“It is a strange case,” I said. “She looks like an angel, but her neighbors tell such tales of the crime and her coldhearted lies about it that I hardly know what to think.”
“It’s what the jury thinks that matters, Mr. Gaither. And I’m very much afraid that I know that already.”
I slept so fitfully that night that Elizabeth declared that I was taking sick from overwork and the uncertainty of the spring weather. She bundled a woolen scarf around my throat when I went off to court that morning, which kept me warm against the March winds but did nothing for the chill at my backbone that told me death was even nearer than spring. The road was thick with crowds surging toward the courthouse to hear the verdict, but I spoke to no one. I bundled my coat tighter about me and trudged along in silence, wishing that I could spend the day in the cold sunshine instead of in a rank-smelling courtroom.
I took my place at the front of the court with only a few minutes to spare-quite later than my customary time of arrival, for I had lingered over an indifferent breakfast and loitered along the road to work like a wayward schoolboy reluctant to begin the day. The jury looked as if they, too, had passed a turbulent night. They shuffled into the jury box with rumpled clothes and that solemn expression of neutrality that jurors all contrive to maintain, perhaps in defense of their privacy, knowing that a hundred strangers are searching their faces, looking for the verdict.
The attorneys came into court together, solemnly, as if they were deacons in a church processional, and I was pleased that they did not laugh and chat among themselves, as lawyers are sometimes wont to do, distancing themselves from the harsh proceedings. Woodfin and Alexander took their appointed places with somber nods to Mr. Donnell and myself, and we waited for the prisoner to be brought in.
She appeared in the doorway, looking small and lost, and I felt a ridiculous urge to stand up, as one does when the bride enters the sanctuary. She wore the same faded blue dress as before, but now she had an old black shawl draped about her shoulders, for the wind was brisk today. The murmur of voices in the courtroom fell away to silence as she made her way to Mr. Woodfin’s side. He bent down and whispered a few words to her-encouragement, perhaps, but I saw no emotion in Mrs. Silver’s face. She held her head high and looked toward the front of the courtroom; perhaps she, too, was aware of the stares of the multitude.
“Gentlemen of the jury, may we have your verdict?” Mr. Donnell’s dour Scots countenance seemed perfectly in keeping with the tenor of the day, and I fancied that I saw the jury foreman blanch under the old justice’s withering stare.
“Ah, well, Your Honor…” The small man’s eyes darted left and right, seeking either support or a way out, but neither was forthcoming. He cleared his throat and began again. “That is to say… we don’t have one yet.”
Judge Donnell waited in a deafening silence during which nobody breathed.
The hapless juror licked his lips, but he resolved to tough it out. “We cannot agree on the matter. We’d like to question some of the witnesses again, sir.”
This statement elicited a burst of noise from the gallery, and an answering clatter from the gavel of John Donnell. “This is most irregular,” he told the jurors.
“Yes, sir,” said the foreman, but he was more confident now. The judge may be the piper of the court, but the jury calls the tune. “We’d like to hear some of the testimony again, sir.”
Mr. Donnell sighed wearily, perhaps at his own folly in having left the marble halls of Raleigh to come out to the uncouth hinterlands, where juries didn’t even know how to reach a proper verdict. No doubt the judge had wished to get an early start on his travels east, but it was not to be.
One of the other jurors handed the foreman a piece of paper. “We have a list, sir.”
The bailiff conveyed the paper to His Honor, who read it twice over with an expression of increasing annoyance. At last he motioned for William Alexander to come forward and take the list of persons to be reexamined. Judge Donnell looked out toward the gallery. “The witnesses are reminded that they are still sworn. They may now exit the court.”
Gabriel Presnell gathered up the little band of folk from the mountain wilderness and marched them out into the hall to await their turn on the witness stand.
Over the hum of murmurs from the gallery I heard the upraised voice of Nicholas Woodfin.“They have not been sequestered!” He stood up, waving a hand in protest. “Your Honor, the witnesses were not sequestered last evening.”
He was right. In trials, those who will testify in the proceedings are kept separate from their fellow witnesses so that they may not compare their stories, and thus, wittingly or not, influence one another’s account of the events in question. On Wednesday night before the trial began, the witnesses were indeed kept apart according to procedure, but last night no one bothered about them. We thought they were finished, that the trial was over. We thought the jury had only to deliberate for the evening and then return in the morning to deliver their verdict. Instead the twelve jurors had come back demanding another round of testimony from the witnesses, except that now this jury would be hearing people who had been at liberty to compare notes, to exchange their impressions of the case-in short, witnesses whose recollections were now tainted by the opinions of their fellows. I wondered what Judge Donnell would do about this breach of custom. Suppose a witness’s new and altered version of the circumstances affected the verdict?
We waited in silent consternation while the old judge considered the matter. Nothing about this trial was going to be easy for any of us. An unlikely defendant, an unheard-of crime, an inexperienced attorney, and now obstacles strewn in the path of a swift resolution. Henceforth no doubt the very name of Morganton would cause the judge to shudder. At last, having contemplated all the possible ramifications of the extraordinary request, Mr. Donnell turned to me for the first time during the proceedings. “Clerk of court,” he said, nodding for me to come forward, “what say you in this matter?”
I stood up. “Well, sir,” I said faintly, “I have not seen it done before, but there is nothing in the law books specifically prohibiting the reexamination of witnesses. They have been sworn.”
Mr. Donnell’s eyes narrowed. “So they have.” He leaned forward, addressing his remarks to the two attorneys. “I will permit this, gentlemen.”
Woodfin paled. “But, Your Honor, the witnesses may have conferred-”
“They have been sworn, counselor. They have taken God’s oath to tell the truth, and we must assume that they will continue to tell the truth as they see it. As they now recall it.” His tone brooked no argument, but even so Mr. Woodfin remained standing for a moment or two longer, wide-eyed and gasping, as if he were casting about for some straw of legal redress. It was one of the very few times during the course of the trial that I saw him look around for his cocounsel Thomas Wilson, but that worthy gentleman offered him no help; he merely shook his head as if to say that the point was lost, and that no good could come of arguing about it.
Judge Donnell turned to the prosecutor. “Mr. Alexander,” he said, “you may begin, sir.”
He consulted the list and nodded to the bailiff. “The state calls Miss Nancy Wilson to the stand.”
In the short interval during which we awaited the arrival of Nancy Wilson, I had time to scan the crowd, and I noticed that Miss Mary Erwin was not present among the spectators. Perhaps she had seen her fill of legal chess games on the preceding day, or more likely, she had anticipated an unfavorable verdict, rather than the unexpected continuation of the trial that took us all by surprise.