A Handy Death

“I know that! But he was my lawyer at my first trial! I thought he couldn’t prosecute me personally. That’s what one of the guys told me.”

“Well,” Ross said with a faint smile, “I suppose he can always try. Hope springs eternal. Although, knowing Judge Waxler, I’m not sure how far he’ll get. Judge Waxler takes a dim view—”

He stopped speaking abruptly as the judge entered the courtroom and steadily ascended the bench. He sat down and adjusted his robes to his satisfaction. Judge Waxler, a dignified, elderly gentleman with snow-white hair, had a well-deserved reputation for fairness on the bench, and Ross was quite pleased to have him sitting on the case. The Clerk of the Court came to his feet ponderously and spoke in a completely expressionless tone.

“The People of the State of New York versus William Dupaul.”

He seated himself as the courtroom whispers lessened and eventually died away. Hank Ross placed a hand for a moment on Billy’s arm, pressed it confidently, and came to his feet. He turned to face the bench.

“Your Honor,” Hank began, “the defendant moves to set aside the judgment of conviction and the sentence imposed by Justice Demerest on the twenty-seventh day of November, 1964. The instant pending indictment charges the accused with murder in the first degree. The indictment charges the accused with shooting the victim, one Raymond Neeley, on the twenty-fifth day of July, 1964. The victim died eight years later.”

Judge Waxler was leaning forward a bit on the bench, watching calmly and listening with interest. At the prosecution table Louis G. Gorman was frowning suspiciously, wondering what Ross was up to.

“Your Honor,” Ross continued calmly, “the judgment of conviction and sentence imposed in November of 1964 was predicated on the precise shooting of the victim as alleged in this new indictment. The defendant, under both our State and Federal Constitutions, is presumed innocent until found guilty, and this presumption of innocence follows the defendant not only when an indictment is returned, but stays with him throughout the entire case.

“Therefore, Your Honor, to permit a conviction to stand which is based on the same essential facts on which the defendant is presently charged, would deprive the accused of due process of law under the fourteenth Amendment of the United States Constitution. To permit this conviction to stand would cast upon the defendant a presumption of guilt, when and if he takes the witness stand to testify in his own behalf.”

Louis Gorman was on his feet in an instant.

“The People object, Your Honor,” he said angrily. “The prosecution sees no reason at all to abandon the conviction as it now stands. The Defense is merely trying to muddy the water, to throw confusion into the case. It is an old tactic with my learned opponent. What differences does it make whether the old conviction stands or not? The prosecution would also like to point out that Section 40.20 of the new Criminal Procedure law specifically provides that a former conviction — in this case for assault — does not bar a prosecution for homicide when the victim dies. The law is clear.”

Ross bent down in response to a tug on his jacket from Billy Dupaul. The young man was frowning at him.

“What the devil difference does setting aside that conviction make at this late date, for God’s sake? I spent those four years at Attica and they’re sure as hell not going to give them back to me! Don’t get cute with Gorman over nonessentials. I wasn’t serious the other day. I know he’s tough. And dangerous.”

“Leave Gorman to me,” Ross said in a low voice.

“But what’s the purpose, for God’s sake?”

“Stick around and see,” Ross said. He straightened up to find the judge looking from him to Gorman’s angry expression.

“Gentlemen,” Judge Waxler said, “may I suggest a conference at the bench?”

Gorman, joined by Varick, moved closer to the bench. Ross paused to give Billy Dupaul a quick wink and then walked over to join the others before the judge. The stenotypist leaned back in his chair, flexing his fingers, thankful for the rest.

“Your Honor,” Gorman said angrily, “the law is clear in the matter. I don’t know what my opponent is up to, but I suspect, as I said before, it’s merely to throw dust in everyone’s eye. What difference does it make in this case whether a conviction imposed eight years ago is set aside or stands? The defendant served his term and satisfied the State. I certainly hope the defense doesn’t expect a lesser plea on the murder charge in case he succeeds in having that assault conviction set aside, because the prosecution won’t hear of it!”

Judge Waxler frowned down at Gorman.

“Mr. Gorman,” he said in a soft voice, “when I did my homework for this trial I thought I saw your name on the bill as the defense attorney in the case we are discussing now. Isn’t that so?”

“Well, yes, Your Honor, but only for a short time. I resigned—”

Ross smothered a grin.