The Magician

by Sol Stein

  ‘“May I see that?” said the judge, taking the document from the court reporter.

  “I believe,” said Thomassy, “your Honor will find no classified markings on the application. Since the witness has already acknowledged the application to be his, may we continue?”

  Judge Brumbacher nodded. “I don’t want to hold things up. Let’s proceed.”

  Cantor went back to his seat, angry. Thomassy turned his attention to Mr. Japhet again. “I said, would you read question number twenty-three on the facsimile.”

  “What foreign countries have you visited?”

  “And the answer?”

  “England, France, Germany, Italy, Ireland.”

  “Is that your signature at the bottom of the page?”

  “Yes.”

  “And was it sworn to before a notary public under oath?”

  “Yes.”

  “And were you in fact granted employment in the Department of State?”

  “It was to be a special assignment during my sabbatical year, not permanent employment.”

  “Please answer the question, Mr. Japhet. Were you denied employment in the Department of State, temporary or not?”

  Mr. Japhet averted his eyes. “Yes.”

  “Was it because you lied in your application?”

  “I was never told.”

  “You told this court under oath you had never been to Ireland. You told the State Department under oath that you had. On which occasion did you lie under oath?”

  “The family is part Irish, I’ve always wanted to go to Ireland, and so I put it down, I don’t know why. It was a silly mistake. It wasn’t a serious matter.”

  “It was serious enough for the State Department to deny you employment, wasn’t it?”

  Terence looked at Josephine. He had told her that he had withdrawn his application, that he changed his mind. It was all so foolish. He felt his eyes filling and prayed to control it.

  “Mr. Japhet, you are a teacher of children by profession?”

  “Yes.”

  “Would you condone cheating on an examination?”

  “No.”

  “Do you therefore apply a double standard, one for yourself and one for your pupils?”

  Judge Brumbacher did not want to see a grown man cry. “You do not have to answer that question, Mr. Japhet,” he said.

  “All right,” said Thomassy. “Mr. Japhet, on direct examination you alluded to an extortion racket in the school. Have you ever seen the defendant or anyone else extort money from a student in school?”

  “No.”

  “You heard about it?”

  “Yes.”

  “That is called hearsay, Mr. Japhet.”

  “Most of human knowledge is hearsay, Mr. Thomassy!”

  “Your Honor, we’ve had enough philosophizing. I move that this last remark and all previous comments by the witness with regard to extortion and war be stricken from the record.”

  “You asked the question about extortion, Mr. Thomassy. I’m going to let it stand.”

  “Very well.” Thomassy went over to the jury box to get their attention, and then turned his back to the jury and asked the next question across the space between himself and the witness box. “Mr. Japhet, do you consider yourself hostile to the defendant?”

  There was a long silence.

  Finally he said, “Yes.”

  Thomassy turned to the jury when he said, “Thank you.” He put his hands in his pockets as he came back to the box. He spoke more quietly now. “Mr. Japhet, if someone pointed a loaded gun at you, would you consider that to be assault with a deadly weapon?”

  “I’m afraid I’m not conversant with the meaning of such things, the technical meanings under the law.”

  “Never mind, we’re just interested in what you think as a lay witness.”

  “Well, that would be assault, yes.”

  “If you saw someone pull out a switchblade knife and hold it by your son’s throat, would you consider that assault with a deadly weapon?”

  “Of course.”

  “Well, what happened that evening after the dance, what more closely describes what happened, an assault with a deadly weapon with intent to harm, or a fight between schoolkids?”

  Silence. Then, “It wasn’t just a fight between kids.”

  Thomassy gave Japhet a withering look, then turned to the jury and said “Thank you” again.

  “Mr. Japhet, did your son fight back when he was allegedly attacked?”

  “Yes.”

  “But you didn’t say so in your testimony, did you? You gave this jury a one-sided report, did you not? Mr. Japhet, did the defendant actually strike you?”

  “No.”

  “Did you strike the defendant? Did you beat the defendant on the back?”

  “I said so.”

  “Did you pull his hair?”

  “I said so. My son was in peril of his life!”

  “Does your son ever have fist fights with other boys?”

  “I don’t think so. This is the only one I know of.”

  “You mean the night of the prom?”

  “Yes.”

  “Thank you, Mr. Japhet.”

  On redirect, Cantor asked only two questions.

  “Did you actually see the defendant strike your son with a chain?”

  “Yes.”

  “Did you at that moment believe your son to be in danger of his life?”

  “Yes,”

  “Thank you.”

  Judge Brumbacher recessed the court till two P.M.

  Mrs. Japhet asked her husband if he wanted to have lunch at Delorio’s, a restaurant nearby they had eaten at once or twice before.

  “I’d like to go home,” he said. “My shirt’s soaking.”

  “You want to see Ed, don’t you?”

  “Yes.”

  She put her arm through his. It was a small comfort.

  Chapter 27

  On arriving home, Mr. Japhet immediately removed his jacket, undid his tie, and started to unbutton his shirt. They had to make time. Ed was on the hall phone, saying, “They’ve just come in.” He held the phone up over his head and said, “He wants to talk to my mother or my father. Anybody here by that name?”

  Terence and Josephine Japhet stared at the upraised receiver.

  “You take it,” said Mr. Japhet, bolting up the stairs.

  Mrs. Japhet heard a few sentences from Mr. Cantor and excused herself. “Terence,” she shouted up the stairs, “you’d better talk to him.”

  “Tell Ed to put a tie on. Who is it?”

  “The district attorney.”

  “I’ll take it on the extension. Tell him to wait a minute.”

  Mr. Japhet was sponging his armpits with a washcloth when Mrs. Japhet came in the bathroom door and said, “He sounds apoplectic.” Mr. Japhet dried himself hurriedly and slipped a fresh shirt around his shoulders before picking up the extension. “Sorry,” he said.

  The delay had obviously given Cantor some moments to compose himself. “I didn’t mean to upset your wife,” he said, “but I’ve just been on the phone with Edward for nearly fifteen minutes. Can you bring him down to White Plains by two o’clock, and I’ll try to arrange for a meeting in the judge’s chambers.”

  “We haven’t eaten. What’s the problem?”

  “I thought you knew.”

  “Knew what?”

  “Your son refuses to testify.”

  A moment’s pause.

  “Of course,” Cantor continued, “we could subpoena him, but it wouldn’t look right.”

  “We’ll be down.”

  “Come directly to Judge Brumbacher’s chambers. Take the elevator to the fourth floor.”

  “All right.”

  When he came down the stairs, Ed was waiting for him.

  “Josephine, we’ll have to bolt milk and something instead of lunch. Ed, we’re going down to White Plains.”

  “I’m not going to change my mind, Dad.”

 
; “I’m not going to try to persuade you to do anything you don’t want to do.”

  “You mean that?”

  “I mean it.”

  Ed managed three doughnuts and two glasses of milk in the time it took Mr. Japhet, standing up, to down one glass.

  “I don’t know how you do that,” said Mrs. Japhet.

  “Dad,” said Ed, “I heard you were terrific this morning.”

  “Who from?”

  There was the merest nuance of a smile on Mrs. Japhet’s lips as she watched the two men adjusting their ties.

  Judge Brumbacher, Thomassy, Cantor, and the court reporter were in the room when they arrived. The judge said it was all right for Mrs. Japhet to stay. “This is very informal,” he said, as he beckoned them to take seats around the conference table. “Mr. Cantor and Mr. Thomassy are both anxious for Edward to testify, for different reasons. I haven’t asked them if they would subpoena him if he refused to testify voluntarily, but I think I would grant such a subpoena, since Edward is in fact the only eyewitness to what happened on the second alleged assault in the hospital.” He turned to Ed. “Well?”

  The paneled room was imposing. The circle of adult faces added to Ed’s discomfort. His hands, under the table, were clasped.

  “I’ve thought about it a lot,” he said. “I really don’t want to testify.”

  “Son,” said the judge, “I realize you’re only recently out of the hospital. You’ve had a trying time. Hopefully, these procedures will be short, and then it will all be over. All that is wanted is for you to tell us under oath what happened on the night of the school prom and what happened in the hospital. You can be as brief as you like.”

  “Your Honor,” said Cantor, “the people would be served if the young man would testify to everything he remembered about those two occasions in the greatest of detail.”

  Judge Brumbacher looked annoyed. “I’m trying to help you get a witness on the stand. Don’t complicate matters. Mr. Thomassy, I assume you will want to cross-examine?”

  “Yes.”

  “Can you keep it simple?”

  “Your Honor, I wouldn’t want my hands to be tied by promises made in this room. The boy is going to testify either voluntarily or under subpoena from the prosecution or under subpoena from me, and the sooner he realizes that, the better.”

  “I’m sorry,” Ed said. “I really don’t want to cause any trouble. It’s just that I’ve made up my mind.”

  Judge Brumbacher came around to Ed’s side of the table, touched the boy’s shoulder briefly, realized it was an inappropriate paternal gesture, and walked completely around the table to resume his seat, speaking finally in the softest voice he could summon.

  “Young man, may I explain what testimony is? Your father here is a teacher. Well, to testify is to teach, to tell what happened, to give your personal, truthful knowledge of events perhaps known only to you, so that others, the court, the people on the jury, will be able to learn what went on. There’s nothing wrong with teaching, is there?”

  “No, sir.”

  “Good. You will testify, then?”

  “No, sir.”

  “Please understand, young man, that if it becomes necessary to subpoena your presence, and you still refuse to testify, I will have no alternative but to declare you to be in contempt of court.”

  Mrs. Japhet made a sound. The judge held a finger to his lips, waiting for Ed’s response.

  “Sir, there’s no contempt involved, really. I listened to the lawyers in the other court. I don’t understand all the legalisms and the objections and all that. I just don’t want to play the game.”

  “Mr. Japhet,” said Judge Brumbacher to the father, “would you like to talk to your son privately and explain the seriousness of this matter, that it is not in any sense a game.”

  “I think he—”

  Ed cut his father off. “I know it’s serious. I was the one who got hurt.”

  Judge Brumbacher was losing his patience. “You did cooperate in giving information to the police when they questioned you, it’s all in the report, what harm is there in repeating that? It’s so much better for the jury to hear what happened from your own mouth so that they can evaluate what you say.”

  “Sir, it’s just that I know what will happen.”

  “What?”

  “Well, one of these men is going to ask me questions in a way to prove that Urek did it, and the other one’s going to ask in a way to prove he didn’t, or didn’t mean it. I know he did it, and he meant it. I just don’t want to go through this bit. It’s got nothing to do with—”

  “Mr. and Mrs. Japhet,” cut in the judge, “would you both take Edward into the courtroom? I want to discuss this matter with the attorneys.”

  The judge, Thomassy, and Cantor watched them go out the door. As soon as it closed, Cantor rattled away at the judge, who silenced him with an upraised hand.

  “Gentlemen, I’m as upset as you are, though doubtless for different reasons. Cantor, you won’t want to put him on now. With his attitude, he’ll blow your case. Thomassy, you never wanted him on. I’m sure both of you will accomplish everything you wanted to in your summations. Let’s get on with it. You’ll have to work around the boy’s testimony.”

  Chapter 28

  Cantor preferred to have his discussions with Bob Ferlinger out of earshot of other members of the D.A.’s staff. The empty office on the third floor was perfect. It had a plain table and one straight-backed chair, which was fine, because Cantor preferred to stride about while thinking. In the corner near the window there was a filing cabinet, all four drawers missing. The window itself had half a curtain. Where the other half had gone, only the Lord knew; it was missing the first time they met in that office. This was the fourth.

  “Okay,” said Cantor, closing the door. “You sit, I’ll stand.”

  “Anything you say, O Tall One,” said Ferlinger, putting his feet up on the table.

  Ferlinger’s impertinence bothered Cantor for practical reasons. It didn’t hurt his ego. It was just that if he couldn’t command the respect of a kid like Ferlinger, how the hell was he going to impress the electorate?

  “You can’t wait to try a case yourself, can you, cheeky?”

  “Anytime you say.”

  “How about now?”

  “What do you mean?”

  “Who would you call next?”

  “I thought we’re having the school custodian.”

  “I mean after him.”

  Ferlinger removed his legs from the table. Was Cantor serious?

  “Well?”

  “I’m thinking.”

  “You’re not going to score high marks in a courtroom with intermissions while you’re thinking.”

  “I know who you ought to call if you had the guts.”

  “Oh?”

  “The Scarlatti kid.”

  “Go on.”

  “Get him to cop a plea. Something like disorderly conduct. Anything. But get him to tell how Urek did the damage. That’s all you’d need. The jury’d eat it up.”

  “Anything else?”

  “Don’t you think it’s a good idea?”

  Cantor laughed. “There’s no charge against Scarlatti. Why would he testify against his pal? He’d be dead in school. His gang wouldn’t have him, the other kids wouldn’t have him, nobody loves a snitcher, he’s got nothing to gain. You get an A for ‘effort.’ Next idea.”

  A muscle twitched in Ferlinger’s cheek, as he looked at his notes. “How about the Japhet kid’s girl friend, Lila what’s-her-name? She’s not related to the victim, she got attacked herself, she’s an eyewitness, and she’s a pretty girl.”

  “Why not?” said Cantor.

  “Yes, why not?” said Ferlinger confidently.

  “I’ll tell you why not, you sixth grade moron. On cross-examination it’ll turn out she only got her hair pulled, which will help Thomassy establish his point about the whole thing being trivial. You don’t want hair-pulling in a felony case.
Besides, she’s Japhet’s girl friend. A juror in his right mind would assume that she would testify against anybody that hurt her boyfriend—it’s the loyal feminine thing to do. And have you looked closely at the jury? There’s not a handsome face among them. They’d resent her prettiness.”

  “You mean there’s nothing to be gained by calling her?” said Ferlinger.

  “Oh, something. Thomassy’d probably beat her up on cross, but we’re not going to win this case on Thomassy being the bad guy. Any more ideas?”

  “That psychiatrist we got a line on interviewed both of them. We could get him to testify that Urek is perfectly sane and knew exactly what he was doing.”

  “Yeah.”

  “Yeah what?”

  “Have you ever had a psychiatrist on the stand? No, you haven’t had anybody on the stand. That’s a can of peas you don’t want to open unless you can control it one hundred percent. Most psychiatrists don’t think anybody is really personally guilty of anything bad—at least, they make it sound like that to a jury. Any more brilliant ideas?”

  “You seem to have thought of everything.”

  “Yeah.”

  “Except.”

  “Except what?”

  “How to win this case.”

  Cantor stretched his arms above his head. He’d have loved to let one of his long arms sweep down across Ferlinger’s fat face.

  “Don’t,” said Ferlinger.

  “Don’t what?”

  “Don’t take a poke at me without a weapon in your hand. It’s essential for a felony conviction.”

  “Is that a hint?”

  “It’s two hints. One for you. One for the case. What was it you said you told your wife?”

  “I told her we’d get a conviction.”

  “Are you going to tell her something different tonight?”

  “The case isn’t over yet. Look, Urek did it, didn’t he?”

  “Yeah, you, God, and I know it, but we’re not on the jury. That’s what Thomassy is working on, convincing the jury. You know what he’s doing right this minute? He’s with Urek in the cell downstairs.”

  “So what?’

  “He’s been with him ever since the meeting with Brumbacher. You don’t think he needs all that time just to cheer him up?”

  “What are you driving at?”