“Andrews is a-marryin’ one,” Greene said.
“Hell, Andrews don’t count,” Carter said as if that validated his point.
“I might get married someday,” Fancy said, looking directly at Isaac. “Can I get you something, Isaac?”
“A beer would be nice,” he replied as he, McCoy, Greene, and Carter took a table.
“Hey, how come you ain’t asked if we want somethin’?” McCoy asked.
“What do you want?” Candy asked.
“A beer, just like Isaac.”
“Me ’n Greene will have a beer, too,” Carter added.
“I been thinkin’ ’bout Shardeen,” Greene said after the drinks were delivered.
“What’s there to think about?” McCoy asked. “He’s dead.”
“Yeah, that’s what I’m thinkin’ about. Shardeen is dead, ’n that means we’re goin’ to need us another gun as good as he was,” Greene said.
“Well hell, we got one that might even be better ’n Shardeen was,” Carter said. “This new feller we got, the Undertaker, is ever ever’ bit as good as Shardeen was, ’n they’s some that will say that he’s even better.”
“Yeah, but the only thing is, we don’t have ’im,” Greene said.
“Yes, we do. DuPont seen ’im over at the Straight Arrow,” Carter said.
“That’s what I’m talkin’ about. He’s workin’ for Kennedy ’n O’Neil. He ain’t ridin’ with us.”
“That’s the same thing, ain’t it?” Carter asked.
“No, it ain’t. What if Kennedy ’n O’Neil decide they don’t need us no more? If that happens, the money will more ’n likely dry up on us.”
“Damn, I hadn’t thought of that. I wish Boggs was with us instead of the Straight Arrow,” Carter said.
“Why?” Isaac asked.
“Why? What do you mean, why? On account of we got us a good thing a-goin’ here, but if we ain’t got somebody like Shardeen or this Undertaker feller on our side, why, that could mean trouble.”
“No, it’s just the opposite. As long as we had Shardeen he was potential trouble, and it would only be exacerbated with Boggs,” Isaac said.
“What’s that word you just said? Exzer somethin’?” Greene asked.
“The word is exacerbated, and it means that if we had Boggs with us, he could wind up causing us a lot of trouble.”
“Why are you sayin’ havin’ Boggs would be trouble?” McCoy asked.
Isaac finished his beer before he responded. “I was worried all the time we had Shardeen that he might kill someone during one of our jobs. Had he done so, the entire complexion of our operation would have changed. Instead of merely being a group that occasionally cast a long rope, we would have become a pack of murderers. If we acquire another person who is just as prone to killing as Shardeen was, and apparently this man Merlin Boggs is, then we would again have to deal with the potential of facing a charge of homicide.”
“Uh-uh. You’re a-worryin’ too much,” Moe Greene said. “If we was to have the Undertaker ridin’ with us, ’n if he would happen to kill someone, it’d be him that has to pay for it, not us.”
“I’m afraid you have very little understanding of the law,” Isaac said. “If someone is killed in the commission of a felony, the charge of murder will apply to all who are participating in that felony. And armed robbery, regardless of the amount stolen, is a felony.”
“There you go. We don’t have nothin’ to worry about, boys. If we get into trouble, Isaac will help us out,” McCoy said. “Maybe you fellers don’t know it, but ole Isaac here is a lawyer.”
“That ain’t true,” Asa Carter said. “He’s colored. There ain’t no lawyers that’s colored.”
“That don’t make no never mind whether he’s colored or not,” McCoy said. “He’s a lawyer. Tell ’em, Isaac.”
Isaac started to reply, but what could he say?
He gave that some thought then said, “Technically, I suppose one must actually be practicing law to be an attorney. And as I’m sure it is obvious to all that I am not practicing law, then I would not be considered an attorney.”
“See, what did I tell you? Newton ain’t no lawyer,” Carter said.
“But you are a lawyer, right?” McCoy asked. “I mean ain’t that what you done told me? Somethin’ about goin’ into a bar ’n gettin’ your license?”
“I have been admitted to the bar, that is true.”
“Ha! Only this one, though,” Greene said. “They more ’n likely wouldn’t even let you in to the Pair O’ Dice.”
“Yes, only this one,” Isaac said without further explanation.
Chapter Twenty-one
As the conversation in the saloon returned to the skills of various gunfighters the others had seen or heard of, Isaac let his thoughts drift back to the last time he had actually practiced law.
After proving that he was a member of the bar, duly licensed to practice law in Texas, he was hired to do legal work for the Texas and Pacific Railroad. His legal work was restricted, however, to the mundane tasks of dealing with records research. Filing for land grants and route right-of-way clearances, as well as all actual court appearances, were handled by the white lawyers.
Isaac was looking over some papers at the railroad office in Spring, Texas, one day when a black soldier came in to see him. The soldier was wearing sergeant’s stripes and he was a member of the Tenth Cavalry, which was stationed at nearby Fort Davis.
“Mr. Newton?”
“Yes?”
“Mr. Newton, is it true that you’re a lawyer?”
“I am.”
“Mr. Newton, my name’s Sergeant Potter. My officer’s bein’ accused of somethin’ that he didn’t do ’n I want you to get him out of trouble.”
“How do you know he didn’t do it?”
“’Cause he told me he didn’t do it, ’n I believe him. Will you help ’im?”
“I’m not sure why you would come to me. Doesn’t the army have a Judge Advocate Corps?”
“Yes, but I’m a-feared they won’t be fair to Lt. Flipper, him bein’ colored ’n all.”
“He’s colored? I didn’t know the army had any colored officers.”
“He’s the first one they’ve ever had, ’n he’s the only one they got. That’s why I come to you, you bein’ a colored lawyer.”
Before agreeing to take the case, Isaac went to the base headquarters at Fort Davis to learn what he could about Lt. Henry O. Flipper. He’d discovered that Flipper was the first black graduate of West Point and was assigned to the Tenth Cavalry, an all-black regiment known as Buffalo Soldiers. Except for Flipper, the officers were white, and they resented his intrusion. Despite a record of honorable service, Flipper had been accused of embezzling a large amount of money from the Fort Davis commissary.
After Isaac read the reports and files, he indicated by a nod of his head that the sergeant should step outside with him so they could speak in privacy.
“He didn’t do all that, Mr. Newton,” Sergeant Potter said. “Will you be his lawyer?”
“Where will I find him, Sergeant? Is he in jail now?”
“No, sir, he ain’t in no jail. Him bein’ an officer, even though he’s colored, what they done was, they just said he can’t leave his quarters. I’ll take you to talk to ’im if you’d like. ’Cause oncet you talk to ’im, I’m just real sure that you’ll decide to be his lawyer. Mr. Newton, Lieutenant Flipper is a real good man, despite his bein’ an officer.”
“Is the lieutenant expecting me?”
“No, sir, I don’t know that he is ’cause I ain’t told ’im nothin’ ’bout you yet, me not knowin’ whether or not you’d say that you’d be his lawyer. But if I take you out to see him, he’ll be happy to talk to you. The reason I know that is, ’cause he needs a lawyer real bad.”
The post was a busy place with some soldiers participating in mounted drill and others at various tasks from polishing the signal cannon to doing repair work on a couple of buildings. All the s
oldiers were black, though there were a few white officers in supervisory positions, and they cast curious glances toward Isaac as he followed the sergeant to one of the buildings the sergeant identified as bachelor officers’ quarters. Stepping into the hallway inside, Sergeant Porter knocked on the door.
“Who knocks?” a voice called from within the room.
“It’s Sergeant Potter, Lieutenant. I’ve got someone here to meet you, sir.”
“Enter.”
Sergeant Porter opened the door and stepped aside to invite Isaac in.
Isaac saw a handsome young man in uniform sitting at a table. He had an open ink bottle and he was writing on some papers that were spread out on the table. He looked up at Isaac, the expression on his face displaying his curiosity. “Who are you?”
“Lieutenant, this here feller is a real lawyer, even him bein’ colored ’n all, ’n what I done is, I asked him to be your lawyer.”
“Have you agreed to do so?” Flipper asked.
“I’m not even sure I will be allowed to defend you, Lieutenant,” Isaac said. “I’m a civilian, and I don’t know what the army will say about that.”
“You can defend me. According to the Articles of War, any soldier being court-martialed is entitled to a civilian lawyer if he so wishes,” Flipper replied. He smiled. “And under the circumstances, you might be a better advocate for my case than a white JAG officer.”
“I’m honored that you would think so.”
“Will you take the case?”
“All right. I’ll do the best I can.”
Lieutenant Flipper chuckled, the laugh surprising Isaac, given the amount of trouble he was in.
“I was just thinking,” Flipper said. “A colored lawyer defending a colored army officer. We’ll get the court’s attention if we don’t do anything else.”
* * *
Colonel William Shafter was an oversized man with a round face, flushed cheeks, and a full gray moustache. He stroked his moustache subconsciously as he studied Isaac Newton.
“Are you sure you’re a lawyer? Lieutenant Flipper might be colored, but he is still one of my officers, and I want to make certain he is ably defended.”
“Colonel, it was my impression that he was to be defended by one of your officers who isn’t a lawyer.”
“That doesn’t matter. He can be defended by an officer whether he is a lawyer or not. Only the Judge Advocate has to be a lawyer.”
“A white officer.”
“As Lieutenant Flipper is the only colored officer in the entire United States Army, it stands to reason that any officer who defends him would be white,” Shafter said.
“Lieutenant Flipper has asked that I defend him, and I am now petitioning you to allow me to do so. I understand that the Articles of War will allow me to represent a soldier if that soldier makes such a request. Lieutenant Flipper has made that request.”
“You have some proof that you are actually a lawyer?”
Isaac showed Colonel Shafter his law license. Shafter looked it for a moment, then nodded.
“All right. The court-martial convenes on the fifteenth, that’ll be Thursday, three days from now. Captain Merritt Barber will be the court-appointed counsel, which means that, technically, he will be in charge of the defense. However, I will see to it that you are allowed to present the case. Captain Barber will be there to assist you on all things military.”
“Thank you, Colonel.”
* * *
On the day of the trial, Isaac and Lt. Flipper walked together from the BOQ to the post chapel where the court-martial was to be held. Isaac thought the post chapel was a strange place to hold the court-martial, but it was the only place with seating enough to hold the people who wanted to attend. The first person he saw as he entered was Sergeant Potter, who was sitting with many of the men from Lt. Flipper’s company.
Because nobody below the rank of the accused can be seated on the court-martial board and Flipper was the only black officer in the entire army, the “jury” was composed of eight white officers. The “judge” or presiding officer was Colonel George Pennypacker. The prosecutor was the judge advocate, Captain John Clous.
Captain Barber was already seated at the defense table, and he stood and greeted Isaac and Lt. Flipper with a smile as they approached. “How are you feeling, Lieutenant?” Barber asked.
“A little nervous. Thank you for asking, sir,” Flipper replied.
“Well, that’s to be expected. Mr. Newton, the case is in your hands, but I will assist you with regard to anything in the trial that is specifically of a military nature.”
“Thank you, Captain,” Isaac said.
When the court was seated, Colonel Pennypacker glanced over at Captain Clous. “Captain, what are the charges?”
“Lieutenant Flipper is charged with embezzlement. He is also charged with conduct unbecoming, in that he wrote a check for which there were insufficient funds.”
“Very well, Captain, you may make your case.”
Captain Clous turned toward the board to begin his presentation. “Lieutenant Flipper had, before he was relieved, the position of commissary officer. That is a position of great trust in that he was responsible for all the money that comes through the commissary. An audit disclosed a shortage of three thousand, seven hundred, and ninety-one dollars and seventy-seven cents.
“Gentlemen, that is your money, it is my money, and more important, it is the money of the soldiers under us, the soldiers for whose welfare we are responsible.
“In addition to embezzlement, he also wrote a check for two thousand five hundred dollars, no doubt in a vain attempt to repay the money he stole.”
Clous turned away from the board and looked toward the presiding officer. “Sir, I call Mr. Phil Shy, the civilian commissary, as my first witness.”
The civilian commissary was a very slender man with a closely cropped moustache and thin blond hair. After he was sworn in, he took his seat in the witness chair.
“Mr. Shy, you are the one who reported the shortage in the commissary funds, are you not?”
“Yes, sir, I did. But since that time—”
Clous interrupted him. “Please add no comments other than in response to my questions. When you first noticed the shortage, what did you do?”
“I told Lieutenant Flipper about it.”
“And what did Lieutenant Flipper say?”
“He said don’t worry about it. That he would take care of it.”
“He would take care of it? What do you think he meant by that?”
“That he would take care of it. And he did, because—”
“Please, speak only in response to my questions. Did he show you a check that he had written?”
“Yes, sir, he did.”
“And for how much was the check written?”
‘Twenty-five hundred dollars.”
“Thank you, no further questions.”
Isaac walked halfway between the witness and the defense table. “Mr. Shy, is the commissary still short the money?”
“No, sir.”
“Where did the money come from?”
“Well, it’s like I was going to say, Lieutenant Flipper said he would take care of it and he did. But to tell the truth, I don’t know where the money came from.”
“You said he showed you a check for twenty-five hundred dollars. Did he give you that check in repayment?”
“No, he didn’t.”
“No further questions.”
The prosecutor’s next witness was Charles Roberts, the post banker.
“Mr. Roberts, does Lieutenant Flipper have twenty-five hundred dollars in his bank account?”
“No, sir, he does not.”
“Has he ever had twenty-five hundred dollars in his account?”
“No, sir.”
“No further questions.”
Isaac stood, but didn’t leave the defense table. “Mr. Roberts, did you refuse payment on Lieutenant Flipper’s twenty-five-hundred dollar check
?”
“No, I never refused payment on that check.”
“Why didn’t you? I mean you testified that never, at any time, has Lieutenant Flipper had that much money in his account. Why didn’t you refuse payment when the check was presented?”
“There was no need to refuse payment, because the check was never presented.”
‘Thank you.”
When Lieutenant Flipper took the stand, Isaac asked him about the twenty-five-hundred dollar check. “Why did you write the check, if you didn’t have the money?”
“I don’t have the money yet, but I will soon,” Lieutenant Flipper said. He smiled. “My book, A Colored Cadet at West Point, will soon be published by Harper Lee and Company, and they are paying me twenty-five hundred dollars.”
There was a gasp of surprise, and even shock, from the others in the court and in the gallery.
Isaac returned to the table and picked up a piece of paper. “Your Honor, here is a letter from the publisher, verifying Lieutenant Flipper’s claim.”
In Captain Clous’s closing remarks, he added one more piece of evidence. “I would like to point out that the conduct unbecoming does not refer only to the check, but to the fact that Lieutenant Flipper has been often seen riding with Miss Mollie Dwyer. Miss Dwyer is a white woman. Prosecution rests.”
Captain Barber said that he would like to give the closing argument for the defense, and Isaac, after consulting with Lieutenant Flipper, agreed.
Barber approached the board, and in the most eloquent and flowery prose, made his petition. “May we not ask this court to take into consideration the unequal battle my client has to wage, poor, naked, and practically alone, with scarce an eye of sympathy or a word to cheer, against all the resources of zealous numbers, official testimony, official position, experience and skill, charged with all the ammunition which the government could furnish from Washington to Texas, and may we not trust that this court will throw around him the mantle of its charity, if any errors are found, giving him the benefit of every doubt . . . and giving him your confidence that the charity you extend to him so generously will be as generously redeemed by his future record in the service.”
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