A Matter for the Jury (33 page)

She looked up suddenly.

‘That was when I asked my mother about Frank, you know, how he was, whether he was in hospital as well. She didn't want to tell me anything, but she didn't have to. I knew straight away.'

The tears returned. Ben paused, found Andrew Pilkington and then Dr Walker with his eyes. Neither gave any signal, and Ben allowed her to regain her composure.

‘Then, gradually, it all came back, almost in reverse order,' she said. ‘And at some point, the
Lincolnshire Poacher
came back as well, probably when I was remembering the rape.'

She looked up again and added another answer, almost randomly.

‘And of course, the police were doing their best to help me remember.'

Ben felt a rush. He heard Barratt Davis sit up in his seat behind him.

‘Really? How did the police help you to remember, exactly?'

‘Obviously, they told me what they had found on the boat; they told me when they recovered the cross and chain…'

‘They told you when they found the winch handle they believed had been used to assault you and Frank?'

‘Yes.'

‘They told you when they arrested Mr Cottage?'

‘Yes.'

‘Which officers would come to see you at the hospital?'

‘It was mostly PC Willis, but Superintendent Arnold and Inspector Phillips came once or twice as well. They were all very kind.'

‘Yes, I'm sure.'

Ben paused. He felt a tug on his gown. He turned slightly. Barratt was shaking his head almost imperceptibly. He was right. Ben was reaching the same conclusion. He had no evidence that the police had planted the
Lincolnshire Poacher
in her head, and a negative answer would take the point away without hope of recovery. The door was open for the jury to walk through if they chose to do so, but he could not guide them any further.

‘It would be fair to say then, that they brought you up to date with the investigation as, and when, there were any developments?'

‘Yes.'

Ben nodded. ‘Thank you, Miss Doyce. My Lord, I have nothing further.'

Mr Justice Lancaster nodded, looking Ben directly in the eye. The look said, ‘
thank you for keeping it short and not hurting her again'
. He knew who Ben was, now. A note landed on the table in front of him. ‘
Nicely done,
'
it read, in Barratt's handwriting. Andrew Pilkington was on his feet. He was about to take a calculated risk, Ben knew. From the point of view of good advocacy, the best course might be to let the point pass. Ben had not suggested, could not suggest, that any of the police officers had acted improperly, and the judge would have been hard on the defence if he had. But an officer might have let something drop quite innocently, perhaps to the mother, or in front of the medical staff, and if it had got back to Jennifer, in the state she was in, who knew what effect it might have had? Andrew was a principled prosecutor. Ben had made a decent point, and there was a question of fairness.

‘Miss Doyce, can I just take you back to the
Lincolnshire Poacher
? If you cannot answer this question, please just say so. But as far as you can tell us, is the singing of the
Lincolnshire Poacher
something you remember, or is it possible that it is something that was suggested to you by someone else?'

The question seemed to take her by surprise.

‘There was no one else there to hear it,' she pointed out.

‘No, I understand that,' Andrew replied. ‘But you said that the police were doing their best to help you to remember what had happened. Is it at all possible that the police – or someone else, for that matter – suggested to you that the attacker had sung the
Lincolnshire Poacher
, or asked you whether that had happened?'

‘Why would they do that?' she asked.

‘I'm not suggesting they did,' Andrew replied. ‘I am just asking whether you can rule that possibility out in your mind?'

She thought for a very long time.

‘I do believe I heard it,' she replied eventually. ‘I don't recall anyone talking to me about it. But it has been a difficult time, you know. I have been confused. I've done my best. For Frank. I've done my best for him.'

‘Yes, I know,' Andrew said. ‘Miss Doyce, thank you very much. Unless your Lordship has any questions?'

‘No,' Mr Justice Lancaster replied. ‘Thank you. Miss Doyce, I know this has not been easy for you. Thank you for coming to court and giving evidence. You are now free to go, and I wish you well in your recovery.'

‘Thank you, my Lord,' she said, as Dr Walker stepped forward, smiling, to wheel her out of the courtroom.

‘My Lord, may I have five minutes before I call Detective Superintendent Arnold?' Andrew asked.

‘Yes, of course,' the judge replied.

* * *

‘A Silk couldn't have done it better,' Barratt said, as they gratefully breathed the fresh air of the Square, ‘even if we had one.'

‘She killed me on the cross and chain,' Ben replied ruefully.

‘Of course she did,' Barratt said. ‘We don't have a good answer to that. You tried. It was all you could have done. You could hardly have left it alone, could you?'

‘No,' Ben replied firmly. ‘I couldn't. Any word from the George?'

‘Yes,' Jess replied. ‘Our Silk has graciously agreed to meet us to take a lemonade at the conclusion of today's proceedings. Apparently he finds lemonade good for food poisoning. I may be ready for something stronger myself.'

Ben smiled. ‘Yes, me too. Well, there won't be anything else to do today. Arnold is going to be some time in the box. He has to deal with the arrest and the interviews and the investigation generally, so we won't get anywhere near cross this afternoon. Martin can have him tomorrow morning.'

‘Do we have much for him?' Barratt asked.

‘No, I don't think so. Cottage hasn't denied the content of the interviews at all. Martin may want to clear up one or two points about the investigation. Pilkington may want to ask him about the
Lincolnshire Poacher
, but there's not much we can do about that.' He paused. ‘So we should finish the prosecution case tomorrow. And then…'

* * *

‘Do I have to give evidence?' Billy Cottage asked sullenly. ‘I don't want to. And I don't want Eve giving evidence.'

The voice in his head had intensified during Jennifer Doyce's evidence. He had not dared to look at her. He was doing his best to tune out her evidence, but that had proved impossible. He was quite sure that she, like the judge, like the jury, like that prosecuting counsel, was just daring him, egging him on. ‘
Come on, Billy. Give us a verse or two of the Lincolnshire Poacher.'
It had been welling up in him throughout the day. When the temptation was particularly strong he had to bend forward and hold his head in his hands for a while, hoping that would make it go away. It did not. He was aware of people looking at him, the jury looking at him, but there was nothing he could do. If he gave evidence and they asked him about the
Lincolnshire Poacher
, what would he do? What would Eve do, if they asked her? She knew the song as well as he did. And she could tell them some things… His barrister was saying something. But it was not his main barrister, his real barrister. Where was he? Ill, they said. How could he get ill now? Didn't he know Billy could be hanged…? The walls of the cell were closing in on him again.

‘We understand how you feel. But you've got to tell the jury your side of the story,' Ben was saying. ‘We've been over this before. The jury is bound to want to hear from you. They want to hear you say you didn't do it. They want to hear you say you are not guilty.'

Billy shook his head. ‘You told me it was up to me,' he said.

‘It
is
up to you,' Ben confirmed. ‘But our job is to advise you. And our advice is that both you and Eve must give evidence. Your life is at stake here, Mr Cottage. Surely you understand that?'

‘I know that,' Cottage insisted. ‘I'm just saying I don't like the idea. What if I say something I shouldn't?'

Ben paused.

‘Why do you think you will say something you shouldn't?' he asked. ‘Look, we have told you before. As long as you tell the jury the truth you have nothing to worry about.'

Ben looked at Barratt, who was standing alongside him in front of the cell.

‘Billy, if you have anything you want to tell us, now is the time. Don't wait till you are in the witness box. By then there will be nothing we can do.'

‘You must listen to counsel, Billy,' Barratt agreed. ‘No one likes giving evidence. It's not pleasant. But if there is anything you need to say to us…'

Billy folded his arms across his chest without replying. Ben and Barratt exchanged a glance of frustration.

‘I don't want to talk any more,' Billy said.

Ben allowed a few moments to pass.

‘Will you give evidence?' he asked quietly. ‘Will you at least discuss this with Mr Hardcastle tomorrow morning? Will you at least listen to what he has to say?'

‘I'll give evidence, I suppose,' he replied grudgingly. ‘If I have to.'

‘And you will talk to Mr Hardcastle tomorrow?'

Billy stared at Ben before nodding. Well, it couldn't do any harm to talk to his real barrister. But the voice was still telling him otherwise. He wasn't going to give evidence, and neither was Eve, if he had anything to do with it. He turned and walked to his seat at the back of the cell.

45

When they arrived
back at the George, Martin Hardcastle was sitting, looking slightly sheepish, in an armchair in the bar, a glass of lemonade, barely touched, on the table at his side. He was dressed in a casual brown sweater and brown trousers. He was pale and unshaven. Ben excused himself to go to his room to change, asking Jess to order him a pint of bitter. When he came downstairs a few minutes later, she and Barratt had joined Martin at the table and the drinks had been served. Martin was still nursing the same lemonade. As Ben took his seat, Martin looked at him and smiled.

‘Barratt was telling me about today's proceedings, Ben,' he said. ‘You did well, really well. Thank you.'

The use of his first name took Ben so much by surprise that, for some seconds, he was not sure what to say.

‘Thank you… Martin…' he replied as soon as he was able, conscious that Barratt, beside him, was grinning broadly. ‘She killed us on the cross and chain.'

‘Of course she did,' Martin replied immediately. ‘We don't have any coherent case on that, and that's the biggest problem we face.'

‘The second biggest problem, perhaps,' Barratt said. ‘He still doesn't want to give evidence, and he doesn't want his sister to give evidence. He is very serious about it.'

‘Aha.' Martin turned away and stared out of the window towards All Saints Church for some time. He turned back. ‘Well, he may be right.'

Ben and Barratt stared at each other.

‘What?' Ben asked quietly.

Martin brought his hands together in front of his face and lowered them slowly.

‘Think about it for a moment. Ben, you are Andrew Pilkington. What is the first question you would ask him in cross-examination?'

‘“How do you explain your fingerprint on the window ledge in the sleeping quarters?”' Ben replied.

‘Exactly.'

Martin
picked up his cigarettes and lit one. He pointed it at Ben.

‘First of the day,' he smiled. ‘Bloody food poisoning. I'll be right as rain tomorrow. This is what you get for staying in these provincial hotels. But my man John is sorting me out a fresh salad for this evening. They can't do any harm with that, surely?'

After the silence, he continued.

‘So, think about it for a moment. Do you really want to put him up there to answer that? He's got no answer to it, except that nonsense about boarding the
Rosemary D
because she's a hazard to navigation. Well, apparently the River Board doesn't agree with him about that, because she's still moored up at Holywell Fen. And even if he was concerned about her as a hazard, why does that mean he had to leave a fingerprint in the sleeping quarters? It would be better if he said he took a girl there himself. Actually, that would be really good news, any way you look at it. But he doesn't say that, and he didn't take a girl there.'

‘But we don't have enough to create a doubt in the jury's minds without some explanation,' Ben replied. ‘They want to hear him say that he wasn't there on the 25 of January. If they want to have lurid thoughts about why he might have been there before – as a peeping Tom, perhaps – fair enough. They know he has form for that, and it's a far cry from rape and murder. But if he tells the jury that, at least we are alive. And we have made real progress with the
Lincolnshire Poacher
. When we started this trial, you would have put money on that being enough to hang him in itself. Now, I don't see how the jury can rely on that evidence.'

Barratt shook his head. ‘We have done better with that than we had any right to expect,' he admitted. ‘Especially today, with her answers about the police talking to her, and “doing it for Frank” and so on – again, well done, Ben – but we have to face facts. It hasn't gone away, and it won't go away.'

‘Be that as it may,' Martin replied, ‘I fear that we are failing to face up to an unpleasant reality.'

‘Namely…?' Barratt asked after a pause, putting his glass down on the table.

‘Namely, that there is a strong probability that Billy Cottage murdered Frank Gilliam. Regardless of the progress we have made – and we have made some – that is the picture which is emerging from this trial, isn't it? We don't know whether he did or not. His instructions are that he did not, and we have to act accordingly. But the evidence strongly suggests that he did. We have a responsibility to ensure, if we can, that a strong probability does not evolve into proof beyond reasonable doubt.'

He looked around the table.

‘The question is, how best to do that? It is, I fear, a matter of playing the odds. Whatever we do, it will be a gamble. That is what it has come down to now. But consider what is likely to happen if we call the evidence of the alibi. Cottage doesn't want to give evidence – never a good sign. His account of his movements is vague, to put it mildly. Andrew Pilkington will take the alibi apart and scatter it to the four winds. And then, the sister. She can't even support the alibi, really, can she? All she says is that her brother was there when she woke up the next morning. Even if you believe every word she says, it doesn't rule Cottage out as the murderer. But Pilkington will have a field day with her.'

He paused.

‘Look, let's be honest. Neither of them is too bright. If they have concocted the alibi – even with the purest of motives, if he really didn't do it – the alibi will go down in flames and it will take with it any hope of saving Cottage from conviction.'

He lit another cigarette, turning to Ben.

‘You are right, Ben, of course, in saying that the jury want to hear him say he didn't do it. Of course they do. But I don't think we can afford the price he would pay for giving them what they want. At the end of the day, the case against Cottage is circumstantial. That gives us some hope that it doesn't pass the reasonable doubt test. We can admit that it looks suspicious, even extremely suspicious. But the judge is going to tell the jury that's not enough. And if we don't call evidence, Pilkington may not make a closing speech. Even if he does – after all, it is a murder case – it will be a short one, and he will have nothing new to say. So, at the end of the day, they may well end up hanging Billy Cottage, but at least he won't hang himself.'

Ben breathed out slowly.

‘I see what you're saying, Martin, but…'

He paused as John approached from the bar.

‘Excuse me,' he said. ‘Is it Mr Schroeder?'

Ben looked up in surprise. ‘Yes?'

He handed Ben a written message.

‘Sorry to interrupt you, sir, but there was a call for you a bit earlier. Your mother. She left her number, sir, though I am sure you know it. She said it was about your grandfather. He's been taken ill. She said you should call as soon as you can, sir. I am sorry. If there is anything I can do, please let me know.'

‘Is there a phone I can use?'

‘Of course, sir. You can use the manager's office. Come this way, please.'

Ben scrambled to his feet. As he left the table, Jess caught his hand and squeezed it gently.

The manager's office was a very small, claustrophobic space behind the reception area. It was a cluttered morass of files and stacks of paper – invoice forms, typing paper, carbon paper. On the wall was a calendar with pictures of sheep-dog trials. There was barely room on the desk for anything except the phone and a small typewriter. He picked up the receiver and dialled the number without reference to the message John had handed him.

Jess stood as Ben returned to the table.

‘My grandfather has had a heart attack – at least, that's what they think,' he said. Jess saw at once that he was pale and a bit unsteady on his feet. ‘They have taken him to the London Hospital. They are not sure about his condition yet.'

‘You need to go,' she said at once.

Ben looked at his watch.

‘I'll have to wait for a train, then get myself across town. I'm not sure how long it will all take, how soon I can get back.'

Jess looked at Barratt. ‘Can I take the car?'

Barratt nodded. ‘Of course.'

‘I'll drive you. It's the quickest way,' she said to Ben. ‘I'm sure you wouldn't have any trouble getting there by train, but coming back may be a different story. If he is well enough for you to leave, you can be back for tomorrow morning if we drive. We can work on our own timetable. I just need to go to my room for a couple of minutes to get some things. I will be straight back.'

Ben turned to Martin and Barratt.

‘Would that be all right?'

‘Of course it is,' Barratt replied. ‘I hope it's not too serious.'

‘We will hold the fort,' Martin said. ‘Nothing too onerous to do tomorrow.'

Jess was back within five minutes.

‘Come on,' she said. ‘Let's get started.'

As he was walking towards the door, Ben turned back.

‘Barratt,' he said. ‘Why don't you call Merlin at Chambers? Gareth was keen for his new pupil, Clive Overton, to see something of this trial. Gareth said he might send him if he didn't have anything too pressing on. If he has nothing better to do, Clive might be able to come up tomorrow morning, take a note, and generally make himself useful to you and Martin.'

Barratt raised a hand.

‘Good idea,' he replied. ‘I will.'