The Just And The Unjust Page 40

  Over by Mrs. O'Hara, she was hugging herself, her haggard face turned to look down the line at Leming, rapt with hate and triumph. Between Servadei and John Clark, both smiling, Dewey Smith sat pop-eyed like the moron he was.

  Bunting took his seat beside Abner, and Abner said, 'What's the Judge going to do?'

  'What can he do?' asked Bunting irritably. 'Harry's moving for a new trial as a matter of form. He'll withdraw the motion in a few days and move for sentence. He wants some time to think it over; but, my God, he's satisfied! I've got to hand it to him!'

  He looked bitter, and Abner said, 'I guess we did all we could.'

  'Maybe,' Bunting said. He took a pencil and began to draw a dog on his pad with sharp careless strokes. He did not look up as Mat Rhea, who had been speaking to the Judge, faced the courtroom again and said, 'Robert Basso, will you please rise.'

  Basso moved negligently, shifting his remote, contemptuous gaze, and got to his feet.

  Abner was embarrassed for the law, which had to insist on acting out its charade although everyone already knew the answers. With a start of surprise he turned to look at everyone — those hundred or less spectators, those bitter-enders; the sovereign people, the critics of the sad show, all unnoticed until now:

  They still sat there, face after face in scattered pale series across the curving slopes. The demanding watchers watched and watched, and in time their patience had been repaid; and what did they make of it? By way of answer, Abner could see them stirring, leaning toward each other, asking each other. They had their grand scene, the drama they came impertinently to enjoy, the big moment to wow those boobs; and it was all one to them. Something had happened—but what? Something was happening — but what?

  'Jurors,' Mat Rhea said sourly, 'look upon the prisoner; prisoner, look upon the jurors. Members of the Jury, have you agreed upon your verdict in the issue joined —'

  Still working at his dog, Bunting said, 'It makes you sore. They haven't any sense.' He tipped his head to the side and said, 'Servadei there goes back now and says it's all right, the juries up here won't convict. They'll find out!'

  Abner did not know what to say. The threat was essentially a child's threat declaring to those who crossed him that some day they'd be sorry. It was not a prophecy; it was a wish. As for Servadei, he would need to be a much stupider man than he looked to report any such thing to the prominent shysters in partnership with him. He had seen a wilful jury find against law and fact, perhaps helped by Wurts (a good man to keep in touch with), but wilful juries were not the kind he and his firm wanted. They would not care to expose all the smart and careful work they put into making a guilty man look innooent to the caprice of a lot of stubborn yokels who could not be counted on to play the game according to the rules. Since Marty knew this at least as well as Abner did, the only meaning of his remark was that as he said, he was sore. If he meant that criminals, once this good news got around, would pour across the county line to commit their felonies with impunity, he was talking nonsense. All crimes by professional criminals were committed with the presupposition that they could be committed with impunity. Since the criminals were confident that they were not going to be caught, the last thing they worried about was how it would go with them when they were put on trial.

  It occurred to Abner that though he could not now, and perhaps never could, match Marty's skill and experience; and though he might not have as much actual intelligence as Marty, he had a temperament better suited to meet difficulties like this. The thought came to him that if he had been district attorney in this case, he would not have summed up in such a take-it-or-leave-it way; and he could easily have brought himself to stoop to Harry's level. He did not claim that he would be as good at it as Harry; but he might have been better for the purpose than Marty; and it was just possible that that would have made all the difference.

  He said, 'I think the Judge ought to say something to them.'

  Bunting said, 'Irwin''s going to. A hot lot of good that will do now!'

  Mat Rhea said, 'Your Honour, the jury has been called individually. They are in agreement. Shall the verdict be recorded?'

  Judge Vredenburgh nodded shortly, not looking at him. 'It may be so recorded.'

  Harry Wurts stood up and said, 'Now, if the Court please, I desire to make an oral motion for a new trial, also an oral motion for an arrest of judgment; and I ask leave to file reasons in support within ten days.'

  Judge Vredenburgh nodded, his face grumpily turned down. 'And for Mr. Stacey, too, I suppose. The motions may be recorded. You may file formal written motions within — four days is enough. Is that all?'

  'Yes, sir.'

  Judge Vredenburgh closed a book he had been looking at on his desk and took off his glasses. He said, 'Before Court adjourns, the President Judge has something to say to the jurors. Everyone will remain where he is.'

  Judge Irwin moved forward to the edge of his chair and set an elbow on his desk. Clenching his thin, long-fingered hand, he rested his chin a moment on the knuckles, looking down at the jurors. He moistened his lips, and said, 'Members of the Jury, you may take your seats in the box. I will be as brief as possible —' He checked himself, remembering his purpose. Unclasping his hand, he plucked his chin several times while the jurors distributed themselves.

  When they were quiet, he said again, 'Members of the Jury, you anticipate, no doubt, the — ah, tenor of the remarks I now find it incumbent on me to make to you. At the conclusion of a case in which much testimony has been heard and on which a number of days have been spent, the Court often thanks the jurors for their services. In this case I do not feel that it would be appropriate to express such thanks to you; for, frankly, we do not feel that you have properly done the duty for which you were summoned; and, incidentally, for which the county is obliged to pay you.'

  Judge Irwin paused, plucked his chin again, and gave them a distressed look. He said, 'The allegation that I am making is a very serious one. I will express it in as mild a way as possible, not because it isn't serious, but because I do not, I cannot bring myself to, believe that you acted with any conscious or deliberate intention to violate your solemn oaths. It may show you how serious the matter is, however, if I say to you that, had I actual grounds for such a belief, I would see no alternative but to constitute myself, as I have the authority vested in me to do, a committing magistrate, and to direct the sheriff to arrest you; and you would be held for the grand jury. I will ask you to remember that.'

  Judge Irwin was silent while his shy but penetrating gaze moved over their faces. Bunting murmured, 'Affirmed as stated'. The impossibility of ever proving such intention was something the jury was not likely to know about. For all they did know, the Judge was telling them that in another minute they would go to jail, and they looked at each other with consternation, prepared to believe it.

  'However,' Judge Irwin said, and he allowed a light, wintry smile to appear on his lips, 'in the absence of such proof, the Court has no right to assume that you acted otherwise than in good faith, and it does not so assume. What we must assume, then, is that you do not understand your position and your responsibilities. It is too late, as far as the present case is concerned, to remedy that. The defendants in this case may not be prosecuted further for their offence, for when they were put on trial before a jury sworn they were in jeopardy, and the constitution both of this state and of the United States forbids the courts to put any person in jeopardy twice for the same offence. Moreover, on a charge of murder, a conviction in the second degree works acquittal in the first degree.'

  Judge Irwin hunched himself up a little more and put both elbows on the desk. His characteristic thin-lipped and nervous but singularly sweet smile appeared an instant on his lips again, as though to show that he had now finished with the scolding he had been obliged to give them and could go on to a pleasanter matter, which was the theory of the law. He said, 'I will not go into the history and what could be called the philosophy of the general and acknow
ledged principle, ad questionem juris non respondent juratores — part of an old maxim; which is to say, the jury does not find on questions of law. Both in this country, and long ago in England where our law comes from, it has been fully discussed and argued by many learned jurists and wise men. The reason that argument persists and discussion continues is not because the principle is in doubt. The facts are for the jury; the law is for the judge. That is the principle. But in practice, the law and the facts do not always constitute separate and distinct things.

  'Furthermore, we always say to you when we instruct you in the law, that the facts are so and so, this is the law that applies. Now, if you do not find those facts, you have no grounds for applying that law. We are not allowed to give you a binding instruction; that is, to say that you must find a defendant guilty; because we on the bench are not judge of the facts. Not being entitled to decide on what are the facts, we cannot presume to say what you will find. Because of this, there undoubtedly exists a power in you, the jury, to override any law as declared by the Court, and to make your action effective by an acquittal; which, in criminal cases, we, the Court, cannot by any means set aside. That is what you have just done — of course, you did convict the defendants of second degree murder; but, as I said to you previously, that is equivalent to acquitting them of first degree murder. Is that clear to you all?'

  Several of the jurors nodded their heads intelligently. Watching them, Abner could see that any resentment they might have felt was gone. Some of them probably found the large words and bookish phrases hard to follow and would have trouble telling anyone what it was the Judge had said; but they responded to the tone, to the careful anxious look. They melted with simple ingenuousness at the sight and sound of a good man.

  Judge Irwin said, 'Now, in the present case, the case just past, I ought to say — Judge Vredenburgh explained to you very carefully and clearly what the law was. If these defendants took part in a kidnapping, and their victim was killed before he came to be released, they were guilty of first degree murder. As jurors, you were not bound to follow his instructions unless they applied to what you found to be the facts. You had a right to find, if that was what the evidence meant to you, that neither of these men took part in any kidnapping. If that was what you found, then the law Judge Vredenburgh told you of would not apply. How could it, if these were not the kidnappers?'

  He smiled painfully, as if he waited for an answer. Then he shook his head. 'To find that they were not the kidnappers you would have to doubt the evidence of numerous witnesses, even including one of the defendants himself: It is not impossible that you should do this; but I wish to ask you, I wish you to ask yourselves, whether this was what you did, whether you felt a reasonable doubt that Howell and — er — Basso took part in the kidnapping of Frederick Zollicoffer.'

  Judge Irwin shook his head again. He looked at them with something like compassion. He said, 'If you did, well and good; you have done rightly, and nothing I have said can have in it any reproach for any of you. If you did not — well, Members of the Jury, I think if you did not, you have something on your minds and consciences to give you pause. I hope you will reflect on it soberly and searchingly. You were sworn to give a true verdict according to the evidence. I do not see how a verdict can be true if it says that a certain crime described to you by law so that you know exactly what it is, has not been committed, when the evidence never at any time by anyone contradicted, shows that it must have been committed.'

  Judge Irwin smiled again faintly. 'So, Members of the Jury,' he said, 'you are once more judges of the fact. We must leave the case with you. We hope you will well and truly try it. That will be all. You are discharged. You may present your slips — not, I think, to-night; it is rather late — any time to-morrow, or on following days during office hours to the office of the clerk of Quarter Sessions.'

  He nodded, looked at Judge Vredenburgh, who looked at Nick Dowdy. Nick hoisted himself up and struck his block. He said, 'All persons take notice that the Court now stands adjourned until to-morrow, Friday, morning at ten o'clock, a.m.'.

  4

  Everitt Weitzel stooped and set a metal stop to hold open the door of the Attorneys' Room. 'Air it out some,' he said to Abner, who was accompanying him. He lifted a hand to the side of his mouth, winked, and said, 'Needs it bad!' Then he remembered that Abner might not be feeling like a joke and said, 'That was awful tough luck! Those men never should have got off like that.' He bobbed his head, and went on, 'Those are the gentlemen there, wanted to see Marty'.

  They stood together with their hats on in that bored yet inquisitive stance of young newspaper men still secretly excited by their own romantic picture of themselves, and so making an effort to pretend that the power that they had to admit people to print was really nothing much, and the knowledge of inside stories just a matter of course.

  Everitt said, 'This is Mr. Coates, the assistant district attorney.'

  They turned their blank, sagacious faces politely, stepping aside from the press of people. One of them mentioned the names of both their papers. Their manner became more offhand, showing that this was old stuff to them, and that they supposed that it was old stuff to Abner, who, being from the district attorney's office, might very likely equal them in first-hand knowledge of what everything, at least locally, was all about.

  Abner said, 'Mr. Bunting will be busy for a while'. In fact, Marty had walked over to speak to Frederick Zollicoffer's widow and her brother-in-law; and Abner had been glad of a chance to separate himself from that painful little circle. 'I think he'll see you if you want to wait.'

  One of them said, 'Don't want to bother him —'

  The other said, 'What we wondered is; any chance of seeing the prisoners a minute —'

  Abner said, 'Better ask Mr. Wurts about that'.

  Harry, with a group of people around him, was lounging on the leather couch across the room. John Clark, sitting beside him, had just given him a cigar; and through a break in the crowd Abner could see Harry's flushed face, the eyes intent a moment on the cigar tip as he brought a match to it. Harry removed the cigar, and laughed out loud in the puff of smoke. Mr. Clark's large, pale, reserved features displayed the smile of a man who has seen forty years of court and law and still finds much to amuse him, but mildly.

  The newspaper man said, 'We meant the other fellow, Mr. Coates, the Leming fellow —'

  'And maybe Smalley —' his companion said.

  Abner said, 'I think their attorneys could fix it up for you. I don't think Mr. Bunting would feel that he ought to arrange it.'

  'Who's that? Servadei?'

  'Yes.'

  'I know him.' The sagacious look deepened to a contemptuous knowingness. 'He's a lulu! What's the girl's lawyer's name?'

  'Clark. Over there on the sofa.'

  'The D.A. won't mind if we try, will he?'

  'I don't think so,' Abner said.

  'Well, much obliged, Mr. Coates,' one of them said. 'Glad to meet you.' The other said, 'Oh, by the way, Mr. Coates, there isn't another telephone we could use anywhere around here, is there?'

  Abner looked over to the telephone on the wall by the lavatory door. Maynard Longstreet, the receiver to one ear, his knuckle jammed in the other, his lips against the mouthpiece, was obviously dictating with difficulty to a rewrite man on one of the city papers for which he was the correspondent. 'One in a booth out in the main hall,' Abner said.

  'Thanks a lot!'

  Someone had come up behind him and Abner, turning, found that it was Kinsolving, the Federal Bureau of Investigation agent. His weighty calm was undisturbed. 'Well, Mr. Coates,' he said, 'those are the breaks! They fooled me.'

  'They fooled us, too,' Abner said. 'I didn't think they had a chance.'

  Kinsolving tapped him on the arm with two blunt fingers, opened his mouth, and then shut it, looking past Abner. Looking too, Abner saw that George Stacey had drawn near. 'Well, Counsellor,' Kinsolving said to George, 'I want to congratulate you. It isn't e
verybody who could have got those clients of yours off .'

  George blushed under Kinsolving's amiable stare; but he said, fairly coolly, 'Well, Officer, if you insist on beating the boys up, what can you expect?'

  Kinsolving chuckled. 'Stick to your guns, eh, Counsellor? Well, if you want my opinion, that yarn of Howell's wasn't ever at issue. I was just going to say to Mr. Coates here. Best line you and Mr. Wurts had was: Are you people going to burn a man who maybe didn't actually take a gun and shoot anybody? That would be my guess, Counsellor. They don't think it out, sometimes. You heard what the Judge, the other Judge, said to the jury. Well, I must get along. If you'll tell Mr. Bunting, Mr. Coates, that I'll ring him up to-morrow, or ring his office up. I think the Bureau may have a little additional stuff you could use on Leming. Good night.' He nodded and went out the hall door.

  Looking after him, George said, 'I know damn well what they did to Howell. That was no joke about his kidneys. They gave him a real going-over.'

  A hand struck Abner on the back. Art Wenn said, 'Too bad, Ab. Too bad!' The effect of his concave profile, the jutting chin below, the bulbous forehead above, was to give his tucked-in smile a secret quality of half-concealed satisfaction. He might not go so far as to be glad that the Commonwealth lost its case; but since Abner had told him that they expected to win, it probably caused him no pain to find that Abner was wrong.

  However, Art immediately laughed, bringing the hidden smile out in the open, so it was plain that there was not much malice in him. 'George,' he said, 'looks like we need new blood in law enforcement around here!' He laughed uproariously. From his pocket he drew a pack of oblong cards and held one up. On it was a slightly blurred cut of his own head and shoulders with the words: 'For District Attorney, ART WENN in large letters; and in small letters: 'your vote and support respectfully solicited.'