“We won’t go into that, Mr. Mason,” Judge Lennox said, “and as far as this Court is concerned, Mr. District Attorney, Mr. Mason is not actually disqualified. If you have subpoenaed him as a witness, and if he is called as a witness he’ll have to take the stand. If he takes the stand he’ll be subject to the same rules of examination as any other witness. Now proceed with your case.”
“Very well, Your Honor,” Hamilton Burger said. “My first witness will be the autopsy surgeon.”
In swift, kaleidoscopic sequence of routine witnesses, Hamilton Burger laid the foundation for the murder charge: the discovery of the body of George Fayette, the nature of the bullet wound, the recovery of the bullet, the microscopic characteristics of the bullet for the sake of subsequent firearms identification.
“I’ll now call Carlyle E. Mott.”
Mott took the witness stand and the district attorney qualified him as an expert on firearms and ballistic evidence.
“Mr. Mott, I call your attention to the bullet, People’s Exhibit A, which has been identified as the fatal bullet which brought about the death of George Fayette. I will ask you if you have examined that bullet.”
“I have.”
“Through a microscope?”
“Yes, sir.”
“You have made photographs of that bullet?”
“Yes, sir.”
“Have you been able to determine the type of weapon from which that bullet was discharged?”
“I have.”
“What weapon was that?”
“The weapon which I have here in my hand. A Smith and Wesson police special, thirty-eight caliber, with a three-inch barrel.”
“We ask that that be introduced in evidence as People’s Exhibit B,” Hamilton Burger said.
“No objection,” Mason said.
“Cross-examine,” Burger snapped.
“No questions,” Mason said.
Hamilton Burger, caught completely by surprise, blurted, “You mean you aren’t going to ask him about—” He stopped abruptly, catching himself as he realized what he was saying.
“Call your next witness,” the judge said.
A distinctly annoyed Hamilton Burger called as his next witness the officer who had arrested Morris Alburg as he stepped from a taxicab in front of Mason’s office.
The officer testified to making the arrest and to finding the revolver in Morris Alburg’s possession, the revolver from which the bullet had been fired which had killed George Fayette.
“Cross-examine,” Burger said.
“How do you know this is the same gun?” Mason asked the officer.
“Because I took the number of the weapon, sir.”
“Did you make a note of that number in writing?”
“Certainly.”
“Where?”
“In my notebook, a notebook I always carry with me.”
“You know what that number is?”
“Certainly.”
“You can give us that number?”
“Yes, sir. It is S64805.”
“You’ve remembered it all this time?”
“Yes, sir.”
“Then you didn’t need to write it down, did you?”
“I wrote it down in order to be safe.”
“And this is the same number you’ve written down?”
“Yes, sir.”
“You may know it’s the same number that’s on the weapon, but how do you know it’s the same number you wrote in your notebook?”
“Because I looked at the notebook just before I came to Court to make sure.”
“Oh, then you weren’t sure?”
“Well, I was just guarding against the possibility of any mistake.”
“And you arrested Morris Alburg on the morning of the third?”
“At about nine o’clock. Yes, sir.”
“And took the gun from him at that time?”
“Yes, sir.”
“When did you write the number in your notebook?”
“I’ve already told you. That’s the number of the gun. I wrote it down so there’d be no mistake.”
“When you arrested Morris Alburg?”
“Approximately, yes.”
“What do you mean by approximately?”
“At almost the same time.”
“Within five seconds of the time you made the arrest?”
“Certainly not.”
“How many seconds?”
“I can’t answer that. I don’t compute time that way. That’s the number of the gun I took from the defendant, Morris Alburg.”
“What did you do with that gun?”
“I put it in my pocket as evidence.”
“Then what?”
“I gave it to the district attorney, who in turn gave it to the ballistics expert, Carlyle E. Mott.”
“And it was at Mott’s suggestion that you wrote the numbers in the notebook?” Mason asked, his manner casually matter-of-fact.
“That’s right.”
“At the time the gun was given to him?”
“No, when he returned it to the district attorney with his report. He said that it would be necessary to identify this gun at all stages of the proceedings.”
“So then you wrote down the numbers on a gun which Mott handed you?”
“Well, it was the same gun.”
“How do you know?”
“I could tell by looking at it.”
“What distinctive markings were on this particular gun which enabled you to distinguish it from any other Smith and Wesson gun of similar caliber and design?”
The witness was silent.
“Don’t you know?”
“If I could look at the gun,” he said, “I think I could tell you.”
“Certainly,” Mason said sarcastically. “You’d pick up the gun and turn it over and over, hoping you could find some scratch or some identifying mark, but tell us now what identifying mark was on the gun.”
The officer looked bewildered for a minute before answering, “I can’t recall.”
The judge turned to the discomfited witness. “You took a revolver from the defendant Alburg, is that right?”
“Yes, sir.”
“And you turned that over to the district attorney?”
“Yes, sir.”
“Who, in turn, turned it over to the ballistics expert?”
“Yes, sir.”
“And sometime later, when the ballistics expert returned that weapon to the district attorney, with a report that it was the weapon which had fired the fatal bullet, it was suggested by the ballistics expert that it would be necessary to have an absolute identification of this weapon in order to enable it to be introduced in evidence?”
“Yes, sir.”
“And you were then asked how you could identify this gun. Is that right?”
“Well, generally.”
“Is that right, or isn’t it?”
“Mr. Mott suggested that I should write the number in my notebook.”
“So you took out your notebook and wrote it down at that time?”
“Yes, sir.”
“And was there then some discussion about what your testimony would be?”
“Well, not at the time. That was later.”
“Call your next witness,” Judge Lennox said to Hamilton Burger, and his manner was distinctly frigid. “This witness is excused.”
Burger braced himself for a new attack and said, “My next witness will be Arthur Leroy Fulda.”
Fulda took the stand, was sworn and testified to his conversation with Morris Alburg, to his installation of the sound equipment in the Keymont Hotel, to the conversations that he heard and the recordings that were made.
The witness identified half a dozen plastic discs, explained how they were fed into a machine in relays so that there was a continuous transcription of conversation.
“Now then, Your Honor, I move to introduce these discs in evidence,” Hamilton Burger said.
“I’d like to examine the witness briefly on this particular point,” Mason said.
“Very well,” Judge Lennox said. “Go right ahead.”
“How do you know these are the same records that were left in the hotel room?”