‘Did you feel,’ Charlie asked, ‘that you were fighting for apartheid?’
Harker frowned nervously again. ‘Absolutely not. I have never supported apartheid. In fact, I joined the Anti-Apartheid League in New York. I regarded apartheid as not only cruel but doomed to failure. No, I regarded South Africa’s war as an extension of Rhodesia’s war – we were fighting the communist enemy. In South Africa’s war we were fighting the Cuban army whom Russia had sent to help the illegal communist government of Angola fight the capitalist UNITA. Russia intended that Cuba would thereafter overrun the whole of southern Africa.’ He added: ‘The American government was helping us fight the Cubans.’
Harker told the court that in 1986 he was wounded in combat. After recuperation he was not up to the long physical endurance that bush combat requires, so he was offered a post in Military Intelligence, or a disability pension. He decided he wanted to go into publishing. He initially got a job in England as a trainee executive; in 1987 he was appointed managing director of a small new company starting up in New York, called Harvest House. He subsequently bought a majority shareholding in the company.
‘Now, when and how did you meet the deceased, Josephine?’
Harker described a chance meeting at the New York Rackets Club, how he offered to consider the book she was writing, how they became lovers, how he successfully published the book, Outrage, which became a bestseller.
‘And what was your relationship with Josephine like?’ Charlie asked.
Harker cleared his throat. ‘Very happy.’
‘Did you quarrel?’
Harker glanced at Judge Ludman. ‘Rarely, your honour.’
‘When you did, what sort of things was it about?’
Harker hesitated. ‘Hard to generalize. But both of us worked hard and sometimes one or other of us was a bit irritable. She felt passionately about her writing, and she didn’t take very well to criticism. But I think spats like that happen in most relationships.’ He glanced nervously at the jury.
‘Very well. Now in May this year what did you and Josie decide to do? And why?’
‘We got married. And bought a yacht. Both Josephine and I are keen yachtsmen. It was our dream to sail around the world one day, so in May this year we decided to get married and do it.’ He coughed. ‘I am now forty-six. Harvest House was worth quite a lot if I sold it, and Josie would continue to make money as a writer. So why wait any longer? I put Harvest House up for sale. Then Josie decided that she would buy my shareholding in Harvest – she didn’t like the thought of it slipping out of the family. So, she bought my shares for 2.2 million dollars. Or rather she bought most of them, totalling forty-nine per cent. I held on to two per cent. That way, between us, we continued to control the company.’
‘Now, apart from buying the boat, what else did you do?’
Harker described how they made new wills in each other’s favour and took out more insurance on Josephine’s life – he had intended taking out more on his own life, but decided that premiums were too high for a man of his age.
‘Very well,’ Charlie said, ‘so you put your affairs in order – then what?’
Harker recounted their departure to Nassau, described how they set to work making the yacht seaworthy for a circumnavigation, whilst enjoying the Bahamas. Led by Charlie, Harker said that having studied charts and taken advice from yachtsmen, he considered that the biggest dangers ahead were coral reefs and pirates.
‘Objection!’ Vance cried. ‘This is hearsay and opinion!’
‘Nonsense,’ Charlie groaned. ‘The witness is about to tell us what he decided the dangers ahead were. That’s no more hearsay than if he said “I consulted my stockbroker and then I decided to buy shares in American Airlines”.’
Judge Ludman said, ‘The line dividing direct evidence of the defendant’s state of mind and the hearsay that engendered that state of mind is blurred and we have reached it. No more, please.’
‘As your honour pleases,’ Charlie sighed. He did not mind – the jury had got the message. ‘Now,’ he continued, ‘what happened next?’
Harker told the court that he and Josephine decided to leave the Bahamas on August 31 1996 because the hurricane season was ending and they wanted to push on to the British Virgin Islands where they had been so happy.
‘Now,’ Charlie said, ‘what happened on this voyage?’
Harker took a tense breath. ‘Well, we reached the outer fringe of the Bahamas and entered the Gulf Stream, more or less opposite Miami. Then we swung south east, towards the Virgin Islands. The trade winds were dead against us, so we had to motor. The sea was very choppy, there was a lot of spray – very uncomfortable, particularly in the dark when you can’t see the water flying at you until it’s too late.’
‘I can imagine,’ Charlie said, full of wonder for his client’s courage. ‘Now, we know that something terrible happened on this voyage because Josephine is no longer with us. Please tell us what you know.’
Harker’s face clouded over – momentarily he closed his eyes, but Luke was not sure it was genuine. He took a breath and quietly began his rehearsed evidence.
‘On September the first, I did the six-to-midnight watch. Josie went down below, to sleep. We had both had a lot to drink over lunch. I continued drinking. The boat was on automatic pilot so all I had to do was keep a lookout for other shipping. I saw the lights of a number of vessels, and I could see them on my radar screen.’
‘Very well. What happened?’
‘At midnight, Josie came up to take over. I went below to bed.’
‘When you went to bed, how did you feel?’
‘I have a strong tolerance of alcohol. I was in control of myself, but tipsy.’
‘So, what happened next?’
‘I fell into a deep sleep. I awoke some hours later – before dawn. I think it was the bang of a wave hitting the hull. I was very hung over. But something told me to go up top and investigate.’
‘How were you dressed?’
‘I got into shorts. And I had my knife on my waist, in its sheath.’ Harker swallowed. ‘The boat was pitching. I made my way up into the wheelhouse. Josie wasn’t there. I yelled for her, but there was no response. The spray was flying. I went out on deck and shouted. No reply. I went below to check the forward toilet – looked in both forward cabins, no Josie. Then I panicked.’ Harker’s voice caught, and he dropped his face and sobbed once.
Luke Mahoney closed his eyes. He didn’t know whether to believe that show of emotion. There was silence in the courtroom as Harker tried to compose himself. Finally he looked up at Charlie, and nodded.
Charlie said gently, ‘Then what happened?’
‘I realized she must have fallen overboard,’ Harker said thickly. ‘And … oh God, it was terrible. I ran to the controls, took the wheel off automatic and swung the boat around. I slammed the automatic pilot back on the reciprocal course, and went steaming back the way we had come. I grabbed my big Aldis lamp and shone it over the sea, looking for her. I sounded long blasts on the horn, and I grabbed the radio transmitter, to ask all vessels in the area to help me – but I lurched with the boat and I wrenched the transmitter out of the radio, bending the plug and I slammed the receiver against the bulkhead, cracking it. So I couldn’t use the radio. I steamed back several miles, then I began to circle. I steamed slowly round and round in ever-widening circles all night, all lights blazing, blowing the horn. I threw two life-rings and the life-raft overboard. I was frantic. Then I thought it best if I stopped my engines and drifted, so that if she was afloat out there she could swim to me.’ He swallowed. ‘I did this all night. When dawn came I began to circle again. I circled all day, searching, blowing the horn.’ He paused and wiped his eyes with the back of his wrist. ‘When darkness fell I gave up. I was exhausted. I turned the boat back on to its original course for the Virgin Islands, put the helm on automatic and collapsed on my bunk. And slept. I didn’t wake up until dawn.’
‘Okay,’ Charlie said. �
��Now, how many days later was it that you arrived at the Virgins?’
‘Six. I slept in snatches, mostly in the day.’
‘Now, where was your first stop?’
‘St Thomas, capital of the American Virgin Islands. I got there about midnight, dropped my anchor and slept for a few hours. Before dawn I woke up and sailed on to the British Virgin Islands, to Road Town. I got there at about eight a.m. I went to sleep again. Woke up about noon. Had a few drinks, then went ashore to check in with the immigration authorities.’
‘And what happened at immigration?’
‘The officer in charge, Doris Johnston, ordered me to go back to Nassau to get my port clearance papers.’
‘Why hadn’t you got clearance papers when you left Nassau?’
‘I simply forgot. I forgot you needed such documents.’
‘Very well. So what did you intend to do?’
‘I intended to fly back to Nassau, get the clearance papers and return to Tortola. But first I telephoned Josie’s. insurance company, as I presumed I was required to do, reporting her death. Then I sent a fax to her lawyer and to her father. Then I went back to my boat to eat before reporting Josephine’s death to the police.’ Harker shifted on the chair. ‘I must have fallen asleep again. I woke up to find it was the middle of the night. I had something to eat, had a few more drinks, and fell asleep again just about dawn. I woke up mid-morning. I was getting myself together to go to the police when they came to me.’
Harker paused, haggard, and took a sip of water. He continued: ‘I immediately told the officer, Commissioner Humphrey, I wanted to report Josephine’s disappearance. He ordered me to go with him to the police station for questioning. Which I did, while detectives combed my boat looking for evidence.’ Harker took another sip of water. ‘At about ten o’clock that night Humphrey said we would continue with the interrogation another day. He ordered me to surrender my passport, which I regarded as illegal, but I didn’t argue because I had another one, although it had expired. The next day I tried to fly back to Nassau to get my port clearance papers, as ordered by Mrs Johnston, but I was detained at the airport by Commissioner Humphrey.’
‘Pause there,’ Charlie said. ‘And let’s go back to the evidence these detectives were looking at on your boat. First of all, the bullet in the saloon cushion. Do you know how that came about?’
Harker cleared his throat. ‘The hole was there when I bought the boat.When I viewed the boat only the broker was there. I never met the seller to ask him.’
‘Did you ever look for the bullet that caused the hole?’
‘I didn’t know a bullet had caused it. There were two or three old tears in the saloon upholstery which Josephine patched but I did not associate any of them with bullets.’
‘Now,’ Charlie said, ‘let’s talk about your firearm. Mr Humphrey said he found two licences in your name, but he found only the small Browning, when he arrested you at the aerodrome. The forensic scientist found a bullet in the saloon cushion and it was a .38 bullet, not a .25. Now, where is your Smith and Wesson .38 pistol?’
Harker said, haggard, ‘Sorry, I don’t know. I last saw it in my car’s glove compartment in New York. When I was packing up to go to the boat I noticed it was missing. I found the smaller Browning, at home, and packed it.’
‘Why? Why did you want a gun on the boat?’
‘Josie and I were travelling round the world, we might have needed a gun for self-defence against people like pirates.’
‘Did you report the missing gun to the police?’
Harker coughed. He said: ‘No. I should have, but in the hurly-burly of packing up I simply forgot.’
Sitting beside Charlie, Luke had great difficulty believing that. Evidently Charlie did too because he quickly moved on to the next subject:
‘Turning now to the broken glass of the speed-counter in the wheelhouse. How did that happen?’
Harker said: ‘I must have caused that. When I dashed back up into the wheelhouse when I realized Josie was missing I half-tripped over the Nautical Almanac lying on the wheelhouse floor. I flung it up on to the instrument console. I guess it hit the speedo; it’s a heavy book.’
Luke sighed to himself. He hardly believed that either. Charlie continued: ‘Now, tell us how you came by the cuts the doctor found on you.’
Harker sighed grimly. He took another sip of water.
‘The life-raft was tied down to the deck. When I cut the rope I grabbed it up in my left hand and slashed underneath it with the knife, like this. I did it too forcefully because I not only cut the rope but slashed my forearm. I remember that but I don’t remember cutting my hip. But after freeing the life-raft I rammed my knife back into its sheath. I must have missed the sheath the first time and cut my hip. I only noticed the blood afterwards.’ He added, ‘I was frantic. Panicked. In the dark.’
Charlie nodded sympathetically. ‘I can imagine. Now let’s turn to the last bit of so-called evidence that the prosecution makes such a song and dance about – namely the bloodstain.’
‘Objection.’ Vance was on his feet, weary with indignation. ‘Not only is Mr Benson being downright insulting, he’s giving judgement himself!’
‘Mr Benson,’ Judge Ludman growled, ‘keep your argumentative opinions to yourself for the time being.’
Charlie held up his hands in long-suffering resignation. ‘As your honour pleases.’ He continued: ‘About this bloodstain on the transom or stern of the boat: do you know how it was caused?’
Harker swallowed. ‘I remember Josie saying one day when she was scrubbing down the decks that it looked like there was a bloodstain on the transom, but I never looked at it myself, I just presumed it was a bit of fish blood and that Josie had got rid of it. It must have been very faint because I never noticed it when I was examining the boat prior to buying her.’
‘Quite,’ Charlie said, ‘quite. Now, let’s get back to your arrest at the aerodrome when you were about to catch the flights back to Nassau. Firstly: Why did you try to take your pistol to Nassau with you?’
Harker gave a shrug. ‘As a soldier I always carried a gun. It’s just something I’m used to.’
Luke sighed: the answer sounded very unconvincing. Charlie continued: ‘And you were using an expired passport, because your valid one had been seized by Mr Humphrey. Did it worry you, offering an expired passport?’
Harker shrugged again. ‘The worst that could happen was that I would be turned back. Mr Humphrey had no right to confiscate my passport, I was in turmoil over Josie and my bloody-minded attitude towards Humphrey and his island was, “To hell with you, you silly old self-important codger, I’m going to Nassau to get those damn port clearance papers.”’
It sounded very rehearsed. But old Charlie nodded earnestly. ‘No wonder you felt bloody-minded –’
‘Objection!’ Vance sighed.
Charlie held up his palms again. ‘Sorry, your honour, but I think it’s fair comment, anybody would be bloody-minded after what the poor man had been through –’
‘Objection!’
‘Okay, but tell us, Mr Harker: as a soldier did you ever operate behind enemy lines?’
‘Yes,’ Harker said.
‘Did you carry a valid passport entitling you to enter enemy territory?’
A titter ran through the court. ‘No, your honour.’ Harker smiled wanly.
‘And while we’re on the subject of soldiering, can you tell us, Mr Harker, how many battles you’ve been in.’
Harker cleared his throat. ‘I have been in exactly one hundred “contacts”. A contact meaning you encounter the enemy and a gunfight follows, an exchange of fire.’ He added, ‘Soldiers keep personal records of details like that. Anyway, it was on my hundredth contact that I was badly wounded and pensioned out of the army as a result.’
The jury were looking impressed. Charlie shook his sore head in wonder at his client’s valour. ‘Now, when you decided to return to Nassau to get your port clearance certificate – as the
daunting Mrs Doris Johnston had so emphatically ordered you to do – you decided to fly there via Guadeloupe. Why?’
Harker took a breath. ‘Because that was the first plane out of the island. I just wanted to get going, I was still in shock over the whole ghastly business, I just wanted to get on the next plane off the island and get to Nassau.’ He sighed. ‘And because Guadeloupe is a French colony I presumed Air France flew there from Europe and would fly on to Miami or maybe direct to Nassau itself.’ He breathed deeply. ‘So, I just bought the ticket from the lady at the desk at the aerodrome, intending to buy an onward ticket when I reached Guadeloupe and enquired as to the best way of getting to Nassau.’
Old Charlie nodded at his client with an earnest frown. ‘Quite,’ he said. ‘Quite,’ as if any sensible soul would have done exactly the same. ‘Now, finally, please tell us what happened after Humphrey arrested you.’
Harker swallowed. ‘I was locked in the cells,’ he said grimly. ‘Which infuriated me. Then he questioned me further. Over and over. Finally he charged me with murder. I was exasperated. Exhausted. Grief-stricken. I apologize, but I called him a silly old fart.’
Charlie said in a stage whisper, ‘I don’t blame you.’ Then loudly: ‘Thank you.’ He sat wearily but quickly.
48
Across the world millions of television viewers saw Jack Harker give that sworn testimony, and most of them were of the opinion that he made an unimpressive witness: he shifted on his seat, he was nervous, he cleared his throat too often, he sounded rehearsed. But when Vance began to cross-examine him they were downright convinced he was lying.
The purpose of cross-examination is to test a witness’s evidence by trying to expose inconsistencies, untruths, improbabilities. Where none of these features are found, sarcasm helps. Cross-examination can be an ordeal for an honest witness who is doing his best to tell the court the truth: it is usually a nightmare for a dishonest one, especially if he is on trial for his life. It was a nightmare for Jack Harker, and good sport for elegant; photogenic Ed Vance.
Unofficial and Deniable Page 39