Her frozen nerves would thaw the first time she rose to challenge the prosecutor in a verbal debate over a point of law or spoke directly to the jury with her opening statement. Her voice would be shaky—for a moment. Then adrenaline would kick in. Her frozen nerves and shaky voice would melt in the baptism of fire in the courtroom.
She had never met a good trial attorney who wasn’t nervous before a trial. An actor once told her that most actors were nervous when they had to speak their lines. And the dividing line between actors and trial attorneys was often vague.
She entered the courtroom and paused. The only person in the room was the bailiff. He nodded at her and continued reading a newspaper.
She went to her bench seat behind the rail and looked around at the courtroom. She loved the dramatic soul, the aura of old-fashioned justice, of the Old Bailey courtroom. It was unlike any courtroom she had been in, more dramatic theater than legal forum, a place that reeked with the intense conflicts and powerful emotions that had exploded against its aged walls. Conflict was the basis of great fiction—and great courtroom drama. It was a courtroom where attorneys Abe Lincoln, Clarence Darrow, and Gary Spence (not to mention screen lawyers Charles Laughton, Paul Newman, and barrister Rumpole) would have felt comfortable speaking their lines.
American courtrooms were built like auditoriums, with only the moderator—the judge—facing the audience. But the Old Bailey courtroom was built like a theater, with a viewing gallery, “box seats,” above the dramatic action on the courtroom floor, permitting the audience to watch the dramatic tension on the floor below with a bird’s-eye view.
There were even theatrical costumes for the judge and attorneys, wigs out of fashion for centuries and gowns that separated the “classes” of lawyers by rank and distinction.
Adding to the dramatic tension, the sense of tragedy and impending conflict, was “the prisoner in the dock.” The defendant did not sit next to her attorneys, but was in the “dock,” a square, elevated box that displayed the prisoner dramatically as the center of attention. The dock in the courtroom was a large box-shaped compartment that the defendant shared with two bailiffs. At the top was an ornamental iron trim of spearheads, the original purpose of which was to keep the prisoner from climbing over and lunging for the judge.
In an American courtroom the defendants sat at the counsel table with their lawyers and usually had to be pointed out for the jury to realize which person sitting at the table was on trial. Putting prisoners in a display box with guards nearby made the defendant the focus of attention—there was no question of who the accused was and little possibility of the prisoner hiding emotions except behind a dull stare that itself bespoke guilt.
As in any hallowed theater, there was said to be a house ghost in Old Bailey, an innocent person who had been unfairly condemned and was hanged.
Marlowe hoped that the ghost was on her side.
She thought about the wheels of justice that were to begin spinning. It would play out almost exactly like a boxing match—a judge would act as a referee between competing combatants, with the jury deciding who won the fight.
Throughout the trial, the judge would constantly be making ruling on “quiddities” and “quillets,” those esoteric points of law that Prince Hamlet complained were a lawyer’s weapons. “Rules of evidence” were lawyers’ swords and pikes, which they used to jab each other as they fought to get their evidence in and their opponent’s excluded. In the European system, where judges decided guilt or innocence, there was no need for elaborate rules for admitting evidence because the judge was presumed to be a professional who could separate the wheat from the chaff. But under the Anglo-American system, jurors walked into a courtroom and had months and even years of complex trial preparation by experts thrown at them in hours. Untrained and unprepared to know the difference between reliable and unreliable evidence, the jury had to have the evidence strained for them by the judge.
The net result was that the jurors didn’t necessarily hear all evidence, nor all the truth—the cases were decided upon only on the facts the judge let them hear.
One of the most common questions asked of an attorney during a social gathering is, “How can you defend someone you know is guilty?” The answer isn’t that a defendant is presumed innocent—the truth is that the adversarial system of justice the British invented requires that even the known guilty be defended because prosecutors are not neutral parties, but combatants whose duty it is to champion only the police view.
She knew that she had a fault, one that made her a good attorney but also sometimes blindsided her—she had too much empathy for her clients. You couldn’t be a good doctor unless you could stand the sight of blood—and it was inevitable that patients would die. If you weren’t able to accept those deaths, you had to find another profession. The same was true of attorneys who defended people in courtrooms—sometimes blood was spilled, the innocent went to prison, the guilty went free. If you couldn’t keep your professional life in a box separated from your emotions, if you had too much feeling, trials became an emotional roller coaster. And she couldn’t separate her personal emotions—she felt fear and pain for the client, often even more than the clients themselves appeared to feel.
Marlowe didn’t have a connection with organized religion in the sense of being a churchgoer, but at these moments when there was an uncanny silence in the courtroom before the bloody battle began, she was always reminded of the old soldier’s truth: There are no atheists in the foxhole.
She was wondering if there was a prayer for lawyers on the day a trial began when the other players started entering the theater.
* * *
SHE TOOK HER SEAT in the first row. Trent was on her right, and farther down, at the other end of the bench, was where the prosecutor would sit. Neither the prosecutor nor his junior had arrived.
Philip Hall sat behind her and Trent in the row for juniors. In the row behind Hall, Sir Fredic, the instructing solicitor, sat.
Marlowe thought the arrangement of counsel in rows like benches at a train station was inefficient. The setup made it difficult for senior counsel to communicate with the junior without making it very obvious and even more difficult to communicate with the solicitor except by passing down notes or whispers through the junior.
Tradition got in the way of communication even worse when it came to the defendant. Marlowe spoke to the princess before the proceedings, but her client would be in the dock during the trial rather than beside her.
She felt conspicuous, a fly in a sugar bowl. The barristers were in dark robes and gray wigs, as were the prosecutors.
She had met Desai when she appeared before the judge to be granted permission to represent the princess. She thought about what Hall told her about the prosecutor. In the days when trial was by combat, the king or queen had a champion with lance and armor, and who threw down the gauntlet and challenged anyone who denied the monarch’s right to rule. Today, the Crown Prosecutor in wig and gown with a sharp pencil was the champion.
* * *
V. C. DESAI CAME INTO THE courtroom. Along with his glowing brown predatory features and silver hair, the wig and robe gave him an even more dramatic appearance than the other barristers. It was also the way he carried himself, she thought: He didn’t just walk, he marched.
He paused in front of her, leaning across the front rail, and recited:
“And thus I clothe my naked villainy
With old odd ends, stolen out of holy writ;
And seem a saint…”
He leaned closer, bending over the rail down toward her, whispering, “When most I play the devil.”
He bowed. “Good morning, Miss James, Trent.”
Trent said to Marlowe, “A poor rendition of Richard III.”
“Did he prosecute him, too?” Marlowe asked.
47
Marlowe smiled encouragement up to the princess in the dock. The princess nodded down at her without smiling. She wore a calm mask, but Marlowe kne
w how forlorn the woman felt, how frightened and alone it was to be center stage in a murder trial.
The jury was seated with minor quibbling, none of it in front of them.
The previous day Trent had made a demand for the results of the prosecution’s investigation and elimination of potential jurors, and the prosecutor had refused to provide the information—or even admit that vetting had occurred. The judge backed up the prosecutor’s position on the grounds of national security, a term Marlowe decided the British government seemed to employ to its advantage.
Seven women, five men, no one too rich, too old, or too young, eleven white, one black—it was a reasonable cross-section of people in the city who weren’t able to avoid jury service on one excuse or another, only in this case no one wanted to avoid it. It occurred to her that the people on the jury were a good representation of solid middle-class British values. That was the kind of jury prosecutors sought—and that made her wonder whether it had been stacked. Defendants sought younger people, poor minorities, people with liberal educations, people with indications that they had counterculture values—bottom line, people who were more inclined to question authority and would not automatically take the word of a police officer as the gospel. The only minority on the jury, a bank officer of African descent, looked too successful to Marlowe for her to believe that he questioned authority. Most minorities suffered a degree of prejudice almost every day of their lives, but it bounced off the backs of some of them and angered others. The bank officer didn’t seem the angry type.
The jurors took an oath of fairness: I swear by the Almighty God I will faithfully try the defendant and give a true verdict according to the evidence.
That’s how it was in the courtroom, nearly everyone took—or had previously taken—an oath to serve justice. Attorneys took an oath before they got their license to practice, judges when they were appointed to the bench, people called to the witness box swore to state “the truth, the whole truth, and nothing but the truth.”
The judge, Lord Bennington, was rigid, the type who ran a courtroom as a tight ship. He had a thin, humorless smile that seemed permanently etched on his face, and a sharp, dry, sarcastic wit that was seldom used but left nasty cuts when it was.
“Eminently qualified,” Hall had told her earlier about the judge. “Tends to lean toward the conservative side of legal issues, but he’s reasonably fair. We could have done better, but we also could have drawn much worse.”
Her own take on the judge was that he was the type to give you enough rope when he wanted to hang you. He had been extremely condescending when she had met with him prior to trial. The fact that an American trial attorney—a woman, no less—was appearing as trial counsel obviously frayed his ingrained sense of the reserve and propriety of his elitist concept of British jurisprudence. One is supposed to reply kindly, Yes, milord, No, milord, as he puts the rope around your neck, Marlowe thought. She had assumed initially that she would give lip service to the courtroom decorum by also addressing him as “Your Lordship,” but after he told her that he expected her to dress “ladylike” rather than the fashionable feminine suit of pants and jacket she wore to the courtroom, she decided a simple “Your Honor” would do and that she would dress as she damn well pleased.
She wasn’t stupid enough to piss off a judge—it was always a no-win scenario for a lawyer. But when anyone stepped out of line and gave her a push, she pushed back. The judge wasn’t happy about her representing the princess and might have been less critical had she been a male trial lawyer. Her instinct was to push back. If she didn’t, she felt she would risk having the judge prejudice the jury against her. Judges did it subtly, not so much by a choice of words but a slight difference in tone that subliminally conveyed lesser respect for one attorney than another. When she pushed back and showed a judge she had teeth, most jurists became cautious and neutral. And if nothing else, it showed the jury that she believed in her client and had the courage to stand and fight.
“Mr. Desai,” the judge said, nodding at the prosecutor, signaling him to present his opening statement to the jury, to “open the case for the prosecution,” as Philip Hall had put it.
“Your Lordship.” Desai, five or six feet down the bench from her, stood and faced the jury to make his opening statement.
“As you have been told, I am the Crown Prosecutor in this matter. I have, along with my junior, Mr. Timmings, the official duty to place before you the physical evidence and sworn testimony that the crown has gathered from witnesses, police, and forensic experts. To fulfill that duty, at this time it is my privilege to introduce you to the particulars of the offense and a summary of the evidence that will be presented. You have before you a copy of the indictment. As you can see, the crown alleges the killing of a human being in a premeditated manner with deliberation, in cold blood, if you will.
“As you all know, as the whole world I am sure knows, this trial revolves around the death of a man, not an ordinary man, but a person of great eminence and importance, but also a man who is capable of suffering and bleeding as any of us.”
Bastard, Marlowe thought. There was no evidence of “suffering” and Desai knew it. But she kept her mouth shut—Hall had told her that objections were tolerated but only when absolutely necessary.
“I do believe that I will be bearing false witness if I tell you that the case will not revolve around who killed him—the shooting was televised and watched by many millions—but why the shooting occurred. The ‘why’ will become obvious as you hear the evidence.
“The evidence will show that the killer is a neurotic, immature woman, a compulsive reader of silly romance novels in which beautiful virginal young women and handsome dashing young men with powerful loins come together in fiery embrace.
“She is a woman who has never performed a day’s work in her life—born and raised in the lap of luxury, she is very much the spoiled girl in ‘The Princess and the Pea’ who thought of herself as so delicate, she felt a single pea hidden beneath twenty mattresses.
“She has exceeded at nothing, but was chosen to marry a prince and be a presumptive future queen because of her social position and physical attractiveness. She came into the marriage not as a mature woman with realistic ideals about what marriage entailed, but with juvenile notions.
“Nurtured on romantic drivel, from early in life she saw herself not as an ordinary person who must work and play and marry within the bounds of our society, but as someone chosen by the gods to be a queen. The prince was taken by her and lured into marriage by her. But he soon found that he had not married a responsible young woman, but a demanding girl with impossible romantic notions, and who wanted him at her feet day and night.
“The prince was a man of moderation and impeccable manners. He respected tradition and was dedicated to the tasks the nation assigned to him. He found relief from the tremendous pressures of his official duties in reading matters of intellectual concern—often issues of moral and social significance—and in sports activities with a small circle of friends.
“However, this life pattern was not one that the princess wanted. She expected the prince to give up his social activities, his pleasures of polo and the hunt, and provide her with the attention she craved—and demanded!
“When her neurotic demands for his fullest attention were not heeded, she tried to capture his attention with staged, melodramatic attempts to hurt herself. When she became pregnant with the prince heir to the throne, and was again denied the absolute attention she sought, she brought these theatrical dramas to an almost tragic conclusion by throwing herself down a stairway in an attempt to murder the baby in her womb!”
“Objection!” Marlowe snapped, getting to her feet. “That statement is outrageous, it’s a lie and outrageous, and the prosecutor knows it! He’s deliberately trying to prejudice the jury. I want the statement struck and the prosecutor sanctioned.”
“Please take your seat, Miss James,” the judge told her. He was agitated, but controll
ed it as he sent the jurors out of the courtroom.
Trent rose after the last juror had filed out. “Our apologies, Your Lordship. Miss James is not familiar with the decorum of our system. But I must say that my learned friend, Mr. Desai, has stepped beyond the bounds of tempered advocacy.”
“He’s prejudiced this jury with an outrageous remark,” Marlowe said.
The judge stared down at her. It was the first time she had seen his thin smile gone. He spoke calmly but firmly. “Miss James, you are permitted to make objections. Shouting them in a loud, argumentative voice is not part of our procedures. Perhaps that is the way of the American system, but we abide by a different courtroom etiquette.”
She faced him without flinching. “I apologize, Your Honor, but I was caught completely by surprise. I expected the courtroom etiquette to be on a much higher level. It came as a shock to hear the prosecutor take a cheap shot at the defendant, accusing her of a heinous crime without proof, the sort of underhanded tactic that I wouldn’t expect from a prosecutor anywhere in the free world. I’m making a motion for a mistrial. This jury should be excused and a new one impaneled.”
The judge looked like he was going to have a coronary. He was speechless, probably for the first time in his professional life. He gained control of himself and spoke in a calm, deliberate manner. “Please resume your seat. Mr. Desai, you will deal with the evidence in the matter before the court and not bring in collateral matters.”
“Yes, Your Lordship.”
“This is an unusual case in all aspects, but let us remember that we have—that most of us have—been trained to observe proprieties and protocols that do not include attempting to inflame the jury with matters not supported by the evidence.”
With the jury back in the courtroom, Desai continued his opening.
“When the defendant discovered that she had driven away the prince and she believed he had taken refuge in the arms of another woman, hate and anger consumed her. She was a woman with violent jealous tendencies, capable of sitting in front of her husband and cutting herself with a blade. The fact that she had been rejected festered in her, inflaming her thoughts, her very marrow.
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