Ross smiled. “Whatever gave him that idea?”
“I’m merely reporting what he said. Anyway, the ex-Mrs. Neeley was brought to court and denied ever having seen Dupaul, and Dupaul was equally emphatic that this was not his pretty, sexy Mrs. Neeley.
“The prosecutor more or less hinted, without coming right out and saying it, that Dupaul’s story had been composed, words and music, by Al Hogan—probably in one of his drunken states—and was patently ridiculous. He pointed out that even Mr. Hogan should have remembered that the police had found only the one gun in the room—”
Ross sat a bit more erect, interrupting.
“They only found the one gun?”
“Yes, sir. The one Neeley supposedly had taken from the dresser drawer was gone. Incidentally, the suitcase he supposedly had brought into the room also was not there.”
“How did they know the gun found beside the bed was the gun used in the shooting?”
“Actually, they never had to prove it. Dupaul never claimed it wasn’t.”
Ross shook his head. “Al Hogan should have done better! Well, go on.”
“Yes, sir. Hogan claimed the woman must have taken the second gun away, but the prosecutor pointed out that even Mr. Hogan would have to admit puzzlement that the woman—had she existed and had she taken a gun from the room—would almost certainly have taken the gun she gave Dupaul, rather than the unfired gun belonging—supposedly—to Neeley. Actually, the prosecution had a lot of fun on that score.
“Neeley further not only denied having walked into the apartment with a suitcase, but claimed he didn’t own a suitcase. He—”
“The woman could have taken it away, as well as the gun,” Ross pointed out.
“I suppose she could have, if there would have been any reason for her to do so,” Steve acknowledged. “But why on earth, in a panic situation, would a woman stop and pick up a suitcase before running out?”
“I have no idea,” Ross said flatly. “Go on.”
“Anyway, I’m merely giving you the testimony as it appears in the transcript. We can draw our conclusions later. Neeley said what actually happened was that he was on his way home—”
“From where?”
“He said he’d been to a movie. The defense questioned him about that and the details seemed to fit, but nobody made a big point of it.”
“It seems there were lots of points nobody made a big point of,” Ross said sourly. “Go on.”
“Neeley said he was passing the Mountain Top Bar when young Dupaul came staggering out and collared him the way drunks do, telling him what a miserable, lousy place New York City was, they wouldn’t sell a man a drink, and so on and so on. Neeley said he could see it was just a big kid in his teens and he felt sorry for him, so he told him to come up to his place and have some coffee and sober up.
“He said they walked—no taxi—on to the apartment on West Sixtieth Street, and when they got there, he went into the kitchen and put up some coffee—incidentally, there was fresh coffee on the stove when the police got there, whatever that proves—and when he came back the boy had wandered into the bedroom, taken off his jacket, tie, and shoes, and was stretched out on the bed, sound asleep.
“He says he woke the boy up and the kid wanted a drink, and when Neeley told him there wasn’t any liquor in the house—Neeley said there was, of course, but not for the kid—the boy didn’t believe him and started to get abusive.
“And when Neeley threatened to call the cops and throw him out, the boy got real nasty and started to tear the place apart, starting with the bed. Neeley grabbed him to try and shove him out of the apartment, at which—according to Neeley—the boy pulled a gun and said something to the effect of, ‘Do I get a drink or do you get shot?’ Neeley says he insisted there was no liquor in the place, at which the boy said something like, ‘I’ll find it easier without you,’ and shot him down in cold blood.”
Ross scribbled a note on the pad before him. Sharon looked at him, surprised he had not asked her to include it in her notes. Ross smiled at her.
“Just something that strikes me as being a bit odd,” he said, and turned to Steve. “By the way, what was the exact nature of Neeley’s wound?”
“The bullet struck him in the corner of the mouth on the right side, catching a bit of the lower lip. It apparently shattered on his jawbone and the fragments were pretty well scattered. The doctors managed to get most of them out, but it seems the one that eventually killed him was either missed by the operating physicians or was inoperable.”
“Was any testimony given at the time to indicate there was still a fragment remaining that was inoperable?”
“No, sir,” Steve said. “Still, Neeley was lucky at that. If it had been a thirty-eight instead of a twenty-two, he wouldn’t have had those extra eight years of life.”
“I’m not so sure,” Ross said thoughtfully. “A thirty-eight probably wouldn’t have shattered in the first place. It would probably have smashed the jawbone and gone out the side of the cheek, taking out a lot of teeth but not necessarily killing him. There are a lot of records of cases where the damage done by a small caliber bullet is far greater than would have been done by a larger caliber, mainly because of shattering.”
He thought a moment, his fingers drumming on the desk blotter, and then went back to Steve’s exposition.
“You referred to Dupaul saying he was hazy because of drink. When he was booked at the precinct, did they do a blood alcohol on him?”
Steve rustled among his papers, coming up with the proper one.
“Yes, sir. It was high—very high. Zero-point-three-five percent. That’s the equivalent of 3.2 milligrams. Rated as ‘almost incapable’ in the police tables.”
“How about Neeley? Had he been drinking? Did they run a blood-alcohol test on him as well?”
Steve shook his head with a faint smile. It wasn’t very often he had a chance to catch the boss off base.
“It wouldn’t have indicated a great deal, when they had to transfuse him with six pints of blood.”
“They still could have done a urine analysis,” Ross said shortly. “They didn’t transfuse him with that, did they?” He shook his head. “Well, I’ve seen some poorly handled cases in the years I’ve practiced law, but this strikes me as one of the worst. No one attempted to check witnesses, in the bar or on the street. For instance, was there any attempt to verify if anyone saw Neeley, with or without Dupaul, on the street that night? Were any advertisements placed in newspapers asking witnesses to come forth?”
“No, sir.”
“Did anyone bother to check the apartment-house tenants to see if anyone there saw anyone in the lobby or the elevator? Or the hallway?”
“The tenants were checked, but only desultorily as far as I could see by reading the transcript. None of their testimony was on record, just the testimony of the investigating detectives who checked.”
“Hogan must have been drunker than usual,” Ross said, and added, “rest his soul!” He checked his watch and looked at Steve. “All right—one last question and we’ll break for lunch. But I wouldn’t be able to enjoy my meal if I didn’t ask it—”
“Right,” Steve said, smiling, anticipating the question.
“What’s the big secret you’re holding up your sleeve? To make you so sure Billy Dupaul should have been found guilty and rated the four to eight no matter whose story the jury believed? If Neeley was telling the truth, I admit the boy comes on as a rather nasty piece of goods. But if the boy’s story was the right one, he should have walked out free and clear. And without one witness on either side, you’d think he would have been given the benefit.”
“Except there was one witness. Of sorts,” Steve said, and grinned.
“There was? You didn’t mention him.”
“I mentioned it. The gun. The one Billy Dupaul swore the woman had shoved into his hand. There had been no attempt to obliterate numbers or hide identification. I have a photostat of the registration with
me here—” He gestured toward his papers. “It. was registered in Glens Falls. In the name of John Emerich, Dupaul’s grandfather.…”
CHAPTER
4
Sharon Mccloud had managed to spread a tablecloth over a portion of the conference table without disturbing Steve Sadler’s many papers, and was busy putting down paper plates and spoons.
“Sandwiches will be right along,” she said.
Ross grinned. “No beer or martinis today?”
“You have your choice of coffee or soda today. And like it,” Sharon said with mock severity. She turned at the diffident tap on the door and opened it to admit a young fellow from the delicatessen down the block. He was carrying a cardboard box filled with hot, capped cups, cold bottles, wrapped sandwiches and pastry. Sharon tipped the boy, piled the sandwiches on one plate, the Danish on another, and placed the drinks on the center of the cloth. Ross picked up a sandwich, discovered it was roast beef, and opened it. He took a big bite, chewed, and swallowed.
“Certainly not the Sign of the Dove.”
“Vacation’s over,” Sharon said. “We’ve got an urgent case now. Remember?”
Ross smiled. “You mean, shut up and eat?” He became serious, turning to Steve. “And what was Dupaul’s explanation?”
Steve was searching the pile for a corned-beef sandwich. He finally managed to unearth one by scattering the other sandwiches over half the table. Sharon, sitting quietly to one side, put down her sandwich, straightened the pile, and went back to eating.
“About the gun? He didn’t have any,” Steve said, and unwrapped the sandwich. “No mustard? Oh, well …” He shrugged philosophically, took a bite and chewed. “Not the Sign of the Dove? It isn’t even Lindy’s. Lindy’s isn’t even Lindy’s!”
“But he must have said something.”
“He just swore it was impossible.”
“He denied the gun was his?”
“No, he couldn’t very well deny that, nor did he try to. He said when his grandfather died, he just took over the old man’s guns. I guess there’s nothing so rare about that. People are supposed to transfer registrations, but few do. The gun was one of a pair of twenty-two caliber target pistols, S&W brand. Billy Dupaul claimed he only brought the one to New York with him.”
“And the second gun of the pair?”
“It’s still up in Queensbury, I imagine.”
“I don’t suppose Ballistics were able to do much with the shattered bullet?”
“Nothing,” Steve said. “They weighed the fragments and came up with the idea it was a twenty-two but that was about all.”
“Even with a fragment missing? Hogan should have been able to tear them apart on that.”
“Except that Dupaul admitted shooting the man. And the gun was his.”
“But he claimed he didn’t have it with him that night?”
“He swore up and down he had left it at the hotel. He said—repeatedly—that he had gone out on the binge without the gun.”
“And no explanation on his part to explain how the gun could have gotten there?”
“None.”
“Any fingerprints on the gun?”
“The barrel had some unidentifiable smears; the grip was corregated and didn’t take prints. But, as I said, there was never a question as to Dupaul firing it.”
“He fired a gun, then dropped it. The police found a gun. In the meantime Dupaul had left the room …” Ross thought a moment and then shook his head. “No, maybe in court I would have pushed that a bit, but I doubt I’d have gotten very far. I’d have to admit here in the privacy of our office that in all probability Dupaul’s twenty-two was the gun used and that he used it. Still, did they do a nitrate test on him?”
“No. I imagine they didn’t feel it was necessary.”
“Probably not. Still, they should have. Hogan might have gotten him to change his story. However—What was his explanation for failing to recognize his own gun when it was given to him? After all, he must have used it many times. You’d think he would have recognized the feel.”
“He was in no shape to identify guns. I doubt he could feel much of anything at that stage.”
Ross finished his sandwich, wiped his fingers on a paper napkin and tossed it aside. He frowned.
“Did the boy ever admit to carrying the gun since coming to New York? Or was it always left in his room?”
“He finally admitted carrying it on a few occasions. At first he denied it—after all, he had no New York City permit for it, and the Sullivan law is still a tough one—but a witness from the ball club, one of the other players, said he had seen the gun on Dupaul once, and Dupaul told him he wore it when he went into neighborhoods he had been told were dangerous.”
“Which covers about all of New York today,” Ross said dryly.
“Yes, sir. Anyway, Dupaul swore up and down he had left the hotel without the gun that night, but he couldn’t offer any more than his word.”
“Could he have gone back for it? After those drinks in that second bar he was in—the one on Lexington? And been too drunk to remember?”
“I doubt it. The timetable wouldn’t have permitted it.”
“It must have been pretty easy for the prosecution,” Ross said. “Here’s a witness, who admits being so drunk he can’t remember most of the things that happened, being positive on that one particular score.”
“Well,” Steve said, “he wasn’t drunk when he left his hotel room.”
“True. What about his roommate? This Marshall boy. Had he already gone back to Queensbury by this time?”
“He left that day, actually. But the room clerk who testified said that Marshall had checked out at least an hour before Billy Dupaul came down and went into the bar.”
Ross picked up a hot cup of coffee, removed the lid, added sugar and stirred it absently, his mind considering the facts Steve Sadler had given him. At last he sighed.
“Well, possibly I owe poor Al Hogan an apology, but I’m damned if I’ll dig him up to give it to him. I think he could have gone into a lot of questions in far greater depth, but in the end I’m afraid I’m forced to agree with you, Steve. On the basis of the evidence, including the pistol and including the flimsiness of Dupaul’s story, I can understand the jury finding the boy guilty. And Judge Demerest handing down that sentence. Still—”
“Unless,” Steve suggested, “it was Mr. Hogan who invented that flimsy story and saddled the boy with it.”
“I doubt it,” Ross said positively. “Al Hogan was a drunk, but he always had imagination. He not only would have come up with a better story, but he had a perfect one right to hand.”
Both Sharon and Steve stared at him. Ross smiled. Steve frowned.
“But what story could possibly have explained away that gun?”
“There was no need to explain away the gun. When you can’t explain something away, you merely incorporate it.”
Ross reached for a Danish, aware of the curiosity his statement had engendered, thought of his waistline, and reluctantly changed his mind. He wiped his lips and leaned back in his chair, dismissing for the time being the first case of the People of the State of New York versus William Dupaul. He motioned toward the casette recorder; Sharon, understanding, reversed the tape and prepared to continue.
“All right,” Ross said. “What happened to put him back in jail as a second-offender?”
Steve sipped his coffee, made a face, and put the cardboard container aside. “Awful,” he muttered under his breath, straightened his glasses, and dug into his pile of papers.
“He got into a fight.”
“When?”
“Well, he served—” Steve found the proper reference and checked it “—forty-three months on the first sentence, getting out in 1968, in June, for good behavior. The second offense occurred in December of the same year, about six months after his release.”
“All right. Go ahead.”
“He got into this fight in a bar. He was working—”
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“Dupaul sounds like the sort of fellow who ought to stay out of bars,” Ross commented dryly. “Anyhow, bars aren’t supposed to hire ex-convicts. Not in this state.”
“True,” Steve said, “only he wasn’t working in the bar. He was wrestling beer kegs for a living, working for a brewing company. Either he didn’t want to go back to baseball, or more likely baseball didn’t want him back with a record. In any event, he was handling these beer kegs into this bar this day and one of the customers recognized him and started to needle him.”
Sharon had cleared the table, putting the refuse aside to be disposed of later. Now she was back with her stenographic book, noting the interruptions on the recorder meter. Steve referred to his papers and went on.
“In this case there were plenty of witnesses, all willing to testify. The bar was fairly crowded, but it was early afternoon and nobody was drunk. Unfortunately, most of the witnesses—like witnesses anywhere—had thirteen different stories. Still,” Steve added, “this time I find it a lot harder to excuse Mr. Hogan.”
“Al Hogan was his lawyer again?”
“Yes, sir. Appointed by the court again. Dupaul was broke, of course. And that was about all the work Mr. Hogan was getting in those last days. I imagine the courts must have felt sorry for him.”
“I felt sorry for him, too, but a little consideration for the rights of the accused to decent counsel wouldn’t have been too amiss, either,” Ross said evenly. “So what happened in this bar?”
“This one customer—a man named Clarence Riess—apparently recognized Dupaul and started to give him the needle. He got pretty obnoxious, it seems. He wanted to know if Dupaul had turned queer in prison, and asked Dupaul what he had really been doing in Neeley’s apartment the night he shot him five years before. The bartender claimed he was too busy to see or hear what led up to the fight; when he got around to noticing it the two men were already hard at it. There are witnesses who claim Dupaul kept his cool until this man actually called him names; others claimed Dupaul practically started it. Naturally, the DA’s office stressed the witnesses who suited them. Louis Gorman hadn’t risen to Chief Assistant in those days, but he was already on the staff. He was one of the men at the prosecution table.”
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