Compelling Evidence

by Steve Martini

  “But she might have known,” says Skarpellos.

  It’s too late and Nelson knows it. His expression has fallen like a dark angel.

  “But you don’t know that she knew?”

  “You have to assume that a husband would tell his wife, if he’s planning on divorcing her.”

  “We’re not here to assume anything, but to find out what you know and when you knew it.”

  To this I get two dark Mediterranean slits. The proverbial “if looks could kill.”

  “Are we finished?” he asks.

  I look over at Nelson, who waves me off.

  “I think we’re done.”

  “Good,” he says.

  The court reporter retrieves her notes and begins to close up her machine.

  Skarpellos is still burning inside. I can see smoke around the ears.

  Time to put the lance in, to see what’s bubbling under the surface.

  “Tony,” I say. “Tell me. How much do you stand to inherit from Ben’s estate if Talia takes the fall in this thing?”

  His head snaps toward me. He’s out of his chair. Nelson’s got him by an arm. Harry’s got a hammerlock.

  “You little shit,” he says. His tone has all the acid of vinegar. “You can’t believe,” he says, “that Ben failed at even one thing in life?”

  Nelson’s trying to pull him toward the door. The Greek is giving more than passive resistance.

  “Oh, I can believe that,” I say. “I just can’t believe that he would take someone like you into his confidence.”

  This spawns two lashing arms. The Greek drags Nelson and Harry toward the other side of my desk. Delia’s guarding her stenograph machine, blocking Skarpellos with her body. She’s earning her per diem.

  “Sonofabitch,” he says. “Open the record. I’ll give you an earload, you prick.”

  “Shut up, the two of you.” Nelson’s got his hands full trying to keep him off of me.

  I have no intention of going back on the record. Despite the common perception, a deposition is no exercise in truth finding. It’s an effort to redraw the facts in terms most favorable to your side. And for the moment I have what I want, a concession that the Greek can’t put Talia and Ben in the same room talking about divorce. Skarpellos has gone ballistic, perhaps more truth than I want on paper. I take little mental notes of what he says, and gauge the temperature of his combustion for future reference.

  “You always put him on a fuckin’ pedestal.” Tony’s screaming about Ben. A lifetime of envy spilling all over my desk. “Well, he wasn’t perfect. He had a fucked-up marriage. He was porkin’ one of the girls in the office. Didn’t know that, did ya, asshole.”

  They’re making headway toward the door. Nelson and Harry have him leaning backward. Harry’s got the door open, his knee wedged against it for leverage as he pushes the Greek through.

  “He was fuckin’ the hired help. Put it on the record, why don’t you.” Skarpellos is ranting like some animal in heat. “Put that in your damn statement, why don’t ya?”

  I can see Dee at her desk, looking at me, round-eyed, wondering what I’ve done to this witty and wonderful man.

  Nelson has wrestled him toward the outer door. Skarpellos breaks free, but doesn’t come back at me. He’s regained enough composure, now looking around, coming down to earth, realizing that he’s the center of attention for four other people in this office, a little nonplussed. He’s flushed, his face red like a beet. He struggles to pump up a little dignity, straightens his coat. One panel is ripped at the seam on the back by the shoulder blade, something from the Incredible Hulk. Italian worsted and he’s wearing it sideways. He jerks on his tie. A lost cause.

  Tony looks at me through the open door. “I’ll see ya in court, asshole.”

  “Looking forward to it, Tony.”

  He’s out the door.

  Nelson looks at me. I know what’s going through his mind: a witness he can’t control, whether to put Skarpellos on the stand at all. But that ship has now sailed. If he doesn’t call the Greek, I will.

  CHAPTER

  27

  APPREHENSION, about yourself, about your client, about the quality of your evidence, and about the seeming flaws of your opponent’s case—all of these are afflictions that plague the lawyer on the opening day of trial. Take each of them and double them down in spades when you are dealing in death, fending off a capital case.

  For me it’s been more than six years since the stakes have been so high; longer for Harry.

  There are butterflies the size of pterodactyls soaring in my stomach. I am charged by the electricity of nerves down to my knees as Harry and I assemble our files of notes and the few reference works we will need at the counsel table. We work at this in silence, each of us dealing with our own demons of doubt.

  These nerves, I have concluded, are universal, perennial. They come with every trial, to every lawyer. The more poised have merely learned to cloak them with the grace that accompanies experience.

  “Are you ready?” Harry asks me.

  “As I will ever be,” I tell him. My mouth is dry, parched. I reach for the water glass and fill it. Take a little sip.

  I’ve had to restrain Talia, to keep her from Tod, who is outside in the corridor, to hold her here at the table with Harry and me. It won’t do to have the press taking social notes of her open courtroom conversations with other men, worse if the jury sees them. An innocent scene will take on whole new meanings once the state hops upon its horse of conspiracy.

  Harry’s been giving Hamilton a wide berth, eyeing him with a suspicion that is palpable, since our conversation regarding Tod’s string of indiscretions with Talia. He has me wondering if indeed there is a more calculating side to the man. If Hamilton knows more than he’s saying, anything that could exonerate Talia, and he is withholding this, then his affection for her is a carefully crafted facade. Harry has raised the issue with me—whether it is love or avarice that fuels Tod’s desire for Talia. There are gold diggers and worse who are so bold, who might wait in the wings, even at some jeopardy to themselves, for this woman and what she stands to inherit if she wins.

  Tod has appeared for his lineup with the cops, to be ID’ed by their motel clerk. But the police have been amazingly quiet since. He’s not been arrested or questioned further. Maybe the clerk is blind, I think. It’s more likely that Nelson would prefer to spring this trap during the trial, when we can no longer prepare.

  In the first rows, immediately behind the prosecution, are the assembled press, busy soaking up color with their pens and slender notebooks. The artists with their large drawing pads have laid claim to the end-row chairs, for a little elbow room.

  The rest of the chairs in the courtroom, the largest one in the building, have been set aside for prospective jurors. The public will have to wait until after we have a jury for admission.

  The court reporter is ready, poised at her little machine. Harriet Bloom, Acosta’s clerk, is busy at her desk shuffling papers.

  From the back behind the bench, Acosta comes out swiftly. A rush of rustling black robes, he ascends to the bench.

  “All rise.” The bailiff is at his station.

  The judge settles into his high-back chair and takes quick stock of those in his courtroom.

  “Department 16 of the superior court is now in session, the Honorable Armando Acosta presiding. Be seated.”

  The judge adjusts his glasses, half-frame cheaters that perch toward the tip of his nose. He nods that he is ready, and the clerk calls the case.

  A little silence to set the stage, and Acosta takes over.

  “The jury clerk informs me that we have a larger pool than usual of prospective jurors for this case.”

  It seems they’ve gone out of their way, anticipating that with the pretrial publicity and no change of venue, we will bump a good number selected from the voters’ rolls.

  It’s conventional wisdom in the law that in a criminal case the defendant’s fate, like steel reb
ar in concrete, is fixed with the selection of the jury. This is, I think, one of those truisms that become prophecy only after the result is known, when the trial is over.

  But I’m taking no chances. My early concessions in avoiding a change of venue were not, after all, motivated by civic spirit. I’ve exacted a little quid pro quo, in a motion crafted by Harry, over Nelson’s hearty objections and to his considerable chagrin. Acosta has agreed that if the defense is not satisfied with the fairness of this panel, at the proper time he will consider a few extra peremptory challenges, for us and the people. This is his effort at a little hydraulics to level the playing field, following all the adverse publicity against Talia.

  To a lawyer in jury selection the peremptory challenge is like a Stinger Missile, used to blow an objectionable juror out of the box without need to show cause, bias or otherwise. It is to be guarded jealously and used with discretion. In this state each side is allowed ten peremptory challenges in most cases. But in cases where death may be the ultimate penalty that number is doubled.

  “Before we call in the jury, Your Honor, the state has one matter,” says Nelson. “A motion in limine.”

  Acosta looks up. “Here or chambers?” he asks.

  “Chambers would be best, Your Honor.” This means it is something Nelson doesn’t want the press to know.

  There’s a noticeable groan from the pool in the front row. A lot of grousing. Pens poised, not even started and it’s downtime already.

  I’m wondering what problem Nelson is hatching for me.

  The judge is down off the bench, Nelson and Meeks behind him, Harry and I taking up the rear.

  In chambers Acosta doesn’t bother to take off his robe. If he has his way this will be a brief gathering.

  “What is it?” he says. There’s a little impatience in his voice.

  “Your Honor, the people move to quash the subpoena issued by the defendant for trust records from the Potter, Skarpellos law firm. The defense is on a fishing expedition,” says Nelson. “These records are irrelevant to any issue bearing on this case.”

  Acosta looks to me. “I’ve wondered about that myself,” he says. “How about it, counsel?”

  “We’re fully prepared to make an offer of proof, Your Honor.” This is a little demonstration, an explanation of how these documents bear on Talia’s defense, to satisfy the court on the issue of relevance.

  “Just tell me,” he says. Acosta doesn’t want to take the time to pull the court reporter into chambers or clear the courtroom for an argument on the record. I will insist if I lose.

  “Your Honor, we have reason to believe, based on credible testimony of a witness we will produce during this trial, that the client trust account in question will reveal serious imbalances, trust deficiencies that are the direct result of embezzlement.”

  Nelson looks at me in wonderment, like “So what?”

  “We believe that these trust deficiencies are directly linked to the motive for the death of Ben Potter and bear directly on my client’s innocence,” I say.

  Nelson’s looking at Meeks, who makes a palpable shrug with his shoulders—it’s a mystery to him.

  I’ve carefully measured my argument. As few revelations as possible.

  Acosta looks to Nelson, who stands silent.

  “Motion denied,” he says. “I’ll allow the subpoena to stand.” Then he looks at me, more severe this time. “Admission will be subject to a showing of relevance at a later time, by your witness,” he says.

  “Understood, Your Honor.”

  “Good. Then let’s get a jury.”

  I look at Nelson, who’s making a face at Meeks. The copiers at Potter, Skarpellos will be busy this night. So will Jimmy Lama, gathering excerpts of these records for Nelson’s accountants. I have already called my own and told them to get ready. I will need a rapid turnaround on an audit.

  Acosta’s back on the bench, business settled in chambers.

  In this county we use the jury selection process known as the “six-pack,” three rows of six, in the jury box.

  “We’ll have the first eighteen,” says Acosta.

  The clerk calls the first eighteen names from the jury list. Like sheep at the shearing, they file up from the audience and into the jury box. The rest, another 282 souls, sit and watch, to see what’s in store for themselves. Eleven women and seven men take their chairs. The demographics are already cutting against us.

  There is a proclivity for older females, retired military types, and telephone company workers on juries in this county. I am leery of each. These people have seen too much of the inside of courtrooms for my liking. Utilities, it seems, love to do their civic thing, sending their people in droves, paying them their full salary while on jury duty. A conspiracy, I think, on the part of big business to whittle down civil judgments; these people spill over and show up too often on the criminal side now that I am doing the defense.

  At best, even with the most scientific of approaches and tools, the selection of a jury under our system is a crapshoot of the most random variety. I have read and studied every method, from the high-priced tort sharks with their theories of body language and human paramessages, to the corporate gurus who do their voir dire while some shrink whispers psychic sweet nothings in their ears. In the final analysis, the passing upon any prospective juror comes down to your lawyer’s gut.

  Factors that make any single juror desirable on one level, with regard to one aspect of your case, can make him the enemy on another. These are the psychodynamics of human bias multiplied by twelve. The unforeseen twists that are common to too many trials can, in one bad day, turn the best jury into a hanging mob.

  A full quarter of the good citizens called for jury duty in this country show up at the courthouse already harboring the belief that criminal defendants wouldn’t be there unless they were guilty, though on penalty of death these jurors would never admit this in open court.

  Harry and I know there are definite parameters to our jury in this case. Most women are likely to hang a scarlet letter about Talia’s neck. They will never condone her infidelity, or the relationship of convenience that was her marriage.

  Red-blooded males, on the other hand, can empathize, not with Talia, but with her lovers. They can fantasize about themselves with this woman, and in so doing forgive her for her indiscretions. The younger the better, I think. The minds of youth are not yet warped by convention.

  In my wildest dreams I have mused on the perfect jury for this case, a panel of young, single males, twelve fraternity jocks squirting prurient hormones.

  As we begin, Harry is endlessly turning his pencil, sliding it through his fingers, eraser to point and back again on the table. This first part belongs to the court.

  In cryptic terms Acosta summarizes the case and performs a little precursory examination, not directed to any of the veniremen in particular. This is general stuff, designed to short-circuit some of our questions.

  He spends a good deal of time on hardship. “This is likely to be a long trial; if there are reasons why any of you might have difficulty serving over an extended period, this is the time to tell me.”

  Three hands go up like rockets, women with small children; two of them are juggling kids and a job.

  Acosta shoots them all down. “These are not hardships,” he announces. “You have a civic duty. Jury duty is a privilege.” This from a judge with a live-in maid. Acosta’s making a little show, to set the tone for others in the audience, a message that their excuses had better be good. As a practical matter, all sides flush with peremptories, it is likely that few if any of these will survive to make the final cut.

  He moves on to other subjects: Do they know the defendant? Do they know any of the attorneys? Have they read extensively of the case?

  One woman raises her hand.

  “And what have you read, madam?”

  “The papers,” she says.

  “I think we’ve all read the papers. What in particular?”

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sp; “Where it said she was guilty.” The old lady is holding her hand close to her breast, pointing with her finger a little tentatively at Talia, as if she’s not sure whether this pretty woman is the defendant.

  “I must have missed that story,” says Acosta. “Where did it appear?”

  “I can’t say as I remember.” The lame cop-out of a juror anxious to go home.

  “I see. And you believe that this would interfere with your ability to objectively judge the evidence in this case?”

  “I don’t know,” she says. “I can’t be sure.”

  “I would encourage you to put it out of your mind,” says Acosta.

  “Your Honor.” I’m on my feet, looking down at a piece of paper with little grids, a name in each, corresponding to the jurors in the box. Harry and I have made these from the jury lists, using the numbers assigned to each juror. “I move that Mrs. Douglas be dismissed for cause.”

  “Mr. Madriani, if we do this for every witness who has read about the case we’ll end up funneling the entire population of the county through this courtroom and we’ll never find twelve.”

  “Your Honor, the juror says she isn’t confident of her ability to judge the evidence objectively.”

  He humors me on this point, but makes clear that I should not view this as any precedent. He will judge the jurors, for cause, on their individual responses.

  I tell him I understand.

  “Very well. Mrs. Douglas, you’re dismissed.”

  One down, I think.

  She files out and passes her replacement on the way. Harold Parry takes her chair. He is fifty-five, looking seventy, in a string tie. No frat brother, but perhaps still capable of fantasies. I look at Talia, sitting impassively, glowing in the chair next to me. Yes, I think, Mr. Parry can dream.

  It is after lunch, edging on toward mid-afternoon, before Acosta finishes these preliminaries and turns the jury over to the players.

  We work through the jurors, give and take; me first, then Nelson.