by Parnell Hall
“I do, Your Honor.”
“Very well. You are aware of what the consequences might be. Tell me. What is this evidence you wish to introduce?”
Steve Winslow turned and looked out over the courtroom to the man who was sitting in the back next to Mark Taylor and Tracy Garvin. “Mr. Pennington, would you please stand up?”
Pennington, a tall man with a thin face, a shock of untidy brown hair and horn-rimmed glasses, stood up.
Steve Winslow pointed. “Your Honor, this is Mr. Arthur Pennington. He is a senior technician with IBM. He is prepared to testify that what the defendant just told you about the backup system of the IBM computer is true, that it is possible to erase a document from the main files, and have that document still exist in the computer’s backup system.”
“So what?” Dirkson said. “The prosecution will stipulate that.”
Steve went on as if he hadn’t heard the interruption. “He is further prepared to testify that it’s also possible for a person who knows computers to erase that same document from the backup file itself so that no trace of it could ever be found in the computer by any technique whatsoever.
“Now, Your Honor,” Steve said,” Miss Wilder has testified that the memo existed in Fax-log and was subsequently erased from there. According to her testimony, that memo still exists in the backup file. And Your Honor will note that up until the time she gave her testimony, she was the only one who knew this. So if she is telling the truth, there is every reason to believe the memo still exists.
“But now that she has said so in open court, now that people know that it is there, Mr. Pennington will testify that anyone who didn’t want that memo to be found could erase it just like that.”
Judge Wallingsford frowned.
Steve pressed his advantage. “Your Honor must take judicial cognizance of the importance of that memo. The prosecution claims Kelly Clay Wilder killed David Castleton as part of a vindictive campaign against Castleton Industries. The defendant’s testimony contradicts that. The crux of the defendant’s testimony is the piece of evidence that she went there to retrieve. The piece of evidence that she found and gave to David Castleton. If that piece of evidence exists, it corroborates her story and demolishes the prosecution’s theory, because why would she have killed David Castleton after making him privy to information that could only persuade him to join her side?”
“Your Honor, Your Honor,” Dirkson said. “This is the sheerest nonsense. The defense attorney has no right to make a speech. If that memo exists or not, it doesn’t prove anything like he just said. How do we know she ever showed that memo to David Castleton? How do we know it turned him into an ally? We have only the defendant’s word for that. She could have shown him the memo, he could have reacted in such a way as to lead her to believe he was the embezzler, she could have become angry and shot him over that.”
A high-pitched, inarticulate grunt caused every head in the courtroom to turn.
Dirkson looked around to see Milton Castleton, his eyes flaming, attempting to pull himself out of his chair in the second row.
Dirkson’s face flushed. He realized he’d gone too far. “I withdraw that, Your Honor.” Dirkson said. “It was the wildest fantasy. I was just trying to show you how ridiculous the defense attorney’s contentions are. We know nothing like that happened. What I am saying is, the existence of this memo, which I personally do not believe exists, wouldn’t prove a thing he says it would. I ask that the motion be denied.”
Steve opened his mouth to say something, but Judge Wallingsford held up his hand. “That will not be necessary, Mr. Winslow. The court is now going to rule. The court rules that once this matter has been brought up, it cannot be dropped. That in view of the defendant’s testimony, in view of Mr. Winslow’s assurances that Mr. Pennington would testify that if this memo does indeed exist that it could be erased, the court rules that the evidence is perishable and that steps will be taken to preserve it.
“The court makes the following directive. The court orders court officers to proceed immediately to Milton Castleton’s apartment and seal up the premises until the evidence can be seen. The court further instructs that any attempt on the part of any of the parties involved to communicate with any of the occupants of the apartment shall be considered contempt of court. And that includes Mr. Castleton himself.
“The court further directs that Mr. Pennington, Mr. Fitzpatrick, Mr. Winslow, Mr. Dirkson and myself shall proceed immediately to Milton Castleton’s apartment, and in our presence Mr. Pennington will examine that computer and see if that memo does indeed exist in the backup file. Mr. Castleton and his associates will, of course, be present.
“As this will effectively take up the afternoon, we will then adjourn for the day. The defendant is hereby remanded to custody, and the jurors may be sent home. The rest of us will proceed immediately to Milton Castleton’s apartment to examine the evidence, and we will reconvene tomorrow morning at ten o’clock.
39
The procession of cars made its way up Madison Avenue. Only three of the cars were official: the limousine carrying Milton Castleton, Stanley Castleton and Phil Danby; the car carrying Judge Wallingsford, Harry Dirkson and Arthur Pennington; and the car carrying Steve Winslow and Harold Fitzpatarick. The rest of the cars carried the hordes of reporters who, while they had no right to be there, weren’t going to miss it.
The cars went across 72nd Street, down Fifth Avenue and pulled up in front of Milton Castleton’s building. Winslow and Fitzpatrick got out in time to see Phil Danby and Stanley Castleton assisting Milton Castleton out of the limo. Judge Wallingsford, Dirkson and Pennington walked up and they all met in front of the apartment, where Milton Castleton was demonstrating that he was still very much in charge.
Castleton pointed a bony finger at Judge Wallingsford. “All right,” he said. “You’ve ordered this, so I, of course, will allow it. If such a memo exists, I want to know it. But I have to tell you I don’t believe a word of it, and I personally resent the intrusion.”
“I understand, Mr. Castleton,” Judge Wallingsford said. “And I hope you understand why it must be done.”
Milton Castleton did not even acknowledge that. “Well, let’s get on with it,” he said irritably.
Dirkson cast an exasperated glance at the taxis full of reporters that had just pulled up. “Yeah, let’s do it,” he said.
The two court officers already stationed at the front door let them in, then moved with a degree of satisfaction to keep the reporters out.
Inside, an elevator large enough for all whisked them up to the eighth floor where they emerged in the spacious foyer of the floor-through apartment. Milton Castleton, with his son’s and Phil Danby’s assistance, led the way to the office. Danby opened the door and they went in.
Of the lawyers, judge and witness, only Steve Winslow had been in the office before. The others were slightly overawed, first, by its size, and second, by a sight that they all observed but no one pointed out or even alluded to-the curtained window in the office wall.
The huge computer was on the opposite wall. Pennington spotted it, rubbed his hands together happily, made for it and sat down. The others formed a semicircle around him. Pennington switched the computer on.
As the computer began to whir, Dirkson said, “At this time I’d like to renew my objection to this entire proceeding. I’d like to point out that even if the memo does exist, it proves nothing. The defendant admits fiddling with the workings of this computer. If Mr. Pennington should find a memo in the backup system, there is nothing to prove that the defendant didn’t type it there herself.”
“You pointed that out in the car, Mr. Dirkson,” Judge Wallingsford said.
“I want to point it out in front of opposing counsel. I want to point out that Mr. Pennington, your own witness, bears out that contention. According to him a memo could be inserted in the backup system just as well as one could be deleted.”
“You’ll have a chance to make those
points in court, Mr. Dirkson,” Judge Wallingsford said. “Right now we are concerned with whether that memo exists at all. Is there anything you need, Mr. Pennington?”
Pennington was already beating out a rhythm on the keyboard. Letters and symbols were flashing on the screen. “I’ll let you know,” he said, and went on typing.
The words Fax-log appeared on the screen.
“Got it,” Pennington said.
He continued to hit function keys. Documents went whizzing by.
“All right,” Pennington said. “Here’s the date in question. We have one, two, three memos on that day. One from a salesman in Austin, Texas.” He hit a key. Another document appeared. “One from Stanley Castleton at the main office.” He hit another key. “And one from a company in Palm Springs.”
“Anything relevant in the Stanley Castleton memo?” Judge Wallingsford asked.
Pennington backed up a screen. The others leaned in and looked. The memo concerned the purchase of packing cartons.
“Nothing in that,” Judge Wallingsford said. “And that’s all for that date?”
Pennington pressed some keys. “That’s right,” he said. “Next memo you’re into the next day.”
“Those memos are recorded in chronological order?”
Pennington smiled, the smug smile of an expert at a layman’s ignorance. “Of course,” he said. “That’s the purpose of the log.”
“The defendant certain of the date?” Judge Wallingsford asked.
“Yes, she is,” Steve said.
“All right, can you get into the backup file?”
Pennington seemed pained by the question. “Of course,” he said. He began pressing keys at seemingly lightning speed, as if to show up Judge Wallingsford for doubting his competence. Symbols appeared and disappeared on the screen too fast for anyone to even read them.
Moments later, Pennington said, “Here we are. In the backup system. Now to get to Fax-log.” More symbols flashed. “Here we go. Now the date.”
Pennington hit more keys. Everyone leaned in to look, and one of the previous memos appeared.
“Here we are. The memo from the buyer in Texas.”
He pressed a key.
“The memo from Stanley Castleton.”
Another key.
“The memo from Palm Springs.” Another key.
And another memo they had seen before appeared.
The memo from the next day.
The memo from Herbert Clay was not there.
40
The Daily News headline was “DEFENSE GAMBLE LOSES.” The New York Post had “NAKED TYPIST STRIKES OUT!” Even the Times had a column on the front page.
It was hot stuff. The murder trial was sensational enough in itself. But to have the defense pull a grandstand play, a regular Perry Mason stunt, only to have it backfire-well, that was more than any newsman could have wished for. It not only made the papers, it was the lead story on the morning news on every radio and TV station in the city.
As a result, the courtroom was packed. Seating had been at a premium before, but now it was ridiculous. People were standing four-deep in the back of the courtroom and jostling for position.
Judge Wallingsford looked out over the courtroom and banged the gavel three times. “Order in the court. Ladies and gentlemen, somewhat against my better judgment, I have allowed spectators for whom there are no seats. Please understand that you are here at my tolerance, so do not abuse the privilege. If I cannot have quiet, I will order everyone who is not seated out. Is that clear?”
It was. The rumbling subsided. No one wanted to leave.
“Now then,” Judge Wallingsford said. “Before we bring the jury in, let me explain the situation. The defendant was on the stand, but was removed from the stand so the defense could attempt to introduce some new evidence.
“Now, Mr. Winslow, you made a motion that you be allowed to introduce new evidence at this time. I ask you now if you have any new evidence that you wish to introduce?”
Steve Winslow stood up. He took a breath. “I do not, Your Honor.”
That announcement, though totally expected after all the publicity, still drew murmurs from the back of the courtroom.
Judge Wallingsford banged the gavel. “I will not warn the spectators again. Now then. The defense has withdrawn its motion to introduce new evidence. When that motion was made the defendant was on the stand, and the defense had concluded its direct examination. It is now time for the prosecution to cross-examine. So, will you bring in the jury and return the defendant to the stand-”
Judge Wallingsford broke off as he realized Harry Dirkson was paying no attention to him, but was instead conferring excitedly with an associate. “Mr., Dirkson?” he said.
Dirkson stood up and turned around. His face was such a confusion of emotions it was almost comical. He ran his hand over his head. “Your Honor, Your Honor,” he said. “If I could have your indulgence for a moment.”
“Yes, Mr. Dirkson. We are all waiting on you.”
“I’m sorry, Your Honor. But before we proceed, a matter has arisen that requires my immediate attention.”
Judge Wallingsford frowned. “You’re asking for an adjournment, Mr. Dirkson?”
“No, no, Your Honor. Not a matter connected with my office. A matter connected with this case.”
“The defendant was on the stand, Mr. Dirkson. And you were about to cross-examine.”
“I know, Your Honor. But a matter has come up of which I was totally unaware. At least until a few moments ago. And it is a matter that is so grave, I feel I may be forced to take action. At this time, I must ask to reopen my case.”
Judge Wallingsford stared at Dirkson. “Mr. Dirkson, you rested your case. If you have new evidence, you can bring it out on rebuttal. That is the proper way to do so. But I can think of no reason to allow you to reopen your case now.”
“But I have new evidence, Your Honor, which should be introduced before I cross-examine the defendant. Evidence which will definitely link her with the commission of the crime.”
“Then it should have been introduced as part of your case.”
“I wasn’t privy to the information, Your Honor. It has only come into my hands now. I have a witness who will definitely put the defendant at the scene of the crime.”
Judge Wallingsford shook his head. “That is not proper procedure, Mr. Dirkson. If the defense raises an objection, as I am sure they will, I would have to sustain it.”
Dirkson’s face was grim. “The defense can have no objection, Your Honor. Because I am prepared to prove that the only reason this witness was unavailable in the first place was because this witness was carefully and deliberately concealed from us by the defense.”
Judge Wallingsford’s eyes widened. “That is a most serious charge, Mr. Dirkson. You mean the defense had full knowledge of the existence of this witness?”
“They did, and I can prove it,” Dirkson said.
“They deliberately concealed this witness from you?”
“That is correct, Your Honor.”
Judge Wallingsford took a breath. “And where is this witness now?”
There was a commotion in the back of the courtroom as the doors behind the spectators were thrown open.
“I believe she’s here now,” Dirkson said.
Everyone turned to look as two court officers pushed through the crowd leading in a defiant but rather harried-looking Marcie Keller.
41
Marcie Keller looked like a beast at bay. She tossed her head, shaking the long, curly hair off her face, gripped the arms of the witness stand and glared defiantly down at Harry Dirkson.
She had been installed on the witness stand after a long, brawling argument between Harry Dirkson and Steve Winslow, at the end of which Judge Wallingsford had ruled that Dirkson be allowed to reopen his case.
The jurors, of course, had heard none of this. In fact, they had not been in court since early the previous day. So they had no idea what was going
on, only that it was taking an unusually long time. The last they heard, the defense attorney was about to make a motion, so those jurors who had been responsible enough to heed Judge Wallingsford’s admonition about not reading the papers had to figure the delay was on account of that. So they were absolutely bewildered when Judge Wallingsford informed them that it was the District Attorney who would be putting on new evidence and that Harry Dirkson had been allowed to reopen his case.
Which made the attractive young woman on the witness stand even more fascinating. She was not a surprise defense witness, she was a surprise prosecution witness.
And obviously a reluctant one.
What the hell was going on?
Dirkson, showman that he was, prolonged the suspense by pausing dramatically for several seconds and just standing there looking at the witness before crossing in to question her. When he did, he began slowly, gently, even conversationally, a slight smile on his lips but a hard glint in his eye. It was a good tactic, implying the easy assurance of a man who has every ace in the deck, and it created the desired effect. The witness is mine, Dirkson’s attitude seemed to say. There is nothing to worry about. She won’t get away.
“What’s your name?” he asked.
Marcie took a breath. “Marcie Keller.”
“And what is your occupation, Miss Keller.”
Marcie’s chin came up. “I’m an actress.”
“An actress?” Dirkson said. “Now that’s interesting. There are thousands of actresses in New York City. Competition for jobs is rather fierce. Tell me, are you presently employed?”
Marcie glared at him. “I am presently on the witness stand,” she said dryly.
That sally drew a laugh from the spectators. Judge Wallingsford frowned and banged the gavel.