“But not enough,” Woodfin said, resting his forehead on the heel of his hand. I saw how tired he looked, and how careworn. There was a stubble of beard on his normally clean-shaven chin, and his clothing was more full of sweat and creases than a fastidious gentleman would permit in ordinary circumstances. No doubt he would change before the dinner hour, but just now he seemed too cast down to care about how he looked. Anyone would think that he had been the one on trial today, rather than merely a learned laborer doing the job for which he was hired.
“Come on, Woodfin, give over, won’t you? The lady is in God’s hands now,” said Mr. Wilson, who was considerably more sedate than his colleague. When this bracing speech brought no response, Wilson remarked to the rest of us, “In legal matters, our young friend has not yet learned to keep his heartstrings as tightly drawn as his purse strings.”
William Alexander, whose joviality was tempered only by his courtesy, raised his pewter tankard in a toast. “No, no,” he said heartily. “Don’t scold my colleague for his sensibility, Uncle Wilson. I like a man who believes in his causes. His loyal heart does him credit. To his health-if not that of his client!”
We all laughed politely at his jest. Even Woodfin managed a wan smile, but I could see that he was still troubled. “She may escape the gallows yet,” I told him. “The evidence is purely circumstantial.”
“So is the evidence that the sun will rise tomorrow,” Mr. Alexander drawled. “But I believe it all the same.”
Mr. Wilson laughed at this flippancy, and the two of them bent their heads together to talk of other matters, concerning family, I believe, for they were related by Mr. Alexander’s marriage to Wilson’s niece.
I turned my attention to the anxious young defense attorney. I thought it would be useless to try to cheer him up with a change of subject, so I resolved to be a sympathetic listener to his woes about the case. Besides, the conversation I’d had with Miss Mary Erwin that afternoon hovered in my thoughts. “Has your client told you anything about the death of her husband?” I asked Woodfin. “People feel that there is a great deal to the story that we do not yet know.”
Nicholas Woodfin groaned. “I wish she had told me something. I could have used it in her defense. But Frankie Silver keeps her own counsel. She is a brave little thing. I cannot look at her without thinking of the little Spartan boy with the fox in his tunic, gnawing out his innards. She will keep silent if it kills her. And it will.”
“Still, you represented her well. You cast what doubt you could. Do you wish that she could have taken the stand herself?”
Woodfin assumed the blank gaze of one who looks at events unfolding in his mind’s eye and sees nothing of the world around him. “I wish she could have testified,” he said at last. “I’m very much afraid that she would have chosen silence, but by God I wish I’d had the opportunity to let her speak.”
“It is a strange case,” I said. “She looks like an angel, but her neighbors tell such tales of the crime and her coldhearted lies about it that I hardly know what to think.”
“It’s what the jury thinks that matters, Mr. Gaither. And I’m very much afraid that I know that already.”
I slept so fitfully that night that Elizabeth declared that I was taking sick from overwork and the uncertainty of the spring weather. She bundled a woolen scarf around my throat when I went off to court that morning, which kept me warm against the March winds but did nothing for the chill at my backbone that told me death was even nearer than spring. The road was thick with crowds surging toward the courthouse to hear the verdict, but I spoke to no one. I bundled my coat tighter about me and trudged along in silence, wishing that I could spend the day in the cold sunshine instead of in a rank-smelling courtroom.
I took my place at the front of the court with only a few minutes to spare-quite later than my customary time of arrival, for I had lingered over an indifferent breakfast and loitered along the road to work like a wayward schoolboy reluctant to begin the day. The jury looked as if they, too, had passed a turbulent night. They shuffled into the jury box with rumpled clothes and that solemn expression of neutrality that jurors all contrive to maintain, perhaps in defense of their privacy, knowing that a hundred strangers are searching their faces, looking for the verdict.
The attorneys came into court together, solemnly, as if they were deacons in a church processional, and I was pleased that they did not laugh and chat among themselves, as lawyers are sometimes wont to do, distancing themselves from the harsh proceedings. Woodfin and Alexander took their appointed places with somber nods to Mr. Donnell and myself, and we waited for the prisoner to be brought in.
She appeared in the doorway, looking small and lost, and I felt a ridiculous urge to stand up, as one does when the bride enters the sanctuary. She wore the same faded blue dress as before, but now she had an old black shawl draped about her shoulders, for the wind was brisk today. The murmur of voices in the courtroom fell away to silence as she made her way to Mr. Woodfin’s side. He bent down and whispered a few words to her-encouragement, perhaps, but I saw no emotion in Mrs. Silver’s face. She held her head high and looked toward the front of the courtroom; perhaps she, too, was aware of the stares of the multitude.
“Gentlemen of the jury, may we have your verdict?” Mr. Donnell’s dour Scots countenance seemed perfectly in keeping with the tenor of the day, and I fancied that I saw the jury foreman blanch under the old justice’s withering stare.
“Ah, well, Your Honor…” The small man’s eyes darted left and right, seeking either support or a way out, but neither was forthcoming. He cleared his throat and began again. “That is to say… we don’t have one yet.”
Judge Donnell waited in a deafening silence during which nobody breathed.
The hapless juror licked his lips, but he resolved to tough it out. “We cannot agree on the matter. We’d like to question some of the witnesses again, sir.”
This statement elicited a burst of noise from the gallery, and an answering clatter from the gavel of John Donnell. “This is most irregular,” he told the jurors.
“Yes, sir,” said the foreman, but he was more confident now. The judge may be the piper of the court, but the jury calls the tune. “We’d like to hear some of the testimony again, sir.”
Mr. Donnell sighed wearily, perhaps at his own folly in having left the marble halls of Raleigh to come out to the uncouth hinterlands, where juries didn’t even know how to reach a proper verdict. No doubt the judge had wished to get an early start on his travels east, but it was not to be.
One of the other jurors handed the foreman a piece of paper. “We have a list, sir.”
The bailiff conveyed the paper to His Honor, who read it twice over with an expression of increasing annoyance. At last he motioned for William Alexander to come forward and take the list of persons to be reexamined. Judge Donnell looked out toward the gallery. “The witnesses are reminded that they are still sworn. They may now exit the court.”
Gabriel Presnell gathered up the little band of folk from the mountain wilderness and marched them out into the hall to await their turn on the witness stand.
Over the hum of murmurs from the gallery I heard the upraised voice of Nicholas Woodfin.“They have not been sequestered!” He stood up, waving a hand in protest. “Your Honor, the witnesses were not sequestered last evening.”
He was right. In trials, those who will testify in the proceedings are kept separate from their fellow witnesses so that they may not compare their stories, and thus, wittingly or not, influence one another’s account of the events in question. On Wednesday night before the trial began, the witnesses were indeed kept apart according to procedure, but last night no one bothered about them. We thought they were finished, that the trial was over. We thought the jury had only to deliberate for the evening and then return in the morning to deliver their verdict. Instead the twelve jurors had come back demanding another round of testimony from the witnesses, except that now this jury would be hearing p
eople who had been at liberty to compare notes, to exchange their impressions of the case-in short, witnesses whose recollections were now tainted by the opinions of their fellows. I wondered what Judge Donnell would do about this breach of custom. Suppose a witness’s new and altered version of the circumstances affected the verdict?
We waited in silent consternation while the old judge considered the matter. Nothing about this trial was going to be easy for any of us. An unlikely defendant, an unheard-of crime, an inexperienced attorney, and now obstacles strewn in the path of a swift resolution. Henceforth no doubt the very name of Morganton would cause the judge to shudder. At last, having contemplated all the possible ramifications of the extraordinary request, Mr. Donnell turned to me for the first time during the proceedings. “Clerk of court,” he said, nodding for me to come forward, “what say you in this matter?”
I stood up. “Well, sir,” I said faintly, “I have not seen it done before, but there is nothing in the law books specifically prohibiting the reexamination of witnesses. They have been sworn.”
Mr. Donnell’s eyes narrowed. “So they have.” He leaned forward, addressing his remarks to the two attorneys. “I will permit this, gentlemen.”
Woodfin paled. “But, Your Honor, the witnesses may have conferred-”
“They have been sworn, counselor. They have taken God’s oath to tell the truth, and we must assume that they will continue to tell the truth as they see it. As they now recall it.” His tone brooked no argument, but even so Mr. Woodfin remained standing for a moment or two longer, wide-eyed and gasping, as if he were casting about for some straw of legal redress. It was one of the very few times during the course of the trial that I saw him look around for his cocounsel Thomas Wilson, but that worthy gentleman offered him no help; he merely shook his head as if to say that the point was lost, and that no good could come of arguing about it.
Judge Donnell turned to the prosecutor. “Mr. Alexander,” he said, “you may begin, sir.”
He consulted the list and nodded to the bailiff. “The state calls Miss Nancy Wilson to the stand.”
In the short interval during which we awaited the arrival of Nancy Wilson, I had time to scan the crowd, and I noticed that Miss Mary Erwin was not present among the spectators. Perhaps she had seen her fill of legal chess games on the preceding day, or more likely, she had anticipated an unfavorable verdict, rather than the unexpected continuation of the trial that took us all by surprise.
Nancy Wilson entered the courtroom for her second turn on the witness stand looking uneasy. Wearing the same black dress as yesterday but not the same confident demeanor, she kept close to the bailiff’s side, making her way through the spectators with a worried frown, as if she were wondering what the jurors wanted from her now.
When the preliminaries were settled, William Alexander approached the witness with a perfunctory smile intended to calm her fears. “The jurors would like to hear your testimony again, Miss Wilson. Let us begin again. I will ask you questions, and you must answer truthfully to the best of your knowledge. Do you understand?”
She nodded. “Go on, then.”
“State your name, please.”
“Nancy Wilson.”
“You reside in the Toe River section of western Burke County?”
“That’s right.”
“No kin to Attorney Thomas Wilson of Morganton.”
“No. Not that I ever heard.” She shrugged. “Maybe back in England five hundred years ago.”
William Alexander permitted himself a genuine smile. “There is no need to deny Mr. Wilson so thoroughly, madam,” he assured her. “We are merely establishing that you have no ties to the court that might affect your testimony. That aside, it is no crime to be related to such a worthy gentleman as my learned colleague.”
“Even if he is a lawyer!” someone called out from the gallery.
This jest proved too much for Judge Donnell, and his own smile vanished as he banished the levity from his courtroom with the oak gavel.
“Miss Wilson, are you acquainted with the defendant Frances Silver?”
“I know her.” An emphatic nod.
“Are you related?”
“Her husband Charlie was my first cousin.” Nancy Wilson looked as if she intended to say more, or perhaps she meant to remind the prosecutor that he already knew these things, but something in Mr. Alexander’s expression must have counseled patience, for she contented herself with that brief reply, and the questioning continued.
“How did you come to hear about the disappearance of your cousin Charles Silver?”
“Last December I was visiting at my uncle’s cabin when Frankie”-she nodded contemptuously toward Mrs. Silver-“shecame in saying that Charlie was gone.”
“Did the defendant know where he was?”
“Frankie had already told the family that Charlie was gone the day before. She just came to say he wasn’t back yet from a visit to the neighbors over the ridge. We began to think that Charlie had come to harm on the walk home through the snow. He might have fallen through the ice and drowned in the Toe River.”
“Did Mrs. Silver seem concerned about her missing husband?”
“Not her. She was angry, more like.” Nancy Wilson tossed her head. “She was put out about Charlie being gone, in case he was having a good time without her. And she was all-fired mad about having to do all the chores herself. She wanted the cows fed, as if a big strong woman like her couldn’t do it perfectly well herself. And she kept saying that she was going to run out of firewood, and would one of the boys come over and chop some for her.”
“Did they?”
She shook her head. “There wasn’t no need. Alfred said he had seen a whole cord of oak and kindling already chopped and stacked, sitting right there by the side of the cabin a day or two back. ‘You can’t have used it all up yet, Frankie,’ he told her. Of course, now we know what happened to that wood.” Nancy Wilson looked defiantly around the courtroom, as if daring anybody to come up with another explanation for the missing woodpile.
“Did Mrs. Silver suggest that the family begin a search for her husband?”
“She did not,” said Nancy Wilson. “She knew it wouldn’t be no use. She kept saying that there was a party over to the Youngs’, and that Charlie would be along home when the liquor ran out, same as always. It wasn’t no use to go after him, she said, because he’d rather lay around with those no-account friends of his than do any work anyhow.”
“When Mrs. Silver appeared to report her husband missing, who was present in the Silver cabin?”
Nancy Wilson ticked them off on her fingers. “Besides me, there was Mrs. Nancy Silver, Charlie’s stepmother; his sisters Margaret, Rachel, and Lucinda; his brothers Alfred, Milton, and Marvel; and the baby, William.”
“When she was ready to leave, did Frankie Silver ask any of you to accompany her back to her own cabin, since she was now alone?”
“She did not. She didn’t want anybody going near her place at all. That was plain. Charlie’s sister Margaret offered to walk back with Frankie, on account of she had the baby with her, and I said I’d go along to keep Margaret company on the way back, but Frankie said she didn’t want any visitors. She said she’d go alone. She had an odd look on her face, too. Like she was a-skeered we’d follow her.”
This testimony was completely different from the account Miss Wilson had sworn to on the previous day. I had not made notes of the witnesses’ recitals, for it was only my job to see that legal procedure was correctly followed, but I remembered it well enough. Nancy Wilson spoke with conviction in a clear, carrying voice, and her words had impressed themselves upon my memory. Frankie Silver had been weeping, she had said. The young wife had been worried about her missing husband. She had asked Margaret Silver and Nancy Wilson to come back to the cabin with her, but they declined, saying that they did not wish to tramp through the deep snow to her cabin. This was the testimony as I recalled it; surely the jury would remember as well?
Miss Wilson’s revised version of the events of December 22 recast the defendant as a heartless monster, indifferent to the fate of her husband and transparent in her efforts to escape detection. Gone was yesterday’s image of the weeping young girl, worried about her lost Charlie and begging his kinswomen to come home and keep her company while the men searched the woods. With a few words, only half a dozen denials, Nancy Wilson had evoked the image of a cunning and cruel killer, someone who deserved no mercy and no pity, and who would surely receive none from those present in the court. The Frankie Silver that was described today deserved to die.
I had no way of knowing which version of the tale was the true one, though of course I suspected that the first telling was the real remembrance. At least I wanted the jurors to realize that they were hearing a vastly different account from the one that had been previously given and sworn to before God.
Surely someone else in this crowded courtroom remembered the previous testimony. Someone would want to know why the facts had altered so completely from the first testimony.Someone… I found the astonished face I sought at the defense table: it was that of Nicholas Woodfin. He had gone even paler as Miss Wilson spoke, and I saw his lips twitching as if he could control the sound of his outcry, but not the movement.
For an instant our eyes met, and we read dismay in each other’s expression. I looked away first, for I could not bear to see this courageous and idealistic young man in the very beginning of his profession lose all his faith in the majesty of the law. Juries do not mete out divine justice, I wanted to tell him. They are the arbiters that we mortals deserve: imperfect, credulous, and above all fallible. He was seeing the end of his client’s hopes, and he knew it. I wondered ifshe did.
The Ballad of Frankie Silver Page 19