The Chief Justice nodded, his white wig swaying. “There should be no objection to that. Let’s have the screen itself brought in, then.”
Higgs smiled. “Ah, but my lord-there is no print on the screen now.
Now the Chief Justice frowned, irritation edging in on his confusion. “What more do you want than the raised print itself, and the photograph of it?”
“The print was not ‘raised,’ my lord, but rather lifted by a piece of rubber. And we only have Captain Barker’s word that the print came from that screen at all-this needless destruction of the evidence in its best state has not been satisfactorily explained, and the print should not be admitted into evidence.”
The Chief Justice’s expression was grave. “Do you mean to imply that the prosecution’s print is a forgery?”
“I do, sir.”
The stirring in the gallery was broken by the Attorney General rising to protest. Hallinan asserted the reliability and propriety of lifted fingerprints, explaining that Captain Barker, called to Nassau at short notice, had not brought a fingerprint camera, incorrectly assuming one would be available at the scene.
“Could you not have sent a telegram to your office,” the Chief Justice asked the witness, “and had your special camera arrive by the next plane?”
“I suppose I could have done that, your honor,” Barker admitted. “But I did not.”
It looked like Higgs had them, but the Chief Justice ruled that the fingerprint-Exhibit J-would be allowed in as evidence.
“Mr. Higgs, your argument speaks to the weight of the evidence, rather than its admissibility,” the Chief Justice said, “and I will so instruct the jurors.”
Court was dismissed for the day: it was a tie game at the half.
The following morning, Barker was back in the witness box, and Higgs sat rather placidly while Hallinan finished up with his presentation of the fingerprint evidence; his expert witness was vague about where exactly the de Marigny print had been lifted from the screen, which had been brought into court and stood to the left of the bench.
I wondered if Higgs would sic his pit bull, Callender, on this key witness. But Higgs rose from his chair and tackled Barker himself.
“You’re not prepared,” Higgs said in an astounded tone, even as he moved aggressively toward the witness box, “to say that the fingerprint came off the area marked in the second panel? You yourself marked it!”
“I’m certain the print came from the top portion of the panel I marked. Not necessarily the specific place marked.”
“Captain Barker, step down, would you, and walk to the screen and point out the area marked in blue pencil at the top of the panel.
Barker stepped down and moved smoothly past the Chief Justice and went to the Chinese screen. He studied the top panel, looking closely at the blue line which he’d previously indicated had been made by him.
“Your honor,” Barker said numbly, “the blue line on this screen wasn’t made by me. There’s been an effort to trace a blue line over the black line that I made myself on August first in the presence of the Attorney General.”
As the courtroom murmured, the Chief Justice came down from the bench, joined by Higgs and Hallinan, who stood with Barker examining the blue line.
“I see no black pencil line,” I heard Higgs say conversationally.
And Hallinan, in a whisper, said to Barker, “Look there, man-those are your initials….”
Court was called back to order, the Chief Justice took the bench again, and Barker, back in the witness box, did something remarkable.
“I–I wish to withdraw what I just said,” Barker almost stammered. “On closer examination I located my initials by the blue line.”
Higgs, moving restlessly up and down before the jury, was smiling. No great point of evidence had been made, but Barker’s confident demeanor was shattered: Higgs had him on the ropes, groggy.
“You consider yourself a fingerprint expert?”
“I certainly do.”
“Have you ever, in the many cases in which you’ve given expert testimony, introduced as evidence a lifted fingerprint without first photographing the actual impression of that print on the object in question?”
“Certainly-many times.”
“Name one.”
Barker paused. Gestured nervously. “I would need an opportunity to check my records….”
“I see. When you forgot your fingerprint camera, did you make any effort to get one here in Nassau? We understand the RAF has several.”
“Actually, no.”
“Did you wire Miami and send for one?”
“You know I didn’t.”
“When you dusted the bloody handprints in Sir Harry’s room, didn’t you know-fingerprint expert that you are-that they would be obliterated?”
“I knew it was a possibility.”
“Were they in fact obliterated?”
“Yes.”
“Well, did you at least measure these bloody handprints, to ascertain whether they came from a large hand or small?”
“I suppose I could have.”
“I put it to you that there were other prints on that Chinese screen, which were destroyed by the humidity.”
“That’s true.”
“If the accused was there that night, why weren’t his fingerprints similarly destroyed?”
“We got lucky, finding that one print.”
“Lucky? Is that the appropriate word? Perhaps you should say, ‘It was a miracle that we found it.’”
Melchen, seated in the courtroom, stood; his face was green and desperate. He rushed outside, pushing aside spectators seated on folding chairs in the aisle. At the press table, Gardner stood to look out the nearby window and started grinning. Faintly, despite the churn of fan blades overhead and the buzzing flies, the sound of vomiting could be heard.
“Did it ever occur to you, Captain Barker, that the burns on the accused’s face and arms could have been caused by sunburn?”
Barker glanced over at de Marigny, who sat smiling, eating this testimony up; his pale face mocked Barker.
“Sure,” Barker told Higgs, “but I saw how white he was and ruled that out.”
“Really. Were you not aware that the accused is a yachtsman, and constantly in the sun?”
Barker hadn’t realized de Marigny’s current complexion had to do with spending many weeks indoors of late-in the Nassau Jail.
“I, uh, was struck by the absence of sunburn in a yachtsman.”
Higgs hammered Barker like that all day. He put Barker and Melchen’s slipshod investigative practices-in particular the botched fingerprint work-under a merciless magnifying glass. He made Barker admit that he hadn’t told Melchen about the print until Bar Harbor.
“Captain Barker, I would like you to look at two photographs of fingerprints lifted experimentally by defense expert Leonard Keeler from the area on the screen from which you have testified Exhibit J came.”
Barker took the photographs.
“Can you explain why Exhibit J is so perfect a print-without the wood-grain markings in the background exhibited by these other lifted prints?”
“Well…perhaps these prints were not lifted from the same precise area as Exhibit J.”
“Would you like to experiment yourself, Captain Barker? Would you like to step down and take various sample prints from the Chinese screen, in full view of the court? Perhaps you will be ‘lucky’ again.”
“I, uh…don’t think that would be appropriate.”
“I see. There is, however, a pattern of sorts in the background of Exhibit J, is there not?”
“Yes.”
“Is there anything on the background of that screen that resembles these circles?”
“No, sir.”
“When you were lifting prints from that screen on the morning of July nine, did Captain Melchen bring the accused upstairs?”
“I understand that he did.”
“And didn’t you go to the door of the room where Captain Melchen was interviewing the accused, and ask, ‘Is everything okay?’”
“I did not.”
“Wasn’t the accused’s latent print obtained from some object in that room, possibly the drinking glass Captain Melchen asked de Marigny to hand him?”