The Gray Drake

by Charles Cutter

  The plumber with the missing finger looked up at Skinner.

  “You’re not going to be on the jury. Go back to work. Mr. Cullen, call the next juror.”

  “Herbert Loomis.”

  Loomis was as thin as Kuchinski was thick. He was wiry, with Popeye forearms, bulging eyes, a pushed-in nose, and a hairline that looked like it was in a hurry to get to the back of his neck. The bailiff swore him in.

  “Mr. Loomis,” Cullen said, “where do you live?”

  “415 High Street,” he said. “Grayling.”

  “What is your occupation?”

  “I own North Country Water Sports.”

  “Thank you, Mr. Loomis,” Cullen said. “The prosecution has no objections.”

  “Your witness, Mr. Lafayette.”

  Burr jumped up before Skinner could say anything. “What does North Country Water Sports do, Mr. Loomis?”

  He cleared his throat. “Canoe livery,” he said.

  “Canoe livery?” Burr said. “You mean you rent canoes?”

  “That’s right.”

  “To tourists?”

  “That’s right.”

  “On the Au Sable?”

  Loomis nodded.

  “Let the record reflect that Mr. Loomis answered in the affirmative,” Burr said. “Your Honor, I move that Mr. Loomis be disqualified on the grounds that he may be prejudiced against fly-fishing and, by extension, The Gray Drake and my client.”

  “Why is that, Mr. Lafayette?” Skinner looked a little peeved.

  “Your Honor, it is well known that canoe liveries and fly fishermen do not get along.”

  Cullen stood up. “Your Honor, everybody knows everybody around here.”

  “I object to this juror,” Burr said.

  Skinner rolled his eyes. “You are excused, Mr. Loomis.”

  “Linda Germany,” the bailiff said.

  “At least we have a woman,” Burr said, mostly to himself.

  Linda Germany had short brown hair, glasses, too much makeup and looked like she hadn’t missed a meal in quite some time.

  The bailiff swore her in.

  “Mrs. Germany, where do you live?”

  “Just up the road,” she said. “952 High Street.”

  “And your occupation?”

  “Housewife,” she said.

  “Thank you,” Cullen said. “The prosecution has no objection to this juror.”

  Skinner looked at Burr.

  “Thank you, Your Honor.” Burr stood up and walked to Mrs. Germany.

  “Mrs. Germany, are you married?”

  “Yes.”

  “And what does your husband do for a living?”

  “He’s a bookkeeper.”

  “Who does he work for?”

  “Crawford Oil and Gas.”

  “Respectfully, Your Honor, I ask that you disqualify this juror.”

  “Mr. Lafayette, I don’t see any connection between this potential juror and your client.”

  “Your Honor, it is well known that The Gray Drake is opposed to oil and gas development near the Au Sable. This is prejudicial to Mrs. Germany’s husband’s livelihood.”

  “That connection is too tenuous. Mrs. Germany, you are impaneled.”

  “The Shepherds are all wrong about drilling around here,” Linda Germany said.

  “I beg your pardon,” Skinner said.

  “There’s no oil that’s going in their precious river,” she said.

  Skinner waved his gavel at her and then pointed it down the aisle. “Mrs. Germany, you are excused.” The bookkeeper’s wife lumbered off.

  “Counsel, approach the bench,” Skinner said.

  Burr stood up.

  “You too, Jack.”

  The two adversaries stood before Judge Skinner. “Just who would you like to see on this jury, Mr. Lafayette?”

  Burr wanted an all-women jury, preferable women who had been cheated on. That and jurors who didn’t have anything against The Gray Drake. He thought that could be a tall order. “Your Honor, I’d like a fair and impartial jury. Preferably made up of people who have not had business dealings with my client, who do not have philosophical differences and who are fair-minded.”

  “Mr. Lafayette, fair-minded and impartial is possible. Jurors who haven’t had business dealings or philosophical differences with The Gray Drake may be difficult.”

  By the end of the day, the jury had been impaneled. Seven men and five women. One alternate, also a woman. Two of the women were divorced, one of the men. Burr couldn’t ask them if they’d been cheated on.

  It was far from perfect, but it was better than he had feared.

  * * *

  Cullen paced back and forth in front of the jury, then stopped at the side of the jury box closest to the prosecutor’s table. “Ladies and gentlemen of the jury, there are few crimes worse than a woman killing her husband. The crime is even worse when the husband and wife have a child, especially a young child.” He stopped talking and looked each juror in the eye, one by one. “And that is exactly what this woman has done.” He pointed at Lizzie, then turned back to the jury.

  “On the night of June 21st, 1989, under the cover of darkness, Elizabeth Shepherd lured her husband off the South Branch, and she murdered him. She struck him with a canoe paddle. Then she wrapped the anchor chain of his boat around his ankle and put him in the river. She tried to make it look like he drowned. But Quinn Shepherd didn’t drown.” Cullen stopped again. He looked at the gallery, then the jury. They were all on the edge of their seats.

  He pointed at Lizzie again. “That woman, Elizabeth Shepherd, Quinn Shepherd’s wife, murdered him.” Another pause. “She murdered him with a canoe paddle.”

  Everyone in the courtroom knew exactly what the case was about, but Cullen had played it like a true showman.

  “I object, Your Honor.” He had no earthly reason to object, but Cullen was doing such a bang-up job, Burr felt he had to put a stop to it.

  Judge Skinner looked at him. “On what grounds?”

  “Your Honor, the prosecutor’s comments are inflammatory.”

  “Mr. Lafayette, this is an opening statement in a murder trial. Overruled.”

  Burr looked over at the jury. They had calmed down. His job done, Burr sat down. “Yes, Your Honor.”

  Cullen continued. “As I was saying, the defendant, Elizabeth Shepherd, murdered her husband. She tried to make it look like an accident, but it was not.” Cullen glared at Lizzie. “It most certainly was not.”

  Lizzie looked directly at Cullen, just as Burr had instructed. She sat up straight but without looking defiant. Then she looked down. Perfect, Burr thought.

  Cullen turned back to the jury. “Not only did the accused murder her husband, she made her son fatherless.” Cullen paused. “Fatherless.”

  Lizzie shook her head. “No,” she said softly.

  “Ladies and gentlemen,” he said with all the gravitas he could muster, “I am going to prove to you beyond a reasonable doubt that Elizabeth Shepherd murdered her husband. In cold blood. I am going to prove that she committed murder in the first degree. Murder in the first degree.”

  Burr thought Cullen was off to a good start. He started to tap his pencil. Cullen looked over, then walked toward him. He lined himself up between Burr and the jury. Cullen turned his back to Burr and faced the jury so they couldn’t see Burr.

  I was wondering when you’d figure that out.

  “Ladies and gentlemen,” Cullen said again, his back squarely to Burr. “First degree murder has three requirements. First, there must be a death. Second, the defendant must have intentionally killed the deceased. And, third, the defendant must have had a plan to kill her husband.” Cullen stopped again. He eyed the jurors, one by one. “I will show you that Elizabeth Shepherd intended to kill he
r husband. It was no accident.” He paused. “Do you know why she killed her husband?” Cullen paused again, then paced in front of the jury.

  As much as he hated to admit it, Burr thought it was a nice touch.

  “I’ll tell you why,” Cullen continued. “She was jealous. That’s right. Elizabeth Shepherd was jealous.” Cullen took a deep breath. “Quinn Shepherd wasn’t perfect. Far from it. But is that a reason to kill him?” Another pause. “Of course not. Elizabeth Shepherd saw her husband with another woman that night. First at The Gray Drake. Later that night, in a bar. The sight of her husband with this woman enraged her.”

  “That’s not true,” Lizzie said. Burr put his hand on Lizzie’s shoulder.

  Cullen pointed at Lizzie again, then turned back to the jury. “She was jealous, and she killed her husband. She had a plan. She ambushed him on the river. She lured him to shore, then she struck him with a canoe paddle. She tried to make it look like he drowned. That was her plan.” Cullen stood between Burr and the jury again. He turned back to Lizzie and pointed at her again, careful to let the jury see her but not Burr. “I will prove that she murdered her husband.” Cullen walked up to the jury box. He smiled at them as if they were his flock. And when I do, I ask that you find the defendant guilty of first-degree murder.” Cullen walked back to his table and sat down.

  “Mr. Lafayette,” Judge Skinner said.

  Burr stood. He pulled down the cuffs of his shirt that didn’t need pulling down. He straightened the knot on his tie that didn’t need straightening. All was as it should be.

  Skinner shook his head but didn’t say anything.

  Burr walked halfway to the jury box. “Ladies and gentlemen, my name is Burr Lafayette, and I represent Lizzie Shepherd.” He wouldn’t call her the defendant or the accused. He wanted Lizzie to have a personal relationship with the jury.

  “Ladies and gentlemen,” he said, “a tragedy has occurred. A tragedy.” Burr paused. It was his turn to look each juror in the eye, one by one. “A tragedy,” he said again. “The tragedy is that Lizzie has lost her husband. And her son has lost his father. That is the tragedy.” Burr took another step closer. “But there is another tragedy.” He put his hands in the pockets of his slacks.

  The jury leaned toward Burr, who looked down at his shoes, then scuffed the faded linoleum with one foot. He looked up again. “The tragedy is that this man . . . ” Burr stepped toward Cullen. He pulled his right hand out of his pocket and pointed at Cullen, a foot away from the prosecutor’s nose. “This man has taken a tragedy and accused Lizzie Shepherd of murder.”

  Cullen sat bolt upright. Whatever trace of a smile he may have had disappeared. He pushed Burr’s hand away and jumped to his feet. “Your Honor, this is outrageous.”

  Burr stepped back to the jury. “This was an accident,” Burr said. “A terrible accident. Quinn Shepherd drowned. But it was an accident. That’s what Clyde Fowler said. Do you know who Clyde Fowler is?” Burr was sure they all did, but he’d tell them anyway. “Clyde Fowler is the Crawford County Medical Examiner. The coroner. He investigated the accident, and he performed the autopsy.” Burr looked at his shoes again. He counted to ten, then looked at the jury. “And do you know what he found? He found that Quinn Shepherd drowned. He drowned.” Burr poked at the jury with each word. “Quinn Shepherd wasn’t murdered. Dr. Fowler said it was an accident. An accident.” Burr swept his right arm toward Cullen. “Sometimes in life there are accidents. And this is one of them.” Burr turned away from the jury. He took two steps toward Lizzie, then turned back to the jury.

  “Ladies and gentlemen,” he said, “the Shepherds did not have a perfect marriage. Do any of us?” The jurors shook their heads. Burr had them. If I could stop right here and now, I would win, he thought. “Theirs was not a perfect marriage, but it was a good marriage. Quinn did what he loved. He fished for a living. Lizzie did what she loved. She cooked. At the place where she grew up. In the place she loved. And the most important thing was,” Burr paused, then, “they had a son together. A beautiful son, Joshua. He’s six years old.” Burr stepped toward Cullen and pointed at him again. “This man will try to string together one improbability after another. One after another. And when he’s done, he’ll try to convince you that this thread of improbabilities is murder. Well, it’s not!” Burr said, clapping his hands.

  Cullen jumped, the jury jumped. Skinner and everyone else jumped.

  “Stop it, Lafayette. This is a court of law, not a theater,” the judge said.

  “Yes, Your Honor.”

  Actually, Burr did think it was theater.

  “This was an accident, not murder.” Burr walked back to his table and sat down.

  “The State calls Brian Bilkey.”

  Burr jumped up. “Your Honor, may I approach the bench?”

  “Counselor, Mr. Cullen has just called his first witness.”

  Burr walked around to the front of his table. “Your Honor, at the preliminary examination, Mr. Cullen established that Mr. Bilkey found Mr. Shepherd’s body. In the interest of time, the defense is willing to stipulate to that.”

  Burr had to do everything he could to keep Bilkey from testifying about the leeches and waving his arms. It would be devastating to start the trial with this image in the jury’s mind. He had to keep this theater out of the beginning of the trial, which was exactly what Cullen wanted to do.

  The prosecutor launched himself out of his chair. “I object, Your Honor. The defense has no right to interfere with my witnesses.”

  “Your Honor, may I approach the bench?” Burr said.

  Burr hurried up to Skinner as quickly as he could and before Cullen could get there. Burr spoke so only Skinner could hear him. “Your Honor, as I said, at the preliminary examination, your father said both Mr. Cullen and I should have stipulated that Mr. Bilkey found Mr. Shepherd’s body. He said that would have saved time.” Burr lowered his voice. “And drama.”

  “Drama?”

  Burr nodded. Cullen appeared beside him. His face was red and his teeth were clenched.

  Thank you for being so furious.

  “Your Honor, I have the right to call whomever I want. I am the prosecutor and this is my trial.”

  “And I’m in charge here,” Skinner said. “Mr. Cullen, if Mr. Lafayette is willing to so stipulate, I am going to allow it. In the interest of time.”

  “Your Honor…”

  “Stop it, Mr. Cullen.” Then softly, so the jury couldn’t hear, “Unless Mr. Bilkey is going to testify that he saw Lizzie hit Quinn with the canoe paddle, we don’t need his testimony. Do I make myself clear?”

  “Yes, Your Honor.” Cullen did his best to compose himself and walked back to his table.

  Burr did his best to keep from dancing a jig on the way back to his table.

  “Ladies and Gentlemen, the prosecution and the defense have both agreed to the findings at the preliminary examination conducted by Harold F. Skinner, that Brian Bilkey found Mr. Shepherd’s body in the South Branch of the Au Sable River on the morning of June 22, 1989. The anchor chain of his boat was wrapped around his ankle.” The jury shuddered as one.

  Skinner’s description was bad enough as it was but far better than it would have been if Bilkey had testified. Burr couldn’t believe he had convinced Skinner to skip Bilkey’s testimony. It was a clear violation of the court rules. He looked over at Cullen, who was still fuming.

  Skinner looked at Cullen. “You may call your next witness.”

  “The State calls Sheriff Earl Starkweather.” Burr watched the jowly sheriff with the droopy eyes lumber up to the witness stand. He had on the same dark brown shirt, tan slacks and shiny badge that he wore at the preliminary exam.

  With Starkweather sworn in, Cullen began. “Sheriff, were you the first responder at the crime scene?”

  Burr popped up. “Objection, Your Honor, it has not been established that
a crime was committed much less that this was a crime scene.”

  “I’ll rephrase the question. Sheriff, were you the first responder to discover Mr. Shepherd’s body?” Cullen said.

  “I was.”

  “Sheriff, where did you find the body?”

  “In the South Branch, below Chase Bridge, at the end of Dead Man’s Hole.”

  “And where exactly was the body?”

  “At the bottom of the river.”

  “And what did you do?”

  “I pulled Mr. Shepherd to the shore. I tried to revive him, but he was dead. It looked like he’d been in the river all night.”

  “Let me go back a step, sheriff. When did you discover Mr. Shepherd’s body?”

  “About noon on June 22nd of last year.”

  “And what do you think happened?”

  “It looked to me like he’d been in the river all night, like he had fallen in the river and—”

  Cullen cut him off.

  “Did you examine the body?”

  “I did.”

  “And what did you find?”

  “Mr. Shepherd was bloated and gray from being in the water.”

  “Were there any wounds?”

  “There was a crease on his head. Like he had been struck.”

  “With what?”

  “The edge of a canoe paddle.”

  “Objection, Your Honor. Calls for speculation,” Burr said.

  Skinner looked at Burr, then at Cullen, turning his whole body. “Mr. Cullen.”

  Cullen started in again. “Sheriff, in your opinion, what caused the wound on Mr. Shepherd’s head?”

  “A canoe paddle.”

  “Thank you, sheriff,” Cullen said. “So, to tie it all together, sheriff, in your opinion what occurred on the night of June 21st?”

  “In my opinion,” Starkweather said, with the emphasis on opinion, “Mr. Shepherd was struck on the head with a canoe paddle and knocked unconscious. The anchor chain from his boat was wrapped around his ankle, and he was then put in the river where he drowned.”

  “Do you believe it was an accident?”

  “No,” the sheriff said. By some medical miracle, his eyelids lost their droop. “In my opinion, he was murdered.”