SW03 -The Underground Man

by Parnell Hall

  “The word ‘decedent,’” Steve said.

  “Sustained,” Judge Grimes said.

  “I’ll rephrase the question, Your Honor. What is your relationship to Jack Walsh?”

  “He is my great-uncle.”

  “How long have you known him?”

  “All my life.”

  “How well did you know him?”

  “Very well. I lived in his house most of my life.”

  “Very good,” Dirkson said. “Then let me ask you this. Do you have any personal knowledge of any injuries Jack Walsh sustained in his lifetime?”

  “Objection to ‘in his lifetime,’” Steve said.

  “Sustained. That phrase may go out.”

  Nettled, Dirkson said, “Same question, omit the phrase. Do you have any personal knowledge of any injuries Jack Walsh ever sustained?”

  “Yes, I do.”

  “Could you tell us about that, please?”

  “Yes, I could. It was a long time ago. I must have been nine or ten years old. I was living in Jack’s house at the time.”

  “And where was that?”

  “In Great Neck.”

  “Thank you. Go on.”

  “I was out in the backyard, and Uncle Jack was playing with me.”

  “What were you playing?”

  “Baseball. Whiffleball, actually. Jack was pitching and I was hitting the ball.”

  “What happened?”

  “I hit a popup. Uncle Jack ran to get it and tripped and fell.”

  “Was he hurt?”

  “Yeah. He hit his leg on a rock.”

  “Which leg?”

  “His right leg.”

  “What part of his leg hit the rock?”

  “The bottom of his leg. Right there.”

  “Let the court reporter note that the witness is indicating a spot in the back of his right leg midway between the knee and the ankle.” Dirkson turned back to the witness. “So what happened then?”

  “Nothing. Except we stopped playing ball.”

  “Did Jack Walsh go to the hospital?”

  “No.”

  “Or see a doctor?”

  “No.”

  “Are you sure?”

  “Yes, I am. I remember, I said, ‘Uncle Jack, you gonna go to the doctor?’ and he said, no, it was nothing. But I know he couldn’t walk on it. He sat with his leg up for a couple of days. After that he limped for a while.”

  “And after that?”

  Jenson shrugged. “It got better. You know, just like he’d sprained his ankle.”

  “I see. But it wasn’t his ankle, was it?”

  “No. It was his leg. Right there, like I said.”

  “I see,” Dirkson said. “Thank you. No further questions.”

  Judge Grimes said, “Mr. Winslow?”

  Steve rose. “I have a few questions, Your Honor.” He crossed in to the witness. “Mr. Jenson, you testified that this incident occurred when you were nine or ten?”

  “That’s right.”

  “That would be about twenty-five years ago?”

  “Yes, it would.”

  “You have an excellent memory.”

  “Thank you.”

  “You’re welcome. Mr. Jenson, are you familiar with the provisions of Jack Walsh’s will?”

  “Objection, Your Honor,” Dirkson said. “Incompetent, irrelevant and immaterial.”

  “It’s always proper to show bias, Your Honor.”

  “Objection overruled. Witness will answer.”

  “Are you familiar with the provisions of the will?”

  “Yes, I am.”

  “Are you a beneficiary of Jack Walsh’s will?”

  “No, I’m not.”

  “You’re not?”

  “No, sir. As you well know. The only beneficiary of that will is Jeremy Dawson.”

  “You’re referring to the handwritten will that was in Jeremy Dawson’s possession when he was arrested by the police?”

  “Your Honor, Your Honor,” Dirkson said. “Objected to as leading and suggestive, and assuming facts not in evidence. Counsel is now going into parts of the prosecution’s case which we have not yet set forth.”

  “Objection overruled,” Judge Grimes said. He turned to the jury. “Ladies and gentlemen of the jury. Let me explain. The matters Counsel is going into now are not in evidence, and are not to be considered by you as such. You are to consider only how these matters relate to the bias of this particular witness.” He turned back to Steve. “Proceed, Mr. Winslow.”

  “Thank you, Your Honor. The question was whether you were referring to the holographic will found in Jeremy Dawson’s possession when he was arrested by the police?”

  “Yes, I was.”

  “That was the will purportedly written by Jack Walsh on February 26th?”

  “That’s right.”

  “And you say the only beneficiary of that will is my client, Jeremy Dawson?”

  “Well, actually, I’m left a thousand dollars. As are the other relatives. But I don’t consider that making me a beneficiary, somehow. I consider it a slap in the face.”

  Steve frowned. “So, if I understand what you’re saying, your contention is that you are not biased in this matter because you are not a principal beneficiary in the will?”

  “Exactly.”

  “Fine. Then let me ask you this. Is it not true that you have already consulted a lawyer and are contesting that will?”

  “Yes, I am.”

  “On what grounds?”

  “Lots of grounds.” Carl Jenson ticked them off on his fingers. “The will was made under undue influence. The will was made while Jack Walsh was not of sound mind. And the will wasn’t finished. It’s not even signed.”

  “Do you expect to win the will contest?”

  “Yes, I do.”

  “I take it you are a beneficiary of a previous will made by Jack Walsh?”

  “Yes, I am.”

  “As I understand it, in that previous will, you and four other relatives, including Jeremy Dawson, are the principal beneficiaries, each to receive an equal share of the estate. Is that right?”

  “Yes, it is.”

  “And you and the other beneficiaries, excluding Jeremy Dawson, have consulted a lawyer for the purpose of contesting the handwritten will found in the possession of Jeremy Dawson?”

  “Yes, we have.”

  “And did that lawyer tell you that no person convicted of murder may profit from inheritance from his victim, so if it should be proven in court that Jeremy Dawson killed Jack Walsh, he could not and would not inherit, regardless of any will?”

  There was a pause. Carl Jenson frowned.

  “Can you answer that, Mr. Jenson?”

  “I think he said something to that effect.”

  “Oh, you do, do you?” Steve said. “Well, let’s see where that leaves us. You are contesting the will and you expect to win. In the event that you do, you will receive one-fifth share in an estate worth millions of dollars. On top of that, if Jeremy Dawson should be convicted of the crime and could not inherit, you would receive one-fourth share of said estate. But is it not true that in any case, you will inherit that money if and only if Jack Walsh is proven dead? To put it another way, is it not a fact that if the murdered man found in the subway tunnel turns out to be Jack Walsh, you stand to share in an estate worth millions of dollars, but if the man found in the subway tunnel is not identified as Jack Walsh, you don’t get a dime?”

  Jenson shifted on the witness stand. “I’m not a lawyer.”

  “No, but you’ve consulted one. And I’m asking you, in your own mind, are you not aware that if that body is identified as Jack Walsh you stand to inherit money, and if it isn’t you don’t? And does that in any way color your recollection, in any way influence your remarkable memory to come up with the details of an unimportant and eminently forgettable incident you claim happened some twenty-five years ago?”

  “No, it doesn’t. I’m just telling you what happened.�
��

  “You remember it clearly?”

  “Yes, I do.”

  “Jack Walsh fell down and hit his leg on a rock?”

  “Yes, he did.”

  “His right leg?”

  “That’s right.”

  “You’re certain of that?”

  “Yes, I am.”

  “Could not have been his left leg?”

  “No, it couldn’t.”

  “You remember that so clearly that you can swear absolutely that it could not have been his left leg?”

  “No. It was his right.”

  “And the fact that if it had been his left leg you might lose a million dollars doesn’t cloud your memory at all?”

  “No. It was his right leg.”

  Steve Winslow rolled his eyes, shook his head, gave the jury the benefit of his look of utter disbelief. “Thank you so much, Mr. Jenson,” he said ironically. “No further questions.”

  Judge Grimes took a twenty-minute recess. When court reconvened, he frowned, took a breath and said, “I have considered that matter carefully. It now appears that there is sufficient circumstantial evidence to conclude that the body found in the subway station was indeed Jack Walsh. Therefore we may consider the corpus delicti proven, and the prosecution may introduce evidence tending to link the defendant to the crime. Therefore at this time, the testimony of the witness, Joseph Bissel, which had been stricken from the record, shall be considered reinstated, and may be considered in evidence.

  “Now, the witness, Bissel, was withdrawn from the stand in order that this new evidence might be heard. And the defense reserved its cross-examination until such time as it should be determined if his testimony was in evidence. That time is now. Return the witness, Bissel, to the stand for cross-examination.”

  35.

  STEVE WINSLOW COULDN’T BELIEVE HOW quickly things had turned around. He’d had Dirkson on the ropes. He’d been that close to winning a dismissal. And then Carl Jenson stepped up to the plate and made it a brand new ballgame. Steve had been able to show how implausible, farfetched, and likely to be biased Carl Jenson’s testimony was, but he hadn’t been able to contradict it. And taken at face value, Jenson’s testimony had done the trick. Just like that, the body had been I.D.’d as Jack Walsh, Joseph Bissel’s testimony had been reinstated, and Steve was right back in the position he had been fighting to avoid, that of having to cross-examine a homeless man.

  When Joseph Bissel had been seated on the witness stand, Steve Winslow stood up. Before he crossed in to the witness, he looked at the jury. He could read the answer on their faces, and it was just as he’d expected. Any attempt on his part to brow-beat this helpless man and break down his identification was going to alienate them all.

  In the back of the courtroom, Tracy Garvin could read the situation too. Joseph Bissel’s identification of Jeremy Dawson was shaky at best. Jeremy Dawson in court was a clean-cut kid in a suit, and Joseph Bissel had seen a punk with green hair. Joseph Bissel didn’t know the day or the time of the occurrence, so in all likelihood he had been drinking, which was something Steve had a legal right to bring up. But if he did, he’d lose the jury.

  So what the hell could Steve do?

  Steve Winslow took a moment to refer to his notes. Then he straightened up, crossed in to the witness, and smiled. “Good morning, Mr. Bissel.”

  “Good morning, sir.”

  “You testified yesterday, Mr. Bissel, that you saw Jack Walsh in the 66th Street subway station on February 26th, is that right?”

  “I don’t know if it was the 26th. I only know it was the day of the fire.”

  Steve nodded. “That’s fine, Mr. Bissel. I appreciate your frankness. Now, you also stated that Jack Walsh had someone with him at that time. Is that right?”

  “Yes, it is.”

  “And I believe you also stated that that person was my client, Jeremy Dawson. Is that right?”

  “Yes, it is.”

  “Did you also state that the person in the subway station had green hair?”

  “Yes, I did.”

  Steve turned and indicated Jeremy Dawson. “My client does not have green hair now. So obviously you are not identifying him by his hair. Mr. Bissel, can you tell me how it is that you’re certain it was my client that you saw with Jack Walsh at that time?”

  Bissel nodded. “The hair is different, but the face is the same. I’ve always had a good memory for faces. Some people do and some people don’t. But I’ve always been good that way.” He raised his finger to point. “And that is the face of the man I saw.”

  “Thank you,” Steve said. “One moment, Your Honor.” He turned and crossed to the defense table, picked up a manila envelope and pulled out the eight-by-ten photographs. “Your Honor, I ask that these pictures be marked for identification as Defense Exhibits A one through five.”

  “One moment, Your Honor,” Dirkson said. “May I see those?”

  “Certainly,” Steve said. He passed the photos over.

  Dirkson took a look at the photographs. His face flushed. “Your Honor, I object.”

  Judge Grimes smiled. “You can’t object to him marking them for identification.”

  “I know, Your Honor. I object to him showing them to the witness.”

  “The objection is overruled. Counsel may show the witness anything he likes.”

  “But—”

  Judge Grimes held up his hand. “That will do, Mr. Dirkson.”

  The court reporter marked the photographs.

  Steve Winslow took them and approached the witness. “Mr. Bissel, you have stated that you recognize Jeremy Dawson as being the person you saw in the subway station with Jack Walsh, that his hair was cut in a green mohawk at the time, but that you recognize him anyway because you are very good with faces. Is that right?”

  “Yes, it is.”

  “I hand you five eight-by-ten color photographs of young men with green hair, and ask you if you can look them over and tell me which one of them is the man you saw in the subway station.”

  Dirkson lunged to his feet. “Your Honor, I object.”

  Judge Grimes frowned. “On what grounds?”

  “On the grounds that this is not a proper test. Those photographs have all been carefully staged. They are all young men with green hair, and they have all been shot at exactly the same light at exactly the same angle.”

  “Of course they have, Your Honor,” Steve said. “Otherwise, it would not be a fair test.”

  “It is a test designed to confuse the witness, Your Honor.”

  “I beg your pardon,” Steve said. “Your Honor, I object to the prosecutor characterizing what I am trying to do.”

  Dirkson’s angry retort was cut off by Judge Grimes’s gavel. “That will do. The objection is overruled. The witness will answer the question.”

  “Thank you, Your Honor,” Steve said. “Now, Mr. Bissel, if you’d just look at the pictures and tell me if you recognize the man you saw in the subway station with Jack Walsh.”

  Joseph Bissel leafed through the pictures, looked closely at each one. On his second time through the stack he stopped and pointed to a picture. “That’s him,” he said. “That’s the one.”

  Steve Winslow leaned forward, picked up the picture, held it up in front of the witness. “This one, Mr. Bissel?”

  “Yes, sir. That’s him.”

  Steve turned with a big smile on his face. “Let the record show that the witness has identified the picture marked for identification as Defense Exhibit A-2.” Steve turned back to the witness. “Thank you very much, Mr. Bissel. No further questions.”

  Dirkson lunged to his feet. His face looked murderous. “All right, all right,” he said. “Let me see those pictures.” He snatched the pictures, found the one marked A-2. He turned it over, looked at it, clenched his fist. He turned to the witness. “Mr. Bissel,” he said ominously, “you are now stating that the man you saw in the subway station with Jack Walsh is the young man in this picture?”

 
; Joseph Bissel cringed slightly. He seemed surprised and hurt at this unexpected attack from a supposed ally. “Yes, sir,” he said. “That’s him.”

  “I want you to look at the picture again. In fact, I want you to look at all the pictures again. And tell me if you can identify any of them as being the man you saw in the subway station. In fact, whether you can even tell one picture from the other.”

  “Objection, Your Honor,” Steve Winslow said. “Counsel is brow-beating the witness. Mr. Bissel has already made his identification.”

  “Mr. Bissel was tricked into making his identification,” Dirkson snapped. “These photographs are a trick on the part of Counsel, and are totally unfair.”

  “Your Honor,” Steve said. “Joseph Bissel strikes me as an exceptionally competent witness, and I would certainly trust his judgment. I’m not sure I understand. Is the District Attorney taking the position that Joseph Bissel can’t identify the person he saw in the subway station?”

  “No, I am not,” Dirkson said. “Your Honor, I charge the defense attorney with misconduct.”

  “Misconduct, Mr. Dirkson?”

  “Yes, Your Honor. Counsel specifically asked the witness which one of these pictures was of the man he saw in the subway station. That was an improper statement designed to deceive the witness into believing one of the pictures he was going to see would be of that man. When in point of fact, Your Honor, none of these pictures Counsel has shown the witness is of the defendant, Jeremy Dawson. I assign his asking the question as misconduct.”

  “And I assign that statement as misconduct,” Steve said. “Your Honor, the prosecutor is making prejudicial statements in the presence of the jury. In an attempt to belittle the testimony of this witness, he is making statements of fact that are not in evidence. I ask that you cite him for misconduct.”

  Judge Grimes banged the gavel. “That will do. Not another word from either of you. Mr. Dirkson, your remarks were out of order. I ask you to remember yourself, particularly in the presence of the jury. Now, with regard to your objections to this particular test, they are overruled. The witness has testified, and that testimony is in the record. If you would like to take exception to that testimony, if you would like to try to impeach the witness, you may do so by cross-examination. But that is your only remedy at the present time.