The Underground Man

43

Steve Winslow looked small. Maybe it was just after the bulk of Dirkson that made him look that way. But maybe not. Maybe it was the fact that nobody was really giving him their full attention. Maybe it was the fact that Dirkson’s argument had been so persuasive that the verdict was a foregone conclusion, and nothing he could say could possibly make any difference, so why should anyone listen to him?

Steve Winslow stood in the front of the courtroom, a strange-looking figure in his corduroy jacket, blue jeans, and long hair. He stood and waited patiently for the buzz among the spectators to subside, for the reporters to stop scribbling, for the jurors to stop looking at one another and turn their heads to him.

Suddenly he clapped his hands together and spread them wide. He struck a pose, became an actor, a showman, smiling, raising his voice and commanding their attention rather than requesting it.

“Ladies and gentlemen of the jury,” he said. “I just heard District Attorney Harry Dirkson’s closing argument, and I thought it was great. And I’m sure you did too. And I have a feeling that a number of you find that argument convincing and think the defendant is guilty.”

Steve smiled and held up his finger. “Which is why I’d like to remind you that you can’t think that yet. Because you haven’t heard my closing argument. After you’ve heard it, if you still think Jeremy Dawson is guilty, then it is both your right and your duty to do so. But I ask you to fulfill your duty as jurors and please bear with me, even though right now you may personally feel it’s not going to do any good.”

Steve smiled slightly. “I take it you all noticed that I did not put on a defense.” Steve held up his hand, turned, pointed to the judge. “Now, Judge Grimes is going to instruct you that in a murder trial the burden of proof is on the prosecution, and the defendant is under no obligation to put on any defense, nor is he under any obligation to take the stand to deny his participation in the crime. Judge Grimes will further instruct you that his failure to do so must in no way be considered by you to be an indication of guilt, that you should put it from your minds, give it no weight and not let it affect your deliberations in the least.”

Steve smiled and shook his head. “Well, ladies and gentlemen, if you can do that, I think you’re all destined for sainthood. Personally, I don’t think there’s a person in this courtroom who isn’t thinking right now, ‘Gee, why didn’t he put on any defense?’

“Well, rather than strike it from your minds, ladies and gentlemen-which frankly I don’t think is possible-I’d like to tell you why. The reason I didn’t put on a case is because the prosecution has made my case for me.

“I know you don’t think that now, but that’s because you’ve only heard the evidence, and you haven’t had time to deliberate on it and consider what it means. I’ve already done that, because frankly, to quote Mr. Dirkson, ‘That’s my job.’”

Steve was watching the jurors when he said that. None smiled, but he certainly had their attention. He pushed on.

“Harry Dirkson has already interpreted the evidence for you and told you what he thinks it means. Now I’m going to tell you what I think it means.

“Before I do so, I must digress a moment to explain something about the law. This is a case involving circumstantial evidence. By that I mean there is no eyewitness to the crime. There is no one who saw the assailant fire the bullet into the brain of the decedent. You are asked to conclude that happened from the circumstances which the prosecution has laid out.”

Once again, Steve indicated the judge. “Judge Grimes will instruct you that in any crime involving circumstantial evidence, if the circumstances of the crime as laid out by the prosecution can be explained by any reasonable hypothesis other than that of the guilt of the defendant, then you must find the defendant not guilty. That is the doctrine of reasonable doubt. The prosecution must prove the defendant guilty beyond all reasonable doubt. He is presumed innocent-you’re all familiar with the book, whether you’ve read it or not-he’s presumed innocent until proven guilty. And he is not considered proven guilty if there is a reasonable explanation for the circumstances that tend to show his guilt. If such a reasonable explanation exists, you must find the defendant not guilty.

“Well, ladies and gentlemen, I’m going to give you a reasonable hypothesis. But I’m going to go a little further than that.

“As I said, I didn’t put on my case because the prosecution proves my case for me. I’m going to show you how that is by building a reasonable hypothesis. Then I’m going to go beyond that by showing you that it is not only a reasonable hypothesis, but it is the only hypothesis which can be drawn from the facts. In short, I will show you that what the prosecution just told you, could not and did not happen.

“Now, let’s look at the evidence. I have no quarrel with the evidence Harry Dirkson just laid out for you. It’s only his interpretation of it. I think we can all concede the following things happened: on the afternoon of February 26th, Jack Walsh showed up at Jeremy Dawson’s school, found Jeremy and asked him to go with him. Jack Walsh took him to Manhattan to the 66th Street subway station, where he was seen by Joseph Bissel. He proceeded to write out a will leaving everything to Jeremy Dawson. That will is here in evidence, and you will have a chance to look at it during your deliberations.

“Now, as Mr. Dirkson said, we know the time that that happened because Jack Walsh put it in the will. It was two-thirty in the afternoon. Jack Walsh wrote out the will and gave it to Jeremy Dawson to keep.

“What happened then? Jeremy Dawson left Jack Walsh and eventually returned home. How do we know that? We know that by the testimony of the witness, Carl Jenson, who stated that Jeremy Dawson returned home at approximately five-thirty.

“What happened between two-thirty and five-thirty? I don’t think there’s much question as to that. Jeremy Dawson made his way back to New Jersey-probably read the will to himself several times on the bus going back-and in the course of the afternoon he gradually became imbued with the thought, ‘By god, I’m going to be rich.’ Not an illogical hypothesis. And we have the statement of Carl Jenson that Jeremy said almost exactly those words.

“Now, Jeremy Dawson arrived home at five-thirty, encountered Carl Jenson. Carl berated him for skipping school, demanded to know where he’d been. Jeremy replied in a flippant, hostile manner, went upstairs to take a shower. He showered, changed and went out, after saying the now immortal words, ‘You be nice to me, Carl, ’cause I’m gonna be rich.’

“And where did Jeremy Dawson go? Well, we have the testimony of Martin Steers, who saw a young boy with green hair attempting to break into Teaneck High School around seven o’clock. Can we conclude that that boy was Jeremy Dawson?”

Steve held up his hands, paused, looked around questioningly. Then he nodded. “Absolutely. I don’t think there’s a shadow of a doubt that that boy was Jeremy Dawson. I think there’s no question what Martin Steers observed was Jeremy Dawson breaking into Teaneck High School.”

Steve smiled. “Now, I see by your faces that some of you are puzzled. I would assume that you, like Harry Dirkson, expected me to argue that point. But it’s not a point I care to argue. I think the boy was Jeremy Dawson. So far, the prosecution’s and my interpretation of the case is the same.”

Steve held up his hand. “Here’s where we differ. The prosecution would have you believe Jeremy Dawson broke into the high school to get the gun. The gun kept in his locker. I think there’s a much simpler explanation. You will recall the testimony of the officer who served the search warrant on Jeremy Dawson’s locker. When he searched it, he found in the locker drug paraphernalia and several vials of crack. I think a much more likely explanation is that Jeremy Dawson broke into the high school to get the drugs. We know from Carl Jenson that Jeremy didn’t keep drugs at home, because Jenson searched his room. We know Jeremy kept drugs in his locker, because that’s where they were found. And Jeremy Dawson was a crack dealer and a crack addict.”

Steve held up his hand. “Now I’m not condoning or excusing that behavior. Frankly, I think it stinks. But that’s neither here nor there. The fact is, I think what happened on the night of February 26th was that Jeremy Dawson got so excited by the prospect of inheriting Uncle Jack’s money, so keyed up by the thought that he was going to be rich, that he decided, what the heck, he’d use up some of his merchandise and spend the evening getting high smoking crack. I think that’s a perfectly reasonable hypothesis.”

Steve broke off, looked up to find the jury staring at him incredulously. He smiled. “Yeah, I know. In the first place, you can’t believe I’m admitting he did that. And in the second place, you’re saying, ‘Yeah, but that leaves a few small questions unanswered. Like, for instance, who killed Jack Walsh.

“Well, the reason that leaves that question unanswered is because I’m explaining to you what Jeremy Dawson did, and the simple fact is Jeremy Dawson had absolutely nothing to do with the murder.”

Steve smiled again. “Yeah, I know. That’s a sort of unsatisfactory explanation. So let’s answer the question. Who killed Jack Walsh?”

“I refer you once again to the testimony of Carl Jenson. Jeremy Dawson returned around five-thirty, Jenson questioned him, Jeremy Dawson made rude replies and went upstairs to take a shower and change.

“If you will recall my cross-examination of Carl Jenson, at this point I asked him if Jeremy Dawson had ever cut school before, and then I asked him if Jeremy had ever been suspended. He said, yes, for drugs. I asked him if he had ever searched Jeremy Dawson’s room and he admitted that he had, but he had found no drugs. He said that that didn’t prove anything because Jeremy was selling them out of his locker.

“Now,” Steve said, “during your deliberation you have the right to ask to have any portions of the testimony read back to you.” Steve picked up a paper from the defense table. “I call your attention to the following exchange:

“Question: ‘I see. So you searched his room?’ Answer: ‘Yes, I did.’ Question: ‘And did you find any drugs?’ Answer: ‘No, I didn’t.’ Question: ‘And did that make you think maybe the school was wrong?’ Answer: ‘No, because he didn’t have them at home, he had them at school. He was selling drugs out of his locker.’ Question: ‘You know that now because of what the police found in his locker. But you didn’t know it then.’ Answer: ‘Yes, I did.’ Question: ‘How?’”

Steve Winslow looked up from his reading. “At this point the court reporter has written the word ‘pause.’ You will recall, that was because the witness did not answer. Then the question is repeated: Question: ‘How, Mr. Jenson?’ Answer: ‘I don’t know. I just know.’ Question: ‘How did you know?’ Answer: ‘Well, it stood to reason.’”

Steve set the transcript down on the table. “It stood to reason,” he said. “And certain things stand to reason here. Carl Jenson admits having searched Jeremy Dawson’s room. Jenson states that at the time he knew Jeremy Dawson was selling drugs out of his locker. When asked how he knows, he becomes evasive and does not answer, finally saying ‘it stood to reason.’ Now, you don’t have to take this from me, you can look at the transcripts yourselves. It’s part of the evidence in this case, and part of what you must consider.

“And from this, what reasonable hypothesis can I draw? From this I draw the reasonable hypothesis that Carl Jenson knew that Jeremy Dawson was selling drugs from his locker, because after he searched his room and found nothing, he contrived to search Jeremy Dawson’s locker. At which point he would have discovered the drugs.

“And the gun.

“If so, why would he keep silent? Why wouldn’t he tell someone? Well, you’ve seen Carl Jenson on the witness stand. You’ve seen his demeanor, you know what kind of person he is. I think we can safely say that Carl Jenson didn’t tell anyone because he was the type of person who felt that information was power. The drugs and the gun were facts he filed away for future reference. He could blow the whistle on Jeremy Dawson, get him in trouble, but it wouldn’t do anything for him.

“Now, how would Carl Jenson have gotten into Jeremy Dawson’s locker? I put it to you that Jeremy Dawson as the prosecution has sketched him, a flaky crack head, was the type of person who couldn’t trust himself to remember his locker number. He would have it written down someplace. And if he had it written down someplace, it could be discovered by someone who searched his room.

“Which brings us to the day of the murder. Jeremy Dawson returns home, exchanges heated words with Carl Jenson, goes upstairs, takes off his clothes and takes a shower. Carl Jenson is terribly suspicious. He thinks that Jeremy Dawson has been with Jack Walsh. He wonders what went on between them. Jack Walsh is an eccentric man. He could have done anything. He might have given Jeremy money. Jenson wants to know.

“While Jeremy Dawson is in the shower, Carl Jenson steals upstairs and searches his clothes. What does he find?”

Steve strode over and picked it up from the clerk’s table. “He finds this. A handwritten will, executed that very day, leaving the bulk of Jack Walsh’s fortune to Jeremy Dawson.

“Well, imagine how Carl Jenson must have felt. All of his worst fears had just been confirmed. He had every reason to hate Jack Walsh. He had every reason to hate Jeremy Dawson.

“I don’t know if he had a plan then. It must have been pretty jumbled in his mind. But one thing he knew for sure. Jeremy Dawson was not going to get away with it.

“So what did he do? He waited and planned. He put the will back in Jeremy Dawson’s pocket and went downstairs as if nothing had happened. When Jeremy came downstairs, once again he tried to engage him in conversation, tried to get a rise out of him. Well, he got one all right. The immortal words. ‘You be nice to me, Carl, ’cause I’m gonna be rich.’”

Steve paused and held up his finger. “The last straw. You can imagine the response: ‘Not if I can help it.’

“Jeremy Dawson leaves. Does Carl Jenson follow him? You bet he does. He’s not letting Jeremy Dawson out of his sight.

“And what happens? Jeremy Dawson goes and breaks into the high school. Jenson knows why-he’s going to his locker to get drugs. Why doesn’t Jenson think Jeremy’s going there to get the gun?” Steve smiled and spread his hands. “Because no one’s been murdered. So there’s no reason to think Jeremy would be going there for any reason other than the drugs.

“So Carl’s there and he sees him go in. And he sees something else. He sees Martin Steers see Jeremy Dawson go in.

“And I would think it was about then that the plan began to form. It was then that Carl Jenson put it all together. The gun in the locker. The witness who saw Jeremy breaking into the high school. The will in Jeremy’s pocket. He put that all together, and suddenly Carl Jenson realized if the gun in Jeremy Dawson’s locker killed Jack Walsh, he would have a perfect frame.

“And one that solved all his problems. Particularly his problem about the will. Because Carl Jenson was always a schemer. He’d already consulted lawyers about Uncle Jack’s estate, so we can assume he knew all the legal angles. In particular, he would have known that no person convicted of murder can inherit anything from the person he killed. So murdering Jack Walsh and framing Jeremy Dawson would knock out Jeremy’s will and leave Carl free to inherit.

“So he does it. As soon as Jeremy Dawson comes out of the high school, Carl Jenson goes in the same door. He already has the locker combination from when he searched it before. He opens the locker. The gun is there. He takes it, goes to Manhattan, kills Jack Walsh.

“How did he know where to find him?” Again, Steve picked up the handwritten will from the court reporter’s table. “From this. From the will Carl Jenson read. It’s right here, and you can look at it yourselves. In it, Jack Walsh not only put the date and the time of the will, but he also wrote down the location where it was written-the 66th Street subway station. Jenson has read the will, so he knows Jack Walsh is hanging out there.

“But what if he wasn’t there? Well, if he wasn’t, the plan wouldn’t have worked, and Carl Jenson would have had to return the gun to the locker and then think of something else.

“But he was there. Just where the will said he’d be. He was there, and Carl Jenson found him and walked up to him and he shot him.

“And what did he do then? Well, at that point he had a problem. He had to put the gun back in Jeremy Dawson’s locker so it would convict him of the crime.”

Steve stopped and shook his head. “But that was a little much. Even for Jeremy Dawson. Even for Carl Jenson’s opinion of Jeremy Dawson. He found that hard to swallow. Just as the prosecution found it hard to swallow. Just as you’re probably finding it hard to swallow now. I mean, come on, the guy’s so stupid he puts the murder weapon back in his own locker?

“But that was the premise under which Carl Jenson had to operate. The gun had to be found in Jeremy Dawson’s locker to link Jeremy Dawson to the crime. How could he do that without making it seem such a clumsy, obvious frame?

“And what is the answer? He set the body on fire. He set the body on fire so it would appear Jeremy Dawson set the body on fire in an attempt to disguise the crime. So the prosecution would have reason to argue, as it is arguing now, that Jeremy Dawson could logically have kept the gun, because he expected the crime would be written off as a wilding incident, and the fatal bullet never discovered.”

Steve shook his head. “Well, that’s mighty thin. But the prosecution’s arguing it. I’m sure they’re not happy about it, but they’re arguing it. They’re arguing it because they have to. Because it’s the only grounds on which they can support their theory that Jeremy Dawson killed Jack Walsh. Because if that doesn’t hold water, neither does their whole theory. Which shows you what a weak case they actually have.”

Steve paused and looked at the jury. “I want you to think about that for a moment. I want you to think about the prosecution’s case. I want you to think about the fact that they’ve been forced to argue that Jeremy Dawson burned the body so he could keep the gun. I want you to realize that that is the weakest part of their case, the part they would be most eager to build up and support. And I want you to consider that they have not done so. That they have, in my opinion, sluffed the matter off.”

Steve paused, shrugged. “Now, you can say the matter is debatable. The prosecution says one thing, I say another thing, so we have a dispute.”

Steve paused again and raised his finger. “But there is one fact in this case on which there is no dispute. One fact on which all the witnesses agree. And that fact is this: whatever else may have happened, on February 26th and February 27th, the defendant, Jeremy Dawson, had green hair.”

Steve waved his finger. “Green hair. A green mohawk. That fact is indisputable. On that, all the witnesses agree.

“And now, I ask you to consider this. We know the prosecution was attempting to shore up the one weak point in its case, the point that Jeremy Dawson burned the body. The prosecution and the police, with their extensive manpower, have been conducting an exhaustive search to uncover evidence connecting Jeremy Dawson to the crime. You’ve seen for yourself the results of their work in locating Martin Steers, who saw Jeremy breaking into the high school.

“But there is one thing you haven’t seen. Which is why I ask you this: with all the publicity surrounding this case, with all the efforts of the police department to uncover information pinning the crime on Jeremy Dawson, and with the prosecution so desperate to prove that Jeremy Dawson burned the body-” Steve raised his voice, “-is it conceivable, is it remotely possible, is there any chance whatsoever-” Steve paused, and then hammered it in: “-that on February 26th a service station attendant sold a can of gasoline to a boy with green hair, and the police haven’t found him?”

Steve paused. Some of the jurors blinked. Some looked at each other.

Steve nodded. “Yeah. Pretty incredible. If a service station attendant had sold a can of gasoline to a boy with green hair, he’d remember it. And with all the publicity surrounding this case, he’d hear about it, and he’d come forward. And even if, by some far stretch of the imagination, he didn’t hear about it, the police would still find him.

“But they haven’t found him, have they?” Steve said. “We know that because if they had, he’d have been the star witness for the prosecution, the most damning witness of all, the one who clinched the case. But they haven’t found him. And they can’t find him, and they won’t find him, because he doesn’t exist. Because Jeremy Dawson didn’t buy a gallon can of gasoline on February 26th. And Jeremy Dawson didn’t set the body on fire.

“And if he didn’t do that, he didn’t fire the fatal shot, because by the prosecution’s own argument, if, and only if, he set the body on fire, would he have fired the fatal shot and then kept the gun.”

Steve shook his head. “Not possible. Couldn’t have happened.

“And now consider this: if a straight businessman in a suit and tie, a man like Carl Jenson whom you have just seen on the witness stand, were to walk into a filling station looking somewhat hassled and say, ‘My car just ran out of gas on the highway, can you sell me a gallon can?’ would the filling station attendant think anything of it and even remember it? You know and I know he would not.”

Steve looked around and shrugged. “You see why I put on no case. The evidence as it is is overwhelming. Jeremy Dawson could not have committed the crime. Carl Jenson could.

“As you review the evidence in this case, I want you to remember what I told you at the start. It is a case of circumstantial evidence. In such a case, for the prosecution to get a conviction, it is necessary that the circumstances point only to the guilt of the defendant, and are not open to any other reasonable interpretation. I ask you to look carefully at the evidence, examine it, consider what it means.

“And then weigh it.

“And when you do, remember this: it is not necessary for the defense to tip the scale. We don’t have to make the stronger case. I personally believe there is more evidence in this case that Carl Jenson committed the murder than that my client did. But you don’t have to agree with that to bring in a verdict of not guilty. It is not necessary that you consider it more likely that Carl Jenson committed the crime. It is only necessary that you consider it possible. Any reasonable hypothesis other than that of guilt. If you believe it possible that Carl Jenson committed the crime, you must give the defendant the benefit of that reasonable doubt, and return a verdict of not guilty.

“Ladies and gentlemen of the jury, your task is clear. I leave you to you sworn duty.”

Steve smiled at the somewhat dazed looking jurors, bowed and sat down.

It took the jury two and a half days to bring back a verdict of not guilty.