Missing Witness, page 30
“Yes,” Henrietta Clover said with finality, “those are my opinions.”
“And with that, I have no further questions of this witness.” MacPherson collected his papers from the podium, threw a smug smile toward the jury, and then walked slowly to his table with an air of satisfaction.
61
WILL WAS FACED WITH A NEARLY INTRACTABLE DILEMMA. Virgil MacPherson had misrepresented the nature of the testimony he would present from Dr. Henrietta Clover. He had described it merely as background genealogical information, rather than the blockbuster revelation that Jacob Joppa was actually the son of Isaac Joppa—but apparently was so embarrassed by the stigma of his father’s conviction for piracy that he falsely claimed to be the son of Adam Joppa, Isaac’s brother.
The problem was that Will’s pretrial talk with MacPherson was all off the record. And MacPherson was the kind of opponent who would misrepresent that conversation to Judge Gadwell if challenged.
Rather than move for a mistrial, Will decided to conduct a short and highly focused cross-examination. He only had one weapon at his disposal. His two decades of cross-examining witnesses would now have to carry him. Coupled, of course, with a display of on-the-spot logical deduction.
Will took his time going to the podium, constructing his cross-examination as walked.
He took a moment at the podium to reflect. He had no notes in front of him.
“Dr. Clover,” he began. “You indicated that Jacob Joppa sailed from the West Indies to Charleston, South Carolina, on or about the year of 1736. Is that correct?”
Dr. Clover nodded enthusiastically. “Yes, that’s absolutely correct.”
“Why the West Indies?”
“I’m not sure I get your meaning…”
“I’m simply asking why Jacob Joppa had made his way to the West Indies. You testified that you were basing your opinions on the assumption—the hypothetical—that Isaac Joppa had been convicted and hanged in London following his piracy trial. That was your explanation as to why Jacob Joppa claimed Adam Joppa to be his father, correct?”
“That is correct.”
“So if, as you speculate, Jacob Joppa was conceived in the short interval of time between Isaac Joppa’s arrival in England and before his arrest and trial, then how did Jacob end up in the West Indies?”
“I have no idea. I was unable to locate any research that would explain that.”
“But you do agree with me, Dr. Clover, that people change their names for a variety of reasons.”
“Oh, I suppose that that’s correct.”
“And people may falsify information about their lineage for a wide variety of reasons?”
“Yes. There are a lot of reasons people may incorrectly or even falsely list a line of descent.”
“Now you mentioned the embarrassment and potential shame that Jacob Joppa may have felt regarding his father’s supposed conviction on piracy charges back in England. Correct?”
“That was certainly the most logical explanation as to why he would have falsely listed Adam Joppa as his father when he signed off on the bill of lading.”
“Now, shame and humiliation—those are emotions that can certainly be expected by a young man whose father was in fact found guilty of piracy and hanged publicly?”
Dr. Clover nodded quickly. “Most certainly, and that was my opinion in this case.”
“On the other hand,” Will continued, his voice rising slightly, “humiliation and shame can also come from a public perception that is inaccurate…a public perception within a community that a certain person is guilty—say, of piracy—even if that was not the fact. Do you follow me?”
Henrietta Clover paused for a minute, wrinkling her brow. Then she answered simply, “Yes, I see…Yes, I would agree with that.”
“Are you aware that in the year 1719—a few months after Isaac Joppa’s public trial in London, England—a clerk entered a note in the Bath, North Carolina, magistrate’s court records indicating that the piracy charges had been dismissed on the merits? Are you aware of that?”
“I don’t believe…no…I don’t think I’ve heard that before.”
“You mean, attorney Virgil MacPherson,” and with that Will pointed over to MacPherson, who shot a glare in his direction, “Mr. MacPherson did not tell you what the clerk’s notes in the Bath, North Carolina, magistrate’s records showed?”
“No, I have never heard that before.”
“I want you to assume a certain set of facts,” Will said, building up speed toward his most important question. “I want you to assume, as a hypothetical, that Isaac Joppa was not convicted of piracy, nor was he hanged at Newgate. Rather, I want you to assume he was acquitted, found innocent by the jury, and that as a result the Central Criminal Court at the Old Bailey sent a message by boat to the Bath, North Carolina, magistrate’s court—reporting the acquittal. I want you to further assume that the clerk at Bath entered the note indicating that the indictment was dismissed, and that it was dismissed on the merits—implying that the case had been resolved in Isaac Joppa’s favor.
“Now…I want you to assume the clerk never communicated that information to another living soul. That the clerk kept the information of Isaac Joppa’s acquittal entirely to himself. I want you to assume further that there were no newspaper reports of Isaac Joppa’s acquittal by the Central Criminal Court in London—for whatever reason, the newspaper didn’t cover it.
“In sum, I want you to assume that, for all practical purposes, the fact that Isaac was found innocent was never publicly known. That it was as if his innocence were a buried artifact, buried under layers of earth and stone, undetected and undiscovered by any archaeologist. I want you to also assume that the community in Bath, North Carolina, was well acquainted with Isaac Joppa’s indictment for piracy charges, and that the community assumed his guilt as a result of that. Having never learned of his acquittal, the local community hostility against Isaac Joppa—because of his reputation as a member of Teach’s murderous gang—was maintained in the popular thinking of North Carolina—and all the way down to South Carolina, including Charleston.
“Now, assuming those facts, wouldn’t it have been logical—even understandable—for Jacob Joppa not to claim Isaac Joppa as his father…but rather to claim the more respectable Adam Joppa as his father?”
MacPherson leaped to his feet, waving his hands energetically.
“Objection! Objection. The hypothetical contains multiple items not contained in this record…he’s asking this witness to speculate based on a hypothetical that assumes facts not in evidence. I move to strike. And I move to have Mr. Chambers admonished not to try that same hypothetical again.”
Judge Gadwell was trying to recollect all of the components of Will’s complicated hypothetical, and, at the same time, trying to decipher MacPherson’s objection.
Will didn’t want to wait for the light bulb to come on in the wrong compartment of the judge’s brain, so he intervened.
“Your Honor,” Will said confidently, “I challenge Mr. MacPherson here to point out one fact in my hypothetical that is outside the record in this case. Every one of the facts that I loaded into my hypothetical is either established clearly in this case or can be reasonably implied from the facts that have been proven. It just depends on which version of the facts—and which implications—the jury wants to believe. But the hypothetical I just put to the witness is simply a summary of the entire case we have put on.”
Judge Gadwell was getting tired, and his state of confusion did not seem to be lessened.
“Oh, I’ll answer Mr. Chambers,” MacPherson said loudly, “I’ll answer him all right. Here’s the fact you’ve asked the witness to assume that has not been established—the fact that people would have known about Isaac Joppa’s piracy exploits and his association with Edward Teach all the way down to South Carolina. You haven’t established that.”
“Your honor,” Will said with a tinge of amusement in his voice, “Mr. MacPherson is trying to tell this court that such a fact has not been established. I find that bewildering. No—I find that astounding. Just a few minutes ago Mr. MacPherson himself elicited an opinion from his own witness that presupposed that the word had gotten down all the way to Charleston, South Carolina, about Isaac Joppa’s tainted reputation. If the folks down there didn’t know anything about Isaac Joppa, then what concern would Jacob Joppa have had about his father’s reputation?”
Henrietta Clover, caught up in the argument of counsel and having listened to it carefully, began nodding noticeably in agreement with Will’s argument.
MacPherson jumped in.
“No, Your Honor, Dr. Clover never gave any such opinion.”
Now Henrietta Clover was shaking her head, disagreeing with the comment by MacPherson.
The judge was still trying to sort out the tangled web of facts and arguments that lay on his judicial desk crying out for a decision.
Suddenly, Henrietta Clover, unprompted, began speaking.
“Your Honor, it is my opinion that Jacob Joppa changed the name of his father because of the community reaction he received when he arrived in Charleston, South Carolina. So they must have known down in Charleston of Isaac Joppa’s reputation for piracy—”
Virgil MacPherson was beginning to walk quickly toward Dr. Clover.
“Your Honor, I need time to consult with my witness,” he said nervously, “I ask that the jury be excused so that we can continue this argument in its exclusion, and I do ask the court to permit me to consult with my witness—”
“What consultation is necessary?” Will asked sardonically. “Is Mr. MacPherson going to try to talk his own expert witness into a new opinion that contradicts what she just said? It’s clear, Your Honor, that the facts from my hypothetical have been established by the record and that the form of my question was proper. And it’s furthermore clear, we need an answer from this witness.”
Judge Gadwell rubbed his head, and then waved MacPherson back to his seat. Massaging his scalp and scratching his chin, he took a glance at the wall clock.
“Dr. Clover…do you have an answer to the rather convoluted hypothetical that Mr. Chambers put to you?”
“Actually, I listened very carefully. I’m pretty sure I still have the facts in my memory. He basically wants me to assume a finding of acquittal for Isaac Joppa, but with that information never being disseminated among the people in Bath, North Carolina, nor the folks in Charleston, South Carolina, which would account for Jacob Joppa’s reluctance to claim Isaac Joppa as his father. And the answer is very clear—”
Virgil MacPherson jumped to his feet again.
“Your Honor, I never received a ruling from the court. I want an opportunity to consult with my client, my witness—”
“Please, Virgil. Can we please try to bring this case to a close? Your request is denied. Dr. Clover…just give us your opinion.”
“My opinion,” Dr. Clover said, pausing for just a split second and then continuing, “my opinion is that your hypothetical, Mr. Chambers, would be a reasonable explanation as to why Jacob Joppa would have lied about Isaac Joppa as his father. If folks down in Charleston did not know the truth about Isaac Joppa’s acquittal in England…then it would create a motivation for Jacob not to align himself with Isaac. So you’re correct in that.”
But MacPherson was not finished. He was on his feet again.
“I remember another one…I remember another one, Your Honor.”
“Another what?” Judge Gadwell said with fatigue.
“Another fact that Mr. Chambers put in his hypothetical that has not been established in any of the evidence of this case. Thus rendering his hypothetical defective and subject to being stricken.”
“And what fact would that be?”
“That the clerk in the magistrate’s court in Bath, North Carolina, who made the entry that supposedly reflects the acquittal of Isaac Joppa—the ‘res judicata’—never told anybody about the acquittal. There’s absolutely no evidence as to whether or not the clerk did nor did not tell other people about his supposed knowledge that Isaac Joppa had been acquitted.”
Judge Gadwell threw a look to Will, inviting him to respond.
“The answer to that is simple,” Will said with a smile. “The answer is—if Mr. MacPherson is correct that the magistrate’s clerk spread the news around Bath, North Carolina, that Isaac Joppa had been acquitted, then what are we doing here in this lawsuit? But the clerk could not have publicized that fact because the historical documents, records, and opinions of the community would have reflected it. And to this day…to this day there is a tavern on the coast called Joppa’s Folly, apparently alluding to Joppa’s ill-fated attempt at piracy. Schoolchildren learn in their regional history classes that a local man by the name of Isaac Joppa was one of Blackbeard’s gang members and was killed at the Battle of Ocracoke Inlet, shot in the back as he tried to flee with his pirate cronies. No, Your Honor, that clerk, for whatever reason—and we’ll probably never know why—chose to keep that information to himself.”
Judge Gadwell sighed and drummed the fingers of both hands on his bench.
Then he cleared his voice.
“Mr. MacPherson…if I gather it correctly, you’re asking that I strike the entire exchange between Mr. Chambers and Dr. Clover that we just heard. Is that correct? Do you want me to instruct the jury that they are to totally disregard it, and that the answer to the question is to be stricken from the record—correct?”
MacPherson, sensing an approaching victory, rose to his feet and smiled. “Your Honor, you’ve captured my objection perfectly.”
Gadwell paused, but only for an instant. Then he rendered his decision.
“In that case, your objection is noted but overruled. The question and the answer will stand. The court is adjourned for the day!”
Judge Gadwell, exhausted, slammed the gavel on his desk so hard that it bounced before coming to rest.
62
AT THE BEGINNING OF THE FOLLOWING DAY of trial, Virgil MacPherson announced he was resting his case. In the same breath, he moved to dismiss Jonathan Joppa’s claim to Stony Island on the grounds that no reasonable jury could believe Isaac Joppa to be innocent of charges of piracy.
As had been his practice throughout the trial, Judge Gadwell reserved his ruling on that motion.
The judge then eyed Will Chambers.
“Mr. Chambers, do you intend to put on a rebuttal case?”
It was Will’s intent to do exactly that—except for one problem. His entire rebuttal case would consist of the testimony of Dr. Steve Rosetti—who was to have shown up thirty minutes earlier. But there was still no sign of him.
“Your Honor, we’re still waiting for our witness to arrive,” Will explained calmly as he turned to search the courtroom. “But I thought we might want to take a few minutes while we’re waiting to resolve some issues that the court has yet to decide with regard to jury instructions.”
Judge Gadwell usually did not take kindly to counsel’s suggestions as to how he should handle time made available because of late-appearing witnesses. On the other hand, he knew the issue of jury instructions still needed to be decided.
He reluctantly waved MacPherson and Will to sidebar, and he also motioned for the court reporter to position herself between the two attorneys so they could talk outside the hearing of the jury.
“All right. I’m going to make this short and sweet,” he explained. “I’ve looked at both of your sets of instructions. They are virtually identical on the substantive issues. So I’ll put together something that uses both of your proposals. But, on the burden of proof…well, here’s the way it lies…”
He pulled his notes out.
“Here’s what I’m going to do. Virgil, your jury instructions explain that the burden of proof is on Jonathan Joppa. And Mr. Chambers, you agree with that in your proposal as well. But here’s the difference. Virgil, your jury instructions explain that what that means is that Jonathan Joppa must prove, by a preponderance of the evidence, that Isaac Joppa was actually and factually innocent of the charges of piracy. Mr. Chambers, your jury instructions say that the burden of proof can be satisfied by your simply proving, by a preponderance of the evidence, that there is a reasonable doubt about Isaac Joppa’s guilt regarding charges of piracy. Mr. Chambers, I reject your proposal. In order for Reverend Joppa to get Stony Island, I am ruling—and I will so instruct the jury—that you must affirmatively prove the innocence of Isaac Joppa. I know that’s a heck of a tough burden…extremely hard to prove. But that’s what I’m making you do. I think that’s what is reasonable and what is called for under the law. Now, I think that’s all…”
But something at the back of the courtroom distracted the judge, and he looked up with bewilderment.
The court reporter stopped typing. Virgil MacPherson jerked his head around to look, so quickly that he risked whiplash.
At the open doors of the courtroom two men with hooded yellow rain slickers, dripping wet, were awkwardly making their way into the courtroom, each carrying one end of a large aluminum box.
A murmur broke out among the jurors and some of the audience.
“What in the world…” Judge Gadwell gasped.
“Your Honor,” Will said reassuringly, “this is my witness. If I can have a few minutes with him in the back of courtroom, we will be ready, I think, to proceed with my rebuttal case.”
Will hastened to the back of the room.
Dr. Steve Rosetti and one of his research assistants carefully placed the large aluminum box on the floor. Rosetti pulled back the hood of his rain slicker and shook the water out of his hair.
“Sorry I’m late,” he said with a big grin. “Some bad weather just blew in.”
“So what can you tell me?” Will said with a grin, “Other than the fact that you look like you’re doing a TV ad for frozen fish filets.”
Rosetti flashed a wide, smart-aleck grin. “Oh, yeah,” he said, hardly containing his enthusiasm, “I’ve got a special delivery for you. And it ain’t chicken-of-the-sea.” He started laughing, and he slapped his assistant on the back.
