counselor.”
“Does Your Honor mean to suggest that I may not comment upon the constitutional guaranties under which this and every other defendant must be legally tried?”
“I merely said to confine yourself to the evidence.”
“I surely have the right to explain the rights for which our forefathers fought and died.”
“I will take care of all that!”
“I conceive it my duty to take care of it myself.”
Judge Babson drew in his lips.
“Proceed, counselor.”
Mr. Tutt turned again to the jury.
“Gentlemen, you are the sole judges of the evidence. While His Honor may comment upon the testimony, even he cannot substitute himself for you in determining what that testimony may or may not establish.”
Babson was narrowing his eyes.
“Much more, then, is it beyond the right of the district attorney to attempt to sway your judgment by innuendo, unfair emphasis, false construction or by official pressure.”
Bang! went the gavel. “That will be enough. It is within my judicial discretion to limit the speeches of counsel. Get off generalities. Come down to business.”
“Very good, Your Honor.... Then, gentlemen, if I am to come down to my business, let me but point out to you that the much-heralded fact that this defendant was indicted and brought to trial in the record time of fourteen days is not evidence of his guilt, nor the obvious intention of Mr. O’Brion to exclude every fact favorable to our side of the case and to attempt, by securing a conviction at any cost, to advance his own political fortunes.”
“I object!” bawled O’Brion.
“The galled jade will wince!” Mr. Tutt taunted him.
“Stop!” exclaimed the miserable Babson. “I will permit no more of this! The jury will pay no attention to statements of counsel.”
“If the court will not allow me to sum up my case in my own way——”
“You may, but within proper bounds!”
Mr. Tutt’s face froze.
“I cannot tell what Your Honor may regard as proper bounds,” he answered sternly. “Under the circumstances, I refuse to sum up this case, let the consequences be what they will!”
He sat down and bowed his face in his hands. Jury, spectators, court officers held their breath. Nothing like this had ever occurred in their experience.
Babson, not knowing what to do, decided to do nothing. Swallowing his wrath, he said: “Were this not a crucial moment in an important trial, I would deal with this incident in summary fashion. As it is, I shall not do anything which might prejudice the defendant’s interests. If his counsel does not see fit to go on—whatever his reasons may be—you may proceed with your summation, Mr. District Attorney.”
Caught off guard by being thus thrown unexpectedly into action, O’Brion hesitated as to what course to pursue. Curse the old shyster! He’d thrown a nut into the whole legal machinery; had managed to put both Babson and himself in the wrong! Should he try to laugh him out of court, explain that the old fellow’s outbursts of indignation were all put on—the last attempt of a desperate man to confuse the issue? If he did, the jury might get the impression that he was trying to justify himself. Probably that was just what old Tutt hoped for. No, he had a perfect case, and neither Babson nor he had anything to apologize for in the way it had been conducted. He must not let Mr. Tutt’s red herring lure him off Halloran’s trail. He had no time for finesse. He’d simply give Halloran the works.
He did it in masterly style. With jaw outthrust and arms flailing the air, he delivered a spread-eagle oration that held the jury spellbound, tore the defense to tatters, excoriated Mr. Tutt and finally pictured the weeping widow and bereaved children of the deceased and demanded vengeance upon the murderer. The blood of Michael Kelly “called to them from the ground! Whoso sheddeth man’s blood, by man shall his blood be shed!” and all the rest of it, and then some more, until, as old Gallagher remarked, the walls of the courtroom were “plastered with blood and guts.”
He even, in his enthusiasm, bettered his usual peroration: “You have sworn a true deliverance to make. You have no choice. The only honest deliverance in this case will be a verdict of murder in the first degree. As the representative of the People, I demand it. If you fail to return it, you will have violated your oaths, betrayed the confidence of your fellow citizens, stamped yourselves as either craven or corrupt and made yourselves a laughingstock in the community.”
Mr. O’Brion sank back into his chair. Instantly, Mr. Tutt’s tall form shot up.
“I object to the remarks of the district attorney as highly prejudicial to the rights of the defendant. So far from it being obligatory on this jury to return a verdict of guilty merely because he orders them to do so, it will be their duty to weigh the evidence conscientiously and, if they have a reasonable doubt of the defendant’s guilt, to acquit him. In so doing, they will be fulfilling the obligation of their oaths and vindicating the confidence of their fellow citizens. Such a verdict will not stamp them as cowards or bribe takers, but as honorable, fair-minded men. I ask Your Honor so to instruct the jury.”
Judge Babson did not disregard O’Brion’s gesture of protest. It would not do to let the jury gain the impression that the prosecutor’s summation had exceeded the bounds of propriety.
“Mr. Tutt,” he replied severely, “your objection to the district attorney’s remarks is uncalled for. He has a perfect right—nay, it is his duty!—to present the People’s side of this case to the jury and ask them to accept his interpretations of the evidence—namely, that the defendant has been guilty of deliberate premeditated murder—just as it is yours to try to persuade them that he has not. I will now charge the jury.”
“Are there any requests?” he asked, when the charge was concluded.
Mr. Tutt leaned toward Bonnie Doon.
“All set?” he asked behind his hand.
“Okay, chief!”
“All right then. Go to it. It’s a desperate chance, but we’ve nothing else.”
As Bonnie slipped out of the court-room, the old lawyer arose. Looking straight at No. 7, he said: “I ask Your Honor to charge that if, in the jury’s opinion, the defendant has not received a fair trial, it is their duty to acquit him.”
There was no sound save the ticking of the clock upon the rear wall. The veins in Babson’s forehead swelled and his neck reddened.
“I decline so to charge. I am the sole judge as to whether or not the defendant has had a fair trial. Your request is a reflection upon the Court.”
Mr. Tutt gazed at the unfortunate Babson as if he were a worm.
“I except to the refusal to charge as requested. I ask Your Honor to charge the jury that it is more important to preserve the integrity of the administration of criminal justice than that a particular defendant be convicted or acquitted.”
The
