Compelling Evidence

by Steve Martini

  Kauffman’s looking around like he’s not sure what this means. Another juror whispers in his good ear.

  “Do I have to leave, judge?”

  “Yes, Mr. Kauffman, I think so. Maybe you could help him out.” Acosta’s prodding his bailiff for a little help. The marshal and two men on the panel get him around the railing and point him toward the door.

  Kauffman’s seat is quickly filled, a tall man, well proportioned, in a buff cardigan and tan slacks.

  Kauffman’s still moving, shuffling like flotsam and jetsam toward the door, while other jurors talk to him from aisle seats in the audience, patting him on the arm, a folk hero.

  I’m on my feet at the jury railing, starting on the cardigan sweater.

  “Sir,” I say, “you’ll have to excuse me, but I don’t have the jury list. Could you give me your name?”

  “Robert Rath,” he says.

  He is bald as a cue ball, with a slender, intelligent face and delicate wrinkles of thought across the forehead.

  “Can you tell us a little about yourself? What type of work you do?”

  “Retired,” he says.

  I’m wandering near the jury box. Harry has the list and the juror questionnaires, so I’m blind as to Rath’s background.

  “What kind of work did you do?”

  “Military,” he says. “I’m retired from the Air Force.”

  I get bad feelings in my bones. This kind face, I think, is deceptive.

  Rath’s not volunteering anything. Nelson’s pulled the questionnaire from Meeks and is looking at it. He drops the paper and lifts his gaze to the judge, round-eyed, like there’s some concern here.

  “Tell us about the kind of work you did in the military, before you retired.”

  “JAG,” he says.

  “Excuse me?”

  “I was part of the judge advocate general’s office, a military lawyer,” he says.

  I turn and look at him. There’s a kind of confident, cocky expression on his face, like he knows he has coldcocked me.

  “What type of legal work did you do in the military?”

  “When you’re there for twenty-seven years, you do a little bit of everything,” he says. “But the last ten years I represented airmen under the uniform code of military justice. Your counterpart to the public defender,” he says. “Area defense counsel.”

  He smiles at me, broad, benign, a brother in the cloth.

  I glance at Nelson. He’s putting a face on it, composed, disinterested, unwilling to poison the other jurors with a burst of venom. But I know that in his gut he is churning, like the screws on the Love Boat.

  I try to match his composure. But there are little yippees, jumping, erupting, crawling all over inside of me. A defense lawyer on the panel and the people out of peremptories.

  Nelson’s not exactly screaming, but it’s the closest imitation I’ve seen by a lawyer at a judge in my recent memory. Acosta’s taking this in chambers, with the door closed. This time the court reporter is with us.

  “You can’t allow him to sit.” This sounds like an order from Nelson. He’s pacing in front of the judge’s desk, his hands flailing the air.

  “If it doesn’t violate the letter of the law, it certainly violates the spirit. The policy’s clear,” says Nelson. “The courts would never condone a lawyer exercising that kind of influence, dictating results to a jury of lay people behind closed doors. I can’t believe that you would want that.”

  “It’s not what I want or what the courts want, Mr. Nelson. It’s what the law demands.”

  For decades the statutes of this state had disqualified any lawyer from jury duty. Conventional wisdom held they would poison the fair-minded justice dispensed by average citizens, dominate other jurors. The organized bar went along with this, more interested in standing in front of the jury railing and being paid than sitting behind it. For forty years everyone was happy with this arrangement. Then a few years ago a lawyer-baiting legislator looking for headlines noticed these exemptions buried in the codes and cried foul. Reasoning that lawyers owed a civic duty to jury service, just like everybody else, he cowed the bar into silence, managed to suppress all rational thought on the subject, hustled his bill through the legislature, and promptly died. It was, it is said, his sole act of note in an otherwise undistinguished and brief legislative career. Lawyers on both sides of the railing have been taking his name in vain since.

  I wade into the argument, trying to take some of the heat off Acosta.

  “I wonder if the people would be here complaining, Your Honor, if Mr. Rath was a former prosecutor,” I say.

  “No,” says Nelson, “we wouldn’t have to, you’d have already scotched him with a peremptory.”

  It’s the hardest thing a lawyer has to do, argue with fundamental truth.

  The prosecution has leveled an assault on the juror Rath that would shame a Roman legion, all in an effort to excuse him for cause. He has dodged each of these with the guile of a magician. Here, I think, is a retired man, younger but like Kauffman, with much time on his hands, a man whose heart pines for a return to the courtroom.

  Nelson turns on Acosta and makes an impassioned plea for more peremptory challenges. Now he’s going for the soft underbelly. If the court can’t change the law to exclude Mr. Rath, it can exercise its discretion to grant the extra peremptories, he says. The ones the court talked about earlier.

  “I object. Absolutely not, Your Honor. The court’s ruling on this was clear,” I tell Acosta. “You agreed only to entertain a defense motion for additional peremptories to be given to both sides, if it was felt we could not empanel a fair jury for reasons of publicity. So far, I’m satisfied with this panel. The defense makes no such motion.”

  I tell Acosta that any additional peremptories given on request of the state would be viewed as highly prejudicial against the defendant.

  Acosta can hear little bells tinkling, the sounds of appeal.

  “Mr. Madriani’s right,” says Acosta. “My concession for additional peremptories was only for the causes as stated and then only upon proper motion by the defendant.”

  “Besides,” I say, “it’s time to finish with this jury and get on to the trial.” Expedition, getting on with it, the standing general order of every judge.

  “Sure,” says Nelson. “You’d put your mother on the jury and argue I was stalling if I tried to take her off.”

  “Mr. Nelson, if you have a comment make it to me.” Acosta cuts him to the quick. The argument is degenerating.

  “I can’t rewrite the statutes to excuse Mr. Rath because he’s a lawyer, and you’ve exhausted your peremptories. You tell me, you think you have an argument for cause?” Acosta’s looking at Nelson, heavy eyebrows bearing down.

  The answer is written in the prosecutor’s bleak expression.

  “It does violence to any sense of fairness, Your Honor.” Nelson’s shaking his head, but the imperative is gone from his voice. This is a little drama now, something that Nelson can put in the bank for later withdrawal, for use in a future skirmish, to remind the court how he was kicked on this one, and where.

  The judge is heading for the door, Nelson two steps behind him.

  “Just like a damn lawyer. When everything else fails, fall on equity.” I say this to Nelson, up close in his ear. My part, a bit of mock grousing.

  He smiles, spares a laugh at this. It’s good to see, at least at this early stage, Nelson still has a sense of humor.

  “The law’s the law. You and I both have to follow it, Mr. Nelson.” Acosta’s grumbling, unaware that we’ve both pitched it in. He’s blaming the law, unhappy that he couldn’t end this argument with all parties loving him.

  But for the moment he has my warm affection, and I have Robert Rath, my alpha factor.

  CHAPTER

  28

  ALL in all, things have gone well, far better than we had any right to expect. I know that there will be darker days to come, but for the moment we revel in our good fortun
e.

  Harry is glowing over the jury. I burned the last peremptory on an older woman, and we came away with a panel of eight men and four women. The two alternates, in case of illness, death, or disqualification, are both men.

  The four women are, from appearances, all solid, stable types, people who if the strings are played right should harbor no undue bent toward Talia.

  There is nothing more prone to error than forecasts of what a fickle jury may do. But at this moment, I would stake my life that within twenty minutes of the time they retire to the jury room for deliberation, Robert Rath will be anointed jury foreman. Though he tends to hang back, a Jeffersonian kind of lawyer to whom silence is golden, Rath is smart, intuitive. He has the kind of competence others can smell.

  Nelson is all dapper this morning, an expensive charcoal suit and French cuffs, a pound of gold at each wrist. He will be making his opening argument to the jury today, and impressions are vital.

  From here I can see him across the room, a counter-image of myself, caught up in an aura of excitement, as if bathed in the glow of spotlights. People are talking to him but he’s not hearing, busy, a little mental hyperventilation, preparing for combat.

  I look over, and Harry is having a few words with Meeks. Like diplomats at a summit, they are already working out the terms of instructions for the jury. These are little printed snippets of law, tailored to our case, that will be given as guidance by the court to the jury before deliberations. Nelson and I must have some understanding of these instructions now, if we are able to bend the facts of this case, to conform our theory of the crime to the governing law.

  This morning will be consumed by the judge. He will give lengthy ground rules to the jury: that they may not discuss the case with anyone; what they may see and read; the limits of their conversations among themselves. He will tell them about the case in broad terms, and the procedures to be followed by the court during the trial so there are no surprises.

  Harry leaves Meeks standing at the other table and comes over.

  “We got a problem,” he says. “They want an instruction on aiding and abetting, a definition of an accomplice.”

  This means that Nelson is trying to push the theory of a conspiracy to the jury, that he wants them to buy the scenario that Talia acted with a lover, this despite the fact that he has yet to arrest any accomplice.

  “Did you say anything?”

  “Not a word.”

  “Good. Leave it alone. Let ’em try their case, see what evidence they’ve got.”

  He nods.

  This is no calculated risk. If the state fails to produce evidence of an accomplice, we will object to this instruction when it is offered to the court, argue that it assumes facts not in evidence.

  Talia’s sitting at the counsel table looking lonely, a haunting emptiness in her eyes. For all of her innate comeliness, the stress of half a year under accusation and the anxiety of the first day of trial leave her with the kind of uninhabited stare one usually finds only in street people and other vagrants. Today, Talia has the appearance of a tenantless temple in search of a soul.

  As if I didn’t already have enough reason for keeping her off the stand, her current mental state would be the capper. Those who do capital cases for a living call it the “death-penalty suicide.” A despondent statement by the defendant before the jury, entirely innocent, an off-hand apology for something she didn’t do, may elicit lingering inferences of guilt. Such a lowering of the guard has resulted in more than one execution in this country in recent years. I harbor concerns that Talia, in her current state, is capable of such fatalistic conduct.

  I tap her on the arm.

  “We’ve got a few minutes, let’s go outside.”

  We get past the cameras and the commotions in the main corridor. She’s in front of me, moving down the hall, a silhouette of softness. I have read the rest of Bowman’s report on Talia, a few more secrets.

  At age fourteen Talia went to live with her aunt, Carmen’s sister, in Capitol City. It seems the two sisters were as different as night from day. Luisa was a matronly woman, attractive in her own right, who had found her way out of a life of poverty and managed to marry a high school English teacher, John Pearson. The couple provided for Talia the things that had always eluded her when she lived with Carmen—love, though at a little distance, a stable home environment, and the encouragement to improve herself.

  While her studies and schooling lagged and suffered from the years of neglect, with the help of her uncle Talia quickly made up lost ground. It seems that she possessed one of those minds capable of excelling on cruise control, with little effort. At graduation from high school she was near the top of her class. Her SAT scores and a good grade-point won her a scholarship to a small private college in the Bay Area.

  She studied business, something that Talia perceived would give her independence and freedom in a male-dominated world. She remained distrustful of any close relationships, particularly with men. Talia had not shaken the horrors of her childhood and the memories of pawing hands. After graduating with honors, Talia returned home, to the only family she had, Luisa and John Pearson, and at the age of twenty-two decided to ditch her roots. Paying a two-dollar filing fee, she petitioned the superior court and formally shed the name of a father she had never known. She changed her name from Griggs to Pearson and in her own mind joined the world of respectability.

  Within four months she landed her first real job, an executive trainee position with a small cable television station in the capital.

  Before she met and married Ben, Talia had two serious romantic interludes with men closer to her own age. Both of these involved upward career moves. The first lasted a year, an apparently painless encounter with Harold Simpson, her supervisor on the job. They parted friends and from all appearances have continued to stay in touch over the years. The second, James Tarantino, was an executive with a trade association in the capital, a sometime lobbyist and public relations expert for the Wine Institute. Talia was learning to rely on her beauty as well as her intellect to get ahead. She lived with Tarantino for four months. He made the unhappy mistake of showboating her at the institute’s annual gala, a feast at the Hilton—tables of ice sculptures, an ocean of cocktail sauce, and shrimp the size of lobster. Over hors d’oeuvres Tarantino introduced his date to a distinguished guest, the senior partner for the institute’s law firm, Benjamin Potter. Incapable of any long-lasting relationships with men, Talia, it seems, had found the father figure she had never known. The rest is history.

  I’m taking Talia to the little commons area—an atrium, some bushes and shade trees, landlocked by executive offices in the center of the courthouse building. This is off-limits to the public and press. A few judges sometimes eat lunch here, serenity in a sea of conflict. She sits on one of the little stone benches.

  Talia’s got a cigarette out of her purse. She’s gone back to smoking, a habit once kicked, but a crutch she now seems to need. She lights up and looks at me, a picture of dependence.

  “I want to prepare you,” I say.

  Her expression tells me she is not looking forward to this, a train of long admonitions from her lawyer.

  “In a few minutes you’re going to hear a lot of ugly accusations. Nelson’s going to get up in front of the jury and tell them that you killed Ben, that you planned it, that you waited until the right moment, and that you or a lover shot him in the head with the little gun, then mutilated the body to make it look like suicide.”

  She cringes just a little at this, breaks eye contact with me.

  “It’s important—it’s imperative that you keep your cool, that you control your temper, your emotions. The jury is likely to form some important first impressions today.”

  “I’ll try,” she says.

  “Don’t try. Do it. We can’t afford to give this jury a picture of a defendant out of control.”

  By all rights, given the statistics and the realities in capital cases, Talia should have
a big advantage, at least on the issue of death. She is rich, and good-looking, articulate, though the jury may have no chance to hear her firsthand. Juries generally don’t hate people who look like themselves. Since the preliminary hearing, when we are in court, I’ve had her dress down, a fashion show in reverse, so much so that today she is a symphony for the common man.

  Talia wears a neat gray pleated skirt and simple white blouse, a little fluff around the collar, like Mary Queen of Scots ready for the injustice of this trial.

  “For a while,” I tell her, “it’s going to look bad for our side, a little unbalanced.”

  The state will bludgeon us with its opening argument. Strategy will dictate that we reserve our own opening until it’s time for the defendant’s case in chief.

  “In the beginning the jury will have a one-sided view of things,” I tell her. “That’s why it’s important that we don’t play into their hands, become emotional.”

  She asks me a few questions about expression, how she should look.

  “Concerned,” I tell her. “Like a woman on trial for her life, for a crime she didn’t commit.”

  She looks away, blowing smoke rings, an assortment of expressions, faces of concern, in the dark glass windows that surround us.

  “Don’t act,” I tell her. “A jury can smell it. You won’t have to, believe me.” My guess is that Talia will be scared witless when she first hears Nelson unload.

  I walk her through more of what she can expect. I explain that the DA will parade an army of witnesses to the stand before we have a chance to put up our own.

  “Most of this testimony you’ve seen in the preliminary hearing,” I say. “But this is the big time, they’ll gloss it, pull out all the stops. There will be some surprises,” I tell her.

  “Tony?” she asks.

  I nod.

  “What will he say?”

  “You’ve seen the deposition.” I’ve shown Talia a transcript of Skarpellos’s statement, his words before I stuck my pike in him and drew blood off the record. This was a little insurance against surprise, an awestruck face sitting next to me for the jury to see.