“Yes, sir.”
“Went to this room?”
“Yes, sir.”
“Entered the room?”
“Yes, sir.”
“And shortly afterwards this young woman arrived?”
“Yes, sir.”
“You went to that room at the request of Morris Alburg, one of the defendants in this case?”
“That question,” Mason said, “is improper. It, on its face, calls for a privileged communication between an attorney and client.”
“I think the Court will have to sustain that objection,” Judge Lennox said.
“I’m not asking him for the conversation. I’m simply asking him if he went there because of such a conversation,” Burger said.
“It amounts to the same thing,” Judge Lennox said. “You’re asking him, in effect, if his client told him to go to this room in the hotel. That, in my opinion, would be a privileged communication. After all, Mr. Burger, you must realize that there are certain peculiar aspects in this situation which are binding on you as well as on Counsel.”
“I understand, Your Honor.”
“Mr. Mason is occupying the dual role of a witness against his clients, and an attorney representing those clients. The Court will permit the examination of Mr. Mason as a witness, but the Court is certainly going to be very alert to safeguard the interests of the defendants.”
“Very well, Your Honor. Now, then, Mr. Mason, I am going to ask you if, while you were present in that room, the young woman who was present in that room did not state to you that Morris Alburg was at that time tracking down George Fayette for the purpose of killing him?”
“Now, to that question,” Mason said, “as attorney for the defendant Alburg, I interpose an objection that the question is incompetent, irrelevant and immaterial. As attorney for the defendant Dixie Dayton, I interpose an objection on the ground that if that woman was not Dixie Dayton the statement would be completely irrelevant and hearsay, and if the woman were Dixie Dayton it would be a privileged communication.”
“If the Court please, I had anticipated both of those objections,” Hamilton Burger said. “The evidence now shows that this woman was Dixie Dayton. Since the conversation related to a crime that had not as yet been committed, but which was about to be committed, the conversation was not a privileged communication. I am, of course, prepared to show the actual conversation. In other words, if Mr. Mason should deny that this statement was made I can impeach him irrefutably by producing the records which have been introduced in evidence, and playing that part of the conversation so that Mason will hear his own voice and the voice of the person who was in the room with him.”
“You can’t impeach your own witness,” Mason said.
“I can on a material point, but not on character,” Burger retorted.
“Suppose that person was not Dixie Dayton?” Judge Lennox asked the prosecutor.
“Minerva Hamlin has testified positively that it was Dixie Dayton.”
“That is the testimony of one witness.”
“But that’s the only testimony before the Court at this time,” Hamilton Burger pointed out.
Judge Lennox ran his hand up over his forehead, puckered his lips, swung halfway around in his swivel chair so as to avoid the eyes of Counsel, apparently trying thereby to improve his powers of concentration.
For several moments there was a tense silence in the courtroom.
Judge Lennox finally said, “Ask him the question. Put it right up to him. Was that woman Dixie Dayton, or wasn’t it?”
“Oh, no,” Hamilton Burger said, “that’s one question I have no intention of asking.”
“Why not?” Judge Lennox asked.
“Because if Mr. Mason should deny that it was Dixie Dayton he would be testifying as my witness. I am only going to ask Mr. Mason questions to which I already have the answers, and the correct answers, so that if Mr. Mason seeks to crucify me by betraying my case in his testimony I have it in my power to send him to prison for perjury.”
“I take it,” Judge Lennox said, smiling, “I opened the door for that, Mr. District Attorney. I take it you wish to convey that threat to Mr. Mason, and I gave you a good opportunity to do so.”
Hamilton Burger was grim. “The fact remains that I have stated my position.”
“You have indeed,” Judge Lennox said.
There was another period of silence; then Judge Lennox turned to Perry Mason. “I think I’d like to hear your position in this, Counselor.”
“As attorney for the defendant Morris Alburg,” Mason said, “I would point out that he isn’t bound by any statements made by Dixie Dayton.”
“As a co-defendant and a conspirator, I claim that he is,” Burger retorted.
Mason smiled. “Would you contend that any individual could walk into a hotel room and state that His Honor, for instance, was out committing a murder, and then seek to prove His Honor guilty of the murder by producing the corpse, and a recording of that conversation?”
“That’s different,” Burger snapped.
“Then would you mind stating exactly how it strikes you as being different?”
“But how about the defendant Dixie Dayton?” Judge Lennox asked.
Mason said, “Your Honor, Dixie Dayton, if she had been in that room and if she had said that Morris Alburg was out committing a murder, would still not be subject to any prosecution and the evidence could not be introduced in this manner unless she was a party to that murder.”
“But she was,” Hamilton Burger said.
“Prove it,” Mason snapped.
“That’s what I’m trying to do.”
“Then do it in an orderly manner. Get your cart and then get your horse, but don’t put the cart in front of the horse.”
“Now, just a minute,” Judge Lennox said, “there’s a peculiar situation here. I can see Mr. Mason’s point. It’s a carefully thought out point and it seems to be sound.”
“But, Your Honor,” Hamilton Burger protested, “can’t Your Honor realize the situation? Perry Mason was in that room with Dixie Dayton. Dixie Dayton stated in so many words, and I can assure Your Honor that that is a fact because we have those words recorded, that Morris Alburg was murdering or was going to murder George Fayette. Shortly after that George Fayette was found murdered, and there is ample evidence connecting Morris Alburg with the crime.”
“That’s all very nice,” Judge Lennox said, “but first you not only have to prove that it was the defendant Dixie Dayton who made the statement, but, as Mr. Mason points out, there must be some privity, some connection, some conspiracy.”
“Of course, as far as the element of conspiracy is concerned, we’re going to prove it by circumstantial evidence. We can’t introduce a tape recording of the two defendants sitting down and saying in effect, ‘Let’s go murder George Fayette.’ We have to prove that by declarations and conduct of the parties.”
“Of course,” Judge Lennox said, “you could simplify the situation by asking Mr. Mason if, at a certain date, Dixie Dayton, the defendant in this case, did not say to him so-and-so and such-and-such.”
“I don’t know what Mr. Mason’s answer would be to that question. He might deny it and then I would be in a position of trying to impeach my own witness. I don’t want to do that. I do want to keep the issues within such narrow limits of proof that Mr. Mason will either answer the questions in accordance with the facts as I understand them, or Mr. Mason will subject himself to a prosecution for perjury.”
“Yes,” Judge Lennox said, “I can see your point. I recognize the situation — I may say the dilemma — but the fact remains that it must be solved according to established rules of legal procedure. I think I am going to hold that this witness cannot be forced to answer that question over the objection of Counsel for both defendants. I feel that there must be some further proof of conspiracy before the conversation can be admitted. Are there any further questions of this witness?”