Erle Gardner: The Case of the Drowning Duck

Marvin Adams was smiling. “But I do know,” he said. “The duck which I left in my automobile...”

“Just a moment,” Mason interrupted, holding up his hand. “There’s an objection before the Court, Mr. Adams. Just refrain from answering until the Court has ruled on the objection.”

Lois Witherspoon, still standing, said, “He can’t answer that question. I’m the only one who can answer it.”

Judge Meehan said, “I am going to ask Miss Witherspoon to be seated. After all, we must maintain order in the courtroom.

“But don’t you understand. Your Honor?“ Lois Witherspoon said. “I...”

“That will do,” Judge Meehan said. “A question has been asked of this witness, and there is an objection before the Court, a rather technical objection to be certain, but one which, nevertheless, the defendant is entitled to make.”

“I think, if the Court please,” Mason said, “more hinges upon this question and this objection than the Court realizes. I notice that it is approaching the hour of the noon adjournment. Might I suggest that the Court take it under advisement until two o’clock this afternoon?”

“I see no reason tor doing so,” Judge Meehan said. “The objection, as I understand it, is technical, first as to the nature of the question, then as to whether it calls for a conclusion of the witness. Of course, if the witness doesn’t actually know, he is free to say so in just those words. I think, therefore, it is not necessary to lay a proper foundation by showing that there was some marking upon the duck or other identification which would enable the witness to know. However, as to the form of the question — I am referring now to the point that the district attorney has asked the witness if he would be willing to swear to a certain thing — I believe the objection is well taken. The Court will, therefore, sustain the objection to this particular question upon this one specific point, and the district attorney will then be at liberty to ask another question in proper form — and I suppose an objection will be made by counsel for the defense. Whereupon, the objection will be in the record in such a clear-cut way there can be no confusion as to the question of law involved.”

“Very well, Your Honor,” Mason said. “Pardon me, if the Court please, before the district attorney reframes that question, may I suggest to the Court that the district attorney should be cautioned not to throw away the most valuable piece of evidence in this case.”

Copeland gave a quick start of surprise, whirled to stare at Mason. “What do you mean?”

Mason said suavely, “That bit of paper which was handed to you a few minutes ago.”

“What about it?”

“It’s evidence.”

The district attorney said to Judge Meehan, “I submit, Your Honor, that it is not evidence. That was a private, confidential communication handed to me by some person in this room.”

“Who?” Mason asked.

“That is none of your business,” Copeland said.

Judge Meehan interposed dryly, “That will do, gentlemen. We will have an end to the personalities. And the Court will try to restore some semblance of order. Now, Miss Witherspoon, if you will please be seated.”

“But, Your Honor, I...”

“Be seated, please. You will have an opportunity to tell your story later on.

“Now, for the purpose of getting the record straight, let it appear that a question has been asked of this witness. An objection was made to that question. The objection has been sustained.”

“And, if the Court please,” Mason interposed suavely, “may it appear at this time that I have requested that the district attorney do not destroy the note which was handed to him a few minutes ago?”

“Upon what ground?” Judge Meehan asked. “I am inclined to agree with the district attorney that that is a confidential communication.”

Mason said, “It is the most pertinent piece of evidence in this case. I am asking that the Court impound that evidence until I can prove that it is pertinent.”

“Upon what grounds?” Copeland asked.

Mason said, “Let us list the people who knew that Marvin Adams had performed the experiment of drowning a duck, since only such a person could have written that note to the district attorney — a note which, I take it, advised the district attorney to call Mrs. Burr to the stand and interrogate her on this point. The defendant in this case didn’t know it. In any event, he didn’t write that note. Mrs. Burr didn’t write that note. Lois Witherspoon didn’t write it. Obviously, Marvin Adams didn’t write it. Yet it was written by someone who knew that experiment had been performed at that time and at that place. I think, therefore, the Court will agree with me that this is highly pertinent evidence.”

District Attorney Copeland said, “If the Court please, the prosecutor in a case, as well as the police officers who are investigating a case, quite frequently get anonymous tips to significant facts. The only way they can hope to get such tips is by keeping the source of information confidential.”

Mason interposed quickly, “I think, if the Court please, that, inasmuch as it is approaching the hour of the noon recess, I can discuss the matter in Chambers with the Court and the district attorney, and convince both the Court and the district attorney of the importance of this bit of evidence.”

Judge Meehan said, “I see no reason at the present time for asking the district attorney to submit in evidence any confidential communication he may have received from anyone.”

“Thank you, Your Honor,” Copeland said.

“On the other hand,” Judge Meehan went on, “it seems to me that if there is any chance this might turn out to be a significant piece of evidence, it should be preserved.”

Copeland said with dignity, “I had no intention of destroying it, Your Honor.”

“I thought the district attorney was about to crumple it up and throw it away,” Mason said.

Copeland lashed out at him, “This isn’t the first time you’ve been mistaken in connection with this case.”

Mason bowed. “Being purely a private citizen, my mistakes don’t result in the prosecution of innocent men.”

“That will do, gentlemen,” Judge Meehan said. “The Court will take a recess until two o’clock in the afternoon. I will ask counsel to meet with me in Chambers at one-thirty, and I will ask the district attorney not to destroy that note which was handed to him, until after meeting with counsel in Chambers. Recess until two o’clock this afternoon.”

As people began filing out of the courtroom, Mason looked at Della Street and grinned. “Whew!” he said. “That was close.”

“You mean you were just stalling?” she asked.

“Stalling for time,” he admitted. “Lois Witherspoon was going to stand up there and tell the whole business, right out in public.”

“She’ll do it at two o’clock, anyway,” Della Street said.

“I know it.”

“Well?”

Mason grinned. “That gives me two hours in which to think up a way out, or...”

“Or what?” Della Street asked as Mason left the sentence unfinished.

“Or solve the case,” Mason said.

Lois Witherspoon came pressing forward. She said, “That was very, very clever, Mr. Mason, but it isn’t going to stop me.”

“All right,” Mason said. “But will you promise you won’t say anything to anyone about it until two o’clock.”

“I’m going to tell Marvin.”

“Not until just before he goes on the stand,” Mason said. “It won’t make any difference.”

“No, I’m going to tell him now.”

“Tell me what?” Marvin Adams asked, coming up behind her and slipping his arm around her.