“Not him. When he went to the studio, he was to be left alone. You didn’t disturb him in that studio.”
“He kept the door locked?”
“It had a spring lock on it.”
“Sometimes he worked with models?”
Drew said, “If the Court please, this is not proper cross-examination. It calls for matters which are entirely extraneous, and unquestionably represents simply a fishing expedition on the part of counsel.”
“The Court is inclined to agree with that statement,” Judge Erwood said. “The objection is sustained.”
“That’s all,” Mason said.
“No further questions,” Drew said.
Drew looked at the clock. “If the Court please, it is approaching the hour of the noon adjournment. I feel that we have presented this case expeditiously. That is our entire case. We feel we have proved the elements necessary to bind the defendant over.”
Judge Erwood said, “I think you have more than established them. You could have quit half an hour ago and still have been entitled to an order binding the defendant over. It is, therefore, the order of this Court that the defendant be bound over to—”
“May the Court please,” Mason said, getting to his feet.
Judge Erwood frowned his annoyance. “Yes, what is it, Counselor?”
Mason said, “The defense has the right to put on testimony.”
“Certainly,” Judge Erwood said. “I am not trying to foreclose you from putting on a defense, if you desire, although I may state that in hearings of this sort it is rather unusual for the defense to put on a case. Very frankly, Mr. Mason, since there is no jury present, I feel free to state that I don’t know what defense you could possibly put on which would keep the Court from binding the defendant over. You might or might not have something that would raise a reasonable doubt in the mind of a jury, but as far as this Court is concerned, the evidence is simply overwhelming that a murder was committed and that there is probable cause to believe that the defendant committed the crime.”
“Except for one thing, if the Court please,” Mason said. “There is one point which is very much in doubt.”
“I don’t see it,” Judge Erwood said somewhat testily.
“The time element,” Mason said. “If my client committed the murder, he must have done so before nine o’clock.”
“The evidence doesn’t so show.”
“Well, the evidence can be made to so show,” Mason said, “and we propose to show that Meridith Borden was alive and well a long time after nine o’clock.”
Judge Erwood stroked his chin. “Well,” he said at length, “that, of course, would be a perfect defense if you could establish it, Mr. Mason.”
“We propose to establish it.”
“How long will you take?”
“At least all afternoon,” Mason said.
Judge Erwood said, “I have rather a full calendar and I had anticipated this was a routine matter that would perhaps consume an hour, certainly not more than the entire morning.”
“I am sorry, Your Honor, I’m quite certain that I didn’t give the Court any impression that such would be the case.”
“No, you didn’t,” Judge Erwood admitted. “I guess perhaps it was due somewhat to a misunderstanding. These matters usually are disposed of rather promptly. However, I have no desire to foreclose the defendant from putting on a case. I will state this, Mr. Mason, proof of an alibi will have to be very, very clear and very, very convincing in order to keep the Court from binding the defendant over.
“You are a veteran trial attorney and are, of course, aware of the disadvantages to a defendant of putting on a defense at a preliminary examination. Now then, in the face of that statement of the Court, do you wish to proceed?”
“I do.”
“Very well,” Judge Erwood said. “I will make one more statement, which is that I have noticed in the press that in certain cases where you have appeared in a preliminary examination there have been dramatic developments, developments which in my opinion have not been justified.
“I mean no personal criticism by this. It is simply my opinion that Courts have been far too lenient with counsel in permitting a certain type of evidence to be brought into the preliminary hearing. I do not intend to foreclose any of the rights of the defendant, but, on the other hand, I certainly do not intend to open the door to a lot of extraneous matter.”
“Very well, Your Honor,” Mason said. “I wish to address my proof to the Court on the theory that if the defendant killed Meridith Borden, the crime must have been committed before nine o’clock in the evening. I think I can show conclusively that the crime was not committed prior to nine o’clock.”
“Very well,” Judge Erwood said. “The Court will take a recess and—”
“Just a moment. If I may have the indulgence of the Court,” Mason interrupted, “I dislike to interrupt, but there is one matter that may be of great importance to the defendant.”
“What is that?”
“The body of Meridith Borden was found in his photographic studio. The inference would therefore be that after his interview with the defendant, Borden went to his photographic studio to take photographs, and that therefore someone must have been with him. Borden would hardly be taking photographs of himself.”
Judge Erwood frowned. “That reasoning, Mr. Mason, is predicated entirely upon your belief in whatever story the defendant may have told you. If you propose to base your alibi on evidence of this kind, you are wasting your time.
“For all the Court knows, Meridith Borden could have been talking with the defendant, George Ansley, in the photographic studio. Borden might have been taking George Ansley’s picture.
“I am assuming that the defendant is prepared to testify that his interview took place in the study, but this Court would pay absolutely no attention to such testimony. A jury might or might not believe the defendant. As far as this Court is concerned, on a preliminary examination where it appears that a murder has been committed with the murder weapon found in the defendant’s possession, the Court is certainly not going to take the defendant’s unsupported word as proof that he was not in the room where the murder was committed.”
“I understand that, Your Honor,” Mason said, “and I am not asking the Court to take his word. I would, however, like to ask the deputy district attorney if it isn’t true that there was evidence in the studio that certain photographs had been taken that evening. If so, I wish to have those photographs produced in evidence.”
Drew said testily, “We don’t have to disclose all our evidence to the defense.”
“But were there no exposed plates?” Mason asked. “Nothing, perhaps, in the camera?”
“There were exposed plates,” Drew said, “and there was an exposed plate in the camera; but there is no indication as to when the plate was exposed.”
“If the Court please,” Mason said, “I feel that some of this can be connected up. If those exposed films have not been developed, I feel that they should be developed so that we can see what is on them.”
“Have those films been developed?” Judge Erwood asked Sam Drew.
“They have, Your Honor.”
“I take it,” Judge Erwood said, “that if there were photographs of the defendant, those films or prints made from those films would have been introduced in evidence.”
“That is quite correct,” Drew said testily. “The decedent, at the time of his death, was carrying on a camera contest with some of his cronies. They were having a somewhat good-natured contest to see who could get the best calendar-girl photograph. It is our opinion that the films which were in the camera had been photographed either during the day or during the preceding day. We don’t feel that there was any significance attached to Mr. Borden’s presence in the photographic studio, except that he probably went there to get these films out of the camera and develop the exposed films which he had. He probably was rather anxious to get started on his work in this contest.”