The Case of the Daring Divorcee (26 page)

"I'll say it does," Mason said. "Thanks for the information, Paul. I'm going to think it over and see if I can't make something out of it."

Chapter Fifteen

As Judge Fallon ascended the bench after the thirtyminute recess, Hamilton Burger said, "If the Court please, the prosecution intends to call a witness who will identify the defendant as being a person whom he saw at a certain place. At the time, the defendant was wearing dark glasses.

"In order to be fair to both the witness and the defendant, it is imperative that at the time this witness sees the defendant for the first time in court he sees her wearing dark glasses. I am going to ask the Court to instruct the defendant to put on dark glasses during this session of the court, and to keep them on."

Judge Fallon shook his head. "I doubt that that is a fair request," he said. "Personal identification is a field in which we have far too many mistakes as it is. If we force a party to put on dark glasses it would only be a step to asking that a holdup suspect put on a mask so the witnesses could identify him."

"If the Court please," Hamilton Burger said, "many things go toward making an identification; voice, manner, the shape of the head, the manner in which a person walks. I feel that the request is reasonable."

Judge Fallon started to shake his head, then caught Mason's eye.

Mason said, "We are perfectly willing to have the defendant put on dark glasses, if the Court please, provided all the witnesses are required to put on dark glasses and wear them at the same time that the identification is made."

Burger's face lit up triumphantly. "You're willing to do that?"

"We're willing to do that."

"That seems most reasonable," Burger said.

Judge Fallon still seemed dubious. "I think counsel is putting his client in a dangerous position. The Court has seen enough of eyewitness identification of strangers to realize the fallibility of that testimony, at best. Props of this sort can make it at its worst."

"We're perfectly willing," Mason said, with a wave of his hand. "Let them all put on dark glasses."

"Very well," Judge Fallon said. "All witnesses who are in court, if you have dark glasses you may put them on. If you don't have dark glasses you may leave the courtroom temporarily.

"Call your witness, Mr. Burger."

Mason turned to the defendant. "Put on your dark glasses, Adelle," he said.

Hamilton Burger settled back in his seat with a smile.

One of the officers whispered to him and Burger said, "If the Court please, Miss Mitchell has been delayed for just a few minutes. In order to save time, I would like to put on another witness out of order."

"We have no objection," Mason said, "with the understanding, however, that as soon as Elvina Mitchell enters the courtroom she will be called as a witness and this witness the district attorney is calling out of order may step down."

"That is perfectly agreeable," Hamilton Burger said. "I call Arthur Cole Caidwell."

Caldwell, a well-built, slender-waisted individual of thirty-five or thirty-six, took the witness stand.

"Your name is Arthur Cole Caidwell, you are an aviator and have an airplane charter service here in Los Angeles?"

"Yes, sir."

"Did you on Monday, the fourth, have occasion to charter an airplane to a young woman for a trip to Las Vegas?"

"Yes, I flew her to Las Vegas and then flew her back."

"How long was she in Las Vegas in all?"

"A little over an hour."

"What time did you leave?"

"We left the airport here at five-thirty. The charter had been arranged over the telephone earlier in the day and my plane was all gassed up and waiting to take off."

"Was there anything peculiar about the appearance of this person who chartered the plane?"

"Yes, sir."

"What was it?"

"Despite the fact that it was dark for a large part of the trip, she insisted upon wearing dark glasses at all times when she was in the plane."

Burger said, "I'm going to ask you to look around the courtroom and see if you can see that same person who chartered your plane."

"Now, if the Court please," Mason said, getting to his feet, "we object to this means of identification. An identification should be made in a lineup where there are several persons similar in appearance."

Judge Fallon said, "That of course is a better way to make an identification. However, that goes to the weight of the evidence, not to its admissibility. I think a question of this sort is perfectly permissible. If the prosecution wishes to make its identification in this manner, I overrule the objection."

The door of the courtroom opened and Elvina Mitchell hurried into the courtroom.

"If the Court please," Mason said, "Elvina Mitchell has now entered the courtroom and I request permission to put her on the stand immediately in accordance with the stipulation of counsel."

"Very well," Hamilton Burger said. "I will abide by my stipulation."

Burger waited until Elvina Mitchell had been sworn and seated herself on the stand. Then he said, "Your name is Elvina Mitchell and you are employed as secretary for Huntley L. Banner, an attorney in this city?"

"Yes, sir."

"How long have you been so employed?"

"For some seven years."

Burger, carrying the photostatic copy of the will, approached the witness.

"I show you a photostatic copy of a document which purports to be a last will and testament executed by Garvin Hastings and signed by you and Mr. Banner as witnesses. Are you familiar with that document, and is that your signature?"

"Yes, sir. It is."

"Were you all three present when that document was signed?"

"Yes, sir."

"And you signed as a witness?"

"Yes, sir."

"Cross-examine," Burger snapped.Mason said, "I have here a pair of dark glasses. Would you kindly put them on?"

She stiffened. "Why should I?"

"Because," Mason said, "as you will notice, the witnesses are wearing dark glasses and that is in accordance with a stipulation made with the prosecution that any witness could be called on to put on dark glasses."

"Well, I'm certainly not a party to any stipulation. I'm not going to put on dark glasses."

"Come, come," Judge Fallon said, "I don't see the reason for this-or that is, I didn't see the reason for it at the time the stipulation was made, but this is an unusual situation. I can't see where there would be any harm resulting to this witness from putting on dark glasses."

Hamilton Burger said, "Oh, I'm quite satisfied the witness is perfectly willing to put on dark glasses. It is very apparent that Mason is trying to confuse the witness who has just left the stand, but-"

"I don't think we need to have any comments, Mr. Prosecutor," Judge Fallon said. "The witness will please put on the dark glasses."

The witness defiantly put on the dark glasses, turned her head to glare at Judge Fallon.

"That's fine," Mason said, "now will you please face me?"

She turned and faced him.

"Are you sure this is the will you witnessed?" Mason asked.

"Yes."

"Do you object to wearing those dark glasses while you are being interrogated?" Mason asked.

"I object to being ordered to wear them," she flared. "I am not a dog to be ordered around."

"Then you may take them off and hand them to my receptionist," Mason said, turning his back on the witness and walking back to the counsel table.

Elvina Mitchell snatched off the glasses, unhesitatingly took the two steps necessary to reach the jury box, handed the glasses to Gertie then hurried toward the rear of the courtroom, where she stood for a few moments just inside the door.

"Mr. Caldwell will return to the stand," Hamilton Burger said.

The aviator returned to the stand.

"Now, if the Court please, Mr. Mason has interposed an objection to my question and the objection had been overruled, so I now-"

"Oh, I'll withdraw the objection," Mason said. "It's very obvious what the district attorney has in mind. I don't think it's a fair method of making an identification but let the witness answer."

Caldwell said, as one who chooses his words with great care, "The person sitting at the bar beside Mr. Perry Mason, the defendant in the case, has a very striking resemblance to the person who chartered that airplane."

"You may cross-examine," Hamilton Burger said.

"But is she the same one?" Mason asked. "Can you swear on your oath that this person is the one who chartered the plane, or was it the person whom you previously saw on the witness stand?"

The witness rubbed the angle of his jaw thoughtfully and said, "I can't be absolutely positive."

Mason said, "Oh, just a minute. There is one more question I would like to ask Miss Mitchell. Will the bailiff try and get her and bring her back, please? She can't have gone very far."

Judge Fallon looked at Mason thoughtfully, said, "Mr. Bailiff, will you try and return Miss Mitchell to the stand?"

The bailiff hurried from the courtroom.

Mason engaged in a whispered conference with Adelle Hastings, then turned to the witness.

"Your passenger wore dark glasses all the time?" "Yes, sir."

"Both going and coming?"

"Yes, sir, all the time."

"You couldn't see her eyes at all?"

"No, sir."

"Did you see the young woman who is Mr. Banner's secretary on the stand a few moments ago?"

"Yes, sir."

"Saw her with dark glasses?"

"Yes, sir."

"Did she look like your passenger?"

The witness hesitated, then said, "Actually when I saw her I realized how hard it is to identify a woman who is wearing dark glasses. She did look a lot like my passenger. I now believe any young woman of similar build, wearing dark glasses, would be hard to identify.

"I also noticed Miss Mitchell's voice was a great deal like… Could I hear the defendant speak? That might help me make up my mind."

"So your own mind isn't made up now?"

The witness hesitated, then said, "My mind was almost made up. I had previously been given an opportunity to identify the defendant when she was not wearing dark glasses. I had said that if I could see her with dark glasses I thought I could make a positive identification.

"When I saw her with dark glasses, I felt certain but then I saw this Miss Mitchell with dark glasses and, above all, when she spoke and I heard her voice… Well, she sounded exactly like the person whom I flew to Las Vegas… I am not completely certain."

The bailiff pushed open the swinging door and said, "I can't get her, Your Honor. She saw me coming, started to run and dashed down the stairs and mingled with a crowd in the assessor's office. I lost her."

"You lost her?" Judge Fallon asked. "Couldn't you pick her out of a crowd?"

"I could recognize her all right but I couldn't catch her. She was running as fast as she could go. She's younger than I am," the bailiff said. "I tried to get people to stop her but she went right on through."

"I think," Judge Fallon said, "we will adjourn court until tomorrow morning at ten o'clock. In the meantime I would like very much to get at the bottom of all this.

"I would like to have opposing counsel meet with me in chambers, immediately after court adjourns."

Chapter Sixteen

Judge Fallon took off his robe, hung it up on a hanger in the closet, turned to Hamilton Burger and said, "What's your explanation of all this, Mr. Burger?"

Burger, coldly indignant, said, "It is simply another razzle-dazzle. The witness, Elvina Mitchell, was suffering from stage fright and didn't want to appear in a crowded courtroom. Mr. Mason capitalized on that to terrify her into flight and now he's going to use that to try and build up favorable publicity for his client."