“And how did the murderer do that?
“Notice this photograph, ladies and gentlemen.”
Mason walked over to the clerk’s table, picked up one of the photographs that had been introduced in evidence and returned to face the jury.
“You will notice that there is a hose, neatly coiled, attached to the faucet in front of this house. All anyone needed to do was to drive the defendant’s car up to this house, sprinkle the soil with water from the hose until the soil became muddy, then coil up the hose, drive the defendant’s car through the soft ground, and every bit of circumstantial evidence that has been introduced in this case would be accounted for, and every bit of it would, in the opinion of the murderer, point to the defendant.
“That, ladies and gentlemen of the jury, is a reasonable hypothesis. I think you will agree with me that it is reasonable.
“The Court is going to instruct you that if there is any reasonable explanation of the circumstantial evidence in this case which is consistent with the innocence of the defendant, you are duty bound under your oath to accept that explanation and acquit the defendant.
“Thank you, ladies and gentlemen of the jury. We shall expect a verdict of acquittal at your hands.”
Mason turned, walked back and sat down.
“Proceed, Mr. District Attorney,” Judge Seymour said.
Hamilton Burger got to his feet. “Why, Your Honor, we’re not prepared. We— Why, we anticipated counsel’s argument would take all afternoon.”
“Well, counsel’s argument didn’t take all afternoon,” Judge Seymour said. “You may proceed with your argument now.”
Hamilton Burger engaged in a whispered conference, then lumbered forward. “This is all poppycock, ladies and gentlemen,” he said. “This is the sheerest nonsense. The defendant in this case, a shrewd, scheming woman, arranged to fake blackmail letters in the name of A. B. Vidal.
“Heaven knows what it was she had on Morley Theilman but it was something that made him get money.
“I want you to see her as I see her — a shrewd, scheming, hypocritical young woman, at times disguising her beauty beneath a mask of ugliness and frumpiness; then at times emerging as a radiant beauty to have an affair with her employer.
“And this theory of the defendant’s about that hose — why, that’s preposterous. That— Why, that’s an abandoned real estate office! That water was shut off when the real estate firm went into bankruptcy. It hasn’t been turned on for months. It—”
“Just a moment, Your Honor,” Perry Mason said. “I assign the remarks of the district attorney as prejudicial misconduct, as stating facts which are not in evidence and facts which are so prejudicial that they cannot be removed by even an admonition of the Court. I ask the Court to declare a mistrial in this case.”
Judge Seymour said, “Mr. District Attorney, is there any evidence in this case, any evidence whatever, about that water being shut off?”
“No, Your Honor, we intended to put it in evidence. It would have been part of our rebuttal.”
“And, Your Honor,” Mason said, “since he couldn’t get it in evidence legitimately, he has deliberately committed misconduct. This is a flagrant instance of deliberate misconduct.”
“I think it is,” Judge Seymour said. “The jury will disregard the remarks of the district attorney; in fact, I... I doubt that the misconduct can be cured by an admonition of the Court.
“Mr. District Attorney, this is very prejudicial misconduct.”
Hamilton Burger said angrily, “Your Honor, I wasn’t going to sit here and let the defense attorney bamboozle the jury into believing that this whole case hinged upon some murderer sprinkling water over the ground in front of that real estate office when there wasn’t any water to sprinkle. It’s preposterous! Simply on the strength of that hose—”
Judge Seymour interrupted, “If you had wanted to argue to the jury that there was no proof that there was water in the pipes, you could have done so with perfect propriety, but you have gone farther and made a positive statement that the water was shut off.”
“Well, it was shut off!” Hamilton Burger snapped.
“That does it,” Judge Seymour said. “The Court is going to grant a mistrial in this case. Ladies and gentlemen of the jury, the Court regrets very much that this situation has arisen. But it has arisen. The district attorney has been guilty of flagrant misconduct, and I agree with the defense that the prejudicial effect in your minds cannot be removed by any admonition of the Court.
“In other words, the state of the record is now such that in the event you should find the defendant guilty of this crime and an appeal should be taken to the Supreme Court, there is no doubt whatever in my mind that the Supreme Court would reverse the conviction on the ground of the misconduct on the part of the district attorney. In fact, it wouldn’t need to go that far because this Court would unhesitatingly grant a new trial on the strength of that misconduct.
“You may be seated, Mr. District Attorney.”
Hamilton Burger, his face white, his lips quivering with rage, walked over to the counsel table. For a moment he appeared to be about to say something. Then he lowered himself slowly into his chair.
Perry Mason said, “May I be permitted to make one statement to the Court?”
“It depends upon what the statement is,” Judge Seymour said, his manner plainly showing his judicial anger.
“I agree with the Court,” Mason said, “that the misconduct cannot be cured by an admonition of the Court but, rather than have a mistrial, I will stipulate that the case can be reopened so that evidence may be received by calling competent witnesses as to whether or not it was possible for the murderer to have watered the ground through that hose. If the water actually was shut off, I have no desire to take advantage of a situation of that sort. And if the evidence so shows, we will again submit the case. I will again make my argument and the prosecution can make an argument in reply.”
“I’m not going to do any such thing,” Hamilton Burger said.
“You refuse such stipulation?” Judge Seymour asked.
“I do.”
“Under those circumstances,” Judge Seymour said, “the Court has no alternative but to declare a mistrial in the case.”
“Well now, wait a minute, wait a minute,” Hamilton Burger said, “maybe I’d better confer with my deputy about this. If I may have the indulgence of the Court...”
Hamilton Burger, so angry that his face was white, his lips quivering, leaned over to Ruskin and engaged in a whispered conference.
Ruskin argued vehemently in excited whispers.
Hamilton Burger, too angry to listen, glared around the courtroom, then finally reluctantly nodded his head.
“Very well, Your Honor,” he said, “we will accept defendant’s stipulation. We will, of course, have to have a little time within which to subpoena the records of the water company. I happen to know that... well, I won’t state what I know. But I can assure the Court that by three-thirty we can have the records of the water company showing that the water had been shut off for more than a year.”
“Very well, if there is no objection on the part of the defense, the case will be continued until three-thirty when it will be reopened in accordance with the stipulation of the parties for the specific purpose of putting on evidence concerning the water. That is satisfactory to you, Mr. Mason?”
“It is satisfactory to me,” Mason said.
“And to the prosecution?” Judge Seymour asked.
“Yes, Your Honor.”
“Very well. The court will recess until three-thirty.”
As the courtroom cleared, Paul Drake came forward, frowning.