There’s more stirring from the audience. Two of the reporters leave, probably to telecast live news shots from their vans parked in front of the courthouse.
Nelson now heads into the imponderables, the caliber of the small round and the distance from which it was fired. Coop explains that the answers to these questions are less certain since the bullet was but a fragment, and any tattooing that might have been left on the skin from a point-blank shot was obliterated by the massive shotgun wound. It is Coop’s opinion, stated to the court, that the bullet that caused death was itself fragmented by the shotgun pellets as they entered the brain.
“The shotgun blast,” he says, “in all medical respects, was an unnecessary redundancy.”
“Unless,” suggests Nelson, “someone was trying to make a murder look like a suicide?”
Precisely,” says Coop.
He is now Cheetam’s witness.
“Dr. Cooper, you say mat this mystery bullet fired into the head of Mr. Potter was the cause of death. Were you able to find an entry wound for this bullet?”
“No, as I said …”
“You’ve answered the question, doctor. So we have no entry wound that you can find for this bullet. How large was the bullet in question, what caliber, can you tell us?”
Coop’s eyes are turning to little slits.
“Not with certainty. It was a fragment.”
“Oh, a fragment. How big was this bullet fragment, doctor?”
Coop consults his report. “Ten point six eight grains,” he says.
“And when you conducted the post mortem, did you find shotgun pellets lodged in the victim’s head?”
“Yes.” Sensing Cheetam’s juggernaut, Coop’s gone to short answers.
“How many of these pellets did you find?”
“In the victim, or in the office ceiling?”
“Let’s start with the victim.”
Coop looks at his notes again. “There were sixty-seven removed from the cranial cavity during the post mortem.”
“And in the ceiling?”
“Four hundred and ninety-two.”
“Do you know the size of this shot found in the victim and in the ceiling?”
“Mostly number nine.”
“Do you know what these pellets were made of?”
“They were composed of lead with a thin coating of copper.”
“Do you know, doctor, how many pellets there are in a normal load of number-nine shot?”
“About five hundred and eighty-five …”
“Objection, Your Honor.” Nelson has caught Cheetam wandering. “If Mr. Cheetam wants to call a ballistics expert, he’s free to do so. Dr. Cooper is here to testify as to the medical pathology in this case.”
“Sustained.”
“Still,” says Cheetam, “the doctor knows his shot. He’s right on with the number.”
“Objection. Now counsel’s testifying.”
“Mr. Cheetam, direct your comments to the witness and kindly frame them in the form of a question.”
“Sorry, Your Honor.”
“Dr. Cooper, the shotgun pellets you found in the victim and in the ceiling of Mr. Potter’s office, were these all number-nine shot?”
“No. They varied in size.”
“They varied?” Cheetam’s eyebrows arch for effect, and he turns toward the jury box, forgetting for a moment that it’s empty.
“Some were one shot-size larger and some were one shot-size smaller, but most of them were number-nine shot.” Coop’s voice is flat, as if he’s saying “So what?”
Cheetam pauses for a moment. He wants to ask Coop whether such variations in shot size are common. But Nelson will have the court kick his butt. He moves on.
“Now this supposed bullet fragment, you said earlier that it was ten point six eight grains. Is that correct?”
“Yes.”
“How large were the shotgun pellets found in the victim?”
Again Coop looks at his notes. “They averaged about point seven five grains of weight.”
“So this other thing, this thing you identified as a bullet fragment, was a little bigger?”
“No, it was a lot bigger,” says Coop. “Approximately fifteen times bigger.”
“I see.” Cheetam’s smiling, not to appear set back by an unhelpful answer.
“Doctor, have you ever heard of the phenomenon called ‘fusing’ as it’s applied to shotgun ballistics?”
“Objection, Your Honor.” Nelson’s at him again.
Cheetam’s having a difficult time trying to get where he wants to go.
“Let me reframe the question, Your Honor.”
“Please.” O’Shaunasy’s looking over her glasses at him again.
“In the course of your medical practice I assume you’ve done hundreds, perhaps thousands, of autopsies.”
Coop nods.
“And I assume that some of these, perhaps a considerable number, would have involved shotgun wounds.”
“A number,” says Coop.
“In the course of these autopsies involving shotgun wounds, have you ever encountered a situation in which two or more, perhaps sometimes even several, shotgun pellets fuse together to form a larger mass of lead?”
Cheetam turns to engage Nelson’s eyes, an imperious grin having finally arrived on his face.
“I’m familiar with the phenomenon. I’ve seen it,” says Coop.
The grin broadens on Cheetam’s face.
“Well, isn’t it possible that this object which you have identified as a bullet fragment, isn’t it possible, doctor, that this amorphous piece of lead is in fact just a number of shotgun pellets which have become fused together by the heat of the shotgun blast as they traveled down the gun barrel?”
Cheetam turns his back toward Coop. He’s now facing Nelson, straight on, with his arms folded, waiting for the expected shrug of the shoulders and the concession of “It’s possible.”
“No,” says Cooper. “These were not fused pellets.”
Cheetam whips around and takes a dead bead on the witness.
“How can you be so certain, doctor? Are you a ballistics expert now?”
Coop is slow to answer, methodical and deliberate.
“No,” he says. “I’m not a ballistics expert. But I’ve taken enough steel jackets from bullets out of bodies to recognize one when I see it.” Then, as if to pound the point home, he adds, “The fragment removed from the basal ganglion of Benjamin Potter was not lead. It was a portion of a steel jacket, used only in the manufacture of pistol and rifle bullets.”
“Oh.” Cheetam stands in front of the witness box, his mouth half open—like the emperor without clothes. He has violated the cardinal rule of every trial lawyer: Never ask a question unless you already know the answer.
“In this case it was thin and small,” says Coop, describing the fragment of jacket. “The wound that it inflicted was insufficient for a high-caliber rifle. Therefore, I arrived at the obvious conclusion that it was part of a bullet from a small-caliber handgun. Probably a twenty-five caliber …”
“That’s all for this witness, Your Honor.” Cheetam’s trying to shut him up.
“Because that’s the smallest caliber that uses a steel-jacketed round,” says Coop.
“Move to strike the last answer as not responsive to any question before the witness, Your Honor.” Cheetam is shaken, standing at the counsel table now, looking for refuge.
“Very well, counsel, but I should remind you that since you’ve opened this matter up, Mr. Nelson is free to explore it on redirect.”
O’Shaunasy’s put him in a box.
With nowhere to retreat, Cheetam withdraws his motion to strike, allowing all of Coop’s answer to remain.
Nelson passes on redirect. George Cooper has done all the damage necessary for one day.
Cheetam sits fidgeting nervously with a pencil, as Nelson calls his next witness. It is Matthew Hazeltine, Ben’s partner. It was left to Hazeltine to craft wills and
living trusts for the firm’s wealthy clients. Probate and estate planning are his specialties. He comes to this role well suited in appearance, a miserly-looking man with a craggy face and round wire-rimmed spectacles. If social reserve were a religion, Matthew Hazeltine would be its high priest. I can count on the fingers of one hand the times that I had spoken to him while with the firm. With Sharon Cooper’s probate file still hanging fire, I have wished on successive occasions that I’d made a greater effort to cultivate him.
He testifies to the existence of the prenuptial agreement, a document that he says the victim asked him to prepare before Potter and the defendant were married. He now produces a copy of this contract, which Nelson has marked for identification.
“Have you ever drafted a document similar to this agreement for other clients?” asks Nelson.
“On a few occasions.”
“What is the purpose of such an agreement?”
Hazeltine considers for a moment before speaking. “Usually it’s intended to protect the rights of heirs, children by a former marriage.”
“But the victim had no children in this case. Isn’t that true?”
“That’s correct.”
“And the defendant possessed no children?”
“Right.”
“So what purpose would such a document serve?”
Hazeltine squirms a little in the chair. His is a gentleman’s venture, the drafting of wills and other papers of property where delicate questions of motive are, more often than not, left unstated.
“Mr. Potter was a very cautious man. He believed in keeping his personal affairs in order. He was not one to take chances.”
Hazeltine smiles at Nelson as if to say, “Enough on the issue.”
“Mr. Hazeltine, have you ever heard of something called the Rooney clause?”
Hazeltine’s eyes turn to little slits behind Coke-bottle lenses.
“I have.”
“Can you tell the court where this term comes from?”
“Mickey Rooney.”, Hazeltine is curt, to the point. He does no more than answer the question stated.
“The actor?”
“Yes.”
“And what’s the purpose of this clause—briefly, in layman’s terms?”
“It’s designed to protect a party from a spouse who may seek to take unfair advantage.”
“In what way?”
Hazeltine is uncomfortable with the turn this line of inquiry is taking.
“A spouse who might marry for money and seek a quick divorce,” he says.
“Ah.” Nelson’s nodding, playing obtuse, as if he’s just now understood the significance of all of this. “Have you ever heard another name for this clause?”
Hazeltine looks at him, down his nose. “Not that I recall,” he says.
“Haven’t you ever heard the term ‘gold-digger’s covenant’?” asks Nelson.
The witness gives a little shrug. “Some people may call it that.”
“Well, wasn’t this clause, this so-called ‘gold-digger’s covenant,’ included in the prenuptial agreement you prepared for Mr. Potter?”
“Yes.”
“And was it the victim, Mr. Potter, who specifically asked you to include this language in the agreement?”
“It was.”
“And did you explain to the two of them, to Mr. and Mrs. Potter, at the time that they signed this agreement, its implications and what the legal effect was?”
“I did.”
“And what is that legal effect?”
“Mrs. Potter could inherit nothing from the estate of Mr. Potter unless she was lawfully married to him on the date of his death.”
“So if she divorced him”—Nelson pauses for a moment—“or if he divorced her, she would get nothing, is that correct?”
“Yes.”
“Your witness.”
Cheetam takes one long look at Hazeltine sitting in the box and waives off. He’s still stunned, shaken by Cooper’s torpedo.
“Your Honor,” I say, “I have a few questions for this witness.”
Cheetam looks over at me as if to throw daggers with his eyes. I look the other way, ignoring him.
O’Shaunasy nods for me to proceed.
I remain seated at the counsel table, and hone in on one gnawing question, the answer to which has remained closed to me in discovery.
“Mr. Hazeltine, isn’t it true that prenuptial agreements are often drafted in concert with wills, that the terms of such an agreement are carefully coordinated with the terms of a will?”
“That is common.”
“Were you asked to draft a will for Mr. Potter at the time that you drafted the prenuptial agreement?”
“Objection.” Nelson is on his feet. “Irrelevant, Your Honor.”
O’Shaunasy’s looking at me.
“The district attorney has opened this entire area, the question of the victim’s testamentary intentions. He’s produced evidence that unless my client was married to the victim at the time of death, she stood to lose everything acquired during the marriage. I think we have the right to see the full picture in these regards.”
“Overruled. The witness will answer the question.”
“I was asked to draft a will at the same time that I did the prenuptial agreement.”
I get up from the table, and move laterally, keeping an appropriate distance from the witness.
“I think you’ve already stated that Mr. Potter had no children.”
Hazeltine nods his assent.
“Did you prepare mutual wills for the Potters, or just one?”
“Just one, for Mr. Potter.”
“Under the terms of that will, if for any reason the defendant, Mrs. Potter, were disqualified from inheriting, because of divorce, or for any other reason, did Mr. Potter name any other heirs, persons who would inherit his estate?”
Hazeltine is clearly uncomfortable with this. He’s looking up at the judge as if for a reprieve. “Your Honor, the will has never been read. I am the executor, but until these proceedings are completed, I thought it best that any probate be postponed. These are matters of considerable confidence.”
“I can appreciate that,” says O’Shaunasy, “but they are also material to this case. You will answer the question.”
Hazeltine looks back at me, a little hopeful that perhaps I have forgotten it.
“Were there any other heirs named in the will?”
“There were several. A distant cousin in the Midwest was the only surviving relative other than Mrs. Potter. He was to get a small inheritance. Mr. Potter left several hundred thousand dollars to the law school. The balance of his estate went to his wife, and if she predeceased him or for any other reason was disqualified, then the entire estate went to a single alternate beneficiary.”
“Who was that?”
Hazeltine is pumping little points of perspiration through his bald scalp.
“Hjs partner,” he says. “Mr. Skarpellos.”
There are little murmurs in the courtroom.
“So if Mrs. Potter were”—I search for a better word but can’t think of one—“eliminated, then Mr. Skarpellos would take her part of the estate?”
Hazeltine swallows hard. “That’s correct,” he says.
“Oh.”
The full measure of Matthew Hazeltine’s reluctance is now clear. Matters of confidence or not, I can be certain of one thing. Whatever Hazeltine knows of Ben’s will is also known to Tony Skarpellos. Such is the Greek’s domination of his so-called partners. I am finished with the witness and release him to a worse fate: his office and the wrath of Tony Skarpellos.
CHAPTER
18
“IS it important?” I ask her.
I I’m on a lunch break from Talia’s case, wolfing down a deli sandwich and working to return phone calls, a stack of slips left on my desk by Dee from that morning.
“Not vital,” she says, “but a loose end that we should tie up before we close the estate.”
“I just about got it assembled,” she says. “It’s a little messy, the file. Nothing I can’t fix, you understand. When I’m done goin’ through everything I’ll publish the notice to creditors, prepare the decedent’s final tax return—unless her father already did one.” It is more a question than a statement.
“Better do it,” I say. Knowing Coop and his mental state at the time of Sharon’s death, I’m sure he was in no mood for dealing with the minutiae of tax returns. The fact that the state could tax this transaction, the death of his only daughter, was, I am certain, as foreign to George Cooper as capital gains are to the homeless.
I’ve heard this morning, through the grapevine, that the police have run out of leads. A month ago they thought about checking cellular telephone records on the off-chance that the driver of Sharon’s car may have had a hand-held portable phone, and that he or she may have used this to get a ride from the scene. But this was such a long shot, one that even Coop could not justify pursuing. Instead he has called in every chit he holds, and finally convinced the cops to give him one man, a skilled forensics tech, for three hours, to go over the car one more time in hopes of finding something they may have missed in earlier searches.
“I’ll take care of it,” says Peggie Conrad. “The tax return. Then I’ll set up the property schedules. That’ll do it, I think.”
“How long before we can close?” I ask. “I’m anxious to get it done,” I tell her. “A favor for a friend.”
“Thirty, maybe forty-five days. One court appearance. We might be able to avoid it. If there’s no complications, no creditors’ claims, sometimes they’ll take a case on a written submission. Do you want me to try?”
“If you can, it would help. This thing that’s missing, the receipt, is that a complication?” I ask.
Compelling Evidence Page 18