“Therefore, Your Honor, to permit a conviction to stand which is based on the same essential facts on which the defendant is presently charged, would deprive the accused of due process of law under the fourteenth Amendment of the United States Constitution. To permit this conviction to stand would cast upon the defendant a presumption of guilt, when and if he takes the witness stand to testify in his own behalf.”
Louis Gorman was on his feet in an instant.
“The People object, Your Honor,” he said angrily. “The prosecution sees no reason at all to abandon the conviction as it now stands. The Defense is merely trying to muddy the water, to throw confusion into the case. It is an old tactic with my learned opponent. What differences does it make whether the old conviction stands or not? The prosecution would also like to point out that Section 40.20 of the new Criminal Procedure law specifically provides that a former conviction — in this case for assault — does not bar a prosecution for homicide when the victim dies. The law is clear.”
Ross bent down in response to a tug on his jacket from Billy Dupaul. The young man was frowning at him.
“What the devil difference does setting aside that conviction make at this late date, for God’s sake? I spent those four years at Attica and they’re sure as hell not going to give them back to me! Don’t get cute with Gorman over nonessentials. I wasn’t serious the other day. I know he’s tough. And dangerous.”
“Leave Gorman to me,” Ross said in a low voice.
“But what’s the purpose, for God’s sake?”
“Stick around and see,” Ross said. He straightened up to find the judge looking from him to Gorman’s angry expression.
“Gentlemen,” Judge Waxler said, “may I suggest a conference at the bench?”
Gorman, joined by Varick, moved closer to the bench. Ross paused to give Billy Dupaul a quick wink and then walked over to join the others before the judge. The stenotypist leaned back in his chair, flexing his fingers, thankful for the rest.
“Your Honor,” Gorman said angrily, “the law is clear in the matter. I don’t know what my opponent is up to, but I suspect, as I said before, it’s merely to throw dust in everyone’s eye. What difference does it make in this case whether a conviction imposed eight years ago is set aside or stands? The defendant served his term and satisfied the State. I certainly hope the defense doesn’t expect a lesser plea on the murder charge in case he succeeds in having that assault conviction set aside, because the prosecution won’t hear of it!”
Judge Waxler frowned down at Gorman.
“Mr. Gorman,” he said in a soft voice, “when I did my homework for this trial I thought I saw your name on the bill as the defense attorney in the case we are discussing now. Isn’t that so?”
“Well, yes, Your Honor, but only for a short time. I resigned—”
Ross smothered a grin.
“Be that as it may,” the judge interrupted smoothly. “I don’t believe it’s within the ethics of the profession for you to actively prosecute in a case where you were once part of the defense, whether your participation was a minor one or of short duration.”
“I’m not the prosecuting attorney, Your Honor,” Gorman said. “Mr. Varick, here, of my office, has that assignment. I’m merely here in a sort of advisory capacity—”
“In that case, Mr. Gorman, may I suggest that this conference will not require your presence, and that you might return to the prosecution table and let Mr. Varick get on with his task.”
“But Your Honor!”
“Yes, Mr. Gorman?” Judge Waxler looked down at the disconcerted man calmly.
“Nothing, Your Honor.”
White-faced, Gorman swung about and walked back to the prosecution table. He sat down and glared at some papers on the table, not wishing the bench to note his discomfiture. Judge Waxler, however, was paying him no attention. Paul Varick turned to Hank Ross.
“I honestly don’t see what difference your request makes, Mr. Ross.”
“You will shortly,” Ross said, and smiled at the younger man.
“I can only tell you this,” Varick went on. “I know that Mr. Gorman — our office, that is, the District Attorney’s office — was prepared to be generous and allow Dupaul to plead to a lesser charge, such as manslaughter. We were willing to even go so far as to recommend an indeterminate sentence of twenty years. Dupaul would be eligible for parole on that charge in about eight years.”
He shrugged, looking unhappy.
“But now, after this — this, well, cavalier application of Mr. Ross, I seriously doubt if Mr. Gorman — I mean, if the District Attorney’s office — will still be willing to consider a lesser plea.”
Ross smiled at him gently. “I don’t remember saying anything about wanting a lesser plea.”
Varick frowned. “You realize the position you will be putting your client in, I hope, Mr. Ross. If it’s all or nothing, he’s taking quite a chance. If and when he’s convicted, Dupaul will have to serve a life sentence on the charge as constituted.”
“Paul, tell Mr. Gorman — your office, rather — that we appreciate his concern for my client, but that we do not want any deals. We’ll take our chances on the charge as it now stands. Murder in the first degree.” Ross looked up at the judge. “And we still press our motion to set aside the assault conviction on the basis of the arguments already presented, Your Honor.”
Judge Waxler turned to look down at Paul Varick.
“What say you, Mr. Prosecutor?”
“Just what Mr. Gorman—” Varick coughed to hide his embarrassment. “I mean, Your Honor, that the law is quite clear. Section 40.20 of the new Criminal Procedure law does provide for cases such as this one.”
“Thank you for your interest in helping me with the law, Mr. Varick,” Judge Waxler said with gentle sarcasm, “and you are quite right. In cases such as this the law is, indeed, quite clear. It allows the judge on the bench to make his own decision based on the merits of the motion.”
He smiled briefly at the red-faced young prosecutor. “Gentlemen, the conference is ended. I suggest you return to your places.”
Varick walked back to the prosecution table and sat down abruptly, instantly beginning a whispered consultation with Gorman. The court stenotypist yawned and flexed his fingers, prepared to go back to work again. Ross stood by his chair, facing the bench.
“Your Honor, I should like to press my motion.”
“Motion granted,” Judge Waxler said. He turned as he continued, giving the prosecution table the force of the reasons for his decision. “The November 27, 1964, conviction for assault is set aside in the interests of justice. Elementary fairness does not permit the prosecution to press the indictment and force the accused to proceed to trial under the cloud of a conviction based on the same facts. The acts now charged relate to facts that were previously charged, and are now merged in the new homicide charge. The conviction must be set aside.”
His gavel banged once, settling the matter. Paul Varick was on his feet in the same instant.
“Your Honor,” he said, “now that my worthy opponent had won a Pyrrhic victory, the People ask that this case be set for trial as soon as possible.”
Judge Waxler turned his head. “Mr. Ross?”
Ross hesitated a moment and then looked up confidently.
“The defense is ready at any time, Your Honor.”
Judge Waxler swung about. “Clerk, what does the calendar look like?”
The Clerk of the Court knew the docket by heart. “Any time in the next week, Your Honor.”
“Good,” Judge Waxler said. “I set the date of October twenty-eighth, three days from today.”