When the courtroom was almost empty, Andrew Pilkington approached.
‘Ben, I’m not happy about the way this trial’s going. We’ve got a judge who barely seems to be paying attention most of the time, and then, when he does say something, it doesn’t seem to have any purpose. I don’t know how he is ever going to sum up to the jury. I think we have a problem.’
‘I agree,’ Ben replied, as Jess and Barratt gathered round. ‘But what can we do?’
‘I’ve been giving that some thought. What if you and I ask to see him in chambers with the clerk, and tell him frankly what our concerns are? If he really is ill, he may not even be aware of how he’s behaving in court. Of course, it may mean an adjournment.’
‘It would mean more than an adjournment,’ Barratt said. ‘If it’s anything serious, we would have to discharge the jury and start again in front of another judge.’
‘We may have to do that in any case,’ Andrew pointed out. ‘If he’s not capable of summing up, as the prosecutor I would have to make the application to discharge the jury myself; and frankly, I think it would be in Lang’s interests just as much as the prosecution’s to be tried by a judge who’s in command of his faculties.’
‘That’s something we need to discuss among ourselves,’ Ben said.
Andrew nodded. ‘All right, fair enough. I’m just putting you on notice that I can’t stand by and watch the trial fall apart. I’m having a conference with someone from the Director’s office at 5 o’clock. I have to let them know what’s going on and give the Director the chance to tell me what he thinks.’
‘I’m sure the Director will leave it up to you,’ Ben said. ‘He doesn’t dictate to Treasury Counsel.’
‘It’s not a question of him dictating to us,’ Andrew replied. ‘But there’s a protocol that we have to report to him if we think there’s a serious problem with a judge, particularly if it may attract the attention of the press – which it will if Rainer has some kind of public breakdown. I just wanted to let you know what I’m thinking. If you don’t want to see him with me, then I’m going to have to think about whether I can allow this trial to go on. I would rather have that conversation with the judge in private, but if necessary, I will do it in open court.’
Ben nodded.
‘Let us think about it overnight, Andrew, and we can talk again tomorrow.’
‘All right,’ Andrew said. He turned to go, but stopped, smiling.
‘Jess – nice job with Mrs Pettifer.’
She smiled back. ‘Thank you.’
They met in Ben’s room in chambers.
‘Andrew has a point,’ he said. ‘Provocation is not an easy thing to sum up. It’s Rainer’s first criminal trial, and he hasn’t even been taking notes of the evidence. It could turn into a real disaster.’
‘But if we have to start again,’ Barratt protested, ‘we lose the benefit of our cross-examinations of Cameron and Pettifer. We won’t have the element of surprise the second time around. The prosecution and the witnesses will know exactly what’s coming.’
Ben nodded. ‘I know, but I’m not sure we have any choice. We have no idea what the jury are thinking, but in a case like this it’s entirely possible that they are depending on the judge to explain the law to them, and tell them how to apply it to the evidence. If he gets it wrong and Henry is convicted, we may not get much sympathy in the Court of Appeal if we do nothing when it seems clear that the judge has lost control.’
‘If we do support Andrew,’ Jess said, ‘perhaps we ought to do it straight away, before Henry tells everyone what happened at Harpur Mews on 28 April.’
They were silent for some time.
‘That would mean seeing the judge first thing tomorrow morning,’ Barratt said.
‘Or just making an application to discharge the jury in court,’ Ben said. ‘I’m not sure I want to approach the judge in chambers. I’m thinking of the Court of Appeal again. Rainer doesn’t have to discharge the jury just because we ask him to.’
‘No,’ Jess replied, ‘but Ben, if you see him in chambers, you’ll have a better chance of finding out what’s going on. Whatever it is, he won’t be comfortable talking about it in open court. It might be the only way. Maybe it will turn out that a visit to the doctor and a day or two off will take care of it.’
Ben turned to Barratt.
‘What do you think?’
‘Jess may be right,’ he agreed. ‘He might talk to us, and then at least we can make an informed decision about whether to call a halt or take our chances and forge ahead.’
‘All right,’ Ben said. ‘Let’s do it.’
The door opened suddenly, and Harriet Fisk entered, followed by Aubrey Smith-Gurney.
‘Ah, just the people I was hoping to see,’ Harriet smiled. ‘Do you still need me tomorrow morning?’
‘Yes,’ Ben replied. ‘With any luck Henry’s evidence will be finished before lunch.’
‘I’ll call Val, then,’ she said.
‘Ben,’ Aubrey asked, ‘It’s got nothing to do with me, of course, but if the judge lets you do this, have you decided whether you would call Harriet or Val, or both of them?’
‘We hadn’t decided that finally,’ Ben replied. ‘We were going to talk about it at court tomorrow, but I would have thought it would be best to call them both.’
Aubrey shook his head.
‘It’s not usual to call counsel as a witness about a case in which she has been engaged professionally. It’s not seemly, is it? The better practice is to call the solicitor, surely?’
‘I’m not concerned about it, Aubrey,’ Harriet said. ‘I’m not representing Susan Lang any more. As long as the court gives me cover by dealing with the privilege question, I don’t have any problem with giving evidence.’
‘Their evidence won’t be challenged,’ Jess offered. ‘I’m pretty sure of that. The only point the prosecution is taking is the privilege. They’re not even concerned about it being hearsay. They understand that we’re only calling the evidence to explain why Henry may have been scared enough to take a knife with him on the day. I don’t think the prosecution will want to cross-examine.’
‘Even so…’ Aubrey said.
‘Let’s talk about that tomorrow,’ Ben suggested. ‘We are unlikely to get a clean start tomorrow, Harriet, so 12 o’clock at court should be fine.’
‘Why aren’t you getting a clean start?’
‘We may have to see the judge in chambers.’
He paused.
‘Aubrey, you know Conrad Rainer, don’t you?’
Aubrey seemed momentarily taken aback.
‘Yes. Yes, I know him very well. Why do you ask?’
Ben hesitated.
‘I’m not sure how to put it really, but there seems to be something wrong with him. He’s not participating in the trial at all, and we’re not sure he’s even listening. You have to repeat yourself to get his attention. It’s as if his mind is somewhere else, and he’s not taking notes of the evidence. We think it may be a medical problem of some kind.’
Aubrey sat down in a chair in front of Ben’s desk.
‘Really? How odd. That doesn’t sound like Conrad. But I wouldn’t worry about him, Ben –’
‘We have to worry, Aubrey,’ Ben replied. ‘We’re not sure he’s in a fit state to carry on with the trial. How is he going to sum up without a note of the evidence?’
Aubrey laughed.
‘You obviously don’t know Conrad,’ he replied. ‘He has a remarkable memory. He could probably reel off the evidence of every witness you’ve had, more or less word for word. He’s one of those irritating fellows who never had to open his brief in court. He always had it all in his head.’
‘I don’t think he’s got this case in his head, Aubrey,’ Barratt replied. ‘The prosecution are thinking of applying to discharge the jury, and we may have to support them.’
‘Did you say you were thinking of seeing him in chambers?’ Aubrey asked.
‘Yes. We need to know what’s going on.’
‘That may be a private matter,’ Aubrey said. ‘I don’t think it can be right to turn up in chambers and question a judge about things that are private to him.’
‘We shouldn’t have to,’ Barratt insisted. ‘If there’s something wrong that makes it impossible for him to conduct the trial, he should be telling us about it without being asked. I have a client charged with murder, who’s entitled to a fair trial.’
‘Aubrey, do you have any idea what the problem might be?’ Ben asked.
Aubrey hesitated.
‘Conrad has always had his ups and downs, but it’s never stopped him from performing in court. Why don’t you wait for the summing-up and see what happens?’
‘Because by that time, it may be too late.’
There was a silence.
‘Another strange thing,’ Ben said, ‘is that Rainer appeared to know, or said he knew, that we were going to make an application to him to admit some evidence. We didn’t tell him that.’
Harriet was taken aback.
‘Did he know what the evidence is?’
‘Not that he said.’
‘But how could he have known about that?’ she asked.
Ben shrugged, looking straight at Aubrey.
‘One of the many mysteries in this case.’