Lieutenant Johnny Douglas-a jaunty Scotsman with a hawklike profile, impeccable in his khaki uniform-had been assigned to stay with de Marigny, keeping him under informal guard, prior to the Count’s arrest. As he and Freddie were friends, the accused had apparently let his guard down, asking Douglas if a man could be convicted in a British court solely on circumstantial evidence, particularly if the murder weapon was not found.
In his rolling burr, Douglas also claimed Freddie had said of Oakes, “That old bastard should have been killed anyhow.”
Higgs handed the cross to his young second chair, Callender, oval-faced, handsome, slightly overweight but light on his feet as he asked Douglas, “You do understand the accused is a Frenchman, and that the French have different laws than the British?”
“I understand so.”
The Chief Justice sat forward and posed his own question. “Were you aware the accused came from Mauritius?”
“Yes, my lord.”
Callender smiled tightly. “And didn’t the accused ask whether the murder weapon had been found?”
“I believe he did.”
“Now, under the circumstances, wasn’t it a perfectly normal question for him to ask? If a man could be convicted without the weapon?”
“Not an unusual question, no, sir.”
“And did you not say to the accused, ‘They are making a fuss about Sir Harry because he has dough. If it had been some poor colored bastard in Grant’s Town, I would not have to work so hard’?”
“I don’t recall saying any such thing.”
“Don’t you frequently use the expression ‘bastard’?”
“I seldom ever use that word.”
Callender’s smile was gone; he thrust a finger at the dapper little Scotsman. “I put it to you, Lieutenant Douglas, that ‘bastard’ is a favorite term of yours!”
“I deny it.”
“And I further put it to you that you were the one who said, ‘That old bastard should have been killed anyway.’”
“I deny it. Those are the accused’s words.”
“That is all, my lord,” Callender said.
An effective piece of cross-examination-but Douglas was a solid witness. Freddie looked glum in his cage, his cockiness knocked out of him.
The following day began melodramatically, even for the Oakes case: Lady Oakes, allowed to sit in the witness box, in black silk dress with black veiled hat and black gloves, spoke softly, convincingly, of the strain placed upon their family by her daughter’s marriage to Count de Marigny.
She would cool herself with a palm fan, raise a glass of water to her lips with a trembling hand; it was a performance that garnered much sympathy. And, cynical though I may sound, it was a performance: this gaunt, teary-eyed, frail widow was not the strong woman I had met in Nancy’s room back at the Biltmore in Miami Beach.
Not to mention the iron-willed broad who had got me bounced out of the B.C.
Still, I thought of the parade of witnesses designed to make a devil out of Freddie, Eunice Oakes was the weakest. She just didn’t have anything to say: Freddie wrote a “horrible” letter, critical of Sir Harry, to their impressionable son Sydney; Freddie had apparently encouraged Nancy to break from her parents if they would not accept him “into the family circle.”
That was about it.
Higgs asked only six gentle questions by way of cross, including: “Lady Oakes, did you ever hear the accused make any threat of bodily injury to your husband?”
“Of course not,” she almost snapped.
That was the Lady Oakes I had met at the Biltmore!
“And to your knowledge,” Higgs was saying, “the accused’s only complaint was that you and Sir Harry had not accepted him into the family?”
“I assume so.”
“My lord, I have no further questions.”
The rest of that morning and afternoon, too, found the pride of the Miami Homicide Bureau, Captain Edward Melchen, standing in the witness box, fat, florid, fidgety. For several hours, Adderley led Melchen through a rehash of his preliminary hearing testimony, covering the investigation, the arrest of de Marigny, remarks about Sir Harry the accused had allegedly made.
Higgs handed the cross to his eager assistant, and Callender went for the throat almost immediately.
“Captain, what important piece of evidence did your associate James Barker reveal to Lady Oakes and Mrs. de Marigny, at Bar Harbor after Sir Harry’s funeral?”
Melchen licked his lips. “Captain Barker informed them that de Marigny’s fingerprint had been found on the Chinese screen.”
“A fingerprint?”
Melchen shrugged. “He might have said ‘fingerprints.’”
“Did you and Captain Barker travel together, from Nassau to Bar Harbor?”
Callender’s precise British-Bahamian diction somehow made Melchen’s Southern drawl seem lazy, even stupid.
“Of course we did.”
“Did you discuss the Oakes case?”
“Yes we did.”
“Did you discuss the discovery of this most vital piece of evidence?”
Melchen winced; he seemed confused.
“The fingerprint or fingerprints, Captain Melchen. Did you discuss them with your partner?”
Melchen tasted his tongue for a while; then said, “Ah…it never came up.”
“Sir?”
“We did not discuss them.”
The courtroom’s surprise was evident in the wave of muttering that passed over it, and so was the Chief Justice’s, as he looked up from the longhand notes he was taking.
Callender closed in. “You and Captain Barker had been called in on this case, and worked as partners?”
“Yes.”
“You had traveled all the way from Nassau together?”
“Yes.”
“And the first time you heard of this vital evidence, Captain Melchen, was when Captain Barker informed Lady Oakes and Nancy de Marigny of it?”
“Uh…yes.”
“Yet Captain Barker claims to have known about this evidence since the ninth of July, the day the accused was arrested. And now you stand here, swearing under oath that you traveled with Captain Barker from Nassau to Bar Harbor, during which time you discussed the case but Barker never once mentioned this important fact to you?”
“That, uh, is correct. Yes.”
Callender walked over to the jury and smiled and shook his head; behind him on the bench, Chief Justice Daly was asking Melchen, “Do you not now consider it strange, sir, that Captain Barker did not tell you about the fingerprint on your journey to Bar Harbor?”
“Well,” Melchen said lamely, with the wide-eyed expression of a child reporting to his teacher that his dog ate his homework, “now that I think of it…I do remember Captain Barker goin’ with Major Pemberton to the RAF laboratory to process a print they said was of the accused. On the ninth of July?”
The Chief Justice rolled his eyes and threw down his pencil in annoyance.
Callender took advantage of the moment and moved in for the kill.
“Then let us move to July nine, Captain. That is the day you and Captain Barker recommended the arrest of the accused?”
“Yes.”
Callender thrust an accusatory finger. “I put it to you, Captain Melchen, that your preliminary testimony, fixing the time of the accused’s questioning on July nine as between three and four p.m., was a fabrication designed to prove that the accused was not upstairs before the fingerprint was lifted!”
Melchen loosened his sweat-soaked collar; his smile was pained, strained. “That wasn’t my intention at all-my…my memory was at fault on that point. It was just a mistake.”
“Ah, and what a mistake!” Callender sneered. “And what a remarkable coincidence that you and two local constables should make the same mistake.”
Melchen smiled feebly, and shrugged.
“Nothing further, my lord,” Callender said disgustedly.
Next up was Barker himself, but
the rugged-looking, lanky detective-with his direct blue eyes and dark graying-at-the-temples hair-was (unlike his partner) no easily rattled boob. He presented a professional, almost distinguished demeanor, standing casually, confidently, in the witness box, hands in the pockets of the trousers of his gray, double-breasted suit.
The Attorney General himself took the witness, and both the questions and the answers seemed too pat, too precise to me. Over-rehearsed. But the jury-despite the sorry shambling act presented by his partner, Melchen-seemed to be hanging on Barker’s every expert word.
Much of the afternoon was spent establishing Barker’s impressive-sounding credentials, and going back over the investigation of the crime and the arrest of the Count. Shortly after Hallinan guided Barker into a discussion of the fingerprint evidence, however, Higgs made a major play, objecting to the admission as evidence of the de Marigny fingerprint.
“This print is not the best evidence,” Higgs told the Chief Justice. “The screen with the print on it is.”
The Chief Justice nodded, his white wig swaying. “There should be no objection to that. Let’s have the screen itself brought in, then.”
Higgs smiled. “Ah, but my lord-there is no print on the screen now.
Now the Chief Justice frowned, irritation edging in on his confusion. “What more do you want than the raised print itself, and the photograph of it?”
“The print was not ‘raised,’ my lord, but rather lifted by a piece of rubber. And we only have Captain Barker’s word that the print came from that screen at all-this needless destruction of the evidence in its best state has not been satisfactorily explained, and the print should not be admitted into evidence.”
The Chief Justice’s expression was grave. “Do you mean to imply that the prosecution’s print is a forgery?”
“I do, sir.”
The stirring in the gallery was broken by the Attorney General rising to protest. Hallinan asserted the reliability and propriety of lifted fingerprints, explaining that Captain Barker, called to Nassau at short notice, had not brought a fingerprint camera, incorrectly assuming one would be available at the scene.
“Could you not have sent a telegram to your office,” the Chief Justice asked the witness, “and had your special camera arrive by the next plane?”
“I suppose I could have done that, your honor,” Barker admitted. “But I did not.”
It looked like Higgs had them, but the Chief Justice ruled that the fingerprint-Exhibit J-would be allowed in as evidence.
“Mr. Higgs, your argument speaks to the weight of the evidence, rather than its admissibility,” the Chief Justice said, “and I will so instruct the jurors.”
Court was dismissed for the day: it was a tie game at the half.
The following morning, Barker was back in the witness box, and Higgs sat rather placidly while Hallinan finished up with his presentation of the fingerprint evidence; his expert witness was vague about where exactly the de Marigny print had been lifted from the screen, which had been brought into court and stood to the left of the bench.
I wondered if Higgs would sic his pit bull, Callender, on this key witness. But Higgs rose from his chair and tackled Barker himself.
“You’re not prepared,” Higgs said in an astounded tone, even as he moved aggressively toward the witness box, “to say that the fingerprint came off the area marked in the second panel? You yourself marked it!”
“I’m certain the print came from the top portion of the panel I marked. Not necessarily the specific place marked.”
“Captain Barker, step down, would you, and walk to the screen and point out the area marked in blue pencil at the top of the panel.
Barker stepped down and moved smoothly past the Chief Justice and went to the Chinese screen. He studied the top panel, looking closely at the blue line which he’d previously indicated had been made by him.
“Your honor,” Barker said numbly, “the blue line on this screen wasn’t made by me. There’s been an effort to trace a blue line over the black line that I made myself on August first in the presence of the Attorney General.”
As the courtroom murmured, the Chief Justice came down from the bench, joined by Higgs and Hallinan, who stood with Barker examining the blue line.
“I see no black pencil line,” I heard Higgs say conversationally.
And Hallinan, in a whisper, said to Barker, “Look there, man-those are your initials….”
Court was called back to order, the Chief Justice took the bench again, and Barker, back in the witness box, did something remarkable.
“I–I wish to withdraw what I just said,” Barker almost stammered. “On closer examination I located my initials by the blue line.”
Higgs, moving restlessly up and down before the jury, was smiling. No great point of evidence had been made, but Barker’s confident demeanor was shattered: Higgs had him on the ropes, groggy.
“You consider yourself a fingerprint expert?”
“I certainly do.”
“Have you ever, in the many cases in which you’ve given expert testimony, introduced as evidence a lifted fingerprint without first photographing the actual impression of that print on the object in question?”
“Certainly-many times.”
“Name one.”
Barker paused. Gestured nervously. “I would need an opportunity to check my records….”
“I see. When you forgot your fingerprint camera, did you make any effort to get one here in Nassau? We understand the RAF has several.”
“Actually, no.”
“Did you wire Miami and send for one?”
“You know I didn’t.”
“When you dusted the bloody handprints in Sir Harry’s room, didn’t you know-fingerprint expert that you are-that they would be obliterated?”
“I knew it was a possibility.”
“Were they in fact obliterated?”
“Yes.”
“Well, did you at least measure these bloody handprints, to ascertain whether they came from a large hand or small?”
“I suppose I could have.”
“I put it to you that there were other prints on that Chinese screen, which were destroyed by the humidity.”
“That’s true.”
“If the accused was there that night, why weren’t his fingerprints similarly destroyed?”
“We got lucky, finding that one print.”
“Lucky? Is that the appropriate word? Perhaps you should say, ‘It was a miracle that we found it.’”
Melchen, seated in the courtroom, stood; his face was green and desperate. He rushed outside, pushing aside spectators seated on folding chairs in the aisle. At the press table, Gardner stood to look out the nearby window and started grinning. Faintly, despite the churn of fan blades overhead and the buzzing flies, the sound of vomiting could be heard.
“Did it ever occur to you, Captain Barker, that the burns on the accused’s face and arms could have been caused by sunburn?”
Barker glanced over at de Marigny, who sat smiling, eating this testimony up; his pale face mocked Barker.
“Sure,” Barker told Higgs, “but I saw how white he was and ruled that out.”
“Really. Were you not aware that the accused is a yachtsman, and constantly in the sun?”
Barker hadn’t realized de Marigny’s current complexion had to do with spending many weeks indoors of late-in the Nassau Jail.
“I, uh, was struck by the absence of sunburn in a yachtsman.”
Higgs hammered Barker like that all day. He put Barker and Melchen’s slipshod investigative practices-in particular the botched fingerprint work-under a merciless magnifying glass. He made Barker admit that he hadn’t told Melchen about the print until Bar Harbor.
“Captain Barker, I would like you to look at two photographs of fingerprints lifted experimentally by defense expert Leonard Keeler from the area on the screen from which you have testified Exhibit J came.”
Barker took the photographs.
“Can you explain why Exhibit J is so perfect a print-without the wood-grain markings in the background exhibited by these other lifted prints?”
“Well…perhaps these prints were not lifted from the same precise area as Exhibit J.”
“Would you like to experiment yourself, Captain Barker? Would you like to step down and take various sample prints from the Chinese screen, in full view of the court? Perhaps you will be ‘lucky’ again.”
“I, uh…don’t think that would be appropriate.”
“I see. There is, however, a pattern of sorts in the background of Exhibit J, is there not?”
“Yes.”
“Is there anything on the background of that screen that resembles these circles?”
“No, sir.”
“When you were lifting prints from that screen on the morning of July nine, did Captain Melchen bring the accused upstairs?”
“I understand that he did.”
“And didn’t you go to the door of the room where Captain Melchen was interviewing the accused, and ask, ‘Is everything okay?’”
“I did not.”
“Wasn’t the accused’s latent print obtained from some object in that room, possibly the drinking glass Captain Melchen asked de Marigny to hand him?”
“Definitely not!”
And the accusatory finger was thrust. “But it was after he left that room that you claimed to have discovered the print, was it not?”
“Yes.”
Higgs walked away, and his voice filled the courtroom in a manner even the theatrical Adderley could have envied.
“I suggest that you and Captain Melchen deliberately planned to get the accused alone in order to get his fingerprints!”
“We did not!” Barker’s composure was a memory now; he was shouting, sweating.
“Your expert testimony has never before been called upon in a case of such great public interest, has it? May I suggest that in your desire for personal gain and notoriety, you have swept aside the truth and substituted fabricated evidence!”
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