The Underground Man

34

Judge Grimes looked down from his bench at Steve Winslow and Harry Dirkson. “Gentlemen. Since yesterday I’ve gone over the testimony of the witness, Joseph Bissel, and considered Mr. Winslow’s motion. I am now prepared to rule. However, as I now understand it, Mr. Dirkson has some new evidence which could render my ruling moot. Nonetheless, here is the situation. With regard to the motion to strike the testimony of Joseph Bissel, it is at least in part denied. An examination of his testimony shows that it is not true that the sole purpose of the testimony was to implicate the defendant, Jeremy Dawson, in the crime. Indeed, the greater part of his testimony, that he saw Jack Walsh in the subway station on February 26th, that he personally observed Jack Walsh writing something on a piece of paper, is not only relevant and admissible, but is actually part of the circumstantial evidence which the prosecution can use for making a case that the body found in the station was indeed Jack Walsh. Therefore, the only part of the testimony in question is that where Joseph Bissel identifies the man he saw in the subway station with Jack Walsh as the defendant, Jeremy Dawson.”

Judge Grimes paused and frowned. “I have given the matter careful consideration because I must say frankly I believe it to be a close point. However, I find that I must hold with the defense attorney and rule that the prosecution does not have sufficient grounds to introduce the evidence at this time. I am therefore striking the testimony regarding the identification of Jeremy Dawson from the record. However, I am prepared to reinstate it, if and when the prosecution produces sufficient evidence to warrant my doing so. However, I am striking it from the record at this particular time.

“Now, with regard to matters of procedure. Mr. Winslow, Mr. Dirkson has concluded his direct examination of the witness. You now have the right to cross-examine. But naturally, only on that portion of the testimony which now remains in the record. If you do, and Mr. Dirkson then makes an additional showing which results in the reinstatement of the remainder of Joseph Bissel’s testimony, you would at that time be given an opportunity to cross-examine on that. That being the case, I ask you if you would care to cross-examine the witness now, or whether you would care to defer your cross-examination until such time as it is determined whether the remainder of his testimony is to be reinstated.”

Steve smiled. “Your Honor, in the event that his testimony is not reinstated, rather than cross-examine, I think I would find I had another motion to make.”

Judge Grimes smiled. “I’m sure you would, Mr. Winslow. Though if the corpus delicti is not proved, the motion to dismiss would not be necessary.

“Now, Mr. Dirkson. Are you prepared to proceed?”

“I am, Your Honor.”

“Very well. Bring in the jury.”

When the jurors had been seated, Judge Grimes said, “Ladies and gentlemen of the jury, I apologize for the delay. Allow me to explain the situation. At this time I must ask you disregard the testimony of the witness, Joseph Bissel, with regard to identifying Jeremy Dawson as the person he saw in the subway station with Jack Walsh. You are to put it from your minds, and give it no weight.

“Now, with regard to the witness, Joseph Bissel. He has not completed his testimony. The defense still has the right to cross-examine. However, he has been withdrawn from the stand at the present time so that the prosecutor may introduce additional evidence.

“We are now prepared to proceed. Mr. Dirkson.”

Dirkson rose. “Thank you, Your Honor. Recall Dr. Murray Abraham.”

The medical examiner entered from the back of the courtroom and took the stand. It was obvious that he was still smarting from the effects of Steve Winslow’s cross-examination. He did not glance once at the defense table, and his lips were set in a firm line.

When the medical examiner had seated himself on the stand, Judge Grimes said, “Dr. Abraham. You have already testified. Let me remind you that you are still under oath. Mr. Dirkson.”

“Thank you, Your Honor. Dr. Abraham, since yesterday have you performed any additional tests on the body of the decedent?”

“Yes, I have.”

“Can you tell us about those tests?”

“Yes, sir. I went over the body of the decedent again with the express purpose of looking for some medical anomaly which could be used as the basis for establishing the identity of the victim.”

“And did you find anything?”

“Yes, I did.”

“And what was that?”

“I found a hairline fracture of the right fibula.”

“For the benefit of us laymen, Doctor, just what is the fibula?”

“It is one of the lower leg bones. The smaller bone in the back of the lower leg.”

“I see. And you say the victim had a hairline fracture on his right lower leg bone?”

“That is correct.”

“Can you tell us anything about that hairline fracture?”

“Several things. For one, the fracture had probably not been medically treated.”

“Why do you say that?”

“Because of the way it healed. The split bone is slightly askew. In other words, it healed in precisely the position it cracked. It was not set. No attempt was made to hold the bone together. From which it is apparent the leg was never put in a cast.”

“I see, Doctor. But how is that possible? Wouldn’t a man with a broken leg require medical attention?”

Dr. Abraham shook his head. “Not with a hairline fracture of the fibula. You see, the fibula is not the support bone. The tibia is. A person with a hairline fracture of the fibula should have medical attention, to make sure it heals properly and in order not to risk a permanent disability. But since it is not a support bone, a person with a hairline fracture of the fibula can walk on it. Although they are apt to experience pain and walk with a slight limp until such time as the fracture has healed itself.”

“And the fracture was this type of injury?”

“It was.”

Dirkson nodded his approval. “Very good, Doctor. Now let me ask you this. Can you tell us anything with regard to the time of the injury? When it occurred?”

“Only in a general way. It is obvious the injury is not recent. From the age of the calcium deposits built up around the fracture, it is clear that this is an old injury. Most likely twenty to thirty years old.”

“Thank you, Doctor. That’s all.”

“Mr. Winslow?” Judge Grimes said.

Steve Winslow stood up. “Ah yes, Doctor. With regard to this hairline fracture-this fracture that you missed in your initial autopsy-”

The medical examiner set his jaw. “I beg your pardon,” he snapped. “I did not miss it in my initial autopsy.”

“Oh?” Steve said. “Did you find it?”

“No, I didn’t, but-”

“Then you missed it, didn’t you?”

The medical examiner scowled. “I didn’t miss it. It wasn’t what I was looking for.”

“Oh? And what were you looking for?”

“I was looking for the cause of death. That is the purpose of an autopsy.”

“I see,” Steve said. “You didn’t miss it because you weren’t looking for it. Then tell me, how is it that you happened to find it this time?”

“Because I was specifically looking for it.”

“And why was that?”

“You know why. The prosecution asked me to examine the body and see if I could find anything that would determine the identity.”

“I see. And when the prosecution asks you to look for something, you look for it. Is that right, Doctor?”

Dr. Abraham took a breath. “As a medical examiner, that is my job.”

“I see. And when the prosecution asks you to find something, you find it. Is that right, Doctor?”

“Objection,” Dirkson said.

“Sustained.”

Steve smiled. “Thank you. No further questions.”

Steve Winslow sat down, wondering what was next. The prosecution obviously had no medical records, not with Dirkson having the doctor testify how these hairline fractures could heal without medical attention. And in his opinion, none had been given in this case. So how was Dirkson going to tie it up?

When the medical examiner had been excused, Dirkson said, “Call Carl Jenson.”

Jeremy Dawson grabbed Steve’s arm. “Why are they callin’ Carl?”

“I don’t know. Wait and see.”

“Yeah, well he’s a lyin’ sack of shit. Don’t trust him.”

“Don’t worry.”

Steve watched Carl Jenson take the stand. In Steve’s opinion, Carl did not make a good impression. He was wearing his best suit and tie, and he was clean shaved and his hair was well groomed. But there was always something about him that was not quite right.

And it showed.

After Jenson had been sworn in, Dirkson said, “Your name is Carl Jenson?”

“That’s right.”

“What is your relationship to the decedent?”

“Objection, Your Honor,” Steve said. “Assuming facts not in evidence.”

Dirkson frowned. “I beg your pardon?”

“The word ‘decedent,’” Steve said.

“Sustained,” Judge Grimes said.

“I’ll rephrase the question, Your Honor. What is your relationship to Jack Walsh?”

“He is my great-uncle.”

“How long have you known him?”

“All my life.”

“How well did you know him?”

“Very well. I lived in his house most of my life.”

“Very good,” Dirkson said. “Then let me ask you this. Do you have any personal knowledge of any injuries Jack Walsh sustained in his lifetime?”

“Objection to ‘in his lifetime,’” Steve said.

“Sustained. That phrase may go out.”

Nettled, Dirkson said, “Same question, omit the phrase. Do you have any personal knowledge of any injuries Jack Walsh ever sustained?”

“Yes, I do.”

“Could you tell us about that, please?”

“Yes, I could. It was a long time ago. I must have been nine or ten years old. I was living in Jack’s house at the time.”

“And where was that?”

“In Great Neck.”

“Thank you. Go on.”

“I was out in the backyard, and Uncle Jack was playing with me.”

“What were you playing?”

“Baseball. Whiffleball, actually. Jack was pitching and I was hitting the ball.”

“What happened?”

“I hit a popup. Uncle Jack ran to get it and tripped and fell.”

“Was he hurt?”

“Yeah. He hit his leg on a rock.”

“Which leg?”

“His right leg.”

“What part of his leg hit the rock?”

“The bottom of his leg. Right there.”

“Let the court reporter note that the witness is indicating a spot in the back of his right leg midway between the knee and the ankle.” Dirkson turned back to the witness. “So what happened then?”

“Nothing. Except we stopped playing ball.”

“Did Jack Walsh go to the hospital?”

“No.”

“Or see a doctor?”

“No.”

“Are you sure?”

“Yes, I am. I remember, I said, ‘Uncle Jack, you gonna go to the doctor?’ and he said, no, it was nothing. But I know he couldn’t walk on it. He sat with his leg up for a couple of days. After that he limped for a while.”

“And after that?”

Jenson shrugged. “It got better. You know, just like he’d sprained his ankle.”

“I see. But it wasn’t his ankle, was it?”

“No. It was his leg. Right there, like I said.”

“I see,” Dirkson said. “Thank you. No further questions.”

Judge Grimes said, “Mr. Winslow?”

Steve rose. “I have a few questions, Your Honor.” He crossed in to the witness. “Mr. Jenson, you testified that this incident occurred when you were nine or ten?”

“That’s right.”

“That would be about twenty-five years ago?”

“Yes, it would.”

“You have an excellent memory.”

“Thank you.”

“You’re welcome. Mr. Jenson, are you familiar with the provisions of Jack Walsh’s will?”

“Objection, Your Honor,” Dirkson said. “Incompetent, irrelevant and immaterial.”

“It’s always proper to show bias, Your Honor.”

“Objection overruled. Witness will answer.”

“Are you familiar with the provisions of the will?”

“Yes, I am.”

“Are you a beneficiary of Jack Walsh’s will?”

“No, I’m not.”

“You’re not?”

“No, sir. As you well know. The only beneficiary of that will is Jeremy Dawson.”

“You’re referring to the handwritten will that was in Jeremy Dawson’s possession when he was arrested by the police?”

“Your Honor, Your Honor,” Dirkson said. “Objected to as leading and suggestive, and assuming facts not in evidence. Counsel is now going into parts of the prosecution’s case which we have not yet set forth.”

“Objection overruled,” Judge Grimes said. He turned to the jury. “Ladies and gentlemen of the jury. Let me explain. The matters Counsel is going into now are not in evidence, and are not to be considered by you as such. You are to consider only how these matters relate to the bias of this particular witness.” He turned back to Steve. “Proceed, Mr. Winslow.”

“Thank you, Your Honor. The question was whether you were referring to the holographic will found in Jeremy Dawson’s possession when he was arrested by the police?”

“Yes, I was.”

“That was the will purportedly written by Jack Walsh on February 26th?”

“That’s right.”

“And you say the only beneficiary of that will is my client, Jeremy Dawson?”

“Well, actually, I’m left a thousand dollars. As are the other relatives. But I don’t consider that making me a beneficiary, somehow. I consider it a slap in the face.”

Steve frowned. “So, if I understand what you’re saying, your contention is that you are not biased in this matter because you are not a principal beneficiary in the will?”

“Exactly.”

“Fine. Then let me ask you this. Is it not true that you have already consulted a lawyer and are contesting that will?”

“Yes, I am.”

“On what grounds?”

“Lots of grounds.” Carl Jenson ticked them off on his fingers. “The will was made under undue influence. The will was made while Jack Walsh was not of sound mind. And the will wasn’t finished. It’s not even signed.”

“Do you expect to win the will contest?”

“Yes, I do.”

“I take it you are a beneficiary of a previous will made by Jack Walsh?”

“Yes, I am.”

“As I understand it, in that previous will, you and four other relatives, including Jeremy Dawson, are the principal beneficiaries, each to receive an equal share of the estate. Is that right?”

“Yes, it is.”

“And you and the other beneficiaries, excluding Jeremy Dawson, have consulted a lawyer for the purpose of contesting the handwritten will found in the possession of Jeremy Dawson?”

“Yes, we have.”

“And did that lawyer tell you that no person convicted of murder may profit from inheritance from his victim, so if it should be proven in court that Jeremy Dawson killed Jack Walsh, he could not and would not inherit, regardless of any will?”

There was a pause. Carl Jenson frowned.

“Can you answer that, Mr. Jenson?”

“I think he said something to that effect.”

“Oh, you do, do you?” Steve said. “Well, let’s see where that leaves us. You are contesting the will and you expect to win. In the event that you do, you will receive one-fifth share in an estate worth millions of dollars. On top of that, if Jeremy Dawson should be convicted of the crime and could not inherit, you would receive one-fourth share of said estate. But is it not true that in any case, you will inherit that money if and only if Jack Walsh is proven dead? To put it another way, is it not a fact that if the murdered man found in the subway tunnel turns out to be Jack Walsh, you stand to share in an estate worth millions of dollars, but if the man found in the subway tunnel is not identified as Jack Walsh, you don’t get a dime?”

Jenson shifted on the witness stand. “I’m not a lawyer.”

“No, but you’ve consulted one. And I’m asking you, in your own mind, are you not aware that if that body is identified as Jack Walsh you stand to inherit money, and if it isn’t you don’t? And does that in any way color your recollection, in any way influence your remarkable memory to come up with the details of an unimportant and eminently forgettable incident you claim happened some twenty-five years ago?”

“No, it doesn’t. I’m just telling you what happened.”

“You remember it clearly?”

“Yes, I do.”

“Jack Walsh fell down and hit his leg on a rock?”

“Yes, he did.”

“His right leg?”

“That’s right.”

“You’re certain of that?”

“Yes, I am.”

“Could not have been his left leg?”

“No, it couldn’t.”

“You remember that so clearly that you can swear absolutely that it could not have been his left leg?”

“No. It was his right.”

“And the fact that if it had been his left leg you might lose a million dollars doesn’t cloud your memory at all?”

“No. It was his right leg.”

Steve Winslow rolled his eyes, shook his head, gave the jury the benefit of his look of utter disbelief. “Thank you so much, Mr. Jenson,” he said ironically. “No further questions.”

Judge Grimes took a twenty-minute recess. When court reconvened, he frowned, took a breath and said, “I have considered that matter carefully. It now appears that there is sufficient circumstantial evidence to conclude that the body found in the subway station was indeed Jack Walsh. Therefore we may consider the corpus delicti proven, and the prosecution may introduce evidence tending to link the defendant to the crime. Therefore at this time, the testimony of the witness, Joseph Bissel, which had been stricken from the record, shall be considered reinstated, and may be considered in evidence.

“Now, the witness, Bissel, was withdrawn from the stand in order that this new evidence might be heard. And the defense reserved its cross-examination until such time as it should be determined if his testimony was in evidence. That time is now. Return the witness, Bissel, to the stand for cross-examination.”