by Anne Perry
“My point in raising the issue is to find out and prove to this court here today,” he explained, “exactly where that photograph came from, who provided it to the court at exactly that moment when it had the most dramatic effect, and why they would do such a thing.”
“I cannot comment on the reasons,” Gavinton replied. “And as to where it came from, you will have to ask Mr. Warne.”
“Oh, I intend to,” Wystan said with clear satisfaction. “Believe me, sir, I intend to.”
Rathbone had known he would, of course, and yet still his heart sank. He looked at the jury, trying to read their faces, but their expressions could have meant anything. He could not be certain that they even understood. They were clerks, storekeepers, dentists, all kinds of men-the sort he had been happy to trust with other people’s lives.
Brancaster rose to his feet. He looked far more confident than he had any right to be. He had started acting, at last! Perhaps a little too late.
Brancaster looked up at Gavinton. “This photograph, Mr. Gavinton. I do not wish you to describe it, to tell me who was in it or what they were doing. It has not been introduced into evidence; indeed, I have not seen it. And because he has not mentioned it to me, I assume Mr. Wystan has not seen it, or does not possess it himself, and has no intention of introducing it as evidence either. However, he has made a good deal of it in testimony.” He regarded Gavinton inquiringly. “I imagine it would be fair to say that it is the center of this entire case? Do I understand you correctly that it was at the point he saw this photograph that Mr. Drew changed his testimony to almost the exact opposite of what he had said before?”
“Yes, sir, that is correct,” Gavinton agreed. He was grim, but not yet anxious.
“You said that he appeared to be stunned, appalled by it, almost to the point of passing out?” Brancaster pursued.
Gavinton hesitated only a moment. “Yes … I suppose that is true.”
“You suppose?” Brancaster looked surprised. “Did you not say so, just a few moments ago?”
Gavinton was definitely annoyed now. His voice was sharp. “Yes. He was appalled. It was a very natural reaction, Mr. Brancaster. Any man would have been.”
“Really? Quite plainly you have seen this photograph. Perhaps you could explain that to the jury. In what way was it so very dreadful?”
Gavinton’s face twisted with disgust.
Rathbone wanted to rise to his feet and protest, but he could not. It was as if he were watching his own execution. What in God’s name was Brancaster doing?
“It was obscene,” Gavinton replied. “Pornographic in the extreme.”
Brancaster looked unmoved. “Really?” His eyebrows rose. “And you believe that Mr. Drew had never seen pornography before? He was sufficiently innocent of the facts of nature that seeing such a thing caused him almost to lose his senses and pass out in public? You amaze me. I might find such a thing in extremely poor taste, even disgusting, but I doubt I would lose consciousness over it.”
“You might, sir, if the pictures were of yourself practicing obscene acts with a small boy!” Gavinton’s voice was shaking. His knuckles were white where his hands gripped the rail. “I hope you would have the grace to-” He did not finish. The gasps from the jury and the wave of horror from the gallery made him realize what he had said, and his face flamed with embarrassment.
York banged his gavel furiously.
“Order! Order! I will have order. Mr. Brancaster, you are completely out of-” He stopped as Brancaster’s eyes opened wide in disbelief. York’s face was white. He turned to Gavinton and all but snarled at him. “You forget yourself, sir. One more outburst as utterly inappropriate as that and you will oblige me to declare a mistrial, and then we shall have to send the accused back to prison and await the setting of a date for a new trial.” He looked at Brancaster and then back to Gavinton. “And you will not go unscathed either, sir. Remember where you are, and control yourself.”
Gavinton closed his eyes, as if by doing so he could block out the room. “Yes, my lord.” He did not apologize.
York glared at Brancaster. “And no more parlor tricks from you, sir. This is an extremely serious matter, whether you appreciate it or not. There is more than a man’s honor and reputation in the balance, or even his freedom. It is the cause of justice itself.”
“I am aware of that, my lord,” Brancaster said without a flicker. “I was as much taken by surprise by Mr. Gavinton’s outburst as you were. I thought I had made it perfectly clear that I was not seeking such information.” It was a blatant lie-of course, it was exactly what he had been seeking-but he told it superbly.
York said nothing.
“Perhaps I had better excuse the witness, my lord,” Brancaster suggested. “I would be very loath to provoke another such … indiscretion.”
There was nothing York could do, but the dull flush of anger still stained his cheeks. Rathbone knew that he would bide his time and rule against Brancaster when he could. Was it Brancaster’s tactic to provoke York into doing something that would be grounds for appeal? A very dangerous course indeed, perhaps even lethal.
Rathbone should have burned the whole damnable box and smashed the plates into splinters the day Ballinger’s lawyer brought it to him. Too late now. Too late … the saddest words in the vocabulary of man.
They adjourned late for luncheon, and resumed again at about three in the afternoon.
Rathbone sat in the dock. He had found it difficult to eat, his stomach rebelling against the clenching of his muscles, his throat so tight that swallowing was almost impossible. He ate the watery stew and soggy potatoes only because he had to, and what he was offered was probably better than the food he would have from sentence onward.
He no longer understood what Brancaster was doing. He feared he was bluffing, playing for time, and that his earlier words of courage to Rathbone were empty. Now he was disturbing people, but possibly to no intended effect. What would it change, beyond lengthening the ordeal?
The next witness was Dillon Warne. He looked wretched. Rathbone knew it was inevitable that he would be called, but it was still painful to see him there and know what he would have to say.
He was sworn in and stood with his hands gripping the rail, his face tense and very clearly unhappy.
Wystan looked at him with grave disfavor.
“You acted for the prosecution in the case against Abel Taft, did you not, Mr. Warne?”
“I did,” Warne agreed.
“Did you have personal feelings, Mr. Warne?” Wystan inquired. “I mean, did you grow to feel very strongly about this case in particular?”
“I do find it peculiarly distasteful to see one of the witnesses for the defense mocking and humiliating people I believed to be both honest and unusually vulnerable,” Warne answered, looking straight back at Wystan.
“To the degree that you were very upset indeed when you thought you would lose the case?” There was the very slight suggestion of a sneer on Wystan’s face.
“A prosecutor who does not care is not worthy of the trust placed in him by the people,” Warne answered.
Wystan was annoyed.
At any other time, without his own future in the balance, Rathbone would have enjoyed the exchange. With some detached part of his mind he noticed the jurors’ attention sharpen.
“That is not what I asked, Mr. Warne,” Wystan said tartly. “As you well know. You are playing to the gallery, sir, and it is most unbecoming. Just because you have escaped prosecution for your part in this miserable and disgraceful affair, does not entitle you to attempt wit at the expense of the proceedings.”
Warne’s face flushed, and Rathbone was struck with a fear that just as Brancaster had baited Gavinton with indiscretion, Wystan could do the same to Warne. Why was Brancaster not objecting? Rathbone longed to stand up and shout at him.
Brancaster rose to his feet at last.
“My lord, that accusation is unfair and-”
Before he could
finish, York cut him off.
“Your objection is overruled, Mr. Brancaster. Please sit down, and do not interrupt again unless you have some point of law to make.”
Brancaster sat down as commanded. If he was annoyed he did not show it. Perhaps he had not expected to be upheld. He had succeeded in breaking Wystan’s rhythm, and Warne had regained his self-control. That might have been all he had wished for.
“I repeat my question, Mr. Warne,” Wystan said.
“It isn’t necessary, sir,” Warne interrupted him. “I was upset when I thought I would lose the case. I always am if I believe profoundly that the accused is guilty and that if not found so, will almost certainly continue to commit the same crime against more people.”
York leaned forward. “You could not know that, Mr. Warne. Please stick with the facts.”
Brancaster was on his feet. “My lord, with the greatest respect, Mr. Warne did not say the accused would reoffend, he said such was his belief and the reason he was upset at the prospect of an acquittal.”
York drew in his breath, then changed his mind and let it out again. But Rathbone knew from his face that he would not forget. Brancaster might have the jury on his side at the moment, and certainly the gallery, but he had irrevocably alienated the judge. It was a very risky tactic indeed. He must be desperate even to have considered it.
Wystan took up the thread again.
“Up to the point of your showing the photograph to the witness, Mr. Warne, did you believe you were losing?”
“Yes, I did,” Warne admitted.
“So this was a last, desperate attempt to win?”
“I would not have chosen the word ‘desperate,’ but I had no other tactic,” Warne conceded.
“And this obscene photograph, why did you not use it before?” Wystan pressed on. “In fact, why did you not show it to the defense, as the law requires? Were you afraid that if they looked into its provenance they would find it far from satisfactory? In fact sufficiently unsatisfactory that it could be excluded from evidence?”
“No, I did not!” Warne said sharply.
“Then why did you not produce it before, as you should have?”
Rathbone had seen the question coming. It was like watching a train crash, but so slowly that you could see the wheels spin and the carriages rear up before they toppled over and the sound of breaking glass reached your ears.
“I did not have it before,” Warne replied.
“Indeed?” Wystan affected surprise. “How did you come by it, then, in what appears to have been the middle of the night, Mr. Warne?”
“Sir Oliver Rathbone gave it to me.” Warne might have considered lying, or protesting privilege and refusing to answer, but it was clear that the truth was known, and it would add weight to the apparent misdeed if he gave the information only when forced to. Perhaps it was better to do it now, with some dignity.
If the jurors had known or guessed before, they still looked stunned. With Warne’s admission it became an irrefutable fact.
“Sir Oliver Rathbone gave it to you,” Wystan repeated. “Sir Oliver, the judge presiding in the case.”
“I have said so.” Warne was grave, the anger barely showing in his eyes and slight stiffness of the shoulders.
“And I assume you asked him where he had obtained this extraordinary piece of … of pornography? He is not a man you know to be accustomed to collecting such things, is he?”
There was a loud rustle of movement around the gallery; several people gasped or spoke. The jurors looked as if they were embarrassed and would have preferred to be anywhere else. No one even glanced toward Rathbone.
“He told me it had fallen into his hands, very much against his will, along with a large number of others similar,” Warne replied. “He had not yet disposed of them. Only on looking at the face of the witness had he begun to see a resemblance to one of the photographs, and that very night gone to see if he was indeed correct. He had looked at them only once before, at the time of receiving them, and preferred not to look again. But it definitely was the same man who had stood in court and sworn as to his righteousness and honesty of character. To say that he had perjured himself is something of an understatement.” He drew in his breath to add something more, but Wystan cut him off.
“So you accepted the photograph, but instead of contacting the counsel for the defense that evening, or even the following morning, you sprang this piece of obscenity on him in open court?” Wystan’s contempt was like a breath of freezing air in the room.
Warne blushed. “Yes, I did. I had hoped not to have to use it at all. It was only when the witness went on and on about his own moral and intellectual superiority and I saw the jury accept it that I showed him the photograph. Not the jury. They never saw it. All they saw was the witness ashen pale and shaking, and they realized that he had lost all his arrogance. He then changed his entire testimony.”
“You amaze me!” Wystan said with grating sarcasm. “And Sir Oliver, who of course knew exactly what was in the photograph, playacted the innocent and pretended he knew nothing of it. Did he not demand to see it, Mr. Warne?”
“Mr. Gavinton demanded to see it,” Warne replied. “I think that might have been the first time he realized just what kind of a man his witness was. Of course he also demanded that we should speak with Sir Oliver in his chambers. We did so, and the picture was never shown to the jury, or referred to again.”
“But the damage was done,” Wystan said bitterly. “The witness changed all his testimony. It was now damning to the accused, who, while at home that evening and in his dreadful despair at such a monumental betrayal, killed his wife, his two daughters, and himself. Do you consider that you did a good day’s work, Mr. Warne?”
Warne’s face was white. It was painfully clear that he was ashamed, and yet trapped in a situation where there was nothing he could say either to explain his decision or to escape the conclusion that Wystan was relentlessly guiding the jury toward.
“No, it was not a good day,” he said quietly. “It ended in tragedy. But it was not I who betrayed Mr. Taft, nor was it Sir Oliver; it was the witness. And I don’t believe even he could have foreseen that Mr. Taft would have murdered his wife and daughters and then shot himself. Perhaps I should have requested that he be held without bail, but I doubt that request would have been granted. He was charged with embezzlement, not violence of any physical kind. He was not yet convicted of anything at all.”
Wystan allowed all his scorn to fill his voice. “A sophistry, Mr. Warne. Until lately I had thought better of you. You may be able to escape the truth of this in your own mind, but you will not in the jury’s. Sir Oliver gave you the weapon, and God knows, he will answer for that. But you used it!”
He turned away, and Warne drew in his breath to reply. Wystan swung around as if Warne had crept up on him. “And don’t tell me you had no choice!” he thundered. “Of course you did! You could have spoken to Gavinton and told him that his witness had a ghastly perversion to his character and that you had proof of it, as you should have done. He would then have asked Rathbone to adjourn the trial until you could prove, or disprove, the validity of the photograph. Or did you know that Rathbone would not do so? Is that the key to your extraordinary actions? Win at all costs? Drag the whole honor of the law into the filth of your one grubby little victory-which in the end slipped out of your hands anyway.”
Brancaster stood up, his face dark with anger. “My lord-”
“Sit down, Mr. Brancaster,” York said wearily. He turned to Wystan. “We are a little early for speeches, Mr. Wystan. It is just conceivable that the accused has some explanation for his behavior. I cannot imagine what it might be, but we must wait with what patience we can. No doubt Mr. Warne was uncomfortable with this miserable piece of evidence, but he had been given it by the judge in the case. He would hardly be serving the Crown if he allowed it to be ignored.” He shrugged almost imperceptibly. “Nor could he reasonably have supposed that Sir Oliver would a
llow it to be. Are you asking us to believe that Mr. Warne could have persuaded Sir Oliver to rule such evidence inadmissible when he himself had presented it and vouched for its provenance? God alone knows what he was doing with such things, but he had them in his own personal safekeeping and knew exactly where they came from. I think you are expecting miracles from Mr. Warne that are far beyond his skill to achieve.”
Wystan’s eyes blazed with anger, but he knew better than to argue. He said nothing but walked stiffly back to his seat.
Brancaster stood up and went slowly to the center of the floor. His head was lowered in a moment’s contemplation before he looked up at Warne.
“Thank you for your candor, Mr. Warne. I do not imagine you are here willingly. You have no choice but to testify, is that right?”
“None,” Warne replied.
“Did you hesitate to use this particular photograph?”
“Yes …”
Wystan stood up. “My lord, we have been over this. Mr. Warne may have hesitated all night, for all we know. The fact is, he did use it.”
York nodded. “Please move on, Mr. Brancaster. Mr. Warne may well have sat up all night looking at this miserable thing. It may have revolted him until he was ill. The fact remains that he used it, and, more to the point, he does not deny that it was Sir Oliver Rathbone, the judge in the case, there to see that all the rules of the law were obeyed and justice served impartially, who gave it to him. We expect counsels from the prosecution and the defense to be partisan; it is their job! We expect the judge to be utterly without allegiance or loyalty to anything but the law. If he is not, then he has betrayed both the Crown and the people, not to mention his God-given calling. Now if you have anything helpful to say, please say it. Otherwise, we are adjourned for the day.”
“I have!” Brancaster said a shade too loudly. Without waiting for York to add anything, he turned again to Warne. “Mr. Warne, did Sir Oliver leave it to you as to whether you used this photograph or not?”
“Absolutely,” Warne said firmly.
“Why did you choose to? You must have been aware of the risks.”
