by Parnell Hall
I knew it was.
I knew everything Richard said made perfect sense. That he was, as usual, right, and that I was just being silly.
But I couldn’t help it. I’d had a problem with this case from the beginning, and my problem was exactly that. That we weren’t trying to prove who did it, only who didn’t.
That was the whole problem.
Richard didn’t care who did it.
I did.
35
“YOUR NAME IS SAM KESTIN?”
“That’s right.”
“What is your occupation?”
“I’m a banker.”
Well, that certainly sounded impressive. Sam Kestin wasn’t a person who worked in a bank. He was a banker. And he certainly looked the image—chubby, well fed, in his custom-tailored three-piece suit. Instead of answering Richard’s questions, he could just as well have been turning him down for a loan. I found that reassuring.
And I needed reassuring. My talk with Richard the night before had left me very ill at ease. And it wasn’t just that Richard had no interest in solving the crime. It went deeper than that.
In all the years of my association with Richard, I had always seen him as a sort of mythical figure, rushing in where angels fear to tread, confronting the upholders of the law, and beating them to a standstill. In all the times he’d interceded for me, he’d never been at a loss as to a course of action, as to what to do. And I, for one, had never doubted him. Argued with him sometimes, yes, but never doubted him. I guess what I’m trying to say is, I had never doubted that Richard had total confidence in himself. That he was always sure that he was doing the right thing.
That’s what was bothering me now.
In every other case, Richard had interceded with the police or the district attorney’s office in a short, snappy, effective manner, expediently accomplishing whatever needed to be done. But it had always been a simple, single task—get investigator released from jail, negotiate immunity in exchange for statement, or what have you. This was the first time Richard had ever taken a case to trial, and, while I knew it was his lifelong dream, it also seemed to me that, having achieved it, he wasn’t quite sure what to do.
Of course, like most of my opinions, I was in no way sure it was correct. For all I knew, Richard was totally in control and the course of action he had chosen to pursue was absolutely right.
At any rate, I had to agree with his choice of Sam Kestin as his opening witness.
His direct examination wasn’t bad, either.
“Mr. Kestin, where were you on the night of October twelfth and the early-morning hours of October thirteenth?”
“I was in my town house on East Sixtieth Street.”
“Did you happen to see the defendant, Anson Carbinder, at that time?”
“Yes, I did.”
“When did he arrive at your house?”
“Around eight o’clock.”
“Eight o’clock on the evening of October twelfth?”
“That’s right.”
“And what time did he leave?”
“Two in the morning.”
“And did he leave your house at any time between the hours of eight o’clock and 2:00 A.M.?”
“No, he did not.”
“The defendant, Anson Carbinder, was in your house from eight o’clock until 2:00 A.M.?”
“That is correct.”
“Thank you. No further questions.”
My mouth fell open. No further questions? I hadn’t known Richard was going to do that. He’d left out the poker game, the big hand, and all the other witnesses. In short, all the information I’d worked so hard to get.
And, in a flash, I realized what a great move it was.
ADA Wellington couldn’t leave the testimony unchallenged. He had to cross-examine. And it would be like walking through a mine field. Sam Kestin would get all the damaging information in. And ADA Wellington would be the one bringing it out.
My faith in Richard’s abilities soared.
ADA Wellington got to his feet, stalked the witness stand. The man did not look happy. He stood so the jury could see his face, as his eyes bored into the witness. His expression was classic. It instantly conveyed the idea that he was a man confronted by a habitual perjurer, incapable of telling the truth.
“You’re a banker, Mr. Kestin?”
“That’s right.”
“Just what do you do in your bank?”
“I’m an executive.”
“Uh-huh,” Wellington said. Kestin might as well have told him he was a car thief. “And as an executive, what is it you do?”
“I approve loans.”
“You approve loans? By that you mean automatically, anyone who applies for a loan gets one?”
“Objection, Your Honor,” Richard said. “Incompetent, irrelevant, and immaterial.”
“It was brought out on direct examination, Your Honor,” Wellington said. “Counsel asked him what he did.”
“Overruled,” Judge Blank said. “But do try to move it along.”
“Yes, Your Honor. Is that the case, Mr. Kestin? That you approve every loan you get?”
“Certainly not.”
“Then your job isn’t to approve loans, it’s to decide whether they should be approved or not.”
“Yes, of course.”
“Some you approve, some you turn down.”
“That’s right.”
“What percentage do you turn down?”
“Objection.”
“Sustained.”
“But you do turn down some?”
“Yes, I do.”
“So, when I asked you what you did, and you said you approved loans, you weren’t being entirely honest, were you?”
“Objection.”
“Overruled. Witness may answer.”
Sam Kestin did not appear the least bit ruffled. “I was being entirely honest. My job is to approve loans. That is the way it is generally referred to by me, by my associates, and by every other banker I’ve ever met. To approve loans automatically carries with it the converse, to reject loans. So it is not necessary to say it.” Kestin smiled. “Believe me, I was not attempting to deceive you or the jurors in stating that I approve loans.”
“Maybe not,” Wellington said. “But is it or is it not a fact that the reason bankers refer to what they do as approving loans is because it puts them in a positive light?”
“I really couldn’t say.”
I could almost feel sorry for ADA Wellington. He was obviously feeling his way along, testing the waters, trying to work up the nerve to dive in.
Finally, he did.
“Mr. Kestin, you have stated that the defendant was in your house from eight o’clock on the evening of October twelfth until 2:00 A.M. on October thirteenth? Is that right?”
“Yes, it is.”
“And just what were you doing at that time?”
“I refuse to answer on the grounds that an answer might tend to incriminate me.”
And the place went wild.
36
OH, BOY.
Good move.
I had to hand it to Richard. What he’d done was obvious, but I hadn’t even thought of it.
Sam Kestin had been playing poker.
That’s illegal.
That’s gambling.
By saying so, Sam Kestin would incriminate himself in the commission of a crime. He had a constitutional right not to do that, Richard had so advised him, and he had just invoked it.
Of course, no one in the courtroom except Richard and I knew that. For all they knew, Sam Kestin was guilty of the goddamn murder.
Hence the uproar.
At any rate, Judge Blank banged for silence, which was not quick in coming.. When court finally quieted down, he ordered counsel into his chambers, turned on his heel, and stalked off, with Richard and ADA Wellington trailing along behind.
This abrupt departure left the jurors in the box and the witness on the stand. With the judge g
one, no one was quite sure what to do with them. I saw a couple of the court officers confer and then glance in the direction of the judge’s chambers, but it was clear neither one of them would have dreamed of disturbing him.
So there we sat, in suspended animation, for a good three-quarters of an hour, until the door finally banged open and Judge Blank returned to the bench. I can’t say he looked any happier than he had when he left. Neither did ADA Wellington.
Richard looked positively serene.
When they had all resumed their positions, ADA Wellington approached the witness and said, “Mr. Kestin, you have refused to answer my question as to what you were doing on the evening of October twelfth on the grounds that an answer might tend to incriminate you. Is that correct?”
“Yes, it is.”
“May I ask if you have consulted an attorney who has advised you of this constitutional right?”
“Yes, I have.”
“Did you make a full and frank disclosure of the facts to this attorney?”
“Yes, I did.”
“And the attorney advised you that you did not have to answer this question on the grounds that an answer might tend to incriminate you?”
“Yes, he did.”
“Mr. Kestin, at this time, in my official capacity as a representative of the district attorney’s office, I hereby grant you full immunity from any crime other than murder that may be disclosed by the answer to this question, and ask you again what you were doing in your town house on the evening of October twelfth.”
“One moment,” Judge Blank said. “Before you answer, Mr. Kestin. Let me make sure you understand the situation. Are you aware that the prosecutor is granting you immunity from prosecution for any crime that your answer might disclose?”
“Yes, Your Honor.”
“Are you aware that, by so doing, he is removing the need for you to protect yourself by invoking your constitutional rights against self-incrimination?”
“Yes, I am.”
“Are you further aware, that since he has made this concession, that since you need no longer fear any prosecution for such crimes as might be disclosed in your answer, that you are no longer eligible to invoke your constitutional privilege against self-incrimination and that you are therefore required to answer—in fact, should you now fail to do so, you could be held in contempt of court?”
“I understand, Your Honor.”
Judge Blank nodded. “Fine. You may proceed, Mr. Wellington.”
“Thank you, Your Honor. Now, then, Mr. Kestin. What were you doing on the evening of October twelfth and the early-morning hours of October thirteenth?”
“I was playing poker.”
After all that, the admission was quite an anticlimax. But Wellington didn’t seem a bit fazed. Obviously, it had been discussed in chambers. “You were in a poker game?”
“That’s right.”
“Who else was at this poker game?”
Sam Kestin ticked them off on his fingers. “Marvin Wainwright. Ollie Pruett. Barry Brown. Phil Janson. Tim Hendricks. And Anson Carbinder.”
ADA Wellington just stood there glaring at him. His distress was obvious. Sam Kestin had just blown his case out of the water. The only question was, did he dare try to salvage it?
Not that big a question. The way things stood, he didn’t dare not to.
“Mr. Kestin. The people you’ve just named—they were all there from the hours of eight o’clock until 2:00 A.M.?”
“I didn’t say that.”
“Well, you certainly implied it. But if that’s not the case, would you kindly tell me who was there when?”
“All the people I named were there from eight o’clock until 2:00 A.M., with the exception of Tim Hendricks. Tim always leaves at midnight. This night was no exception. He left then. Everyone else stayed until the game broke up at two.”
“Including Anson Carbinder?”
“That’s right.”
“And did Anson Carbinder leave the poker game at any time during the course of the evening?”
“No, he did not.”
Wellington frowned, thought a moment. “Mr. Kestin, this poker game was in your town house?”
“That’s right.”
“Is this the only poker game you’ve ever had in your town house?”
“Objection, Your Honor,” Richard said. “Incompetent, irrelevant, and immaterial. Also, that question is on its face an attempt to get the witness to incriminate himself by disclosing other crimes not included in the stipulation of immunity.”
“Overruled,” Judge Blank said. “But the witness will indeed be warned that he has not been granted immunity from any other crimes his answer might disclose.”
“Then I decline to answer on constitutional grounds,” Kestin said.
Wellington’s frustration was evident. “Your Honor,” he said. “I would like to pursue this matter, for reasons that will become clear. I therefore stipulate that my grant of immunity shall be extended to include any and all poker games in which the witness has participated, which took place in his town house. With this stipulation in place, I would like that question answered.”
“So ordered,” Judge Blank said. “Mr. Kestin, do you understand that you may now discuss poker with no fear of incrimination?”
“Yes, Your Honor.”
“Proceed.”
“Mr. Kestin, was that the only poker game you have ever had in your town house?”
“Of course not.”
“You’ve played there several times?”
“Yes, we have.”
“This year, for instance—have you played there other times this year?”
“Yes, we have.”
“How often do you play cards?”
“Usually once a month.”
“Was it always at your house?”
“No. But it often is.”
“Prior to October twelfth—had you recently hosted other games?”
“That depends what you mean by recently?”
“I mean within the last few months.”
“I believe I had, yes.”
“You named half-a-dozen people who played in this game. Tell me, is it always the same people who play?”
“I beg your pardon?”
“The people you named—are they the only people who ever play?”
“No, of course not.”
“Why not?”
“Everyone is not always free. People have engagements, they’re out of town.”
“I see. So when some people are busy, other people play?”
“That’s right.”
“So there are other regulars who have been to your house, besides the six you just named?”
“That’s right.”
“Then, let me ask you this. Is it not possible, is it not conceivable, that when you mention Anson Carbinder as having been at your poker game, you are remembering him being there, not from the game in October, but from some previous game? And that on October twelfth, the date that you mention, it was some other player who was there instead?”
“No, that is not possible.”
“How can you be so sure? This happened over a month ago. How can you tell you’re not confusing what happened then with what happened at some other time?”
Sam Kestin smiled. “It may be over a month ago now, but when it was brought to my attention it was fresh in my mind. Anson Carbinder’s wife had just been killed. My first reaction when I heard that was, My god, he was just here.”
“But not necessarily that night,” Wellington said, “just here is a relative term. You might feel that way, even if the game had taken place last month.”
Kestin shook his head. “No, no. I remember particularly, because of the high/low hand.”
And there it was again. ADA Wellington either had to let that go or cross-examine.
He tried, for all the good it did. Because Sam Kestin cheerfully launched into an explanation of the big high/low hand, when Anson Carbinder had ace, two, thr
ee, four showing, and everyone expected him to go low, only he’d had a concealed full house and gone high. Sam Kestin remembered it particularly, because he’d had a nine low, and could have taken half the pot, but had chosen to go high with three eights.
I’m not sure ADA Wellington followed that, and I’m pretty sure none of the jurors followed that. The poker part, I mean. But it didn’t matter.
Not after Sam Kestin got through telling about how guilty he felt for thinking how lucky Anson was to have won that hand, and then finding out his wife had been killed.
The jurors might not have understood the intricacies of high/low poker.
But they sure knew Anson Carbinder had been in the game.
37
WHEN COURT RESUMED AFTER LUNCH, BARRY BROWN TOOK the stand, and proved just as good a witness as Kestin. As much as I disliked the guy, I had to admit he came off well. His testimony was brief and to the point—he’d been at the game, Anson Carbinder had been at the game, and he had not left until the game had broken up at two.
Then Wellington went to work on him. You’d think there wouldn’t be anything to work on, but actually there was. See, at Wellington’s insistence, all the witnesses were under the rule. What that means is, they were not allowed to sit in court and listen to the other witnesses give testimony. So Barry Brown hadn’t heard what Sam Kestin said.
Which left Wellington his opening. He could pick Barry Brown’s testimony apart, looking for an inconsistency. So that’s what he did.
“Tell me, Mr. Brown, who were the other people in the game?”
(And, oh, yes, Barry Brown had also been granted immunity.)
“Anson Carbinder. Sam Kestin. Ollie Pruett. Tim Hendricks. Phil Janson. And Marvin Wainwright.”
