Might as Well Be Dead (6 page)

“I think there is,” Wolfe declared. “You want to appeal. Can you take preliminary steps for an appeal without committing yourself to any substantial outlay for thirty days?”

“Yes. Easily.”

“Very well. You want to appeal and I want to collect my fee. I warned my client that the search might take months. I shall tell him merely that I am working on his problem, as I shall be. You will give me all the information you have, all of it, and I’ll investigate. In thirty days—much less, I hope—I’ll know where we stand. If it is hopeless there will be nothing for it but
A
or
B
, and that decision can wait. If it is promising we’ll proceed. If and when we get evidence that will clear your client, my client will be informed and he will foot the bill. Your client may not like it but he’ll have to lump it; and anyway, I doubt if he would really rather die in the electric chair than face his father again, especially since he will be under no burden of guilt, either of theft or of murder. I make this proposal not as a paragon, but only as a procedure less repugnant than either
A
or
B
. Well, sir?”

The lawyer was squinting at him. “You say you’ll investigate. Who will pay for that?”

“I will. That’s the rub. I’ll hope to get it back.”

“But if you don’t?”

“Then I don’t.”

“There should be a written agreement.”

“There won’t be. I take the risk of failure; you’ll have to take the risk of my depravity.” Wolfe’s voice suddenly became a bellow. “Confound it, it is your client who has been convicted of murder, not mine!”

Freyer was startled, as well he might be. Wolfe can bellow. “I meant no offense,” he said mildly. “I had no thought of depravity. As you say, the risk is yours. I accept your proposal. Now what?”

Wolfe glanced up at the wall clock and settled back in his chair. A full hour till lunchtime. “Now,” he said, “I want all the facts. I’ve read the newspaper accounts, but I want them from you.”

Chapter 5

P
ETER HAYS HAD BEEN convicted of killing the husband of the woman he loved, on the evening of January 3, by shooting him in the side of the head, above the left ear, with a Marley .38. I might as well account for things as I go along, but I can’t account for the Marley because it had been taken by a burglar from a house in Poughkeepsie in 1947 and hadn’t been seen in public since. The prosecution hadn’t explained how Peter Hays had got hold of it, so you can’t expect me to.

The victim, Michael M. Molloy, forty-three, a real-estate broker, had lived with his wife, no children, in a four-room apartment on the top floor, the fifth, of a remodeled tenement on East 52nd Street. There was no other apartment on the floor. At 9:18
P.M.
on January 3 a man had phoned police headquarters and said he had just heard a shot fired on one of the upper floors of the house next door. He gave the address of the house next door, 171 East 52nd Street, but hung up without giving his name, and he had never been located, though of course the adjoining houses had been canvassed. At 9:23 a cop from a prowl car had entered the building. When he got to the top floor, after trying two floors below and drawing blanks, he found the door standing open and entered. Two men were inside, one alive and one dead. The dead one, Molloy, was on the living-room floor. The live one, Peter Hays, with his hat and topcoat on, had apparently been about to leave, and when the cop had stopped him he had tried to tear away and had to be subdued. When he was under control the cop had frisked him and found the Marley .38 in his topcoat pocket.

All that had been in the papers. Also:

Peter Hays was a copywriter. He had been with the same advertising agency, one of the big ones, for eight years, and that was as far back as he went. His record and reputation were clean, with no high or low spots. Unmarried, he had lived for the past three years in an RBK—room, bath, and kitchenette—on West 63rd Street. He played tennis, went to shows and movies, got along all right with people, had a canary in his room, owned five suits of clothes, four pairs of shoes, and three hats, and had no car. A key to the street door of 171 East 52nd Street had been found on his key ring. The remodeled building had a do-it-yourself elevator, and there was no doorman.

The District Attorney’s office, the personnel of Homicide West, all the newspapers, and millions of citizens, were good and sore at Peter Hays because he wasn’t playing the game. The DA and cops couldn’t check his version of what had happened, and the papers couldn’t have it analyzed by experts, and the citizens couldn’t get into arguments about it, because he supplied no version. From the time he had been arrested until the verdict came, he had refused to supply anything at all. He had finally, urged by his lawyer, answered one question put by the DA in a private interview: had he shot Molloy? No. But why and when had he gone to the apartment? What were his relations with Molloy and with his wife? Why was a key to that building on his key ring? Why did he have the Marley .38 in his pocket? No reply. Nor to a thousand other questions.

Other people had been more chatty, some of them on the witness stand. The Molloy’s daily maid had seen Mrs. Molloy and the defendant in close embrace on three different occasions during the past six months, but she had not told Mr. Molloy because she liked Mrs. Molloy and it was none of her business. Even so, Mr. Molloy must have been told something by somebody, or seen or heard something, because the maid had heard him telling her off and had seen him twisting her arm until she collapsed. A private detective, hired by Molloy late in November, had seen Mrs. Molloy and Peter Hays meet at a restaurant for lunch four times, but nothing juicer. There were others, but those were the outstanding items.

The prosecution’s main attraction, though not its mainstay, had been the widow, Selma Molloy. She was twenty-nine, fourteen years younger than her husband, and was photogenic, judging from the pictures the papers had run. Her turn on the witness stand had sparked a debate. The Assistant DA had claimed the right to ask her certain questions because she was a hostile witness, and the judge had refused to allow the claim. For example, the ADA had tried to ask her, “Was Peter Hays your lover?” but he had to settle for “What were the relations between you and Peter Hays?”

She said she liked Peter Hays very much. She said she regarded him as a good friend, and she had affection for him, and believed he had affection for her. The relations between them could not properly be called misconduct. As for the relations between her and her husband, she had begun to feel less than a year after their marriage, which had taken place three years ago, that the marriage had been a mistake. She should have known it would be, since for a year before their marriage she had worked for Molloy as his secretary, and she should have known what kind of man he was. The prosecutor had fired at her, “Do you think he was the kind of man who should be murdered?” and Freyer had objected and been sustained, and the prosecutor had asked, “What kind of man was he?” Freyer had objected to that too as calling for an opinion on the part of the witness, and that had started another debate. It was brought out, specifically, that he had falsely accused her of infidelity, had physically mistreated her, had abused her in the presence of others, and had refused to let her get a divorce.

She had seen Peter Hays at a New Year’s Eve party three days before the murder, and had not seen him since until she entered the courtroom that day. She had spoken with him on the telephone on January 1 and again on January 2, but she couldn’t remember the details of the conversations, only that nothing noteworthy had been said. The evening of January 3 a woman friend had phoned around seven-thirty to say that she had an extra ticket for a show and invited her to come, and she had accepted. When she got home, around midnight, there were policemen in her apartment and she was told the news.

Freyer had not cross-examined her. One of the hundred or so details of privileged communications between a lawyer and a client furnished us by Freyer explained that. He had promised Peter Hays he wouldn’t.

Wolfe snorted, not his laughing snort. “Isn’t it,” he inquired, “a function of counsel to determine the strategy and tactics of defense?”

“When he can, yes.” Freyer, who had spent three-quarters of an hour reviewing the testimony and answering questions about it, had lubricated himself with a glass of water. “Not with this client. I’ve said he is difficult. Mrs. Molloy was the prosecution’s last witness. I had five, and none of them helped any. Do you want to discuss them?”

“No.” Wolfe looked at the wall clock. Twenty minutes to lunch. “I’ve read the newspaper accounts. I would like to know why you’re convinced of his innocence.”

“Well—it’s a combination of things. His expressions, his tones of voice, his reactions to my questions and suggestions, some questions he has asked me—many things. But there was one specific thing. During my first talk with him, the day after he was arrested, I got the idea that he had refused to answer any of their questions because he wanted to protect Mrs. Molloy—either from being accused of the murder, or of complicity, or merely from harassment. At our second talk I got a little further with him. I told him that exchanges between a lawyer and his client were privileged and their disclosure could not be compelled, and that if he continued to withhold vital information from me I would have to retire from the case. He asked what would happen if I did retire and he engaged no other counsel, and I said the court would appoint counsel to defend him; that on a capital charge he would have to be represented by counsel. He asked if anything he told me would have to come out at the trial, and I said not without his consent.”

The water glass had been refilled and he took a sip. “Then he told me some things, and more later. He said that on the evening of January third he had been in his apartment, alone, and had just turned on the radio for the nine-o’clock news when the phone rang. He answered it, and a man’s voice said, ‘Pete Hays? This is a friend. I just left the Molloys, and Mike was starting to beat her up. Do you hear me?’ He said yes and started to ask a question, but the man hung up. He grabbed his hat and coat and ran, took a taxi across the park, used his key on the street door, took the elevator to the fifth floor, found the door of the Molloy apartment ajar, and went in. Molloy was lying there. He looked through the apartment and found no one. He went back to Molloy and decided he was dead. A gun was on a chair against the wall, fifteen feet from the body. He picked it up and put it in his pocket, and was looking around to see if there was anything else when he heard footsteps in the hall. He thought he would hide, then thought he wouldn’t, and as he started for the door the policeman entered. That was his story. This is the first time anyone has heard it but me. I could have traced the cab, but why spend money on it? It could have happened just as he said, with only one difference, that Molloy was alive when he arrived.”

Wolfe grunted. “Then I don’t suppose that convinced you of his innocence.”

“Certainly not. I’ll come to that. To clean up as I go along: when I had him talking I asked why he had the key, and he said that on taking Mrs. Molloy home from the New Year’s Eve party he had taken her key to open the door for her and had carelessly neglected to return it to her. Probably not true.”

“Nor material. The problem is murder, not the devices of gallantry. What else?”

“I told him that it was obvious that he was deeply attached to Mrs. Molloy and was trying to protect her. His rushing to her on getting the anonymous phone call, his putting the gun in his pocket, his refusal to talk to the police, not only made that conclusive but also strongly indicated that he believed, or suspected, that she had killed her husband. He didn’t admit it, but he didn’t deny it, and for myself I was sure of it—provided he hadn’t killed him himself. I told him that his refusal to divulge matters even to his attorney was understandable as long as he held that suspicion, but that now that Mrs. Molloy was definitely out of it I expected of him full and candid cooperation. She was completely in the clear, I said, because the woman and two men with whom she had attended the theater had stated that she had been with them constantly throughout the evening. I had a newspaper with me containing that news, and had him read it. He started to tremble, and the newspaper shook in his hands, and he called on God to bless me. I told him he needed God’s blessing more than I did.”

Freyer cleared his throat and took a gulp of water. “Then he read it again, more slowly, and his expression changed. He said that the woman and the men were old and close friends of Mrs. Molloy and would do anything for her. That if she had left the theater for part of the time they wouldn’t hesitate to lie for her and say she hadn’t. That there was no point in his spilling his guts—his phrase—unless it cleared him of the murder charge, and it probably wouldn’t, and even if it did, then she would certainly be suspected and her alibi would be checked, and if it proved to be false she would be where he was then. I couldn’t very well impeach his logic.”

“No,” Wolfe agreed.

“But I was convinced of his innocence. His almost hysterical relief on learning of her alibi, then the doubt creeping in, then his changing expression as he read the paper again and grasped the possibilities—if that was all counterfeit I should be disbarred for incompetence.”

“Certainly I’m not competent to judge,” Wolfe stated, “since I didn’t see him. But since I have my own reason for not thinking it as simple as it seems I won’t challenge yours. What else?”

“Nothing positive. Only negatives. I had to promise him I wouldn’t cross-examine Mrs. Molloy, or quit the case, and I didn’t want to quit. I had to accept his refusal to take the witness stand. If he had been framed the key question was the identity of the man who had made the phone call that made him dash to the Molloy apartment, but he said he had spent hours trying to connect the voice with someone he knew, and couldn’t. The voice had been hoarse and guttural and presumably disguised, and he couldn’t even guess.