“Exactly, Your Honor. And may I point out further that the case has now reached the point of rebuttal and surrebuttal. If counsel wishes a continuance in order to serve this subpoena, counsel should make a formal motion, supported by an affidavit stating exactly what it is he expects Dr. Callison to state once she is sworn as a witness. Quite obviously, counsel can’t do that, because counsel is simply engaged in exploring the possibilities of the situation by calling every witness he feels may ultimately be called as a witness for the prosecution in the higher court.”
Mason, smiling urbanely, said, “Well, if the Court please, we can debate that point a little later. Right at the moment, I have another witness I wish to recall for further cross-examination.”
Burger’s face darkened. “There you are, Your Honor. Counsel is simply stalling. He undoubtedly has sent out to have Dr. Callison subpoenaed, and now he’ll recall witness after witness for cross-examination, simply stalling around until Dr. Callison can get here.”
“What witness do you wish to recall for further cross-examination?” Judge Erwood asked.
“Lt. Tragg, Your Honor.”
“This motion is addressed to the sound discretion of the Court. You have heard the charge made by the district attorney that the purpose of this motion is simply to gain time by a long, drawn-out cross-examination, Mr. Mason.”
“Yes, Your Honor.”
“Are you prepared to deny that charge?”
Mason grinned and said, “Not in its entirety, Your Honor. I hope to have Dr. Callison here by the time I have finished with Lt. Tragg’s cross-examination. But I will further state to the Court that I am not asking to recall the witness for further cross-examination simply to gain time. I have a definite purpose in mind.”
“What is that purpose?” Judge Erwood asked.
“I think, if the Court please,” Mason said, “the purpose will become readily apparent as soon as I start questioning the witness. Naturally, I do not want to give my hand away by showing the prosecution my trump cards.”
Judge Erwood frowned thoughtfully, then said, “Lt. Tragg will come forward for further cross-examination. The Court will state that this cross-examination must be brief and to the point, and the Court will not permit what is generally referred to as a fishing expedition on the part of counsel.
“Lt. Tragg, come forward, please.”
Lt. Tragg resumed the witness stand.
“Proceed, Mr. Mason,” Judge Erwood said. And, from the manner in which he was leaning forward, it was quite evident that the judge intended to enforce his ruling that there be no attempt on the part of Mason to stall for time by a long, drawn-out cross-examination.
Mason said, “You have described what you found at the scene of the murder, Lt. Tragg, and you have described what you found in the studio where the body was found?”
“Yes, sir.”
“I will now ask you, Lt. Tragg, if it isn’t a fact that when you examined the study or office of Meridith Borden, you found something which had considerable significance in your own mind, but which has been suppressed at this examination.”
Tragg frowned.
“Your Honor, I resent that,” Hamilton Burger said. “I think that constitutes misconduct. Nothing has been suppressed.”
“You’re willing to state that?” Mason asked Hamilton Burger.
“Certainly, sir!”
Mason grinned at Lt. Tragg’s evident discomfiture. “Let’s hear what the witness has to say in answer to the question,” he said.
Judge Erwood started to make some impatient rejoinder, then, turning to look at Tragg’s face, suddenly checked himself and leaned toward the witness.
Tragg said uncomfortably, “I’m not certain that I know what you mean by the word suppressed.”
“Let me ask it this way,” Mason said. “Isn’t it a fact that something was found which you felt had evidentiary value and that you were instructed to say nothing about it while you were being examined in court?”
“Your Honor, I object,” Hamilton Burger shouted. “This is not proper cross-examination, it is not proper surrebuttal, no proper foundation has been laid, the witness hasn’t been asked who is supposed to have instructed him to say nothing, and the article hasn’t been described.”
Mason, now sure of his ground, smiled and said, “I will supplement that with another question, if the Court please.”
“You withdraw your prior question?”
“Yes, Your Honor.”
“Very well, go ahead.”
“Isn’t it a fact, Lt. Tragg, that when you searched the study of the decedent, Meridith Borden, you found a concealed microphone leading to a recording device of some sort, and isn’t it a fact that on that recording device you found a recording of the conversation between Meridith Borden and George Ansley? And isn’t it a fact that Hamilton Burger suggested to you that you should make no mention of that recording in the preliminary examination?”
“Your Honor,” Hamilton Burger said, “we object on the ground that there are several questions here, that this is not proper cross-examination, not proper surrebuttal, and—”
Judge Erwood interrupted. “Ask your questions one at a time, Mr. Mason.”
Mason said, “When you were examining the premises, you looked through the study of Meridith Borden, Lt. Tragg?”
“Yes, sir.”
“Did you find a concealed microphone in there?”
“Yes, sir.”
“Did that microphone lead to, or was it connected with, a recording device of some sort?”
“Yes, sir.”
“Did you find a record on that recording device?”
“Yes, sir.”
“Did that record contain a recording of the complete conversation between George Ansley and Meridith Borden?”
“I don’t know.”
“It contained, or purported to contain, a recording of that conversation?”
“Well, a recording of a conversation.”
“And isn’t it a fact that Hamilton Burger told you that you were not to mention this recording at the preliminary hearing?”
“Now, just a moment, Your Honor,” Hamilton Burger said. “Before the witness answers that question, I want to interpose an objection that it is argumentative, that it is incompetent, irrelevant and immaterial, that it is not proper cross-examination, that it is not proper surrebuttal, and that it calls for hearsay testimony.”
“As the question is now asked,” Judge Erwood said, “it may call for hearsay evidence. However, in view of the prosecution’s indignant denial that anything had been suppressed, it would seem that this objection is somewhat technical. However, the Court will sustain the objection on the ground that it is hearsay. That objection, Mr. Mason, is to the question in its present form.”
“I understand, Your Honor,” Mason said, noticing the emphasis which Judge Erwood placed on the last words. “I will ask the question this way: Lt. Tragg, why did you not mention this recorded conversation when you gave your testimony here in court?”
“Objected to as incompetent, irrelevant and immaterial, and not proper cross-examination,” Hamilton Burger said.
“In the present form of the question, the objection is overruled.”
“Well, I wasn’t asked about it.”
“You were asked about certain things you found in the room in question?”
“Yes, sir.”
“And you described the things you had found?”
“Yes, sir.”
“Now, in your own mind, Lieutenant, was there an intention to avoid mentioning this tape recording unless you were specifically asked about it?”
“That is objected to, Your Honor,” Hamilton Burger said. “It is argumentative, it is not proper cross-examination.”
“The objection is overruled!” Judge Erwood snapped. “As the question is now asked, it is eminently proper because it tends to show bias on the part of a witness. Questions are always pertinent for the purpose of showing bias. Answer the question, Lt. Tragg.”