The Ballad of Frankie Silver (24 page)

Nicholas Woodfin took a deep breath as he rose to face the judge. “Your Honor,” he said, “the defense rests.”

BURGESS GAITHER

Verdict

By the time the shadows were lengthening on the lawn outside the courtroom, both attorneys had concluded their closing arguments. I had spent much of the afternoon gazing out the window at the trees and the clabbered sky above them, letting the words wash over me, as they would surely drown Frankie Silver.

Judge Donnell delivered his own ponderous summary of the evidence and the jurors’ obligations, and then he sent the jury out to deliberate. They would report back promptly the next morning to deliver their verdict. Court was adjourned until then. I wondered if His Honor would sleep any better than the rest of us, awaiting the morning’s decision. Mrs. Silver was led out of the courtroom to return to her cell for a night of dread that could scarcely be worse than the gallows itself. I watched her square her thin shoulders as she paced along in front of her jailer, head high, sparing not a glance for the crowd, and I resolved to murmur a prayer for her that night.

The jurors trooped off to be sequestered in the courthouse jury room, which was little bigger than the wooden table contained in it. For the duration of their deliberations they would be “without meat nor drink nor fire,” as was the custom from time immemorial. Men who are without food or drink will be more likely to reach a prompt decision. While the jury was thus deprived, considering the evidence against Frankie Silver, the rest of Morganton repaired to the taverns to retry the case in a dull roar over whiskey and tankards of ale. This convivial court of tipplers argued and analyzed the fine points of the trial in preparation for a later recital of the events before the ladies at dinner that evening.

I found the attorneys at McEntire’s, all seated together at a table in the far corner. They had been accorded this semblance of privacy out of respect for the solemn nature of their task, and the revelers at the bar had thus far not intruded upon the members of the bar.

No doubt a layman would have been surprised to see these men who had been bitter adversaries two hours hence conversing over tankards of ale with genial complacency, but as a fellow attorney, I expected nothing else. The battle was over now; the matter was in the hands of a jury, and the rival lawyers would live to fight another day. They left their animosity, as always, within the courthouse walls, for legal careers are long, and today’s opponent might be tomorrow’s colleague, or judge, or influential friend in the legislature. There is no graver courtesy than the respect born of ambitious self-interest.

Even so, Nicholas Woodfin was poor company that evening. He showed no rancor toward his companions, but he sat before an untouched glass, and stared at nothing, answering only in monosyllables if one addressed him twice—loudly.

“I thought you did well,” I told him, as I settled into the empty chair beside him. “You spoke eloquently and with great conviction. Altogether a moving performance.”

“But not enough,” Woodfin said, resting his forehead on the heel of his hand. I saw how tired he looked, and how careworn. There was a stubble of beard on his normally clean-shaven chin, and his clothing was more full of sweat and creases than a fastidious gentleman would permit in ordinary circumstances. No doubt he would change before the dinner hour, but just now he seemed too cast down to care about how he looked. Anyone would think that he had been the one on trial today, rather than merely a learned laborer doing the job for which he was hired.

“Come on, Woodfin, give over, won’t you? The lady is in God’s hands now,” said Mr. Wilson, who was considerably more sedate than his colleague. When this bracing speech brought no response, Wilson remarked to the rest of us, “In legal matters, our young friend has not yet learned to keep his heartstrings as tightly drawn as his purse strings.”

William Alexander, whose joviality was tempered only by his courtesy, raised his pewter tankard in a toast. “No, no,” he said heartily. “Don’t scold my colleague for his sensibility, Uncle Wilson. I like a man who believes in his causes. His loyal heart does him credit. To his health—if not that of his client!”

We all laughed politely at his jest. Even Woodfin managed a wan smile, but I could see that he was still troubled. “She may escape the gallows yet,” I told him. “The evidence is purely circumstantial.”

“So is the evidence that the sun will rise tomorrow,” Mr. Alexander drawled. “But I believe it all the same.”

Mr. Wilson laughed at this flippancy, and the two of them bent their heads together to talk of other matters, concerning family, I believe, for they were related by Mr. Alexander’s marriage to Wilson’s niece.

I turned my attention to the anxious young defense attorney. I thought it would be useless to try to cheer him up with a change of subject, so I resolved to be a sympathetic listener to his woes about the case. Besides, the conversation I’d had with Miss Mary Erwin that afternoon hovered in my thoughts. “Has your client told you anything about the death of her husband?” I asked Woodfin. “People feel that there is a great deal to the story that we do not yet know.”

Nicholas Woodfin groaned. “I wish she had told me something. I could have used it in her defense. But Frankie Silver keeps her own counsel. She is a brave little thing. I cannot look at her without thinking of the little Spartan boy with the fox in his tunic, gnawing out his innards. She will keep silent if it kills her. And it will.”

“Still, you represented her well. You cast what doubt you could. Do you wish that she could have taken the stand herself?”

Woodfin assumed the blank gaze of one who looks at events unfolding in his mind’s eye and sees nothing of the world around him. “I wish she could have testified,” he said at last. “I’m very much afraid that she would have chosen silence, but by God I wish I’d had the opportunity to let her speak.”

“It is a strange case,” I said. “She looks like an angel, but her neighbors tell such tales of the crime and her cold-hearted lies about it that I hardly know what to think.”

“It’s what the jury thinks that matters, Mr. Gaither. And I’m very much afraid that I know that already.”

*   *   *

I slept so fitfully that night that Elizabeth declared that I was taking sick from overwork and the uncertainty of the spring weather. She bundled a woolen scarf around my throat when I went off to court that morning, which kept me warm against the March winds but did nothing for the chill at my backbone that told me death was even nearer than spring. The road was thick with crowds surging toward the courthouse to hear the verdict, but I spoke to no one. I bundled my coat tighter about me and trudged along in silence, wishing that I could spend the day in the cold sunshine instead of in a rank-smelling courtroom.

I took my place at the front of the court with only a few minutes to spare—quite later than my customary time of arrival, for I had lingered over an indifferent breakfast and loitered along the road to work like a wayward schoolboy reluctant to begin the day. The jury looked as if they, too, had passed a turbulent night. They shuffled into the jury box with rumpled clothes and that solemn expression of neutrality that jurors all contrive to maintain, perhaps in defense of their privacy, knowing that a hundred strangers are searching their faces, looking for the verdict.

The attorneys came into court together, solemnly, as if they were deacons in a church processional, and I was pleased that they did not laugh and chat among themselves, as lawyers are sometimes wont to do, distancing themselves from the harsh proceedings. Woodfin and Alexander took their appointed places with somber nods to Mr. Donnell and myself, and we waited for the prisoner to be brought in.

She appeared in the doorway, looking small and lost, and I felt a ridiculous urge to stand up, as one does when the bride enters the sanctuary. She wore the same faded blue dress as before, but now she had an old black shawl draped about her shoulders, for the wind was brisk today. The murmur of voices in the courtroom fell away to silence as she made her way to Mr. Woodfin’s side. He bent down and whispered a few words to her—encouragement, perhaps, but I saw no emotion in Mrs. Silver’s face. She held her head high and looked toward the front of the courtroom; perhaps she, too, was aware of the stares of the multitude.

“Gentlemen of the jury, may we have your verdict?” Mr. Donnell’s dour Scots countenance seemed perfectly in keeping with the tenor of the day, and I fancied that I saw the jury foreman blanch under the old justice’s withering stare.

“Ah, well, Your Honor…” The small man’s eyes darted left and right, seeking either support or a way out, but neither was forthcoming. He cleared his throat and began again. “That is to say … we don’t have one yet.”

Judge Donnell waited in a deafening silence during which nobody breathed.

The hapless juror licked his lips, but he resolved to tough it out. “We cannot agree on the matter. We’d like to question some of the witnesses again, sir.”

This statement elicited a burst of noise from the gallery, and an answering clatter from the gavel of John Donnell. “This is most irregular,” he told the jurors.

“Yes, sir,” said the foreman, but he was more confident now. The judge may be the piper of the court, but the jury calls the tune. “We’d like to hear some of the testimony again, sir.”

Mr. Donnell sighed wearily, perhaps at his own folly in having left the marble halls of Raleigh to come out to the uncouth hinterlands, where juries didn’t even know how to reach a proper verdict. No doubt the judge had wished to get an early start on his travels east, but it was not to be.

One of the other jurors handed the foreman a piece of paper. “We have a list, sir.”

The bailiff conveyed the paper to His Honor, who read it twice over with an expression of increasing annoyance. At last he motioned for William Alexander to come forward and take the list of persons to be reexamined. Judge Donnell looked out toward the gallery. “The witnesses are reminded that they are still sworn. They may now exit the court.”

Gabriel Presnell gathered up the little band of folk from the mountain wilderness and marched them out into the hall to await their turn on the witness stand.

Over the hum of murmurs from the gallery I heard the upraised voice of Nicholas Woodfin. “
They have not been sequestered!
” He stood up, waving a hand in protest. “Your Honor, the witnesses were not sequestered last evening.”

He was right. In trials, those who will testify in the proceedings are kept separate from their fellow witnesses so that they may not compare their stories, and thus, wittingly or not, influence one another’s account of the events in question. On Wednesday night before the trial began, the witnesses were indeed kept apart according to procedure, but last night no one bothered about them. We thought they were finished, that the trial was over. We thought the jury had only to deliberate for the evening and then return in the morning to deliver their verdict. Instead the twelve jurors had come back demanding another round of testimony from the witnesses, except that now this jury would be hearing people who had been at liberty to compare notes, to exchange their impressions of the case—in short, witnesses whose recollections were now tainted by the opinions of their fellows. I wondered what Judge Donnell would do about this breach of custom. Suppose a witness’s new and altered version of the circumstances affected the verdict?

We waited in silent consternation while the old judge considered the matter. Nothing about this trial was going to be easy for any of us. An unlikely defendant, an unheard-of crime, an inexperienced attorney, and now obstacles strewn in the path of a swift resolution. Henceforth no doubt the very name of Morganton would cause the judge to shudder. At last, having contemplated all the possible ramifications of the extraordinary request, Mr. Donnell turned to me for the first time during the proceedings. “Clerk of court,” he said, nodding for me to come forward, “what say you in this matter?”

I stood up. “Well, sir,” I said faintly, “I have not seen it done before, but there is nothing in the law books specifically prohibiting the reexamination of witnesses. They have been sworn.”

Mr. Donnell’s eyes narrowed. “So they have.” He leaned forward, addressing his remarks to the two attorneys. “I will permit this, gentlemen.”

Woodfin paled. “But, Your Honor, the witnesses may have conferred—”

“They have been sworn, counselor. They have taken God’s oath to tell the truth, and we must assume that they will continue to tell the truth as they see it. As they now recall it.” His tone brooked no argument, but even so Mr. Woodfin remained standing for a moment or two longer, wide-eyed and gasping, as if he were casting about for some straw of legal redress. It was one of the very few times during the course of the trial that I saw him look around for his co-counsel Thomas Wilson, but that worthy gentleman offered him no help; he merely shook his head as if to say that the point was lost, and that no good could come of arguing about it.

Judge Donnell turned to the prosecutor. “Mr. Alexander,” he said, “you may begin, sir.”

He consulted the list and nodded to the bailiff. “The state calls Miss Nancy Wilson to the stand.”

In the short interval during which we awaited the arrival of Nancy Wilson, I had time to scan the crowd, and I noticed that Miss Mary Erwin was not present among the spectators. Perhaps she had seen her fill of legal chess games on the preceding day, or more likely, she had anticipated an unfavorable verdict, rather than the unexpected continuation of the trial that took us all by surprise.

Nancy Wilson entered the courtroom for her second turn on the witness stand looking uneasy. Wearing the same black dress as yesterday but not the same confident demeanor, she kept close to the bailiff’s side, making her way through the spectators with a worried frown, as if she were wondering what the jurors wanted from her now.

When the preliminaries were settled, William Alexander approached the witness with a perfunctory smile intended to calm her fears. “The jurors would like to hear your testimony again, Miss Wilson. Let us begin again. I will ask you questions, and you must answer truthfully to the best of your knowledge. Do you understand?”