Unconvicted

by Olly Jarvis

  ‘I will, Your Honour,’ Jack replied, without taking his eyes off Father Bailey. ‘Well?’

  ‘I don’t know.’

  ‘I thought you still get in if you’re sorry? Isn’t that Catholic doctrine?’

  The ends of Bailey’s lips lifted slightly. ‘If you confess your sins.’

  ‘Do you confess your sins?’

  ‘That’s between me and God.’

  ‘Not if it relates to this case – then the jury is God.’

  The witness instinctively looked across at the twelve.

  ‘You’ve been to confession about this case, haven’t you?’

  ‘There’s no basis for that assertion, Your Honour,’ said Katterman, leaping up.

  ‘Yes,’ revealed the witness before the judge had a chance to intervene.

  The tension in court was palpable.

  Jack’s instinct had been right – the witness had something to hide. ‘Was it about Natasha?’

  ‘Yes.’ Bailey dropped his head. ‘We’d become close. I’d helped her cope with Tim’s deterioration.’

  The hushed intensity enveloped the courtroom.

  ‘You were having a sexual relationship?’ Jack waited for a response.

  A barely perceptible dip of the head.

  ‘The tape recorder won’t pick that up, Father,’ Jack explained gently.

  ‘Sorry, yes,’ Bailey mumbled.

  ‘Why didn’t you tell the authorities?’

  ‘What was the point? Why trample over her memory?’ He looked over at Joyce Simpson. ‘Her family have been through enough without this complication.’

  ‘And you wouldn’t have had to admit to breaking your vows?’

  ‘Mr Kowalski!’ Finlay interjected. ‘That is wholly unnecessary.’

  Jack pressed on: ‘But you also lied in your statement – and then in your evidence – about something else, didn’t you?’

  ‘What do you mean?’

  ‘Where you were when you saw Mr Smart pull up on the lane?’

  ‘Oh, that. A white lie. I was coming out of Natasha’s front door.’

  ‘Why not say that in your statement?’

  ‘I didn’t want to complicate things by having to explain what I was doing there to the police.’

  ‘You could’ve said you were visiting, in your role as a priest?’

  ‘I know. I suppose I felt ashamed, it was cowardly.’

  Jack was worried he was destroying a man’s character for no good reason. ‘So where did you go after you came out the front door?’

  ‘I saw Tim’s car pull up and so I went through the hole in the hedge, that’s it.’

  Not the great revelation Jack had hoped for. ‘Did you actually see the defendant get out of the car?’

  ‘Yes, I did.’

  ‘But you must have been fifty metres away?’

  ‘Yes, probably.’

  ‘How could you be sure it was him at that distance?’

  ‘His car, his cap, his gait.’

  ‘But not his face?’ Jack asked, desperate to salvage something.

  ‘I can’t remember specifically.’ He thought about it. ‘Maybe not.’

  ‘So—’

  ‘That’s quite enough now, Mr Kowalski,’ Finlay cut in.

  Jack sat down. He’d thought he was getting somewhere, but all he’d done was destroy a priest’s reputation and trample all over Natasha Smart’s memory. He’d acted out of a desperation to deny the truth: that he was partly responsible for Natasha’s death. He felt wretched.

  Katterman tutted at Jack then got to his feet. ‘Thank you for coming, Father Bailey. Your Honour, that is the case for the Crown.’

  ‘Thank you, Mr Katterman. I’ll rise, the jury can have an early lunch. Speeches in an hour, gentlemen.’

  Katterman gave an obsequious bow.

  His Honour left court.

  It was over.

  Chapter 86

  Still in their seats, Jack and Lara were the only people left in court.

  ‘I’m sorry, I don’t know what happened there,’ he said without turning around.

  ‘What made you go in so hard?’

  ‘Those bloody Bible quotes,’ Jack replied, his words echoing around the empty courtroom. ‘I was sure it was Smart’s way of telling me Father Bailey was somehow involved. Over-analyzing as usual.’

  ‘We all make mistakes, Jack.’

  ‘I needed to believe Smart didn’t do it, in the face of all that evidence.’

  ‘I understand.’

  ‘Hoping to get myself off the hook.’

  ‘Who knows, maybe you were right, maybe just looking at it in the wrong way.’

  ‘No, Bailey had nothing to do with the murder – I would’ve felt it.’ Jack screwed up his list of quotes and tossed it across the courtroom. ‘I was so sure Smart was trying to tell us something.’

  ‘Me too,’ Lara said. ‘He actually said to me and Dobkin: “Why don’t you understand?”’

  ‘Really, those exact words?’

  ‘I think so, something like that.’ She pulled out her notes from the prison visit. ‘Why do you not understand what I am saying?’

  Jack repeated the words. The construction was familiar. He Googled the phrase. ‘It’s from the book of John.’ He read on. ‘There it is again,’ he said. ‘Too many coincidences, you could be right, I was looking at it in the wrong way.’

  ‘What do you mean?’ asked Lara.

  ‘You’ll think I’m losing it.’

  ‘Try me?’

  Jack’s mind was racing ahead. ‘The DNA expert on the rape – tell the prosecution we need her here.’

  ‘What? It’s too late, they’ve closed their case.’

  ‘I know,’ Jack replied, angry with himself. ‘Well, let’s make them re-open it.’

  ‘Don’t hold your breath,’ said Lara, leaving to find someone from the CPS.

  ‘Just tell them to get her here, then we can argue it.’

  ‘I’ll do my best, but don’t forget you have to make a speech.’

  Jack was too busy going back through the brief to hear her.

  Chapter 87

  ‘All rise!’

  His Honour Judge Finlay came into court.

  ‘We were informed by the defence over the short adjournment, Your Honour,’ said Katterman, glancing across at his opponent for effect, ‘that rather than move to speeches, they wish the prosecution to reopen their case and call the DNA expert, Doctor Susan Miller.’

  The judge huffed. ‘I don’t understand,’ he said, incredulous at the latest ploy. ‘All the evidence has been heard, Mr Kowalski, and in any event, the prosecution were not relying on the DNA evidence.’ He leaned forward. ‘As you know, it had been agreed by previous counsel, on both sides, that the evidence was inadmissible due to its prejudicial effect on the defence.’

  ‘I know, Your Honour, but there is a matter which I need to explore. It will only take a moment and—’

  ‘Mr Katterman?’ asked Finlay, sick of hearing Jack’s excuses. ‘Can we get the witness here?’

  ‘She’s outside, Your Honour.’

  ‘Any objection?’

  ‘None, Your Honour,’ Katterman replied, delighted at having another opportunity to see the young barrister make a fool of himself.

  ‘Thank you for being so accommodating, Mr Katterman,’ Finlay replied. ‘Jury in.’

  ‘Your Honour, I call Doctor Susan Miller.’

  The expert, still out of breath, was brought into court. Smartly dressed in a two-piece suit, she took the oath. She brushed some stray strands of greying hair behind her ear and reached for her glasses, which hung on a cord around her neck.

  ‘I tender this witness to the defence,’ Katterman announced to the jury.

  Jack got up. He only had one question. He knew it could backfire, but it was the only way he could test his theory. He began his run-up: ‘Firstly, thank you for coming at such short notice, Doctor.’

  ‘It’s quite all right,’ she replied, nervously
trying to understand why her attendance had been required.

  ‘You are an expert in the analysis of DNA?’

  ‘Yes, I am.’

  ‘Put simply, people tend to leave traces of our DNA on things we have come into contact with?’

  ‘Yes, that’s right.’

  ‘Getting straight to the point: a vaginal swab was taken from the deceased, Natasha Smart, following her allegation of rape?’

  ‘That is correct.’

  ‘You also took samples of DNA from Natasha Smart and the defendant, following his arrest?’

  ‘That’s correct.’

  ‘This was done so their DNA profiles could be compared with what was found on the vaginal swab?’

  ‘Yes.’

  ‘For the purpose of this cross-examination, I don’t need to go into the science of your methodology, save to say that everybody has a unique DNA – it’s like a barcode?’

  ‘Yes, apart from identical twins.’

  ‘Of course, thank you.’

  ‘Now,’ Jack took a sip of water. ‘The DNA you recovered had two problems – one was that it was a partial profile, and the other that it was a mixed profile?’

  ‘Yes, that’s right.’

  ‘Perhaps you could explain what that means?’

  Like all experts, she was eager to share her learning. ‘A mixed profile is where the components of two different DNA samples are recovered. Sometimes they can be separated, but in this case they were not. That makes it difficult to compare the profile with a sample.’

  ‘So you had the DNA of two people, like two bar codes mixed together.’

  ‘You could put it like that.’

  ‘And if they were partial profiles, does that mean you didn’t have the full code, as it were?’

  ‘Yes, and again, that makes it difficult to compare them with the samples.’

  ‘Doctor, normally if you had a full profile that wasn’t mixed and it matched the sample, you would say it was that person’s DNA, or more accurately, that there would be a one in a billion chance of you being wrong?’

  ‘Broadly speaking, yes.’

  ‘But here, you couldn’t say there was a match?’

  ‘Correct.’

  ‘But there was enough information there to say that you couldn’t rule out Natasha Smart as a contributor to one of the profiles?’

  ‘That’s right.’

  ‘And in fact, that’s what you’d expect – it being her swab?’

  ‘Yes.’

  ‘As far as the other profile found on the swab was concerned, you couldn’t rule out the defendant as being the contributor?’

  Surprised that the question was coming from defence counsel, the witness instinctively looked at the judge before answering.

  ‘Are you sure you want to go down this path, Mr Kowalski?’ Finlay asked, bemused and angry by the reckless and obviously damaging cross.

  ‘I am, Your Honour,’ Jack replied. ‘Doctor?’

  ‘Yes, I couldn’t rule out the defendant, but it is important to stress that I could not say it was his DNA.’

  ‘Of course,’ Jack replied. Now for the moment of truth: ‘So does it follow that similarly you couldn’t rule out the DNA profile as being from a member of Timothy Smart’s family?’

  It took a moment for the courtroom to realize where Jack was going. ‘His family?’ the expert repeated.

  ‘Yes,’ Jack pressed. ‘Close relatives have very similar DNA, do they not?’

  ‘I would have to see the relative’s DNA before I could answer that.’

  Jack could see the point slipping away. ‘But since relatives have very similar profiles, it is likely that a relative could be the contributor?’

  ‘I am a scientist, Mr Kowalski. I cannot speculate about a profile I have never seen.’

  ‘But Doctor, surely—’

  ‘Mr Kowalski!’ interrupted the judge. ‘She has already answered the question, now sit down.’

  Everyone in court was staring at Jack. He came to his senses, suddenly aware of how desperate and fruitless his cross-examination had been. He fell back into his seat.

  Katterman waited a moment before getting up, allowing the press to soak up Jack’s antics.

  An elderly female voice pricked the silence. ‘I would like to say something.’ Hilda Smart stood up slowly.

  Chapter 88

  PC Khan led his old friend into an interview room. ‘Well?’ he said coldly. ‘They said you wanted to see me?’

  ‘I need you to understand,’ said Jammer.

  ‘What’s to understand? You let that kid take the rap for you.’ Khan shook his head. ‘I thought I knew you.’

  Jammer leaned forwards into his hands, his dreads covering his face. ‘Everything was closing in. I couldn’t cope.’

  ‘Cope with what?’

  Jammer slapped his head with both hands, and again. ‘With what’s in here, the remembering.’

  ‘Of what?’ asked Khan, raising his voice.

  ‘Abuse. When I was a kid.’

  ‘I never knew,’ said Khan.

  ‘Why would you? Muslims don’t go to Sunday School.’

  Khan remembered. ‘The priest?’

  ‘No, some bloke that helped out.’

  Half-forgotten memories and childhood rumours. ‘It doesn’t justify anything.’

  ‘I know, but that’s why I never had a chance. The crime, the drugs, that was why.’

  For such a familiar story, Khan couldn’t understand why he’d never worked it out when it was so close to home.

  ‘I turned it around, wanted to make things right.’

  ‘You don’t think you gravitated towards young people because of what happened to you?’

  ‘Maybe, but I was good at what I did.’

  ‘What about Dixon?’

  ‘He was over sixteen.’

  ‘He was in your trust,’ said Khan. ‘You won’t have my sympathy blaming everything on your past, that’s what the paedos do. You had a choice, Jammer.’ Khan stood up. ‘You done?’

  Jammer shook his head. ‘Sit down.’ He let out a deep guttural moan, then, looking up at his friend, imploring him to listen, he said: ‘There’s something I need to confess.’

  For a moment, Khan saw the child in Jammer’s eyes, the one he’d known all those years ago. He sat back down. ‘Confess what?’

  Chapter 89

  Hilda’s husband tried to pull her back into the seat. ‘Come on, dear, don’t torture yourself.’

  ‘I want to give evidence,’ she said with more certainty.

  ‘Your statement was read to the jury, Mrs Smart,’ the judge explained to the seemingly confused old woman.

  ‘There are things I want to say.’

  The judge looked to prosecution counsel.

  ‘Well, if there’s something you feel should be said,’ Katterman offered gently, not forgetting he was in front of the jury. ‘Please help her, madam usher?’

  Hilda Smart was led into the box.

  Once she’d sworn an oath on the Bible, Katterman asked: ‘What would you like to tell us, Mrs Smart?’

  ‘That I’m sorry.’ She turned to face Mrs Simpson. ‘I’m so sorry, Joyce.’

  Joyce Simpson looked away.

  ‘It’s not your fault, Mrs Smart,’ said Katterman.

  ‘But it is,’ she whimpered. ‘We made him like that.’

  Embarrassed, Katterman and the judge didn’t know what to do. How could they cut short the old woman’s ramblings sensitively?

  ‘You mustn’t blame yourself,’ offered Finlay.

  ‘I think we were too strict with him when he was a boy.’

  That was enough. Finlay signaled to the usher. ‘Help Mrs Smart back to her seat, please.’

  The usher walked up to the box to take her arm.

  ‘What do you mean, too strict?’ asked Jack, unable to believe his luck.

  ‘Mr Kowalski!’ boomed the judge.

  ‘Just a few questions, Your Honour. Once the witness has been sworn I h
ave a right to cross-examine.’

  Hilda Smart looked at Jack: ‘We used to be quite physical with him.’

  ‘You mean you beat him?’

  ‘Well, we punished him.’

  ‘Be very careful, Mr Kowalski,’ said the judge.

  ‘You yourself did?’

  ‘Jeremy did, but I didn’t always agree with him.’ Her anguish was obvious to all in court. She had clearly been wrestling with her conscience since the murder. ‘He was a quiet boy, shy. Jeremy said it would toughen him up, make him a man.’ Smart shook her head. ‘I think we made him worse.’ She took out a handkerchief and wiped her eyes, but she had no tears left to shed.

  ‘That afternoon,’ asked Jack, changing tack, ‘when it all happened, you said you saw your son go out in his car?’

  ‘That’s right. I’d been having a nap in the bedroom. I think I was relieved that he’d been released from prison.’

  ‘Of course. You must have been very worried about him?’ Jack asked, encouraging the witness to open up.

  ‘I was, but he wasn’t the same when he came out. We knew he’d been ill for a while but once he was in prison he could hardly speak. We’d visit, but he just wasn’t there, if you know what I mean?’

  ‘Yes,’ Jack replied, allowing the witness to keep her flow.

  ‘We hoped he’d soon be on the mend, since he was out.’ She shook her head at the irony.

  ‘You knew he’d been ill for some time?’

  ‘Yes, we kept telling him to see someone. Natasha was—’ she caught herself, then let out a sob at the mention of her name. ‘Natasha was beside herself.’

  ‘It must have put a lot of strain on the marriage.’

  ‘Oh, it did, on all of us.’ She looked over at her husband. ‘We were so worried about the girls.’

  ‘Did you know Natasha was seeing someone else?’

  ‘No.’ She shook her head.

  ‘Do you think Jeremy did?’

  ‘I don’t know.’ Then: ‘I think he might’ve.’

  ‘Why do you say that?’

  ‘Well, he was very angry with her.’

  ‘Angry?’

  ‘Yes, he felt she wasn’t doing enough – you know, to help Tim. And then when she asked Tim to move out, Jeremy was upset, because he’d bought them the house as a wedding present.’