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 muscles of Babson’s jaws twitched. “I decline to charge in the language requested. It is no part of my duty to instruct the jury in metaphysical generalities.”
Then Mr. Tutt, his eyes lifted to the Goddess of Justice above the dais, cried: “I ask Your Honor to charge further, in the language of the Declaration of Independence, that ‘all men ... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.’ That—in the words of Thomas Jefferson—‘rebellion to tyrants is obedience to God.’”
Smash! went Babson’s gavel. “Sit down! The jury will entirely disregard this stump speech of counsel!”
Mr. Tutt did not sit down. On the contrary, he raised his voice: “I accuse this court of bias, intimidation and unjudicial conduct. I charge the district attorney with prejudicial and unfair methods. In a word, I allege that my client is being railroaded to the electric chair.”
“Sit down, sir!” shouted Babson. “Or I shall declare you in contempt of this court!”
“I have nothing but contempt for this court!” coolly replied Mr. Tutt.
“In that case, I shall order the sheriff to place you under arrest and to remove you from the courtroom.”
O’Brion shook his head warningly toward the bench. That would be going too far.
“Or rather, under the circumstances,” temporized Babson, “I order you to appear before me tomorrow morning to show cause why you should not be fined five hundred dollars for contempt.”
“I shall appear, Your Honor,” answered the Old Man resolutely. “And if this defendant be convicted of murder, may his blood be upon your head.”
Mastering his fury, Babson turned to the men in the box: “The jury will retire!”
III
“Gee, Mr. Tutt!” quoth Officer Gallagher, following the lawyer into the corridor. “You sure had your nerve wid you! I bet no one iver talked like that before to the ould he-devil!”
Mr. Tutt’s trembling lips drew into a wry smile. “And perhaps no one ever will again, Pat! You recall Foch’s famous dispatch to Joffre at the Battle of the Marne? ‘My right has been rolled up; my left has been driven back; my center has been smashed; I have ordered an advance from all directions.’”
“You did that, all right!” quoth the officer. “’Twas like the advice the ould criminal lawyer was afther givin’ to the young feller goin’ to court for the first time: ‘If ye’ve got a good case, harp on th’ facts; if ye’ve got a weak one, attack the law; but if ye’ve got no case at all, lambaste th’ disthrict attorney!’”
“That was the general idea,” agreed Mr. Tutt. “Have a stogie?”
The twelve good men and true, carrying their coats and hats, filed out to the jury room and took their seats around the oak table.
“Well,” announced the foreman, without even lighting his cigar, “I guess there’s not much use wastin’ time on this case. It’s clear what the judge expects us to do. Let’s take a ballot and get it over with.”
The tallies showed eleven for conviction and one for acquittal.
“Good Lord!” groaned the foreman in disgust. “Who’s the only wise man?”
“If you mean who voted for acquittal, I did,” quietly replied No. 7. “I don’t propose to help railroad any man to the electric chair. This feller Halloran didn’t have a fair trial.”
“But the judge practically told us to convict!”
“Exactly! Babson’s no right to try to dictate our verdict. We’re the only judges of the defendant’s guilt or innocence. Didn’t you hear