Dirkson pointed to a stack of books on the prosecution table. “I have some precedents, Your Honor. If I could just have a moment.”
“Very well,” Graves said.
As Dirkson began citing cases into the record, Fitzpatrick turned to Steve Winslow. “We’re going to lose.”
“I know,” Steve said. “We’re just laying the groundwork for an appeal.”
“I know. But I hate to lose.”
“Stick with me. You’ll get good at it.”
When the arguments were finally over, Judge Graves took a thirty minute recess. When court reconvened, he said, “I have considered the motions carefully. They are denied. These proceedings will continue.
“Now then, with regard to procedure, the witness Kemper was on the stand. I understand he’s been charged with perjury, and is out on bail. Is that right?”
“Yes, Your Honor,” Dirkson said.
“I understand he has not been charged as a coconspirator or as an accessory to this crime?”
“That’s correct, Your Honor. It is possible that he will be, but he has not been so charged at the present time.”
“Very well,” Graves said. “Mr. Winslow. Is it your intention to advise the witness not to answer questions?”
“Your Honor, it is my contention that he should not be on the stand to begin with.”
“I understand that. I have already ruled. I am attempting to expedite this trial without embarrassing your client or infringing upon his rights. After all this time, I would hate to call the jury in and immediately send them out again. But we’re not going to argue this in front of them, so I’m attempting to determine if we can resolve this matter now.”
“If I might interpose, Your Honor,” Dirkson said. “The point is moot. I have no further questions for the witness, Kemper.”
“You have concluded your direct examination?”
“I have.”
“Mr. Fitzpatrick. Do you intend to cross-examine the witness?”
“No, I do not.”
Judge Graves nodded. “That simplifies things. We’ll bring back the jury and call the witness to the stand. You can both announce that you have no questions and the witness will be excused. Bring in the jury.”
Fitzpatrick was on his feet. “I assume Your Honor will explain to the jury the presence of Steve Winslow?”
A trace of a smile crossed the judge’s lips. “I will try,” he said dryly.
That sally produced a roar of laughter that Judge Graves made no attempt to quiet. After all, the jury was not present.
After the jurors had filed in and been seated, Judge Graves addressed the jury. “Ladies and gentlemen of the jury. I would like to apologize for the delay. As I explained at the outset of the trial, there are numerous occasions when we have matters to discuss outside your presence. Sometimes they relate to this trial, sometimes they are matters relating to other trials. In some instances, it is merely because one of the parties is indisposed and cannot be present in court. As I told you, it is not your place to speculate as to what goes on in the courtroom during the time you are in the jury room.
“At any rate, we are ready to resume the trial. Before we do so, I call your attention to the presence of another attorney in the courtroom. Mr. Steve Winslow has joined the defense as associate counsel for Marilyn Harding. He is seated at the defense table and will be taking part in the trial.”
The jurors looked at each other. Steve Winslow grinned. He knew that despite Judge Graves admonition, each and every juror was wondering just what the hell had gone on since court had adjourned yesterday afternoon.
While this was going on, Douglas Kemper entered the courtroom and took the stand. He did not make a good impression. His manner was furtive and sheepish. He carefully avoided looking at Marilyn Harding.
Judge Graves, though aware that Kemper’s examination was through, still went through the charade. “Mr. Kemper, I must remind you that you are still under oath. Mr. Dirkson, you may proceed.”
Dirkson stood up. “Thank you, Your Honor. I have no further questions of the witness.”
Graves nodded. “Very well. Mr. Fitzpatrick?”
Fitzpatrick stood up. “No questions, Your Honor.”
Graves nodded. “The witness is excused.”
Kemper got up and left the stand.
The jurors, who had waited all day to see only that, found it funny. Some began to giggle.
Judge Graves gave them a few minutes to blow off steam, then banged the gavel. When the court was quiet, he said, “Mr. Dirkson. Call your next witness.”
Dirkson stood up. He looked at the jury. Then at the defense table. Then back up at the judge. His smile was rather smug. “The People rest, Your Honor.”
36
Fitzpatrick heaved his bulk around the small conference room in the courthouse like an angry whale.
“Son of a bitch!” he said. “Son of a fucking bitch!” He poured himself a glass of water and gulped it down. “I don’t need this,” he said. “My specialty is corporate law. I’ve got myself some juicy plum clients. Chief among them, Phillip Harding. He dies, and I inherit his daughter. She inherits a murder. Suddenly I’m in court. But even then I’m all right, because I’ve got a genuine, first-class, made-to-order red herring, scapegoat, fall guy, to take the rap. Only he turns out to be the attorney for my client’s lover, and suddenly I’m fucked. Suddenly I’m in court with a smug-ass district attorney who just wants to play games with me. ‘Your Honor, I rest my case.’ Jesus Christ, he hasn’t made a case. What the hell’s he doing resting now?”
“It’s good move,” Steve said. “If we don’t put on a case, he’s given the jury enough to convict. If we do put on a case, he’s still got a whole bunch of witnesses left for rebuttal.”
Fitzpatrick threw up his hands. “What case? We have no case. You talked to Marilyn Harding. You know what she’s like. We don’t dare put her on the stand.”
“No argument there.”
“It’s a no-win situation. If we don’t put her on the stand, she’s a dead duck. If we do put her on the stand, Dirkson will tear her apart.”
“All right,” Steve said. “What’s your plan?”
Fitzpatrick stared at him. “Plan? What plan?”
“All right. What’s Dirkson plan?”
“What you just said. It depends what we do. If we don’t put on any defense, we’ve lost. If we put Marilyn on the stand, he’ll tear her apart.” Fitzpatrick shrugged. “If we try to make a case without putting her on the stand, it’s like you said. He’s got a whole bunch of witnesses saved up for rebuttal.”
“Right. And what’s he gonna hit us with?”
“Everything.”
“Yeah, but pick one. What’s he gonna hit us with?”
Fitzpatrick pursed his lips. “Best guess, the Phillip Harding murder. He alluded to it in his opening statement, hasn’t mentioned it since. I’d imagine if we make any showing at all, if we manage to swing the sympathy of the jury in the least, he’ll come back at us with that. He’ll bring in the Phillip Harding murder and try to poison the minds of the jurors with the thought that Marilyn is a habitual killer.
“Yeah,” Steve said. “That’s what I think too. And if he does, what are you going to do?”
Fitzpatrick looked at him in surprise. “Fight it, of course. Try to keep it out of the record. Once Dirkson gets that in the minds of the jurors, we’re sunk.”
“Right,” Steve said. “And what do you think Dirkson expects you to do?”
Fitzpatrick frowned. “What is this, twenty fucking questions? You wanna make a point, make it. Frankly, your Socratic method’s getting to be a pain in the ass.”
“All right. Sorry. Look, we agree Dirkson’s going to try to bring in the Phillip Harding murder. You plan to fight it. You think Dirkson doesn’t know that? Of course he does. And if he knows it, he’s prepared for it. You saw how many precedents he cited in opposition to my motion? Well I’ll bet you a nickel he’s got twice as many to cite to back up his contention that evidence of a prior crime may be introduced to show motivation. And you know what, I think he’s probably right.”