At day’s end, watching the audience file in unnatural silence from the courtroom, Nathaniel Fogg looked old and tired, and he was both. He knew with the certainty of a perceptive man and a lifetime lawyer that his client was innocent of murder, as charged. But he knew that as things now stood, he had lost the case. The summaries tomorrow would be no more than formalities.
A man would be found guilty and sentenced to death.
A woman already dead would be considered avenged.
The State, in demanding a life for a life, would reaffirm its strength as an institution, and a square-jawed young prosecutor with his face radiating a Galahad righteousness would better his chances for the nomination to the state legislature.
With the courtroom nearly emptied now, the prosecutor approached the older lawyer in a spirit of conciliation. He beamed his vote-getting voice at him. “No hard feelings, Nate?”
Young Barlow, they called the prosecutor. “The smartest county attorney who ever came out of the woods… He didn’t like to be called young Barlow, and he didn’t like his own smooth and unlined face. Insecurity made him stiff and brash sometimes—callous about other people’s feelings. People wanted to like him better than they did, sensing there was nothing the matter with him that a few more years on his husky shoulders wouldn’t fix.
A meager smile set on Nathaniel Fogg’s face as he looked at young Barlow briefly. “No hard feelings,” he replied, and it was true to an extent: he felt as well disposed toward the ambitious prosecutor as he would have toward anybody who played with a man’s life as though it were table stakes in a poker game.
Nathaniel’s smile always tended to make young Barlow nervous. Seeing it now, he rubbed restless fingers over his cleft chin, mindful of the old lawyer’s reputation in the county for pulling live kicking rabbits from very battered courtroom hats.
But scarcely this battered a hat!
There were, of course, other men who could have come in Debora Hobson’s bedroom and in the heat of anger or twisted passion, struck that killing blow. Spectators at the murder trial could have named a good many of them. The evidence, however, pointed straight to Otis, the husband. Young Barlow had made the most of this circumstantial evidence. In the questioning he had chalked up one damning admission after the other… Otis and his wife had been drinking, they had quarreled, he had hit her hard enough to knock her down—
“But not hard enough to make that depressed fracture on the skull the coroner keeps talking about,” Otis had insisted in tight-faced defiance. “There wasn’t any mark on her head, or not much. Not then. She got right up and socked me back. I was fed up. I been fed up for a long time. I walked out on her.”
He claimed he had left the rooming house a good two hours before the time set by the coroner’s jury as the murder time. He had gone down to Hadley’s Cove and just walked around in the wind from the ocean, he said. It was dark and he hadn’t met anybody. He had been trying to make up his mind whether to go back or not—whether to ever go back.
With circumstances dovetailed against Otis, everyone had expected Nathaniel Fogg to plead guilty and cite enough provocation to get a manslaughter charge. But the old lawyer hadn’t. This phase of it occasioned young Barlow some slight uneasy wonder. It did at first. Not now.
Some defendants, in spite of evidence against them, make a good impression on the stand. They do naturally. Otis Hobson didn’t. He was too sullenly resentful, scared, bewildered, or despairing. Add to this the fact that he had no standing in Rock Haven to begin with. A drunk and ne’er-do-well…for weary years before the murder it had been common gossip that he quarreled often and violently with his wife because of her overfriendliness with other men.
“Overfriendliness” was young Barlow’s sarcastically delicate phrasing. Now with the courtroom empty of everyone except old Codfish Hargrove, who was poking around with his push brush and bucket of green sweeping compound, young Barlow wasn’t so delicate.
“The woman was a tramp, and everyone knows it,” he said to Nathaniel Fogg. “I don’t like to press for a death sentence in a case like this. Now why don’t you quit betting into a pat hand and plead your man guilty? A few years on a manslaughter charge, and—”
“No.”
“In the name of common sense, Nate, why?”
“Because he’s not guilty.”
“What’s that got to do with it? The evidence is going to convict him.”
“Maybe. I talked it over with Otis. We decided to fight it.”
Young Barlow shook his head in honest bewilderment, and the older man said, “Something I don’t know if you’ve found out yet, son. A murder trial’s something more’n a game. It’s got people in it—”
“All right, all right. Small solace your moralizing’s going to be for Otis when the hanging verdict comes in against him tomorrow—”
Young Barlow stopped talking because he saw that Nathaniel Fogg’s capacious mouth had opened in a wide yawn. Young Barlow remarked testily, “It’s a good way to catch fish.”
Nathaniel Fogg clacked his jaws shut. “What’s that last you said?”
“Save that act for the courtroom, Nate. You heard me.”
“Look, bub—” Nathaniel Fogg grinned, wryly or slyly, young Barlow couldn’t tell which, “—that yawn meant no disrespect. It came from sleepy necessity. I’ve had a hard and frustrating day in court, as you well know.”
It was not, young Barlow felt, a dignified admission. “Then you will enter a guilty plea,” he said flatly.
“No.”
“But it’s your only chance!”
“I might have been inclined to think so—but you’ve just given me an idea.”
Young Barlow was sure now that the grin had been a sly one. It made him nervous, even knowing he had the case sewed up. He said with a small, tight show of anger on his smooth face, “You haven’t got the creak of a chance.”
That last was a dig. The way things now stood it was the creak of a board that was going to fetch Otis Hobson the death penalty—rather it was the absence of that creak. His landlady hadn’t heard it.
She could have alibied Otis. Enough anyway to plant a reasonable doubt in the mind of the jury. But she was a God-fearing, Christian woman, she testified, and she could not, in conscience, admit to hearing what she had not heard.
“But you must have heard it!” Otis Hobson had cried at her on the night they had picked him up slogging around by himself at Hadley’s Cove, and brought him back to the rooming house before jailing him. “I went out of the house two hours before the coroner says—it happened. This heavy carpet on the stairs—you might not heard me coming down, but you had to hear that bottom step. It creaks. It always creaks. Loud! You know how you always make a joke about it when you get a new tenant—”
“Even if she did hear you going out, Otis,” the constable holding him pointed out in as reasonable a voice as he could, “who’s to say you didn’t come back again, maybe through the side door, and—”
“I left enough tracks down at the Cove,” Otis had cried again, “to show I was there’s long as I said.”
“Maybe. If the tide’s left anything—”
“Anyhow, I didn’t hear him going out,” his landlady had insisted again. The pale lips on the spare face had pressed tight as she looked at Otis. “I’m sorry. You—you always paid your rent. And I—your wife certainly would of tried the patience of a saint, Mr. Hobson. Maybe it’s like you say and you went out, though, before it happened. But if you did, I didn’t hear you.”
Otis tried once more, pleadingly. “But you had to! Look. Your back was toward me, but you were sitting just inside the parlor door. You’d been reading, I guess. I could see your hand just putting the book down on the table. Your other hand was rubbing at your eyes or patting at your mouth or something; I could see your elbow moving. And the stair creaked under my foot. Loud, like it always does. You had to hear it.”
Nathaniel Fogg had tried to the last to reap some advantage for his client on this issue.
“Do you admit,” he had bullied the landlady on the stand, “the step creaks?”
“’Course it creaks, the pesky thing.”
“And you were close enough to hear it?”
“Yes—if there’d been any creak to hear.”
Nathaniel Fogg had turned and strode slowly past the jury box. The floorboards creaked under his step, and he bent his ears to their sound. In the thirty-eight years he had practiced as a country lawyer in this courtroom he had come to know every protesting sound in the bare boards. They were old and worn and flint-dry, like himself.
Before the jury box he had paused, a lanky, oddly mournful figure in a high, stiff collar and salt-and-pepper suit that looked as though it had come out of somebody’s attic. He stood there, gently teetering.
“Can you hear that?” he questioned the landlady.
“That floorboard creakin’ under your foot? ’Course I can. There’s nothin’ the matter with my hearin’, Nathaniel Fogg, if that’s what you’re insinuatin’.”
“But you do admit you put the book on the table at about the time Mr. Hobson says he came downstairs and saw you from the doorway?”
“Yes. It was a draggy book, and I was getting sleepy. I remember I got up and poked the fireplace and made myself a cup of tea from the kettle. That perked me up and I read for about another two hours—till I went upstairs and saw through the open door like I’ve already testified, and called the police.”
Nathaniel Fogg permitted himself the meager smile that always made young Barlow nervous, even knowing he had everything going his way…
Now, in the silent courtroom, young Barlow moved with Nathaniel Fogg along the aisle to the door. They had to pass the old sweep-up man. Codfish Hargrove. Mindful that Codfish’s vote, if it came to that, was as good as any man’s, young Barlow said cheerfully, “Good evening, Mr. Hargrove.”
Codfish Hargrove didn’t answer, just kept pushing his broom, and Nathaniel Fogg screwed his long face up and gave him a wink.
The two lawyers moved on out of the courthouse together then, down the worn gray granite steps and onto the black tar sidewalk of Water Street. A harbor wind pushed up the street between the Customs House wharf and the sagging warehouse of the Turk’s Island Salt Co. It brought a tang of sea-weed iodine and smoky herring…but then a more modern tang took its place as a stripped-down, hood-off car slammed past so close to the narrow sidewalk that they could feel its hot-rod breath from the noisy exhaust.
A tow-headed youngster at the wheel looked back, waving and grinning. “I missed you that time, Nate,” he shouted.
“Ought to rule that clap-trap abomination off the public streets,” young Barlow fumed. “That kid, what’s his name—”
“Vinal Harrington.”
“He’s been going to fix that exhaust all summer. I don’t think he wants it fixed. I think he likes it noisy.”
“I think you’ve given me another idea,” Nathaniel Fogg said. “Come on with me to the Cove House. I’ll buy you a drink.”
“I do not indulge in public drinking,” young Barlow said.
Nathaniel Fogg smiled benignly. “Maybe that’s what’s the matter. You’ve been out of school long enough now to quit getting your law so much out of books. Maybe you ought to mix around with people more—”
He stopped because young Barlow was already moving away in the assured manner of a young man going someplace. Where he was going was to the bowling alley. He didn’t enjoy bowling, but he thought it kept him in shape.
Nathaniel Fogg stood there, liking the feel of the wind beating at his great shock of gray hair. As soon as young Barlow was out of earshot, Codfish Hargrove came shuffling down the granite steps.
“Mr. Hargrove,” he mimicked. “Never did trust a man thet called me mister.” He dropped his voice until it had almost a conspiratorial tone. “Whut was it you winkin’ to me about, Nate?”
“Put it this way, Codfish: I always liked your singin’. Ain’t heard you sing for a long time.”
Codfish gave him a grin that showed a black and empty tooth space. “I’m talkin’ a sight closer to the truth’n you are, when I mention the reason you ain’t heard me sing for a long time is I ain’t had a bottle for a long time.”
“Thought that might have something to do with it. I’ll be glad to provide the, uh—stimulation.”
Codfish Hargrove’s cheeks were white and flabby. They shook as his big jaws chomped in anticipation. “When?”
“Later tonight—on one condition.”
“Whut’s thet?”
“You round up Jim and Howard and take the bottle over in the barber shop doorway to do your harmonizin’.”
Codfish sensed that he was in a bargaining position. “Only one bottle for the three of us?”
“If you get to soundin’ like you’re runnin’ dry, there just might happen to be someone drop by with another.”
Codfish sighed pleasurably. “Sounds’s though’t might run into a right musical evenin’, Nate. Only one thing; we got a constable’n Rock Haven not much appreciatin’ the finer things. You mind whut happened the last time? You had to put up to git me out of the calaboose.”
“I’ll speak to the constable, Codfish. It’s my considered opinion he likes music better’n he used to.”
Codfish nodded. “Only one thing; who drops by with the first bottle?”
“Just possible I will. I got a fair bass when I’m hoarse from talkin’, like today. We might make it a quartet to start… And now if you indulge in public drinking, Codfish, come on over with me to the Cove House for a binder on the deal.”
“I’d take to that right kindly, Nate.” Codfish Hargrove’s hand slapped at his bagging coat pocket where the handle of a monkey wrench poked out. “Was goin’ down there anyhow. Wind’s freshenin’ and Mr. Hood wants me to climb up’n tighten the bolts on his blasted sign—one out in front says Cove House. Rain’s washed out the back-valley roads so bad a lot of the out-of-town jurymen are stayin’ there. At the Cove House. Claim the sign squeaks all night’n they can’t sleep.”
“Thet so?” Nathaniel Fogg shook his head. “Hot-rod cars and uncreakin’ signs, and sardine boats putting a diesel smudge over the harbor where sailin’ vessels used to be—this town is sure modernizin’. Codfish.”
“Ain’t she? But some folks bothers easy, don’t they? I had a room in back of the barber shop for 20 years now, and I never noticed the sign creakin’ p’tic’ly.”
Nathaniel Fogg said, “Funny, the things folks don’t notice sometimes right under their noses.” His hand reached out and transferred the monkey wrench from Codfish’s bagging coat pocket to his own. If Codfish noticed, he didn’t say anything about it.
After leaving Codfish, Nathaniel Fogg climbed the granite hill in his gangling stride to Harrington’s Hilltop Garage on Pine Street. He stopped near the grease-smeared youngster who was taking down the engine of an A-model Ford.
“You fix the exhaust yet in that hot-rod of yours, Vinal?”
“No, but I’m goin’ to, Mr. Fogg—”
“Don’t be in too much hurry about it,” Nathaniel Fogg told him, and when the youngster looked up, curious, he continued, “Could I make it worth your while, Vinal, to stay up all night tonight—and keep your mouth closed about it for at least a day or two?”
“Might be. What else I have to do?”
“Once an hour, on the hour, you take that hot-rod abomination of yours out of the garage and run her past the Cove House.”
“That all?”
“Unless you could get a couple of your automotive friends to snort around with you—make it a kind of parade.”
“I could do that.”
The unguarded talk of the jurymen filing into the courtroom the next morning was all on the same complaining level:
“Damndest night I ever spent. Somebody made a racetrack around the hotel all night long—”
“Bunch of drunks in the barbershop singin’. Three o’clock before the constable shut ’em off—”
“Sign creaked and cranked all night outside my window—”
“Outside my window, from the sound of it—”
Young Barlow observed all of it with interest. The boys, it would seem, had experienced a bad night in their rooms at the Cove House. Well, it was all grist to the prosecutor’s mill. There’d be no horsing around the jury room now. Disgruntled and sleepy, they’d be inclined to settle the case quickly, on the evidence—get it over with and get home.
Young Barlow assumed his Galahad stance and looked across at his jousting opponent. Nathaniel Fogg looked sleepy too—and quite unattuned to the jury’s mood. No doubt about it, old Nate was slipping. Well, a lifetime in a courtroom took it out of you, he supposed…
Young Barlow in his summary made an excellent impression on the spectators and jury both. The twelve-good-men-and-true looked afterwards a little self-consciously breathless as realization set hard upon them that they would today go down in Neebago County history as a hanging jury. They still called it that, even though the State had long since substituted the electric chair for the seven-times-around hangman’s knot.
When he sat down, young Barlow had only one small worry left. He knew that a defense lawyer, lacking evidence to build a case on, could sometimes in the closing moments of a trial sell his personality to the jury in the interests of his client.
Young Barlow’s worry was short-lived. With the first words of Nathaniel Fogg’s summary it was evident he was not attempting this evasive tactic. He seemed, in fact, to be drearily aware that the race was run. He appeared just an old beaten man going through some motions, saying the obvious, the ineffectual things: that there were other avenues of exploration in this case, other people with motives and with opportunities…
Nathaniel Fogg was not even bothering to confront the jury closely. Instead, he was standing off to one side in a manner so apologetic that young Barlow felt almost sorry for him.
As his summarizing droned on. Codfish Hargrove down in the front row yawned cavernously. His big jaws took all the slack out of his flabby cheeks with that uninhibited yawn.
The yawn was infectious. One of the jurymen fought the inclination, then lifted his hand in an instinctive mouth-covering gesture as he enjoyed a deep yawn of his own.
At that instant, Nathaniel Fogg shifted his lean weight. Energy flowed to his drooping body as he snapped himself erect. His arm came up. A bony finger sought out the yawning juryman accusingly.
His voice drove hard. “Did you hear that?’’
“Hear what?” the surprised juryman blurted.
“You mean you didn’t hear anything?”
“No—nothin’ special.”
Nathaniel Fogg’s finger prodded at another juryman. “Do you know what I’m talking about?”
“I didn’t hear anything—unless—you mean that board creaking under your foot a moment ago?”
“That’s precisely what I do mean. How many of the rest of you heard it? Raise your hands?”
Most all of the jurymen raised their hands.
Young Barlow swapped a nervous glance at the judge, and he was half out of his chair to protest this unorthodox questioning of the jury before he remembered the advice of an old-horse political councilor: “Be charitable to your enemy when you have nothing to lose.” He eased himself back in his chair.
A tired smile touched the lugubrious face of Nathaniel Fogg as he moved to confront the jury closely. “And now, gentlemen, I rest my case. Most of you heard the board creak under my foot. One of you, specifically, did not. Now I make no exaggerated claims. I do not say this established the innocence of Otis Hobson conclusively. But I am about to show that it does establish a reasonable doubt as to his guilt. Now I could bring medical practitioners and biological scientists into this court to assert that when the eustachian tubes of the inner ear are closed off by a pronounced stretching of the jaw, as in the act of yawning, an appreciable or complete blockage in hearing occurs... That is what I submit could have—almost certainly did happen—in the case of Otis Hobson’s landlady. She has testified that her book was dull, she was putting it down, she was growing sleepy at the time Mr. Hobson testified he came down the stairs. She did not hear the bottom step creak because, like the gentleman in the jury just now, she yawned, like this—” Nathaniel Fogg opened his own considerable jaws to demonstrate. A few of the jurymen grinned; more of them yawned luxuriantly back.
The tardy voice of young Barlow cut across the courtroom. “I object! This whole irregular procedure. Your Honor…irresponsible inference—”
“Objection sustained,” the Judge ruled. “Irregular it is. But I would remind the attorney—and the jury—that all circumstantial evidence is inference. As for this particular inference being irresponsible—” he turned a measured glance upon the jury, “—that is your particular responsibility, gentlemen, to decide.”
That evening, young Barlow reappraised his way of life and self-consciously but resolutely repaired to the tap room of the Cove House to indulge in a little public drinking. There he sought out Nathaniel Fogg, and the talk built up fast: a post-mortem on the decision on the Hobson case.
“Twarn’t anything remarkable that turned the decision my way,” Nathaniel Fogg declared modestly. “I just prepared my case right down to the last minute, that’s all, leaving nothing to luck—”
“Luck!” young Barlow protested dourly. “You had more courtroom luck today than a man could rightly expect in a lifetime. Even making your talk dull, the way it appears you deliberately did, couldn’t have assured that juryman’s yawn at the precise psychological moment to let you make that point about the creaking step. Even if you planted old Codfish down there in front and primed him to open that big mouth of his— You couldn’t be sure. It was luck—”
“There’ll likely be gossip around to the contrary, son,” Nathaniel Fogg interrupted. He yawned, and favored young Barlow with his meager smile.
“No hard feelings?” Young Barlow was braced to hear it. But Nathaniel Fogg didn’t say it. Young Barlow allowed that Nathaniel must be conversant with the same old saw about being charitable when you have nothing to lose. He still had to learn that some people are just charitable naturally.
EDITOR’S POSTSCRIPT: In the absence of comment on his story by Mr. Johnson, I provoked a friend’s comment on Mr. Johnson, of whom he said: a very lovable man, whose life seems to be a marvelous chain of digressive discoveries. Once in a Maine village, he went on an errand with Ryerson, a simple mission, to pick up a coffeepot for a picnic. But on the way they found sea shells of “purest ray serene,” explored a sea-wrecked shanty, visited a custom’s man at home since he wasn’t on duty to inspect them, and did fetch back the coffee pot in time for the picnic. Well, in time for some picnic.