judge Graves frowned. “Very well. Now then, Mr. Dirkson.”
Dirkson was on his feet before Judge Graves even got the words out of his mouth. “Yes, Your Honor,” he said. “With regard to the charge of prosecutorial misconduct in the case of Douglas Kemper, I must say that the charge is completely unfounded and absolutely without merit. Your Honor need look no further than the transcript of yesterday’s testimony to see that this is true. Mr. Winslow contends that we violated Mr. Kemper’s rights by calling him as a witness when he himself was a possible codefendant. That is utter nonsense. Mr. Kemper’s own testimony clearly shows that we had not one scintilla of evidence against him prior to his appearance on the stand. It was only during his direct examination that it became clear that he was actively involved in the matter. We had never compared his fingerprints with those found in the apartment. That comparison was done only after yesterday’s session in court.”
“That is exactly the basis for my charge, Your Honor,” Steve Winslow said. “The prosecution suspected Douglas Kemper of being the person who left those fingerprints, but deliberately refrained from making a comparison until after they had got him to commit himself on the stand.”
Judge Graves banged the gavel. “That will do, Mr. Winslow. This is not a debate. Mr. Dirkson is replying to the allegations in your motion. You may proceed, Mr. Dirkson.”
“Thank you, Your Honor. As you can see, the charge of prosecutorial misconduct is absolutely without merit. With regard to the motion for a mistrial, I naturally oppose it. Likewise, the demand that Marilyn Harding and Douglas Kemper be tried jointly. In the event that we should proceed against Douglas Kemper, we shall do so separately and at a later time. Hence, there are no grounds whatsoever for making these motions, and they should be denied.”
Dirkson pointed to a stack of books on the prosecution table. “I have some precedents, Your Honor. If I could just have a moment.”
“Very well,” Graves said.
As Dirkson began citing cases into the record, Fitzpatrick turned to Steve Winslow. “We’re going to lose.”
“I know,” Steve said. “We’re just laying the groundwork for an appeal.”
“I know. But I hate to lose.”
“Stick with me. You’ll get good at it.”
When the arguments were finally over, Judge Graves took a thirty minute recess. When court reconvened, he said, “I have considered the motions carefully. They are denied. These proceedings will continue.
“Now then, with regard to procedure, the witness Kemper was on the stand. I understand he’s been charged with perjury, and is out on bail. Is that right?”
“Yes, Your Honor,” Dirkson said.
“I understand he has not been charged as a coconspirator or as an accessory to this crime?”
“That’s correct, Your Honor. It is possible that he will be, but he has not been so charged at the present time.”
“Very well,” Graves said. “Mr. Winslow. Is it your intention to advise the witness not to answer questions?”
“Your Honor, it is my contention that he should not be on the stand to begin with.”
“I understand that. I have already ruled. I am attempting to expedite this trial without embarrassing your client or infringing upon his rights. After all this time, I would hate to call the jury in and immediately send them out again. But we’re not going to argue this in front of them, so I’m attempting to determine if we can resolve this matter now.”
“If I might interpose, Your Honor,” Dirkson said. “The point is moot. I have no further questions for the witness, Kemper.”
“You have concluded your direct examination?”
“I have.”
“Mr. Fitzpatrick. Do you intend to cross-examine the witness?”
“No, I do not.”
Judge Graves nodded. “That simplifies things. We’ll bring back the jury and call the witness to the stand. You can both announce that you have no questions and the witness will be excused. Bring in the jury.”
Fitzpatrick was on his feet. “I assume Your Honor will explain to the jury the presence of Steve Winslow?”
A trace of a smile crossed the judge’s lips. “I will
That sally produced a roar of laughter that Judge Graves made no attempt to quiet. After all, the jury was not present.
After the jurors had filed in and been seated, Judge Graves addressed the jury. “Ladies and gentlemen of the jury. I would like to apologize for the delay. As I explained at the outset of the trial, there are numerous occasions when we have matters to discuss outside your presence. Sometimes they relate to this trial, sometimes they are matters relating to other trials. In some instances, it is merely because one of the parties is indisposed and cannot be present in court. As I told you, it is not your place to speculate as to what goes on in the courtroom during the time you are in the jury room.
“At any rate, we are ready to resume the trial. Before we do so, I call your attention to the presence of another attorney in the courtroom. Mr. Steve Winslow has joined the defense as associate counsel for Marilyn Harding. He is seated at the defense table and will be taking part in the trial.”
The jurors looked at each other. Steve Winslow grinned. He knew that despite Judge Graves admonition, each and every juror was wondering just what the hell had gone on since court had adjourned yesterday afternoon.
While this was going on, Douglas Kemper entered the courtroom and took the stand. He did not make a good impression. His manner was furtive and sheepish. He carefully avoided looking at Marilyn Harding.
Judge Graves, though aware that Kemper’s examination was through, still went through the charade. “Mr. Kemper, I must remind you that you are still under oath. Mr. Dirkson, you may proceed.”
Dirkson stood up. “Thank you, Your Honor. I have no further questions of the witness.”
Graves nodded. “Very well. Mr. Fitzpatrick?”
Fitzpatrick stood up. “No questions, Your Honor.”
Graves nodded. “The witness is excused.”
Kemper got up and left the stand.
The jurors, who had waited all day to see only that, found it funny. Some began to giggle.
Judge Graves gave them a few minutes to blow off steam, then banged the gavel. When the court was quiet, he said, “Mr. Dirkson. Call your next witness.”
Dirkson stood up. He looked at the jury. Then at the defense table. Then back up at the judge. His smile was rather smug. “The People rest, Your Honor.”
36
Fitzpatrick heaved his bulk around the small conference room in the courthouse like an angry whale.
“Son of a bitch!” he said. “Son of a fucking bitch!” He poured himself a glass of water and gulped it down. “I don’t need this,” he said. “My specialty is corporate law. I’ve got myself some juicy plum clients. Chief among them, Phillip Harding. He dies, and I inherit his daughter. She inherits a murder. Suddenly I’m in court. But even then I’m all right, because I’ve got a genuine, first-class, made-to-order red herring, scapegoat, fall guy, to take the rap. Only he turns out to be the attorney for my client’s lover, and suddenly I’m fucked. Suddenly I’m in court with a smug-ass district attorney who just wants to play games with me. ‘Your Honor, I rest my case.’ Jesus Christ, he hasn’t
“It’s good move,” Steve said. “If we don’t put on a case, he’s given the jury enough to convict. If we do put on a case, he’s still got a whole bunch of witnesses left for rebuttal.”
Fitzpatrick threw up his hands. “What case? We have no case. You talked to Marilyn Harding. You know what she’s like. We don’t dare put her on the stand.”
