I have him look at a copy of this letter. I have subpoenaed this too from the bar. He identifies it as the one signed by him at the meeting.
“After you signed this letter, did Mr. Liston give you your money?”
“That’s all he gave me,” he says. “My portion of the settlement, less their third, and no interest. They kept my money for a year and a half, and didn’t pay a dime of interest.”
“You didn’t sue them?”
“I considered myself lucky to get out of that den of thieves with anything,” he says.
Nelson considers whether he should object to this. He’s halfway up, then thinks better of it. We may argue over Plotkin’s characterization, but the facts are clear, more than a little larceny has in fact occurred.
I have the second letter, the one withdrawing the complaint marked for identification, and move both letters, the complaint and its withdrawal, into evidence. There is no objection from Nelson.
“Your witness.” I look at Nelson.
He confers with Meeks, only for a second. “We have no questions of this witness,” he says. “But we’d like a conference in chambers.”
Acosta looks at his watch. “It’s time for a morning break. We’ll take a half-hour,” he says.
Nelson can see that I am digging a deep hole for the Greek, converting what had started as a sideshow into the main event. My auditor is next. He has facts and figures to document every discrepancy in the firm’s trust account for the last six years. This will lay a bold mental bracket around the Greek’s financial indiscretions for the jury. We have identified more than a half-million dollars that has been “borrowed” at one time or another, all of it against checks bearing Tony’s signature. Not all of this money has been paid back. It seems that Skarpellos had been more relentless in his abuse of these trust funds than even I had imagined. He had operated a considerable Ponzi out of the firm’s trust account for years. In thinking back, Ben had never given me any real indication of the magnitude of this theft.
This evidence begs a nagging question: whether Ben knew about and tolerated these practices for years, and complained only when his own ambitions were placed in jeopardy. I consider this and wonder, as one often does about those now departed, whether I had known him as well as I thought.
Acosta speaks first. “I would like to save some time,” he says. The court reporter’s stenograph keys are tapping softly.
Nelson nods. They have concocted something between them. It doesn’t take a mental giant to see this.
Nelson speaks as if on cue. “We will stipulate,” he says, “that Mr. Skarpellos appears to have engaged in reprehensible conduct.”
“Clear violation of bar ethics,” says Acosta. He’s shaking his head, his features all screwed up, an expression of disgust that is aimed at convincing me that I have now made my point on the Greek, that anything more is just overkill.
“We’re consuming a great deal of the court’s time on this,” says Nelson.
“Now that you have your case in, time is suddenly of the essence?” I ask him.
There is a rule concerning cumulative evidence, facts which are redundant, all tending to prove the same thing. Judges have broad discretion to exclude such evidence in the interest of time, and Nelson makes clear that this will be his objection if I persist with my accountant.
“We think this is more than a little cumulative,” says Meeks, trying to help his boss along. He cites Plotkin’s testimony and Tony’s own babbling bordering on admissions as examples of this.
“We?” I look at him.
“Mr. Nelson and I.” Meeks runs quick cover for the judge, as if Acosta has no hand in this and is hearing it all for the first time.
“I’m not trying to cut you off,” says Nelson. “Please understand.”
“Yeah, God forbid,” says Harry.
Nelson shoots him a little quick contempt. “You’ve been given wide latitude by the court.” He looks at Acosta, who nods, like this is a point well taken. “It’s just that we could save some time if we were to enter into a few stipulations.”
This is a tactical move by Nelson to take the sting out of much of this evidence. I suspect that the state’s auditors have been as busy as our own. Nelson would like to keep this out, but he can’t. The next best thing is some orderly and wooden way of placing this evidence before the jury, some dull rendition that will take the luster from it, that will put the jury to sleep like the repetitious prayers of a rosary.
“What do you propose?”
“We will stipulate,” Nelson says, looking at notes now, “ … that during the two years immediately preceding the death of Benjamin Potter, Tony Skarpellos withdrew approximately two hundred and twenty thousand dollars from the client trust account of Potter, Skarpellos, Edwards, and Hazeltine. That these withdrawals appear to have been unauthorized, and that the funds appear to have been diverted to personal use. I think this would cover the point as well as any evidence you could introduce,” he says. “Of course, you understand that these stipulations would be binding only in this case. They would have no effect on Mr. Skarpellos.”
“Of course,” I say.
Acosta’s looking at me and nodding, licking his chops, like this could save him a whole half-day. But we all know what this is about. It is about convicting Talia. Tony Skarpellos is looming larger in the minds of the jury with each passing witness, the motive for murder more compelling.
Harry’s scrambling, looking through our notes to see if there are any other bombshells that Nelson’s stipulation doesn’t cover.
“Your Honor, we’d like a fair shot at putting this before the jury,” I say.
“Mr. Nelson’s stipulation would appear to do that.” The Coconut is all mellow, like melted Brie. He speaks in tones that drip reason and goodwill.
“In all deference to opposing counsel,” I say, “this is not fair. We must be allowed to develop our case for the defense.”
“I am persuaded,” says Acosta, “that this is cumulative evidence.” This brings it within his broad discretion, to rule that our accountant can be hobbled, blocked at every turn by objections from Nelson. To this we would have no appeal. It is either play ball or they will cut us up in little pieces.
So I bargain with them. “Our other witness,” I say, “Mrs. Campanelli, must be allowed to testify fully as to her knowledge of the dealings between Mr. Skarpellos and the victim.”
Nelson looks at Acosta. He is not happy. But there is no way that they can bar this testimony. It is in no way cumulative, but new evidence of heated argument and confrontation between Tony and Ben. Under our theory, this argument is the spark that ignited murder.
“Agreed,” says Nelson.
“Good.” Acosta is happy. Another decision he will not have to make.
The Coconut reads in a monotone, like some bovine in heat. Nelson’s stipulation is put into the record, for the jury to hear. There are a lot of question marks, puzzled faces beyond the jury railing. But Robert Rath, my alpha factor, is taking notes. I think this little escapade by Nelson may backfire. With Rath to explain the significance behind closed doors, this stipulation leaves little to the imagination. It is now carved in stone that for our purposes here, Tony Skarpellos has shamelessly raided the client trust account—a major cog in our case.
“I don’t care what you say. I am going to testify. I have to,” says Talia.
Talia is insisting that I allow her to take the stand. She is chain-smoking again, against my advice. But this is something that, I sense, is now beyond her control. There are paroxysms of anxiety here, manic episodes, elevated and expansive moods followed shortly by irritability and depression. These swings seem to be associated with no particular success or crisis in the case. Instead, I think, they are attributable to the fact that as a verdict draws near, Talia is increasingly an emotional basket case.
“You can’t testify,” I say. “Nelson would eat you for lunch.”
What is difficult is that this is her call.
As her attorney, I hold the strings. I can decide what witnesses we call, what evidence we submit. But the defendant’s right to testify or not is hers and hers alone. I counsel her against it. I tell her I will not participate in perjury.
There are cases in point in this jurisdiction. A lawyer who knows his client is about to lie on the stand does not withdraw, but by leave of the court may sit idle at the counsel table and watch as his client weaves a narrative. In refusing to participate, the lawyer upholds his duty as an officer of the court. Inquisitive jurors of course wonder what is happening, and in due course form their own opinions. It is usually a disaster. I tell her this.
I try to steady Talia. Calm her. I tell her that she is suffering a major case of judgment jitters.
Except for those so strung out on drugs that their brains are fried, every defendant gets these jitters as a verdict draws close. With Talia, this tension manifests itself in a need for control. She is desperate to help her own cause, paralyzed by the lack of mastery over her life.
We argue. I insist. I cannot put her on the stand. She has lied to the police about her alibi. I tell her that this would mark her as something less than trustworthy with the jury on every aspect of her testimony. With this revelation as a club, and three nails, I tell her, Nelson would nail her to the cross. He would break her back on cross-examination, inquiring into every aspect of her evening with Tod. Did they sleep together? Did they make love? It would not be a quantum leap in logic for Nelson to lead the jury to question whether Tod and Talia had not in fact teamed up to murder Ben.
“I don’t care,” she says. “I will tell them the truth. It was a mistake to lie to the police. Everybody’s entitled to one mistake.” There’s another cigarette between her fingers; the first, only half smoked, was crushed out less than a minute ago in the ashtray on my desk.
“If you testify,” I tell her, “they will convict you.” I muster all the authority possible in my eyes as I deliver this prediction. I don’t often engage in clairvoyance, but in this case I make an exception. Such is the certainty in my own mind on this point.
“What will they think if I don’t get up and testify on my own behalf? Friends have told them that I am trustworthy. What kind of person allows others to speak for her and refuses to say anything herself?”
“They will be instructed not to consider this,” I tell her, “told by the court that they may draw no inferences whatever from your silence.”
“And you expect them to accept this?” she says.
I won’t tarry with her on this point. She has the better side of the argument, and we both know it. So I play devil’s advocate.
“We have already talked about your alibi in the trial,” I say, “during Canard’s testimony.” I remind her how I pushed the detective on the details of her car, the capacity of its fuel tank, the fact that she may not have been sufficiently hungry to stop for a meal on her return from Vacaville. These were explanations as to why the cops couldn’t verify her trip that day.
“If we backtrack now,” I tell her, “there will be a clear trail, an unbridled implication of deceit.” My questions to Canard were sufficiently abstract not to be considered perjurious. But jurors might consider this beyond the bounds of good advocacy. They might see this line of inquiry for what it was, an exercise in misdirection. Jurors don’t like to be lied to or misled. They have been known, on more than one occasion, to punish defendants for such license taken by their lawyers.
“We have crossed this river of fire,” I tell her. “We cannot go back.”
Resignation is written in her eyes. She knows I am right. But for the first time I sense something more in her expression, something which has not been there before, a lack of confidence, not in herself, but in me. She is wondering if, in causing her to make this decision, I may have consigned her to prison for the balance of her life, or worse, she is wondering if perhaps I am condemning her to death.
Jo Ann Campanelli sparkles this morning. Decked out in a suit she’s probably not worn since leaving the firm, she is our last witness, here to provide the coup de grace, to turn the last screws in our case against Skarpellos.
With makeup, sans the cigarette and hair net, Jo Ann looks twenty years younger than when I spoke with her at her house two months ago. Her nails are polished and manicured. Her blond hair, even with its streaks of gray, is so carefully coiffed that it is clear she has spent both time and money preparing for this appearance. She wears the obligatory silk scarf, tied in a bow about her neck. It seems that during her time out of the loop, no one has told Jo that this fad has passed. Though she hasn’t seen the inside of an office in nearly a year, on this morning Jo Ann Campanelli is the very image of commercial efficiency.
We lay the groundwork quickly, her history with the firm. I expose the fact that she no longer works there, that after twenty years of faithful service she was summarily discharged shortly after Ben Potter’s death, that she had to retain another lawyer to secure her retirement. We hit this head-on rather than hiding from it, in hopes that this will take the sting out of Nelson, who is sure to hammer on the theme that Jo Ann is here for vengeance.
Jo describes the armed camp to which the firm was reduced in the days following Ben’s death. She likens this to working in a police state. I take her back to the week before Ben’s murder, and set the stage, the argument in Ben’s office.
“Did the partners argue often over business?”
“In the last months, before I left, there had been a number of heated arguments,” she says. “Things were not going well in the firm.”
Jo Ann talks about the growing hostility between Ben and Tony, Tony’s overt jealousy that manifested itself in ways obvious to her and other employees.
I take her back to the argument between the two men only days before Ben was killed.
“I couldn’t help but hear it. There was a great deal of yelling—and name-calling,” she says. “My desk was directly outside of Mr. Potter’s office.”
“How long did this argument last?”
“The meeting went on for twenty minutes; that’s how long Mr. Skarpellos was in Mr. Potter’s office. The argument, the portion I could hear, lasted five minutes, maybe longer.”
“Could you make out any of what was being said?”
“Mr. Potter called Mr. Skarpellos a thief—I think his words were ‘a goddamn thief.’ ” She looks at the jury to make sure they’ve caught this nuance.
“Did Mr. Skarpellos say anything?”
“Mr. Potter did most of the talking. He sounded very angry. At one point I did hear Mr. Skarpellos say something about money, that he would get the money and put it back right away.”
“Did you hear anything else?”
“Just Mr. Potter telling Mr. Skarpellos to get out of his office.”
“Did he leave?”
“Like he was shot from a cannon,” she says.
There’s a little laughter in the jury box, just a titter.
This is the pecking order I knew in the firm. The Greek fed on minnows like Hazeltine and the junior associates, but was no match for Ben, particularly when Potter was angry.
“What did Mr. Skarpellos look like when he left Mr. Potter’s office that day?” I ask her.
“Red in the face, crimson, you might say. Mr. Skarpellos had a nickname among the staff,” she says. “We called him the Red Leper. When he got angry or embarrassed his face became very red, flushed, you might say.”
“Why the Red Leper?” I ask.
“When he was like this, you didn’t want to be around him.”
More laughter in the box.
“Did he have a bad temper?”
“Objection, calls for speculation.”
Before Acosta can rule I reframe the question. “Did you ever see him lose his temper?”
“A number of times.”
“Did you ever see him become violent?”
“Once I saw him throw a book at one of the associates.”
I raise my
eyebrows a little, while facing the jury.
“He missed,” she says. It seems his aim was as bad as his temper.
“On the day of this argument in Mr. Potter’s office, did you have occasion to talk to Mr. Potter after the argument?”
“I did.”
“What did you talk about?”
“He called me into the office and asked me to take a letter.”
“Did this letter have anything to do with the argument—between Mr. Potter and Mr. Skarpellos?”
“Objection, hearsay,” says Nelson.
“If the court will admit the testimony subject to a motion to strike, I think you will see, Your Honor, that this is not hearsay.”
Acosta waffles a hand at the bench. “I’ll allow it, subject to a motion to strike.”
Nelson resumes his seat.
“It was to Mr. Skarpellos.”
“Do you recall what the letter said?”
“Mr. Potter was trying to confirm their earlier conversation.”
“The argument?”
She nods. “Yes. The letter accused Mr. Skarpellos of taking large sums of money from the client trust account. It stated that Mr. Potter had just discovered this and that he had instructed Mr. Skarpellos to return the money within forty-eight hours, or else Mr. Potter would be honor bound to report the matter to the bar.”
“Objection, motion to strike,” says Nelson. “This is clearly hearsay, Your Honor. Mr. Potter’s out-of-court statement cannot be admitted. He is not here to be cross-examined.”
“Not at all,” I say. “It has already been established, by Mr. Nelson’s stipulation read to the jury by this court, that Mr. Skarpellos is deemed to have taken large sums of money from the client trust account. This testimony is not being offered to prove the truth of the matter stated—that Skarpellos took the money. That is already proven, by the generous agreement of the district attorney. This testimony is being offered to show Ben Potter’s state of mind, that he was aware, or at least believed, that his partner had taken such sums from the trust account. State-of-mind evidence is not subject to the hearsay rule, Your Honor.”
Compelling Evidence Page 44
