The Naked Typist

30

Fitzpatrick spent the lunch hour on the phone to his office, catching up on his law practice.

Steve Winslow, who had no law practice to catch up on, had lunch with Mark Taylor and Tracy Garvin at a small deli near the courthouse. They ordered at the counter, carried their food to a small table in the back.

Mark Taylor sat down, took a huge bite of pastrami sandwich and washed it down with coffee. “So,” he said. “Tell me about the time element.”

“What about it?” Steve said.

“You always make a big deal of the time element. Last case it was bullshit. What about this time? Does it mean anything?”

“Yes and no.”

“What does that mean?”

Steve shrugged. “For the most part, it’s just bullshit. Give the jury a show. Mess the facts up, create reasonable doubt. Besides, it’s standard practice to pick on the doctor. Why? Because the jurors like that. Doctors make big bucks. Doctors don’t make house calls. Doctors are professional men who are apt to come off pompous and arrogant, and jurors love to see ’em taken down a peg.” Stave shrugged again. “It ain’t fair, but that’s just the way it is.

“But in this case, it actually does mean something. The doctor puts the time of death at eleven-thirty. We happen to know eleven-thirty was the time Kelly Wilder left the apartment. That’s pretty damning. You don’t stick around after you kill someone. You kill ’em, and you leave. She shot him at eleven-thirty and got the hell out of there.”

Taylor grimaced. “Christ, Steve,” he said with a mouthful of pastrami. “You’re torturing me.”

“Yeah, well at least I’m not spoiling your appetite,” Steve said dryly. “I’m sorry, Mark, but that’s the fact. She left at eleven-thirty. We know it, the prosecution doesn’t.

“But think what that means. If the time element gets screwed up, if the waiter from that restaurant gets on the stand, says he didn’t serve the veal until after nine-well, we got the doctor saying he died three hours after that. Which would be midnight. And in that case, when he was shot Kelly Wilder was long gone.”

“Right,” Taylor said irritably. “You know it and I know it. But how the hell are we gonna prove it? Call the detectives to the stand? For one thing, we can’t even find ’em. For another thing, if you did, you’d put me on the hook for withholding evidence.”

“I know that, Mark.”

“I know you do, but so what? I know you. You’ll do anything for your client and the hell with anybody else. If you manage to prove David Castleton was killed at midnight, it’s gonna be ‘Sorry, Mark, I know it’s gonna cost you your license, but I gotta put your detectives on the stand.’”

“No, it isn’t.”

“Oh yeah? Tell me why not.”

“For one thing, there’s no way we can prove he was killed at midnight. We can raise the inference, I can create reasonable doubt, and it could be the time he ate his last meal will bear me out. But that’s all it is, reasonable doubt. You get what I saying? It doesn’t matter if I prove he could have been killed at midnight. The only thing that would make any difference would be if I could prove he couldn’t have been killed at eleven-thirty. And there’s no way I can do that.”

“So the time element thing is basically bullshit?”

“Basically, yes.”

“That’s a relief. That’s what I figured, but when I heard Fitzpatrick pushin’ so hard for midnight I wasn’t sure. Tell me something.”

“What?”

“Did you tell Fitzpatrick to push for midnight?”

Steve shook his head. “No. I just told him to take the guy on the time element. I didn’t tell him how to do it. That cross-examination was all Fitzpatrick. I must say, for a guy who isn’t in court that much, he’s pretty damn good.”

Taylor shook his head. “That’s not what I mean.”

“What do you mean?”

“You know what I mean. Does Fitzpatrick know Kelly Wilder’s got a cold alibi for eleven-thirty on? By two witnesses who can place her at the scene of the crime at the time of the murder, but who haven’t surfaced yet?”

Steve frowned. “You think he’d be on the case if he did?”

“Not a prayer.”

“There’s your answer.”

“I’d hate to be in your shoes when he finds out.”

Steve took a breath. “Mark, it’s a mess, I know it’s a mess. I don’t ever want to go through this again either. You don’t have to rub it in.”

“Could I change the subject?” Tracy said.

“Love you for it,” Steve said. “Jump right in.”

“The sidebar. And your objection. What was that all about?”

“Yeah,” Taylor said. “That made absolutely no sense. The jury was looking around like ‘what’s going on?’ and the judge says, ‘Rephrase the question,’ and Dirkson does, and I can’t tell if your objection’s been sustained or overruled or what the hell it was to begin with.”

Steve grinned. “Yeah, that was kind of weird. I objected to him referring to the decedent as David Castleton on the grounds they hadn’t proved identity yet.”

Taylor frowned. “What?”

“Why did you do that?” Tracy asked.

“To force them to identify the body.”

“But there’s no question about it,” Taylor said.

“Exactly,” Steve said. “But I still want them to go through the motions.”

“Why?”

“Because I’m groping in the dark and I need all the shots I can get. So I’m going to be very technical about procedure. Proper procedure is, Dirkson must show the corpus delicti before he can introduce any evidence connecting Kelly Wilder to the crime. Part of the corpus delicti is proving the identity of the corpse.”

“So what?” Taylor asked. “It is David Castleton, isn’t it?”

“Of course it is. But I’m not going to take the word of a cleaning lady for it. I want to make Dirkson put someone on the stand to identify the body.”

“Why?”

“So I get a shot at him. The way I see it, it will be either Milton or Stanley Castleton. They’re both bound to be witnesses later on. Whichever it is, I’ll get two cracks at him on the cross-examination. It can only help.”

“Yeah,” Tracy said. “But if Dirkson only calls them to identify the body, isn’t that all you can cross-examine them on?”

“Yeah, but it’s always relevant to show bias. And I can bring out a lot of stuff to show these guys have every reason to be biased against Kelly Wilder on account of her brother. I can drag in the embezzlement bit.”

“I thought Dirkson was gonna drag it in anyway.” Taylor said.

“Yeah, but you want to bet I can make it sound different than he can?”

“No takers.”

“I still say what’s the point?” Tracy said.

Steve sighed and ran his hand over his head. “The point is, sooner or later Dirkson’s gonna rest his case. When he does, we got a big problem. For one thing, we already shot our opening argument. That was a judgment call, and I still think it was worth it, but it’s done. Which means we open our case cold. I can’t stand up and tell the jury what we expect to prove. I gotta call witnesses and build our case from them. Well, that being the case, I wanna lay as big a foundation as I can before Dirkson rests and we take over. In other words, I want the jury to hear as much corroboration as possible before they hear Kelly Wilder’s story.”

“You gonna put her on the stand?” Tracy said.

Steve grimaced. “That’s the problem. At this point, frankly, I just don’t know.”