Casebook of the Black Widowers
10. What Time Is It?
The monthly banquet of the Black Widowers had proceeded its usually noisy course and then, over the coffee, there had fallen an unaccustomed quiet.
Geoffrey Avalon sipped at his coffee thoughtfully and said, "It's the little things - the little things. I know a couple who might have been happily married forever. He was a lay reader at an Episcopalian Church and she was an unreformed atheist, and they never gave each other a cross look over that. But he liked dinner at six and she liked it at seven, and that split them apart."
Emmanuel Rubin looked up owlishly from his part of the table, eyes unblinking behind thick lenses, and said, "What's 'big' and what's 'little,' Geoff? Every difference is a little difference if you're not involved. There's nothing like a difference in the time sense to reduce you to quivering rage."
Mario Gonzalo looked complacently at the high polish on his shoes and said, "Ogden Nash once wrote that some people like to sleep with the window closed and some with the window open and each other is whom they marry."
Since it was rather unusual that at any Black Widowers banquet three successive comments should be made without an explosive contradiction, it didn't really surprise anyone when Thomas Trumbull furrowed his brows and said, "That's a lot of horsehair. When a marriage breaks up, the trivial reason is never the reason."
Avalon said mildly, "I know the couple, Tom. It's my brother and sister - in - law - or ex - sister - in - law."
"I'm not arguing that they don't say they've split over a triviality, or even that they don't believe it," said Trumbull. "I just say there's something deeper. If a couple are sexually compatible, if there are no money problems, if there is no grave difference in beliefs or attitudes, then they'll stick together. If any of these things fail, then the marriage sours and the couple begin to chafe at trivialities. The trivialities then get blamed - but that's not so."
Roger Halsted, who had been chasing the last of the apple pie about his plate, now cleansed his mouth of its slight stickiness with a sip of black coffee and said, "How do you intend to prove your statement, Tom?"
"It doesn't require proof," said Trumbull, scowling. "It stands to reason."
"Only in your view," said Halsted, warmly, his high forehead flushing pinkly, as it always did when he was moved. "I once broke up with a young woman I was crazy about because she kept saying 'Isn't it a riot?' in and out of season. I swear she had no other flaw."
"You'd be perjuring yourself unconsciously," said Trumbull. "Listen, Jim, call a vote."
James Drake, host for the evening, stubbed out his cigarette and looked amused. His small eyes, nested in finely wrinkled skin, darted around the table and said, "You'll lose, Tom."
"I don't care if I win or lose," said Trumbull, "I just want to see how many jackasses there are at the table."
"The usual number, I suppose," said Drake. "All those who agree with Tom raise their hands."
Trumbull's arm shot up and was the only one to do so. "I'm not surprised," he said, after a brief look, left and right. "How about you, Henry? Are you voting?"
Henry, the unparalleled waiter at all the Black Widower banquets, smiled paternally, "Actually, I was not, Mr. Trumbull, but it I had voted, I would have taken the liberty of disagreeing with you." He was passing about the table, distributing the brandy.
"You, too, Brutus?" said Trumbull.
Rubin finished his coffee and put the cup down with a clatter. "What the devil, all differences are trivial. Forms of life that are incredibly different superficially are all but identical on the biochemical level. There seems a world of difference between the worm and the earth it burrows in, but, considering the atoms that make it up, both of them . . ."
Trumbull said, "Don't wax poetical, Manny, or, if you must, wax it in your garage and not here. I suspect jackassery is universal but, just to make sure, I'll ask our guest if he is voting."
Drake said, "Let's make that part of the grilling then. It's time. And you can do the grilling, Tom."
The guest was Barry Levine, a small man, dark - haired, dark - eyed, slim, and nattily dressed. He was not exactly handsome, but he had a cheerful expression that was a good substitute. Gonzalo had already sketched his caricature, exaggerating the good cheer into inanity, and Henry had placed it on the wall to join the rest.
Trumbull said, "Mr. Levine, it is our custom at these gatherings of ours to ask our guest, to begin with, to justify his existence. I shall dispense with that since I will assume that your reason for existence at the moment is to back me up, if you can, in my statement - self - evident, to my way of thinking - that trivialities are trivial."
Levine smiled and said, in a slightly nasal voice, "Trivialities on the human level, or are we talking about earthworms?"
"We are talking about humans, if we omit Manny."
"In that case, I join the jackassery, since, in my occupation, I am concerned almost exclusively with trivia."
"And your occupation, please?"
"I'm the kind of lawyer, Mr. Trumbull, who makes his living by arguing with witnesses and with other lawyers in front of a judge and jury. And that immerses me in triviality."
Trumbull growled, "You consider justice a triviality, do you?"
"I do not," said Levine, with equanimity, "but that is not with what we are directly concerned in the courtroom. In the courtroom, we play games. We attempt to make favorable testimony admissible and unfavorable testimony inadmissible. We play with the rules of questioning and cross - examination. We try to manipulate the choosing of favorable jurors, and then we manipulate the thoughts and emotions of the jurors we do get. We try to play on the prejudices and tendencies of the judge as we know them to be at the start or as we discover them to be in the course of the trial. We try to block the opposition attorney or, if that is not possible, to maneuver him into overplaying his hand. We do all this with the trivia and minutiae of precedence and rationale."
Trumbull's tone did not soften. "And where in all this litany of judicial recreation does justice come in?"
Levine said, "Centuries of experience with our Anglo - American system of jurisprudence has convinced us that in the long run and on the whole, justice is served. In the short run, and in a given specific case, however, it may very well not be. This can't be helped. To change the rules of the game to prevent injustice in a particular case may, and probably will, insure a greater level of injustice on the whole - though once in a while an overall change for the better can be carried through."
"In other words," interposed Rubin, "you despair of universal justice even as a goal of the legal profession?"
"As an attainable goal, yes," said Levine. "In heaven, there may be perfect justice; on Earth, never."
Trumbull said, "I take it, then, that if you are engaged in a particular case, you are not the least interested in justice?"
Levine's eyebrows shot upward. "Where have I said that? Of course I am interested in justice. The immediate service to justice is seeing to it that my client gets the best and most efficient defense that I can give him, not merely because he deserves it, but also because American jurisprudence demands it, and because he is deprived of it at your peril, for you may be next.
"Nor is it relevant whether he is guilty or innocent, for he is legally innocent in every case until he is proven guilty according to law, rigorously applied. Whether the accused is morally or ethically innocent is a much more difficult question, and one with which I am not primarily concerned. I am secondarily concerned with it, of course, and try as I might, there will be times when I cannot do my full duty as a lawyer out of a feeling of revulsion toward my client. It is then my duty to advise him to obtain another lawyer.
"Still, if I were to secure the acquittal of a man I considered a scoundrel, the pain would not be as intense as that of failing to secure the acquittal of a man who, in my opinion, was wrongfully accused. Since I can rarely feel certain whether a man is wrongfully accused or is a scoundrel past redemption, it benefits both justice and my conscience to work for everyone as hard as I can, within the bounds of ethical legal behavior."
Gonzalo said, "Have you ever secured the acquittal of someone you considered a scoundrel?"
"On a few occasions. The fault there lay almost always in mistakes made by the prosecution - their illegal collection of evidence, or their slovenly preparation of the case. Nor would I waste pity on them. They have the full machinery of the law on their side and the boundless public purse. If we allow them to convict a scoundrel with less than the most legal of evidence and the tightest of cases simply because we are anxious to see a scoundrel punished, then where will you and I find safety? We, too, may seem scoundrels through force of circumstance or of prejudice."
Gonzalo said, "And have you ever failed to secure the acquittal of someone you considered wrongfully accused?" Here Levine's face seemed to crumple. The fierce joy with which he defended his profession was gone and his lower lip seemed to quiver for a moment. "As a matter of fact," he said, softly, "I am engaged in a case right now in which my client may well be convicted despite the fact that I consider him wrongfully accused."
Drake chuckled and said, "I told you they'd get that out of you eventually, Barry!" He raised his voice to address the others generally. "I told him not to worry about confidentiality; that everything here was sub rosa. And I also told him it was just possible we might be able to help him."
Avalon stiffened and said in his most stately baritone, "Do you know any of the details of the case, Jim?"
"No, I don't."
"Then how do you know we can help?"
"I called it a possibility."
Avalon shook his head. "I expect that from Mario's enthusiasm, but not from you, Jim."
Drake raised his hand. "Don't lecture, Geoff. It doesn't become you."
Levine interposed. "Don't quarrel, gentlemen. I'll be pleased to accept any help you can offer, and if you can't, I will be no worse off. Naturally, I want to impress on you the fact that even though confidentiality may be the rule here, it is particularly important in this case. I rely on that."
"You may," said Avalon stiffly.
Trumbull said, "All right, now. Let's stop this dance and get down to it. Would you give us the details of the case you're speaking of, Mr. Levine?"
"I will give you the relevant data. My client is named Johnson, which is a name that I would very likely have chosen if I were inventing fictitious names, but it is a real name. There is a chance that you might have heard of this case, but I rather think you haven't, for it is not a local case and, if you don't mind, I will not mention the city in which it occurred, for that is not relevant.
"Johnson, my client, was in debt to a loan shark, whom he knew - that is, with whom he had enough of a personal relationship to be able to undertake a personal plea for an extension of time.
"He went to the hotel room that the loan shark used as his office - a sleazy room in a sleazy hotel that fit his sleazy business. The shark knew Johnson well enough to be willing to see him, and even to affect a kind of spurious bonhomie, but would not grant the extension. This meant that when Johnson went into default he would, at the very least, be beaten up; that his business would be vandalized; that his family, perhaps, would be victimized.
"He was desperate - and I am, of course, telling you Johnson's story as he told it to me - but the shark explained quite coolly that if Johnson were let off then others would expect the same leniency. On the other hand, if Johnson were made an example of, it would nerve others to pay promptly and perhaps deter some from incurring debts they could not repay. It was particularly galling to Johnson, apparently, that the loan shark waxed virtuous over the necessity of protecting would - be debtors from themselves."
Rubin said dryly, "I dare say, Mr. Levine, that if a loan shark were as articulate as you are, he could make out as good a case for his profession as you could for yours."
Levine said, after a momentary pause, "I would not be surprised. In fact, before you bother to point it out, I may as well say that, given the reputation of lawyers with the public, people hearing the defenses of both professions might vote in favor of loan sharks as the more admirable of the two. I can't help that, but I still think that if you're in trouble you had better try a lawyer before you try a loan shark.
"To continue, Johnson was not at all impressed by the shark's rationale for trying to extract blood from a stone, then pulverizing the stone for failure to bleed. He broke down into a rage, screaming out threats he could not fulfill. In brief, he threatened to kill the shark."
Trumbull said, "Since you're telling us Johnson's story, I assume he admitted making the threat."
"Yes, he did," said Levine. "I told him at the start, as I tell all my clients, that I could not efficiently help him unless he told me the full truth, even to confessing to a crime. Even after such a confession, I would still be compelled to defend him, and to fight, at worst, for the least punishment to which he might be entitled and, at best, for acquittal on any of several conceivable grounds.
"He believed me, I think, and did not hesitate to tell me of the threat; nor did he attempt to palliate or qualify it. That impressed me, and I am under the strong impression that he has been telling me the truth. I am old enough in my profession and have suffered the protestations of enough liars to feel confident of the truth when I hear it. And, as it happens, there is evidence supporting this part of the story, though Johnson did not know that at the time and so did not tell the truth merely because he knew it would be useless to lie."
Trumbull said, "What was the evidence?"
Levine said, "The hotel rooms are not soundproofed and Johnson was shrieking at the top of his voice. A maid heard just about every word and so did a fellow in an adjoining room who was trying to take a nap and who called down to the front desk to complain."
Trumbull said, "That just means an argument was going on. What evidence is there that it was Johnson who was shrieking?'
"Oh ample," said Levine. "The desk clerk also knows Johnson, and Johnson had stopped at the desk and asked if the shark were in. The desk clerk called him and sent Johnson up - and he saw Johnson come down later - and the news of the death threat arrived at the desk between those two periods of time.
"Nevertheless, the threat was meaningless. It served, in fact, merely to bleed off Johnson's rage and to deflate him. He left almost immediately afterward. I am quite certain that Johnson was incapable of killing."
Rubin stirred restlessly. He said, "That's nonsense. Anyone is capable of killing, given a moment of sufficient rage or terror and a weapon at hand. I presume that after Johnson left, the loan shark was found dead with his skull battered in; with a baseball bat, with blood and hair on it, lying on the bed; and you're going to tell us that you're sure Johnson didn't do it."
Levine held up his glass for what he indicated with his fingers was to be a touch more brandy, smiled his thanks to Henry, and said, "I have read some of your murder mysteries, Mr. Rubin, and I've enjoyed them. I'm sure that in your mysteries such a situation could occur and you'd find ways of demonstrating the suspect to be innocent. This, however, is not a Rubin mystery. The loan shark was quite alive when Johnson left."
Rubin said, "According to Johnson, of course."
"And unimpeachable witnesses. The man who called down said there was someone being murdered in the next room, and the desk clerk sent up the security man at once, for he feared it was his friend being murdered. The security man was well armed, and though he is not an intellectual type, he is perfectly competent to serve as a witness. He knocked and called out his identity, whereupon the door opened and revealed the loan shark, whom the security man knew, quite alive - and alone. Johnson had already left, deflated and de - energized.
"The man at the desk, Brancusi is his name, saw Johnson leave a few seconds after the security man had taken the elevator up. They apparently passed each other in adjoining elevators. Brancusi called out, but Johnson merely lifted his hand and hurried out. He looked white and ill, Brancusi says. That was about a quarter after three, according to Brancusi - and according to Johnson, as well.
"As for the loan shark, he came down shortly after four and sat in the bar for an hour or more. The bartender, who knew him, testified to that and can satisfactorily enumerate the drinks he had. At about a quarter after five he left the bar and, presumably, went upstairs."
Avalon said, "Did he drink enough to have become intoxicated?"
"Not according to the bartender. He was well within his usual limit and showed no signs of being drunk."
"Did he talk to anyone in particular?"
"Only to the bartender. And according to the bartender, he left the bar alone."
Gonzalo said, "That doesn't mean anything. He might have met someone in the lobby. Did anyone see him go into the elevator alone?"
"Not as far as we know," said Levine. "Brancusi didn't happen to notice, and no one else has admitted to seeing him, or has come forward to volunteer the information. For that matter, he may have met someone in the elevator or in the corridor outside his room. We don't know, and have no evidence to show he wasn't alone when he went into his room shortly after a quarter after five.
"Nevertheless, this two - hour period between a quarter after three and a quarter after five is highly significant. The security guard who encountered the loan shark immediately after Johnson had left at a quarter after three, found the shark composed and rather amused at the fuss. Just a small argument, he said; nothing important. Then, too, the barman insists that the loan shark's conversation and attitude throughout his time in the bar was normal and unremarkable. He made no reference to threats or arguments."
Halsted said, "Would you have expected him to?"
"Perhaps not," said Levine, "but it is still significant. After all, he knew Johnson. He knew the man to be both physically and emotionally a weakling. He had no fear of being attacked by him, or any doubt that he could easily handle him if he did attack.
"After all, he had agreed to see him without taking the precaution of having a bodyguard present, even though he knew Johnson would be desperate. He was not even temporarily disturbed by Johnson's outburst and shrugged it off to the guard. During that entire two - hour interval he acted as though he considered my client harmless and I would certainly make that point to the jury."
Avalon shook his head. "Maybe so, but if your story is going to have any point at all, the loan shark, you will tell us, met with a violent death. And if so, the man who made the threat is going to be suspected of the murder. Even if the loan shark was certain that Johnson was harmless, that means nothing. The loan shark may simply have made an egregious error."
Levine sighed. "The shark did die. He returned to his room at a quarter after five or a minute or two later and, I suspect, found a burglar in action. The loan shark had a goodish supply of cash in the room - necessary for his business - and the hotel was not immune to burglaries. The loan shark grappled with the intruder and was killed before half past five."
Trumbull said, "And the evidence?"
"The man in the adjoining room who had been trying to take a nap two hours before had seethed sufficiently to have been unable to fall asleep until about five and then, having finally dropped off, he was roused again by loud noises. He called down to the desk in a rage, and informed Brancusi that this time he had called the police directly."
Gonzalo said, "Did he hear the same voice he had heard before?"
"I doubt that any voice identification he would try to make would stand up in court," said Levine. "However, he didn't claim to have heard voices. Only the noises of furniture banging, glass breaking, and so on.
"Brancusi sent up the security guard who, getting no answer to his knock and call this time, used his passkey at just about half past five and found the loan shark strangled, the room in wild disorder, and the window open. The window opened on a neighboring roof two stories lower. An experienced cat burglar could have made it down without trouble and might well have been unobserved.
"The police arrived soon after, at about twenty to six."
Trumbull said, 'The police, I take it, do not buy the theory that the murder was committed by a burglar."
"No. They could detect no signs on the wall or roof outside the window to indicate the recent passage of a burglar. Instead, having discovered upon inquiry of the earlier incident from the man who had called them, they scorn the possibility of coincidence and feel that Johnson made his way to the room a second time, attacked and strangled the loan shark, knocking the furniture about in the process, then opened the window to make it look as though an intruder had done the job, hastened out of the door, missing the security man by moments, and passing him on the elevator again."
Trumbull said, "Don't you believe that's possible?"
"Oh anything's possible," said Levine, coolly, "but it is not the job of the prosecutor to show it's possible. He has to show it's actually so beyond a reasonable doubt. The fact that the police saw nothing on the walls or roof is of no significance whatever. They may not have looked hard enough. A negative never impresses either judge or jury - and shouldn't. And threats at a quarter after three have nothing to do with an act at twenty after five or so unless the man who made the threat at the former time can be firmly placed on the scene at the later time."
Gonzalo was balancing his chair on its back legs with his hands gripping the table. "So what's the problem?"
"The problem is, Mr. Gonzalo," said Levine, "that Johnson was placed on the scene of the crime at about the time of the killing."
Gonzalo brought his chair forward with a clatter. "With good evidence?"
"The best," said Levine. "He admits it. Here is what happened: In the two hours after he had left the loan shark, Johnson hurriedly scraped up every bit of money he had, borrowed small sums from several friends, made a visit to a pawnshop, and had raised something like a third of what he owed. He then came back to the hotel hoping for as long an extension as possible through payment of this part sum. He had little hope of success, but he had to try.
"He arrived at the hotel at about a quarter to six, after the murder had been committed, and he noted a police squad car at the curb outside the hotel. Except for noticing its existence, he paid it little attention. He had only one thing on his mind.
"He headed straight for the elevator, which happened to be at the lobby with its door open. As he stepped out of it at the loan shark's floor, he saw a policeman at the door of the room he was heading for. Almost instinctively, he ducked back into the elevator and pushed the lobby button. He was the only man in the elevator and there were no calls to higher floors. The elevator moved downward, stopping at no floors. When he reached the lobby, he hastened out, went home, and stayed there till the police came for him."
A curl of cigarette smoke hung above Drake's head. He said, "I suppose they learned of the earlier threat and took him in for questioning."
"Right," said Levine. "But they can't make Johnson testify against himself, so how do they show he was on the spot at the time of the murder?"
"For one thing, Brancusi saw him when he was heading for the elevator. Brancusi called out to head him off and prevent him from running into the police. Johnson didn't hear him and the elevator doors closed behind him before Brancusi could do anything else. Brancusi insists, however, that Johnson was back down again in two minutes or so and hastened out. And he is prepared to swear that Johnson left at precisely ten minutes to six.
Drake said, "Is Brancusi really sure of that?"
"Absolutely. His shift was over at six o'clock and he was furious at the fact that the murder had not taken place an hour later, when he would have been off duty. As it was, he was sure he would be needed for questioning and might be kept for hours. He was therefore unusually aware of the time. There was an electric clock on the wall to one side of his desk, a nice large one with clear figures that was new and had been recently installed. It was accurate to the second and he is absolutely certain it said ten to six."
Avalon cleared his throat. "In that case, Mr. Levine, Brancusi backs up Johnson's story and places your client at the scene not at the time of the murder but afterward."
Levine said, "Here is where the trivialities come in. Brancusi is a bad witness. He has a small stutter, which makes him sound unsure of himself; he has one drooping eyelid, which makes him look hangdog and suspicious; and he has distinct trouble in looking you in the eye. The jury will be ready to believe him a liar.
"Second, Brancusi is a friend of Johnson's, has known him from childhood, and is still a drinking buddy of the man. That gives him a motive for lying, and the prosecution is sure to make the most of that.
"Finally, Brancusi may not want to testify at all. He served six months in jail for a minor offense quite a number of years ago. He has lived a reasonably exemplary life since and naturally doesn't want that earlier incident to be made public. For one thing, it could cost him his job."
Rubin said, "Could the prosecution bring up the matter? It's irrelevant, isn't it?"
"Quite irrelevant, but if the prosecution takes the attitude that it serves to cast a doubt on the reliability of Brancusi as a witness, they might slip it past the judge."
Rubin said, "In that case, if you put neither Johnson nor Brancusi on the stand, the prosecution would still be stuck with the task of proving that Johnson was at the scene at the right time. They can't call Johnson themselves, and they won't call Brancusi to give his evidence because they then can't cross - examine him and bring out that jail term."
Levine sighed. "There's another witness. The man is an accountant named William Sandow. He had stopped at the hotel lobby to buy a small container of breath fresheners, and while he was at the newsstand, he saw Johnson pass him, hurrying out of the hotel. Later in the evening, he read about the murder, and called the police to volunteer the information. His description of the man he saw was a good one and, eventually, he made a positive identification out of a lineup.
"Sandow said that what drew his attention to the man who passed him was the look of horror and anguish on his face. Of course, he can't use terms like that on the witness stand, but the prosecution can get him to make factual statements to the effect that Johnson was sweating and trembling, and this would give him the air of an escaping murderer."
Rubin said, "No, it doesn't. Lots of things could make a man sweat and tremble, and Johnson had good reason to do so short of murder. Besides, Sandow just bears out the story of Brancusi and Johnson."
Levine shook his head. "No, he doesn't. Sandow says he happened to catch a glimpse of the time as Johnson passed him and swears it was exactly half past five, which is just after the murder was committed but before the police arrived. If true, that ruins Johnson's story and makes the assumption that he committed the murder a very tempting one."
Rubin said, "Brancusi backs Johnson. It's one man's word against another. You can't convict on that."
"You can," said Levine, "if the jury believes one man and not the other. If Brancusi is bound to make a bad impression, Sandow is bound to make a good one. He is open - faced, clean - cut, has a pleasant voice, and exudes efficiency and honesty. The mere fact that he is an accountant gives him an impression of exactness. And whereas Brancusi is a friend of Johnson and therefore suspect, Sandow is a complete outsider with no reason to lie."
Rubin said, "How sure are you of that? He was very ready to volunteer information and get involved. Does he have some secret grudge against Johnson? Or some connection with the loan shark?"
Levine shrugged his shoulders. "There are such things as public - spirited citizens, even today. The fact that he came forward will be in his favor with the jury. Naturally, my office has investigated Sandow's background. We've turned up nothing we can use against him - at least so far."
There was a short silence around the table, and then finally Rubin said, "Honest people make mistakes, too. Sandow says he just happened to catch a glimpse of the time. Just how did that happen? He just happened to glance at his wristwatch? Why? Brancusi had a good reason to watch the clock. What was Sandow's?"
"He does not claim to have looked at his watch. He caught a glimpse of the same wall clock that Brancusi looked at. Presumably both Brancusi and Sandow were looking at the same clock at the same moment. The same clock couldn't very well tell half past five to one person and ten to six to another at the same time. Clearly, one person is lying or mistaken, and the jury will believe Sandow."
Rubin said, "Brancusi was staring at the clock. Sandow just caught a glimpse. He may have caught the wrong glimpse."
Levine said, "I have considered stressing that point, but I am not sure I ought to. Sandow's statement that he just happened to catch a glimpse sounds honest, somehow. The mere fact that he doesn't claim to see more than he saw, that he doesn't make an undue effort to strengthen his evidence, makes him ring true. And he's an accountant. He says he's used to figures, that he can't help noticing and remembering them. The prosecution will surely have him say that on the stand, and the jury will surely accept that.
"On the other hand, Mr. Rubin, if I try to balance Sandow's cool certainty by having Brancusi become very, very definite and emotional about how certain he is it was ten to six, then he will carry all the less conviction for he will impress the jury as someone who is desperately trying to support a lie. And if it looks as though he is making a good impression, the prosecution will make a major effort to bring out his previous prison record."
Halsted broke in with sudden animation. "Say, could Sandow see the clock from where he says he was standing at the newsstand?"
Levine said, "A good point. We checked that out at once and the answer is: Yes, he could. Easily."
There was another silence around the table, a rather long one.
Trumbull finally said, "Let's put it as briefly as we can. You are convinced that Johnson is innocent and that Brancusi is telling the truth. You are also convinced that Sandow is either lying or mistaken, but you can't think of any reason he might be or any way of showing he is. And the jury is going to believe Sandow and convict Johnson."
Levine said, That's about it."
Rubin said, "Of course, juries are unpredictable."
"Yes, indeed," said Levine, "but if that's my only hope, it isn't much of one. I would like better."
Avalon's fingers were drumming noiselessly on the tablecloth. He said, "I'm a patent lawyer myself, and I have just about no courtroom experience. Still, all you need do is cast a reasonable doubt. Can't you point out that a man's liberty rests on a mere glimpse of a clock?"
"I can, and will try just as hard as I can short of pushing the prosecution into attempting to uncover Brancusi's prison record. I would like something better than that, too."
From the sideboard, Henry's voice sounded suddenly. "If you'll excuse me, Mr. Levine - I assume that the clock in question, the one to which both Mr. Brancusi and Mr. Sandow referred, is a digital clock."
Levine frowned. "Yes, it is. I didn't say it was, did I? How did you know?" His momentary confusion cleared, and he smiled. "Well, of course. No mystery. I said it was a new clock, and these days digital clocks are becoming so popular that it is reasonable to suppose that any new clock would be digital."
"I'm sure that is so," said Henry, "but that was not the reason for my conclusion. You said a few moments ago that Mr. Sandow was an accountant and that accountants couldn't help but notice and remember figures. Of course you don't notice and remember figures on an ordinary dial clock - you remember the position of the hands. On a dial clock it is just as easy to tell time when the hour numbers are replaced with dots or with nothing at all."
"Well, then?" said Levine.
"Almost any grown person of reasonable intelligence can tell time at a glance in that way. Accountants have no special advantage. A digital clock is different."
Levine said, "Since it was a digital clock, then accountants do have a special advantage. You're not helping me, Henry."
Henry said, "I think I am. You have been unconsciously misleading us, Mr. Levine, by giving the time in the old - fashioned way appropriate to a dial clock. You speak of a quarter after three and a quarter to six and so on. Digital clocks specifically show such times to be three - fifteen and five forty - five. As digital clocks become more and more universal, times will be I spoken of in this way exclusively, I imagine."
Levine seemed a little impatient. "How does this change anything, Henry?"
Henry said, "Your statement was that Brancusi was certain that the time at the crucial moment was ten to six, while Sandow was certain it was half past five. If this were so, and if a dial clock were involved, the position of the hands at the two times would be widely different and neither could make a mistake. A deliberate lie by one or the other would have to be involved.
"On the other hand, if it is a digital clock, Brancusi claims he read five - fifty and Sandow claims he read five - thirty, you see."
Levine said, "Ah, and you think that Sandow misread the figure five for a three. No good; it could be maintained with equal justice that Brancusi mistook the three for a five in his annoyance over the fact that the end of his shift was approaching."
Henry said, "It is not a question of a mistake that anyone could make. It is a mistake that an accountant particularly might make. There are fifty cents to half a dollar but thirty minutes to half an hour, and an accountant above all is apt to think of figures in terms of money. To an accountant five - fifty is most likely to mean five and a half dollars. A quick glimpse at a digital clock reading five - fifty might trigger the response five and a half in an accountant's mind, and he will later swear he had seen the time as half past five."
Avalon looked astonished. "You really think Mr. Sandow could have made that mistake, Henry?"
But it was Levine who answered jubilantly, "Of course! It's the only way of explaining how two people could read the same clock at the same time and honestly come up with two different answers. Besides, there's the reasonable doubt. Suppose I set up a screen on which I can flash numbers on the pretext that I have to test Sandow's eyesight and memory of numbers, and ask him to detect and identify numbers flashed only briefly on the screen. If I show him five - fifty with a dollar sign before it, he will be bound to say, 'five and a half dollars.'"
Gonzalo said, "He might say 'five - fifty' or something like that."
"It he does, I'll ask him if he means five hundred and fifty dollars or five and a half dollars - after all, does he or does he not see the decimal point? - and he will be sure to say five and a half dollars. He will then repeat that with five - fifty written in other printing styles and with the dollar sign left out. Finally, when I flash the image of a digital clock reading five - fifty and ask whether that is five and a half or ten to six, he won't even have to answer. The jury will get the point."
Levine rose to shake Henry's hand. Thank you. Henry. I said that cases depend on trivialities, but I never dreamed that this one would rest on something as trivial as the difference between a digital clock and a dial clock."
"But," said Henry, "on that piece of trivia depends the freedom of a man who is presumably wrongfully accused of murder, and that is no triviality at all."
"What Time Is It?" - Afterword
It was almost with disappointment that I noticed that I had completed ten stories toward the twelve I needed for the third book and had managed to compile only one rejection. It meant that I would have to refrain from submitting the last two stories for magazine publication and just write them for the book itself.
Since I had to do it, I did it - and this one was written at the third mystery - fan meeting at Mohonk, which I referred to in the Afterword to "Irrelevance!'
You'll notice that "What Time Is It?" involves a murder, as is rarely the case with my Black Widowers tales. However, it is not a whodunit, or a howdunit, or a whydunit. It's just a matter of explaining a discrepancy - which is what the Black Widowers is all about.
But at least the Black Widowers got an innocent man off the hook.
Geoffrey Avalon sipped at his coffee thoughtfully and said, "It's the little things - the little things. I know a couple who might have been happily married forever. He was a lay reader at an Episcopalian Church and she was an unreformed atheist, and they never gave each other a cross look over that. But he liked dinner at six and she liked it at seven, and that split them apart."
Emmanuel Rubin looked up owlishly from his part of the table, eyes unblinking behind thick lenses, and said, "What's 'big' and what's 'little,' Geoff? Every difference is a little difference if you're not involved. There's nothing like a difference in the time sense to reduce you to quivering rage."
Mario Gonzalo looked complacently at the high polish on his shoes and said, "Ogden Nash once wrote that some people like to sleep with the window closed and some with the window open and each other is whom they marry."
Since it was rather unusual that at any Black Widowers banquet three successive comments should be made without an explosive contradiction, it didn't really surprise anyone when Thomas Trumbull furrowed his brows and said, "That's a lot of horsehair. When a marriage breaks up, the trivial reason is never the reason."
Avalon said mildly, "I know the couple, Tom. It's my brother and sister - in - law - or ex - sister - in - law."
"I'm not arguing that they don't say they've split over a triviality, or even that they don't believe it," said Trumbull. "I just say there's something deeper. If a couple are sexually compatible, if there are no money problems, if there is no grave difference in beliefs or attitudes, then they'll stick together. If any of these things fail, then the marriage sours and the couple begin to chafe at trivialities. The trivialities then get blamed - but that's not so."
Roger Halsted, who had been chasing the last of the apple pie about his plate, now cleansed his mouth of its slight stickiness with a sip of black coffee and said, "How do you intend to prove your statement, Tom?"
"It doesn't require proof," said Trumbull, scowling. "It stands to reason."
"Only in your view," said Halsted, warmly, his high forehead flushing pinkly, as it always did when he was moved. "I once broke up with a young woman I was crazy about because she kept saying 'Isn't it a riot?' in and out of season. I swear she had no other flaw."
"You'd be perjuring yourself unconsciously," said Trumbull. "Listen, Jim, call a vote."
James Drake, host for the evening, stubbed out his cigarette and looked amused. His small eyes, nested in finely wrinkled skin, darted around the table and said, "You'll lose, Tom."
"I don't care if I win or lose," said Trumbull, "I just want to see how many jackasses there are at the table."
"The usual number, I suppose," said Drake. "All those who agree with Tom raise their hands."
Trumbull's arm shot up and was the only one to do so. "I'm not surprised," he said, after a brief look, left and right. "How about you, Henry? Are you voting?"
Henry, the unparalleled waiter at all the Black Widower banquets, smiled paternally, "Actually, I was not, Mr. Trumbull, but it I had voted, I would have taken the liberty of disagreeing with you." He was passing about the table, distributing the brandy.
"You, too, Brutus?" said Trumbull.
Rubin finished his coffee and put the cup down with a clatter. "What the devil, all differences are trivial. Forms of life that are incredibly different superficially are all but identical on the biochemical level. There seems a world of difference between the worm and the earth it burrows in, but, considering the atoms that make it up, both of them . . ."
Trumbull said, "Don't wax poetical, Manny, or, if you must, wax it in your garage and not here. I suspect jackassery is universal but, just to make sure, I'll ask our guest if he is voting."
Drake said, "Let's make that part of the grilling then. It's time. And you can do the grilling, Tom."
The guest was Barry Levine, a small man, dark - haired, dark - eyed, slim, and nattily dressed. He was not exactly handsome, but he had a cheerful expression that was a good substitute. Gonzalo had already sketched his caricature, exaggerating the good cheer into inanity, and Henry had placed it on the wall to join the rest.
Trumbull said, "Mr. Levine, it is our custom at these gatherings of ours to ask our guest, to begin with, to justify his existence. I shall dispense with that since I will assume that your reason for existence at the moment is to back me up, if you can, in my statement - self - evident, to my way of thinking - that trivialities are trivial."
Levine smiled and said, in a slightly nasal voice, "Trivialities on the human level, or are we talking about earthworms?"
"We are talking about humans, if we omit Manny."
"In that case, I join the jackassery, since, in my occupation, I am concerned almost exclusively with trivia."
"And your occupation, please?"
"I'm the kind of lawyer, Mr. Trumbull, who makes his living by arguing with witnesses and with other lawyers in front of a judge and jury. And that immerses me in triviality."
Trumbull growled, "You consider justice a triviality, do you?"
"I do not," said Levine, with equanimity, "but that is not with what we are directly concerned in the courtroom. In the courtroom, we play games. We attempt to make favorable testimony admissible and unfavorable testimony inadmissible. We play with the rules of questioning and cross - examination. We try to manipulate the choosing of favorable jurors, and then we manipulate the thoughts and emotions of the jurors we do get. We try to play on the prejudices and tendencies of the judge as we know them to be at the start or as we discover them to be in the course of the trial. We try to block the opposition attorney or, if that is not possible, to maneuver him into overplaying his hand. We do all this with the trivia and minutiae of precedence and rationale."
Trumbull's tone did not soften. "And where in all this litany of judicial recreation does justice come in?"
Levine said, "Centuries of experience with our Anglo - American system of jurisprudence has convinced us that in the long run and on the whole, justice is served. In the short run, and in a given specific case, however, it may very well not be. This can't be helped. To change the rules of the game to prevent injustice in a particular case may, and probably will, insure a greater level of injustice on the whole - though once in a while an overall change for the better can be carried through."
"In other words," interposed Rubin, "you despair of universal justice even as a goal of the legal profession?"
"As an attainable goal, yes," said Levine. "In heaven, there may be perfect justice; on Earth, never."
Trumbull said, "I take it, then, that if you are engaged in a particular case, you are not the least interested in justice?"
Levine's eyebrows shot upward. "Where have I said that? Of course I am interested in justice. The immediate service to justice is seeing to it that my client gets the best and most efficient defense that I can give him, not merely because he deserves it, but also because American jurisprudence demands it, and because he is deprived of it at your peril, for you may be next.
"Nor is it relevant whether he is guilty or innocent, for he is legally innocent in every case until he is proven guilty according to law, rigorously applied. Whether the accused is morally or ethically innocent is a much more difficult question, and one with which I am not primarily concerned. I am secondarily concerned with it, of course, and try as I might, there will be times when I cannot do my full duty as a lawyer out of a feeling of revulsion toward my client. It is then my duty to advise him to obtain another lawyer.
"Still, if I were to secure the acquittal of a man I considered a scoundrel, the pain would not be as intense as that of failing to secure the acquittal of a man who, in my opinion, was wrongfully accused. Since I can rarely feel certain whether a man is wrongfully accused or is a scoundrel past redemption, it benefits both justice and my conscience to work for everyone as hard as I can, within the bounds of ethical legal behavior."
Gonzalo said, "Have you ever secured the acquittal of someone you considered a scoundrel?"
"On a few occasions. The fault there lay almost always in mistakes made by the prosecution - their illegal collection of evidence, or their slovenly preparation of the case. Nor would I waste pity on them. They have the full machinery of the law on their side and the boundless public purse. If we allow them to convict a scoundrel with less than the most legal of evidence and the tightest of cases simply because we are anxious to see a scoundrel punished, then where will you and I find safety? We, too, may seem scoundrels through force of circumstance or of prejudice."
Gonzalo said, "And have you ever failed to secure the acquittal of someone you considered wrongfully accused?" Here Levine's face seemed to crumple. The fierce joy with which he defended his profession was gone and his lower lip seemed to quiver for a moment. "As a matter of fact," he said, softly, "I am engaged in a case right now in which my client may well be convicted despite the fact that I consider him wrongfully accused."
Drake chuckled and said, "I told you they'd get that out of you eventually, Barry!" He raised his voice to address the others generally. "I told him not to worry about confidentiality; that everything here was sub rosa. And I also told him it was just possible we might be able to help him."
Avalon stiffened and said in his most stately baritone, "Do you know any of the details of the case, Jim?"
"No, I don't."
"Then how do you know we can help?"
"I called it a possibility."
Avalon shook his head. "I expect that from Mario's enthusiasm, but not from you, Jim."
Drake raised his hand. "Don't lecture, Geoff. It doesn't become you."
Levine interposed. "Don't quarrel, gentlemen. I'll be pleased to accept any help you can offer, and if you can't, I will be no worse off. Naturally, I want to impress on you the fact that even though confidentiality may be the rule here, it is particularly important in this case. I rely on that."
"You may," said Avalon stiffly.
Trumbull said, "All right, now. Let's stop this dance and get down to it. Would you give us the details of the case you're speaking of, Mr. Levine?"
"I will give you the relevant data. My client is named Johnson, which is a name that I would very likely have chosen if I were inventing fictitious names, but it is a real name. There is a chance that you might have heard of this case, but I rather think you haven't, for it is not a local case and, if you don't mind, I will not mention the city in which it occurred, for that is not relevant.
"Johnson, my client, was in debt to a loan shark, whom he knew - that is, with whom he had enough of a personal relationship to be able to undertake a personal plea for an extension of time.
"He went to the hotel room that the loan shark used as his office - a sleazy room in a sleazy hotel that fit his sleazy business. The shark knew Johnson well enough to be willing to see him, and even to affect a kind of spurious bonhomie, but would not grant the extension. This meant that when Johnson went into default he would, at the very least, be beaten up; that his business would be vandalized; that his family, perhaps, would be victimized.
"He was desperate - and I am, of course, telling you Johnson's story as he told it to me - but the shark explained quite coolly that if Johnson were let off then others would expect the same leniency. On the other hand, if Johnson were made an example of, it would nerve others to pay promptly and perhaps deter some from incurring debts they could not repay. It was particularly galling to Johnson, apparently, that the loan shark waxed virtuous over the necessity of protecting would - be debtors from themselves."
Rubin said dryly, "I dare say, Mr. Levine, that if a loan shark were as articulate as you are, he could make out as good a case for his profession as you could for yours."
Levine said, after a momentary pause, "I would not be surprised. In fact, before you bother to point it out, I may as well say that, given the reputation of lawyers with the public, people hearing the defenses of both professions might vote in favor of loan sharks as the more admirable of the two. I can't help that, but I still think that if you're in trouble you had better try a lawyer before you try a loan shark.
"To continue, Johnson was not at all impressed by the shark's rationale for trying to extract blood from a stone, then pulverizing the stone for failure to bleed. He broke down into a rage, screaming out threats he could not fulfill. In brief, he threatened to kill the shark."
Trumbull said, "Since you're telling us Johnson's story, I assume he admitted making the threat."
"Yes, he did," said Levine. "I told him at the start, as I tell all my clients, that I could not efficiently help him unless he told me the full truth, even to confessing to a crime. Even after such a confession, I would still be compelled to defend him, and to fight, at worst, for the least punishment to which he might be entitled and, at best, for acquittal on any of several conceivable grounds.
"He believed me, I think, and did not hesitate to tell me of the threat; nor did he attempt to palliate or qualify it. That impressed me, and I am under the strong impression that he has been telling me the truth. I am old enough in my profession and have suffered the protestations of enough liars to feel confident of the truth when I hear it. And, as it happens, there is evidence supporting this part of the story, though Johnson did not know that at the time and so did not tell the truth merely because he knew it would be useless to lie."
Trumbull said, "What was the evidence?"
Levine said, "The hotel rooms are not soundproofed and Johnson was shrieking at the top of his voice. A maid heard just about every word and so did a fellow in an adjoining room who was trying to take a nap and who called down to the front desk to complain."
Trumbull said, "That just means an argument was going on. What evidence is there that it was Johnson who was shrieking?'
"Oh ample," said Levine. "The desk clerk also knows Johnson, and Johnson had stopped at the desk and asked if the shark were in. The desk clerk called him and sent Johnson up - and he saw Johnson come down later - and the news of the death threat arrived at the desk between those two periods of time.
"Nevertheless, the threat was meaningless. It served, in fact, merely to bleed off Johnson's rage and to deflate him. He left almost immediately afterward. I am quite certain that Johnson was incapable of killing."
Rubin stirred restlessly. He said, "That's nonsense. Anyone is capable of killing, given a moment of sufficient rage or terror and a weapon at hand. I presume that after Johnson left, the loan shark was found dead with his skull battered in; with a baseball bat, with blood and hair on it, lying on the bed; and you're going to tell us that you're sure Johnson didn't do it."
Levine held up his glass for what he indicated with his fingers was to be a touch more brandy, smiled his thanks to Henry, and said, "I have read some of your murder mysteries, Mr. Rubin, and I've enjoyed them. I'm sure that in your mysteries such a situation could occur and you'd find ways of demonstrating the suspect to be innocent. This, however, is not a Rubin mystery. The loan shark was quite alive when Johnson left."
Rubin said, "According to Johnson, of course."
"And unimpeachable witnesses. The man who called down said there was someone being murdered in the next room, and the desk clerk sent up the security man at once, for he feared it was his friend being murdered. The security man was well armed, and though he is not an intellectual type, he is perfectly competent to serve as a witness. He knocked and called out his identity, whereupon the door opened and revealed the loan shark, whom the security man knew, quite alive - and alone. Johnson had already left, deflated and de - energized.
"The man at the desk, Brancusi is his name, saw Johnson leave a few seconds after the security man had taken the elevator up. They apparently passed each other in adjoining elevators. Brancusi called out, but Johnson merely lifted his hand and hurried out. He looked white and ill, Brancusi says. That was about a quarter after three, according to Brancusi - and according to Johnson, as well.
"As for the loan shark, he came down shortly after four and sat in the bar for an hour or more. The bartender, who knew him, testified to that and can satisfactorily enumerate the drinks he had. At about a quarter after five he left the bar and, presumably, went upstairs."
Avalon said, "Did he drink enough to have become intoxicated?"
"Not according to the bartender. He was well within his usual limit and showed no signs of being drunk."
"Did he talk to anyone in particular?"
"Only to the bartender. And according to the bartender, he left the bar alone."
Gonzalo said, "That doesn't mean anything. He might have met someone in the lobby. Did anyone see him go into the elevator alone?"
"Not as far as we know," said Levine. "Brancusi didn't happen to notice, and no one else has admitted to seeing him, or has come forward to volunteer the information. For that matter, he may have met someone in the elevator or in the corridor outside his room. We don't know, and have no evidence to show he wasn't alone when he went into his room shortly after a quarter after five.
"Nevertheless, this two - hour period between a quarter after three and a quarter after five is highly significant. The security guard who encountered the loan shark immediately after Johnson had left at a quarter after three, found the shark composed and rather amused at the fuss. Just a small argument, he said; nothing important. Then, too, the barman insists that the loan shark's conversation and attitude throughout his time in the bar was normal and unremarkable. He made no reference to threats or arguments."
Halsted said, "Would you have expected him to?"
"Perhaps not," said Levine, "but it is still significant. After all, he knew Johnson. He knew the man to be both physically and emotionally a weakling. He had no fear of being attacked by him, or any doubt that he could easily handle him if he did attack.
"After all, he had agreed to see him without taking the precaution of having a bodyguard present, even though he knew Johnson would be desperate. He was not even temporarily disturbed by Johnson's outburst and shrugged it off to the guard. During that entire two - hour interval he acted as though he considered my client harmless and I would certainly make that point to the jury."
Avalon shook his head. "Maybe so, but if your story is going to have any point at all, the loan shark, you will tell us, met with a violent death. And if so, the man who made the threat is going to be suspected of the murder. Even if the loan shark was certain that Johnson was harmless, that means nothing. The loan shark may simply have made an egregious error."
Levine sighed. "The shark did die. He returned to his room at a quarter after five or a minute or two later and, I suspect, found a burglar in action. The loan shark had a goodish supply of cash in the room - necessary for his business - and the hotel was not immune to burglaries. The loan shark grappled with the intruder and was killed before half past five."
Trumbull said, "And the evidence?"
"The man in the adjoining room who had been trying to take a nap two hours before had seethed sufficiently to have been unable to fall asleep until about five and then, having finally dropped off, he was roused again by loud noises. He called down to the desk in a rage, and informed Brancusi that this time he had called the police directly."
Gonzalo said, "Did he hear the same voice he had heard before?"
"I doubt that any voice identification he would try to make would stand up in court," said Levine. "However, he didn't claim to have heard voices. Only the noises of furniture banging, glass breaking, and so on.
"Brancusi sent up the security guard who, getting no answer to his knock and call this time, used his passkey at just about half past five and found the loan shark strangled, the room in wild disorder, and the window open. The window opened on a neighboring roof two stories lower. An experienced cat burglar could have made it down without trouble and might well have been unobserved.
"The police arrived soon after, at about twenty to six."
Trumbull said, 'The police, I take it, do not buy the theory that the murder was committed by a burglar."
"No. They could detect no signs on the wall or roof outside the window to indicate the recent passage of a burglar. Instead, having discovered upon inquiry of the earlier incident from the man who had called them, they scorn the possibility of coincidence and feel that Johnson made his way to the room a second time, attacked and strangled the loan shark, knocking the furniture about in the process, then opened the window to make it look as though an intruder had done the job, hastened out of the door, missing the security man by moments, and passing him on the elevator again."
Trumbull said, "Don't you believe that's possible?"
"Oh anything's possible," said Levine, coolly, "but it is not the job of the prosecutor to show it's possible. He has to show it's actually so beyond a reasonable doubt. The fact that the police saw nothing on the walls or roof is of no significance whatever. They may not have looked hard enough. A negative never impresses either judge or jury - and shouldn't. And threats at a quarter after three have nothing to do with an act at twenty after five or so unless the man who made the threat at the former time can be firmly placed on the scene at the later time."
Gonzalo was balancing his chair on its back legs with his hands gripping the table. "So what's the problem?"
"The problem is, Mr. Gonzalo," said Levine, "that Johnson was placed on the scene of the crime at about the time of the killing."
Gonzalo brought his chair forward with a clatter. "With good evidence?"
"The best," said Levine. "He admits it. Here is what happened: In the two hours after he had left the loan shark, Johnson hurriedly scraped up every bit of money he had, borrowed small sums from several friends, made a visit to a pawnshop, and had raised something like a third of what he owed. He then came back to the hotel hoping for as long an extension as possible through payment of this part sum. He had little hope of success, but he had to try.
"He arrived at the hotel at about a quarter to six, after the murder had been committed, and he noted a police squad car at the curb outside the hotel. Except for noticing its existence, he paid it little attention. He had only one thing on his mind.
"He headed straight for the elevator, which happened to be at the lobby with its door open. As he stepped out of it at the loan shark's floor, he saw a policeman at the door of the room he was heading for. Almost instinctively, he ducked back into the elevator and pushed the lobby button. He was the only man in the elevator and there were no calls to higher floors. The elevator moved downward, stopping at no floors. When he reached the lobby, he hastened out, went home, and stayed there till the police came for him."
A curl of cigarette smoke hung above Drake's head. He said, "I suppose they learned of the earlier threat and took him in for questioning."
"Right," said Levine. "But they can't make Johnson testify against himself, so how do they show he was on the spot at the time of the murder?"
"For one thing, Brancusi saw him when he was heading for the elevator. Brancusi called out to head him off and prevent him from running into the police. Johnson didn't hear him and the elevator doors closed behind him before Brancusi could do anything else. Brancusi insists, however, that Johnson was back down again in two minutes or so and hastened out. And he is prepared to swear that Johnson left at precisely ten minutes to six.
Drake said, "Is Brancusi really sure of that?"
"Absolutely. His shift was over at six o'clock and he was furious at the fact that the murder had not taken place an hour later, when he would have been off duty. As it was, he was sure he would be needed for questioning and might be kept for hours. He was therefore unusually aware of the time. There was an electric clock on the wall to one side of his desk, a nice large one with clear figures that was new and had been recently installed. It was accurate to the second and he is absolutely certain it said ten to six."
Avalon cleared his throat. "In that case, Mr. Levine, Brancusi backs up Johnson's story and places your client at the scene not at the time of the murder but afterward."
Levine said, "Here is where the trivialities come in. Brancusi is a bad witness. He has a small stutter, which makes him sound unsure of himself; he has one drooping eyelid, which makes him look hangdog and suspicious; and he has distinct trouble in looking you in the eye. The jury will be ready to believe him a liar.
"Second, Brancusi is a friend of Johnson's, has known him from childhood, and is still a drinking buddy of the man. That gives him a motive for lying, and the prosecution is sure to make the most of that.
"Finally, Brancusi may not want to testify at all. He served six months in jail for a minor offense quite a number of years ago. He has lived a reasonably exemplary life since and naturally doesn't want that earlier incident to be made public. For one thing, it could cost him his job."
Rubin said, "Could the prosecution bring up the matter? It's irrelevant, isn't it?"
"Quite irrelevant, but if the prosecution takes the attitude that it serves to cast a doubt on the reliability of Brancusi as a witness, they might slip it past the judge."
Rubin said, "In that case, if you put neither Johnson nor Brancusi on the stand, the prosecution would still be stuck with the task of proving that Johnson was at the scene at the right time. They can't call Johnson themselves, and they won't call Brancusi to give his evidence because they then can't cross - examine him and bring out that jail term."
Levine sighed. "There's another witness. The man is an accountant named William Sandow. He had stopped at the hotel lobby to buy a small container of breath fresheners, and while he was at the newsstand, he saw Johnson pass him, hurrying out of the hotel. Later in the evening, he read about the murder, and called the police to volunteer the information. His description of the man he saw was a good one and, eventually, he made a positive identification out of a lineup.
"Sandow said that what drew his attention to the man who passed him was the look of horror and anguish on his face. Of course, he can't use terms like that on the witness stand, but the prosecution can get him to make factual statements to the effect that Johnson was sweating and trembling, and this would give him the air of an escaping murderer."
Rubin said, "No, it doesn't. Lots of things could make a man sweat and tremble, and Johnson had good reason to do so short of murder. Besides, Sandow just bears out the story of Brancusi and Johnson."
Levine shook his head. "No, he doesn't. Sandow says he happened to catch a glimpse of the time as Johnson passed him and swears it was exactly half past five, which is just after the murder was committed but before the police arrived. If true, that ruins Johnson's story and makes the assumption that he committed the murder a very tempting one."
Rubin said, "Brancusi backs Johnson. It's one man's word against another. You can't convict on that."
"You can," said Levine, "if the jury believes one man and not the other. If Brancusi is bound to make a bad impression, Sandow is bound to make a good one. He is open - faced, clean - cut, has a pleasant voice, and exudes efficiency and honesty. The mere fact that he is an accountant gives him an impression of exactness. And whereas Brancusi is a friend of Johnson and therefore suspect, Sandow is a complete outsider with no reason to lie."
Rubin said, "How sure are you of that? He was very ready to volunteer information and get involved. Does he have some secret grudge against Johnson? Or some connection with the loan shark?"
Levine shrugged his shoulders. "There are such things as public - spirited citizens, even today. The fact that he came forward will be in his favor with the jury. Naturally, my office has investigated Sandow's background. We've turned up nothing we can use against him - at least so far."
There was a short silence around the table, and then finally Rubin said, "Honest people make mistakes, too. Sandow says he just happened to catch a glimpse of the time. Just how did that happen? He just happened to glance at his wristwatch? Why? Brancusi had a good reason to watch the clock. What was Sandow's?"
"He does not claim to have looked at his watch. He caught a glimpse of the same wall clock that Brancusi looked at. Presumably both Brancusi and Sandow were looking at the same clock at the same moment. The same clock couldn't very well tell half past five to one person and ten to six to another at the same time. Clearly, one person is lying or mistaken, and the jury will believe Sandow."
Rubin said, "Brancusi was staring at the clock. Sandow just caught a glimpse. He may have caught the wrong glimpse."
Levine said, "I have considered stressing that point, but I am not sure I ought to. Sandow's statement that he just happened to catch a glimpse sounds honest, somehow. The mere fact that he doesn't claim to see more than he saw, that he doesn't make an undue effort to strengthen his evidence, makes him ring true. And he's an accountant. He says he's used to figures, that he can't help noticing and remembering them. The prosecution will surely have him say that on the stand, and the jury will surely accept that.
"On the other hand, Mr. Rubin, if I try to balance Sandow's cool certainty by having Brancusi become very, very definite and emotional about how certain he is it was ten to six, then he will carry all the less conviction for he will impress the jury as someone who is desperately trying to support a lie. And if it looks as though he is making a good impression, the prosecution will make a major effort to bring out his previous prison record."
Halsted broke in with sudden animation. "Say, could Sandow see the clock from where he says he was standing at the newsstand?"
Levine said, "A good point. We checked that out at once and the answer is: Yes, he could. Easily."
There was another silence around the table, a rather long one.
Trumbull finally said, "Let's put it as briefly as we can. You are convinced that Johnson is innocent and that Brancusi is telling the truth. You are also convinced that Sandow is either lying or mistaken, but you can't think of any reason he might be or any way of showing he is. And the jury is going to believe Sandow and convict Johnson."
Levine said, That's about it."
Rubin said, "Of course, juries are unpredictable."
"Yes, indeed," said Levine, "but if that's my only hope, it isn't much of one. I would like better."
Avalon's fingers were drumming noiselessly on the tablecloth. He said, "I'm a patent lawyer myself, and I have just about no courtroom experience. Still, all you need do is cast a reasonable doubt. Can't you point out that a man's liberty rests on a mere glimpse of a clock?"
"I can, and will try just as hard as I can short of pushing the prosecution into attempting to uncover Brancusi's prison record. I would like something better than that, too."
From the sideboard, Henry's voice sounded suddenly. "If you'll excuse me, Mr. Levine - I assume that the clock in question, the one to which both Mr. Brancusi and Mr. Sandow referred, is a digital clock."
Levine frowned. "Yes, it is. I didn't say it was, did I? How did you know?" His momentary confusion cleared, and he smiled. "Well, of course. No mystery. I said it was a new clock, and these days digital clocks are becoming so popular that it is reasonable to suppose that any new clock would be digital."
"I'm sure that is so," said Henry, "but that was not the reason for my conclusion. You said a few moments ago that Mr. Sandow was an accountant and that accountants couldn't help but notice and remember figures. Of course you don't notice and remember figures on an ordinary dial clock - you remember the position of the hands. On a dial clock it is just as easy to tell time when the hour numbers are replaced with dots or with nothing at all."
"Well, then?" said Levine.
"Almost any grown person of reasonable intelligence can tell time at a glance in that way. Accountants have no special advantage. A digital clock is different."
Levine said, "Since it was a digital clock, then accountants do have a special advantage. You're not helping me, Henry."
Henry said, "I think I am. You have been unconsciously misleading us, Mr. Levine, by giving the time in the old - fashioned way appropriate to a dial clock. You speak of a quarter after three and a quarter to six and so on. Digital clocks specifically show such times to be three - fifteen and five forty - five. As digital clocks become more and more universal, times will be I spoken of in this way exclusively, I imagine."
Levine seemed a little impatient. "How does this change anything, Henry?"
Henry said, "Your statement was that Brancusi was certain that the time at the crucial moment was ten to six, while Sandow was certain it was half past five. If this were so, and if a dial clock were involved, the position of the hands at the two times would be widely different and neither could make a mistake. A deliberate lie by one or the other would have to be involved.
"On the other hand, if it is a digital clock, Brancusi claims he read five - fifty and Sandow claims he read five - thirty, you see."
Levine said, "Ah, and you think that Sandow misread the figure five for a three. No good; it could be maintained with equal justice that Brancusi mistook the three for a five in his annoyance over the fact that the end of his shift was approaching."
Henry said, "It is not a question of a mistake that anyone could make. It is a mistake that an accountant particularly might make. There are fifty cents to half a dollar but thirty minutes to half an hour, and an accountant above all is apt to think of figures in terms of money. To an accountant five - fifty is most likely to mean five and a half dollars. A quick glimpse at a digital clock reading five - fifty might trigger the response five and a half in an accountant's mind, and he will later swear he had seen the time as half past five."
Avalon looked astonished. "You really think Mr. Sandow could have made that mistake, Henry?"
But it was Levine who answered jubilantly, "Of course! It's the only way of explaining how two people could read the same clock at the same time and honestly come up with two different answers. Besides, there's the reasonable doubt. Suppose I set up a screen on which I can flash numbers on the pretext that I have to test Sandow's eyesight and memory of numbers, and ask him to detect and identify numbers flashed only briefly on the screen. If I show him five - fifty with a dollar sign before it, he will be bound to say, 'five and a half dollars.'"
Gonzalo said, "He might say 'five - fifty' or something like that."
"It he does, I'll ask him if he means five hundred and fifty dollars or five and a half dollars - after all, does he or does he not see the decimal point? - and he will be sure to say five and a half dollars. He will then repeat that with five - fifty written in other printing styles and with the dollar sign left out. Finally, when I flash the image of a digital clock reading five - fifty and ask whether that is five and a half or ten to six, he won't even have to answer. The jury will get the point."
Levine rose to shake Henry's hand. Thank you. Henry. I said that cases depend on trivialities, but I never dreamed that this one would rest on something as trivial as the difference between a digital clock and a dial clock."
"But," said Henry, "on that piece of trivia depends the freedom of a man who is presumably wrongfully accused of murder, and that is no triviality at all."
"What Time Is It?" - Afterword
It was almost with disappointment that I noticed that I had completed ten stories toward the twelve I needed for the third book and had managed to compile only one rejection. It meant that I would have to refrain from submitting the last two stories for magazine publication and just write them for the book itself.
Since I had to do it, I did it - and this one was written at the third mystery - fan meeting at Mohonk, which I referred to in the Afterword to "Irrelevance!'
You'll notice that "What Time Is It?" involves a murder, as is rarely the case with my Black Widowers tales. However, it is not a whodunit, or a howdunit, or a whydunit. It's just a matter of explaining a discrepancy - which is what the Black Widowers is all about.
But at least the Black Widowers got an innocent man off the hook.
