The privilege, p.28
The Privilege, page 28
Eleanor McFarland, who had prosecuted the case against Alan Boe, did not prosecute the case against Cynthia Carruthers. Anthony Barnes, just three years out of law school, had been given the assignment. Juries do not like lawyers who talk down to them; Anthony Barnes could not have done that had he tried. Mild-mannered, pleasant and inoffensive, with boyish good looks and an open, candid expression, he seemed so honest I began to wonder whether he might just be the biggest liar I had ever met. Like nearly everyone else of his generation, he talked twice as fast as he should.
The first witness was the first witness for the second time; the lead witness in the first trial for the murder of Lucas Fairweather was the lead witness in this. The same way he had done before, the coroner described how the chancellor had been “bludgeoned to death” by a blow from a marble statue to the back of his skull. It was almost word for word. I listened, and Carruthers, sitting next to me, listened as well. Finally finished, Barnes took his seat.
“You wish to examine the witness?” asked Judge Douglas in a lackluster voice while he stared up at the ceiling.
I did not rise from my chair; I did not say anything. Douglas took a deep, weary breath, a sigh of disgust. His eyes moved, but farther along the ceiling, not down to me.
“Question, counselor - Do you have one?”
“Oh, were you talking to me?” I replied as I slowly got to my feet. “I thought you must be talking to yourself.”
The large, ungainly head of Christopher Douglas twisted around. He stared at me through the tiny slits of his eyes.
“When I ask you a question, you stand up and answer it!” he instructed in a voice that threatened to break.
I smiled.
“My apologies, your Honor, but I thought at first, when I saw you looking up like that, that you might be talking to God. The last thing I would ever do is interrupt someone’s prayer.”
Those snake-like eyes grew more narrow, and more lethal, still. His head sank deeper into his hulking shoulders. He started to berate me for my insolence, to lecture me on this ill-considered act of defiance, but, changing his mind, turned instead to the jury.
“You may have heard of him, he’s very famous, Antonelli. There is a line he likes to use. He used it with you during jury selection, a line he quotes from Blackstone. He does that, quotes long dead people no one remembers anymore. It makes it seem that he must know what he is talking about. The line - ‘It’s better that ten guilty men go free than that one innocent man be convicted’ - he would know about that. He’s made a career out of doing just that - helping guilty men go free! But not in this courtroom, not so long as I’m on the bench. In my courtroom the guilty get punished and only the innocent go free.” He looked at me again. “Do you wish to ask any questions of the witness?”
I smiled again.
“No, your Honor; no questions of this witness. But I do have one for you: Did I understand you correctly? - You really do believe that at least the innocent should go free?”
His thick lips stretched down hard at the corners, his fat nostrils flared. He stared pure hatred at me.
“Call your next witness,” he said, finally
Anthony Barnes sprang to attention.
“The prosecution calls Melvin Hoskins,” he announced, in a clear, unhurried voice.
Hoskins looked the same, a small man in his forties, with straight black hair parted neatly on the side, but he was not quite as timid as before and not nearly as nervous. His voice no longer quivered when he spoke.
Barnes took Hoskins through the same line of questioning he had been put through before, except that this time all the emphasis was on what, in the first trial, the prosecution had done everything it could to ignore.
“It was your practice to check the chancellor’s office every hour or so at night, when you were on duty?” asked Barnes, standing at the far end of the jury box.
“Yes, that’s right.”
“When you checked - when you opened the door to his office at eleven o’clock - was Lucas Fairweather there?”
“Yes, he was.”
Hoskins kept opening and closing his hands, darting a glance at the jury, as if he could not quite remember whether he was supposed to look at them all the time or not at all. Barnes nodded, encouraging him to relax and take his time.
“When you opened the door, was Lucas Fairweather alone?”
“No, he wasn’t,” replied Hoskins, lurching forward, eager to answer. “There was a woman.”
“Would you please tell the jury what they were doing?”
Hoskins stared down at his hands, which he now clasped together.
“They were together, on the chancellor’s desk, having sex.”
Barnes did not change expression, and he did not look at the jury. He kept his gaze fixed on the witness and continued the conversation.
“Can you describe the woman?”
“She was blonde - that ’s all I saw,” he added with a quick, furtive glance at the jury. “That’s all I saw, and as soon as I saw it, I got out of there and shut the door behind me. It was none of my business what they were doing.”
I was already on my feet, waiting for the prosecution to finish. I was asking my first question on cross before Barnes had returned to his chair at the counsel table.
“None of your business! - Is that what you said?” I asked with a slight grin as I glanced at Hoskins from under lowered eyes. “That it was none of your business?”
I remembered, and he knew I remembered, what he had said the last time I had him on the witness stand. He looked over at the jury, then he looked back at me, waiting for what he knew was going to happen next.
“I don’t want to embarrass you, Mr. Hoskins, but I have to take you back to when we met before, when Alan Boe was on trial for the murder of Lucas Fairweather.” Standing at the corner of the counsel table closest to the jury box, I reached down for the trial transcript I had placed there earlier. “When you testified in that trial….” I looked up at Judge Douglas, sitting with his arms crossed and a baleful expression in his serpent-like eyes. “A trial in which an innocent man was found not guilty, you described what you saw in a slightly different way. You said, and I quote, ‘He had her up on the desk. He was - the chancellor was - fucking the hell out of her! That’s what I saw, and that’s why I shut the door and got out of there and didn’t go back until an hour later!’”
I put the transcript down on the table and smiled at Hoskins, letting him know there was no reason to feel embarrassed. Moving the few short steps to the jury box, I placed my hand on the railing and studied the faces of the jurors as I asked the next question.
“I reminded you how you described what you saw because there is a difference, an extremely important difference, between your two accounts.”
Hoskins gave me a blank look.
“You told Mr. Barnes that you saw the two of them - Lucas Fairweather and a woman you did not really see, only that she had blonde hair - ‘having sex.’ You told the jury in the other trial that ‘the chancellor was fucking the hell out of her.’ My question is which was it: were they having sex, or…?”
He still did not understand.
“In the one case - what you testified today - the jury could easily conclude that you saw a man and a woman making love; in the other case - what you told that other jury - the conclusion could easily be that Lucas Fairweather was committing rape!”
It took a moment, but finally, in the stunned silence of the courtroom, Anthony Barnes understood what I had just done.
“Objection!” he shouted in a voice that, even shouting, managed to seem polite. “The defense is -”
“Sustained!” Douglas ruled before Barnes could even finish. He was furious, stabbing the air with his thick finger as he began to lecture me on what he thought a mortal sin.
“I asked a question,” I said simply.
“You didn’t ask a question; you told the witness, you told the jury, what to think.”
“Then I’ll ask the question a different way: Based on what you saw, Mr. Hoskins, can you swear that Lucas Fairweather was not committing rape?”
The courtroom exploded, the judge went balistic, the prosecutor looked puzzled, and I sat down, stared straight ahead and pretended that none of it had anything to do with me.
The prosecution’s third witness was Oliver Grayson, the lead detective in the case. Barnes did not waste any time. He asked the only important question: he asked if Cynthia Carruthers had confessed to the murder of Lucas Fairweather.
“Yes, she did.”
“And did she put it in writing, and sign her confession?”
“Yes.”
Barnes asked the clerk to hand the witness a document that had been marked as an exhibit. Grayson identified it as the signed confession of Cynthia Carruthers and Barnes asked him to read it to the jury.
“‘I, Cynthia Carruthers, confess that I killed Lucas Fairweather.’”
Barnes turned toward the jury with a look that told them that the case was over, that there was nothing for them to decide. He glanced at me, and for just an instant, letting down his guard, he revealed the smug certainty of his youthful ignorance.
“Your witness, counselor.”
Counselor! I almost laughed out loud. So now we were equals, or really less than that because he was going to win and I was going to lose. He had not yet reached the age of reason and it was a question whether he ever would, the age when after practicing law long enough you learn that the verdict in a criminal case is the least reliable measure of whether an attorney is good at what he does.
“Thank you - counselor,” I remarked, showing affability to mask my laughter. “Detective Grayson!” I fairly shouted, exuding all the cheerful confidence I could invent. “Do you know who the prosecution is calling next, who is going to testify after you? - Alan Boe, the man you were here to testify against before.”
“I heard they were going to call him,” replied Grayson in that rapid, drumbeat voice I still remembered. A slight grin lit up his face. “Never saw anyone quite like him.”
Barnes was halfway out of his chair with an objection before he realized he did not know what, precisely, his objection would be. Sinking back down, he bent forward, waiting for what I was going to ask next.
“With him at least you got your hope.”
“My hope?”
“When he asked you - remember? - how you would feel if he were innocent but still got convicted.”
“I remember. And you’re right - He was innocent and he got acquitted.”
“This is a different trial, detective,” warned Douglas. “Move it along, counselor; I’ve got better things than to do than listen to you reminisce about some trial you won.”
Grayson looked sharply up at Douglas.
“Yeah, well, I’m damn glad he did, won that case, I mean. You may not mind if someone innocent gets convicted, but I sure as hell do, especially if its someone I arrested!”
Douglas’s face went red with rage. He reached for his gavel, as if he were reaching for a weapon, but caught himself in time to hold it in both hands under his chin as if he were thinking about some point of law. He could insult and disparage all the lawyers he wanted, but a police detective, a highly decorated detective, a detective with nothing to fear from a bully in a black robe, was something else again.
“Again, counselor,” he remarked, looking at me as if I had somehow earned his respect, “we need to stay on point.”
I looked at Grayson, and Grayson looked at me. We had become, thanks to Alan Boe, nothing like the adversaries we once had been.
“The confession that you read to the jury. Was that all of it? She did not say anything else?”
“No, that was it; there was nothing more.”
“She confessed to you?”
“Yes, to me.”
“I want to make sure I understand. The defendant, Cynthia Carruthers, asked to see you - no one else? She chose you, and no one else?”
“That’s right. I got a call, was told someone wanted to see me, a woman who had some information about the Lucas Fairweather murder.”
“She asked for you. And she told you she killed Lucas Fairweather. Is that all she said? She didn’t tell you why she did it, how it happened - anything?” I asked, resting my hand on the corner of the counsel table where I stood, just steps from the jury box.
“It was interesting. I asked her, or started to ask her, about what she said she had done, but she told me that was all she had to say.”
“Just that - as her confession states - she killed him?”
“That’s correct.”
I picked up the transcript of the Alan Boe trial and turned to the page where Grayson’s testimony began.
“When Alan Boe was on trial, you were asked about his contention that a woman was there that night. You testified - let me read your response - that ‘we’ve tried, but no one saw her. There isn’t any record of phone calls, email, anything that would give us a clue who she might have been.’ That is the reply you made when the prosecutor asked if you had attempted to find the woman the defendant said he had heard screaming and then had passed on the stairs as he went to help?”
“Yes, that’s what I said.”
“And then you were asked - again by the prosecution - ‘in all your years of experience have you ever heard of someone who has just committed murder screaming for help?’ You replied, ‘No, I don’t think so.’ I set the transcript aside. I could quote from memory what the prosecution had insisted was the only reasonable explanation. “And then, finally, you were asked this: ‘A woman screams for help, and scared to death that the murderer is going to kill her next, runs away. Isn’t that what all the evidence seems to suggest?’”
Crossing my arms, I stared down at the floor and slowly shook my head.
“‘In all your experience….’ Detective Grayson, in all your experience wouldn’t a woman who had just been brutally raped, raped and forced to defend herself against such a brutal, unforgivable act, be expected to scream for help? Wouldn’t a woman put through that kind of violent ordeal run away as fast, and as far, as she could?”
Grayson immediately turned to the jury.
“That is exactly what I would expect to happen.”
“Based on your experience?”
“Yes, based on my experience.”
Chapter Twenty
“I was there today, and you didn’t notice, did you?”
I felt Tangerine’s hand on my shoulder; I heard ice tinkling in the glass she was bringing me. I did not turn around, I did not look up; I stayed where I was, stretched out on a grey cushioned chaise lounge on the back deck, looking out at the sleek white sailboats that seemed not to be moving at all, a still color photograph of twilight on the San Francisco bay.
“I knew you were there,” I replied, finally, as I reached up for the glass she offered. “I did not need to see you; I can always sense when you’re there.”
“Liar!” she cried. “In the middle of a trial you would not notice if I ran stark naked through the courtroom!”
“No,” I remarked, doing everything I could to suppress a grin, “but everyone else would. Probably take them years to get over the excitement. Why don’t you try it sometime? I promise to be your lawyer when they charge you with indecent exposure. I have the defense all ready.
“All ready? What defense is that, Mr. Antonelli?”
“That there was nothing indecent about it, that everyone who saw you do it can’t wait to see you do it again,” I replied, turning just far enough to see the blushing laughter in her eyes.
You didn’t know I was there, did you?” She sat down next to me on the chaise. “I sat way in the back so you wouldn’t see me. I didn’t know if you wanted….”
“You to come? Yes, and no. I’m a little self-conscious, like a schoolboy, for God’s sake, afraid of making a fool of myself in front of the best looking girl he’s ever seen. But then, on the other hand, like that same idiot teenager, convinced that given half a chance he’ll do something so exceptional, so extraordinary, that she’ll suddenly fall as much in love with him as he is with her.”
“Why are you laughing?”
“Because I just realized that I would probably think you were there when you weren’t, do something to impress you, feel real proud about it, and then find out you hadn’t been there at all! And all because when it comes to you I am a complete and perfect fool!”
I drank a little of the scotch and soda and watched a little more the silent sailboats on the bay.
“We should,” said Tangerine, watching as well.
“We will,” I promised. “You were really there today? What did you think?”
“The judge is unbearable, the prosecutor - I’d bet he did well in law school: smart, or rather book-smart; a pupil, not a student.”
I was not sure I followed.
“A pupil does what he has to, studies hard, learns the material, gives back the answers the teacher wants to hear. A student studies hard - even harder - but because he is interested and wants to learn more, he doesn’t always get the best grades. He doesn’t confine himself to what he thinks the teacher wants. Instead of answers, he asks questions.” Shrugged a quick apology. “You went to law school. What am I telling you?”
“They were called ‘grubbers,’ the ones - just like you described - who wanted good grades because they wanted to make money, to join a big firm and become a high-priced specialist. Barnes has a different ambition. He wants to become a well-known prosecutor so he can become a judge or run for office. And maybe he will. He isn’t that bad. He knows what he needs to know; he won’t make any serious mistakes. But, you’re right, there is something missing. I think it is the capacity to have a broken heart.”
Tangerine took a last sip from the glass of white wine she was drinking. She looked at me with the melancholy of nostalgia, the memory of what she used to think she was, or rather, I suppose, of what she used to think she could never be.
