Compelling Evidence

by Steve Martini

  “You bastard.” She repeats the charge, but now she’s crying. There’s an extra shot of acid in my stomach.

  “We need to talk,” I tell her.

  She’s huddled over the sink, crying and wiping her eyes with a wet dishrag. As much as she knew it, suspected it, the open admission of my affair with Talia crushes Nikki.

  “Listen to me.” I touch her shoulder. She pulls away.

  I tell her that she has to give me a chance, that she has to hear me out.

  “I have a party to get back to,” she says and leaves the room, sniffling away tears. I see her stopped in the dark hall, halfway down, composing herself. Then she plunges into the room. “Well, time to open presents.” Her voice is all cheer, but thick like a cold.

  And so we put a face on it for the women waiting in the other room and pretend that nothing has happened-until they leave.

  Nikki and I sit alone in the ebbing light of evening, in the living room which has been ravaged by a half-dozen partying children. Shreds of wrapping paper and ribbon litter the floor. Empty coffee cups in saucers sit on the sofa-side tables. Sarah is in her old bedroom, which is now barren of any furnishings, playing with her gifts, new toys.

  “Regardless of what you think about her,” I say, “she didn’t kill Ben.”

  “You’re sure of that?”

  I nod confidently, like some prairie farmer predicting rain.

  “I see. Lover’s intuition.” Sarcasm has taken the place of Nikki’s tears.

  “Years of dealing cases,” I say. “Talia didn’t kill Ben Potter any more than you or I did.”

  “Even if you’re right, somebody else could defend her.”

  “Somebody else is defending her. Guy by the name of Cheetam. I’m there only as Keenan counsel, to assist him, that’s all.”

  “And he asked you?”

  “As a matter of fact he did. They were in a bind. The man’s from out of town. He needed somebody fast; Skarpellos recommended me.”

  I don’t tell her that Talia planted this seed. Nikki’s hostility, like a dying battery, is running down now. She has a difficult time staying angry. She has always had to work hard maintaining a constant pitch to her ire. Fury, it seems, always came too quickly, spending itself in an emotional weariness.

  “But you could get out of it if you wanted to.”

  I shake my head. “It’s too late.”

  I take the time to explain in soothing tones that I’ve already filed discovery motions in the case. This makes me counsel of record. To withdraw now would require a formal substitution of counsel, or the consent of the court. We’re too close to the preliminary hearing to get either.

  “If I’d known you felt this way, I wouldn’t have taken the case. But it’s too late.”

  “How did you think I’d feel? You’re rubbing my nose in your affair. Now you tell me it’s too late. Seems that your commitment to her is just a little more important than your concern for us.”

  “I didn’t think,” I say. I hope that this final confession will kill it.

  She sits demure at the other end of the couch, her behind on the edge, knees pressed together, hands folded tightly in her lap, as she drops the bomb.

  “Still, isn’t there some kind of conflict?” she says.

  I play stupid. “Whadda you mean?”

  There’s a little exasperation in her eyes. “I mean, it’s not normal for a lawyer to be fucking his client, is it?”

  “I told you it’s over.”

  “I see,” she says. “If it’s in the past tense-if the lawyer has fucked his client, it’s all right.”

  She leaves me with the ethical conundrum as she rises from the couch.

  “Listen. When this is over maybe we can get together, the three of us for a weekend over on the coast. Like we used to,” I say.

  “Fat chance,” she says.

  She lets me know that I’ve wasted my time changing the sheets on my bed, a hopeful preliminary to a night together after a happy birthday party. Nikki’s moving toward the back of the house, calling Sarah, getting ready to leave.

  “You won’t mind if I don’t stick around to help you clean up the mess.” She looks at me with a sobering expression. Like so much of what she says to me these days, her words carry some intended double meaning.

  “I can handle it.”

  “Let’s hope so.”

  CHAPTER

  14

  “WHERE’S the eunuch?” asks Harry.

  In Cheetam’s absence Ron Brown is like a shadow. He produces no real work, but checks in on us like a miser looking for spun gold. He’s the first to deliver reports on all progress to Skarpellos and Cheetam. The man trucks heavily in the intellectual coin of all toadies.

  “Who cares, as long as he leaves us alone,” I say.

  “Whadda we tell him when we’re done? He’s gonna demand to know what’s here.”

  “We tell him as little as possible. I’ll talk to Cheetam alone, give him the bad news as soon as he graces us with his presence.”

  It’s one of those long spring afternoons. I’m falling asleep over reams of paper. The clock on the wall has been changed to daylight-savings time, confusing the internal ticker that manages my body. Since childhood I’ve harbored a special resentment toward those who mess with time.

  Tall, slender shadows are falling on the high rises across the canyon that is the Capitol Mall. I struggle to stay awake in the paper blizzard that Talia’s case is quickly becoming.

  Flush with a five-figure retainer, a loan from Skarpellos to Talia secured by her expected interest in the firm, I’ve hired Harry for a little help. We’re closeted in the conference room at Potter, Skarpellos, poring over the piles of documents, evidence reproduced by the DA’s copy machine, responses to a dozen discovery motions I’ve filed. Cheetam’s out of town. He’s juggling three major tort cases in other cities, a minor matter he neglected to disclose until after I’d agreed to participate in the defense. Lately, it seems, he shows up only for prime time, when there’s a gaggle of cameras or notebook-toting reporters with tiny pencils looking for a case of writer’s cramp.

  “You really think people buy this crap?” Harry’s wandered mentally from the task at hand. He’s looking at a copy of Lawyer’s Monthly, the slick state bar journal, left behind in the library. He’s reached the back of the edition, the glossy advertisements, a whole page of lawyer toys: golf balls and watches stamped with the scales of justice, a leather high-back executive chair with more buttons than the space shuttle, and an assortment of “spear-chuckers”-$300 Mont Blanc fountain pens, arranged like a log raft in the center of the page.

  “Ah. Before I forget,” he says. Harry slips a small yellow Post-it note from his pocket and slides it across the table. “Gal’s name is Peggie Conrad, independent paralegal.”

  There’s a phone number on the slip.

  “She does mostly probate,” he says.

  I look at him and raise an eyebrow in question.

  “Sharon Cooper’s probate file,” says Harry. “The lady’ll solve all your problems.”

  “What brought this on?”

  “Thought you needed a little help.”

  I look at the note and make a face. Like this is a brand I’ve never tried before. Hiring someone without a license to practice law. “Thanks,” I tell him. “But doesn’t the bar object?”

  He shrugs his shoulders. “All of her clients are lawyers. Seems you’re not the only one who doesn’t know how to fill out the forms.”

  “Guess it can’t hurt to talk to her.” Sharon’s probate file is growing hair on my desk. I pocket the slip and return to the pile of paper in front of me. Harry and I have pieced together a good part of the evidence the police hold. From the pathology and forensic reports, we can tell the cops knew Ben’s death was no suicide within hours of removing his body from the office. Apart from the lack of any fingerprints, even smudged prints on the gun, the plastic shell cartridge still in the barrel was clean. Whoever loaded th
e gun was wearing gloves or used a rag to insert the cartridge. Gunshot residue tests on Ben’s hands came back negative. GSRs are chemical searches for nitrites and traces of lead, barium, and antimony-the stuff expelled with hot gases from any modern firearm. Even with a long gun of the kind used here, the residues of these elements would have planted themselves on the front and back of Ben’s nonfiring hand, the one used to steady the muzzle in his mouth while he supposedly fingered the trigger with the other. The conclusion is inescapable: Someone else fired the shot.

  “It’s a little baffling,” I say.

  “What’s that?”

  “How the murderer managed to get Ben to take it in the mouth. I mean, I can understand a head shot, up close. But a victim’s not likely to cooperate by sucking on the muzzle of an over-and-under. The immediate intention of the shooter’s too obvious.”

  “I suppose,” says Harry. “Maybe he was unconscious when they shot him.”

  “Medical examiner didn’t find any drugs in the body.”

  “Yeah, but that wound would’ve covered a lotta bumps on the head.”

  Harry’s got a point.

  The weapon itself-a twelve-gauge Italian make, Bernardelli Model 192, according to ballistics-featured a lot of tooling and a high price tag. It was registered to Ben. The second barrel was empty. Police reports said the gun was usually kept in a case in Potter’s study at his house, where Talia had easy access to it.

  Cheetam’s making a lot out of the gun. “A shotgun,” he says, “is not a woman’s weapon.” I’ve told him to save it for the jury. He says the case will never get there. The man has amazing confidence for one who has yet to look at the evidence.

  Ben’s body was found by a janitor in the Emerald Tower who heard the shot. On entering the office the man panicked at the scene of horror and retreated to the outer reception area, to Barbara’s work station at the front of the office, to call 911.

  A single drop of blood was later found in the service elevator, type B-negative, the same as Ben’s. Blood-spatter analysis, the fact that the larger drop of blood projected an aura of smaller droplets like the tail of a comet, led forensics to determine the course of travel with the body. They concluded that this blood dripped as Ben was carried from the freight elevator down the hall toward the office.

  According to the police reports, access to the garage of the building was gained by using Ben’s electronic key card. Computer records show that entry was made using that key about ten minutes before the janitor heard the shot. The cops assume that Ben’s keys were used to enter the office.

  “Whadda ya make of the hair?” says Harry. He’s fingering through a report on the other side of the table, making some notes.

  I wrinkle an eyebrow. “Troublesome. But not fatal.” Maybe I’m sugar coating it.

  Forensics has found a single strand of human hair caught in the locking mechanism of the shotgun. According to their report, “It is consistent in all respects with hair samples taken from the head of the decedent’s wife, Talia Potter.”

  “A single strand of hair could’ve been there for months,” I say. “Maybe she used the gun once. Maybe Ben took her hunting or skeet shooting. Maybe she dusted it in the case.”

  “Sure,” says Harry. “The lady’s a real domestic.” Harry harbors his own suspicions. It’s part of the reason I’ve hired him: to keep me honest.

  “Access to that gun cuts both ways,” I tell him. “It’s in her house; that strand of hair could’ve gotten there in a dozen different ways over a period of months.”

  “Uh-huh.” Harry doesn’t buy it, but a jury of reasonable people, those who don’t know Talia, might.

  Death was brought about by massive trauma to the brain caused by the high-velocity impact of a mass of lead pellets (number-nine shot). These are generally the loads used in bird hunting and by some skeet shooters. The shot has destroyed the brain. A single pellet has lodged in one of the basal ganglia. This, according to the pathology report, would have made any conscious movement by Ben after the shot impossible. He was in all respects instantly brain dead.

  “What do you make of this?” I say.

  I read Harry part of a footnote in the medical examiner’s report. Pathology recovered the pellet from the basal ganglion. It measures in at 10.68 grains of weight. This is considerably heavier than the few pellets found in the cranial cavity and the mass of several hundred lodged in the ceiling of Ben’s office. According to the report the usual weight of number-nine shot is .75 grains. In this case several of the pellets weighed in a little lighter and some heavier, but none approached the monster found in the basal ganglion.

  “Do they draw any conclusions?” asks Harry.

  “None”—I smile—“just the note.” Coop’s too street-smart to offer conclusions on such matters in his report. He puts it there like a ticking time bomb for the defense to figure out, and leaves himself maneuvering room to testify at trial. These are the games he played when we were on the same side, when I was prosecuting and Cooper was my prime expert. Having him as an adversary for the first time in my career is a challenge. It puts an unnerving spin on the case. Having pumped him for information as a neutral in his office that morning, I’m left to wonder how he will view my part in the defense.

  “What do you think caused it?” says Harry. He’s talking about the monster pellet.

  “I don’t know. I’ve heard of shots fusing together. Sometimes in a bad round the heat’ll melt” some lead before it reaches the end of the barrel. Could be a number of pellets fused together. But I think we’d better check it out.”

  Harry makes a note.

  There’s a lot of speculation in the police reports about Talia’s infidelities with other men. Harry seems to spawn a particular interest in this line of inquiry. The cops have lined up an assortment of witnesses, most of whom are trafficking in gossip. Talia’s maid, Maria, reluctantly confirms finding an article of men’s underwear between the sheets of Talia’s bed one morning. Ben, it seems, was out of town the previous night, and the item is not likely to have belonged to him. The cops refer to the thing as “a male G-string”—“a silk pouch in a leopard-skin print joined by two narrow straps of elastic to a waistband.”

  “Sheena, Queen of the Jungle,” says Harry. “Ya think maybe they swung from vines tied to the ceiling?” He looks at me as if to ask whether I’ve ever experienced such exotic pleasures.

  I sit silently, looking at him, a poker face, confident at least that the cops can’t trace the leopard skin to me, and wonder who among Talia’s male cabal might have worn such things. It is troublesome. If Talia takes the stand and denies affairs with other men, she will no doubt be asked to explain this item of clothing.

  Friends and acquaintances in her social circle have seen Talia out on the town in the tow of other men. Her sins of indiscretion have come home to roost. The men have all talked, reluctantly of course, to the police. Their names appear like a duplicate of the social register in the police report. The cops, it seems, are still busy searching for Talia’s accomplice in murder.

  “Coop was right about one thing,” says Harry. “Whoever did it was a real amateur.”

  “Maybe,” I say.

  He looks at me. “Can you doubt it? The gun wiped clean. The blood in the elevator. Serious discrepancies in the time of death. Only a fool,” he says.

  The suicide scenario, I concede, is thinly veiled. Not likely to deceive for long.

  “An understatement,” says Harry.

  He’s done with the last forensics report and puts it upside down on the finished stack of documents. “We’ve got some real problems,” he says. He starts a summary from the top.

  “Time of death. Medical examiner puts it at seven-oh-five P.M. The shot in the office isn’t heard by the janitor until eight-twenty-five. The cops don’t catch up with Talia at home “til almost ten o’clock. Unless the medical examiner’s been smokin’ formaldehyde, Potter wasn’t killed in the office.”

  I nod in agreem
ent.

  “That leaves us with the neighbor,” says Harry. “We better hope the lady’s got a reputation for keeping her head in a bottle.”

  Harry’s referring to the statement of an old woman, one of Potter’s neighbors, who claims she saw Ben’s Rolls parked in the driveway of his residence sometime just before eight o’clock.

  “If she comes across as believable,” he says, “and we can’t shake her testimony as to the time of her observations, it puts Potter in that house near the time of death.”

  “Trouble,” I say.

  “The jury’ll jump on it. If he was killed in the house, reason dictates it was a domestic thing. They’ll argue she whacked him in the house,” says Harry.

  “The cops did us one favor,” I say. “At least they got over there with a forensics team and swept through the house the next morning. You read the forensics report. Did you see any evidence of violence at the house?”

  He shakes his head. “Clean as a whistle.”

  “If he was killed there, one would think there would be some physical evidence at the house.”

  “One would think,” says Harry, like an echo. “But it’s not an absolute. They’ll speculate that it could have been done outside, or on a hard surface that was easily cleaned.” Harry’s doing his job, dogging the downside of our case.

  “At least we can argue that they looked and found nothing.”

  ‘True,” he says. “And they won’t claim that she shot him there. A twelve-gauge would’ve left blood ‘n’ brains all over the place. Neighbors woulda heard it too.”

  “Play cop,” I say. “Then how was he killed?”

  “My guess?”

  I nod.

  “They’ll opt for the old reliable—blow to the head with a blunt instrument.”

  “Doesn’t wash,” I say. “The pathology report says death was caused by the monster pellet.”

  “In the whatchamacallit,” says Harry.

  ‘The basal ganglion.”

  “Yeah, the ganglion.”

  “Unless they know something we don’t, they’ve got a problem,” I say.