Anatomy of a Murder (56 page)

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Authors: Robert Traver

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“In cases where rape is an issue, then, the jury must believe that the offense was accomplished by force and against the will of the woman; and that there was the utmost reluctance and resistance on her part or that her will was so overcome by fear that she dared not resist. If consent to intercourse is made by the woman through mere lust or weakness of will, without any threat being made or without fear of consequences if she resisted, then the offense would not be rape; but if sexual intercourse is had with a woman and she did not willingly submit to such intercourse but submitted because of threats made against her if she did not yield to such intercourse and through fear and apprehension of dangerous consequences or great bodily harm, and her mind was so overpowered by fear that she did not dare to resist, then the offense would be rape, although she may have made little or no overt physical resistance to such connection.”
The Judge glanced at the clock and went on with our requested instructions, speaking faster. “There is also evidence that later the same evening the deceased may have again assaulted the wife of the defendant with intent to rape her. The statute creating and defining this offense, so far as the same is material here, provides: ‘Any person who shall assault any female with intent to commit the crime of rape, shall be guilty of a felony.' An assault is defined as an attempt or offer, with force and violence, to do corporal hurt to another. The
essential elements of this offense, then, are an assault made with intent to commit the crime of rape. In such cases the jurors must be satisfied, before they could find such an offense, that the man intended to gratify his passions on the person of the woman at all events, notwithstanding her lack of consent and any resistance on her part. Where such an assault has been made with the unlawful intent mentioned in the statute, it is no defense that the man thereafter abandoned or failed to accomplish his purpose.
“If you are satisfied from the circumstances detailed in evidence here that the deceased did later make a further attempt to have sexual intercourse with the defendant's wife, and that he did this with the intent to accomplish it at all events by his strength and power, against any resistance which might be offered to him, then he would have been guilty of assault with intent to commit rape, no matter whether he actually committed the rape or not.”
The Judge droned on. “There has also been some medical and other testimony here on the subject of whether or not any seminal fluid or male sperm did or could pass from the deceased onto or into the body of the defendant's wife. In this regard I charge you that the presence of seminal fluid or sperm is not controlling on the question of whether or not the deceased raped the defendant's wife. Under the legal definition of rape that offense may be complete without the presence of seminal fluid or sperm because any male penetration, however slight or fleeting, is sufficient to constitute rape under our law provided that the intercourse was had against the will and without the consent of the woman. On the other hand the mere presence of seminal fluid or sperm does not of itself necessarily make every sexual intercourse a rape where the intercourse is in fact had with the consent of the woman. Once, however, that the sexual intercourse amounts to rape, as I have defined it, I charge you that it is not necessary that the man reach a sexual climax.”
The Judge sighed heavily and took another drink of water. He had now given thirteen of our requests and if our luck held he should now pass to the right of our man to go and “grab” Barney that night. As the Judge droned on all I would have needed was to watch the spreading grin on Parnell's face to know that all was well.
“It is claimed here on behalf of the defendant that he left his trailer that night and went to the hotel bar with the intention of apprehending and arresting the deceased. In this connection I charge you that it is the law of this state that a private person—that is, a person who is not a policeman or other peace officer—may make a
legal arrest without a warrant when the person to be arrested has actually committed a felony even though such felony did not occur in the presence of the private person seeking to make the arrest.
“Therefore, if you believe here that the deceased did actually commit one or more felonies earlier that night (and in this connection I repeat that rape and assault with intent to rape are both felonies) then the defendant here had the legal right to go and seek to arrest the deceased without a warrant, and this right would apply to the defendant even if he were a perfect stranger to the proceedings here and was no relation whatever to the woman victim in this case.
“A private person may also make an arrest without a warrant on suspicion of a felony, but in such a case he must be prepared to show in justification that a felony actually had been committed, and that any reasonable person, acting without passion or prejudice, would have fairly suspected that the person sought to be arrested had committed it.
“I further charge you that both an officer of the law or a private person may in such cases as outlined above use such force as reasonably seems to him to be necessary in forcibly arresting a felony offender or in preventing his escape after such an arrest, even to the extent of killing him. He must, however, first announce his purpose to arrest the person he seeks to arrest.”
Claude Dancer stirred and glanced uneasily over my way as the Judge continued. “On the other hand there is no claim here that the defendant actually did arrest the deceased, or announce his purpose to make such an arrest, or that he shot the deceased in order to make such an arrest or to prevent his escape. Rather it is claimed that the defendant here in the meantime became temporarily insane with the fatal results that followed. However, you should carefully consider the foregoing charges I have just given you bearing on the subject of the right of the defendant to arrest the deceased as bearing on the important question of the
intent
with which he went to the tavern. If he went there with the intent to kill the deceased rather than to arrest him, then, if he were otherwise legally responsible, the offense is murder; but if he went there with the lawful intent to arrest him and not with the intent to kill him, and thereupon became insane as I have defined that term, then you should acquit him.
“While I am on the subject I should also charge you and do, that whatever the intent or motive you should find the defendant possessed when he went to the tavern, and even if you should find that
he went there with the unlawful intention of killing the deceased, that if you should further find that he was legally irresponsible at the time the alleged offense was committed, that is, insane, then you should acquit him.”
It was my turn to glance at Claude Dancer as the Judge pressed on about the right of the Lieutenant to carry a gun the night he shot Barney. “There has been some testimony offered and argument made here that the defendant might have been guilty of carrying an unregistered and concealed weapon on the night in question contrary to the law of Michigan. Now it is true that in this state it is required by law that the average citizen register any pistol possessed by him and it is also made a felony for the average citizen to carry a weapon concealed upon his person or elsewhere without first obtaining a license to do so.
“But in this regard I charge you, regardless of what you may have heard here to the contrary, that the Michigan pistol registration and concealed weapon laws do not apply to the defendant in this case. They do not apply here because our Michigan statutes on these subjects expressly provide that the provisions thereof, and I quote, ‘shall not apply … to any member of the army, navy or marine corps of the United States …' In other words Lieutenant Manion as a member of the United States Army was exempt from the provisions of these laws and he had a lawful right to carry an unregistered and unlicensed concealed weapon upon his person on the night in question, and under the law it made no difference whether he was on duty or off duty. So I repeat that regardless of what you may have heard here to the contrary, that is the law in this state.”
The Judge closed his portfolio and removed some papers from another folder. I glanced at Parnell and he grinned and looked quickly away. The Judge had not only given all seventeen of our requested instructions but had measurably improved on one of the crucial ones, the one about the psychiatric examination.
The Judge proceeded to charge the jury on some necessary legal odds and ends, including the expected charge on how the jury might treat the testimony of a witness it found to be lying. “At least,” I thought, “this can work as well against the testimony of Duke Miller as it can against the Lieutenant's.”
The Judge sat erect and placed his big hands out flat in front of him. “I now draw near the end of my charge. I charge you that you cannot find this man guilty of anything if you find him insane as I have defined it. On the other hand you must not infer that because
a man acts frantically or in a frenzy that he is therefore laboring under irresistible impulse or any other form of insanity. Insanity must always be separated from passion or anger or our courts will simply become public arenas wherein to acquit murderers.”
The Judge glanced at the clock and pressed on. “Your first duty upon retiring to your jury room will be to elect one of your number foreman.” The Judge smiled. “In view of the lateness of the hour and the oppressive length of my charge—not to mention the dilations of counsel—I suggest you sharply limit your respective electoral campaigns for that once … . Your foreman will announce your verdict.
“Next you should discuss all of the facts in the case. Then you may consider and apply the law as I have given it to you, to the facts as you may find them, and thus try to reach a verdict. You may reach one of five verdicts. If you find the defendant guilty of murder in the first degree, then bring in such a verdict; if not you should next consider murder in the second degree. If your decision is guilty of this then bring in such a verdict; if not you should next pass to manslaughter. If after due deliberation you cannot find guilt here, then bring in a verdict of not guilty by reason of insanity or plain not guilty.”
The Judge looked down at Clovis Pidgeon. “Mr. Clerk,” he said, “please reduce the jury from fourteen to twelve.”
Again Clovis' hour had arrived and he arose, white-faced, and returned all fourteen of the jurors' name slips to his box and shook it elaborately and drew out the first name. I held my breath hoping my favorite juror would not be banished. “Mrs. Minnie Leander,” Clovis called out, and the thyroid-afflicted lady with the look of perpetual astonishment was doomed to pass forever out of my life.
“Thank you,” the Judge said as, uncertainly, she left the jury box, perhaps for once during the whole trial at last truly astonished.
Clovis again shook his box and pulled out another slip. “Arsene LaForge,” he called, and poor Arsene was also hustled off to the showers along with the Judge's thanks.
“Swear an officer,” the Judge said, and Max's chief deputy, Carl Vosper, marched forward and raised his hand and was sworn by Clovis in words that were probably ancient when Sir Thomas Malory was a child. “You do solemnly swear that you will, to the utmost of your ability, keep the persons sworn as jurors in this trial in some private and convenient place, without meat or drink, except water, unless ordered by the court; that you will suffer no communication,
orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless ordered by the court; and that you will not, until they shall have rendered their verdict, communicate to anyone the state of their deliberations or the verdict they may have agreed upon, so help you God.”
“I do,” Carl Vosper said, and he turned and beckoned the remaining jurors to arise and follow him to their room.
“Mr. Sheriff, will you please see that the jurors are fetched some supper,” the Judge said, “after you recess the court.”
“Very well, sir,” Max answered, and he arose and pounded the crowd to its feet. “This Honorable Court is recessed until the verdict of the jury or the further order of the court.”
After the jury had filed out I manfully resisted the impulse to crawl up on my table and stretch out and sleep. The nightmare was over for weeks, and especially since the start of the trial, my goblin-ridden slumber had been little more than a fleeting and uneasy doze. I felt too weary even to talk, and I sat there with listless arms hanging at the sides of my chair, staring up vacantly at the pigeon-spattered skylight. Laura and the Lieutenant were restless and excused themselves and went out to the conference room for a smoke. My head nodded forward and then I sat bolt upright in my chair. Parnell came hovering over me like a brood hen and bent and whispered to me. “Better go sit in the car for a while, boy,” he said, nudging me. “I'll keep the vigil and call you.” He plucked away at my coat sleeve. “G‘wan, scat you now, lad, before you up an' start snorin'.”
I nodded my head gratefully and silently got up and lurched downstairs through the buzzing and milling knots of people and out to my car. I slumped down and sat staring sightlessly out at the stone foundation of the courthouse boiler room, studying the fudge-like whorls of ancient cement oozing from between the massive foundation rocks. I was both worried and desperately tired. After a long arduous trial one is not only physically exhausted, but the overchumed mind itself grows buttery and numb; the goaded emotions are whipped to a watery whey; there is simply nothing more to give—one is at last not unlike a battle-scarred old boxer finally reduced to a sparring bag. Added to all this was my growing anxiety over the outcome of the case. I yawned until I thought the state was permanent; my eyelids grew heavy; my head nodded on my chest; and, lo, it was twilight and I was lying on a pine-scented hill overlooking a beautiful trout pond … . Ah, the dimpling plash of the trout made such pretty out-curling rings … . But how had the sweetly solemn face of Mary Pilant suddenly blotted out the scene … ?
Someone was shaking me. Darkness had fallen. “C‘mon, Polly, the wake is over, the jury has knocked. They've finally reached a verdict.” It was Parnell, chucking me under the chin. “Come, boy, up—this is it. The Judge an' everybody's waitin'.”
The courtroom was deathly still, bathed in an eerie coppery glow from the old serpent-headed brass chandeliers foaming out of the ceiling. The frugal statesmen on the board of supervisors refused to replace them; they had provided us noisy garrulous lawyers with a free public arena for our fulminations, hadn't they? Surely
we didn't also expect to see … ? It was ten minutes past nine. Everyone was in his place, as tensely still as spectators at an execution. As Judge Weaver saw me speed to my table he nodded quietly at the bailiff. “Bring in the jury,” he said, and the bailiff departed.
Tension had hung over the courtroom all week, sullen and heavy, like a blanket of smog, but now it sprang suddenly alive, almost intolerably so, leaping and darting, obscenely fingering and probing the farthermost crannies of the tall chamber with the speed of forked lightning. Tension … I seemed plainly to hear its high electric whine, sounding so much like the siren song of my childhood, the piping of my private Pied Piper, when, disobeying my mother, I had been repeatedly drawn by a magnet to the forbidden iron mines, a tiny but resolute trespasser, there to stand hour on end listening dreamily to the music not yet written—the strange troubled music of the humming high-voltage transmission lines. I moistened my dry lips. My knotted stomach relaxed convulsively and suddenly I had burped, mightily and unmistakably, putting to shame the recent glottal indiscretion of the hiccupping lady onlooker. But no one heeded, so lost were all of us in listening to the wild ascendant banshee wail of mounting tension.
It seemed an eternity before the bailiff breathed open the heavy jury door and stood aside for the jurors to file in. My heart leapt as I saw my favorite Finnish juryman heading the procession. The leader, I knew, was usually the foreman. But, good God, could I have been wrong about him all the time? Could he have been one of those weathervane jurymen, those chameleon sponge-like ones who absorbed and held best the last argument he was exposed to? Had the testimony of Duke Miller caused a last-minute big switch? A thousand doubts assailed me, my thoughts shuttled and fluttered like those, it is said, of a drowning man. The tired jurors formed a ragged semicircle across the front of the Judge's bench, a jaggedly fateful half-moon.
The Judge held up his hand. Despite the crowd his voice boomed out hollowly like that of a midnight train dispatcher in an empty depot. “I warn all those present not to interrupt the taking and acceptance of the verdict,” he declaimed sternly. “I will stop the proceedings and clear the courtroom if there is any demonstration or interruption during that ceremony. I have warned you. Proceed, Mr. Clerk.”
Clovis Pidgeon arose and faced the jurors. This was his final role
of the case. His high tenor voice rang out unnaturally loud in the tall courtroom. “Members of the jury, have you agreed upon a verdict and, if so, who will speak for you?”
“We have,” my juryman said, taking a step forward. “I am the foreman.”
“What is your verdict?” Clovis said, the frowning Judge still holding up a warning hand.
“We find,” the foreman began, and his voice cracked, and he cleared his throat and began again. “We find the defendant not guilty by reason of insanity.”
There was a stifled punctured sigh as Clovis quickly pressed on. “Members of the jury,” he intoned, “listen to your verdict as recorded: You do say upon your oaths that you find the defendant not guilty of the crime of murder by reason of insanity? So say you, Mr. Foreman? So say you all, members of the jury?”
The twelve jurors solemnly mumbled yes and nodded their heads affirmatively. The lowering of the Judge's hand seemed a signal for chaos: the courtroom suddenly burst alive like a sea in a lashing typhoon. The dikes of tension had finally broken. The clamor pounded in on mounting wave upon wave. Everybody was standing now. Laura threw her arms about the Lieutenant and wept. The flushed Lieutenant held out his hand behind her back and I took it. I glanced back at the clock. It was 9:17. A strange beady-eyed little woman who looked like an unkempt French poodle suddenly vaulted the lawyer's rail—she wore no pants, I observed with fascinated honor—and threw her arms wildly about Laura and the Lieutenant and tried to waltz them around. She turned and lunged at me but I ducked and, frustrated, she tackled the jury foreman, who grinned and winked at me over her shoulder. Parnell stood white-faced and blinking by his chair, biting his tremulous lip. The court reporter sat bowed over his desk working a crossword puzzle and looking endlessly bored.
Claude Dancer was the first to reach me. He pumped my aching hand and cupped his free hand to my ear. “Congratulations, Biegler!” he shouted. “You're a worthy opponent, damn you.”
“Thanks, Dancer,” I shouted back, smiling. “That goes for you, too —double.”
Mitch gave me his hand and smiled and said something and backed away. He grabbed the Lieutenant's hand and pumped it and turned away. Then the city newspaper men were upon us, exploding their flash bulbs like happy anarchists, either oblivious or heedless of the
Judge's earlier injunction. “Over this way, Lieutenant,
please … .”
“Hey, look this way, Biegler …” their plaintive exhortations ran. “Can't you smile, man?—you won, damn it, you won … .” “Will you please take off those glasses, Mrs. M … ?” “Let's get a pic of the jury … .” “Where in hell is the neon-lit dog? … Let's go find the goddam mutt … .”
The Judge, shaking his head ruefully, was monotonously banging his gavel amidst the fitful heat lightning of the photographers. Smiling Max was banging his gavel wildly, anywhere, like a hopped-up vibraphone player at a pre-dawn jam session. The swells and organ rolls of noise gradually, spasmodically, subsided; the stormy courtroom finally fell silent. The silence grew oppressive, almost worse than the noise. The Judge addressed the jurors.
“Thank you, ladies and gentlemen, for your loyal and attentive service in a long and difficult case,” he said soberly. “You have deported yourselves well in one of the highest duties and privileges of citizens in a democracy.” He looked at the clock. “I guess there is no more to say. You will be excused from further duty until Monday morning at nine o'clock.”
The Judge nodded his head gravely and looked out at the milling newspaper men. “I admonish the worshipers of Daguerre present to please transfer their photographic calisthenics out of this room,” he said wryly. “Perhaps I should add that any who disobey this order will spend at least the night as the guests of our hospitable sheriff whose amiable motto is, I am informed: ‘An innerspring mattress in every cell.'”
As the jurors slowly filed out their door, followed by the eager wolf pack of retreating photographers reloading their cameras, some of them glanced back at the scene. I nodded slowly at my favorite juryman and he grinned and lifted and shook both cupped hands at me. When the tall door finally closed behind them the Judge cleared his throat and addressed counsel.
“Gentlemen, as all of you well know, the law now enjoins upon me, under this verdict, the unpleasant duty of sending this man away until he is pronounced sane. It is a dilemma all the more sharpened by the fact that two otherwise violently disagreeing psychiatrists agree on this one thing: that the man is now sane. It so happens that I too think he is sane, as I believe you do, and it strikes me as a travesty on justice that I should be compelled to send this man away.” The Judge paused. “As a matter of fact I don't intend to do so; and I don't intend to do so because the law also wisely says that
no one shall be compelled to do an idle thing. Certainly it would be idle to send this soldier away; moreover it would be vicious and vengeful. Yet this man is technically still in custody.” The Judge again paused and drew a deep breath. “Gentlemen, I shall be glad to entertain a writ of habeas corpus for his release from custody. Despite the lateness of the hour I am willing to proceed with it now if you men are also willing. The jury has spoken and I personally greatly dislike seeing this man spend another night in jail.”
I had flopped in my chair but I quickly arose. “I already have such a writ and supporting papers filled out and ready to serve,” I said. (During the week the ever-planning Parnell had prepared them on a hunch.) “If the People will agree I am willing to proceed now.”
Claude Dancer whispered briefly with Mitch and quickly arose. “We agree, Your Honor, that this man should not be sent away,” he said. “We further agree that he should not spend another night in jail. I therefore suggest that we proceed.” The little man paused and hacked his throat. “Moreover, in the interests of speed I further suggest that counsel now stipulate and agree upon the record that a transcript of the psychiatrists' testimony given at the trial to the effect that he is now sane be filed in the habeas corpus proceeding and that the man be released tonight. For my part the court and Mr. Biegler and Mr. Lodwick can complete any further papers and proofs at their leisure next week.”
“A generous and sensible suggestion, Mr. Dancer,” the Judge said, nodding. “We will proceed at once. Mr. Court Reporter, if I may impose upon you to temporarily forsake your crossword puzzle and take a stipulation … .”
 
In seven minutes by the courtroom clock Lieutenant Manion was a free man. Detective Sergeant Durgo came over and shook hands all around and then smilingly thrust the lüger at the Lieutenant. “This belongs to you, fella,” he said dryly.
The Lieutenant blinked his eyes and quickly drew back. “Give it to my lawyer,” he said. “As a memento … . I—I guess maybe he's earned it.”
I found myself standing holding with two fingers the gun that had killed Barney Quill. “Thanks,” I said uncertainly, gingerly dropping it in my brief case. “I trust, Sergeant,” I said, “that you and Claude Dancer will let me smuggle this thing home without pinching me for carrying concealed weapons.”
The Sergeant nodded and wryly laughed and, saluting, went on his
way. Laura and the Lieutenant went over to the jail to get his things and check out. We were to meet later. The courtroom was now nearly deserted except for a straggler or two and Smoky Madigan and his mop and steaming pail and Parnell and Maida and me. I lit a cigar and sat stoically stashing my papers away.
Parnell was at my side. “Well, boy, you did it, you really did it,” he said huskily, resting his hand gently on my shoulder. “You were magnificent.”
I looked up at the tired old man. “We did it, Parn,” I said quietly. “Never forget that, my friend. We did it.”
The Judge appeared in the tall doorway of chambers in his street clothes and topcoat, wearing his large square-set gray fedora hat and carrying his scuffed and swollen brief case. As he stood there, silent and thoughtful, he looked like a granite personification of Law. I left Parnell and went over and took his extended hand.
“Congratulations,” he said, squeezing my aching hand in his paw. “Congratulations on winning one of the strangest and most oddly brilliant criminal prosecutions I've ever witnessed. And I've seen a few.”
I glanced at him quickly. “Prosecutions?” I said, puzzled, fearful that the poor man had grown daft and punchy from trial fatigue. Good God, he didn't take me for Claude Dancer, did he?

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