Playback Page #13

PROSECUTOR:

Your Honor, I protest that

statement!

JUDGE:

Sit down, Mr. Prosecutor. Your are

out of order.

Prosecutor swallows, looks back at Henry Kinsloving, shrugs

and sits down again. Leamington is leaning forward with a

gleam in his eye. Elizabeth is still deadpan.

JUDGE:

We all new Lee Kinsolving well, We

watched him grow up. We observed

that he was proud and hot tempered,

and had a strain of arrogance, not

unlike others of his family.

He looks meaningfully at Henry Kinsolving.

JUDGE:

From this town Lee Kinsolving went

to fight for his country. And to

this town, before he went overseas,

he brought the wife he had married

up North. To us he returned a war

hero badly wounded, condemned for

the rest of his life to wear a

heavy brace around his neck.

Competent medical testimony has

shown that without that brace a

very slight movement might have

been enough to snap his spinal

cord. This injury humiliated and

embittered Lee Kinsolving, made

him morose and violent, and perhaps

caused him to drink to excess. The

Defendant has admitted that there

were bitter quarrels between herself

and her husband. Such a quarrel

took place on the night of his

death, Upon the manner of that

death this entire proceeding rests.

The Judge pauses and looks out over the courtroom, which

is very quiet now, He pours himself a glass of water and

takes a drink from it.

JUDGE:

In my summing up to the Jury I

emphasized that the case for the

prosecution was, as so many murder

cases are, purely circumstantial.

It was alleged that while Lee

Kinsolving slept, perhaps in a

drunken stupor and perhaps not,

the Defendant removed the neck

brace from his neck and jerked his

head sufficiently to rupture the

spinal cord and cause death. It is

admitted that the Defendant was

found holding the neck brace in

her hand, and bending over her

husband's body, which was lying on

the bed. Not in the bed, mind you,

but sprawled across it. The

Defendant has testified that lee

Kinsolving himself removed the

neck brace to torment her, as it

were, with the great danger in

which this placed him. Then he

started to walk towards her, holding

the brace in his hands, and that

being unsteady on his feet, he

stumbled and fell backwards across

the bed. And this fall broke his

neck, although at the time she did

not know it. She has testified

that she picked the brace up from

the floor and was about to attempt

to replace it on his neck when her

father-in-law entered the room and

found her in that position.

(a beat)

By its verdict the Jury declared

that Elizabeth Kinsolving's account

of the death of her husband to be

impossible of belief.

The Judge sips a little more water, then continues.

JUDGE:

In all murder trails, a motion by

the Defense for a directed verdict

of acquittal before the case goes

to the Jury is more or less

automatic. It is usually

perfunctory, and for that reason

immediately denied. The laws of

this state, and a few other

jurisdictions, confer upon a Court

a right to reserve its ruling upon

such a motion until after the Jury

has rendered its verdict. In this

proceeding, I, as presiding Judge,

availed myself of this power. I

most honestly hoped that the Jury

in this case might act as

impartially as it declared itself

to be.

The Prosecuting Attorney again jumps to his feet, then

changes his mind, sits down with a frustrated angry

movement. Kinsolving is leaning forward, glaring. The Jury

are now very uncomfortable. The is a BUZZ OF NOISE and the

Bailiff again shouts for order.

JUDGE:

Let me remind you that a Jury is

the sole Judge of fact, and further

let me remind you that the Jury

must judge all the facts. It may

not select nor create nor change

facts. It may only interpret them.

It may not declare something

impossible which in fact is merely

extremely difficult to believe.

(a beat)

Impossible is a very big word.

(another beat.)

If we believe Elizabeth Kinsolving's

sworn testimony, we must also

believe that Lee Kinsolving

performed an act which was almost

certain to cause his death. It is

difficult... very difficult to

believe. But is it impossible? Are

we sure that he knew it would cause

his death? Or that in his then

state of mind, he even considered

the consequences at all? Many people

have attempted suicide as a result

of domestic quarrels. Not all have

succeeded, nor meant to succeed.

And surely not all those who did

succeed... fully intended to. Not

all knew what they were doing and

those who did know, there were

surely a few whose desire to hurt

others overcame their fear of

hurting themselves. We cannot

know what was in Lee Kinsolving's

Mind. Therefore, some element of

doubt must infallibly remain. It

was not necessary for this Jury to

declare its belief in the

Defendant's innocence, nor to

declare its that Lee Kinsolving by

accident or his own intent. It was

necessary for the Jury to admit to

themselves, as reasonable men, the

possibility.... however slight...

that Elizabeth Kinsolving's story

was true. This possibility the

Jury has refused to admit.

(dramatic pause)

It therefore becomes my duty to

declare that such a possibility

does in fact exist... and the Jury's

refusal to recognize it was a

failure to exercise it proper

function.

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