At least at the outset, Dec. 15, 1996, was a cozy, aimless Sunday night, loosely braided with chores, TV and idle talk. Michele Wioskowski, a 24-year-old teacher at a Catholic high school in West County, had been out to eat with her 28-year-old boyfriend, Luciano Silveira, and his family. But a chronic kidney infection was flaring up (she'd been to the St. Luke's emergency-care center nine days earlier), and she says she felt so lousy that she left her car at Silveira's and asked him to drive her home.
Wioskowski taught Spanish, but she also coached the cheerleaders (extracurricular penance for a first-year teacher). That fall, she'd befriended a 16-year-old cheerleader we'll call Jenny, who lived alone with her dad and had a rocky emotional history. That Sunday, Jenny's father, a night watchman, was working until dawn, and she wasn't wild about sitting home with only a pile of laundry for company.
Jenny says Wioskowski called and invited her over to spend the night, suggesting that they'd order pizza and implying that they'd skip school the next day and go shopping.
Wioskowski says she'd already eaten dinner and called in sick for the next day, and was planning on staying home in bed. She says Jenny had called earlier and arranged to spend the night at the Wioskowskis (Michele lived with her parents, but they were often out of town, and the house was spacious). Wioskowski wasn't surprised; Jenny had done this several times before when her dad was working, and she was always welcome.
In any event, Jenny came over with her laundry. Wioskowski and Silveira went downstairs for some privacy, and Jenny chatted with Alex -- a foreign-exchange student who was staying with the Wioskowskis -- and his friend Maureen. Wioskowski put her robe on. Then, she says, she shooed Silveira home, checked to see if Jenny needed soap, shampoo or towel, and went to bed. But before she had time to fall asleep, she heard an urgent knock on her door. Jenny came in all upset, says Wioskowski, and proceeded to pour out her troubles for hours, starting with jealousy of Alex and Maureen (Jenny had dated Alex that fall) and moving to other girls at her school, her dead mother, an uncle who'd sexually abused her. The next morning, eyes swollen and emotions still churning, Jenny begged to stay home from school, so Wioskowski called her in sick and let her go back to bed.
Jenny's version is a bit more torrid. (She, like Wioskowski, declined to be interviewed; what follows is drawn directly from their court testimony and depositions, the police report and the Division of Family Services reports.) Jenny says that, as soon as Maureen left and Alex went to his bedroom, Wioskowski and Silveira headed for the hot tub. On the way, Jenny says Wioskowski sought her out, saying, "'You know I love you.' And she has me closer to her. I said, 'Yeah, I know you love me, Michele.' And she said, 'You know I would do anything for you.' I said, 'Well, I'd do anything for you too.' And she said, 'Well, I'm going to use that to my advantage.'"
According to Jenny, Wioskowski directed her to "come downstairs in a few minutes and bring two beers with you." Jenny says she went out to the hot tub, set the beers on the ledge, and, at their invitation, took off all her clothes and climbed into the hot tub with Wioskowski and Silveira. "She started kissing me.... On my mouth. On my breasts....Then she kind of passed me -- pushed me towards Luciano. And he said, 'I think she's shy.' And he started to touch me."
Jenny says Silveira put his fingers inside her vagina, then told Wioskowski, "Hold your baby," at which prompt Wioskowski "lifted my body halfway up out of the water and kissed me on my genital area." Then Silveira "took my hand and showed it to his penis." After more fondling, Jenny says Wioskowski left to get herself and Jenny glasses of wine. Jenny was now alone with Silveira in the hot tub, but according to Jenny's account, the action stopped cold: "I grabbed my cigarettes that were by the hot tub and I started to smoke."
When Wioskowski returned, she handed Jenny a glass of wine, and the action resumed instantly. Jenny says Silveira told her to put down the wine, and she and Wioskowski took turns trying something he called scuba diving, giving him oral sex underwater. After more fondling, Jenny says they went inside to find a bedroom. She says she stopped to use the restroom, and then Wioskowski handed her a robe. "She laid -- told me to lay down on her bed. And she put the robe on me like a blanket."
Jenny says that Wioskowski "put herself like at the head of the bed with her legs spread open and told me to have oral sex with her, and Luciano got behind me and had sex with me." Asked to describe Wioskowski's position more precisely, Jenny said it was "in a crawl kind of position. She's like halfway seated and halfway not.... She's on her back." Jenny says she was on her stomach, lying "kind of diagonally" on the bed, and Silveira was "behind me, kind of standing, kind of kneeling down like. And then he gets on the bed.... He puts his penis into my vagina and continued to have sex with me."
After lengthy intercourse with Silveira and oral sex with Wioskowski, Jenny says she traded places with Wioskowski and they did everything all over again. Silveira, she says, only ejaculated once, at the end.
Afterward, Jenny says that Wioskowski handed her the robe again, murmuring, "We'll go upstairs and relax our way." Then "she asked me if I was hungry and she went into the kitchen and grabbed a Styrofoam box with some shrimp pasta in it and heated it up and I had a few bites of that and then I went to bed."
Beyond Reasonable Doubt
If you believe Jenny, she was invited into a night of steamy sex in an unexpected menage a trois with her 24-year-old teacher and that teacher's 28-year-old boyfriend.
If you believe Wioskowski, the teacher, her boyfriend Silveira went home early and Jenny spent those hours pouring out her heart because her mother had died and her uncle had abused her sexually.
At the five-day trial last July in St. Louis County Circuit Court, the jury believed Jenny. Unanimously. The only reason they deliberated for more than seven hours was their reluctance to send the adults to jail when the teenager had been willing to participate. But they were determined not to discredit her on that account.
So they found both defendants guilty as charged on one count of statutory rape and five counts of statutory sodomy. Then, because of the circumstances of the crimes, they compromised, meting out sentences so low that, if Wioskowski and Silveira lose the appeal they filed last October, they will be sentenced to only 11 months apiece, rather than the maximum 42 years. Then they will be registered as sex offenders, and Silveira will be deported to Brazil.
It's impossible for any outsider to know what really happened on Dec. 15, 1996. But the way the case unfolded blows open a seed-pod of questions about the information that was withheld from the jury, their earnest good intentions and strong "commonsense" assumptions about human nature, their subjective response to the defendants, and their cheerful inversion of the legal concept of "burden of proof."
Judge John Kintz bent over backwards to help prosecutor Kathi Alizadeh block evidence about Jenny's past sexual behavior, as required under the rape shield law. What he also screened out, however, was a psychiatric expert's diagnosis of borderline personality disorder; testimony about previous claims of abuse or rape; a psychiatric record of multiple hospitalizations; any witness commenting on Jenny's credibility; and a seasoned Division of Family Services caseworker's unusual letter confessing grave doubts about Jenny's allegations.
In the past, if there was anything short of actual semen traces, the system either subjected the victim to grueling examination and pillory or gave up. In this instance, information was assiduously held back to avoid making the trial even more traumatic for the alleged victim. As a result, all the jury had were dueling scenarios, smeary conjecture, their own "commonsense" assumptions about human behavior, and their opinion of the "character" of everyone involved.
Throughout the four-day trial, jury members found Wioskowski immature and inappropriate, Silveira arrogant and macho. Noting the exchanged looks, smirks and body language, some decided the defendants had too much money, too little moral compunction. The discrepancies in Jenny's police report, deposition and testimony -- not to mention her initial recanting of her allegation -- they wrote off to youth and upset. "If you lay it out coldly and look at it," begins one juror, then interrupts herself. "I can't imagine what it would be like to be 16 and find yourself in this situation. When you are 16, you have a roller coaster of emotions going. If the wrong boy looks at you funny, it could ruin a whole week."
The jury's heart went out to the girl. And soon the burden wasn't on the prosecution, to prove guilt beyond a reasonable doubt, but on the defense, to prove anything else. Looking back, Marc Childers, the jury foreman, justifies their unanimous verdict by pointing out that "the testimony in the defense was not adequate to say it didn't happen."
Yet there was no physical evidence, there were no eyewitnesses, there had been no previous hints of sexual intentions, and there was no hint of such behavior in either defendant's past. There was no discernible motive, either, unless you count the "obvious" motive Childers says they reconstructed in the jury room: Wioskowski wanting to give Silveira, "a rich kid," the Christmas gift that was "every man's dream": two women at once.
"This is not a typical, routine case," DFS caseworker Art Huighe wrote the prosecutor's office in a letter also signed by his supervisor. "The truth is the teacher and her boyfriend could be guilty and deserve to be convicted. But experience tells me this may be one of those seldom seen scenarios that may not be true."
Jenny first met Wioskowski at the cheerleaders' orientation in June 1996. But they didn't get to know each other until September, because Jenny missed all the summer practices. According to Wioskowski's later grand-jury testimony, other cheerleaders told her "that was typical.... They said she had problems with her dad. That he was older and he sometimes forgot about her ... and that sometimes she just wasn't in a mental state to be at cheerleading."
Wioskowski was drawn to this young woman, who was just beginning to get her life together after five rough years. When Jenny was 11, her mom had died of a sudden heart attack, and Jenny had found herself alone with her dad, who was in his 60s. Seriously depressed and suffering from anorexia bulimia, she turned to drugs and alcohol for comfort. In her deposition, she said she was hospitalized in seventh grade for depression and eating disorder; in eighth grade for suicidal thoughts; and in ninth grade for two months of inpatient substance-abuse treatment.
By October 1996, Wioskowski was planning a special celebration of Jenny's one-year-clean anniversary with the other cheerleaders. Jenny had broken with her first set of high-school friends and was sinking a lot of emotional weight in her new relationship with Wioskowski, whom she described variously as her "best friend," "like a sister," "like a mother to me, " and "the only woman that I had in my life." Her relationship with her father wasn't nearly so personal. "My dad loves me and cares for me," Jenny told the jury. "But we don't have the best friendship. There's a big age difference." If she had a problem, Jenny said, she'd turn to someone else. And that fall, "someone else" was Michele Wioskowski.
New to teaching, eager to be popular with her students and with boundaries almost as permeable as Jenny's, Wioskowski never even tried for professional distance. She wanted students to know she was a full human person, not a remote authority figure. And she wanted to help Jenny, be her friend. Along the way, she made a mistake that now makes her cringe: When Jenny shared details of her own relationships, Wioskowski reciprocated, excitedly confiding intimate details of her new relationship with Luciano Silveira.
That fall, Jenny and Wioskowski had gotten their nails done together and gone shopping together. Jenny was dating Alex, a foreign-exchange student staying with the Wioskowskis. She also began occasionally staying overnight herself. And she signed up for a women's self-defense course at Silveira's martial-arts studio, although she only showed up twice in the six-week course.
Silveira remembers Wioskowski explaining that Jenny had been beaten and raped, and wanted to learn to protect herself. He says he would have been glad to teach her self-defense but wasn't particularly interested in any of Wioskowski's young friends. He thought her closeness with them highly inappropriate and resented the teenagers who rushed up to greet Wioskowski whenever they went to a movie. "I'm a very private person," he says. "And I just didn't think that kids and teachers should be as close as they are here."
Brazilian by birth, Silveira had lived in St. Louis since 1986, when his dad's job with Monsanto brought the family here. After learning English, finishing college and earning a master's in marketing at Maryville University, he had opened a martial-arts studio. He'd also formed a serious relationship with Elizabeth Byers, a young woman four years older than he. They were together for six years before she died of breast cancer.
When he met Wioskowski in July 1996, he liked the fact that she still lived at home with her parents, and knew his parents would like the fact that she was Catholic. Bruised by Byers' death, he didn't want to get serious again and says Wioskowski "respected his boundaries."
In point of fact, she was head over heels in love with him, playing it cool but hoping hard, and confiding her enthusiasm to her students.
The sex allegedly took place on a Sunday evening. According to Jenny, the original plan was that she and Wioskowski would skip school together the next day and go shopping. But that Monday, nobody hit the mall. Wioskowski retrieved her car from Silveira's place around 10 a.m. and came home to rest, just as she'd planned. Jenny slept well into the day, and says that when she awoke, the conversation about the previous night's events was minimal but dramatic. "I was told to take it to my grave."
By the following Friday, she'd told her friend Suzy. "I wanted someone to know," explained Jenny. "I told her she had to pinkie-swear not to tell anybody."
A shocked Suzy pinky-swore, even though, as Jenny would later admit, "Suzy can't keep something like that in." Still, for the next few weeks, life proceeded normally. Jenny sent Christmas cards to both Michele and her mother, Joan Wioskowski. Cheerleader and coach worked out together several times, and not a word was said about Dec. 15. In early January, Wioskowski went to stay with Jenny, as prearranged with Jenny's father, while he was on vacation. Joan Wioskowski would later testify that she urged Michele not to accept any money from Jenny's father but to try to help and advise the girl, "listen to her, hear her."
She was about to hear more than she'd ever bargained for. "Suzy couldn't keep our little secret a secret any longer," Jenny says bitterly, "so she told her parents." Who told Jenny's dad. Who confronted her: "'Is this true?' You know, he's like, 'If that's true then that's wrong, you know.' And I started crying and.... I just told him again, 'No, it's not true.'" (At the close of the trial, she would make a formal statement that she now knew the value of honesty, and pitied Silveira and Wioskowski because "they can't even be honest with their own parents.")
At the time, furious with Suzy, Jenny says she "told her that I needed to protect Michele.... I said that I would let myself go down before Michele would go down.... I said, 'Michele's like a mother to me.'" Jenny says she and Suzy cooked up a denial together, deciding to say Jenny had made up the story to get more attention from Suzy. According to the police report, Suzy said Jenny told her that, volunteering that, personally, she didn't believe Jenny's denial. Months later, when Silveira's defense attorney, Bernard Edelman, asked in court, "Did you tell Detective Reynolds that (Jenny) told you that she made the whole thing up to get attention?" Suzy stammered, "I don't know.... I don't know if I remember."
Meanwhile, Jenny was busy denying the allegation to Suzy's parents, the school priest and the principal. The principal remembers Jenny blurting, "'I just know if anything happened to her, meaning Michele, I would not want to be here.... If anything happens to Michele, I will do away with myself.'"
When Huighe, the DFS caseworker, showed up at Jenny's house to respond to a report hotlined by the school, Jenny sent him away and called Wioskowski. "She was over like within five minutes," Jenny said later, quoting Wioskowski's request to talk in the car because "'Art could have left a bug. That man could have left a bug.'" As they drove around, literally in circles, Jenny says Wioskowski warned her, saying, "I needed to keep my mouth shut and she was going to yell at me and make me cry."
Yet when Huighe returned to interview both of them, he found Wioskowski's demeanor coolly disgusted. She denied the allegations, shooting glances at Jenny throughout. Then Jenny confessed to Huighe that she had "made up stories one night when in a drug state, and did not know exactly what she had told a friend, as she could only remember bits and pieces. She said she was really trying to regain the attention and interest of a friend who had drifted away from her." Huighe ended his report with a crisp dismissal: "This case is unsubstantiated."
Reeling from the accusation -- and lectures on professionalism and boundaries from both her principal and her boyfriend -- Wioskowski finally cooled her friendship with Jenny. According to Jenny, this was a planned coverup, but she broke under the strain. "I felt like, you know, I was covering for everybody else and making myself out to be this person that I wasn't.... I was in the hallway at school and I just couldn't take it anymore. I couldn't take the covering up for her and the lies. And I was living a lie for her, you know."
She found Suzy's boyfriend and said, "Get Suzy, I need to talk." Suzy came out of class, heard Jenny's panic and took her straight to their principal. One month after the initial investigation, Huighe was back with a police detective. But when they tried to reinterview Jenny, "the child indicated she wouldn't be available until the beginning of the next week due to a booked schedule," reported Huighe. "An appointment was set, but she failed to appear, and her father advised that she had discovered another conflict in her schedule. An appointment was reset for the next day, but her father called that day to advise the child had forgotten she had a basketball game to cheerlead.... I happened to be at the school at the time when I was paged by my office with the information. I learned from the principal that there was no basketball game scheduled that day."
When they finally met, Jenny "described engaging in oral sex on the boyfriend's penis under water in a hot tub." Huighe questioned "how it could be accomplished without taking in and being choked by the water." He also noted "hesitance and unpreparedness to respond," and couldn't figure out how the physical events she was describing could have worked: With Wioskowski at the top of the bed, Jenny in a "crawl" position in the middle and Silveira climbing onto the bed behind her, Huighe figured, "the bed would have had to have been at least 8 feet long." It wasn't.
He was also surprised by the way "the alleged victim started very calmly and collectedly, and displayed no emotion even when providing details of the most sensitive aspects.... I was stunned when the child suddenly burst into a moaning wail toward the end of the interview. It came at a point at which I and the detective were asking questions of clarification."
Asked in court why she would have recanted, if this really did happen, Jenny said she was "scared that my life would be ruined, that they might try to harm my family, harm my dad." Asked by police why she reasserted the accusation, she said, "I don't sleep, I don't eat.... Every morning I go to school and I hear that she wouldn't talk to me.... I told all these lies to cover her and that is not the kind of person that I am."
What The Jury Never Heard
Huighe testified briefly at the trial, but Alizadeh, the prosecutor, objected to any question touching his opinion of her credibility, and asked "that he be prohibited from testifying about, after his conversation with (Jenny), what he did in the course of his investigation." And Judge Kintz concurred. There wasn't much left to say.
Similarly, when Michelle Maddock, a 17-year-old cheerleader at the same school, was asked about Jenny's reputation for being untruthful, she began, "Everybody I know has been lied to at least --" and Alizadeh broke in, calling the testimony improper. The judge sustained.
Almost none of Jenny's psychiatric history made it into evidence, and the defense's expert witness, a psychologist with a law degree and 30 years' clinical experience, was never allowed to testify before the jury. "The prosecution in this case is going to stand before the jury ultimately and say to them, 'If this wasn't true, why would she stand up there and say these things about these two defendants?'" Edelman argued in the judge's chambers. "I certainly think that this jury should be given a picture of the fact that this girl has significant psychological problems."
Kintz ruled against him, apparently agreeing with the prosecutor that this was "an improper attack on (Jenny's) character and improper comment on her credibility."
The jury didn't hear much about previous allegations, either. Silveira says that Jenny told Wioskowski her uncle had raped her and engraved his initials on her legs, and her mother had gotten her a tattoo to cover it up. Jenny later denied ever having been raped; she testified that her uncle had abused her and DFS had investigated in 1994, but "because there was no -- he hadn't touched me or nothing happened, they were just told to stay away from me." Yet the police report also quotes Jenny saying she'd been raped before. In her deposition, she denied this, but described an incident at a party where a man had held her down to the ground, saying it "could have been attempted rape if nobody came" to interrupt.
Nor did the jury hear the wasp-cloud of rumors buzzing above the courtroom. While some students reported Jenny to be truthful, others said she'd told at least four different versions of her mother's death (bulimia and heart attack; car accident; a heroin overdose and Jenny found her body in a pool of blood). Suzy had said that Jenny claimed a lesbian relationship with Wioskowski. Others murmured that she'd confessed giving oralcontinued on page 18GUILTYcontinued from page 16sex for drugs and that she'd had at least 200 sexual partners -- all of which Jenny denied.
Things were getting ugly.
The innocuous hot tub on the Wioskowskis' deck is overlooked by two stories of tall curtainless windows, yet nobody seems to have worried that Alex, inside the house, would overlook the steamy activities. The hot tub is gleaming white, and doesn't even stand as tall as the porch railing; Joan Wioskowski testified that there's no ladder, she swings her leg over the side to enter. Yet Jenny reported climbing up and down a ladder to enter a brown hot tub. Initially, she said they'd been in the hot tub for an hour to an hour-and-a-half, and that she'd put her head under 104-degree water for 10 seconds. And Suzy initially told the police that when they got out of the hot tub, Jenny had sexual intercourse with Silveira for one hour while Wioskowski watched.
At the trial, Jenny said she didn't remember saying that. She modified the time frame to a half-hour to an hour of foreplay in the hot tub -- "oral sex was going on at all times, many times" -- followed by 15 minutes of intercourse with her, 15 with Wioskowski, "the whole time there was intercourse, most of it." She still insisted that Silveira did not ejaculate until the very end.
Suzy also remembered Jenny saying that Silveira suggested sex toys and sex games -- details that vanished from Jenny's subsequent accounts. Silveira testified that he owned no sex toys, had never known Wioskowski to have any, and they'd never discussed them.
Even Jenny's expectations about that Sunday evening changed between the deposition and the trial. "You did say that you didn't even know he (Luciano) was going to be there, when you were asked in March?" inquired Edelman. "And now it's your testimony that you were told he was going to be there, to come over and have some pizza; is that correct?" "Yes." When Edelman asked Jenny about her original statement -- "Was it true when you said it?" -- she blurted, "I thought it was. I don't -- I knew that he was going to be there. I didn't know that he was going to spend the night. So that's -- I was probably confused."
Jenny's Strongest Case
To a layperson, the strongest argument for Jenny's account -- had it been admissible -- would have been the fact that she passed a polygraph test. Neither Wioskowski nor Silveira ever took a polygraph. Both agreed when asked, but they say Wioskowski's attorney wanted to wait until Jenny had taken hers -- a standard lawyerly tactic -- and then they were never called to take theirs. Silveira says when they inquired, Alizadeh said, "No, you didn't take it when I wanted it, so the offer no longer stands."
Huighe, in his letter to the prosecutor's office, also asked why Wioskowski wasn't taking a polygraph: "I suggested it should never be too late to pursue every available avenue to thoroughly investigate a case," he wrote. "The prosecutor countered by saying no case would ever be tried if that was the case."
The judicial system doesn't place much credence in polygraph results; courts have consistently banned them because they can skew with something as simple as influenza, medication or the way the questions are asked. But if Jenny's test was accurate, itwould at least indicate that she believes she's telling the truth.
Instead, what the verdict eventually rested on was an entirely different kind of evidence, based on a tight geometric pattern of stereotypes and assumptions that the jury swung through like practiced square dancers.
An experienced local defense attorney who sat in on part of the trial thinks the defendants' behavior in the courtroom lost them the case. And the jurors we interviewed didn't disagree. Wioskowski left her seat at breaks to hold Silveira's hand -- and it affected the jury's tum-tums like an excess of cotton candy before a roller-coaster ride. One juror mentions "goo-goo eyes." The defendants were "arrogant," complains the foreman, Marc Childers. "They had no sense of the gravity of the situation! They had smiles on their faces most of the time they were in court. When we walked in, I thought (Wioskowski) was a lawyer, she was so jovial." Could she simply have been nervous and silly? "Could be," he shrugs. "I don't think that weighed on anybody's mind."
Confronted with the jurors' opinions of their behavior, Silveira's torn between exasperation and self-defense. "If I hold Michele's hand, it's because she's scared," he says angrily. "If I smile at my parents, it's because I'm their son, I know what they're thinking, I'm trying to project some strength." And, yeah, he knows he comes across as arrogant sometimes, or distant. "I didn't know I had to go to acting school to go to court."
Sharon Byers, the mother of Silveira's first love, says she trusts his integrity absolutely. "When Elizabeth became ill, we saw each other almost every day. He is a person of integrity. And believe me, if he'd ever played around on her, she was not a person to suffer that lightly!" Byers sat through the trial, and she's convinced Silveira's cultural background worked against him. "He comes off -- this is an aristocratic family from Brazil. I'm not sure he appreciates this, intelligent as he is, but the men there walk with a certain kind of swagger. He's big, he's good looking and well built and he'll get in line at a movie theater and it's like, 'Get out of my way.'" The arrogance is a function of culture and class, she says, "and it doesn't sit well with a Midwestern, blue-collar jury. But arrogance is not guilt." Silveira says Alizadeh offered him a chance to testify against Wioskowski and plea-bargain for a lesser charge, but he refused. (Alizadeh was not available for comment.) Silveira says he couldn't imagine that they could be convicted of crimes solely on the testimony of an unstable girl. Courtroom pundits say the original defense attorneys also "thought this was shooting in a barrel" -- and didn't work quite hard enough. "Under something called Rule 60, they had the right to request either a mental or physical exam of the victim," says Neil Bruntrager, Silveira's lawyer for the appeal. "Instead, all they asked for were her past medical records -- which never made it past the judge's desk."
To appeal the verdict, they must now show that the state failed to make its case, that the original counsel were ineffective or that the judge's rulings -- specifically, the exclusion of evidence pertaining to Jenny's psychological background, thus possible emotional motives to invent the scenario -- denied the defendants a fair trial. Neil Bruntrager, Silveira's new defense attorney, says they will file briefs next month detailing the grounds for the appeal.
A Juror's Point Of View
Childers, the jury foreman, didn't even want to serve on the original jury; it was summer, and he knew the trial time would cost him a construction job. When it became apparent that he wasn't going to be let off, he resolved to give it his best. But his answers during voir dire gave the defense attorneys a few qualms.
"I have a daughter in Bayless School District ... and they presently have a teacher on suspension, going through the same accusations," he volunteered.
Asked if he'd made up his mind about that teacher's guilt or innocence, he said, "Sure."
"You made up your mind even though you just heard rumors?"
Still, they decided not to strike him, convinced by later questioning that he could keep an open mind in a new, unrelated case. The jury assembled. And, lo and behold, Childers "went to the bathroom and came back and I was the foreman." Another juror explains that "he just seemed to demonstrate so much common sense." He did a good, evenhanded job, the juror adds: "earnest in his own beliefs, but objective, and good at letting everyone be heard."
Childers agonized over the case and still firmly believes that he, and everyone else, made the only right decision. Yet when he talks about what happened, he mentions money a lot more often than evidence. In the five-day trial, the jury was presented with details about the defendants' West County homes and professional families; their clothes, attitudes and lifestyles; and Jenny's own words about the Wioskowskis' having money. So Childers says he and the other jurors reconstructed the crime as "a rich kid that needed a Christmas gift" and insists that was obvious from the testimony.
He also says he "knew all along that they were going to appeal. Money bespeaks that you can do no wrong." He also links their "popularity" (there were students, faculty and family members on their side of the courtroom) to the recent Colorado tragedy, noting that the kids at the high school "liked Michele and worshiped her, and they shunned the cheerleader. This is what we are talking about with the kids in Littleton. If it was really true and the two of them did this, and we allow the majority, and the hip people rule ..."
Later Childers asks rhetorically, "Am I their peer? They probably get more of an allowance than I make all year." That's what reconciled him to the short prison sentence, in fact: "Somebody told me about Watergate once, that when you take away rich people's privileges, even if you put them in a nice prison, it's as bad as it is for you and me in a regular prison. So if these people do actually get in little jumpsuits and go to prison for 11 months, justice will be served."
On the Defensive
Jenny testified that neither Wioskowski nor Silveira made the slightest hint of sexual suggestion at any other time. Nothing preceded Dec. 15, nothing followed. That evening was an anomaly and a complete surprise. And that doesn't seem to have bothered any of the jurors. "Nearly everything that gets someone into trouble is something you didn't think really hard about and have only done once in your life," notes one juror.
Childers, too, saw no need for precedent: "If you are going to have teenagers over to the house and alcohol and a promiscuous girl already, we have already laid the groundwork." He also saw nothing strange about Silveira suddenly expanding his reportedly monogamous sexual relationship with a grown woman to include a young girl: "If you have sex with one, why not somebody else?"
The defense tried to ask why Silveira, such a health nut that he insisted Wioskowski get an HIV test, would have unprotected sex with a teenager he knew to be sexually active? Why would he have said "it turned him on seeing a teacher with her students," as Jenny alleged, when he found Wioskowski's relationships with her students an invasion of their privacy and a distraction of her attention from him? "I have a 20-year-old sister, I grew up with kids in my house all the time, and I don't think I even said 'Hi' when they came in," Silveira remarks now. "I just liked to keep that distance. I am quiet, private, and when I teach teenagers, I'm like a sergeant -- they don't get away with anything."
As for a menage a trois, Childers proclaims it "a man's ultimate gift. Would you have turned it down?" He admits there was no evidence that Wioskowski had ever engaged in lesbian sex before that evening, but shrugs, "You're a gym teacher, so you know, you're around girls, you shower together ..."
And Childers, like other jurors, was thoroughly irritated with the defense, particularly their attempts to argue that Wioskowski wouldn't have gotten into a hot tub when she was suffering with a kidney infection, and Jenny should have been able to recall, when asked, the bleeding acne all over Silveira's chest and back. "'Sunburn and I couldn't have sex!'" exclaims Childers now, so disgusted that his memory merges the two conditions into a third, more obviously trivial one.
The defense dwelt on these medical conditions a bit too long for the jury's taste. They chronicled Wioskowski's urinary-tract and kidney troubles, her hygiene and avoidance of sit-down baths, her prescribed antibiotics at the time of the alleged incident. They pointed out that when Silveira showered, he had to wait for the bleeding to stop before he could put his clothes on; calling his mother to testify about the trouble she had getting the bloodstains and ooze out of his clothing; calling the doctor who diagnosed the acne. How could Jenny have failed to notice such a skin condition, they asked, when by her own testimony Silveira was naked, the lights were on, and the contact was direct, intimate and anything but routine?
Irritated, jury members told each other these red-blooded young folk would've plunged into the hot tub and gone ahead with the sex, and how could you expect a young girl to notice bleeding acne at a time like that? "Young, generally healthy people, if they want to do something, they go ahead," remarks one juror. "The defense was irrelevant."
The Prosecutor Triumphs
At her deposition, Jenny described Silveira as having two tattoos, a smallish one on his arm and a black cat on his hip. Actually, the tattoo on his hip is a dragon. And although he used to have a smallish tattoo on his arm, he had it elaborated -- on July 20, five months before the alleged incident -- into a dragon whose head comes all the way up his shoulder to his neck, and whose body wraps around his entire forearm. It's pretty obvious.
There was a photo of Silveira with the original tattoo in Wioskowski's photo album, though. And Jenny admits having paged through that album. Could she be remembering a photo instead of recalling his naked body? At the trial, she testified that she did not remember seeing any such photo in Wioskowski's album. "I don't remember any pictures.... I remember, like, one picture.... I remember she was wearing, like, a blue dress. And I think they had either been to a wedding or going to a wedding. And that's one picture I remember." Jenny accused Wioskowski of repositioning, for the trial, the photo showing Silveira's old tattoo.
Then Edelman asked Jenny to show with her hands the size tattoo she'd indicated at the deposition. "You think that you did this?" he repeated, circling his fingers. "I don't remember what size I did," replied Jenny. "You know we have a video of that deposition, don't you?" he reminded her. Then, with a flourish, the defense introduced Wioskowski's girlish photo album to clinch the tattoo misidentification.
The strategy backfired. Alizadeh mocked the album's very existence: "Is this a little bit weird, ladies and gentlemen of the jury, that this photo album suddenly appears? I mean, this is weird. Look at this photo album. This looks like something, you know, a 16-year-old would have. It's strange. And here are all these photos of her boyfriend and flower petals and ... they're all Luciano. This is really strange."
Without ever explaining what was strange about a young woman having photos of her boyfriend, the prosecutor moved on, ridiculing the stuffed animals documented in crime-scene photos of Wioskowski's bedroom. Her strategy worked. Asked to comment on the photograph of the tattoo, Childers now exclaims instead, "This photo album, that's probably the most immature thing she brought in!" Another juror, asked if the tattoo ID seemed suspicious, takes the same detour: "It seemed really odd that she would have a scrapbook like that."
Another effective legal tactic was the use of child-sex-abuse language. Alizadeh told the judge that Wioskowski confiding details of her sex life was relevant because it was part of "the defendant's -- we call it 'grooming pattern' that a child sex offender does with a victim." She told the jury panel during voir dire that this was a case of child sex abuse. And in her closing argument, she explained Jenny's recanting by saying, "She was doing what most child victims do. They protect their molester." Thus the alleged crimes were placed in a context of chronic, sadistic pattern of child sex abuse, not a one-time abusive exploitation of a sexually active 16-year-old on the Pill who'd never claimed her participation was not voluntary.
Now, asked why Jenny's emotional instability and recanting didn't make them suspicious, Childers says, "I don't see where that should have been a factor into this case at all." Even if she'd made, then rescinded, a claim of rape in the past? "They put people up there to explain it," he replies instantly. "That abused people normally lie."
Alizadeh also swept away any concerns about discrepancies in Jenny's accounts: "Think about a night of passion, a few drinks," she suggested, temporarily abandoning the abuse theme. "Are you going to be able to accurately, blow by blow, and as months go by and time goes by and you have to retell the story ... is your memory going to change on that?" In the next breath, she turned to poor Alex the foreign-exchange student -- whose only role as a witness for the defense had been to say he heard Silveira's car pull away and went to bed -- with a completely different standard: "His statements were all over the place as far as what time he went to bed," snapped Alizadeh. "Now, I don't know if he got up there and is just blatantly lying to you. He may. He may be."
More heavy emphasis fell on Wioskowski's attitude toward the HIV test Silveira had asked her to take, shortly after they met, as a precaution. A fellow teacher had testified that, on the day Wioskowski was to hear the results of her HIV test, she was nervous and had two glasses of wine at lunch. Wioskowski had denied being nervous about the HIV test, adding for good measure the insistence that she would never drink during a school day. If the other teacher was telling the truth, Wioskowski's denial was indeed a foolish lie. But did nerves over an HIV test mean she was an abuser?
One of the prosecution's strongest points was that, for Jenny to relay such a graphic detail as Silveira calling underwater oral sex "scuba diving," it must have happened, because that's not the kind of thing a girl would invent. Asked if we're to think Jenny spun such a story out of whole cloth, Silveira looks off in the distance, a muscle pulsing in his jaw, and admits that, unbeknownst to him, Wioskowski did confide certain intimate details of their sex life to Jenny. He believes Jenny then wove such details into an emotionally gratifying fantasy -- one whose details are more reminiscent of bad porn than reality.
Throughout the trial, Alizadeh objected at least 95 times, and 84 of her objections were sustained. The two defense attorneys objected 32 times combined and broke almost even -- 17 sustained, 15 overruled. The difference doesn't necessarily indicate how much was objectionable; Art Margulis, Wioskowski's defense attorney, is known for his restraint in making objections, and Alizadeh's reputation is quite the opposite. Still, the jury probably sensed such a marked disparity and registered the constant break in the flow of the defense.
Incidentally, Alizadeh also had some fun with names, asking Silveira questions about the time "before you dated (Jenny)?" "I dated (Jenny)?" he repeated, puzzled. "Or Michele." A few minutes later, Alizadeh did it again: "You had a relationship with somebody before (Jenny) -- or before Michele, is that right?" Soon the defense attorneys were stooping just as low, making a heavy-handed pun with the defendant's last name.
By the time the jury heard Margulis' closing argument, all that was left for him to say was, "If this is the kind of evidence that can convict people, if these are the kind of charges without support, without substantiation, that can convict people, then I think we're all in serious trouble."
Late that Friday evening, the jury returned its verdict.
By Margulis' formulation, we're all in serious trouble.
Not because these defendants were necessarily provably innocent, but because the law got pulled like taffy, sliding the burden of proof from the prosecution to the defense. The core concept of a U.S. criminal trial -- that the prosecutor bears the burden of proving every element of the case beyond a reasonable doubt -- somehow failed to register with the jury. Childers, the foreman, reasoned that the defense failed to prove the alleged incident didn't happen. Explained another juror: "For our money, they didn't present anything that conclusively disproved anything (Jenny) said." Was this individual convinced beyond a reasonable doubt that the defendants had committed these crimes? "To flip it around, they didn't seem like they couldn't."
The Missing Diagnosis
Diagnoses on the witness stand are always suspect: You can hire an expert who'll come up with any conclusion you want. Diagnosing a young woman in absentia isn't the point, and shouldn't be the goal in a court of law.
Showing a possibility of reasonable doubt, however, is the goal. And if Jenny was showing signs of borderline personality disorder (BPD) -- which emerges in adolescence and frequently coexists with eating disorders, substance abuse, major depression and suicidal thinking, all of which she had already experienced -- the jury might have peered a little closer.
The psychologist barred from testifying, Ann Dell Duncan, told the judge that people with BPD "may switch from idealizing other people to devaluing them ... turning them into monsters." The Jan. 25, 1999, issue of the Journal of Sex and Marital Therapy reports studies rating women with BPD as "especially likely to misinterpret or misremember sexual interactions, to lie manipulatively and convincingly." A study of BPD published in European Child and Adolescent Psychiatry (March 1996) found "high rates of interpersonal psychopathology, i.e., manipulation, devaluation, and a pervasive sense of boredom." The official description in the Diagnostic Standards Manual emphasizes intense but unstable relationships, impulsivity (common examples being irresponsible sex and substance abuse), frantic efforts to avoid real or imagined abandonment, inner emptiness, suicidal gestures.
St. Louis child psychiatrist Dr. Moisy Shopper calls BPD "a catchall diagnosis, used when you know someone is sick but you don't know exactly how, or the sickness varies, they go in and out of different symptom pictures. It's a difficult concept, because it tries to encompass people who oscillate between healthy and unhealthy functioning." Because the core is so easily shifted, emotion and need can color the individual's view of reality, he adds, or distort interpretations of others' behavior. Reality and fantasy can blur, "until oftentimes someone ends up not knowing what is real.... If the individual has to say something many times, and gets approval and reinforcement for having said it, then it becomes very real."
The problem, according to Dr. John W. Gunderson, Harvard professor of psychiatry, traces back to some abandonment or defect in the parental relationship, some early lack that starts a child on a desperate search for someone who will protect, nurture and care for them. Individuals with BPD do fine as long as they have this human anchor -- but any hint that the chosen person might leave can cause panic and extreme behavior.
Jenny said three times that she'd kill herself if her story got out or hurt Wioskowski. "She told me that she loved me, she was the sister that I never had," Jenny told police. "She told me that she would take care of me.... She knew everything about me." On Dec. 15, she said that Silveira told Wioskowski, "Hold your baby," and Wioskowski then cradled her. In court, she said Wioskowski "didn't have any friends that she could share this much with."
But what if the loneliness was Jenny's?
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