Alfred Hitchcock Mystery Magazine 11/01/10 Page 2

  The clerk stood, but didn’t approach the witness. “Do you swear to tell the truth, the whole truth, and nothing but the truth?”

  “Screw you. I take the Fifth.”

  Huffman glanced down at the clerk. “Let the record reflect that the witness answered in the affirmative.”

  “Your Honor,” Evan said, “I think he’s made his position clear. I therefore move for a compulsion order.”

  Fagener looked up at Huffman. “What’s a compulsion order?”

  “It means I give you immunity and you have to testify or get held in contempt.”

  “How much can I get for contempt?”

  “A year.”

  Jimmie rolled up his jumpsuit sleeve and pointed at a “Hard Time is My Time” tattoo on the inside of his forearm. “Piece of cake.”

  Huffman raised an eyebrow at Evan. “You really want to go through with this?”

  Tank elbowed Evan, then shook his head.

  “Yes, Your Honor.”

  Tank elbowed him again. Evan leaned over and whispered, “We need to make a record.”

  Huffman didn’t wait for the D.A.’s opposition. “Granted.”

  “Mr. Fagener,” Evan began, “would you please state your full name for the record.”

  Jimmie glanced at Huffman. “Hit me, Judge.”

  “I hereby find you in contempt. One year in the San Francisco County Jail.”

  The clerk swung around and looked up at Huffman. “Your Honor, is that consecutive or concurrent? I mean, does he do the county time first, then go do his state prison sentence, or does he go to state prison, then come back to do the year in county jail?”

  Huffman looked over at the bailiff.

  “Your Honor, it’s a whole lot simpler for the Sheriff’s Department if it’s concurrent.”

  “Make it concurrent.”

  Huffman waited until Fagener was removed from the courtroom, then smirked at Evan. “Now, wasn’t that entertaining?”

  Tank jabbed Evan again. “Now you’ve got the judge pissed off.”

  Evan jabbed him back. “Why don’t you just let me be the lawyer? I told you, we needed to make a record.”

  “Does the defense need a recess?” Huffman asked.

  “No, Your Honor.”

  “Let’s take one anyway. Ten minutes. We’ll bring the jury in at nine fifteen.”

  “Your Honor,” the bailiff interjected, “the jurors have asked if they can leave early today so they’ll have time to vote.”

  Huffman glanced back and forth between Evan and Bezener. “Hearing no objection, we’ll break at four o’clock this afternoon.”

  “Mr. Gordon, call your first witness.”

  Evan rose from the counsel table. “The defense calls Dr. Albert Fredrickson.”

  A pale man with red eyes rose from the first row of the gallery, then pushed through the swinging wooden gate. Without waiting for directions, he walked within a few feet of the clerk and raised his right hand. He took the oath, then climbed into the witness box.

  “Your Honor,” Evan said, looking up at Judge Huffman, “as Dr. Fredrickson has testified many times for the prosecution over the years, may I skip the general voir dire and proceed to the specific area of fingerprint identification?”

  Bezener rose. “The People will stipulate to the qualifications of Dr. Fredrickson in that area.”

  Judge Huffman didn’t wait for Evan’s response. “So stipulated.”

  The rest was easy. Seven questions later, Dr. Fredrickson gave Evan his first building block: “The partial latents lifted from the Kleenex box match the fingerprints of Tank McBain.”

  “Nothing further,” Evan said, turning toward Bezener. “Your witness.”

  Bezener rose again. “The People have no questions for Dr. Fredrickson.”

  Evan next called the burglary victim who testified that it was her jewelry that had been recovered from Tank’s truck and that had been sitting in evidence as unclaimed property for the last eleven months. She also testified that she’d purchased the Kleenex a week before the burglary. She remembered it because it had a little slice in the top from the grocery clerk’s box cutter.

  “The defense now calls San Jose Police Detective Howard McCurdy.”

  A middle-aged man in a crisp blue suit strode up to the witness box, took the oath, and then sat in the still-warm seat.

  “Detective McCurdy, do you recall investigating a burglary that occurred in San Jose on the evening of March tenth last year?”

  “Yes.”

  “Where did that take place?”

  “At 4642 Willow Brook Drive, San Jose.”

  “And what time did that burglary occur?”

  “It was called into SJPD dispatch by the Sentry Alarm Company at 10:14 P.M.”

  “Did you determine when the alarm was first received by Sentry?”

  Bezener stood. “Objection, hearsay.”

  “Mr. Bezener,” Huffman said, “do you really want to waste the jurors’ valuable time calling someone from the alarm company to testify to what Detective McCurdy could tell us in two seconds?”

  Bezener grasped that it was a rhetorical question and sat down.

  “Overruled. You may answer.”

  “The alarm went off at 10:12.”

  “And what time was the homicide in San Francisco?”

  “Ten twenty-seven.”

  “And what is the distance between the burglary scene in San Jose and the homicide scene in San Francisco?”

  McCurdy raised his eyebrows toward Bezener, begging for an objection, but the D.A. wasn’t ready to go to war over two more seconds.

  “About forty miles.”

  “Does the defendant own a jet?”

  “Objection! Your Honor, Mr. Gordon—”

  “Sustained.”

  “Detective McCurdy, did you make any arrests in connection with the burglary at 4642 Willow Brook Drive?”

  “Yes. Jimmie Fagener.”

  “Did you interview Jimmie Fagener?”

  Bezener jumped to his feet. “Objection. Hearsay.”

  “You’re premature, Mr. Bezener,” Huffman said. “Mr. Gordon only asked whether Detective McCurdy interviewed Jimmie Fagener, not what Mr. Fagener said, if anything. Overruled. You may answer the question.”

  “Yes. I interviewed Jimmie Fagener.”

  “Did you ask him who committed the burglary?”

  Bezener jumped up again. “Objection. Leading. Hearsay.”

  “Your leading objection is sustained.” Huffman peered down at Evan like a disappointed criminal procedure professor. “Mr. Gordon, just ask Detective Huffman what questions he asked, not if he asked a particular question.” Huffman redirected his disappointment toward Bezener. “And as to the hearsay objection? Sorry, Mr. Bezener, still premature articulation. Overruled.”

  Evan continued. “What did you ask Jimmie Fagener?”

  “I asked him if he committed the burglary.”

  “And what did he say?”

  “Objection. Hearsay.”

  Evan spoke before Huffman could rule. “I’d like to be heard, Your Honor.”

  “Why don’t we discuss this outside the presence of the jury,” Huffman said, signaling the bailiff, who herded the jurors through the jury room door.

  “Mr. Gordon, you had something to say?”

  “The statements of Jimmie Fagener to Detective McCurdy are admissible under Evidence Code Sections 1250 and 1251.”

  Evan glanced back at Tank, giving him an I-told-you-so wink.

  “First, Your Honor, the record shows that Jimmie Fagener is unavailable as a witness. He refused to testify even after the court issued the compulsion order. And second, what Fagener said is not being offered for the truth of the matter, only as to his state of mind.”

  “Of course it’s being offered for the truth of the matter,” Bezener said, his voice rising to a whine. “The defendant’s whole defense is that he was committing a burglary when the murder occurred.”

  “Y
our Honor,” Evan said, “the evidence supporting his defense are his fingerprints at the scene of the crime and his possession of the stolen jewelry, not what a scumbag snitch like Fagener has to say.”

  “Is it wise to refer to your own witness as a scumbag snitch?” Huffman asked, smiling.

  “As I said, his statement is only being offered as to his state of mind.”

  “But Your Honor—” Bezener paused as a clerk from his office slipped next to him and handed him a note. He looked at it and smiled, then turned toward Evan mouthing the words “Exit polls, sixty-forty, you lose,” and making a thumbs-down motion.

  “Mr. Bezener . . . Mr. Bezener?”

  “Sorry, Your Honor.”

  “Did you have something further?”

  “No, Your Honor.”

  “Overruled. I’ll instruct the jury that it’s coming in only as to his state of mind.”

  The questions in the jurors’ eyes during the prosecution case transformed into adoration during the defense. And by the time of Evan’s closing argument, they were nodding at every emphasis, smiling at every punch line, and all too ready to hand him what Evan feared would be a defeat in victory.

  “Ladies and gentlemen of the jury, have you ever spotted a neighbor in a department store, then realized you were mistaken; ever forgotten where you set down your car keys three minutes earlier; ever find a book on your bookshelf and had no idea how it got there or who left it? Eyewitnesses can be wrong, memories fail, guns can be planted, but fingerprints don’t lie. And remember, you don’t have to find that Tank McBain actually committed the burglary to find him not guilty of the homicide. It’s only a question—only a question—of reasonable doubt. And the answer to that is a verdict of not guilty.”

  Bezener rose as Evan returned to the defense table. Even the jury could see that he was conflicted, torn between wanting a victory in trial and wanting to be the D.A. who permanently struck out Tank McBain. He limited his rebuttal to the feeble argument that maybe Jimmie Fagener planted the Kleenex box to give Tank an alibi or maybe Tank snuck in the day before the murder to fondle a few items on the dressing table. But Bezener’s heart wasn’t in it. Every theory needs evidence as a foundation. His was floating on air, and everybody in the courtroom knew it.

  Bezener raced from the courtroom after the case was consigned to the jury. He returned when the jurors asked to examine the Kleenex box, then bolted again.

  The following morning, with the jury still out, Bezener strode into the courtroom beaming like he’d paid off all ten jockeys in the fourth race at Golden Gate Fields. A copy of the San Francisco Chronicle and a fresh San Jose grand jury indictment for burglary and arson in one hand, and a Starbucks latte in the other. He plopped down at the counsel table, then spread out the paper.

  Tank was still in the holding cell.

  “Your client know yet?” Bezener asked Evan.

  “He saw it on the news last night. He wants to cut a deal before the jury comes back. He’ll take a second-degree. Seventeen to life.”

  Evan knew Bezener had no reason to plea bargain. For Tank it was lose-lose.

  “What do I get out of it?” Bezener asked.

  “He’ll waive any appeals,” Evan answered. “It’ll be a done-deal sentence.”

  Bezener thought for a moment, then shook his head. “No can do. The voters have spoken. Three strikes and you’re still out. If he wins, he’s alibied himself into fifty years minimum. If he loses, he gets twenty-five to life. Who says you can’t win for losing? Or was it can’t lose for winning? I think this is what they call a win-win sitch-e-ay-shun.”

  Evan had been too depressed to watch the late news and couldn’t bear to read the paper in the morning.

  “What were the final numbers?” he asked Bezener.

  “Sixty-four percent against changing the law. A landslide. I can’t believe your client didn’t see it coming.”

  The door to the holding pen opened. Bailiffs led Tank McBain, head down, to the counsel table. As if to announce that the pretense was over, he hadn’t bothered to change from his jail jumpsuit into his civilian trial clothes. He didn’t look up when the jury was seated, when the foreperson rose, when he and Evan stood, or when the verdict was read.

  No defendant had ever taken victory with such an expression of defeat.

  Tank sat down. He remained impassive as Huffman thanked the jury for their service and excused them, as Bezener announced the burglary and arson indictment and demanded that Tank be held without bail until he could be transported to San Jose, and as Huffman discharged him on the homicide and remanded him on the new case.

  Tank again rose to his feet. “Your Honor—”

  “You’re represented by counsel, Mr. McBain. Perhaps you should consult with him before addressing the court, although I’m not sure it really helped you all that much last time.”

  Evan reddened. He started to rise, but Tank clamped a hand on his shoulder and braced him in his seat.

  “Your Honor, I know the district attorney, and even my own attorney, thought I was an idiot for rolling the dice by going to trial and in expecting the voters to repeal an unfair law, one that gives a defendant more time for burglary than for murder.”

  Tank glanced back toward his wife, gave her a we-gave-it-our-best-shot half smile, then looked back at Huffman.

  “Would I go to trial again? Probably. Life’s always a gamble. Did I learn anything? Sure. Life is also a learning experience. I never went to trial before, so the whole thing was new. I learned about different motions. I learned about defenses to homicide. I learned about rules of evidence and trial procedure. I learned about hearsay objections and leading questions.”

  Bezener rolled his eyes like a child being reminded of something for the umpteenth time.

  “I learned the difference between a state of mind and the truth of the matter. I learned about when jeopardy attaches and how you can’t be tried twice for the same crime—”

  “Is there a point to this dissertation?” Huffman said, making a display of looking at his watch.

  Tank ignored him. “And I learned about how if I’m charged with murder—or even with burglary and arson—I’ve got to give the D.A. notice that I’m going with an alibi defense.”

  Tank glanced at the now-empty jury box and at the bagged-up evidence, then turned toward the prosecutor. Tank’s face brightened as the color drained from Bezener’s.

  “But I guess he just figured that out.”

  Copyright © 2010 Steven Gore

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  Fiction

  RECOMMENDED TO MERCY

  ERIC RUTTER

  “Private Knox, can you hear me?” Captain Patrick Ainsworth said.

  The man lying on the cot didn’t respond. Patrick watched him for a moment from the doorway of the small room. Out of the corner of his eye he could see the guard standing in the corridor beside him.

  Slowly Patrick stepped into the room. “How are you feeling?” he asked Private Knox.

  Again Knox didn’t answer. He simply stared at the ceiling, his eyes glassy and blind. He didn’t seem to be aware of his surroundings.

  Patrick considered the possibility that this was something more than neurasthenia, maybe full-blown shell shock. He set his black bag down on a stack of crates in the corner and said, “I’ve come to examine you. Is that all right?”

  Knox didn’t reply. Patrick heard the footsteps of the guard moving to stand in the doorway behind him. It was the only sound in the quiet room.

  Patrick took out his stethoscope. “Unbutton your shirt, would you, please?”

  Knox didn’t move. Patrick knelt beside him and unbuttoned it himself, then laid his stethoscope against Knox’s chest. Knox’s pulse was slow and regular, his breathing normal. Patrick checked his scalp for head trauma but found none. His pupils looked fine, too, as did his ears—if a bomb-blast had rendered him deaf recently, there was no obvious sign of it. Not that anyone thou
ght that was what had happened, but Patrick wouldn’t be surprised if Knox had had a near-miss lately. That was why they called it shell shock, after all.

  Patrick sat back on his haunches. He said, “People are worried about you, Private. They wanted me to make sure you’re all right.” When Knox didn’t react, he asked, “Do you know where you are?”

  He got no response.

  “Do you understand you’ve been convicted of murder?”

  Again Knox didn’t react.

  Patrick sat and watched him for a while. Finally he put his stethoscope in his bag and moved to the door.

  Once he was out in the corridor, he asked the guard, “Has he been eating?”

  “No, sir,” the guard said. “At first he did but not anymore.”

  “He never moves or talks to anyone?”

  “No, sir.”

  “How did you get him to his court-martial, then?”

  “He wasn’t this bad then. Me and another man took him by the arms. Once we got him up, he walked between us. Sort of.”

  Patrick looked into the makeshift cell again. Absently, he realized the room must have been some kind of closet originally. Some of the buildings on this old farm had been bombed so badly, you couldn’t tell what they used to be, but this one had obviously been the farmhouse. Now it was serving as regimental headquarters.

  He thanked the guard, then turned and headed for what must have been the old master bedroom at one time. Now it was Colonel Browning’s office.

  He found Colonel Browning seated behind his desk, talking with Major Olmstead, the officer in command of Private Knox’s rifle company. Patrick stopped just inside the doorway, waiting for the colonel to notice him. When he did, Patrick saluted.

  Colonel Browning said, “Well?”

  Patrick stepped forward. “Sir, Major. I’ve examined the prisoner. He’s catatonic.”

  “What does that mean?” Colonel Browning said.

  “He doesn’t move or speak or respond to external stimuli.”

  “Hell, Captain, we knew that before.”

  “I realize that, sir. You said it came over him as soon as he was arrested?”

  Major Olmstead said, “That’s right. He was fine the day before he murdered Corporal Daly. By the time we brought him here, he wouldn’t talk anymore. Now he just lays there.”