by Parnell Hall
“My objection is that I’ve been ambushed by surprise testimony,” Richard said. “Without any prior notice, I am suddenly confronted with this private detective.”
“Not at all, Your Honor,” ADA Wellington said smoothly. “Mr. Tessler is on our witness list, and has been all along.”
“Is that true, Mr. Rosenberg?”
“In a manner of speaking, Your Honor,” Richard snapped, holding up the paper. “If you look over the prosecution’s list of witnesses, you will find Detective Robert Tessler sandwiched between Detective Raoul Velez and Detective Sean Grady, who are doubtless police officers. The fact that Robert Tessler is not a police officer is deliberately obscured.”
“Be that as it may,” Judge Blank said, “do you maintain that it is incumbent on the prosecution to make sure that the defense is not confused about the identity of any of their witnesses?”
“No, Your Honor. But I maintain that this was done deliberately to circumvent discovery and catch the defense by surprise.”
“Have you proof of that?”
“How can I have proof of that when I’m taken by surprise?” Richard said in exasperation.
It was an unfortunate situation, and a fight that Richard was not destined to win. Realizing that, he backed off as quickly as he could, rather than put up a big fight and lose. While this was a good tactic, still the whole thing was a bitter pill to swallow.
As well as a hell of a shock.
Barbara Carbinder had known about her husband’s affair. Barbara Carbinder had hired a private detective to spy on Connie Maynard. Barbara Carbinder, in all likelihood, had been preparing to sue her husband for divorce. And have enough hard evidence on him when she did so to take him to the cleaners.
All of which furnished an excellent motive for murder.
I sat there in court and watched the jury buy it.
First off, Robert Tessler got to testify, and what a witness he made. I thought that after the bombshell about Barbara Carbinder hiring him to spy on Connie Maynard, the rest of his testimony would be anticlimactic.
Wrong again.
First off, Wellington handed him a picture and asked if this was the young woman he’d been asked to spy on, and damned if the picture didn’t turn out to be one of the cheesecake photos Wellington had used way back when to sway the grand jury. That left Richard in the no-win situation of letting the jury see it or fighting to keep it out.
He opted not to fight. After his initial resistance to the surprise testimony, Richard, in giving in, seemed to adopt the position of let’s get it over with. At any rate, he didn’t object to the evidence or anything the detective had to say.
Which was a mouthful. During the time he’d had Connie Maynard under surveillance, Anson Carbinder had been a frequent visitor. Moreover, the two had taken a trip to Atlantic City, where they had registered together as husband and wife.
The surveillance of Connie Maynard had lasted five weeks and terminated the week before Barbara Carbinder was killed.
Which couldn’t have added up better. She hires the detective, gets the evidence, confronts her husband, and bam.
Richard let it all go in. He didn’t object to anything. Didn’t even offer a token resistance.
Still, I was sure he had some trick up his sleeve. Some secret plan to trip this detective up. To nail him on cross-examination.
I hoped it would involve me. I had a feeling it might. After all, that was what I was here for. I’d been waiting in court for days for just this opportunity. To run out and nail the one pertinent fact that would trip up the witness. Somehow, it just seemed the stage was set for that to happen.
First off, it was near the end of the day. So even if Richard couldn’t make the charge of surprise-witness stick and get an adjournment on that account, surely he could talk the judge into postponing his cross-examination until the following morning.
Which would leave me time to do the job, whatever it might be. What, exactly, I wasn’t sure, but there had to be some way this witness could be undermined. And if there was, Richard would know it. Not the fact, but the principle, if that makes any sense. He would know how to go about it. What ammunition he needed to shoot. And he would send me out to get it.
I was so much anticipating that that it absolutely floored me when it happened.
It was near the end of the afternoon, the witness’s testimony was winding down, and we had a break in the action while ADA Wellington returned to the prosecutor’s table to consult his notes. During the pause, Richard caught my eye and motioned me over.
I was thrilled.
I was also scared. That if I got up from my seat in the spectators’ section and entered the gate into that arena, into the sacred ground where attorneys sparred, the judge would immediately stop me and demand, “Where do you think you’re going?”
But it didn’t happen. I came through the gate and walked over to the defense table where Richard sat with Anson Carbinder, bent down, and whispered, “What’s up?”
Richard pushed a folded piece of paper into my hand. Good god. His message was so important he didn’t even dare whisper it.
I looked at the folded paper.
It was a dollar bill.
I looked up at Richard.
He leaned over. Whispered.
“Get me a Coke.”
34
“LET’S LOOK AT THE EVIDENCE,” RICHARD SAID.
It was a week and a half later, and ADA Wellington had just rested his case.
Are you surprised I just skipped a whole week and a half of testimony? Don’t be. Remember what Richard said about opening arguments—that you only get a two-minute snippet on “L.A. Law,” that it isn’t like that in real life? Well, that goes double for the actual trial. Trust me on it. That week and a half was boring as hell.
Which was amazing, considering it included: the introduction of the murder weapon; the introduction of the bloody garments worn by Anson Carbinder on the night of the murder; the introduction of photographs of the crime scene, including gross-out photos of the victim; evidence that the knife was the property of Anson Carbinder, or at least had come from his kitchen; and the evidence that Anson Carbinder had taken out a half-million-dollar, double-indemnity life insurance policy on his wife.
Does that sound exciting? Spread it out over a week and a half. Cover with a thin layer of bullshit—irrelevant objections, arguments, and rulings, legal nit-picking, maneuvering, tugs-of-war—none of which amounted to a goddamn thing except to delay, obscure, confuse, and drag out whatever issue was being discussed to the point where, had I been a member of the jury, by the time the prosecution rested its case, my only concern would have been when I could go home.
At any rate, it was over, court had adjourned for the afternoon, and now Richard and I were back in his office planning strategy. Since I had done nothing for a week and a half but sit in court listening to testimony and fetching an occasional Coke, it was nice to know my opinion was at least being sought.
If it indeed was.
I had a feeling I was there not so much to advise as to cheer.
“Okay,” Richard said. “As far as I can see, they have nothing new. Not that it isn’t damning, but it isn’t convicting, either. The point is, when I put on my alibi, he has nothing so far to contest it.”
“What could he have?”
“Not much, really. He tried his best with the medical examiner, but I pinned him down to twelve to one. Granted, that’s only the most likely time of death—Wellington could still try to argue he killed her at two-fifteen. But if he does that, we’re home free. No one on the jury’s going to buy it. The way I see it, the case is going to stand or fall on the alibi.”
Richard looked at me. I realized a comment was needed. All I could think of to say was, Right. I did, and Richard nodded and went on.
“So let’s look at what we got. Six independent witnesses. Some better than others but, taken collectively, a pretty sure bet. The only question now is how to play them.�
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“What do you mean?”
“Like I say, some are better than others. Therefore, the order becomes important.”
“I assume you’ve already worked this out?”
“Yes, of course. But I need to say it out loud. Put it in words. See if there’s anything I forgot. I value your opinion, you know.”
I did my best to keep a straight face. It occurred to me that if I had any comment other than, Good idea, Richard, the value of my opinion would sink like a stone.
“Fine,” I said. “So what’s your plan?”
“Okay,” Richard said. “Here’s how I see it. We have three witness who are relatively strong, two who are relatively weak, and one who is all right but unimportant—the one who left at midnight.”
“You’re basing that on my assessment?”
“Don’t be silly. I’ve personally talked to them all.”
I frowned. “Wait a minute. I thought you said you didn’t want to talk to them. That you didn’t want their stories to sound rehearsed.”
“Right. And I certainly don’t. On the other hand, I’m not going to put them on the stand without knowing what they’re going to say.”
“But...”
“But what?”
“You said you weren’t going to talk to them. That that was your strategy.”
“Right. And that sounded good?”
“Yes, it did.”
Richard nodded. “See? That’s because I’m a lawyer. What I say is supposed to sound good.”
“Richard, I’m not a jury, I’m your investigator.”
“Yes, but you bought it, right? Sounded good to you?”
“Sounded fine.”
“There you are. Look, I can’t be in court all the time. And I’ve never been in court on a murder case before. I don’t get to practice much. This isn’t like when you’re in a play you get to rehearse and then you go on. I’m in there on my feet, improvising on the spot. How’d you like to be in a play where you didn’t know the lines?”
“I have that nightmare all the time. Most actors do.”
“Yeah, well, that’s what trial work is. A drama where you improvise the whole script. So, you wanna give me a didn’t-I-say-something-else? Well, maybe I did in dress rehearsal, but nothing counts until the trial starts. If I contradict myself on something I say in court, there is something I need to know. Got it?”
I got it. Richard, in addition to relegating me to the position of a cheerleader, had just undercut all my investigative work by interviewing the witnesses himself. While I always thought he should, it was a kick in the head to find out he had. I wondered if I wouldn’t take it so personally if in the last week and a half I hadn’t fetched so many Cokes.
“Uh-huh,” I said. “So, what’s your plan?”
“Lead off strong and end strong. I figure this to take two, possibly three days. The first day’s gotta be good. I figure to start off with two winners right in a row.”
“Two?”
“Yeah,” Richard said. He consulted the pad on his desk. “That would be Sam Kestin and Barry Brown. The banker and the ad executive. Good solid witnesses, aren’t going to rattle.”
“Yeah, but why waste ’em both? You only got three winners. Don’t you wanna spread ’em out?”
Richard nodded. “Exactly. Good point. I’m glad you asked that, because that’s just the point I wanna make. Now, the first witness has gotta be strong. You can see that.”
“Of course.”
“Now, the second witness, same thing. Here’s how I see it. I lead off with this banker. My direct examination will be short. Then Wellington gets a crack at him. His cross-examination will be long but ineffective. The guy’s not the type to rattle, Wellington won’t get a thing.”
Richard held up one finger. “The next witness is key. So far, you got one man’s unsubstantiated testimony. Corroborate it, you win. Blow it, you lose. If I put on a strong witness who holds the line, then I got a strong alibi, and everything Wellington does after that will look like whistling in the wind. But if I put on someone weak and he tears him to shreds...” Richard held up his hands, made a scale, “… then it’s one to one. Equally balanced, could go either way. Since he’s probably the last witness of the day, the jurors go home with that impression. So there I am the next morning, starting from scratch again.”
“Uh-huh,” I said. “Okay, I see what you’re saying. But even so, you’ve blown two of your three best witnesses. I can understand your not wanting to have a weak follow-up. But what about the other guy? The one who went home at midnight. What’s-his-name? Tim Hendricks. He’s a stock trader, cold, methodical. He’s not going to rattle. Wellington won’t be able to do a thing with him.”
“Yeah, but he went home at midnight. One’s a good alibi and one isn’t. I don’t want to follow up a good alibi with a bad one, no matter how good the witness is. To go from 2:00 A.M. to midnight would be a sign of weakness. Even more so than putting on the guys who are going to rattle.”
Richard went back to the list. “Let me give you the order the way I see it. First up is Sam Kestin, the banker. As I said. He’s a logical first. Not only is he a good witness, but the game was at his house.
“Next up, Barry Brown. The ad executive.” Richard consulted his notes. “The one you particularly didn’t like.” He looked up at me. “Is that why you object to him going second?”
My eyes widened. “It never occurred to me.”
“Maybe not,” Richard said. “Sometimes these subconscious motivations come into play nonetheless.”
Good god. I blinked. That’s what the cheerleader got for disagreeing.
“Anyway,” Richard said, “he goes second. At this point we go with someone weak.”
“Why?”
Richard shrugged. “I got to put ’em somewhere.”
“Why?” I said. I think his subconscious-motivation crack had made me quarrelsome.
“What do you mean, why?”
“Why do you have to put ’em somewhere? Why use ’em at all?”
Richard looked at me, pityingly. “Stanley, use your head. It’s a poker game. One of the first questions is, who was there? All of them are witnesses. If I skip one, it’s like a red flag. If I don’t call him, Wellington will. If he does, it’s ten times worse.”
“Fine,” I said. “Granted. So you put a weak one third.”
“Right. In fact, I put the weakest one third. That would be the actor—Phil Janson. Undoubtedly, Wellington will tear him apart.”
“You’ll let him?”
“Sure.”
“Why?”
“In the first place, I couldn’t stop him. In the second place, it will make Wellington look bad.”
“Why?”
“You met the guy. He’s basically defenseless. He’ll tell his story, then Wellington will get him so confused he won’t know which end is up. He’ll contradict himself, he’ll tie himself in knots, but it will be all right. The jury will already have two solid versions of what happened. So the perception will be of a poor, weak individual, being persecuted by a heartless bully who’s twisting his words.”
“I see,” I said. I wondered if it was that simple.
“Now, you come back with the guy who left at midnight. Doesn’t help, but doesn’t hurt. Actually, it does help, because it solidifies the fact that these guys are telling the truth and the prosecutor’s an asshole. Particularly if Wellington goes overboard getting the actor confused and gets so fired up from it he tears into this guy for going home early. At any rate, that witness, this Tim Hendricks, should get us back on solid ground.”
Richard shrugged his shoulders, spread his hands. “Then we’re back to weakness again, but look what we’ve done. The witness isn’t all that bad. This is the guy owns the camping equipment store. The Birdman of Central Park South. Ollie Pruett. He’s another nervous, fidgety type, gonna get tied up in knots, but—” Richard raised one finger. “He’s not as bad as the stupid actor. Compared to him, he’l
l come off pretty well. And by now the jury will have no sympathy with Wellington going after these guys, so whatever he makes him say, it won’t be that bad.”
Richard smiled. “And then we’re home free. I got the vice-president of the textile manufacturing company to close with. This Marvin Wainwright. Solid, substantial, back on track. Another one Wellington can’t budge.” His eyes gleamed. “And you can bet he’ll go overboard, knowing he’s the last one in the game. Knowing this is his last shot. That if he can’t break this one, it’s over. So he’ll put up a huge fight, which eventually he’ll lose.
“And the moment he does—the moment he says, No further questions—I rest my case.”
Richard spread his hands. “And that’s that. Wellington is in a no-win situation. If he doesn’t put on rebuttal witnesses, I’ve won. If he does, the only way he can break this alibi is to manipulate the time of death. And once he does that—once he starts trying to show there’s a slight possibility she was killed as late as two o’clock—once again I’m home free. Because, by doing that, he’s conceding the alibi’s unbreakable. Either way, Anson Carbinder is out the door.”
“Uh-huh. So that’s it?” I said.
“What do you mean, that’s it?”
“All you’ve got is the alibi?”
“What do you mean, all I’ve got?”
“You got a second string to your bow?”
Richard, who had been tipped back in his desk chair, ready to discourse on the subject, stopped in mid-pontification. He frowned, crinkled his nose. “A second string to my bow? Did you really ask me that?”
“Well, I was just wondering—”
“If I was putting all my eggs in one basket?” Richard said. “Do you have any more clichéd idioms you’d like to throw at me?”
“Not at the moment,” I said. “The point is, what have we got besides this alibi?”
“What should we have?” Richard said. “You’ll pardon me, but if the guy didn’t do it, what else is there?”
“Well, who did?”
Richard’s eyes widened. “Oh,” he said. “Of course. I’d forgotten about your TV mentality. Stanley, look. I’m an attorney. I don’t solve crimes. I represent clients. I try to keep them out of jail. If I do a good job, they don’t go there. If I do a bad job, they do. But solving crimes is not my department. It is the function of the police. If you think it’s my department, it’s because you grew up on a steady diet of Perry Mason. But guess what? No one is going to break down on cross-examination and say they did it. The way it works is, the prosecutor puts on his case, I put on mine, and the jury says who wins. It’s as simple as that.”