Part 3: The judge issues his ruling
June 22, 1998
WEDNESDAY, JUNE 10
Did you ever send anybody to jail for life? asks a fifth-grader.
Yes, once, a defendant who molested children, says the tall man with the deep voice who looms over their desks in the classroom.
Do you ever wish you had your own show, like Judge Judy?
"I wouldn't mind it. I'd have some fun," he says, smiling at this turn in the questioning.
Judge Frank J. Williams came to Chariho Middle School in Richmond this sunny morning to speak about his hero, Abraham Lincoln, but the kids also want to know about his job.
It's important work, being a judge, he tells the class, growing serious as he concludes his visit. "You have to make the tough decisions. And live with 'em. And the litigants have to live with 'em."
He departs without mentioning what the rest of his day will hold.
How, in a few hours, at the courthouse in Wakefield, he will open "Block Island II," the second part of the high-profile case in which three men were charged with raping a 21-year-old woman on the floor of a tavern in October 1996.
How - unlike in the first case, which was decided by a jury - it will fall to him alone to make those "tough decisions."
* * * * * *
It was the judge's own idea.
He asked the lawyers for Giacomo "Jack" Capizzano a few weeks ago whether they'd considered waiving the right to a jury trial.
It makes sense to the judge. It would save a few days in jury selection - bound to be a difficult task, what with the publicity around the first trial - and would save time in lawyers' arguing, since they'd only have one person, not 12, to convince.
It's not that he's in a hurry, he says; it's just that a shorter trial saves emotional wear and tear on everybody involved.
"It's got to come to an end," Williams sighs, one May evening between the trials, sitting among the books and Lincolniana of his home library. "It's got to come to an end soon. We've already had one ordeal."
Capizzano - charged with two counts of first-degree and one of second-degree sexual assault, plus sodomy - agrees to the suggestion, and the prosecutors - though they have no say in the matter - are also amenable.
Asked if he can really imagine convicting Capizzano, given the jury's acquittal of the others, he says, "How can I intellectually answer that until we're there with the evidence? I don't know. I'm going to have to start all over again in my mental process."
Judge Williams has been sharing his mental process with the Journal-Bulletin since March, when jury selection began in the first Block Island trial. His hope is that, by inviting this unusually close look at how the system works, he will help restore what he senses is the public's flagging faith in the judiciary.
* * * * * *
In this trial, as in the other, the first witness to take the stand is the alleged victim.
She tells how, on Oct. 5, 1996, she worked all day for Capizzano at his pizza restaurant, and ate only a bowl of cereal and a slice of pizza there before heading at about 9 p.m. to her second job, at the Yellow Kittens Tavern, where she and a coworker were in charge of watching the door.
After the bar closed, she says, she had two large drinks and part of a third, went to the restroom, and suddenly felt so sick she couldn't walk, so she lowered herself to the floor.
The next thing she knew, the three men were kneeling around her - Capizzano at her feet; Edward F. McGovern Jr., who owns the tavern, on one side of her; Philip D. O'Donnell on the other - kissing, fondling and then forcing sex on her.
"All three of them were doing something at one point or another."
She felt too sick and "heavy" to resist, she says, and was relieved when O'Donnell asked if she wanted to go home.
Capizzano and O'Donnell walked with her to her apartment, stopping along the way so she could vomit; she says she remembers O'Donnell telling her to watch his shoes. They went into her apartment together, and she changed into her pajamas and lay down on her bed.
The young woman's account is the same as she gave in the first trial, but this time, her attitude seems different. Perhaps because the prosecutors are drawing her out more, she seems less prickly, more expansive, in her responses.
She also makes it plain, by her sighs, smirks and frowns, that she is fed up.
(Her mother is, too. In the courthouse lobby during a break, she remarks that "it's hard to sit there and look at him," meaning Capizzano.)
Soon the witness moves on to a part of the story not heard in the first trial.
She says that O'Donnell left her apartment and Capizzano sat on her bed, where she lay face-down, put his hand up her pajama top and slid it around to the side of her breast. (This is the basis of the second-degree sexual assault charge, for which proof of physical helplessness is not required.) At that point, she says, she swung her arm at him and told him to get out.
Later that day, Capizzano showed up at her door to apologize. "He was crying," she says. "He was saying that he was sorry, and he was trying to hug me. I just pushed him away."
She says she angrily demanded to know if they had used condoms, and he told her yes, absolutely. She says she informed him she was going to see a doctor and give Capizzano the bill, and that he agreed to pay it.
At intervals, she says, Capizzano cried and insisted that this incident would bring them closer, that "he would smother me with his friendship." She says he offered to set her up in the restaurant business in Key West, where she was planning to move.
After he left, she busied herself with various tasks - scrubbing her bathroom, for instance, because "what else, what else, what am I supposed to do? I was a mess]"
* * * * * *
"I think she's telling the truth," Judge Williams says in his chambers during a break.
He suggests, though, that the woman's activities that day - scrubbing the bathroom, bringing a friend to the airport in Capizzano's pizza delivery truck, working on the staff schedule for the pizzeria - could be read two ways:
Either she was unimpaired by the events of early that morning, or else she was so traumatized that she attempted to repair herself by following the rhythms of her former normal life. He can't tell.
Nor can he tell yet whether she was physically helpless on the Yellow Kittens floor; he says he'll read a transcript of the day's testimony to see what he can discern.
The judge is much more interested in credibility than he was in the first trial - he seems to scrutinize the woman's face as she speaks, as he'll do with subsequent witnesses - and there's a reason for it.
In McGovern's and O'Donnell's trial, the jury was the finder of fact. This time, Williams is. The law requires a judge in a nonjury trial to "weigh and evaluate trial evidence, pass upon the credibility of the trial witnesses, and engage in the inferential process."
* * * * * *
THURSDAY, JUNE 11
Defense lawyer Richard Bicki pulls a bra and underpants out of the crumpled evidence bag and dangles them in front of the alleged victim's face. How long have you owned these? he demands.
She says she has no idea; she buys underwear every year or so as necessary. Bicki puts the underwear back in the bag and gives it to the clerk.
But soon, he asks for the exhibit again, withdraws the bra from the bag and holds it up by a strap: "It still is your bra, isn't it?"
"Irrelevant, immaterial and bordering on offensive]," prosecutor Stephen Dambruch objects, jumping up.
"Where are we going with this?" the judge asks, with real curiosity. His irritation with Bicki is already palpable and will increase as the trial proceeds.
Much of Bicki's cross-examination has been contentious, such as his attempts to introduce snapshots of the young woman and her coworkers kidding around in the kitchen of Capizzano's Pizza. Each time, the state objects that it's irrelevant; each time the judge agrees.
Only the last photo goes unchallenged. As Bicki describes it, it shows Capizzano "eating socks."
"Eating?" whispers the young woman's mother, turning to the press.
"No objection," deadpans the state.
"Full exhibit," allows the judge, with a shrug.
"This is getting surreal," murmurs a Block Islander in the gallery.
For some reason, Bicki needs to know: What time did the woman eat the cereal? (She doesn't know.) And didn't she once get free T-shirts from a pizzeria she'd worked at previously? (Yes, so?) And didn't she once work at a restaurant called The Chowder Pot? (No.) And those strong, fruity drinks she favors - "You think they're yummy, don't you?"
"Do I have to take judicial notice," inquires the judge (meaning, grant that a term is generally understood), "of what yummy is? Next question]"
At which point the lawyer demands to know whether the woman drank two-thirds of her last drink, or was it really three-quarters? The judge draws his lips tight against his teeth; this is driving him crazy.
"You wanted to be on the floor, didn't you?" Bicki continues. To engage in "your activities" that night?
"Not my activities," says the woman.
"Your decision to lie on the floor," he calls it.
Strike that] says the judge to the stenographer when the state objects.
"When you were having sex with Phil O'Donnell," begins Bicki, but the woman indignantly objects to the phrase, which implies her active participation. Bicki, equally indignant, next refers to it as "having intercourse," and the woman rejects that, too. They go back and forth on this until the judge calls a halt - "We all know what's alleged here."
"You know, folks," he says a few minutes later, his patience worn thin, "I've given everyone a long leash, but I'm about to pull it tight. If I don't regain control of the flow of evidence, you're gonna see a very unhappy judge and I don't think you want to see that."
* * * * * *
What was going on out there? the judge is asked later in his chambers. Why would a defense lawyer seemingly go out of his way to antagonize the judge who will determine his client's fate?
Williams nods wearily. He wishes Bicki's partner, Susan McGuirl - whom he once recommended for a Superior Court judgeship - was handling more of this trial.
But it's all right, he says. None of this will affect how he rules. Like every jury he's ever seen, he'll cut "through the lawyering" to get to the issue before him.
* * * * * *
FRIDAY, JUNE 12
Today, the state plays a tape recording of Jack Capizzano being interviewed by the state police about the incident at the Yellow Kittens.
It's this statement that caused Capizzano's trial to be severed from the first, because the judge says it implicated McGovern and O'Donnell.
On the tape, Capizzano is heard quietly responding to the lieutenant's questions. He is clearly nervous - twice, he asks to pause the tape to compose himself - yet he never wavers from his assertion that the woman was a willing participant in the sex acts.
Asked about the behavior of his friends, he is vague. But as the judge will later observe, "artful interrogation" by the officer elicits "the truth," namely, that all three men were involved.
Under cross-examination Capizzano says his feeling was, "Let them speak for themselves."
On the tape, he sounds protective, too, of the young woman who has accused him - "I wanna be a friend. I value our friendship."
What happened that night "was a tempting thing," he explains, with a stammer, "but it was just out of the ordinary . . . it wasn't an ordinary thing."
The word he chooses to sum up his feelings afterward is: "Yuck."
* * * * * *
The state rests - without calling to the stand the parade of bartenders it did in the first trial. This spares the judge the tedium of their recollections: who sat where, how dark or light the bar was, whether the Jagermeister dispenser was unplugged or not. ("They no more want to hear from those witnesses than the man in the moon," Williams later surmises.)
Immediately, Susan McGuirl moves to dismiss all the charges.
Echoing her client, she says: "If there's a word to describe this whole trial, it is yuck."
And yet, she contends, Capizzano is "a decent person, a caring person, a responsible person." His attentions to the complaining witness in her apartment were attempts "to comfort and reassure her."
"He was trying to do the decent thing for his friend, his employee," and his statement to the police is "an admission of regret, not guilt." Indeed, she argues, his statement "exonerates him."
The alleged victim, McGuirl continues, is a "confident, self-assured" woman who knew her own mind and could surely deal with any unwelcome advances.
The notion that "all of a sudden, she gets deathly sick" and "happens to collapse" where she did, in front of the three men, says McGuirl, is simply "incredible."
* * * * * *
The judge doesn't see it that way.
"I'm beyond that," he says in his chambers. "She is a credible witness."
Still, he will throw out the two counts of first-degree sexual assault, because the evidence of helplessness is simply not there, he says - not beyond a reasonable doubt.
The medical report, which he read to himself on the bench today, is especially persuasive, he says, as it includes no mention of helplessness, only grogginess.
"Let's do it, let's wrap it up," he tells Erika Leigh Kruse, his law clerk, at lunchtime. "Not guilty. Motion to dismiss granted on one and two."
He reserves judgment on the second-degree, breast-touching charge; he wants to hear more on it. At the moment, it seems plain to him that Capizzano was looking to finish the job he'd started on the floor of the bar - "Do I have to be some off-the-wall freak not to figure that one out?
"I don't think there's any question about it," he says. "At least as of the present state of the evidence, there's enough to survive a motion to dismiss."
Although he will dismiss the sodomy charge this afternoon (on constitutional grounds, as he did in the first trial), he'll mull the other decisions over the weekend and rule on Monday.
"I think I'm gonna do it and I think I'm gonna be comfortable with it," he goes on, "and I don't think I have any regrets. I'm terribly sorry this happened, but am I the social worker here? Was I present? Was I on the floor? Was I drunk? She wasn't drunk, she had a buzz on - take her at her word."
So is he saying, then, that she lay down on the floor to have sex?
"I don't know," he says. "Do I have to know that? That gets me into whether or not I believe what was said by Capizzano in his statement, with her saying, 'I love it.' "
And does he believe him?
"I don't know. I don't have an answer for that. I don't think I have to go that far."
He gets up from his desk, shakes his head.
"Whether the witness knows it or not, I'm saving her the misery. She'll never understand this. That's what breaks my heart. She'll never understand." No, he says, she won't think she got a fair trial - "Not right now, maybe someday, I hope.
"I see her mother crying all the time. You gotta be really cold-hearted not to be impacted."
So many mothers have sat in that gallery, he says, watching their children come up against the law, and "they kill me, they always do, the mothers. Even when the defendants are bad guys. The mothers are there, you know? 'What did I do wrong?' "
"Maybe they shouldn't have been charged in the first place. Maybe it was a bad judgment call. And we" - judges - "get stuck with being the final arbiter]"
* * * * * *
MONDAY, JUNE 15
Though his nine-page decision clears Capizzano of the two primary charges, the judge blasts him - and his friends - from the bench. And he expresses empathy for the young woman, commending her for her "candor and credibility."
The men's behavior was "disgraceful, dehumanizing and morally reprehensible," he says, and ought to be criminalized by the General Assembly.
This upbraiding is no comfort to the young woman's mother, whose shoulders heave with sobs.
Richard Bicki, for his part, is upset for a different reason. In a sidebar conference, he asks the judge to recuse himself, contending that he is prejudiced and cannot rule impartially on the remaining second-degree charge.
"DENIED]" says Williams. He exits the courtroom through a door behind his chair, but not before rubbing the forehead of his favorite bust of Lincoln - "just to connect."
* * * * * *
How Williams would love to wrap this up by Wednesday.
But the defense is resisting the judge's attempts to streamline the process. Bicki wants to call some of the same witnesses who testified in the first trial, saying they'll prove the young woman isn't credible.
"That's when I had a cat fit and two dog fits," says Williams of their sidebar conference, "that we weren't going to retry Block Island I, or counts one and two of this trial."
He compromised by allowing Bicki to enter transcripts.
"I just remember what Justice (Maureen McKenna) Goldberg told me when she was a trial judge: Better to let it in than to exclude it. It just gives the Supreme Court another ground to reverse."
In the end, Williams also relented and "out of a sense of fair play," told Bicki he may call some of the earlier witnesses, but only if he asks them specific questions about Capizzano's conduct, and doesn't take too long.
Another hornet's nest is Bicki's insistence on calling character witnesses to testify to Capizzano's veracity - without first putting Capizzano on the stand, a violation of the rules of evidence.
The way Bicki sees it, says Williams, Capizzano did testify, by way of his police statement. "And that's when I blew my top again . . .
"I said, 'Not in this court] He's gonna have to get on the stand in this trial for you to bring in character evidence.' "
The judge looks beset.
"Just hold your breath and say a novena tonight that we can get through this without my killing anybody."
* * * * * *
TUESDAY, JUNE 16
Chicken with Artichokes. Pasta with Uncooked Tomato and Olive Sauce. Spaghetti with a Handful of Herbs. Salad of Tart Greens with Prosciutto and Pine Nuts. Lemon-Lime Tart with Raspberry Sauce.
Today, the judge is cooking.
After a half-day of testimony by defense witnesses - McGovern, O'Donnell and two bartenders - Williams has adjourned to keep a commitment at Johnson & Wales University.
In the school's spacious TV studio, Williams - who has twice won prizes in the state's annual Men Who Cook contest - tapes five short "Cooking with Class" segments for Channel 10.
Kruse and two other women from the judge's staff have come along.
"Pardon my moaning," says Kruse, sampling the tart greens salad as the judge (worrying everyone by cooking in his flammable-looking, wide-sleeved black robe) prepares the next dish.
"I knew I was the luckiest clerk there ever was," she says, working her fork, "but this just confirmed it."
* * * * * *
WEDNESDAY, JUNE 17
Did you have oral sex with the complaining witness? Bicki asks Jack Capizzano when he finally does take the stand.
"Uh, yes," he says, as his accuser faces him from the front row of the gallery.
Did she say anything during it?
"She was saying, 'I love this,' " but then, he says, she laughed, so he stopped. "I wasn't sure how I felt. . . . It was all just a nutty time."
Capizzano, a Westerly-born carpenter turned restaurant owner, seems as meek as his lawyers have painted him.
No, he says, he wasn't aroused when he left the Yellow Kittens for the young woman's apartment - "After the laughter and when she puked, it was just a turnoff."
He says he did sit on her bed and rub her back, but asserts in his firmest voice yet that he never touched her breast.
* * * * * *
The defense rests. McGuirl renews her motion to dismiss. And the state makes its closing argument.
"Well, it's been a long patrol for all of us," Williams announces to the courtroom.
He promises to keep an open mind as he weighs everything in the record, and to deliberate as long as he needs. Most likely, he'll have a ruling by tomorrow.
"What I might do," he says, flopped across a chair in his chambers, "because I'm a morning person, is go home, have a glass of merlot, play with the dogs - thinking about it, of course - go to bed early, get up at 3 and finish my process."
* * * * * *
THURSDAY, JUNE 18
"Well, at 6:30 this morning," he says, "I formed a reasonable doubt."
And by 6:45, he says, he was in his chambers, dictating a draft to Kruse.
It's 8 now, and Kruse is tapping away at the laptop computer in the corner, while the judge thumbs through Lincoln books in search of a proper quote.
What is his doubt about?
"Any number of things," he says. Why are Capizzano and O'Donnell with her when she's changing into her pajamas - "She should've thrown 'em out, or could've thrown 'em out." Why is Capizzano sitting on her bed, given what happened a few minutes before at the Yellow Kittens?
Even before Capizzano touched her back, Williams says, she failed to signal her annoyance - as in: " 'Don't get close to me, don't touch me' " - although she had opportunities to do so.
He and Kruse work for 3 1/2 hours more, then the sheriff orders all to rise, and the judge - heightening the drama by cautioning against outbursts - delivers his ruling.
* * * * * *
"This, too, shall pass," he concludes.
But not soon enough for one of those suffering mothers who make Judge Williams's heart ache.
"You did this with intent]" she shouts at Capizzano, who looks mortified. "You will pay someday]"
And no, she tells the Journal-Bulletin, her daughter did not get a fair trial.
* * * * * *
In a few minutes, Judge Williams will be back on the bench, handling his regular criminal calendar.
He looks over the docket. It's quite a crop of miscreants today - an alleged parole violator, alleged penis-toucher, alleged intoxicated woman carrying a pistol without a license. A few people are in for progress reports by the probation department. The good ones, he'll praise. The iffy ones, he'll threaten with jail time - as in, "Next time, bring your toothbrush."
Right now, though, he's just sitting at his desk, looking tired and sort of sullen.
The Block Island rape case is over, he's reminded.
"It is? Sometimes I wonder," he says. "Despite my 'this, too, shall pass.' "
Doesn't it feel over?
When will it be over?
"I don't know. It's over, legally. But law, like I've said - justice, the law - it's all wrapped together with the relationship of people. And the relationship of people may never heal in this case, may never be forgotten.
"In a sense," he says, "it will never be over.''