by Parnell Hall
“I don’t know. Why should I? It wasn’t important. I just looked on top of my dresser and there it was.”
“Your dresser?”
“Yeah.”
“You were getting dressed then?”
“I don’t remember what I was doing.”
“Try.”
“Hey. I’ve tried. I just don’t remember.”
“You understand why this is important?”
“Hey, I’m not stupid.”
Steve let that pass. “Fine. Then help me out. Concentrate. Think. Jog your memory. You think I’m asking you if you were getting dressed because I give a damn what clothes you were wearing? I’m trying to reconstruct the scene of you finding the file to jog your memory as to what time of day it might have been. A good clue would be, were you putting clothes on or taking them off?”
“I realize that,” Timberlaine said. “I also realize the significance of whether I found the file before or after my guests arrived in trying to figure out who could have planted it.”
“That’s wonderful,” Steve said, “but slightly incidental. Did you happen to catch the bigger picture, by any chance?”
Timberlaine frowned. “Huh?”
“You found the file before the murder. The actual time doesn’t matter, the fact is it was before the murder. That’s the killer. I gotta argue someone roughed up the barrel of the gun and then planted the file on you. That’s tough enough. It’s a hell of a stretch, but it’s still an argument.
“But once you’re in possession of the file before the murder, what the hell do I argue then? Someone stole the gun from you. Someone stole the file from you. Then they killed Potter with the gun, roughed up the gun with the file, planted the gun back in your holster and hid the file back in your room, and all while you were conveniently taking a fucking shower.” Steve blew out a breath. “Now, I may not be a bad attorney, but if I can get a jury to believe that, I should make Lawyer of the Year.”
Timberlaine frowned. “So what are you going to do now?”
“There’s a saving grace.”
“What?”
“The cops don’t know it.”
“Know what?”
“When you found the file. They got the file, they can prove it was found in your possession, but they can’t prove you had it in your possession before the murder. So I don’t have to explain why you did.”
Timberlaine’s eyes faltered.
Steve groaned. “Oh, Jesus Christ. Don’t tell me.”
Timberlaine shook his head ruefully. “Well, the cops came to me with this file.”
“When?”
“Just now. Just before you got here.”
“And?”
“Well, they told me that things looked bad, they just found this file in my room and—”
“Right,” Steve said sarcastically, “and they said if you could just explain how it got there they’d let you go.”
“How’d you know?”
“Give me a break. You told them you found it there?”
“Right.”
“Before the murder?”
“Well ...”
“Well what?”
“I told ’em I wasn’t sure when.”
“That’s what you told me. But it was before the murder.”
“Yeah.”
“And you told ’em that?”
Timberlaine sighed. “Yeah.”
“Great,” Steve said. “You remember me telling you not to talk?”
“Damn it—”
“I hope you remember it. It was just this morning.”
Timberlaine’s eyes blazed. “I don’t have to take this.”
Steve shook his head. “No, that’s the problem. The fact is, you do.” He got up, headed for the door
“Hey,” Timberlaine said. “Where are you going?”
Steve stopped in the doorway. “I’m going to hunt up the D.A., tell him we’re not going to press for bail, and let’s start the trial.”
23.
ROBERT VAULDING’S OPENING WAS showy. Vaulding was young, handsome and personable, and he knew it and he used it. Most prosecutors would have been solemn and ponderous, emphasizing the gravity of the charge of murder. Vaulding kept it light. He actually smiled during his opening statement, played to the jury, and implied without actually saying it that they were in for a show. Yeah, it’s murder, Vaulding’s attitude seemed to say, and it’s a serious charge. But I didn’t do it and you didn’t do it, and I’m here to tell ya, we’re gonna get a kick out of pinning it on the guy who did.
“So you see,” Vaulding said, “this is a very simple crime.” He shrugged his shoulders. “Elemental. It almost insults my intelligence to have to argue it.
“But at the same time, it is absolutely fascinating and it has elements that merit our attention.
“What are they? Well, let’s start with the two guns. There was a gun found next to the body. A Colt .45 with the initial R carved in the handle. A gun that experts will testify was the original, genuine article once owned by Pistol Pete Robbins, a notorious gunslinger from the Old West. A gun we can show was owned by Russ Timberlaine. There it was, right next to the dead body.”
Vaulding turned, shrugged his shoulders and smiled. “Simple crime, yes? But ballistics will show that this was not the murder weapon.
“And what was the murder weapon?” Vaulding shrugged again. “What else? An identical gun, a Colt .45 with the letter R carved in the handle, obviously a duplicate of the original gun, but one that experts will testify was not authentic and was mocked up only recently to resemble the original gun.”
Vaulding paused, looked around the courtroom again. “And where was this gun found? In Russ Timberlaine’s bedroom. On Russ Timberlaine’s night stand. In Russ Timberlaine’s holster.”
Vaulding paused, let that sink in. “And how did it get there?” Vaulding turned and pointed. “According to Russ Timberlaine himself, he put that gun and holster there. He took it off after he came upstairs after the auction that afternoon and after, by his own admission, firing the gun. A gun numerous witnesses will testify he was wearing after the auction.”
Vaulding paused, pursed his lips. “I’ve already laid out the events leading up to the murder, but let me summarize them briefly. Russ Timberlaine went to the auction with the express purpose of buying a gun. A gun he knew Melvin Burdett would bid on if he knew he wanted it. Therefore, he enlisted the aid of Henry Crumbly to bid on the gun for him. Nonetheless, Burdett outbid Crumbly. In Russ Timberlaine’s opinion, the only way Burdett could have known Crumbly was actually bidding on the gun for him was if his expert, Potter, who had appraised the gun for him, had tipped him off.”
Vaulding held up his hand. “The merits of this contention are irrelevant. The defense may argue, and quite rightly so, that Burdett could have learned this information from another source, or could have surmised it himself from the way events transpired. That’s wholly irrelevant. The fact is, whatever the merit of the contention, Russ Timberlaine believed it to be true. And because he believed it to be true, he was incensed. His own expert, Jack Potter, had betrayed him. He stormed out of the auction at that point in full cowboy regalia. Including the holster and the gun. By his own admission, he fired that gun. And the next time we see that gun, it is discovered in Timberlaine’s holster on Timberlaine’s night table in Timberlaine’s bedroom by the police immediately after the murder.”
Vaulding held up his finger. “Our ballistics expert will testify that gun was the murder weapon. The gun Timberlaine was wearing at the auction. The gun Timberlaine claims he fired off after the auction. The gun that was found immediately after the murder on Timberlaine’s night table.”
Vaulding paused, smiled again. “Now then, this is a murder trial. The judge will instruct you that in a murder trial, the burden of proof is on the prosecution. It is up to us to prove the defendant guilty beyond a reasonable doubt.”
Vaulding turned, gestured to the defense table where Steve Winslow sat
next to Russ Timberlaine. “The defense attorney may argue that this is a case of circumstantial evidence. In other words, there is no eyewitness. No one saw Russ Timberlaine shoot a bullet into the head of Jack Potter. You are required to deduce that happened from the evidence that we are going to lay before you. We, the prosecution, are going to show that the circumstances lead to the inescapable conclusion that Russ Timberlaine killed Jack Potter. That is what is meant by circumstantial evidence. Now, as I’m sure you are aware, it is necessary to prove Russ Timberlaine guilty beyond a reasonable doubt. Now, in a case involving circumstantial evidence, as I am sure counsel for the defense will point out, it is necessary that the circumstances that we lay out for you are not open to any interpretation other than the guilt of the defendant. If the defense can come up with a reasonable explanation for these circumstances, then you must find the defendant not guilty.”
Vaulding stopped, looked around, and this time actually grinned broadly. “To which I say, be my guest. As prosecutor, I intend to lay out the circumstances surrounding this crime. When I am done, if the attorney for the defense can come up with a reasonable explanation other than the guilt of the defendant, well, ladies and gentlemen of the jury, you won’t have to return a verdict of not guilty, because at that moment, I, myself, will personally move for a dismissal of the case.”
Vaulding shook his head. “But I assure you, that is not going to happen. He is guilty, he can be shown to be guilty, he can be proven to be guilty beyond a reasonable doubt. I would even say beyond a shadow of a doubt. And if any other explanation exists, I for one am the first one to want to hear it. But I am confident that I am not going to. Just as I am confident that when I am done, you are going to return a verdict of guilty as charged.
“I thank you.”
Vaulding bowed to the jurors, walked back to his table and sat down.
Judge Hendrick leaned forward on the bench. Elderly, bald and bespectacled, Hendrick provided a nice counterpoint to the young Vaulding. “Does the defense wish to make an opening statement?” Judge Hendrick asked.
All eyes in the courtroom turned to Steve Winslow. The jurors, in particular, looked at him expectantly. His reputation, or at least his flair for the dramatic had preceded him. This was where he was supposed to shine.
In the back of the courtroom, Tracy Garvin bit her lip. Steve had gone over his opening statement with her, so Tracy was the one person in that courtroom who knew what had just happened. She took a breath, scrunched forward on the edge of her seat. What the hell was Steve going to do now?
The problem was, Vaulding had stolen his thunder. That whole speech about circumstantial evidence and a hypothesis other than that of guilt—that was the defense attorney’s speech to make. But Vaulding had made it for him. By doing so, he had undermined him and cut the legs out from under him. Steve Winslow couldn’t go over the same ground again.
And Vaulding had challenged him to come up with a reasonable explanation. Almost dared him. Steve couldn’t meet that challenge, couldn’t accept that dare. Even if he had a reasonable explanation, which he didn’t, if he tried it now, it would be like taking the dare. It would be like two schoolboys fighting.
That was it, Tracy realized. That was the real problem. Vaulding was young. Young, dramatic and unconventional. In short, Vaulding was just a better dressed, straighter version of Steve Winslow. As a result, there was no real contrast between Vaulding and Winslow as there was between Vaulding and the judge.
And as a result, Tracy realized, there was nothing Steve could do. He’d just have to grit his teeth, smile and announce that the defense would reserve its argument until it began putting on its case.
In the front of the courtroom, Steve Winslow paused, took a breath.
Judge Hendrick had a reputation for being rather crotchety, brusque and generally moving things along. He frowned now, said, “Well? Does the defense wish to make a statement or not?”
Steve Winslow looked up and smiled. “The defense does, Your Honor.”
24.
“YOU EVER BUY A used car?”
Steve Winslow raised his eyebrows, looked at the jury. He shrugged. “It doesn’t matter if you have or not, you know what I mean. The spiel. I’m talking about the spiel. The used car salesman’s spiel. ’Cause you know and I know, even if we’re talking about some clunker with four bald tires, the guy selling you that car’s gonna make it sound pretty good.
“Now, I just heard Mr. Vaulding’s opening statement, and I must say, it sounded pretty good. And if it sounded pretty good to me, I bet it sounded pretty good to you.
“But you have to remember something. It’s supposed to sound good. Otherwise you wouldn’t buy the car. But if the salesman is nice and bright and young and personable and talks real fast, you’re gonna have that sucker home before you notice it’s leaking oil.”
Steve paused and looked at the jurors. He had their attention, yes, but that was it. It was obvious no one had the faintest idea what he was talking about.
Steve plunged ahead. “Of all the things Mr. Vaulding told you, there was one thing he got right. The burden of proof is on the prosecution. He only said it because he knew I was going to say it and he wanted to say it first. But be that as it may, the fact is he is absolutely right. The burden of proof is on the prosecution. I don’t have to prove a thing.
“But you wouldn’t know that from the rest of Mr. Vaulding’s statement. He talks about a reasonable hypothesis other than that of guilt. As if he’s going to lay out the facts for you, and then if I can explain them in a way that doesn’t implicate my client, then my client can go free.
“Well, that’s mighty nice, but that’s not the way it happens to work. I don’t have to explain the evidence Mr. Vaulding brings out.” Steve turned and pointed his finger. “He does. If the facts that the prosecution brings out do not make sense, that’s not my fault. That’s not my client’s fault. And we have no responsibility to sort those facts out for you.” Again, Steve pointed his finger. “He does. And if he can’t sort ’em out for you, if he can’t explain the facts in a way that they make sense—then he doesn’t have a case. And that is when the charge should be dismissed. Right then and there.”
In the back of the courtroom, Tracy Garvin nudged Mark Taylor who was seated next to her and whispered, “What the hell’s he doing?”
From the side of his mouth, Taylor whispered back, “You got me.”
Steve took a breath, settled himself. He looked over at the prosecution table, saw Vaulding smiling. And in that split second, Steve knew why. He’d played right into Vaulding’s hands. He was losing it. He’d gotten himself all worked up, but he was leaving the jurors cold. He was making a perfectly sound legal argument, and Vaulding understood it perfectly well. But as far as the jurors were concerned, it was dry lawyer doubletalk.
Steve smiled, shook his head, and chuckled. He looked sideways up at the jury with an impish grin. “Not buyin’ it, huh? A bunch of lawyers spewing out their theories, big deal, what does it all mean?”
Steve clapped his hands together. “O.K. Let’s look at the facts of this case. During his opening statement, Mr. Vaulding told you time and time again that my client, Russ Timberlaine, was seen wearing the murder weapon at the auction on the afternoon of the murder.” Steve held up his finger. “He states this as fact. Again and again and again. Russ Timberlaine was seen wearing the murder weapon. Russ Timberlaine admits firing the murder weapon. The murder weapon that Russ Timberlaine was wearing at the time of the auction was found on Russ Timberlaine’s night table.”
Steve shrugged. “Pretty damning, right?” He shook his head. “Wrong. It’s the spiel sounding good, but when you get the car home it’s a lemon.” Steve held up his finger. “The reason Mr. Vaulding keeps stating that Russ Timberlaine was seen wearing the murder weapon is because he can’t prove it. He has no proof whatsoever. Now, I am sure there are witnesses who saw Russ Timberlaine wearing a gun at the auction. But he doesn’t have one single witnes
s who can testify Russ Timberlaine was wearing the murder weapon at the time of the auction.” Steve shook his head. “No, Mr. Vaulding states it as fact, but it’s just part of the spiel. There is no witness to identify that gun, and there is no other means of identifying that gun.
“Now, Vaulding didn’t mention this during his opening statement, but the murder weapon has no serial number. The serial number on that gun has been ground off. As was the serial number on the other gun, the gun that was found next to the body, the gun Mr. Vaulding assures us will be identified as the real Pistol Pete Robbins gun. Vaulding says he has experts who can testify to that. And he has witnesses who can testify to the fact that Russ Timberlaine was known to have owned that gun.”
Steve grinned, raised his hand. “Keep your eyes on the gun, ladies and gentlemen. Forget the used car salesman. Let’s talk about a magician. Yeah, I had it wrong. That’s what Mr. Vaulding was during his opening statement. A magician. Keep your eyes on the gun.
“There are witnesses who will testify that the gun found next to the body was owned by Russ Timberlaine. Big deal, since that gun had absolutely nothing to do with the murder. But there are no witnesses whatsoever who can testify that the murder weapon was owned by Mr. Timberlaine, or was ever in Mr. Timberlaine’s possession. At most, the prosecution can show that the murder weapon was eventually found on a night table in Russ Timberlaine’s bedroom. And when was it found? After the cops arrived. And how was it found? The cops asked Russ Timberlaine for his gun and he said oh sure, here it is, and showed them the gun on the night table.
“Does that sound like the action of a guilty man? Does that sound like the action of a man who had any reason to believe that gun might be involved in a murder? Absolutely not. That sounds like the action of a man with absolutely nothing to hide. A man who was absolutely astounded to find out the gun in his possession was the murder weapon.
“And why is that?” Steve smiled. “Because Russ Timberlaine is innocent. Because the gun found in his gun belt on his night table is not the gun he was wearing at the auction, much as the prosecutor would like you to believe it was. No, the gun found in Russ Timberlaine’s gun belt in Russ Timberlaine’s bedroom—a room that was unlocked and could have been entered by anyone at any time—that gun was planted there after the murder by the murderer to make it look like Russ Timberlaine was guilty.”