ODOR IN THE COURT

IT TOOK COURAGE FOR THE DEAF GIRL TO ALLEGE RAPE. SHE WAS REWARDED WITH AN UNPREPARED PROSECUTOR WHO BUNGLED THE CASE.

"I get a 911 call that the Skillman case is starting at 9:30," Whitson recalls. "I ask, 'What Skillman case, number one or number two?' She doesn't know. I finally learn that it's [Kim's] case. 'Oh, boy.'"

Beatty met with Kim and her family for the first time on November 15, for about 30 minutes. During the meeting, he learned about Sharon Singer--the friend in whom Kim had tearfully confided an hour or so after the alleged assault.

Although Sharon was waiting for her friend in a lobby a few feet away, Beatty, remarkably, never said a word to her. Beatty avows he wouldn't have called Sharon even if Judge Brown would have let him.

"The jury either was going to believe [Kim] or not believe her," Beatty says. "The case was about consent, not what she was telling a friend later. It was a tactical decision. If a jury wanted to convict, they would have, with or without the friend's testimony."

As it was, it was far too late for the prosecution to add her to its list of witnesses. The judge, however, says he might have granted a postponement if Beatty had pushed the right buttons.

"The prosecutor had to offer the girl [Sharon] as a witness," Brown says. "She's admissible as hell, and probably important, but he never asked to get her in. You certainly can't spring witnesses on the defense, and I would have had to give them time to interview her. I can't say how I would have ruled, but there could have been grounds for a [postponement]."

Beatty was unprepared on two other fronts:
He didn't have an expert ready to testify about Kim's behavior, both as a deaf person and as an alleged victim of rape. And it was too late to present a compelling argument that the judge should allow testimony about Skillman's alleged "prior bad acts."

"If an expert will truly assist the jury in understanding what happened," Judge Brown says, "then they testify. In this case, it could have been important for a jury to know how a deaf person may react in certain social situations, how they may be younger than their age group even if their intelligence level is high."

Brown has a reputation for not allowing prosecutors to present testimony of "prior bad acts" unless the evidence is most compelling. But the judge says he would have been interested in hearing Beatty's arguments on the subject, had they been filed in a timely manner.

"You can't bring something like that up on the day of trial like he did," the judge says. "He submits something that came off a machine hours before his opening statement, with no supporting facts. I'll tell you something. If the priors had been down the same path and tended to prove motive or intent, and the prosecutor had submitted a timely motion, he probably would have had a shot."

But not in this case.

Reginald Cooke's game plan became clear as soon as he began his opening statement.

"[Kim] does what other teenagers do," he told the jury. "She has a job, she goes to a mall. [Kim] also has sex. . . . Xavier could tell that [Kim] thought he was cute. The evidence is going to show that she thought he looked a little bit like Kevin Johnson. The evidence will also show that [Kim] happens to like black men. . . . They are doing what a lot of teenagers do. Things can get a little hot. They were cuddling. They were kissing. One thing led to another. And, ladies and gentlemen, they had sex."

In other words, Kim Bradley had been a willing partner.
Kim was the first witness. She says she was very nervous, and didn't know if she could go through with her testimony. Instead, Kim dealt with her anguish by retreating into herself and appearing distant, almost lifeless, to the jury.

She described the first, painful act of sexual intercourse.
"I started screaming no, and I tried to push him off. And then, when it seemed like he was telling me to be quiet, I started getting really scared. I thought that if I resisted him, he might assault me or hit me. So I thought, 'Well, maybe I better be quiet until he's finished.' I did continue to say no."

After being raped a second time, Kim said: "I remember telling myself, 'Be quiet,' and I looked at him to see if maybe he'd let me go or not. And I felt like I was so stupid for going there and letting that happen. And then I felt like a doll. You know, just an empty-headed doll. I was really hurting and so uncomfortable."

Later, at Metrocenter, Kim continued, she met her friend Sharon, and told her what had happened.

Sitting at the prosecutor's table, detective Jan Whitson immediately realized that she and the prosecutor had missed the boat on Sharon Singer. Whitson knew she'd erred in July by not asking Kim whom she'd told and what she'd said.

Kim summed up her feelings in a poignant moment:
"I was real disappointed that Xavier didn't show any respect for me when I said I didn't want to have sex, wasn't ready," she said. "I thought he was a different kind of person. He stole my virginity from me. And I felt so disappointed, because that was a goal of my life. I wanted to be a virgin when I got married."

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