The Just And The Unjust (51 page)

Mat Rhea coughed and said, 'Louis K. Blandy, how say you, do you find the defendant guilty or not guilty?'

'That won't do,' Judge Vredenburgh said. 'Mr. Blandy, if you find the defendant guilty, you will say what degree of murder you find him guilty of. Let's have this in black and white.'

'You want me to say it now?' Blandy asked. Judge Vredenburgh tightened the corners of his mouth with a swelling of his face that plainly contained an explosion. Abner watched him with alarm, for that was Judge Vredenburgh's expression when his patience was ended, when someone, brought in perhaps on a bench warrant, ventured to mutter at the order of the Court. Judge Vredenburgh was as likely as not to snap, 'Well, if you don't comply, the jail's always open!'

This time, however, he remained silent, eyeing Blandy, and Blandy wilted. 'Yes,' Judge Vredenburgh said then. 'The clerk has put the question. You may answer it.'

"We — I find him guilty. Murder in the second degree.'

Mat Rhea looked sidelong to the bench. Judge Vredenburgh nodded; and Mat called out, "Genevieve Shute, how say you —'

Without waiting for him to finish, and in the voice of a woman glad to speak her mind, she said piercingly, "Murder! Second degree!'

Bunting turned and walked over to Joe Jackman's desk, stepped around behind Joe and Nick Dowdy. Mat, holding his board, made room for him; and Bunting put his elbows on the bar, looking up to speak to the judges. Harry Wurts at once arose, came down past Abner at the Commonwealth's table and went in beside Bunting.

"Samuel B. Daniels, how say you —'

In the rocking instant of surprise Abner had found no time to feel anything more than the shock itself. His eye noted what those around him did, their stunned looks, the mouths opening and closing, the changes of colour and the incomplete gestures. With the mechanical progress of the poll, the law again in motion after its jolting stop, along familiar and monotonous ways, Abner had time for other feelings to take form and be recognized. He could recognize the artlessness of hurt indignation — for the jury had absolutely no right, or no moral right, to do that —and at the same time, the smart of ingenuous chagrin with which the angry mind confessed that Harry had the proper appeal, the appeal to vanity and sentimentality, and plain bone-headedness. The slick talker by his contemptible slickness had borne down Bunting's unadorned arguments.

Resenting this unfairness, Abner also felt for Marty, who was not used to being defeated — at least, not as district attorney, where the personal set-back, the loss of a case that he had worked hard on, was only a minor aggravation. Marty was ready enough to take a personal set-back philosophically, like a good sport; but he did not take liberal or sporting attitudes when a debt was owed the Commonwealth. He came here to collect it, and he would not regard the bilking of the Commonwealth by a fast talker and a foolish jury as the occasion to show how good a loser he was. Of course, anger would not mend the breach, so it was clearly better and more becoming not to show anger. This was reason; but Abner's own feelings rejected it. Reason or none, it was good to see men get angry at what they thought was wrong.

Abner regarded the pad in front of him on the table, yet in the corner of his eye he was able to observe George Stacey, and Howell, and Basso at the other table. Animation distorted Howell's face. In an ecstasy of small eloquent gestures, Howell ducked forward and pulled back, pointed his finger, chopped the air with his hand, felt his face, stuck his thumb up his nostril, all the while pouring out in furtive vehement whispers a recital made up, Abner judged, of promiscuous spur-of-the-moment boasts, complaints, self-congratulations and frenzied plans. George Stacey, looking away toward Bunting and Harry at the bar, sat with a strained smile on his lips, now and then nodding uncomfortably.

Basso's dark face showed no change at all. He looked as sullen as ever, and as contemptuous as ever of the whole proceeding. To go to death without batting an eye is a little more than most men can do; but very little more, since it only needs overweening pride, which everyone comes close to having. Abner assumed that Basso had it; but now he was not sure. It took more than bravery and more than pride to support the good fortune that Basso was now impassively supporting; and so the answer probably was that Basso was neither brave nor proud; he was merely a mental case.

Behind the defence's table, in the line of chairs between Hugh Erskine, serious and reserved, holding his full chin, and Warren Lyall, studying his hands and moving his head with slow disgusted or incredulous shakes, ranged the faces of the other parties to the crime and their counsel. Leming sat as though he had been pole-axed, his eyes glassy, his face loose, while he took in the ironic monstrous trick just played on the law's obliging servant. Leming would have the expert knowledge of penalties that is part of every convict's education. For second degree murder, Howell and Basso would get twenty years, all the Judge could give them. He, Leming, the Commonwealth's trusting friend, would have life imprisonment to reward him for his co-operation in pleading guilty. Susie Smalley seemed to have had a similar thought.

Over by Mrs. O'Hara, she was hugging herself, her haggard face turned to look down the line at Leming, rapt with hate and triumph. Between Servadei and John Clark, both smiling, Dewey Smith sat pop-eyed like the moron he was.

Bunting took his seat beside Abner, and Abner said, 'What's the Judge going to do?'

'What can he do?' asked Bunting irritably. 'Harry's moving for a new trial as a matter of form. He'll withdraw the motion in a few days and move for sentence. He wants some time to think it over; but, my God, he's satisfied! I've got to hand it to him!'

He looked bitter, and Abner said, 'I guess we did all we could.'

'Maybe,' Bunting said. He took a pencil and began to draw a dog on his pad with sharp careless strokes. He did not look up as Mat Rhea, who had been speaking to the Judge, faced the courtroom again and said, 'Robert Basso, will you please rise.'

Basso moved negligently, shifting his remote, contemptuous gaze, and got to his feet.

Abner was embarrassed for the law, which had to insist on acting out its charade although everyone already knew the answers. With a start of surprise he turned to look at everyone — those hundred or less spectators, those bitter-enders; the sovereign people, the critics of the sad show, all unnoticed until now:

They still sat there, face after face in scattered pale series across the curving slopes. The demanding watchers watched and watched, and in time their patience had been repaid; and what did they make of it? By way of answer, Abner could see them stirring, leaning toward each other, asking each other. They had their grand scene, the drama they came impertinently to enjoy, the big moment to wow those boobs; and it was all one to them. Something had happened—but what? Something was happening — but what?

'Jurors,' Mat Rhea said sourly, 'look upon the prisoner; prisoner, look upon the jurors. Members of the Jury, have you agreed upon your verdict in the issue joined —'

Still working at his dog, Bunting said, 'It makes you sore. They haven't any sense.' He tipped his head to the side and said, 'Servadei there goes back now and says it's all right, the juries up here won't convict. They'll find out!'

Abner did not know what to say. The threat was essentially a child's threat declaring to those who crossed him that some day they'd be sorry. It was not a prophecy; it was a wish. As for Servadei, he would need to be a much stupider man than he looked to report any such thing to the prominent shysters in partnership with him. He had seen a wilful jury find against law and fact, perhaps helped by Wurts (a good man to keep in touch with), but wilful juries were not the kind he and his firm wanted. They would not care to expose all the smart and careful work they put into making a guilty man look innooent to the caprice of a lot of stubborn yokels who could not be counted on to play the game according to the rules. Since Marty knew this at least as well as Abner did, the only meaning of his remark was that as he said, he was sore. If he meant that criminals, once this good news got around, would pour across the county line to commit their felonies with impunity, he was talking nonsense. All crimes by professional criminals were committed with the presupposition that they could be committed with impunity. Since the criminals were confident that they were not going to be caught, the last thing they worried about was how it would go with them when they were put on trial.

It occurred to Abner that though he could not now, and perhaps never could, match Marty's skill and experience; and though he might not have as much actual intelligence as Marty, he had a temperament better suited to meet difficulties like this. The thought came to him that if he had been district attorney in this case, he would not have summed up in such a take-it-or-leave-it way; and he could easily have brought himself to stoop to Harry's level. He did not claim that he would be as good at it as Harry; but he might have been better for the purpose than Marty; and it was just possible that that would have made all the difference.

He said, 'I think the Judge ought to say something to them.'

Bunting said, 'Irwin''s going to. A hot lot of good that will do now!'

Mat Rhea said, 'Your Honour, the jury has been called individually. They are in agreement. Shall the verdict be recorded?'

Judge Vredenburgh nodded shortly, not looking at him. 'It may be so recorded.'

Harry Wurts stood up and said, 'Now, if the Court please, I desire to make an oral motion for a new trial, also an oral motion for an arrest of judgment; and I ask leave to file reasons in support within ten days.'

Judge Vredenburgh nodded, his face grumpily turned down. 'And for Mr. Stacey, too, I suppose. The motions may be recorded. You may file formal written motions within — four days is enough. Is that all?'

'Yes, sir.'

Judge Vredenburgh closed a book he had been looking at on his desk and took off his glasses. He said, 'Before Court adjourns, the President Judge has something to say to the jurors. Everyone will remain where he is.'

Judge Irwin moved forward to the edge of his chair and set an elbow on his desk. Clenching his thin, long-fingered hand, he rested his chin a moment on the knuckles, looking down at the jurors. He moistened his lips, and said, 'Members of the Jury, you may take your seats in the box. I will be as brief as possible —' He checked himself, remembering his purpose. Unclasping his hand, he plucked his chin several times while the jurors distributed themselves.

When they were quiet, he said again, 'Members of the Jury, you anticipate, no doubt, the — ah, tenor of the remarks I now find it incumbent on me to make to you. At the conclusion of a case in which much testimony has been heard and on which a number of days have been spent, the Court often thanks the jurors for their services. In this case I do not feel that it would be appropriate to express such thanks to you; for, frankly, we do not feel that you have properly done the duty for which you were summoned; and, incidentally, for which the county is obliged to pay you.'

Judge Irwin paused, plucked his chin again, and gave them a distressed look. He said, 'The allegation that I am making is a very serious one. I will express it in as mild a way as possible, not because it isn't serious, but because I do not, I cannot bring myself to, believe that you acted with any conscious or deliberate intention to violate your solemn oaths. It may show you how serious the matter is, however, if I say to you that, had I actual grounds for such a belief, I would see no alternative but to constitute myself, as I have the authority vested in me to do, a committing magistrate, and to direct the sheriff to arrest you; and you would be held for the grand jury. I will ask you to remember that.'

Judge Irwin was silent while his shy but penetrating gaze moved over their faces. Bunting murmured, 'Affirmed as stated'. The impossibility of ever proving such intention was something the jury was not likely to know about. For all they did know, the Judge was telling them that in another minute they would go to jail, and they looked at each other with consternation, prepared to believe it.

'However,' Judge Irwin said, and he allowed a light, wintry smile to appear on his lips, 'in the absence of such proof, the Court has no right to assume that you acted otherwise than in good faith, and it does not so assume. What we must assume, then, is that you do not understand your position and your responsibilities. It is too late, as far as the present case is concerned, to remedy that. The defendants in this case may not be prosecuted further for their offence, for when they were put on trial before a jury sworn they were in jeopardy, and the constitution both of this state and of the United States forbids the courts to put any person in jeopardy twice for the same offence. Moreover, on a charge of murder, a conviction in the second degree works acquittal in the first degree.'

Judge Irwin hunched himself up a little more and put both elbows on the desk. His characteristic thin-lipped and nervous but singularly sweet smile appeared an instant on his lips again, as though to show that he had now finished with the scolding he had been obliged to give them and could go on to a pleasanter matter, which was the theory of the law. He said, 'I will not go into the history and what could be called the philosophy of the general and acknowledged principle, ad questionem juris non respondent juratores — part of an old maxim; which is to say, the jury does not find on questions of law. Both in this country, and long ago in England where our law comes from, it has been fully discussed and argued by many learned jurists and wise men. The reason that argument persists and discussion continues is not because the principle is in doubt. The facts are for the jury; the law is for the judge. That is the principle. But in practice, the law and the facts do not always constitute separate and distinct things.

'Furthermore, we always say to you when we instruct you in the law, that the facts are so and so, this is the law that applies. Now, if you do not find those facts, you have no grounds for applying that law. We are not allowed to give you a binding instruction; that is, to say that you
must
find a defendant guilty; because we on the bench are not judge of the facts. Not being entitled to decide on what are the facts, we cannot presume to say what you will find. Because of this, there undoubtedly exists a power in you, the jury, to override any law as declared by the Court, and to make your action effective by an acquittal; which, in criminal cases, we, the Court, cannot by any means set aside. That is what you have just done — of course, you did convict the defendants of second degree murder; but, as I said to you previously, that is equivalent to acquitting them of first degree murder. Is that clear to you all?'