by Parnell Hall
“You had dinner with her on that occasion?”
“That’s right.”
“And where did this dinner take place?”
“At the Abbey Pub.”
“And just what is the Abbey Pub?”
“It’s a small bar/restaurant on 105th Street.”
“West 105th Street?”
“That’s right.”
“Would that be in the defendant’s neighborhood?”
“Yes, it would.”
“Where does she live?”
“On 107th.”
“Did you pick her up there to go to the restaurant?”
“Yes, I did.”
“What time was that?”
“Sometime between six-thirty and seven o’clock.”
“So you went to this restaurant, the Abbey Pub, and had dinner?”
“That’s right.”
“What did you talk about?”
Larry Cunningham looked over at Steve Winslow, expecting an objection. When none came, he looked up at the judge. “Isn’t that hearsay, Your Honor?”
“What a third party said is hearsay. What the defendant said is an admission against interest.”
“You mean I have to answer?”
“Yes, you do.”
Cunningham took a breath. “We discussed the trial.”
“That would be the case in which the defendant was tried for petty theft?”
“That’s right.”
“That case took place that very afternoon, didn’t it?”
“Objection. Calls for a conclusion on the part of the witness.”
“Nonsense. How is that a conclusion, Your Honor?”
“Was the witness there?” Steve said.
“The objection is sustained. Rephrase your question.”
“Did the defendant tell you when the trial took place?”
“Yes, she did.”
“And when was that?”
“That afternoon.”
Dirkson looked at the jurors, as if to say, there you are. He turned back to the witness. “And what else did she tell you about the case?”
“I beg your pardon?”
“About the verdict, for instance. Did she tell you how it made her feel?”
“It made her feel great, of course. She was found innocent.”
“Yes, but is that all?” Dirkson said.
Cunningham frowned. “All?”
“Didn’t she say anything else? About how the verdict wasn’t enough?”
“Wasn’t enough? What more could it be? There’s innocent and there’s guilty. She was found innocent.”
“Yes, I know,” Dirkson said. “What I mean is, did she say anything along the lines of how being found innocent wasn’t enough? That Frank Fletcher should pay for what he’d done?”
“As a matter of fact,” Cunningham said, “I believe she did mention her attorney had suggested the possibility of a lawsuit.”
“That’s not what I mean,” Dirkson said, “and you know it. I’m talking about threats of physical violence directed toward the person of the decedent, Frank Fletcher. Did the defendant make any such threats?”
“Absolutely not,” Cunningham said. “Amy would never do anything of the sort.”
“Is that so?” Dirkson said. “Do you mean to tell me she never once said anything like, I could just kill him, or, he should get what’s coming to him, or, a man like that doesn’t deserve to live?”
“Absolutely not.”
Dirkson glared at the witness a moment, then turned to the judge. “Sidebar, Your Honor.”
When the judge and attorneys had gathered at the sidebar and the court reporter had set up his machine, Dirkson said, “Your Honor, this witness is lying. I have it on good authority that the answers he has just given constitute perjury. He is the boyfriend of the defendant, and he will clearly do anything to save her. I did not realize that went so far as to include committing a crime.”
Judge Wylie frowned at the district attorney. “Just exactly what do you expect me to do about it?”
“You can give me some latitude in my questioning. I called this man as my witness, and I’m bound by his testimony. He’s committed perjury, and now I’m in the position of having to impeach him. I can probably do it, but you must understand, it’s a rather exasperating position to find oneself in.”
Steve Winslow shrugged. “You chose it.”
Dirkson’s face purpled. His eyes blazed. “And there’s a fine statement coming from defense counsel, when he knows perfectly well he engineered the whole thing.”
“One moment,” Steve Winslow said. “Are you accusing me of suborning perjury? Is that the serious charge, you were referring to before?”
“No, it’s not,” Dirkson said. “And I’m not accusing you of that now.”
“What are you accusing me of?”
Judge Wylie held up his hands. “Gentlemen, gentlemen. We’ve gotten far afield. Mr. Dirkson, it would appear you called this sidebar merely to pick a fight with the defense attorney.”
“Not at all, Your Honor.”
“What is your purpose, Mr. Dirkson?”
“I told you. The witness is lying.”
“I need something other than your bald assurance such is the case,” Judge Wylie said. “Surely you must realize that.”
“Yes, of course, Your Honor. I’m just pointing out this is a hostile witness and I have to use leading questions. Moreover, he’s committed perjury, so I have to impeach him. Which I cannot do if you sustain the defense attorney’s objection that I am cross-examining my own witness.”
“So far I’ve heard no such objection.”
“Well, I haven’t started cross-examining him yet,” Dirkson said.
“Then what are we arguing about?” When Dirkson had no comeback, Judge Wylie said, “Let’s proceed,” and resumed his position on the bench.
Dirkson returned to the prosecution table, took a drink of water, composed himself, and once again approached the witness stand. “Now then, Mr. Cunningham,” Dirkson said. “You claim in the entire time you were having dinner with the defendant, she never once evidenced any animosity toward the decedent, Frank Fletcher?”
“She said she was glad she won the suit.”
“Aside from that?”
“I don’t believe she did.”
“You don’t believe she did?”
“No, I don’t.”
“You mean she might have, and you just don’t remember?”
“No, I remember that she didn’t.”
“Then why do you say that you believe she didn’t.”
Cunningham smiled. “Because that’s what I believe.”
There was a ripple of amusement from the spectators.
Dirkson frowned, took it. “You say she never evinced any animosity toward Frank Fletcher during that particular conversation?”
“That’s right.”
“What about any other conversation?”
“I beg your pardon?”
“I’m referring to conversations you may have had with the defendant after she was arrested. Tell me, did you visit her in jail?”
“Yes, I did.”
“On more than one occasion?”
“That’s right.”
“How many occasions?”
“I’ve seen her every day.”
“Every day since she was arrested?”
“That’s right.”
“And on any of those occasions did she discuss the decedent, Frank Fletcher?”
“Of course.”
“You mean she did?”
“Of course she did. She was arrested on the charge of murdering him. How could we possibly have a conversation without referring to that fact?”
“Aside from that. Did the defendant ever mention Frank Fletcher, how she felt about him, how she was glad he was dead, anything of that sort?”
“No, she did not.”
“Did she ever admit to you that she killed him?”
Cunning
ham smiled. “She didn’t kill him.”
“I’m asking you if she ever said that she did.”
“No, of course not?”
“Did she tell you what she did that night?”
Cunningham frowned. “What do you mean?”
“After dinner. After you left the restaurant. Did she tell you what she did?”
“She went home.”
“Right. That was because you had to work. You were going to go to a movie, but then you had to work so you left her and she went home. Is that right?”
“That’s right,” Cunningham said. “We left the restaurant a little after eight o’clock.”
“Move to strike as unresponsive to the question,” Dirkson said, angrily.
“Granted. It will go out,” Judge Wylie said. He turned to the witness. “Mr. Cunningham, let me make sure you understand the situation. You are a witness friendly to the defense. I understand your desire to help the defendant, but please obey the rules of evidence by answering only those questions that you are asked.”
“Yes, Your Honor.”
“Now,” Dirkson said, “the question is, after dinner you went off to work and the defendant went home?”
“That’s right.”
“Now then,” Dirkson said. “Referring to the conversation that you subsequently had with the defendant, what did she tell you she did after she went home?”
“I think she said she watched TV.”
“Did she tell you she got a message on the answering machine from the decedent, Frank Fletcher?”
Cunningham glared at the district attorney defiantly for a moment, then lowered his eyes. “Yes, she mentioned that.”
“And what did she say she did about it?”
“Nothing.”
“Nothing?” Dirkson said. “Are you telling me she got this message from Frank Fletcher, then sat around all evening and did nothing about it?”
“I didn’t say she did nothing about it,” Cunningham said. “As a matter of fact, she went down there.”
“And when did she do that?”
“As far as I know, it was around ten o’clock.”
“Is that right?” Dirkson said. “She didn’t tell you about going there earlier, right after she got the message?”
“No, she did not.”
“She didn’t tell you she went down there, arrived around eight o’clock and found the decedent, Frank Fletcher, very much alive? She didn’t mention shooting him with a gun?”
“No, she did not.”
“She didn’t tell you about calling her attorney and reaching her attorney’s secretary, Tracy Garvin, and Tracy Garvin rushing to the office to meet her by cab?”
“Absolutely not.”
“And,” Dirkson went on, as if Cunningham had not answered, “Did she tell you about meeting her attorney, Steve Winslow, who showed up, assessed the situation, and advised her to go back uptown and take a taxi straight to the office, go upstairs, find the body, and then call the police as if she’d just arrived? She didn’t tell you about that?”
“Objection!” Steve Winslow cried, lunging to his feet. “Your Honor, I object! The question is viciously leading and suggestive and assumes facts not in evidence. I assign the asking of it as prejudicial misconduct.”
“The facts are in evidence,” Dirkson said.
“Same objection. Same assignment of misconduct.”
Judge Wylie banged the gavel. “That will do. I don’t want to hear another word. Not one word. From either side. Attorneys—in my chambers.”
46.
“NOW THEN,” JUDGE WYLIE said, “what’s this all about?”
“It’s very simple,” Steve said. “The prosecutor has just committed prejudicial misconduct by stating facts which are not in evidence and which cannot be proven. His statements constitute prosecutorial misconduct. In fact, they are so prejudicial I doubt if they can even be remedied by an admonition of the court. I ask for a mistrial.”
Dirkson looked ready to explode. “That’s absurd, Your Honor. As I said before, these facts are in evidence. Look at what we have before the court. We have the defendant’s statement that she found the petty cash drawer open, when we know for a fact is was shut—indicating she must have been there at an earlier time to have seen it open. That’s for starters. Then we have the testimony of the cab driver who saw the defendant on West 48th Street between the hours of eight and eight-thirty that night. At which time, according to the defendant’s own statement, she was at home watching TV.”
“How does that add up to the fact I sent her home to manufacture an alibi?”
“Do you deny it?” Dirkson demanded.
Steve Winslow shrugged. “It’s not my place to deny such a charge. Any more that it’s your place to make it.”
Judge Wylie held up his hand. “One moment, gentlemen. Mr. Winslow, if you would hold on for a moment, I would like to get Mr. Dirkson’s point of view. Now then, Mr. Dirkson, while I appreciate the point you have made about the petty cash drawer, and the testimony of the cab driver regarding the defendant being seen on 48th Street—while all that is very suggestive and while certain inferences may be drawn from it, let us be very careful here. One inference that should not be drawn in front of the jury is the fact that the defense attorney is guilty of suppressing evidence, manufacturing evidence or conspiring to conceal a crime. Unless you have concrete evidence to that effect, any intimation of wrongdoing on the part of the defense attorney could indeed constitute prejudicial misconduct.”
“But there is evidence,” Dirkson said.
“What evidence?”
“The defendant’s own admission.”
“What admission?”
“To the witness. Larry Cunningham. I have it on good authority that the defendant confided to Mr. Cunningham exactly what I’m stating now and what I stated in court.”
“Good authority? And what authority is that?”
“I have a confidential source.”
“That’s a euphemism for anonymous tip, Your Honor,” Steve Winslow said.
“Is that right?” Judge Wylie said. “Are you going on an anonymous tip?”
“I’m going on what I know to be true,” Dirkson said, irritably. “And what you and everybody else in the courtroom knows to be true. Steve Winslow sent her home to have her manufacture evidence by taking a taxi back. Go ahead and ask him. I dare him to deny it.”
“What do you have to say to that, Mr. Winslow?”
“My client is innocent until proven guilty. I am innocent until proven guilty.”
Judge Wylie frowned. “I should like a little better answer than that.”
“With all due respect, Your Honor, I don’t choose to make one. The district attorney is making an accusation with no foundation whatsoever. I don’t need to respond to such a charge. If I did—if I had to answer to such unfounded charges—well, then the prosecutor would be free to make them at will. He could sit there accusing me of infraction after infraction until he found one I’d actually committed. In which case, were I an honest man who didn’t wish to lie, I would have to refuse to answer on the grounds an answer might tend to incriminate me. At which point he would know what to charge me with.”
Steve Winslow smiled. “But that does not happen to be the law. The district attorney can’t pester me with charges on a whim to see which of them I’ll deny. And he sure as hell can’t make them in front of the jury without prejudicing the case against my client. If he does so, it should constitute a mistrial.”
“See?” Dirkson said. “He didn’t deny the charges. I told you he wouldn’t.”
Judge Wylie took a breath. “Mr. Dirkson. Mr. Winslow’s point is well taken. Unless you have foundation for those charges, he has no need to respond to them.”
“I have foundation, Your Honor. I told you. The defendant admitted the whole thing to Larry Cunningham.”
“Then why don’t you ask Mr. Cunningham?” Steve Winslow said.
Dirkson’s face purpled. “I a
sked Mr. Cunningham!” he said. “That’s the question you objected to, and that’s why we’re in here!”
Judge Wylie nodded. “Mr. Dirkson is certainly right on that score.”
“Well, then let’s not be hasty,” Steve said. “The way I see it, the matter has arisen. It’s prejudicial, and so inflammatory a judicial admonition to ignore it would not suffice.
“But, on second thought, I don’t want a mistrial. Then the defendant could be arrested and tried again. I don’t want that. I want the case to go to the jury. There’s no evidence against her, they’re going to acquit, so why should I interfere with that?”
Judge Wylie looked at him. “You’re withdrawing your objection?”
“That’s right.”
“And your assignment of misconduct?”
“Certainly. If the district attorney has any evidence against me, let’s hear it now.”
“One moment,” Judge Wylie said. “Mr. Winslow, it would seem almost as if you had been dared into this. I would be very unhappy if it turned out you had waived any of the defendant’s rights in order to settle a personal grudge.”
“I assure you that is not the case, Your Honor.”
“I should also point out that if any of the prosecutor’s allegations turn out to be true, you could expect to find yourself disbarred.”
Steve smiled. “You’ll never eat lunch in this town again?”
Judge Wylie’s face darkened. “This is no laughing matter.”
“I understand, Your Honor,” Steve said. “I’m an attorney at law. If I violate the law, I risk disbarment. Naturally, I know that. However, I will consider myself warned.”
Judge Wylie frowned. He found Steve Winslow’s attitude insolent, but he didn’t know what he could do about it. It also bothered him that he couldn’t figure out what Winslow was up to. But there wasn’t anything he could do about that either. He took a breath. “All right, gentlemen. Let’s proceed.”
47.
WHEN JUDGE WYLIE RESUMED the bench he said, “The objection and the assignment of misconduct have been withdrawn. Mr. Dirkson, you may proceed.”
“Thank you, Your Honor,” Dirkson said. “Mr. Cunningham, is it or is it not a fact that the defendant, Amy Dearborn, admitted to you that on the evening of the murder she met with her attorney, Steve Winslow, prior to her meeting with the police, and that he sent her uptown so that she could take a cab to the office in order to build up an alibi?”
