An Unspeakable Crime

by Theresa Lorella

  Yet Henry did and said none of those things. Instead, he took a deep breath and said, “Objection, relevance,” which was a very succinct way of saying all the things he had just listed in his own head. And, to his favor, it was a listed rule used for this purpose.

  “Well, Mr. Smith, what have you to say to Mr. Henry’s rather… fervent objection?”

  Smith stood up with an air of aloofness that nearly knocked the still standing Henry back into his chair. This was quickly growing out of control. “Your honor, Mrs. Page will testify to personally having seen Miss Nancy Randolph’s pregnant body.” The courtroom collectively gasped. It was the first witness who would testify under oath to knowledge of Nancy’s alleged pregnancy.

  Henry did what he could to will color back into his face. “Don’t let them see any facial movements at all,” he told himself. Out of the corner of his eye, Henry saw Richard had put his head down in his hands. “Shit, shit, shit,” Henry chanted under his breath like a mantra. This client was intent on wrapping the noose around his own neck.

  The chief justice banged his gavel, trying to get the courtroom’s attention. Every person in the room had turned to the person beside him or her and all had begun to talk at the same time about this new piece of scintillation. Smith had very effectively led him into a trap: Of course Henry or Marshall would object to the calling of yet another seemingly useless witness. And once they did so, Smith could stand and “argue” his damning reason that the witness should be allowed. Because she had seen Nancy’s pregnant body. My God, even if the court sustained the objection and didn’t allow the witness, the damage was done. The entire world had heard there was a person out there who had seen Nancy and could confirm she was pregnant. It was a superb trial strategy. If Henry hadn’t seethed with utter hatred for Smith in that moment, he may have been inclined to shake the man’s hand after the proceedings and congratulate his ingenuity.

  As the courtroom’s chatter dimmed from shouted exclamations to whispered speculation, Justice Carrington continued to bang his gavel. Giving up, he screamed to the room, “This court will be in recess until tomorrow. We advise that all people in this courtroom observe silence upon commencement of proceedings.”

  “Objection your honor,” Henry was on his feet.

  “Mr. Henry, are you objecting to the court’s recess?” The chief justice raised an eyebrow while the other eight magistrates paused midway out of their chairs for a split second. It was unorthodox, it was ill advised. Henry saw Marshall shake his head no out of the corner of his eye.

  “Sir, it gravely prejudices my client to pause at this moment without giving me the opportunity to cross-examine the witness with said testimony. I ask that we move forward today so we can clear this up.” Henry knew very well that the justices would not change their minds. He didn’t care if they did. All Patrick Henry cared at that moment was that it would be over his dead body if the last thing the public thought about as they filed out of the court that afternoon were the words “Nancy Randolph” and “pregnant.” He would rather sacrifice himself—within reason—than give Smith the pleasure. Marshall must have figured out Henry’s plan; Henry saw now Marshall’s head slightly nod out of the corner of his eye.

  James Smith’s self-satisfied smirk had melted into an angry scowl. That’s right, Henry thought. You have been one-upped. He was so pleased with himself that Henry turned to the justices and said in his most conciliatory voice, “Your honors, upon second thought, I withdraw my objection. We will see you tomorrow.”

  “Your honors…” Smith began, to no avail. The chief justice banged his gavel, cutting off the prosecutor.

  “Mr. Smith, this court is in recess. There will be no more second guessing my order from anyone in this building.”

  “All rise,” the bailiff called as the justices filed out and the court marshal came to gather Richard to take him back to his cell. Rather than sit back down, Henry leaned across the aisle towards Smith.

  “Nice try there, young man, but kindly do yourself a favor and remember that you did not exactly invent the practice of law. You need to know who you are playing against if you wish to engage in games.”

  Smith turned a rather delightful shade of pink as Henry smiled benignly towards him. “How dare you, Henry? Don’t you know that everyone in this room is going home talking about Nancy Randolph?” So he did it on purpose, Henry thought.

  “Oh, I don’t know about that, Mr. Smith,” smiled Henry with a cool confidence that, frankly, he didn’t feel deep in his bones. “Seems to me they will probably talk about how the court told you to hold your tongue. And perhaps about this conversation here.” Sure enough, a handful of observers remained in the court, their eyes glued on the counsel tables, many whispering behind their hands to their neighbors. They could be talking about anything, but the visual was effective. Smith slammed back in his chair and literally swept the documents on his table into a large bag he used as a briefcase before he stormed out of the room without another word.

  As the emotional dust settled—and as John Marshall tried discreetly to stifle a laugh—Henry noticed the ever-present but now silent Jones still sitting at the prosecution table. “Pardon my behavior, Mr. Jones. It would seem that your colleague and I are in the midst of a power struggle.”

  Jones gathered his papers in a far more calculated manner as he smiled at Henry. “If I may say so myself sir, I’m uncertain why. There is hardly any comparison between you, I would think.” He paused. “I will trust that you won’t repeat that.” Another pause. “Nor will you presume that my great respect for you and Mr. Marshall means I will not do my job to win this case.”

  “Is your job not just to put on the evidence that the Commonwealth has at its disposal, not to ‘win’ per se?” Marshall opined, ever the calm legal scholar.

  “Sir, that is what I meant, please don’t think anything different.”

  “But your colleague would do anything to win, would he not? Whether or not the evidence is properly before the court?”

  “I think I have said enough, sirs. I will see you gentlemen tomorrow. It appears that we are to learn if Nancy Randolph was pregnant. In the meantime, I am going home to my own pregnant wife and a good warm dinner. Good night, gentleman.”

  ******

  While Jones may have been on his way home for a meal with his family, the night’s work was just beginning for Henry and Marshall.

  “The aunt will reveal that Nancy was pregnant, Patrick,” Marshall worried over a well-cooked pork chop in the boardinghouse dining room. “We need to plan how to deal with that.”

  “First things, first, John: While an aunt may imply that Nancy is pregnant, we don’t know that she will prove anything at all. There is already a presumption that Nancy was with child, hence the charge of infanticide. Nothing has changed.”

  Marshall smiled at Henry. “You realize that I know that despite your confidence—which I appreciate greatly—that you spend your nights lying awake in your bed thinking about this case. You are not feeling as sure about this aunt as you may want me to believe.”

  Now it was Henry who smiled. “No, I suppose not. But we don’t know what she will say or how convincing it will be. Let’s hope that I can come up with something clever to take the attention off her testimony.”

  “You are fairly confident, aren’t you?”

  “Well, I did well today, did I not?” Henry raised his glass of wine in a toast, unashamedly to himself. Marshall raised his glass in turn.

  “You did, but I think you came dangerously close to being held in contempt. Only the fact that Smith is so very obnoxious saved you. A fact you no doubt relied upon when you objected directly to a judge.” Marshall laughed again. This gave Henry some comfort; they were making a good team.

  “It was a calculated decision, my friend. And I knew that even if they held me in contempt at least that would be what both the jury and the public talked about all night, not the fecundity of one of the Misses Randolph.”

  M
arshall bit his lip. If Henry didn’t know better, he would presume that his colleague was choosing his next words carefully. Indeed, it seemed he was. “Well, that raises a question, Patrick. What if Nancy was, in fact, pregnant?”

  Henry was momentarily shocked but quickly realized that this had been his own worry all along. Something was not adding up. What if there was truth to the rumors? “I’ve thought about this, John,” Henry responded after a moment. “Let’s say she was pregnant. On the one hand, wouldn’t it be freeing to stand up in court and say, ‘yes, Nancy was pregnant, and here’s why?’ But we have a very, very serious problem if that is the case: How do we explain that for several months both she and Richard have lied. They lied by saying she wasn’t pregnant, they lied by hiding it from friends and family, and they very much lied about what happened at Glentivar. Because if she was pregnant when she arrived at Glentivar and not pregnant when she left, that scenario fits not only an alternate story but also Smith’s story.”

  John nodded slowly. “And so we ourselves would provide the argument that, rather than exonerate Richard, could drive in the last nail in this coffin.”

  Henry nodded. John saw the problem exactly. “We are damned if we do, damned if we don’t.” He paused in thought. “And, please forgive me for saying this, but if Nancy was pregnant, why didn’t they give up the ghost the night the moment she excused herself at Glentivar? Why try to hide that? It’s the lie—if there has been one—that will be their undoing, not the deed.”

  “Her reputation, I would think, Patrick.”

  Henry nodded. “Yes, I suppose. Although that may have been shot through at that point. So, do you think she was pregnant, John?” Marshall had seemed to know more than Henry from the get-go of this case.

  “I have had some worries about these two, Patrick, I must admit. Something has been wrong. But I assure you that I know nothing more than what I have told you. I would not put you in that position.”

  Henry nodded. “I know you wouldn’t, John. My worry is that our clients don’t share that same compunction.”

  Marshall frowned. “I suppose the real question is when will we learn the whole story.”

  “And what will we do with it once we do,” Henry added.

  Marshall was silent for a moment, playing with a loose thread on his jacket cuff. “Patrick?”

  “Yes, John?”

  “God help us both.”

  “John, amen to that. You know what would make this all the better?”

  “What is that?”

  “It would be nice to receive payment for this job. I swear, this is not enjoyable enough to be doing it for no payment. No offense at all to you, Mr. Marshall.”

  “None taken, Mr. Henry. I must once again agree with you.”

  Somehow this was not reassuring.

  CHAPTER THIRTEEN

  HENRY DID NOT MAKE it into court the next morning until both Marshall and Richard were already at the defense table. So too were both Smith and Jones seated at their respective table, quietly comparing notes.

  “Ah, Mr. Henry,” Smith sneered. “Nice of you to join us. Perhaps we can let the justices know that they no longer need to wait for you to get started.”

  Henry heard Marshall groan a little under his breath but Henry just smiled and responded, “Yes, Mr. Smith, I am ready for them.”

  The young prosecutor must have expected a more flustered response from Henry; the more experienced litigator’s calm demeanor seemed to cause Smith to turn red and sputter. Henry smiled into his bag as he bent over to collect his notes for the day. This kid was playing right into Henry’s hand.

  “Well played my friend… again,” Marshall murmured to Henry behind Richard’s back. The two attorneys were sitting with one on each side of their client. Said client was completely out of the loop of what was happening between his two attorneys or between his counsel and the prosecution. Richard had confessed to Henry and Marshall that morning that he was finding it hard to concentrate on anything other than the fact he might hang. It had become real to Richard the moment he heard the courtroom audience gasp at the prospect that Nancy had been pregnant. That said, he had maintained his innocence when Marshall told him about the Commonwealth’s “offer.” Henry couldn’t help but admire the young man’s conviction—no pun intended—that he was innocent.

  “Don’t give in now, young man,” Henry had consoled Richard. “I am confident I can poke holes in your aunt’s testimony. It will be fine.”

  Henry had practiced law for decades. He had told himself countless times, do not overplay your client’s odds just to make them feel better. It was a mistake newer attorneys often made to go for the immediate relief and console their client only to have to deal with devastation later if the result was not positive. Henry was usually comfortable telling clients how bad it looked for them—even if he felt they were certain to win—and so it was surprising to he himself that he wasn’t playing by his own rule with Richard Randolph. Henry wasn’t even sure he liked Richard and he was beginning to think he would never see his five hundred pounds. If he wasn’t getting paid, what did Henry care if Richard was convicted? Of course, a conviction was sealing the deal that Henry would not get his funds, so it made more sense to get the young man out of jail and to a bank.

  “Thank you, Mr. Henry,” Richard had said after the ill-advised pep talk from his attorney. Henry tried to smile, but he already regretted getting Richard’s hopes up. On the other hand, it added more of a challenge to Henry, and sometimes that’s all the motivation needed to get up and get in that courtroom. Except that day Henry had plans to forget his court bag so that he would have to leave and come into the court with just seconds to spare—or perhaps late a minute or two. And that plan had worked.

  “Mr. Smith?” Henry asked as he continued to arrange his papers. “Are you not going to call the justices to the bench?” Henry didn’t look up, but he could feel Smith’s glare. Good, Henry thought, let Smith be so angry that he doesn’t think straight. The prosecutor hadn’t learned his lesson from the day before. Henry continued to smile and breathe. All he needed now was to stay calm enough to upset Smith.

  The Commonwealth wasted no time in calling their first witness of the day, the promised aunt, Mary Cary Page, aunt of Nancy Randolph (and cousin two times over to Richard, or some other level of relation that Henry couldn’t quite follow). Even though Henry had a feeling of dread in the pit of his stomach, he folded his hands on the defense table and smiled at the witness as she took the stand. Henry would cross-examine this witness once she testified. He had no notes, no plan per se. But Henry also knew all he had to do was wait and see what Smith’s great star witness would give him to work with. They always gave him something, especially the ones who were testifying because they had a personal stake in the matter. From what Henry could see, every one of these Randolphs had taken a personal position regarding Richard and Nancy Randolph.

  ******

  The Testimony of Mary Cary Page

  The Commonwealth of Virginia: Mrs. Page, can you please explain your relationship to the defendant?

  Mary Cary Page: Of course. I am the paternal aunt of his wife, Judith.

  C of V: All right, Mrs. Page. Does that mean that you are also the aunt of Nancy Randolph?

  John Marshall: Objection, your honor.

  Court: Mr. Marshall, I am surprised to hear you bring an objection you know is not supported by any rule. I must ask why you think I should entertain your objection to counsel’s question?

  JM: For one reason only, your honor: We all know the answer. He’s wasting the court’s time. I object to the fact that rather than just asking a question, Mr. Smith’s line of questioning is laden with subtle accusation. Is Mrs. Page the aunt of Nancy Randolph? Well, if she is the aunt of Nancy’s sister, then one would presume so. This is a drain on judicial efficiency. Just ask and move this along.

  For the first time since working with John Marshall, Henry felt his mouth drop open in shock (although he did quickl
y regain control, hopefully before anyone noticed). After being chastised by this colleague for an outrageous objection just the other day, it sounded as if Marshall had also reached his last straw. Perhaps the two of them could share a cell if they were both held in contempt.

  The justice eyed Marshall for a moment before making his ruling. “Mr. Marshall, I overrule your objection, but I counsel Mr. Smith to just get to the point and move this case along.” Henry saw the briefest of smirks on Smith’s face melt into a look of panic. Well, if he continued to act superior, everyone would wait for the opportunity to bring him down a level or two, Henry thought. Marshall sat down as the testimony continued.

  C of V: Yes, well, Mrs. Page, are you Nancy Randolph’s aunt?

  MCP: Well, yes, I’m the paternal aunt of both Judith and Nancy. Related to the defendant as well, of course.

  C of V: Yes, of course, Mrs. Page. How often do you see Judith and Nancy?

  MCP: Well, since they left Tuckahoe—you know, their father remarried rather quickly following the death of their mother—I just don’t seem to see them like I used to.

  C of V: Mrs. Page.

  MCP: I don’t mean to tell tales, but the girls’ father, Thomas Mann—not to be confused with his son living at Monticello—has been more accommodating to his new wife than to his daughters, but I don’t mean to be rude.

  C of V: Mrs. Page.

  MCP: It’s really been a very sad year for all of our family. Circumstances have scattered us throughout the county and we have lost so many of our youngsters. It has always been so wonderful to have so many nieces and nephews and cousins. I was so very sad to hear about the death of Theodorick…

  C of V: Mrs. Page!

  Henry had been enjoying the aunt’s testimony (or lack thereof) immensely. He had his edge already planned for cross-examination, he just needed to find the right question to pose to get it in artfully. But in the meantime, Smith was losing his witness as she rambled on and on endlessly. Henry smiled. It was all the better for him and Marshall that Smith’s great surprise star witness was just a crazy old and lonely old lady. And even more amusing, Smith had essentially just screamed at said crazy old and lonely lady as she was saying she was sad because a family member had died. It made Smith look overly aggressive to the jury of justices; it was certain to earn him a critical note by the crowd in the courtroom, and it would likely turn his own witness against him.