“Your Honor,” I said, “we’re not offering it for the truth of the matter but as to why Mr. Stanzi believed what he believed when he conducted his investigation.”
“In that case I’ll allow it,” Judge Fleming said. He seemed interested.
“Mr. Stanzi?”
“No, Floyd Nickerson didn’t say he was there and heard the shots. I can’t remember how he knew there were three shots. But he knew it. He was positive.”
“Did he say he’d spoken to witnesses who were present when the shots were fired?”
“He may have. I really don’t remember.”
I believed him. I was sure Nickerson had been deliberately vague. Nickerson! Nickerson was the key, and Nickerson was dead.
“Did you or anyone else conduct a paraffin test of the hands and face of Darryl Morgan?”
“Yes, I did.”
“And of William Smith down at the morgue?”
“I did that too.”
“With what results?”
“Negative. But that didn’t mean that neither of them fired a gun. It’s only proof if there is paraffin. If there’s none, it doesn’t really tell you anything. People can wear gloves, they can hold a weapon at arm’s length. And we didn’t have the weapon, so we couldn’t tell if it normally threw off blowback or left residue when it was discharged.”
I couldn’t stop him from rambling. He was my witness, and theoretically a friendly one.
“Did you do a paraffin test of any of the people in the house?”
“Which house?”
“The house where Solomon Zide was killed.”
Stanzi looked puzzled. “No, sir. Why should we? The people in that house were the victims.”
I said, “Pass the witness.”
Muriel didn’t know in what direction I was heading, but she saw that thus far I hadn’t done any damage to the state’s thirteen-year- old case. I’d only shown that witnesses and lawyers were human and missed out on certain things they weren’t interested in and therefore weren’t looking for.
“No questions,” she said.
When we broke for lunch I looked toward the rear of the courtroom. Connie and Neil were still there. She was dressed in a gray suit today, as she had been when I first met her on that afternoon outside Dillard’s, and her son was wearing a cotton windbreaker and baggy white trousers and a Melanesian coral necklace.
Then I also saw Tahaun Powers, Darryl’s son. Tall and somewhat solemn, in white Nike T-shirt and bluejeans, he sat squeezed among a group of retirees, jovial courtroom groupies who frequented all the high-profile cases.
I went right up to him. “Tahaun … you remember me?”
“Sure,” he said. “The lawyer. How are you, man?”
“Good. Where’s your mother?”
“I came alone.”
“How’d you get up here?”
“Bus.”
“Come have lunch with us.”
I introduced him to Toba. The least I could do was give some warmth to this son of the man whose life I was fighting for. Maybe, wherever my own son was headed, someone would offer an equal simple kindness.
I ate a grilled cheese sandwich and drank nearly another quart of coffee. When we went back to the courtroom, Toba said to Tahaun, “Please sit with me.”
“Sure,” he said. He finally smiled a little.
The bailiff called for order as I moved forward to the counsel table. The throng settled into the wooden pews and became quiet.
“The defense,” I said, “calls Terence O’Rourke.”
How do you set about locating a man of seventy-two, who has disappeared from view, without alerting his former employers that you’re looking for him? You put a seventy-five-year-old woman on the job and tell her to be discreet and send you the bill for her expenses when she’s finished. I had found him with the help of my mother, whose aid in a court case I had enlisted for the first time in my life.
Sylvia was thrilled to get the assignment. In only a few days she had tracked her quarry to a small rest home only a hundred yards from the ocean on Flagler Beach, south of St. Augustine. It was pricey there, but that wasn’t a surprise. Terence had been given a handsome pension.
He was lucky to be alive.
The courtroom door swung open to admit Terence, Gary, and my mother, as well as an escorting bailiff. The previous morning, before I’d flown to the frozen North, I’d asked Sylvia to bring her catch here today and keep him occupied in the Lawyers Lounge until we gave the word. Charm him, I told her. Don’t let him out of your sight.
“You’re not matchmaking now, are you?” she’d asked me. “Because I can take care of that business myself.”
“I have no doubt of it.”
“Do you know how many propositions I get, on the average, each week?”
“Tell me another time, Mom.”
Terence was a monkey-faced man with sparse white hair, protuberant eyes, and horn-rimmed spectacles, round-bellied now but still conscious of his dignity. He wore a sport jacket and a brightly striped regimental tie for the occasion. He had been a cop in Orlando and, like most cops, had served his time on the witness stand. He knew what to do, and he still had a bit of a lilting Irish brogue.
I had him identify himself and provide some background. Then I said, “Sir, were you a witness in 1979, in Florida v. Morgan?”
“No, I was not.”
“You were neither subpoenaed nor asked by either side to testify?”
“No, sir, I was not.”
“Were you ever interviewed by any police officers or anyone from the state attorney’s office?”
He related to the court that Sergeant Floyd Nickerson had talked to him on two or three occasions, had tape-recorded one conversation with him, and had finally thanked him and explained that since Terence’s story corroborated what everyone else said, he wouldn’t be needed as a witness. And no, not a soul from the state attorney’s office had ever come round to talk to him.
And I remembered why. A few weeks before the trial, Nickerson, in response to my query, had said, “O’Rourke? Waste of time. He was asleep. He barely remembers the whole fucking night. He’s a lush. He’s unreliable. What do you need him for?”
I hadn’t argued with that. I had been a busy man, winding up my affairs in more ways than one, and I wasn’t at all keen then to put on a witness who might have fixed his ex-cop’s eye on me and remembered that I’d come calling on Mrs. Zide when her husband was in Hong Kong, and had ended up in the swimming pool with all my clothes on.
“Mr. O’Rourke,” I said, “did you follow the Morgan trial in the newspapers and on television?”
“No, I was on vacation around that time.”
“Where did you go for that vacation?”
“I have a married daughter, Claire, who lives in Colorado, and a married son, Dennis, who lives in Manhattan Beach, which is near Los Angeles. I went out west to visit both of them.”
“Do you recall anything unusual, Mr. O’Rourke, about that vacation?”
“Well, the way it came about was a little unusual, you could say, if you had a mind to think that way, which I don’t mind telling you I did not, for the Zides were fine people to work for.”
He had made his point and established his loyalty.
“Nevertheless,” I said, “tell us what might have been considered unusual.”
“It was that I had a week due me in summer, but Mrs. Zide came to me one night in February—poor lady still had her face all bandaged up from that awful night—and she said she’d prefer I take my holiday earlier, in the spring, for reasons that I don’t at this moment recall. And because it might be an inconvenience, she said, I could take longer than was due. She indicated she was pleased with my work too, which accounted for her generosity. I thanked her and said I surely wasn’t going to turn down a kind offer like that.”
“How long were you away from Florida?”
“She gave me three weeks off with pay, she did. I was half the time in Denve
r and half in California. I have a total of seven young grandchildren out there.”
“And so you missed the Morgan trial?”
“I was away for all of it, yes, that’s what I’m telling you.”
“The Colorado and California newspapers didn’t cover the trial?” “I read something about it, but I can’t remember where. I believe I read that Morgan had been convicted and sentenced to death. But that was all.”
“Mr. O’Rourke, I have to ask you some questions that may embarrass you, and I apologize in advance.”
He flushed a little; he knew more or less what was coming. I’d talked to him at some length out on the porch of the rest home at Flagler Beach. But I hadn’t coached him—I didn’t believe in it, because it tended to make witnesses sound stiff—and that lack of certainty as to exactly what I might ask was making him a little nervous.
“That’s all right, sir,” he said.
“Do you have a drinking problem?”
“I don’t now, but I did. I want to say that I owe my success in licking my problem to the Flagler Beach chapter of Alcoholics Anonymous and to the divine intervention of our Lord Jesus Christ.”
I let him enjoy the silent respect of the courtroom for a minute, and then said, “Did you have a drinking problem back in 1978 and 1979?”
“I took a wee drop now and then.”
“On the night of December 5, 1978, the night of your employer’s murder, were you drunk?”
“That is not a fact, sir. That is definitely an exaggeration. It would be accurate to say I’d a drop taken.”
If there were a jury I would have pressed the point and pinned him down, but I had only to worry about Judge Fleming, and when I glanced up I could see by the look in the judge’s hooded eyes that he understood completely the euphemism that Terence had elected to use.
“Mr. O’Rourke, cast your mind back and tell us—as best you recall, for it was a while ago—what happened on that night of December 5, 1978.”
He was on duty, he said, down at the main gate. There was a party. A good many cars moving in and out, and classical music was played out on the lawn by an orchestra.
“You were alone at the gate?”
No, he had help: a young fellow, the day man. But that young fellow left at midnight after they’d checked their in-out sheet and were sure that all the guests and caterers had departed.
“And then you were alone at the gate?”
“Yes, I was alone.”
“You stayed awake?”
“Not all the time. I must have been dozing at one point.”
“What woke you?”
“A shot.”
“You heard a shot?”
“Indeed. At least, I knew later that it was a shot. And I know now. At the time I wasn’t sure. It sounded like a shot, but in the middle of a dark night, and not expecting it, who was to say? I’d been dozing, and the shot woke me. I told you that. I’m not proud of it, but I’m human, and by God it’s a fact.”
“I understand. So you woke up at the sound of what you thought was a shot, but you weren’t absolutely sure it was a shot.” I paused. “By the way, when you say ‘a shot,’ do you mean, literally, a single shot, or many shots?’
“A single shot is what I meant.”
“When you woke, were you wide awake or dazed?”
“I’d a drop taken. I told you that too.”
“But try to answer my question, please, Mr. O’Rourke. We’re human too, and we understand. Were you wide awake or dazed?”
“Not wide awake. Not dazed. It would be correct to say I was awake but a trifle sleepy.”
I had to settle for that; he was already pink with shame. “And what did you do in response to hearing what you believed might be a single shot?”
Terence O’Rourke sighed a bit mournfully, a bit bravely. “Nothing. I waited.”
“How long?”
“It would be fair to say … a minute or two.”
“And after that minute or two, did you hear anything else?”
“I heard more shots.”
“How many more?”
“Three or four, I believe. If I had to choose, I’d say three.”
“The three shots were together or spaced out?”
“Close together. One after the other. Like bang bang bang.”
“And these last three bangs occurred a minute or two after you heard a single shot?”
“That’s correct.”
“You’re sure of that?”
“Yes, sir.”
“When you heard the three shots, what did you do?”
“I took my pistol out of my holster, and I went up to the house.”
“You walked up there?”
“With a flashlight in my hand, I did indeed.”
“Were you frightened?”
“Yes,” Terence said quietly.
“Did you run up there?”
“I was close to sixty years old then, sir, and a little woozy from sleep, and frightened, as I’ve admitted. No, I did not run.”
“Did you walk rapidly?”
“It would be fair to say no, I did not. Not really.”
“You strolled?”
“No, sir. I walked at a normal and cautious pace through the darkness, with my flashlight.”
“How long did it take for you to get to the house?”
“Maybe three minutes.”
“And did you go in?”
“First I shone the beam of my flashlight around, to see if any prowlers were about, and Mr. Zide must have seen it, for he came out to meet me on the gravel.”
“Mr. Zide?”
“Young Mr. Zide. Mr. Neil, him as what’s here in the courtroom with his mother. Not Mr. Solomon. He had passed on.” Terence crossed himself.
“Did you know Mr. Solomon was dead—had passed on—when you got to the house?”
“The terrace faced the beach. I came up the driveway to the front door. What I’m saying is, no, I didn’t know Mr. Solomon was dead, and no one told me he was dead until a great deal later that night. What happened is, when I reached the house Mr. Neil came out and said to me, ‘Terence, a terrible thing has happened. We’ve sent for the police. Go back to the gate and wait for them.’ “
“And did you do that?”
“First I asked him if he was all right, and if there wasn’t anything I could do. He looked pale and he was shaking. He said, ‘No, go back to the gate, man. Do as I say.’ And I did that.”
“And did the police come, as Neil Zide had said they would?”
“Yes, indeed they came.”
“How much later?”
“Thirty-five minutes later.”
“Thirty-five? Not ten, or twenty, or forty?”
“No, sir, it took them thirty-five minutes to arrive.”
I pretended to be puzzled, and to think about what he’d said. “Mr. O’Rourke, how can you be sure of the time interval?”
“We kept an in-out list, a log. I wrote down the times.”
“I see. And did anyone else come before the police got there?”
“One person. Mr. Neil called down to the gate a few minutes after I got back there. He said a man would be arriving shortly and I should let him in and not talk to him.”
“Do you remember the name of that man?”
“I do now, sir.”
“Explain to the court what you mean by that.”
“I didn’t remember it when you asked me last week, but then you offered a few names to me, and one of them seemed right, and I remembered it.”
“The name of that man?”
“Gambrel, it was.”
“And the man named Gambrel arrived approximately when?” “About fifteen minutes after I got back to the gate.”
“Twenty minutes before the police?”
Terence mulled that over and then said, “That would be correct.”
“You’re sure of these time intervals?”
“Yes, I am sure.”
“Because you
wrote all this down on what you call your in-out list? Your log?”
“I did indeed.”
“What happened to that log?”
He sighed. “I gave it to the detective who talked to me.”
“That would be Sergeant Floyd Nickerson?”
“Yes.”
“Did Sergeant Nickerson ever give the log back to you?”
“He did not.”
“Was anyone else present when you talked to Sergeant Nickerson, or when you gave him your log?”
“We were alone. First at the house that night, after the ambulance came flying up, and then later down at the sheriff’s office downtown.”
“Did you ever tell Sergeant Nickerson that you’d heard a single shot, and then three evenly spaced shots a minute or two later?”
“I told him that, sir. Indeed I did.”
“Did he write that down?”
“I believe he did, and in any case he had his machine running.”
“A tape recorder?”
“That’s what it was.”
“Did you ever tell Sergeant Nickerson that on the night of December 5 there had been only three shots and that you heard them all together, in succession, one after another?”
“I did not tell him that. It wasn’t so.”
“Were you aware that at the trial, back in April 1979, Mrs. Zide and Mr. Neil Zide testified that there had been only three shots fired by the accused, Darryl Morgan? And that they had all been fired at the same time?”
“No, sir, I’ve told you, I was in Colorado and then in sunny California with my children and grandchildren.”
“How soon after the death of Mr. Zide was your employment terminated?”
“About five years later.”
“Can you tell us the circumstances?”
“Mrs. Zide came to me and told me she wished to reward me for faithful service. She knew I had another daughter down in Daytona Beach, and that I thought of retiring there. She said the time had come, and she would take care of me.”
“Did she give you severance pay?”
“Yes, she did.”
“Tell the court how much.”
Terence hesitated, then said, “Two hundred and fifty thousand dollars.”
I was silent a few moments to let that sink in for the judge’s benefit. Then I asked Terence if he thought that was a lot of money. Predictably, he did.
Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller Page 32
