Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller (39 page)

“Yes.”

I consulted Gary Oliver’s notes. “Sergeant Tanagra remembered that the reason she went down to the beach was because someone had said, ‘I wonder if the dog’s all right. Why isn’t he barking?’ And she thought that someone was you. Do you remember that, Neil?”

He laughed good-naturedly. “Ted, we’re talking about thirteen years ago. I like to think I’ve got a good memory, but that’s pushing it right against the edge of the envelope.”

“You mean you don’t remember?”

“That’s absolutely correct.”

“You didn’t tell Sergeant Tanagra that the dog was down by the beach?”

“Look, I’m saying I may have. Or I may
not
have. I don’t want to guess or speculate. I’m under oath, Ted.”

“So you are.” He was a wonderful witness: arrogant, well-spoken, almost cheerful.

I picked up a slim manila folder from the counsel table, asked the judge’s permission to approach the witness, and handed the folder to Neil in the witness box.

“Would you open that folder, please, and look at its contents?”

Neil treated the folder as if it might have been a letter bomb. But he opened it carefully and flipped through the pages inside it. Then he looked up at me calmly. He shrugged.
What’s the big deal?

“Neil, would you tell the court what you’ve just looked at?”

“They seem to be copies of a statement I made to the police thirteen years ago—”

“That’s all?”

“You didn’t let me finish. And a couple of pages of my testimony at the subsequent trial.”

“What’s the gist of it all?”

“It’s my description of the two men who tried to rob the house and then shot my father. And my description of what happened that night.”

“Your memory was fresh then, wasn’t it?”

“Yes, of course.”

“You told the truth, didn’t you?”

“Yes, I certainly did.”

“Thirteen years have passed. Do you have any reason to change your mind about what you saw and what you believe happened on that tragic night?”

He looked at me for a moment, not sure if there was irony in my tone. There wasn’t.

“Certainly not.”

“You’ll stand by what you said to Sergeant Nickerson on the morning of December 6, 1978, and under oath to the trial jury?” “Of course.”

I took the folder from his hand and read aloud to the judge: “ ‘They were young, black, wearing sneakers, jeans, and I seem to remember a dark T-shirt. There were two of them. I didn’t get a decent look at the other one, who cut my mother. They were obviously clumsy, they didn’t expect anyone to be awake at that hour … my father surprised them, and they panicked… . No, I don’t know how they got onto the property.’ “

I looked up at the bench. “That’s from the JSO offense report, Your Honor. Mr. Zide signed each page in the margin, including the one I read from. And now, Your Honor, I’ll read from the trial transcript. This was on direct examination. I was the prosecutor. I asked the questions, and Mr. Zide answered them.”

I took a drink of water, then read:

“Q
[by Mr. Jaffe]-.
Did you see them clearly?

“A
[by Mr. Zide]:
Oh, yes.

“Q: They weren’t in shadow?

“A: No, I could see them quite well. One was a very tall young black man. The other one I don’t remember as well.

“Q: Describe the lighting, if you don’t mind.

“A: The lamps in the living room were on, and they were shining out onto the terrace. And in addition, as I recall, the spotlights on the lawn had finally been triggered, I assume by these two men, so there was a lot of light out there coming from several directions.

“Q: About how far away from you would you say the two men were standing?

“A: Oh … fifteen or twenty feet, perhaps. Hard to say exactly.

“Q: How is your eyesight, Mr. Zide?

“A: Excellent.

“Q: You don’t wear any eyeglasses or contact lenses?

“A: I have twenty-twenty vision. All right, to answer your question, I don’t wear glasses or contact lenses.

“Q: And for how long did the two men remain there on the terrace before they ran away? That is to say, from the time you first saw them to the time they turned their backs.

“A: It’s hard to say. A few seconds. But it was long enough for me to see their faces.

“Q: And did you watch them run away?

“A: Yes, for—I don’t know—a few moments.

“Q: Did either of them look back over his shoulder?

“A: Yes, the one who shot my father. The big tall one. Just for a second or two.

“Q: Did you see his face then?

“A: Yes.

“Q: Is either of those two men in the courtroom here?

“A: One of them.

“Q: Would you point to him and identify him?

“A: The man who shot my father is sitting at the table there, wearing a blue denim shirt and khaki pants.
[The Witness pointed to Mr. Morgan.]”

I laid the papers on the table. “That’s accurate, isn’t it, Neil? I read it the way it’s written and the way you testified, didn’t I?”

“Yes, I assume so.”

“Would you like to check?”

“No. I believe you read it accurately.”

“Neil, Mr. Morgan’s in the courtroom today too, isn’t he?”

Next to me, Darryl stirred slightly in his chair.

Neil scowled. He felt I was treating him like a child or an idiot, and he didn’t like it. “Yes, he’s here,” he said.

“Sitting next to me, right?”

“Yes.”

“Mr. Morgan, would you please stand up?”

Darryl rose slowly to his full six feet six inches.

“Neil, what’s the most outstanding characteristic of Mr. Morgan? What’s the thing you notice first?”

“Objection as to relevance,” Whatley interrupted.

“That will become clear,” I said.

“Overruled,” Judge Fleming said. “You can answer, Mr. Zide.”

“Well,” Neil said, “he’s black and he’s tall.”

“Normally tall?”

“What do you mean?”

“Well, there’s tall and there’s very tall, wouldn’t you say?”

“Yes, I see what you mean.”

“How would you describe Mr. Morgan?”

“Very tall, I suppose.”

“That’s how you described him under oath at the trial thirteen years ago, isn’t it?”

“Yes, exactly.”

“How tall does he look to you?”

“I’m not an expert,” Neil said uncomfortably. “I’m not a carnival weight-guesser.”

“I’m not asking you to guess his weight, I’m asking you to estimate his height. That’s not difficult. How tall do you think I am?”

“Objection,” Whatley said.

“Overruled. You can answer. But move it along, Mr. Jaffe,” the judge said.

“Probably about five ten,” Neil said.

“That’s it.” I smiled. “Now indulge me, if you will, about Mr. Morgan. How tall is
he
?”

“Six four or six five,” Neil said.

“Would it surprise you if I told you he’s six foot six?”

“Not particularly. I told you I wasn’t an expert.”

“But six foot six is very tall, isn’t it? Not as tall as Michael Jordan or Magic Johnson, but still very tall, wouldn’t you say?”

“Yes, I would.”

“Thirteen years ago, if you remember, was Mr. Morgan any shorter than he is now?”

“I doubt it.”

“Is that a yes or a no?”

“It’s a no. He wasn’t shorter then.”

“Thirteen years ago, on the night your father was shot and killed, when Sergeant Nickerson asked you for a description of Mr. Morgan, how did you describe Mr. Morgan?”

“That same way. Black. Tall. Young, I think. He was younger then, obviously.”

Now came the litany. He had to be led and hypnotized. It would be excruciatingly boring if the end result didn’t promise—barring accident—to be so pleasurable.

“Neil, I read the police offense report aloud, right here in this courtroom, didn’t I?”

“Yes.”

“And you heard me read it, didn’t you?”

“Yes, of course.”

“Heard me quote your words as spoken to Sergeant Nickerson?” “Yes.”

“When you spoke those words to Sergeant Nickerson, you were telling the truth, weren’t you?”

“Of course.”

“Your memory was fresh, wasn’t it?”

“Yes.”

“You had seen Mr. Morgan and Mr. Smith within the previous hour, isn’t that so?”

“Yes.”

“And you authenticated that report today, didn’t you?”

“Yes.”

“That night, you described Mr. Morgan as black, isn’t that so?” “Yes.”

“And you did say he and Mr. Smith were young, didn’t you?” “Yes.”

“And you described what you believed he and Mr. Smith were wearing, isn’t that so?”

“Yes.”

“And did you also describe Mr. Morgan as
very
tall?”

Neil was silent.

“Did you describe him,” I said, “as merely tall?”

Again Neil didn’t answer.

“Did you mention his height or size
at all
?”

Neil sighed.

I extended my hand with the manila folder. “Show us in this report, if you will, where you mentioned—on the night of the murder, less than an hour after it happened—that the man whom you saw shoot your father and run away toward the beach was very tall or even tall.”

Neil didn’t reach out for the folder.

“Isn’t it a fact, Neil, that less than an hour after your father’s murder, you didn’t describe Darryl Morgan—the man who allegedly shot your father—as tall?”

“I remembered it, but—”

“No,”
I interrupted sharply. “I didn’t ask you what you remembered. I asked you how you
described
him. Yes or no, please—isn’t it a fact that an hour after your father’s death, when you were asked to describe the man who shot him, you neglected to say he was tall? Yes or no!”

Neil looked to Judge Fleming for help, but none was forthcoming. “If the police report is accurate,” Neil said, “it would seem that I omitted that fact.”

I let that go.

“And yet,” I said, “three months later, in the courtroom at the trial, you described him to me as
‘‘very
tall’—isn’t that so?”

“Because by then I remembered.”

I waited, but Neil said nothing more. There was no jury to impress. There was only Judge Fleming. “Quit while you’re still ahead” was the best maxim for any cross-examiner—and the hardest one to follow.

So I started to turn away, but then stopped, scratched my head, looked indecisive. Sighed, as if I were tired of the whole business.

“ … There’s just one more little thing,” I said. “I nearly forgot it.” I shuffled through the papers in the folder I still held.

I came up with one page more of Neil’s thirteen-year-old testimony in this same courtroom. I handed it to him and asked him to read it silently.

Neil did so. He looked up, a little puzzled.

“What you swore to thirteen years ago,” I said, “is exactly what you swore to today, isn’t it, Neil?”

“Yes, of course,” he replied.

“You heard a noise, something like an urn breaking—is that right?”

“Yes.”

“And your father got up from the backgammon table and went out to the terrace.”

“That’s right.”

“Your mother followed him.”

“Yes.”

“You heard three shots.”

“Yes.”

“Not two shots, or four shots, or five shots?”

“No, three … as best I recall.”

“Do you have any doubt as to the number?”

“Not really.”

“How long did it take, Neil, between the time you heard the shots and the time you reached the terrace and saw your father lying there on the floor?”

“Probably ten seconds.”

“You reached there just in time to see a black man, who we later learned was William Smith, make some movement with his hand toward your mother’s face?”

“Yes.”

“No more shots were fired?”

“No.”

“And were any shots fired before that, while you and your mother and father were playing backgammon?”

“No.”

“You’re positive?”

“Of course I’m positive. My father wouldn’t have gone outside if a gun had been fired.”

“No more questions,” I said.

Whatley asked for redirect. The last line of questioning had seemed like a fishing expedition, but he badly needed to rehabilitate his witness on the matter of Neil’s first description of Darryl Morgan.

Whatley said, “Mr. Zide, that night thirteen years ago, you had just seen your father shot to death, isn’t that so?”

“Yes.” Neil nodded. “And it was horrible.”

“Is it fair to say that you were shocked and stunned by what you saw?”

I objected; he was leading the witness. The judge sustained my objection.

Whatley asked, “What was your state of mind after your father’s murder?”

“I was in a state of shock.”

“When you talked to Sergeant Nickerson and described these two young men retreating across the lawn, were you at all concerned whether they were fat or thin, tall or short?”

“Not at all. I was only thinking about my father and mother and what had happened to them a few minutes earlier.”

“Pass the witness,” Whatley said.

“No more questions,” I said.

“Is Mr. Zide released or on call?” the judge inquired.

“If it please the court, on call.”

Whatley ended his presentation by reminding the court that the state had no burden of proof and therefore no more witnesses. Muriel must have felt they had met their obligation of enlightenment and of saving Judge Fleming the onerous task of reading through the three-thousand-page transcript.

Now it was my turn.

I hadn’t known it until recently, but I had waited thirteen years for this moment.

So had Darryl.

It was also time for the lunch break, and I welcomed it. I needed to talk to Gary Oliver. But when I made my way to the back of the crowded courtroom and started carving a path between the reporters and the TV cameras, I saw what at first seemed to be a familiar face.

Then suddenly, startlingly, there stood my wife. She wore what I called her traveling outfit: a pair of floppy khaki trousers, a camel’s-hair blazer, and leather boots. I shoved through the mob to Toba’s side, and she fell into my arms.

Chapter 29