The Privilege, page 2
“I said I object!” I insisted vehemently, refusing to take my seat before I had an answer.
“The prosecutor knows what she is doing.”
“That’s it? That’s your ruling? - The prosecutor knows what she is doing? Thank you, your Honor. It’s always good to know in advance that an appellate court will have at least one reversible error!”
“Do you want me to hold you in contempt, Mr. Antonelli?” he fairly shouted, bristling at my unexpected defiance.
“No, your Honor. I want you to hold me in at least the minimal respect with which a trial court judge is supposed to treat any lawyer who raises a legitimate objection to a question that, under the law of evidence, is never supposed to be allowed.”
Nyland was short and slight of build, with graying hair and small, insolent eyes. He spoke with admirable efficiency, brief and to the point, when he talked with jurors or when he talked about the law; he spoke forever when he spoke about himself. I said something I should never have said, and did not regret for a moment that I had said it.
“If your Honor is so eager to join the prosecution, it should be easy to find another chair at Ms. Ferguson’s table.”
His eyes went wild. He picked up his gavel, ready to hammer me and my objection to perdition, but then, with the gavel raised high above his head, he caught himself. There were too many people in the courtroom, too much coverage of the trial. He set the gavel down on the bench with a smile, as if he had only meant to get my attention.
“Your objection is noted, Mr. Antonelli. Ms. Ferguson, perhaps you could rephrase your question.”
“Yes, your Honor; I”ll be glad to,” she replied, as solemn, as grim-faced, as before. “Officer Kendricks, given the size and configuration of the sailboat, about how long would it take someone who was inside to get up on deck and dispose of a gun, or anything else, by throwing it into the bay?”
“Maybe thirty seconds, if that long.”
“Thank you. Your witness,” she said, looking for the first time, and that only briefly, at me.
“What time did you receive the call telling you that there was a report of a possible shooting?” I asked, as I slowly rose from my chair.
“A little after two-thirty, New Year’s Day morning,” replied Kendricks. He was leaning forward on his heavy arms, looking at me with those two unbalanced eyes of his.
“That is what you said on direct, but I wonder if you could be more specific. What was the exact time you received the call from dispatch? I see you have your notebook with you. Perhaps its recorded in there.”
He opened it and found the page he needed. He scratched the side of his face, took a long, deep breath and looked up.
“Two forty-two.”
“And you arrived there at what time, exactly?”
He again consulted his notebook.
“Two fifty-three.”
“Eleven minutes. You testified, in answer to the prosecution’s question, that it would have taken ‘maybe thirty seconds, not more than that,’ for someone on board the boat - it is called, by the way, ‘Bay Wind’ - to go up on deck and throw the murder weapon into the bay. Do I remember that right?”
“Yes, that’s right.”
“Then let me ask you a question the prosecution did not ask: How far could someone go in the eleven minutes it took you to get there if they had a car parked right there, next to the Bay Wind, the way the defendant, Justin Friedrich had? Far enough that you wouldn’t have known he had been there? Eleven minutes, Officer Kendricks, at 2:42 in the morning with nothing but empty streets and empty highways. What would you estimate: five miles, six, even ten in the kind of fast sports car Justin Friedrich drives?”
“I don’t exactly know; but, yes, far enough we wouldn’t have seen him.”
“But he was there, wasn’t he? - Waiting for you, waiting for someone to come to help. He did not leave because - isn’t it perfectly obvious? - he did not have anything to run away from.”
That at least gave the jury, and everyone else, something to think about. I looked at the jury, treating them with the serious respect they deserved, letting them know that they needed to ask themselves the same question I had just asked: Why would someone who had just murdered his wife never think of leaving?
Samantha Ferguson asked only one question on re-direct.
“When I asked you to describe the condition, the demeanor, of the defendant when you arrived, what was the one word you used?”
“Dazed.”
One word, and the jurors, who had been leaning forward, intensely interested in the suggestion that the fact Friedrich had not left might be proof that he had not murdered his wife, sat back in their chairs, freed from having to think too far into things. None of them had committed murder, but ‘dazed’ might be exactly the state they would be in if they had ever done so. Justin Friedrich was not some hired assassin, some cold-blooded killer; he was not on trial for murdering a stranger, he was on trial for murdering his wife. Everyone could understand how that could happen: an act of passion, not something he had planned far in advance. Precisely because he was not a hardened criminal, a professional killer, his failure to leave the scene of the crime could now be construed not as proof of his innocence, but of his guilt. Samantha Ferguson had reason to be pleased with herself, as she announced she was through with Office Kendricks.
For the next several days, the prosecution put on the witnesses needed to establish that Allison Friedrich had died from two bullets fired from a .38 revolver. The technical details of death and ballistics, the angles of entry, the position of the body, the photographs taken at the scene, passed from one juror to the next, all the dismal requirements of the prosecution’s case for homicide, were handled with thorough competence. There was very little for me to do, except sit there all day and try to appear confident that nothing about the violent death of Allison Friedrich had any bearing on the ultimate outcome of the case. Sitting next to me, in the chair closest to the jury box, her husband seemed astonished he was even there. He followed the testimony of each witness with the same eager curiosity with which he would have observed the trial of someone he did not know.
Finally, the prosecution was finished with all the technical details and at the beginning of the second week moved to the question of motivation. Allison Friedrich had been murdered, murdered, according to the prosecution, by her husband. But why he had he done it on that particular night instead of some other time? Justin Friedrich and his wife had been married a little more than two years. He could have killed her any time he wanted in the relatively short history of their marriage. The opportunity, as the prosecution and the police always like to talk about, was always there, every day, every night, they were together. It had not happened. Why now? What happened that led Justin Friedrich to decide that the woman with whom he had lived for two years should now die?
The first witness called by the prosecution when we started again Monday morning provided part of the answer.
Chapter Two
“Were you having an affair with Allison Friedrich?” asked Samantha Ferguson.
“I’m not sure I would put it quite like that,” replied Anthony Bulwer.
In his early forties, Bulwer was soft-spoken, polite, a man who moved easily in the crowd, so long as it was a crowd at a reception or some other elegant, expensive event. He did not seem entirely comfortable in front of a mainly middle-class jury and the staring eyes of several hundred strangers in the audience.
“How would you put it?” asked Samantha Ferguson, a little irritated at his attempted correction.
“ Allison and I had known each other for years. We were good friends.”
Ferguson had just begun one of her long reaching strides. She stopped abruptly and with a warning glance asked with impatience, “You weren’t having an affair with Allison Friedrich? Which is it, Mr. Bulwer? We don’t have all day.”
“Yes,” he admitted, reluctantly but without embarrassment. “If you want to make it that kind of simple choice.”
Had he not been her witness, if she were cross-examining a witness for the defense, Samantha Ferguson would have been apoplectic at his failure to give a direct answer to a direct question. But he was her witness, and all she could do was try to burn a hole through him with as piercing a stare as I had ever seen.
“We’ll try this again. You’re a witness, Mr. Bulwer, a witness for the prosecution, a witness in a murder trial. You are -”
“Objection!” I cried, jumping to my feet. “The prosecution gets to ask questions, not tell the witness how to answer them.”
Whenever Walker Nyland was stymied, which was often, he pulled back his upper lip, exposing his front teeth, as he sucked in air, like a mouse showing disdain for the mousetrap he has just robbed of bait.
“Well, I don’t think she is really doing that; but, yes, all right - Perhaps, Ms. Ferguson, you might rephrase your question.”
“I’ll try, your Honor; but as I hadn’t asked a question, I am not quite sure how to go about rephrasing it,” she said, drily. She turned back to the witness.
“Were you sleeping with the victim, Allison Friedrich?”
“Yes, once in a while, but -”
“You were sleeping with her. Did her husband find out about this?”
I was back on my feet, but Ferguson, catching her error, changed the question.
“Did Allison Friedrich tell you that her husband knew?”
“Yes, he knew. But,” he added quickly, as if it made a difference, “she said it was all right, that they had an understanding.”
Anthony Bulwer was not a willing witness. He resented this intrusion into his own private life. He had probably been less than forthcoming when, as part of her trial preparation, Ferguson interviewed him. He would have volunteered nothing beyond what he had to tell her in response to what she asked. This was the first she had heard anything about an understanding. Her surprise banished caution.
“Understanding? What kind of understanding?”
Bulwer did not like the patronizing way she was treating him. He returned her condescension with some of his own.
“An understanding that she could lead her life anyway she wanted, and he could do the same thing. They were married to each other, but monogamy wasn’t part of the bargain. They both understood that; they both wanted that. So, yes, counselor, I slept with Allison. As I say, we had been good friends for a very long time.”
She stared at him for a moment through half closed eyes, and then moved to another line of questioning.
“Did you attend a New Year’s Eve party at the Fairmont Hotel?”
“Yes, I did,” replied Bulwer, as he reached down to pick lint from his pants.
“Would you tell the jury what happened that night?”
Bulwer threw back his head and laughed.
“I had a lot to drink, and had a really good time!”
Samantha Ferguson had enough.
“Permission to treat the witness as hostile, your Honor?” She did not wait for Nyland’s fumbled response before she bore in. “You were at the Fairmont Hotel on New Year’s Eve - correct?”
“Yes, that’s correct.”
“There were several hundred people there - in the Venetian Room - correct?”
“That would be my guess.”
“You had a lot to drink. Isn’t that what you just said?”
“Yes, I drank a lot that night. It was New -”
“And you weren’t alone in that, were you?”
Bulwer blinked twice. He was not sure how to answer.
“A lot of people were drinking, drinking champagne, including the defendant, Justin Friedrich - isn’t that true?”
“He probably had more to drink than I did. That’s true. He was quite drunk by the time that he and I -”
“‘He and I.’ Yes. You got into an argument with each other, a heated argument, didn’t you?”
“An argument, yes,” he replied, reluctantly.
Ferguson had remained in the same place, in front of her counsel table, and in the same position, staring hard at the witness. She now took a step forward, and with her hands behind her back, allowed herself a brief smile. The witness could relax. They were no longer enemies.
“Would you please tell the jury, Mr. Bulwer, what happened between you and the defendant at the Fairmont Hotel on New Year’s Eve.”
No one, it is safe to assume, had ever subjected Anthony Bulwer to anything like what, at the practiced hands of Samantha Ferguson, he had just endured. Now that it was over, he acted like someone who has just walked out of the dentist’s office: too grateful it was over to resent the pain.
“It was a few minutes before midnight, everyone who wasn’t sitting at their table drinking champagne was on the dance floor. I was dancing with Allison. Justin - I’m not sure if he was still at the table or if he was dancing with someone else - but the orchestra stopped playing and everyone started the countdown to midnight and the new year. When the bell started ringing and it was midnight and the old year was finished, everyone on the dance floor kissed whomever they were with. I kissed Allison. That’s when it happened. Justin grabbed my shoulder and pulled me away, and then he grabbed Allison by the arm and started dragging her across the dance floor back to their table. He was calling her every name in the book, and she was screaming right back at him. Everything seemed to be happening in slow motion, the two of them fighting with each other, everyone watching and wondering what was going to happen next.”
“And what did happen next?” asked Ferguson in a calm, understated voice, her eyes full of fabricated encouragement.
“When they got to the table, Allison twisted free and shoved him away from her. He was off balance and it was enough to throw him backward into the chairs. She shouted that she was leaving, that so far as she was concerned he could get himself a room in the hotel.”
It was my turn, but instead of rising from my chair, I spoke for a moment to Justin Friedrich, a short, whispered conversation with my hand on his shoulder that had as its only purpose the impression of my confidence in him. I wanted the jury to believe that I would not come in such close contact with someone I thought guilty. Everything has an effect.
“You testified, Mr. Bulwer, that you and Allison Friedrich were old friends. You didn’t tell us how old. How long had you known her? Some years before she was married, isn’t that right?”
“She was probably still in high school when we first met.”
“But you weren’t in high school then. You were - what? - ten years older.”
“I knew her family. And yes, I’m nine or ten years older.”
“How old was she when you first started sleeping with her? I assume she was not still in high school?” I asked, in as pleasant a voice as I could.
There was a moment’s hesitation. He did not want to answer, and I understood why. That was enough, that slight hesitation, to tell the truth he did not want to admit. I let him think I was doing him a favor by not asking again.
“All I really want to know, Mr. Bulwer, is did this affair begin before, or after, Allison Friedrich married her husband?”
“Before.”
“And it continued, did it not? It never stopped - correct?”
“Yes, but as I tried to explain before, we weren’t together all that often. Only once in a while. We were more friends than lovers, if I can put it like that.”
“You weren’t just friends with her, though, were you? You were also friends, quite good friends, with her husband, the defendant, Justin Friedrich.”
“Yes, we were very good friends.”
With my arms crossed over my chest, I stared down at the floor, and then, lifting my head, fixed him with a stare of utter disbelief.
“Very good friends, but still sleeping with his wife? Very good friends, such good friends that, as you testified earlier, he knew, and did not mind, that you were sleeping with her. That must have been convenient!”
“Objection!” exclaimed Ferguson. “If Mr. Antonelli wants to comment on what the witness testifies, he can do that in his closing argument.”
Walker Nyland’s mouth began to twitch. He shook his head as if he disagreed, and then with a wave of his hand seemed to dismiss his own decision.
“Ask a question, Mr. Antonelli,” he said, finally and with evident relief.
“It’s your testimony that the defendant knew all about your affair with his wife, but that he did not care because they had an understanding. Is that correct?”
“Yes, that’s right,” he replied, shifting uneasily in the witness chair.
“But despite that, you had to ask if he knew. Isn’t that a little odd? On the one hand, they have this ‘understanding,’ each of them free to do whatever they want: sleep with you, sleep with someone else. And yet, somehow, after all these years in which you were carrying on this ‘once in a while’ affair, she never mentioned this, never told you there was nothing to worry about, that her husband, your friend, your ‘very good’ friend, really did not mind, until, years after it started, you decided for some reason to ask if he knew?”
“I know it must sound strange, but it did not seem strange at the time. Just because there was this understanding between them, it did not mean it was the kind of thing you go around talking about.”
“You mean that despite their ‘understanding,’ there were things they did not want to know?”
“Yes, that would be right.”
“Things they wouldn’t want other people to know about, things they would not want to become so flagrant it might cause the kind of rumors that lead to scandal?”
“Yes, exactly.”
“Which would explain,” I insisted, my eyes cold and determined, “why Justin Friedrich became as angry as he did when he saw you kissing his wife in front of a few hundred of your other wealthy, entitled friends! Why he might have become so angry that he hauled her off the dance floor, so angry that he stayed behind and let her go back to the Bay Wind alone. But she did not go there alone, did she, Mr. Bulwer? She went there with you!”
