Unofficial and Deniable

by John Gordon Davis

  ‘Okay,’ he said to the orderly, ‘let’s see Hizzonner.’

  Charlie emerged thoughtfully from behind the defence table and paced slowly across the courtroom to the jury stand. He stood silent, in deep thought for a moment, ensuring that he had everybody’s attention; then he began, his black face solemn.

  ‘My learned friend, the Assistant District Attorney, has waxed eloquent about gossamer threads, ladies and gentlemen. But let me remind him of another gossamer thread, which is a golden one and which is the fundamental principle of our criminal law – and I quote from a famous British judgement.’ Charlie picked up a volume, opened it and read: ‘“Throughout the web of English law one golden thread is to be found: It is for the prosecution to prove the defendant’s guilt, not for the defendant to prove his innocence …”’

  Charlie closed the book with a snap, and looked over his spectacles at the jury.

  ‘And there is another principle of law I would like to remind the Assistant District Attorney of – and this is a matter of the simplest arithmetic. It is this: the combined weight of a gossamer thread that weighs nothing, when put together with another gossamer thread that weighs nothing, is nothing. Nought, plus nought, equals nought …’ He smiled: ‘I repeat: it is for the prosecution to prove guilt, not for the defence to prove innocence!’ Charlie spread his hands. ‘But is that not exactly what the District Attorney is demanding of the defendant – that he prove his innocence? The prosecutor has not a single fact pertaining to Josephine’s disappearance! No corpse! No witnesses! No weapon! Yet he demands explanations for the unexplainable, and then pours scorn on them when he gets them!’ He stabbed the air with his finger and cried, ‘In other words, the only weapon the District Attorney has been able to use is sarcasm, and sneering, because he has nothing else! Repeat, nothing else!’ He punched the air again. ‘He cannot even prove that Josephine is dead, for Heaven’s sake – he can only prove that she is missing! She might have grabbed one of the life-belts or the life-raft the defendant threw overboard. Josephine might have drifted to one of the many Bahamian islands, she might have lost her memory, she may be living like Robinson Crusoe – anything may have happened …’

  Charlie paused, his eyes sliding over the jury’s. He took a big, slow sip of gin-spiked water.

  ‘And the District Attorney cannot even prove how Josephine came to fall overboard! He cannot prove whether she tripped, whether a sudden swell took her off balance, whether she was careless – whether or not, indeed, she took it into her head to commit suicide!’ Charlie shook his head. ‘So what does the District Attorney do, ladies and gentlemen?’ He glared, then his finger shot up and he cried, ‘As he cannot prove anything he tries to convince you that the defendant had a fight with her, shot her and pushed her overboard!’

  Charlie let that hang, staring at the jury in amazement. Then he cried, ‘This is absolutely astonishing! The District Attorney, who well knows the law – or should – tries to persuade you, because he can’t prove anything, that the defendant must prove that he didn’t shoot Josie, or didn’t throw her overboard!’ Charlie laughed. ‘Is this what American justice has come to? This is crazy! And the DA knows it!’ He grinned widely. ‘So what excuse does the DA give you for this extraordinary revamping of the law – he points to the gash on the defendant’s hip! It was caused by a knife, and the DA has the vivid imagination to allege that the knife was wielded by Josephine in self-defence!’ Charlie stared. ‘Self defence? He can’t even prove there was a matrimonial quarrel, let alone one that involved the use of knives in self-defence … And yet he asks you to fly in the face of the law! The defendant’s evidence about this gash is that he must have inflicted it upon himself by accident when he tried to return his knife to its sheath – and he cut his arm when slashing the rope that secured the life-raft.’ Charlie spread his hands. ‘That’s a perfectly credible explanation! The doctor agreed that that is a perfectly credible explanation. But what does the DA do? Scorn and sarcasm are his only weapons! And then, in desperation, he points at the traces of blood on the deck.’

  Charlie snorted wearily, and shook his head.

  ‘Traces of blood, yes, but whose blood? Can the DA prove it’s Josephine’s blood? No!’ Charlie paused then went on softly: ‘This boat was bought secondhand, ladies and gentlemen – secondhand. And boats are machines that can draw blood easily! I ask you, members of the jury, to consider how many cut fingers and grazed knees, not to mention bloody noses and extracted teeth, how much stray blood has been shed in your homes over the years!’ He studied them; then he turned his palm towards Vance with a sad smile. ‘But my learned friend tries to insist that you defy the law, and defy logic, and decide – beyond reasonable doubt – that that blood is Josephine’s, and furthermore shed by the defendant when he murdered her!’ Charlie stared in wonder, then clapped his hand to his forehead. ‘How out of touch with both the law and reality can a District Attorney get?’

  Vance got to his feet. ‘Your honour, I object to the improper conduct the Defence is imputing to me! I demand a retraction!’

  Charlie turned to the bench with big, innocent eyes, his palms spread.

  ‘Me, imputing improper motives, your honour? Perish the thought! All I am imputing to my learned friend the Assistant District Attorney is complete lack of acquaintance with the rules of logic, an imperfect grasp of Criminal Law and a profound ignorance of the Law of Evidence! I repeat, your honour, the age-old rule, which seems to have deserted my friend, that the defendant does not have to prove anything, and that the proof that is required of the prosecution is proof beyond reasonable doubt – not sarcasm, sneering and clutching at straws!’

  ‘Objection!’ Vance sighed.

  Judge Ludman growled at Charlie, ‘Proceed. More tactfully.’

  Charlie smiled. ‘As your honour pleases, though it will be hard.’ He turned back to the jury. ‘And what is the next piece of weightless gossamer thread that the District Attorney tries to lasso the defendant with? It is the fact that he could not use the radio to notify all shipping of Josephine’s disappearance.’ Charlie looked at the jury in wonder. ‘But how could he? The transmitter was broken! So what does the District Attorney say about this useless transmitter – he asks you to conclude that the defendant deliberately broke it!’ Charlie looked at the jury with a wide smile. ‘This is incredible! The DA can’t prove how the transmitter broke so he asks you to conclude that the defendant deliberately damaged it in order to conceal a so-called murder which the DA cannot prove took place! So the DA is trying to tell you that nought plus nought equals …’ He shrugged. ‘Equals what? The electric chair?’ He snorted. ‘Don’t make me laugh, please. And the same applies to the detail that he headed for the Virgin Islands, not back to Florida …’ Charlie spread his hands. ‘Jack was convinced Josephine was dead. He was exhausted. Grief-stricken. So, having given up the search, he simply doggedly continues on to his destination, to report to the authorities there – that is entirely credible after the ordeal he had been through! So that point is another nought. And,’ Charlie sighed, ‘so is the next point the District Attorney made such a song and dance about …’

  He looked at the jury wearily.

  ‘Really, ladies and gentlemen, isn’t the DA being very unrealistic in the heavy weather he makes of the defendant’s arrival in the Virgins? The poor defendant had been battling the high seas, for six days and nights, for heaven’s sake! Single-handed! The spray flying like grapeshot! Night and day, sleeping only in snatches. So when he arrives in the American Virgins in the middle of the night, he collapses asleep. But it was the British Virgins he was headed for, remember – he and Josephine had intended to go to the British Virgins. So when he woke up at four a.m., tense and grief-stricken, he couldn’t bear to sit still and so it was natural for him to up-anchor and press on to the British Islands a few miles on.’ He shook his head. ‘So the DA’s argument about this also adds up to another big fat nought!’

  Charlie gave a long weary sigh, then ro
lled his eyes heavenwards.

  ‘And so does his next argument, about the defendant’s conduct on reaching the British Virgins … Really, have the prosecution such little worldly experience that they cannot imagine an exhausted sailor finally arriving at his destination in the early morning and collapsing asleep before facing the big wide world? Are the prosecution so unaccustomed to physical exertion that they cannot imagine the screaming need for rest when the exhausted sailor finally makes port?! Are they so devoid of human understanding that it must pour scorn on the sailor when he needs a few drinks of rum to fortify himself for the heartbreaking ordeal ahead …’ He rolled his eyes heavenwards again. ‘Members of the jury, can’t we have some human compassion around here, instead of the worthless vitriol that Mr Humphrey heaped upon the defendant. Mr Humphrey has the sheer gall, the towering arrogance to try to lead you to believe that the defendant acted in a sinister way when he slept and then drank a few rums before going ashore … Most sinister that he first checked in with Immigration and then advised Josephine’s family and her insurers of the heartbreaking tragedy – oh dear, most sinister that the poor, exhausted, grief-stricken defendant found it necessary to return to his boat and fortify himself with some more sleep before presenting himself to the police for the further ordeal of repeating the whole dreadful story.’ Charlie shook his head at the jury. ‘This self-important Commissioner Humphrey tells us we must definitely believe him when he says at the end of that first day’s questioning – at which Mr Humphrey scored another big fat nought – that he told the defendant to return for more questioning the next day …’

  Charlie looked solemnly at the jury, then he rasped, ‘Why should you believe Mr Humphrey, who has an axe to grind? It’s only one man’s word against another, so there must be a doubt and you are legally bound to give the benefit of that doubt to the defendant. And even if Mr Humphrey did tell the defendant he had to come back the next morning, isn’t it highly possible that the defendant, because he was exhausted and heartbroken, misheard and genuinely thought Humphrey said something else? Either way the benefit of the doubt must be given to the defendant. So this point also adds up to another nought!’ Charlie looked at the jury, then spread his hands eloquently: ‘And that being so, the fact that the defendant used his expired passport when trying to leave the island does not prove a darn thing! He had been told by the Immigration Department to return to the Bahamas to get his port clearance papers. The fact that he did not have a valid passport would not deter a man like Major Harker. He is a man of action, a soldier who has been in a hundred battles, a man accustomed to taking risks and he was not about to let any petty detail about expiry dates stand in his way. It would be unlikely that any immigration official would check the passport date. And the worst that could happen would be that he was turned away. “What the heck” was his attitude.’

  Charlie looked at the jury with big solemn eyes.

  ‘And the same “what the heck” attitude applies to his smuggling the Browning pistol aboard the aircraft. Good heavens, we must never forget that the defendant is a hard-bitten, veteran soldier to whom guns are almost part of his clothing. He packs a gun like you and I would pack our pen and credit card. The DA’s suggestion that the gun somehow proves that he intended to run away and if necessary “shoot it out with the police” is absolutely ludicrous. The DA conveniently forgets that the Immigration Department’s head had ordered him to return to Nassau. And if he was running away he would surely take more than the small bag of clothes he took. But more than all that, why would he run away and thus tacitly admit that he was guilty? Why would he run and thus abandon his beloved yacht, and all the insurance money and shares the DA accuses him of wanting so badly that he was prepared to commit murder? Millions of dollars’ worth! Why should he throw all that away? What utter nonsense that suggestion of the DA’s is! Ridiculously improbable!’

  Charlie paused and took a big swallow of his gin. He licked his lips and continued, ‘And let’s quickly deal with that other piece of nonsense the DA asks you to believe – that Josephine did not know he was smuggling the Browning pistol aboard the aircraft in New York because she would have made such a memorable fuss that the defendant would not have hesitated in his answer.’ Charlie frowned, with a smile. ‘Now the DA is also a thought-reader, is he? He has never met Josephine. Who is the only person here who knows Josephine – the defendant! And what does he say about this? He says he remembers now that when he told Josephine about the gun they were already in Nassau and while she was surprised and a bit concerned that he had taken that risk the problem was past now and she immediately dropped the subject, being a pretty laid-back gal who had gone into scores of war-zones with soldiers like the defendant.’ Charlie waved a dismissive hand. ‘So forget that bit of nonsense … And,’ he sighed long-sufferingly, ‘while on the subject of guns let’s get rid of that other stupid missing gun the DA’s been ranting on about –’

  ‘Objection!’ Vance cried. ‘Mr Benson’s manner towards me and my argument is most unethical. I have not been “ranting” –’

  ‘Why is the DA so afraid of the jury hearing my arguments?’ old Charlie appealed. ‘Goodness me, we had to put up with enough of his rubbish –’

  ‘Objection!’

  ‘Mr Benson …’ Judge Ludman rumbled.

  ‘Oh all right,’ Charlie sighed, turning to the jury wearily, ‘forget I said it was rubbish. But let’s look at his fallacious argument about this mysterious missing .38 Smith and Wesson, for the absence of which he seeks to send the defendant to the electric chair on the grounds that this gun, which we have never seen, never sent to the ballistic experts, is the murder weapon which shot poor Josephine – who the DA can’t prove is dead – causing the unidentifiable bloodstain on the transom …’ Charlie looked at the jury, then his face broke into an incredulous grin. ‘Have you perhaps got a better yarn to give us a laugh?’ He shook his head in disbelief. ‘What wonderful fairyland logic the DA uses! Because the defendant’s gun cannot be found, he says it must be the murder weapon! Of course, the DA forgets it is his job to prove guilt, not mine to prove innocence.’ Charlie paused, then thundered, pointing at Vance, ‘His job, not mine! But what does he do? He forgets, and says because the defendant once upon a time owned a .38 pistol – and because a .38 bullet was found in the saloon upholstery – of this secondhand boat – and because an old Group B bloodstain was found on the transom – and there are millions of people running around this topsy-turvy world the DA lives in which even he must admit have Group B blood – and because no .38 gun was found on the boat, therefore –’ Charlie stabbed the air – ‘therefore the defendant shot Josephine with it!’

  Charlie looked at the jury in wonder, then his face crumpled into his beautiful smile. ‘If that’s the type of evidence the DA asks you to send a man to the electric chair on, then God help America! God help Justice! And I’m a white man!’

  The court erupted into titters, in which old Charlie joined heartily.

  ‘In conclusion, ladies and gentlemen of the jury – and I thank you for your attention – let me deal with the DA’s celestial choir act over the shareholdings in Harvest –’

  ‘Objection!’ Vance cried. ‘I demand a retraction!’

  Charlie turned to Judge Ludman, mystified. ‘What’s my learned friend’s problem now, your honour? Just because I called his argument nonsense?’

  ‘A celestial choir act. And I demand a retraction!’

  “‘A celestial choir act”?’ Charlie repeated, looking around the courtroom. ‘Did I say that? By golly, that’s good, I must remember that. But if I said it, your honour, I certainly retract it because it is far too good a description to apply to his arguments about the shareholding in Harvest House – fallacious is a more down-to-earth word, illogical is more appropriate, perhaps, as I am no longer allowed to use the word “rubbish” –’

  ‘Objection!’

  ‘Yes, yes, yes,’ Charlie said, holding up his hands, eyes screwed up in pain, ‘yes
, we’ve got the message, Ed, so I’ll rephrase the proposition. Members of the jury,’ he said, turning to them with a patient smile, ‘yes, I must admit, as the defendant himself admitted to you, shamefacedly but honourably, that he initially misled you over this unimportant detail concerning the shareholding in Westminster NV.’ He paused. ‘Ladies and gentlemen, there is nothing sinister in a businessman concealing aspects of his finances from his family. Good heavens, there are whole nations that make a living out of ensuring confidentiality to businessmen – Switzerland, Isle of Man, Bermuda, several islands in the Caribbean. If you asked any businessman who had taken the trouble to be protected by the secrecy laws of those countries about his affairs he would either tell you it’s none of your darn business, or he would lie – to do anything else would be stupid. And that surely was the situation the defendant was in: this holding company called Westminster owned forty-nine per cent of the shares of Harvest: the defendant bought Westminster and nobody knew it – so why tell Josephine?’ Charlie glowered and waved his finger around. ‘I bet there’s many a man in this courtroom right now who has not told his wife everything about his financial life! The defendant was not cheating Josephine – when he died she would inherit Westminster and then own a hundred per cent of Harvest! The only reason why he didn’t admit it to this court in the first place was because he knew the DA would make such a fuss, imputing a sinister motive to it!’ Charlie looked at the jury solemnly, then shook his head and waved his hand dismissively: ‘So you can forget about that shareholding nonsense.’

  Charlie took a swallow of gin, then shook his head sadly.

  ‘Ladies and gentlemen, nobody except Josephine knows what happened in the dark small hours of that fateful night in the Gulf Stream. You don’t know, the defendant doesn’t know and the District Attorney –’ Charlie pointed at the man – ‘certainly doesn’t know! Hasn’t a clue, if you’ll pardon a pun. All these so-called gossamer threads he boasts about add up to nothing. And let me remind you of that golden thread, that it is for the prosecution to prove guilt – beyond reasonable doubt – not, repeat not for the defendant to prove innocence, as the DA seems to suggest.’ Charlie paused, then his finger rose, and his voice, ‘But I submit that the defence has in fact proved a great deal, namely that each one of the prosecution’s threads weighs nought! And nought, ladies and gentlemen, multiplied by ten is still nought.’ Old Charlie considered the jury solemnly. ‘Ladies and gentlemen, you don’t know what happened that night, because the DA cannot prove what happened … It is therefore your legal duty to acquit.’