“Yes, sir.”
“Now was there a spool of tape recording which entered into those negotiations?”
“Yes, sir.”
“What was the nature of that recording?”
“It purported to be a recording of a conversation which had taken place between Mr. Fritch and Mr. Ned Bain, the father of the defendant.”
“And what happened?”
“Mr. Mason and Mrs. Atwood came to my apartment. They wanted to hear that recorded conversation. I played it for them.”
“How did you come to have possession of it?”
“Mr. Fritch gave it to me for that purpose. He thought that it would best serve his own interests to have Mr. Mason and Mrs. Atwood acquainted with the details of his claim, and as soon as he knew Mr. Mason had been retained he knew he was going to have to make out a strong case if he was going to get any money. He knew he had to put all his facts on the table.”
“And what happened?”
“I had assured Mr. Fritch that while I would not represent him in any way I would stake my reputation on the fact that nothing would happen to that tape recording.”
“Did something happen to it?”
“It did.”
“What?”
“It was ruined.”
“How?”
“I don’t know how. I certainly wish I did. I gather, however, that it was some form of a radio-active polarization brought about by a clever subterfuge on the part of Mr. Mason.”
“In what way?”
Judge Kaylor glanced at Mason. “Surely,” he said, “we are now entering a field of surmise and something that seems to me to be definitely outside the issues in this case.”
“If the Court please, it is showing the motivation,” Moon explained, “and it is also laying the foundations for the introduction of this spool of tape recording in evidence.”
“Well, there seems to be no objection,” Judge Kaylor said. “Proceed. Answer the question.”
“I don’t know how Mr. Mason did it,” Brogan said. “He had a device with him. He pretended it was a hearing aid. I don’t know what it was. I am assuming that it was a polarizing device which enabled him to erase the recorded tape as it was being played.”
“And what happened?”
“Mr. Mason asked me to play the tape back a second time. When I did there was nothing on it, the tape was completely blank.”
“What did you do?”
“I assured Mr. Mason, of course, that I felt it must be something that was wrong with the machine, and stated that I wished time to have the machine fixed.”
“Why did you state that it was something wrong with the machine?”
“I simply couldn’t bear the thought of having something happen to that tape and have to face Mr. Fritch and confess to him that I had been outwitted in the matter. I knew that Mr. Fritch wouldn’t accept that explanation, that he would be terribly angry.”
“Now at that time did you think this recorded tape was the only tape recording of that conversation?”
“I did. Yes, sir.”
“Did anything happen to change your mind?”
“It did. Yes, sir.
“What?”
“I was forced to report to Mr. Fritch what had happened. At that time I learned that the tape recording which I had, and which I assumed to be an original, which I may say Mr. Fritch had repeatedly assured me was the original and only tape recording, was, in fact, a dubbed copy of another master tape recording.”
“And where was this master tape recording?”
“In the possession of Mr. Fritch.”
“And what did Mr. Fritch tell you about it, if anything?”
“In the presence of the defendant or in the presence of Mr. Mason as Counsel for the defendant?” Judge Kaylor asked.
“Well, no, Your Honor. I am trying to show—”
“No objection, Your Honor. No objection whatever,” Mason said. “Let him go into this to his heart’s content.”
“Well, of course, if there’s no objection, the Court ordinarily permits evidence to go in. I am assuming that Counsel is familiar with facts that the Court does not know, and therefore there probably is some underlying connection here, but it seems to me that to expect this defendant to be bound by a conversation which took place between Mr. Fritch and this witness, and of which she presumably had no knowledge, is somewhat stretching a point.”
“It’s quite all right,” Mason said.
“Very well,” Judge Kaylor snapped. “Answer the question, Mr. Witness.”
Brogan said, “Fritch reported to me that he had anticipated something might happen to the genuine recorded conversation which he had, and therefore he had given me a dubbed copy so that I could point out to Mrs. Atwood the position in which she found herself, while he had retained the original so that nothing could happen to it. He said that he would make me another copy.”
“What was your reaction to this?”
“I was very much embarrassed because I had assured both Mr. Mason and Mrs. Atwood that this recording which I had was the original, and was the only one in existence, that I had Mr. Fritch’s assurance that this was the case.”
“But Mr. Fritch himself told you that he had another original recording?”
“He did. Yes, sir.”
“Did you have occasion to see that recording?”
“I did. Yes, sir.”
“Was there anything about it that was distinctive?”
“Yes, sir.”
“What?”
“There were numerous splices in the tape itself, that is, indications that two or perhaps more pieces of tape had been spliced together.”
“And did Mr. Fritch make another copy or another dubbed duplicate of that original?”
“Yes, sir.”
“And what did you do?”
“I was very much disturbed because I realized I had been jockeyed into a perfectly untenable position.”
“In what way?”
“If representatives of the Bain family had made any arrangements with Mr. Fritch to secure the dubbed copy, the original would still have been just as much of a menace as ever.”
“I take it that there was something in the recorded conversation which you felt the Bain family would not care to have made public?”
“Yes, sir.”
“And do you know from your own observations that Mr. Fritch did on the sixth of this month have the original, which you have referred to as having been spliced and showing evidences of having been spliced?”
“Yes, sir.”
“And where was that?”
“In his apartment.”
“Where did he keep it in his apartment?”
“I don’t know. He went and got it for me and showed it to me. He also showed me a tape recorder on which he could make duplications.”
“Now then, you had an appointment with Mr. Mason for nine o’clock on the morning of the seventh?”
“Yes, sir.”
“And with Mrs. Atwood?”
“Yes, sir.”
“Were you there at your apartment at nine o’clock?”
“Not at nine o’clock. No, sir.”
“Will you kindly tell the Court just what you did?”
“Well, I was very much interested in trying to learn the reactions of Mr. Mason and Mrs. Atwood. I was particularly interested in trying to find out the method by which Mr. Mason, without ever having had his hands on that spool of tape recording, had managed to cause the conversation on that tape recording to vanish into thin air.”
“So what did you do?”
“I had an engagement for a poker game on the evening of the sixth. I deliberately planned to stay all night at that poker game and to be about five or ten minutes late in getting to my apartment.”
“Why did you do that?”
“I wanted to find out what Mr. Mason and Mrs. Atwood said about that tape recording. I wanted to know what their reactions were. I wanted to find out what their confidential tho
ughts were on the subject.”
“So what did you do, if anything?”
“I deliberately planned to absent myself from my apartment. I left my door unlocked. I left a note pinned to the door in an envelope addressed to Mr. Perry Mason. That note told him that I was playing poker and it might be I would be delayed, that he was to enter my apartment and wait for me.”
“What else did you do?”
“I planted a tape recorder with a hidden microphone.”
“Where?”
“So that it would record any conversation which took place either in front of the door of the apartment or in the apartment itself.”
“And did you make some arrangement to have that microphone turned on?”
“I did. Yes, sir.”
“How? In what way?”
“By use of an electric clock.”
“Can you explain that a little more fully?”
“There are clocks that are run by electricity. They keep accurate time. You can get an attachment on those clocks which is similar to an alarm. When a predetermined time comes that attachment will turn on an electric current, actuating any device that you want. I set this clock for eight-fifty, so that at ten minutes to nine the clock would automatically turn on a tape recorder and start it running. I left a thirty-minute spool of tape on there so that I could know everything that was said by persons who were standing in front of my door or who had entered my apartment. I left the transom open and the microphone was in the ceiling of the room just inside the transom.”
“And how long would that recording device continue to operate?”
“Until twenty minutes past nine. It would start at eight-fifty. It was a thirty-minute spool. I expected to be there before nine-twenty. I expected to give them about five or ten minutes to indulge in conversation and then I would show up.”
“Your absence therefore was deliberate?”
“Yes, sir.”
“And did you show up?”
“Yes, sir.”
“When?”
“About nine-five.”
“And you found Mr. Mason there?”
“Mr. Mason, Mrs. Atwood and Mr. Mason’s secretary, Miss Street, I believe her name is.”
“And you entered the apartment?”
“Yes, sir.”
“And what happened?”
“Then was when I discovered the body of J. J. Fritch.”
“Now then, did you subsequently turn on that tape recorder to see what conversation had taken place?”
“I did. Yes, sir.”
“I am going to ask you if there was anything in that conversation about a previous discovery of the body of J. J. Fritch.”
“There was. Yes, sir.”
“And were there any comments made by Mr. Mason in connection with that discovery?”
“Yes, sir.”
“Advice?”
“Yes, sir.”
“Did Mr. Mason say anything about searching for a spool of original tape recording which he was satisfied Mr. Fritch had?”
“Yes, sir. He did.”
“Do you have that tape recording here?”
“Yes, sir.”
“Is it possible to recognize the voices?”
“It is. Yes, sir.”
“If the Court please,” Moon said, “I wish at this time to introduce this tape recording. I have here a machine which will play that tape recording, and I think the Court will be interested in hearing it.”
“Any objection?” Judge Kaylor asked.
“Lots of objection,” Mason said. “This doesn’t have anything to do with the crime. It doesn’t bind the defendant, Hattie Bain, in any way. She wasn’t present at that time. She didn’t hear what was being said. Therefore she can’t be bound by it.”
“Her attorney was there,” Moon said.
“At that time I wasn’t her counsel,” Mason pointed out. “You can’t bind her by something I have said before I was retained to represent her. Otherwise you might as well go back ten years and find something I said.”
“I think we’re entitled to put this in evidence. It’s highly significant,” Moon commented.
“You may put it in evidence under certain circumstances,” Mason said. “You would have to ask one of the persons present as to whether a certain conversation did not take place. If that person admitted that conversation that’s all there is to it. Your tape recording can’t be introduced. If the person denied that conversation you’d then be in a position to introduce the tape recording to impeach that person provided you could prove that the clock worked, that the tape recording actually was made covering the period between eight-fifty and nine-twenty, and, further, that one of the voices on the tape recording was recognizable by anyone as the voice of the party whom you sought to impeach. Even then the recording would be evidence only of impeaching circumstances and not of a fact.”
“I think that’s the law,” Judge Kaylor said.
“Oh, if the Court please,” Moon said angrily. “I expect to show by this tape recording that Mr. Mason himself, knowing that J. J. Fritch was dead, proceeded unlawfully to invade and enter the apartment of J. J. Fritch for the specific purpose of illegally and unlawfully looking for this spliced tape recording.”
“Therefore, you mean that I murdered Fritch?” Mason asked.
“You may ultimately become involved as an accessory,” Moon snapped.
“Now what tape recording do you want to introduce?” Judge Kaylor asked.
“Right now the one made in front of Brogan’s apartment, showing the discovery of the body and Mason’s statement that he was going to make an illegal search.”
“The objection to that is sustained,” Judge Kaylor ruled. “None of the participants in that conversation are being tried in this case, nor is it claimed that conversation took place in the presence of the defendant.”
“I also want to introduce the tape recording Brogan has testified to as being the Fritch original tape recording.”
“You’ll have to lay a foundation first.”
“I thought I had done so, Your Honor.”
“This witness has merely stated there was such a tape recording. He hasn’t identified it.”
“If the Court will listen to it, the Court will become convinced that the tape recording contains proof of its own authenticity. It lays its own foundation.”
Judge Kaylor shook his head. “Some witness will have to identify it.”
“Well, Brogan can state that this recording is similar in appearance to the one Fritch had.”
“Look out of the window,” Mason said. “You’ll see a thousand automobiles in the parking lot below. They all of them are ‘similar in appearance.’ You’ll find some that are identical models. If you’re going to identify them you’re going to have to get into individual characteristics rather than overall group characteristics.”
“You don’t need to tell me how to practice law!” Moon flared angrily.
“Someone does,” Mason said, and sat down.
Judge Kaylor said, “That will do, Counselor. The Court does not wish to have any sarcastic personal interchanges between Counsel.”
“I was merely replying in kind,” Mason said.
“Well, I don’t want Counsel to reply in kind. I want this hearing kept on an orderly plane. Now then, gentlemen, I have listened patiently to this line of testimony. I think some witness will have to identify that tape recording if it’s to be introduced. I suggest you pass this phase of the case for the present.”
“That’s all for now, Mr. Brogan,” Moon said. “I’ll recall you after you’ve listened to this tape recording.
Brogan got up to leave the stand.
Mason said, “I want to cross-examine.”
“Go ahead, Mr. Mason,” Judge Kaylor said.
Perry Mason arose from his chair, walked around the end of the counsel table and stood waiting for Brogan to look at him.
Brogan glanced up quickly, saw Mason’s hard eyes, features whi
ch might have been carved from granite, and hastily averted his glance.
The silence became significant.
“Proceed,” Judge Kaylor said.
“Did you understand that Fritch had robbed a bank?” Mason asked.
“I gathered there was a possibility that had been the case.”
“Did you know him at the time of the bank robbery?”
“I-I think I did.”
“Did you know how much Fritch wanted in return for his silence about the details of that bank robbery?”
“I knew he wanted a substantial sum of money.”
“You were willing to act as intermediary and negotiate for the payment of that sum of money?”
“Not in the sense your question implies.”
“How then?”
“I was willing to do what I could to help Mr. Bain—the Bain family.”
“Did you know the Bains?”
“Not personally.”
“Why were you so willing to help them?”
“Because I thought they were being—well, I thought they needed—”
“You started to say you thought they were being blackmailed, didn’t you?”
“Yes.”
“They were being blackmailed, weren’t they?”
“Well, it depends. It was rather a peculiar situation taken by and large.”
“And you were willing to participate in that blackmail?”
“No, sir.”
“You were willing to collect the money from them and turn it over to Fritch?”
“Well that, of course, is a bald statement. That excludes my motives, which, I think, were rather laudable.”
“Just answer the question,” Mason said. “You were willing to collect money from them and turn it over to Fritch?”
“Well, yes, if you want it that way.”
“In a blackmail proposition?”
“I thought it amounted to blackmail.”
“You gathered that Fritch was in a position to give certain information to the bank which would make it appear that money which had been stolen from the bank had been used by Mr. Bain to purchase property which subsequently became very valuable through the development of oil, and that Mr. Bain had used this money with the knowledge that it represented the loot taken in a bank robbery. Is that correct?”
“That’s substantially correct.”
“Now then, during the night when the murder was committed you were not in your apartment?”
The Case of the Green-Eyed Sister Page 19