The Wrong Gun

24

“You ever buy a used car?”

Steve Winslow raised his eyebrows, looked at the jury. He shrugged. “It doesn’t matter if you have or not, you know what I mean. The spiel. I’m talking about the spiel. The used car salesman’s spiel. ’Cause you know and I know, even if we’re talking about some clunker with four bald tires, the guy selling you that car’s gonna make it sound pretty good.

“Now, I just heard Mr. Vaulding’s opening statement, and I must say, it sounded pretty good. And if it sounded pretty good to me, I bet it sounded pretty good to you.

“But you have to remember something. It’s supposed to sound good. Otherwise you wouldn’t buy the car. But if the salesman is nice and bright and young and personable and talks real fast, you’re gonna have that sucker home before you notice it’s leaking oil.”

Steve paused and looked at the jurors. He had their attention, yes, but that was it. It was obvious no one had the faintest idea what he was talking about.

Steve plunged ahead. “Of all the things Mr. Vaulding told you, there was one thing he got right. The burden of proof is on the prosecution. He only said it because he knew I was going to say it and he wanted to say it first. But be that as it may, the fact is he is absolutely right. The burden of proof is on the prosecution. I don’t have to prove a thing.

“But you wouldn’t know that from the rest of Mr. Vaulding’s statement. He talks about a reasonable hypothesis other than that of guilt. As if he’s going to lay out the facts for you, and then if I can explain them in a way that doesn’t implicate my client, then my client can go free.

“Well, that’s mighty nice, but that’s not the way it happens to work. I don’t have to explain the evidence Mr. Vaulding brings out.” Steve turned and pointed his finger. “He does. If the facts that the prosecution brings out do not make sense, that’s not my fault. That’s not my client’s fault. And we have no responsibility to sort those facts out for you.” Again, Steve pointed his finger. “He does. And if he can’t sort ’em out for you, if he can’t explain the facts in a way that they make sense-then he doesn’t have a case. And that is when the charge should be dismissed. Right then and there.”

In the back of the courtroom, Tracy Garvin nudged Mark Taylor who was seated next to her and whispered, “What the hell’s he doing?”

From the side of his mouth, Taylor whispered back, “You got me.”

Steve took a breath, settled himself. He looked over at the prosecution table, saw Vaulding smiling. And in that split second, Steve knew why. He’d played right into Vaulding’s hands. He was losing it. He’d gotten himself all worked up, but he was leaving the jurors cold. He was making a perfectly sound legal argument, and Vaulding understood it perfectly well. But as far as the jurors were concerned, it was dry lawyer doubletalk.

Steve smiled, shook his head, and chuckled. He looked sideways up at the jury with an impish grin. “Not buyin’ it, huh? A bunch of lawyers spewing out their theories, big deal, what does it all mean?”

Steve clapped his hands together. “O.K. Let’s look at the facts of this case. During his opening statement, Mr. Vaulding told you time and time again that my client, Russ Timberlaine, was seen wearing the murder weapon at the auction on the afternoon of the murder.” Steve held up his finger. “He states this as fact. Again and again and again. Russ Timberlaine was seen wearing the murder weapon. Russ Timberlaine admits firing the murder weapon. The murder weapon that Russ Timberlaine was wearing at the time of the auction was found on Russ Timberlaine’s night table.”

Steve shrugged. “Pretty damning, right?” He shook his head. “Wrong. It’s the spiel sounding good, but when you get the car home it’s a lemon.” Steve held up his finger. “The reason Mr. Vaulding keeps stating that Russ Timberlaine was seen wearing the murder weapon is because he can’t prove it. He has no proof whatsoever. Now, I am sure there are witnesses who saw Russ Timberlaine wearing a gun at the auction. But he doesn’t have one single witness who can testify Russ Timberlaine was wearing the murder weapon at the time of the auction.” Steve shook his head. “No, Mr. Vaulding states it as fact, but it’s just part of the spiel. There is no witness to identify that gun, and there is no other means of identifying that gun.

“Now, Vaulding didn’t mention this during his opening statement, but the murder weapon has no serial number. The serial number on that gun has been ground off. As was the serial number on the other gun, the gun that was found next to the body, the gun Mr. Vaulding assures us will be identified as the real Pistol Pete Robbins gun. Vaulding says he has experts who can testify to that. And he has witnesses who can testify to the fact that Russ Timberlaine was known to have owned that gun.”

Steve grinned, raised his hand. “Keep your eyes on the gun, ladies and gentlemen. Forget the used car salesman. Let’s talk about a magician. Yeah, I had it wrong. That’s what Mr. Vaulding was during his opening statement. A magician. Keep your eyes on the gun.

“There are witnesses who will testify that the gun found next to the body was owned by Russ Timberlaine. Big deal, since that gun had absolutely nothing to do with the murder. But there are no witnesses whatsoever who can testify that the murder weapon was owned by Mr. Timberlaine, or was ever in Mr. Timberlaine’s possession. At most, the prosecution can show that the murder weapon was eventually found on a night table in Russ Timberlaine’s bedroom. And when was it found? After the cops arrived. And how was it found? The cops asked Russ Timberlaine for his gun and he said oh sure, here it is, and showed them the gun on the night table.

“Does that sound like the action of a guilty man? Does that sound like the action of a man who had any reason to believe that gun might be involved in a murder? Absolutely not. That sounds like the action of a man with absolutely nothing to hide. A man who was absolutely astounded to find out the gun in his possession was the murder weapon.

“And why is that?” Steve smiled. “Because Russ Timberlaine is innocent. Because the gun found in his gun belt on his night table is not the gun he was wearing at the auction, much as the prosecutor would like you to believe it was. No, the gun found in Russ Timberlaine’s gun belt in Russ Timberlaine’s bedroom-a room that was unlocked and could have been entered by anyone at any time-that gun was planted there after the murder by the murderer to make it look like Russ Timberlaine was guilty.”

Steve smiled. “Hey! There’s a reasonable hypothesis other than that of guilt. We got there after all.

“And you know what? There is absolutely nothing to contradict that hypothesis. There’s no evidence that the gun on that night table was the gun worn by Russ Timberlaine at the auction. No witnesses whatsoever. The only assertion that is true is the unsubstantiated word of the prosecutor, District Attorney Robert Vaulding. And how much credence may we place in that? Well, the man is not omniscient, he’s not a psychic, and he’s not a witness. He’s expressing his opinion. What he’d like to have be true. But for a real assessment of how much his opinion’s worth, consider this: if the gun found next to the body had turned out to be the murder weapon, Mr. Vaulding would now be claiming that was the gun Russ Timberlaine was wearing at the auction.”

Steve paused and let that sink in. He shrugged. “He’d like that much better. See, that gun he can tie to Timberlaine. That gun, he can prove Timberlaine owned. But the murder weapon he can’t.”

Steve tugged open the cuffs of his jacket one at a time, a nothing-up-my-sleeves gesture. He smiled. “Keep your eyes on the gun, ladies and gentlemen.” He held up his hand. “Mr. Vaulding says, I hold in my hand the murder weapon.” Steve snapped his fingers. “He snaps his fingers, poof, the gun disappears. He walks across the stage to the table where he’s left his top hat, reaches in and, voila, pulls out a gun. This is where you the audience are supposed to clap because it’s the same gun.”

Steve shrugged. “Wanna bet if it is? Keep your eyes on the gun, ladies and gentlemen. As I said, the prosecution is going to put on a host of witnesses to testify about the gun. Well, consider this: if I were to introduce evidence that any one of them had purchased a Colt.45 at some time before the murder, the prosecution would have no way whatsoever to prove that gun was not the murder weapon.”

In the back of the courtroom, Mark Taylor coughed and nearly gagged.

Steve Winslow took no notice. He smiled at the jury. “So keep your eyes on the gun, ladies and gentlemen. Keep your eyes on the case.”

Steve rubbed his hands together, then suddenly broke them apart and spread them wide, palms out.

Steve smiled.

“Poof.”