CHAPTER
17
IN this state a death sentence requires proof that a killing is accompanied by “special circumstances,” especially heinous conduct—evidence of an evil intent beyond the mere taking of another human life. In Talia’s case the prosecution is charging two of these: murder for financial gain and lying in wait.
The preliminary hearing is a circus. We are immersed in the din of the curious—reporters, courthouse groupies, old ladies and retired men in straw hats with nothing better to do, lawyers with an idle hour between appearances. They are all crowded here in department 17 of the municipal court.
Just behind the press seats, there are four good-looking women in their early thirties with stylish tans who have followed the case closely. Tod is with them. They are sending strong signals of support to Talia, who occasionally looks back at them and smiles. These, I assume, are friends, from the tennis or country club.
Talia is drawn and pale. Reports of her arrest in the papers reflected a mere formality, an appearance at police headquarters in the company of a lawyer, me, to be printed, booked, and released on bail—$200,000. For this we used some of the equity in Talia’s house, avoiding the premium that would be collected by a bondsman. Though she is at the moment starved for cash, $200,000 for a woman of Talia’s apparent means is viewed by the players in this matter as a pittance. The court, at least for the moment, is satisfied that my client does not present an overly great risk of flight. In Talia’s case it is a certainty. Everything she holds dear in life is here, in this town.
In the darkening hollows around her eyes, I can see signs of stress. It is as if the trauma of the past several months, Ben’s death, and now the state’s implication of her in that sordid and murky affair have finally begun to take their toll.
The working news moguls are here in strength—graying bureau chiefs for the large metropolitans from the south and around the bay, local reporters stringing for national publications, crews for the three network affiliates, and a sea of reporters from smaller papers—all clamoring for seats in the front two rows.
The klieg-light set and the minicam crews with their belted battery packs are left like waifs outside the door.
There is a man I see for the first time today. He is alone at the other counsel table, closest to the empty jury box. I have never met him, but I know from photos in the newspaper who he is. Tall and dark, a brooding presence with deep-set eyes and a shock of raven-black hair over a forehead etched deep with furrows drooping at the temples toward hollow cheeks. It is a face which might appear noble, even Lincolnesque if masked by a growth of beard. He stands emptying the contents of a worn leather briefcase onto the table: an assortment of books, a single pad of legal-length yellow paper. The sheets at the center of the pad are uniformly impressed to an onion-skin texture by the heavy scrawl of handwriting. Despite the stories I’ve heard from Sam Jennings and others, Duane Nelson does not cut the image of a political hack.
“All rise.” A beefy bailiff to the far side of middle age marches out around to the front of the bench. A heavy revolver slaps his thigh as he walks. “Remain standing. Municipal court of Capitol County, department 17, is now in session, the Honorable Gail O’Shaunasy presiding.”
Those in the aisle scurry for seats.
O’Shaunasy whisks out of chambers and ascends the stairs to the bench, a flash of swirling black robes and authority. In her early thirties, she is the latest rising star on the muni court bench.
“We have a few preliminaries,” says O’Shaunasy.
There is some minor jostling that follows, Cheetam rising and in the affected erudite English of an aging beefcake actor launching a number of pretrial motions. These have been hatched by Cheetam and Ron Brown. They are aimed at excluding evidence—the carpet fibers found at Talia’s house and some shotgun cartridges seized in Ben’s study.
Nelson rises to the occasion, citing chapter and verse the case law for the proposition that a search warrant wasn’t necessary. “Mrs. Potter,” he says, “consented to the search.” Then the coup de grace. It seems that Ron Brown, whose role it was to address all prehearing motions, has failed to inform Cheetam of the court’s forty-eight-hour rule. Cheetam has blown it, delivering his motions to the DA that morning.
O’Shaunasy is clearly angered by Cheetam’s cavalier attitude toward the local rules of court. Parochial as these may be, their willful violation is the fastest way to alienate a local judge who helped write them.
Cheetam pounds the table and speaks of the seriousness of the charges against his client.
O’Shaunasy puts up a single hand to cut him off.
“Mr. Nelson is right. The evidence here points to consent for the search. I’ve read your points and authorities, Mr. Cheetam. I see nothing in the facts which would lead me to conclude that the police had begun to focus suspicion on the defendant at the time mat they visited her home for this inquiry. Is there something I don’t know?”
Cheetam stands, confronted with the law. Unable to say “yes” for want of anything to follow it with, and unable to say “no” for fear of losing on the issue, he says nothing.
“On this issue, this one time, I will overlook your clear violation of the forty-eight-hour rule, Mr. Cheetam. Do not do it again. Do you understand me?”
Cheetam nods like a schoolboy.
“But on the merits I find that the search was pursuant to the defendant’s consent, without duress and before she became the focus of suspicion in this case. Your motion is denied.”
The only one moved thus far by Cheetam’s strategy and argument, it seems, is Talia, who appears almost terrified that the first blood shed in this battle is her own.
Contrary to all that I have been led to expect by Sam Jennings, Nelson is an imposing presence. He projects just the right mix of authority and public benevolence.
The state calls its first witness, Mordecai Johnson, an aging detective with a balding head of gray. Johnson is one of two evidence technicians called to the scene at Ben’s office the night of the killing. He testifies about the hair follicle found in the locking mechanism of the shotgun, and links it not exclusively but close enough to Talia to be damaging.
“Consistent,” he says, “in all respects with hair samples taken from the head of the defendant, Talia Potter.”
Johnson labors only briefly over the blood in the service elevator—just long enough to establish the direction of travel with the body, and raise the implication that Ben was already dead when he was carried into the office.
Nelson’s finished with the witness. Cheetam takes him on cross. Science has yet to devise a universally accepted method for identifying the hair of a specific individual. Cheetam manages to get this admission from the witness.
“Then you can’t say with scientific certainty that the hair found in the locking mechanism of the shotgun actually belonged to Mrs. Potter?”
“No,” concedes Johnson. “Only that it is identical in all major characteristics to samples taken from the defendant.” He sticks the pike in a little deeper.
For all of his famed pizazz, Cheetam is notoriously slow on his feet. With no question before the witness, Johnson is allowed to give a quick and dirty dissertation on the characteristics of hair, the pigment in the cortex, the thin medulla, all identical with the sample from Talia’s head, he says. Cheetam fails to cut him off. All the while O’Shaunasy’s taking notes.
I’m scrawling my own on a yellow pad. Cheetam returns to the counsel table to look at the forensics report. I push my pad under his nose like an idiot board. He pages idly through the report for a second while glancing sideways at my note, then returns to the witness.
“Mr. Johnson, do you know where the shotgun found at the scene was normally stored or kept?”
“I was told, by Mrs. Potter and others, that that particular weapon was usually kept in a gun case in Mr. Potter’s study.”
“At the Potter residence?”
“That’s correct.”
The witness looks quizzically at Cheetam.
“I mean, wouldn’t it be possible that such a strand of hair might be carried through the air, or could have been deposited on the gun when the case was being cleaned or dusted by Mrs. Potter?”
“I suppose,” he says.
“So it’s entirely possible that this strand of hair could have been on this weapon, caught in the locking mechanism, long before the day that Mr. Potter was killed, isn’t it?”
“Possible,” says the witness.
“Nothing further of this witness, Your Honor.”
I tear the page of notes from my pad and crumple it. They won’t make much of the hair at trial, I think.
Ballistics comes on next. The witness, an expert from the state department of justice, testifies about the weight and size of the various shot pellets found in the victim and in the ceiling of Potter’s office. He talks about velocity and the trajectory of the shot that took off the top of Ben’s head. The witness nibbles around the fringes of the monster pellet without actually stating that there was a second shot. Nelson is digging a pit and covering it with leaves.
Cheetam rises to cross-examine. He pops a single question.
“Officer, is it not true that the trajectory of the shotgun pellets from the shot inflicted to the head of Mr. Potter were in fact consistent with a self-inflicted wound?”
“It’s possible,” says the witness.
“Thank you.” Cheetam sits down.
I can’t believe it. Cheetam’s running on the theory that Ben committed suicide. He hasn’t read the pathology report, the fact that Potter’s hands tested negative for gunshot residue.
I can just hear Nelson on close: “And how does the defendant explain the lack of any fingerprints on the shotgun?”
The next witness is Willie Hampton, a young black man, the janitor who heard the shotgun blast and discovered Ben’s body in the office.
Nelson has some difficulty getting Hampton to repeat accurately the details he provided to police the night Ben was killed.
“Mr. Hampton, can you tell this court approximately what time it was when you heard the shot in Mr. Potter’s office?”
“I was doin’ the bathroom, the men’s room, down the hall,” he says. “Ah say it were maybe …” There’s a long pause as Hampton tries to conjure up the details in his mind. Nelson, sensing trouble, stops him.
“Maybe this will help. Do you remember talking to a police officer who questioned you later that evening?”
“Ah do. Ah do remember,” he says.
“And do you remember telling that officer that you heard the shot in Mr. Potter’s office about eight-twenty-five P.M.?”
“Objection, Your Honor. The question is leading.” Cheetam’s on his feet.
“Sustained.”
“Ah remember,” says Hampton. “I heared that shot about eight-twenty-five. It were about twenty-five minutes after eight o’clock. I remember cuz I was doin’ the bathroom and I always do the bathrooms about that time.”
“That’s all with this witness.” Nelson has what he wants. He will stiffen it with evidence that the police dispatcher received the phone call from Hampton before eight-thirty.
Cheetam passes on any cross-examination of the witness, and we break for lunch.
In the cafeteria, over a salad with lettuce browning at the edges, I’m pounding on Cheetam, telling him to drop the suicide scenario. Talia’s listening intently, swirling the tip of a plastic spoon in a small container of yogurt. She is playing with it more than eating.
“What’s wrong with it?” he says. “The state’s gotta show that the victim died as a result of criminal agency. If we can move in the direction that it was a suicide, there’s no criminal agency.”
“There’s only one problem; it doesn’t square with the evidence,” I tell him. This, it seems, is lost on Cheetam. I walk him through the GSR tests and the lack of Potter’s prints on the gun.
All the while Talia is watching the two of us bicker. A look of foreboding is in her eyes, as if to say, “If my lawyers cannot agree, what hope is there for me?”
“Potter was wearing a suit coat when he died,” Cheetam says. “What if he used the bottom of the coat to grip the gun, sort of wrapped the barrel in the coat? This would explain both the absence of prints on the gun and the lack of residue on his hands.”
It is lame in the extreme, insufficient to overcome the wealth of suspicion that has begun to settle on Talia.
“And how did he carry the gun to the office and avoid prints?” I ask.
“Maybe a gun case,” he says, “or a blanket.”
“Then why wasn’t the case or the blanket found in the office? And how do you explain the fact that the cartridge in the shotgun didn’t carry Ben’s prints, if he loaded it himself?”
“I don’t know, maybe he used gloves.” He looks at me, pushing his plate away. “I need a cup of coffee,” he says, and leaves Talia and me sitting at the table alone.
In recent days Talia has taken on the look of a trapped animal, small and frightened.
“There’s no way out of this, is there?” she says. “I’m going to have to stand trial in Ben’s death, aren’t I?”
“It doesn’t look good,” I concede.
She looks out the window for a moment, giving herself time to absorb this news. Then she turns her gaze to me. “Will you stay with me?” she says. “Will you continue to represent me?”
At this moment she is completely vulnerable. I consider the mountain of incrimination rising up before her and my mind fills with images of the death house. Only now it is not Brian Danley twisting and writhing under the straps, but Talia.
“I will,” I say. “I will stay with you as long as I can help, as long as you want me.”
She says nothing, but slides a hand along the table and takes mine. She squeezes. We are finding, I think, at long last a point of equilibrium for us, somewhere between animus and lust.
In the afternoon Nelson calls George Cooper to the stand. Cheetam refuses to stipulate to Coop’s expertise as a pathologist. One open-ended question from Nelson, and Coop begins to narrate his curriculum vitae into the record. O’Shaunasy is fuming on the bench. Ten minutes pass and finally she cuts him off.
“The man is qualified to testify as an expert on issues of medical pathology. Do you have any specific objection?” She looks over her glasses at Cheetam.
“No, Your Honor.”
“Thank God for little favors,” she says.
Coop looks at me obliquely from the witness box and smiles, a little Mona Lisa. This is the same look he uses when we play poker. Coop has one of those stealthy expressions that can mean anything from an inside straight to a pair of deuces.
Nelson wastes no time leading his witness into the well-charted waters of lividity. I suspect that Coop has kept his own counsel concerning our early conversation on the point. It is ancient history now, as the details were well covered in his report which came with discovery.
Coop talks about gravity and the flow of blood, the indisputable fact that the body was moved after death.
Cheetam leans toward me. “Was this in the report?”
I nod.
There is a sober expression on his face as he sees his suicide theory turning to dust.
“Dr. Cooper, can you tell us the cause of death?”
“Death was caused by a single bullet or bullet fragment that lodged in one of the victim’s basal ganglion. This produced,” says Coop, “almost instantaneous death.”
There follows, for the benefit of the court, a brief explanation using anatomical drawings, to show the location of the bullet fragment.
“This is a major nerve center at the brain stem,” says Coop. “This is where nerve cells connect to the cerebrum and from there down the sp
inal column to the rest of the body. If this nerve center is destroyed or disrupted, vital life functions stop.”
“And that’s what occurred here?”
“Yes.”
“You say a bullet caused this trauma to the victim’s basal ganglion. Do you mean a shotgun pellet?”
“No. I mean a bullet, probably small-caliber, fired into the victim’s head, probably at close range.”
There’s a stir in the courtroom. Reporters in the front two rows are taking copious notes.
Nelson pauses for a bit of dramatic effect, as if he is hearing this revelation for the first time.
“Doctor, can you tell us the time of death?”
Coop consults his notes, a copy of the pathology report.
“Between seven P.M. and seven-ten P.M.,” he says. “We fixed it at seven-oh-five P.M.”
“How can you be that precise?”
“A number of procedures,” he says. “The secret is to find the body soon after death. The various degrees of rigor mortis will tell you something. Lividity itself will give you some clues. If the skin blanches when pressed, turns white, the blood has yet to coagulate. This would mean that death occurred within less than half an hour of the examination. If the blood can’t be pressed out of the capillaries, the skin will stay the same dark tone when pressed. The victim has been dead longer. In this case I was able to take the temperature of the liver. This is an organ well insulated by the body. It’s not subject to rapid temperature variations of the outside atmosphere. In this case, I would consider it a precise means of determining the time of death.”
“I see. Then is it your testimony, doctor, that Benjamin Potter was shot in the head by a small-caliber firearm sometime between seven P.M. and seven-ten P.M., and that it was this wound that resulted in death?”
“Yes.”
“Then is it safe to say that the shotgun blast heard in Mr. Potter’s office was not the cause of death?”
“That’s correct,” says Coop.
Compelling Evidence Page 17
