“That’s right, Your Honor.”
Judge Hendrick frowned. “Mr. Vaulding, yesterday we listened to the testimony of Mr. Henson, who was not on your original list of witnesses.”
“We just found him, Your Honor.”
“So I understand. Judging by the service of this subpoena, I gather we are about to be treated to the testimony of another witness not on your list.”
“Again, the information just became known to us, Your Honor.”
“I’m sure that it did. But I must say it’s quite a coincidence for it to happen with such amazing regularity.”
“I assure you it’s not by design, Your Honor.”
“I didn’t say it was. I just remarked on the coincidence. You may take the statement I am about to make as entirely coincidental, also. This is a courtroom, not a sideshow. I intend to see that evidence is presented in an orderly manner. And that it is presented for the benefit of the jury, not for the benefit of the press.”
“Oh, Your Honor,” Vaulding said.
Judge Hendrick held up his hand. “One moment, Mr. Vaulding. I’m not through.” He lifted a newspaper from the top of his bench, turned it around and held it up.
It was a copy of the Daily News with the headline, PISTOL PETE: SURPRISE WITNESS.
Judge Hendrick held up another newspaper.
It was the POST with the headline, PISTOL PETE: HE BOUGHT THE GUN.
“I do not intend to have this case tried in the newspapers,” Judge Hendrick said.
“Your Honor, I’m not responsible for the press.”
“Surprise witnesses make news.”
“I’ve already explained that was not my intention.”
“Maybe not, but this is deplorable. I would like to point out that the jury has not been sequestered.”
“They’ve been instructed not to read the papers.”
“Not to read them, yes. But these are front-page scare headlines. You can’t miss them.”
“They are not my work.”
“That’s not the point. The point is, surprise witnesses and surprise testimony are the type of theatrics that create front page news. And if I found this was being done deliberately, I would not like it. Is that clear?”
“Yes, Your Honor.”
“Good. Now, what with all the surprise witnesses and early adjournments it seems a long time ago, but I believe yesterday morning Mr. Manning was on the stand. His cross-examination was interrupted until he could bring some photos into court. May I ask if he has done so?”
“Yes, Your Honor.”
“He’s present and ready to proceed?”
“Yes, he is.”
“Very well. Let’s bring in the jury and return Mr. Manning to the stand.”
When that had been accomplished, Judge Hendrick turned to Steve Winslow and said, “You may proceed.”
Steve crossed in to the witness. “Mr. Manning, yesterday you were asked to bring into court photographs of the fatal bullet photographed in a comparison microscope with test bullets from the gun, People’s Exhibit Four. Have you done so?”
“Yes, I have.”
“You have those photographs with you?”
“Yes, I do.”
“How many are there?”
“Referring only to the photographs showing the comparison of the fatal bullet to bullets fired from the gun, People’s Exhibit Four?”
“Yes, that’s right.”
“There are five.”
“Five pictures showing that comparison?”
“That’s right.”
“I ask that they be marked for identification as Defendant’s Exhibits A-One-through-Five.”
“Your Honor,” Vaulding said. “I believe those are a prosecution exhibit.”
“Well, the defense is producing them. You chose not to,” Judge Hendrick said. “Mark them Defendant’s Exhibits A-One-through-Five.”
When the exhibits had been marked, Steve picked up the pictures, riffled through them. He selected one, approached the witness.
“Mr. Manning, I hand you the picture marked for identification Defendant’s Exhibit A-Three and ask you what it shows?”
“It shows the comparison of the fatal bullet and the test bullet on the comparison microscope.”
“Which is which?”
“The fatal bullet is the top half, the bullet from People’s Exhibit Four is the bottom half.”
“The bullets are in alignment?”
“Yes, they are.”
“Mr. Manning, I notice scratches on the bottom half not present on the top half.”
“Yes. As I said, those are the scratches made when someone used some sort of etching tool to deface the barrel of the gun.”
“Then these scratches represent marks that do not line up?”
“Naturally.”
“I count four scratches of that nature, is that right?”
“I’m not sure.”
“Then take a look.”
Manning studied the photograph. “Yes. There are four.”
“How many marks do you find that do line up?”
Again Manning studied the photograph. “I count three.”
“Four that don’t, three that do?”
Manning frowned. “That is an unfair way of presenting the evidence.”
“Oh? Why is that?”
Manning hesitated a moment, then blurted out, “You make it sound like a ball score, with my side losing.”
Laughter rocked the courtroom. Everyone broke up, spectators and jurors alike.
Judge Hendrick, sensing everyone needed relief from the tension of the case, gave it a few moments before banging the gavel. “That will do,” he said. “Proceed, Mr. Winslow.”
Steve smiled. “Well-said, Mr. Manning. I’m sorry if I gave that impression. But four to three, that’s what we just counted up, isn’t it?”
“You can’t go by that,” Manning said. “The two things are in no way equivalent. There are four scratches where someone marked the barrel of the gun that prevent us from seeing the scratches that would line up. Despite this, we’re still able to line up three. That does not yield a score of four to three. If the murderer had only scratched the gun barrel twice, would we then have a score of three to two and say the identification won? Not at all. The two things are unrelated. Except, if there were only two scratches made by the file, we could see even more scratches that matched. You see what I’m saying?”
Steve smiled, “Yes, I do, Mr. Manning, but the fact remains you have only three scratches in this photograph that line up.”
“I’ve explained that.”
“Yes, you have. What I want to know is, is that sufficient to make the identification?”
“Yes, it is.”
“Is it, Mr. Manning? Didn’t you testify yesterday that there were individual characteristics and class characteristics?”
“Yes, I did.”
“Well, couldn’t these be class characteristics, common to all Colt,45s?”
Manning hesitated a moment.
Steve’s eyes widened. “Is that right, Mr. Manning? Is that what they are?”
“No, it is not,” Manning said angrily. “And I resent the suggestion. If I hesitated for a moment, it is because I wanted to be absolutely fair. You mentioned class characteristics. There is one of the scratches in the photograph that is consistent with being a class characteristic. I would go so far as to say it is indeed a class characteristic. But there is only one of which I would say that.”
“One of the three?” Steve asked.
“Yes. One of the three.”
“You’re saying now you think that is a class characteristic?”
“Yes, I do.”
“Then that leaves two scratches that are not class characteristics?”
“That’s right.”
“You are now saying two scratches are sufficient for making the identification.”
“No, I’m not,” Manning said. “I’m merely saying the bullets match.”
“But you must have some basis for saying so.”
“I’m saying so on the basis of my examination. If you want to break that down and say I’m going on the basis of two scratches, I suppose you can do so, but that’s not an accurate assessment of the situation. Aside from the scratch we call the class characteristic, there are two scratches that are a definite match. And there is every indication there would be more matches if it weren’t for the defacing of the barrel of the gun.”