Missing Witness (45 page)

“That's exactly right.”

“Then by all means,” Will said, “if you have that object with you today, please retrieve it and examine it for as long as it takes for you to refresh your recollection.”

Rosetti walked quickly over to the aluminum case, slid back the bolt, and opened its doors. As he reached in, Virgil MacPherson pounced.

“Objection! Objection!”

His right hand and index finger were pointing at the aluminum box, waving frantically.

“That is out of bounds. The court ruled that this can't come into evidence. Whatever is in there has to remain in there—and I do not want the jury to see anything contained within that box. And if they do, then I want a mistrial, Your Honor!”

Will stepped back from the podium with his hands calmly clasped behind his back.

“Your Honor, I see no basis for an objection by Mr. MacPherson.”

“To the contrary. Very much to the contrary,” Judge Gadwell retorted gruffly. “I thought I ruled…and made it very clear…that whatever is in that box cannot be introduced into this case as newly discovered evidence.”

“Well, Your Honor,” Will replied firmly, “we're not asking that it be received into evidence as an exhibit. Rather, I'm relying on our ability, under Evidence Rule 612, to use it to refresh the memory of a witness while he is testifying. Dr. Rosetti indicated that he needed his recollection refreshed about the configuration of this object, that the object is here in court, and to review it would, in fact, aid his memory and his ability to describe it and testify about it.”

MacPherson grabbed his evidence code and quickly flipped through the pages.

“Your Honor,” MacPherson said after reviewing the rule, “this is nothing but a lawyer's trick—”

“Well, then the state of North Carolina,” Will responded, “as well as every other state in the union and the federal court system, is engaging in lawyer's tricks. Because they all have a similar rule allowing a witness to have his recollection refreshed by anything that would so aid it—including an object he is seeking to describe that is central to the issues of the case.”

MacPherson tried to begin a counterargument, but Gadwell raised his hand for quiet. Nearly a minute passed as he consulted the evidence code, rubbing his forehead as he did.

“All this is fine and good,” the judge said, “and I'm reading Rule 612. And it certainly seems to apply. But it does not answer the question as to
what happens when a judge, such as myself, has given a ruling that certain evidence will not be introduced. In effect, a motion
in limine
was granted here—or at least to the same effect…so that certain evidence—namely whatever is in that metal box—is not going to be received into evidence.”

“Your Honor,” Will said softly but emphasizing every word, “this is the time. It happens in almost every case. Where one ruling will determine the outcome—whether it will rest on the foundation of justice or on the uncertain ground of facts hidden or truth distorted. There is an old Chinese proverb—it goes something like this, ‘Even the faintest ink on a document is clearer than the best memory.' Of course, we're not talking about a document here—we're talking about an object found in an eighteenth-century ship. In the exact place where Isaac Joppa said he had been imprisoned by Edward Teach. But it is an artifact that, like an ancient document, seeks to tell us the story of Isaac Joppa's life. This ancient object, just as surely as if it were a letter in the faintest ink, tells us a tale that is still legible, even after several centuries—the truth about Isaac Joppa. The truth about this case.”

Will walked slowly to the podium and rested his hands there, looking at Judge Gadwell.

“The question is yours, Your Honor—whether we can really do justice here today without heeding this message, buried for centuries but now revealed, I believe, by the hand of Providence.”

64

J
UDGE
G
ADWELL STARED AT THE METAL BOX
on the counsel table. Then he glanced again down at Rule 612 in the evidence code that lay before him. He gave a heavy sigh, moving his head almost as if he were both shaking and nodding it…in perfect equipoise of indecision.

Will Chambers spoke simply.

“If it would help, Your Honor, both sides could file legal briefs on this issue for your further deliberation. I have a huge amount of legal research that backs my position. I believe that it may not only clarify your ruling, but also sharpen the issue and—in the event you rule adversely to our position—would assist us in presenting the issue on appeal.”

“I would like to get this case submitted to the jury today…” Judge Gadwell said, his voice trailing off.

He glanced at the clock. Then he stared at the evidence code in front of him. Then he ruled.

“Dr. Rosetti…”

“Yes, Your Honor.” Rosetti was poised over the box.

“If it would assist you in the testimony and in refreshing your recollection, you may examine the object…whatever it is…”

Will glanced at the jury. The construction company president was staring intently, his eyebrows lowered. The rest of the jurors were slack-jawed and wide-eyed—all except the elderly widow. She was smiling politely as she had throughout the trial.

In a few seconds Rosetti and his research assistant were pulling out a large, clear glass box—much like an aquarium. It was filled with liquid. They set it on the counsel table next to the aluminum case.

Everyone in the courtroom was straining forward to examine its contents. Blackjack Morgan was actually standing on one of the benches to get a better view.

The tank appeared to contain a corroded metal band, approximately fourteen inches long. Attached to it was a chain—and at the end of the chain was another object.

Rosetti studied it, then walked to the markerboard and drew a picture.

“What is the long, thin object you've drawn that appears to be a band?” Will asked.

“That is a portion of a metal hoop that encircled one of the barrels we recovered.”

“Dr. Rosetti, do you recall which barrel in particular this hoop encircled?”

“Yes, distinctly,”

“Fine. We'll return to that issue in a minute. Now you've drawn a portion of a metal hoop from a barrel. What is the chainlike object attached to the hoop?”

“It is exactly as you have described…a chain. The links are metal, almost certainly iron.”

“And lastly—” This time Will half-turned to the jury.

“What is the object you drew at the end of the chain?”

Dr. Rosetti took a step away from the board, smiling broadly at Will Chambers.

“Connected to the end of the chain?”

“Yes. Dr. Rosetti, what is that object?”

“That, Mr. Chambers, is a manacle. A wrist manacle to be precise. An eighteenth-century version of what we would call handcuffs today.”

Will sensed movement, even hushed muttering in the jury box. But he kept his attention riveted on the witness.

“One last question, Dr. Rosetti,” Will said. “And by the way…you may resume your seat in the witness stand.

“Final question—about the barrel to which this hoop, chain, and manacle were attached—you will recall I had asked whether you remembered that particular barrel?”

“Yes, I recall that,” Rosetti said with a broad smile.

“Were you able to determine the contents of that barrel?”

“Yes, I was.”

“Before I ask you the last question—did I provide you with a copy of the testimony of Isaac Joppa before the Central Criminal Court in the Old Bailey, London, England?”

“Yes, you did. And I read it all.”

“And did you read the transcript of the comments of the pirate Caesar before the Williamsburg admiralty court at the trial of Teach's crew?”

“Yes. I read that as well.”

“And you recall what Isaac Joppa said in his testimony about the contents of the barrel to which he was fettered during his imprisonment in the hold of Teach's ship?”

“Oh, yes—I remember it quite well,”

“Now, Dr. Rosetti, would you tell the jury—right now—what you recovered from the interior of the barrel to which the hoop, chain, and manacle were attached, when you found it within the sand ballast of the wreck of the
Bold Venture
?”

“Yes, I'd be glad to,” Rosetti said.

He lowered his head a bit and then gave a funny little laugh. Then he looked up at Will Chambers.

“Fine china plates from the eighteenth century.”

“Just as Isaac Joppa described in his testimony in the Old Bailey?”

“Mr. Chambers,” Rosetti said with a thoughtful look, “it was all…all of it…
exactly
as Isaac Joppa described in his testimony.”

“Thank you, Dr. Rosetti,” Will said, concluding his direct examination.

As he walked back to the counsel table, he stopped momentarily in front of Virgil MacPherson's position. “Mr. MacPherson—you may examine the witness.”

MacPherson charged up to the podium and immediately began dealing out some verbal body blows. He questioned Rosetti's objectivity, arguing that Rosetti's fight with Blackjack Morgan in the salvor-in-possession case involving the
Bold Venture
somehow tainted his opinions in this case—since Morgan had a third-party interest in its result.

MacPherson accused Rosetti of harboring a personal and professional “grudge” against Morgan and anyone else who would interfere with his salvaging of the
Bold Venture
.

And then he aimed his invective at the eighteenth-century artifacts that still rested on the counsel table of the opposing party.

“You have not even scientifically tested the material of which those objects is made…is that correct?”

“That's correct. No ocean archaeologist with a brain in his skull would attempt that at this early stage. We have to maintain a chemical equilibrium in the solution designed to preserve the objects. We still have to remove some encrustations. And that's a very delicate process as well.”

“But if I had my own archaeologist here today,” MacPherson said, his voice now rising to a level just below a shout, “you wouldn't even permit
him to dip his hands into this tank and start scraping away—because of the high probability that the object might disintegrate?”

“There, Mr. MacPherson, you're absolutely correct.”

“So, as a result—strictly speaking, as a scientist—you cannot really say what this object is…or what it's made out of.”

“Wrong,” Rosetti snapped. “These are manacles…wrist manacles in particular, from the eighteenth century. They're made out of a ferrous metal, probably iron. I already testified to that, if you were listening—”

But in his wild, erratic cross-examination, MacPherson had accomplished one thing. He had ignited Rosetti's temper, which placed the witness square within the judge's crosshairs.

“Dr. Rosetti,” Judge Gadwell bellowed, “that will be the last of those kinds of comments. I want no more snide remarks—no off-the-cuff criticisms—no personal attacks. You try that again in my courtroom and you
will be
confined to our fine county jail on a charge of contempt.”

Rosetti shrugged nonchalantly.

MacPherson was tempted to forge ahead—slugging, slapping, and punching. But the smart trial lawyer in him knew well enough to stop after he had landed the most critical blow of all—the judge's rebuke to the most important expert witness for the opponent. MacPherson rested his cross-examination wearing an unambiguous smirk.

Will Chambers asked no further questions, and Dr. Rosetti was dismissed.

Now, Will could only hope that MacPherson's Fourth-of-July antics had not diverted the jury's attention from the centuries-old wrist irons that lay in the clear glass tank…nor from the innocence of the desperate man who had been forced to wear them.

65

“H
AVE YOU EVER BEEN IN AN OFFICE
or the lobby of a building where you take a look at one of the abstract paintings on the wall? And you study it for a minute because your brain is not processing it. What you are looking at, is just random dots within a frame. The entire picture is merely a collection of such dots. And, for at least a few moments, you cannot visualize for the life of you what you are supposed to be seeing.”

Will's tone was casual, as if he were having a conversation—although a very serious one—with friends.

“But then you step away, a few feet back, and look again. And then it strikes you,” he continued in his closing argument to the jury. “The farther you step away, the more the portrait begins emerging. The phenomenon is this—the farther you step away, the more clearly you can see the true picture.”

Will then strolled over to the podium and clicked the control button on a projector.