by Sol Stein
“Why does he get the last word?” Ed said, worrying the cuticle of his middle finger.
“I wouldn’t do that within sight of the jury,” Thomassy said. “They’ll think you’ve got something to be worried about. Relax.”
“Why does the DA get the last word?”
“Because it’s the custom.”
*
“Your Honor, ladies and gentlemen of the jury,” Roberts began. He repeated the specific charges, emphasizing the words assault, deadly weapon, intent, death. They had been written into the law. Now use them. See if they fit.” He positioned himself perhaps eight feet in front of the jury box. “You are here to determine the facts. Not the judge. Not me. Not the defense counsel. You’ve been exposed to rhetoric, of course, but to reach your conclusion, all you are required to examine is the evidence and the testimony. The testimony you have heard can be summed up this way. Professor Martin Fuller, a much honored scholar engaged in important and, alas, unfinished work, is no longer among the living because in the early morning of April fifth, as was his custom, he went in for his morning shower and ignited the kerosene heater in his bathroom, as he had done every morning for years. He was incinerated, a human torch dying a horrible and undeserved death because some person—I hesitate to say a human being—mixed a quantity of gasoline in with the kerosene in the heater.”
Roberts turned away from the jurors and as if looking past the first few rows for someone, walked to the press section. Just a reminder, boys and girls, of who’s playing the lead.
Come on, Thomassy thought, get on with it!
Roberts, as if tuned in to Thomassy’s signal, glanced at his opponent and got himself back to the jury box. “Evidence,” he said, “was introduced to show that the separate containers of gasoline and kerosene kept in the Fuller garage were uncontaminated by each other, meaning someone brought some gas—it could have been a relatively small quantity—and poured it into the fuel opening of the heater that already contained kerosene. Who would do such a thing?
“You heard Detective Cooper testify that he found a flask hidden in the closet of the room occupied by the defendant in the Fuller home, a flask that had recently been washed out. What was washed out? There were traces of inflammable fluid near the defendant’s bed. He told Detective Cooper he spilled some lighter fluid. Yet he couldn’t find his lighter—surprise!—and he had no cigarettes—surprise!—and then you heard evidence that he doesn’t smoke. You’d have to be deaf and dumb and blind not to see the connection between the flask and the spilled inflammable fluid and the middle-of-the-night visit to the downstairs bathroom—where he slipped up and left his watch—and the explosion the following morning.
“Why would he do such a thing? Why would he commit such a monstrous act?
“The defendant’s counsel has made it clear, through the testimony of Professor Tarasova and otherwise, that Martin Fuller was engaged in work that was important to the national security of the United States and that stopping that contribution dead in its tracks was of greater import perhaps than knocking one of our early-warning satellites out of the sky. Every day people kill for gain or revenge or out of jealousy, but there’s been no evidence here that any of these common motives apply in this case. Common sense would tell us that Professor Fuller was killed for one reason and one reason only: to stop the work he was doing. Therefore, I ask you, who would benefit from his death? Not his wife, not his friends, not anyone who would call himself a friend of the United States. However…”
Thomassy didn’t think Roberts would have the guts to do it, but he did. Roberts came straight over to the defense table and staring straight down at Ed he said, “This defendant has sworn that he was a friend and disciple of the deceased.” Roberts looked up, and strode over to the jury. “I hope none of you counts as a friend someone who would insinuate himself into your life, pretending to be—”
“I object!” Thomassy roared. “Your Honor, this jury is innocent of experience. In the impaneling room we learned that none of them has ever served on a jury before. When the district attorney used works like ‘insinuate himself into your life’ he is not talking about the defendant or this case or the evidence in it or the testimony that was taken. Your Honor, the learned district attorney is here to sum up and not invent.”
Judge Drewson often said at home over dinner that you preserved your vanity on the bench and got cases done with by knowing what missteps to overlook. But George Thomassy was not letting this get by, and now, with the world’s press observing, he could not. He summoned counsel to the bench.
Thomassy knew that the lecture that was given both of them in order to preserve the judge’s stance of impartiality was not a matter of great consequence. What he had accomplished was to break Roberts’s stride. Lingua interrupta. He’d have to grab the jury’s ears all over again. First, he’d have to yank his vest down. And as Roberts positioned himself in front of the jury box, yank he did.
Roberts said to the jurors, “I apologize for the interruption.”
That son-of-a-bitch, Thomassy thought.
“I suggest,” Roberts continued quietly, “that we look dispassionately at the first question I asked. Who would perpetrate the kind of murder that has been described here? The defendant’s counsel has attempted to obfuscate the facts by dragging a carload of red herrings across the courtroom, by attempting to indicate how many, many people might have been motivated to commit a barbaric act of this sort.
“But ladies and gentlemen, the only question—I repeat, the only question—for you to consider is do the facts point to a particular individual doing this deed? This wasn’t a vague act committed against an anonymous person by an equally anonymous killer. This was an act of deliberate murder committed against a particular person, the distinguished professor, by a particular killer, ironically someone he had learned to trust and love. And by trusting the defendant, Edward Porter Sturbridge, by counseling him, giving him friendship, offering him the hospitality of his house time and again, Professor Fuller, a man of considerable sophistication, made a mistake as great as the mistake Eve made in the Garden of Eden, because this defendant, this young man of a rich father who had the best of everything, was the snake who, in the middle of the night, would sneak down to the Professor’s bathroom with a flask full of gasoline and pour it into the kerosene heater with intent to kill.”
Thomassy stood. He said nothing. He just stood there till the judge noticed him and Roberts noticed him and stopped talking.
Judge Drewson said, “Mr. Roberts, I think the people ought to get out of the Garden of Eden and away from the snakes. We are considering an event that happened this year.”
“I’m sorry, Your Honor,” Roberts said. “It was a simile that sprang to mind.”
Thomassy said, “Your Honor, may we approach the bench?” Once there, he said, “I must move for a mistrial, Your Honor.”
The judge looked at him. “You make that motion and I’ll grant it and then where would you be? I think everyone would benefit if Mr. Roberts were able to conclude his remarks without further objections and interruptions.”
“I did not object, Your Honor,” Thomassy said.
“You stood up.”
“1 stood because I felt sure Your Honor would object to the prosecution’s improprieties, as Your Honor has.”
The judge sighed. “Well, Mr. Roberts, let’s resume.”
Roberts strode over to the prosecution table to gather up some papers. Thomassy thought He’s buying time. Thomassy glanced up. The judge was looking at him instead of Roberts. Was it a silent warning not to rattle Roberts’s bones anymore? Thomassy nodded. Message received. He settled back to watch what he knew would be Roberts’s climax. I hope he comes all over that vest of his. Was something sexual larded into courtroom combat? The anticipation. The jockeying for position. The combat governed by rules. The amount of ego invested in the outcome. He’d always thought the process of winning was the process of winning. Francine had said It’s a dance with
both partners trying to lead.
Roberts was ready. “Ladies and gentlemen,” he began, “common sense is a very good guide. Common sense, in this case, tells us that if gasoline had been introduced into the kerosene heater sometime before the previous morning, the heater would have exploded the previous morning. Therefore, the gasoline had to be introduced between the time Professor Fuller took his shower on the morning of April fourth and the explosive morning of April fifth. During that period there were five people other than the deceased in that house. Did Mrs. Fuller do it? There is not a shred of evidence to indicate that she would have the motive to do it. One of the people, a student by the name of Barry Heskowitz, the one who didn’t stay overnight, arrived before dinner, stayed through dinner, and left immediately after dinner, in full sight of the others present the entire time except for one trip to the bathroom. You heard testimony that visitors commonly used the professor’s bathroom because it was nearest to the living room and dining room, but none of them left their watches in that bathroom except the defendant. Are we to believe that Barry Heskowitz had a container—say a half-pint container at least—in his pocket and secretly slipped into Professor Fuller’s bathroom in order to pour the gasoline into the heater and then take off so that he wouldn’t be around when the explosion happened the next morning? It was brought out in testimony that Barry Heskowitz, though he visited the Fuller home from time to time, never stayed over. What purpose could he have had? Nothing was introduced that would prove intent. Barry Heskowitz is just one defense red herring for the garbage pail.
“Three of the guests did stay over. We heard Melissa Troob testify—with visible embarrassment—as to her reason for staying over. Her motive was clear. It was not murder.
“Scott Melling also testified as to his movements that night. Do you believe he put the gas into the kerosene and then locked the upstairs bathroom door to force the defendant to use the downstairs bathroom in order to implicate him in this crime? Hardly. Mr. Melling told the truth here at the peril of his marriage. As with Melissa Troob it is up to you and you alone to judge the truth of his testimony and whether he had any reason for doing harm to his host.
“Finally, we come to the defendant. We heard testimony to the effect that not only did he stay over at the Fuller house frequently, but he cut the Fuller’s grass, he was in and out of their garage where the lawn mower was kept, he had plenty of occasions to see the two cans, one of gasoline and one of kerosene, and time to formulate a plan that would make Professor Fuller’s death look like a terrible accident. No guns that could be traced. No obvious other weapons that might or might not have worked. But a weapon that was a common household object that required only a bit of tampering once and his mission was accomplished.”
Thomassy watched Roberts’s face carefully. He’s putting the black cap on. Here it comes.
“Ladies and gentlemen,” Roberts said, “nobody knows what went on in the minds of the members of the Grand Jury when they indicted Edward Porter Sturbridge and made him the defendant in this trial. What matters is what you think based on the evidence you saw and heard. You saw four photographs taken by the FBI who had certain Soviet diplomats suspected of being KGB members under surveillance. They weren’t taking those pictures for the heck of it, they were trying to photograph their contacts, Americans cheating on America.”
Thomassy had to restrain himself. The son-of-a-bitch was going far beyond the testimony. But Thomassy knew that if he interrupted the summation a third time, it might be the last straw for Drewson. And the jurors didn’t like summations interrupted either. Well, he’d taken license, now Roberts was taking it. Tit for tat.
“A photograph is worth a thousand words,” Roberts said, “If that’s true those photographs are worth four thousand words all saying the same thing: This defendant was trying to make contact with the Soviets. Why? You don’t have to be an expert in Soviet affairs, all you need is your common sense. He’d done his work. If they didn’t know who he was, if he was a stranger, would the senior man have gone trotting off in the opposite direction? Would the other man have rushed away? Common sense tells us they reacted as if the defendant had leprosy because they recognized him and knew what he did. Was the defendant claiming his due?
We may never know the answer to that one, but I ask you, can you think of an innocent reason why Edward Porter Sturbridge was trying to make contact with two Soviet diplomats who were under suspicion by the FBI?
“To corroborate the message of the photographs, we heard evidence from an eyewitness. Not a witness to the murder, no one saw that, but to that attempt by the defendant to make contact with the enemy in the lobby of the UN building soon after Professor Fuller’s death. What nerve he had to have! Yes, but what nerve it takes to snuff the life of another human being!
“You heard the testimony of Francine Widmer, walking in that same corridor in the UN, where she works. I asked her, ‘Miss Widmer, did there come a time that you witnessed anything unusual on your way to work through the UN lobby and if so, would you describe it.’ And she did, in meticulous detail. She saw with her own eyes the young man thrusting something that looked like a folded piece of paper at the Soviet diplomats. You heard her testimony. The young man finally caught up with the second Soviet diplomat and he took it. I ask you, would he have taken it if the young man was a stranger to him? Common sense will tell you otherwise. And then you saw the witness point a finger at the young man right in this courtroom because she recognized him as the same young man she had seen in Mr. Thomassy’s office. Just as if she were pointing him out in a police lineup, she directed her finger—as I am now directing my finger—at the defendant in this case. Did you believe her?”
Roberts turned to look straight at Thomassy when he said, “As the daughter of one attorney and the close friend of another, she would surely know the perils of perjury. What motive would she have for lying? None. You saw her. You heard her.”
I saw her, Thomassy thought, but the image was not of Francine on the stand but in that hospital bed, a wounded eaglet, her wounded wing still in a sling, her body still black and blue in spots from contusions, her spirit subdued, her soul soaring to his touches, her announced anguish at not being able to throw her hands and body into motion as before, and yet, with it all, it had been a lovely lovemaking, full of the feeling of coming back to life. Afterward, she’d touched the sticky spot on the sheet and said, “You ought to give some of this to the sperm bank, George. The world needs more lovers like you.” In all the years before Francine he’d met some interesting women, but none capable of saying something like that by way of I love you.
I love you, too, Francine, he discovered himself thinking as he looked up, wondering what he had missed as Roberts rested his hands on the top of the wooden barrier that protected the bottom halves of the men and women in the jury box from the gaze of others, as he talked to the twelve upper torsos supporting faces, not one of them as radiant as Francine’s, each trying to attend with intelligence every word that Roberts put before them.
“Yet,” Roberts was saying, “the defendant under oath, in front of you, said he had been there to do research before Professor Fuller died and not after. Did you believe him? Or was he lying? Edward Porter Sturbridge and Francine Widmer can’t both be right. In that garbage pail full of red herrings the defense has sloshed in front of you during this trial, the biggest was the suggestion that the Soviets would have benefited most from Martin Fuller’s death and that they could have sent any one of dozens of agents to kill Professor Fuller. They could have killed him on the street, or at the university, or in any one of dozens of places, but the fact is that none of these things happened, that Professor Fuller died in his own home, and only five other people were in the Fuller house during the period in which the means of his death was conveyed into the kerosene heater. Do you believe that Mrs. Fuller did it? Or that Mr. Heskowitz or Mr. Melling or Miss Troob did it? Or does the testimony and evidence convince you that the likely perpetrator was E
dward Porter Sturbridge acting on his own?
“If he did it on instructions from anyone else, that would not affect the charges against him, understand that.
“Counsel for the defendant has attempted to denigrate the evidence on the grounds that it is largely circumstantial. Those of us who spend our working lives bringing criminals to justice know that one rarely finds the killer standing next to the body, surrounded by eyewitnesses, a smoking gun in his hand.
“Consider this. You’re out looking for a new house, and the real-estate agent takes you down to the basement, it’s right after a heavy rain, and one wall of the basement is wet. It looks wet, it feels wet to the touch. Do you think the owner threw a pail of water up against the basement wall because he really doesn’t want to sell the house? You decide to look at other houses because we live in a world where most of our actions are governed by circumstantial evidence, and it is on such evidence that we make daily decisions in our lives.
“What we are here for, you are here for, is to determine, as I trust you will, that Edward Porter Sturbridge intended to and did in fact kill Professor Martin Fuller by the use of a weapon he made deadly by mixing gasoline into a kerosene heater, and that you will therefore find him guilty as charged on all counts.”
Ed whispered to Thomassy, “Son-of-a-bitch.”
“He’s doing his job,” Thomassy said.
The judge’s instructions to the jury were concise and clear. He defined everything carefully. He left nothing out, including the fact that they were to disregard the district attorney’s reference in his summation to Francine Widmer’s testimony, which did not meet the criteria he had set down. The jury was then sequestered and the reporters were permitted to head for their telephones.
“What do we do now?” Ed asked.
“We wait,” Thomassy said.
Ned Widmer made a phone call, then took Thomassy down to the cafeteria for tea. Thomassy ordered two cups of coffee delivered together with Widmer’s tea.
