by Parnell Hall
“You can’t talk to the judge. Not while the trial’s in progress. Didn’t you hear her instructions at the beginning of the trial? Weren’t you listening?”
“Yes, I was.”
“Then you know the answer. Can’t do it. You can’t talk to any of the parties in this case until after deliberation is over.”
“This can’t wait.”
“It will have to. Those are the rules.”
“Then how do the rules deal with this? A matter has come up which requires my attention. I am not listening to any more testimony in this case until I talk to the judge.”
“That’s not your decision to make.”
“Whose is it?”
“Hers.”
“Then I need to talk to her, don’t I?”
“You’re not allowed to talk to her.”
“This is a Catch-22 situation, isn’t it, Ralph?”
He said nothing, just glared at me.
“I mean I can’t do anything till I talk to the judge, you won’t let me talk to the judge, but the judge is the only one—”
“I’m familiar with Joseph Heller,” Ralph snapped.
“Fine,” I said. “Then you understand the situation. I want to talk to the judge. So what the hell can I do?”
“You cannot talk to the judge. If you must communicate with her—which I strongly advise against—then you do it writing, which is what you’ll be doing during deliberation. Any questions you have of the court, you put in writing, and I will deliver them. I’ll deliver one now if you really insist.”
“Fine,” I said.
I turned to the other jurors, who had been watching the scene intently. “Anybody got a paper and pencil?”
OTB Man had a legal pad on which he had been taking notes during the trial. He tore out a sheet of paper and slid it across the table along with a pen.
I wrote on it, “I need to talk to you outside the presence of the other jurors before any more testimony is heard.” I folded the paper in half and gave it to Ralph.
He immediately unfolded it and read it. “This won’t work,” he said.
“That’s the judge’s decision, not yours,” I told him.
He gave me a scowl and stomped out the door.
The minute the door was closed, all the other jurors were on me like flies on honey, wanting to know what was going on. I fended off all their questions saying I could only speak to the judge. Ron, who was apt to know, agreed with Ralph—there was no way she was going to talk to me.
Ralph was back five minutes later.
“All right, let’s go,” he snapped.
They got to their feet, began to line up.
“What about my note?” I said.
“Judge Davis will address you on the matter of your note.”
“My note said I wanted to speak to her alone.”
“I know what your note said.”
Ralph pulled the door open, led us out. He pushed the courtroom door open and ushered us in. We filed in and took our seats.
And there they all were, just as they’d been for the last week. The judge, the Silver Fox and Peter, Paul and Mary. All ready to proceed with this boring, eight-year-old civil case about which I couldn’t have cared less.
Judge Davis turned to the jury. “Before we proceed, a matter has come up which I must address. A member of the jury has expressed a desire to communicate with me. As I stated at the beginning of the trial, such communication is not possible at this time. During deliberation you will be able to communicate with me, but only by sending me written questions through the court officer, which I shall answer to you in court, in the presence of the attorneys for both sides. That is the only time, and the only way you may communicate with the court until after the deliberation is over and the verdict has been reached. Any communication at this time is wholly inappropriate and cannot be allowed.
“You understand, this is not an arbitrary decision on my part. It is one of the safeguards of the judicial system to ensure a fair trial. There is to be no communication of any kind which might in any way taint the jury and render them incapable of delivering an impartial verdict. I am sorry for anyone who did not know that.
“But you know it now. And should it occur, in light of my admonition, I should have to consider it contempt of court.”
Judge Davis glared at us for a moment, then turned to Peter/Paul, the attorney for Veliko Tool and Die. “Mr. Wessingham. Call your next witness.”
It was too much. She hadn’t listened. She was going ahead with the stupid trial. Peter/Paul was going to call a witness and introduce new evidence. And I couldn’t sit there and listen to it. Not in light of the murder case. But what the hell could I do?
As Peter/Paul stood up to call his witness, I suddenly gagged, clapped my hand to my mouth, stood up, hunched over, grabbed my stomach with my other hand and scuttled from the jury box and out the door.
The jury deliberation room was locked, of course. But Ralph was right behind me. I didn’t want to talk to him in the hall. So I stayed scrunched up, pointed to the door, and muttered, “Bathroom! Quick!”
Ralph unlocked the door and pushed it open. I scuttled inside, waited for him to follow. As soon as he did, I stood up, turned around and said, “I’m not sick. I just couldn’t listen to the testimony.”
Ralph’s eyes widened and his jaw dropped open. Then his face darkened murderously. “You are in contempt of court,” he said.
“That’s right, I am,” I said. I held out my hands. “Why don’t you handcuff me? That’s the only way you’re gonna get me back in that courtroom.
“But before you do, you better think about it. Judge Davis won’t talk to me because she doesn’t want to prejudice the jury. You take me back there in handcuffs, well, what do you think that’s gonna do to them? You wanna bet there’ll be a mistrial then?
“If that’s what you want, fine. The judge may be pissed at me, but think how thrilled she’s gonna be at you. You walk me through that door in handcuffs and the show is up. A week of testimony down the drain. A week of jury selection down the drain. And all on your head. If that’s what you want, fine. It works for me either way. If I’m in contempt of court, then I’m gonna get my day in court. When I do, I’m gonna have my say. But I’m gonna have it one way or another, and at the moment I just don’t give a damn.
“So it’s your move. What’s it gonna be?”
He didn’t blow up as I’d expected. Underneath the stereotypical sour employee who hated his job, there lurked a human being, with all the requisite drives and feelings, curiosity chief among them.
“Why are you doing this?” he said.
“That’s between me and the judge,” I said. “If you want this trial to continue, I suggest you take her another note.”
“That would be contempt of court.”
“I’m already in contempt of court. The only issue now is whether this trial proceeds.”
He thought that over. “What’s the note?”
I tore a piece of paper off OTB Man’s legal pad and wrote, “I can no longer sit on this jury. I ask to be excused from service.”
Ralph took the note, read it. “You can’t be excused from service,” he said. “There’s no alternate.”
“I know that.”
“Then what’s the point?”
“As I said, that’s up to Judge Davis. Just take her the note.”
He hesitated, looked at me.
“Hey, you wanna handcuff me to a chair? I ain’t running away from a contempt charge. I want to talk to her.”
He frowned and went out, closing the door. He was back five minutes later, ushering in the jury. They came in looking at me as if I were from another planet. I couldn’t blame them. I could imagine the whispered conversations they must have observed between Judge Davis and Ralph.
When they were seated, Ralph said, “Mr. Hastings?”
“Yes?”
“This way.”
He opened the door for me and I walked ou
t in the corridor. He pushed the door to the courtroom open. Aside from the jury, they were all still there. Judge Davis, the Silver Fox and Peter, Paul and Mary. I walked into the jury box, sat alone in my appointed seat. They were all looking at me. The looks were not friendly.
Judge Davis took a breath. She seemed to be controlling herself with a great effort. “Mr. Hastings,” she said.
“Yes, Your Honor.” That was a victory in itself, being able to speak out loud.
“I specifically instructed you regarding communications with the court. You disregarded those instructions. You are therefore in contempt of court. Do you understand that?”
“Yes, Your Honor.”
“I am disregarding procedure in speaking to you now. I want you to know that the only reason I am doing that, is because there is no alternate in this case. If there were an alternate, you would not have this chance. You would be in custody, the trial would be proceeding, and the alternate would be sitting in your place. Is that clear?”
“Yes, Your Honor.”
“It happens that, unfortunately, no alternate is available. And we are well over a week into the trial. If you cannot serve, I will have to declare a mistrial. Which I am extremely reluctant to do. Which is why you are being afforded this chance. A chance you would ordinarily not be afforded the opportunity to take. You may consider yourself a very lucky man.”
I said nothing, waited.
Judge Davis held up my note. “You sent me a note saying you cannot sit on the case, and asking to be excused from the jury. You must be aware of why I cannot grant such a request. For all the reasons I just gave you. To do so would mean declaring a mistrial, since there is no alternate to take your place. That is why, if there is any way possible, I would like to get by this unfortunate incident and proceed with the trial.”
“Yes, Your Honor.”
“I point out that in so doing, you would be able to clear yourself of contempt of court. But that, of course, should not be your primary motivation.”
“Yes, Your Honor.”
Judge Davis took a breath. “Therefore, I ask you now. Are you able to proceed as a juror in this case?”
“No, Your Honor.”
“You are not?
“No, Your Honor.”
“And why is that?”
I took a breath. “Because I find I am prejudiced against one of the parties in this case.”
Judge Davis frowned. “You are biased against one of the parties to this action?”
“Yes, Your Honor.”
“May I remind you that you were informed about all aspects of this case during jury selection, and questioned as to any possible bias or interest in any of the parties involved. Do you recall that?”
“Yes, Your Honor.”
“Since you were selected for the jury, you must have stated that you had none. Do you recall that?”
“Yes, Your Honor.”
“Was that statement true?”
“Yes, it was, Your Honor.”
“Then how do you explain your present position?”
“I became biased against one of parties during the course of the trial.”
“That’s absurd,” Judge Davis said. “There’s nothing that’s gone on that—” She stopped. Frowned. “I’m sorry,” she said. “It’s not my place to comment on the evidence. I’m afraid you have me so upset that I was about to.” She took a breath. “Mr. Hastings. You say you are biased against one of the parties to this action?”
“Yes, Your Honor.”
“Are you biased against Mr. Dumar, of Dumar Electronics?”
“No, Your Honor.”
Judge Davis frowned. “But he is the only party to have given testimony so far. Well then, are you biased against Veliko Tool and Die, Delvecchio Realty, or the City of New York?”
“No, Your Honor.”
Judge Davis stared at me. “You are not biased against the plaintiff, or any of the three defendants?”
“No, Your Honor.”
“Mr. Hastings, against whom are you biased?”
I took a breath. “I am biased against the attorney for the plaintiff, Mr. Pendergas.”
Judge Davis stared at me incredulously. “You are biased against one of the attorneys in this action?”
“That’s right, Your Honor.”
Judge Davis couldn’t believe it. I could see emotions struggling over her face. It was almost comical.
She composed herself, took a breath. I could tell she was ready to explode.
“Mr. Hastings,” she said. I swear she said it through clenched teeth. “Please try to understand. A trial is a very serious matter. It is not to be taken lightly. Bias is also a very serious thing, and not to be taken lightly. A biased juror cannot sit in court.
“But there are various degrees of bias. I point out that different lawyers have different styles. Some are pleasing, some are not. You cannot like everyone you meet, and you cannot necessarily like their style. That does not mean you are biased against them. It is a matter of personal preference. If an attorney has done something to irritate you, if you do not like his manner of presentation, that is something you must put out of your mind. You must consider only the facts of the case as they are being brought out in court. If you do not make an effort to do so, then you are not fulfilling your duty as juror.
“So, I am asking you—no, I might say I am begging you—if you have somehow developed a bias in this case against Mr. Pendergas, that you ignore it, do not let it influence you, and that you consider the evidence that you hear in this courtroom solely on its own merits.”
“I’m sorry, Your Honor. I can’t do that.”
Judge Davis looked like a woman drowning. How could she reason with an irrational man?
She controlled herself, made one last effort. “I see,” she said. “Then tell me, Mr. Hastings. Why are you prejudiced against Mr. Pendergas?”
“Because he killed my fellow juror, Sherry Fontaine.”
41.
THERE WAS A STUNNED SILENCE in the courtroom.
Judge Davis blinked, once, twice, then closed her mouth, which had somehow involuntarily opened. She wet her lips, blinked again. She stared at me incredulously.
Then turned to look at Pendergas.
The Silver Fox was taking it much better than she was. My words had to be as big a shock to him as they were to her, only more so. But you’d never know it. He looked calm, unruffled. He turned toward Peter, Paul and Mary, and I could see his shoulders go up, obviously as he shrugged at them to indicate his utter bafflement. He turned back to Judge Davis with a bemused expression on his face. I swear his eyes were almost twinkling.
Judge Davis looked at him, then at me. She took a breath, seemed to get control of herself. “Mr.. . .” she began, then broke off helplessly.
“Hastings,” I said.
She rubbed her forehead, took another breath. “Yes. Mr. Hastings. Are you aware of what you just said?”
“Yes, Your Honor.”
“And the implications?”
“Yes, Your Honor.”
“I’m not sure that you are. I’d like to explain them to you. You have just accused a reputable attorney at law of the crime of murder. You have done so publicly, in open court, in the presence of witnesses. On top of your other troubles, this lays you wide open for a suit for slander. And since the person you have slandered is a lawyer, there is little doubt that suit will be brought.
“Now, you are only a layman, and perhaps you do not understand the law. But do you realize that what you just said is slanderous?”
“I do not, Your Honor.”
“You do not? But I just explained it to you.”
“Begging Your Honor’s pardon, but you pointed out that my remark could be considered slanderous. You didn’t explain the laws of slander.”
Judge Davis stared at me. “Are you asking for a legal definition?”
“No, Your Honor. That won’t be necessary. I’ve already consulted Richard Rosenberg, of Rosen
berg and Stone. In his humble opinion, what I’ve just said is not slanderous, for two reasons. One, to be considered slanderous, a statement must be made irresponsibly and voluntarily. Your Honor charged me with contempt of court, and called me to account for myself. You asked me specifically why I was biased against Mr. Pendergas. The statement that I made was in response to a direct question by you. I had no choice but to make it, since it was a directive by the court. In fact, had I not made that statement, I would be in contempt of court.”
I paused and looked at Judge Davis, in case she wished to comment. She didn’t. She merely blinked. I don’t think she could have looked more surprised if I’d suddenly sprouted wings and started flying around the courtroom.
I went on. “The second reason I’m not guilty of slander is, for a statement to be slanderous, it must also be made with flagrant disregard for the truth. Truth is always a defense for slander. The statement I made is true, and can be proven true, so there can be no slander involved.”
Judge Davis stared down at me. “You’ve consulted a lawyer, Mr. Hastings?”
“Absolutely. I have no wish to go to jail, or to be sued for slander. I suddenly found myself in an impossible position, being on this jury and knowing Mr. Pendergas was guilty of murder.”
Judge Davis looked as if her world were collapsing around her. This, in a simple civil suit. A simple case of property damage. Suddenly, here she was, dealing with a mistrial, contempt charges, a slander suit, and an accusation of murder.
“Mr. Hastings,” she said. “You are making statements that have no foundation. How could you know any of this? I don’t understand.”
“That’s because this is a civil case, Your Honor, and in a civil case the judge isn’t present for jury selection. If you had been, you would know that I’m a private detective. And during the course of the trial, I developed a friendship with Sherry Fontaine. When she was killed, I naturally began investigating to see what had happened.”
The “naturally” was pretty ballsy on my part, seeing as how it had taken my wife and MacAullif to push me into doing it.
But Judge Davis didn’t know that. “You did?” she said.
“That’s right,” I said. “And I uncovered the information which leads me to my present position. I found a witness who identifies a picture of Sherry Fontaine as the young woman she observed last Wednesday during the noon recess, talking to a gentleman she did not know but whom she describes most vividly. You will note that Mr. Pendergas’ appearance is rather striking. I have no doubt that this witness will have no problem picking him out of a lineup.