Another Tale Out Of Court
by John Davis Collins.....© 2001 by John F. Clennan, All Rights Reserved
"All evidence is weighed by comparison of proofs adduced to the capacity of the party to have produced," the military judge instructed the jury.
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Seated at a table beneath the Judge's high bench facing the accused and counsel and away from the jury, I repeated the words carefully into the facemask. As I looked at the defense officer, in crisp, new tan uniform, I remembered his once telling me that phrase came from some English Lord --- Mansfield, whose maxims shaped American law. "We the Army had a revolution," I chided him, "you lawyers remained part of Britain."
Intoning the words, "Evidence weighed," I showed no emotion though the defense officer told me that my deep voice sent a reverberation through the courtroom that shook him up in his first few trials.
Yet today, as hard as I tried, it was not easy to dispassionately regurgitate the Judge's synopsis of the evidence. The prosecutor had rested upon a one witness, the complainant, a cashier in the Post Exchange who asserted that she had been robbed at the register. How had the defendant been arrested and identified was the question on the minds of the officers, who sat in judgement, whose faces I could not see behind me.
My records of trial were perfect. I caught every gramatical lapse, every incomplete phrase, every dangling participle. Some lawyers argued with me, when they read the transcript, but not the defense counsel of today.
Defense counsel declared himself my pupil.
"Pupil, Captain?," I snickered. "I'm just some no-'count draftee who never bothered to look for his buck and chase and go on home."
"Except when you want to be picturesque," the defense officer replied, "you speak more like a lawyer than the Judge Advocate General."
I suppose in rendering my faithful accounts of some many trials for so many years I have assimilated the haughty tomes into my deep dark tones.
When this lawyer got over the terror of my voice, he would seek me out for advice. Strangely the man who called himself my pupil, had not done so today.
I was infuriated. A man's life was at stake and counsel took a desperate gamble. Was he sacrificing a black man to the whims of fate for pride or personal glory?
The defense had started slowly in a lackluster denial from the accused, followed by two senior NCO's, one an unredeemed rebel and the other black like me and the accused from the north. The prosecutor asked the latter alibi if he had discussed testimony with the former.
"I would not," the back sergeant replied, "conduct any discussion with Master Sergeant except on official Army business or when ordered to do so by competent authority."
There was utter silence in the courtroom when the prosecutor asked, "Why?"
The prosecutor could have used some schooling from me who impartially rendered the accounts of thousands of trials. Why some see little more than a machine, which operated on command without feelings or favor and others see a professor in the university of live I cannot say.
Yet in this decisive silence, I saw no emotion in the defense counsel's face, as if he awaited a serious answer.
When the jury recovered from shock and started to laugh aloud, the judge with a concealed smile hidden beneath a stern look ruled the question out as "one best left to the wisdom of a future generation."
The defense officer called himself my pupil and listened to my predictions over verdicts. Yet today, who could be unconvinced? Even the judge reserving decision on the motion to dismiss commented wryly, "We'd all be home --- drinking mint juleps --- if I was deciding the case." A wink reminded me not to transcribe the mint juleps line.
The defense wound up declaring, "the prosecution would expect you to believe defendant popped out of the sky. Where are the police, the CID, who made the arrest to say otherwise? If the testimony given by two senior NCO's proves defendant not guilty beyond a reasonable doubt, the case that could have been, the police witnesses who should have been called, but were not, must establish innocence to a mathematical certainty."
As I repeated the words, "mathematical certainty," I looked to the defense counsel. He spoke slowly and deliberately, not with the passion of one defending the wrongfully accused.
Incensed with anger, I had only one question for my pupil the defense officer. Why was there a trial? Why hadn't the error in identification been called to the attention of the prosecutor?
In the brief interlude between instructions and verdict, I got my chance in the entrance of the courthouse where counsel stood alone slowly stirring a cup of coffee.
"Risky business to chance a man's life," I whispered my warning, "on a jury's verdict. Are you out to make a 'rep' for yourself?"
"The alibi," defense counsel looked over the room, to make sure there were no eavesdroppers, "is supported by honorable men, who follow different paths honestly, I believe, mistaken. Inviting the prosecutor to re-examine his proofs would not have helped our cause."
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