Acosta took nearly two hours to charge the jury, using the list of instructions from our conference in chambers. These were read in a slow, methodical manner, framed in English that a grade-schooler could understand.
True to form, he did not embellish on these instructions or seek to explain or interpret them further. These little nuggets of the law have been crafted by legal scholars, most of them tested in the appellate courts, whittled and refined, until they can stand the test of time.
The jury took the little pile of forms from the clerk, the ones for their secret ballots on the verdict, with boxes marked “guilty” and “not guilty” printed on them. What takes place behind closed doors is now shrouded in secrecy, like the college of cardinals before signaling the world with its chimney of white smoke. No one beyond the twelve souls now locked in that room will know with accuracy what happens there.
Back in my office Harry finds the bottle in the bottom drawer of my desk, the good stuff, Seagram’s V.O. He holds it up, offering to clean glasses for us all. Tod and I swear off, but Talia says yes. At this point, she needs it. Harry is off, down the hall, looking for a little ice. One of the tenants has a small refrigerator in his office. To the drinkers on this floor, this machine has become a communal thing, like an oasis in the desert.
There’s a large canvas mailbag in the corner of my office. It has been there since the prelim, and since that time I have been dropping letters into its dark hole each day. These are from people who have been following this case in the news, in their morning papers and on the tube. It is always a mystery to me that people, presumably with busy lives, have time for this. I have shown the best of these letters to Talia—those wishing her well, confident of her innocence. I have saved some of the best for deep moments of depression. The death threats, some filled with obscenities, I have dropped in the dingy bag.
There are stacks of paper on my desk, four of them as thick as telephone books. Most have envelopes stapled to open letters, a sorting of the mail by Dee. These are correspondence, client letters, bills, motions for discovery in cases I have not thought about in weeks, all waiting for attention behind Talia’s trial. Harry has been putting out little fires on my desk, dealing with the urgent stuff since the trial began. I paw through the first stack, trying to clear the easy pieces away, items I can put Post-it stickers on, with notes to Dee for filing.
“What are my chances?” she says. Talia is looking at me across the desk, large oval eyes of emerald. Tod is in one of the client chairs. It is the first time she has asked this since the jury was empaneled.
I want to tell her that it will be all right, that she will walk away from this a free woman. But I know better than to try to predict what any jury will do. It would be easier to call the six numbers of this week’s Lotto mania.
I tell her this, but cloak it in a few rules of thumb, little psychic rafts of security she might cling to. “The longer they stay out the better for us,” I say. “A sign that perhaps one or more of the jurors is holding out.”
“A hung jury?” says Tod.
“Who knows.”
With this her expression sags.
“That’s the best we can hope for, after all of this, a hung jury?” She looks at the two of us. Her confidence in lawyers has just slipped several notches.
“It’s impossible to know,” I tell her.
She nods, like perhaps she accepts this. But I know better.
Harry is back with two glasses and some ice. He pours Talia a stiff drink, mixed with a little water. His own he takes straight.
In the first stack of papers is a letter from Peggie Conrad, the paralegal in Sharon Cooper’s case. There are a number of papers here, things for me to sign in order to finalize this probate that is still hanging fire. They are all paper-clipped together, a thick packet.
Harry does a one-cheeker on the corner of my desk while Talia sits on the sofa against the wall.
“My guess,” says Harry, “is five days.” He’s laying odds on how long the jury will be out. This, I think, is a little moral support for Talia. He’s telling her to calm down, to relax, or she won’t have to worry about the verdict: She will be a mental basket case before they announce it. Though right now, I wonder if she is not in better shape than Harry.
“Damn,” I say.
“What is it?” Harry’s looking at me, like I’ve just dropped a live grenade.
“Nothing,” I tell him. “Just something I forgot to tell Peggie Conrad about in Sharon’s case.”
In the chaos surrounding Eli Walker’s column, the disclosure of my affair with Talia, I’d forgotten to call off Peggie, to tell her that Coop had already taken care of the receipt for the toaster left for repair by Sharon at the hardware store. She has now spun her wheels and duplicated his efforts, for there in this stack of papers is a xeroxed copy of the receipt. This must be the store’s own copy, a lot of writing on the printed form, a heavy scrawl that is difficult to decipher.
The intercom on my phone rings, but I don’t move to get it. My eyes are struggling with the cryptic handwriting of some store clerk, making out only one word on this form. Instead Harry picks the phone up. He puts his glass down on the desk, his expression suddenly dark, worried.
“They’re back,” he says.
“What?”
“The jury, they’re back.”
“A verdict?” I ask.
“I don’t know; Dee took the message. All she said is the jury is back.”
Typical of Dee Magnuson, she has given us a collective coronary. With Dee it is seldom sins of commission that one must worry about, but those of omission. She failed, when the clerk called, to find out why the jury was back. There may be reasons other than a verdict.
When we arrive in the courtroom, the jury is already in the box. They are not talking, but listening—to testimony being reread by the court reporter. It takes me several seconds before my mind zeros in on the colloquy being read. It is Nelson’s expert on the strand of hair, Mordecai Johnson—my cross-examination. This is cause for concern, that the jury is focusing on the only piece of evidence linking Talia to the crime, as if they are searching the record for some hook upon which to hang a conviction. Or maybe they’re just looking one more time, to assure themselves that in fact there is no compelling evidence.
But more than the words being read, a dry monotone by the reporter, I am concerned by something else that I see, there beyond the jury railing. Centered in the second row sits Robert Rath, my alpha factor. He is not where he should be.
I look at the seat, far left, front row, the chair nearest the judge, which should be occupied by the foreman of this jury. It is held by one of the four women I had tried to remove from the panel. She looks at me, a fleeting glance, as I stare, my mouth half open. So much for the science of jury selection. I have miscalculated badly, and I wonder if perhaps I have made other mistakes. For the first time I begin to question seriously whether this jury will be buying the theory of Tony Skarpellos as killer.
The reporter finishes with her notes, and Acosta looks to the jury.
“Madam foreman, is there anything else?”
“One of the instructions,” she says. “The one dealing with the defendant’s silence during this trial. We would like it read again, and explained.”
Harry looks at me. For the first time he is grappling seriously with thoughts of a death penalty phase. He doesn’t have to talk for me to know this. It is written in his eyes.
Acosta handles this gingerly, leaving the jury in the box, while Nelson and Meeks, Harry and I join him in chambers. This is required procedure in this state, a conference out of the presence of the jury before the judge may read or explain any jury instruction once deliberations have started. The Coconut is worried; he sees mistrial written in this request. He is beginning to wonder whether my assertions of Nelson’s body language may not have been closer to the fact than he’d realized.
He is on the prosecutor like a cheap blanket. Nelson is adamant th
at he has done nothing wrong.
This is a short meeting. We all agree. Acosta will read the instruction word for word; he will explain nothing. He will respond to specific questions if the jurors have any, and then perhaps only after a further sidebar with counsel.
Back out with the jury, Acosta reads the instruction. But this does not resolve their problem. It seems there is a real dilemma. One of the jurors has made a serious mistake. He has commented on the defendant’s failure to take the stand.
Acosta looks at me, trouble in his eyes.
I have heard and seen enough. I am out of my chair. “Your Honor, the defense moves for a mistrial.”
Nelson is up objecting, saying that this error can be cured. “The fact that the jury has collectively brought this to the attention of the court indicates that they understand the spirit, the requirement, of this instruction,” he says. “Certainly any problem is capable of being cured by further instruction of this court. We have spent too much time and effort to have a mistrial at this late date.”
But I am insistent. “The law in this area is clear. It is prejudicial error, prima facie,” I say, “for the jury to comment upon or to consider the defendant’s assertion of her Fifth Amendment privilege.”
Acosta’s in a quandary. The law is four-square on our side. There is not a principle in jurisprudence more firmly established. The appellate reports are filled with cases of convictions reversed for lesser cause than this.
Acosta calls us to a sidebar. He leans over the lip of the bench toward our faces, whispering so the jury cannot hear.
“A difficult problem.” He is all consolation now, trying to appease me. It’s a good argument, he says, my request for a mistrial. “But I think it is one best raised on appeal, if that becomes necessary.” He raises bushy eyebrows. “In good conscience, I cannot stop the trial at this stage. I must go forward. Put yourself in my place.”
In this he is, as ever, practical. Every gesture, each ruling calculated for effect.
“Your Honor, is it fair that my client should be put to the cost of an appeal?” I ask. “Have the threat of a conviction hanging over her head, perhaps for years?”
“She has not yet been convicted,” he tells me.
“Your Honor, look at them. Listen to what they’re saying.”
He makes a face, cocked off to the side at a forty-five-degree angle, a crooked smile, like he is not responsible for these twelve people. The message is clear. If I am not happy with this jury, I have no one to blame but myself.
“Your motion is denied,” he whispers.
We back away, and he puts it on the record.
Through all of this, I have been carrying a single piece of paper, the little receipt from the hardware store, the piece of paper from Sharon’s probate. I’d had it in my hand when Dee dropped her bomb that the jury was back. I have folded this thing into a million little squares as I wait, the product of my nerves.
Acosta reads the jury the critical instruction one more time, and delivers a blistering lecture on what it means: that they may draw no inference whatever from the fact of Talia’s silence in this trial, that they may not discuss the matter or allow it to enter into their deliberations in any way. In this, it is as if he believes that by these words, by these admonitions, he can cleanse the record, as one would unring a fire Klaxon clanging in the night.
The jury, sheepish now, returns to the task, behind closed doors.
We are a somber, ragtag assembly when we reach my office again. Tod and Talia have been hanging to the rear all the way from the courthouse, little conferences between the two of them. I suspect these are plans for appeal, ways and means to carry on with their lives in the event of a conviction.
As the flexing metal gate of the elevator slams open and Harry pushes the door that leads to the hallway, Dee is standing there, her arms held up as if this is some emergency.
“They are back,” she says. “The jury.” This time she says the magic words. “They have a verdict.”
I look at Talia, terror-struck behind me in the elevator. They have barely had time for a single ballot since we left the courthouse, an ominous sign.
The gauntlet of klieg lights and cameras with their laserlike strobes is particularly bad now. They block our access to the courtroom, looking for new file shots and footage for this evening’s news. The word is out as we arrive—a verdict is at hand.
Tod muscles one of the reporters out of his chair on the aisle behind the railing as Harry, Talia, and I take our seats at the table. Tod is in no mood to tarry with the reporter. Arriving with us in our official party, he gives the reporter one mean stare and the journalist decides to hunch down on one knee in the aisle rather than make a scene.
Acosta has instructed the jury to remain in the jury room until they are called. The judge is in chambers. We are the last to arrive. Nelson and Meeks are already seated. The bailiff sends the word back to the clerk, and ten seconds later Acosta comes out and ascends the bench, followed by the clerk. He nods and the bailiff knocks on the jury room door.
They come out in two even lines of six, file into their rows of chairs, and take their seats. The jury foreman has a single slip of paper in her hand as she sits down.
The clerk is ready; the judge bangs his gavel. “This court will come to order,” he says.
A hundred conversations come to a stop in mid-sentence.
“Madam foreman, has the jury arrived at a verdict?”
“It has, Your Honor.”
“Please give it to the clerk.”
There’s a quick exchange here. Acosta takes the slip and peers at it for what seems like an eternity. He then looks at Talia, as if this is somehow expected.
“The defendant will rise,” he says.
Talia and I are on our feet.
“The clerk will read the verdict.” Acosta hands it back to her.
“In the matter of People v. Talia Potter, to the charge of violation of section 182 of the penal code, first-degree murder, we the jury find the defendant, Talia Potter, NOT GUILTY.”
There’s a roar from the courtroom. Hands are over the railing behind us, reaching for Talia. I can feel a hundred open palms patting on my back. Talia’s leaning over the railing into Tod’s arms, tears streaming down her face. Then to me. She whispers in my ear, barely audible. “Thank you,” she says. “I don’t know how I will ever thank you.” There’s a lot of warm wetness against my cheek.
I don’t know what to say, so I say nothing, and she turns to hug Harry.
It is true. There is nothing that exhausts so thoroughly as tension. I slip down into a seat, my chair at the counsel table, and take a single deep breath. Acosta is trying to beat the courtroom back into order with his gavel. Two reporters have somehow gotten into the room with their microphones. They are leaning over the railing behind me for an impromptu interview. I ignore them.
I look over. Nelson and Meeks are like two orphans at their table. It is as if everyone on their side of the room has come over to ours, like the building may topple to this side.
Nelson may want to poll the jury. With the commotion he may not get the chance. Acosta looks at him, and Nelson merely shrugs, as if to say “Why try?”
The judge thanks the jury, but no one hears him. “The defendant is discharged.” He’s now standing in front of his chair on the bench, yelling. “This court is adjourned,” he says. With that he is gone, down the steps, behind the bench, into his dark cavern, the jury still in the box left to fend for itself.
The press is now roaming over them, inside the box, reporters with notebooks trying to find out what happened behind closed doors. The jury foreman is holding court at the railing. The bailiffs have given up on trying to keep the cameras out of the room. Belted with battery packs, the crews are setting up with anything that looks legal as a backdrop—the bench, the jury box with its scene of unseemly chaos. Nelson crosses over, in front of the cameras, as if to give them a special photo op. As I look up he’s standing in f
ront of my counsel table, his hand extended as if in congratulations.
“Well-fought case,” he says. “Good trial.” There is something genuine, unfeigned in this. Some of the print press are jostling to capture these few words, writing them down as if they are holy writ. I take his hand and shake it. This is memorialized for the news by one of the camera crews. Then he leaves. Like that, Nelson and Meeks are out of the room, leaving this party to the victors.
For a moment I am left alone. The reporters have moved around Talia and Harry, asking for reactions. Talia is breathless. Having shed all anxiety, she’s radiant in this moment of victory.
I’m still holding the single item from Sharon’s probate file, the store receipt with the undecipherable script, only one word of which I can read with any certainty—the word “Bernardelli.” I sit dazed, staring at the evidence cart in a far corner, plastic bags with the hair and the monster pellet—and the exquisitely tooled shotgun bent open at the breech, the shotgun claimed by George Cooper from the hardware store after its repair. The shotgun Coop used the night he murdered Ben Potter.
CHAPTER
41
THERE is a bridge, 900 feet high, over the American River. Some people use it to get to Sutter’s Mill, the place where James Marshall discovered gold. Some people take it to eternity. George Cooper did that on a Tuesday morning in late October.
His house is in utter disarray. I’ve not been here in more than a year. Had I come and seen the bedlam of this place, perhaps I would have known how far over the edge of reality Coop had truly gone.
I’ve brought Nikki to help me. Parts of this task require a woman’s touch. There are personal belongings and mementos everywhere. Things from a lifetime spent in public service. She will carefully package some of the more delicate items, things we don’t want to trust to the movers. Relatives from the East have come for Coop’s funeral and have asked us to oversee the packing and shipping of his belongings to the next of kin.
Compelling Evidence Page 47
