Missing Witness (38 page)

Judge Gadwell fumbled for his copy of the statutes.

MacPherson flipped through his copy rapidly and located the section. After a moment of consideration, he raised his hand and waved it at the judge.

“Your Honor, we've got a problem here. I can see that maybe the language could apply to something like this—except for one, big, insurmountable problem.”

“And what is that,” Judge Gadwell asked, still flipping through the code himself.

“We have absolutely no record, no evidence, no foundation, to believe that this little plate here—whatever this is—is actually an authentic family record of the Joppa family.”

“It's got Joppa's name right on it,” Will said emphatically. “And it's got all the information that's corroborated by the testimony in this case.”

“Could be a forgery,” MacPherson rebutted.

“Exactly,” Judge Gadwell chimed in. “Mr. MacPherson's correct. Could be a forgery. How do we know it's authentic?”

“Oh, so you're talking about a certification…” Possum Kooter shouted from the witness stand, and already rising to his feet.

“You sit down, sir. You're a witness here. You will be quiet until you're spoken to.”

“But, Your Honor,” Kooter said, “that's just it. We're talking about certification—”

“Mr. Kooter—” the judge began.

“
Possum
. Even to a judge, I prefer Possum. I don't like this ‘Mr. Kooter' stuff…”

Before the judge could instruct further silence, Kooter went on a rampage.

“And by the way, nobody's asked me why I don't like the
Mister
business. But I'm going to tell you right now. This is the right time and the right place…right here in this courtroom…the constitution of these United States forbids, in clear language, titles of nobility. It's right there in the constitution. And that would include
Mister
. As far as I'm concerned, that's a title of nobility. I ain't going to use it. And—no disrespect intended—but so is
esquire
after the name of an attorney. That's a title of nobility…and the constitution says it's
out of here
. And, Your Honor—no offense taken, no offense intended—but the use of the word
the Honorable—
even for a judge—it's a title of nobility. The constitution says it's
out
. Now, I haven't exactly figured out what I'm going to do with doctors…whether
Doctor
this or
Doctor
that is a title of nobility. I still have to figure that one out—”

“Quiet!” Judge Gadwell shouted.

Kooter's eyes widened. He took his paper bag and sat back down in the witness chair.

For a moment, at least, it was absolutely quiet in the courtroom. But then Kooter broke the silence with one quiet statement.

“I've got this here certification that you want, Judge…”

Kooter reached inside the paper bag and pulled out a piece of paper that appeared to have an embossed seal at the bottom.

“Your Honor!” MacPherson shouted. “You tell this witness to stash that piece of paper back in that bag. I don't want this jury tainted by it. And I move for a mistrial.”

Before the judge could rule on Virgil MacPherson's objection, Will walked up to the witness stand, grabbed the bag from Kooter, and pulled out the piece of paper.

He studied it for a moment and almost burst out laughing. He looked at Kooter and whispered, “Where in the world did you get this?”

“Mr. Chambers, you will cease and desist from conversing with this witness until this court sorts out what is happening here.” Judge Gadwell shouted. “This place is ceasing to function like a courtroom and is looking more and more like a session of the North Carolina legislature…”

After collecting himself, Gadwell continued.

“Mr. Chambers, do you have any evidence to substantiate that this plate is authentic, an actual family heirloom containing family inscriptions dating back to Isaac Joppa's lifetime?”

“We certainly do,” Will said with an expanding grin.

Virgil MacPherson was halfway up from his chair, attempting to formulate another objection, but the judge beat him to the punch. He held a finger straight up, then aimed it in MacPherson's direction. The lawyer quietly sat down and maintained his silence.

“Your Honor, Mr. Kooter has brought with him—rather amazingly, I might add—what appears to be a certificate of authenticity for this plate. It's signed, under seal, by the director of the New England Museum of English and Early American Crafts and Guilds. The certificate verifies that the plate was created in or around the year 1717 in London, England.”

“Your Honor,” Will continued, “on the basis of that authentication, we move this plate into evidence.”

Now MacPherson was back on his feet.

“Your Honor,” MacPherson bulleted, “how do I know that this piece of paper itself is authentic?”

“Why you can call this director guy at the museum yourself,” Kooter put in. “Real friendly…I bet you he'd be there right now…”

After thoroughly admonishing the witness to silence, the judge suggested that if Mr. MacPherson wanted to test the validity of the certificate, he could feel free to call the New England Museum of English and Early American Crafts and Guilds himself during the next break. But barring some report from MacPherson that the sealed and notarized certificate was itself not genuine, the court would treat it as such and would admit the plate into evidence.

MacPherson took pity on both the court and the jury and did not attempt cross-examination. After Possum Kooter bounded down from the witness stand with his bag in his hand and a triumphant look on his face, the court adjourned for ten minutes.

Halfway across the courtroom, Kooter suddenly whirled around and yelled to the judge, “Your Honor—I assume I'm going to get my plate back, right?”

The judge, not hiding his exasperation, yelled that he would certainly get it back after the trial.

During the break Virgil MacPherson wandered out into the corridor, talking intensely with Terrence Ludlow and Blackjack Morgan.

Although the lawyer had his cell phone with him—and despite his protestations about the plate being a forgery—it must have somehow slipped his mind to place a call to the New England Museum of English and Early American Crafts and Guilds.

55

B
EFORE RESTING HIS CASE
, Will made a formal request that the court take judicial notice of the entry of the clerk at Bath, North Carolina, in 1719—that Isaac Joppa's case had been dismissed res judicata.

Judge Gadwell listened patiently to Virgil MacPherson's vague objections and then ruled.

“Mr. Chambers, what I'm going to do is this,” he said. “I don't think anybody's objecting to the authenticity of the clerk's notes from that proceeding down in Bath. The real question here is what ‘res judicata' means. I'm going to take judicial notice of the fact that that was what the clerk entered. But I will not…and I repeat,
not
…make a commitment that your interpretation of that ‘res judicata' necessarily holds. This Court will take judicial notice of the fact that such a court entry was made at that time and at that place in the case of Isaac Joppa. Nothing more and nothing less.”

Will rested his case, and Virgil MacPherson launched into a short but energetic motion for dismissal, arguing that his opponent's case had failed to meet the burden of proof with credible evidence to indicate that Isaac Joppa was innocent of the charges of piracy.

Judge Gadwell saw the whole argument as the perfunctory exercise that it was and took the issue under advisement pending the decision of the jury.

Then MacPherson commenced his case. His first witness was Dr. Arthur Hope, a stocky, bald man who dressed meticulously and carried himself with confidence, if not a measure of arrogance.

Hope was a civil procedure law professor at the University of North Carolina. In his background questioning on Hope's qualifications, MacPherson underscored Hope's interest in English common law and his widely published treatises and law review articles on that subject.

“Now, Dr. Hope, you understand the background of this case—regarding the trial of the pirate crew of Edward Teach in admiralty court,
without benefit of jury, in Williamsburg, Virginia in 1719…and, by contrast, the issuance of a grand jury indictment against Isaac Joppa in Bath, North Carolina?”

Dr. Hope nodded vigorously and smiled.

“Yes…and I do understand the significance of the difference between admiralty court—which did not allow juries but had sitting commissioners acting as panels of judges—and the grand jury system, which allowed a jury of one's so-called peers. Which reminds me of a funny story. I'm a great believer in the jury system…but with limitations. There's a story about a jury in the backwoods that took a long time to arrive at a verdict in a personal injury case. The judge asked, ‘Mr. Foreman, why in the world did it take your jury so long to decide?' ‘Well, Your Honor,' said the foreman, ‘half of us wanted to award the plaintiff four thousand dollars, and half of us wanted to award the plaintiff three thousand dollars. So we decided to compromise. We split the difference and gave the plaintiff five hundred dollars.'”

Several members of the jury laughed out loud.

Virgil MacPherson was beaming as he eyed the jury.

“Dr. Hope, I didn't attend UNC law school—but why do I think I would have enjoyed your civil procedure class?” MacPherson said, attempting to ingratiate himself. “I really do think I would have enjoyed your class.”

Hope eyed him, and dropped his smile. “No, Mr. MacPherson, you wouldn't have.”

Now the jury was laughing even louder—at Virgil MacPherson, who was slightly flushed.

After the attorney regained his composure, he continued. He led Dr. Hope through an explanation of the history of the term
res judicata
. How it was meant to signify the final judgment or last order in the case, which fully resolved the issues. That the purpose of
res judicata
was, among other reasons, to expedite judicial economy—to prevent relitigation of issues that had already been decided by a court of competent jurisdiction.

“Now, Dr. Hope,” MacPherson went on, “you have seen the entry of ‘res judicata' in the clerk's notes indicating dismissal of the Isaac Joppa indictment in 1719?”

“Yes, Mr. MacPherson. I've seen that record.”

“Do you have an opinion, to a reasonable degree of legal certainty, as to whether or not the ‘res judicata' can be viewed as consistent with the finding
of
guilt
of Isaac Joppa on the charges in that same indictment—in the trial in Central Criminal Court of the Old Bailey in London, England?”

“Mr. MacPherson, not to put too fine a point on it…but you did not ask me whether I was familiar with the Old Bailey proceedings as a foundation for your question. So let me anticipate your failure to ask that question by answering it anyway. Yes, I have read the Old Bailey trial transcript in the Isaac Joppa case…such as it is. It contains the testimony of only two witnesses—the accused, Isaac Joppa, and his fiancée, a woman by the name of Abigail Merriwether. Apparently, the remaining portions of the transcript were destroyed or cannot be adequately deciphered.”

Dr. Hope leaned back in his chair and finished his answer.

“So, in answer to your question—yes, I do believe that the entry of ‘res judicata' in the clerk's notes in Bath, North Carolina, can be viewed as consistent—or alternatively, as not
in
consistent—with the assumption that Isaac Joppa was found guilty in the Old Bailey trial.”

“And can you explain the basis for that opinion?”

“Yes, I'd be happy to. First of all, there was well-known historical hostility—politically, culturally, and legally—between the American colonies in 1719 and the British Crown regarding the nature of governmental proceedings. There was some resentment among the colonies relating to the creation of the admiralty courts with their deprivation of the right of trial by jury. Of course, the English Crown was well acquainted with the reluctance of any of the American colonists, through their common-law juries, to find defendants guilty…or at least to the extent the Crown would have liked to see…which, presumably, was around one-hundred percent. So the admiralty courts consisted of commissioners who would hear and try the cases and decide the verdicts…and, of course, the commissioners were persons of great political prestige and power, usually aligned with the Crown's cause. So, as a first possibility, we might presume that the entry of ‘res judicata' was a form of protest by the local clerk or magistrate there in Bath. Although I view that as the least probable explanation.”

“And what other explanations do you have?”

“Well, of course, the ‘res judicata' entry could simply have been an error. Or a misapplication of law. Frankly, it's rather unusual for a phrase like that to appear in the clerk's notes. If you've ever seen notes from proceedings in the eighteenth century, you know they're pretty raw, pretty basic, pretty rough. They really got right down to business, and they're usually pretty sketchy. It is somewhat unusual that ‘res judicata' would appear.