“Mister Walker, Mister Bigelow, if you two would get up now and present your smiling faces to the potential jurors.”
James Walker wore a white tee shirt not quite large enough to accommodate his biceps and pectorals. Over it he wore blue and white striped overalls. His hair stood up in an Afro cut. He had a small goatee. He bowed his head and raised his right fist in the Black Power salute.
John Bigelow wore a grey suit and an expression of weariness. He closed his eyes and shook his head as he stood up.
“Mister Walker,” the judge said. “This isn’t Nuremberg, or Rome. It isn’t Mexico City. You’re neither war criminal nor Olympic medal-winner. You’re here to be tried on murder charges, not to make statements, oral or symbolic, about any of your views. Put your fist down, square your shoulders, look the jury straight in the eye.”
Walker turned and faced the bench. He glared and gave the judge the finger. “Fuck you, fascist pig,” he shouted.
The judge sighed. “Very good, Mister Walker. Now you can sit down.”
“I don’t want to sit down,” Walker said. “I want to say publicly what everybody knows. That this whole system was designed to silence dissent, and stifle debate, and stop the oppressed from getting their rights. I want to stand on my feet like a man and declare that the whole American system was designed and operates to enslave the poor and black. That you and these two men at the other table there, that all of you are trying us on charges of crimes that you know we did not commit, because we oppose oppression. That you have trumped this up. Fascist bastards.”
“Bailiff,” the judge said, “escort Mister Walker to the holding cells. Make the customary arrangements for proceedings in this room to be amplified in a secure place elsewhere in the courthouse, where Mister Walker can monitor them apart from the rest of us.”
“Fuck you,” Walker said, as the court officers approached.
“And my very best wishes to you, sir, as well,” Bart said. Walker was led away. “Mister Bigelow,” the judge said, “for the record, do you wish to make objection to my order?”
“So objected,” Bigelow said. “Rule against me.”
“Done and done,” Bart said. “Your exception to the ruling will be noted as well.
“Ladies and Gentlemen of the venire,” Bart said. “This happened a little sooner in this case than I expected, so I find myself obliged to make up ground. You are not to draw any inference, for or against any party in this case, because of any non-testimonial conduct which the party may commit. If you find someone’s behavior personally disagreeable, you are to put it from your minds when you weigh the evidence. Now: does any one of you have any recollection of any dealings whatsoever with Mister Walker or Mister Bigelow which would prevent you from doing that?” There was no response. “Venire stands indifferent.
“Miss Fentress,” the judge said, “and Miss Veale. If the two of you would stand, please, so the people can see you.” Fentress came out of her chair fast and wheeled to face the venire. She was blocky under her dark grey muu-muu. She had pulled her long black hair away from her face and secured it with an elastic band in a pony tail that hung down to her waist. Her eyes blazed. She folded her arms under her breasts and planted her feet splayed. Carolyn Veale in a dark blue coat dress stood demurely behind the bar. “Anybody out there know either of these ladies?” the judge said. “Any reason to believe you might be prejudiced?” There was no response. “Ladies,” he said, “you may be seated. Jurors stand indifferent.”
“Fuck you, they are,” Fentress said, sitting down again.
“Record will reflect defendant Fentress has availed herself of the common misapprehension that every dog gets one free bite,” the judge said. “Record will also reflect that defendant Fentress has been, and is being, warned that another such outburst will have her in the pound. And not the same pound as defendant Walker, either. Understood, Miss Veale?”
“Understood, with objection,” Veale said.
“Overruled, exception noted,” the judge said. “Moving right along here, folks — Mister Klein and Miss Franklin will please stand and face the venire?”
Morris Klein was overweight, about five-seven. He wore a tan corduroy suit, a red and yellow plaid shirt, a black knitted tie and a long salt-and-pepper beard. He was bald. Jill Franklin wore a long white cotton dress with small roses in its pattern. Her face was mottled under her long blonde hair. In a voice barely audible she said: “Power to the people.” In a much louder voice, Klein said: “Power to the people.”
“That will do,” Bart said. “Record will reflect same warning to Mister Klein and his client previously issued to Miss Fentress. Anybody.…”
“Objection,” Klein said loudly.
“Overruled,” Bart said. “Exception noted. Please sit down. Your client, too. Anybody on the venire have any personal problem with these two? Keep in mind that private views about mannerly conduct are not to be considered. Record will reflect no response. Venire stands indifferent.
“Mister Gleason,” the judge said. “Get up on your hind legs. Face the venire please. Introduce your companion, if you would.”
Gleason stood up. Richards stood up beside him. “Detective Lieutenant Inspector John Richards will assist me with the paperwork in this trial,” he said. “He will also testify.”
“Objection,” Klein said.
“Overruled,” Bart said. “Exception noted.”
“I wish to be heard,” Klein said.
“Life is hard,” Bart said. “Anybody know Mister Gleason, Special Assistant Attorney General Gleason, that is? Or Lieutenant Richards?”
“I object to Mister Richards being described by his official title,” Klein said.
“Overruled,” Bart said. “Exception noted.”
“I object to your refusal to hear me,” Klein said.
“Overruled,” Bart said. “Exception noted. Off the record.” The stenographer stopped typing. “Sit down and shut up.”
“I object to that as well,” Klein said.
“We’re off the record, Counselor,” the judge said. “If we go back on, and you continue, the next thing the record will reflect is that you’ve been cited for contempt. Now, you wanna try this damned case or you want your client’s trial severed? You can take your choice.”
“I want the case tried,” Klein said. “But I want it tried fairly.”
“That’s what you’re going to get,” the judge said, “whether you like it or not. Now: sit down, and shut up. Back on the record. Record will reflect venire stands indifferent to Mister Gleason and Mister Richards. We’ll take the morning recess.”
SEPTEMBER II, 1978
12
At 3:15 in the afternoon, Carolyn Veale stood and said that defendant Fentress was content with a fiftyish black woman named Mabel Wright who had been seated, subject to challenge, as the sixteenth person to serve on the panel hearing the case. “Thank you, Miss Veale,” the judge said, “Mister Klein?”
Klein stood up. “Defendant Franklin challenges for just cause,” he said loudly. He was wearing the same suit and what appeared to be the same shirt and tie he had worn on the previous days of the trial. “And may I be heard, your Honor?”
Bart shook his head. “Mister Klein,” he said, “are you going to try to make that silly argument again? Because ever since you ran out of peremptories on Friday, you’ve been boring us all breathless with it. Won’t you just incorporate it by reference, and I’ll rule on it again, so we can complete this panel?”
“It’s not the same argument, your Honor,” Klein said. “Those other times I was challenging for cause, I was doing so on the premise that any proceeding, in any part, is a violation of my client’s rights, because these are criminal charges brought against her, serious criminal charges, and.…”
“I know, I know, I know,” Bart said, slapping his open right hand down on the top of the bench, “and your claim is that this is essentially a political trial. If that’s to be your argument now, then: No, you may
not be heard. Challenge for cause is overruled. Objection noted. Exception noted. Now let’s get on with this case here so these poor people in the jury box don’t all become eligible for old age benefits before we hear opening statements.”
“That is not my argument this time,” Klein said smugly. “That is what I was trying to explain when your Honor once again rudely interrupted me.”
“This is the fourth time I’ve had to warn you about that kind of comment, Mister Klein,” Bart said. “I’ve overlooked a couple others, which was clearly a mistake. Provocative remarks, intended to incite the trial judge into a display of temperament, won’t do you a gnat’s breakfast worth of good before the Appeals Court, or the Supreme Court — if this case should go to appeal.”
“I submit to your Honor,” Klein said “that that remark itself is gravely prejudicial, displaying as it does this Court’s blatant bias against my client. You’ve just implied to this panel that you expect them to convict in this proceeding, and invited them to infer that my expectation is the same, because I’m laying the foundation for appeal. I submit that the panel as constituted is therefore indelibly stained and tainted, and that each of them now sitting should be dismissed for cause, and a new panel selected, with the parties each enjoying the same number of peremptory challenges as we had when we began.”
“Denied. Objection overruled. Exception noted,” Bart said.
“I move for mistrial,” Klein said.
“For the record,” the judge said. “Henceforth in the course of this trial, when the Court responds to some oration from Mister Klein by uttering the word ‘doe,’ it shall be understood by all attending that the word does not refer to Bambi’s girlfriend, but in this proceeding is an acronym for ‘Denied. Objection overruled. Exception noted.’ At least maybe I can save some time, even if Mister Klein refuses. Motion for mistrial is denied. Objection overruled. Exception noted.”
“Move to strike that entire last comment from the bench,” Klein said. “And again for mistrial and for you to recuse yourself, ground that the court is showing blatant prejudice by ridiculing counsel in open court, and by suggesting that counsel in protecting his client’s rights on the record is engaged in dilatory tactics.”
“Mister Klein,” Bart said, “I don’t know how many more dilatory motions you’ve got there, but I’m very happy with your choice of that adjective to describe your tactics.” He turned to the jury. “So that the record will be clear, Ladies and Gentlemen — regardless of whether it is ever made the basis of an appeal — I am stating it right here that I consider Mister Klein’s tactics to be dilatory. I am further stating that his stalling and his argumentativeness on matters he knows to be frivolous are part of a deliberate strategy on his part to goad this Court into committing reversible error.
“I emphasize that I make those statements for the record, Ladies and Gentlemen,” Bart said, “because I don’t want you to draw the inference from the fact of my making them that I think you’re too stupid to have figured these matters out for yourselves.”
Klein opened his mouth. “Keep still,” Bart said, “I haven’t finished. You are not going to hogtie this court and paralyze this system by continuous repetition of trivial, frivolous, weightless arguments and objections. The record will reflect that I have concluded from your current lack of substantial reason to warrant your challenge of Mrs. Wright for cause, that you have no cause to challenge. I therefore rule for the record that the defendant Franklin, having exhausted her peremptory challenges and having shown no cause to exclude Mrs. Wright from service on this panel, shall be deemed to have accepted her, and recorded as content with the panel as now constituted. Mister Klein, sit down. Mister Gleason?”
Gleason stood up. “Commonwealth content, your Honor,” he said.
Bart exhaled loudly. “Thank heavens, it’s over,” he said, smiling at the jurors, who grinned back. “Now, the clock on the wall says it’s only twenty minutes until this long and rewarding workday comes to an official close, and I don’t see much point in having Mister Gleason spend it giving you what I would anticipate to be about a third of his opening argument before I’d be forced to interrupt him. So I’m going to recess now until ten A.M. tomorrow, when we’ll all meet again, tails bushy and eyes bright after we’ve all had a couple drinks, those who desire such refreshments, a good dinner, and a good night’s sleep. I understand the court officers have arranged for you to see a movie tonight, those of you who wish to. Then tomorrow they will bring you back to the jury room upstairs, where I’d like you to clear your minds of all miscellanea and get ready to hear what I’m sure will be a very interesting case.” He stood up and, as the bailiff chanted that the court was adjourned, disappeared into his chambers.
At 5:15 that afternoon, Terry Gleason removed a stack of plastic cups and a quart of Jack Daniel’s from the right bottom drawer of his desk at 20 Ashburton Place. Tpr. Fred Consolo looked worriedly at Richards and at Tpr. June McNeil. “I still wish we wouldn’t do this,” he said.
“Oh, for Christ sake, Fred,” she said, “don’t start that again. It makes you nervous to splice the main brace here, then don’t do it. Take the elevator down and go have a drink somewhere else.”
“Not supposed to keep or consume liquor on State property,” he said.
“Just keep pouring,” Richards said to Gleason. “I think this old paddy earned a double on this day.”
“The regular measure for me,” McNeil said. “Was it really that bad in there?”
“Yup,” Richards said, picking up his cup.
“It was moderately awful,” Gleason said. “Klein’s bound and determined he’s going to get Black Bart enraged enough to do something that’ll kiss-of-death the thing on appeal.” He poised the bottle over an empty fourth cup and raised his eyebrows at Consolo. Consolo shook his head. Gleason shrugged and capped the bottle, taking the third cup for himself.
“How long’s he gonna keep wearing that same suit and shirt?” Richards said.
“How long’s the trial going to last?” Gleason said. “It’s part of his schtick. He cultivates this image of himself as the defender of the oppressed. Know what his luggage is? He calls it, with egregious self-deprecation, ‘a Puerto Rican overnighter.’ It’s a shopping bag. No matter where he goes — and the bastard’s everywhere there’s a headline to be grabbed — that shopping bag and his old briefcase are the only things he’s got. Doesn’t use hotels. Moves into crash pads with his clients. Or their friends. Is it the same shirt, every day? I don’t know, he might have two. But he claims he rinses his shirt out every night, and that’s how he does it. Supposed to get sympathy from juries. I don’t think it works, but how much do I know? He’s always confident.”
“Think he managed it today?” Richards said. “What he set out to do?”
“He came pretty close,” Gleason said. To Consolo and McNeil he explained: “Klein, ever since Klein got that Chicago case, the bombers, his own client acquitted and the record so fucked-up the other guys got blown out on appeal, he’s been using this same tactic. Even though I don’t think it’s ever worked again. What he had going for him out in Chicago was this federal judge that everybody — prosecutors, defendants, agents, court officers, jurors, and the Circuit Court of Appeals — that everybody who’d ever met him absolutely hated. Autocratic son of a bitch on the bench. Rude, domineering: a total bastard. So, Klein being desperate, he put on a show, and as much as I’m sure the jury disliked him, they disliked the judge more. At least Klein was standing up to him. And jurors aren’t stupid, you know. You get a dozen people in a room, who really don’t like somebody, and if you give them time enough, they’ll find a way to fix him. And that’s what happened out there. They came back with a verdict that was so inconsistent — acquitted Klein’s guy and then turned around and convicted the two other guys on exactly the same evidence — that the judge got the bird twice. Once with the verdict for Klein’s guy, and once again when the Circuit threw the whole thing out and wrote one of those
opinions about the judge that’d raise blisters on a teak wall.
“What Klein’s overlooking here,” Gleason said, “or at least I hope he is, is that this here is a different situation. Bart’s rough on sentencing, but he’s fair during trial. And he’s nice. He goes out of his way to see that the juries are as happy as they can be, and he makes it clear to them that he really is interested. He’s polite to the lawyers, and pleasant to the court officers. He doesn’t browbeat; he’s kind to witnesses — Howard Bart is a nice man. I don’t mean he’s weak, which Klein should know now he is not, if he did not before, I mean he is good. So I don’t think Klein’s gonna make himself any large point totals with the jury, goosing this judge. I think he’s losing them. Klein’s smart. He’ll figure that out. Couple days, he’ll stop.
“The points he raised? I don’t see much trouble there. The political persecution argument doesn’t cut the ice now, way it did, Dick Nixon was in office. And the only way Klein or any of them can make it is by confession and avoidance — admitting their clients robbed The Friary and killed the people, but saying the victims were bad, which they were, and deserved it, while their own motives were pure. To save the world by financing the armed fight against capitalism.”
“I can’t see John Bigelow doing that,” Richards said. “No matter what his batty client says. Bigelow’s a prick, but even I feel sorry for a guy who’s defending James Walker. Guy looks like a maiden’s nightmare of a Mau Mau rapist. Even the black folks on that jury shy away from him.”
“I agree with you, John,” Gleason said. “Now, Morrissey for Tibbetts? Well, what John Morrissey says he’s gonna do, that is what he’s gonna do. He told me, before he filed his notice told me he’s gonna do it, he’s going to put his man on the stand and Tibbetts is going to testify he’s been out of his tree for the past several years. Freaked out on drugs. About friends he had that made the mistake of taking LSD four or five flights up, and trying to fly out the window to the street below. About mescaline and magic mushrooms, and God only knows what all. And he’ll say before he went to the ashram in LA — which is where he’ll say he was the last year or so he’s on the run — the reason he went to the ashram was he realized he had to get his act cleaned up.”
Outlaws (Vintage Crime/Black Lizard) Page 11
