(2014) The Professor

by Robert Bailey

  “Well...” Tyler started to say something but the Judge interrupted.

  “Look, I’m going to allow the cross-examination. But it’s 4.20. Why don’t we call it a day? The jury is tired. I’m tired...”

  “Judge, I don’t think I’ll be long,” Tom said. “Just give me till 5.”

  Cutler took a long look at Tom.

  “You got a lotta nerve, McMurtrie.” He sighed. “You played for Coach Bryant, didn’t you?”

  “1961 team. Defensive end,” Tom said.

  Cutler shook his head and gave a tired smile. “Hell of a team. All right, you’ve got till 5 o’clock.”

  As they walked back to the counsel table, Rick whispered, “Professor, do you know what you’re doing?”

  I sure as hell hope so, Tom thought, feeling his nerves kick in as he realized he was about to try a case in front of a jury for the first time in forty years. He looked at Rick and forced a smile. “Let’s see if this old dog has a few tricks left.”

  60

  “All right, Mr McMurtrie. Your witness,” Judge Cutler said.

  Tom walked slowly towards Wilma Newton. The last three days had been a whirlwind, leading up to this moment. He had reviewed all the pleadings. All the discovery. All the depositions. Every piece of paper Ruth Ann had sent him. He’d also digested Rick’s concerns about Wilma Newton, and done a little investigation. Tom had hoped to get to court before Wilma took the stand, but making sure everything was ready had taken longer than he thought. But I made it, he thought, adrenaline coursing through his veins. Hopefully, I’m not too late.

  Tom had not cross examined a witness in front of a live jury in forty years, and he could feel the rapid drumbeat of his heart. Calm, slow, Andy, he told himself. It was a phrase he used to think to himself when he tried cases. Something he taught to his trial team. Calm, slow, Andy. Calm and slow were self-explanatory. Be calm. Talk slow.

  Andy was the trick. Andy was for Andy Griffith. If you talked and acted like Andy, you’d be calm and slow. It was a visual that everyone could understand. Calm, slow, Andy.

  Tom’s eyes moved from Ms Newton to the jury, trying to make eye contact with as many of them as possible. Then he positioned himself at a forty-five-degree angle between the witness chair and the jury box, and looked at Wilma who returned his glare.

  “Ms Newton, my name is Tom McMurtrie. Rick Drake and I represent Ruth Ann Wilcox.” Tom grandly gestured with his arm at Rick and Ruth Ann. “You understand that we called you as a witness today, right?”

  “Yes, sir.”

  “Now–” he rubbed his chin and looked at the jury “–why do you reckon we would do that?” His eyes remained locked on the jury. He had just broken two of his own cardinal rules. Number one, never ask an open-ended question. Exception: unless the answer can’t hurt you. Number two, never ask a question you don’t know the answer to. Exception: unless it doesn’t matter what the answer is, the question speaks for itself.

  “I don’t know. I...” Wilma stopped.

  “Maybe, oh, I don’t know, because we thought you might say something good for our case.”

  “I don’t know.”

  “You don’t know,” Tom was incredulous. “You must think we’re stupid, Ms Newton.”

  “Objection, your honor,” Tyler stood. “Counsel is being argumentative and badgering the witness.”

  “Your honor, I’m allowed a thorough and sifting cross examination. I’m also allowed to question this witness’ credibility.”

  “Overruled,” Judge Cutler said.

  Tom returned his gaze to Wilma. “Ms Newton, if we had known you were gonna come in here and testify that the defendant was good to Dewey, treated Dewey well, and had Dewey on a reasonable schedule, why... we’d have to be out of our minds to put you on the stand, right?”

  “Well...”

  “Answer the question, Ms Newton,” Tom insisted.

  “I don’t know. Like I said earlier, Mr Drake wanted me to say that Dewey’s schedule was crazy, and I told him I wouldn’t do it.” She was beginning to look a little flustered. Her face was turning red.

  Good, Tom thought. Not getting under your skin, am I?

  Tom walked down the jury rail. He could tell all eyes were on him. Cross examination is about the lawyer. You’re the star. You want the jury to be watching you. Paying attention to you. He had preached it to his kids. Now he was doing it.

  “You told him you wouldn’t do it.”

  “Yes.”

  “And you were clear about it.”

  “Crystal,” she said, glaring at Tom.

  Tom walked all the way over to the counsel table and got within a few feet of Rick.

  “So, let me get this straight. You told Mr Drake...” Tom placed his hands on the counsel table and leaned to within a few inches of Rick’s face.

  “... I... will... not... testify... that... Dewey’s... schedule... was crazy, right?”

  “Well, I don’t know if I was that...”

  “Clear? You just said you were crystal clear, didn’t you?” Tom took a few steps away from the table toward Wilma. He was twenty feet away.

  “Yes.”

  “You told him you would not testify that Dewey’s driving schedule was crazy, right?” Tom edged closer. Fifteen feet.

  “Yes.”

  “You told him you would not testify that Dewey’s schedule forced him to speed, right?” Still closer. Ten feet.

  “Right.”

  “You told him you would not say anything bad about Willistone, right?” Five feet.

  “Yes. That’s right.” Wilma had a scared look on her face.

  “And you were crystal clear, right?” Two feet.

  “Yes.”

  “Yet, despite how crystal clear you say you were, Mr Drake put you on the stand today.” The Professor had stopped walking and resumed the forty-five-degree angle between himself, Newton and the jury.

  “Yes.”

  “Ma’am, is it not fair to say that if you were as crystal clear as you say you were with Rick Drake, then he’d have to be the dumbest person on the face of the earth to have put you on the stand.” Tom’s eyes turned to the jury. It didn’t matter what the answer was.

  “I don’t know why Mr Drake called me to the stand. I’m not a lawyer.”

  Tom saw the opening he was waiting for.

  “What do you do for a living, Ms Newton?” Tom saw that her face had turned red.

  “I’m a waitress. At the Sands Restaurant in Boone’s Hill.”

  “That’s where your first meeting with Rick occurred, right?”

  “Yes, sir.”

  “Now, it wasn’t just you and Rick in this meeting, was it?” Tom rubbed his chin.

  “No, there was a woman with him.”

  Tom looked at the jury. “And her name was Dawn Murphy, correct?”

  “I know her first name was Dawn. I can’t remember her last.”

  Tom walked to the counsel table, reached inside his briefcase, and pulled out the face book he used when he taught his Evidence class.

  “Professor, what are you doing?” Rick whispered, leaning his head over so that the jury couldn’t see him. “Dawn...”

  “I know what I’m doing,” Tom whispered back. Then he returned to the witness stand.

  “Forgive me, Ms Newton, but I used to be a law professor, and Dawn Murphy was in my class. I want to show you a picture of her in the law-school directory, so that I know we’re on the same page.” Tom pointed to Dawn’s picture with the words “Dawn Murphy, 26 years old, Elba, Alabama” underneath it. “Is that the woman you saw with Rick Drake at the Sands restaurant?”

  “Yes, it is.”

  “Your honor, we’d like Ms Murphy’s photograph admitted as Exhibit 1.”

  Once admitted, Tom held the photograph up and showed it to the jury.

  “Ms Newton, you talked with both Mr Drake and Ms Murphy here–” Tom gestured with his finger at the photograph “–about Dewey’s schedules, correct?”


  “Yes.”

  “And your testimony, today, is that you were crystal clear with both of them that Dewey’s schedules were normal?” Tom asked, resuming his position in front of Wilma.

  “Yes.”

  “Ms Newton, if Dawn Murphy takes this witness stand and testifies that you told her and Rick Drake that Dewey’s schedule at Willistone was ‘hectic’, ‘crazy’ and ‘hard for him to meet’, would she be a liar?”

  Wilma shrugged. “I didn’t say those things. So... yes, she would be lying.”

  “This girl right here,” Tom again held the photograph up for the jury to see. “If she tells this jury that you said Dewey was forced to speed to meet his schedule, would she be lying?”

  “Yes.”

  “And if she says that you told her and Mr Drake that you changed Dewey’s driver’s logs to make sure he met the ten-hour rule, would she be a liar?”

  Wilma leaned forward in the stand. “Yes, sir.”

  Tom walked to the end of the jury railing, watching the faces of the people inside the box. He could tell they were all locked in.

  “Ms Newton, this meeting between you, Rick Drake and Dawn Murphy happened back in February, correct?”

  Wilma shrugged, and Tom saw the fatigue in her eyes. “I think so. That was a long time ago.”

  Another opening.

  “Ms Newton, let’s go back just a couple of weeks. Isn’t it true that in the last two weeks, you have spoken with Rick Drake on the phone a couple of times?”

  “Yes.”

  “And, during these phone conversations, Rick told you he was going to call you as a witness in this case, didn’t he?”

  “He might have, I don’t remember.”

  “That was two weeks ago, ma’am. You sure you can’t remember him telling you he was going to call you as a witness today?”

  “I think I already knew by then he was going to call me.”

  Thank you, Wilma, Tom thought, walking to the counsel table. “Subpoena,” he whispered to Rick, who handed him a folder. Rick also handed Tom his cell phone with a text message pulled up on the screen. When Tom saw it, he smiled. “Nice.”

  “That’s right, Ms Newton,” Tom said, returning to the witness chair and slipping Rick’s phone into his pocket. “By that time, Mr Drake had issued this subpoena, hadn’t he?” Tom handed the subpoena over to Wilma.

  “Yes.”

  “He had gone through the time, money and trouble of having a Tennessee subpoena issued, requiring that you be here today.”

  “I guess.”

  “Your agreement to show up wasn’t good enough. He thought you were such a good witness that he was going to ensure your attendance today, right?”

  “I don’t know what he thought.”

  “Your honor, we’d like to admit the Tennessee subpoena requiring Wilma Newton’s attendance here today as an exhibit.”

  “Any objection?” Judge Cutler asked, looking at Tyler.

  “No, your honor.” Tyler’s voice sounded tired.

  “Counselor, it’s almost 5. Are you about to wrap up?”

  “Just a few more questions,” Tom said. “Ms Newton, let’s go back to Sunday night. You sent Mr Drake a text message then, didn’t you?”

  “I don’t remember.”

  Tom took the phone out of his pocket and held it over his head, looking at the jury and then back to Wilma. Then he handed the phone to Wilma. “Does this refresh your memory?”

  Wilma looked at the phone but didn’t say anything.

  “Ms Newton, why don’t you read what you wrote to Mr Drake two nights ago to the jury.”

  “I can’t miss more than one day of work. What day do you want me to testify?” Wilma read, speaking in a flat voice.

  Tom, watching the jury, saw an elderly woman on the front row and a black man on the back row glaring at Wilma. She’s losing credibility, Tom thought.

  “That was your text message to Mr Drake two nights ago,” Tom asked, turning back to Wilma.

  “Yes.” She tried to sound nonchalant, but her voice had a crack in it. Blood in the water, Tom thought. Time for the good stuff.

  “Ms Newton, do you know Jack Willistone?”

  Wilma’s eyes widened slightly. “Of course. My husband worked for his company.”

  “That’s right,” Tom said, pointing to the defense table where Jack Willistone sat. During forty years of living in Tuscaloosa, Tom had met Jack Willistone several times, usually at fundraisers for politicians who both men supported. Jack had always struck Tom as disingenuous. A smart, analytical man playing the role of the loud-talking good-old-boy redneck. To his credit, Jack did not appear rattled by being called out.

  “Mr Willistone is the owner of Willistone Trucking Company, correct?” Tom asked.

  Wilma nodded. “Yes.”

  Tom smiled at the jury. “But that’s not the only way you know him, is it?”

  “I... I don’t understand.”

  “Ms Newton, when you’re not waiting tables at the Sands, you have another job, don’t you?”

  “Yes,” she answered, her voice clipped.

  “Where?”

  Wilma sighed, looking down. “The Sundowners Club. Right outside of Pulaski.”

  “I see,” Tom said, now pacing down the jury rail so the jury could see Wilma better. “Is that a restaurant too?”

  “No.” She was going to make him pull it out of her and Tom could’ve kissed her for it.

  “A bar?”

  Now her look was angry. “There is a bar in the club, yes.”

  When he reached the end of the rail, he said, softly, “What kind of club is it, Ms Newton?”

  “A dance club,” she said. Tom leaned forward a little and raised his eyebrows. I’m gonna keep going, he tried to convey with his eyes. “An exotic dance club...” she continued, pausing before adding, “... I’m a dancer there.”

  “And as a ‘dancer,’–” Tom made the quotation symbol with the index and middle fingers of both hands “–you take your clothes off and ‘dance’ for customers of the club, correct?”

  “Your honor, I object,” Tyler said. “This questioning is clearly meant to harass and embarrass this witness.”

  “On the contrary, Judge,” Tom said, looking at the jury. “This questioning goes straight to the heart of this witness’ bias.”

  “Overruled,” Cutler said. “Let’s get to the bias part, Professor.”

  Tom paused, continuing to look at the jury. They were awake and alert. Listening.

  “Ms Newton, Jack Willistone is one of your customers, isn’t he?”

  Wilma froze, her face turning white. “I don’t... I... wouldn’t say that.”

  “You wouldn’t?” Tom pressed.

  “No.”

  “OK,” Tom said, rubbing his chin for effect. “Well, let’s go at it a little differently. Ms Newton, who drove you to court today?”

  Wilma’s eyes widened. “Wha-what?”

  “Objection, your honor.” Tyler was off his feet, his face red. “What possible relevance could Ms Newton’s ride to trial have on this case?”

  Tom never took his eyes off Wilma Newton as he responded. “Again, your honor, this questioning goes straight to this witness’ bias.” Out of the corner of his eye, Tom caught movement in the galley, and he knew instinctively what was happening. A quick glance confirmed his instincts.

  “Overruled,” Judge Cutler said. “Get to it quick, Mr McMurtrie. Everyone here is pretty tired.”

  “Ms Newton, the man standing up and trying to get out of here, the one standing right behind Jack Willistone...” Tom paused. “Did he drive you to court today?” Tom pointed to a man about six foot four with stubble on his face, wearing a golf shirt and khakis. Wilma nodded, looking scared to death.

  “You have to answer out loud, Ms Newton,” Tom said. Glancing, he noticed that the stubbly-faced man had returned to his seat.

  “Yes.”

  “Does that man work for Jack Willistone?” Tom asked, looking a
t the jury first, then at the stubbly-faced man, and then fixing his eyes on Jack Willistone.

  “I... I don’t know.”

  “Didn’t you spend several hours in the VIP room at the Sundowners Club two weeks ago with Jack Willistone and the man sitting behind him in the courtroom?”

  Wilma Newton’s face had turned chalky white. “I... I don’t remember.”

  “You don’t remember?” Tom almost laughed, loving the evasive response. “Do you know Peter Burns, Ms Newton?”

  “Yes.” Her voice was barely audible.

  “He’s the bartender at the Sundowners, right?”

  Wilma nodded.

  “Would it surprise you to know that Peter remembers you going up to the VIP room two weeks ago for several hours with Mr Willistone and the man who drove you to court today?”

  Wilma looked down at her clasped palms.

  “Has your memory returned yet, Ms Newton?” Taking a step closer, Tom glanced at the jury. Every juror’s eyes were open and alert. “You spent three hours in the VIP room two weeks ago with Jack Willistone and the man who drove you to court today, didn’t you?”

  Wilma finally looked up. “Yes, sir, I did.”

  Tom caught several of the female jurors moving their hands to their lips in surprise, and one male juror crossed his arms, his expression one of disgust.

  “I’m a dancer, OK?” Wilma croaked. “I... I knew Mr Willistone from when Dewey worked there. I was just doing my job.”

  “For three hours,” Tom reiterated. “Two weeks before trial.”

  “Yes,” Wilma said.

  “That must have been quite a financial windfall. Though I don’t know from experience... I hear those VIP dances are pretty pricey.” Tom paused. “How much did Jack Willistone pay you?”

  Wilma shrugged, again looking down. “I don’t remember.”

  “Another memory loss. Well, Ms Newton, I’m sure he paid you something for a three-hour dance, didn’t he?”

  “Yes, he paid me.”

  “He was a customer of yours that night, wasn’t he?”

  “Yes.”

  Tom nodded. “Isn’t it also true, Ms Newton, that the man sitting behind Mr Willistone in the courtroom today has come at least once a week to the Sundowners Club for a VIP dance for the last three months?”