Two men, one of them a miner with dirt-crusted hair, stood talking to the guards. “Let them in,” called Hereford. “That’s Judge Wilson, president of the Junction district. I don’t know the miner, but if he’s with Wilson, he’s all right.” The miner, as grimy as most from long weeks of digging, boots held together by strips of rag, torn trousers revealing portions of his upper thighs, nevertheless walked with a straight back. A faint butternut showed under the dirt, and remnants of gold braid dangled from one shoulder. A former Confederate officer, turned scarecrow.
When the scarecrow spoke, his voice startled Dan, for it was smooth and mellow like fine old brandy, redolent of culture. “Good day, gentlemen,” he said. “I’m Charles Bagg, Attorney at Law.” His brown eyes swept over Sanders’s tidy blue coat and close-trimmed beard. “Until recently, I had the honor to serve the Glorious Cause as a Major, CSA.” They shook hands all around. “I thought you might need some help prosecuting these criminals. Five to two didn’t seem fair.”
Sanders introduced himself and offered his hand. Bagg bowed at Sanders’s former rank – “Then you certainly outrank me, sir.” Bagg turned to Dan, who gave his name, felt excluded from their military understanding because he had not served except to brave Grandfather’s copperhead wrath, the exploding legal arguments about why the Federal Government committed an illegal act by invading the South. Yet Bagg’s handshake was firm, cool, and dry, and his eyes were friendly, and when they had compared legal pedigrees, Dan knew he was on equal footing with both of them, and the three prosecutors regarded each other with satisfaction. Sanders had greater legal experience, Bagg combined legal experience with knowledge of the miners and mining, and Dan had two successful brushes with criminal defense. None of them had ever prosecuted, but Dan considered that would not – someone plucked at his sleeve.
Fitch stood at his elbow. “Ives has an alibi.”
“Shit.” Bagg caught the hairs of his mustache in his teeth, and his jaw moved back and forth, while Sanders swore in a steady stream for several seconds without repeating himself.
Dan looked into his thoughts, saw the distinct possibility that he had been wrong, that they had the wrong man. Ives with an alibi. They were done for. It would all be over. They had the wrong man. He hung his head, stared at the ground, felt the solid earth melting away like ice on the puddles.
Fitch said, gloating over them, happy to have been right all along, “It’s a solid alibi, too. George Brown and Honest Whisky Joe Basak were playing cards with Ives and Carter on the sixth. They’ll testify that the game went on for hours.” He scratched his backside.
“Two witnesses?” Dan’s head came up. “Two?”
“You bet,” said Fitch. “It was a long poker game. They played all day.”
“Good,” Dan said. He wanted to dance, scream, shout, but he only rubbed his hands together as if to lather them well. Two alibi witnesses. They had a chance. He turned away to pace along the wagons. Alibis could be broken, or witnesses discredited. Two witnesses. Hallelujah! The most credible witnesses could be brought to doubt themselves, dates, times. Find the weakness. A stick the size of his forearm fell out of the fire. He picked it up, took out his pocket knife. He could play the two against each other.
Rejoining the other prosecutors, he found that Fitch and Bagg had introduced themselves, and all three men waited for him to explain himself. He was the only one with the right criminal experience. He said, “Fitch, could you buy one of the witnesses a couple of beers?”
“Sure. When?”
“Any time, but whichever one testifies first, take the other one for a drink. Don’t let him hear what the first witness says.”
“What do you mean?” Bagg asked. “Why treat either son of a bitch?”
Dan flipped open his pocket knife. “I once defended a man accused of murdering his partner. He swore to me and everyone that he hadn’t done it, he’d been in a meeting with three other men. One had gone out of town, but the other two would testify.” Dan made the first cut, his knife peeled away the bark as if it were the skin of an apple. “I was so confident. Both men had their stories straight, but when it was the prosecution’s turn, he took the first witness apart, made him look like a lying bastard. I tried to repair the damage with the second witness, but of course we’d had no time to prepare, and the prosecutor annihilated him on the stand.” Dan smiled around at them. “What he did, I can do.” On purpose, he made himself sound more confident than he felt.
“What if Ives does have an alibi?” Fitch demanded. “What if he’s innocent and you get him convicted?”
“If he truly were innocent,” Bagg said, “they wouldn’t think they needed two witnesses. Stark is right. They’re using two witnesses because Ives is guilty. One alibi witness is damn difficult to impeach, but two? That’s easy.”
“Ives killed Nick,” Dan said. “I know he did, and we’ll prove it.” And while he said that, a small still voice nagged at him: What if Ives were innocent? Dan flicked the voice aside with a stroke of the knife. Ives killed Nick, and he would hang. Suddenly appalled at himself, he made another stroke. Nothing else would be justice for Nick: a life for a life.
Hereford waved at the guards to let Smith and Thurmond in.
Bagg murmured, “Let battle be joined,” and Sanders smiled.
Dan’s hand worked the knife faster over the wood. He enjoyed Thurmond’s surprise when Bagg introduced himself. Now he could not play the Secesh card, try to portray the case as a Union plot against Confederates.
Smith, weaving a bit, fired first. “We have some doubts as to the justice of separating the cases.”
Thurmond said, “I have no doubts at all, by God! They’ll be tried together!”
“We’d like nothing better.” Bagg’s voice oozed sweetness as he summarized the choice facing the defense while Dan’s knife sliced over the stick and pale curls gathered at the end. Thurmond could not now pretend either to himself or to others that separating the cases was a Unionist plot, Dan thought. His fellow Secessionist was forcing Thurmond to consider that the three defendants had in truth conspired together to murder Tbalt, and the prosecution would like everyone to believe that, and that they should therefore be tried together and hanged together. Diametrically opposite to what in truth the prosecution wanted the defense to think, and even as Dan worried that the defense would take that, agree with it, and leave the prosecution with no witnesses unless they met any of the three on cross, he knew Thurmond hated the idea. Thurmond must consider his primary allegiance to Ives, and as along as he saved Ives the other two could hang.
Then Sanders intervened to suggest that the three could be tried separately, and Dan smiled in himself to hear Sanders imply, without quite saying outright, that they could be sacrificed as scapegoats for Ives. Granted, Bagg again taking up the argument, if the defense agreed, the prosecution might gain two witnesses, but the two could not be compelled in Common Law to incriminate themselves, and they might well choose to take their chances with the jury rather than split against their good friend Ives. Yes, the prosecution had heard their side of it already, but if they did not testify they would be tried for murder. So, as anyone could see, implying that the power lay with the defense, Thurmond’s esteemed colleagues would advocate for them.
Of course, Dan chimed in, if Ives produced an alibi to prove he could not have done it, that changed things, and he was rewarded by the change that came over Thurmond’s face, from mistrust to satisfaction that the defense had already outfoxed the prosecution by finding an alibi for Ives. Thurmond was too smug.
Fitch opened his mouth, and Dan, as if by accident, stepped on his toe. He apologized, and though Fitch scowled at him, he kept his silence and bit off a chaw. Dan knew his boots would suffer, but the defense must not know that the prosecution already knew about the alibi. Otherwise, they might circumvent the plan to have Fitch take one of the witnesses away.
Thurmond launched into an impassioned speech about Ives’s complete innocence, and D
an knew that he would toss Long John and Hilderman away, to save Ives.
Stealing glances at Thurmond from under his hat brim, Dan could almost watch the man think. Thurmond was saying, “Even with them, you won’t hang Ives. He’ll go free as the air. The jury will see to that.”
Two men, one from Junction and one from Virginia, had agreed to take notes, to act as recorders during the trial. Established at a table by the green wagon, they recorded the agreement for separate trials. They blew on their hands, and worried aloud that the ink would freeze in the bottles. The man from Virginia introduced himself as William Y. Pemberton. He was a compromise between the prosecution and the defense, who had wanted him because he was from Virginia and sympathetic to Ives. He looked young enough not to shave more than twice a week. “I’ll record this, but George Ives is no cold-blooded murderer.”
“Oh?” Pemberton sounded so certain that Dan’s confidence was momentarily shaken. “Why not?”
“I share office space with him in Virginia. He is so affable, so strictly honest in his dealings with customers. Men are always coming and going, you know, ordering horses for their journeys, paying for pasture. He always has a jolly word for them. I like him very much.”
“Good. That way we’ll be sure to have an unbiased record.” But Dan was thinking how clever of Ives the highwayman, the road agent. He pastured men’s horses when not needed, and retrieved them when wanted. Miners who sold their claims and cleaned up for the journey home would take their gold with them, and they could not hide their joy at seeing their families again. They would confide in Ives. He knew when gold was moved.
Thurmond’s colleagues, even Alex Davis, had satisfied looks on their faces. They wanted to try Ives without Long John and Hilderman to muddy the issue. They believed, Dan thought, that separate trials would make everyone’s innocence clear, or failing that, the deal they had negotiated behind Thurmond’s back at least saved two clients, while the alibi would save Ives. Did they not have witnesses to it? Dan’s knife snicked along the wood. He and Bagg and Sanders would break any alibi the defense cared to put up. No, they would not merely break it. They would smash it. Because Ives was guilty as sin.
Meantime, they had separate trials. Round one to the prosecution.
* * *
Berry Woman welcomed Martha into her wickiup festooned with clumps of dried herbs on their stalks, bags that held their contents secret, hampers and round containers made of woven strips of reddish bark. By signs and some English, Martha asked and learned. She ventured a word or two of Grandmam’s language, Cherokee. Berry Woman listened with her head cocked to one side, her eyes bright and interested, and gave back word for word in her own language, that Lydia Hudson had said was Crow.
After all, it was not so much different from visits between white women, although they sat on the floor, insulated from the cold by the pungent bear rugs that covered every inch, except for the fire in the center. They drank a tea that Martha found delicious, though she had never tasted it before. She asked what was in it, and soon the two women were exchanging recipes for teas to drink for various ailments.
Their talk swung to food recipes, and Berry Woman put her feet under her and stood up. She lifted the lid from a tall, rounded container of woven red bark, and revealed a winter’s supply of bricks wrapped in deerskin. “Camas cakes,” Martha understood her to say as she unwrapped one. When they were seated again at the fire, Berry Woman unwrapped the cake, and cut off two pieces as if she sliced a pound cake.
Martha found the cake slightly sweet, though too bland for her taste, but when she sipped tea to wash the taste away, the taste burst out on her tongue. Not too sweet, not at all like candy, the camas had more a hint of sweetness in something earthy. The aftertaste laid at the back of her tongue, heavy and tasting of the earth. Delicious. She reckoned not all white folks would like it, but she could make much of it, smiling and nodding and smacking her lips.
When she left, Martha held bags of dried plants, some she could use in treating various ailments, some for eating, and a treatment for typhus that was all around her if she’d had the wit to see it – juniper. Best of all, she had made another friend.
* * *
The sun drifted into the sky as if the mythical horses pulling its chariot were tethered to a line just slack enough for them to clear the mountains, drive the night back across Alder Creek. Amid rising ground fog, the crowd milled and shouted, but Dan, no longer worried about bullets from the dark, could see the closer faces, who cursed him, who yelled for his blood. The occasional gleam of an eye, hooked nose, lips distorted in cursing, all resolved themselves into recognizable men. He could be a credible witness at their trials for his – attempted – murder.
Bagg fired the opening question in the next battle. “We are concerned, gentlemen, to be fair to everyone, Unionist” a bow to Dan and Sanders “and Secessionist alike.” A bow to the defense. “So, which Constitution do we use?” He beamed at them. “The Federal Constitution, or the Confederate?”
“Oh, shit.” Fitch lifted his hat and scratched his head, and his wiry hair stood on end in a way that reminded Dan of Miss Dean’s terrier, whose coat bristled in just that fashion. “Why can’t we just try Ives and get done with it? This way we’ll be here till my boy rises at the last trump.”
Dan could not blame him. Having changed his mind about Ives, Fitch wanted the trial over and done with. What would he think if he knew Carter was involved? Would he seize on Carter as an alternative to Ives because he and Ives had been friends? And where was the guard who went to learn Carter’s whereabouts?
“Wait a minute.” Dan spoke without taking his eyes from the stick. “We have not settled the jurisdictional question.”
The lawyers, by unspoken consent, moved farther from the fire to confer by the green wagon. The mining district presidents, Wilson of Junction, Byam of Nevada, who were also the judges of their miners courts, listened. “That’s not for you to decide,” Byam glanced at Wilson, who bobbed his head once, and said, “That’s our decision. We agreed to share it.”
“Who presides?” asked Sanders, overriding Thurmond’s objections.
“We both will. This thing is too big for just one man to look at.”
“I protest!” Thurmond began, but Wilson cut him off.
The Junction president’s bass lectured Thurmond. “You been panning that ground all day without striking pay dirt, so you’d best pull up stakes on it. Miners court rules is clear, the boy was murdered closest to Junction. We just got organized, so Nevada’s helping us out. Me and Byam will go shares on the judging, and anybody what don’t like it can go to hell.”
Silence. Thurmond’s lips moved soundlessly, Smith smiled down the neck of a bottle, and the corners of Bagg’s mouth twitched. The recorders bent their heads to write, and one hid a smile.
“That seems clear enough,” Dan said. And it was clear. A few months ago he would not have understood that Wilson was telling Thurmond to stop harping on the same complaint, that he had exhausted it, and should abandon it. Now Dan, too, thought in terms of mines, claims, pans, stakes that marked claim boundaries.
Sanders reminded them, “The Constitutional question.”
Thurmond shouted out, “The Constitution of the Confederacy, of course!”
“You bet!” said Fitch.
Dan ground his teeth, and at the same time felt Sanders touch his elbow. Neither of them could bring themselves to call the Secessionists’ outlaw paper a Constitution. There was only one – the U.S. Constitution. He drew in a breath, let it out slowly, forced himself to calm, to bank his anger. The time would come.
The judges looked from one group to the other. Did they understand what this meant? Dan wondered. Certainly the crowd did not. Straining to hear, impatient with the lawyers’ jabbering, they caught the word Confederacy, and cheered, mixed with some booing. Clearly, the Confederates held the majority.
The defense attorneys, Secessionists all, would argue into the night if they could,
to wear down the prosecution, and Thurmond, at least, regarded Bagg as a traitor because he would not side with them. Dear God, let us all hold out, Dan prayed without knowing. Give us strength, or Ives could go free from sheer fatigue on the part of the prosecution.
“Put it to a vote!” Alex Davis surprised them all. He had been quiet up to now, so that Dan had been on the way to forgetting about him, but now one of the other defenders said, “The boy’s right! Let the jury vote on it!”
Smith held up a steady hand, palm out. “Not so fast. Why choose a Constitution? Why is this a question?”
“When Congress created this Territory,” Sanders said, “it failed to account for the passage of law from the Constitution to the Territory.” He rocked on his heels as he waited for them to grasp his point.
Dan said, “That means the Constitution does not apply here.”
“It doesn’t?” gasped Smith.
“That is correct,” said Sanders. “Until the Idaho Territorial Legislature meets in Lewiston to declare the Constitution applicable, no uniform code of law applies to the Territory as a whole. Nothing. My uncle Edgerton feels that until the Legislature meets, any court he presides over might be guilty of applying the wrong body of law, and the proceedings will be null and void.”
God's Thunderbolt: The Vigilantes of Montana Page 13