An Unspeakable Crime

by Theresa Lorella

  “I have to agree with you, but could you not have just told him as much?”

  “I don’t think so, John. I don’t think he would have heard me. The best thing I can do for him is scare him into understanding. And I want that level of fear reappearing the next time we are in the courtroom and he feels inclined to get imperious again. Imagine him standing up during testimony he doesn’t like and waving his damn inbred name around like a king’s banner. It will put him in the ground. I scared him to save him, John.”

  Marshall laughed. “It makes perfect sense, but I have to admit that it is a rather radical option.”

  “I am radically trying to win this case, John.”

  ******

  Patrick Henry couldn’t find his bed fast enough that night. This was a terrible case, and he rued the day he had become involved. The prestige of the Randolph name, the promise of that elusive payment had swayed him. After hearing the Commonwealth’s opening, all he wished for was sleep. There would be no all night scrambling to redraft an argument full of counterpoints and clever repasts—he would leave that to the studious Mr. Marshall. Henry didn’t need to cram to find his answer, he needed rest. He wanted a break from these people and their problems, all of their own making.

  The fact was that the version of the Randolphs presented by the prosecution made Henry a little sick. He was too old to be dealing with such salacious details and people. He should be approaching retirement and relaxation, not trying to clear a man of murdering his own baby. Even the charges against him were in poor taste. Richard seemed like a respectable enough young man so how and why had he found himself in this position?

  Sleep was fitful and fleeting as Henry mulled that point: This problem was one of the Randolphs’ own making. They not only (allegedly) had pushed the bounds of decency by living in some level of sin, but they had made their indiscretions public by carrying on as they did at Glentivar, while visiting the Harrisons.

  Henry shot bolt upright in his bed. Why would Richard and Nancy choose a trip to someone else’s home to behave in such a way? Well, he supposed, in his experience babies had a terrible habit of coming when they wanted, not when it was convenient. But still why would Nancy travel if she was about to give birth to Richard’s child and why would she travel at all if she and Richard planned on murdering the child to destroy the evidence of their indiscretion? None of it made sense.

  Henry sat back against his pillows with a thud. He had thought he was onto something but it had only proven to create more problems than solutions. Sleep would be an inconstant companion for the next several weeks.

  ******

  The Virginia Gazette

  Matthew Dickson

  Oh, to be a Randolph! While we heard just the opening statement from the prosecution, things could not look worse for Richard Randolph of Bizarre. As the Commonwealth read a veritable litany of Richard’s alleged misdeeds, his partner in crime and supposed paramour was nowhere to be seen. Will she appear as the case goes on? Perhaps, in full dramatic style, they will drag her into the court in chains, forced to pay for her crimes. As it is now, Miss Nancy Randolph has allowed Richard to take the fall for the scandalous events of October last at Glentivar house.

  But why should he not take the blame? He who is accused of seducing his wife’s young sister, he who is accused of murder most foul? While we do not know what the future holds, this trial will keep us all guessing at the bizarre doings of the Bizarre Randolphs.

  CHAPTER SIX

  IN EVERY CASE HE had ever defended, Patrick Henry found the state’s case in chief to be remarkably stressful. Other attorneys disagreed—and apparently John Marshall was one of them—as the full burden was on the powers that be to plead their case beyond a reasonable doubt. It was the prosecutors’ job to convince the men of the jury that right was on their side. All he had to do was sit there and listen.

  But it was so much more complicated than that.

  First, he had to listen to everything that was being said and everything that was left unsaid. It was this latter category that proved to be the most difficult. Were facts omitted on purpose and was that because they were helpful to the defense? Or even better, hurtful to the Commonwealth? Were things left unsaid because they had been forgotten and thus it was best to leave them unsaid? While playing this game, Henry also had to listen to determine if the Commonwealth presented any evidence or argument that was objectionable and then make the same determination as with the omitted facts—was it better or worse to point out anything improperly before the court? Could Henry spin the improper testimony so it could be turned and used against the prosecution so they wished he had objected all along? It was an elaborate dance that began with the Commonwealth’s first witness and one that was not any easier when a person had suffered a restless night of fitful sleep. But Patrick Henry was a professional, a practiced litigator who knew all the steps expected of him to perform. And in the Randolph case he also had the benefit of the great mind of John Marshall to help pick up any slack.

  The men had agreed that they would divide up labor on a day-by-day basis, listening to the prosecution’s evidence and determining who’s strengths applied best to the task at hand. So far this strategy had worked well; neither attorney had stepped on the toes of the other. But little had happened yet and what had occurred thus far in court had provided no reason for disagreement.

  Neither man felt it was prudent to make any objections during the prosecution’s opening statement and so both had remained straight-faced and silent during the Commonwealth’s short but sensational statement. Either could have objected several times throughout that the prosecutor was delving more into the unsavory details of their wives’ gossip rather than listing facts to be presented by witnesses. Either could have pointed out when the prosecutor veered off fact and argued on the Commonwealth's behalf, but neither said a single word. Both had done this enough times to know that objections during opening statements were tantamount to indelibly branding those very facts in the jury's mind. They both also knew it was often a boon for the defense that the prosecution over-promised the facts that their witnesses would provide; a skilled defense attorney would point out the omission to the jury as proof that the state couldn’t even prove the theory of their own case. Things usually unraveled from there for the prosecution’s case.

  And so it was that Patrick Henry and John Marshall were in agreement that their strategy during the Commonwealth’s opening would be to sit in companionable silence and allow the prosecutor to say anything and everything that came to his mind. They would compare notes after and look for holes, but they would not draw out attention to anything that alarmed or worried them while the justices and the public watched and listened. Nor would they follow immediately with their own opening statement—instead they deferred it to the beginning of their own case in chief. It was likely that what they would argue then would differ from what they would argue at the beginning of the case. In fact, they may even waive an opening statement all together. Sometimes, it would seem, less is more.

  But now that the Commonwealth had giving their opening statement, Henry and Marshall had to be on the ball at every moment, listening, thinking, planning. On top of this, they had to manage their client’s expectations and reactions and, in Richard Randolph's case, attempt to keep him under control. Marshall designated Henry as the outburst detractor in chief, thus allowing Marshall to have his attention and hands free to make notes as the case progressed. Something he would need energy to achieve adequately.

  It had been another nearly sleepless night in the Henry household. He had taken to spending the greater parts of his nights trying to memorize everything he knew about that fateful night at Glentivar. It wasn’t much as his client had remained rather tightlipped, which suited Henry’s purpose. It was the prosecution’s job to provide details and his task was to discredit as many of the same as possible. But he needed to understand what had happened—or not— to organize the facts in his head. Try as he might, hi
s nocturnal attempts seemed to result in nothing more than additional questions and few facts that made any sense at all. He knew the Commonwealth could argue the mess that was Glentivar in so many ways that his only real plan was to sit back and listen to what the witnesses had to say about their very own.

  So, as Henry settled into his seat, fighting off exhaustion, he braced himself to hear Virginia’s first witness against Richard Randolph. The first such person the Commonwealth called to provide testimony for the prosecution was the host of the Randolph party on the night of the alleged infanticide, none other than Randolph Harrison.

  ******

  The Testimony of Randolph Harrison

  The Commonwealth of Virginia (C of V): Mr. Harrison, we thank you kindly for taking the time to come and testify to this court.

  Randolph Harrison (RH): I was not aware of the fact that your request was voluntary. But I thank you for your kind words.

  C of V: Of course, of course. How do you know the defendant, Mr. Richard Randolph?

  RH: He is one of my cousins.

  C of V: And do you know Miss Nancy Randolph, sir?

  RH: Yes, she’s also a cousin.

  C of V: And so it wasn’t terribly out of the ordinary to have your cousins over to visit at Glentivar, correct?

  John Marshall: Objection your honors. The Commonwealth was being argumentative. And leading the witness.

  C of V: Pardon me, Mr. Marshall? I was simply making a point.

  JM: That’s exactly what I am objecting to, in fact, Mr. Smith. Your question was making a point rather than asking a question. That is not meant to occur.

  Henry found this interchange to be quite fascinating. Without a doubt the prosecutor was making some sort of meaning-laden point with his question, but there was nothing about the question on its face that gave any reason for the court to sustain Marshall’s objection. Nor was there any reason for Marshall to even worry about the question presented. There was no denying that the Randolphs were at Glentivar Plantation. Henry also realized at that moment that it didn’t seem to matter that he, Henry, was supposed to be doing the objecting that day. Justice Carrington broke into Henry’s thoughts

  “Mr. Marshall’s objection is sustained. The Commonwealth’s question is stricken.” At that Henry understood his co-counsel’s reasoning—the Smith was absolutely flummoxed, if only for a moment. It had all been a strategy. Well, perhaps the brain was sneakier than he let on, Henry smiled to think.

  C of V: Did you, uh, have the Randolphs to your home often?

  It wasn’t a controversial question, but now just a bit of the prosecutor’s bombast had been knocked out of him. The lack of confidence spread to his witness.

  RH: Well, um, yes. That is, no, but when we could.

  Justice Carrington: Is that a yes or a no, Mr. Harrison?

  RH: That is a yes, more or less.

  Henry could sense Marshall’s pleasure even through the barricade of the man sitting between them. They had decided that Marshall would deliver the eventual closing argument on behalf of Mr. Randolph and Henry knew the mastermind was likely already crafting an argument about how reasonable it would be to have doubt about the prosecution’s case when even their primary witness couldn’t seem to answer a single question without waffling.

  It was a nuance, but one that Henry approved of wholeheartedly. It just could not be overdone or the panel of justices would catch on that the more experienced litigators were taking advantage of the fact that the Commonwealth’s attorneys were not as well-versed (or as calculated in their approach) as counsel for Mr. Randolph. This did not concern Henry as it was perfectly acceptable—in fact it was perfectly American—that a man facing a sentence of death should have in his corner the best counsel available and that they should be allowed to conduct a defense using every means necessary. Within legal means, of course. Henry was fastidious that neither he nor his client ever lied to the court. He turned his attention back to the testimony.

  C of V: So yes, you saw the Randolphs of Bizarre relatively frequently?

  RH: Yes, I suppose so.

  Henry noticed Smith visibly sigh with frustration. He knew where the prosecutor was going with this and he strongly doubted this was how his opposing counsel hoped that initial questioning—on their first witness no less—would be going.

  C of V: And so, since you had the habit of seeing the Bizarre Randolph family, you could tell us if anything seemed different about them when they arrived to Glentivar on October 1, 1792?

  RH: Um, well. I suppose that there didn’t seem to be anything out of the ordinary. I did not anticipate any problems if that is what you mean.

  C of V: Was there anything of note regarding the interactions between Nancy and Richard upon their arrival? Anything unusual perhaps?

  RH: Well, they were very attentive to each other, but that was not unusual. I don’t mean to give the wrong impression.

  C of V: You need not worry about impressions, Mr. Harrison, just the facts. As you mentioned, Nancy and the defendant were very ‘attentive’ the one to the other?

  RH: Yes, well, I suppose so, yes.

  C of V: And anything of note between Nancy and Mrs. Randolph—Judith?

  RH: No, although Judith has been quiet of late. She has a young one to care for, you see, so I am sure she is quite tired. She has been reserved, I suppose.

  C of V: Ah, so it would be your testimony that Judith differed from her previous demeanor. And how did Nancy appear on the day in question?

  RH: I don’t know that I would call Judith “different…”

  C of V: Just answer the question, please. How did Nancy appear?

  RH: Well, she seemed just fine, pleasant as usual. She did have an attack of colic later in the day…

  C of V: We will get to the colic, Mr. Harrison. What I mean to say is how did she appear? As in her physical appearance?

  RH: She appeared well. Is that what you are asking?

  C of V: Well, sir, I suppose I am asking about her appearance. To be exact, her physical appearance. Her size, sir.

  Henry smiled to hear the ladies in the audience gasp. Why, they were here to hear the gory details, yet found themselves scandalized by the prosecution’s question about whether Nancy had put on weight. As much as they liked gossip, they did not care for men insinuating rudely about a lady’s weight. Even if that lady was being accused of fornication and infanticide.

  RH: Well, I don’t mean to imply anything, but I suppose it would be fair to say Nancy was a little… increased… in size. I believe she was very upset about Theodorick. She had been ill about the whole thing.

  C of V: Theodorick?

  RH: Yes, Richard’s brother Theo. He had died recently. It upset her.

  C of V: All right, thank you, Mr. Harrison. Now, Miss Randolph—Nancy—she was noticeably larger. Could she have been with child, Mr. Harrison?

  Another gasp from the crowd. Wasn’t this exactly what they were here to hear? Henry was somewhat amused, but not enough to fail to lodge his objection, citing the Commonwealth’s request to have Mr. Harrison speculate about Miss Randolph’s state of fertility. The court sustained the objection, prompting Smith to ask, with no flourish, “Was Miss Randolph pregnant when she arrived at Glentivar?”

  RH: Well, I wouldn’t have known that before—I would never presume—but after what happened, I suppose that is a strong possibility.

  Both Henry and Marshall made furious notes in their notebooks. Henry would later cross-examine Mr. Harrison and he would flesh out this statement. A strong possibility does not equal certainty. Randolph Harrison would agree.

  C of V: And now, Mr. Harrison, please tell the court what happened after the Randolphs arrived at Glentivar?

  RH: Yes, well, Mrs. Harrison and I invited the Randolphs to make themselves comfortable. We put them upstairs in the two bedroom spaces—Mrs. Harrison and I would stay downstairs on makeshift beds to allow our guests to have the more comfortable space. Nancy had a separate room off the main room
that was being used by Richard and Nancy. I thought nothing odd of putting Nancy up in the space next to her sister, you see.

  Things were all fairly calm and normal until right before dinner; Nancy had been complaining—at first discreetly and then rather forcibly—about having stomach pains. Everyone assured me that Nancy had been suffering from a colicky stomach since Theodorick had passed. It seemed as if this was nothing but an episode of this ailment. Nancy did not join us for dinner and retired early.

  C of V: Did any of this seem odd to you at the time?

  RH: In all honesty, I did not think much about Nancy’s absence the rest of the evening, as she seemed to be in her room resting. Richard and Judith remained downstairs with Mrs. Harrison and myself through the evening meal and to catch up after. I don’t recall that we heard a single peep from Nancy. I remember that Richard went to check on her a few times before we all retired. He claimed he was doing so to allow Judith to remain downstairs to rest and to speak with Mrs. Harrison. It was good for her to be off of Bizarre for a while, he said. Each time he returned, Richard reported that Nancy was doing just fine. Although there seemed to be a pointed look between him and Judith that I noticed. I presumed that everyone was trying to be polite about any way in which Nancy found herself indisposed and did not ask or force anything further.

  C of V: What happened later, when you ended the evening?

  RH: I suggested that we all retire early as it seemed as if tension grew as the night went on. It had been a long day, and it was entirely possible that everyone was overly tired and worried about Nancy. I felt that we were losing Judith as the night wore on and so I feigned exhaustion and we all parted ways; Judith and Richard went up to their room and Mrs. Harrison and I remained on the main floor. My wife asked if she could check on Nancy, perhaps bring her something to ease her discomfort, but Judith squarely rejected the offer. Not wanting to impose, we did not insist further, at least not then.