In the weeks before this trial began John had scheduled one minor operation, a nose reconstruction, for the wife of a suburban doctor. Twenty-four hours before the surgery she telephoned and canceled, or postponed, saying she had doubts about the procedure. Pressing her, John learned that she wanted to wait to see if he would be acquitted of the murder charge. “What does that have to do with my ability to do your nose?” he asked. But the woman began to stammer and she hung up quickly. When he was acquitted of this charge, and he felt sure he would be, he would consider moving away. He would take Connie and his son, and they would go to another city. Perhaps Europe. Maybe Milan, where he could go to La Scala every night, and maybe find a chamber group to play with.
While John napped on his lawyer’s couch, Racehorse analyzed the day. The question of the hour: Why had he read from Effie Green’s old deposition, knowing that the risk was the state would get to put the entire, dangerous transcript into the record, and before the eyes of the jury?
It was, said Racehorse, a calculated risk. He felt it necessary to impeach Effie Green’s memory, and the best way to do it, the most gallant way, was to politely point out the grave differences in statements made in the murder trial and those made two years ago, in the passionate weeks just after the death of Joan. Judge Hooey’s ruling to admit the entire deposition was in error, Racehorse felt, because the law states that you can only put into the trial record “that part upon which a witness is impeached.”
“Not the whole damn thing!” said Racehorse. But he was not devastated by the unfavorable decision. In fact, it could turn out to be an asset. A criminal lawyer in Texas has two ways to win his case. One is to try to prevail before the jury, putting on a performance so dazzling that the twelve men and women will vote favorably on behalf of his defendant. The second, and more tricky one, is to keep an eye on the trial record, hoping for errors severe enough to win reversal in the Court of Criminal Appeals. Haynes called such errors “hickeys.” Insurance policies. “I think we got a hickey today,” he said. It was the latest in a promising list, the first and most powerful being the fact that Cecil Haden was a member of the indicting grand jury. Racehorse clung to the belief that this alone was “hickey” enough to free his client.
There were more questions from the fascinated young lawyers—they would have had Racehorse entertain them until midnight—but the defense attorney begged off. Tomorrow would be a rather important day. He shook John Hill awake. They needed to talk privately. The subject was Ann Kurth.
TWENTY-THREE
As the trial entered its tenth day in what it appeared would be an uncommonly long proceeding, the district attorney’s men were guardedly enthusiastic. I. D. McMaster felt Effie Green’s appearance was, on sum, a definite plus for the prosecution, and once the jury scanned the emotionally wrenching deposition that had been admitted to evidence, they would probably share some of the disgust for John Hill that the prosecutors had. That the jurors would not be privy to the pressures applied to Effie by Ash Robinson was not considered relevant.
Ernie Ernst was more worried about the scheduled appearance of Ann Kurth. Two areas nagged him. The first was whether Judge Hooey would even allow her to take the witness stand, for Racehorse was preparing a massive objection. And even if the prosecution’s position was upheld, then God only knew what kind of an impression the woman would make before the jury. What she had to say was undeniably dramatic—the press would surely trot out its favorite term “bombshell testimony”—but her hatred for her ex-husband was so vitriolic that it would pour from her lips like smoke from a chemical fusion. Troubling also was the fact that Ann was so dramatic in phraseology and gesticulation that she came across as histrionic. Would these blue-collar jurors buy what she was selling?
Ernst had searched the lawbooks for a way to “open the door” for her testimony. Texas law, like that in other states, prohibits a wife from testifying against her husband concerning confidential communications that took place during the marriage. The laws of the nation are determined to preserve marital union. Moreover, courts have held that even an ex-wife cannot testify about private talk during the marriage. These are privileged conversations. Just at the point in pretrial planning when he was reluctantly deciding to drop Ann Kurth as a witness, Ernst came across an obscure point of law. He took his position before Judge Hooey, an old friend and colleague from the DA’s office.
Ernst had unearthed a case in which a wife was permitted to testify against her husband. It was during his trial for assault on another man. The testimony was allowed into the record—and upheld on appeal—because the husband in question made an admission to his wife while he was beating her up. “Apparently,” Ernst told the judge, “this old boy was whippin’ the shit out of his wife, and while doing so, he happened to mention to her, ‘Oh, by the way, honey, I also beat the shit out of So-and-So.’”
How, Judge Hooey wanted to know, did this relate to Ann Kurth’s possible appearance in the murder trial of her ex-husband?
Answered Ernst: The state reads this case to mean that if an act of violence is committed on a spouse during a marriage, then the status of privilege is sacrificed in relation to that specific act. John Hill is being tried for the murder of his first wife. The state is led to believe that he also tried to harm his second wife, Ann Kurth. Therefore the state wants to have Ann Kurth tell about an attempt on her life. Testimony will be limited specifically to the events leading up to and during this particular act of violence.
Judge Hooey considered the request and said he thought the state’s position was fuzzy at best. Agreed, said Ernst. But Ann Kurth’s appearance was vital to their posture. Her testimony would be res gestae, a Latin term that means “the thing speaks.” In this case it would refer to an “unthinking, unplanned utterance made in the heat of the moment,” something John Hill allegedly said to Ann Kurth just before he committed an alleged act of violence on her.
Judge Hooey agreed to let the woman begin her testimony, his clear implication being that if she wandered into areas taboo under the law he would silence her. Upon learning of Ernst’s maneuver, Racehorse immediately offered a motion in objection, stressing that the prohibition of a wife testifying against her husband was bedrock—traceable to ancient law. Judge Hooey listened patiently—he was at all times a low-key, even-tempered jurist who never delivered boisterous discipline to counsel—but he once more gave none too enthusiastic permission for Ann Kurth to tell her tale.
Freshly forty and not at all happy about it, Ann Kurth mounted the witness stand with grace, assurance, and a benevolent smile for all, even the stone-faced plastic surgeon a few feet fore of her whom she intended to carve into kabobs. She had chosen her costume carefully, a simple cream wool skirt and top and blue panty hose; tailored, obviously expensive, the ensemble was a tad naughty for a woman her age and in an era when fashion decreed that mini-skirts were for girls under twelve. But her legs were good, and she knew the men in the jury box looked at them approvingly. Her coiffure for the day was an enormous raven mane, lioness-like, frozen solid by clouds of lacquer. Racehorse eyed her with amusement and caution. She asked to be accepted as a sexy but still proper suburban matron. The defense lawyer wanted the state to hurry with this woman so he could have at her. He had coveted this opportunity ever since one of the divorce hearings between Ann and John. On that day, when the depositions were over, an hour of hard, prying questions, Ann waltzed toward the door, paused for a fragment, and hissed an obscenity between her teeth at Racehorse Haynes. He respected her flair for drama, her intelligence, and her down-in-the-dust love for the brawl. This was going to be the day Racehorse had dreamed about since law school.
Ann Kurth told how she met John Hill at Camp Rio Vista where they had gone to fetch their respective children, and how he pursued her upon their return to Houston.
“Can you tell me when or if your relationship with Dr. Hill ever became one of romance as far as you were concerned?” asked I. D. McMaster. The women in the audienc
e were waiting for this. The living soap opera was approaching its end-of-the-week Friday crisis.
“Well,” said Ann in her crisp, positive voice, “on about the third evening I was with him, he asked if I would marry him when he got out of the mess of the marriage that he was in.… And I didn’t reciprocate the feeling, but told him I would think about it.”
“Had you formed any attachment at all for him by that time?”
“Yes.”
“Was he charming?”
“Definitely.”
“You considered him handsome?”
“Well,” said Ann after a few moments of consideration, glancing down at John Hill as if to refresh her memory of his features, “not as handsome as some people I have seen … but very attractive.”
“When then after that did your relationship with him become that of romance?”
“Oh, in about the next three or four meetings … evenings together.”
“Did the relationship between you and Dr. Hill eventually come to”—McMaster paused, in search of euphemism—“come to physical love?”
“Yes.”
Now McMaster, having established an illicit affair between the defendant and this lush society woman, moved forward to establish motivation for the death of Joan Hill.
“Would you describe what he told you about his feelings for Joan Hill?”
“He hated her. He said he couldn’t stand to be around her, that she smoked incessantly and smelled like a goat. This bothered him. He didn’t like cigarette smoke.”
“All right. Do you smoke?”
“No, sir.”
“Was this a single occasion, or was it said on more than one occasion?”
“Well,” answered Ann, “when he described this feeling, I cut him short and told him that I felt it was inappropriate for him to say that to me, because if she was that bad, then I didn’t want her leftovers.”
Here was clearly an opportunity to object, but Racehorse held back. He sensed something unusual happening. He felt that here was a witness who was perilously close to going out of bounds, that the DA did not have her on the leash that prosecutors should have their witnesses on. Of course she had been “woodshedded,” that being the custom of all lawyers, who painstakingly rehearse both questions and answers with witnesses. In law school a student has that practically tattooed on his forehead: Never Ask A Witness A Question You Don’t Know The Answer To. But, Racehorse suddenly felt, Ann Kurth was a woman who was not hewing to protocol. It was mesmerizing to hear and see.
The prosecutor drew from her the news that John Hill deserted his wife, leased a bachelor apartment, and spent most of the autumn months of 1968 either there or at Ann’s home in the suburban Memorial district.
“Did you at any time during the months of August, September, October, November, or December of 1968 actually live with Dr. Hill?”
Ann nodded helpfully. “He stayed at my house constantly.” At the defense table, John Hill scribbled furiously in a spiral notebook, ripping out pages and shoving them before his lawyer.
“But he still had the apartment during this time?”
“Yes.”
During the March week in 1969, wondered McMaster, did Mrs. Kurth see anything “unusual” at the apartment?
“Yes, sir.”
Smelling a dead animal in the walls and trying to get it out before the stench became unbearable, Haynes rose hurriedly. He demanded that the witness pin this date down exactly. This is another defense trick; lawyers like to force witnesses to be specific as to year, month, day, hour, and second when they saw what they did. Since most people stumble, the testimony sometimes comes out a little tainted.
Ann Kurth was unruffled. “It was the week preceding Joan’s death in March 1969, approximately Tuesday or Wednesday, sooner or later.”
“Go on,” said McMaster, happy at the witness’ composure.
“We arrived at the apartment together. We each had a key. John said, ‘Let me have your key,’ because he had lost his and was going to have some others made. So I gave him my key. I held out my hand for the key back, and he said, ‘No, I am going to have the locks changed.’ And we went in and ultimately I went into the bathroom. And the door had been closed. There was a gooseneck light over the side of the basin, and there were three petri dishes there with red something in them and little dots of something in that.…”
John Hill’s body tensed and he moved closer to his lawyer. “She’s lying,” he whispered. “There were no petri dishes.” Racehorse started to make interruption. He wondered just how Ann Kurth knew these were “petri dishes” and not bowls of oatmeal or unwashed coffee saucers. The term “petri dish” is not in the layman’s vocabulary, and later on it might be fun to pin Ann down on just where she got it from. Ash? McMaster? Did she major in chemistry? But he let it pass. So far the jury seemed unaffected by what she had said. He would wait his turn.
“Was it a liquid, or did it appear to be liquid?” asked McMaster.
“I really didn’t get much of a look, because Dr. Hill came up behind me and said, ‘Oh, I am doing an experiment and this room is supposed to stay warm.’ He had this little gooseneck light over them. He backed me out of there and closed the door, and I didn’t really think about it.”
There was more to tell. After being escorted out of her lover’s bathroom, she said, she progressed to the kitchen and idly opened the refrigerator door. There, she informed the jury, she beheld two cardboard boxes containing pastries. While she was perusing them, annoyed that John had purchased blueberry tarts, which she did not like, the surgeon came up behind her and said, ‘Don’t eat those. Let’s go get Mexican food.”
At this point Racehorse objected but was overruled. He sat down angry. Here was a woman who held little if any legal right to be on a witness stand testifying against her ex-husband—Haynes felt sure an appellate court would disallow her appearance—and she was telling things that not only were far and wide of the limits set by the bench, she had been careful thus far never to testify about an event in which a third person was involved. It was always Ann and John. To counter, Racehorse would have to put his client on the stand and have him say, “No, no, a thousand times no,” to the petri dishes and the French pastries and whatever else was still to come, but it would boil down to which party seemed the most credible. He wished again he had at least two thirds of the jury box filled with hard-eyed women.
She testified that, although John Hill returned to his estranged wife in December 1968, it was only a ruse because he continued meeting her secretly.
McMaster asked: “Was there any time from the day that you first started going with Dr. Hill until your subsequent marriage to him that he did not mention marriage on occasion?”
“Never!” Her voice was a rifle shot. “He was progressively certain that we would be married sooner or later.”
Racehorse scribbled a note to himself to explore this area when it was time for cross-examination. This was a harmful revelation. Racehorse wondered if any of the jurors were caught in stale marriages and were picturing what it would be like to install someone like Ann Kurth in a bachelor apartment.
After the death of Joan Hill, inquired McMaster, “did you then take up with—or, shall we put it this way—did you then start seeing him on a regular basis about a week or ten days after the death of his first wife?”
Racehorse objected to the “leading and suggestive nature of the question.”
“Overruled,” said Judge Hooey, once again favoring the state. The feeling among the press corps covering the trial was that the bench was exceptionally tolerant toward the district attorney’s cause. With a theatrical sigh of weariness and disbelief, Racehorse asked for a recess until morning. He needed time to prepare a new motion asking that this woman be thrown out of court. Her presence, Racehorse would contend, was a savage violation of John Hill’s civil rights. Moreover, she had been ensconced in the witness box for an entire afternoon, and the conditions that permitted her to be there—“a
conversation during an alleged act of violence”—had not yet been disclosed. How many appetizers was the jury going to be served before the main course?
The next morning Racehorse argued with the judge for an hour, pleading that the entire course of Anglo-American law prohibited a situation like the one on display in this murder trial. Of all privileged relationships—doctor/patient, lawyer/client, priest/confessor—none was more sacred than husband/wife. He also contended Ann Kurth “was not worthy of belief.”
“Denied,” said Judge Hooey, but there was an edge to his voice. Perhaps the judge had second thoughts about permitting the woman’s testimony into the record. But he had gone this far, and he would hold firm.
“Then I must move for a mistrial,” said Racehorse, citing a grocery list of reasons.
That, too, was overruled. But the judge budged a little. “I am instructing the prosecutor to go into nothing but the ‘act of violence’ with regard to the period of the marriage,” he said sternly. “Now, do you understand?”
Racehorse was not satisfied with the minor crumb. He requested an “exception” to the entire appearance of Ann Kurth.
“You may have your exception,” said the judge, throwing the matter into the hands of an appellate court at some later date, if a conviction was obtained.
The story that Ann Kurth was permitted to tell this trial jury, and the story that she had previously told to the district attorney’s men and the indicting grand jury were two different things. In essence, they contained the same damning accusations. But, fortunately for John Hill, even the prosecutors felt that this star witness was so theatrical that her act might be difficult for a jury to fully accept. In numerous tellings, Ann had so refined and honed the “act of violence” that it had become a set piece, a gothic monologue, her voice lowering and darkening in the suspenseful moments, then rising and coloring like Portia in the dock.
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