Unofficial and Deniable

by John Gordon Davis

  ‘So he paid off his overdraft by selling most of his shares to his wife, the deceased?’

  ‘Correct.’

  ‘So now Josephine owned forty-nine per cent and he owned two per cent. Did he ever tell you who owned the other forty-nine per cent?’

  ‘He told us they were owned by a holding company in the Caribbean called Westminster NV on behalf of other shareholders whom he did not know.’

  ‘Now, looking at his account I see that before he paid off his overdraft he went into deeper debt by issuing a cheque for a hundred and forty thousand dollars. But the next week somebody paid in a cheque for a hundred and forty thousand dollars. Know anything about that?’

  ‘Yes. The defendant telephoned us saying he had bought a boat for a hundred and forty thousand dollars, and issued a cheque. He asked us to cover it, saying he would pay in enough money in the next few weeks. He did, depositing his wife’s cheque for that amount.’

  ‘So in effect he paid for the boat with his wife’s money?’

  ‘Correct,’ Ferguson said.

  Vance leered at the jury. ‘Thank you,’ he said. He sat down with satisfaction.

  Old Charlie rose creakily to cross-examine.

  ‘Mr Ferguson, I won’t wish you good afternoon because I’m not allowed to, but thank you for coming down from New York to assist us. However, I’m afraid that your testimony is useless.’

  The courtroom tittered. ‘Mr Benson,’ Judge Ludman sighed.

  ‘Not this time, your honour, you can’t tick me off this time,’ old Charlie said brightly, ‘because I am about to explain to this honourable court that this witness’s evidence is inadmissible!’

  ‘Nonsense!’ Vance groaned.

  ‘This better be good,’ Judge Ludman warned.

  ‘Oh it is, your honour, it is. Mr Ferguson,’ Charlie said, turning to the witness cheerfully, ‘you’ve told us that you’re general manager and you therefore have access to all your bank’s records, and that empowers you to produce the printout of the defendant’s account as proof of the facts mentioned therein. Right?’

  ‘Correct,’ Mr Ferguson said, mystified.

  ‘Mr Ferguson,’ old Charlie enquired happily, ‘have you read Charles Dickens’s Oliver Twist?’

  ‘This better be good,’ Judge Ludman repeated. Vance snickered.

  ‘I have, your honour,’ Mr Ferguson said. ‘But long ago.’

  ‘And do you remember the character Bill Sikes, the burglar?’

  ‘I do.’

  ‘Well,’ Charlie smiled, ‘my young friend the Assistant DA need not have bothered an important banker like you, he might just as well have called Bill Sikes as a witness, and said:

  ‘“Bill Sikes, are you a burglar?”

  ‘“Yes, I am, your honour,” says Bill Sikes, wiping his nose on his sleeve.

  ‘“And in your capacity as a burglar do you have access to the records of the First National City Bank?”

  ‘“Oh yes, your honour,” says Bill Sikes, “banks are no problem to a good burglar like me.”

  ‘“So do you now produce a printout of the defendant’s account as an exhibit?”’ Charlie turned to Vance with a smile. ‘Do you spot your glaring blunder, young fella?’

  Ed Vance was angry. ‘Your honour, I’ll thank Mr Benson to stop calling me young fella.’

  ‘Do you spot your blunder?’ Judge Ludman asked. ‘Because I do!’

  ‘“Custody”!’ old Charlie cried happily. ‘Not “access”! Only the custodian of bank records has the right to produce them in court, not people like Bill Sikes who have access!’

  Ed Vance glowered at the judge: ‘Very well, I’ll establish that in re-examination.’

  ‘Do you think you’ll remember?’ Charlie asked kindly. ‘No, I better do it for you, it’s safer and we’ve got nothing to hide. Mr Ferguson, as well as having access to the bank’s records, like Bill Sikes and Al Capone, are you also the overall custodian?’

  ‘I am, your honour,’ Mr Ferguson said.

  ‘Bravo. Now, Mr Ferguson, banks make their money by lending money, don’t they?’

  ‘Yes.’

  ‘If you didn’t lend money to people like the defendant, you’d go out of business, wouldn’t you?’

  ‘Yes.’

  ‘And you were perfectly happy to lend two million dollars to the defendant because he was a good customer who never let you down, not so?’

  ‘Correct,’ Mr Ferguson said.

  ‘And in your vast experience as a banker you can confirm that there is nothing unusual in businessmen selling shares to members of their family in order to pay off their debts – correct?’

  ‘Correct.’

  ‘So please,’ Charlie smiled, ‘face the jury and tell them that there is nothing sinister in that. And repeat after me: If our young friend the Assistant District Attorney tries to tell you otherwise he’s talking absolute balderdash!’

  ‘Objection!’ Ed Vance thundered, scrambling to his feet.

  ‘Oh very well,’ Charlie beamed at Mr Ferguson. ‘Have a safe journey home.’

  Ed Vance had kept his best witness until last. ‘I call Mr Denys Valentine, your honour,’ he intoned sombrely.

  Denys Valentine was dressed in a grey pinstripe suit and it seemed his face was the same colour, the same as his mane of hair. He was a very dignified, tragic figure, pain etched on his face.

  ‘Mr Valentine,’ Vance began, ‘are you the father of the deceased in this case, Josephine Valentine Harker?’

  ‘I am.’

  Vance pointed dramatically at Harker: ‘And the defendant is therefore your son-in-law?’

  Valentine looked at Harker with unconcealed hatred. Harker flinched inwardly, but returned the eye-lock. ‘He is,’ Valentine said.

  ‘Are you a lawyer, the senior partner of a firm in Boston?’

  ‘I am.’

  ‘And are you also the trustee in what is called the Valentine Trust?’

  ‘I am.’

  ‘Tell us about the Valentine Trust, please.’

  Denys Valentine faced the jury. He said quietly, ‘My father – who was a judge – set up the trust when Josephine was born. The objective of the trust was to pay for Josephine’s education and to ensure she became an all-rounder. There was a special emphasis on sport – my father was a very keen sportsman and the trust had to give her the best training in athletics generally, hockey, skiing, tennis, and sailing. She had to be given every encouragement to learn to play the piano or another musical instrument, and she should be taught ballet and singing. In addition –’

  ‘Pause there,’ Vance said. ‘How much of it did Josephine manage?’

  ‘Almost all of it. She took intensive courses and became proficient at all the things I’ve mentioned with the exception of ballet. The trust also required that Josephine get at least one university degree – this she did at Berkeley, majoring in Political Philosophy and English Literature. In addition, the trust required her to spend at least two years travelling round the world with a backpack, writing a detailed journal of her adventures.’

  ‘Did she do that?’

  ‘She did, for three years. Extracts from her journals were published in newspapers. And, as you know, she has since written three books. She was writing her fourth book when she died.’

  ‘We’ll come to that. Now in addition to paying for all her education, sports training and travels, did the trust give her anything else?’

  ‘Yes,’ Mr Valentine said grimly. ‘She was to receive the capital of the trust, over two million dollars, on her thirty-fifth birthday or on the event of her marriage, whichever came first.’

  ‘I see,’ Vance said thoughtfully. ‘On her marriage. And when did she get married?’

  ‘In May, 1996, about six months ago. To the defendant.’ He pointed accusingly at Harker. ‘She phoned me from Las Vegas where they got married and told me they were about to start packing up in order to run off to Nassau to board her boat. Repeat her boat, which she paid for. She telephoned me
–’

  ‘You can’t tell us what she said to you because that would be hearsay, but you can tell us what you said to her.’

  ‘I begged her to cancel this proposed sailing trip around the world with the defendant because it was highly dangerous and because –’

  ‘No opinion evidence, please,’ old Charlie croaked, half-rising.

  ‘Very well, so what happened?’ Vance said to Valentine.

  ‘My daughter subsequently gave me banking instructions, as a result of which I transferred the two million dollars to her account with Barclays Bank.’

  ‘Now,’ Vance said with satisfaction, ‘we’ve heard evidence that Josephine bought forty-nine per cent of the shares in Harvest House from the defendant for a little over two million dollars. Did she consult you on this transaction – just answer yes or no, please.’

  ‘No. But when I heard about it I was alarmed because –’

  Charlie was on his feet. ‘Your honour, I hate to interrupt my learned friend, and I certainly don’t want to upset the poor witness who has lost his daughter, but I really must object to all this prejudicial, semi-opinion, semi-hearsay evidence. The prosecution is leaving the jury with the impression that in this witness’s opinion the deal between the defendant and Josephine was inadvisable – and that is getting opinion evidence in by the back door and it’s grossly unfair.’

  ‘Well, you can cross-examine!’ Vance snapped.

  Charlie smiled sadly. ‘You betcha I’m going to cross-examine, Ed, but it’s a great pity for all of us, for this poor witness who’s lost his daughter, for the defendant who’s lost his dear wife, for dear Josephine herself who was a lovely, sensible, sensitive woman that you try to drag in this inadmissible opinion evidence. And thus drag her good sense and her good marriage through the mud –’

  Vance cried, ‘Now it’s Mr Benson who is trying to drag inadmissible opinion evidence in by the back door!’

  ‘Your honour!’ old Charlie whined incredulously. ‘To describe the deceased Josephine as a fine and sensible young woman is wrong? Has the young Assistant District Attorney lost all his marbles? Because it’s poor Josephine’s death he’s supposed to be prosecuting!’

  ‘I object –’ Vance began.

  ‘Yes,’ Judge Ludman sighed. ‘Sit down, Mr Benson.’

  Charlie sat angrily. ‘Get on with it, Ed!’ he said in a stage whisper to Vance.

  Vance glowered at him, then said: ‘No further questions, your honour!’

  Charlie rose aggressively to cross-examine but Judge Ludman looked at the clock.

  ‘I think court should adjourn until tomorrow morning, Mr Benson.’

  He banged his gavel. Everybody rose and he stalked out of the courtroom bad-temperedly.

  As Harker was led away he glanced at the public benches: his heart lurched as he locked eyes with Looksmart Kumalo. Looksmart gave him a wide malicious smile.

  45

  Harker waited anxiously for Charlie to telephone him at the prison to review the situation so far, but it was Luke Mahoney who did so. Harker was relieved – he could tell Luke about Looksmart but Charlie knew nothing about that aspect of the case.

  ‘But why do you say it was a malicious smile, not a friendly one,’ Luke asked.

  Harker was standing at a row of telephones in the noisy corridor outside the prison kitchens.

  ‘I know malice when I see it,’ he said tensely. ‘He threatened me the last time I saw him in Nassau and this time his smile was saying, “I’ve got more in store for you for Long Island”.’

  ‘Okay, so maybe he’s trying to intimidate you into giving evidence for him when he sues the South African government, but he’s no threat to you in this trial now, there’s nothing he can say or do to endanger you, so put him out of your mind for the time being – you’ve got to be on the ball tomorrow when you give evidence.’

  Harker had his eyes closed in the plastic bubble of the kiosk, his nerves screaming as prison life swirled about him. ‘Have you and Charlie now decided that I’m going to give sworn evidence? You said maybe I should make an unsworn statement?’

  ‘Charlie and I will decide over dinner tonight. You just get a good night’s sleep.’

  Sleep? With the dread of going on to that witness stand tomorrow? ‘And how do you think it went today? How’s Charlie doing?’

  ‘Don’t worry about old Charlie, he’s doing a good job, the jury likes him.’

  ‘But why hasn’t he telephoned?’ Harker could hear music in the background.

  ‘I’m keeping an eye on him, he’ll be okay.’

  ‘What do you mean – he’s hitting the bottle?’

  ‘Don’t worry, I’ll see he has something to eat and goes home to bed early, he’s just unwinding.’ There was a girlish shriek followed by howls of male laughter. ‘Jack, I’d better go.’

  ‘What’s he doing, for Christ’s sake?’

  ‘It’s all right, he’s only joined the chorus line, everybody’s enjoying it. Okay, this is just to tell you not to worry, we think everything is going well. Tomorrow Charlie will undo any damage caused by Mr Valentine’s evidence. Then he’ll probably call you as a witness and this time tomorrow you should be a free man.’

  Oh Jesus, the dread of giving evidence, of being cross-examined. ‘But I thought you said we had such a strong defence I would not have to testify?’

  ‘We’ll decide that tonight. Now get some sleep, it’s important that you be calm tomorrow.’

  Calm? When you are on trial for your life, for that three-legged wooden electric chair called Old Sparky up there on Death Row at the Florida State Prison outside Starke – be calm …?

  Inside the CNN studio in Miami the anchorman reviewed the day’s proceedings in ringing tones with clips of scenes within courtroom 4B.

  ‘So we bring you now our legal expert, Professor Sydney Gregorowski. Good evening, Professor, what do you make of today’s events?’

  Professor Sydney A. Gregorowski said, ‘Good evening, Hal. Yes, very interesting. The case against the defendant is getting more and more suspicious, but so far, in my opinion, it does not add up to a case upon which “a reasonable jury” should convict as proven beyond reasonable doubt. On the other hand there is enough evidence, in my opinion, upon which a reasonable jury might convict – not should but might – so the defendant has got a case to answer. In my view the outcome of this trial depends on how satis-factorily he handles that. Should he give sworn evidence, which will be tested by cross-examination, or should he make an unsworn statement, which is not subject to cross-examination, but which therefore naturally carries less weight? Personally, if I were the sole judge, and the defendant made an unsworn statement, I would acquit him – because, although all the details add up to strong suspicion, they are not in my view as a lawyer strong enough to add up to proof beyond reasonable doubt. But you can never tell with juries – they could well convict him and on appeal could it be said that the evidence was such that no reasonable jury could convict, which is the legal test on appeal?’

  ‘So if you were his lawyer you would advise him to give sworn evidence?’

  ‘I think so. And hope that he makes a good witness.’

  Across town, in Beauty’s Paradise, Luke Mahoney watched that interview on television while Charlie whooped it up with the chorus girls at the other end of the bar.

  Yes, he thought grimly — he would love to keep Jack Harker out of the witness stand tomorrow; in that event he really should be acquitted, but you never can tell with fucking juries …

  It was another beautiful day. The crowds milled outside court 4B.

  Judge Ludman said, ‘Mr Valentine, I remind you that you are still under oath.’

  ‘I understand, your honour.’

  Old Charlie rose slowly to his feet. His eyes were bloodshot and his hangover was etched on his black brow but his smile was as beatific as ever.

  ‘Mr Valentine, I have to ask you a few questions, but please understand that I am in no way being disrespectf
ul, neither as to your integrity nor to you as a father who has lost his beloved daughter. As a lawyer, I’m sure you understand that I am only trying to get to the truth.’

  ‘I understand that, Mr Benson,’ Valentine said grimly, ‘and I have given you the truth.’

  ‘And I beg you,’ Charlie said, ‘beg you to understand, to make allowance for, even if you won’t admit it, that the defendant loved – loves – your daughter every bit as much as you do, and is as bereft by her tragic disappearance as you are.’

  Valentine gave a small bitter smirk that was seen on millions of television screens around the world; he was about to respond but Ed Vance was oh his feet. ‘Mr Benson is giving evidence!’

  Charlie turned slowly towards Ed Vance with theatrical incredulity all over his long-suffering face. ‘You deny my client loved the deceased? What impertinence, sir!’ Before Vance could muster a response, Charlie turned back to Valentine witheringly: ‘And you, sir. Did I hear you snort, Mr Valentine?’

  Valentine looked at Charlie stonily. ‘I’m sorry.’

  ‘Thank you,’ Charlie said. Pause. ‘Tell me: How many times did you meet the defendant before this unfortunate trial began?’

  Valentine shifted on his chair, then cleared his throat. ‘Once.’

  Charlie’s eyes opened wide. ‘Oh, only once?’ Then his finger shot up, as if he had just remembered a distant detail: ‘Ah yes, that would have been eight years ago when Josephine brought the defendant to Boston in 1988, especially to meet you.’

  Valentine looked grim. ‘Correct.’

  Charlie enquired in wonder: ‘And you haven’t seen him since, until this trial began three days ago?’

  ‘Correct.’

  ‘But your daughter? Surely you’ve seen Josephine since 1988?’

  Valentine shifted. ‘No.’

  Charlie looked astonished. ‘No? You mean you never went to visit her in New York?’

  Valentine shifted. ‘No.’

  ‘No? But …’ Charlie waved a hand. ‘I’m sure you asked her to visit you in Boston?’