“Detective Harbottle,” Kelley said, leaning on the witness chair, “did Lt. Massie speak to you, after you arrested him and the others along the roadside?”
“In a roundabout way, yes, sir.”
“What do you mean, ‘in a roundabout way,’ Detective?”
“Well, Patrolman Bond came over to me and said, ‘Good work, kid,’ you know, congratulating me on the arrest. But Lt. Massie, who was sitting in back of the radio patrol car, thought the comment was meant for him—”
With weary patience Darrow called out, “The witness doesn’t know what Lt. Massie was thinking, Your Honor.”
“The comment about what Lt. Massie was thinking will be stricken,” the judge informed the court stenographer.
Kelley said, “What did Lt. Massie say?”
Harbottle shrugged. “He said, ‘Thank you,’ and raised his hands like this…” Harbottle lifted his clasped hands and shook them in the end-of-the-game gesture of victory common to boxers and other athletes.
Kelley smiled nastily at the jury. “Thank you, Detective. That will be all. Your witness.”
Darrow didn’t rise as he smiled up at the detective. “When my associate Mr. Heller spoke with you, on Thursday last, didn’t you describe Lt. Massie’s demeanor as follows: ‘Very stern, sitting straight up, just staring straight ahead, never saying a word.’ Do you recall that?”
“I do,” Harbottle admitted.
“What was Mrs. Fortescue doing at that time?”
“Sitting on a rock alongside the road.”
“What was her demeanor?”
Kelley rose and arched an eyebrow. “I hope counsel isn’t asking this witness for expert testimony on human behavior.”
Darrow’s smile was grandfatherly. “I’ll rephrase—was she talkative? Was she smiling and chatty and gay?”
“She was staring straight ahead,” Harbottle said. “In a kind of daze. Silent as the rock she was sitting on.”
Darrow nodded sagely. “No further questions.”
With the exception of such occasional skirmishes, Darrow continued to pay little apparent heed to Kelley and his case; he mostly declined cross-examining Kelley’s witnesses, allowing Leisure to ask a few questions now and then. Darrow had never denied the crime; cross-examining would only prolong such prosecution theatrics as waving before the jury the bloody garments found in a wet bundle in the rental Buick.
The latter display, however, in conjunction with the testimony of one of the patrolmen who found them, elicited tears from Mrs. Kahahawai, sending Darrow to his feet.
“With all due respect to this fine lady,” Darrow said, “I must request that she be removed from the courtroom on the grounds that her emotion might sway the jury.”
The judge shook his head, no. “She has a right to be present, Mr. Darrow.”
Kelley’s parade of witnesses continued: the garage clerk who rented Tommie the Buick; the hardware store counterman who sold a revolver to Mrs. Fortescue and an automatic to Jones; the neighbor who heard “an explosion” coming from Mrs. Fortescue’s house at 9:00 A.M. January 8; Detective Bills, in whose expert opinion the coil of rope around the dead man’s body came from the submarine base; County Coroner Dr. Faus, who established that the path of the bullet through Kahahawai’s heart had been diagonal, at an angle indicating the victim was lunging defensively forward when he was shot; Inspector McIntosh, who reported that Jones “acted drunk” when apprehended at the Fortescue bungalow, but “seemed quite sober” when questioned at the station house; other cops who, searching the bungalow, found Mrs. Fortescue’s purse with Kahahawai’s picture tucked inside, Tommie’s automatic under a sofa cushion, Kahahawai’s cap, two pearl buttons in the bathroom from Kahahawai’s undershorts, and a spare box of .32 shells wrapped up in the fake summons (these Jones had kept stuffed under his shirt!).
The fake summons, of course, made for effective courtroom reading by Kelley.
“‘Life is a mysterious and exciting affair,’” the prosecutor said, reading from the document itself, “‘and anything can be a thrill if you know how to look for it and what to do with opportunity when it comes.’”
A lot of people thought of Darrow as a great showman, but I have to admit, Prosecutor John C. Kelley could have taught Barnum and Bailey a trick or two: he displayed a huge full-color anatomical chart of a male torso with the bullet path in red; he exhibited glossy photos of bloodstains in the bungalow; he passed out bloody towels, bloody clothes to the jury for them to personally handle; and the bloody sheet; and the rope, and a glittering array of bullets and cartridge shells.
Through all this, Darrow slumped in his chair and doodled and played with his pencil, occasionally objecting, almost never cross-examining. Mrs. Fortescue remained aloof, impassive, but Tommie began biting his nails.
Kelley’s last witness was inevitable: Esther Kahahawai, Joe’s mother, coming back to haunt Darrow for his objection to her presence.
As the dark, thin, frail gray-haired woman in the Mother Hubbard approached the stand, Darrow arose and raised his hands gently, blocking the way, turning to the judge.
“We will concede everything this witness has to say,” he said gravely. “We will stipulate that she is the mother of Joseph Kahahawai, that she saw him that morning when he left—anything….”
Kelley was on his feet. “There are two mothers in this courtroom, Your Honor. One is a defendant, but the other has no defense—her son is dead. We think both these women should be allowed to testify.”
“Withdrawn,” Darrow said, softly; he smiled with sympathy at Mrs. Kahahawai and removed himself from her path, taking his place.
Her voice was low, difficult to hear, but no one in the courtroom missed a word. She wept into her handkerchief almost continuously during her testimony; many of the spectators—even the white wealthy women whose sympathy was with the defendants—wept along with her.
“Yes, that was his shirt,” she said, as Kelley somberly showed her the bloody clothing. “And those, his socks. And his dungarees…yes. Yes. I just washed them, and sewed the buttons on.”
“Was Joe in good health that morning when he left you?”
“Yes.”
“When did you see him again?”
“Saturday. At…at the undertaker’s.”
“That was the body of your son Joseph?”
“Yes.”
“Thank you, Mrs. Kahahawai. No further questions.”
Darrow’s voice was barely audible: “No questions, Your Honor.”
Sobs echoed in the courtroom as Kelley, in an almost courtly fashion, led her down from the stand.
Darrow leaned over to me, his stringy locks tumbling carelessly, and whispered: “I guess we had that coming. The sympathy can’t be all on one side.”
He looked very old to me at that moment; tired and old.
Kelley looked fresh as a daisy. He was prancing toward the prosecution table, talking as he went: “The prosecution rests, Your Honor.”
The court recessed for lunch, and as usual, Darrow, Leisure, his clients, and I went over to the Alexander Young. C.D., accompanied by Ruby, passed up luncheon for a nap in his room, while the rest of us took the elevator to the roof garden restaurant. No one expected our clients to make a break for it, and we had arranged for the grand old man of the department, Chang Apana, to have the honor of being the nominal police guard.
Because of Chang’s presence, conversation was kept superficial and nothing related to the case was discussed. Leisure’s wife joined us, as usual, and the couple talked amongst themselves. Neither Tommie nor Mrs. Fortescue said much of anything, having finally fallen into a morose understanding of the gravity of their situation.
But Jones and Lord, smoking, laughing, were a cheerful pair of imbeciles. Curly-haired Lord didn’t say much, but square-headed Jones was a cocky, chatty son of a bitch.
“You see the shape on that girl reporter from New York?” he asked me.
“It got my attention,” I admitted, ni
bbling at my bacon-lettuce-and-tomato sandwich.
“I think she likes me.” He was cutting his minute steak eagerly. “She’s always wanting to talk to me.”
“You don’t think being a defendant in a murder trial could have something to do with it?”
“She’s got four of us to choose from, don’t she? And it’s me she flashes her peepers at, ain’t it?”
“Good point.”
“Did you see that little Chinese girl over by the wall, on the left? She’s a doll. And there’s some good-looking American girls in that courtroom, believe you me.”
This bastard was a bigger lecher than I was.
I looked at him with a tiny smile. “You mind a little advice, Deacon?”
“Not at all, Nate.”
“I saw you ogling those gals. Smiling at them. I don’t think smiles are all that appropriate in a situation like the one you’re in.”
He shrugged, spearing a chunk of O’Brien potato. “I don’t see the harm. Don’t I want people to know I’m a nice guy?”
Chang Apana, seated next to me picking at a small bowl of chow chow, said quietly, so only I would hear, “Owner of face cannot always see nose.”
After recess, Darrow led our contingent down the aisle, court resumed, and America’s most famous trial lawyer, in a wrinkled, baggy double-breasted white linen jacket, rose and addressed the bench.
“I waive my opening statement, Your Honor,” Darrow said, a rasp underlining the deceptive casualness of his drawl.
A ripple of disappointment rolled over the gallery at being denied their first extended sampling of the Darrow courtroom oratory.
“…And call my first witness, Lt. Thomas Massie.”
The disappointment disappeared in a rush of excitement as Tommie popped to his feet, jack-in-the-box style, and strode quickly to the stand, where he almost shouted his oath to tell the truth.
Tommie wore a dark blue suit with a light tan tie, an ensemble suggested by Darrow to seem vaguely naval, slightly military. The sharp features of his boyish face had fixed into a tight expression that fell somewhere between scowl and pout.
In a manner that may have been intended to relax the obviously tense Tommie, and lull the jury, Darrow began an unhurried journey through Tommie’s early years—born, Winchester, Kentucky; military school; Naval Academy; marriage on graduation day to sixteen-year-old Thalia Fortescue. On through his naval duties—the U.S.S. Lexington, the sub base at New London, Connecticut, his two years of further sub duty out of Pearl Harbor.
Then, in the same soothing, casual tone, Darrow said, “Do you remember going to a dance last September?”
“How could I forget it?” Tommie said.
Kelley was already on his feet.
“Where was that party?” Darrow asked.
“The Ala Wai Inn,” Tommie said. “My wife didn’t feel like goin’, but I persuaded her to.”
Kelley was standing before the bench, now. “Your Honor, I don’t intend to interrupt with constant objections,” he said quietly, earnestly, “but I feel entitled to know the relevance of this testimony.”
Darrow had drifted to the bench too, and Kelley turned to the old boy and asked, point blank, “Is it your intention to go into the Ala Moana case?”
“I do so intend.”
“Then, Your Honor, the prosecution should be informed at this time if one of the defendants will make an insanity plea—in which case, we will not oppose this testimony.”
“We do intend,” Darrow said, “to raise the question of insanity in relation to the one who fired the pistol.”
Kelley frowned and bit off the words: “Is a plea of insanity to be offered in behalf of Lt. Massie?”
Darrow smiled. “I don’t think it’s necessary at this time to single out any particular person.”
Kelley was shaking his head, no. “Unless the prosecution is informed that a plea of insanity is to be made on Lt. Massie’s behalf, I will object to any further testimony along these lines, by this witness.”
Darrow made a gesture with two open hands as if he were holding a hymnal. “Your Honor, Mr. Kelley in his opening statements linked all the defendants together as equally guilty. Now he wishes me to separate them for his convenience.”
The judge, pondering this, looked first from one attorney to the other, like a man watching a tennis match.
“It is common knowledge, Your Honor,” Kelley said, “that the defense has imported prominent psychiatrists from the mainland.” The prosecutor gestured first to Tommie, then to the other three defendants. “The prosecution has the right to know which of these four Mr. Darrow will claim insane.”
“I’ll gladly tell you,” Darrow said.
Kelley glared at him. “Which of them, then?”
Darrow beamed. “The one who shot the pistol.”
Kelley’s face was reddening. “The prosecution has the right to know the person for whom this insanity plea is to be made so that our alienists may also examine this individual.”
“These alienists of yours,” Darrow said, “would appear as rebuttal witnesses, of course.”
“Of course,” Kelley said.
“Now I’m a stranger here in your lovely land, Mr. Kelley, but if my rudimentary understanding of procedure in Hawaii is correct, I’m under no obligation to submit my clients to examination by rebuttal witnesses.”
“Your Honor, this is outrageous. I object to this line of questioning on grounds of relevance.”
“Now,” Darrow said, as if Kelley’s words were harmless gnats flitting about, “if the prosecution wishes to seat its alienist experts as spectators in the gallery, I’d certainly have no objection.”
Why would he? Any opinion they might offer on the witness stand would be followed by the obvious, and devastating, defense query: “Doctor, have you examined the accused?”
Next to me Leisure was smiling. This was his handiwork, but Darrow’s delivery was priceless.
“Your objection is overruled, Mr. Kelley,” Judge Davis said. “You may continue questioning along these lines, Mr. Darrow.”
And he did. Probing gently, Darrow withdrew from Tommie his tale of the Ala Wai Inn party and his search for his wife, as the party wound down; how he’d finally reached Thalia by phone to hear her cry, “Come home at once! Something awful has happened!” And in excruciating detail, Tommie told of Thalia’s description to him of the injuries and indignities she’d endured.
“She said Kahahawai had beaten her more than anyone,” Tommie said. “She said when Kahahawai assaulted her, she prayed for mercy and his answer was to hit her in the jaw.”
At the defense table, Mrs. Fortescue’s stoic, noble mask began to quiver; tears rolled down her flushed cheeks, unattended, as her son-in-law described her daughter’s suffering.
“She said over and over again,” Tommie was saying, “why hadn’t the men just killed her? She wished they’d killed her.”
Many of the women in the gallery were weeping now; sobbing.
“The followin’ day,” Tommie said, “when she was in the hospital, the police brought in the four assailants.”
Kelley, remaining seated, said quietly, “Your Honor, I object to the use of the word ‘assailants.’”
Darrow turned to Kelley, shrugged, said, “‘Alleged assailants,’ then. Or suppose we call them four men?”
“She said these four men were the ones,” Tommie said, lips twisting as if he were tasting something foul. “I said, ‘Don’t let there be any doubt about it,’ and she said, ‘Don’t you think if there were any doubt I could never draw another easy breath?’”
This slice of melodrama seemed a little ripe to me; I didn’t know how the rest of the room was taking it, but to me Tommie’s Little Theater background was showing. And in trying too hard, he had introduced, at least vaguely, Thalia Massie’s possible doubts about the identity of Ida and company.
Darrow steered Tommie gently back on course, drawing from him a description of the faithful days and nights
he’d spent at the hospital and at home, nursing his beloved bride back to health. Tommie described nightmares of Thalia’s from which she awoke screaming, “Kahahawai is here!”
“Could you ever get the incident out of your mind?” Darrow asked.
“Never! And then the rumors started…vile…rotten! We were gettin’ a divorce, I’d found my wife in bed with a fellow officer, I’d beaten her myself, a crowd of naval officers assaulted her, she wasn’t assaulted at all…every stupid foul variation you could imagine. It got to where I couldn’t stand crowds, couldn’t look people in the face. I couldn’t sleep, I would get up and pace the floor and all I could see was the picture of my wife’s crushed face…. I felt so miserable I wanted to take a knife and cut my brain out of my head!”
Considering what Tommie had just said, Darrow’s next question seemed almost comical. “Did you consult a doctor?”
“Yes, but I was more concerned with what a lawyer thought. I was advised that the best way to stop these vicious rumors was to get a signed confession from one of the…four men. I’d heard Kahahawai was gettin’ ready to crack, and spoke to my mother-in-law…”
“Other than these rumors,” Darrow asked gently, “did anything else prey upon your mind?”
“Y-yes. We knew an operation was necessary to…prevent pregnancy.”
This was dangerous ground. I knew that Darrow knew Thalia had not been pregnant; I wasn’t sure if Tommie knew, and God only knew if Kelley knew….
Yet Darrow pressed on: “Were you sure she was pregnant?”
“There could be no doubt.”
Kelley was going through some papers; did he have the medical report signed by Darrow’s friend Dr. Porter?
But still Darrow continued: “Could the pregnancy have been due to you?”
“No. It couldn’t have been.”
“Was it done, the operation?”
“Yes. I took her to the hospital and Dr. Porter performed it. This…this had a strange effect on my mind.”
And Tommie began to weep.
Kelley wasn’t making a move; if he did have the card, he’d decided not to play it. It was clear Tommie believed Thalia had been pregnant; he wasn’t that good an actor.
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