The Naked Typist

alluded to may be a matter for the Bar Association, but it has no place here. And I warn you, if you make any remarks of that kind in the presence of the jury, any allegations of misconduct about the defense attorneys, any allusions to the fact that they might possibly be charged with a crime, you would be in serious danger of forcing me to declare a mistrial. You are the district attorney, and I should not have to point this out to you. Is that clear?”

“Yes, Your Honor.”

“Now, if you were informing me that charges had been brought, that is something I might need to know. But alluding to the fact that charges might be brought is the type of insinuation and innuendo that is associated with the tabloid press and has no place in my courtroom. Is that clear?”

“Yes, Your Honor.”

“Fine,” Judge Wallingsford said. “Let’s see if we can proceed. Two days ago the defendant was on the stand and had concluded her direct examination. Due to the peculiar turns this case has taken, she has yet to be cross- examined by the prosecution. I would hope that could be accomplished this morning, once these other matters have been set aside.

“When we left off yesterday, the witness Marcie Keller was on the stand, and had concluded her direct examination. You say she is in police custody, Mr. Dirkson?”

“That’s right, Your Honor.”

“I trust she is available to us?”

“Certainly, Your Honor. The officers are just awaiting your order to bring her in.”

“Fine. Before we do so-Mr. Winslow, Mr. Fitzpatrick, may I ask if you intend to cross-examine this witness?”

Steve Winslow stood up. “We do not, Your Honor.”

“That simplifies things,” Judge Wallingsford said. “Then there is no need to have her in. Bring in the jury, and return the defendant to the stand.”

Steve Winslow was still on his feet. “Before you do, Your Honor, while I have no questions of Miss Keller, at this time I would like to recall one of the other prosecution witnesses for cross-examination.”

Dirkson jumped up. “Objection, Your Honor. That’s out of order. The prosecution has rested its case.”

“You reopened your case to put Marcie Keller on the stand, and you’ve not yet rested it again. I think the court reporter will bear me out on that.”

“Well, I’m resting it now.”

“You can’t do that. I’ve already made my request to recall one of your witnesses.”

“Your Honor, he’s out of order,” Dirkson said. “I insist you rule I’ve rested my case, and return the defendant to the stand. There is no precedent for him recalling another prosecution witness now.”

“The order of proof is at the discretion of the court, Your Honor,” Steve Winslow said. “The prosecutor interrupted the defendant’s testimony to put on this witness out of order. To do so, he reopened his case. I must say that the unusual and unorthodox production of this testimony has caught me completely by surprise and forced me to reevaluate my case.”

“Nonsense,” Dirkson said. “How can he stand up here and say that when he knew about this witness all along, and he was the one who concealed her from me?”

“That’s not at issue, Your Honor,” Steve said. “As Your Honor has said, that is a matter for the Bar Association. What is at issue is that the prosecutor rested his case, and on the basis of that I decided to put the defendant on the stand. Now, before cross-examining her, the prosecutor has chosen to reopen his case. I submit, Your Honor, that for all the district attorney’s bluster, this was done for no practical purpose except to embarrass the defense in general and me in particular.”

“Nonsense,” Dirkson said. “This is a material witness with pertinent information that had previously been withheld.”

Steve smiled. “Perhaps,” he said. “But Your Honor will note, there was actually no new information elicited from this witness. There is nothing in Marcie Keller’s testimony that had not already been testified to on the witness stand by the defendant. The supposedly damaging facts she’s testified to are things we’ve already cheerfully admitted. Therefore, I submit that the production of this witness was not made in good faith for the purpose of bringing out new evidence against the defendant, but was totally for the purpose of laying the groundwork for charges against the witness herself and the attorneys for the defense.”

“That’s ridiculous,” Dirkson said. “Eyewitness testimony is always pertinent and admissible, even in the event the defendant has already admitted the crime.”

“Let’s try not to go off on a tangent,” Judge Wallingsford said. “Mr. Winslow, specifically, what is it you contend?”

“I contend that the witness Marcie Keller was put on out of order. I also contend that had she been part of the prosecution’s original case, I would have cross-examined the witnesses differently than I had, before I put the defendant, Kelly Clay Wilder, on the stand. It’s too late to correct that now-her direct examination has already been given. But I feel at the very least I should be given an opportunity to augment my cross-examination of one of the prosecution’s witnesses before the prosecutor uses this irregular testimony of Marcie Keller to cross-examine the defendant.”

“Mr. Winslow. Do you have some definite purpose in mind?”

“Absolutely, Your Honor. It is crucial to my case to be allowed to cross-examine a witness at this time.”

“I submit, Your Honor,” Dirkson said, “that that is absolute nonsense, if not an out-and-out lie. The defense attorney has used every stalling tactic he can think of to keep me from cross-examining the defendant. This is merely another one of them. I submit that his only real intention here is to postpone the moment when I get to cross-examine the defendant on the stand. He is so desperate to avoid that, he is willing to try anything. If you allow him to recall one witness, he’ll recall them all. And keep on recalling them until we have to adjourn and the case goes over the weekend.”

Steve Winslow held up his hand and shook his head. “I give you my assurance, Your Honor, that this is not the case. I wish to recall one witness only, and my cross-examination will be brief. And as to the allegation that I am unwilling to let the prosecutor cross-examine the defendant, that simply isn’t so. The defendant has told the absolute truth, and no cross-examination can hurt her. And as proof of this, let me state that if the prosecutor is willing to let me recall one of his witnesses for a brief cross-examination, I am willing to stipulate that when he cross-examines the defendant, the defense will not raise a single objection to any of his questions, whatever they may be.”

Judge Wallingsford frowned. “This is entirely irregular, Mr. Winslow.”

Dirkson was waving his hands. “Your Honor. Your Honor. One moment. On consideration, the prosecution is inclined to accept that stipulation.”

Judge Wallingsford looked at him with exasperation. “Well, the court is not. I don’t care what the prosecutor and the defense attorneys are willing to do, the court is not going to allow a defendant’s rights to be stipulated away in that manner. I must say, if the defense attorney refuses to object, the court will impose objections for him. Is that clear?”

“Yes, Your Honor,” Dirkson said.

“The court is now going to rule. Mr. Dirkson, since you seemed so willing to enter into that stipulation, I must conclude that you have no real objection to the defense attorney recalling one of your witnesses. Proof is at the discretion of the court. It is my discretion that the witness be recalled. The witness will be recalled, cross-examined, and then if you have no further questions, you may once again rest your case. At which time the defendant will be returned to the stand.

“Mr. Winslow, what witness do you wish to recall?”

“Phil Danby, Your Honor.”

All eyes turned to the second row of the courtroom, where Phil Danby sat next to his employer, Milton Castleton.

“Very well,” Judge Wallingsford said. “Bring in the jury. Phil Danby, take the stand.”

While the jurors were being led in, Fitzpatrick leaned over to Winslow. “What are you doing?” he whispered.