He swept the courtroom again with his eagle-eyed gaze, reinforcing his avowal of intolerance. “I now call the case of the People of Albany County versus Mr. James Harley. Will the clerk please swear in the jury?”
The twelve men charged with Harley’s fate wobbled to their feet, seemingly stunned by the judge’s stern warning and then by the oath they took, with the exception of Harmon Pumpelly, who seemed pleased after Thayer’s rebuke to have official cause to be present.
Though it was only June and the real swelter was at least a month away, the afternoon sun was already boiling through the five tall south-facing windows. Several men had removed their hats and were fanning themselves against the heat, but Thayer seemed unperturbed. He nodded at Lansing Hotaling, who strolled to the jury box to make his opening statement.
The district attorney was known for doggedness, not eloquence, but despite this tepid reputation, this afternoon the entire courtroom hoped for oratory. Unlike Jakob, who appeared to great advantage in a cutaway coat and white waistcoat, crisp even in the rising heat, Hotaling’s formal jacket hung on him like a sack. The two stood in odd juxtaposition to one another: the polished novice and the rumpled veteran.
“May it please the court, Mr. Foreman, and each of you gentlemen, the defendant in this case, one James Harley,” Hotaling said, nodding at Harley, “is indicted for the high crimes of rape, kidnapping, and imprisonment. These are egregious crimes. Unconscionable. A bane on good society. Even just one of these terrible acts would give rise to abhorrence in the most hardened heart. Now, some of you may recognize Mr. Harley’s name in connection with the recent flood. A certain member of the press has dubbed Mr. Harley a hero in connection with his rescue of two little boys. Well, I adjure you to banish that accolade from your mind, because Mr. Harley is not a hero. Mr. Harley is a wolf.”
Though Hotaling’s intonation was workmanlike and plodding, the courtroom was entranced, breathless at his every turn of phrase. No one pulled even a handkerchief from pocket or reticule, even as tiny beads of sweat formed on their foreheads.
“Members of the jury,” Hotaling continued, his voice as dull as a broken bell. “At the conclusion of this case, his Honor the Judge Julius Thayer will charge you with the law, and explain to you in detail just what the laws are governing in this case. He will explain definitions by Penal Law and you will make a judgment. My job is to recite the facts as I intend to present them through the witnesses I call to the stand. The victims in this case are Emma and Claire O’Donnell, ten and seven years old. On March twelfth of this year, at about noon, their principal expelled them from the Van Zandt Grammar School into the aftermath of our recent and devastating blizzard. The going was treacherous. Emma O’Donnell will tell you that her sister had trouble navigating the high drifts and soon sank, whereupon an unidentified man pulled Claire from the snowdrift and took them both to James Harley’s house, where Mr. Harley secreted them in the cellar of his home at 153 Green Street, and thereafter kept them against their will for six weeks. They escaped from his basement the night of April twenty-first, the night of our recent great flood. The policeman who found them on a nearby street will tell you that upon hearing their names and recognizing them as the missing sisters long declared dead, he took them to the Stipp residence. They were bruised, troubled, and in a state of shock. Dr. Mary Stipp later examined them and informed the policeman that one of the two girls, Emma O’Donnell, had been interfered with in a sexual way.”
The jury shifted in their seats. No one in the courtroom uttered a sound, not even a cough. A thick silence hung in the air, a bated expectancy that governed every move, twitch of eyelid or mouth.
“The defendant, James Harley, was apprehended two days later. Gentlemen of the jury, if I establish the facts of the case, the county expects you to return a verdict of guilty on all counts in accordance with the evidence and what the facts in this case will warrant. And though Emma O’Donnell is at the age of consent, she in no way consented to the activity forced upon her.”
Hotaling finished and ambled back to his table, appearing quite satisfied with his delivery.
Judge Thayer turned to Jakob. “Does the defense wish to make an opening statement?”
Jakob rose. In his beautifully tailored clothes, he cut a fine figure, but from his close vantage point, William noticed that the boy’s hands were shaking, as if he were acutely aware that his smart attire could not disguise his age or inexperience. Jakob riffled through some papers, laid them down, then took hold of them again. Where, William thought, was Gerritt Van der Veer, or for that matter, Viola? Were they indeed going to leave the boy without even an ounce of familial support? William supposed things had grown complicated for them at home. When Mary had related her overnight excursion with Viola to Manhattan City, she had hinted of some family discord. Later, Mary had tried to see Viola again, but an impolite footman had snapped that Mrs. Van der Veer no longer wished to have any relations with anyone in the Stipp family. Nor had Viola answered any of Mary’s letters. Mary had grown worried. Still, if Viola did harbor some animosity toward them, it seemed impossible that a mother who adored her son as completely as Viola did would abandon him, even as a grown man, to a legal debut of such momentous consequence.
The irony was not lost on William that he was concerned about a young man defending the person who at the very least had knowingly kept Emma and Claire from them and who had perhaps even been the one to harm her. And even if what Emma said was true—that someone else and not Harley had raped her—Jakob’s allegiances were reason enough to abandon any concern for the boy’s well-being. But for some reason, he couldn’t. After all, it was Jakob who had warned them to leave Albany after the dolls had been sent to the house, and Jakob who believed Emma and her avowal of a second man.
With a slightly halting gait, Jakob crossed to the jury box, his shock of blond hair highlighted by the harsh rays of the relentless sun. He seemed not to know where to look or what to do with the papers he had brought with him from his desk. In the packed courtroom, his voice sounded hollow.
“Good afternoon, gentlemen of the jury and members of the court. The charges filed against my client, Mr. James Harley, are indeed egregious. I will now address all three.”
He fingered through his papers, read a few lines, looked up again. He appeared a schoolboy, nervously consulting his notes.
“First, we the defense do not dispute that rape occurred.”
Gasps echoed throughout the courtroom and the sharp crack of Thayer’s gavel split the air. “Don’t tempt me,” Thayer said to the crowd. “I meant what I said. Hold your shock for the dinner table.”
Silenced, the gallery nonetheless exchanged looks of disbelief at what they had just heard. The customary defense in rape cases was to claim that no crime had occurred. The defense would maintain that the victim was not a victim at all, but a siren who, having either seduced or acquiesced to the accused man, feigned accusations of exploitation in a nefarious bid to repair her reputation. Emma being at the age of consent made this defense fair game. But for Jakob to assert that Emma had indeed been raped, he had in one fell swoop both destroyed Emma’s reputation and undercut his defense of Harley.
He may as well have entered a plea of Guilty.
“Rape occurred,” Jakob said again, his gaze darting to the jury. “I’ll say it one more time: someone raped Emma O’Donnell. Yes, she is at the age of consent. But that will not be my defense. My defense is that it was not James Harley who raped her.
“Evidence will show that someone else is responsible, a man whose corruption, deception, deceit, and greed reveal a far more complicated story than the district attorney is willing to assert.
“The defense also does not contest the claim that Emma and Claire O’Donnell stayed in Mr. Harley’s house after the blizzard. Mr. Harley readily admits this. What he denies is the charge of kidnapping. Mr. Harley claims that a stranger delivered Emma and Clair
e to his door during the storm’s aftermath and that, overcome with compassion, he took them in.
“Later, when he learned that David and Bonnie O’Donnell had perished in the storm, he resolved to give Emma and Claire a home. He also chose not to tell them of their parents’ deaths because he did not want to upset them and hoped that with time they would forget them. Perhaps that is not the way you or I would handle the situation, but this is what Mr. Harley did. He also readily states that he did not allow them to go to school out of concern for their grief.
“Whether or not this answers to the charge of imprisonment will be up to the jury to decide.
“What I will tell you is that he was so concerned about Emma and Claire’s safety that he stranded me in the Lumber District on the night of the flood in order to return to his home to evacuate them. All that he recalls of that chaotic night is descending to the cellar and then waking the next morning disoriented in two inches of water. He fled outside into an alleyway filled with floodwaters and rescued two boys, a selfless action Mr. Hotaling dismissed. Within minutes of delivering those boys to high ground, Mr. Harley would collapse and be transported to the hospital to be operated on for a grave injury to his neck.
“What does this tell us about my client? Do the fullness of his actions reveal mendacity or compassion?
“It is my duty to present evidence in my client’s favor. I will contest all the allegations. But I do it less out of allegiance to Mr. Harley than in the interest of justice. Someone raped Emma O’Donnell. Brutally raped her, robbed her of innocence, and cavalierly took advantage of the fact that she and her younger sister, Claire, had been rendered orphans by the very blizzard that delivered them into his hands.
“But it was not James Harley who did this.
“You the jury will decide whether or not to hold Mr. James Harley accountable for this crime. The question is not whether or not a crime occurred. That we already concede. The question for you—and for me to prove—will be who committed the crime. And I tell you now, the answer is not a convenient or easy one.”
Jakob’s unexpected assertions stilled the room. While it was not unusual for an attorney to point fingers at someone else, it was brazen confidence in a case as cut-and-dried as this one. Not a cough or sniffle or shuffle broke the silence. William could see that Jakob’s hands still trembled. As he returned to his desk, Jakob slid his gaze Elizabeth’s way, giving William the impression that Jakob had been speaking only to her.
—
“Call your first witness.”
The bailiff, a short, unexpressive man hobbled by a limping gait, led Emma toward the stand from the side door. A slow rustling permeated the courtroom as the gallery strained to form an impression of the ravaged girl about whom they had been talking for weeks. The collective perception was of a small-boned, slight figure, demurely dressed in white, with lace edging wide cuffs and a pristine collar that set off a complexion recently exposed to too much sun. Her long red hair, secured with a bright green bow at the nape of her neck, hung in a single plait down her back. On her dress she wore the Medal of Honor that William had given her, and those in the courtroom who knew what it was murmured their disapproval. Thayer, too, seemed surprised and did not hammer his gavel to quiet anyone.
William and Elizabeth marked Emma’s entrance with pronounced apprehension. They had instructed Emma to look for them in the gallery, describing to her exactly where they would be—directly behind Mr. Hotaling, just look for us—but she had trained her gaze on the floor as she crossed the endless expanse of marble to the witness stand and did not seem to see them.
Jakob leaped to his feet. “Your Honor, I urge you to clear the courtroom of spectators.”
Thayer raised his eyebrows, unperturbed, as if he had expected this stratagem from one of them. “On what basis?”
“The comfort of the witness.”
Lansing Hotaling flung a look of begrudging acknowledgment Jakob’s way even as he rose to object. “I object on the grounds of public interest. It is of significant importance that the people of Albany understand the nature of the crime, so that when the proper conclusion is reached, the entire city will be under no misconceptions. I believe that my witness, given due consideration, will suffer little or no distress.”
“Your Honor,” Jakob said, “need I point out that Emma O’Donnell is ten years old?”
Thayer regarded Emma, who clutched the railing around the witness chair.
Thayer said, “As I made clear in my earlier statements, the court recognizes the sensitivity of the subject matter. And while I am more than willing to clear the courtroom for any hint of disrespect on the part of the public toward the reverence and gravity due the court, the right of public oversight in this instance outweighs any perceived discomfort the witness might experience. In addition, the defendant’s right to a public trial exceeds that of the witness’s right to privacy. Overruled.”
The clerk duly swore Emma in, and she climbed onto the witness chair.
Hotaling took her through the preliminaries of name and birth date and place of residence, all questions that she answered dispassionately even when he coaxed from her an acknowledgment of the death of her parents.
“And can you tell us how long you have lived with the Stipps?”
“Since we got away.”
“Objection,” Jakob said, rising. “Nothing has yet been proven about anyone’s need to get away from anything.”
“Sustained.”
Hotaling threw Jakob a second look, this time of irritation. “I’ll rephrase. How many weeks have you lived with the Stipps, Emma?”
“I don’t know exactly.”
The prosecutor assured the jury that later he would establish the precise time frame with another witness. “And where did you live with your parents?”
“At 46 Elm Street.”
“Do you remember the day you left school after the blizzard?”
“Yes.”
“Tell us what happened.”
Emma recounted being dismissed from school and starting home, and her terror when Claire dropped into the drift. The stranger who rescued them did not seem a stranger when he rescued Claire. He took care of them and promised to take them home. No, she couldn’t describe him because his whole face had been covered by a scarf except his eyes. She wasn’t even frightened at first when he took them to Mr. Harley’s. She knew it was Mr. Harley’s because he told her it was.
Hotaling shot a look over his shoulder at Jakob, as if he expected him to object, but no such protestation was offered.
Hotaling went on. “What happened that first night?”
“Mr. Harley kept us by the fire and wrapped blankets around us. He cooked us dinner.”
“Did you ask to go home?”
“Yes.”
“What did he say?”
“He said it was too dangerous, but that he would take us when the snow melted.”
“Did he ever take you home?”
“No.”
Hotaling turned and faced the jury to emphasize the point he was about to make. “So no matter how many times you asked Mr. Harley, he never let you go home. How many times did you ask? Three? Four?”
“I don’t know. Every day.”
“Every day,” Hotaling parroted, rapping his fingers on the jury box for emphasis. “Every single day. Now, where did you and Claire sleep?”
“The first few nights, he let us sleep in his bed upstairs but—”
“Did he sleep in the bed with you?”
“No. He slept on the floor. Then, a few days later, after the snow began to melt and people were out on the street, he moved us into the root cellar.”
At this, quiet gasps of disbelief reverberated through the gallery. This detail was one of the many that had never been made public.
“Did he ever let you go upstairs?”
/> “Not me. But Claire.”
“What was it like down there?”
“It was always cold and dark and it smelled like a privy. After a while, he brought a bed downstairs, and later a settee so we could sit somewhere. Sometimes, he brought us water so that we could wash ourselves.”
“Did you try to leave by yourself?”
“Yes. But the door was always locked.”
“The door to the cellar?”
“Yes.”
“In all the time he imprisoned you—”
“Objection.” Jakob rose to his feet. “That language is inflammatory.”
“Mr. Van der Veer,” Thayer said, looking at him over the top of his glasses. “The definition of imprisonment is keeping a person against his will. Miss O’Donnell has just stated that she wanted to go home and that Mr. Harley wouldn’t let her. And the door was locked. Overruled.”
“Emma,” Hotaling said, suppressing a smile, “in all the time that Mr. Harley imprisoned you, did he ever inform you that your parents had died?”
“No.”
“When did you learn that?”
“After—when Auntie Amelia told us.”
“When was that?”
“After the policeman found us.”
“How many days were you in the cellar?”
“I don’t know exactly. From the blizzard to the flood.”
Hotaling said, “As asserted in my opening statements, let the record show again that the date of Emma and Claire’s disappearance was March twelfth and their reappearance April twenty-second, a period of almost six weeks, a point of fact which will also be verified by another witness.
“Now, Emma,” he said, turning back, “when you were there in that cellar, did a man put his member in your private parts?”
An explosion of revulsion rippled through the courtroom. Emma’s searching, panicked gaze found William. Elizabeth gripped the bar and stood so that Emma could see her. Thayer was pounding on the bench. In the pandemonium, no one seemed to register that Hotaling had said “a man” and not “Harley,” but William did not miss the sleight of phrase.
Winter Sisters Page 29
