Missing Witness (39 page)

“It's also a little unusual that an indictment would be deemed to be dismissed after a finding of
guilt
in a collateral proceeding in a court, such as the one in London, which technically shared jurisdiction with the American colonies relating to charges of piracy on the high seas. I mean, taking the common parlance—when a defendant goes to trial on an indictment and is found guilty, the indictment, technically, is not
dismissed
. The indictment is only a pending charge—the charging document. Rather, it is
superseded
by the final judgment entered by the court as a result of the guilty verdict. All that's to say that, if there was an error at all, it wasn't in the ‘res judicata' entry. It was in the entry that the indictment was ‘dismissed' following a finding of guilt—if that's what the finding was—in the Old Bailey trial in England.”

MacPherson saw that he was losing ground and wrapped up quickly.

“So, it would be correct to say, Dr. Hope, that the entry of ‘res judicata' in the clerk's notes in Bath, North Carolina, is consistent with the hypothetical that the Old Bailey jury found Isaac Joppa guilty—is that correct?”

Dr. Hope smiled and threw a glance at Will.

“I thought perhaps there would be an objection from Mr. Chambers that your question was leading and suggestive. Perhaps he just figured it was leading in form, Mr. MacPherson—but it's hard to actually
suggest
an answer to an expert in his own area of expertise.”

Then Hope paused a minute to recollect the question.

“In answer to your question, the answer is yes, as I had indicated previously.”

MacPherson rested and quickly scurried back to his table.

“Dr. Hope, it's a pleasure meeting you,” Will said politely.

“And it's good to meet you
in person,
” Dr. Hope said with a smile.

“I want to limit my questions to one single point. Did you testify, on direct, that the reference to ‘dismissal' of the indictment in 1719 before the words ‘res judicata' was
inconsistent
with a finding of guilt in the Old Bailey trial?”

The witness paused for a moment. Virgil MacPherson was moving about uncomfortably at his table.

“What I said was—technically, when an indictment, as a charging document, is dismissed, it normally means something other than a finding of guilt. When a finding of guilt is made, the indictment as the mere charging document, in effect, merges with the judgment. It is superseded by the judgment, which reflects the final determination.”

“So, in laymen's terms, would you agree that the reference to
dismissal
by the clerk in Bath—presuming the proceedings in the Old Bailey Court were communicated accurately to the magistrate in Bath—that the greater probability is that the reference to
dismissal
corresponded to an
acquittal
in the Old Bailey, rather than a conviction—would you agree?”

Now MacPherson was shifting in his chair and tapping his pen on the table.

A longer pause. And then Dr. Hope answered.

“On a scale of probabilities, I would agree with you—that the reference to the
dismissal
of the indictment is generally more consistent with a finding of acquittal rather than finding of guilt—all things being equal—and if those are the only choices I'm being confronted with.”

Will smiled and sat down.

MacPherson scurried to the podium, frantically trying to think of a line of questions to rehabilitate his own witness. By the time he got there, he had thought of one—wasn't it possible, he would ask, that the word “dismissed” reflected the fact that the jury in the Old Bailey had found Joppa guilty of
other
offenses, and that the indictment on
piracy
was the one dismissed? But a moment later, he realized such a line of questioning would be totally fruitless. If the charges of piracy had been dismissed that would completely undermine his entire line of argument.

“Dr. Hope…I have no further questions,” MacPherson said, trying to muster confidence.

MacPherson turned, not without some slight embarrassment, and returned to counsel table, having wasted his trip to the podium.

Dr. Hope scooted down from the witness chair, shook hands vigorously with MacPherson, and then walked over to Will and extended his hand.

“Good to meet you, Will,” Dr. Hope whispered. “I just read the law review article by Dr. Len Redgrove, University of Virginia, about your successful trial before the International Criminal Court in the Hague…fascinating reading…can't say I agree with all your arguments on jurisdiction…but then that's a debate for another day.”

And with that, Dr. Hope gave Will a smile, patted him on the shoulder, and quickly left the courtroom.

Will glanced over at MacPherson, who bore the expression of a man who wasn't sure just how many men he had lost in the last skirmish…but realized he had just yielded control of a small hill.

56

D
R
. M
ANFRED
B
ERKELEY
'
S TESTIMONY
would go to the heart of MacPherson's theory of the case. Berkeley was a professor of American marine history at the University of Connecticut. A tall, stately man with thick glasses and a scholarly air about him, his grasp of the early American shipping trade, admiralty law, and piracy were impressive.

He indicated he was familiar with the grand jury testimony of Henry Caulfeld, the co-owner of the sloop
Marguerite,
which had been attacked and plundered by Teach's pirates. As that of an experienced shipping merchant, Caulfeld's testimony, according to Berkeley, was particularly credible and believable. He witnessed Isaac Joppa's actions on the top deck as purely indicating someone who was acting in a concerted effort of piracy. Furthermore, Berkeley pointed out, Caulfeld understood what it looks like when a ship's crew is taking orders from a higher-ranking crew member.

According to Berkeley, Caulfeld's clear impressions, based on his eyewitness observations, were that Isaac Joppa was in charge of the activity of Teach's ship and was giving orders to a crew that was responding by arresting the
Marguerite,
and then boarding it with the intent to plunder.

Regarding the Williamsburg trial of the remaining pirates of Teach's crew, Berkeley addressed that as well.

“Here the testimony of Samuel O'Dell—although not in pure transcript form, but according to the clerk's notes—indicates some of the important background. An African pirate by the name of Caesar, a right-hand man of Teach, was in the hold of the ship
Adventure,
ready to torch several barrels of dynamite when it looked like the English navy was winning the battle. The order was clearly sent from Teach, who had also ordered, just minutes before, that the
Bold Venture
be scuttled. But Caesar was never able to accomplish this, because Samuel O'Dell and some of the others who were present on Teach's ship jumped him and prevented that. Now this same Samuel O'Dell, who was an innocent passenger on Teach's ship—having
attended a drinking party the night before—clearly indicated that he saw Isaac Joppa in the hold of the ship with Caesar, and that Joppa was not manacled or handcuffed. He was not restrained in any way, and had all the appearance of a free man.”

“Dr. Berkeley, now is it consistent with Teach's usual practice for him to have taken Isaac Joppa prisoner…to have kidnapped him?”

“The interesting thing about Teach—and you have to admire his leadership abilities and his organizational skill, even if he was a notorious criminal—is that he thought through his strategy. He knew how to maximize his attacks on other ships. And he also knew that taking captives was a sloppy way of running business. So his modus operandi was not to kidnap or take hostages. In one instance, he took as a
temporary guest
a fellow by the name of Stede Bonnet, who had himself a pirating background…yet he freed Bonnet shortly thereafter and allowed him to go back to his own ship. That's the way Teach operated. So the argument by Joppa that he was a manacled captive, runs cross-current to everything we know about Teach's pirating methods.”

MacPherson sat down, now satisfied that his case was back on track.

57

W
ILL STRODE TO THE PODIUM
. He had five points he wanted to make, and he would do them rapid-fire.

“Dr. Berkeley,” Will began, “In the grand jury testimony of Henry Caulfeld, true or not true—Caulfeld never testified that Isaac Joppa had any weapon whatsoever, but Caulfeld
did
describe all the other pirates as having either pistols, cutlasses, or other weapons?”

Dr. Berkeley took a moment to look through his notes.

“You are correct. There is no
overt
reference to a weapon by Isaac Joppa. That doesn't mean he wasn't carrying a weapon. It just means that Henry Caulfeld didn't testify he saw Joppa in possession of a weapon.”

“Next point. In the early 1700s there was a ‘pecking order' among sailors—even those engaged in piracy—there was an organization aboard the pirate ships much like on other maritime vessels. For instance, Teach had a quartermaster, a ship's carpenter, a bosun, a first mate, and so forth—the men in those positions were generally picked based on their experience and proven ability. True or false?”

Berkeley didn't need time to answer that one.

“Yes, that's certainly true. We know that's true on Teach's ship. As I indicated, he was a well-organized and highly efficient captain.”

“Next point. The sloop
Marguerite
was plundered by Teach on December 5, 1717—that's when Henry Caulfeld testified he saw Isaac Joppa on the top deck. But that was only two months after Joppa began his journeys with Teach—because just two months earlier, in October 1717, was when the
Good Intent,
with Isaac Joppa as passenger, was captured by Captain Teach?”

“I'm not sure I understand your point…”

“The point is, that as of the date of the plundering of the
Marguerite,
Isaac Joppa had only been with Teach's gang for two months. Is that correct?”

“Yes, taking those dates…that's correct.”

“Would you agree that it's highly unlikely that the experienced group of seamen on Teach's ship, let alone Edward Teach himself, would have taken a novice sailor like Isaac Joppa—with whom they had only sailed for two months—and put him in a position of authority at the time of the plundering of the
Marguerite
?”

Berkeley took a second to think about that one.

“Somewhat unlikely…but certainly not impossible. Joppa may have done his best to impress Teach with his sailing ability. Perhaps that's the explanation.”

“But Isaac Joppa's sailing experience was limited. He had only been on the
Intrepid
a short time before he deserted. Is that correct?”

“Yes, that is correct. But Joppa may have lied to Teach and bragged about his sailing experience and tried to impress him so he could get a position of authority…to gain a bigger portion of the plunder.”

“That's speculation on your part—isn't it, Dr. Berkeley?”

“That is somewhat speculative, that's correct.”

“Next point. You referenced this Stede Bonnett as being taken as a ‘temporary guest' of Teach, but then Teach, as a friendly gesture, simply released him back to his own ship. That incident occurred during the blockade of Charleston, South Carolina?”

“Yes, that's absolutely correct.”

“During that blockade,” Will continued, now speaking more rapidly, “at the zenith of Blackbeard's power, he manned several ships with hundreds of pirates, and they were able to literally blockade the entire port of Charleston until the local community finally gave them their requested medical supplies, correct?”

“You have your history accurate, Mr. Chambers. Which again goes to my point about Edward Teach's audacity, as well as his military skill in closing down an entire port city.”

“But your point in your testimony today is that Teach generally did not take hostages, correct?”

“I said he didn't kidnap people and keep them captive…”

“But isn't that exactly what he did at the blockade of Charleston? He took a group of people hostage until the community acceded to his demand for medical supplies?”

“Temporary hostages only, Mr. Chambers
. Temporary
hostages.”

“Dr. Berkeley, you have indicated your respect for Teach's leadership and organizational abilities, and his ability to win over his men and engender great loyalty in them. Is that correct?”

Berkeley nodded and smiled.

“Yes, he was a notorious criminal, but I have indicated that he was a talented man, certainly.”

“And this same talented man, Edward Teach, according to at least one historical account, married a local plantation owner's daughter in the Bath area—and then on his wedding night, invited half of his pirate crew into the bridal room so they could take turns raping her?”