by Parnell Hall
“Certainly. It was a Colt.45 revolver with the initial R carved in the handle.”
“You’re certain of that?”
“Absolutely.”
“Did you touch the gun?”
“No, I did not.”
“But you could see the R in the handle?”
“Yes, it was facing up.”
“Tell me, had you ever seen that gun before?”
“Objected to as leading and suggestive,” Steve Winslow said.
“Sustained,” Judge Hendrick said. “Mr. Vaulding, this is an area where for obvious reasons care should be taken not to lead the witness.”
“Yes, Your Honor.”
“Rephrase your question.”
“Yes, Your Honor. Mr. Kessington, at the time that you saw the gun, did you think that you recognized it?”
“Yes, I did.”
“What did you think you recognized it to be?”
“When I saw the gun, I thought it was a gun from Russ Timberlaine’s collection. Specifically, a collector’s item, a gun once owned by Pistol Pete Robbins.”
“You were familiar with this gun?”
“Yes, I was.”
“You had seen the gun before?”
“Yes, I had.”
“You are familiar with all of the guns in Russ Timberlaine’s collection?”
“No, I am not.”
“Why were you familiar with that particular gun?”
“It had been brought to my attention.”
“By whom?”
“By Russ Timberlaine.”
“Russ Timberlaine brought that gun to your attention?”
“Yes, he did.”
“When was that?”
“The week before the murder.”
“Can you be more specific?”
“No, I can’t. It was on one of the days of the week before the murder. I believe it was toward the beginning of the week. Might have been Monday or Tuesday. Possibly Wednesday.”
“At any rate, Russ Timberlaine brought it to your attention?”
“Yes, he did.”
“How did that happen?”
“He called me into the gun room and showed me the gun.”
“Where was it?”
“In a glass-topped case.”
“Was the gun in the case at the time?”
“Actually, the case was open and Russ Timberlaine had taken it out of the case.”
“And he showed you the gun?”
“Yes, he did.”
“Did he make any statement to you at the time?”
“Yes, sir. He said this was not his gun. He said he believed his gun had been stolen and that this was a duplicate that had been left in its place.”
“Why was he pointing this out to you?”
“He wanted to know who could have had the opportunity to have taken the gun. See, the case it was in had been kept locked. Unfortunately, one of the keys to it was kept in the office, which was not kept locked.”
“Did you point this out to Russ Timberlaine?”
“Yes, I did.”
“What did he say?”
“He seemed to think if the gun had been taken, it must have been two weekends before when there had been guests at the mansion. He wanted to know if I had seen anyone going in or out of the office on that occasion who might have taken the key.”
“And had you?”
“No, I had not.”
“Getting back to the gun that you found lying next to the body-you said when you saw the gun you first thought it was the original Pistol Pete gun?”
“That’s right.”
“If I understand your testimony, you knew that that gun had been stolen.”
“Yes, I did.”
“Then why did you assume that the gun next to the body was the stolen gun and not the one that had been found substituted?”
“From what Mr. Timberlaine said. When he called me in and showed me the substituted gun.”
“What was that?”
“He suspected something like this would happen.”
That answer was greeted by a loud murmur in the courtroom. Judge Hendrick silenced it with his gavel.
“That was the week before the murder?” Vaulding asked.
“That’s right.”
“And Russ Timberlaine told you he suspected something like this would happen?”
“Not this exactly, of course.”
“Yes, but something similar?”
“Objection.”
“Sustained.”
“Mr. Kessington, to the best of your recollection, what exactly was it Russ Timberlaine said?”
“He said he was afraid someone had stolen his gun to frame him for a crime. He said, ‘What if my gun were found at the scene of a crime? Everybody knows it’s my gun. I’d have a devil of a time proving I didn’t do it.’”
“I see. So when you saw the gun lying next to the body …?”
“I thought of what Russ Timberlaine said, of course. That’s why I immediately thought it was the stolen Pistol Pete gun.”
“I see,” Vaulding said. “Now, tell me. When you first found the body of Jack Potter, who was there?”
“Mr. Winslow and Miss Garvin.”
“As I understand your testimony, she came and got you and brought you to the gun room. When you got back there, who else was there?”
“Just Mr. Winslow.”
“The three of you were alone with the body?”
“That’s right.”
“What happened next?”
“I phoned the police.”
“You did?”
“That’s right.”
“Why you? Why not Mr. Winslow or Miss Garvin?”
“Because it would have been awkward. They didn’t have access to a phone.”
“Could you explain that?”
“Yes. There are very few outside lines in the Timberlaine mansion. There are phones in the rooms, but they are for internal use only. More like an intercom system. There are very few outside lines.”
“Why is that?”
“Mr. Timberlaine used to have a multi-lined system with regular phones in the rooms. But with so many weekend guests it was almost inevitable that people would abuse the privilege. Having people call California was one thing, but we had people calling Europe. Phone bills were astronomical. So the phones were switched over to an in-house system for the rooms, with only a few select outside lines. I, of course, had access to the one in the office, so I placed the call.”
“I see. And that is why you went to call, instead of staying with the body?”
“That’s correct.”
“And while you went to call, did you take any steps to see that the body was left undisturbed?”
“Yes, I did.”
“And what did you do?”
“I left Mr. Winslow and Miss Garvin to watch it.”
“You left them alone with the body while you went to call the police?”
“Yes, I did.”
“When you finished calling the police, what did you do?”
“I went back to the gun room and waited with Mr. Winslow and Miss Garvin for the police to arrive.”
“Mr. Winslow and Miss Garvin were there when you returned?”
“Yes, they were.”
“How long were you gone calling the police?”
“Not long. Maybe five minutes.”
“When you returned from calling the police, did you look at the body and the gun?”
“Yes, I did.”
“Was it just as you had left it?”
“Yes, it was.”
Vaulding picked up one of the exhibits, extended it to the witness. “Mr. Kessington, I hand you a gun marked People’s Exhibit Three and ask you if you have ever seen it before?”
Kessington took the gun and looked it over. “I can’t be sure. It looks like the gun I found next to the body.”
“But you can’t swear to it?”
“No, I cannot.”
“I hand you another gun marked People’s Exhibit Four and ask you if you have seen that gun before.”
“Again, I can’t say. It also looks like the gun I found next to the body.”
“You can’t tell which of these guns that was?”
“No, sir.”
“It could have been either of them?”
“That is right.”
“I am referring to the gun that you found next to the body when you first discovered the body of Jack Potter. You say that could have been either of these two guns?”
“That’s right.”
“Then when you returned from calling the police-the gun that you examined on the floor next to Jack Potter at that time-that could have been either of these two guns?”
“That’s right.”
“You could not say which gun it was?”
“No, I could not.”
“In other words, you can’t tell these guns apart, can you?”
“No, I cannot.”
“It could have been either gun you saw the first time?”
“Yes, it could.”
“And it could have been either gun you saw the second time?”
“Yes, it could.”
“Can you swear it was the same gun you saw both times?”
Kessington frowned. “I think it was.”
“But can you swear to it? You say you can’t tell the guns apart. Then how could you tell that the gun that you saw when you first entered the room was the same gun that you saw lying there when you returned from calling the police?”
Kessington frowned again. “Actually, I guess I couldn’t.”
“And you were gone calling the police for how long?”
“About five minutes.”
“Who was present in the gun room when you left to call the police?”
“Mr. Winslow and Miss Garvin.”
“Who was present in the gun room when you returned from calling the police?”
“Mr. Winslow and Miss Garvin.”
“No one else?”
“No one else.”
“And you cannot positively identify the gun you saw lying next to the body when you first entered the room? And you do not know whether or not it was the same gun you saw lying there when you returned from calling the police?”
Kessington took a breath. “That’s right.”
Vaulding smiled. “Thank you. That’s all.”
40
Steve Winslow shook his head. “It’s insidious.”
“I know,” Tracy said. “What can you do about it?”
Steve leaned back in his desk chair, shook his head again. “Nothing. That’s the problem. Vaulding’s within his rights. Everything Martin said was true. We were left alone with the body. And he can’t tell one gun from another. Two indisputable facts. But taken together in just that way, it’s devastating. I mean the son of a bitch is virtually accusing me of switching guns.”
“You did switch guns.”
“Not then.”
Steve looked up to find Tracy grinning at him. “All right,” he said. “I know it’s ironic. But it’s not at all the same thing. What he’s accusing me of. Or at least insinuating that I’m guilty of. Switching guns with the murder weapon. There’s a big difference between doing that and switching guns a couple of days before the murder. In one instance I’m obstructing justice, compounding a felony and conspiring to conceal a crime.”
“Right,” Tracy said. “And in the other case you’re just a good ol’ boy switchin’ guns.”
“There’s a huge difference.”
“Granted,” Tracy said. “But clear something up for me. What would have been the point of your switching guns?”
“That’s the thing,” Steve said. “In the clear light of day, when you think the thing out, not much. But the way things stand, it’s a little different. Throughout the whole trial I’ve been harping on the fact that maybe the cops got the wrong gun. Even in my opening argument-keep your eye on the gun. Then leaning on Lieutenant Sanders about his marking the guns and wasn’t it possible he made a mistake. And making the ballistics expert jump through hoops. Always with the insinuation maybe someone mixed up the guns. And here’s Vaulding throwing it back in my face-‘if anyone switched guns, you’re the most likely person to have done it.’”
“Or ‘Miss Garvin,’” Tracy mimicked. “Think you could point out I ought to be addressed as Ms.?”
“That’s the least of your worries. If they get me for gun switching, you’re at least an accessory and most likely an accomplice.”
“You still didn’t answer my question.”
“What question?”
“What did you have to gain by switching guns? For the murder weapon, I mean. The way Vaulding’s insinuating. You told me why he’s making the argument. That’s obvious. But what’s your motivation? What reason can he give for your doing it?”
“To protect my client, of course. I see the gun lying next to the body and recognize it as Timberlaine’s gun. The one he consulted me about. Which the jury already knows about from Donald Walcott’s testimony. I send Martin off to call the cops. Then I take the gun, dash upstairs and show it to Timberlaine. Ask him if it’s the gun he was wearing at the auction. He says, ‘Hell, no, I’ve got that gun right here.’ I tell him he’s in deep shit, and ask him for something to scratch up the barrel of the gun. He gives me the rat-tailed file. I take it, rough up the barrel, swap that gun for his, take his gun back downstairs and plant it next to the body just before Martin gets back from calling the cops.”
“Yeah, but why?” Tracy said. “For what reason? What good does all that accomplish?”
“It screws the facts of the case up to the extent that the evidence all comes out cockeyed. It lets me make the arguments I’ve made against Lieutenant Sanders and this ballistics expert. It lets me imply the cops are the ones who screwed the evidence up. If the cops screwed the evidence up, there’s no way Vaulding gets a conviction, and my client goes free.”
Tracy frowned. “Yeah, but …”
“But what?”
“That still doesn’t make sense.”
“Why not?”
“Because in that case the cops got the wrong gun.”
“What do you mean?”
“Well, no, they don’t. They’ve got the murder weapon. It was in Timberlaine’s holster. And it’s there because you put it there. After scratching it up with the rattailed file. But that would mean that gun was the gun originally found next to the body. Before you switched it. Right?”
“This is getting very messy,” Steve said. “We really should have a map with push pins, you know?”
“Stick with me a moment. This one’s simple. If you swapped the gun next to the body for Timberlaine’s gun, and that’s how the gun in Timberlaine’s holster turned out to be the murder weapon, that would mean the gun we originally found next to the body was the duplicate, and the gun in Timberlaine’s holster that you swapped it for, the gun he was walking around with all day, would be the original Pistol Pete Robbins gun.”
“Yeah. So?”
“It doesn’t add up at all. How do you explain that Timberlaine’s ‘got the real thing, baby,’ instead of the can of Coke?”
“Commercials? You’re throwing commercials at me?”
“You know what I mean. If the real gun was stolen, how did Timberlaine get it back?”
“We’ve only got his word for that. If he made it up, then he’s got both guns, and he can plant them wherever he pleases.”
“In which case he’d be guilty of the murder.”
“Exactly.”
Tracy gave him a look.
Steve cocked his head. “Sweetheart, in those books you read the client is always innocent. Otherwise there’d be no book. It doesn’t always work out that way. Believe it or not, occasionally a person is accused of a crime because he actually did it.”
“You think Timberlaine’s guilty?”
“No, I don’t. But when you start try
ing to explain facts away and negate theories, if you want to dismiss guilty motives as possible explanations, you’re really narrowing your sights.”
Tracy frowned. “Yeah, I know.”
“And,” Steve said. “You have to take into account the fact that, since Timberlaine came to call on us and laid this story in front of us with all due candor, we have found out he neglected to tell us that he had purchased an identical gun.”
“Right.”
“So, naive as Timberlaine may seem to be, we still have to consider what if that’s at least partly an act. For instance, what if Timberlaine wanted to kill Potter for some other reason, something that hasn’t come out yet? What does Timberlaine do? He sets up a reason for him to kill Potter that won’t hold water. That is on its face absurd. See what I’m saying? He employs the moron factor. He goes through the elaborate routine of having Crumbly bid against Burdett on a gun, knowing that Burdett will realize Crumbly is bidding for him and outbid him. And then pretend he’s angry at Jack Potter for letting the information out. It’s a ridiculous motive that won’t stand much scrutiny. You heard Burdett say it wasn’t the type of gun Crumbly would bid on, and he’d never bid that high anyway. Timberlaine had to know that. So the deception had to fail. And even with circumstantial evidence against him, how can you convict him of murder with a motive as shaky as that?”
“Good lord,” Tracy said. “Do you really think that’s true?”
“Of course not. He’s my client, and I think he’s innocent.”
“Fine,” Tracy said without enthusiasm. “That’s convincing as all hell. Look, can we go back to the gun switching a moment?”
“Which gun switching?”
“Yeah, right. Vaulding’s theory. You and I find the murder weapon, Martin goes for the cops, you grab the gun and run upstairs.”
“What about it?”
“You said Timberlaine gives you the file to rough up the gun.”
“Right. So?”
“Where did he get the file?”
“It was there in his room.”
“Why?”
“Because there wasn’t time for him to get it from anywhere else.”
“I know that,” Tracy said. “That’s just the point. There wasn’t time, and there’s no reason why he’d have that file in his room, so it couldn’t have happened.”
“But the file was in his room. It may not make any sense, but it was. Timberlaine even admits it was. He claims he found it.”
