by Sol Stein
“What kind of mechanical equipment?”
“A lawnmower, a leaf-blower, a five-gallon can containing gasoline and a similar-sized can containing kerosene.”
“Were the cans labeled?”
“Yes, sir, they were.”
“Did you determine whether the contents of each of those cans was what the label specified?”
“Well, sir, I removed the screw caps and smelled. Gas smells pretty different from kerosene. I took a sample of each.”
“Are you satisfied that the cans were correctly labeled?”
“Yes, sir.”
“To the point where you would not have hesitated to use the gas in the lawn mower?”
“Yes.”
“And would you have used the contents of the kerosene can to, say, fill a kerosene lamp that you would light or a kerosene heater that you would use?”
Thomassy could swear the judge was glancing at him for the second time, waiting for him to intercede. I’m not a robot, Your Honor, I’m having trouble with this case. A surgeon could be sued for malpractice for sleepwalking through an operation.
Thomassy rose to his feet. Was that relief he saw on the judge’s face?
“Your Honor,” he said, “I’ve been very patient about the witness responding to what he saw or smelled, but I think we’re into the area of opinion here, and if the government wants some qualified expert opinion, they ought to call an expert and not ask this police officer about opinions he is no more qualified to answer than anyone else who uses a lawnmower.”
“Sustained,” Judge Drewson responded with a sigh.
Thomassy sat down. Maybe if he could avoid looking at Ed for a while, he’d be all right. Think of it as a case.
“Detective Cooper,” Roberts continued, “did you find anything in the garage that was unusual?”
Thomassy was on his feet again, but before he could say anything Judge Drewson said, “Mr. Roberts, would the people confine the questions to those that will bring forth factual responses rather than opinions about what might or might not be usual.” The judge said, “Strike the question.”
Thank you, said Thomassy to himself.
Roberts pulled down on his vest again. “Detective Cooper,” he said, “what did you find in the garage besides the items you have enumerated?”
“A button, a jacket button.”
“What did you do with the button?”
“I put it into an envelope, sealed the envelope, and marked it for identification.”
“I show you an envelope with markings. Is this the envelope into which you put the button?”
Cooper glanced at the envelope. “That’s the one.”
Roberts ripped open the end of the envelope and shook it over the palm of his left hand. A button fell out. “Is this the button you found?”
Cooper nodded. “Yes, sir.”
“Okay,” Roberts said, “I’d like to have the button marked as People’s Exhibit E.”
Thomassy rose. “Your Honor, a button is a very common object and may mislead the jury into thinking it has some relevance unless the witness can distinguish this button from the thousands of similar buttons in existence.”
“Detective Cooper,” Roberts said, “what makes you certain that this is the button that you found on the floor of the garage?”
“Well, sir, it has four holes for thread like other buttons but the area between two of the holes is broken.”
“Thank you. And did you in the course of your investigations find any garment that was missing such a button but had similar buttons still sewed on the garment?”
“Your Honor,” Thomassy said, “that’s two questions, not one question.”
And so Roberts, his exasperation beginning to show, divided his inquiry into two questions.
That was stupid, Thomassy told himself. He had focused too much attention on the button.
“Did there come a time,” Roberts asked, “when you found an article of clothing with similar buttons that had one button missing?”
“There was a jacket in the defendant’s room, that is the bedroom he had slept in in the Fuller house, and I asked the defendant whether the jacket was his and he said yes.”
Roberts glanced over at Thomassy.
Don’t count your chickens yet, Thomassy thought.
“Detective Cooper,” Roberts asked, “did you have occasion on that same day to inspect the floor near the defendant’s bed?”
“I did.”
“And what did your inspection reveal?”
“Someone had spilled some inflammable fluid on the floor.”
“And did you confront the defendant with that information?”
“I did.”
“And what did the defendant say in response?”
“He said he was trying to fill his lighter.”
“And did you ask the defendant to produce the lighter he was allegedly filling?”
“He couldn’t find it. He couldn’t find his cigarettes either.”
“And what conclusion did you come to?”
“That the defendant didn’t smoke and was lying about—”
Thomassy was on his feet. “Objection!”
“Sustained,” Judge Drewson said. “The jury will disregard both the question and the response.”
The son-of-a-bitch has got me in a box, Thomassy thought. If I bring up the marijuana on cross, it’ll just contaminate Ed’s reputation with the jurors.
“Detective Cooper,” Roberts said, “did you make an examination of the bathroom where the fire took place?”
“Yes, sir, I did.”
“To your knowledge, were you the first person to examine that bathroom?”
“No, sir. I believe that one or more federal people charged with Mr. Fuller’s safety examined that room before I arrived.”
“Not police officers?”
“No, sir.”
“Did you uncover anything in your examination of that bathroom that seemed out of the ordinary?”
“Well, sir, there was extensive flame and smoke damage from the fire. The rug, or I should say the wall-to-wall floor covering, was burned in places. The toilet seat was raised. The covering of the toilet was of the same cottonlike material that covered the floor. When I started to lower the toilet seat and cover, I found jammed between the cover and the tank a man’s wristwatch with a well-worn leather strap.”
Roberts went over to the prosecution table and one of his assistants handed him a plastic envelope containing a wristwatch.
“Would you examine this watch and tell the court if it is the watch you found in Professor Fuller’s bathroom?”
Cooper looked down at it just for a split second. “Yes, sir, it is.”
“Did you subsequently ask Mrs. Fuller if it was her husband’s watch?”
“No, sir.”
“And why did you not?”
“Because there was an inscription on the back of the watch that said, ‘On your graduation, with love Mom and Dad.’ It was a quartz-type watch that came available in the seventies. I figured Professor Fuller must have graduated before that.”
The laughter came mainly from the press section.
“Was there anything else significant about the watch in your opinion?”
“Yes, sir. It had a date.”
“And what was that date.”
“Six thirteen seventy-five.”
“And what conclusion did you draw from that date?”
“Objection!” Thomassy stood.
“Overruled,” said Judge Drewson impatiently.
Cooper couldn’t wait to speak. “That it belonged to someone who graduated from something on the thirteenth of June, 1975.”
“Did you then make inquiries to determine who might have graduated on that date?”
“Not personally, sir. But one of my men checked on the high school and college graduation dates of Miss Troob, Mr. Melling, Mr. Heskowitz, and Mr. Sturbridge, and the only one that graduated on or about that date was the defenda
nt.”
“Your Honor,” Roberts said, “the people would like to have this watch marked as an exhibit.”
“Have it so marked.”
“Detective Cooper,” Roberts said, “did you have occasion to search the room in which the defendant slept during the night of April fourth to fifth?”
“Your Honor,” Thomassy interrupted, “may we approach the bench?”
Judge Drewson motioned Thomassy and Roberts to come up.
“Your Honor,” said Thomassy, careful to keep his voice low, “during Detective Cooper’s search of the bedroom in which the defendant stayed, he found a two-ounce packet of marijuana in a bedside drawer that the defendant opened at Detective Cooper’s request at a time when Detective Cooper did not have a search warrant. That issue was dismissed. Because of the prejudice many people, including some possible jurors, might feel toward anyone who used marijuana, I think it most important Your Honor not to have that incident referred to in front of the jury.”
“I would agree with your thinking on that, Mr. Thomassy,” the judge said.
“I will be extremely careful not to raise that issue, Your Honor,” Roberts said.
Back at the witness box, Roberts said, “Detective Cooper, did you have occasion to search the room the defendant slept in?”
“Yes, sir.”
“During that search did you find anything that could relate to the charges in this case?”
Cooper said, “In my search I went through the closet carefully. Stowed on the upper of two shelves, way in the back, were what looked like some old curtains folded, and in back of the curtains was a stack of skin magazines, and in back of those was a leather-covered metal half-pint hip flask.”
“Was there anything in the flask?”
“Well, sir, I expected I might find liquor of some sort, but it was empty except for a few drops that didn’t seem like liquor to me but water. What aroused my suspicion was it had a smell to it. Not water and not liquor.”
“Did you have occasion to ask the defendant whether the flask belonged to him?”
“When I arrested him in his apartment in New York City in the company of a police officer from that jurisdiction, the defendant said he didn’t drink liquor.”
“Did he deny ownership of the flask?”
“Not in so many words.”
“Objection!”
“Sustained. Mr. Cooper, would you answer the question yes or no. Would the reporter repeat the question.”
The reporter read from his tape. “Did he deny ownership of the flask?”
“No,” Cooper said.
“Did you have the contents of the flask analyzed?”
“Yes, sir.”
Roberts removed the top page of the papers in his hand and showed it to the witness. “Is this the report you received from the chemical lab of the Police Department?”
“Yes, sir.”
Thomassy was on his feet again, exasperated. “Objection, Your Honor, that report is not admissible.”
The judge called both attorneys up to the bench for a sidebar out of the jury’s hearing. “Mr. Roberts, is the chemist who wrote that report alive and well and available to you?”
“I spoke to him this morning,” Roberts said.
“Then he should be called as a witness. The jury has a right to hear his testimony and Mr. Thomassy has a right to cross-examine him.”
Thomassy felt himself caught in the fulcrum of a scissor. The jury always perceived chemists as scientists, and he’d never seen a chemist who didn’t try to snow the jury with his jargon. It would put too damn much emphasis on the contents of the flask.
“We haven’t all day,” the judge told him.
“Sorry, Your Honor,” Thomassy said. “I will stipulate that the report be received.” The jury knew that cops could shave the truth. Better a cop than a chemist.
The chemist’s report was marked and entered. Then Roberts handed it to Detective Cooper. “Have you read this report?”
“Yes, sir.”
“Would you please refresh your recollection of page three, last paragraph.”
Cooper turned the pages, quickly read the paragraph.
“What conclusion did you draw from that paragraph?”
“That only a few drops of liquid were available from the subject flask. Under examination, these appeared to be largely water with a trace of a petroleum product.”
“And what did you conclude from reading the report as a whole?” Roberts asked.
“I concluded that the flask may have contained a combustible fluid and had been washed out with water after use.”
“Your Honor,” Thomassy said, feeling the sweat on his forehead for the first time during this trial, “I have to object to a chain of conjecture unsupported by the evidence.”
The judge asked for the report to be handed up. “Sustained,” he finally said, handing the papers over to the court reporter.
To Thomassy, it didn’t matter that he had been sustained. He could see the effect of Cooper’s testimony on some of the jurors’ faces. Damn, he thought. He didn’t hear Roberts say “Your witness,” until he said it a second time.
*
Thomassy asked for a moment’s respite to consult with his client. “Ed,” he whispered, “I don’t like surprises. Is there any way that flask can be definitively linked to you? Initials, anything like that?”
Ed was taking time to think, which to Thomassy meant the flask was Ed’s, not somebody else’s.
“No,” Ed finally said.
“It’s your flask,” Thomassy said.
Ed opened his dry lips. “What are you going to do?”
Ten years or so after Joe Siston, star player of Oswego’s basketball team, had gotten kicked out of school for throwing a game, he came downstate to see Thomassy. Siston said a trucker who owned two upstate counties was trying to squeeze Joe out of his one-truck beer business.
“What are you coming to me for?” Thomassy had said.
Joe Siston hadn’t shaved in a week. His eyes were rimmed red. “My regular lawyer is scared,” he said. “They’re setting up a frame that includes him. He’s chicken, George. He might throw the game. You won’t.”
One of Thomassy’s first entries in his devil book had been If you want angels for clients, practice in heaven. He could live with the guilt of a client, he’d had to many times. But if the flask was Ed’s, what was his crime, murder or something else?
*
Ed pulled at his sleeve.
“Don’t do that!” Thomassy snapped. “The jury’s watching.”
“What are you going to do?”
Thomassy stood up. Looking around the courtroom he felt the sudden vertigo of being atop a Ferris wheel that had stopped, the electricity he had counted on snapped off. Had he ever been in greater danger of blowing a case?
He touched the counsel table with steadying hands.
“Is counsel ready to resume?” the judge asked.
Is counsel permitted to have an anxiety attack in front of a hundred and fifty people? Can Your Honor please ring the curtain down? Roberts was looking at him, ready to spring.
Thomassy nodded. He took a sip from the water glass and started toward the witness box, walking mechanically, a wound-up toy pointed at Cooper.
Close up, he looked at the detective. Cooper couldn’t avoid Thomassy’s gaze. Thomassy nodded as if to thank the detective for his cooperation.
“Mr. Cooper,” Thomassy said, “did you happen to notice the make of the jacket Ed Sturbridge said was his?”
Cooper smiled. “It was a MacGregor.”
“Mr. Cooper, do you know how many MacGregor jackets with those buttons were manufactured each year for the last five years?”
“No, sir.”
“Then how do you know with such certitude that the button you say you found in the garage came off the jacket you say was in the room occupied by Ed Sturbridge?”
“The jacket had some long thread hanging in the place where the butt
on used to be.”
“The button or a button.”
Cooper looked at the judge as if wanting the judge to help him out. Finally, he turned back to Thomassy and said, “The button I found was busted between two holes. The jacket had thread hanging.”
“Mr. Cooper,” Thomassy said, “did you wear a jacket that day?”
“No, sir, I wore a raincoat.”
“Does your raincoat have buttons?”
“Yes.”
“Are any missing?”
“Not to my knowledge.”
“Is the raincoat you wore that day, Mr. Cooper, anywhere in this courthouse?”
After a moment, the judge asked one of the court officers to retrieve Detective Cooper’s raincoat from an anteroom. While they were waiting, Thomassy asked, “Mr. Cooper, do you know the color of the buttons on your raincoat?”
His voice rose as if with a question. “I assume they are brown?”
“Well, we don’t have to deal with assumptions. The court officer is just bringing the raincoat over. Is that the raincoat you wore on the day in question, Mr. Cooper?”
Cooper nodded.
“Please speak up,” Thomassy said.
“Yes!”
“Would you say that the buttons on your raincoat and the buttons on Ed Sturbridge’s jacket are approximately the same color?”
“It was—”
“Your Honor,” Thomassy said, “may I respectfully ask that the witness be instructed to answer the question.”
The judge nodded.
Cooper, his color showing, said, “Yes, they’re about the same.”
“Would you then look at each of the buttons on your raincoat that the court officer brought over, Mr. Cooper, and see if any of the buttons are missing?”
The judge had to gavel the audience back to silence, as Cooper examined his raincoat.
“What are you finding, Mr. Cooper?”
Cooper fidgeted. He looked over at Roberts, then at the judge. “There’s a button missing on the sleeve. There are three buttons on the left sleeve, and two on the right, so I assume there’s one button missing on the right sleeve.”
“Is it possible,” Thomassy asked, “that the button you found was the button now missing from your own raincoat?”
“That button was probably missing for the last five years!” Cooper shouted.
