Counterplay bkamc-18

by Robert K. Tanenbaum

  “Why yes, I try to get out a few times a week, as a matter of fact,” Oatman said. “I’m not as young as I used to be, so I have to work a lot harder to stay on board.”

  “I see,” Karp said. “Then you’d be familiar with the term ‘goofy-footed’?”

  “Yes, I’ve heard of it,” Oatman said, shrugging as he addressed the jury. “Most surfers, like most of the population, are right-footed so the most comfortable or standard stance is with the left foot forward. Standing the opposite way is therefore ‘goofy-footed,’ though most surfers will switch back and forth.”

  “So do you switch back and forth from standing left-footed and goofy-footed, too?”

  Anderson saw the danger and jumped to his feet. “I object, Your Honor. He’s trying to bait the witness into saying something that isn’t relevant to this case.”

  Judge Lussman looked at Karp with a half smile. “Is there some sort of relevance to this line of questioning, Mr. Karp?”

  Karp smiled. “As a matter of fact, there is, Your Honor, and I’ll get to the point, if I may proceed.”

  “You may, Mr. Karp,” the judge said. “But do so quickly.”

  “Yes, Your Honor. Dr. Oatman, you told the jury that you’ve testified in more than three hundred cases. Is that true?”

  Oatman was on guard. “Yes, more than three hundred cases.”

  “Ever testified as a prosecution witness regarding repressed memory?”

  “Yes, I have appeared for both the prosecution and the defense,” Oatman said. “I consider myself a scientist…the facts are the facts. My clients, whether the prosecution or the defense, know going in that I will state my opinion without regard for how it impacts their case.”

  “I see. And have you ever testified to the effect that there is scientific validity to recovery of repressed memory?”

  Oatman’s eyes flashed with alarm. “I may have early in my career when I was still somewhat on the fence.”

  “How long did you say you’ve been a practicing psychologist?”

  “Approximately twenty-five years.”

  “So if you said something that supported repressed memory as scientifically valid in, say, the last five years, would that have been early or late in your career?”

  Oatman gave a weak smile. “Ah, you must be talking about the seminar in Canada…I can explain-”

  Karp interrupted. “Please, first answer my question. Would that have been early in your career?”

  “Well, uh, no, not really,” Oatman said. “But-”

  “Then why, Dr. Oatman, would you have told the audience at the University of Toronto in May 2000 that, and I quote, ‘the science of recovering repressed memories can no longer be considered in the same vein as witchcraft or past-life regression…time and again, hypnotized patients in clinical studies have recovered memories that could be proven with empirical facts.”

  “Well, taken out of context-”

  “Out of context, Dr. Oatman? Didn’t this appear in a professional magazine that ran the report of your speech past you before publication?”

  “Well, yes, I didn’t mean ‘out of context’ like that…I meant that I was playing the devil’s advocate,” Oatman said, his smile beginning to resemble a grimace.

  “This was a debate?” Karp asked, looking back at his notes. “I saw nothing to indicate that you were debating someone who was playing the other side of the devil’s advocate.”

  “Well, perhaps I could have put that better-”

  “Yes, perhaps,” Karp said. “So do you recall telling your audience that, and again I quote, ‘the science of repressed memory’ could be an important tool for attorneys on both sides of the aisle?”

  “Yes,” Oatman said sullenly.

  “Who paid for you to give that speech, Dr. Oatman?”

  “Relevance!” Anderson shouted, jumping to his feet.

  “Overruled.”

  Oatman glared at Karp. “The speech was given to the Toronto Bar Association.”

  “So you told a roomful of lawyers that repressed memory was scientifically valid and an important courtroom tool?”

  “Yes, Mr. Karp,” Oatman said. “That’s what I said.”

  “So based on today’s testimony that would make you goofy-footed when it comes to your views on repressed memory?” Karp asked, thinking that one never knew when perusing one of Zak’s skateboard and surfboard magazines might come in handy.

  “Objection!” Anderson shouted.

  “Sustained,” the judge said shaking his head at Karp before turning to the jury. “You will disregard the last question from Mr. Karp…. And Mr. Karp, please restrain yourself.”

  On redirect, Anderson made a feeble attempt at rehabilitating his witness, who claimed to have reached his current feelings about repressed memory recovery “in the past year or so.” But the defense attorney was also aware that none of the jurors were taking notes, and in fact, some were watching Oatman with their arms crossed.

  Not a good sign for Dr. Oatman, Karp thought. He didn’t even bother to look up from his notes when Anderson turned the psychologist back over to him for recross. “I have nothing further for this witness, Your Honor,” he said. He didn’t bother to conceal the contempt in his voice, even though personally, until this case, he hadn’t given repressed memory much credence either.

  The defense called its expert witnesses to counter Drs. Swanburg and Gates, but their testimony was so weak that Karp didn’t bother to cross-examine them. “I have no questions,” he said with a little nudge. “The people will let the jury weigh who to believe.”

  He enjoyed watching the defense lawyers look up at the clock and then huddle. “They don’t like the pace of the trial,” Karp said to Guma when the court recessed for lunch.

  “Then maybe we should pick it up,” Guma replied with a wicked smile.

  The spectator and press sections of the courtroom were buzzing when Karp and Guma returned from lunch. The defense’s star witness, Dante Coletta, was going to be called to the stand where-just like in a Perry Mason movie-he would finger the man who “really” killed Teresa Stavros. The crowd expected fireworks, and Karp knew that Guma was ready to give it to them.

  When the judge returned and the jury was seated, Bryce Anderson called Coletta to the stand. The man swaggered to the stand, looking back and forth from one row of spectators to the other, nodding and smiling like he’d just been named best actor at the Academy Awards.

  The swagger remained as Anderson led him through the story he’d told Karp and Guma about the murder of Teresa Stavros. He shook his head at the conclusion of Anderson’s questioning and said, “I feel terrible about this. I should of said something at the time, but I was trying to protect a friend and was worried about taking the rap, too. Still, it weighs on my conscience, you know.”

  When the other attorney took his seat, Guma remained still with his eyes closed. Karp wondered if he’d fallen asleep and was about to prod him when his friend opened his eyes, took a quick look at the photograph of Teresa and Zachary on his desk, and then stood abruptly to walk to the lectern.

  Karp smiled. The bulldog is back, he thought. They’d gone over the strategy the night before and again at lunch, and it could best be summed up with giving Coletta “enough rope to hang himself.”

  “So, Mr. Coletta, is it fair to say that you owe Mr. Stavros a lot?” Guma began.

  “Yeah,” Coletta said, looking up at the ceiling as if he’d discovered something interesting there. “Mr. Stavros gave me a chance when I got out of prison.”

  “For what?” Guma asked.

  “Objection!” Anderson said.

  “Mr. Anderson, I will allow it on the issue of the witness’s credibility,” said the judge.

  “Assault and robbery,” Coletta replied.

  Guma checked his notes and looked up. “Anything else?”

  “There was a rape charge in there, too,” Coletta muttered.

  “Oh, was that a repressed memory?” Guma asked as the c
ourtroom spectators laughed and whispered.

  Lussman gave Guma a sharp look. “We get your point, Mr. Guma. Please continue to another area.”

  Then, after several questions regarding Coletta’s version of events, Guma acted as though he was winding down but then remembered something else. “Refresh my memory, Mr. Coletta,” he said. “Was Mrs. Stavros standing when Mr. Kaplan shot her?”

  Coletta furrowed his brows. The defense attorneys had coached him to think before he answered the prosecution’s questions and answer as generally as possible.

  “I think that’s right,” he said.

  “Think? Well, let’s see-if you’d turn to page 153 in your Q amp;A given to Clarke Fairbrother on-”

  “Yeah, yeah, that’s right,” Coletta said. “She was standing up.”

  “And how many times did you say Mr. Kaplan shot her?”

  “Uh, once, like I said,” Coletta said. “He grabbed the gun from her and she turned to go call the cops, and he shot her once. Bang. Just once.”

  Coletta’s brain was working overtime. There was a lot at stake, including his own future, and he worried that he’d already messed up more than was good for him. But he did remember that the lawyers had told him that there was a single bullet hole in the bitch’s head. Emil Stavros had scratched his head at that but shrugged. I thought I pulled the trigger twice, he had said. But it was dark and my hand was shaking. I could have missed.

  “With the court’s permission, Mr. Coletta, I wonder if you’d mind stepping down from the witness box to demonstrate how this shooting occurred,” Guma said, doing his best “slightly addled older attorney” act.

  “I object,” Anderson said. “This isn’t a theater.”

  “Mr. Guma?” the judge said with his eyebrows raised.

  “Mr. Coletta did this once before for my partner, Mr. Karp, which I think helped us understand how this could have happened,” Guma said. “So I’m just trying to paint a clear picture for the jurors. As you know, Mr. Coletta’s, uh, version of these events came in rather…late…in the game. I’d like a refresher myself.”

  “I’ll allow it. But keep it short and to the point, Mr. Guma.”

  “Of course, Your Honor.” Guma waited for Coletta to climb down from the witness stand. “Now, pretend your fingers are a gun. I’ll turn my back, like so…and if you would, show the jury about how far Mr. Kaplan held the gun from the back of Mrs. Stavros’s head.”

  Coletta did as told and stepped back a pace as he pointed his fingers at the back of Guma’s head. “He was about this far away.”

  “And then ‘boom,’ right?”

  “Yeah, yeah…boom…he shot her, she went down…end of story.”

  “End of story,” Guma repeated. “Yes, well, you can retake the stand, Mr. Coletta.”

  When Coletta was settled, Guma looked up and stated, “Your Honor, for the record, the witness indicated the shooter was about a foot away from the deceased at the time of the shooting and shot the deceased in the head one time.”

  “The record will so reflect,” Judge Lussman said.

  Then Guma asked, “Is there anything else you can recall from that night? Some detail?”

  Coletta tried to look thoughtful, then shrugged. But before he could answer, Guma slipped in, “Such as…what was she wearing?”

  Coletta paused to remember what he’d told the prosecutors back in July. Then his face brightened. “Yeah, I think it was one of those white filmy negligee things. She was a pretty hot looker, if you know what I mean.”

  Guma appeared to bite his lip. “Yes,” he said dryly, “I know what you mean. So it was white, sort of see-through?”

  “Yeah, that’s what I remember.”

  “Not blue?”

  “Oh no,” Coletta said. “Definitely not blue.”

  “And after Kaplan shot her, you helped with the burial?”

  Coletta glanced quickly over at the jury. Anderson had told him this would be the dicey part and that he needed to look like a man consumed by guilt when he answered. “Yeah, like I said, I feel real bad about that,” he said. “But back then I was like, ‘Well, it’s done. Jeff’s my buddy…it’s done…’ and I thought the cops would try to pin the rap on me, too.”

  “And what we also have is that you felt like you owed Mr. Stavros because he gave you a job-part of which was to ferry him back and forth to his mistress-after you got out of prison?”

  “I-”

  “Yes, or no, Mr. Coletta. True or false…if you know the difference.”

  “Objection! Your Honor, that comment was entirely beyond the pale!” Anderson was red-faced with anger.

  Karp looked at Guma, knowing his friend was walking a fine line and hoped that his personal investment in the case wasn’t going to carry over into the courtroom and destroy their good work. But when their eyes locked, Guma winked.

  “Mr. Guma,” the judge lectured. “You know and I know that comment was beyond the scope of cross-examination. I will not tolerate another such breach of good conduct. Am I understood?”

  Guma bowed his head and nodded. “Yes, Your Honor. Sorry, Your Honor.” He stood so that only Karp could see that his fingers were crossed.

  The judge turned to the jurors. “As you can see, at times even fine attorneys such as our Mr. Guma can get carried away in the emotion of the moment. I’ll remind you that offhand remarks and comments by either side are not to be considered evidence. The evidence is what you see and hear from the witness on the stand and from whatever exhibits may be marked and received in evidence. Please disregard Mr. Guma’s uncalled-for remark. Now, Mr. Guma, do you have any other questions?”

  “None, Your Honor. However, we do have a matter to take up with Your Honor out of the presence of the jury.”

  “Very well, Mr. Guma,” the judge said. “The witness may step down.”

  After Coletta left with considerably less swagger than when he entered, the judge sent the jury out of the room. “All right, now what is this matter you wanted to bring up?”

  It was Karp who stood to respond. “My esteemed colleague was referring to our intention to call three witnesses to the stand for impeachment purposes regarding Mr. Coletta’s testimony during the people’s rebuttal case.”

  Anderson scowled. “I object strenuously. They don’t get to retry their case just because they messed up and forgot to ask the right questions the first time.”

  “There was no ‘mess-up,’ Your Honor,” Karp said. “Again, I’d remind the court that Mr. Coletta was something of a ‘witness out of the blue.’ We simply want to present witnesses who can give the jury something with which to weigh his truthfulness.”

  “I’ll allow it,” Lussman said. “But keep it very straight and narrow, Mr. Karp.”

  “I promise, Your Honor,” Karp said. “Now, we’d like to recall the jury and continue. I believe we have an hour left in the day.”

  The defense attorneys and Stavros immediately put their heads together. Anderson turned back. “Your Honor, we were prepared to present our case as requested on a shorter notice than we’d anticipated. We simply are unprepared to consider what these ‘impeachment’ witnesses will bring to the table. We’re requesting that the court recess until tomorrow morning.”

  The judge nodded. “Very well. We’ll call the jury back in and adjourn for the day. Mr. Guma and Mr. Karp, have your first witness here and ready to go at nine sharp.”

  “With bells on our toes,” Guma replied, “with bells on our toes.”

  Lussman smiled wryly. “I’m sure that won’t be necessary, Mr. Guma. Shoes will be sufficient.”

  27

  “Relax, Goom, you set them up perfectly. Now we come in tomorrow like Mariano Rivera and mow ’em down one, two, three. Game over.”

  They’d just returned to the office after court was recessed to discuss the next day’s plans when Guma wondered aloud if he’d handled the Coletta testimony effectively. Karp wasn’t used to having to give Guma pep talks.

  “You
know and I know that you can present the best case in the world and all it takes is for one juror to not ‘get it,’ and the slime-ball walks,” Guma replied. His shoulders slumped as he sat in the leather chair near the bookshelf.

  Karp pulled open one of the side drawers in his desk and reached inside. He removed a silver flask. He unscrewed the top and sniffed. Karp grimaced and took out two glasses and poured several ounces of brown liquid into each. “I believe you left this here some time ago, but I’m assuming that whatever you had in it wasn’t damaged by age,” he said. He walked over to hand his friend the drink.

  “Probably improved with age, unlike me,” Guma said, gulping his down and holding out his glass for another. He thought for a moment, then said, “It is sort of funny how desperate they are to slow this down. What’s up with that?”

  Karp looked into his glass as if into a crystal ball but came up empty. “I don’t know,” he said. “But I don’t trust ’em any farther than I can toss ’em. So if they want to slow things down, let’s be quick tomorrow.”

  Whatever Guma was going to say was interrupted by a panicked squawk on the intercom as Mrs. Milquetost tried to warn him about the men coming through the door. But before the words were out of her mouth, in walked Jaxon and Fulton, who was still using the braces, though his legs appeared to be gaining strength.

  “Well, it looks like the cavalry has arrived,” Guma said.

  “Yeah, but to save you or me?” Karp replied, though he already knew the answer from the look on Fulton’s face. “Gentlemen, you have the floor, as they say.”

  “Just making sure your ass lives to fight another day,” Fulton said to Karp.

  “A few days ago, we suddenly picked up an increase in some of the email ‘chatter’ and telephone calls with certain al Qaeda sympathizers we keep track of in this country,” Jaxon explained. “Not a lot of details, just something big and soon.”

  “I thought we assumed that would be Putin,” Karp said.

  “Yeah, and he’s still high on the list,” Jaxon said. “But then I got a call from your wife.”

  “Marlene?” Karp asked.