Chapter 9—Mistake of Fact

March 23, 2018

Lana had rather suddenly found herself prosecuting another attorney's case shortly after Miles left for the United States: a murder case in which opera tenor Jack Postrel was shot during a performance of Mazeppa. It appeared to be a very simple case, as the fatal shot had been fired onstage during the performance, apparently by the defendant, bass-baritone Richard Stark. As such, the entire audience witnessed the murder. Originally, Alexander Wuertz was to prosecute the case, but he suddenly fell ill and was staying home on the doctor's orders.

Why would he shoot someone in front of all those people? Lana thought as she looked over the notes Wuertz had taken. Unless he planned on destroying his career, too, it would make no sense for him to. Even the stupidest killers I've prosecuted or investigated would think twice about shooting someone in front of almost two thousand people.

"Ms. Skye, you're needed in court," the bailiff said, entering the Prosecution Lobby.

"All rise for the Honorable Mr. Justice Shirazi," the clerk announced as the judge, a man looking to be from somewhere in the Middle East, entered. As Lana glanced in the defendant's direction, she saw that Gavin was the defense attorney. Thinking she saw something odd, she glanced at Gavin again and noticed a bandage wrapped around his right wrist and part of his hand.

I wonder what happened to him…

"You may be seated," the judge said. "Court is now in session for the trial of Mr. Richard Stark."

"The prosecution is ready, My Lord," Lana said.

"The defense is ready, My Lord," Gavin said.

"Thank you," the judge responded. "Ms. Skye, could you please give the court your opening statement?"

"Yes, My Lord," Lana replied. "On the eighteenth of March this year, Jack Postrel was shot at the Jensen Opera House during their performance of Mazeppa and died the following day. The suspect, Mr. Richard Stark, was apprehended immediately by his fellow performers and turned over to the police for arrest the instant they arrived. The subsequent investigation has given us no reason to doubt the defendant's guilt."

"I… see. Mr. Gavin, what plea does the defense wish to enter?"

"The defense pleads not guilty due to mistake of fact," Gavin replied.

The gallery murmured. The judge tapped his gavel lightly.

"Mr. Gavin, please clarify as to how this can be a mistake of fact," the judge requested.

"The defense holds that Mr. Stark was of the belief that the murder weapon was, by design, incapable of firing actual bullets," Gavin explained.

"I am still not certain I understand."

"In all previous performances, as well as earlier in the performance in which the victim was shot, no bullets ever came out of the gun in question. Furthermore, my client was of the belief that the gun in question was just a prop designed only to simulate the sound and appearance of a gunshot."

"Hm… Ms. Skye, your opinion?"

"Testimony from the director matches Mr. Gavin's claim," Lana stated. "The prop was supposedly no more dangerous than a cap gun. This being the case, in order for the murder to happen, the prop would have had to be either modified to fire actual bullets or replaced with a real gun that resembles the prop."

"Just so there is no misunderstanding, Mr. Gavin," the judge said, "you are asserting that while the defendant did, in fact, shoot the victim, he was… unaware that the murder weapon was able to fire real bullets?"

"Yes, My Lord," Gavin answered. "The defense believes the prop gun was replaced with the murder weapon, and that no reasonable person, after using the prop so many times without actually firing a bullet, would suspect that the gun they were holding was in any way capable of firing real bullets."

"Mm… Mr. Gavin, this is a very dangerous plea to make."

"While I mean no disrespect, My Lord, I have conferred with my client on the matter, and we have agreed on this plea. I would like to request that the plea be entered; the defense is aware of the risks involved, and if Mr. Stark objects, I ask him to do so."

"Mr. Stark?" the judge asked, switching his gaze to the defendant.

"From what Mr. Gavin has told me, I believe this is the right plea to enter," the defendant said.

"Very well. Ms. Skye, please call your first witness."

"Understood, My Lord," Lana said. "The prosecution calls Detective Samuel Lowe to the stand." The detective walked up to the stand, struggling to conceal his excitement. "Detective, please state your name and occupation to the court."

"Samuel Lowe, ma'am!" the detective eagerly replied, saluting. "Constable, Criminal Investigation Department."

"Detective, I would like you to testify to the court about the nature and circumstances of the victim's death, as well as why Mr. Stark was arrested for the crime."

"Understood ma'am!" Lowe took a deep breath and let it out slowly. "During an opera performance, Jack Postrel, one of the performers, was shot in the abdomen onstage in front of an audience of 1,893 people. He died in the hospital from infected peritonitis the following day. Analysis of the bullet's ballistic markings identified the murder weapon as a single-shot handgun, found to have the defendant's fingerprints on it. When we arrived at the scene of the crime, the defendant had been apprehended by two of his fellow performers and was patiently awaiting our arrival."

"I see," the judge said after a moment. "Mr. Gavin, you may begin your cross-examination."

"Thank you, My Lord," Gavin said. "Detective, could you please clarify something for me?"

"Of course," Lowe answered.

"You said my client shot the victim in front of almost two thousand people. Does the department have any explanation for why he would do that?"

"The defendant has admitted on multiple occasions to despising Mr. Postrel. Apparently, he was dating the defendant's daughter, but was two-timing her. Furthermore, the victim had a reputation for being immature and disruptive during rehearsals."

"The motive is not what I am bothered by, Detective. My problem is with the number of witnesses. Considering the location of the murder and the nature of the murder weapon, this crime was clearly premeditated."

"I agree completely, sir. But I still don't see what—"

Gavin struck his desk, interrupting Lowe. "What kind of idiot would plan to murder someone in front of almost two thousand witnesses! If you're planning to kill someone, wouldn't you try to make sure there are no witnesses!"

Lowe appeared to swallow, though Lana heard nothing.

"The murder was during a performance, onstage!" Gavin continued. "Had my client planned the murder as it happened, there is no way he wouldn't have known beforehand that the entire audience would witness it! The sheer stupidity of going ahead with such a plan is reason enough for me to question my client's guilt!"

The gallery started up, though the judge responded quickly with his gavel.

"That is a very good point, Mr. Gavin," the judge said. "Ms. Skye?"

"Yes, My Lord?" Lana replied.

"Does the prosecution have any explanation for this?"

"The large number of witnesses does support the possibility of a mistake of fact, but it is still only a possibility. There have been cases of people committing a crime with the full knowledge that they will be caught."

"I see. Mr. Gavin, please continue your cross-examination."

"Detective," Gavin continued, "you said the shot was fired onstage from a single-shot handgun."

"I did, sir," Lowe responded.

"Having seen the performance from two days before the murder, I recall there being two shots fired by the prop gun, one in the first act, one in the third."

"Yes, sir, the program said as much."

"And the murder happened during the third act?"

"Yes, sir."

"That means the fatal shot was fired during the third act."

"Yes, sir."

"In that case, it follows that no bullet came out of the gun when it was fired in the first act."

"Yes, sir."

"Then we have two possibilities. The first is that the murder weapon was fired both times, but only had a bullet in it the second time. The second possibility is that the prop was fired in the first act, but the murder weapon was fired in the third act."

"Actually, sir, the murder weapon showed signs of only being fired once."

"Is that so?" Gavin asked, a smile crossing his face.

"Yes, sir."

"If that's the case, then the prop must have been fired in the first act. Why has the prop not been submitted into evidence?"

"Ah… um…" The detective began to tremble. "Ms. Skye?"

"I'm sorry, Detective, but the situation's unchanged," Lana said. "The prop has still not been found."

"Oh…" Lowe sighed. "We're still looking for it at the opera house, but it's nowhere to be found." He winced.

"Detective, this is a vital piece of evidence," Gavin said. "Are there any leads on where the prop might be?"

"None, sir. Everyone who was backstage at any time during the performance was searched thoroughly the night of the murder, and none of them have been allowed back to the crime scene since. We're pretty sure the prop is somewhere in the building."

"Moving on, you testified that my client was apprehended by two of his fellow performers."

"Yes, sir. Emily White and Luka Lebedev."

"Mariya and Orlik, correct?"

"I'm sorry, sir, I don't remember the roles they performed."

"It says in the program that Ms. White sang the role of Mariya and Mr. Lebedev was Orlik," Lana said. "When the shot was fired, Mr. Lebedev had recently gone offstage and Ms. White was due to enter later in the act."

"Is either of them available to testify?" Gavin asked Lana.

"Ms. White is in the Prosecution Lobby, ready to be summoned at a moment's notice."

"And Mr. Lebedev?"

"Unfortunately, he is in St. Petersburg now, though he was questioned during the investigation. That's why his testimony was submitted into evidence before the trial began."

"One last question, detective," Gavin said, turning back to Lowe. "Regarding the murder weapon… do you know where it came from?"

"There's no record of a gun of the same design as the murder weapon being licensed to anyone connected to the case," the detective said. "There's also no available information on the gun's model, which means we are probably dealing with a specially crafted gun that was acquired illegally."

"And do you know who crafted it?"

"No. A single Cyrillic letter was found on the grip, though it's meaning is unknown at the moment. We suspect whoever crafted the gun added it as a seal of sorts."

"Is that also on the prop gun?"

"We can't be sure until we have the gun, but everyone we asked did not have any memory of such a symbol being on it."

"So you currently can't trace the gun to anyone?"

"That is correct. We're still looking into it, but when I was summoned to court, we still had no leads."

For a few seconds, the courtroom was silent.

"My Lord, I have no further questions for the detective at this time," Gavin finally said.

"Very well," the judge said with a nod. "Ms. Skye, please summon your next witness."

"Understood," Lana said. "The prosecution calls Ms. Emily White to the stand. As she personally witnessed the murder and worked with both the defendant and the victim, I believe her testimony will be helpful."

Ms. White entered the courtroom, everything from her appearance to the way she walked carrying the essence of a woman who took pride in her status.

"Witness, please state your name and occupation for the court," Lana said as Ms. White reached the stand.

"Emily Teresa White, soprano in the Jensen Opera," she answered. "I sang the role of Mariya in the Jensen Opera's performance of Mazeppa."

"Ms. White, you witnessed the shot that took Jack Postrel's life, correct?"

"Yes."

"You also apprehended the defendant?"

"Yes."

"Please testify to the court about those events."

"Very well. Just as we had rehearsed, Richard took out a handgun during his staged duel with Jack and fired. Jack's acting had been so good in past performances that I don't think anyone realized he had actually been shot until he said so. The orchestra stopped, and a huge commotion started in the audience. Realizing what had happened, Mr. Lebedev and I ran onstage and restrained Richard. He didn't put up any resistance and let us lead him away."

"Hm…" the judge droned. "So the shot in question was supposed to be disguised as part of the performance?"

"I disagree, My Lord," Gavin said. "As I said before, no one in the right mind would plan to murder someone in front of that many witnesses, let alone expect his victim to continue performing as though nothing had happened."

"It does appear to lend support to your plea, Mr. Gavin, but I'm still not convinced."

"Of course, My Lord. Moving on…" Gavin paused to look over the testimony. "How would you describe how my client behaved after the shot?"

"He almost collapsed when Jack shouted that he had been shot for real," Ms. White answered. "After we ran up and restrained him, he just went along without resisting."

"Did he say anything?"

"If he did, I didn't hear it. As far as I remember, he was silent the entire time."

"Did anyone else see him?"

"His daughter followed us, but I kept her away."

"You mean Michelle?"

"Is that her name?"

Gavin rubbed the bridge of his nose with his fingertips. "Do you know what she did after that?" he asked.

"She looked worried, but left us alone. As for what she did after walking off, I have no idea. I kept an eye on Richard until the police took him away."

"I see. Ms. Skye, do you have any information on Michelle Stark's movements?"

"From what other witnesses told us," Lana began, "Ms. Stark ran after the defendant, but returned to the house after about a minute. She didn't leave that area until after she was questioned by the police and allowed to leave."

"Was she searched?"

"Yes. The police found nothing unusual on her person, nor could they find anything relating to the crime in her coat or purse."

Gavin pressed on the bridge of his nose a bit harder. "I see. And what about during that one-minute interval?"

"As far as I know, she ran in the direction of the stage when I sent her away," Ms. White said.

"Was there anything between the stage and where you lost sight of her?"

"There was a storage room."

"What about my client's dressing room?"

"We had just passed that. She didn't enter, if that's what you wanted to ask."

"Michelle Stark was in the orchestra pit from the moment the conductor lifted his baton to the moment the victim was shot," Lana stated. "I hope that clears up any suspicions you might have about her, Mr. Gavin."

Gavin said nothing.

"Mr. Gavin, do you have any further questions for the witness?" the judge asked.

"No, My Lord," Gavin replied.

"Hm… then allow me to give my input on where things stand. Two things need to be ascertained. The first is the location of the prop gun. It's been established that the shot in the first act was from the prop gun. Therefore, it must have been switched with the murder weapon at some point during the performance. The second is who had the opportunity to switch the guns. We are dealing with a small timeframe in which either the defendant or another person switched the prop gun with the murder weapon."

"My Lord," Lana started, "while the location of the prop has still not been determined, the prosecution has a witness that I believe will be able to address the issue of who had the opportunity to switch the guns."

"Very well. Please call your witness, Ms. Skye."

"The prosecution calls to the stand Ms. Virginia Wagner."

A woman looking to be in her late forties took the stand. Ms. White stepped down, briefly glaring at the new witness.

I wonder what that was about…

"Witness, please state your name and occupation for the court," Lana said.

"Virginia Wagner," the witness replied. "I am the director of the Jensen Opera."

"Before we discuss the matter of the murder weapon, please tell the court what you were doing during the performance and directly after the victim was shot."

"During the entirety of the performance, I was in my office. Since the shot is in the actual opera, I didn't think anything strange had happened until I heard the audience jeering. Before I could leave my office, someone from the crew ran in and told me Postrel had been shot for real. I went to the stage to attend to Postrel and try to restore order. Once the police arrived, I cooperated as best I could with the investigation."

"…I see," the judge said after a pause. "Mr. Gavin, you may begin your cross-examination."

"Thank you, My Lord," Gavin said. Then, turning to Ms. Wagner, "Did you see my client after the shot?"

"He was being led away by White and Lebedev," Ms. Wagner replied.

"Where was he led?"

"I suspect he was led to one of the spare dressing rooms, though you would have to ask Ms. White about that if you wanted to be certain."

"As it turns out," Lana cut in, "according to Mr. Lebedev, the defendant was taken to a spare dressing room, where he stayed until the police arrested him and took him away."

"Then there you have it," Ms. Wagner said.

"Moving on…" Gavin continued. "You said you were in your office 'during the entirety of the performance.' From there, assuming the door was open, you would have been able to see down the whole backstage hallway, correct?"

"Yes. And since the door was open, I was able to see everything that happened in the hallway during the performance."

"Before the shot, when the performance was still going on, did you see anyone go into a room other than their own?"

"Yes."

"Who?"

"Woodman had lost his wallet during the intermission between the first and second acts. Apparently, it had somehow slipped out of his pocket when he was in the hallway."

"And he went into other people's rooms in search of it, even though it was in plain sight in the hallway?"

"No, I picked it up so I could return it to him later. After the first scene ended, he went back into his dressing room. I forgot to return his wallet to him at that time, so he later went out in search of it. When I saw him enter Stark's room, I went after him. He seemed very relieved when I gave it back to him."

"Did anyone else go into my client's room?" Gavin asked.

"I don't remember anyone else going in, no."

"You said you 'went after him' when Mr. Woodman went into my client's room. Does that mean you also went into his room?"

"Yes."

"Did anything seem out of the ordinary when you were in there?"

"No."

"Mr. Gavin, do you suspect the witness of switching the guns?" Lana asked.

"It's a bit early to make any accusations," Gavin answered, "but she has just made it clear that she had the opportunity to do so. Moving on, Ms. Wagner, you said you didn't see anyone else enter my client's room, other than my client, of course."

"That's correct," Ms. Wagner said.

"I see."

"Any other questions, Mr. Gavin?" the judge asked.

"Yes. The defense requests that the witness testify about the prop gun."

"The prop gun?" Lana repeated.

"The prop gun," Gavin confirmed. "I want to know what normally happens to it after it's fired in the first act. In order for the guns to be switched, the killer would have to have come into possession of the prop gun at some point."

Lana nodded. "I agree."

"Very well," the judge said. "Ms. Wagner, are you qualified to testify on this matter?"

"Yes," the witness replied. "The prop gun contains a small charge of primer—Armstrong's mixture, I believe—that explodes when the trigger is pulled, simulating a gunshot, albeit without a bullet. Because the prop is designed to simulate only one shot, it has to be reloaded after it's used in the first act. Stark hands the prop to someone on the crew before returning to his dressing room. The prop is returned to his dressing room, ready to be fired again, during the first intermission."

"I see. Mr. Gavin? Your cross-examination, please."

"Yes, My Lord," Gavin replied. "Do you have any idea who the prop was given to on the night of the murder?"

"A part-time worker," Ms. Wagner said. "Maxwell Richardson."

"Do you know if he had any quarrel with the defendant or the victim?"

"He was only hired a month ago, so I doubt it."

"I see. Where does he go to refill the gun?"

"Prop storage."

"Why not just return the gun immediately after refilling it?"

"The primer we use is very sensitive," Ms. Wagner explained. "We want to make sure it doesn't explode by accident unless the curtain is down. Simply dropping the gun can be enough to make the primer go off. While much of the second scene is rather loud, there's still a risk that someone in the audience might hear the gun go off."

"So the gun is returned during the intermission."

"Yes. And Stark was instructed to just leave it in the holster on his costume. If he fidgeted with it…"

"It might go off," Gavin finished.

"Exactly. As far as I'm aware, he did as he was instructed."

"So, from the start of the second act to when my client went onstage for the third act, either the prop gun or the murder weapon was in his dressing room."

"Yes."

"That means, assuming my client did not switch the guns himself, we now have two possible times that the guns were switched: The first is before the crew member returned the gun to my client during the first intermission. The second is during the wallet incident, in which case either you or Mr. Woodman switched the guns."

"That sounds correct," Lana said. "This is, however, assuming that the defendant did not switch the guns himself."

"So, Ms. Wagner, after handing the wallet to Mr. Woodman, did either of you stay in that room?"

"We both left immediately," Ms. Wagner replied. "He went back to his dressing room and I went back to my office."

"And no one else entered my client's dressing room during the second act?"

"No one."

"My Lord," Gavin said to the judge, "I have no further questions for this witness."

"Very well," the judge said. "Ms. Skye?"

"The prosecution has no more witnesses to call," Lana said.

"I see. Then we appear to be at the end. The defense has put forth the possibility of a mistake of fact, but has thus far only proven it to be a possibility. However, we have learned that there was only a small timeframe in which the prop gun could have been switched with the murder weapon, leaving only three possible suspects, excluding the defendant: Virginia Wagner, Rufus Woodman, and Maxwell Richardson. If the defense cannot prove that any of them switched the guns, then I will have no choice but to reject the mistake of fact plea, in which case the defendant will be found guilty of premeditated murder.

"I demand that the prosecution be prepared to summon all three of the aforementioned suspects tomorrow, and request that priority in the investigation go to locating the prop gun and looking into the murder weapon's origin. Ms. Skye, Mr. Gavin? Do either of you have any objections to suspending the trial and continuing tomorrow?"

"No, My Lord," Lana said.

"No, My Lord," Gavin said.

"Then court is adjourned for the day," the judge said with a whack of his gavel.