Missing Witness (43 page)

Virgil MacPherson was beginning to walk quickly toward Dr. Clover.

“Your Honor, I need time to consult with my witness,” he said nervously, “I ask that the jury be excused so that we can continue this argument in its exclusion, and I do ask the court to permit me to consult with my witness—”

“What consultation is necessary?” Will asked sardonically. “Is Mr. MacPherson going to try to talk his own expert witness into a new opinion that contradicts what she just said? It's clear, Your Honor, that the facts from my hypothetical have been established by the record and that the form of my question was proper. And it's furthermore clear, we need an answer from this witness.”

Judge Gadwell rubbed his head, and then waved MacPherson back to his seat. Massaging his scalp and scratching his chin, he took a glance at the wall clock.

“Dr. Clover…do you have an answer to the rather convoluted hypothetical that Mr. Chambers put to you?”

“Actually, I listened very carefully. I'm pretty sure I still have the facts in my memory. He basically wants me to assume a finding of acquittal for Isaac Joppa, but with that information never being disseminated among the people in Bath, North Carolina, nor the folks in Charleston, South Carolina, which would account for Jacob Joppa's reluctance to claim Isaac Joppa as his father. And the answer is very clear—”

Virgil MacPherson jumped to his feet again.

“Your Honor, I never received a ruling from the court. I want an opportunity to consult with my client, my witness—”

“Please, Virgil. Can we please try to bring this case to a close? Your request is denied. Dr. Clover…just give us your opinion.”

“My opinion,” Dr. Clover said, pausing for just a split second and then continuing, “my opinion is that your hypothetical, Mr. Chambers, would be a reasonable explanation as to why Jacob Joppa would have lied about Isaac Joppa as his father. If folks down in Charleston did not know the truth about Isaac Joppa's acquittal in England…then it would create a motivation for Jacob not to align himself with Isaac. So you're correct in that.”

But MacPherson was not finished. He was on his feet again.

“I remember another one…I remember another one, Your Honor.”

“Another what?” Judge Gadwell said with fatigue.

“Another fact that Mr. Chambers put in his hypothetical that has
not
been established in any of the evidence of this case. Thus rendering his hypothetical defective and subject to being stricken.”

“And what fact would that be?”

“That the clerk in the magistrate's court in Bath, North Carolina, who made the entry that supposedly reflects the acquittal of Isaac Joppa—the ‘res judicata'—never told anybody about the acquittal. There's absolutely no evidence as to whether or not the clerk did nor did not tell other people about his supposed knowledge that Isaac Joppa had been acquitted.”

Judge Gadwell threw a look to Will, inviting him to respond.

“The answer to that is simple,” Will said with a smile. “The answer is—if Mr. MacPherson is correct that the magistrate's clerk spread the news around Bath, North Carolina, that Isaac Joppa had been acquitted, then what are we doing here in this lawsuit? But the clerk could not have publicized that fact because the historical documents, records, and opinions of the community would have reflected it. And to this day…to this day there is a tavern on the coast called
Joppa's Folly
, apparently alluding to Joppa's ill-fated attempt at piracy. Schoolchildren learn in their regional history classes that a local man by the name of Isaac Joppa was one of Blackbeard's gang members and was killed at the Battle of Ocracoke Inlet, shot in the back as he tried to flee with his pirate cronies. No, Your Honor, that clerk, for whatever reason—and we'll probably never know why—chose to keep that information to himself.”

Judge Gadwell sighed and drummed the fingers of both hands on his bench.

Then he cleared his voice.

“Mr. MacPherson…if I gather it correctly, you're asking that I strike the entire exchange between Mr. Chambers and Dr. Clover that we just heard. Is that correct? Do you want me to instruct the jury that they are to totally disregard it, and that the answer to the question is to be stricken from the record—correct?”

MacPherson, sensing an approaching victory, rose to his feet and smiled. “Your Honor, you've captured my objection perfectly.”

Gadwell paused, but only for an instant. Then he rendered his decision.

“In that case, your objection is noted but overruled. The question and the answer will stand. The court is adjourned for the day!”

Judge Gadwell, exhausted, slammed the gavel on his desk so hard that it bounced before coming to rest.

62

A
T THE BEGINNING OF THE FOLLOWING DAY
of trial, Virgil MacPherson announced he was resting his case. In the same breath, he moved to dismiss Jonathan Joppa's claim to Stony Island on the grounds that no reasonable jury could believe Isaac Joppa to be innocent of charges of piracy.

As had been his practice throughout the trial, Judge Gadwell reserved his ruling on that motion.

The judge then eyed Will Chambers.

“Mr. Chambers, do you intend to put on a rebuttal case?”

It was Will's intent to do exactly that—except for one problem. His entire rebuttal case would consist of the testimony of Dr. Steve Rosetti—who was to have shown up thirty minutes earlier. But there was still no sign of him.

“Your Honor, we're still waiting for our witness to arrive,” Will explained calmly as he turned to search the courtroom. “But I thought we might want to take a few minutes while we're waiting to resolve some issues that the court has yet to decide with regard to jury instructions.”

Judge Gadwell usually did not take kindly to counsel's suggestions as to how he should handle time made available because of late-appearing witnesses. On the other hand, he knew the issue of jury instructions still needed to be decided.

He reluctantly waved MacPherson and Will to sidebar, and he also motioned for the court reporter to position herself between the two attorneys so they could talk outside the hearing of the jury.

“All right. I'm going to make this short and sweet,” he explained. “I've looked at both of your sets of instructions. They are virtually identical on the substantive issues. So I'll put together something that uses both of your proposals. But, on the burden of proof…well, here's the way it lies…”

He pulled his notes out.

“Here's what I'm going to do. Virgil, your jury instructions explain that the burden of proof is on Jonathan Joppa. And Mr. Chambers, you agree with that in your proposal as well. But here's the difference. Virgil, your jury instructions explain that what that means is that Jonathan Joppa must prove, by a preponderance of the evidence, that Isaac Joppa was actually and factually innocent of the charges of piracy. Mr. Chambers, your jury instructions say that the burden of proof can be satisfied by your simply proving, by a preponderance of the evidence, that there is a
reasonable doubt
about Isaac Joppa's guilt regarding charges of piracy. Mr. Chambers, I reject your proposal. In order for Reverend Joppa to get Stony Island, I am ruling—and I will so instruct the jury—that you must affirmatively prove the innocence of Isaac Joppa. I know that's a heck of a tough burden…extremely hard to prove. But that's what I'm making you do. I think that's what is reasonable and what is called for under the law. Now, I think that's all…”

But something at the back of the courtroom distracted the judge, and he looked up with bewilderment.

The court reporter stopped typing. Virgil MacPherson jerked his head around to look, so quickly that he risked whiplash.

At the open doors of the courtroom two men with hooded yellow rain slickers, dripping wet, were awkwardly making their way into the courtroom, each carrying one end of a large aluminum box.

A murmur broke out among the jurors and some of the audience.

“What in the world…” Judge Gadwell gasped.

“Your Honor,” Will said reassuringly, “this is my witness. If I can have a few minutes with him in the back of courtroom, we will be ready, I think, to proceed with my rebuttal case.”

Will hastened to the back of the room.

Dr. Steve Rosetti and one of his research assistants carefully placed the large aluminum box on the floor. Rosetti pulled back the hood of his rain slicker and shook the water out of his hair.

“Sorry I'm late,” he said with a big grin. “Some bad weather just blew in.”

“So what can you tell me?” Will said with a grin, “Other than the fact that you look like you're doing a TV ad for frozen fish filets.”

Rosetti flashed a wide, smart-aleck grin. “Oh, yeah,” he said, hardly containing his enthusiasm, “I've got a special delivery for you. And it ain't chicken-of-the-sea.” He started laughing, and he slapped his assistant on the back.

“Dr. Rosetti,” Will said, “you're going to have to explain…what's in here?”

Rosetti swung the lids of the metal box open so that Will could look in.

Will stared. Finally, his eyes widened, and he broke into a wide smile.

“I want to take a look inside there.” Virgil MacPherson had made his way across the courtroom and was now standing behind Will. “If you're going to pull some monkey business in this courtroom, I'm going to see what it is you're planning on introducing.”

Rosetti quickly snapped the metal covers of the box shut.

“This is a private party, MacPherson. And you're not invited.”

“Rosetti, this has nothing to do with you,” MacPherson snapped. “This is a court of law, and I'm going to see this evidence before you start parading it in front of the jury!”

Will swung around quickly.

“Go back to your counsel table, MacPherson. I'll be advising you and the court what we're going to do with Dr. Rosetti's testimony and our new evidence.”

But MacPherson stood his ground, alternately glaring at Will and Dr. Rosetti.

“Sit down, Virgil,” Will said even more firmly.

Judge Gadwell, observing the interaction at the back of the courtroom, had had enough.

“Will someone please tell me what's going on?” Then he ordered the clerk to excuse the jury. The six jurors stood up, transfixed by the large silver aluminum box on the floor, and the argument of the three men at the back of the courtroom.

The jurors were taken to the jury room, and the door was closed.

Will asked Dr. Rosetti to strip off his slicker and move the large aluminum box to Will's table.

Then Will approached the podium to address the court.

“Your Honor, this is Dr. Steve Rosetti. He is the expert in our rebuttal case. He's here to address, specifically, Dr. Wilson Auger's testimony regarding which ocean archaeological artifacts may or may not have a bearing on this case.”

“And I want to know what's in that metal box…” MacPherson said, charging up and positioning himself next to Will.

“What's in the box?” Judge Gadwell asked, his face that of a tired jurist whose desire now was merely to control the lawsuit in this courtroom at almost any cost.

Will began to explain. “Dr. Rosetti, less than twenty-four hours ago, recovered an artifact that directly relates to the contents in the hold of the
Bold Venture
ship. We intend to have Dr. Rosetti describe this artifact and display it to the jury…and then we intend to introduce it into evidence as an exhibit.”

“Your Honor, I want to know what that is.” MacPherson bulleted.

“And I, Mr. MacPherson, first want to know whether you have any preliminary objections to my introducing this into evidence,” Will countered. “Because it's newly discovered evidence and has taken us by surprise as much as you, I'm assuming you will be willing to waive any objections to the fact that this artifact was not described on our list of exhibits at the time of the pretrial conference.”

MacPherson looked over Will's shoulder at the metal box, which now rested on top of the counsel table where Jonathan Joppa sat next to Boggs Beckford.

“My position is this,” MacPherson said with a sneer as he turned to the judge. “I don't think
any
evidence discovered recently at the
Bold Venture
site ought to be admissible. Your Honor, I'm simply remembering your words at the pretrial conference. You warned both counsel that you didn't want any last-minute revelation of new evidence…or either side trying to slip in some miraculous discovery at the last moment. That's what you said—that was your ruling. So based on that, I vehemently object to any ‘newly discovered antiquities' being introduced into this case. I've had no advance opportunity to investigate this or to get our own expert in to rebut it.”

“Mr. Chambers,” Judge Gadwell said, “what do you say to that? Virgil is correct. That's what I said at the pretrial conference. And I was adamant about it. Now I know that everybody's all excited because of this so-called discovery…and we don't even know what it is yet…but it seems awfully unfair to Mr. MacPherson here to pull this rabbit out of a hat at the last moment.”