Calling Down the Storm

by Peter Murphy

  ‘If we do support Andrew,’ Jess said, ‘perhaps we ought to do it straight away, before Henry tells everyone what happened at Harpur Mews on 28 April.’

  They were silent for some time.

  ‘That would mean seeing the judge first thing tomorrow morning,’ Barratt said.

  ‘Or just making an application to discharge the jury in court,’ Ben said. ‘I’m not sure I want to approach the judge in chambers. I’m thinking of the Court of Appeal again. Rainer doesn’t have to discharge the jury just because we ask him to.’

  ‘No,’ Jess replied, ‘but Ben, if you see him in chambers, you’ll have a better chance of finding out what’s going on. Whatever it is, he won’t be comfortable talking about it in open court. It might be the only way. Maybe it will turn out that a visit to the doctor and a day or two off will take care of it.’

  Ben turned to Barratt.

  ‘What do you think?’

  ‘Jess may be right,’ he agreed. ‘He might talk to us, and then at least we can make an informed decision about whether to call a halt or take our chances and forge ahead.’

  ‘All right,’ Ben said. ‘Let’s do it.’

  The door opened suddenly, and Harriet Fisk entered, followed by Aubrey Smith-Gurney.

  ‘Ah, just the people I was hoping to see,’ Harriet smiled. ‘Do you still need me tomorrow morning?’

  ‘Yes,’ Ben replied. ‘With any luck Henry’s evidence will be finished before lunch.’

  ‘I’ll call Val, then,’ she said.

  ‘Ben,’ Aubrey asked, ‘It’s got nothing to do with me, of course, but if the judge lets you do this, have you decided whether you would call Harriet or Val, or both of them?’

  ‘We hadn’t decided that finally,’ Ben replied. ‘We were going to talk about it at court tomorrow, but I would have thought it would be best to call them both.’

  Aubrey shook his head.

  ‘It’s not usual to call counsel as a witness about a case in which she has been engaged professionally. It’s not seemly, is it? The better practice is to call the solicitor, surely?’

  ‘I’m not concerned about it, Aubrey,’ Harriet said. ‘I’m not representing Susan Lang any more. As long as the court gives me cover by dealing with the privilege question, I don’t have any problem with giving evidence.’

  ‘Their evidence won’t be challenged,’ Jess offered. ‘I’m pretty sure of that. The only point the prosecution is taking is the privilege. They’re not even concerned about it being hearsay. They understand that we’re only calling the evidence to explain why Henry may have been scared enough to take a knife with him on the day. I don’t think the prosecution will want to cross-examine.’

  ‘Even so…’ Aubrey said.

  ‘Let’s talk about that tomorrow,’ Ben suggested. ‘We are unlikely to get a clean start tomorrow, Harriet, so 12 o’clock at court should be fine.’

  ‘Why aren’t you getting a clean start?’

  ‘We may have to see the judge in chambers.’

  He paused.

  ‘Aubrey, you know Conrad Rainer, don’t you?’

  Aubrey seemed momentarily taken aback.

  ‘Yes. Yes, I know him very well. Why do you ask?’

  Ben hesitated.

  ‘I’m not sure how to put it really, but there seems to be something wrong with him. He’s not participating in the trial at all, and we’re not sure he’s even listening. You have to repeat yourself to get his attention. It’s as if his mind is somewhere else, and he’s not taking notes of the evidence. We think it may be a medical problem of some kind.’

  Aubrey sat down in a chair in front of Ben’s desk.

  ‘Really? How odd. That doesn’t sound like Conrad. But I wouldn’t worry about him, Ben –’

  ‘We have to worry, Aubrey,’ Ben replied. ‘We’re not sure he’s in a fit state to carry on with the trial. How is he going to sum up without a note of the evidence?’

  Aubrey laughed.

  ‘You obviously don’t know Conrad,’ he replied. ‘He has a remarkable memory. He could probably reel off the evidence of every witness you’ve had, more or less word for word. He’s one of those irritating fellows who never had to open his brief in court. He always had it all in his head.’

  ‘I don’t think he’s got this case in his head, Aubrey,’ Barratt replied. ‘The prosecution are thinking of applying to discharge the jury, and we may have to support them.’

  ‘Did you say you were thinking of seeing him in chambers?’ Aubrey asked.

  ‘Yes. We need to know what’s going on.’

  ‘That may be a private matter,’ Aubrey said. ‘I don’t think it can be right to turn up in chambers and question a judge about things that are private to him.’

  ‘We shouldn’t have to,’ Barratt insisted. ‘If there’s something wrong that makes it impossible for him to conduct the trial, he should be telling us about it without being asked. I have a client charged with murder, who’s entitled to a fair trial.’

  ‘Aubrey, do you have any idea what the problem might be?’ Ben asked.

  Aubrey hesitated.

  ‘Conrad has always had his ups and downs, but it’s never stopped him from performing in court. Why don’t you wait for the summing-up and see what happens?’

  ‘Because by that time, it may be too late.’

  There was a silence.

  ‘Another strange thing,’ Ben said, ‘is that Rainer appeared to know, or said he knew, that we were going to make an application to him to admit some evidence. We didn’t tell him that.’

  Harriet was taken aback.

  ‘Did he know what the evidence is?’

  ‘Not that he said.’

  ‘But how could he have known about that?’ she asked.

  Ben shrugged, looking straight at Aubrey.

  ‘One of the many mysteries in this case.’

  68

  ‘Do you have a moment, Aubrey?’

  Aubrey looked up to see Ben leaning against the door frame, one leg crossed in front of the other.

  ‘Come in, Ben,’ he replied. ‘I thought you were all going to the Dev for a pint?’

  ‘I told the others I’d follow them.’

  Ben closed the door and walked across to Aubrey’s desk. Aubrey waved him into a chair.

  ‘What can I do for you?’

  ‘I’d like some assurance that I still have some control over my case,’ Ben said.

  Aubrey smiled.

  ‘Ben, you’ve been around too long to believe that any of us has any control over our cases,’ he replied. ‘We do our best, but at the end of the day the result usually depends on forces outside our control.’

  ‘Perhaps so. But I prefer to know what those forces are. I don’t like them working behind the scenes, behind my back, where I can’t see them.’

  ‘Whatever I may have done can only benefit your client,’ Aubrey said.

  ‘I think I should be the judge of that,’ Ben insisted, ‘but I can’t because I’m in the dark. I don’t know what’s been going on. I know something’s going on, because Conrad Rainer knows that I’m about to apply to admit some evidence, and he didn’t hear that from me. I’d like to know how that happened. I’d like to know exactly what you’ve told him.’

  ‘I told him nothing that could do Henry Lang any harm.’

  ‘I’m representing Henry Lang on a charge of murder, Aubrey. If he’s convicted, he’s facing a mandatory life sentence. You don’t know the details of the case I’m presenting, so you don’t know what might do him harm. This case is my responsibility. I want to know what’s going on behind my back.’

  Aubrey nodded.

  ‘Fine. All that happened was that Harriet came to see me to explain the dilemma she was in. She was privy to a privileged conversation which might support Henry Lang’s defence. She co
uld have hidden behind the privilege and said nothing, but her conscience wouldn’t let her do that. I looked into the question, and I concluded that there was a good legal argument for overriding the privilege and letting the evidence in. I told Harriet that, but I also warned her that she was playing a dangerous game. If Conrad didn’t agree with her, she and her solicitor could get into a lot of trouble. She decided to go ahead anyway. I did what I could behind the scenes to protect her.’

  ‘You mean you asked Rainer to let the evidence in?’

  ‘No. I didn’t ask him that, as a matter of fact. I asked him to make sure that Harriet didn’t get into trouble. I said I didn’t care how he did it.’

  Ben shook his head.

  ‘That’s the same thing, isn’t it? The only way to be sure of keeping Harriet out of trouble is to override the privilege and let the evidence in.’

  Aubrey smiled.

  ‘Yes, you’re probably right, and I did take the opportunity of telling him what I thought the law should be. For what it’s worth, I think he agrees with me, but that’s not because of what I think. Conrad is more than capable of deciding the law for himself, and now that Jess has come up with an even better argument than mine, I would say you’re on pretty safe ground.’

  ‘What else have you said to him?’

  ‘About the case? Nothing.’

  Ben nodded slowly and got to his feet to leave.

  ‘And you don’t want to tell me why Rainer is acting so strangely in court – especially when someone mentions the name of Daniel Cleary?’

  Aubrey closed his eyes.

  ‘Sit down for a minute, Ben, would you?’

  Ben resumed his seat.

  ‘Have you ever thought about what privileges are?’ Aubrey asked.

  ‘What they are?’

  ‘Yes. I mean, forget about this case for a moment, and think about privileges as a concept. Have you ever asked yourself what purpose they serve?’

  ‘There’s nothing complicated about that, is there?’ Ben replied. ‘A privilege is just a legal device for protecting information from disclosure.’

  ‘Yes,’ Aubrey agreed. ‘Exactly. It’s a legal device, and that’s all it is. The privilege isn’t what’s important; it’s the information it protects that matters. But what kind of information does it protect, Ben? Privileges protect information given by one person to another in confidence – secrets, if you will.’

  ‘The law doesn’t like secrets,’ Ben said. ‘They make the work of the court more difficult. They make it harder to get to the truth.’

  ‘Quite so. That’s why the law takes the view that the court should have access to all relevant information unless there’s a good reason why someone should be allowed to withhold it. Privileges are the exceptions to the general rule.’

  ‘Yes, and surely that’s how it should be?’

  ‘I don’t know, Ben. Yes, we have to make sure the court has the information it needs to deal with a case. But I sometimes wonder why we have to take such a narrow view of privileges.’

  ‘What do you mean?’

  ‘The only privileged conversations you can have in English law are with your lawyer or your spouse. That’s pretty narrow, don’t you think?’

  ‘As opposed to what?’

  ‘Well, in America, for example, they protect communications with other professionals – clergymen, doctors, therapists. But what I’m saying, Ben, is that in this country, we don’t show much respect for confidentiality. We don’t encourage people to confide in others – in a friend for example – even though the need to confide is something we all feel from time to time.’

  Ben nodded.

  ‘Speaking for myself,’ Aubrey continued, ‘my friends have always been a very important part of my life, and I don’t know what the point of friendship is unless you can tell your friends things you wouldn’t want repeated elsewhere.’

  ‘Where are you going with this?’ Ben asked.

  Aubrey stood and leaned on the chair behind his desk.

  ‘You asked me whether I knew what might be ailing Conrad – why he doesn’t seem to be concentrating on the case as much as he should.’

  ‘I think I have every right to be concerned about that,’ Ben said.

  ‘I agree. All I’m saying is that there may be things Conrad has told me in confidence, things I’m not at liberty to share with you. I’ve known Conrad almost all my life. He’s one of a small circle of my very closest friends. And while I agree that not all information can be privileged, I think we lose a good deal of the quality of our lives if we can’t show some basic loyalty to our friends. That’s something we all need from our friends at some point in our lives.’

  Ben stood.

  ‘Aubrey, the only question I have is whether Conrad Rainer can hold himself together long enough to finish my case. Selfish as it may seem, that’s my only concern. I don’t want to impose upon your friendship with him, and I don’t want to interfere with his confiding in you. I don’t need to know, and I’m not sure I want to know all the details. I just want to know whether Henry Lang is in safe hands.’

  ‘As far as I can judge,’ Aubrey replied, ‘he’s in perfectly safe hands.’

  69

  Conrad Rainer unlocked the door of his flat, looking warily up and down the corridor, and went inside with a sigh of relief. He had considered asking for a police escort home. There would have been no difficulty about it; the City of London police would arrange protection for any Old Bailey judge who had reason to believe that he might be in danger as a result of a case he was trying. But why he might be in danger from Daniel Cleary because of the case of Henry Lang would have been difficult to explain and might have led to some awkward questions. Instead, he made his way home on foot as quickly as he could, scanning the rush-hour crowds for any sign of Cleary, or anyone seeming to take an undue interest in him, anyone who looked like the kind of person who might work for Cleary. On arriving at his block, he waited until he was sure he was not being observed, before entering the building and running to the lifts which would take him to the sanctuary of the flat.

  Having closed and locked the door behind him, he stood, leaning his back against the door for some time, getting his breath back. Everything was as he had left it: the blood spatters on the furniture and on the bust of Mozart; the empty path he had cleared to drag the rug across the floor; and the body of Greta Thiemann, propped up in the storage space.

  First things first. With a massive effort, he lifted his sofa and pulled it by the end until it was in line with his front door, then pushed it, corner by corner, across the stubbornly resistant carpet until it came to rest against the door. He turned it sideways on to give the maximum area of contact. That ought to do it. Even if Cleary gained access to the building, even if he had a key to unlock the door, or a crowbar to prise it open – in which case he would have to make some noise and draw attention to himself, and give Conrad the chance to dial 999 – the sofa would at least slow him down, make it difficult for him to open the door. Still, for good measure, he wedged the coffee table hard against the back of the sofa.

  Deborah called just after 6.30.

  ‘I’m not sure about the plans,’ she said. ‘I want you to look at them and tell me what you think.’

  ‘Yes, all right.’

  ‘I’ve asked the builder to come back on Saturday morning at 11 o’clock so that we can both talk to him. I take it you will be coming home at the weekend?’

  He hesitated.

  ‘Yes.’

  ‘You don’t seem too sure about it.’

  ‘I’ll come at the weekend.’

  ‘The courts haven’t started sitting on Saturdays, have they?’

  ‘No, Deborah, we don’t sit on Saturdays.’

  ‘Thank goodness for that.’ She paused. ‘How is your trial going?’ It was asked as a matter of formal politene
ss.

  ‘Oh, fine,’ he replied. ‘We should get a verdict on Friday.’

  ‘What is it he did, again?’

  ‘He killed his wife, stabbed her a number of times with a kitchen knife.’

  He heard her sniff contemptuously.

  ‘Why would anybody need a verdict, then? Why can’t you just sentence him to life in prison?’

  ‘Because we don’t know whether it was murder or manslaughter. He’s saying she provoked him.’

  ‘Provoked him? How can you provoke somebody to kill you?’

  ‘It’s not as difficult as you might think,’ he replied.

  He opened a new bottle of whisky, drank two glasses quickly, and foraged in the cupboards for odds and ends to eat.

  Just before midnight, leaving the lights on throughout the flat, he changed out of his suit into a sweater and slacks, and lay down on top of the bed with a glass in his hand. He felt utterly exhausted, but very wide awake.

  70

  Thursday 7 October 1971

  Lewis, a retired barrister who was the Old Bailey’s most experienced court clerk, came out into the judicial corridor where he had asked Andrew and Ben to wait.

  ‘The judge will see you now, gentlemen,’ he said.

  They followed him inside.

  Conrad Rainer was sitting at his desk. He had put on his wing collar and bands in preparation for court. His tie and street collar lay on the desk next to a cup of coffee which was already cold. There was no sign of any of the case papers and his copy of Archbold was closed. He looked pale, and there were dark rings under his eyes.

  ‘Counsel in the Lang case to see you, Judge,’ Lewis said, before taking an inconspicuous seat in a chair by the door.

  ‘Come and have a seat,’ Conrad said. ‘We’re making quite good progress, I think, aren’t we? We’ll finish your client this morning, will we, Schroeder?’