The Just And The Unjust Page 34

  Harry said, 'I think we have all been watching with something like amazement the work of the Commonwealth over the last few days. Mr. Bunting will shortly sum it up for you; and I look forward to hearing him. I think you will find that the case follows with an almost mathematical precision the lines laid down by Mr. Coates in his able opening—I refer, of course, to his remarkably detailed outline of what the prosecution was determined to prove, not to his rather impressionistic and imaginative history of the case. There, I think we all recognized a flight of fancy and took it with several grains of salt.'

  Harry smiled good-humouredly and one or two jurors in automatic reaction smiled too. 'They should be congratulated,' Harry said. 'Because it is part of my business, I am a student, you might say, an amateur, of legal tactics; and nothing interests me more than to see a skilful hand taking material in itself of little weight or substance and shaping it so that the result appears as a solid and imposing structure. Of course, it is a false front; it is like stage scenery, and you must look at it from one angle only, or the sham will be apparent.' He smiled again, drew a deep breath, and shook his head.

  'However,' he said, 'before we demolish the make-believe, I think we may learn something by looking at it just the way they want us to. Let us pretend that its foundations are real evidence; let us pretend that it is what it purports to be — a damning case. Actually we may see through it, but at least we must acknowledge the cunning that put it together. Here is no plain blunt tale. Every piece fits according to specifications. No sooner does the want of this or that detail appear than, like magic, it is produced. Perhaps a rubber hose or a little pressure on a drug-destroyed mind was needed to produce it; but there it is! The hat is perfectly empty; yet out pops the appropriate rabbit; in fact, a whole warren of rabbits. In the district attorney's coat-tails there must be many pockets —

  'Briefly, members of the jury, what strikes us about this concoction is that it is too good. Things aren't like that in life. What we lawyers learn from experience with witnesses on the stand is exactly what you have learned yourself from your experience in meeting the everyday problems of sizing people up. Your natural common sense makes you distrust the man who knows all the answers. If I may venture a criticism, I think the prosecution would have served its purpose better if they had left just a few contingencies unprovided for; if, once in a while, one of their witnesses had seemed less than letter-perfect —'

  A little edgy. Bunting said to Abner, 'And if I were to venture a criticism, I'd say he'd better cut that before somebody wakes up to the fact that when it comes to fooling people, he has a lot of ideas on the subject.' He took up a pencil and began to draw a dog on the margin of his pad.

  Harry said, 'The purposes thus to be served are, I think, fairly plain. Mr. Coates, you may remember, asked you to find the defendants guilty of first degree murder with such penalty as you believed deserved. He avoided asking you outright for the death penalty, and this was an astute move. He did not want to fix in your minds the thought of the electric chair; for, as the case developed, you would then be constantly weighing what these men had actually done against what you were being asked to do to them. By now, you would almost certainly have reached the firm conviction that the crime and the demanded punishment did not balance, that here was no cool-headed and disinterested justice, but a vindictive hounding to death. It would be time enough to ask you to crown the district attorney's career with such a triumph when actual evidence and testimony were past, well-buried in words; and when an adroit summing up might manipulate them somewhat for your persuasion — though, of course, within the limits of propriety. I am sure the prosecution would not risk a censure from the Court.'

  'I am not sure, Mr. Wurts,' Judge Vredenburgh said, 'that you have not been risking one yourself. I do not need to tell you that as a general rule counsel in argument must confine themselves to the facts brought out in evidence. Reasonable freedom of debate and illustration, yes. Gratuitous impugning of methods and motives, no. Proceed with that in mind.'

  Harry said, 'Thank you for correcting any false impression I may have given, your Honour. I did not mean that the prosecution's methods and motives are those of malice. I meant simply to comment on what seemed to me an extraordinary zeal to convict, so that the jury might weigh the arguments with an open mind. Ladies and gentlemen, Mr. Stacey, for whose client I am also arguing, and I do not ask the acquittal of these men. That would not be justice. Their records show that they cannot be trusted; and while, in spite of the district attorney's efforts to make them appear to be, they are not on trial for their records, it is right for you to take into consideration the kind of men they are.

  'What they are on trial for is murder. You may ask how this can be, when even the prosecution has not insisted that they actually killed anybody. Murder is killing. How can you be guilty of murder, if you don't kill? The answer is in a technicality, a provision of statute. In its wisdom the legislature has seen fit to declare, as it has the power and right to, that murder shall be a good many things besides that crime of killing with deliberate intent which is what you and I mean by it; and which I think we may with all reverence assume was Almighty God's meaning in the commandment: Thou shalt do no murder.'

  Bunting looked at Abner. 'Something for old Daniels,' he said. Abner could see him studying under his lowered eyelids the faces of the jurors; and no doubt wondering, as one always had to, if this or that choice from the panel had been good. Mr. Daniels was probably all right. He was a leading Baptist of one of the small severe sects. God's work, as such men saw it, usually included making the transgressor's way as hard as possible. For that very reason Abner remembered being surprised when the defence accepted Daniels; and so now it was necessary to wonder whose estimate of Daniels was correct.

  Harry said, 'The legislature, let us hope, would not lightly have undertaken the presumptuous job of rewriting and giving new-fangled meanings to the Sixth Commandment; and we can follow part of their line of reasoning. It is reasonable to hold that a group of people, if they agree together to go and murder a man, and the first one who hits the victim kills him so that the others do not have to, and do not, take any part at all, just the same they are guilty of murder. Of course, that is not the case here. There was no agreement to murder Frederick Zollicoffer. Quite the contrary! Howell and Basso went along because they believed that he was to be taken home. They were unarmed; and, surprised, facing a vicious and desperate man with a gun, they could not prevent the crime. Bailey, the murderer, kept them in fear; and I don't think any of us, offered the choice they were offered — that is, keeping still, or dying — would have chosen differently. So much for that.'

  Harry took a short thoughtful turn down past the box, his head bent, his hands clasped behind him. On the way back, he said, 'We come now to the legislature's further extension or invention by which the punishment deemed proper for the foul crime of murder may be inflicted for a number of other offences. This is new, in the sense that it has only recently been thought up and added to the law; but in another sense it is old, it is what we have so long and painfully struggled to get away from. It is a step back to those dark days of the eighteenth century when literally scores of crimes were punished by death. Those barbarous laws, as futile in practice as they were disgraceful in theory, were eventually abolished; not a little because the conscience and love of justice of members of juries made them refuse to bring in verdicts of guilty. Jurors might not be able to make the law; but they had something to say about justice, and they said it until even cruel judges and despotic kings had to listen.

  'Well, neither can we make the law. We are supposed to abide by it. The law is that those who take part in one crime, kidnapping in this case, shall also be held to have taken part in another crime, murder, if, before the kidnapping is over, someone kills the kidnapped person. All the kidnappers do not have to join in the killing. As in this case, some may object and protest; but the law doesn't care about that. The essence of every other crim
e is intention; that is how you tell when it constitutes a crime. But not here. Here you may become a murderer without doing anything at all. You may be as innocent of any intent to kill as the engineer of a train that runs over a man who jumps in front of it.'

  Harry shook his head. 'It isn't right. Instinctively we recoil from so gross an affront to wisdom and reason; yet that is the law. The legislators tell us what they have decided will be law and it goes into the books. Law is law; and if we say we don't like it, they simply laugh at us. They are the all-wise statesmen; and who are we? Why, we're a bunch of ignorant hicks who don't understand these things. We can shut up and sit down.

  'Well, maybe we can; and maybe we are just ignorant hicks; but you at least, ladies and gentlemen, are more than that. You are duly selected and sworn jurors, free men and women; and if they laugh at you, that's their mistake, because you are the ones and the only ones who can by your verdict deliver over to them subjects or victims for the caprices of their law-making. It is your conscience, and not their vindictive or vainglorious vapourings, that are decisive. There is no power on earth that can force you to send to death men whose offences do not warrant death.'

  Harry spoke with great earnestness, hammering home the successive sentences, not by raising his voice like an orator, but by putting force behind each moderately spoken word. Except for lifting or lowering his head, or bending his shoulders forward a little and then straightening up, he made no gestures. He did not show the consciousness, which few glib speakers can conceal, of handing it out, of going good. The jury listened, not spell-bound (a state that flattered a speaker on his manner and proved that he could give good entertainment; yet meant in fact that what he said hardly mattered); but disturbed, stirring with the discomfort of not knowing what to think.

  Bunting said, 'Ab. That's Theda, up there at the door. Will you —'

  Abner looked up. The door opened, awakening Everitt Weitzel. Everitt got stiffly to his feet, took the paper, and came limping down.

  Harry said, 'The nature of these men's offences ought to appear from the evidence. Let us consider what the Commonwealth has offered us—'

  Everitt came furtively across the well of the court and laid the papers he carried beside Bunting, who pushed them over where he and Abner could both read. 'Well,' Bunting whispered at last, 'that's clear enough. What did the kid do, deny it?'

  'No,' said Abner, 'not exactly. Naturally, I wasn't holding a hearing. Jake was there. He made some remarks. I didn't pay much attention.'

  'Well, what was LaBarre's trouble?'

  'Somebody told him I said the state police shouldn't have made the charge manslaughter. Jake did say something like that. As far as I remember, all I said was that we would have to see the report. I may have told Mason that if it wasn't his fault, he needn't worry. He was sort of shaky, and I felt sorry for him.'

  Bunting said, 'I don't know that I'd ever do that, Ab. Even if it's not his fault. Even if he's completely innocent, it's homicide. He's killed somebody, and if that's a little inconvenient for him, all right. I guess you could say being killed was not exactly convenient for the other fellow. You have to remember that you represent the Commonwealth, and that means the other fellow, the Negro who died.'

  'I know that,' Abner said, flushing. 'I didn't mean —'

  'I know you didn't. There's no harm done. Whether Mason says he's guilty or innocent doesn't matter — manslaughter's bailable. All we want is for him to put up two thousand dollars for his appearance at the inquest, and he can go home. I just mean, I wouldn't in a case like that let him talk to me about it; or express sympathy, if you did; or anything of that kind. If he's shaky, well, he ought to be shaky. He'll have a chance to tell his story in due course; and meanwhile, let him worry about what he's done. It usually does him good.'

  Abner said, 'You told me to go out and see him. I didn't want to. Jake did most of the talking. I don't think he knew just what the evidence was —'

  Judge Vredenburgh tapped the metal shaft of his desk lamp with his gold pencil. Harry had paused and turned to look at them. The Judge said, 'I think your conversation is disturbing counsel, Mr. District Attorney. If it is necessary for you to confer, confer in lower tones.'

  'I beg your pardon, sir,' Bunting said. 'Sorry, Mr. Wurts.' To Abner, he murmured, 'If Jake doesn't know, I think we'd better show him this. Probably he's at his office. Take it down, will you.' He pushed the report over to Abner, settled back in his chair, and turned his attention to Harry.

  Harry said, 'The witness on whom the Commonwealth chiefly relied is Roy Leming. It won't be very pleasant for you, but I must ask you to look at him again, sitting over there beside the sheriff. There is said to be an honour among thieves, and that must be a low sort of honour; but even so it is too high for Leming. He is the snivelling coward who, to save his worthless skin, sells out his friends. Look at him! He is actually smiling. He is proud of his double-cross. He is happy thinking of his miserable life that the Commonwealth is going to let him keep as a reward for the story he cooked up. What word can you apply to such a man? One comes to my mind. With apologies to a common musteline mammal, known to zoologists as mephitis mephitis —in English, that means stink-stink, Leming is a plain skunk. This is what the Commonwealth expects us to trust and believe! This is —'

  Abner went along below the bench and out the door by the Judge's chambers with Harry's voice pursuing him. Harry would stir them up a little, looking now for some sluggish juror who needed violence to move him. It was still not guile, or at least, not after the first word or two following the deliberate change of tone and appeal. His own tone affected Harry as much as it affected anyone else; he himself heard and heeded his own appeal. When he looked at Leming, Leming looked like a skunk to him, and he would rant on in full sincerity until some instinct told him that that was enough of that. Even after the door closed an echo of the tirade came through the dull stained glass transom. Abner went down the back steps and out under the arch.

  The point he might have made if Judge Vredenburgh had not interrupted them preoccupied Abner, though it was hard to phrase it clearly. He could say that because Marty had chided him for being tough about Mason, he had taken care not to be — after all, Marty was right. It wasn't up to Abner to try Mason and find him guilty of having a father who knew Jesse. Accordingly he was careful to give Mason a break; and as a result, Marty now read him a lecture about his duties as counsel for a dead citizen — as though Abner were the one who tried to help Jesse try to help Jesse's consequential friend. Now, though presumably still representing the dead citizen, he was sent down to let Jake see the report so Jake would not be (if he were actually in any danger of being) taken by surprise when the police testified. The Commonwealth was under no obligation to show Jake its case and so give him a chance to do what he could to defeat it; but that was Marty for you! There was a characteristic open temperance about his actions — not that he couldn't be made to lose his temper, nor that he never did anything short-sighted. Abner had seen Marty make mistakes; yet the point probably was that he never saw Marty make a mistake without being astonished — in short, you recognized that it wasn't 'like' Marty. The things that were like him were wisdom and foresight, patience and temperateness.

  Abner thought suddenly that if he had chosen to run for district attorney, and if he had been elected, he might not have found the job quite so simple as he seemed all along to have assumed. Just being familiar with the work might not have qualified him completely to take Marty's place. When he said, as he so often had to, 'Well, that's up to Marty,' he sometimes meant only that he could not act without Marty's consent; but often he meant, too, that he would not want to act without consulting Marty's experienced judgment. It was not easy to imagine anyone saying with so much confidence, 'That's up to Ab.' Making the effort, Abner thought of George Stacey. He might have offered George the job of assistant district attorney. George would probably have jumped at the chance; and Abner, with an amusement in some respects wry, could
at least conceive of George asking what to do, and of George listening while Abner told him.

  3

  Jacob Riordan's office was a little red brick house next to the county administration building. It was older even than Abner's temple behind the bank. One in a one-time row of old lawyers' offices, it now stood alone, for the rest had been torn down and the county building occupied their sites. The changed level of the paving when Court Street had been first paved made it necessary to descend three steps to enter the door which opened directly on a large front room with a fireplace. Every inch of wall space was packed frame to frame, from the delicately moulded but dirty plaster ceiling to the yellowing paint of the low-panelled wainscoting, with an extraordinary collection of prints, pictures, and old notices.

  Jake had fitted in framed clerks' certificates showing that he was entitled to plead before the Orphans Courts of several counties, the Superior Court, and the United States Supreme Court; but almost everything else was left from the days when it had been Webster Binns's office. There were Currier & Ives prints of presidents and presidential candidates of a hundred years ago; not, however, like most such prints, collected for their quaintness within the last decade, but put up when they were published and never since moved (nor even, you might think, dusted). There were daguerreo-types of people nobody could any longer identify. There was a framed pair of faded tickets, signed by Mr. Binns's grandfather as president of the company, entitling the purchaser to pass one gate on the Childerstown & Western Turnpike with the amounts in shillings and pence. There were several broadside advertisements, brown as dead leaves, offering a reward to the re-coverer of runaway slaves. There was a black-edged announcement of the schedule of President Lincoln's funeral train. There was the lithograph called Gentlemen of the Jury which in the '70s must have been sold to half the law offices in America. There was a framed letter with a two foot column of signatures dated 1890 and inviting Mr. Binns to a testimonial dinner to celebrate the fiftieth anniversary of his admission to the bar.