The Just And The Unjust Read online

  Beyond the screened windows, the afternoon seemed to be brightening a little, as though the rain were over; and Abner, rousing himself, went back to the courtroom and resumed his seat. Harry glanced at him casually and winked. Bunting was still cross-examining Howell; and the jury, tired of sitting still, and tired of hearing the same thing, looked restless.

  Restless, too, in the rising semi-circle of gloomy benches, singly or in groups of three or four, sat eighty or ninety spectators. There was plenty of room lower down, but many of them were content to sit well back. Abner knew a few by name, and a good many more by sight — there was old John Hughes, generally called Grandpa, who always attended court, hardly missed a day in the last five or six years. He received a small pension of some kind, and had nothing else to do. At Harry Wurts's urging, Grandpa had been elected an honorary member of the Bar Association; but if the intention was to have some fun with him, it failed. He came to the yearly dinners, and though he ate everything offered to him, and even got quite drunk, he could not be persuaded to make a speech. Grandpa was very deaf and did not try to hear when spoken to. He simply nodded a little, smiled a little, grunted a little, and watched brightly—at first glance, you might think with the detachment of a philosopher; but it was soon apparent that the gleam in his seventy-year old eyes was only the aimless curiosity of a baby. Even Harry ended by letting him alone. Grandpa probably had little or no idea of what was going on this afternoon; but the strange faces kept his eyes busy, and the activities down in the well of the court beguiled him; and when he went home to supper he would probably feel that he had passed a pleasant afternoon.

  What the others felt was harder to guess. Abner supposed they felt that same devouring curiosity that brought people, often in crowds, to stand staring at the scene of an accident or a crime hours or even days after it happened. (What did they hope to see? What did they want?) Many of those present now had been present since the opening of the trial. The oak benches were as hard as iron to their buttocks; they did not know these people who were on trial; they could hardly hear what was being said; they did not understand the procedure of the court well enough to follow the drama if it could be called one; but still they sat. They looked thirstily, drinking it in, slaking their indescribable but obstinate and obscene thirst. They looked, but never quite their fill, at Howell and Basso who were probably (terrible and titillating thought!) going to die; at Leming, who took his drugs before breakfast; at the widow of a murdered man, the whilom sharer of his bed; at Susie Smalley, the lewd object of what lewd passions; at Judge Vredenburgh in his robe whose word was law; at the clerks serving some purpose they did not know under the bench; at the jury, whose word was life and death; at the attorneys making their assured gestures, familiars of the solemn mystery in which, all jumbled together, the just entered into judgment with the unjust.

  Bunting said, 'Now, then, Stanley, you knew Zolly was to be killed when you took him out that night, didn't you?'

  Howell said, 'I never knew'. He was feeling the strain. His water-slicked hair had long ago dried and some strands of it toppled forward, so he kept pushing them back. 'You told me you knew, didn't you?'

  'You are wrong there.'

  'You told me in the presence of Mr. Coates and Mr. Costigan that you knew Zolly was to be killed when you took him out that night, didn't you?'

  'No,' said Howell. 'You are wrong. No.'

  As a matter of fact, Bunting was right. Abner had heard Howell say it. Bunting said, 'That isn't true?'

  'That positively isn't true.'

  'You didn't say it?'

  'No.'

  The jury, obliged to choose between Howell and Bunting, chose Bunting, of course. When they were charged to disregard Howell's confession if they thought it had been obtained by force they would understand why Bunting had been so careful to let them know that Howell had told him much the same story, and by Howell's own admission, told it freely. This was a nice piece of work. The jury might not realize it; but Bunting was now testifying, yet in a way that those who did realize what he was doing could not challenge. Calmly, disarmingly, calling him by his first name, Bunting was sewing Howell up so tight he would never get out. Abner looked at Kinsolving, grave and reflective beyond the sheriff. An F.B.I. man must feel relief when he found a country district attorney who knew his business. Abner saw George Stacey bend to the side and speak to Harry; but Harry rolled his eyes, shrugging silently.

  Bunting said, 'Now, Stanley, after Zolly was killed, did you ever go out on any job with Bailey and Basso?'

  Jerking himself forward, throwing off his resignation, Harry half-arose. He said, 'I object to any questioning of this defendant as to any offences other than the one for which he stands trial.'

  Bunting turned patiently, and Judge Vredenburgh said, 'That would be the general rule. This witness has testified, however, that he was afraid of Bailey.' He turned back the pages of his notes, the lamplight brightening on his bent face. 'Yes. While he did not definitely say so, he implied that the reason that he accompanied them was that.'

  'Exactly, sir,' said Harry with alacrity. 'There can be no doubt that he acted only through fear.'

  'The doubt, or lack of doubt, belongs to the jury, Mr. Wurts,' Judge Vredenburgh said. 'We will agree that the witness may have feared Bailey, that he may have thought, if he refused to go with them, that his own life would be in danger.'

  'It seems to me a strong presumption, your Honour.'

  'It is one that the Commonwealth is entitled to attack. I think it would be greatly weakened if the Commonwealth showed that Howell continued to associate with Bailey. I take it that such evidence would be admissible for that purpose, at least.'

  Bunting said, 'It is also offered for the purpose of showing the jury what kind of men these were.'

  Judge Vredenburgh nodded. 'Showing their character; on the question of punishment, if that should arise. Yes.'

  Harry Wurts said, 'Well, sir, I object.'

  'Overruled.'

  Bunting said, 'Didn't you go with Bailey and Basso a few nights after the killing of Frederick Zollicoffer, before Bailey went away to hide, and attempt to steal a car —'

  'If your Honour please,' George Stacey said, 'I desire to make an objection to that question on behalf of the defendant Basso, for the reason that Mr. Wurts assigned for the previous objection; and for the further reason, that though there may be exceptions to the other rule, this is a misuse of that exception by the Commonwealth to throw something into the jury box that has no right there. Therefore, I object.'

  'I think I understand you, Mr. Stacey,' Judge Vredenburgh said, 'but suppose this defendant testified that he was afraid for his life while he was with Bailey; and then suppose that the Commonwealth were to show that he continued with him in other affairs. Wouldn't that throw doubt on the genuineness of his fear, very serious doubt?'

  George Stacey blushed. 'My objection, sir, on that point is this,' he said. He paused a moment, collecting himself with a doggedness Abner admired. Abner could remember such painful moments of his own during his first years of practice, when, on his feet, every eye bent on him, and the Court waiting, confusion scattered his thoughts in all directions and he could not catch the one he wanted.

  'The reason was,' George said, 'the reason he was in fear that night, was because they were involved in the disposal of Zollicoffer, who was in their custody and alive. They were now returning him. The testimony of the witness was that he was under the impression that Zollicoffer was to be released.'

  Judge Vredenburgh resumed the minute movements of shaking his head. 'That would be a matter of argument, but not a matter of law.'

  'That is true, sir,' George Stacey said, 'but I will make my objection.'

  'No. You may have an exception.'

  Abner guessed that George's point, unfortunately left out, was that Howell and Basso feared Bailey under the particular circumstances of that evening; and the fact that they did not fear him so much under different circumstances d
id not mean that their fear had not been genuine. George, back in his seat beside Basso, sat tense, undoubtedly going over — how well Abner remembered! —' what he had said, trying to show himself that it could have meant what he intended to say. Abner felt like standing up and straightening it out for him.

  Bunting said, 'You and Basso went on this attempted robbery, this garage job, with Bailey, didn't you?'

  'No,' said Howell.

  He produced the word with furtive suddenness. It made Abner think of a poor card player boggling an instant, so that his desperation was betrayed; then making an asinine lead and fatuously pluming himself on the general surprise. 'You didn't?' said Bunting. 'No.'

  'You didn't tell me and Mr. Coates, and Lieutenant Dunglison, that you took part in it?'

  'No.'

  Bunting said, 'Is Lieutenant Dunglison in court?' Where he sat over by Kinsolving, Dunglison raised his hand and said, 'Yes, Mr. District Attorney.'

  'Oh. All right, thanks, Lieutenant.' Bunting came back to the table. Abner said, 'Want to put Dunglison on?'

  'No,' said Bunting. 'Just give Harry a chance to drag out some cross-examination. Let him go.' He looked at Howell and said, 'That is all.'

  Judge Vredenburgh said, 'Will you want to offer anything in rebuttal, Mr. Bunting?'

  'No, your Honour.'

  'The defence rests as to Howell,' Harry said. 'Mr. Stacey?' said Judge Vredenburgh. 'Yes, sir, I rest, too. Defence rests as to Basso.' On the stand, Howell said, 'Could I be excused a minute, Judge?'

  'Yes. You may. Sheriff, take out the defendant. If you have points to submit for charge, Mr. Wurts, you may submit them now. The jury will be withdrawn.. Mr. Bunting, come to side bar, please.'

  Abner looked across at Harry Wurts who was snapping the loose leaf binder on the sheets of his trial brief. George Stacey's blond head was bent, asking Harry some long anxious question. Hugh Erskine, down from his seat, came over to Basso, touched him on the shoulder and spoke to him. Basso shook his head. Howell, with Max Eich, seemed to be waiting to speak to Harry; and Harry, now on his way to join Bunting at the end of the bench, stopped, facing Howell. Abner could not hear what Howell said; but Harry answered, 'No. We've closed. It's all over. I'll see you in a minute.'

  Harry walked on, and Howell convulsively made a movement. Max Eich tapped his arm, and Howell turned, as though to back away. Right behind him he found Warren Lyall, who had come along the front of the now empty jury box. Warren stood stock still, and said, 'Take it easy, Bud!' He was so close to Howell that Howell could not move without touching him; and, crowded together, they stood an instant, nothing spoken, nothing done. Howell let himself relax then, swinging his pinched face from side to side. Max closed a hand on Howell's left coat sleeve, deftly, neatly, so it was hardly noticeable, snapping on the handcuff. Abner saw the instant's wink of the bright steel and heard the little click.

  They moved off then, and Abner found that he had been holding his breath. He shifted in his chair uncomfortably. It was one of those moments, fortunately rare, in which you saw, under the forms, the human facts; the terrified prisoner; the stout burly guard with the ready manacles; the young tough impassive deputy-sheriff. Warren spoke his hard, but not harsh or brutal, word to the wise; with a delicacy, with a consideration almost incredible when you saw Max's beefy face, Max understood and mitigated all he could the shame of the steel chain, the guerdon of a dog. In Howell's heart, even despair must have died, and they marched the man out to relieve himself.

  Bunting made his way clear of the empty seats of Nick Dowdy and Joe Jackman and came back to Abner. 'Well,' he said, 'that could have been worse. In fact, it was a damn good case. I'd like to get more like that.'

  'Nice going,' said Abner. 'Surprised when he lied to you?'

  'The first time. When he said he hadn't told us about knowing they were going to kill Zolly. Not the second time.' Bunting smiled. 'The Judge had just finished telling him to lie. I was watching him while the Judge explained to Harry and George what it would mean. Right then Stanley changed his mind. Well, I hope we cooked his goose. I think we did.'

  'I think you did,' Abner said. 'They got it, all right, when you asked if Dunglison was there.'

  Bunting said, 'It's not the kind of thing I like; but, if you don't know it already, take a tip. Never give anyone like Harry any opening of any kind. The way those smart alecks get to a jury is just on some foolish side issue. Let's grab a cigarette.'

  SEVEN

  1

  JOE JACKMAN said, 'Well, Marty, another day, another dollar!' He held up his right hand, flexing the fingers. 'I wish it was! I suppose we'll be here all night with the arguments.' He, looked at the end of his middle finger. 'I was cutting some roses for my wife this morning before I came over, and damned if I didn't run a little bit of a thorn in there. It's exactly where it catches the stylo. Boy, is that sore!' Bunting said, 'Why don't you just take a knife and cut the finger off?'

  'Huh!' said Jackman. 'Feeling good, are you? You 'd better wait till you find out what the jury says. You never should have let Genevieve Shute on that jury. She likes to be a mother to bad boys.' How about you, Nick? You think they ought to have another chance, don't you?'

  'You fellows!' Nick Dowdy said. 'This Basso doesn't care, I guess. Stanley Howell, he'd like to have another chance; he'd like to do something to this Leming, I guess. We going to get through to-night, Marty?'

  'I don't see why not. I don't see how they can argue very long. They haven't anything to argue. The charge may take some time, though.' Nick Dowdy said, 'Judge Vredenburgh was in the library here last night working on it, dictating to his daughter.'

  'Annette?' said Joe Jackman. 'My God, does she know how to do anything?'

  Bunting said to Abner, 'What was it at Newmarket?'

  'LaBarre,' Abner said. He suppressed a feeling, not, certainly of satisfaction, for he would have preferred to find that Mason's story was true; but, perhaps, of self-justification. His suspicions, of which Marty had made him feel ashamed, would seem to have been well founded. He went on, 'It seems that Mason didn't get it quite straight. LaBarre was there at the time, and one of his officers saw the accident happen. What did the report say?'

  Bunting said, 'It came up after I left this morning. I haven't had time to go back to the office. I haven't seen it. I thought Pete Wiener told you it was the other fellow's fault.'

  'He did. I don't know why, unless LaBarre and his man didn't get over to Pete's office right away. They may have sent Mason over with someone else. They had the dead man to take care of, and I suppose it was a fine mess. Pete may have called me without waiting for them, as soon as he talked to Mason.'

  'Well, we'd better see the report —'

  Malcolm Levering pushed the door open and said, 'Judge wants you, Mr. Bunting.'

  'All right,' Bunting said. 'Ab, phone Theda, will you, and ask her to bring that report up. We'd better see how we stand.'

  Malcolm, who had withdrawn his head, now put it in again. 'Mr. Jackman, he wants you, too. Jury's coming back, Nick.' Left alone, Abner called Bunting's office. When he had finished, he dropped in another nickel. At the high school there was no answer, and the operator gave him his nickel back. Probably Bonnie had gone home; and he hesitated, not particularly wanting to talk to Cousin Mary; but if he didn't call now, he might not get another chance.

  It was Jared, junior, who answered, his voice sharp and impudent. 'You got the wrong number,' he said. 'Come on!' said Abner. 'Hurry up.'

  'What do you want her for?'

  'None of your business,' Abner said. 'Oh, so you won't talk, huh? G'by —'

  The telephone was taken away from him, and Bonnie said, 'Jared, if you don't stop trying to be funny —'

  Jared said faintly, 'It's just your boy friend. He wants you to come over and pitch some woo —'

  'Jared, when mother comes home, I'll —'

  'Bonnie's mad,' yelled Jared more faintly, evidently leaving the room, 'and I'm glad —'

  Bon
nie said, 'Hello. Are you through?'

  'No,' said Abner, 'and I don't know when we will be. But I want to see you to-night.'

  'I don't know whether I have to go back to school or not. They're having another meeting at eight'

  'Well, will you do something?'

  'What?'

  'If we aren't through, or if we are, and it's gone to the jury, we'll recess by six. Will you come over here and wait?'

  'Where can I wait?'

  'In the courtroom. Just sit up by the door, and when we break, I'll be able to go out and eat with you.'

  'All right. I'm sorry I lost my temper at noon.'

  Taken by surprise, Abner said, 'You look good that way. You'll come?'

  'All right Oh, damn it Jared, go away!'

  Before she hung up Jared could be heard yelling, 'Oh, Bonnie's swearing, Bonnie's swearing —'

  Abner went into the courtroom and took his seat by Bunting. He thought of Jared with loathing.

  2

  Harry Wurts said, 'Ladies and gentlemen —' He arose, it was plain, not to exhort or harangue the jury, but to counsel with them in a friendly way and to ask them to consider with him some problems which, by the grave, even worried, expression of his face, troubled him.

  Abner was not sure that you could call it guile. Harry was cynical about other men's motives, and quick to spot the pretence or the assumed role; but his own motives were so urgent, the importance to him of persuading or wheedling or winning so profound, that Harry always spoke when arguing for what he wanted with complete sincerity. It could not be said that his troubled frown was faked; this was a tough assignment; he frowned at its difficulties. He was troubled by the problem of how to phrase and arrange the few things he could say to give himself every chance, no matter how remote or small, of getting at just one juror, of giving just one man or woman some scruple or sentiment that, catching in the simple or the over-complicated mind, would stay there, resisting the consensus, immune to sense or reason, only hardened in obstinacy by the arguments or expostulations of the others.