Jennifer Tann did not pick up the cues from the judge. But Smythe-Baldwin, after thirty thousand hours in courtrooms, knew instinctively his adjournment had been lost. His style, however, did not give countenance to surrender, and his reply to Cobb was an angry mocking attack upon the crown for its high-handed eleventh-hour deals of desperation in its insatiable hunger for conviction of his client at all costs. Smythe-Baldwin would lose this argument, but hoped to exact a price — the judge, needing to appear fair, might lean toward the defence upon a subsequent issue.
An hour had been consumed in the arguments. Horowitz thanked both counsel and said: “I am satisfied that the interest of justice requires that the trial now proceed. The accused is represented by counsel of consummate ability and will suffer no prejudice to his right to fair answer and defence. Gentlemen, let us arraign the accused.”
The clerk rose and asked Au to stand. Au stood up slowly, facing the judge, and Cobb saw that his face was still impassive. Although . . . there had been a look. Au’s eyes had seemed for a flick of a second to meet Cobb’s, and it seemed to Cobb that there had been a message, and not a kindly one.
The clerk, his voice rich with ceremony, read the charge: “Au P’ang Wei, you stand charged that in the City of Vancouver, County of Vancouver, Province of British Columbia, you did on the third day of December commit murder in the first degree of Jimmy Wai Fat Leung, contrary to the form of statute in such case made and provided and against the peace of Our Lady the Queen. How do you plead, guilty, or not guilty?”
Au’s voice was cool and firm. “I am not guilty,” he said.
Jennifer Tann turned to look at him, studying him with wonder at his composure and his elegance. She searched for some exposed mental warp, some damage of character, and saw only a chilling serenity. Whatever illness was in the man, she thought, was an illness well hidden beneath layers of ice. She knew somehow that some part of this man’s soul had been gutted by fire, some fire of unknown origin.
And Au in turn had considered the young woman in front of him. Her eyes had searched him, and he knew that her look had tried to penetrate him. Many had tried to understand him, and failed. What beggar can fathom the soul of a kahn? The woman had eyes that spoke intelligently, but she too was blind, and all who tried to see into him were blind. Except one, perhaps. The prosecutor, Cobb. There was something about Cobb . . . But Au knew this: The prosecutor, Cobb, would fail because he was weak, and would become the victim of his own anger — being unable, in the manner of the Ch’ao-chou, to master such feelings.
The empanelling of the jury — a speedy process because prospective jurors are not asked questions — took half an hour. Smythe-Baldwin used all his allotted twelve peremptory challenges, attempting to avoid Asian-Canadians and women. After he had exhausted his challenges, three women next in line were consented to by Cobb, and the jury was completed.
It was an average mix. Smythe-Baldwin was content. No one swore the oath of a juror who had not returned his smile. The lawyer knew this jury would acquit if he could shake the evidence of the crown witnesses and if Cudlipp — a long-serving officer of the law — was strong on the stand. It would be difficult for twelve men and women to disbelieve unanimously a veteran policeman. But Cudlipp would be exposed to the whip of Cobb’s cross-examination, and Cobb could injure. He hoped the man would prove honest — or a convincing liar.
The judge told the jury they would be sequestered. “I tell you that reluctantly, because it means that for the duration of the trial you will have no contact with your families, nor be exposed to media reports about the trial. You will be comfortably housed, I hope, in a good hotel. The decision to insulate you is made for your protection as well as the protection of the accused. It should never be suggested that your verdict was influenced by matters not before you as evidence.”
While the jury recessed to make their arrangements, Cobb reviewed his notes for his opening address. It would be a summary of the evidence he hoped to call — evidence that would be heard by the jury during the first four days of trial. His witnesses would be taken by Cobb through their evidence, then be cross-examined by Smythe-Baldwin, who, in his turn, would call his witnesses in examination-in-chief, and cross-examination by Cobb. The defence knew generally what the crown witnesses would say; Cobb knew little about the defence. Smythe-Baldwin had disclosed to him only that the defence was an alibi — that during the time of the crime the accused was engaged in innocent pursuits, apparently in company with Corporal Cudlipp. More information than that, Smythe-Baldwin refused to give — despite Cobb’s insistence that the crown was entitled to fair particulars of an alibi. “Talk to Cudlipp,” Smythe-Baldwin had told him. “You have my blessing to do so.” Cobb had tried, but Cudlipp had vanished. So Cobb resigned himself to the prosecutor’s handicap: ignorance of the defence, and inability to prepare for it.
The jury, having selected a foreman, returned, and Cobb waited for the judge’s nod, then approached them, leaving his notes on the table. He spoke slowly, carefully, reciting the details of the crime, touching briefly upon the evidence to be called from each of the witnesses.
“The detectives will tell you of the discovery of the body of the deceased,” he said. “I warn you that the scene which assailed their eyes was sufficient to shock the most veteran of policemen, even policemen inured to the bloodiest and most awful scenes of violent attack by man upon man. I deeply regret that we cannot spare you from this, but to prepare you, I shall tell you now that the body of the dead man — known in life as Jim Fat — was naked, hanging from a hook. The throat had been slashed, his tongue and testicles removed.”
Cobb saw eyes widen, and two or three faces appeared to blanch. One juror looked down and fumbled in her purse, and another closed his eyes.
When Cobb described the role of Laszlo Plizit, a juror in the back row frowned and shook his head. Perhaps, Cobb thought, this juror would find a man like Plizit too untrustworthy to be believed, would find that Plizit had made up his evidence to frame Au and buy a cheaper sentence for himself. Cobb realized he would have to defuse the attack that Smythe-Baldwin would surely launch against Plizit’s character and veracity:
“Now, we shall not be offering this man to you as an exemplar, as a model for your children to follow. He is a man who has followed a criminal path, and he will say so. He is a man who has taken a life very recently. He is a man who was spurred to offer his assistance to the crown by the most basic of motives — self-interest. For it was agreed by representatives of Her Majesty, for whom I speak here, to allow him to plead guilty to a lesser offence than murder — it is manslaughter, a most serious offence still, I should caution you — in return for the favor of his evidence against the accused Au. I shall have cause to discuss with you later the unfortunate realities which make such distasteful contracts necessary in our imperfect world —”
Smythe-Baldwin interjected: “My lord, might counsel avoid gilding his wilted lily during the course of his opening, and be importuned to stick to the allegations of fact — if it is not too unbearable a strain on him.”
“Yes, Mr. Cobb,” Horowitz said, smiling, “you will have your chance after all the evidence is in.”
Cobb held out his hands to the jury in a gesture of helplessness. “You will observe, ladies and gentlemen, that my learned friend Mr. Smythe-Baldwin dives like a hawk when he sights his helpless prey wandering unprotected in open fields.” There was laughter from the gallery and from the jury box, and the tension created by the recounting of Jim Fat’s bloody decease had now dissolved.
Nearing the hour of the twelve-thirty mid-day break — court would resume at two — Cobb quickly dealt with the technical evidence, then paused. He scanned the jury’s faces, seeking eye contact, hoping he was reaching them, relating to them.
“Okay,” he said, “that is all I have to say about the evidence you will hear from the crown. Please remember that what I have expressed to you is
merely what I anticipate the witnesses will say. We may all be surprised — they may say nothing of the kind. If so, you will forget my words here, because what I say to you now is not evidence and may not be considered as such.”
He was close to them, leaning against the counsel table, his arms folded. “You are strangers here, and it is proper that you are. You are drawn from all walks of life, and you serve here as the source and the fountain and the heart of our democratic system of justice. You come in here in innocence, with minds open, and you will be expected to give this accused man, Au P’ang Wei” — he swept his arm in the direction of Dr. Au — “a fair and impartial trial. He has a right to that. You should judge the man only after you have heard all the evidence, and you should not feel any enmity because you may think his manner of life, or his activities, or his associations are not those you would prefer to share. I hope you will be equally without bias when you consider the witnesses offered to you by the crown. All I can do is ask you to give them fair hearing. You will observe that I cannot attack my own witnesses — unless they prove adverse to the crown — nor can I help them by asking leading questions which suggest the answers I expect from them. I leave that to my friend Mr. Smythe-Baldwin, who can within certain bounds of fairness attack them or lead them or challenge their credibility. That part of his task is called cross-examination. If ultimately the defence calls witnesses, I shall have the opportunity to perform in like manner. You will come to understand that cross-examination is a tool whereby the truthfulness and reliability of a witness are tested. A decision as to whether a witness’s words are to be trusted is solely for you to make, for you are the judges of truth in this court. And I pray that you will perform your duty as judges of truth — in accordance with the solemn oaths that you swore in entering upon the task that is before you.”
He felt good about that. Many in the jury were nodding. And as he returned to the counsel table to take his seat, he saw Jennifer Tann looking at him with a shine in her eyes.
It dawned on him then that he had impressed her; perhaps, he thought, he had been trying to do so all along.
“Court will adjourn until two p.m.,” the judge announced.
Monday, the Thirteenth Day of March,
at Half-past Noon
From the delicatessen: pastrami on rye. Milk. An apple. Cobb’s digestive juices squirting into his stomach while the pathologist, in the interview room, recounts in a bloodless recitation the story of the autopsy. After about fifteen minutes of this, the milk is turning sour in Cobb’s stomach. After Dr. Coombs, an interview with the police photographer, a man who takes pride. The pictures: stark, graphic, bloody. Finally, a hurried five-minute conference with Smythe-Baldwin, who beseeches Cobb to pull a couple of particularly candid photographs of the body. Constable Dickson balks at this, his artistic integrity insulted, but Cobb recalls the jurors whose faces whitened. So with Smythe-Baldwin complaining about underhanded efforts to inflame the passions of the jury, with the images of Dr. Coombs’s autopsy still intruding (“the body is opened in the usual manner . . .”), with the pastrami and the milk rebelling with him, Cobb agrees that the jury need not witness the full aftermath of death. The pathologist and the photographer would be the first two witnesses, and would occupy the afternoon.
“. . . extended from the left corner of the jaw, across the mid-line, over the thyroid cartilage of the neck, actually severing the larynx and running to the right side of the neck, three centimetres below the lobe of the ear.” From the witness box, Dr. Coombs dryly and tonelessly finished his macabre portrait. “He died within seconds of receiving that injury.”
“You are of course familiar with the surgical instruments commonly used in an operating room?” Cobb asked.
“Yes.”
“The knife used in most operations is called what?”
“A scalpel.”
“Can you say the injuries you observed on the cadaver could have been caused by an instrument such as a scalpel?”
“Very definitely,” said Dr. Coombs. “The trauma is consistent with the use of a scalpel or any clean instrument with a keen edge. The cuts were very clean, no ragged edges.”
Cobb hoped that Plizit, when he took the stand, would remember a scalpel was used. The last area of Dr. Coombs’s evidence was time of death.
“I understand a series of anal temperatures was taken as the body cooled, to determine the time of death. Do you have them noted down?”
Smythe-Baldwin was on his feet, being magnanimous: “We really need not require the jury to suffer through all this detail, Mr. Cobb. The jury have more valuable things to do than sit about and laboriously work out anal temperatures The time of death was between eight-fifteen and eight-forty-five p.m. on December third last. I’ll admit it, and we’ll save the jury from all the medical bafflegab.”
Cobb suspected Smythe-Baldwin would ultimately exact a price for this small gift. The old man was an expert at the we-have-nothing-to-hide strategy.
“Your witness,” said Cobb.
Smythe-Baldwin had one question: “Any sharp instrument could have caused the injuries? Never mind a scalpel. Any sharp instrument?”
“Yes, any —”
Smythe-Baldwin cut him off. “Thank you. That is all.”
Then the police photographer and an hour and a half of photographs. The last group was taken from Dugald McTaggart’s window and showed the front window of H-K Meats across the street.
“The face in the window — who is that?” Cobb asked.
Smythe-Baldwin, perched over the witness’s shoulder, smiled broadly. “I’d recognize that face anywhere. Well-known male model.”
“It’s Detective Harrison,” the witness said. “He was instructing me what photographs he wanted taken. You can see his features can be made out clearly.”
Smythe-Baldwin reached for the pictures before beginning his cross-examination.
“Let me see the last two photographs,” he said, “the ones that show the sour and unsmiling face of Mr. Harrison. Yes, those two. Were they taken in full daylight, sir?”
“Yes,” said the witness.
“How is that to help us? It’s misleading, constable. During the night, that street is dark. There are no street lights, are there?”
“There would be lights reflected from the windows of the buildings.”
“Oh, come now, officer. It’s dark at night in that narrow little street. Let’s be fair.”
“Well, yes.”
“And on last December third, the day was short. It was pitch-black. It was cloudy. You want to be fair to the jury, don’t you, constable?”
“Of course.”
“I suggest to you that in the dark of night an observer could not make out the features of a face looking through the opposite window. Looking from Suite C to the window of H-K Meats, you cannot make someone’s face out. The light, if any, comes from behind. You see only a silhouette framed by light.”
“Are you asking me a question, sir?” said the constable.
“Making a speech,” Cobb muttered.
“I’m suggesting that had you taken those pictures at night, as properly you should have, you wouldn’t be able to tell whether it was Detective Harrison or Inspector Clouseau. Do you agree, disagree, don’t know, or simply fail to comprehend what I in my poor, clumsy fashion am trying to get at?”
“I don’t know how to answer. I haven’t tried to make out a face there at night.”
“Let’s not try to put anything over on the jury, then, officer. They’re intelligent people and they can see through this. The fact is that at night a person looking from the window of Suite C could not make out the features of a person looking out the front window of H-K Meats.”
“I don’t know how well.”
“You mean you don’t know, period.” Smythe-Baldwin’s voice had become impatient.
“Well, I
guess I don’t.”
“And if the viewer’s eyesight were poor, as is sometimes the case with older persons, and always the case among those with eye defects, the task would be more difficult yet?”
“I suppose I would have to agree.”
“Don’t suppose, please. Do you agree?”
“Yes, I supp — yes.”
“Thank you. That is all.” Smythe-Baldwin sat down with a flourish, and with a grin hidden from the jury.
Court was adjourned for the day.
It was a fantasy, Jennifer Tann thought. An old English movie. She couldn’t remember having bought the ticket, but she had a front seat. The pomp and ceremony: medieval. The old sheriff and his “Oyer! Oyer!” The lawyers swirling around the court like graceless ballet dancers in their black robes. (Hang on — she was one of them! What was she doing there?) And now, what was she doing here? In a bar with this obscure, brooding Foster Cobb and this old raunchy-sounding cop with his rumpled old hat, and he’s carrying on about these three wired guys sitting in the front row of the courtroom. . .
“These three guys are heavies, Fos. Well, kind of skinny for heavies, if you know what I mean, but heavies, you know. Hypes. Junkies. They’re not hanging around here for the laughs. The book on them is they deal Dr. Au’s dope. The young guys: Snider, the guy whose nose is always running — hate to look at the mess on his fucking sleeve, he don’t have a hanky — and Klegg, the short guy. Tinpot gangsters. Records. The guy in the middle, though, Leclerc, watch him. Smart. A little daisy, you know, fruity. Au’s back-end for a while, his mixer. Jean-Louis Leclerc. Ran with the Cotroni brothers, Little Joe Valentine in Montreal. Dubois gang. He’s on parole for hitting a bank. Six, seven grand. Popped him in a gay bar a few years ago, and of course he’s out already. Conned the system.”
“So what are they doing here?” Cobb asked.
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