by D. W. Buffa
“Do you really think,” he asked Harlowe, sitting in the chair next to him, “that the jury is going to acquit your client because they think Yolanda Ross murdered Gloria Baker instead?”
Harlowe kept his eyes straight ahead on Walter Bannister who, after hanging up his robe, had just taken his chair.
“That would be unfair, wouldn’t it? – Blaming another innocent person for a murder the defendant didn’t commit.”
He said this with such serious certainty that for a moment Alfonso almost believed him.
“You think that -? No; what else could you say?”
Harlowe turned his head and with a steady, unwavering glance, let him know he was wrong.
“You didn’t hear me say anything like that the last time we tried a case together. You didn’t hear me so much as suggest that Daniel Lee Atkinson might be innocent.”
Alfonso was ready to dismiss this as nothing more than the false bravado of a defense attorney engaged in his case, but Walter Bannister seemed intrigued.
“Yes, what about that possibility, Hector? What if the defendant, what if Driscoll Rose is innocent; what if someone else murdered Gloria Baker?”
“He isn’t innocent! He killed her. There isn’t any question.”
“No question?” asked Bannister with obvious skepticism. “If I followed what your witness said today on cross, if I followed what I think the not very veiled suggestion of the defense, there may have been someone else there that night.” He turned suddenly to Harlow and asked point blank: “Do you have a witness, some evidence that this is true?”
Harlowe could barely conceal his astonishment. This was not a question a judge was supposed to ask. Then he remembered that this was Walter Bannister and that Bannister took an interest in every aspect of a trial. Things could be said, things had been said, in his chambers that could be said nowhere else.
“If you have a witness, you’re supposed to tell me,” Alfonso reminded him. “You still haven’t given me a witness list.”
“I might not call anyone,” replied Harlowe, beginning to enjoy himself. “I may not need to.”
Quick as light, Alfonso shook his head and smiled.
“The art of cross examination: turn all my witnesses into yours. I know how that works. But you have one witness you have to call. You promised the jury, a promise I doubt they’ll be able to forget, that your client would take the stand in his own defense. You’re not going to change your mind about that, are you? Everyone would be terribly disappointed. I know I would.”
“Answer my question first,” insisted Bannister. “Do you have a witness who saw someone else there that night?”
But Harlowe was not about to let Alfonso have the last word in their exchange.
“It was a conditional promise,” he reported with a shrewd, eager look in his eyes.
“Conditional?”
“The defendant will take the stand to defend himself,” he said, apparently satisfied that this explained everything.
Alfonso could scarcely wait to hear the Alice in Wonderland logic that Harlowe was about to invent. And then he heard himself finish Harlowe’s thought.
“But if at the end of the prosecution’s case there’s nothing to defend himself against, then….”
“Yes, exactly; but then you’ll accuse me of some sleazy lawyer’s trick. But, no, he can’t do that, can he?” he asked, turning to Bannister. “Because whatever I did or didn’t say, the prosecution can’t comment on the failure of the defendant to take the stand. So you see, Hector, I don’t have to call anyone, and after what happened today with your last witness, the unforgettable Yolanda Ross, that might be the smartest thing I can do.”
Alfonso started to reply, but Bannister stopped him with a glance.
“I didn’t call you both in here to argue trial strategy. I need to have some idea how much longer the trial will go on. The prosecution, as I understand it, has only one more witness to call. Assuming the defense calls the defendant, are there any other witnesses you might call? I asked you before, Michael: Do you have a witness who saw someone else there that night?”
“Yes, I do. We just found him,” he quickly explained before Alfonso could start to complain. “A kid delivering pizza. He saw someone leaving, and it wasn’t Driscoll Rose.”
“Does he know who it was, can he identify this person?” asked Bannister with what appeared to be only clinical interest. “Because of course if he could, then you would have another witness you might call.”
“Or one I could call,” interjected Alfonso. He was furious at what he thought Harlowe’s deliberate deception. “You just found this witness?” he asked with acid eyes. “Why do I have a hard time believing that?”
“Probably for the same reason you have a hard time believing my client is innocent: it isn’t what you want to hear!”
“He isn’t innocent!” Alfonso shot back. “He’s as guilty as - !”
“I think he’s innocent,” said Walter Bannister.
The two lawyers watched in open-mouthed amazement as he got up from his chair, went over to the window and opened the blinds. For a long, silent moment, he stared out at the city that for more than a century had kept spreading out in all directions, the only boundary it could not pass the sea itself.
“I think he’s innocent,” he repeated, turning back around. “I shouldn’t be surprised if he’s found guilty - it wouldn’t be the first time that’s happened - but you’ve got the wrong man on trial, Hector. I’m sure of it.”
Alfonso almost came out of his chair. “You’re sure - ? What makes you think he’s innocent?” he demanded angrily.
Bannister had no right to express an opinion about a trial. It was grounds for removal. He could ask Bannister to step aside; he could file a motion; he could compel him to have another judge take his place. But was there any need?
“How can you be impartial if you - ?”
“Impartial? – You think I’m not? You think I’ve shown bias, one way or the other? Go ahead, file a motion: charge me with bias if you want. But I don’t remember that you had any problem when the three of us were sitting here during the Atkinson trial and I made some fairly candid remarks about what I thought of his guilt! What do you think I am: some bloodless academic who never makes judgments? Who didn’t know Atkinson was guilty? Did I give him less than a fair trial? What we discuss in this room stays here. It has no effect on what we do – at least it has no effect on what I do. Let me explain this again: I don’t think Rose murdered Gloria Baker, but I think he’s probably going to be convicted.”
“Which means you think the case against him – the evidence – is enough to convince a jury. Then why do you think he’s innocent – a feeling, a hunch?” That Bannister believed Rose was probably going to be convicted had freed Alfonso’s mind from anger. Now he was simply curious. “What makes you think he might be innocent?”
Bannister shook his head. “I didn’t say I thought he might be innocent; I said he was innocent. Driscoll Rose did not murder Gloria Baker.”
Alfonso’s chin snapped up. He did not like being corrected.
“You’re sure of it,” he repeated dismissively. “What is it you know, what have you heard at trial that no one else seems to have noticed?”
A smile like a secret started onto Bannister’s mouth, and then, the secret safe, immediately disappeared.
“The answer is right in front of you. But you have to have eyes to see it.”
“That’s all you’re going to say! This is some puzzle I’m supposed to solve?” Alfonso drew himself up, ready to leave. “I’ve got things to do, Walter; so if there’s nothing else….”
“It’s the picture, the portrait of Gloria Baker. Michael knows what I’m talking about – don’t you, Michael? It was slashed, presumably with the same knife – the one missing from the kitchen, the one that was used in the murder.”
This meant nothing to Alfonso. With a blank expression he shrugged his shoulders and asked why that was suppo
sed to be significant.
“Your witness, Yolanda Ross – what did she say at the end of Michael’s cross-examination? - That there was blood everywhere: on the body, on the floor, on one of the walls; but nothing – no blood – on the picture. That means that the killer used the knife to destroy the portrait before he used it to stab the victim. There would have been blood on the knife if he had killed her first, and then there would have been blood on the picture, but there was not.”
Harlowe was not sure he liked having part of his closing argument explained to the prosecution in advance, though it meant, as he realized, that the argument might be more convincing than he had dared hope. He sat back and listened.
“The killer only murdered her after he attacked the portrait. Shall I tell you how it happened? Do you want me to explain it in detail?” He asked this as if he had explained it before, over and over again, but like bored schoolboys they had been too dense to understand it. “Driscoll Rose, by the evidence we’ve heard, and by what we both know about him, can go off in a murderous rage: blind, unthinking hatred that makes him strike out at anyone who has done something he doesn’t like. That is his first, and maybe his only, instinct: hit, hurt, lash out. What did he do that night, that other night, when apparently he almost killed her? – Beat her up, left her for dead, and ran away. It seems he may have had some remorse, but only later, after all that anger subsided and he started to realize what he had done.”
“We know all that,” said Alfonso with some impatience. “I still don’t see your point. How does that make him innocent? It seems to me it only proves him guilty.”
“It would, if it weren’t for the picture. Let me tell you how it was done, why that portrait is so important. In the first place, it proves that whoever murdered Gloria Baker did not go there to kill her; he went there to talk to her, to convince her of something.”
“To convince her to come back to him - That’s what Rose wanted her to do,” insisted Alfonso.
“The portrait! – Try to remember that. He goes there to talk to her, but she won’t do what he wants. He gets angry, and he knows it – knows he’s getting angry. He isn’t like Driscoll Rose; he knows what he is doing. They’re arguing, he sees the knives in the kitchen, he wants to hurt her. But more than that, he wants to know what it’s like to hurt someone, what that feels like. And so he takes the knife, grabs her and makes her watch while he slashes to ribbons her portrait, the picture of what she was; makes her watch knowing that when he’s finished murdering her picture, he’s going to murder her. Does that sound like something done in a blind rage, something that Driscoll Rose could have done?”
“Sure; why not? He grabs her, sees the picture, and strikes first at that, and then kills her. And the rest of it – that business about wanting to know what it’s like to hurt someone, to murder someone – that’s nothing but speculation. How would you know if he wanted that? And what difference would it make if he did, except to make him even sicker than most murderers usually are?”
“Driscoll Rose didn’t do it,” said Walter Bannister with quiet assurance.
“Yes, he did,” replied Alfonso as he got to his feet. “And when the trial is over -”
“Sit down, Hector,” instructed Bannister as he returned to his chair. “We’re not done here. You were saying you had a witness, Michael: a delivery boy who saw someone leaving the victim’s home that night. Is there anyone else you might call, other than this young man and the defendant?”
“Not that I know of now, your Honor.”
“And you, Hector – you have only one witness left?”
“Yes. Roger Stanton, and his testimony shouldn’t take more than an hour,” explained Alfonso, settling into the routine of scheduling the last days of a trial.
“Walter is right, Hector,” said Harlowe, refusing to let it go. “I don’t know why the real killer did it – I don’t have Walter’s imagination – but Rose didn’t kill her. I’ve never said anything like this to you before, not in any of the cases we’ve tried together; but Rose is innocent. He didn’t do it, and if you convict him you’ll be sending an innocent man to prison and, almost as bad, letting someone else get away with murder.”
For a second, Alfonso wondered if Harlowe might be right. Harlowe knew every lawyer’s trick there was, but he had never said anything to him in private that he had not believed to be true. He did not think he was lying now, but that only meant that Harlowe himself had been deceived.
“He’s an actor. Did you think he wouldn’t know how to play the part of someone falsely accused?”
Alfonso had not meant for it to sound so harsh. He was angry with himself for starting to feel guilty when there was nothing to feel guilty about. He tried cases on the evidence; the jury decided whether the evidence was sufficient to convict. If an innocent man went to prison, that was unfortunate, but his conscience was clear.
“I’m sorry, Michael. I don’t doubt for a minute you believe what you said, but I have to follow the evidence and all the evidence points to him.”
They all understood the limitations within which they worked. They might in private all agree, whether they said so or not, that a defendant was probably innocent, but it would not affect – it could not affect – what they did in court. It had not mattered that along with everyone else they had known Daniel Lee Atkinson was guilty of unspeakable crimes: they did what they were supposed to do to make sure he got a fair trial. But if the situation now was fundamentally the same, the weight, the consequence, seemed radically different. Daniel Lee Atkinson was a murderer; there was never any question about his guilt. But Driscoll Rose, if he was innocent, was it enough to say that everyone was just doing their jobs, that sometimes juries make mistakes? That was the question that was on their minds as they sat in what became a long and oppressive silence.
“There’s another way to look at it,” said Bannister finally. His gaze was distant, remote, and freighted with an unexpected severity. “Even if he didn’t do it, he still should be in prison.”
Harlowe’s mouth dropped open. Alfonso stiffened, worried that the hostility in Bannister’s eyes was meant for him.
“You both know what I’m talking about. It’s a strange case – a strange argument, the one I just made – that he must be innocent because he’s too much the maniac to exercise even the little control involved in this kind of pre-meditated murder. Rose should have been sent away before this ever happened. Once, when he almost killed her with his bare hands – You could have charged him with attempted murder, Hector!”
“I couldn’t exactly charge him for a crime no one knew anything about!” retorted Alfonso, staring back. “If your brother-in-law had….”
“He’s your next witness. Why don’t you ask him about that – why he didn’t call the police. Why don’t you ask him why he didn’t want anyone to know about what Rose did that day in Santa Barbara? Why don’t you ask him - ?”
“For God’s sake, Walter – get over it! How far back do you want to go? You want to blame your brother-in-law, you want to blame me, because you think we didn’t do what we should have done? Why don’t you blame yourself? You could have gone up to Santa Barbara and filed a police report. Why didn’t you go to see the district attorney up there? It wouldn’t have done any good. This is Driscoll Rose we’re talking about! Too many people had an interest in protecting him. Anything less than murder, everyone is going to look the other way.”
Tapping his fingers together, Bannister appeared to relent, but then, strangely, his eyes filled with irony and malice.
“Everyone looks the other way when he almost kills her, and looks the other way when he might have killed someone else; but then everyone turns on him when he’s charged with a murder he did not commit.” Before Alfonso could even think to reply, he added, “But the fact remains she wouldn’t have been murdered if Rose had been prosecuted before. Without Rose, what reason would anyone have had to kill her?”
There was nothing more to be said. Driscoll
Rose might be innocent or he might be guilty, and Bannister might be right that guilty or not Rose was in some way still responsible, but none of that mattered now. The trial was not over, and things sometime happen in a trial that no one expects, things that change everything. Michael Harlowe tried to remind himself of that the next morning as he watched the prosecution’s last witness raise his right hand and take the oath.
Roger Stanton had a kind of genius for being self-contained. Whether it was a gift he had been born with, or something he had learned which had then become habitual, he could stand in the middle of a crowd of people, every one of whom wanted something from him, and appear so oblivious, so preoccupied with some important thought of his own, that no one dared approach him for fear they might interrupt. There were more than two hundred spectators jammed tight together on the courtroom benches and they might have been extras in a movie he was making for all he noticed. He took the stand and looked straight at Hector Alfonso. He knew Alfonso, had been with him on a number of occasions, had had dinner with him at least half a dozen times, and had contributed more than he wished he had to several of his campaigns, but there was nothing in the way he waited for the prosecution’s first question that suggested they had ever even met. And as for his brother-in-law, Walter Bannister, sitting just above him on the judge’s bench, he did not look at him once.
Hector Alfonso did not waste any time. Brushing lint from the sleeve of another new suit, he stood at the far end of the jury box and took the witness through the usual preliminary questions - his name, what he did for a living, how he happened to know the victim - and then began to ask the questions that mattered.
“Gloria Baker had become a famous movie star, and so had Driscoll Rose. Were you aware of their relationship: the fact that at one point they were living together and had then become engaged?”
“Yes.”
Alfonso had expected more, a broader explanation, but Stanton was nothing if not concise and to the point. He would have sat there all day, waiting for the next question, before he ventured out on one of those long, rambling disquisitions that in his view did nothing but breed confusion. Alfonso started over.
