Missing Witness (27 page)

“No. No entries about a trial. There's the original grand jury indictment after the jury heard testimony. On the same day, the magistrate issued an arrest warrant for Isaac Joppa. Then, approximately one year later, the next—and last—entry is the dismissal of the charges, as I have just described it to you.”

“Mrs. Atwater, I'm going to need a certified copy of those records for purposes of a case I'm handling.”

“Well, we've never had a request like that before. But I'm sure it won't be a problem. What type of certification are you looking for?”

“I need you to sign an affidavit verifying that the copies of the documents you'll be producing to me are accurate and authentic copies of the originals on file in your office. And that you're the official custodian of those records for the county.”

Will gave the archivist the address for Boggs Beckford's law office. She agreed to send certified copies of the clerk's entries.

Now Will was totally baffled.
Res judicata
was a familiar legal term. It was one of the first Latin terms he had learned in law school. The literal translation was, “The matter has been decided.”

But it was a term that applied
only
to a legal issue that had ultimately been brought to conclusion on the merits in a court hearing or trial.

Such a term was definitely never applied to issues of guilt or innocence when the criminal charges were withdrawn on purely procedural grounds…such as the presumed death of the defendant.

Could an eighteenth-century court clerk have simply put in the res judicata entry in error?

While it was possible, Will didn't think it was likely. It was not a term that courts would use lightly, precisely because it carried such profound implications. Once a matter had been decided in a full and final way, it would bar any relitigation or retrial on the matter again.

There were some exceptions to that rule, but very few. And where a full and final determination resulted in the dismissal of the charges, res judicata would always be applied for the benefit of the defendant. A finding of innocence on the merits could never be appealed.

Will got up and began pacing around the sea cottage. Then he blew through the screen door and out onto the porch that overlooked the blue–gray of the Atlantic Ocean. There was a warm wind blowing. White seabirds were swirling overhead, calling loudly. The beach was crowded with the usual army of sunbathers, couples, families with small children, and surf fishermen.

Will stood and stared. After thirty minutes of intense concentration, he ran into the house, picked up the phone, and called information for the curator of records for Richmond, Virginia. After multiple phone calls, he was finally connected to the historian in charge of the records for the early 1700s, when the capital of the English colony was located in Williamsburg.

Will verified, as he had heard, that the records of the trial of Edward Teach's pirate crew had been destroyed by a fire at the courthouse which had occurred during the Civil War. The only thing that remained was the clerk's notes summarizing the proceedings. The actual transcript containing the questions, answers, testimony of witnesses, arguments of counsel, and decision of the judges of the admiralty court had been destroyed.

“Do you have any record of the collateral proceedings relating to the same incident—namely, the charges of piracy against Edward Teach's crew—any trials or hearings involving a defendant by the name of Isaac Joppa?” Will asked.

The clerk said he'd have to check the records and get back to him, although he doubted it. He had often revisited the piracy trial records at the request of historians, scholars, and other researchers who were attempting to recreate the events following the death of Blackbeard.

An hour later Will got a call back from the clerk.

He wasn't surprised that the clerk reported that there were no records of any proceedings, criminal or otherwise, involving a defendant by the name of Isaac Joppa, in the court in Williamsburg, Virginia.

The clerk noted, though, that Isaac Joppa's name did appear in a statement of one of the accused defendants—a pirate by the name of Caesar. And Joppa's name was also referenced by one Samuel O'Dell, one of the witnesses at the piracy trial. Will nodded at that—it confirmed what Dr. Rosetti has told him. The clerk reminded Will, of course, that he was gleaning this information only from the clerk's notes, not from the actual transcript.

While he had the clerk on the line, Will requested a certified copy of the clerk's notes in the Williamsburg trial and asked that it be forwarded to Boggs Beckford's office in care of Will Chambers.

Will strolled back out onto the porch again and looked at the thin line where the end of the Atlantic horizon met the sky.

And he wondered.

If no piracy trial of Isaac Joppa had ever been held in the English colonies in America, then how could his case be considered to have been ultimately decided—res judicata?

Will lost track of time as he stared at the thin line of the ocean horizon, posing the question over and over again—a question whose answer seemed to be as remote as the distant lands that lay far beyond, on the other side of the sea. As far away as the shores of England.

40

T
HE COURTROOM OF
J
UDGE
H
AWSLEY
G
ADWELL
had been in session for more than an hour. He had heard two criminal matters, and issued a divorce decree. Now he was reciting his decision on a motion for summary judgment in an automobile accident case.

The Jonathan Joppa case was next case on the docket. The purpose of the hearing was to conduct a “pretrial conference,” where final matters relating to the trial would be discussed.

In folksy repartee with both lawyers in the preceding case, Judge Gadwell finally finished ruling on the automobile accident lawsuit. Then the clerk called the case of Jonathan Joppa as an ancillary proceeding in the probate matter of the estate of Randolph Willowby.

Will and Jonathan made their way to the counsel table and sat down. At the other counsel table Virgil MacPherson was smiling confidently. Terrence Ludlow, seated next to him, slouched with his face resting in his left hand.

After reviewing the court file for a few moments, Judge Gadwell leaned back in his chair, rocked back and forth, and then welcomed the attorneys and the parties to his courtroom.

“Good to see you all here again. Okay. We're here for a pretrial conference. First I'm going to address pending motions. I see only one…no, strike that, make that two motions. Both of these motions are from you, sir…Mister…” and Judge Gadwell searched the file in front of him. “Mr. Will Chambers. And I believe…yes, you're representing the interest of Reverend Jonathan Joppa, the claimant to the Stony Island property. Mr. Chambers, you've got a motion here for continuance of the trial date. Now, Mr. Chambers, one thing you've got to know about my courtroom—and as a matter of fact—most of the courtrooms down here in the fine state of North Carolina—we give plenty of time to people to prepare for trial. We give them all kinds of leeway—and when we get as close to trial as we are
now…two weeks away…well, quite frankly, judges in this state are not very prone to entertain such a motion for continuance.”

Will rose to his feet and smiled politely.

“Your Honor, I thoroughly understand the Court's position. And I also understand the general rule, which is admirable and certainly has logic to it.”

But the judge cut Will off before he could continue.

“Mr. Chambers, aren't you the one whose uncle—you've got an uncle, Bull Chambers. He was the circuit judge for a number of years here in North Carolina. Isn't that correct?”

Will smiled and nodded.

“Well, Mr. Chambers, I'm going to tell you something I heard your uncle, Judge Bull Chambers, say at a judicial conference once. We were addressing the problem of lawyers always asking for continuations of trial dates…constant demands for adjournments of trials after they had already been set. It's a problem that plagues this court to no end. Your uncle said that the problem with lawyers nowadays is that they were all raised on television. And in particular, Saturday morning adventure serials…you know the ones where the hero was always in great danger at the end of the show, and then you see the words ‘to be continued…' appear on the screen. Now, your uncle made the remark—it makes me laugh to think of it to this day because it's so true—that you lawyers come in here, and every time you get a trial date you say, ‘Your Honor, to be continued…' Your motion is denied, Mr. Chambers. You'd be well advised to heed the advice of your good uncle.”

“Your Honor, just for the record, I do want to make sure that the court has reviewed the motion I filed and the reasons stated in that motion for my need for a continuance—”

“Mr. Chambers, you can assume I have read, and will read, every pleading that you file in this case. Now, your motion is denied, so let's move along…”

Judge Gadwell then turned to the next issue in the case.

“Which brings us to this point. Now everyone agrees in this case that Reverend Joppa here has to shoulder the burden of proof—as the moving party—in order to claim his entitlement to the Stony Island property. It's his burden to prove the innocence of Isaac Joppa relative to those piracy charges. Now I asked both of you gentlemen to address, in written pretrial statements, how you anticipate the burden of proof being handled at trial. Mr. Chambers, you made this argument about reasonable doubt…”

“Exactly,” Will replied. “My argument is simply this—in the criminal case, Isaac Joppa, if he would have ever gone to trial, would have been entitled to a presumption of innocence. He could have required the prosecution to prove their case beyond a reasonable doubt. Those were rights and privileges accorded to him under English common law. Now, under the last will and testament of Randolph Willowby, the burden of proof is clearly ours to prove his innocence. Nevertheless, I believe it should be to a standard of raising only a reasonable doubt as to his guilt, not affirmatively proving his innocence—which is a whole different matter.”

Virgil MacPherson jumped to his feet and began arguing.

“Your Honor, this is a very clever argument. It's a little like one of those magic tricks that you see on TV. I saw this one the other night…really unbelievable. The guy's doing this ‘street magic'—he gets a crowd around him and the next thing you know…this guy's absolutely levitating off the ground by about six inches. No strings. No cables. Here he is, live television—the guy is raising himself right off the ground. It was unbelievable…”

Judge Gadwell began chuckling. “Oh yeah. I saw the same thing. My eyes practically bugged right out of my head. So I was thinking to myself,
How in the heck did that guy do that?
”

“Well, that's right,” MacPherson continued. “That's just like Mr. Chambers' argument here. At first it looks for all the world like it makes sense. Then, I realized—Mr. Chambers here is nothing but a street magician.”

With that MacPherson began striding back and forth in front of the counsel table with his hands swept behind his suitcoat and firmly planted on his hips.

“You see, the trick to Mr. Chambers' argument is this—he almost tricked us into believing this is a criminal case. But it isn't. This is a probate case. We're deciding the transfer of property under the last will and testament of Randolph Willowby. And so the constitutional guarantees about having to prove guilt beyond a reasonable doubt simply have nothing to do with this case. Reverend Joppa here has to prove the innocence of Isaac Joppa to the civil law standard of a preponderance of the evidence. Plain and simple. That's it.”

MacPherson sat down and Will Chambers stood again.

“Your Honor, I'm sorry that Mr. MacPherson views legitimate legal arguments as magic tricks. Here's the long and short of it. Randolph Willowby's last will and testament did not define what he meant by having to prove ‘the innocence of Isaac Joppa under the criminal charges of piracy.'
That's the language there. Thus, we have to determine the intent of Mr. Willowby. I think we can presume the plain and ordinary meaning of the words used. The clear and plain meaning of the term ‘innocence' would be the way most of us would use it—innocent under the law. And both American and English common law presumed that Isaac Joppa was innocent and required that he simply raise a reasonable doubt as to his guilt. We can therefore presume that was the meaning intended by Randolph Willowby—as the burden of proof applicable to Reverend Joppa.”

MacPherson was beginning to stand up to give a reply argument, but Judge Gadwell waved him back down.

“Don't bother, Virgil. Mr. Chambers, your interpretation is denied. I accept the way Mr. MacPherson stated it in his pretrial statement: ‘The Reverend Jonathan Joppa must prove, to the satisfaction of the court, as an affirmative proposition, by a preponderance of the evidence, that Isaac Joppa, in the year 1718, had not participated knowingly, and intentionally, as a member of the pirate crew of one Edward Teach; nor did he knowingly, or intentionally, commit acts of piracy at any time or any place.' Mr. Chambers, that's what you must prove. To my satisfaction. If you don't prove it, you and your client lose, and Terrence Ludlow and his attorney win.”