Эрл Гарднер - The Case of the Shapely Shadow

“I think it is,” Judge Seymour said. “The jury will disregard the remarks of the district attorney; in fact, I... I doubt that the misconduct can be cured by an admonition of the Court.

“Mr. District Attorney, this is very prejudicial misconduct.”

Hamilton Burger said angrily, “Your Honor, I wasn’t going to sit here and let the defense attorney bamboozle the jury into believing that this whole case hinged upon some murderer sprinkling water over the ground in front of that real estate office when there wasn’t any water to sprinkle. It’s preposterous! Simply on the strength of that hose—”

Judge Seymour interrupted, “If you had wanted to argue to the jury that there was no proof that there was water in the pipes, you could have done so with perfect propriety, but you have gone farther and made a positive statement that the water was shut off.”

“Well, it was shut off!” Hamilton Burger snapped.

“That does it,” Judge Seymour said. “The Court is going to grant a mistrial in this case. Ladies and gentlemen of the jury, the Court regrets very much that this situation has arisen. But it has arisen. The district attorney has been guilty of flagrant misconduct, and I agree with the defense that the prejudicial effect in your minds cannot be removed by any admonition of the Court.

“In other words, the state of the record is now such that in the event you should find the defendant guilty of this crime and an appeal should be taken to the Supreme Court, there is no doubt whatever in my mind that the Supreme Court would reverse the conviction on the ground of the misconduct on the part of the district attorney. In fact, it wouldn’t need to go that far because this Court would unhesitatingly grant a new trial on the strength of that misconduct.

“You may be seated, Mr. District Attorney.”

Hamilton Burger, his face white, his lips quivering with rage, walked over to the counsel table. For a moment he appeared to be about to say something. Then he lowered himself slowly into his chair.

Perry Mason said, “May I be permitted to make one statement to the Court?”

“It depends upon what the statement is,” Judge Seymour said, his manner plainly showing his judicial anger.

“I agree with the Court,” Mason said, “that the misconduct cannot be cured by an admonition of the Court but, rather than have a mistrial, I will stipulate that the case can be reopened so that evidence may be received by calling competent witnesses as to whether or not it was possible for the murderer to have watered the ground through that hose. If the water actually was shut off, I have no desire to take advantage of a situation of that sort. And if the evidence so shows, we will again submit the case. I will again make my argument and the prosecution can make an argument in reply.”

“I’m not going to do any such thing,” Hamilton Burger said.

“You refuse such stipulation?” Judge Seymour asked.

“I do.”

“Under those circumstances,” Judge Seymour said, “the Court has no alternative but to declare a mistrial in the case.”

“Well now, wait a minute, wait a minute,” Hamilton Burger said, “maybe I’d better confer with my deputy about this. If I may have the indulgence of the Court...”

Hamilton Burger, so angry that his face was white, his lips quivering, leaned over to Ruskin and engaged in a whispered conference.

Ruskin argued vehemently in excited whispers.

Hamilton Burger, too angry to listen, glared around the courtroom, then finally reluctantly nodded his head.

“Very well, Your Honor,” he said, “we will accept defendant’s stipulation. We will, of course, have to have a little time within which to subpoena the records of the water company. I happen to know that... well, I won’t state what I know. But I can assure the Court that by three-thirty we can have the records of the water company showing that the water had been shut off for more than a year.”

“Very well, if there is no objection on the part of the defense, the case will be continued until three-thirty when it will be reopened in accordance with the stipulation of the parties for the specific purpose of putting on evidence concerning the water. That is satisfactory to you, Mr. Mason?”

“It is satisfactory to me,” Mason said.

“And to the prosecution?” Judge Seymour asked.

“Yes, Your Honor.”

“Very well. The court will recess until three-thirty.”

As the courtroom cleared, Paul Drake came forward, frowning.

“What the devil did you do that for, Perry?”

“Do what?” Mason asked, his manner indicating surprise.

“Let Burger off the hook. The judge was granting a mistrial.”

“Sure he was. Then Janice would have remained locked up in jail and would have been tried again and perhaps convicted. I am now about to get her acquitted.”

“You are! How?”

Mason said, “Ever since I saw that photograph showing the coiled hose, I hoped I could get the prosecution to walk into this trap. Now they’re going to try to show the water had been shut off for months.”

“And as soon as they do it, your theory of the murderer sprinkling the ground with a hose goes out the window,” Drake said.

Mason grinned. “And that leaves Hamilton Burger with the job of trying to convince this jury that a man with the wealth of Morley Theilman would pick a place to spend the night with his secretary where there was no water in the bathroom, no water in the faucets!

“Stick around, Paul. You’re going to see something.”

Paul Drake pursed his lips. “I’ll be damned,” he said slowly.

At three-thirty when court reconvened, Hamilton Burger arose.

“If the Court please,” he said, “I regret having to make a confession. I cannot show that the water in the mains was turned off; in fact, apparently such was not the case. Therefore I have no alternative but to apologize to the Court and stipulate that the Court may declare a mistrial. I am sorry that I exceeded the bounds of propriety. My zeal was such that I over-stepped the limits. I do want to state in self-defense, however, that I did so because I had every reason to believe the water had been shut off and because I was exasperated by that completely fantastic, utterly unsupported theory of the defense that someone stood out there with a hose wetting the ground.”

“Very well,” Judge Seymour said, “in view of that statement of the prosecutor...”

“Just a moment, Your Honor,” Mason said. “May I be heard?”

“What is there to be heard on?” Judge Seymour asked. “Your motion for a mistrial is going to be granted.”

“That motion was withdrawn,” Mason said. “It was withdrawn in favor of a stipulation entered into by the parties that court would adjourn until three-thirty this afternoon and that at that time the district attorney would have witnesses in court to prove that water was not in the pipes.”

“He can’t prove it,” Judge Seymour said. “You have heard his statement.”

“Certainly, I have heard his statement,” Mason said. “His statement shows that the witness would testify the water was in the mains leading to the scene of the murder. My stipulation was that witnesses could be called to show the condition of the water in the pipes. Now let the district attorney call the witnesses.”

“But you had asked for a mistrial,” Judge Seymour said.

“I did at the time. The motion was withdrawn and it is now withdrawn. I want the case to proceed in accordance with the stipulation. I want the witness put on the stand. I don’t want a mistrial. I want to go before this jury with the evidence the way it is and I want a verdict of acquittal at the hands of this jury. We’re entitled to it and we want it.”