by Sol Stein
Ferlinger looked at his fingernails as if deciding whether to file them. “I think Thomassy’s going to let the kid take the stand.”
“He wouldn’t dare.”
“I’ll bet they’re rehearsing it right now.”
“The son of a bitch wouldn’t dare.”
“I’ll tell you why he would,” said Ferlinger, rising. “You’re always yapping about the crucial determinant in a case. Well, the crucial determinant in this case is that Thomassy is smarter than you are.”
*
The custodian seemed too old a man to hold down a full-time job. He walked to the stand in an irregular shuffle, and when Cantor nodded for him to sit down, he held his hands down on the chair and lowered himself onto it slowly and seemingly with pain. His face was deeply lined, and his hair, which was brown and gray, was in a strange crew cut, shaved to a stubble around the sides, the two inches on top pointing straight up.
“Please state your name,” said Cantor, all gentleness.
“Felix Gomez.”
The stenographer asked him to spell the name. The janitor shook his head. He couldn’t spell it.
“Just put it down phonetically right now,” said Judge Brumbacher. “We’ll get the spelling from his employment records later.”
“Sir,” said Cantor to the old man, “are you the janitor at Ossining High School?”
“Custodian,” said the old man with dignity.
“How long have you been custodian?”
The old man shrugged his shoulders. “Five years, ten years, something like that.”
Cantor looked at the judge. Brumbacher indicated he should let it pass.
“What happened on the night of the dance, after the dance?”
“Lots of clean-up in the morning.”
“No, what happened that night?”
“Like we talk about in your office?”
Cantor’s blush was visible. “Yes.”
“I hear shout, yell, noise. I get flashlight, I go to front door, snowing cold outside, I see trouble, I call police.”
“Can you identify any of the people you saw that night out there?”
“You mean, the people out front?”
“Yes.”
“Sure. I see Mr. Japhet, schoolteacher, and him.” He pointed to Urek at the defense table. “He did it.”
“He did what?”
“He choke the kid, why else police get him, why else he here?”
Thomassy stood to object.
Judge Brumbacher leaned over toward the witness. “Mr. Gomez, did you see anyone besides Mr. Japhet out there in front of the school that night?”
“Girl.”
“Can you identify the girl?” asked the judge.
“Just girl.”
Cantor, anxious to keep the line of questioning in his own hands, asked, “Did you see the defendant, Urek, in front of the school?”
“He break windows.”
“When?”
“Lots of times.”
“Did he break windows that night?”
“I think no.”
“Did you see Urek in front of the school when you came out with your flashlight?”
“Lots of snow, bad snow.”
Cantor’s voice rose. “Did you see Urek?”
The janitor paused, his hands crossed in front of his chest. “I think,” he said finally.
“You think what, sir?”
The janitor smiled at being called “sir” again. “I think I see.” He pointed to Urek.
“Thank you,” said Cantor.
The old man got up to leave, but Cantor motioned him back down.
“Your witness,” said Cantor.
Thomassy looked, for a moment, as if he might waive cross-examination. Then he approached the stand. He came very close to the janitor.
“Who are you?” asked Gomez. Everyone in the courtroom laughed. Even the judge had a hard time stifling a guffaw.
Thomassy smiled. “I’m the defense counsel, Mr. Gomez.. I have a few questions to ask you.”
“I already answer.”
“These are different questions.”
“I guess okay.” He began to like being the center of so much attention.
“Do you drink whiskey on the job?”
“What do you mean, I never drink whiskey.”
“Please answer the question yes or no.”
“I answer truth, like I swore.”
“What, in truth, do you drink, besides water?”
Gomez smiled weakly. “Thunderbird.”
“For the edification of the jury,” said Thomassy, returning to his table and withdrawing a bottle from the suitcase underneath, “is this what you drink?” He brought the bottle over to within twelve inches of the witness’s face. Gomez instinctively reached for the bottle, which Thomassy withdrew, to the sound of laughter.
Brumbacher rapped his gavel.
“Did you have any of this to drink on the day of the prom?”
“I guess.”
“Don’t you know?”
“I guess because I have some every day.” Gomez looked embarrassed, wondering whether he had made a mistake.
Quickly Thomassy asked, “Do you have a gallon every day?”
Gomez was furious. “No, never, maybe one, two bottles most.”
“Only one bottle in the morning?”
“Half.”
“And?”
Cantor interrupted angrily. “Will the judge remind defense counsel that ‘and’ is not a question?”
“Thank you,” said Thomassy to Cantor. “Mr. Gomez, do you have the other half with lunch?”
“Sure.”
“Mr. Gomez, do you have another bottle in the afternoon, every afternoon?”
“Students never see me. In the basement. By myself! I swear!”
“Do you have another half with dinner?”
Cantor had not sat down. “Would defense counsel like me to produce an adding machine?”
“Now, your Honor, that wasn’t called for,” said Thomassy. “I am merely trying to establish the obvious, that the witness is a chronic alcoholic whose consumption of wine is prodigious and who probably consumed nearly a gallon by the time the events of the evening transpired.”
“Lies!” yelled Gomez, standing. “You try lose me my job! Lies!”
“I have no further questions,” said Thomassy, leaving Gomez grasping the railing, his eyes like weak searchlights peering into every part of the room to find a friendly face.
Judge Brumbacher asked the sheriff’s deputy to help the witness from the room.
Cantor asked for a meeting at the bench. In hushed tones, glaring at Thomassy, he told the judge, “Your Honor, I am appalled by Mr. Thomassy’s treatment of the last witness.”
“You are a young man,” said Brumbacher. “I am usually appalled by the processes of justice.”
“But, your Honor, it isn’t necessary—”
Brumbacher was stern. “This is an adversary system. Counselor, we’re waiting for you to call your next witness.”
Cantor, his head turned, addressed himself to the stenographer only. “The prosecution rests,” he said.
Thomassy immediately came in with, “Your Honor, I move to dismiss on the grounds that the People have failed to—”
The judge cut him off. He dismissed the jury. It seemed to take a long time to get them out of the courtroom. Then as Thomassy started to repeat his motion to dismiss, Judge Brumbacher cut in. “Yes, yes, your motion is noted, and decision is reversed. However, Mr. Thomassy, I will dismiss, and withdraw from the consideration of the jury, the count related to the incident at Phelps Memorial, because”—he lowered his voice so that only the two lawyers could hear him—the People haven’t proved Urek was in that room at the hospital. Thomassy, you know he was there, I know he was there, he knows he was there, but the jury doesn’t know, and Cantor can’t prove it to them.”
The judge impatiently ordered the jury brought back in. As they were taking thei
r seats, he said to Thomassy, “Let’s finish soon if we can. Will you call your first witness.”
“Your Honor,” said Thomassy, his voice now raised so that the jury could hear him, “I will call the defendant, Stanley Urek, to testify in his own behalf.”
*
That night, at dinner, Judge Brumbacher said to his wife, “Irene, I’ve been thinking of New Mexico.”
“What happened today?”
“I don’t see why I shouldn’t think of retiring.”
“What will you do?”
“I don’t know.” The judge sighed. “I guess that’s the point.”
*
Ed got Lila on the phone at last. “Urek’s going to testify tomorrow,” he said.
“I heard. It’s all over town.”
“Are you going?”
“I can’t cut school.”
“Lila?”
“Yes?”
“You know, I didn’t testify.”
“I heard that, too. I admired that.”
“My father was absolutely great in court.”
“I heard.”
“I hope we see each other again soon.”
“Thanks for calling, Ed. Good luck.”
He wondered for a long time afterward whether she meant anything special by that.
The following morning, when the three Japhets came into court together, they sat down in the last row. Then Ed noticed Mr. and Mrs. Urek just two places down. He nudged his father. They moved as unobtrusively as possible to the other side of the courtroom and slid into seats against the far wall.
Ed watched as if it were a play. The court attendant, a woman in a blue uniform, sonorously intoned, “Hear ye, hear ye, hear ye, this County Court Party Two of the County of Westchester is now in session, Honorable Wilton Brumbacher, County Judge, presiding. All persons having business with this Honorable Court come forward and give attention and they shall be heard. Please stand.”
The black-robed judge entered, and at once the two lawyers were conferring with him at the bench. Then Ed saw Urek, his hair slicked down, wearing a suit and tie, take the witness stand and raise his right hand, his left atop a Bible, and say, “I do.”
Thomassy looked like a man who had had a great night’s sleep. He bristled with controlled energy and smiled at everyone, including Cantor and Ferlinger. He put out his left hand, then his right, then brought them together as he turned to Urek with the first question.
“Have you been a student at Ossining High School for the last two years?”
“Yes, sir.”
“Have you ever failed in any course?”
“No, sir.”
“Have you ever owned or driven a motorcycle?”
“No, sir.”
“Have you ever smoked marijuana?”
It was Judge Brumbacher who stopped the proceeding. “Mr. Thomassy, a witness testifying under oath is not immune to charges arising out of his testimony. An affirmative answer to the question you have just asked might be incriminating. Does the witness understand that?”
“I don’t want to speak for the witness, your Honor.” He turned to Urek. “Do you know that using marijuana is illegal?”
“Yes, sir.”
“Have you ever used it?”
“No, sir.”
“Have you ever used, bought, or sold LSD, heroin, amphetamines, or barbiturates?”
“No, sir.”
“How did you get the scar on your face?”
“I fell off my bike.”
Cantor raised himself to his full height, objecting. “Your Honor, the jury is here to evaluate facts, and I just don’t see where the present line of questioning is helpful in determining the guilt of the defendant.”
“Your Honor,” said Thomassy, “I think the district attorney meant to say the guilt or innocence of the defendant. The point, of course, is that the questions directly relevant to the charges have to be seen by the jury in context, and in this case the context is the character and background of the accused. It is common to suppose that a scar on the face or body of a black man or someone belonging to some other ethnic group might be the result of a knife fight or some similar form of violence.” Thomassy read the face of the Negro woman in the jury box. He had made his point successfully. “I am, your Honor, clarifying the origin of a prominent scar on the defendant’s face in order to eliminate the unfortunate but common substitution of prejudice for objective judgment. May I continue?”
Brumbacher nodded. Cantor remained on his feet.
“Did you have something to add, Mr. Cantor, or will you wait your turn?”
Cantor sat down.
“Did you buy a ticket to the prom?”
“Yes, sir.”
“Did you go with several friends?”
“Yes, sir.”
“Were the friends you went with all students at Ossining High School?”
“Yes, sir.”
“Did you dance?”
“No, sir.”
“Would you explain that?”
“I don’t dance.”
“Well, don’t be embarrassed, neither do I.”
There was a friendly chuckle among the spectators. Son of a bitch, thought Cantor, busily scratching notes.
“Did you watch the magic show that night?”
“Yes, sir.”
“Did you enjoy it?”
“Yes, sir.”
“Did you have a fight later that evening?”
Urek paused only a split second. “Yes, sir.”
“What caused that fight? Just take your time and explain it in your own words.”
“It was snowing, see?”
“Yes, go on.”
“After the prom, me and my friends were waiting for a lift in front of the building. It was very cold, see? There was only this one car left, so we refuged in it.”
“You what?”
“Oh. We took refuge in it so’s we wouldn’t freeze while we were waiting. We didn’t figure whatever adult owned the car would mind. We weren’t driving it anywhere, just sitting.”
“Did anyone object to your sitting in the car?”
“Yes, sir.”
“Who?”
“Mr. Japhet.”
“Did you ever have Mr. Japhet as a teacher?”
“Yes, sir.”
“Did Mr. Japhet seem to recognize you?”
“Yes, sir. He said to get out of the car.”
“Was there any other car you could have used for refuge while you were waiting?”
“No.”
“Why didn’t you go back into the building while you were waiting?”
“Well, we didn’t know which of our fathers was coming for sure, and we didn’t want to miss, see? If our ride came and didn’t see no one, it might have left, figuring we already got a ride, and we’d be stuck there.”
“Was Mr. Japhet alone when he ordered you out of his car?”
“No, there was his son, the one that did the magic show, and the girl he was smooching until Mr. Japhet came.”
“How did you react when you were ordered out of your shelter?”
“I was mad, but I was gonna help him with the suitcases anyway. They was carrying these two suitcases, see, and I figured if I helped them with the suitcases, maybe they would offer us a ride if our ride didn’t come by then.”
“Then what happened?”
“Mr. Japhet said to put the suitcases down.”
“And then?”
“The girl called me a Polack.”
“Have you ever been called that before?”
“No. Besides, I’m not Polish, I’m a Slovak.”
“What did you do?”
“I pulled her hair.”
“What else?”
“Maybe I twisted her arm some.”
“Are you sorry you did that?”
“Sure, but she didn’t say she was sorry she called me what she called me.”
“Then what happened?”
“Well, the Japhet kid g
rabbed me. I wasn’t going to let him grab me in front of my friends without doing something about it, so I hit him, and that’s how the fight started.”
Mr. Japhet put his hand on Ed’s arm. Ed had put his head down on his crossed arms on the back of the bench in front of him.
“Then what happened? Take your time.”
“Mr. Japhet jumped me.”
“Had you hit Mr. Japhet?”
“I never hit a teacher in my life.”
“What did Mr. Japhet do?”
“He beat me with his fists, and he pulled my hair.”
“Did you hit him back?”
“No, sir.”
“Did you intend to kill Ed Japhet?”
Urek didn’t answer.
Thomassy repeated the question. “Did you intend to kill Ed Japhet?”
“I never intended to kill nobody ever in my life, I swear!”
“Did you have a chain?”
“Yes, sir.”
“Where did you get the chain?”
“I found it outside the school.”
“What did you do with the chain?”
Urek looked down.
“It’s better to tell everything. What did you do with the chain?”
“I hit the windshield of the car—he wouldn’t let us stay out of the snow!”
“Did you break the windshield?”
“It broke. I didn’t think it would, but it did.”
“Are you sorry you broke the windshield?”
“It’s insured.”
“Are you sorry you broke the windshield?”
“Yes, sir.”
“If the insurance had a deductible, would you be willing to pay the deductible?”
“Yes, sir, I promise.”
“Did you go to the Ossining High School prom for the purpose of doing harm to Edward Japhet?”
“No, sir.”
“You swear to that?”
“I swear it’s the truth.”
“Your witness,” said Thomassy.
Cantor’s first question was, “Did you ever kill an animal?”
In a second Thomassy was on his feet and striding toward the bench, his face full of fury. “Your Honor, there was nothing in direct examination about harming animals. The subject of this trial is, did the defendant harm a human being, and I have already asked that question, but if Mr. Cantor is hard of hearing, he’s perfectly free to ask the question again.”
Judge Brumbacher, who had had some misgivings about letting young Japhet get away without testifying, now felt that his tolerance should bathe the other side. He said to Cantor, “I think you should confine your questioning to matters raised on direct examination.”