“No, sir.”
“Had you done any business for Mr. Fritch?”
“I was—no, not for Mr. Fritch, no.”
“He had consulted you in connection with a business matter shortly before his death?”
“I will express it this way, Mr. Mason. I know what you’re trying to get at and I’ll say—”
“Now never mind trying to anticipate what I’m getting at,” Mason said. “I have asked you a simple question. I want you to answer it.”
“Well, I was not representing J. J. Fritch.”
“Whom were you representing?”
“I actually was not representing anyone.”
“You were trying to get Sylvia Atwood, the sister of the defendant, to retain you?”
“Yes, sir.”
“For what purpose?”
“To secure possession of a tape recording which I felt might be quite damaging to the family.”
“Who originally approached you in that connection?”
“I approached Mrs. Atwood.”
“Who originally approached you?”
“Mr. Fritch.”
“What did he want?”
“He thought that it might be possible to get some money out of the Bain family in return for a tape recording.”
“You had heard that tape recording?”
“Yes, sir.”
“Did you know there was more than one tape recording?”
“Well—there had been—I believe there was only one original.”
“But you did know that one or more copies had been made?”
Moon was on his feet. “Now, Your Honor, I am quite certain this cross-examination has gone far afield. Counsel is trying to present his own case by cross-examining my witness. Counsel will hear plenty about that tape recording in a short time when Counsel is called to the stand to explain how that tape recording came to be in his possession.”
Judge Kaylor said, “The Court is going to ask Counsel to refrain from these acrimonious, sarcastic personalities. The objection is sustained.”
Mason smiled at the worried Brogan.
“Thank you, Mr. Brogan,” Mason said. “That’s all.”
“No further questions,” Moon said. “Call Dr. Hanover.”
Dr. Hanover came forward, was sworn, gave his name, residence and occupation, and a brief summary of his professional qualifications.
“I ask you, Dr. Hanover,” Moon said, “if you were present when a body was identified by Mr. George Brogan, the witness who has just left the stand?”
“I was. Yes, sir.”
“That was the body that he has now identified as being that of J. J. Fritch?”
“Yes, sir.”
“Doctor, when did you first see the body in question?”
“At approximately nine-forty on the morning of the seventh.”
“Did you at that time make preliminary tests to determine when death had occurred?”
“I did. Yes, sir.”
“And what did those tests show?”
“That death had occurred between midnight and three o’clock in the morning of that same day.”
“Did you subsequently perform a post-mortem on that body?”
“I did. Yes, sir.”
“Doctor, I don’t want a technical description of what you found—I want you to just tell the Court in plain, ordinary language as to what you found was the cause of death.”
“The cause of death was a series of eight puncture wounds which had penetrated the chest cavity. Four of those wounds had been made from the front and two of them had penetrated the heart. Four of the wounds had been made from behind. One of them had penetrated the heart, two the lung, one had failed to penetrate because of striking the clavicle, or shoulder blade.”
“Those wounds caused the death?”
“Yes, sir.”
“An immediate death?”
“That depends on what you mean by the word immediate. I would say that the immediate effect of the wounds was to cause the man to fall forward, to become helpless. Death ensued within a relatively short time.”
“Now then,” Moon said, “I’m going to ask you if you are acquainted with a phenomenon known technically as post-mortem lividity?”
“I am. Yes, sir.”
“Will you please explain what is meant by that?”
“Yes, sir. After death, when the blood ceases to circulate in the body, it naturally has a tendency while it is still fluid to settle to the lowest portion of the body. This causes a congestion of the blood vessels in the underside of the body, and as the blood undergoes the changes which are associated with a cessation of circulation, I might say a stagnation if I were to use a term that might make it more understandable, there is a discoloration or a lividity in the portion of the body affected. To the uninitiated that may seem to be a bruise.”
“Now, Doctor, where does this post-mortem lividity form?”
“Upon the parts of the body that are affected by the settling of blood due to gravitational attraction.”
“You mean by that the lowest portions of the body?”
“That is correct. Speaking from a standpoint of body position and not from a standpoint of anatomical structure. In other words, if the body is left lying on its back the postmortem lividity will appear along the muscles of the back, particularly the places where the skin is pressing against some object.”
“If the body is lying on its stomach the post-mortem lividity will not be on the back?”
“No, sir.”
“And if the body is propped in such a position so that it is sitting straight up, would you expect to find a post-mortem lividity between the shoulders or along the back of the neck?”
“No, sir.”
“Did you find any post-mortem lividity on the body of J. J. Fritch?”
“I did, sir. A very well defined post-mortem lividity.”
“And where was this located? I’m going to ask you, Doctor, just to indicate and explain in ordinary language if you will, please, disregarding anatomical terms as much as possible.”
Dr. Hanover placed his right hand to the back of his neck between the shoulder blades, said, “There was some postmortem lividity here and in two or three places along the back.”
“What did this post-mortem lividity indicate to you as an autopsy surgeon and an experienced pathologist, Doctor?”
“That the body had been lying on its back.”
“Now what about rigor mortis?”
“Rigor mortis had set in to the extent that the arms and shoulders were locked in rigor mortis, but rigor mortis had not as yet proceeded to the legs.”
“That is, when the body was found?”
“Yes, sir.”
“Returning to post-mortem lividity, Doctor, when does it begin to form?”
“Under most conditions this discoloration will begin to be apparent from one to two hours after death.”
“And what can you tell us about the development of rigor mortis, Doctor?”
“Rigor mortis develops first in the face and jaws. The onset usually takes place in this area in from three to five hours after death. The rigidity gradually extends downward, involving the neck, chest and arms, abdomen, and finally the legs and feet. For the entire body to be involved usually requires a period of from about eight to twelve hours after death.
“However, rigor mortis is a variable factor. It depends somewhat upon circumstances, perhaps somewhat upon temperature.”
“From your observations, taken as a whole, Doctor, can you fix the time of death of the body in question?”
“Yes, sir. I can fix it within a period of three hours.”
“And those three hours are what?”
“Between midnight and 3:00 A.M.”
“Cross-examine,” Moon said.
“Did you,” Mason asked, “fix the time of death solely from the development of rigor mortis”?
“No, sir. I did not.”
“Did you fix it from the pos
t-mortem lividity?”
“Definitely not.”
“Let us suppose that a body had been lying in one position long enough for post-mortem lividity to have formed. Then someone moved the body. Would that change the postmortem lividity?”
“Definitely that would not. When the blood has once settled there is a certain amount of clotting which takes place in the tissues, so that if the body is moved after this has taken place the original lividity will still be present.
“As one of the outstanding authorities has stated in a book on the subject, when a dead body is found with post-mortem lividity on the upper surface of the body the investigator can be sure that someone has moved that body from its position at a time at least several hours after death occurred. There again, Mr. Mason, when I refer to the upper portion of the body I mean the upper positional portion rather than the upper anatomical portion.”
“I understand,” Mason said. “As I understand it, Doctor, you are not basing your conclusions as to the time of death entirely on the post-mortem lividity?”
“No, sir. That is a factor, but post-mortem lividity and rigor mortis are somewhat indefinite factors. Rigor mortis varies considerably in connection with the time of development. If a person dies after a fight, or after extreme muscular exertion, rigor mortis may set in very quickly. For myself I consider it rather dangerous to try to predicate a conclusion as to time of death entirely upon rigor mortis.
“That, of course, refers to fixing a time of death within the narrow limits of one hour, two hours or three hours. Of course, over a longer period of time a person can make an estimate, and a very accurate estimate, for instance, a six-hour period during which death must have occurred. After twenty-four hours, if certain characteristic changes in rigor mortis are present, I would say that it would be possible to draw a conclusion as to a six-hour interval during which death must have taken place.”
“But in this case you are fixing it within a three-hour period?”
“Yes, sir.”
“Doctor, you probably know your own mind better than anyone. I’m going to ask you if you are prejudiced against the defendant in this case?”
Dr. Hanover gave the question frowning consideration. “Well, of course, I have an opinion as to the guilt or innocence of the defendant.”
“You think she is guilty?”
“I do.”
“That is a fixed opinion in your mind?”
“It is.”
“Due to investigations you have made?”
“Investigations I have made and investigations that have been made by others and the results of which I know.”
“Therefore you are prejudiced against the defendant?”
“I don’t think I am prejudiced against her. I have an opinion as to her guilt.”
“And as a citizen you would dislike to see a guilty defendant escape the penalty of her crime?”
“That is right.”
“Therefore, since you feel the defendant is guilty, you are anxious to see that she pays the penalty?”
“I suppose that is true.”
“So that in giving your testimony you would naturally try to give it in such a way as to bring about the greatest prejudice to the defendant’s case?”
“No, sir, that very definitely is not correct.”
“I am not talking now, Doctor, about altering the facts. I am talking about the manner of giving your testimony.”
“Yes, sir.”
“Now, Doctor, may I ask you what factors you have taken into consideration in connection with fixing the time of death during this three-hour period?”
“Two factors,” Dr. Hanover said. “The time element involved in connection with the ingestion of a meal, which I naturally assume was a normal evening meal, and the temperature of the body. The temperature factor I consider an absolute index.”
“You didn’t mention either of these matters on direct examination, Doctor.”
“I wasn’t asked about them.”
“You were asked as to fixing the time of death?”
“I was, and I fixed the time of death.”
“Now, Doctor, did you know that you were not going to be asked about these two other factors on your direct examination?”
“Oh, Your Honor,” Moon said, “I think this is not legitimate cross-examination. This is nagging at the witness, bickering with the witness. This is splitting hairs with the witness. This is dragging in completely irrelevant matters.”
“No, it isn’t,” Mason said. “This is going to the question of the bias of the witness.”
“He has already testified that he thinks the defendant is guilty, and he wants to see her convicted,” Moon said.
“Exactly,” Mason retorted, “but he has also sworn under his oath that the prejudice didn’t in any way affect the manner in which he gave his testimony. I now propose to show that it has affected the manner in which he’s giving his testimony.”
“Just how do you mean, Mr. Mason?” Judge Kaylor asked.
“I propose to show,” Mason said, “that Dr. Hanover deliberately refrained from making any statement as to the factors by which he fixed the time of death on direct examination because he had an understanding with the prosecutor that he would carefully refrain from mentioning those two factors on direct examination, thereby trapping me into cross-examining him on the element of time. He felt he would be in a better strategic position to harm the defendant’s case by doing this on cross-examination rather than on direct examination.”
“The objection is overruled,” Judge Kaylor said.
“Can you answer that question, Doctor?” Mason asked.
Dr. Hanover suddenly became uncomfortable.
“Well,” he said, “I had, of course, discussed my testimony with the authorities.”
“By the authorities you mean the deputy district attorney?”
“And the police.”
“But with the deputy district attorney?”
“Yes, sir.”
“And did the police tell you anything about the manner in which you were to give your testimony?”
Dr. Hanover rose at once to the bait. “Absolutely not, sir. They did not. There is absolutely nothing to justify that insinuation.”
“Did the deputy district attorney?” Mason asked.
Abruptly Dr. Hanover became embarrassed. “Well, there was a general discussion as to what my testimony would cover.”
“Wasn’t there a specific discussion that you would say nothing on direct examination as to the manner in which you fixed the time of death, that you would simply give a flat opinion that death occurred between midnight and three o’clock in the morning, that you would purposely refrain from elaborating on your reasons, and that when I cross-examined you you would then be in a position to crucify me?”
“I don’t think the word crucify was used.”
“But its equivalent?”
“Well, I will say that I was instructed to—no, instructed is not the right word. I am somewhat at a loss for the right word. It was agreed that I would withhold testimony as to details until the questions were asked on cross-examination.”
“Forcing me to lead with my chin?” Mason asked.
Dr. Hanover smiled. “That is a slang expression which was not used.”
“All right, what was the slang expression that was used?” Mason asked.
Dr. Hanover abruptly shifted his eyes and remained silent.
“Oh, Your Honor,” Moon said, “I think the exact words are immaterial. Dr. Hanover has certainly given Counsel the point Counsel was trying so laboriously to make.”
“I want the exact words,” Mason said. “I think I’m entitled to have them. I think it has a bearing on the attitude of this witness.”
“The objection is overruled.”
“What was the exact slang expression that was used?’”
“Nail you to the cross,” Dr. Hanover blurted.
“So that when you smiled in rather a superior manner a
nd said that the word crucify was not used, you were taking advantage of a technicality?”
“I object to that question as argumentative,” Moon said.
“Sustained,” Judge Kaylor ruled. “The facts speak for themselves.”
“Now then,” Mason said, abruptly shifting his tactics, “you stated that the immediate effect of the wounds was not to cause death but would cause the man to fall forward and become helpless?”
“I believe I so testified. Yes, sir.”
“That is your opinion?”
“Yes, sir.”
“Fall forward!” Mason asked.
“Yes, sir.”
“Why do you assume he fell forward rather than backward?”
“Because I am assuming that the four stab wounds in front were the first wounds and that after the man fell forward the other four wounds were inflicted while he was lying on his face.”
“And why do you assume that?”
“Why, because it’s—it’s natural.”
“And why do you say it’s natural?”
“Well, frankly, there is nothing about any of the wounds that would enable me to tell the order in which the wounds had been inflicted. They were all inflicted at approximately the same time, that is, in what I would judge a rapid sequence, but if the man was stabbed in the heart and fell forward it would be impossible to inflict any more stabs in the front, and the remaining four stabs would have been in the back.”
“Unless,” Mason said, “the first four stabs had been in the back and the man had fallen over backward, in which event the remaining four wounds would have been in the front.”
“Well, have it that way if you want to.”
“I don’t want to have it either way,” Mason said. “All I want to bring out is the fact that beyond mere surmise and conjecture you know nothing as to the order in which the wounds were inflicted or whether the wounds in front were first or those in back were second.”
“I was assuming that the wounds in front were made first, but I will admit, Mr. Mason, that I cannot testify to that.”
“And yet you have just testified that the post-mortem lividity indicated the body had been lying on its back?”
“Well—yes, when the body finally came to rest.”
“And death presupposes that?”
“Oh, I suppose so.”
“So then the evidence you have uncovered from your examination indicates the first four wounds were the back wounds.”
The Case of the Green-Eyed Sister Page 16
