by Sol Stein
“We’re not here to fill the jails—I read in the papers that they’re pretty full up anyway—nor to give these nice men from the district attorney’s office a track record. We’re here to listen to some people tell us what happened and to see if the accusations against the accused can stand up under the tough test of your judgment.
“As far as you are concerned—the judge will support me in this—none of the facts are in. That’s why we’re here. To listen to the facts and come to the kind of fair conclusion you’d want if your sixteen-year-old was in trouble over something he did or didn’t do.”
Thomassy, hands in pockets, walked thoughtfully over to Mr. Cantor’s table, then turned to the jury: “Ladies and gentlemen, you are here to promote justice. Your sworn duty is to remember only one thing—before and during and after a trial—that a man, a boy, is innocent until he’s proven guilty beyond a reasonable doubt.”
Cantor kept his face rigidly expressionless. He wished Thomassy would move farther away from him.
“At the close of this trial,” continued Thomassy, “I’m going to ask his Honor—I’m not going to have to ask him, I’m sure he’ll do it anyway. In his charge, his Honor is going to remind you that this boy on trial here stands clothed in the presumption of innocence. It is his constitutional right to be considered innocent throughout this trial. But it’s not just his right. It’s your right.” Thomassy made sure his gaze took in everyone. “The presumption of innocence protects every single person in this courtroom.”
Some spectator started to applaud, then remembered where he was, even before the judge’s gavel came down.
The first witness called by the prosecution was the young intern, Dr. Karp. Thomassy quickly checked the haircuts of the male jury members. Karp’s longish hair was a minus for him. His M.D. was a plus. The two probably canceled each other out in the jury’s eyes. Their reaction would depend on how the testimony went.
Cantor had the record show that Dr. Karp had attended the patient, Edward Japhet, had examined him frequently in the hospital, had studied the tests performed in the hospital, and could testify as to the nature, degree, and medical consequences of the injury. Dr. Karp seemed restless with the routine questions.
Cantor then asked, “Would you describe the patient’s injuries as serious?” and Karp looked interested at the first question that couldn’t be answered yes or no.
“Well,” he said, “any injury can be potentially serious.”
Cantor anticipated a possible objection by the judge or Thomassy by quickly asking, “We are here not to speculate about generalities but to hear facts relevant to this set of injuries and no other.”
Good boy, thought the judge.
Karp thought a minute. “Yes, the injuries were serious.”
“Would you describe them for us to the best of your recollection?”
“Can I refer to the medical records?”
“Your Honor, Dr. Karp has the patient’s records from Phelps Memorial. Can they be marked as the People’s Exhibit A?”
After the formalities, Karp gave a precise medical description of the injuries to Ed Japhet’s throat. When he had finished, Cantor said, “Doctor, People’s Exhibit A refers to a facial injury inflicted by a chain. Would you describe that injury as more serious or less serious than the throat injuries?”
“From a medical point of view,” said Karp, “the wound on the face is healing well, scabbing over well. Of course, if it had been an inch higher, the eye would probably have suffered irreversible—”
“Objection!”
“Sustained, Mr. Thomassy. Dr. Karp, the jury concerns itself only with what happened, not with what might have happened.”
“I understand,” said Dr. Karp.
Cantor continued. “From your experience, doctor, can you at this stage tell whether the facial injury will result in permanent disfigurement, and if so, to what extent?”
“It’s awfully hard to say. The scars on his psyche are likely to have more effect than any scar on his face.”
Judge Brumbacher saw Thomassy getting to his feet and thought he’d intervene before the objection. “Dr. Karp,” he asked, “you are not a psychiatrist, are you?”
“No, your Honor.”
“If psychic injuries are not your specialty, would you please confine yourself to physical aspects of the injury. Mr. Cantor, will you rephrase your question?”
“Dr. Karp, from your experience, can you tell whether the facial injury will result in permanent disfigurement?”
“Nobody can.” Karp sensed the Judge’s displeasure. “I mean, I can’t. Okay?” he asked Cantor.
Cantor was satisfied. He had gotten the facial injury on the record, and the jury would remember Dr. Karp’s remarks, whatever the objections.
“The prosecution has finished its examination of this witness, your Honor.”
Judge Brumbacher asked, “Would counsel for the defendant like to cross-examine?”
Thomassy nodded and approached the stand, glad he had done his homework.
“Dr. Karp, would you say that the patient might have died from his injuries?”
“You mean the throat injuries?”
“Could he have died from the contusions, abrasions, and other injuries upon his body exclusive of the internal injuries to the throat?”
“No,” said Karp.
“Then please answer about the throat injuries. From your examination of the patient, from your examination of his X-rays and the results of other medical tests administered at the hospital, are you able to say, with reasonable medical certainty, that the throat injuries might have been fatal?”
Karp thought a long time. Finally he said, “No, sir.”
“Thank you,” said Thomassy, turning away.
As Karp got up to leave, Cantor was up on his feet asking for redirect.
The judge asked Karp to sit again, and reminded him that he was still under oath.
Cantor paused only long enough to make sure his voice would be controlled. “Doctor, was the patient admitted to the intensive-care unit of the hospital?”
“Yes, he was.”
“Was he in the intensive-care unit for three full days?”
“Something like that.”
“What is the function of the intensive-care unit?”
“Well, it’s a small unit for receiving accident and other emergency cases requiring constant vigilance nurses always in attendance, frequent checks of the patients’ pulse, breathing, the blood situation. Also, there’s the equipment at hand for resuscitation in case of heart failure, transfusions. The nurses are experienced in closed chest massage and in assisting the resident if the patient has to be opened fast, things like that.”
“Do more patients who enter the intensive-care unit die than the hospital population as a whole?”
“I suppose so. A lot of bad auto wrecks end up there, heart attacks, et cetera. I don’t have the figures.”
“Would you say that people are put into the intensive-care unit instead of some other section of the hospital because they are in danger of their life?”
Dr. Karp fidgeted. “I guess so, but—”
“Would you say that Edward Japhet was put in the—”
Thomassy was on his feet. “Your Honor,” he said, “I think the district attorney might let the witness answer the question before asking another.”
The judge asked the court stenographer to read back the earlier question and answer. She had gotten the “but.”
“But what?” asked the judge of the witness.
“I was going to say that someone with throat injuries of unknown extent or origin might be put into the intensive-care unit until we found out what was wrong with him.”
Cantor released his witness to Thomassy, who had only one question.
“Would you say that in your judgment, Edward Japhet, who had a serious but not prospectively fatal injury, was admitted to the intensive-care unit for further diagnostic purposes?”
“I di
dn’t admit him.”
“But you examined him afterward?”
“Yes.”
“Then answer the question. Was Edward Japhet admitted to intensive care mainly for precautionary diagnostic purposes?”
“Yes.”
“Thank you.”
Thomassy was relieved. He was sure most of the members of the jury didn’t get the import of the exchange, but he felt confident that they were left with the impression that Ed Japhet hadn’t been all that badly hurt after all.
The next witness sworn was Miss Murphy, who had come straight from the hospital and looked tough and regal in her starched uniform.
Cantor was about to put his first question to her when he noticed his assistant, Bob Ferlinger, trying to catch his attention. Cantor thought it would be bad to take the jury’s attention away from Miss Murphy. Ferlinger hastily scrawled a message.
“Miss Murphy,” said Cantor, “I know you’ve just come off duty and must rush back, and so I’ll dispense with the usual form, if his Honor is willing, and ask you: Are you employed at Phelps Memorial Hospital as a senior nurse, and were you in fact in charge of the desk on the floor where Edward Japhet was a patient after he was released from the intensive-care unit? If the answer to all of that can be answered yes or no, please say so.”
“Yes. That’s all true.”
“And were you on duty at the desk at the time that the second assault was committed against Edward Japhet?”
Thomassy stood but said nothing.
Judge Brumbacher took it upon himself to say, “I have a feeling Mr. Thomassy is about to object. I’m not a mind reader, but it seems to me, Mr. Cantor, that your question had an extraordinary number of objectionable features crammed into its few words.”
“I’m sorry, your Honor. I was just trying to condense things so that this witness could return to her post.”
“We’re engaged in a matter of some consequence. An individual’s freedom is at stake. I think you’d better take your time.”
“Yes, your Honor.”
“Proceed.”
Cantor’s question was formulated in slow motion. “I ask you,” he said, realizing he had said nothing, “on the night of Monday, January twenty-fourth, were you on duty?”
The witness referred to her notes with the judge’s consent.
“Yes,” she said.
“Was that the night an unauthorized person entered the area in your charge and entered the patient’s room?”
“Japhet?”
“Yes, Japhet’s room.”
“I didn’t see the person.”
Cantor could see that his assistant was extremely anxious to communicate with him. He made his way halfway to the table where Bob Ferlinger sat restlessly.
“How did you learn of the disturbance?”
Bob Ferlinger held his head in his hands.
“Miss Ginsler was carrying a tray of instruments—I saw that,” she said, as if realizing the importance of having to testify that she saw something, “and someone came out of the Japhet room and crashed directly into her, upsetting the tray.”
“Objection!” said Thomassy.
When he was recognized, Thomassy said, “Your Honor, I suspect the witness meant to report that the sound of the tray crashing caught her attention and that she then saw Miss Ginsler—”
“Mr. Thomassy,” said the judge sharply. “That’s the kind of thing you can develop on cross but not now. I think Mr. Cantor ought to ask the question again, and the witness should confine herself to what she actually saw and heard herself.”
Cantor had used the distraction to get close enough to the table to pick up the message from Ferlinger. The paper said, “Ginsler won’t testify.”
“Please continue,” said the judge.
“How did you learn of the disturbance in the patient’s room?”
Miss Murphy felt that her professional reputation was suddenly at stake. “I…” she said carefully, “heard this crash. I looked up in time to see the instrument tray falling from Miss Ginsler’s hands, spilling all over the floor, and this short man who had…who presumably had bumped into her rushing into the stairwell door.”
Cantor felt desperate. “Would you…” He was going to say, “Would you assume that anyone rushing out of a patient’s room in that kind of hurry was up to no good,” and realized it would never pass.
“What did you actually see?” Cantor asked.
“Where?”
“Anywhere.”
Thomassy had to keep himself from laughing out loud.
“Well,” said the nurse, “I saw the scattered instruments and Miss Ginsler in a state of bewilderment, and I accompanied another nurse into the Japhet room and saw the cut tube.”
Cantor felt a great relief when Thomassy didn’t object. “Can you describe the function of the tube?”
“Well, it goes into the patient’s nostril, it’s taped, actually, to the face above the lip, and the tube goes down the gullet into the stomach, and serves to drain the digestive fluids that accumulate in the patient’s stomach while he is being fed intravenously.”
“He was that sick?”
Thomassy started to get up.
“Let me rephrase that. Why was the patient being fed intravenously?”
Thomassy was standing. “Your Honor, shouldn’t that question have been asked of a doctor?”
Brumbacher said, “The witness may be able to provide us with a competent answer. The jury can judge. Would you answer the question, please?”
“About why he was being fed that way?”
“Yes.”
“Because of the throat injury. It was hard for him to swallow food.”
Cantor, greatly relieved, said, “Your witness.”
Thomassy took his time getting over to Miss Murphy, collecting the attention of each member of the jury.
“Miss Murphy, did you see the tube being cut?”
“Well, I…”
“Please answer yes or no.”
“No.”
“Miss Murphy, to your knowledge, did anyone see the tube being cut? That is, did anyone report to you they saw the tube cut?”
“No. Just that it had been cut.”
“So that neither you nor any member of your staff, and to the best of your knowledge, no other person actually saw who cut the tube drain in Mr. Japhet?”
“That’s right.”
“Did you see the short man well enough to be able to identify him without any doubt whatsoever?”
“No.”
“Is there anything, anything at all, that you personally saw or heard that night in the hospital that has any bearing on whether or not the defendant was present in the hospital or attempted to harm Edward Japhet in any way whatsoever or not? Never mind, strike that, no more questions for this witness.”
Without so much as a glance at Miss Murphy, Thomassy stalked to his seat, leaving the nurse, mouth ajar, suspended in astonishment.
Cantor pitched his voice so that it would be heard by the judge and Thomassy. If the jury or the spectators heard, he thought, that couldn’t be helped. “Your Honor,” he said quietly, “I’m sure Mr. Thomassy forgot himself, and that last question was unintentional.…” He glanced at Thomassy as if to say it was damn well intentional. “Nevertheless, would it be appropriate for the court to consider instructing the jury on comments stricken from the record?”
Judge Brumbacher beckoned for Thomassy and Cantor to approach the bench.
“Gentlemen,” he said, “I am not about to be sucked into delivering a sermon, because what I would say about the conduct of adversary proceedings just might be overheard and misinterpreted as a libel of the legal profession. I am going to instruct the jury.”
Judge Brumbacher turned to the ten men and two women in the jury box. “Ladies and gentlemen,” he said in a quiet voice, and they all immediately inched forward in their seats and cupped their attention to catch his soft-spoken words. “When a question or an answer is stricken from the recor
d, either by the person speaking, as just happened, or by me, it is as if the question were never asked. Yet you heard it. Therefore, the last question asked by counsel for the defendant should be erased from your minds as well, and not taken into consideration. Thus the record of the last witness, Miss Murphy, will end with the penultimate question, the next-to-last question, and her answer, and that is all. Would the court reporter please read that question and answer?”
The court reporter held up the punched tape coming out of her machine and in a flat voice read, “Question: Did you see the short man well enough to be able to identify him without any doubt whatsoever? Answer: No.”
As the judge recessed the trial until the following morning and instructed the jury in the ground rules for their overnight behavior, Thomassy had to forcibly restrain himself from chuckling at how effective that second reading of the crucial question and answer turned out, just as he had planned.
Chapter 26
That evening, before dinner in the Japhet home, Mr. Japhet mixed vodka martinis in a pitcher, poured some over ice for himself, and a smaller quantity for his wife, then asked Ed if he would like to sample some.
“I probably won’t like the taste,” Ed said.
“How will you know until you try?”
“Never mind, Dad. Some other time.”
The three of them sat quite far apart from each other, points of a triangle.
“I wish we knew what went on in court today,” said Mr. Japhet. “Ed, you do know why we can’t be there?”
“No,” said Ed.
“I guess the assumption is that we’ll both be witnesses further along, and a witness isn’t supposed to hear what the other witnesses say.”
“Oh?” said Ed.
“According to Mr. Cantor, I’m on call tomorrow. You will come, won’t you, Josephine? And, Ed, why don’t you drive there with us? I’m sure they’ve got some place you can stay until you’re called.”
“I’d just as soon stay here. I’ve got all that catchup reading to do for school.”
“I’m sure your teachers will make allowances for what happened.”
“They’ll make allowances because you’re my father.”
