by Sol Stein
Thomassy, satisfied, sat down.
Cantor shifted gears, and began again.
“The chain you said you found, did you find it on top of the snow, or underneath the snow?”
Urek did not reply.
“Will your Honor please direct the witness to answer the question?”
“I’m only supposed to answer him yes or no,” said Urek pleadingly.
“Did you find the chain on top of the snow?”
“No.”
“Did you find it underneath the snow?”
“I just found it.”
“Where?”
“Where it was lying.”
“Did you hit Ed Japhet with the chain?”
“I hit him with my hand.”
“Was the chain in your hand at the time?”
“I don’t remember.”
“Do you remember choking Ed Japhet?”
“No.”
“How do you account for the severe throat injuries he got?”
“We were fighting.”
“How do you account—”
“Objection! The witness is not a physician.”
“Objection sustained.”
“If Mr. Japhet hadn’t pounded your back and pulled you by your hair, would you have gone on choking Ed Japhet until he was dead?”
Thomassy didn’t have to object. Judge Brumbacher cautioned Cantor, “Would the attorney for the People please try to ask questions the witness can answer?”
“Did you charge students twenty-five cents a month for protection of their lockers at the school?”
“I’m sorry,” interjected Thomassy, “but that subject was not covered on direct examination.”
“Your Honor,” said Cantor, “direct testimony has attempted to paint the defendant as a young man who never did anything wrong in his life, and I’m entitled to go into this.”
Judge Brumbacher called both attorneys to the bench. “Mr. Cantor can pursue the question if he is attacking the credibility of the witness. Objection overruled.”
Thomassy closed his eyes to let a moment of time pass. He hoped Urek would not be caught in a lie.
Cantor repeated the question. “Did you charge students twenty-five cents a month for protection of their lockers at the school?”
Urek looked over at Thomassy. He thought he saw the barest nod.
“Yes, sir,” said Urek.
“Was this a duty assigned to you by the school?”
“No, sir.”
“You set yourself up in business on your own?”
Thomassy objected.
“Sustained,” said the judge. “Please rephrase.”
“Let’s just strike that,” said Cantor, then asked, “What happened if any student refused to subscribe to your protection service?”
“They all paid.”
“All?” shot in Cantor.
Urek looked at Thomassy, but couldn’t detect a signal. “Japhet didn’t pay.”
“Did you threaten Japhet for not paying, did you say that something would happen to him or his belongings if he didn’t pay?”
“No, sir, I never threatened nobody.”
The judge was getting impatient with Cantor. “Could we please get back to the night of the alleged offense? The present line of questioning isn’t going to get us finished today.”
Cantor began to feel a sense of deep despair. “You said on the night of the prom that you got into Mr. Japhet’s car because you were waiting to get a ride home, is that correct?”
“Yes.”
“Did you ever .get your ride home from the prom?”
“We walked.”
“Wasn’t that what you intended to do in the first place?”
“In the snow?”
“Was it your father that was supposed to come pick you up?”
“One of them was supposed to, I don’t remember which. They sometimes forget.”
“If I got every one of your parents to the witness stand and asked them if they were supposed to pick you up that night—”
“Mr. Cantor,” said the judge, “I cautioned you earlier.”
“I withdraw the question. Your Honor, frankly, I’m feeling terribly frustrated. The eyewitnesses, the Japhet boy, his girl friend Lila Hurst, the nurse Ginsler, these are all people who should have testified or been made to testify…”
“Mr. Cantor,” said Brumbacher quietly to the two lawyers, “one cannot retry cases from a different vantage point, except on appeal. Hindsight is of value to us all, and I do understand your present frustrations, but may I tell you that out of my long experience, the most telling effect on the jury is the organization of the testimony in the summations, and you have your summations before you. Each case cannot be argued to perfection. Do the best that you can by the rules that govern.”
Cantor tried one last question.
“I remind you that you are under oath and that you must tell the truth on pain of perjury. That means that if you lie in court, you can be sent to jail for lying, whatever the outcome of the present charges. Now, did you attack Edward Japhet after the prom and cause him great bodily harm, yes or no?”
“Don’t answer that question!” shouted Thomassy; then, with every eye on him, said, “I’m sorry I shouted, your Honor, but if the defendant had answered the question as asked, I would have had to argue for a mistrial, and I’m sure we all want to avoid that. If a witness knowingly lies, the court can consider perjury charges. Mr. Cantor made it seem as if there’s some kind of automatic jail sentence. This is no way to threaten a sixteen-year-old witness who feels himself guiltless to the point of being willing to put himself on the witness stand and testify under oath. If Mr. Cantor wants some help in framing a question…”
“I don’t need help,” said Cantor. “I’d also like to avoid hindrance, your Honor.”
“Proceed.”
“Did you attack Edward Japhet after the prom and cause him great bodily harm, answer yes or no?”
Urek closed his eyes.
“Did you attack Edward Japhet after the prom, yes or no?”
“No,” said Urek.
“No more questions,” said Cantor, hating whatever Ferlinger would say to him as soon as they were alone.
“The defense rests,” said Thomassy.
Judge Brumbacher instructed them both that summations would begin promptly at two P.M.
Chapter 29
The Japhets walked over to Howard Johnson’s for lunch, which began in silence.
The clam chowder came. By the time his mother and father had finished theirs, Ed had had only a spoonful or two. Still, they said nothing.
Finally, when the fried clams were before them, Ed said, “You know, the tricks I do, it’s all psychology.”
They looked up, puzzled.
“What I mean is, the hand isn’t quicker than the eye. It’s just that people want to be fooled. You help them by misdirecting their attention. They don’t notice what you’re really doing, because they don’t want to. Most people could figure out most tricks if they really tried. Anyway, I’ve made up my mind.”
“About what?”
“I’m going to give the tricks I still have to the Salvation Army or something.”
“Why don’t you take time to think it over carefully?” said his mother.
Ed picked away at the clams. “I have, Mom. Don’t look like that. Magic is nothing compared to what we saw today.”
“You’re upset,” said his mother.
“Oh, Mom, you always think that. Dad, answer one question honestly. Who’s worse, Thomassy or Urek?”
Neither Mr. nor Mrs. Japhet said anything.
“I thought Thomassy was the real star of this thing. I kind of admire the way he works. The only thing I really worry about is what happens if Urek gets off. You’ll have to hire a bodyguard for me, Dad,” he said, trying to laugh, “or move somewhere else.”
“Let’s not even think of that,” said Mrs. Japhet. “The facts are so clear.”
“Women,” said Mr. Japhet, “live by hope.”
“The facts have very little to do with it, right, Dad?”
Mr. Japhet sounded tired. “Josephine?”
“You’re about to deliver a lecture.”
“Not really. I was just thinking how glad I am I teach biology and not social studies.”
“Ed,” said Mrs. Japhet, “your father is prepared for you to be a cynic at sixteen.”
Ed said nothing.
*
Thomassy went over to the jury box to begin his summation.
“I wonder if you and I couldn’t talk this thing out,” he said, aware that the judge could barely hear him and many of the spectators probably could not. He didn’t mind if everyone but the jury had to strain to hear him.
“My own background is in civil liberties. I wouldn’t have taken on this case if I didn’t think our laws were served by defending people where there is the slightest smidgen of doubt about what went on.
“I sympathize with you. You’ve heard a lot of confusing things. Let’s try to unsnarl what’s happened. Let’s see what’s been proved.
“First off, I don’t want to hear any more about what went on in any school locker room. Nothing that ever went on in any locker room is on trial here.
“Now, what about the prosecution’s eyewitnesses? There’s the father, Mr. Japhet. I can understand his being in a blind rage if his kid is getting beaten in a fight. I can even understand his attacking young Urek, but that doesn’t make him a good witness. You heard him. He lied under oath. And that wasn’t even to protect his son’s interests. Here he has testified as a highly interested party. Maybe you’d do the same for your son. Maybe not.
“Okay, who else is an eyewitness? The prosecution comes up with the janitor, an old man. I feel sorry for him. He drinks all the time. He was drinking all day before these events happened. He doesn’t even know if he’s been at his present job for five or ten years. Imagine that? Not very reliable, I’d say.
“What else? The doctor. On recross he admitted that Edward Japhet was admitted to the intensive-care unit for diagnostic purposes.
“Who else?
“No one else.
“Let’s talk a minute about this so-called deadly weapon. That’s important, because the only thing—I repeat, the only thing—that brought this case into this courtroom rather than being heard as a simple misdemeanor by a lower court is the allegation that a deadly weapon was used. Well, what did the boy supposedly do with the bicycle chain? Did he wrap it around Japhet’s throat? Nobody said so. Did he lower it down Japhet’s throat? Nobody said so. Yet Japhet’s throat is where the injuries were. You see how easy it is to be confused about such things. In actual fact, the chain was used in the destruction of property worth about a hundred and seventy-five dollars, most of which is covered by insurance, and I ask you, are you going to convict someone of a felony, a major crime, and send him to jail over a bit of property destruction like that?”
Thomassy moved to the other side of the jury box, followed by a turn in every head in the room.
“We don’t like kids to fight. But they always have. We can’t send every kid who gets in a fight to jail, can we?
“Now, in our courts we don’t usually go into the question of age. It’s a politeness we have. After all, if a woman is accused of something or other, you don’t want her to be punished twice, first by revealing her age. Age usually doesn’t matter all that much. But during the course of this trial, the district attorney’s man here has tried to make sixteen sound like sixty. Those of you who are parents know that no sixteen-year-old is a mature adult, that in fact when a boy is sixteen he still doesn’t have all his parts in place, because he’s still in the process of not only growing, but growing up. The defendant, Urek, is not your son, but he’s somebody else’s son, and while you are not responsible for his actions the way you might feel if he were your son, you are responsible for keeping an adult perspective on what happened between these two sixteen-year-olds.
“There’s been a lot of talk here about whether or not the injuries to the Japhet boy were serious. Well, if they were really all that serious, would the Japhet boy be sitting in this courtroom right now, as he is, right there, along the wall? He looks normal to me. He certainly wasn’t brought in here on a stretcher. What’s done is done, but I have a question about what wasn’t done. He was an eyewitness. Why did he not testify? Stanley Urek wasn’t afraid to testify. Why did the Japhet boy refuse to testify to the truth, the whole truth, and nothing but the truth? Yet now he sits in this courtroom, not to tell us what happened—oh, no, he sits there to enjoy his revenge!
“Well, that is not in his power, it is in your power. Which brings me to the crucial point. The charge is that the defendant did knowingly and willfully assault the Japhet boy with a deadly instrument with the intent of using such weapon. All of that has had to be proved to your sole satisfaction beyond a reasonable doubt.
“The judge will undoubtedly talk to you about reasonable doubt. I think he’d say the thing I would. If you have any doubt, any reasonable reason for not being one hundred percent sure that the defendant is guilty of the charge as it is worded, the only conclusion you can come to is that this sixteen-year-old boy is not guilty, any more than a child of yours or mine could be if he was involved in similar circumstances.
“Furthermore, under the protections of our system, each of the twelve of you bears an equal responsibility for this boy’s fate. You can talk to each other in the jury room, you can try to persuade each other, but vote your own judgment. Vote your own conscience. Don’t go along with the others for the sake of harmony. If any one of you is convinced that there’s reasonable doubt”—his eyes took in each member of the jury, one at a time—“I know you’ll honor your own convictions and nobody else’s. You’ve all got to agree, or there’s no verdict, the judge will tell you that.
“Frankly, I don’t think you’re going to send a sixteen-year-old boy to start a career of crime in a reformatory or a jail because of a fist fight.”
Thomassy hated the rules that gave the district attorney the last word. When Cantor got up to give his summation, Thomassy thought he looked angry. That was a good sign. He’d lost his cool.
But when Cantor began to speak, he exuded bounce and confidence. He had changed his tie and put on a dark blue one with a fleur-de-lis design that had always brought him good luck.
“Ladies and gentlemen,” Cantor began, “the respected counsel for the defendant has tried ably to minimize this whole affair and make it look like we’ve all been wasting our time and the county’s money on this case. I remind you the People have set out to prove that Stanislaus Urek did willfully commit the crime of first-degree assault upon the persons of Edward Japhet, Lila Hurst, and Mr. Terence Japhet, a schoolteacher, and that he did so with intent to inflict serious physical injury with a dangerous weapon and with depraved indifference to human life. I remind you that the People set out to prove that Stanislaus Urek did so without any justification or provocation, and I believe that the People have so proved beyond a reasonable doubt.”
“Your Honor,” said Thomassy, “I move for mistrial.”
“Now, wait a minute,” said Cantor, storming up to the bench; “it is most unusual, your Honor, for counsel to interrupt a summation and—”
“The district attorney,” said Thomassy, “has given the jury his own opinion of the case, and this is clear ground for a mistrial, which—”
“Mr. Thomassy, Mr. Cantor,” said the judge, looking as if he was about to stand in anger. “We are not going to send the jury out for a mistrial motion on those grounds, and I hope not on any grounds before the summation is finished. We are spending the People’s money deliberating here, and I want this case concluded with dispatch.”
Judge Brumbacher knew he was flirting with reversible error by shutting Thomassy up, but he took the risk, determined to get the case to the jury that afternoon. He told Cantor, “The court suggests that you refra
in from inadvertent reference to your own opinions.”
“Yes, your Honor.”
“Proceed.”
“Well,” said Cantor to the jury, as if to stress that the exchange, which meant nothing to them, really was a strike in his favor, “I’m glad we can go on. Let’s look at what the eyewitnesses had to tell us.
“Dr. Karp made it clear that the injuries to Edward Japhet’s throat were serious. The charge says ‘intent to commit serious injury,’ and Dr. Karp did so testify. Mr. Japhet testified to the willful and unprovoked nature of the attack, and made it absolutely clear that a dangerous instrument was used. The first blow struck was with a chain, a chain capable of smashing a car’s windshield with a single blow. But it wasn’t a windshield it was aimed at first, but”—he pointed directly at Ed sitting back among the spectators—“that boy’s face. Look at it. Do we have to wait a year or more to see if the disfigurement is permanent to determine if the injury was serious? The law is designed to protect society from the intentions of people who commit such injuries.
“Stanislaus Urek tried to choke Edward Japhet to death, and Edward Japhet was saved by his father’s timely intervention. That was the testimony. The fact that a respected teacher may have fibbed on an employment application long ago—I ask you who hasn’t done some such thing somewhere in his life—the fact that he did or did not get to see Ireland doesn’t discredit his testimony as to what happened at Ossining High School the night of January twenty-first, does it? It doesn’t discredit his testimony, any more than the custodian’s drinking habits discredit his.
“He may have seen it double, but he saw enough to run and phone the police. He saw an assault being perpetrated, and that’s what we’re here to find out.
“What kind of individual are we dealing with here? Does he learn from experience? This defendant—who’s involved with a Mafia-like extortion racket in the high school—will not be held back by moral scruple or the police or the law from committing crime after crime after crime. He must be taken off the streets. He must be put away in a correctional institution. If not, I have a great fear.
