The Just And The Unjust Read online

  'Gosh,' said Abner, 'that's a romantic idea!' He stood up. 'Say, was that the bell? My watch is wrong.'

  Coming into the lobby to pay their checks at the cashier's desk, they could hear the heavy tolling from the courthouse tower signalling five minutes to go.

  3

  In the shadows and heat of the afternoon Harry Wurts grew warmer as he worked on Leming. Harry's face was red; his cheeks shone with moisture, and little beads of sweat caught in the quarter-inch hairs of his sandy moustache; but he worked without distress. Like an athlete warmed to the game, the more he sweated, the better he felt. He tackled his hard problem with all his might, elatedly bucking the odds against him.

  The books tell you that the object of cross-examination is to sift the evidence and to try the credibility of the witness. This may be done by showing that the witness has little or no means of knowing what he is talking about, or that his memory for facts is poor anyway, or that his motives are crooked and self-interested, or that his character is such that nothing he says should be believed. Harry had no wish to sift strong evidence —a fool's trick, in which you bring out, and with telling effect because you do it, any points in your opponent's favour that he might have overlooked. Harry could hardly hope to show that Leming had no means of knowing the facts, or that his memory was at fault. As for Leming's motive, that was conceded. He was testifying to save his skin. Harry's best hope, and a poor one, was to show that Leming ought not to be believed. There, as in the matter of motive, he was unfortunately anticipated. Harry could not make impressive the point about Leming being a criminal or a drug addict, because the jury already knew. Harry, questioning Leming on his criminal record, only bored the jury. The long series of arrests and trials and short prison terms fell, if anything, short of the mark set by the jurors' imaginations. At this stage they asked themselves not: Can such things be? but: Is that all he did?

  When regular approaches, felt out carefully, proved all to be blocked, there remained for the man with the temerity to use them, irregular ones; and Harry was that man. The cardinal principle, never cross-examine at random, posited a working hypothesis that would be good enough to convince a jury if the opposition allowed it to stand. It stood or fell in so far as the facts, or most of them, fitted in. Anybody could see the folly of deliberately asking for more facts on the off-chance that they would prove to be facts for which there was a place. The measure of Harry's resource was the bold admission to himself that the only hypothesis the facts would fit was the Commonwealth's own. The measure of his hardihood was his decision to admit his client's guilt, to abandon the strong position prepared for him by the law in its presumption of his client's innocence. The measure of his acumen was his cool grasp of the fundamentally changed position. The shoe was on the other foot. Bunting would have to find a place for every random fact Harry turned up, so the more the merrier. The only plan Harry had or needed was to go in wherever the Commonwealth paused or backed off, and lug out whatever was there.

  Harry said, 'Now during this period, you mentioned a trip to New York on which you were gone several days. Was that something you just made up?'

  Leming said, 'I went to New York.'

  'And what did you go to New York for?'

  'Well,' said Leming, 'I went over to get something for myself.'

  'Ah?' said Harry. 'What?'

  'Some narcotic,' Leming said. His manner was deeply distressed. Perhaps he really was ashamed to have to confess his vice; but it was also possible — Leming exhibited curious little flashes of shrewdness — that he knew very well that shamefaced testimony always passed as credible testimony; and a man who confessed what he seemed to want to conceal often gained more from the apparent triumph of honesty over dishonest inclination than he could lose from the substance of the confession.

  'Narcotics?' Harry said.

  'Yes, sir.'

  'Opium?'

  'Yes.'

  'Are you a —' Harry hesitated while he selected his term — 'a yen hawk?'

  'I was,' said Leming. He looked apologetically at the jury.

  'You smoke opium, do you?'

  'I did.'

  'How long have you been doing that?'

  I did it a couple of years.'

  'Quite a steady user, eh?'

  'Well,' said Leming,' I had a habit; yes.'

  'That means you smoke how often?'

  'Twice a day.'

  'So you went to New York on an opium jag?'

  'No, sir. I went to get some.'

  'You —' Harry stopped. He must have seen or sensed Leming's success with the jury. They felt sorry for him, sitting meek and sad there, while Harry lashed sarcastically at him. Harry said, 'Correction. Now, Leming, you testified about a car that came into the street the night you left —'

  'No,' said Leming. 'I never saw that car. It was they told me. Basso says it looks funny, me going, and that car right after. They were sore.'

  'And what did their soreness signify to you, if anything?' Leming spread out his hands. 'It looked like to me what I told them; they didn't trust me good; like they felt I was selling them out.'

  'That must have been a shock,' Harry said sympathetically. 'I mean, to find they had you sized up so well.'

  'I don't get you, sir.'

  'You say they thought you were going to sell them out!' Raising his voice harshly, Harry said, 'Well, were they right or wrong? That's what you're doing now, aren't you?'

  Leming tightened his mouth and colour came into his cheeks. He looked at the carpeted floor before the bench and said, 'You think so.' He nodded several times as though to show that both the question and the lack of understanding that prompted it were what he had expected.

  'Yes, I think so,' Harry said, watching intently these small manoeuvres and plays of expression.

  'I don't think so,' Leming said. He screwed his mouth up further, wagging his head in silent conference with his conscience. He let it be seen that he had an inner knowledge of one or more circumstances that changed everything.

  'Well, you're certainly selling out Howell and Basso, aren't you?'

  'No,' said Leming.

  'No? Why, of course you are! Selling them all out. Trying to save your own skin! Aren't you?'

  'No.' Leming shook his head. Lifting his eyes, he looked sadly at Harry; but, unable to maintain a gaze to equal Harry's, he looked away.

  'What?' said Harry. 'How about the promises they made you, if you'd testify for the Commonwealth? You knew they were making a bargain with you, didn't you?'

  'Nobody give me promises.'

  'No promises? Didn't they tell you you'd get off with a short jail term if you sold out Howell and Basso?'

  'No.'

  Seeing Bunting and Abner smiling, Harry was obliged to smile, too. 'I am glad to hear it,' he said. 'Now, you've talked to the district attorney, Mr. Bunting, the man sitting there smiling, haven't you?'

  'Never about promises or anything.'

  'But you've talked to him?'

  'Oh, yes.'

  'Down in your cell in jail here in Childerstown?'

  'It was nothing pertaining —'

  'I am asking you,' said Harry, 'haven't you had talks with the district attorney in your cell?'

  'Yes.'

  'And in his office, haven't you?'

  'Yes. To him and the other; to Mr. Coates.'

  'And you have your attorney, Mr. Servadei, watching this case, helping you, haven't you?'

  'Yes,' said Leming. 'My attorney is here.' He sat tense in the stand, straining to meet this beating about of questions. He added, 'But he don't help me at all.'

  The strain of Leming's harassment, conveying itself to the court and jury, was broken by laughter. Judge Vredenburgh drew down the corners of his lips, looking at Servadei, who bowed and smiled. 'No,' said Harry, smiling too, 'I didn't really think Mr. Servadei was responsible for these yarns of yours. You just made them up yourself, didn't you?'

  'No, sir.'

  'You didn't make anything
up. I see. They told you, then, that all they wanted from you was the truth, that that was all you had to tell to be let off?'

  'Yes — no, sir. They never —'

  'Well, which? Yes? No? A little of each?'

  'No, sir.'

  'All right. We'll leave that for the moment. Now, who was at this bungalow the night you left to snatch Zolly? Bailey? Basso? Howell?'

  'Yes, them.'

  'And Smalley, of course?'

  'Susie? No. She went back to the other house. She wasn't there.'

  'Sure she wasn't in the bungalow that night?' Harry's deliberate lack of plan made it hard to follow his intention; but Abner supposed that Harry was willing, if he could, to involve as many of them as possible, to show that the defendants had been arbitrarily selected for some sinister reason of the Commonwealth's.

  Leming said, 'I am positive. Bailey said she was to go. He didn't want she should know about it.'

  'I see. But some of the time she was there living with you. Why? Why didn't she stay at the other house?'

  'Well,' said Leming. He spread his hands out again and shifted in his seat. 'Well, after we moved up to Rock Creek, she didn't right away know where we went. We would stop and see her, Howell and me; but we did not tell her where the bungalow was. Then Bailey, after a few days, — you see, there was this jail break thing. He did not want to go out.'

  To Abner, Bunting said, 'Get that, will you? Clark said he'd plead her guilty, but you never know until he does.'

  Leming said, 'So Bailey says, after awhile, he would like to see Susie. He asks Howell is Howell sure she is all right? And Howell says, "She is all right, you don't have to be afraid of her, isn't she, Bob?" he says to Basso. And Basso says, "Yes, she has proved all right to us." So Howell and I, we bring her up.'

  Abner glanced over at Susie Smalley. The seat John Clark had occupied was empty and she sat isolated with Mrs. O'Hara. She was chewing gum slowly, her face sullen and resigned in the afternoon shadows. Whatever her allure was, it had gone out of her. The symbols of it, the dye-spoiled hair and the tight green dress, were set on her like the hair and clothes of a dummy. Perhaps she was thinking of the prison days ahead, which she knew all about, and which she might have promised herself last time she would never risk again. Yet here she was; and she might be mutely arguing why — or, even, seeing why; but what else could she have done? They — the boys — were going to make a lot of money, and she left it to them. She proved all right to them; keeping her mouth shut, doing what she was told, giving Bailey what he wanted; until the whole thing blew up in their hands. What she herself wanted out of it all only she could know; but it was certain that she never wanted to be here, a prisoner, waiting her turn to hear what her acquiescence had cost her this time. Of course it was a mistake to think that Susie deserved sympathy. If she were the victim of misfortune, it was mostly the misfortune of being herself; but Abner knew from the records that she was just Bonnie's age; and the circumstance affected him. It was one of the ordinary horrors of life.

  Harry Wurts said, 'You brought her up. To do the cooking and light cleaning, I suppose?'

  'Yes. She cooked,' Leming said.

  'And after she had done enough cooking to hold you all for a while, she left,' Harry nodded. 'And didn't come back until the night Zolly was killed?'

  'I never said that,' Leming answered.

  'Then I am mistaken?'

  'Very much.'

  'When did she come back?'

  'She never come back. We went back, after, to where she was.'

  Harry said, 'Now, Dewey Smith was there, too, wasn't he?'

  'Well, he come in.'

  'He heard the discussions there in the bungalow, didn't he?'

  'Never at no time.'

  'Never at no time!' repeated Harry with pleasure. 'Quoth the raven; never at no time!'

  'Your Honour,' said Bunting, 'does the witness have to submit to Mr. Wurts' feeble witticisms? He is here to be questioned on a serious matter.'

  Harry said, 'Strike out the raven. Now, you know Dewey was there with you, and he took part in planning the kidnapping, didn't he?'

  'I will tell you why not,' Leming said. 'In the first place, they never put that much confidence in him.'

  'It's too bad for them that they didn't feel the same way about you, isn't it? You mean to say he never came there while Zolly was in the bungalow?'

  'He come; but he didn't know about Zolly. I will tell you why he came. He had been like a steamfitter, an assistant. The pipes there is muddy, and he went down and cleaned the tank. He used to do something for Susie when she was there; fix the heater in the cellar, and drained the tank, the hot water tank. About six or seven times to my knowledge.'

  'You mean, while he was there he was always doing odd jobs like that, so he couldn't have heard what was being discussed?'

  'He would never put himself in their way when they had any conversation; and they will tell you that themselves.'

  'But you put yourself in their way?'

  'Oh, yes. They discussed with me.'

  'You were just as much involved in all of it as they were, weren't you?'

  Bunting said, 'I object to that as a conclusion.' Harry waved his hand. 'You knew as much about what went on as Bailey or Basso or Howell did?'

  Abner admired Harry. The cards were stacked, and he had not been dealt a single good one, yet Harry held those he had with confidence. Playing them close to his chest, Harry exhausted every resource of bluff or finesse to make them count. Would Leming want to say that there was no difference between himself and the others? He might not. He might think it better to say that he had not shared fully in their wickedness. If he said that, his competence was going to be open to attack.

  Leming, however, was no novice. He had been in traps before; and even when he could not see them, he sensed them. He said warily, 'I didn't know all that business, no.'

  'You did not?' said Harry. 'No.'

  'You've told all of it here on this witness stand, haven't you?'

  'What I heard them say, yes.'

  'As a matter of fact, you're the one who planned this kidnapping of Frederick Zollicoffer, aren't you?'

  Leming said, 'It is pretty hard to plan something when you don't even know them.'

  'You knew Zollicoffer?'

  'I never knew him.'

  'You knew Mrs. Zollicoffer well enough to sit on that stand and call her Marguerite.'

  Under the steady pelting of accusation, Leming had the look of a man caught in a cloudburst. He hunched himself up; he glanced about for shelter. If he had been able to, he would certainly have scurried away as fast as he could. He was not nervous in the desperate, distracted sense that Howell was nervous, full of twitches and fidgetings; he was simply shaken and pulled-about so that he could hardly think. Taking hold of the rail in front of him, Leming said, 'If I ever saw his wife before, I hope God never lets me get off this stand!'

  'If I were you,' Harry said, 'I would be careful how I invited divine intervention in my affairs. You knew her well enough to call her Marguerite.'

  'When the phone call was made, they tell me, ask for Marguerite.'

  'You used to buy opium from Zollicoffer, didn't you?'

  'Never,' Leming said.

  'You knew he was a dealer in opium?'

  'I never knew the man.'

  You were a salesman for him yourself, weren't you?'

  You are wrong there. I —'

  'You peddled dope all around this part of the country for Zollicoffer, didn't you?'

  'I never peddled it. I used it, but I never peddled it.'

  'You are an addict, an opium user?'

  Bunting said, 'He has already answered that!'

  'If you don't mind, Mr. Bunting,' Harry said, 'I will cross-examine without your assistance. You were an addict, and to get the stuff, you handled it for Zollicoffer, delivering it to customers, or bringing them around, didn't you?'

  'Never.'

  'And the only explanation you h
ave as to why you so easily and naturally spoke of Mrs. Zollicoffer as Marguerite is that it was a name somebody told you to use in a phone call two months ago?'

  'That is right,' Leming said.

  Shaking his head softly, rolling up his eyes, Harry turned and paced toward the Commonwealth's table; halted; and started back. From the bench, Judge Vredenburgh said, 'The Court will now recess for five minutes. 'He stood up, passed along behind the bench, down the steps, and through the door to his chambers.

  George Stacey had signalled Max Eich, who came over to Howell; and Bunting said to Harry, still close to the Commonwealth's table, 'Putting on the act again, eh?'

  Harry smiled. He shoved aside Bunting's file folders and sat on the table. 'Bunting,' he said, 'let me look at you. You must be pure intellect, mind untrammelled! Your airy dance of ideas bewilders us earth-bound creatures. I don't want to drag you down to our brute level-'

  'Mr. Coates,' Everitt Weitzel said.

  'Yes,' said Abner, turning to look up at him.

  Mr. Riordan asked me when there was a break to ask you could you see him just one minute. He's in the other room, there.'

  'Better see him later, hadn't I, Marty?'

  No,' said Bunting. 'Go ahead. He probably wants to know what to tell the Mason kid about the inquest. Say we'll have it the day after to-morrow. I'll fix it with Doctor Hill.'

  Abner arose and went over to the door. Moving along with him, Everitt said, 'Boy's there too.'

  'Mr. Gearhart there?'

  'I didn't see him.'

  Like the Attorneys' Room, the room next to it was lined with the books of the law library. Jake Riordan, smoking a cigar, was sitting across the table from a young man with short curly hair and a piece of adhesive tape diagonally down his forehead. They both got up, and Jake said, 'Ab, this is Mr. Mason. I wanted him to meet you before he went home.'

  'How do you do?' Abner said, holding out his hand. He had been — for no reason at all, when he thought about it — expecting some snotty little brat with the marks of too much money on him, and the cock-sure, even contemptuous, assurance that his father would take care of him. Mason looked as though he thought nobody would take care of him; and while his clothes were good and expensive, they had necessarily been slept in; and on the sleeve of his coat was a large, partly removed stain — blood. He gave Abner a damp hand. 'Have a cigarette,' Abner said, offering the package he had taken out. 'Were you hurt?'