, should the jurors find the defendants guilty, the defense wants them to fill out a special verdict form, describing the exact nature of the physical helplessness. (He'll deny this, as "Impinging into the juror's mind.")

The judge is the jurors' friend and protector.

Throughout the trial, he has allowed them to take notes unusual in courtrooms — which will later be shredded.

Williams is unconventional in other ways, too. When the trial began, he instructed the jury about the law — something usually done at the end — so they'd know what to look for. He will instruct them again today, but before the lawyers give their closing arguments, not afterward, which is when most judges do it.

William explains that he doesn't want jurors confusing closing arguments with sworn testimony. Also, lawyers sometimes tell jurors "what they think the law is, but it's the law that I give 'em that really counts.

He will allow them to take a written copy of the law into the jury room with them — another deviation from protocol.

Still another is his use of visual aids — placards with words like "truth" and "inference" on them — issuing his jury instructions, an idea his wife, a retired kindergarten teacher came up with.

The way the judge sees it, why not change things if there's no rule against it and jurors find it helpful?

"I don't 1ook at myself as an innovator. And I don't look at myself as a liberal," Williams says. (Politically, he considers himself a moderate Republican.) "This is basic survival stuff. It's like using the best armaments you can for your offense and defense."

Now the captain addresses his troops. They must keep their solemn oath, he says, to put aside all hatred, malice and fear, and to arrive at a verdict that will leave their minds and conscience at peace.

That means deciding whether the state has proven its case beyond a reasonable doubt — "not beyond all doubt, but beyond a reasonable doubt."

The case has four elements: Did the defendant (a) have sexual contact with (b) a person not his spouses, despite (c) knowing or having a reason to know that (d) the person was physically helpless?

One by one, the judge displays the placards showing key concepts the jurors should remember. A big one is: Credibility.

"Too long," the judge whispers in the corridor during a break.

O'Brien's closing argument, which took moer than an hour, should have been punchier, he says, more focused on the issue of the woman's alleged "inability to communicate" — "Bam! Bam! Bam! But it's not my case. I'm just the judge."

Gescheidt and Dambruch also take about an hour each for their closing arguments. "They're arguing consent, she says she's helpless" is still what the case boils down to.

He sends the jury off with a pep talk:

"You're gonna continue this patrol on your own. I want you to be bold, courageous! Try to bring us back verdicts up or down, yes or no, guilty or not guilty! good luck!"

But no sooner does the last juror leave the courtroom than the lawyers are back up at the bench, whispering furiously about something.

Something that makes Williams angry.

"FIFTEEN-MINUTE BREAK!" he bellows, and storms out of the courtroom.

"Could you tell I was unhappy?" he inquires in his chambers.

He lifts a club sandwich from a Styrofoam container on his lap and takes a bite. The defense team is griping about prosecutor Dambruch's closing argument, he says — "the fact that he mentioned that "who would want to have sex with three men on the barroom floor?' "

Back before the trial began, O'Brien had sought permission to explore whether the young woman had ever had sex with multiple partners, and the judge refused. Now, O'Brien asserted, the state was using the issue to its advantage in closing arguments.

"I said, 'Lenny, that is so far remote, even the extraterrestrial couldn't go there.' I said 'He's talking about this woman having sex that night, at that time, on the floor! This was one night we're talking about, not a proclivity, any more than it was a proclivity of Ed McGovern and Phil O'Donnell to be womanizers!' "

Gescheidt, too, raised an objection to Dambruch's argument - namely, his question, Why would the young woman lie? Well, argued Gescheidt, one motive for lying is a financial one, a reference to the alleged victim's having received an award from the state's victims' compensation fund.

But the judge wouldn't let Gescheidt bring that out during the trial, and also wouldn't instruct the jury regarding it.

The way he sees it, if either Dambruch or Gescheidt wanted to make an issue of the award in their closing arguments, they were free to do so, leaving the jury to agree or disagree about a motive to lie.

"I said — and this is a mistake, you should never say anything like this - "If this gets up to the Supreme Court and they say I should've (dismissed) the case on what you're telling me, I will leave the bench!"

"Put that French fry in your mouth and eat it!" he says as he picks one up and eats it himself.

"I lost my temper, all right? And that's why I had to take an immediate break, because I wanted to regain my composure." He looks around the room. He's not composed yet. But "I'll be good by the time we go out there."

An hour and a half later, the jury signals that it has reached a verdict. Everyone gathers quickly in the courtroom.

Does the judge have a prediction? he's asked on his way to the bench.

He makes a thumbs-down sign, meaning he thinks the jury will find them not guilty.

A guilty verdict would have taken longer, he explains. Also, "I really think that it came down to what I said it would come down to: credibility and whether she was physically helpless. I had a sense this morning that there were too many reasonable doubts."

He's just glad to have a verdict.

"That's justice. Justice up or down."

The verdicts — not guilty on all counts send a charge through the courtroom.

The gallery gasps, the defendants weep, a happy defense lawyer sobs into her hands. The accuser cries out, "You make me sick!" and darts from the courthouse, saying she hopes the defendants burn in hell.

McGovern and O'Donnell, with their wives and lawyers, follow. This time, they do not walk past the TV cameras, but stop at the microphones to express gratitude and relief.

In keeping with his usual practice, Williams has the jurors stick around for a chat. They're under no obligation to talk about what went on in that room, but they seem glad for this post-mortem.

"Well, tell me, what do you think?" the judge asks the six men and six women. He isn't wearing his black robe now, just a sport coat over a sweater vest and slacks. "First of all, do you think the parties, got a fair trial?"

Yes, they say.

"Do you think the court was fair to everyone?"

Yes, they say.

"And I equally abused both the state and the defendants?"

The jurors laugh.

"Now," muses the judge, his hand to his chin, "let me see why you came out in an hour and a half with a verdict...You found no physical helplessness, right from the get-go."

Right, they say.

"And once you found that, it destroyed all four charges, am I guessing right?"

Yes. True. Oh. yeah, they say.

They waffled back and forth on some issues, a female juror says. "But your instruction to have a strict interpretation of the law really, really helped a lot." They liked being allowed to take notes in court.

"You can go with the confidence in yourself that you did a good job then," the judge tells them. "There was plenty of evidence, or lack of it, for you to find the way you did. Believe me when I tell you that. Right in the bull's eye."

The jury wants to know what's happening with the third guy? and Williams fills them in about Jack Capizzano's statement to the police, how it implicated the others, and how he'll be tried in a month.

"Does that mean that she has to come in and testify again?" asks a woman, referring to the alleged victim.

"Yeah," says the judge.

The woman winces.

"Now, can another jury find physical helplessness? Can another jury find beyond a reasonable doubt?" asks the judge, rhetorically. "Maybe! So if this comes down, and it's a different verdict from yours, don't feel at all bad about it. Reasonable minds, based on the facts of that case, can have a different outcome, from you."

By the way, he says, "Why did you think she was not physically help less?"

A number of reasons: "She spoke." "Moved her hand." "Responded to Phil O'Donnell" when he asked if she wanted to go home.

"We basically found that Phil's testimony seemed to be the most credible version," says one man, "because all of the pieces seemed to fit together. And all of those things seemed to make sense. And if all those things were credible, then she couldn't have been helpless."

"We also felt," a woman adds, "that the state just did not present a good enough case. And we had some feelings that maybe something wrong happened here. It was never proven beyond a reasonable doubt. When the state said they rested their case, we were like - " she makes an astonished face.

"We were surprised," a man concurs. "We were surprised the state didn't present a stronger case than they did. We were surprised they didn't make her out to be more sympathetic."

The judge nods. "The only witness they really had was her, right? So that's where it comes to a credibility question or problem. What did you think of her?"

The jurors murmur dubiously.

"She didn't show any emotion at all," says a woman.

"Left out too many details," says a man.

"She found herself in a situation that she got caught up in, and she had to follow through with it," concludes another woman. "I think she just was young, and what started out as a plan — she didn't have any choice. I think she couldn't have changed her story. I think she had to see it through to the end."

A woman sums it up: "I wrote on my notes, 'One tough cookie'."

And what did you think of the lawyers? Williams asks.

Mostly, they viewed the prosecutors as young and inexperienced, though "I don't think the state had much of a case to work with," adds one woman.

The seasoned defense team was excellent by comparison, the jurors say, if a bit "verbose," adds one man, and Williams says, yes, verbose is the word for it.

Now the judge is all out of questions, but the group doesn't disband without complimenting him.

"You did a very nice job of keeping it flowing." "Your humor was great. That helped." They say they worried about him at times, when he'd rub his face and look exasperated.

"You're not a card player, judge," a man says.

The judge nods. "I do not have a poker face. I mean, what you see is what you get."

"You had quite an expression when they hauled out that big clock," a man recalls, not realizing he's pushing a button.

"They went and they retrieved the clock!" William begins. "And I said, 'Enough already! We're not going to get into this! We've heard enough about the lighting! My jurors have heard enough about the lighting!"

A man asks, "Were they gonna darken the courtroom or something?"

"Nothing would surprise me! I'm surprised they didn't ask us to take a view," the official term for visiting a crime scene. He jokes that chatty bartender Annie Hall would still be testifying now if he'd let her.

The jurors laugh.

Go home and get on with your lives, Williams tells them. "Forget the guilty or the not guilty. It's done. It's over. Become like I am. Don't get personal with the case. Because it's like the myth of Sisyphus. You know the Greek story where Sisyphus was condemned to roll a boulder up the hill and every time he got to the edge of the hill, the boulder rolled back on top of him and he had to start over?

"There'll be other cases like this," he says, more to himself than to them. "Thousands of other cases. So, as we say in the trade, next case!"

Tomorrow: Block Island II