Clifford Irving's Legal Novels - 02 - FINAL ARGUMENT - a Legal Thriller (43 page)

“I didn’t remember it when you asked me last week, but then you offered a few names to me, and one of them seemed right, and I remembered it.”

“The name of that man?”

“Gambrel, it was.”

“And the man named Gambrel arrived approximately when?” “About fifteen minutes after I got back to the gate.”

“Twenty minutes before the police?”

Terence mulled that over and then said, “That would be correct.”

“You’re sure of these time intervals?”

“Yes, I am sure.”

“Because you wrote all this down on what you call your in-out list? Your log?”

“I did indeed.”

“What happened to that log?”

He sighed. “I gave it to the detective who talked to me.”

“That would be Sergeant Floyd Nickerson?”

“Yes.”

“Did Sergeant Nickerson ever give the log back to you?”

“He did not.”

“Was anyone else present when you talked to Sergeant Nickerson, or when you gave him your log?”

“We were alone. First at the house that night, after the ambulance came flying up, and then later down at the sheriff’s office downtown.”

“Did you ever tell Sergeant Nickerson that you’d heard a single shot, and then three evenly spaced shots a minute or two later?”

“I told him that, sir. Indeed I did.”

“Did he write that down?”

“I believe he did, and in any case he had his machine running.”

“A tape recorder?”

“That’s what it was.”

“Did you ever tell Sergeant Nickerson that on the night of December 5 there had been only three shots and that you heard them all together, in succession, one after another?”

“I did not tell him that. It wasn’t so.”

“Were you aware that at the trial, back in April 1979, Mrs. Zide and Mr. Neil Zide testified that there had been only three shots fired by the accused, Darryl Morgan? And that they had all been fired at the same time?”

“No, sir, I’ve told you, I was in Colorado and then in sunny California with my children and grandchildren.”

“How soon after the death of Mr. Zide was your employment terminated?”

“About five years later.”

“Can you tell us the circumstances?”

“Mrs. Zide came to me and told me she wished to reward me for faithful service. She knew I had another daughter down in Daytona Beach, and that I thought of retiring there. She said the time had come, and she would take care of me.”

“Did she give you severance pay?”

“Yes, she did.”

“Tell the court how much.”

Terence hesitated, then said, “Two hundred and fifty thousand dollars.”

I was silent a few moments to let that sink in for the judge’s benefit. Then I asked Terence if he thought that was a lot of money. Predictably, he did.

“Do you also receive a pension from the Orlando Police Department?”

“Yes, I do.”

“Was Mrs. Zide aware that you would receive that pension?”

“I told her, of course.”

“And in addition to that pension, and above the quarter-of-a- million-dollar lump-sum payment she gave to you, Mr. O’Rourke, in the past eight years has Mrs. Zide paid you any more money?”

“She has not, but I receive a check from one of Mr. Neil’s companies, every month, for four thousand dollars.”

“Health insurance and major medical?”

“I have that from them too.”

“Did you ever expect such handsome retirement benefits?”

“No, but I’ve told you, they are good people.”

“Pass the witness,” I said.

This time it was Muriel who jumped up to do the cross. She and Beldon thought highly of young Whatley, but Muriel wanted Terence O’Rourke for her own. She beat at him, she insulted him, she questioned his sobriety and his mental capacity and even his loyalty to his former employers, tried to twist his words and hammer at his memory and degrade his story in any way she could—as any lawyer would have done had he or she been standing in her shoes—indeed, as I would have done had I been the prosecutor.

Like infidelity, the law is a cruel sport.

I held Muriel in check as best I could by objecting to just about every other question. It was unnecessary: Terence wouldn’t budge. He was telling the truth, and the more Muriel tried to twist the knives of ridicule and doubt, the more certain he became. Finally she said, “I have no more questions,” and I thanked Terence, and the court told him he could leave.

Judge Fleming looked down from his lofty position on the bench. He was king and emperor and court jester. “Is that all?” he asked me. “You look like death on a cracker. Are you ready to go home and get some sleep?”

“No, Judge, I’m just fine, and I have one more witness. And possibly a second one.”

“Can we get them done this afternoon before we close up shop?”

“Yes, sir,” I said, somewhat recklessly. “They’re both here in the courtroom.”

“Let’s hear the first one.”

“The defense calls Constance Zide.”

Chapter 31

“YOUR HONOR, I would like to declare Mrs. Zide to be a hostile witness.”

“Objection!” cried Muriel Suarez.

“State your reasons,” Judge Fleming said, clutching his coffee mug and peering down at me.

“I’m going by Rule 90.62 Subsection 2,” I said, “of the Florida Criminal Code. Mrs. Zide has already been a witness for the state in the jury trial and in this hearing. That makes her adverse by any standards. If she’s
my
witness now, and presumed to be friendly, I can’t ask her leading questions. And I don’t believe I can get her to speak the truth other than by leading her.”

“You want to cross-examine her, Mr. Jaffe? Is that what you’re telling me?”

“Yes, Your Honor. But with some latitude.”

“You could have cross-examined her day before yesterday, when she was a witness for the state. You said you had no more questions.”

“But I asked to have her stay on call.”

“And she has.” He pointed with his bony hand. “She’s here in the courtroom, isn’t she?”

“Yes, Your Honor, she’s right here.”

“So I’ll let you cross-examine her, but the cross has to be limited to those matters she discussed under direct examination by Ms. Suarez. Those are the rules of evidence, sir, and they’re my rules too. Don’t you consider them fair?”

Yes, but they weren’t what I wanted. I wanted to open up new territory, and I couldn’t do that under his rules.

“Your Honor, I understand your point. And therefore I repeat my motion to declare this witness as adverse and hostile.”

The judge smiled at me as if I were a backward child. He sipped his coffee, then leaned forward toward Muriel in a gentle, inquiring fashion. “Madam Prosecutor, what say you?”

“There’s no indication at all of hostility on the part of Mrs. Zide,” Muriel fired back. “He asked her to stay on call, and she did. Defense counsel wants to go on a fishing expedition. Let’s have a proffer. Then we’ll know what kind of fish he’s after, and what he’s using to bait his hook.”

The judge added a nod and a twinkle to his smile. Fish-and-bait was his style of metaphor. Muriel had also learned how to deal with him.

A proffer was an offer before the court, in the presence of opposing counsel, as to what you planned to do. In this instance, a proffer seemed like a logical request—there were no jurors present to be confused by what was going on. Moreover, a proffer would quickly tell the judge if Connie was what I claimed her to be: a hostile witness. But it would also prepare Connie, and alert Muriel to my intentions.

“A proffer’s a good idea,” the judge said. “Mr. Jaffe? Tell us what you’re going to try to prove.”

Muriel gave me a soft, smug look. Still friends, sweetie?

“I withdraw my motion, Your Honor”—I tried not to look too hangdog—”although I reserve the right to renew it. I’ll take the witness on direct, and we’ll consider her to be friendly.”

Muriel swooped in for the coup de grace. “I want to remind opposing counsel that if she’s
his
witness now, he vouches for the truth of what she tells us.”

I spread my hands as if to say, “Win some, lose some,” and turned to Connie, who had sat there in the box with hardly a change of expression during this entire colloquy. Her eyes were quiet and dull; she almost seemed drugged. And I began:

“Do you recall, Mrs. Zide, that when your son testified I asked if I might call him Neil? Because we’d known each other socially for fourteen years?”

“Yes, I recall that,” she said calmly, “and if you’re going to ask me the same question, the answer is of course yes. Please call me Connie.”

“Actually, Mrs. Zide, I wasn’t going to ask the same privilege of you. I was going to ask if you’d tell the court how I met Neil.”

She looked briefly flustered, a little hurt. She clasped her hands together in her lap. “You met him through me, I believe.”

“And how did you and I meet?”

From the corner of my eye I saw Muriel open her mouth to object. She could have done so on the grounds of relevance, although I would have battled her. But she closed her mouth. Surely no danger lurked in such a question, she must have thought.

Connie smiled gently, and briefly related to the court the story of her mugging by Alejandro Ortega in the parking lot of the Regency Plaza Mall. Enter her hero. All’s well that ends well.

“I asked you a question that day, Mrs. Zide, and I imagine you’ve forgotten it. But I’ll ask it again, if you don’t mind. When you ripped the gold chain off the young man who had attacked you outside Dillard’s, weren’t you frightened that he’d retaliate?”

Muriel still looked puzzled, and so did Judge Fleming. And Muriel still held back.

“No,” Connie said, “not really. I was just acting on impulse, as I recall. Not thinking clearly.”

“Were you armed?”

A little nerve in Connie’s cheek twitched. She said, “Armed?”

Now Muriel jumped up swiftly to object. “Where’s this going, Your Honor? It’s certainly an odd line of questioning. What’s the relevance? Can we have a proffer on
that
?”

The judge looked at me, shrugged, and nodded his approval.

“Of course, Your Honor,” I said. “Mrs. Zide told me on that occasion that she
was
armed. That, indeed, she carried a pistol in her handbag and was prepared to use it in an emergency.”

Muriel nearly exploded. “Your Honor, that’s out of line!
He’s
not testifying!”

“You asked for a proffer, Ms. Suarez,” the judge said. “And he gave you one.”

She’d been bushwhacked, and she saw it immediately. She stepped back, sighing. Even though no jury was present and it wasn’t necessary to act, she rolled her eyes heavenward.

Judge Fleming focused again on Connie. “I’ll allow the question,” he said. “You may answer, Madam.”

“Shall I repeat it?” I asked Connie, when still she hesitated.

“Yes, please.”

“Were you armed that day in the parking lot outside Dillard’s, fourteen years ago?”

“Yes,” she replied.

I was over the first hurdle. She could have said no. There was no way I could have proved it.

“Armed with what, Mrs. Zide?”

“A pistol.”

“Where you did you carry it?”

“In my handbag.”

“What kind of pistol was it?”

She hesitated, twisting the rings on her fingers. “I don’t really remember.” That, of course, was why she felt safe in admitting she’d been armed.

She was my witness; I couldn’t hack at her without incurring the wrath of the court. I couldn’t impeach her by questioning her veracity.

But I could nibble at the edges of it.

“Are you sure you don’t remember, Mrs. Zide?”

“Objection!” Muriel said angrily. “Asked and answered!”

“True,” the judge responded. He gave me a stern look. “Go forward, Mr. Jaffe.”

“Was it a revolver or an automatic, Mrs. Zide?”

“Asked and answered!” Muriel cried again. “She said she didn’t remember!”

“Withdraw the question,” I said. “Did you have a license for that pistol, Mrs. Zide? Or were you carrying it in your handbag, as a concealed weapon, illegally?”

“Objection!” Muriel cried.

“On what grounds?” the judge inquired.

“Relevance!”

“Seems harmless enough to me. You may answer, Mrs. Zide.”

Connie had little choice. In a trembling voice she said, “I don’t remember.”

She had good instincts; “I don’t remember” was the safest place to hide, and it was exactly what I had feared.

I turned to the judge. “Your Honor, on this specific matter of her carrying a weapon, since the witness is evasive, I ask her to be declared adverse and ask permission to cross-examine.”

Muriel almost danced up and down in anger. “She’s not being evasive! It’s fourteen years ago, and she doesn’t remember! He has to accept that!”

Judge Fleming, looking almost sad at the decision he felt he was forced to make, said to me, “I’m afraid that’s so, Mr. Jaffe. Her memory isn’t fresh, and we have to live with it.”

“Perhaps I can refresh her memory,” I said.

“You may do that, sir, but not by cross-examining her.”

I reached into the folder in front of me on the counsel table and took out a cream-colored document. Gary had dug for me in the deepest recesses of the county’s files. But it was too long ago; no record of Connie’s pistol registration existed, not even on microfilm.