by Parnell Hall
“Mr. Finley,” Steve said. “I don’t want to impose on you with a lot of questions. I have only one real concern. And that is that this defendant gets a fair trial. And I’m sure you feel the same way.”
“Absolutely,” Finley said.
“Fine,” Steve said. “So the way I see it, the only real question is whether you’re prejudiced in this matter.”
Finley frowned. “I beg your pardon?”
“Prejudiced,” Steve said. “The prefix pre- and the word judge. To judge before. Have you judged this case before you heard it?”
“Certainly not,” Finley said.
Steve held up his hand. “Don’t be too sure. I want you to keep an open mind. Be totally honest here. As you sit here now, have you formed any opinion about the guilt or innocence of this defendant?”
“No, I have not,” Finley said.
“You have no presumption whatsoever about her guilt or innocence? She might be innocent or she might be guilty, you simply don’t know?”
“That’s right.”
“Thank you, Mr. Finley,” Steve said. He spread his arms. “Ladies and gentlemen of the jury. Is there any one of you who would answer these questions any differently than Mr. Finley? If so, please raise your hand.”
No hands went up.
“None at all?” Steve said. “Is that right? None of you at the present time have any opinion as to the guilt or innocence of this particular defendant? If you do, please tell me now.”
Steve paused. Waited. “Fine,” he said. “Thank you very much.” He turned back to the bench. “Your Honor,” he said, “the entire jury is unacceptable. I ask that they be dismissed for cause.”
Judge Dalrymple blinked.
A dull murmur broke out in the courtroom, first surprised, then angry. As it grew in volume, Judge Dalrymple banged the gavel. He noted the pain had shifted behind his eyes.
“I beg your pardon?” he said.
“I ask that the jury be dismissed for cause.”
“On what grounds?”
“They have no opinion as to the guilt or innocence of the defendant. Whereas by law the defendant is presumed innocent until proven guilty. Not one of these jurors is willing to grant her that presumption of innocence. They have no opinion whatsoever. Even before they’ve heard a shred of evidence, they think she’s equally likely to be guilty. They’re clearly unacceptable.”
A.D.A. Pearson was on his feet. “Oh, Your Honor,” he said. “I’ve seen stunts like this in law school, but this is the first time I’ve seen one in open court. That’s absurd.”
“That may be,” Judge Dalrymple said. “But it happens to be the law.”
“But, Your Honor,” Pearson said in exasperation. “The jurors don’t believe that. They were tricked into saying it.”
“I beg your pardon, Your Honor,” Steve Winslow said. “But I must object to the prosecutor stating what these jurors do or do not think.”
“Exactly,” Judge Dalrymple said. “Mr. Pearson, you should know better.”
Pearson held up his hand. “I apologize, Your Honor. I retract that. Of course the jurors think for themselves. All I’m saying is counsel has manipulated them into the present position. They were given the information in a manner calculated to confuse. It was intentional. And then to say they’re unacceptable as a result of that-it’s absurd.”
Steve Winslow raised his eyebrows. “Are you saying these jurors are acceptable?”
“Of course they are.”
“Each and every one?”
“Each and every one.”
“Well,” Steve said. “That’s certainly emphatic. In view of that, I think I should reconsider. Your Honor, I withdraw my objection to the jury. Instead, I have a few more questions.”
Steve Winslow turned back to the jury box, where sixteen faces regarded him with suspicion.
Steve smiled. “Ladies and gentlemen of the jury, you have every right to be angry. You were indeed tricked. What I told you about having no opinion as to guilt or innocence sounded good, but it wasn’t. I did that to make a point.”
Steve turned, pointed to Pearson. “During the course of the trial, the prosecutor is going to tell you that my client took money from her employer. And you know what? He’s going to make it sound good. He’s going to make it sound great. You’re going to listen to him and think, that must be true.”
Steve smiled. “But wait a minute. You’re on to us now. You know better. Just because a lawyer says something, doesn’t make it right. Even if it sounds good. It’s a lawyer’s job to make it sound good. That’s what we do.”
Steve pointed. “So, don’t listen to him.” He shrugged, smiled. “And don’t listen to me.” He shook his head. “What we have to say isn’t important.”
Steve held up one finger, then pointed to the witness stand. “But listen to them. Listen to the witnesses. The testimony of the witnesses is all that matters here. The rest of this stuff doesn’t matter.”
Steve stopped, smiled. “Now, I apologize for all this. But one thing is absolutely true.” Steve pointed. “The defendant is innocent until proven guilty. That’s the most important concept of law. It’s one I’m sure you all know. It’s one I’m sure you would have no problem with if I hadn’t confused you.
“Which is why I must ask you-is there anyone of you who is so angry with me that you could not be impartial in this case, that you would let it affect your feelings toward this defendant? If so, please raise your hand.”
No hands went up.
“Good,” Steve said. “And is there anyone now who doesn’t understand the concept of innocent until proven guilty? Is there anyone now who is not able to presume this defendant innocent at the present time? Again, please raise your hand.”
No hands went up.
Steve smiled. “Thank you very much.” He turned back to the bench. “Your Honor, I find I was mistaken. This jury is entirely acceptable. I have no objection whatsoever.”
Judge Dalrymple frowned. “You have no challenges for cause?”
“No, Your Honor. And no preemptory challenges either. The entire jury is acceptable. Let’s swear them in and start the case.”
A.D.A. Pearson rose to his feet. “Your Honor, Your Honor,” he said. “I haven’t passed for cause.”
“Oh?” Steve Winslow. “Just a moment ago you said the entire jury was acceptable, each and every one.”
“I was speaking generally.”
“Generally?” Steve said. “Each and every one isn’t generally. But I beg your pardon.” Steve stepped back and indicated the jury. “If you have challenges, please say so. These jurors have assured me they can all be fair. Would you please tell us which of them you feel aren’t capable of doing so?”
A.D.A. Pearson opened his mouth, then closed it again. He recognized a no win situation when he saw one. A minute ago Steve Winslow was the bad guy who’d tricked the jury. And now those same jurors were looking at him with mistrust. It was hard to take.
Pearson took a breath. “I didn’t say I had objections to anyone on this jury,” he said. “I merely said I hadn’t passed for cause. And I objected to your doing it for me. I said the jury was entirely satisfactory, and it is entirely satisfactory. I have no challenges either.”
He turned to the bench. “Pass for cause, Your Honor. And I have no preemptories either. The jury may be sworn.”
Judge Dalrymple nodded and grimaced. It just wasn’t his day. He swore the jury in, rubbed his aching head and broke for lunch.
4
For his first witness, A.D.A. Pearson called Frank Fletcher, who testified that he and Marvin Lowery had been partners in F.L. Jewelry for the past seven years.
“And are you acquainted with the defendant, Amy Dearborn?”
“Yes, I am.”
“In what capacity do you know her?”
“She was my employee.”
“When did you hire her?”
“Approximately six months ago.”
“Is she still i
n your employ?”
“She is not.”
“When did she leave your employ?”
“On May 3rd.”
“What day of the week was that?”
“It was a Monday.”
“And how did she come to leave your employ?”
“I fired her.”
“I see,” Pearson said. “And can you tell us the circumstances surrounding that firing?”
“Certainly,” Fletcher said. He shifted position on the witness stand. “For some time I’d been noticing shortages in the petty cash drawer.”
“One moment,” Pearson said. “For the jurors benefit, could you please tell us briefly about your business and how you operate?”
“Yes, of course. F.L. Jewelry is a wholesale and retail jewelry outlet. We don’t manufacture, we buy and sell. In that regard we’re a very small operation. Just myself and my partner, Marvin Lowery. And one secretary.”
“Miss Dearborn?”
“That’s right.”
“Go on. You mentioned a shortage in the petty cash drawer.”
“Yes. For some time I’d been aware of a discrepancy between what there should have been there and what there was.”
“In what amounts?”
“Anywhere from twenty to a hundred dollars.”
“And just how was petty cash handled?”
“As I say, it’s a small concern. Just the two of us and Miss Dearborn. The petty cash was kept in a cash box in Miss Dearborn’s desk. That’s what I’m referring to when I say the petty cash drawer.”
“How much money was kept in this box?”
“It varied, of course. But in the neighborhood of five hundred dollars.”
“I see. And what did you do when you discovered sums were missing?”
“I told my partner.”
“Mr. Lowery?”
“That’s right.”
“And what did you do.”
“We talked it over-”
Pearson held up his hand. “Fine. Don’t tell us what was said. But after your conversation, what did you do?”
“We hired a private detective.”
“Who actually hired him?”
“I did.”
“And who did you hire?”
“Samuel Macklin. Of the Macklin Detective Agency.”
“How did you hire him? Call him on the phone? Go to his office?”
“I called him on the phone, made an appointment and went to his office.”
“What did you tell him on that occasion?”
“I explained the situation. I told him there’d been shortages in our petty cash drawer and I wanted to get to the bottom of it.”
Pearson held up his hand. “Fine. Now, never mind what Mr. Macklin told you. What did he do?”
“He came to our office.”
“When was that?”
“Friday, April 30th.”
“At what time?”
“Twelve-thirty in the afternoon.”
“Who was in the office at the time?”
“Myself and Mr. Lowery.”
“Where was the defendant, Miss Dearborn?”
“She had gone out to lunch.”
“Was that a coincidence?”
“No, it was not. I asked Mr. Macklin to come while Miss Dearborn was out to lunch.”
“And why was that?”
“So she wouldn’t know what we were doing.”
“I see. And what were you doing? What did Mr. Macklin do when he came to your office?”
“According to his instructions, I’d been to the bank that morning and taken out five hundred dollars in twenty dollar bills. When Mr. Macklin came to the office, he took out a notebook and wrote down the serial numbers of those bills. Then he gave them back to me and I put them in the petty cash drawer.”
“What happened then?”
“Mr. Macklin left the office. Miss Dearborn came back from lunch. We conducted business as usual for the rest of the afternoon.”
“What happened a closing time?”
“Mr. Lowery and I left the office at five o’clock.”
“Was that normal?”
“Yes, it was. We always go home then.”
“What about Miss Dearborn?”
“She stays on the phones till five-thirty.”
“Every night?”
“That’s right.”
“She stays there alone?”
“Yes, she does.”
“What happens at five-thirty?”
“She closes up the office and goes home.”
“And that’s what she did on the night in question, April 30th?”
Frank Fletcher smiled. “I can’t speak for what she did. All I know is Mr. Lowery and I left the office at five o’clock.”
“Leaving her alone in the office?”
“That’s right.”
“And this was Friday night?”
“Yes.”
“Is your office open over the weekend?”
“No, it is not.”
“When did it open again?”
“Monday morning.”
“At what time?”
“We normally open at nine. This Monday we were there at eight-thirty.”
“Eight-thirty in the morning.”
“Yes, sir.”
“And why was that?”
“We got there early to meet Mr. Macklin.”
“He came to your office?”
“Yes, he did.”
“And what happened on that occasion?”
“We met him at eight-thirty in the morning outside our office building.”
“And where is that, by the way?”
“West 47th Street. Between Sixth and Seventh Avenue.”
“All right. You met him outside the building. And what did you do then?”
“We went up and unlocked the office?”
“You had not been in before?”
“That morning? No.”
“When was the last time you’d been in the office?”
“When we’d left Friday night.”
“You all went up together and unlocked the door?”
“That’s right.”
“And what did you do then?”
“I took the cash box out of the petty cash drawer.”
“In Miss Dearborn’s desk?”
“That’s right.”
“What did you do then?”
“I examined the contents.”
“And what did you find?”
“There was a hundred dollars missing.”
“A hundred dollars?”
“That’s right. Five of the twenty dollar bills were gone.”
“I see. And what did you do then?”
“We waited for Miss Dearborn to come in to work.”
“What time did she come in?”
“Nine o’clock.”
“What happened then?”
“Mr. Macklin identified himself, showed Miss Dearborn his I.D., and asked her to empty her purse.”
“What did Miss Dearborn do?”
“She seemed somewhat flustered. She-”
“One moment,” Judge Dalrymple said. He looked down at the defense table where Steve Winslow sat, looking unconcerned and somewhat bored, almost as if he weren’t paying attention. Judge Dalrymple cleared his throat. “So far there has been no objection from the defense. Still, if the witness would avoid giving his opinion as to what the defendant thought or felt.”
“Yes. Sorry, Your Honor,” Frank Fletcher said. “Ah…Could you repeat the question?”
“What did the defendant do when Mr. Macklin asked her to empty her purse? Never mind what you thought or felt-just confine yourself to what she said and did.”
“Right. Well, as I recall, she asked me what was going on. Am I allowed to say that? And I told her there’d been a robbery and Mr. Macklin was investigating it, and I asked her if she’d cooperate with him in clearing the matter up.”
“What happened then?”
“She withdrew her objection and allowed him to look in her purse.”
“Did he find anything significant?”
“Yes, he did.”
“What was that?”
“She had some twenty dollar bills in her change purse. Mr. Macklin took them and compared them to the list of serial numbers he had written down.”
“With what result?”
“Two of the bills were on the list.”
“The serial numbers matched?”
“Yes, they did.”
“What did you do then?”
“I called the police. They came and arrested Miss Dearborn.”
A.D.A. Pearson smiled. “Thank you, Mr. Fletcher. That’s all.”
Judge Dalrymple looked over at the defense table where Amy Dearborn’s long haired lawyer sat looking bored as ever. “Does the defense wish to cross-examine?”
Steve Winslow sighed. “I have one or two questions, Your Honor.” He got to his feet, stretched, crossed in to the witness stand. He frowned, rubbed his head. “Mr. Fletcher, correct me if I’m wrong. This happened on May 3rd?”
“Yes, it did.”
“That was the day you called the police and they arrested Miss Dearborn?”
“That’s right.”
“Did you also mention May 3rd as the day Miss Dearborn left your employ?”
“Yes, I did.”
“That was her last day with your firm?”
“Yes, it was.”
“I believe you said you fired her, is that right?”
“Yes, I did.”
“Why did you fire her?”
Frank Fletcher was a thin-faced man with a rather arrogant quality when he smiled. He did so now. “You want me to answer that?”
“I certainly do.”
“I fired her for stealing.”
“I see.” Steve Winslow nodded gravely. He turned, walked over to the jury box. Turned back to the witness. “Mr. Fletcher, you weren’t here for jury selection. But we had quite a discussion of the concept of innocent until proven guilty. Are you familiar with that concept?”
“Yes, of course.”
“Then how can you have fired the defendant for theft when she has not been found guilty of theft?”
Frank Fletcher drew himself up. “I consider that a mere formality.”
“Formality?” Steve said. “You consider our judicial system a mere formality?”
“Objection, Your Honor,” Pearson said. “Incompetent, irrelevant and immaterial. Let counsel stick to the facts.”
