6: The Defence

Defence Advocate Giffard rose to his feet.

“Gentlemen Jurats, the choice you will have to make is one which no jury in Guernsey has been called upon to make in more than forty years. You are about to decide whether the man seated in the dock resumes an honourable career in the British Army or hangs. Neither his family nor his regiment will be permitted to take possession of his corpse. Section 6 of the Capital Punishment Within Prisons Act, 1868, says: ‘The body of every offender executed shall be buried within the walls of the prison within which judgment of death is executed on him’.

“The Prosecution makes much of Colonel Fenlon’s choice not to enter a plea. Defendants are perfectly permitted to take such a decision without it being used against them as evidence of guilt. The Prosecution implied Colonel Fenlon would not have been willing to take the stand to testify in his own defence even if this case were to take place after the new law comes into force, permitting defendants to do so. This accusation is both conjecture and irrelevant. Under current law my client is not permitted to testify.”

Earlier the Clerk of the Court had ordered the curtains to be pulled across the large windows to keep out the bright late-morning sun. Advocate Gifford now asked the Bailiff for permission to open the curtains. A ray of sunlight fell on the Jurats’ stand.

“Gentlemen of the jury,” Giffard recommenced, “I return to the fingermarks on the bottle. You have heard the Queen’s Procurer repeatedly making much of them and for good reason. Other than two fingermarks, I ask you to consider what other evidence have the Prosecutors presented?”

He paused for effect.

“Absolutely none.”

At this, Giffard pulled on a pair of gloves. He opened a tin box and took out a glass phial.

“Members of the Jury,” he resumed, “I purchased this phial yesterday at a chemist’s shop on the High Street. It is identical to the one which contained the Chlorodyne, even to the arrow and lettering WD etched upon it. War Department bottles are passed along an entire chain after first use, often ending up at Chemist shops. This one has been wiped clean of any fingerprints. Where the Chlorodyne might have been in the bottle placed in evidence, we have replaced it with water for present purposes. I shall now ask the Defendant to decant the contents into a container.”

The phial was taken to Fenlon. He grasped hold and emptied the water into the tin box and passed the bottle back. Giffard went to a table and brushed powder on the glass surface.

He passed it before the attentive Jurats.

“Gentlemen, this is how the phial should look if Colonel Fenlon had tipped the bottle of Chlorodyne – presumably in some haste – into Brigadier-General Delves’s glass at the New Moon Inn. Observe the fingermarks. You will see that in holding the phial to execute this perfectly ordinary manœuvre, the Colonel has left prints of all four fingers and thumb folded around the middle of the bottle.

“I ask therefore, how do you explain why the phial presented as evidence of murder has just two smudged pinch-marks, a forefinger and tip of a thumb on it? If all five prints of one of the Defendant’s hands had been discovered on the New Moon phial, that would give considerable pause for thought. That’s not what we have here, which is precisely why the Queen’s Procurer is trying to cover a distinctly thin case by stressing the undoubted fame of Mr. Sherlock Holmes rather than admit to the sheer paucity of evidence. You might have noted the hand the Defendant used to grasp the phial – his right hand. Colonel Fenlon is right-handed. Yet the prints on the phial found at the New Moon Inn are from the thumb and forefinger of his left hand.

“The official analyst John Nickolls confirmed consumption of copious amounts of alcohol was a major cause of the Brigadier-General’s demise. I remind you the deceased himself provided this key component. Assistant Police Constable Renouf confirmed that Delves and Colonel Fenlon had spent the evening drinking alcohol at three pubs. It was the Brigadier-General who brought the arrack “for old times’ sake”, a fact confirmed by the New Moon Inn landlord who also testified it was Delves who ordered the brandy from him at the bar, merely paid for by the Colonel on their departure.

“In fact at no stage are we told the Colonel cunningly steered an intended victim towards his death. You might think a would-be murderer contrived the final stop at the New Moon Inn in St. Martin to take advantage of the pub’s great isolation. I remind you of the testimony you heard from the cabby who took them there. He told the Court it was the Brigadier-General who insisted on that destination while Colonel Fenlon demurred.

“We can dispense with opportunity in a trice. Yes, the Defendant could have distracted the Brigadier-General and poured the potion into his glass – as could a dozen others during the hour at the New Moon Inn.

“The principal question upon which you, the Jurats, must now make your decision remains one of motive. Motive is one of the criminologist’s ‘categorical trinity’: means, opportunity – and motive, by far the most important of the three. The Prosecution has offered not a jot of evidence on that. For someone to be convicted of a capital crime, each of the trinity must point to that one person. Why would the Colonel murder a senior British Army officer? I ask again, why would Colonel Fenlon set out to murder the Brigadier-General?

“Poisoning is the unlawful killing of another human with malice aforethought. Did Colonel Fenlon come to the island with that in mind? He did not. The evidence points to the opposite conclusion. He came to Guernsey to help the Brigadier-General with his memory of events which took place nearly twenty years ago in far-away Afghanistan. It was Brigadier-General Delves himself who invited the Colonel to Guernsey.

“And my last point for the moment. Queen’s Procurer De Garis proposed that criminals almost always leave behind traces of their crime, in this case the phial, because the perpetrator of the crime would be in an unusually agitated state of mind and therefore especially prone to making a serious mistake. For the benefit of the Court I made some enquiry of officers based on the Island with the 2nd Battalion Wiltshire Regiment. I asked what characteristics are required to become a Captain in the Royal Horse Artillery and come out of a terrible battle such as Maiwand with the Military CB, soon to be followed by promotion to the rank of brevet colonel. Colonel Fenlon’s military record in no way fits with the personality of someone who would make such a clumsy blunder. The 2nd Battalion officers answered my query with – “dash, panache” and “fast thinking under direct enemy fire”, and “the ability to redeploy artillery and men quickly”, and “to bring guns into action smartly and accurately”, and above all “to be on the look for the next move, either forward or backward”.

“I ask, would a man of such proven resourcefulness in battle make such a cardinal error – leaving the phial imprinted with his own finger and thumb under his seat, a phial which proved to have contained a lethal quantity of a compound invented under the Raj?

“A search through any list of colourless, tasteless poisons would have brought him to concoctions far distant from his own career in India. In the Colonel’s home country, England, there is no lack of information on poisons. The Pharmacy Act of 1868 names fifteen poisons perfectly suited for the task of murder...” To laughter the Defence Attorney added, “...in case any of the Jurats are especially interested. Hyoscine, for example. Five grains of hyoscine will do the trick, with no connection to medical practices in the Raj.

“Or why not Aqua Tofana, formulated by Giulia Tofana in early 17th Century Italy? Giulia made a good business for over twenty years selling her large production to would-be widows. Colonel Fenlon expected to be on the Island for up to a fortnight. As few as four drops at a time of Giulia’s mix of arsenic trioxide and lead and belladonna alkaloids dripped into the Brigadier-General’s drinks at this or that pub would have dispatched him in a matter of days with as much or more certainty as Chlorodyne and could scarcely be traced to the Defendant’s days in India.”

Giffard turned to look up at the Bailiff.

“My Lord,” he asked, pointing at the large clock on the wall, “would you permit a further recess, a further half an hour perhaps? After which I would like Mr. Sherlock Holmes to return to the witness box.”

***

The court reassembled. Holmes was brought back to the stand.

“Mr. Holmes,” Defence Advocate Giffard began, “four years ago you solved a particularly challenging case which nearly led to a wrongful conviction for murder.” (He pointed up at me). “Dr. Watson published the case as ‘The Adventure of the Norwood Builder’. Am I correct?”

“You are,” Holmes replied.

Giffard continued, “Until your intervention, Inspector Lestrade of New Scotland Yard was accusing a young lawyer by the name of McFarlane of the murder of a builder, Jonas Oldacre, at the latter’s home in Norwood, an accusation McFarlane hotly denied? Is that correct?”

Holmes nodded in agreement. Giffard motioned towards the Jurats.

“For the benefit of the Court, would you be kind enough to give us a brief summary?”

“McFarlane burst into my premises at Baker Street,” Holmes commenced, “to say he was about to be arrested by Scotland Yard for murder. He begged me to represent him. A few days earlier, Oldacre had called him to his house in London’s Lower Norwood to give advice on drawing up a Will. When McFarlane arrived he was astonished to discover the builder was making him the sole beneficiary. I say astonished because while he and Oldacre had a prior business relationship they had become deeply estranged.

“Soon after McFarlane’s meeting with the builder, Oldacre disappeared. A large patch of blood was found on a wall at his home. Inspector Lestrade of New Scotland Yard was called in, as was I. The blood on the wall convinced Lestrade that Oldacre had been murdered and his body incinerated in a suspicious timber-store fire which had broken out on the property only the day before. McFarlane barely had time to gasp out his story to me before Lestrade himself arrived at my Baker Street premises and took him into custody.”

“The Inspector did that on what evidence?” Giffard asked.

“Lestrade had quickly deduced from seeing the beneficiary named in the Will – conveniently left for anyone to come across – that McFarlane had a strong motive to commit murder – avarice – and the opportunity to do so.

“Lestrade’s assumption was re-enforced the next day when on a second examination of the wall a thumbmark was found imprinted in the splash of blood, one I had certainly not seen on my first examination. The thumbmark proved to be McFarlane’s. I could not have missed McFarlane’s print on my first examination of the patch of blood – it was far too obvious. It was clear to me it must have been added later, but by then McFarlane was in police custody. Therefore although the thumbmark was assuredly his, he himself could not have left it on the wall.”

“It was indubitably McFarlane’s thumbmark, Mr. Holmes?” Giffard asked, frowning.

“It was.”

“So you concluded...?”

“That the apparently dead and burnt-to-ashes builder had somehow resurrected himself and planted Fenlon’s thumbmark on the wall after my first examination – as indeed he had. It transpired Oldacre was heavily in debt. If everyone thought him dead, he wouldn’t have to repay the creditors. He would be able to start a new life.

“Oldacre had deliberately started the fire to give Inspector Lestrade the misbelief his corpse had been dragged into the timber-store and the piles of wood set alight. He added the accused’s thumbprint ex post facto to the bloody patch on the wall, hoping to reinforce Lestrade’s first, far too ready assumption of McFarlane’s guilt. The sudden appearance of the thumbprint a day later convinced me Oldacre was still alive and quite possibly hiding in the house. I devised a little trick. I set fire to a small bundle of straw in one room of the house and told Lestrade’s constables to shout out “Fire!” several times. For fear of really being burnt to death a terrified Oldacre emerged from a hidden chamber and ran to escape. He was immediately seized.”

At this point Bailiff Carey intervened.

“Mr. Holmes, those among the Jurats who, like me, have not read this particular case of yours will be as puzzled as I. I need to exercise my privilege as a judge and seek clarification. How could the accused’s print appear on the wall at the time you say it did if he was in a police cell a good distance away? How did Oldacre manage that?”

“Through the ingenious use of a wax impression, My Lord,” Holmes replied. “Oldacre had invited McFarlane to the house to help construct the Will for one nefarious purpose, to finalise a separate document which required McFarlane to press his thumb into a wax seal. Oldacre was thus able to wet the seal with his own blood and transfer the print through that means to the wall. Had he placed the print on the patch of blood before I arrived on the scene he would have got away with it.”

Giffard thanked his witness and turned to face the Jurats.

“Gentlemen, you have heard the evidence. Colonel Fenlon’s life is in your hands. He faces death by hanging based on two smudged fingermarks on a phial of Chlorodyne and nothing else. For the benefit of those in the public and press galleries I should point out a finding of guilt in a case of murder cannot be simply by majority vote. It must be unanimous. If he is to be found guilty there must be not a scintilla of doubt in even one of the Jurats’ minds that Colonel Fenlon did with malice aforethought come to Guernsey to commit an unlawful act, namely to kill his host, Brigadier- General Delves, deliberately adding the contents of a phial of Chlorodyne to a large quantity of arrack and brandy in a glass Delves was about to drink to the dregs – and did drink to the dregs. I ask, were there no other strangers in the New Moon Inn that evening, on an Island so popular to the summer visitor?

“No evidence has been submitted as to the motive. Why would the Defendant commit such a heinous act against a former commander of troops at the Battle of Maiwand, a battle which took place many years ago, a battle at which an artillery officer – the then Captain Fenlon – covered himself in glory and gained the military CB – upon the recommendation of the Brigadier-General himself?

“I ask, to carry out his murderous intent, did he come undercover to our Island, arriving in the dead of night? He did not! Rather than an isolated bay at midnight, he arrived at the White Rock terminal in broad daylight, on a regular ferry. No ‘weapon’ other than an unsoldierly phial which had contained Chlorodyne has been submitted in evidence. The victim was not shot with an Army revolver or transfixed by a bayonet or poisoned dart, or a souvenir bamboo spear brought from some distant part, or run through with the sword you see with him in the Dock.

“Let me remind the Court why the Defendant came here in the first place. Was it by chance he ran into the Brigadier-General? Did Colonel Fenlon arrive and book himself into the Old Government House Hotel and lo and behold! come across his former commander in the famous Curry Room? Not at all. As you have seen from the Brigadier-General’s letter from last March, submitted in evidence, the Colonel came at the specific invitation of the deceased to assist him with checking the accuracy of various details of the Battle of Maiwand in memoirs being prepared for publication. That was the purpose of Colonel Fenlon’s visit. The Brigadier-General even paid for Colonel Fenlon’s travel. He booked and would pay for the Colonel’s rooms.

“Now let me turn to the Prosecution’s principal fingerprint expert. Yes, Mr. Holmes confirmed the smudged prints on the phial in question are those of my client, a phial left so carelessly under Colonel Fenlon’s seat at the New Moon Inn. But having listened to Mr Holmes’s own account of the case of the Norwood Builder can you be absolutely certain a malefactor did not use a similar ruse to the builder Oldacre, to foist the blame for murder on Colonel Fenlon, an entirely innocent acquaintance of the Brigadier-General? The two prints on the phial could have been transferred by a malefactor who had obtained – who knows how? – just two impressions, smudged and partial, from the Defendant’s left hand.

“In our experiment in this Court you saw for yourselves how all four fingerprints and a thumbprint – crystal-clear prints, at that – should be found on a phial which had been emptied into a receptacle such as a drinking glass. Why were there just two on the phial placed in evidence? No,” he continued, looking at the expectant faces of the Jurats, “I’m sorry to disappoint you. Just as the Prosecution cannot supply an explanation, nor can I!”

Slowly he advanced towards the Jurats.

“It is possible that in a long career in the Indian Army the Brigadier-General made more than one deadly enemy, an enemy who would wait until an opportunity for revenge arrived, in which he could escape scot-free by pinning the blame for Delves’s murder on someone else, in this case Colonel Fenlon, the man in the Dock I hold to be entirely innocent of the charge. The real murderer could by now have fled to Jersey or St. Malo or the English Mainland.”

Giffard gave a respectful bow to the Bailiff.

“I rest my case.”

He turned and resumed his seat.

***

The Bailiff Sir Thomas addressed the Court.

“The gentlemen of the overseas press should understand our system of juries in Guernsey differs rather from the English Mainland. A Jurat sits for life and has thereby developed extensive experience of Court procedures. We are reliant on them to exercise the judgment gained through that experience in this case, quite the most perplexing ever to come before me. The Court agrees with the eminent Defence advocate, the Jurats must not be influenced by the fact no-one in any of the Channel Islands has to my knowledge refused to enter a plea before – but that is the Defendant’s right. Nor must they be overawed by the presence and testimony of the principal Prosecution witness, albeit a most famous consulting detective.”

He turned towards the Jurats.

“In a few minutes you will be debating the guilt or innocence of the Defendant. If you find him not guilty, Colonel Fenlon will be set free to resume his career, serving his country in the Royal Horse Artillery. If you find him guilty, there is only one punishment available to me. Death by hanging.”

Sir Thomas stood up. The Jurats followed him out of the chamber.