Page 188 of Faceless

Darcy permitted his eyes to lift as the captain returned to the bench beside the witnesses. Did he dare believe it? It seemed that a small alteration had been settling over the room since Hodges had stepped down — that the case the prosecution had brought was being dismantled, in plain speech, by witnesses the prosecution could not effectively undo.

He had time, before the clerk called the next witness, to think for perhaps fifteen seconds about what it meant that Foss had appeared.

Then the clerk called the name Marsh.

Darcy did not, at first, hear it properly. He had been three hours in the dock, and the words had been arriving in him with the small delay that came of having held his own face in one position for too long. He looked up.

Marsh?

Marsh had been lost to them this entire time. He was the one witness who could speak directly to the mechanism of the fraud, and the witness Darcy had asked Webb to find first and had been told, in March, that he could not be found, and that the case would have to be built without him.

And Marsh was at this moment being called to the witness box.

For the first time since the morning, he was in real danger of breaking in the dock.

The Crown’s counsel was on his feet at once. “My lord, this witness has not been on the prosecution’s list! We have had no opportunity to examine the witness’s statement, no opportunity to prepare cross-examination, no opportunity to verify the circumstances under which his testimony has been procured. The defence has provided no notice. I move that the witness be dismissed.”

Pemberton rose. He did so with the unhurried confidence of having waited for this objection for some hours, his response ready.

“My lord, with the court’s permission. My learned friend’s objection rests upon the assumption that this witness was withheld from the prosecution’s notice through some discourtesy or stratagem of the defence. That assumption is mistaken. The rule, as your lordship is well aware, provides that a witness whose whereabouts were unknown at the time of the filing of the case lists may be added to the calling at the court’s discretion, provided notice is given to opposing counsel on the morning of the day of his testimony. The notice in this matter was filed with my learned friend’s chambers at half past eight this morning. I have here the receipt, signed by his clerk. I should be glad to lay it before the court.”

The clerk to the court came forward and took the receipt up to the bench. The judge examined it and laid it aside.

“Furthermore, my lord, I have here a sworn affidavit from Mr Webb, presently at the bar of this court, attesting that the witness’s whereabouts had been unknown to the defence as of the week before last, and had become known to us only yesterday. The witness was located in circumstances I am not, at this hour, at liberty to detail before the court without exposing other persons to risk, but I shall undertake to your lordship that the locating of him was conducted entirely within the proper bounds of the rule. The witness’s statement was prepared, and the notice was filed at the earliest hour at which my learned friend’s chambers were open to receive it. There has been no discourtesy. There has been only such promptness as the circumstances permitted.”

Sterling’s counsel rose again. “My lord, I should be obliged if the court would consider the prejudice —”

“I shall come to the prejudice in a moment, my learned friend. My lord, in the alternative — and only in the alternative, since I do not concede that my learned friend has been prejudiced in any manner the rule contemplates — I should be willing to consent to the grant of a recess of one hour, during which my learned friend may examine the statement that has been prepared and may take such instructions from his own solicitor as he requires for the conduct of his cross-examination. I leave the matter in your lordship’s hands.”

The judge considered. He looked at the receipt. He looked at the prosecution’s counsel.

“Do you require the recess?”

Counsel hesitated.

Darcy, watching from the dock, saw the calculation cross the man’s face. To take the recess would be to admit before the jury that the prosecution had been caught unready. To decline it would be to forfeit the only ground on which the witness could be challenged. The hesitation went on several seconds longer than it should have.

“My lord, the prosecution declines the recess. The objection stands. We move that the witness be dismissed.”

“The motion is denied. Mr Pemberton, you may call your witness.”

“I am obliged, my lord. The defence calls Mr Thomas Marsh.”

Marsh was sworn.

Darcy looked, before he could stop himself, at the gallery.

Richard was at the rail above the well of the court. He had been standing at the rail since the morning recess. He met Darcy’s eye and shook his head once, very small — not me — and inclined his head, fractionally, towards the screen at the far end.

Darcy followed the gesture.

Elizabeth was leaning forward. She had her hand against her mouth, not in any showy way, but unconsciously biting the side of her lip, not wanting the court to see her doing it. Her eyes were too bright. She did not, even when Darcy’s gaze found her, look at him. She was looking at Marsh.

Darcy understood, in the space of perhaps two seconds, what he had not been told.

This was hers.

He did not know how. He could not begin to construct how. He had been in the Tower since January and had been entirely outside the operational work of the defence, and he had been told by the earl in writing in March that the clerk was lost. Webb had given up. There was no captain, no second witness, and no plan to recover one. Reasonable doubt with documentation alone was the best that could be hoped for. The earl had said so.