As soon as they motioned for him to take his seat, one of the officers, a stocky, serious-looking man old enough to be his father, stepped over and introduced himself as Major Wharton, counsel for the defense. Jarom tried to read his face. He was thick-necked and ruddy, much of his face burrowed between the heavy sideburns that General Ambrose Burnside had made so popular among faddish officers in the Union army. A limp mustache obscured his upper lip. What skin showed through seemed to be in bloom, flushed as if he had overheated himself or had some condition physicians talked about in hushed voices. Something about his manner told Jarom he could handle himself competently before such a tribunal—the question was whether he felt inclined or free to.
Speaking in a lowered tone that reminded Jarom of Dr. Lewis, he told Jarom he’d been assigned to defend him that morning and that he’d just been given the charges and a list of government witnesses. He added, almost as an afterthought, that he would do what he could to defend him. Jarom thought Wharton probably realized, as he did, that this case flowed like water in a streambed—it would run its course no matter what obstacles either could throw up to stop it. Jarom mentioned that he’d prepared a written statement to present in his defense. Wharton said that was fine and at the proper time he would present it to the court. Jarom handed it over, and Wharton stuck the papers in his file, not bothering to read them. At that moment Jarom realized he couldn’t count on Wharton for much; like the gingerbread trim he noticed along the building’s eaves, Wharton served no function beyond giving things a good appearance. Wharton must have read his doubts, for he explained that he had only a few minutes to prepare the defense and that Jarom should listen closely.
First, Wharton informed him that the proceedings would be conducted by a military commission and that as defendant he would be asked to plead guilty or not guilty to each charge as it was read.
“Can I call witnesses?” he asked.
“I don’t think your witnesses will be allowed,” he said, “especially if they can’t be instantly summoned.”
Jarom asked what the charges were, and Wharton said the commission was about to convene and that he could hear them for himself.
Jarom noticed the swatch of saffron light that shone through one of the windows and laid itself on the bare floor. I wish I was here as bright and as untouchable as that light, he said to himself, and that my fleshly self lay as distant. Over the murmuring of the three men seated along the wall he heard a wasp. It thumped against the window, lighting a few moments on one of the mullions before bumping against another pane. The band of wavy light slanted across the room, cutting above the cap of one knee and splaying across his upper thigh. The air in the room seemed depleted, used up, and he knew it would be worse in a few minutes if no one opened a window.
When he asked how much longer they had to wait, Wharton removed his watch from his pocket and tapped the casing, which showed a couple of minutes to ten. At precisely ten Jarom heard a little commotion in the hallway. A clerk or a bailiff of some kind, who’d been standing to one side of the door, told everyone to rise for a military commission of the United States of America, Brigadier General Walter C. Whitaker presiding.
The door opened and six men paraded into the room, seating themselves at the table. All six wore dress uniforms, all were middle-aged or older. Their insignias, as Jarom read them, indicated two generals, three colonels, and a major. They reminded him of an assembly of aldermen or church deacons, grave and businesslike, practical men with little time either to generate or endure nonsense. They appeared vaguely uncomfortable, unbendingly stern. He hoped that, unlike most elders in the church, they dedicated themselves to virtue rather than the semblance of virtue. The one nearest the center, one of the generals, drew a sheaf of papers from his bag and leafed through them for a minute before glancing at his watch, which he pulled out ostentatiously on its fob from a pocket in his vest. Before starting, he looked soberly to either side, and the room went quiet.
From the deference everyone paid the paper-puller, Jarom surmised that he would officiate—a grandfather in his sixties. The general had suaveness, the look of a man at home in cities. Jarom noted that what hair he still had was princely silver and he brushed it back over his ears like folded wings. His eyes flitted about intense and humorless, constantly in motion but intent on business. Patches of gray streaked his beard, the head glossy and efficiently designed as an egg. Jarom was struck by the fact that, aside from the watch, which arguably was a necessity, this man showed not a hint of ornament or excess. Jarom interpreted him as disposed toward fair-mindedness but preoccupied, a little impatient. In the darkest view of things, Jarom concluded that he’d probably been picked because of his devotion to procedure and flexibility when it came to justice.
When he had everyone’s attention, Whitaker needlessly cleared his throat before introducing himself as president of the military commission appointed to hear the case. Continuing to study him, Jarom for some reason thought of overripe fruit. Whitaker had the shape of a pear. He puffed out his chest as though pumped up by some inflation device that stretched him, wrinkleless like a balloon. Everything about him seemed taut and distended. Whitaker, White Acre. He also intuited that this fellow intended to do him in, no matter what the evidence showed.
Starting at the far end of the table, Whitaker introduced the members of the commission, identifying their ranks and units. Not one nodded or otherwise acknowledged the introduction. Finally, Whitaker announced that Colonel William H. Coyl of the Ninth Iowa infantry would prosecute the case. Jarom immediately associated the name with snake and cautioned himself to be on his guard, attentive to every word this man spoke at every instant. Low-built, stoop-shouldered, Coyl must have been in his middle fifties. Despite his bureaucratic pallor, he looked canny and self-aware, not likely to sleep at his desk. He carried a mole on his lower jaw, another to one side of his Adam’s apple that jogged and jerked as he spoke.
Whitaker turned the proceedings over to Coyl, and Coyl nodded to the court clerk, the same man who stood at the door. Now he wrote furiously what must be the official record of the proceedings. He stopped taking notes long enough to read the order of Major General John Palmer, military commander and so on and so on, authorizing the commission to convene and decide the case of United States versus Jerome Clarke, alias Sue Mundy. Jarom knew Palmer as the man who had replaced Stephen Burbridge in February, the man more than any other he would like to have lined in the sights of a serviceable firearm.
After this preamble, Jarom for the first time felt Whitaker’s attention turn to him.
“Have you objections to any members of the commission?” he asked politely.
“No,” Jarom answered, wanting to avoid a fight at this early stage.
“Speak more loudly, please,” Whitaker said.
“No,” said Jarom, “I have no objection,” louder this time. None of the names registered but the states did. What business, he asked himself, did Iowa, Indiana, and Wisconsin have in Kentucky? Was there no one in Kentucky qualified to hear the case of a Kentuckian?
Whitaker then asked everyone to take his seat and further informed them that the commission had been assigned by such and such an order and authorized by General Palmer, commander of the Military Department of Kentucky. Needless repetition. Then he directed the clerk to read the charges and specifications.
Once Jarom sifted through the thickets of legal-sounding words and elaborate locutions, the meaning came surprisingly clear. Charge the first was being a guerrilla. The specification recited that though he was a citizen of Kentucky and the United States, “owing allegiance thereunto,” he “did unlawfully take up arms as a guerrilla, not acting with or belonging to any lawfully authorized military force at war with the United States” and that he had acted as a guerrilla and cooperated with guerrillas in the counties of Nelson, Marion, Henry, and Woodford during the months of September, October, November, and December 1864.
Translated and distilled, the second specificatio
n meant that he had taken up arms as a guerrilla in Meade County and fired on a detachment of the Thirtieth Wisconsin Volunteer Infantry and “by reason of said shooting did wound Privates White and Wadsworth on the 11th day of March.” Jarom guessed that White and Wadsworth were two of the six rightly served when they heaved the stone against the barn door.
When the clerk finished, Whitaker asked Jarom how he pleaded to the first specification.
“Not guilty,” he said.
To the second specification?
“Not guilty.”
And to the charge?
“Not guilty.” Jarom decided that though he was compelled to ride the railroad, he would not grease the tracks for them. He didn’t detect even the faintest scent of clemency in the room.
After the charges were read, he knew what the foundation of his defense would be. First, he had to prove that he held standing as an officer in the Confederate army during the last months of 1864. To do that, he needed his commanding officers, Adam Johnson and Colonel Jack Allen. Allen, he knew, served on the staff of General John C. Breckinridge and would be found wherever his commander was. Though he could hardly expect them to appear, he knew that even summoning them would take a minimum of eight or nine days, assuming they were still alive, could be found, and would come. So far as he knew, both were actively fighting somewhere in Tennessee or Virginia. Even if they could be located quickly, which was doubtful, he wondered if they would be permitted safe conduct to travel several hundred miles to testify in an effort simply to save his neck. Probably not, he decided. Defending the second specification, as he understood it, seemed less problematic. His argument would be that in the shooting at the barn he was defending his life from persons seemingly bent on taking it.
There followed a succession of six witnesses, all but one of them Union soldiers. First came Major Cyrus Wilson, duly sworn in and asked what he knew about the taking of Sue Mundy on the twelfth day of March in the year 1865. Wilson described Mundy’s capture at the tobacco barn, including his version of the negotiations for surrender. Fundamentally true, his testimony impressed Jarom as convincing and honestly presented, as honestly as his perspective allowed.
“As I stepped out of the sunlight,” he said, “I met a drawn pistol leveled at my heart. The hand holding it belonged to a frightened, gangly, wild-eyed boy. He was blinking at the flood of light behind me as though just awakened. As he most likely had, for his rumpled hair had hay straws in it, and he was barefooted. Beyond him I could make out two other human shapes, a man’s form crouching in the loft and one lying on the barn floor, propped on one elbow in the crib, his body wrapped in a horse blanket. Beneath the pistol’s nose I could see the defendant’s index finger curled around the trigger, ready. Though concerned, one look at the owner told me the finger would not crook unless I compelled it to. I was less certain about the nervous one fiddling with his pistols in the loft.”
Wilson paused and straightened himself in the witness chair before going on. As he spoke, Jarom noticed that once or twice he looked over to him, as if for confirmation. He then reported substantially what happened as they parleyed in the barn, including Jarom’s willingness to surrender if treated as a prisoner of war. He reported that he sensed behind the steady eyes Jarom’s awareness of the predicament, that Jarom was desperate and willing to bargain for his life.
When he finished this part of his testimony, Jarom wished that Wharton would question Wilson a little about his impressions and the certainty with which he referred to Jarom’s feelings. Who could know his feelings when he himself was so uncertain? But Wharton never objected or interrupted. The judges sat enchanted as Wilson recounted the episode in the barn.
Jarom found himself caught up in Wilson’s testimony as much as the others. It was strange to hear someone else give an account of what he had experienced and said, to see the complexion that person put on things. Though Wilson wasn’t correct in every particular, Jarom had the eerie sense that Wilson had peered deeply into him. He felt for the second time that Wilson exerted some mysterious power over him. He’d felt uneasy, yes, but for the first time genuinely afraid, not so much by what Wilson said as by the absolute control over events that the major seemed to possess. Jarom saw himself as a guilty child must feel when confronted by his parents about some unthinkable wrong.
When Wilson finished, Coyl asked whether Jarom had made a statement about their being evidence enough to hang him.
“Hang” was not the word, said Wilson. “I believe he said there being evidence enough to kill him.”
Coyl asked whether Jarom fired first.
“I believe he did,” Wilson said. “I certainly had given no order.”
Jarom acknowledged to himself that Wilson was right, that he had fired first, but only after the stone crashed against the door and demonstrated that those outside intended violence against him. He fought the urge to stand up and shout something about throwing the first stone.
Wharton, the statement still in his vest, came back on cross-examination and asked an innocuous question or two about what Jarom had said, and then Wilson came off the witness chair looking relieved, the look of an honest man who had acted an honest part in a dishonest game, and knew it.
Next came a Captain Lewis Marshall, a muddleheaded man in his mid-thirties, willing to take his cue from any leading question that Coyl asked. He confirmed most of what Wilson said about the exchange, though he didn’t hear most of it and couldn’t be characterized as a disinterested interpreter. When he referred to Jarom as Sue Mundy, Whitaker asked if by Mundy he meant “the man sitting there.” The witness affirmed that he did, pointing to Jarom. Jarom reckoned that one Wilson was worth a dozen Marshalls, no matter whose ox was being gored, whose hen being broiled for Sunday supper.
“Captain Marshall,” Coyl asked, “can you tell this commission where the name Sue Mundy came from?”
Marshall answered that a girl named Sue Mundy had stolen a horse and started the report that it was Jerome Clarke.
Jarom leaned over and whispered to Wharton that George D. Prentice had bestowed the name on him in the papers.
To his credit, Wharton asked Marshall if the defendant had not actually said that the name had been given him by George Prentice, editor of the Louisville Daily Journal. Jarom saw a shudder pass through Marshall, who shifted his weight in his hard-bottomed seat. He hadn’t expected Wharton to challenge him.
Marshall replied that he didn’t think the defendant had said any such of a thing. This was a lie, and everyone in the room, Jarom believed, knew it.
Again at Jarom’s suggestion, Wharton asked if the defendant hadn’t also said that at least three men went by the name of Sue Mundy.
“I disremember,” Marshall said. “If the defendant made that statement, I hadn’t paid it any mind.”
Jarom nodded to Wharton to indicate Marshall was lying again.
Sensing that this line of questioning would prove harmful to his case, Coyl interposed an irrelevant question of his own that got Marshall off the hook. As Jarom saw it, George Prentice for his own purposes had written that Sue Mundy was the author of almost any anonymous offense committed against the Union. At least three others—Magruder, Quantrill, and Marion—had used the name in connection with their own misdeeds, whether to shield their own identities or to fuel the threat of guerrillas, he didn’t know.
Questions followed about whether Jarom had surrendered as a prisoner of war. Jarom recognized this point as central to his standing before the court. The court accorded certain courtesies to bona fide prisoners of war not owed to guerrillas. Coyl recalled Cyrus Wilson. Still under oath, he denied that Jarom had surrendered on condition he be treated as a prisoner of war. This was a blow. So Wilson was a liar too. That ended the testimony of Wilson and Marshall, and at that point Jarom would have consigned them both to a tenement in the fiery pit reserved for those who have orphaned scruple.
The next four witnesses Coyl must have picked up on the street or as a result of the
notice placed in the paper calling for witnesses. Not just any witnesses, Jarom reminded himself, but those who could offer evidence against him. The first answered to the name of William Brady. He testified that he was one of four Union soldiers shot near New Castle on February 2. Military dispatches corroborated this information, attributing the shootings to a gang headed by Quantrill and Sue Mundy.
Coyl asked Brady who shot him. He didn’t know. Coyl then asked if the accused was among the party, and Brady answered he couldn’t say for sure. Pressed harder, Brady allowed that he supposed that the “defendant there” was the chief and that he assumed the shooting was performed on orders of the chief. Coyl asked what kind of horse Jarom had been riding, and Brady said a dark bay. When asked about Jarom’s dress, Brady said the chief was “got up neat in pretty tolerable light pants and a neat something on the shoulders all fringed off.” There was then a dispute about whether Jarom wore his hair short or long, all very critical facts in Jarom’s opinion. Coyl had to drag the answers from the dimwitted Brady, who had only the vaguest recollections of the incident, if any at all.
Wharton’s trying to establish Quantrill as leader of the party pleased Jarom. He purposed to distinguish Jarom’s hair, which was long and dark, from Quantrill’s, which was curly and reddish. The man Brady saw had a mustache—Jarom obviously didn’t. The man he saw or thought he saw, Quantrill, was two to three inches shorter than Jarom.
Brady hemmed and hawed, finally admitting that the man just might have been shorter than the defendant. To Jarom’s way of thinking, Brady lied consistently, and he fought the impulse to stand up and scream it to the world.
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