“That’s right.”
“Now then,” Dirkson said. “Referring to the conversation that you subsequently had with the defendant, what did she tell you she did after she went home?”
“I think she said she watched TV.”
“Did she tell you she got a message on the answering machine from the decedent, Frank Fletcher?”
Cunningham glared at the district attorney defiantly for a moment, then lowered his eyes. “Yes, she mentioned that.”
“And what did she say she did about it?”
“Nothing.”
“Nothing?” Dirkson said. “Are you telling me she got this message from Frank Fletcher, then sat around all evening and did nothing about it?”
“I didn’t say she did nothing about it,” Cunningham said. “As a matter of fact, she went down there.”
“And when did she do that?”
“As far as I know, it was around ten o’clock.”
“Is that right?” Dirkson said. “She didn’t tell you about going there earlier, right after she got the message?”
“No, she did not.”
“She didn’t tell you she went down there, arrived around eight o’clock and found the decedent, Frank Fletcher, very much alive? She didn’t mention shooting him with a gun?”
“No, she did not.”
“She didn’t tell you about calling her attorney and reaching her attorney’s secretary, Tracy Garvin, and Tracy Garvin rushing to the office to meet her by cab?”
“Absolutely not.”
“And,” Dirkson went on, as if Cunningham had not answered, “Did she tell you about meeting her attorney, Steve Winslow, who showed up, assessed the situation, and advised her to go back uptown and take a taxi straight to the office, go upstairs, find the body, and then call the police as if she’d just arrived? She didn’t tell you about that?”
“Objection!” Steve Winslow cried, lunging to his feet. “Your Honor, I object! The question is viciously leading and suggestive and assumes facts not in evidence. I assign the asking of it as prejudicial misconduct.”
“The facts are in evidence,” Dirkson said.
“Same objection. Same assignment of misconduct.”
Judge Wylie banged the gavel. “That will do. I don’t want to hear another word. Not one word. From either side. Attorneys-in my chambers.”
46
“Now then,” Judge Wylie said, “what’s this all about?”
“It’s very simple,” Steve said. “The prosecutor has just committed prejudicial misconduct by stating facts which are not in evidence and which cannot be proven. His statements constitute prosecutorial misconduct. In fact, they are so prejudicial I doubt if they can even be remedied by an admonition of the court. I ask for a mistrial.”
Dirkson looked ready to explode. “That’s absurd, Your Honor. As I said before, these facts are in evidence. Look at what we have before the court. We have the defendant’s statement that she found the petty cash drawer open, when we know for a fact is was shut-indicating she must have been there at an earlier time to have seen it open. That’s for starters. Then we have the testimony of the cab driver who saw the defendant on West 48th Street between the hours of eight and eight-thirty that night. At which time, according to the defendant’s own statement, she was at home watching TV.”
“How does that add up to the fact I sent her home to manufacture an alibi?”
“Do you deny it?” Dirkson demanded.
Steve Winslow shrugged. “It’s not my place to deny such a charge. Any more that it’s your place to make it.”
Judge Wylie held up his hand. “One moment, gentlemen. Mr. Winslow, if you would hold on for a moment, I would like to get Mr. Dirkson’s point of view. Now then, Mr. Dirkson, while I appreciate the point you have made about the petty cash drawer, and the testimony of the cab driver regarding the defendant being seen on 48th Street-while all that is very suggestive and while certain inferences may be drawn from it, let us be very careful here. One inference that should not be drawn in front of the jury is the fact that the defense attorney is guilty of suppressing evidence, manufacturing evidence or conspiring to conceal a crime. Unless you have concrete evidence to that effect, any intimation of wrongdoing on the part of the defense attorney could indeed constitute prejudicial misconduct.”
“But there is evidence,” Dirkson said.
“What evidence?”
“The defendant’s own admission.”
“What admission?”
“To the witness. Larry Cunningham. I have it on good authority that the defendant confided to Mr. Cunningham exactly what I’m stating now and what I stated in court.”
“Good authority? And what authority is that?”
“I have a confidential source.”
“That’s a euphemism for anonymous tip, Your Honor,” Steve Winslow said.
“Is that right?” Judge Wylie said. “Are you going on an anonymous tip?”
“I’m going on what I know to be true,” Dirkson said, irritably. “And what you and everybody else in the courtroom knows to be true. Steve Winslow sent her home to have her manufacture evidence by taking a taxi back. Go ahead and ask him. I dare him to deny it.”
“What do you have to say to that, Mr. Winslow?”
“My client is innocent until proven guilty. I am innocent until proven guilty.”
Judge Wylie frowned. “I should like a little better answer than that.”
“With all due respect, Your Honor, I don’t choose to make one. The district attorney is making an accusation with no foundation whatsoever. I don’t need to respond to such a charge. If I did-if I had to answer to such unfounded charges-well, then the prosecutor would be free to make them at will. He could sit there accusing me of infraction after infraction until he found one I’d actually committed. In which case, were I an honest man who didn’t wish to lie, I would have to refuse to answer on the grounds an answer might tend to incriminate me. At which point he would know what to charge me with.”
Steve Winslow smiled. “But that does not happen to be the law. The district attorney can’t pester me with charges on a whim to see which of them I’ll deny. And he sure as hell can’t make them in front of the jury without prejudicing the case against my client. If he does so, it should constitute a mistrial.”
“See?” Dirkson said. “He didn’t deny the charges. I told you he wouldn’t.”
Judge Wylie took a breath. “Mr. Dirkson. Mr. Winslow’s point is well taken. Unless you have foundation for those charges, he has no need to respond to them.”
“I have foundation, Your Honor. I told you. The defendant admitted the whole thing to Larry Cunningham.”
“Then why don’t you ask Mr. Cunningham?” Steve Winslow said.
Dirkson’s face purpled. “I asked Mr. Cunningham!” he said. “That’s the question you objected to, and that’s why we’re in here!”
Judge Wylie nodded. “Mr. Dirkson is certainly right on that score.”
“Well, then let’s not be hasty,” Steve said. “The way I see it, the matter has arisen. It’s prejudicial, and so inflammatory a judicial admonition to ignore it would not suffice.
“But, on second thought, I don’t want a mistrial. Then the defendant could be arrested and tried again. I don’t want that. I want the case to go to the jury. There’s no evidence against her, they’re going to acquit, so why should I interfere with that?”
Judge Wylie looked at him. “You’re withdrawing your objection?”
“That’s right.”
“And your assignment of misconduct?”
“Certainly. If the district attorney has any evidence against me, let’s hear it now.”
“One moment,” Judge Wylie said. “Mr. Winslow, it would seem almost as if you had been dared into this. I would be very unhappy if it turned out you had waived any of the defendant’s rights in order to settle a personal grudge.”
“I assure you that is not the case, Your Honor.”
“I should also point out that if any of the prosecutor’s allegations turn out to be true, you could expect to find yourself disbarred.”