by Alan Hirsch
Undaunted, Cussen responded, “My Lord, if I could put perhaps two or three further questions, it may well be I shall be moving then to another matter.” Aarvold granted permission. And now, having asked some thirty-five questions that seemed irrelevant to the matter of Bunton’s innocence or guilt, Cussen posed the question that perhaps revealed his underlying strategy.
“Mr. Bunton, do you agree that your telling your friend in the way you described. . . is an important feature in the account you have given the Court?”
Bunton would have been justified in saying no, but he rose to the bait and agreed that this long diversion was in fact “important.”
Judges sometimes instruct jurors that if they find a witness demonstrably dishonest with respect to any issue, they are justified in doubting his entire testimony. Whether or not he could procure such an instruction, Cussen seemed to be tapping into that sensibility. He was surely right to think that Bunton’s account of why he came forward was dubious. But the jury might well infer that he had come forward for some other reason, or that he was protecting someone by dissembling, without necessarily concluding that everything else in his testimony was false. Surely, the barrister would have benefited by showing more salient aspects of Bunton’s account to be false. That would not have been difficult. (To take just one example, why had Bunton failed to maintain a consistent story of what he had done with the painting’s frame?)
Cussen apparently felt that Bunton was protecting a significant accomplice, someone who had done more than learn about the theft four years after the fact, and that the jury would realize as much and therefore reject the more important aspects of Bunton’s testimony, such as whether he wrote the disputed May 20, 1963, letters and whether he intended to return the painting all along.
“Apart from your friend being told by you what had happened, which you say is all truthful as you have told the Court, apart from that, did he give you any assistance of any kind?”
“None whatever.”
“Either before you told him or after?”
“No.”
“He is the first person to have been given the account which in effect you have given to the Court today?”
“That is so.”
“Let me ask you again: Will you tell the Court his name and, if you know it, his address?”
“I am not involving anybody in this affair.”
Cussen turned to Judge Aarvold: “This would be a convenient moment [for a recess].”
The judge ordered a brief adjournment.
Chapter 17: THE DEFENDANT ON POINTS
When the trial resumed, it took another curious turn. Judge Aarvold announced, “I have a note from the jury that they are anxious to see the Goya portrait again.” Though it is hard to fathom why that anxiety manifested now, Cussen assured the judge that he would arrange for The Duke’s return to the courtroom the following morning. Then he turned toward the witness and resumed his questioning, promising, “just one more question on the matter” of the man Bunton had told about the theft.
“What is the name of the public house where this conversation took place?”
Bunton replied, “The Howlett Holt Hotel,” and at last the issue was put to rest.
Cussen turned to Bunton’s motive, asking a series of questions rehearsing Bunton’s protests and punishments over the BBC fee and the fact that he had stolen the Goya as a combination reprisal (for the government making a substantial expenditure on a painting while short-changing old folks) and solution to a pressing social problem. Bunton took the opportunity to preach the old gospel and claim partial victory. “Television is the greatest time killer for lonely old folk and television is denied to them because of a £4 pound license, and the things that I have done have at least brought some light on that fact.”
Cussen pounded away at Bunton’s motivation for taking the painting, and Bunton seized the opportunity to reinforce the defense narrative: “If the collection failed, the portrait was no earthly good to me, and it would just have to be returned.”
Cussen asked whether Bunton had ever considered that the authorities might ignore his ransom notes.
“Never for one moment.”
“Did you make any plan at all as to what you would do if you did not get anything out of them by way of agreement to your orders?”
“No plan whatever.”
During this portion of the questioning, Bunton stayed on message, even when it meant ignoring a question and instead reciting a defense talking point. In response to a long question about whether he planned to hold on to the painting indefinitely if his demands were not met, he replied, “Well, I would never have done any harm to the picture,” leading the frustrated Cussen to reply, “I was not touching on the question of harm to the picture.”
Over and over Cussen tried to elicit that Bunton would have kept the painting if his plan had failed, and over and over Bunton insisted otherwise. “The picture was no good to me and there was never any thought of keeping it for evermore.”
Bunton’s lawyers thought he was doing fine, although he occasionally forgot that their strategy included contrition. When Cussen suggested that Bunton was “punishing the authorities very effectively for what you thought was their gross error in relation to licenses for old age pensioners,” Bunton took the bait: “I still think it was the thing to do.”
As such honest but improvident boasts illustrate, the effectiveness of Bunton’s testimony tended to vary inversely with his candor.
Cussen turned to an issue that seemed irrelevant for his purposes but would prove important to the judge—Bunton’s claim to have had “very bad influenza” during the two weeks prior to the theft. He asked how Bunton had been feeling on the night he took the painting.
“Very bad.”
Cussen sought to discredit the defendant by bringing up one of Bunton’s oddest utterances—his statement to the police that “I wasn’t after this painting, no more than any other.” It was a remark that, in handwritten notes in their case file, Bunton’s lawyers called “troublesome,” but Bunton had already clarified at his deposition that “I made this reply because I did not think it was relevant at that time to say that I was after this particular painting. However, at the time I really was not after any other painting, only this one.”
At trial, he offered a different explanation for the odd statement: “What I meant was if that painting had not been handy I would have took another.”
“You have not mentioned the possibility that if the Goya was not there you would take any other picture.”
“No. I fully expected it would be there,” Bunton replied.
Cussen again sensed weakness. The entire defense narrative was that the expenditure of £140,000 on a single painting infuriated Bunton and inspired him to take that very painting to raise that very amount in service of his pet cause.
“Mr. Bunton, if in fact you could not have taken the Goya and you were really down in London to take the Goya to help the old age pensioners as you have explained, there would not be any question of taking something else, would there?”
“Yes.”
“Whatever for?”
“Because all the pictures were valuable, and it was money I was after.”
Cussen proposed that Bunton’s motive was not in fact to raise money for charity but rather “revenge for the way you had been treated about the T.V. license.” Bunton denied the suggestion.
Cussen next asked a question whose answer should have raised alarms, notwithstanding the fact that Bunton had given it before: “What time did you go into the National Gallery on the 21st of August?”
“Well, it would be between five and six in the morning.”
Technically that would have made it August 22, but the date was hardly the issue. The problem was that his time frame seemed at odds with conclusive evidence that the painting had been taken hours earlier: Two different security personnel reported noticing it missing by midnight. Indeed, in defense counsel’s copy of the depositio
n of warder Sydney Settles Cadman, next to Cadman’s comment that he noticed the painting’s absence between midnight and 12:30 A.M., one of the defense lawyers scribbled in the margins: “The difference in timing between this and Bunton’s statement (5:20 or 5:50 A.M.) may be significant.”
Significant indeed, and yet neither side called Cadman as a witness. Instead his deposition was read aloud to the jury, accompanied by the judge’s explanation that it was “accepted by the prosecution and by the defense.” Because of the weird posture of this case, neither side wished to probe the time of the theft.
Cussen changed the subject, inviting Bunton to offer details about how he had gotten the painting out the lavatory window and safely to the ground. In response, Bunton offered more elaboration on this specific point (albeit in a single sentence) than at any prior time.
“I got a box, I had a box, an empty beer bottle crate box, and I had a bit of a clothes line, and I lowered it, pulled it up and lowered it down.”
Cussen did not ask where these materials (never before mentioned) had come from. Instead he expressed understandable surprise that Bunton had managed all this by himself and then walked with the painting to his car, all the while suffering from influenza.
“If I walked slowly there was no fatigue,” Bunton replied.
“When you walked from the back of the National Gallery to the wall, over which you had to climb, carrying the portrait with you, are you saying at that time you always intended to return it?”
“Absolutely. It was no good to me otherwise. I wouldn’t hang it on my own kitchen if it was my own picture.”
This response by Bunton prompted the courtroom to burst into laughter. When it subsided, Cussen asked whether, having gone to all that trouble to attain the painting, Bunton then intended “to bring pressure to bear on the authorities to do what I want.”
“No, I was going to request the authorities,” Bunton said, avoiding the trap.
Cussen asked whether Bunton enjoyed the ensuing publicity over the theft.
“Well, I thought the publicity would make some spirited minded chap get up and say, ‘Yes, I will start a collection.’ That was the only benefit from the publicity that would do me any good.”
Cussen returned to Bunton’s whereabouts and activities in the immediate aftermath of the theft; and asked a half dozen questions about Bunton’s knowledge of the geography in the Kings Cross area, where he had been staying at the time. Cussen then pivoted from questions of space back to questions of time, finally asking Bunton about the biggest hole in his story: the timing of the theft. He noted testimony by the warder that he personally noticed the painting’s absence around midnight.
“You are telling the Court that you had taken it in the early hours of the morning, of the morning after?”
“Yes.”
Having at last raised this key issue, Cussen now said, oddly, “For the moment I will leave that matter because I do not want there to be any confusion in your mind about it.”
Once again, Cussen occupied a curious position in a weird dance between the two sides. On the one hand, he had powerful evidence that Bunton had misstated the timing of the theft—a falsehood central enough that it would cast doubt upon Bunton’s entire account. On the other hand, Cussen did not want to destroy Bunton’s entire account. After all, Bunton’s confession constituted the case against him. If he got the timing of the theft wrong, might that be because he wasn’t the thief? Prosecutors are supposed to prioritize truth over victory, but few wish to torpedo their own case—even if it seems flawed.
Cussen turned to the crucial question of the frame. The prosecution’s clever decision to draft a separate charge accusing Bunton of stealing the frame posed a major problem for the defense. The defense argument that Bunton did not intend to permanently deprive the gallery of the painting was a harder sell with respect to the frame. After all, he had returned the painting; he had not returned the frame.
The defense could make a plausible argument: Notwithstanding what Bunton had and had not returned, or precisely what he did with the frame, why in the world would he wish to keep the frame without the painting? But the prosecution could counter: Maybe he entertained no specific wish to keep the frame but nor did he plan to return it. Perhaps he had destroyed and/or discarded it (as he initially claimed). While that would not necessarily prove that, at the time of the theft, he intended to deprive the gallery of the frame permanently, at a minimum it complicated the claim that he intended to return the frame. And, regardless of speculation about his intentions, if jurors believed that Bunton had discarded or destroyed the frame, they might be less inclined to acquit him based on speculation about his state of mind.
He had testified that he had removed the painting from the frame to make it easier to handle. He had further testified that he had left the frame at a Kings Cross apartment where he had taken up lodging shortly after the theft and that he had recently tried unsuccessfully to locate that apartment for the purpose of retrieving the frame. Cussens probed this claim.
“[You] put [the frame] in the cupboard under the stairs?”
“Yes.”
“Do I understand you to tell the Court that you have never been able to find the house where you left the frame?”
“Well, I have been looking around, but all the streets of this city seem to me to be all alike.”
“You are quite used, I suppose, to finding your way about streets with which you are not too familiar?”
“Well, you mean the taxi work in Newcastle?”
“Exactly.”
“If you know the city 50 or 60 years, you naturally can find your way around, but not London.”
“Your profession led you at all events to having to find the way even though it was not your own City?”
“Yes.”
“You found your way in the early hours of the morning when you were walking from the National Gallery to your first lodgings?”
“Yes.”
Cussen asked whether Bunton had sought help in finding the apartment where he had stored the painting and left the frame.
“We made an appeal for the landlady to come forward if she had a frame in her lumber cupboard,” Bunton replied.
“Have you ever been up there on foot looking for it, or have you been in a car looking for it?”
“Yes, I have had several walks around, but the districts are pretty much the same to me. . . . Four and a half years is a long time.”
“Did you want to find your second lodgings where you say you left the frame?”
“Well, it would be interesting to see if it was still there.”
Cussen did not probe this strange response but did continue probing about the landlady and the frame.
“Did it occur to you to ask the police to help?”
“No, it didn’t.”
Judge Aarvold interjected, asking Bunton, “Why not?”
“I never thought of it, my Lord.”
Aarvold followed up, “Who else would know the district better than the local police?” which elicited a cryptic response.
“I imagine shops are the same kind of shops one year, and the next year they are fruit shops.”
The judge persisted. “Maybe. Who would know that better than the local police? That must be obvious to a taxi driver.”
“Well, it never crossed my mind, my Lord.”
Aarvold gave up, and Cussen resumed questioning. He reminded Bunton that he had initially told the police that he had destroyed the frame and thrown it in the Thames. Bunton declared that he had dissembled at the time but was now telling the truth. Cussen insinuated that Bunton had changed his story about the frame when and because the prosecution had added “stealing the frame” as a separate charge. If Bunton had deposited the frame in the Thames, he had intended to “permanently deprive” the gallery of it. If, instead, he had left it in his apartment and hoped to retrieve and return it at some point, as he now conveniently claimed, he had lacked criminal intent. Bunton stood
his ground. He claimed that he had initially concocted the story about the Thames to protect his landlady.
“It is very important indeed, and vital, is it not, to find [the frame] if possible?” Cussen asked, prompting a bizarre response from the unfazed defendant.
“Well, it could turn up any day.”
Cussen then came as close as he would to calling Bunton a liar, albeit in his own genteel fashion.
“Is not the real truth, Mr. Bunton, that this cupboard under the stairs is an afterthought on your part because you realized that you might be in a difficulty if it had been destroyed on the embankment by being put in the river?”
“That is quite wrong.”
Cussen dropped the frame and turned to the portrait itself, which Bunton claimed to have kept in his Newcastle house from September 1961 through May 1965.
“Did you ever look at it?”
“I never looked at it. Yes, I did, I’m telling a lie there. I took it out to take the label off.”
“Did you tell your wife it was there?”
“No, the world would have knew if I told her.”
Cussen pressed ahead about the decisive matter of Bunton’s intentions. When pushed by his skeptical interrogator, Bunton played his trump card.
“Are you sure you really ever had any intention of returning it at all?” Cussen asked.
“Well, I did return it, didn’t I?”
Cussen elicited that no one but Bunton had known the whereabouts of the painting and then suggested the problematic implications.
“What was going to happen if by some misfortune you were run over and killed by a bus?”
“Well, I nearly was. It would have been just unfortunate, that’s all. Well, I never gave it a thought really.”
“How comes it that you made no arrangements of any kind to cover [the painting’s] return in the event of your death?”
“Well, one doesn’t think of death over a short period.”
Cussen asked several more questions designed to show that Bunton had not planned all along to return the painting. But Bunton insisted that the painting “wouldn’t do me any good in the cupboard” and rejected out of hand the prosecutor’s suggestion that he derived “mental satisfaction from knowing what nobody else knew.”