Bureau investigating the case were found dead one morning in the neighborhood of the club, with bullet wounds in their backs, Markham decided to pigeonhole the other affairs of his office and take a hand personally in the intolerable criminal conditions that had arisen.26
CHAPTER 2
FOOTPRINTS IN THE SNOW
(Sunday, September 9)
On the day following his decision, Markham and Vance and I were sitting in a secluded corner of the lounge room of the Stuyvesant Club. We often came together there, for we were all members of the club, and Markham frequently used it as a kind of unofficial uptown headquarters.27
“It’s bad enough to have half the people in this city under the impression that the district attorney’s office is a kind of high-class collection agency,” he remarked that night, “without being necessitated to turn detective because I’m not given sufficient evidence, or the right kind of evidence, with which to secure convictions.”
Vance looked up with a slow smile and regarded him quizzically.
“The difficulty would seem to be,” he returned, with an indolent drawl, “that the police, being unversed in the exquisite abracadabra of legal procedure, labor under the notion that evidence which would convince a man of ordin’ry intelligence, would also convince a court of law. A silly notion, don’t y’ know. Lawyers don’t really want evidence; they want erudite technicalities. And the average policeman’s brain is too forthright to cope with the pedantic demands of jurisprudence.”
“It’s not as bad as that,” Markham retorted, with an attempt at good nature, although the strain of the past few weeks had tended to upset his habitual equanimity. “If there weren’t rules of evidence, grave injustice would too often be done innocent persons. And even a criminal is entitled to protection in our courts.”
Vance yawned mildly.
“Markham, you should have been a pedagogue. It’s positively amazin’ how you’ve mastered all the standard oratorical replies to criticism. And yet, I’m unconvinced. You remember the Wisconsin case of the kidnapped man whom the courts declared presumably dead. Even when he reappeared, hale and hearty, among his former neighbors, his status of being presumably dead was not legally altered. The visible and demonstrable fact that he was actually alive was regarded by the court as an immaterial and impertinent side issue.28… Then there’s the touchin’ situation—so prevalent in this fair country—of a man being insane in one state and sane in another.… Really, y’ know, you can’t expect a mere lay intelligence, unskilled in the benign processes of legal logic, to perceive such subtle nuances. Your layman, swaddled in the darkness of ordin’ry common sense, would say that a person who is a lunatic on one bank of a river would still be a lunatic if he was on the opposite bank. And he’d also hold—erroneously, no doubt—that if a man was living, he would presumably be alive.”
“Why this academic dissertation?” asked Markham, this time a bit irritably.
“It seems to touch rather vitally on the source of your present predicament,” Vance explained equably. “The police, not being lawyers, have apparently got you into hot water, what?… Why not start an agitation to send all detectives to law school?”
“You’re a great help,” retorted Markham.
Vance raised his eyebrows slightly.
“Why disparage my suggestion? Surely you must perceive that it has merit. A man without legal training, when he knows a thing to be true, ignores all incompetent testimony to the contr’ry, and clings to the facts. A court of law listens solemnly to a mass of worthless testimony, and renders a decision not on the facts but according to a complicated set of rules. The result, d’ ye see, is that a court often acquits a prisoner, realizing full well that he is guilty. Many a judge has said, in effect, to a culprit, ‘I know, and the jury knows, that you committed the crime, but in view of the legally admissible evidence, I declare you innocent. Go and sin again.’”
Markham grunted. “I’d hardly endear myself to the people of this country if I answered the current strictures against me by recommending law courses for the police department.”
“Permit me, then, to suggest the alternative of Shakespeare’s butcher: ‘Let’s kill all the lawyers.’”
“Unfortunately, it’s a situation, not a utopian theory, that has to be met.”
“And just how,” asked Vance lazily, “do you propose to reconcile the sensible conclusions of the police with what you touchingly call correctness of legal procedure?”
“To begin with,” Markham informed him, “I’ve decided henceforth to do my own investigating of all important nightclub criminal cases. I called a conference of the heads of my departments yesterday, and from now on there’s going to be some real activity radiating direct from my office. I intend to produce the kind of evidence I need for convictions.”
Vance slowly took a cigarette from his case and tapped it on the arm of his chair. “Ah! So you are going to substitute the conviction of the innocent for the acquittal of the guilty?”
Markham was nettled; turning in his chair, he frowned at Vance. “I won’t pretend not to understand your remark,” he said acidulously. “You’re back again on your favorite theme of the inadequacy of circumstantial evidence as compared with your psychological theories and aesthetic hypotheses.”
“Quite so,” agreed Vance carelessly. “Y’ know, Markham, your sweet and charmin’ faith in circumstantial evidence is positively disarming. Before it, the ordin’ry powers of ratiocination are benumbed. I tremble for the innocent victims you are about to gather into your legal net. You’ll eventually make the mere attendance at any cabaret a frightful hazard.”
Markham smoked awhile in silence. Despite the seeming bitterness at times in the discussions of these two men, there was at bottom no animosity in their attitude toward each other. Their friendship was of long standing, and, despite the dissimilarity of their temperaments and the marked difference in their points of view, a profound mutual respect formed the basis of their intimate relationship.
At length Markham spoke. “Why this sweeping deprecation of circumstantial evidence? I admit that at times it may be misleading; but it often forms powerful presumptive proof of guilt. Indeed, Vance, one of our greatest legal authorities has demonstrated that it is the most powerful actual evidence in existence. Direct evidence, in the very nature of crime, is almost always unavailable. If the courts had to depend on it, the great majority of criminals would still be at large.”
“I was under the impression that this precious majority had always enjoyed its untrammeled freedom.”
Markham ignored the interruption. “Take this example: A dozen adults see an animal running across the snow, and testify that it was a chicken; whereas a child sees the same animal, and declares it was a duck. They thereupon examine the animal’s footprints and find them to be the webfooted tracks made by a duck. Is it not conclusive, then, that the animal was a duck and not a chicken, despite the preponderance of direct evidence?”
“I’ll grant you your duck,” acceded Vance indifferently.
“And having gratefully accepted the gift,” pursued Markham, “I propound a corollary: A dozen adults see a human figure crossing the snow, and take oath it was a woman; whereas a child asserts that the figure was a man. Now, will you not also grant that the circumstantial evidence of a man’s footprints in the snow would supply incontrovertible proof that it was, in fact, a man, and not a woman?”
“Not at all, my dear Justinian,” replied Vance, stretching his legs languidly in front of him; “unless, of course, you could show that a human being possesses no higher order of brain than a duck.”
“What have brains to do with