The Case of the Demure Defendant

Chapter Fifteen

The case of the People of the State of California versus Nadine Farr was a case which in the parlance of the newspaper world “had everything.”

The defendant was universally described by the press as dazzlingly beautiful. It was known that the man who was in love with her was going to be forced to testify against the woman he had been on the point of marrying when she was apprehended. It was known that the district attorney was going to try to prove that this demure and dazzling defendant was a cold-blooded blackmailer, that she had poisoned Mosher Higley when he had rebelled against further blackmail and had refused to permit an illegitimate child who had been blackmailing him to marry the son of one of his close friends.

The case, moreover, held legal thrills. It was generally conceded that Perry Mason, as attorney for the defense, had been caught in one of his spectacular and unorthodox tricks. The district attorney might have trouble proving that Mason had “planted” a bottle containing harmless tablets in place of the cyanide which had been thrown in the lake by the defendant, but the district attorney was certainly going to try. There was, moreover, the question of whether a tape-recorded confession made to a physician while the patient was under the influence of drugs could be received in evidence.

It was freely predicted in legal circles that in this case Mason’s defense didn’t have a leg to stand on. The only thing that he could hope to do was to conjure up an array of legal technicalities and by legal legerdemain and forensic ingenuity defeat the progress of justice.

Whether or not he would be able to accomplish this was the subject of considerable speculation. The odds were ten to one against him. He was, in the opinion of courthouse attaches, in the position of the pitcher that had gone to the well once too often.

And now Hamilton Burger was moving in for the kill.

The jurors had been qualified, empaneled and sworn. Hamilton Burger made an opening statement which was a masterpiece of sarcastic invective and which closed with the statement:

“You, ladies and gentlemen of the jury, have doubtless read the statement of counsel for the defense made to the press that his client was crucified upon a cross of coincidence. The prosecution expects to prove that the defendant deliberately became a poisoner, a murderess, a blackmailer and became ensnared in the toils of her own iniquity.”

Hamilton Burger bowed to the jury and, turning, lumbered back to his seat at the counsel table for all the world like some huge, vindictive grizzly bear that had the power and the savagery to smash down all opposition.

“Does the defense wish to make a statement?” Judge Ashurst asked.

“Not at this time,” Mason said.

The judge turned to the district attorney. “Call your first witness.”

“Dr. Medley P. Granby,” Hamilton Burger said.

Dr. Granby came forward and was sworn.

“Stipulate to the doctor’s qualifications as a physician and surgeon subject to the right of cross-examination,” Mason said.

“Very well,” Hamilton Burger said. “Doctor, your full name is Dr. Medley Prosner Granby, and you are the physician who took care of Mosher Higley during his lifetime and during his last illness?”

“I am.”

“Did you see Mosher Higley as he was dying?”

“I arrived very shortly after Mosher Higley had expired.”

“What was his physical appearance at that time? What did you notice?”

“I noticed that there was a redness of the skin, that there had been a history of—”

“Just a moment,” Mason interrupted. “We object to any history so-called, on the ground that that is hearsay. I take it, Doctor, that you are now referring to something that was told you by nurses in charge of the case.”

“That is true.”

“That would be hearsay,” Judge Ashurst ruled. “Just confine yourself to the physical appearance.”

“I noticed a peculiar redness of the skin. I noticed that the man had evidently been drinking chocolate when he had the fatal—”

“Just a moment,” Mason said. “I move that that part of the answer may go out as being a conclusion of the witness and not responsive to the question. The fact that he had evidently been drinking chocolate is very definitely a conclusion of the witness.”

“This is an expert medical witness. He is entitled to give his opinion,” Hamilton Burger said.

“He can draw medical conclusions,” Mason said, “but he can’t become an expert on circumstantial evidence. He can tell what he saw. He can make medical deductions under proper circumstances.”

“Oh, if the Court please,” Hamilton Burger said, “this is very evidently a technicality.”

“The defendant serves notice,” Mason said, “that under the circumstances of this case the defendant intends to rely upon every technicality which the law gives for her protection. These things the prosecutor sneeringly refers to as technicalities are simply the safeguards that the law provides a defendant to prevent a defendant from being unjustly convicted. The defense intends to insist that none of these safeguards be ignored.”

“The motion of the defense is granted. The part about the decedent having evidently been drinking chocolate will be stricken,” Judge Ashurst ruled.

“Very well,” Hamilton Burger said with exasperation. “Just what did you see, Doctor? Now you understand the objection that has been raised by the defense. Tell us what you saw with your own eyes.”

“I saw Mosher Higley. He was my patient. He was dead. I noticed a certain redness of the skin. I saw fragments of a broken cup on the floor. I saw chocolate, or a liquid which I assumed to be hot chocolate because it smelled like chocolate, spilled on the floor and on the nightshirt which covered Mosher Higley.”

“Now then,” Hamilton Burger said, “were you present when the body of Mosher Higley was exhumed in accordance with an order of this Court?”

“I was.”

“Did you assist in performing a post-mortem on that body?”

“I did.”

“Did you as a result of that autopsy reach a conclusion as to the cause of death?”

“I did.”

“What was it?”

“I decided that Mosher Higley had died of poison.”

“Did you reach a conclusion as to the type of poison?”

“I did.”

“What was it?”

“Cyanide of potassium.”

“Cross-examine,” Burger said triumphantly.

Mason said, “Doctor, at the time you saw Mosher Higley you noted all of these symptoms that the district attorney has outlined?”

“I did.”

“You considered them carefully?”

“Well, no. I saw them. That is all I can say.”

“You didn’t consider them carefully?”

“Not at that time.”

“Why?”

“Because the full possible significance of those things had not as yet dawned upon me.”

“You were called as a physician?”

“Yes.”

“You knew the man was dead?”

“Yes.”

“You knew you were going to have to certify as to the cause of death?”

“Yes.”

“Therefore you examined the body and the surroundings for the purpose of determining the cause of death?”

“Well, yes and no.”

“What do you mean by that?”

“I mean that I made what I would call a cursory examination.”

“And as a result of that examination you reached a decision at that time as to the cause of death?”

“Well, I signed the death certificate.”

“Doctor, don’t avoid the question. I am asking you did you at that time reach a decision as to the cause of death?”

“Well, yes.”

“And you decided the man had died as the result of a coronary thrombosis, did you not?”

“I did.”

“And you signed the death certificate attributing that as the cause of death?”

“Yes, sir.”

“And you now think you were mistaken when you signed that death certificate?”

“I do.”

“You now feel that Mosher Higley did not die as a result of coronary thrombosis?”

“I know he did not die as a result of coronary thrombosis.”

“You know, therefore, that you made a mistake when you decided that was the cause of death when you first saw him?”

“Yes, sir, and I want to tell you my reasons.”

“I’m not interested in your reasons at the present time,” Mason said. “I am asking you simply as a matter of fact whether you made a mistake, whether you reached an erroneous conclusion. You can answer either yes or no, either you did or you didn’t. Now did you reach an erroneous conclusion or did you not?”

“I did,” Dr. Granby said, his lips quivering with anger.

“Is it possible to bring about a coronary thrombosis by drinking chocolate?”

“Certainly not. A coronary thrombosis is an occlusion of the coronary artery by a clot of blood, shutting off the circulation and resulting in death.”

“As soon as you found Mosher Higley was dead you knew you were going to be called upon to sign a death certificate?”

“Naturally.”

“And therefore you looked around for the cause of death, did you not?”

“Well, in the manner that I usually do.”

“You mean that your usual manner is a careless, slipshod manner?”

“Certainly not.”

“You mean this usual manner was one not calculated to determine the cause of death?”

“Certainly not.”

“Do you want this jury to understand that you used your very best professional competency, skill, experience and judgment in determining the cause of death at that time?”

“Well, I am forced to admit that I overlooked the significance of the reddish tinge of the skin.”

“Do you want this jury to understand that at that time in the exercise of your solemn professional duty you used less than your best skill and competence?”

“Well, I reached an incorrect conclusion and that speaks for itself.”

“In other words, you didn’t do your best? Is that right?”

“I did my best.”

“You took into consideration all of the facts and circumstances?”

“Certainly.”

“Then what did you mean by stating that you didn’t take into consideration the redness of the patient’s skin?”

“Well, at the time I didn’t consider that had anything to do with the cause of death.”

“You noticed it?”

“Yes, I noticed it.”

“You considered it in connection with the other facts in the case for the purpose of determining the cause of death?”

“Well, I considered it.”

“And decided that it indicated a death by coronary thrombosis?”

“Definitely not. It was not an indication of death by coronary thrombosis, but was an indication of death by cyanide of potassium or carbon monoxide poisoning. That is one of the indications.”

“You noticed it at that time?”

“Yes.”

“And you considered it in connection with determining the cause of death?”

“Well, in a way.”

“And at the time that did not indicate to you the possibility of death by cyanide of potassium?”

“At the time, no.”

“Why?”

“Because at that time I hadn’t been advised of certain factors in the situation which later changed the entire aspect of the case.”

“You changed your opinion at a later date after you had been advised of those factors?”

“And after I had assisted in performing a post-mortem on the body after it had been exhumed.”

“And at that time you took into consideration the significance of the redness of the skin?”

“I did.”

“And that, as you have stated, was as a result of a history of the case which had subsequently been related to you and which appeared to be more significant?”

“In a way, yes.”

“So that you changed your opinion as to the cause of death because of what someone had told you?”

“No, sir. I did not.”

“You changed your opinion as to the significance of the redness of the skin because of what someone had told you.”

The doctor hesitated, looked helplessly at the district attorney. “I said that in view of the history of the case.”

“When you say the history of the case you are referring to what someone has told you?”

“Yes.”

“So you changed your opinion as the result of hearsay evidence?”

“I didn’t say that.”

“You changed your opinion as to the significance of the redness of the skin because of hearsay evidence.”

“Well, yes. If you want to put it that way.”

“Thank you,” Mason said. “That’s all, Doctor.”

“Just a minute,” Hamilton Burger said. “I have some questions on redirect which perhaps I should have asked. I rather expected they would have been covered on cross-examination. Doctor, why do you now say that Mosher Higley met his death as the result of cyanide of potassium?”

“Just a moment,” Mason said. “That question is objected to. It is not proper redirect examination. It should have been asked on direct examination. It is quite clear what happened here. The district attorney failed to bring out a part of his case because he felt that while I was cross-examining the witness the facts could be brought out with more telling effect by the witness. Having taken that gamble he is now bound by it.”

Judge Ashurst stroked his chin, seemed for the moment undecided,

“If I may explain, Your Honor,” Hamilton Burger said, “I—”

Judge Ashurst shook his head. “I think the situation speaks for itself, Mr. Prosecutor,” he said. “I think there is no question that counsel for the defense is correct insofar as his statement of the facts and of the rule of law is concerned. However, the function of this Court is to administer justice and not to act as a referee in a legal sparring match between counsel. It is, of course, a general practice for attorneys to lay traps for opposing counsel so that certain facts which may be of considerable significance can be brought out on cross-examination to the confusion of the cross-examiner. In this case there’s no question in the mind of the Court that the prosecution attempted to follow these tactics and the counsel for the defense was shrewd enough to avoid the trap.

“However, the Court is mindful of the fact that the examination of witnesses is entirely in the discretion of the Court, and as I stated before this is not a legal sparring match. This is an attempt to get at certain facts. This fact is a very significant fact, a very important fact. The Court is going to permit the witness to answer the question, but the Court warns you, Mr. Prosecutor, that in this case the technical rights of the defendant will be carefully protected. As counsel has so aptly stated, these so-called technicalities are the safeguards erected by the law of the land to protect the accused. The Court will overrule the objection. And the Court doesn’t want any more legal gymnastics in this courtroom. Now go ahead and answer the question, Doctor.”

Dr. Granby cleared his throat importantly and said, “I had originally concluded that the decedent probably died as the result of coronary thrombosis. My post-mortem examination showed there was no coronary thrombosis. Furthermore, my post-mortem failed to disclose any cause of death. The body had been embalmed. It therefore seemed a logical medical assumption that there had been a cause of death which must have been destroyed by the injection of embalming fluid. Cyanide of potassium is a deadly poison, all traces of which are destroyed by the injection of embalming fluid. The redness of the blood is a further indication of death by cyanide of potassium. Therefore, taking all of these factors into consideration, it is now my considered medical opinion that the decedent met his death because of poisoning by cyanide of potassium.”

“That’s all,” Hamilton Burger said. “You may cross-examine.”

“In other words,” Mason said, “the only reason that you now say the decedent died from poisoning by cyanide of potassium is that you can’t find any other cause of death?”

“In a way, that is true.”

“Are you familiar with the fact, Doctor, that in a certain percentage of cases, the best pathologists in the country are unable to find a cause of death?”

“Yes, but I don’t think the percentage is high.”

“What is the percentage?”

“I don’t think that is relevant to this case.”

“I do, Doctor. Please tell me what the percentage is.”

“It is a variable.”

“You mean it fluctuates between certain percentages?”

“Yes.”

“What are the percentage limits of fluctuation?”

“They depend on the skill of the pathologist.”

“I am assuming that the autopsy surgeon has the highest skill. Isn’t there a certain percentage of cases where medical science is unable to find any cause of death?”

“Well... yes, a certain percentage.”

“What is it?”

Dr. Granby shifted his position. “I don’t know.”

“Then if you don’t know it might be as high as ten per cent.”

“I don’t think it is. I am quite certain it is not.”

“But you don’t know?”

“No, I don’t know.”

“You do know that in a significant number of cases pathologists are unable to find a cause of death at the time of post-mortem examination?”

“Yes.”

“Then would you say that all of those cases were deaths due to cyanide of potassium?”

“Certainly not.”

“Yet in this case you have concluded that the man died of cyanide of potassium poisoning simply because you couldn’t find any other cause of death. Isn’t that right?”

“Well — that’s hardly a fair way to put it.”

“How else would you put it?” Mason said.

“Well, I have assumed that there must have been a cause of death and inasmuch as I couldn’t find a cause of death at the time of post-mortem, and inasmuch as the body had been embalmed, I assumed that the cause of death had been obscured by the embalming.”

“In other words, because you couldn’t find the cause of death you assumed the cause must have been obliterated by the embalming?”

“Yes.”

“Yet you do know that in cases where there has been no embalming whatever it is a medical fact that in a goodly percentage of these cases it is impossible to find the cause of death?”

“Not ten per cent, as you suggested.”

“How do you know it isn’t?”

“Well, I... I am assuming it isn’t. I think the percentage is far lower. I think it is around three to five per cent.”

“You are referring now to your own practice?”

“Yes. In cases where autopsies have been performed the percentage of deaths from undetermined causes is negligible.”

“In your own practice it is from three to five per cent?”

“Oh, call it that. I’m being generous with you in fixing those figures.”

“Now, in this particular case, simply because you were unable to find the cause of death and because the body had been embalmed you assumed the cause of death was some agency that must have been removed by the embalming fluid and therefore you assumed that it was the injection of cyanide of potassium?”

“Well, that’s rather an unfair way of putting it, but I’ll answer that question in the affirmative.”

“You have other cases where you have been unable to determine the cause of death before embalming?”

“Yes.”

“Three to five per cent, Doctor?”

“Well, yes.”

“Did you in those cases certify the cause of death as cyanide of potassium?”

“Don’t be absurd. Certainly not!”

“Have you ever certified any of those cases as having been caused by cyanide of potassium?”

“No.”

“You have then certified in those cases that the cause of death was unknown?”

“Well... no.”

“You didn’t know the cause of death,” Mason asked, “you were unable to find it?”

“That’s right.”

“Yet you didn’t so state in your certificate?”

“A death certificate, Mr. Mason, has to recite some cause of death. It is a general practice among medical men to have a certain blanket category which is listed as the cause of death when it is impossible to determine absolutely what was the cause of death.”

“In other words, when you can’t find a cause of death you simply draw on your imagination. Is that right?”

“Well, you have to put down some cause of death.”

“Exactly,” Mason said. “So in those cases of yours where you weren’t able to find the cause of death you simply went ahead and filled in a cause of death anyway. Is that right?”

“In those cases, yes.”

“So in at least three per cent of your cases you deliberately falsify your death certificates?”

“I don’t falsify it.”

“It is incorrect?”

“I don’t know.”

“Yet you state in the certificate that you do know?”

“All doctors do.”

“And you do?”

“Yes. Have it your own way.”

“This case was a similar case to all of those others except that in this case you have said it was a death by cyanide of potassium?”

“Well, this case is not exactly similar.”

“Why isn’t it similar?”

“Because there is evidence of the possibility of cyanide poisoning.”

“What evidence?”

“The color of the skin for one thing.”

“But you noticed that color of the skin at the time you signed the death certificate attributing the cause as coronary thrombosis, didn’t you?”

“Yes.”

“All right, what else was there?”

“Well, of course,” Dr. Granby blurted, “there is the confession of the defendant, her own admission—”

“Exactly,” Mason said. “Because it has been reported to you that statements made by the defendant indicated death by cyanide of potassium poisoning you have concluded that death must have been by cyanide of potassium.”

“Well, that was one of the reasons.”

“That’s the only significant reason you can bring out at this time, isn’t it, Doctor?”

“That and the fact that there was no other cause of death visible.”

“But you have just stated that in an appreciable percentage of deaths you haven’t been able to find any cause of death.”

“Well, yes.”

“But your certificate didn’t so state?”

“I gave a cause of death.”

“Despite the fact you couldn’t find the cause of death you signed a certificate stating that death was due to a certain cause?”

“That is the generally accepted medical practice.”

“That,” Mason said, with a tone of finality, “is all.”

Hamilton Burger whispered to his trial deputy. Apparently they were unhappy about the doctor’s testimony but didn’t know exactly how to try to repair the damage.

“Any further questions?” Judge Ashurst asked.

Hamilton Burger shook his head. “No,” he said, and his manner indicated that he realized his whispered conference had further weakened his case. “No further questions.”

Hamilton Burger’s next witness was Marilyn Bodfish, who, it turned out, was the day nurse who had been in charge of the case on the Saturday when Mosher Higley met his death. She testified that it was customary for the defendant, Nadine Farr, to “take over” at around noon on Saturday, giving the witness some time off; that on this particular Saturday it had been a sunny day and the witness had retired to a secluded place between the garage and a fence where there was a folding cot, and had been engaged in taking a sun bath when she had heard the’ emergency electric bell ringing in her bedroom which was on top of the garage; that she had hastily donned some clothes and hurried to the house, finding Mosher Higley in convulsions and gasping for air, that there was some retching; that there was a broken cup on the floor, that some chocolate had been spilled on the floor and that some chocolate had been spilled on his nightshirt; that she noticed at the time that the chocolate on the floor was still warm.

“Did you notice anything else?” Hamilton Burger asked.

“I noticed a certain odor.”

“What odor?”

“An odor of bitter almonds.”

“As a part of your training as a nurse did you study poisons?”

“I did.”

“Do you know the significance of the odor of bitter almonds?”

“It is the odor of cyanide of potassium.”

“And you detected that odor at that time?”

“I did.”

“Cross-examine,” Hamilton Burger said triumphantly.

“When did you first appreciate the significance of that odor?” Mason asked.

“I noticed it as soon as I was bending over the patient. I—”

“Answer my question,” Mason interrupted. “When did you first appreciate the significance of that odor?”

“Oh, later on, when I heard that there was a possibility of cyanide poisoning.”

“You were there in the room when Dr. Granby arrived?”

“Yes, sir.”

“Did you at that time communicate to him the fact that you detected an odor of bitter almonds?”

“No, sir.”

“Did Dr. Granby tell you that he detected an odor of bitter almonds?”

“No, sir. There was no discussion about it.”

“Were you there when Dr. Granby signed the death certificate giving the cause of death as coronary thrombosis?”

“I was there when he announced that that was the cause of death.”

“Did you then suggest to him that perhaps there might have been some other cause?”

“Certainly not. It is not the function of a nurse to try and correct a doctor’s diagnosis.”

“Did you at that time think the diagnosis was wrong?”

“I—”

“Oh, Your Honor,” Hamilton Burger said, “this witness is not an expert medical witness. She is a nurse. She has had certain training. She can testify as to certain things. This question is not proper cross-examination.”

“Certainly it is proper cross-examination,” Mason said. “She is now testifying that at that time she noticed the odor of bitter almonds and that she knew the odor of bitter almonds was indicative of cyanide poisoning. It becomes important to know whether she pointed that out to the doctor, which she certainly would have done if she actually had noticed any significant odor, or whether she waited until the idea was put in her head by the police.”

“Now that is an unfair statement,” Hamilton Burger said. “There is no evidence that the idea was put in her head by the police.”

“You let me go ahead with this cross-examination and I’ll show that that’s where the idea came from,” Mason said.

“Now just a moment,” Judge Ashurst said, “this colloquy between counsel borders on misconduct on both sides. The witness was asked a question. It is true that the witness did not qualify on direct examination as being able to give an opinion as to the cause of death, but this question relates to her conduct at the time. The objection is overruled.”

“Did you point out to anyone at that time that you had detected the odor of bitter almonds?”

“No.”

“Did you at that time, prior to talking with the police or the district attorney, have any idea that the odor of bitter almonds had any significance whatever?”

“No.”

“Did you at that time think that the odor of bitter almonds was associated with cyanide?”

“Well... no, not at that time.”

“It wasn’t until afterward, when you were being questioned by the police, that they asked you if there wasn’t something that you could possibly think of that would indicate the presence of cyanide, that you made that statement?”

“Not by the police — by the prosecutor.”

“Oh, by Hamilton Burger himself,” Mason said, bowing to the district attorney. “That was when the matter first came to your mind, is that right?”

“Well, that’s the first time I reported it.”

“That’s the first time you appreciated the significance of what you had smelled?”

“Yes.”

“And Mr. Burger asked you if you hadn’t noticed something that would be indicative of poisoning by cyanide?”

“Well, yes.”

“And did Mr. Hamilton Burger further tell you that he understood the odor of bitter almonds was indicative of cyanide poisoning and ask you if you had detected that odor?”

“Yes.”

“That was before you told him you had smelled bitter almonds?”

“That brought it to my mind.”

“That was the first time that it was brought to your mind?”

“Yes.”

“And then you thought you had remembered it?”

“Then I remembered that I had smelled it.”

Mason smiled. “That’s all,” he said.

“That’s all,” Hamilton Burger snapped.

Hamilton Burger said, “If the Court please, the next witness is a hostile witness. However, it is necessary for us to call him. Dr. Logbert P. Denair, will you come forward and be sworn.”

Dr. Denair came forward, was sworn and testified to his qualifications as a physician and surgeon, his practice in psychiatry, the fact that he was acquainted with the defendant.

“Now then, on or about the fifteenth day of September of this year did the defendant consult you professionally?”

“Yes.”

“Did you at that time decide she was suffering from severe feelings of guilt?”

“Objected to,” Mason said, “as calling for a privileged communication, as betraying the confidential relationship existing between a doctor and a patient.”

Judge Ashurst thought for a minute, then said, “The objection is sustained.”

“Did you at that time suggest to the defendant that it would be advantageous if you should give her a so-called truth serum test?”

“Same objection,” Mason said.

“Same ruling.”

“Did you on or about the seventeenth of September administer a drug to the defendant?”

“I did.”

“Was the object of that drug to overcome the so-called defense mechanism which would prevent a patient from disclosing facts which the patient might consider as damaging?”

“It was.”

“Did you at that time have a tape recorder present?”

“I did.”

“Did the patient at that time make a statement which was recorded on the tape recorder?”

“Now if the Court please,” Mason said, “I object to that on the ground that it is incompetent, irrelevant and immaterial; that it conclusively appears the patient was under the influence of drugs so that anything that was stated at that time would be the figment of a drugged imagination; on the further ground that it calls for the betrayal of a confidential communication and on the further ground that if there is any confession or admission contained in that tape recording there is no proper foundation laid inasmuch as there has been no proof of the corpus delicti.”

“Now then,” Judge Ashurst said, “we’re getting to the crux of the legal situation which, of course, the Court has generally understood would arise during the course of this trial. I think that the argument should take place outside of the presence of the jury. However, the Court will observe that the question as it is now asked does not call for an answer which would justify all of the objections that were taken. As I understand it, the prosecution intends to show that such a tape recording was made and then dismiss the doctor. It then wishes to produce the tape recording as an admission of the defendant and ask that it be played to the jury.”

“That is correct, Your Honor,” Hamilton Burger said.

“But,” Mason said, “we’re going to have to face all of these facts and we may as well face them now.”

“I think I will overrule the objections at this time until we have all of the preliminaries out of the way,” Judge Ashurst ruled.

“Did you make such a tape recording?” Hamilton Burger asked.

“I did.”

“What was done with that tape recording?”

“It was placed in my safe.”

“What happened to it after that?”

“It was turned over to the police by my nurse. The police served a search warrant on her and searched the office and took possession of the tape recording.”

“I show you a spool of tape on which there is a notation in red pencil, presumably in your handwriting, stating, ‘Interview with Nadine Farr, September 17th,’ and ask you if that notation was made by you?”

“It was. Yes, sir.”

“And it was made on the spool of tape recording on which the words of Nadine Farr were recorded?”

“Yes, sir.”

“That’s all,” Hamilton Burger said triumphantly.

“Just a few questions,” Mason said. “At the time the tape recording was made Nadine Farr was your patient?”

“Yes, sir.”

“You were endeavoring to treat her?”

“Yes, sir.”

“In order to treat her effectively you felt it was necessary to know certain facts which you felt could be brought out by question and answer under a so-called truth serum test?”

“Yes, sir.”

“And you administered this test as a part of your treatment as a psychiatrist and a physician and surgeon?”

“Yes, sir.”

“Now the defendant was under the influence of drugs at that time?”

“Yes, sir.”

“Did she know what she was doing?”

“Well, there you get into a very peculiar psychological situation, Mr. Mason. A part of her mind knew that she was making a statement and answering questions. A part of her mind was drugged into such a degree of quiescence that there could be no resistance.”

“In other words, her consciousness was impaired by drugs?”

“Yes.”

“Her volition was impaired by drugs?”

“Yes.”

“Those drugs were administered by you as a physician in the course of treatment?”

“Yes.”

“And you asked those questions and received answers from her in the capacity of a physician diagnosing the condition of a patient and as a confidential communication?”

“Yes.”

“You have given many such examinations?”

“Yes.”

“What is the purpose of those examinations?”

“Well, you evaluate certain emotional conflicts because of answers which are received.”

“Are those answers always intelligible?”

“Definitely not.”

“Are they always correct?”

“Apparently not.”

“Then there is a possibility that the answers which you received to your questions in this case are not correct?”

“There is always that possibility.”

“You are familiar with the phenomenon known as talking in one’s sleep?”

“Yes.”

“Was the defendant’s condition similar to that which produces sleep talking?”

“Very much. It was an artificially induced sleep talking.”

“That is all,” Mason said.

“Just a moment,” Hamilton Burger said. “If the statements made by patients under a so-called truth serum examination were incorrect there wouldn’t be any point in giving such an examination, Doctor.”

“I didn’t say that the answers were incorrect. I said there was a possibility that they could be incorrect.”

“Is that possibility sufficiently great so that it negatives the value of the test? In other words, were you taking this patient’s money and taking her time for a treatment that was of no value?”

“Certainly not. One has to understand how to evaluate those answers. Sometimes even when the answers are incorrect the emotional status of the patient can be evaluated.”

“So this test is of some value in your diagnosis?”

“Definitely.”

“And by this test you expected to find out what was causing guilt feelings on the part of the defendant?”

“Objected to,” Mason said, “as calling for a matter of treatment. It is the same question which was asked before and to which an objection was sustained. It seeks to pry into the relationship between the patient and the doctor. It also assumes a fact not in evidence.”

“I think,” Judge Ashurst ruled, “that you have now identified the tape recording, Mr. Prosecutor. I think that any further questions should be limited, except those questions generally as to the mental condition of the patient at the time it was made. I think the question before the Court will now hinge upon an attempt to introduce that tape recording.”

“I ask to have it introduced in evidence,” Hamilton Burger said.

“I object,” Mason said, “on the ground that it is a tape recording of a confidential communication between a physician and a patient. I object because it is a privileged communication. I object because it appears that the defendant was under the influence of drugs at the time the statement was made, and that there’s a distinct possibility that any statements contained in that tape recording are incorrect. I further object on the ground that it is not the best evidence and that no proper foundation has been laid. I further object on the ground that there has as yet been no proof of the corpus delicti, that there is no evidence that Mosher Higley died from other than natural causes, and that until there is some definite evidence indicating a criminal activity in connection with the death of Mosher Higley there can be no evidence of any statements or admissions or confessions made by the defendant.”

Judge Ashurst turned to the jury. “The jury will be excused,” he said, “while this objection is considered by the Court. During the time that the jury is excused you will not comment about the case or about the objection which is being argued before the Court. You will not discuss the case or permit it to be discussed in your presence, nor will you form or express any opinion as to the guilt of the defendant until the matter is finally submitted to you. Now then, the jury will be excused and we will proceed with the arguments.”

Hamilton Burger waited until the jury had left the courtroom, then said, “If the Court please, I may state to the Court outside of the presence of the jury, that on this tape recording there is a definite statement by the defendant, in a voice unmistakably her own, that she poisoned Mosher Higley. I realize that while we haven’t definitely established that Mosher Higley died as a result of cyanide poisoning I do feel that we have definitely established that he did not die as a result of any natural cause. Therefore there must have been some criminal agency. I think we have also raised a sufficient presumption that death was probably due to cyanide of potassium so that we can introduce this statement in evidence.”

Judge Ashurst looked at Perry Mason. “I’d like to hear the position of the defendant on that.”

Mason said, “This is a confidential communication. It was made under the influence of drugs. The witness would not have been permitted to take the stand and testify while in that drugged condition. Therefore she shouldn’t be permitted to testify by means of a tape recorder.

“The rule in this state was originally established in the case of People versus Robinson, 19 California 40, which was to the effect that words uttered by a defendant while not conscious of what he was saying could not constitute evidence of guilt and are inadmissible. This rule was held to exclude statements made by a defendant while asleep.

“That case, if the Court please, was subsequently cited in the case of Chadwick versus United States, 141 Federal 225.”

The judge smiled. “I was wondering why you asked the question about sleep talking, Mr. Mason. I see now that you had a firm objective in mind. The authority in question would seem to be conclusive.”

Judge Ashurst looked over at Hamilton Burger.

“Well, that whole doctrine is obsolete,” Hamilton Burger said. “It was decided in People versus Rucker, 11 California Appellate 2nd 609, 54 Pacific 2nd, 508, that any evidence tending to establish that a defendant was not in full possession of his faculties at the time he confessed guilt would not affect the admissibility of the confession but would be evidence for the jury to consider in determining the weight to be given to the confession.

“I therefore insist that this confession can be heard by the jury. Counsel can then introduce all of the evidence he wants tending to show the mental condition of the defendant at the time the confession was made. The jury can consider that evidence for the purpose of determining whether or not the confession is true. However, if the Court please, all of the physical facts show that that confession is true. The truth is apparent because it dovetails in with every physical fact.

“Under the law any confession, no matter how it is obtained, can be admitted if there is corroborating evidence showing it to be true.

“I will, if the Court please, read from Volume 8, California Jurisprudence, at page no: ‘Inasmuch as the theory upon which involuntary confessions are excluded is their possible falsity, if the confession discloses incriminating facts which are shown to be true, the reason of the rule ceases to exist, and so much of the confession as discloses the fact and the fact disclosed are competent.’ Now then, if the Court please, this rule was followed in the case of People versus Castello, 194 California 595, 229 Pacific, 855, where it was stated that where physical facts and circumstances corroborate confessions of guilt, the reason of the rule which would otherwise exclude involuntary confessions to this extent ceases to exist

“If the Court please, we expect to show that this confession is completely corroborated by physical facts to such an extent that extrinsic evidence unmistakably stamps the confession with the mark of truth.

“In this case, as the Court will note when it hears the tape recording, the defendant stated that she went to the gun room of Mosher Higley, that she cut open two shells and put shot from those shells in the bottle of poison and that she threw that bottle in the lake.

“Now we will show that this bottle of poison was recovered, that the two shotgun shells which had been pried open were recovered from the exact place behind the gun cabinet where the defendant said she had put them.

“And this,” Hamilton Burger went on, “notwithstanding the fact that someone,” and here Hamilton Burger turned and bowed sardonically to Perry Mason, “had attempted to confuse the issues by planting another bottle filled with shot and a harmless sugar substitute out in the lake. And, if the Court please, we expect to prove before this case is done that Perry Mason was seen going out to the lake and throwing an object into the lake at this exact place shortly before he hired some young boys to make an opportune recovery of this planted bottle of evidence.”

Judge Ashurst frowned. “This is a very serious situation,” he said. “I think that the Court will permit you, as a part of this offer, to put on evidence in regard to the shotgun shells and the bottle of poison, Mr. District Attorney, and if the corroboration is as you indicate, the Court will then take up the question of permitting the tape recording to be played to the jury and permitting the evidence as to the bottle and in regard to the shotgun shells to be again introduced for the consideration of the jury.”

“Very well,” Hamilton Burger said. “I’ll make the proof to the Court right now. I’ll produce these shotgun shells and state to the Court, as an officer of the Court, that these shells were found in the place described by the defendant in her confession.”

Hamilton Burger motioned to his assistant and produced two shotgun shells which were presented to the Court.

Mason inspected the shotgun shells.

“These shells are sixteen-gauge shotgun shells stamped ‘UMC No. 16,’ ” Judge Ashurst said. “They have the wads pulled out. All of the shot has been dumped out from one shell and part of the shot from another.”

“That is correct,” Hamilton Burger said. “The shot just fills the vial and that vial contains tablets of cyanide of potassium.”

“What about the other vial?” Judge Ashurst asked.

“That other vial,” Hamilton Burger said, “contains a sugar substitute, a chemical sweetening tablet, and contains similar shot.”

“Do you have those vials with you?”

“I have them both here,” Hamilton Burger said. “One of them is marked Exhibit A for identification and the other Exhibit B.”

Burger produced the bottles.

Judge Ashurst looked accusingly at Perry Mason. “It is, of course, a most significant fact that two bottles were recovered from the place where the defendant mentioned she had thrown the bottle containing the poison. One of the bottles contains poison exactly as described by the defendant, and the other bottle contains a harmless chemical substitute. Is that correct, Mr. District Attorney?”

“That is correct,” Hamilton Burger said, leering triumphantly at Perry Mason.

Mason said, “If the Court please, I think I can account for the bottle which contains the harmless sugar substitute, and since there has been an insinuation that I was responsible for planting that, I would like at this time to call a witness who will testify on that phase of the matter.”

“The Court will permit that,” Judge Ashurst said. “This witness, of course, is called in connection with a motion which is addressed solely to the discretion of the Court, or, rather, in connection with an objection to the admissibility of evidence on which the Court desires to take evidence.”

“This is correct,” Mason said. “I’m going to ask Mr. Jackson Newburn to come forward and be sworn.”

Jackson Newburn got up from the audience, came forward, raised his right hand and was sworn.

“Take the witness stand,” Judge Ashurst said.

Mason said, “Your name is Jackson Newburn. You are married to Sue Newburn, who is a surviving niece of Mosher Higley. Is that correct?”

“That is correct.”

“And as such husband and because of the relationship, you had access to the house of Mosher Higley, did you not?”

“Yes, sir.”

“You were there from time to time?”

“Yes, sir.”

“You were there on the day that Mosher Higley died?”

“Yes, sir.”

“And after his death you learned, did you not, that the defendant had made statements to the effect that she had taken tablets of what she thought was a sugar substitute from a bottle kept in the usual place, that immediately after giving Mosher Higley the chocolate containing these tablets Mosher Higley accused her of having poisoned him, went into choking convulsions and died shortly thereafter?”

“Yes, sir.”

“You were friendly with the defendant?”

“Not exactly friendly. At that time I sympathized with her.”

“You say at that time?”

“Yes. At that time I thought she was being rather abused by Mosher Higley. I didn’t at that time know certain facts which I discovered later, facts which indicated she was engaged in blackmailing my wife’s uncle.”

“Now your wife is a relatively young woman?”

“On the sunny side of thirty,” Newburn said.

“She has a good figure?”

“I consider it a very good figure.”

“She tries to protect that figure by a careful diet?”

“Yes.”

“And in her house she has a certain chemical sugar substitute in the form of tablets which she uses for sweetening?”

“Yes, sir.”

“In fact, it was through her recommendation of this chemical sweetening that Mosher Higley was induced to start using these same tablets?”

“Yes, sir.”

“And after you found out that the defendant had stated she had placed the tablets she feared were cyanide in a bottle together with shot, and had thrown the bottle out into a lake known as Twomby’s Lake, you tried to protect her by going to your home, taking a partially filled bottle of these same sugar tablets, filling it with shot and throwing it out in the lake?”

“I did not.”

“What?” Mason exclaimed in surprise. “You didn’t?”

“No, sir.”

“Why, you told me you did. You admitted it.”

“No, I didn’t.”

“Do you mean to tell me,” Mason said, “that when I approached you there at a club on West Adams Street, a club known as the Wildcat Exploration and Development Club, you didn’t tell me there on the porch of that club that you had done this very thing?”

“I did not.”

Mason said grimly, “Now, Your Honor, I am faced with a situation where a witness is apparently committing deliberate perjury. I will state to the Court on my honor as an attorney that this witness did make such a statement to me.”

“That is not true,” Newburn said calmly. “I made no such statement.”

Hamilton Burger smiled. “Well, now, just a moment,” he said. “We have a very peculiar situation. Counsel, having been accused of having prepared a bottle of sugar pills, filling it with shot, and throwing it out in the lake, now seeks to disclaim responsibility by claiming that Jackson Newburn threw that bottle out in the lake. Newburn says he didn’t. Counsel says that Newburn told him he did. Here we have a direct conflict between Counsel and Newburn. One of them certainly is lying. I leave it to the Court to determine as to which is the most interested and which would be most apt to tell a falsehood for the purpose of protecting his reputation.”

“Now just a moment,” Judge Ashurst said, his face stern. “Apparently one of these persons is making a false statement, a statement which is unequivocally false. Mr. Newburn, I am going to ask you, did you make any such statement to Mr. Mason?”

“I did not.”

“I propose to show that he did,” Mason said.

“By your own testimony?” Judge Ashurst asked.

“Yes.”

“Any corroboration?”

Mason hesitated a moment, then shook his head and said, “No corroboration which is of evidentiary value. My secretary was sitting in a car parked at the curb and I told her as soon as I returned from the interview what Mr. Newburn had said.”

“That, of course, is no corroboration. That is simply a self-serving declaration,” Hamilton Burger said.

“I think the Court knows me well enough to know that while I will use certain methods which some persons may consider unorthodox for the purpose of bringing out the true facts in a case, I certainly will not jeopardize myself by making a false statement,” Mason said. “Nor would I go to the extent of planting evidence for the purpose of confusing the officers or protecting a person accused of murder.”

“That, of course, is a matter of debate,” Hamilton Burger said. “You have your own peculiar standard of ethics in such matters and I don’t profess to know what they are.

“However, I will state to the Court that we now have a situation where this witness, Newburn, states definitely he did not have any such conversation with Mason. Mason proposes to swear that he did. For what purpose? All that Mason could do would be to impeach the witness. A person cannot impeach his own witness and, even if he did, that statement would be only for purposes of impeachment. It wouldn’t go to establish the fact.”

“That, of course, is true,” Judge Ashurst said. “If Mr. Mason took the stand all he could do would be to impeach the veracity of this witness, and this is his own witness, but even if he did impeach him it wouldn’t establish the fact that the witness had actually thrown this bottle out in the lake. That, of course, is a technical legal rule, but, after all, as Counsel has pointed out, this is a case in which he intends to rely on technicalities and the prosecution is entitled to protection under the law just as the defendant is.”

Mason, his face flushed with anger, said, “Your Honor, I’d like to have an adjournment of this case until tomorrow morning at ten o’clock. I’ll certainly go into this matter. I intend to take some steps to ascertain the truth. I am certain of my facts, and I know that this witness made a definite statement to me, a statement such as I reported to the Court.”

Judge Ashurst deliberated for a few moments, then said, “Of course, while it is beside the point, the Court has always found Perry Mason strictly scrupulous and strictly accurate in any statements made to the Court.”

Hamilton Burger said, with what amounted to a sneer, “Counsel has continually resorted to all sorts of ingenious trickery in connection with his cases. This is one time he went too far and now that he is trapped he realizes that his entire professional reputation is at stake. It is distasteful to me to have to make these comments but I suggest that the Court consider the motivation.”

Mason, who had been studying the exhibits, turned to Burger. “Wait a minute. You want to introduce this confession of the defendant on the theory among others that it is corroborated by the discovery of the shotgun shells in the very place where she said she had left them and that those shotgun shells constitute a sufficient corroboration so that the evidence can be received?”

“Exactly,” Hamilton Burger said.

Mason smiled. “Very well,” he said, “I’ll meet you on that legal contention. If that will be your contention I’ll withdraw all objection to the tape-recorded confession.”

“Here, here, wait a minute,” Judge Ashurst said. “You can’t do that, Mr. Mason. You have to protect the rights of the defendant. There is a very serious question here as to whether a confession under the influence of drugs can be used and there is also a very serious question as to whether this constitutes a confidential communication. The Court isn’t prepared to announce its ruling as yet on those objections but they certainly are material objections affecting the substantial rights of the defendant and—”

“And I’ll withdraw the objection,” Mason said, “provided the district attorney goes ahead as he has indicated. I’ll accept his challenge and meet him on those grounds.”

“I am trying to point out that you can’t do that,” Judge Ashurst said. “You can’t waive the rights of the defendant. You may have some theory here, but the Court is free to admit it can’t realize what it is. However, the Court does understand that you have a very potent technical objection, one which may result in a dismissal of the entire case if the Court rules in your favor.”

“And which would leave the defendant forever tarred with the stigma of having been a murderess who escaped through a technicality,” Mason said. “No, Your Honor, I’m representing the defendant. The defendant is in my hands. I’ll withdraw the objection. Go ahead. Call the jury back into court. Let the prosecutor put on his corroboration, then play that tape recording to the jury.”

Hamilton Burger said triumphantly, “That suits me.”

“I don’t think you have the right to do this,” Judge Ashurst said.

“As the lawyer representing the defendant I have a right to conduct the case the way I see fit,” Mason told him.

“But you yourself have a direct interest in this case, Mr. Mason. I regret to have to point it out but you are involved in this thing yourself. There is, of course, naturally a temptation to... to— The Court was about to say, save your own skin, but that is too drastic an expression.”

“Let it go at that,” Mason said. “Let’s suppose I am trying to save my own skin. Nevertheless, I’m going to meet this issue head on and right here and now. The defendant doesn’t want to go through life forever branded as having murdered her benefactor and having taken advantage of a technicality to escape justice. Let’s meet this thing.”

Hamilton Burger said eagerly, “The prosecution accepts that situation. Your Honor, the objection has been withdrawn and in the absence of any objection I feel that the Court has nothing to rule on.”

“The objection is withdrawn only to this extent,” Mason said, “that you are going to introduce those shotgun shells and the bottle containing the poison.”

“That’s right,” Hamilton Burger said triumphantly.

Mason turned and walked back to the counsel table, thereby terminating the discussion.

Judge Ashurst stroked his chin thoughtfully, looked at Mason speculatively.

“The objection is withdrawn. There’s nothing before the Court,” Hamilton Burger insisted.

“Very well,” Judge Ashurst remarked reluctantly. “Let the record show exactly what has taken place. Now then, the Court is going to ask the defendant to stand up. Miss Farr, will you stand up, please?”

Nadine Farr stood up.

“You have heard what was said by your counsel?”

“Yes, Your Honor.”

“Do you wish the Court to appoint other counsel to defend you?”

“No, Your Honor.”

“Are you satisfied with the position adopted by your attorney?”

“Whatever Mr. Mason says is all right with me,” she said.

Judge Ashurst shook his head dubiously. “The Court still doesn’t feel right about this matter. The Court is going to take an adjournment and give the matter further consideration. The Court is frank to state that the technical objections in regard to the corpus delicti appear to the Court to have a substantial foundation in fact; furthermore, the fact that this so-called confession was made under the influence of narcotics, and the further fact that this was a communication with a physician within the four walls of a doctor’s office for the purpose of getting treatment, all tend to make a very serious technical situation.”

“I have other authorities, if the Court please,” Hamilton Burger said. “When a patient confesses a crime to a doctor, the doctor cannot consider that as a confidential communication.”

“But this doctor is a psychiatrist,” Judge Ashurst pointed out. “I am familiar with the line of decisions indicating that a confession to a crime is not necessary to enable a doctor to make his diagnosis and that therefore it is not a privileged communication, but here we are dealing with a psychiatrist who, according to your own words, was trying to probe the underlying causes of the patient’s guilt.”

“I can short-cut all of that if you want,” Mason said. “I can prove right here and now that the defendant never threw that bottle of poison into Twomby’s Lake.”

“How are you going to prove it?” Hamilton Burger demanded truculently. “That’s another grandstand play, another attempt to influence the press. You—”

Judge Ashurst banged his gavel. “That will do, Mr. Prosecutor. Mr. Mason, you wish to point out something to the Court?”

“Simply this,” Mason said. “Look at the wadding on those shells. Those are sixteen-gauge shells filled with number five chilled shot. Look at the bottle marked Exhibit A containing the poison. Look at those shot. Those shot are number seven and a half or number eight bird shot. They’re very definitely not number five shot. And you can still see some of the five shot which are left in the shell which was only half-emptied.

“In other words, Your Honor, the bottle containing the harmless sugar substitute, Exhibit B, is the bottle that contains the number five chilled shot which came from the shotgun shells. The bottle, Exhibit A, containing the cyanide of potassium, contains number eight shot or number nine. That load is a much finer bird shot intended for trap shooting or upland game, whereas the load in the shells which were found in the place mentioned in the tape-recorded statement contains shot used for hunting ducks.

“Now then, Your Honor, I ask that we bring in a pair of scales right here and now before there’s any opportunity to tamper with that evidence and weigh the shot which are found in both bottles. I think you will find that the shot in the bottle containing the harmless sugar substitute represent the exact weight of the shot taken from the two shells found in the gun room; that the shot in the bottle containing cyanide of potassium definitely came from another source.”

Judge Ashurst picked up the two bottles, glanced at Hamilton Burger.

“Oh, Your Honor,” Hamilton Burger said, “this is another grandstand play. This is— How do I know what happened? Counsel was in a position to switch those bottles. I definitely accuse him of having thrown one of those bottles—”

“Which one?” Mason asked.

“Exhibit B,” Hamilton Burger snapped.

“All right,” Mason said, “then you contend that the defendant threw the bottle Exhibit A?”

“That’s right.”

“Then her confession can’t be substantiated because the shot in Exhibit A didn’t come from those two shotgun shells. You’ve stated that you’re willing to submit your entire case on the theory that the confession, no matter how obtained, can be introduced if it is corroborated by independent physical evidence.”

Hamilton Burger looked at the two bottles, scratched his head, said, “I don’t know definitely — of course, there is always the possibility these labels have been substituted.”

“In that case,” Mason said, “the bottle that you accuse me of having thrown into the lake then contains cyanide of potassium and the bottle you now claim the defendant threw into the lake contains the sugar substitute.”

Hamilton Burger started to say something, then looked around at the newspaper reporters who were literally crowding forward.

“Let’s have an adjournment in this case,” he said, “until we can get some of these facts unscrambled.”

“Let’s not have any adjournment or any possibility of having any substitution made until we get this thing straight,” Mason said. “Let’s get the ballistics expert from the sheriff’s office into court, have him bring a pair of scales and find out about these shot.”

Judge Ashurst nodded to the bailiff. “Get the ballistics expert from the sheriff’s office, Mr. Bailiff.”