Compelling Evidence

by Steve Martini

  “Who told you Ben was considering a divorce?” I ask.

  “We have a witness,” says Nelson.

  He is not the kind to gloat over bad news delivered to an adversary.

  “You haven’t disclosed him to us.”

  “True,” he says. “We discovered him after the prelim. We’re still checking it out. When we have everything we’ll pass it along. But I will tell you, it sounds like gospel.”

  Lama’s expression is Cheshire cat-like, beaming from the corner of the couch. I sense that this is his doing.

  “I think you should talk to your client. I’m sure she’ll see reason,” says Nelson. “If you move, I think I can convince the judge to go along with the deal.”

  “I’ll have to talk to her,” I tell him, “but I can’t hold out much hope.”

  “Talk,” he says. “But let me know your answer soon. If we’re going to trial, I intend to ask for an early date.”

  CHAPTER

  25

  SARAH is crawling all over me like I’m some kind of jungle gym.

  “It sounds,” says Nikki, “like it’s not going well.” She’s talking about the preparation for Talia’s trial. There has been an uneasy truce between us since our dinner at Zeek’s.

  Nikki is beginning to take an interest in Talia’s case. She claims this is merely commercial, just watching her investment and the way I am handling the defense. But I sense something more here. There is a certain softening of her attitude toward me now that I have openly acknowledged my earlier affair with Talia. I am beginning to wonder if in this there may not be the seeds of a new start for us. I do not push it.

  “It would be easier if Talia told me everything,” I say. “Last week I find out from the DA that Ben was planning a divorce. Like a bombshell, they dropped it on us during plea negotiations. I don’t even get a hint from my own client.”

  Nikki is seated at the kitchen table in front of a small portable computer, a project for work. She hits the keys, and white symbols crawl across a black screen like worms burrowing in loam.

  “What did she say, about a divorce?” Nikki’s curious.

  “She says it’s garbage, that Ben never said anything to her about any divorce.”

  “What do you think?”

  “I think I believe her.”

  “Intuition?” she says.

  “Logic,” I say. “It’s possible Ben might keep his plans for a divorce from Talia, at least until after the senate confirmation of his appointment. But if it’s that big a secret, why would he tell somebody else?” That the DA claims to have a witness, someone so intimate that they had Ben’s confidence on this, doesn’t wash, not to me.

  “And this is pivotal,” she says, “his plans for a divorce?”

  I look at her and make a face, like “You can believe it.”

  The nuance of this latest twist in our case is not lost on Nikki, this despite the fact that I’ve never told her about the prenuptial agreement. It fleshes out the motive. If Ben intended to shed Talia after confirmation, once lifetime tenure on the court was assured, and if she knew this, it could be seen as a prime motive for murder. If she waited, she could lose everything. If he can make out all the elements, Nelson can use this to build a strong case.

  “Lately she’s compounding things by little lies and half-truths,” I tell Nikki.

  “Like what?”

  “Things I can’t talk about without violating privilege,” I say.

  Nikki understands this. It was an unwritten rule during our marriage, a limit as to how much I could tell her about the cases I was working on. In Talia’s situation, I can’t talk about the alibi, the story she fabricated for the cops about her trip to Vacaville, or the fact that the police are closing in on Tod and that the two of them were supposedly together the night Ben was killed.

  “But you really believe that she’s innocent of Ben’s murder, don’t you?” Nikki is looking me straight in the eye now.

  “I do,” I tell her.

  “Maybe she has a reason to lie.”

  “Oh, she has a reason. She says she was protecting a friend.”

  Nikki stops her work and looks at me.

  “A lover?”

  I’m noncommittal on this. A kind of response that has always been transparent to Nikki.

  “Another man.” She declares this with confidence. Nikki hasn’t lost her touch, her ability to read my mind.

  “Your client is caught between you and her commitment to another man. If I know her, and I think I do, you’ve got a real problem.” Nikki shares the female perspective with me. “In the war for information,” she says, “you won’t win. Not if she cares about this guy, and if what you’re asking may put him in jeopardy.”

  “It sounds like some kind of female jihad” I say. “A holy war that only members of your gender know about.”

  Nikki smiles over at me, silent, intuitive, her eyes saying only “Remember my warning.”

  “It may cost her her life,” I explain.

  Nikki’s attention is back to her work. She’s talking now through the distraction of computer logic.

  “Maybe she can’t see the danger as well as you can.”

  “I’m sure of that.”

  Nikki is busy now, knocking out some characters on the computer, her mind submerged for the moment in her work. Then, for no particular reason, she shifts away from the trial and Talia.

  “By the way,” she says, “how is Coop these days? I miss seeing him.” Coop had been a regular at the house every Tuesday night, with Nikki making sandwiches for our weekly poker soirees. I assume she has not seen him since she moved out of the house. Nikki has one of those tender spots common to many of her sex. She had taken a special interest in Coop since the double loss, his wife’s passing and the death of Sharon.

  “Had lunch with him last week. I see him in court,” I say; “beyond that neither of us has much time for poker these days.” I have been wondering myself about Coop of late. I had always believed that George Cooper was a man of unlimited resilience. The tandem tragedies visited on his life have now proven me to be wrong. He puts a face on it in court, a professional veneer that weathers even the most blistering assaults by hostile lawyers and imperious judges. But outside of the courtroom he is a different man, subdued in ways I have never seen before, a shadow of the expansive and gregarious man I once knew.

  Sarah’s up in my lap again, this time in a cotton pajama. We call them “rabbit suits,” the things that little kids sleep in, complete with feet and the embroidery of a hot air balloon on her tummy. She’s hugging and kissing me good night, big hugs with her arms full around my neck, and little kisses so delicate they would not disturb the petals on a rose.

  Nikki takes her, and the two of them head for the back of the apartment to read about bears and trolls, castles and elves, the stories that lull little minds to sleep.

  I am left alone to think, and as always my thoughts return to the trial now rapidly approaching.

  This thing with Tod, it bothers me. Almost as much as it does Talia. He is different from her other friends. He’s continued to support her, stand by her even now when the risks are plain. The others, her social set, shed Talia like a flea-infested blanket shortly after the preliminary hearing. Now they follow her fate daily from the safety of their clubs or the security of their homes. They read about it in the sanitized columns of their morning newspaper, or watch as her life unravels on the tube at night.

  I’ve heard this morning from Talia that Tod has been called by the police to appear in a lineup. According to the cops it’s all routine. But I know better. My letter to Nelson—the one accompanying the little handgun and identifying Tod as having touched it, to exclude his prints—has singled him out. He’s to go tomorrow with a number of other men, all acquaintances of the defendant, to stand before the white wall with the horizontal lines. Lama’s keeping his witness, the motel clerk, busy.

  I’ve told Talia of my concern, that in the end I think Tod will
be the enemy. She scoffs at this. But if he is charged, the dynamics of conflict will set in. Represented by other counsel, he will be sequestered from Talia by his own lawyer. This imposed silence, this quarantine, will fire suspicion. Nelson will bleed it like the fatted calf, with alternative offers, deals to each of them, if they will only roll over on the other. I have wondered many times how much perjured testimony these tactics breed in our courts. Though I have used them myself many times, in that former life, when I worked for the DA’s office.

  Nelson is true to his word. Twenty-four hours after I informed him of Talia’s rejection, her refusal to plead, we are headed for court. He has asked Acosta to set a trial date.

  Talia and I run the gauntlet of cameras and microphones down the broad corridor leading to the courtroom. In her lust for news one of the radio jocks, a woman with a mike trailing a long cord to the recorder strapped over her shoulder, has managed to hook six feet of cable in the jangling bracelet on Talia’s wrist. The two of them do an awkward dance down the hall to my chorus of “No comment … maybe we’ll have a statement later.” Finally, at the courtroom door they disengage, Talia unclipping and abandoning her bracelet with a dozen dangling colored stones. The price of freedom.

  In the sanctuary of the Coconut’s courtroom a sea of heads whip around to see us as we open the door. The pencil-wielding press is waiting for the main event.

  Acosta is on the bench taking a plea in another matter. I usher Talia to the back row of chairs and take a seat beside her. The defense attorney and the deputy DA are haranguing each other over some detail that hasn’t been worked out. Acosta’s lost interest in this duel. He’s tracking us with his eyes at the back of the courtroom. Then he returns to the business at hand.

  “Maybe you want to use my chambers to work this thing out.” It’s not a question. Acosta is pointing like the deity on the ceiling of the Sistine Chapel, toward the opening at the side of the bench, the hall that leads to his chambers.

  “Don’t waste my time,” he says. “The next time you come here, I expect you to have these things worked out.”

  The deputy DA takes the brunt of the judge’s wrath. He turns and sees his boss seated, tapping on the railing. Nelson is flanked by two of the senior deputies from the office. I know one of them. Peter Meeks is a wizard with the written word, a master of briefs. In junior high, where crib notes and the brokering of homework were the path of passage, part of the rites of puberty, Meeks would have been the guy drafted to pen the daily essays.

  The two lawyers in front of Acosta pick up their papers. The defense attorney leads his client away, still grousing about some part of the deal he wasn’t getting. They drift past the bailiff’s station to the hidden door back behind the bench and disappear, grumbling into the shadows.

  Acosta shuffles files and looks up at us.

  “People versus Talia Potter.”

  Pleasantries are exchanged as Acosta shifts social gears, a little more upbeat now that Nelson is at the table and the court is no longer dealing with the hired help.

  Talia and I spread out at the defense table.

  “The people are asking for a trial date, is that correct?”

  “Correct, Your Honor.” Nelson and his two assistants take their seats and fumble with a few papers.

  “Mr. Madriani, before we get to a date, this court would like to know your intentions with regard to venue.”

  The court is asking whether we intend to try to move the trial to another city, a change of venue to ease the sting of adverse pretrial publicity.

  “We’ve considered a change of venue, Your Honor. However, given the nature of the press coverage in this case, the fact that my client’s husband was nationally prominent and that news of his death and these charges have run repeatedly on the national wires, I’m not sure that a change of venue would serve any purpose.”

  “I’m inclined to think you’re right,” says Acosta. I can tell what he’s thinking, that this is easier than it should be. “Then I take it you’re waiving any motion for a change of venue?”

  “I didn’t say that, Your Honor, only that we will not seek a change at this time. We would reserve the right to file an appropriate motion at a later time, during voir dire, if it becomes apparent that we cannot empanel an impartial jury.”

  Harry and I have set aside $10,000 of our limited resources to hire a market research firm whose specialty is the demographics of jury selection. The company will do a random population sampling for Talia’s case. In ten days we will know what portion of Capitol County has heard of Talia, read about the crime, and formed opinions as to her guilt or innocence. We will know the socioeconomic breakdown of those who believe her innocent and those who think she might be guilty. We will know the effects of five months of blistering daily news coverage. Similar samples will be taken in four other counties of comparable size where, if a change of venue is ordered, we might expect the case to be moved. This will tell us whether anything is to be gained by moving the trial. So for now, I maneuver to keep my options open.

  Acosta’s not sure what to do with this thing, the open and unresolved issue of venue. It’s not in the bench book, the folder of crib notes they gave him with his robes that he clutches like the Bible on the bench. Like most compulsives, he likes things in neat little boxes.

  He clears his throat a little and looks at Nelson. “Do you have any problem with that?”.

  Nelson is huddled with his minions at the other table. He finally looks up.

  “No, Your Honor. That’s fine.”

  “Very well.” Acosta was hoping for a little help. He checks the notes in front of him. Next item.

  “Publicity,” he says. “It’s a problem in this case.” Acosta is looking out at the reporters in the front row. In a banana republic he would have an easy answer. Here his options are more limited.

  “I’m reimposing the order that was lifted after the preliminary hearing,” he says. “The parties and their counsel are not to discuss any of the details of this trial or to comment upon it in any fashion with the press or with any parties outside of this courtroom, except for the usual preparation of witnesses and collaboration among co-counsel. Is that understood?”

  A noticeable groan goes up from the front row. The age of enterprising journalism, it seems, is over.

  This is fine with me. Acosta has freed us from the need to fire return salvos in a war of words designed for public consumption. Given the disparity of resources, ours against the state’s, I’m not anxious to waste my time, or Harry’s, coming up with daily sound bites.

  Nelson and I acknowledge the terms of the gag order.

  The door opens at the back of the courtroom. I turn a little in my chair to see Harry hustling down the aisle, breathless and sweating.

  “Mr. Hinds, I’m glad you could join us.”

  “Sorry, Your Honor. I was interviewing a client at the jail. Had a little trouble getting out.”

  “The people who come here tell me it’s like that.” Acosta smiles, broad and paternal.

  Harry dumps his briefcase on the counsel table and pulls up a chair.

  “I’ve imposed a gag order in this case. We wouldn’t want you to end up back at the jail as a guest, so you might get the details from Mr. Madriani.”

  Harry nods. He’s ransacking the innards of his briefcase looking for a note pad.

  “Is discovery complete?”

  “No, Your Honor.” I speak before Nelson can.

  He looks at me a little startled.

  I whisper across the breach between the tables, about his secret witness. I wink a little to avoid the details. Busy pens are working in the front row.

  “Oh yes.” He remembers. His source who knows more about her marriage than Talia.

  “There is one witness we discovered late,” he says. “I’ve already informed the defense as to the nature of the testimony this witness will provide. I will follow that up with a letter. There is no written statement by the witness. I’m prepared to d
isclose the identity of the witness, the name and address, at the close of this hearing, if that would assist the defense.”

  “Is that acceptable, Mr. Madriani?”

  “That’s fine, Your Honor.” I shrug my shoulders.

  “You’ve delivered everything else, Mr. Nelson?”

  “Yes, Your Honor.”

  “And Mr. Madriani, have you shared your witness list with the people?”

  This is not a legal requirement for the defense in this state, but a courtesy enforced by most judges. In this regard Nelson and I have each loaded our lists with the names of a dozen shills, witnesses we have no intention of calling. In this way we conceal our strategy, our respective theories of the case. We force each other to waste valuable time preparing for witnesses the jury will never see. Such are the games that lawyers play.

  I tell the court that I have indeed delivered my witness list and physical evidence discovered by the defense in the preparation of its case.

  This latter is wholly gratuitous. I am referring in cryptic terms to the small handgun, Talia’s twenty-five caliber. We were correct in our assumption. Ballistics has come up dry on any match with the bullet fragment found in Ben. It has proven too small for comparison. The only prints found on the gun were those of Talia and Tod Hamilton, both accounted for in our report that accompanied the gun when it was delivered to the police. Nelson will use this to show that Talia had access to a handgun, but he will have an uphill battle. There is no concrete evidence linking this weapon to the crime. I will argue that the gun as evidence lacks any real probative value, that its introduction into evidence may lead to possible erroneous conclusions on the part of a jury, assumptions prejudicial to our client. In this way, I believe, I can keep the gun out.

  “Are there any other motions from the people?”

  Nelson looks down the line at his brain trust, the paper pushers. If there is a paper blizzard thrown by the state during the trial, these two will be working the wind machine.

  “Not at this time, Your Honor.”

  “Mr. Madriani, is there anything else?”