The Just And The Unjust
THE JUST AND THE UNJUST
James Gould Cozzens
Certainty is the Mother of Repose;
therefore the Law aims at Certainty.
LORD HARDWICKE
First published 1943
Issued in this edition 1958
To EDWARD G. BIESTER
Cuilibet in arte sua perito est credendum
COKE ON LITTLETON, 125
RECORD
DOCKET ENTRIES
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SEVEN
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EIGHT
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RECORD
DOCKET ENTRIES
MAY Thirty-First, 1939, Wednesday, Court called at 10 o'clock a.m. Honourable Horace Irwin, President Judge, and Honourable Thomas F. Vredenburgh, Judge, presiding.
Eo die, the District Attorney, Martin M. Bunting, Esq., moves the Court for leave to submit Bill of Indictment Number Nineteen, May Sessions, to the Grand Jury.
Eo die, Leave is granted the District Attorney to submit the above Bill of Indictment Number Nineteen, May Sessions, charging Stanley Howell, Robert Basso, and Roy Leming with Murder, to the Grand Jury.
Eo die, Affidavit that Robert Basso is an Indigent Person filed.
Eo die, Petition of Robert Basso, a destitute person, for Counsel, filed.
And now, to wit, May Thirty-First, 1939, upon consideration of the within Petition, it appearing to the Court that the Deponent, Robert Basso, is wholly destitute of means to employ Counsel and prepare for his defence, the Court hereby appoints George Henderson Stacey, Esq., a Member of the Bar of this County, to represent the said Robert Basso upon trial of the said cause, and to prepare his defence. By the Court. Horace Irwin, P.J.
Eo die, Court adjourned at 5.30 o'clock p.m.
June Twelfth, 1939, Monday, Court called at 10 o'clock a.m., Honourable Horace Irwin, President Judge, and Honourable Thomas F. Vredenburgh, Judge, presiding.
Eo die, the Defendants, Stanley Howell, Robert Basso, and Roy Leming, being present in Open Court, the Defendant Stanley Howell being represented by his Counsel, Henry L. Wurts, Esq., and the Defendant Robert Basso being represented by his Counsel, George Henderson Stacey, Esq., the District Attorney, Martin M. Bunting, Esq., moves the Court for a severance of the trial of these cases and sever the trial of the Case of Roy Leming, one of the Defendants in the Bill of Indictment, and proceed with the trial as against Stanley Howell and Robert Basso, the other Defendants.
Eo die, Henry L. Wurts, Esq., Counsel for the Defendant Stanley Howell, objects to the severance as far as the Defendant Roy Leming is concerned.
Eo die, Objection Overruled. By the Court.
Eo die, George Henderson Stacey, Esq., Counsel for the Defendant Robert Basso, objects to the severance as far as the Defendant Roy Leming is concerned.
Eo die, Objection Overruled. By the Court.
Eo die, A severance having been granted in this case, the Court directs that the trial proceed. The Cause being heard before Honourable Thomas F. Vredenburgh, Judge.
Eo die, the District Attorney, Martin M. Bunting, Esq., begs leave to arraign the Prisoners, whereupon the Court directs that the Prisoners Stanley Howell and Robert Basso be arraigned separately and that the Clerk read the Bill of Indictment.
Eo die, the Clerk reads the Bill, whereupon the Defendant Stanley Howell pleads Not Guilty and desires to be tried 'by God and my Country'.
Eo die, the Clerk reads the Bill, whereupon the Defendant Robert Basso answers not, by reason that he stands mute of his own will. The plea of Not Guilty is entered as the plea of Robert Basso. By the Court.
Eo die, the Defendants Stanley Howell and Robert Basso having been arraigned, the District Attorney, Martin M. Bunting, Esq., begs leave to enter upon the Bill of Indictment their pleas of Not Guilty.
Eo die, Motion Allowed and District Attorney replies Similiter, issue et trial.
Eo die, the Court directs that the trial proceed and that the Clerk call the Jury.
Eo die, the Prisoner Stanley Howell and the Prisoner Robert Basso are remanded into the custody of the Sheriff and returned to the County Prison.
June Thirteenth, 1939, Tuesday, the requisite number of Jurors being completed, the Court directs the Clerk to swear the Jury as a body, which is accordingly done.
Eo die, the Assistant District Attorney, Abner Coates, Esq., at 10.40 o'clock a.m. opens the Case for the Commonwealth.
ONE
1
THE case of the Commonwealth against Stanley Howell and Robert Basso was the county's first trial of men charged with murder in more than a decade, and the district attorney's office, which had a good record for convictions, was anxious to win. Moreover, it was the first murder case in which Abner Coates had participated, and though he took care to behave as usual, as the trial approached he felt, if not a nervousness, a nervous stimulation that keyed him up. Abner Coates had been practising law for six years, four of them as assistant district attorney. With Martin Bunting, or by himself when the judges were sitting separately as they usually did to expedite the business of Quarter Sessions, Abner had prosecuted or helped to prosecute several hundred cases; but since the charges were all less serious, they were all less important. He had addressed dozens of juries, and as a rule thought nothing of it; but to-day, as well as a jury, he had a crowded courtroom before him.
Abner was not disturbed by the prospect of many people watching him while he spoke. He knew that he was no orator and never would be, but his experience proved that he could make an adequate speech if he took the trouble to prepare it. In the present case he began two weeks in advance. With Martin Bunting, he planned it in detail, diagramming the points to be made, and repeatedly revising, to make it simpler and clearer, the outline of what the Commonwealth intended to prove. Then, without telling Bunting, who might have thought he showed undue nervousness, Abner wrote it all out and showed it to his father; and then, without telling anyone, he rehearsed it a number of times before a mirror in his bedroom — a thing he had not done since his first few months of practice.
The Commonwealth's case, though not entirely simple, was so plain that Abner, timing himself in his bedroom, found that it could be stated in very little over twenty minutes. However, speaking to himself in a mirror and speaking to the full courtroom were not the same. The Childerstown courthouse had been erected in 1880, and architects of the period either did not understand the principles of acoustics or held them secondary to that day's taste for rich stateliness and fancy grandeur. Abutting on the back side of the clock-towered stone structure which faced Court Street over steps, walks, and a small fountain, and which housed the record rooms and clerks' offices, the architects built as a main courtroom the recognizable dodecagonal chapter house of some monstrous Gothic cathedral whose incredible corporate body presumably numbered five hundred canons.
Inside this curious edifice with its pinnacled buttresses, vast hip roof, and stilted, ecclesiastical high windows, the shape of the courtroom was a semicircle. Nine concentric tiers of oak seats looked over the r
ailed enclosure of the bar to the great bench, a massive and solid black-walnut pile. Behind the bench the tan, sand-finished wall rose thirty-five feet to a round spoked skylight of stained glass. The flat impressive wall was decorated with an American flag and an arrangement of large, gold-framed oil paintings of deceased judges.
Though impressive enough in appearance, the high wall served as a sounding board. Words addressed to the Court went echoing up, reverberated across the void until they hit the oiled and varnished matchboard of the ceiling, whose sloping panels were supported by hammer beams. Refracted six new ways, a medley of booming sounds came down on the tiered seats. A few minutes before Abner began his opening address Tuesday morning, Nick Dowdy, the crier, counted four hundred and eighty-three spectators. Those in the upper rows had little chance of hearing anything intelligible; but seeing them lean forward, cup their ears, strain to hear, Abner could not help straining in response, enunciating with tiresome care, speaking slowly.
It might be argued that so long as the jury heard, it did not make much difference whether the spectators, whose only business was their curiosity to see a spectacle rare in country courts, heard or not. It might be argued that providing spectacles was not now, or ever, the office of a court of law. Good in theory, in practice these arguments overlooked the fact that spectators made anything they watched a spectacle, and those who performed public duties before an audience became willingly or unwillingly actors, and what they did, whether they wanted it that way or not, became drama. Involuntarily an actor, Abner could not be unconscious of his audience's expectations, nor unaware that his audience was finding the performance, of which he was part, a poor show compared to what true drama, the art of the theatre or the motion picture, had taught them to expect.
Art would not take all day Monday to get a jury. Art never dreamed of asking its patrons to sit hour after hour over an impossible-to-hear lawyers' colloquy, with no action but the self-conscious walking down of person after person from the panel of petit jurors as the names were called. By a cruel refinement of tiresomeness, those who walked down, after long inaudible questioning and the amplest delay, usually walked back. Harry Wurts and George Stacey whispered together at the defence's table and fumbled with their lists. They pouted reflectively; finally they shook their heads. If by any chance they accepted a juror, Martin Bunting was fairly sure to exchange a word with Abner and shake his head. That brought matters right back where they started; so Mat Rhea, the clerk of Quarter Sessions, stood up under the bench, looked at his list, and called a new name.
Monday's show had certainly been a complete flop; and Abner doubted if his opening act in Tuesday's show had been any better. When he finished speaking he gave the filled seats a glance. The ranged faces remained intent for a moment, as though not sure whether he had finished or not. Then there was a turn of heads, glances questioning each other, and a movement of lips, whispering. Abner walked back to the Commonwealth's table, and the heads turned again, the eyes following him in vain speculation. Martin Bunting was studying the column of witnesses' names on the back of the bill of indictment. Without looking up, he said, 'Good, Ab. That's fine.'
Though preoccupied, he spoke with emphasis, and Abner felt both pleasure and surprise. Bunting was little given to praising people. If you ought to have done differently or better, he let you know at once; for, to Bunting's mind, that was the same as not doing what he asked you to do. If you did well, that was all right; that was what he expected. Abner said, 'I didn't know whether anyone could hear me.'
'I could hear you all right,' Bunting said. 'If I could, they could.' It was apparent that he meant the jury. Without further pause he got back to business. He said, 'I'll call John now. We ought to have time to put William Zollicoffer on before lunch. I think you'd better take him. We won't want anything from him but identification.'
'O.K.,' Abner said, reaching for the file folder. Bunting pushed his chair back and stood up, holding the folded bill of indictment, and looking at Judge Vredenburgh.
The spectators, though they ought to be wary now and slow to hope, responded with a stir of relief. It occurred to Abner that even those who could not hear could at least see, and since they were local people, they might not suffer as a stranger sitting among them must suffer. They looked at the body of the court and the small happenings there as they looked at the Childerstown Daily Examiner. A stranger unfolding the paper would see nothing worth reading — 'Local Mill Workers Receive Pay Boost'; 'Women Voters League Visits County Seat'; 'Warwick Auxiliary Instals Officers'; 'Bible Class Sponsors Saratoga Luncheon'; 'Wed in Newmarket'; 'Former Music Teacher Welcomed'; 'Blaze on Farrell Farm'; 'Hart Home Scene of Anniversary Party'. But when you knew the mill and some of the workers, when you were a member of the Women Voters League, or the Warwick Auxiliary, or the Saratoga Bible Class; when the girl or the man married at Newmarket had been at school with you; when the former music teacher had taught you; or when the Farrell farm was right down the road, and you could remember the day twenty-five years ago of the Harts' wedding, each headline started up importuning the eye, absorbing the attention.
Scores of people who strained to hear and failed to hear what Abner Coates said to the jury knew Abner by sight, and his mere appearance had a meaning. Abner's bigger than average frame and slightly stooped big shoulders, his dark, harsh-textured, stubbornly waved hair, his sallow, long, intelligent face with large deep-set dark eyes under the moderate brows, declared that he was one of the 'Lawyer Coateses'. Abner's father, Judge Philander Coates, known as the Young Judge when he sat on the bench here before his elevation to the Superior Court, was not so dark as Abner and not so tall (that came from Abner's mother, who was Edith Lynch, and all the Lynches were tall); but Judge Coates had the same nose and eyebrows and the same slight strong stoop. Anyone would know whose son Abner was.
On the wall behind the bench, in still more arresting resemblance, the face of Judge Linus Coates, the Old Judge, hung among the gold-framed portraits. Abner was generally held to be the spit and image of his grandfather. When people from out of town, lawyers from other counties, came up on some case in which Abner happened to take part, almost every one of them, if he met Abner in the Attorneys' Room, commented on it. At the first conversational opportunity, the visitor, excited by his own perspicacity, was fairly sure to observe,' Mr. Coates, I noticed one of those pictures in there. Aren't you some relation —?'
Childerstown residents who could remember the Old Judge were yearly fewer; but Judge Philander Coates, the Young Judge, had been, and still was, a figure of local note. Three months ago in March Abner's father suffered a stroke, and he had not left his house since; but every week or two the Examiner gave him a paragraph headed: 'Judge Coates Doing Well', or 'On Road to Recovery'.
In the same way, with the same knowledgeableness, the spectators knew Martin Bunting, a short, neat, prematurely greying man, now near the end of his second term as district attorney. They knew Harry Wurts and George Stacey, sons of local people, Childerstown boys — George Stacey really looked like a boy, and there would be an interesting surprise for many people in seeing him there, a practising attorney. They knew Judge Vredenburgh on the bench, and the clerks under him. They knew the tipstaffs in their blue jackets. Some of them probably knew one or more of the jurors. Even the state police, two officers at each of the doors to the back hall at the right and left of the bench, were young fellows from the Childerstown substation who had been kids in the school yard, swimmers without bathing suits down in the old canal, summer evening loiterers at the corner of Court and Broad Streets a year or so ago. Their transformation by polished black leather and grey whipcord into armed men could be viewed with amazed indulgence.
The only people who were unknown, who had never been seen or heard of before, who had no history, nor even any names, since few spectators would be sure yet which was Howell and which was Basso, were the defendants and their confederates and the witnesses associated with them. They, and the man Frederick Z
ollicoffer alleged to have been murdered by them in this county, were what the rustic townships still called foreigners — the people from somewhere else.
The word, like one of those old men who still used it, and who still drove a shabby curtained carry-all to town, sparing a poor horse's hoofs by keeping to the shoulder of the concrete highways, was a homely joke; but Abner was not sure that it didn't fit the present case better than any other word. Stanley Howell and Robert Basso; their two former associates, Roy Leming and Dewey Smith; Susie Smalley, their shocking slut of a girl friend who sat next to Mrs. O'Hara, the Warden's wife, wearing a dress of thin green stuff which seemed pasted at all points to her jointless body; Mrs. Zollicoffer, the black-draped widow of the dead man; the dead man's gross brother, William Zollicoffer; the dead man's gross one-time partner, Walter Cohen — they did not not belong here. They came not merely from some other county but from some other world.
Now that they were here, they were not welcome. Even the spectators who had them to thank for the show they hoped to see did not thank them. The encircling eyes were curious but all cold. They looked at Stanley Howell, pale, peaked, and furtive, and Robert Basso, dark, round-headed, stocky, and sullen, as they would look, gaping, with a shrug or a shudder, at that tight wire-netted box in which the owner of a local hardware store often kept for a few weeks a couple of rattlesnakes somebody had managed to catch alive. Next time, in the unlikely event that Howell and Basso were going to have any next times, Howell and Basso might do well to notice where they went when they drove out at night in search of a quiet place.
2
Bunting said, 'If your Honour please, the Commonwealth will call John Costigan.'
Nick Dowdy came infirmly to his feet. He gave his lapel a tug to settle his blue jacket, neatly embroidered on the left sleeve with the word crier in silver thread. He moved over behind the stenographer, lifted a small Bible, and laid it flat open on the rail of the witness stand.