A Handy Death

“Be that as it may,” the judge interrupted smoothly. “I don’t believe it’s within the ethics of the profession for you to actively prosecute in a case where you were once part of the defense, whether your participation was a minor one or of short duration.”

“I’m not the prosecuting attorney, Your Honor,” Gorman said. “Mr. Varick, here, of my office, has that assignment. I’m merely here in a sort of advisory capacity—”

“In that case, Mr. Gorman, may I suggest that this conference will not require your presence, and that you might return to the prosecution table and let Mr. Varick get on with his task.”

“But Your Honor!”

“Yes, Mr. Gorman?” Judge Waxler looked down at the disconcerted man calmly.

“Nothing, Your Honor.”

White-faced, Gorman swung about and walked back to the prosecution table. He sat down and glared at some papers on the table, not wishing the bench to note his discomfiture. Judge Waxler, however, was paying him no attention. Paul Varick turned to Hank Ross.

“I honestly don’t see what difference your request makes, Mr. Ross.”

“You will shortly,” Ross said, and smiled at the younger man.

“I can only tell you this,” Varick went on. “I know that Mr. Gorman — our office, that is, the District Attorney’s office — was prepared to be generous and allow Dupaul to plead to a lesser charge, such as manslaughter. We were willing to even go so far as to recommend an indeterminate sentence of twenty years. Dupaul would be eligible for parole on that charge in about eight years.”

He shrugged, looking unhappy.

“But now, after this — this, well, cavalier application of Mr. Ross, I seriously doubt if Mr. Gorman — I mean, if the District Attorney’s office — will still be willing to consider a lesser plea.”

Ross smiled at him gently. “I don’t remember saying anything about wanting a lesser plea.”

Varick frowned. “You realize the position you will be putting your client in, I hope, Mr. Ross. If it’s all or nothing, he’s taking quite a chance. If and when he’s convicted, Dupaul will have to serve a life sentence on the charge as constituted.”

“Paul, tell Mr. Gorman — your office, rather — that we appreciate his concern for my client, but that we do not want any deals. We’ll take our chances on the charge as it now stands. Murder in the first degree.” Ross looked up at the judge. “And we still press our motion to set aside the assault conviction on the basis of the arguments already presented, Your Honor.”

Judge Waxler turned to look down at Paul Varick.

“What say you, Mr. Prosecutor?”

“Just what Mr. Gorman—” Varick coughed to hide his embarrassment. “I mean, Your Honor, that the law is quite clear. Section 40.20 of the new Criminal Procedure law does provide for cases such as this one.”

“Thank you for your interest in helping me with the law, Mr. Varick,” Judge Waxler said with gentle sarcasm, “and you are quite right. In cases such as this the law is, indeed, quite clear. It allows the judge on the bench to make his own decision based on the merits of the motion.”

He smiled briefly at the red-faced young prosecutor. “Gentlemen, the conference is ended. I suggest you return to your places.”

Varick walked back to the prosecution table and sat down abruptly, instantly beginning a whispered consultation with Gorman. The court stenotypist yawned and flexed his fingers, prepared to go back to work again. Ross stood by his chair, facing the bench.

“Your Honor, I should like to press my motion.”

“Motion granted,” Judge Waxler said. He turned as he continued, giving the prosecution table the force of the reasons for his decision. “The November 27, 1964, conviction for assault is set aside in the interests of justice. Elementary fairness does not permit the prosecution to press the indictment and force the accused to proceed to trial under the cloud of a conviction based on the same facts. The acts now charged relate to facts that were previously charged, and are now merged in the new homicide charge. The conviction must be set aside.”

His gavel banged once, settling the matter. Paul Varick was on his feet in the same instant.

“Your Honor,” he said, “now that my worthy opponent had won a Pyrrhic victory, the People ask that this case be set for trial as soon as possible.”

Judge Waxler turned his head. “Mr. Ross?”

Ross hesitated a moment and then looked up confidently.

“The defense is ready at any time, Your Honor.”

Judge Waxler swung about. “Clerk, what does the calendar look like?”

The Clerk of the Court knew the docket by heart. “Any time in the next week, Your Honor.”

“Good,” Judge Waxler said. “I set the date of October twenty-eighth, three days from today.”

He raised his gavel, brought it down with finality, and laid it down, as if preparing to declare the session ended, but Ross intervened smoothly, coming to his feet before Judge Waxler could speak.

“Your Honor,” he said, “the defendant has another application—”