“You don’t want the case,” Clayton said.
“Doctor Walker,” Bigelow said, “any criminal lawyer who tells you that he ‘doesn’t want’ a first-degree murder case calling for a fifty-thousand-dollar retainer up-front, from people who have the money; any trial lawyer who tells you that he ‘doesn’t want’ a murder case in which funds for investigation, and resources to conduct them, are unlimited — any criminal lawyer who tells you that will tell you next that calling horses ‘plovers’ enables them to fly. Do I make myself clear?”
“Impeccably,” Florence said.
“The question for you, therefore,” Bigelow said, “is not whether I will put up with your son for the money, the aggravation the experience will bring — of course I will. The question is whether my aggravation, in and of itself, will satisfy you that you’ve been well-served, in the light he is convicted. As he probably will be. That question is for you.”
Clayton sighed. Florence gazed at him. She looked back at Bigelow. “You and Larry do your damnedest,” she said. “I think it’s conscience money.”
Bigelow took a pen from the holder at the front of his desk. He opened the left top drawer and took out a legal pad. “Mrs. Walker,” he said, “we will. You may be assured of that. But because James, I fear, will not do his damnedest, I’m forced to rely upon you for investigative leads I’d normally expect from my client.”
“I’m afraid we don’t know much,” Florence said, her lips tightening. “James has been very elusive, for several years. At least as far as we’re concerned. We saw him only seldom, after he moved to California. When we did, he was not communicative.”
“Not about his friends?” Bigelow said. “His associates, and so forth?”
“No,” she said firmly, “not at all.”
Clayton looked troubled. “Well,” he said, “there was, there were one or two, at least, that we knew about. There was the Simone girl — what was her name, dear? Audrey or something?”
“I really don’t recall,” Florence said.
“Well, you met her,” Clayton said. “She stayed at our house. With that young Mackenzie fellow, the one that always looked startled if you spoke to him.”
“Oh, for heaven’s sake, Clayton,” she said, “that was years ago.”
“Andrea,” Clayton said. “Andrea Simone. That was that girl’s name. She had money,” he said to Bigelow. “He did not. I recall one night when I got home very late, some emergency or something, and they were both up, in the library, having an argument. I thought James was with them — he turned out not to be. And they seemed like nice young people, idealistic, quite in love, and I said to them: ‘Now, what can be this important, to carry on like this?’ And he said — I can recall this vividly; it seemed to me so odd — ‘Her loyalty is to the State, no matter what she says.’ And, it’s coming back to me now, her father was a physician, out near San Francisco somewhere, and I said: ‘Her loyalty is to her family, also probably to you.’ And he glared at me, just glared at me, and said: ‘Of course you would say that.’ ”
“He was probably drunk,” Florence said. “Whenever James brought friends home, which wasn’t very often, the first thing that they did was raid the liquor cabinet.”
“Do you know what the young man’s first name was?” Bigelow said to Clayton.
“I will,” Clayton said, “if you give me a minute.”
“While you’re taking it,” Bigelow said, “how about the two women arrested with Tibbetts and James? The Fentress and Franklin defendants? Ever meet them? Any facts on them?”
“None whatsoever,” Florence said. “Never heard of them in my life.”
“Glenn,” Clayton said. “The Mackenzie fellow’s name was Glenn. I think he came from around here. Or he was going to school here or something. In Boston.”
Florence sighed. “He was going to law school,” she said.
“Do you know which one?” Bigelow said. “We do have a number here.”
“Boston University,” Clayton said. “At least he’d been at Boston University. I think that was where it was.” He paused. He shook his head. “No,” he said, “no, I don’t. The women, I don’t. The women, I don’t know. Can’t say that I met them.”
Florence shook her head. “Afraid I can’t help you, either,” she said to Bigelow. “I’ve never heard their names.”
“Handley,” Bigelow said. “Ever hear of her? Girl named Emma Handley?”
Florence shook her head. “Means nothing to me.”
Clayton scowled again. “Wait a minute,” he said, “just a minute — that does sound familiar.”
“Clayton,” Florence said, “no one named Handley was ever in our house.”
“No,” Clayton said, “no, I wasn’t thinking that. But: Emmy Handley. That I’ve heard. That name is familiar.” His expression cleared. “I know,” he said to Florence, “Christina mentioned her. Christina, when Christina came home one weekend from school here, right after she went back, you and she, you were talking about someone named Handley. Christina was upset.” He looked at Bigelow. “Several years ago,” he said. “Three or four, at least.”
“Emma Handley’s dead,” Bigelow said.
“Then what help could she be,” Florence said, “if she’s not even alive?”
Bigelow raised his eyebrows. “Not everything that’s helpful to know would be helpful to put in evidence,” he said. “Larry tells me she was murdered, perhaps by the Tibbetts gang. If Larry suspects this, so does Gleason. But the Handley homicide — that’s precisely the kind of bombshell that Gleason likes to set off. I want to be ready to spike any effort he makes to sneak her into this case. So, if James was acquainted with her, if they were associates, it has to influence significantly how I try it. Two pairs of kid gloves, not one.
“Your daughter,” he said. “Christina? What would she be likely to know?”
Clayton looked at Florence. “Nothing, I should think,” he said, redirecting his gaze to Bigelow. “She had … she did have a brief romance with Tibbetts — isn’t that so, Florence?”
Florence sighed. “She was in the same places he was in, for a year or so. She was young. Much younger than James and the rest. She had a soloist’s appointment with an orchestra from the University of Ipswich, and the tour, they went on a tour that stopped in California, and she, naturally she got in touch with James, and saw him, and he introduced her to Sam. And later, later she brought, or James brought, or they both brought Sam to our place, and he stayed with us. That was probably the second or the third time he’d been there.
“She was very young, Mister Bigelow,” Florence said. “She was prematurely sophisticated, or believed she was, and Sam was older, and glamorous, so she was vulnerable. They did have a brief fling. But that was years ago. I don’t believe she’s had any contact with Sam for years.”
“Would you know?” Bigelow said.
Florence considered her answer. She moistened her lips. “If,” she said, “if Christina thought I should know, or that I had found out: Yes. If not, then: No.”
“She’s secretive?” Bigelow said.
Clayton cleared his throat again. “Everyone has secrets. Bargains they have made, sometimes, that they shouldn’t have.”
SEPTEMBER 7, 1978
11
Trial of Commonwealth v. Samuel F. Tibbetts, et al, was scheduled to commence at 10:00 A.M. on Thursday, September 7, 1978, in Courtroom 6 of the New Courthouse at Pemberton Square in Boston, Judge Howard Bart presiding. Judge Bart was fifty-four, a graduate of Holy Cross College and the night law school at Boston College. John Richards learned of Bart’s assignment to the case on the morning of September 5th. He complimented Terry Gleason.
“I assume this was not luck, Counselor,” he said. “I assume Black Bart with his portable gallows and his extra coil of rope did not just fall from the sky to sit on this case.”
“No,” Gleason said. “No, as a matter of fact, Judge Bart just concluded a civil motion session down in Barnstable. My u
nderstanding is that last spring he miscalculated the length of the summer — decided it’d probably start to get cold about now. Therefore he told the assignment judge that as soon as he finished up his summer on the Cape, and closed up his house in Eastham, he wanted to get back to Boston and his house on Com. Ave. And since nobody crosses Black Bart — unless they’re ignorant or crazy — comes Labor Day and here’s Judge Bart, looking for something to do.”
“Interesting this’s what they found for him, though,” Richards said.
“Well,” Gleason said, “it sort of figures, right? He likes criminal better’n civil. I was having a drink with him down at Chatham Bars Inn at the spring Bar Association do, and he was griping about ‘goddamned civil cases. Never any fun. The hell can you do in a civil case? Jury has all the fun. Sit up there on your arse like Mary on the Half Shell and a blue floodlight at night on some goddamned ghinny’s lawn, and the only thing you get to do’s yell at some stupid bastard lawyer, doesn’t know a damned thing about the rules of evidence. I like,’ this is what he said to me, ‘what I like to do is decide the goddamned case, goddamn it.’ I saw him this morning, his way up the Hill, and he said: ‘Any chance they’ll waive jury, you think?’ Told him I doubted it.”
Richards laughed. “Right,” he said. “I can just see John Morrissey and Bigelow waiving jury so Black Bart’s the whole show. Yes, I can imagine that. I can also imagine John Morrissey appearing bare-ass in the courtroom to concede his client’s guilt. Well, we caught one break, at least. Maybe this is a good omen.”
At 10:10 on the morning of the seventh, Judge Bart surveyed the perspiring courtroom crowd. A venire of sixty potential jurors filled all but the first row of benches behind the railing that enclosed the bar.
“Ladies and Gentlemen of the venire,” he said. “The lawyers and the clerks and the bailiffs know the reason why we’re all so hot today in this air-conditioned room. They know because they’re familiar with this old barn and its peculiarities. And also, also familiar with mine. My peculiarity is a strong belief that the lawyers, and the jury, and the judge, as far as that goes, should be able to hear what the witnesses say on the stand. Counsel may now and then doubt it, but I also believe it’s useful if the judge on the bench can hear what the lawyers have to say. Critical, in fact.
“The legislative branch, in its wisdom, has not seen fit to replace the air-conditioning units since they were installed — shortly after the siege of Vicksburg, I believe it was. It is true that they remain in good enough repair to alleviate the discomfort of the heat, but at the same time they drown out any sound originating more than six feet away from the person trying to hear it. So I, and most other judges who share my bias in the matter, order them shut off when we begin a trial. We will run them during recesses, during the luncheon recess, and all night when we recess at four each afternoon. That will help a little. But otherwise, I am afraid, you’re going to have to sweat.
“Second in the Churchillian trinity,” he said, “second comes the tears. Those of you who are selected to serve on this panel will be sequestered. This means that we are going to lock you up, in no uncertain terms. You will be billeted at a reasonably comfortable hotel, fed reasonably good food, permitted to receive clothing and toilet articles delivered by your loved ones — or picked up by court officers, if you live alone — and generally treated as if you were in quarantine with some loathsome disease. You will not enjoy it one bit, and we all know it, and we will do the very best we can to see to it that you endure the ordeal in the best comfort possible. Which isn’t, to be honest, very much.
“We are doing this because the remaining item in the Churchillian trinity — the blood — is very much a part of the evidence in this case. I will address questions to all of you — and I beg each of you to answer if you find any or all of them pertinent — intended to ascertain whether you have formed any opinions that might hinder or prevent you from reaching, on the evidence and the evidence alone, a fair and impartial verdict in what can only be fairly described as a lurid case. I neither can, nor wish to, exclude the media from these proceedings. I think extremely high risks must be demonstrated to warrant closure of criminal proceedings, and I don’t see them in this case. What I do see, since I read the papers every day and often watch TV, is a certain appetite among the members of the press for stories such as I expect to develop during these proceedings. Often I have noted a certain tone in such reports which suggests to me that the reporter has personally formed an opinion of the guilt or innocence of some defendant. We don’t want you to suffer such intervention in your deliberations. We don’t want any seepage of opinions, or judgments, made by other people, to contaminate your individual judgments in this case. So, because we don’t want that to happen, and we can’t muzzle the press, we’re going to lock you up. We will let you read the papers, and let you watch TV, but the papers that you get your hands on will be clipped of any reports of this trial, and TV news is out.
“Now,” he said, “I’m going to ask each of the defendants to rise as I call their names, and each of their lawyers to rise also. Then I will ask the prosecutor and his assistant to do the same thing. After each of them has stood, and sat — because I and the witnesses are the only ones in this room who get to sit down while we talk — after that is over, I will address you generally with the question: ‘Do you, any of you, know any of these people? Have you ever had any personal dealings with one or more of them which would make it unlikely that you could render a fair and impartial verdict, solely on the facts as they appear from the evidence?’
“Now, I’m not talking here about whether any of these people looks vaguely familiar. Or whether you’ve ever said ‘Hello’ to one of them, or passed them on the sidewalk. What I want to know is whether you’ve ever done any sort of business with any of the defendants, or any of the lawyers, or any of the police officers, that will be involved in this case. And if so, whether you formed any relationships or opinions that would bias you, either in favor of, or against, any one of them. I expect you to tell me the truth. I not only expect you to tell the truth if you hate one or more of them — most of you might be tempted to say that anyway, even if it was not true, just to escape sequestration — but also to tell the truth if you love one or more of them. We want a fair shake for everybody here — the defendants, the Commonwealth, and each and every citizen who goes about his daily business in what I at least hope is the assumption that what passes for justice in American courts really amounts to that. Am I understood?”
The members of the venire nodded in unison. The judge addressed the lawyers. “Any problems with that, gentlemen? Anything I’ve said so far?” The lawyers, remaining seated, shook their heads. “So far, so good,” Bart said.
“Mister Samuel Tibbetts,” he said. Tibbetts — “looking maximum meek,” John Richards whispered to Gleason at the prosecutor’s table — stood up. He wore a dark blue suit, a white shirt, and a red knitted tie. His reddish blond hair receded from his forehead. He wore octagonal eyeglasses with gold wire frames. “Please face the rear of the courtroom, Mister Tibbetts,” Bart said. Tibbetts turned and faced the venire.
“Mister Tibbetts is represented by Attorney John Morrissey,” Bart said. “Mister Morrissey, if you also would confront the venire.” Morrissey did so.
“Mister Tibbetts is a native of Newton,” Bart said. “Mister Morrissey lives in Weston and has practiced law here in Boston for many years. Is any member of the venire aware of any reason which might prevent him or her from rendering a true verdict in the proceedings against Mister Tibbetts?” There was no response. “I should add,” Bart said, “that the charges against Mister Tibbetts, and each of the other three defendants, are those of murder in the first degree.”
Four men in the venire immediately got to their feet. “Uh huh,” Bart said. “I haven’t even gotten to the question about whether your views on capital punishment would prevent you from reaching a just verdict, and you’re already on your tiptoes. How many of you work f
or the Massachusetts Bay Transportation Authority?” Three of the men raised their hands.
“For the benefit of newcomers to our criminal justice system,” the judge said, “the personnel of the MBTA are all but universally so morally and philosophically opposed to capital punishment that their revulsion precludes them from sitting as jurors in murder cases.” The lawyers, policemen and bailiffs grinned, along with the clerk. The civilians behind the bar enclosure looked puzzled. “Some are so cynical as to allege that senior MBTA employees instruct all novices that such a pang of conscience will get them excused from jury duty, which pays nowhere near as well as the jobs on the MBTA, and urge them to develop such attitudes in order to avoid losing wages.” He paused. There was audible laughter. “Telephone company employees, on the other hand,” he said, “are nowhere near as sensitive. Some allege this is because the phone company not only allows its employees to keep the meager wages that jury duty pays, but also continues their regular salaries while they do their civic duty.
“You three bozos are excused,” he said. They picked up their newspapers quickly and started for the door. “Hey,” the judge said, “don’t think you’re going home. Or off to Suffolk Downs in time to dope the daily double. Report back to the jury pool. Somebody somewhere in this building’ll find some work for you. I hope. The other fellow there — what do you have to say?”
“I’m a conscientious objector,” the man said. He was about forty years old. “I was, I did my military as a medic. In Vietnam. I’m not, I’m not just trying to get out of something I don’t want to do. That’s not how I do things. It’s just I think it’s wrong to kill, for any reason. And that’s all.”
“What do you do for a living?” the judge said.
“I’m a steamfitter,” the man said. “I work for Malachy Construction, over Somerville. Been with them eight years now.”
“You’re excused,” the judge said. “Back to the pool. Anybody else?” No one else responded. “Anybody got some feelings, hard or soft, about either Mister Tibbetts or his lawyer?” There was no response. “You may be seated, Gentlemen,” he said. “Record will show that the venire stands indifferent.
Outlaws (Vintage Crime/Black Lizard) Page 10
