by Parnell Hall
“None, Your Honor.”
“Mr. Fitzpatrick, you see no conflict of interest?”
“None, Your Honor.”
“Miss Harding?”
“Yes, Your Honor.”
“You have heard what Mr. Fitzpatrick has said?”
“Yes, Your Honor.”
“And what Mr. Winslow has said?”
“Yes, Your Honor.”
“You have no objection to Mr. Winslow representing you as associate counsel?”
“No, Your Honor.”
“You understand that he is also representing Douglas Kemper?”
“Yes, Your Honor.”
“You have no problem with that arrangement?”
“No, Your Honor.”
judge Graves frowned. “Very well. Now then, Mr. Dirkson.”
Dirkson was on his feet before Judge Graves even got the words out of his mouth. “Yes, Your Honor,” he said. “With regard to the charge of prosecutorial misconduct in the case of Douglas Kemper, I must say that the charge is completely unfounded and absolutely without merit. Your Honor need look no further than the transcript of yesterday’s testimony to see that this is true. Mr. Winslow contends that we violated Mr. Kemper’s rights by calling him as a witness when he himself was a possible codefendant. That is utter nonsense. Mr. Kemper’s own testimony clearly shows that we had not one scintilla of evidence against him prior to his appearance on the stand. It was only during his direct examination that it became clear that he was actively involved in the matter. We had never compared his fingerprints with those found in the apartment. That comparison was done only after yesterday’s session in court.”
“That is exactly the basis for my charge, Your Honor,” Steve Winslow said. “The prosecution suspected Douglas Kemper of being the person who left those fingerprints, but deliberately refrained from making a comparison until after they had got him to commit himself on the stand.”
Judge Graves banged the gavel. “That will do, Mr. Winslow. This is not a debate. Mr. Dirkson is replying to the allegations in your motion. You may proceed, Mr. Dirkson.”
“Thank you, Your Honor. As you can see, the charge of prosecutorial misconduct is absolutely without merit. With regard to the motion for a mistrial, I naturally oppose it. Likewise, the demand that Marilyn Harding and Douglas Kemper be tried jointly. In the event that we should proceed against Douglas Kemper, we shall do so separately and at a later time. Hence, there are no grounds whatsoever for making these motions, and they should be denied.”
Dirkson pointed to a stack of books on the prosecution table. “I have some precedents, Your Honor. If I could just have a moment.”
“Very well,” Graves said.
As Dirkson began citing cases into the record, Fitzpatrick turned to Steve Winslow. “We’re going to lose.”
“I know,” Steve said. “We’re just laying the groundwork for an appeal.”
“I know. But I hate to lose.”
“Stick with me. You’ll get good at it.”
When the arguments were finally over, Judge Graves took a thirty minute recess. When court reconvened, he said, “I have considered the motions carefully. They are denied. These proceedings will continue.
“Now then, with regard to procedure, the witness Kemper was on the stand. I understand he’s been charged with perjury, and is out on bail. Is that right?”
“Yes, Your Honor,” Dirkson said.
“I understand he has not been charged as a coconspirator or as an accessory to this crime?”
“That’s correct, Your Honor. It is possible that he will be, but he has not been so charged at the present time.”
“Very well,” Graves said. “Mr. Winslow. Is it your intention to advise the witness not to answer questions?”
“Your Honor, it is my contention that he should not be on the stand to begin with.”
“I understand that. I have already ruled. I am attempting to expedite this trial without embarrassing your client or infringing upon his rights. After all this time, I would hate to call the jury in and immediately send them out again. But we’re not going to argue this in front of them, so I’m attempting to determine if we can resolve this matter now.”
“If I might interpose, Your Honor,” Dirkson said. “The point is moot. I have no further questions for the witness, Kemper.”
“You have concluded your direct examination?”
“I have.”
“Mr. Fitzpatrick. Do you intend to cross-examine the witness?”
“No, I do not.”
Judge Graves nodded. “That simplifies things. We’ll bring back the jury and call the witness to the stand. You can both announce that you have no questions and the witness will be excused. Bring in the jury.”
Fitzpatrick was on his feet. “I assume Your Honor will explain to the jury the presence of Steve Winslow?”
A trace of a smile crossed the judge’s lips. “I will try,” he said dryly.
That sally produced a roar of laughter that Judge Graves made no attempt to quiet. After all, the jury was not present.
After the jurors had filed in and been seated, Judge Graves addressed the jury. “Ladies and gentlemen of the jury. I would like to apologize for the delay. As I explained at the outset of the trial, there are numerous occasions when we have matters to discuss outside your presence. Sometimes they relate to this trial, sometimes they are matters relating to other trials. In some instances, it is merely because one of the parties is indisposed and cannot be present in court. As I told you, it is not your place to speculate as to what goes on in the courtroom during the time you are in the jury room.
“At any rate, we are ready to resume the trial. Before we do so, I call your attention to the presence of another attorney in the courtroom. Mr. Steve Winslow has joined the defense as associate counsel for Marilyn Harding. He is seated at the defense table and will be taking part in the trial.”
The jurors looked at each other. Steve Winslow grinned. He knew that despite Judge Graves admonition, each and every juror was wondering just what the hell had gone on since court had adjourned yesterday afternoon.
While this was going on, Douglas Kemper entered the courtroom and took the stand. He did not make a good impression. His manner was furtive and sheepish. He carefully avoided looking at Marilyn Harding.
Judge Graves, though aware that Kemper’s examination was through, still went through the charade. “Mr. Kemper, I must remind you that you are still under oath. Mr. Dirkson, you may proceed.”
Dirkson stood up. “Thank you, Your Honor. I have no further questions of the witness.”
Graves nodded. “Very well. Mr. Fitzpatrick?”
Fitzpatrick stood up. “No questions, Your Honor.”
Graves nodded. “The witness is excused.”
Kemper got up and left the stand.
The jurors, who had waited all day to see only that, found it funny. Some began to giggle.
Judge Graves gave them a few minutes to blow off steam, then banged the gavel. When the court was quiet, he said, “Mr. Dirkson. Call your next witness.”
Dirkson stood up. He looked at the jury. Then at the defense table. Then back up at the judge. His smile was rather smug. “The People rest, Your Honor.”
36
Fitzpatrick heaved his bulk around the small conference room in the courthouse like an angry whale.
“Son of a bitch!” he said. “Son of a fucking bitch!” He poured himself a glass of water and gulped it down. “I don’t need this,” he said. “My specialty is corporate law. I’ve got myself some juicy plum clients. Chief among them, Phillip Harding. He dies, and I inherit his daughter. She inherits a murder. Suddenly I’m in court. But even then I’m all right, because I’ve got a genuine, first-class, made-to-order red herring, scapegoat, fall guy, to take the rap. Only he turns out to be the attorney for my client’s lover, and suddenly I’m fucked. Suddenly I’m in court with a smug-ass district attorney who just wants to play games with me. ‘You
r Honor, I rest my case.’ Jesus Christ, he hasn’t made a case. What the hell’s he doing resting now?”
“It’s good move,” Steve said. “If we don’t put on a case, he’s given the jury enough to convict. If we do put on a case, he’s still got a whole bunch of witnesses left for rebuttal.”
Fitzpatrick threw up his hands. “What case? We have no case. You talked to Marilyn Harding. You know what she’s like. We don’t dare put her on the stand.”
“No argument there.”
“It’s a no-win situation. If we don’t put her on the stand, she’s a dead duck. If we do put her on the stand, Dirkson will tear her apart.”
“All right,” Steve said. “What’s your plan?”
Fitzpatrick stared at him. “Plan? What plan?”
“All right. What’s Dirkson plan?”
“What you just said. It depends what we do. If we don’t put on any defense, we’ve lost. If we put Marilyn on the stand, he’ll tear her apart.” Fitzpatrick shrugged. “If we try to make a case without putting her on the stand, it’s like you said. He’s got a whole bunch of witnesses saved up for rebuttal.”
“Right. And what’s he gonna hit us with?”
“Everything.”
“Yeah, but pick one. What’s he gonna hit us with?”
Fitzpatrick pursed his lips. “Best guess, the Phillip Harding murder. He alluded to it in his opening statement, hasn’t mentioned it since. I’d imagine if we make any showing at all, if we manage to swing the sympathy of the jury in the least, he’ll come back at us with that. He’ll bring in the Phillip Harding murder and try to poison the minds of the jurors with the thought that Marilyn is a habitual killer.
“Yeah,” Steve said. “That’s what I think too. And if he does, what are you going to do?”
Fitzpatrick looked at him in surprise. “Fight it, of course. Try to keep it out of the record. Once Dirkson gets that in the minds of the jurors, we’re sunk.”
“Right,” Steve said. “And what do you think Dirkson expects you to do?”
Fitzpatrick frowned. “What is this, twenty fucking questions? You wanna make a point, make it. Frankly, your Socratic method’s getting to be a pain in the ass.”
“All right. Sorry. Look, we agree Dirkson’s going to try to bring in the Phillip Harding murder. You plan to fight it. You think Dirkson doesn’t know that? Of course he does. And if he knows it, he’s prepared for it. You saw how many precedents he cited in opposition to my motion? Well I’ll bet you a nickel he’s got twice as many to cite to back up his contention that evidence of a prior crime may be introduced to show motivation. And you know what, I think he’s probably right.”
“So,” Fitzpatrick said, “you’re telling me we’re fucked before we start.”
“No, I’m not,” Steve said. “I’m telling you what Dirkson has in mind. The way I see it, Dirkson has certain expectations. If we fulfill those expectations, we’re playing right into his hands.”
“So?”
“So, we can’t do that. We can’t play this conservative and conventional. This is a situation that calls for heroic measures. We gotta throw the game plan away. We’ve got to get off the defensive and on the attack. The hell with what Dirkson expects. Let’s rock the son of a bitch in his sockets. Hit him where he least expects it, get the jury interested, and then give ’em a show.”
Fitzpatrick frowned. “I don’t know how to do that.”
“I do.”
37
Judge Graves said, “Is the defense ready?”
Fitzpatrick rose. “We are, Your Honor.”
“Does the defense wish to make an opening statement?”
“We do.”
“Very well. Proceed.”
Fitzpatrick glanced dubiously down at Steve Winslow who was seated beside him at the defense table.
Steve gave him the thumbs up sign and grinned. “Give ’em hell,” he murmured.
Fitzpatrick managed a twisted smile. He straightened up, set his jaw, and strode out into the center of the courtroom.
“Your Honor,” Fitzpatrick said. “Ladies and gentlemen of the jury. We expect to prove that the defendant, Marilyn Harding, is the victim of a conspiracy. An insidious conspiracy by person or persons unknown. Or I should say, by persons unknown at the present time. We expect to prove that this conspiracy against Marilyn Harding is based only upon the accident of her birth. Marilyn Harding was born into a wealthy family. She is a wealthy woman. As such, she is a target for certain unscrupulous individuals. And she has been used as a target in this case.
“Moreover, we expect to prove that this conspiracy is not limited to Marilyn Harding, but extends to the entire Harding family.”
Fitzpatrick raised his voice. “We expect to show by competent evidence, that Phillip Harding, father of Marilyn Harding, was murdered on the thirteenth of last month!”
There were gasps from the spectators in the courtroom.
Dirkson, startled, rose to his feet. His mouth was open, so great was his surprise. He blinked twice, and slowly sat down again.
“We shall prove this,” Fitzpatrick went on, “not by inference or innuendo, but by the autopsy report prepared by the medical examiner himself. We shall prove beyond a shadow of a doubt that Marilyn Harding’s father, Phillip Harding, was cold-bloodedly and ruthlessly murdered.
“After proving that, we shall then show how the conspiracy against the Harding family shifted from Phillip Harding to Marilyn Harding, his principal heir. You have heard, from the lips of the prosecution’s own witnesses, how Marilyn Harding was being followed by private detectives. Now, has the prosecution attempted to show you who hired those private detectives? Or to show why those private detectives were hired? You know the answer. And the answer is, no they have not.
“But the defense expects to answer those questions. The defense expects to show that those private detectives were hired to follow Marilyn Harding as part of an ongoing conspiracy against the Harding family in general and against Marilyn Harding in particular. We expect to show that Marilyn Harding was cleverly and insidiously manipulated into the position in which she finds herself today. That she was systematically framed for a murder. That she has been tricked into a position that would seem on the surface, indefensible.
“Well, ladies and gentlemen. The defense intends to dig beneath the surface. We intend to fill in the gaps in the story left by the prosecution. We intend to show how a web of lies and deceit has framed this defendant for a crime that she did not commit.
“We shall show all of this by competent evidence and we shall expect a verdict of not guilty at your hands.”
As Fitzpatrick bowed to the jury and sat down, the courtroom burst into an uproar, judge Graves banged the gavel furiously, but nothing he could do was going to stop the stampede of reporters who were running for the exit.
38
It made the front page of every paper in the city, even the New York Times. Fitzpatrick’s opening statement was a smash, a stunning reversal, a dramatic bit of courtroom strategy, boldly conceding the very point the prosecution had sought to establish. It was fresh, new, and exciting, and it raised great expectations.
It was all downhill from there.
Dirkson played it smart. He didn’t make the big mistake of fighting Fitzpatrick, of objecting to what he was trying to do. That would have put Dirkson in the embarrassing position of arguing against the stance he himself had taken at the opening of the trial. Instead, he sat on his hands and raised no objection when Fitzpatrick called the Nassau County medical examiner to the stand to testify that Phillip Harding died from arsenic poisoning. Dirkson neither objected nor cross-examined. He merely sat at the prosecution table looking slightly bored. His attitude seemed to say that the defense was bringing out points with which the prosecution was well familiar, and unless Fitzpatrick came up with something to connect those points with his wild, fanciful theories of a conspiracy, Dirkson couldn’t be bothered. And since Fitzpatrick had no such connection to ma
ke, the Phillip Harding bombshell fizzled. Dirkson’s attitude prevailed. That attitude was, “So what?”
The next witness was a little better.
“Your name is Charles Miltner?” Fitzpatrick asked. “That’s right.”
“You’re the head of the Miltner Detective Agency?”
“I am.
“How many people do you employ?”
“It varies. I would say from twelve to fifteen.”
“And is one of those a Mr. Jason Fisher?”
“Yes, he is.”
“Then let me ask you this. Has your agency ever been employed in any case involving the defendant, Marilyn Harding?”
“Yes, sir.”
“What were you employed to do?”
“Place Marilyn Harding under surveillance.”
“Were you given any specific instructions regarding that surveillance?”
“No, sir.”
“Nothing in particular you were supposed to watch for?”
“No, sir.”
“What were your instructions?”
“Merely to place her under surveillance and report what she did.”
“And when did the surveillance begin?”
“On Tuesday, the eighth.”
“At what time?”
“At 8:00 a.m.”
“And when did it end?”
“Wednesday evening around 9:00 p.m.”
“You had Marilyn Harding under surveillance from Tuesday, the eighth, at 8:00 a.m. until Wednesday, the ninth, at 9:00 p.m.?”
“No, sir.”
“No? I thought you said you did?”
“No, sir. The surveillance was not continuous. We had her under surveillance during part of that time.”
“Which part?”
“From 8:00 am. till midnight on Tuesday, and from 8:00 am. till 9:00 p.m. on Wednesday.”
“Was that in accordance with your instructions?”
“Yes, sir.”
“Could you elaborate?”