Compelling Evidence

by Steve Martini

  “I’ll handle Tony,” I tell her. “You worry about the jury and what they’ll see when they look at our table. Like that,” I tell her. I’m pointing to her cigarette.

  “I know you can’t do it in the courtroom, but even outside during a break, jurors have eyes. It makes you appear hard,” I tell her. “It is easier for a jury to convict and condemn someone who looks hard.”

  Her eyes follow me, the expression of a frightened bird. Then she crushes the cigarette on the concrete.

  “This, ladies and gentlemen, was a violent, calculated, premeditated murder.” His voice is booming, the crest of a verbal wave breaking over the jury box. Nelson stands stark still before the railing, centered like some dark exclamation point punctuating this charge for the jury.

  Minds that have begun to wander, with the collective stomach full from lunch, are jolted to consciousness. Seconds pass in silence as Nelson allows the jury to assimilate the full measure of this thought.

  “Ben Potter was a brilliant lawyer, a star on the ascent. A man with everything to live for, a thriving law practice, friends who loved and admired him. You will hear testimony in this court, ladies and gentlemen, that Benjamin Potter was highly regarded, not only here in this community among lifelong friends, but on a broader plain, at the very core of our national government. At the time he was cut down, he was among a handful of select candidates under consideration for appointment to the highest court in this land, the United States Supreme Court.”

  Nelson labors only a little under the impediment that the nomination was never formally announced. He cuts through this difficulty as if it is trivial. He offers Ben’s status like a statement of damages to the jury, an immense social loss to the community. Studies show that a victim well liked, highly regarded in the community is more likely to bring a conviction from a jury, that the killer is more likely to suffer death.

  “Ladies and gentlemen, the state will produce evidence, testimony by expert witnesses, that the victim, Ben Potter, was brutally murdered at another location, shot in the back of the head, execution style, that his body was then transported to his law office in this city. Expert witnesses will tell you that a twelve-gauge shotgun was then used, inserted into the victim’s mouth and discharged in an effort to deform the body, to conceal the earlier bullet wound, to make it appear as if the victim had taken his own life.”

  Some of the jurors are recoiling at this mental image.

  “Evidence will show, ladies and gentlemen, that hair found in the locking mechanism of this shotgun is consistent in all respects with samples taken from the head of the defendant, Talia Potter.” With this he points an extended arm, a single finger of one hand, like a cocked pistol at Talia.

  Jurors are looking at her now, wondering how it is possible that this woman could perpetrate such a vile act. Her eyes are cast down at the tabletop. I lean over toward her, an indifferent smile on my face, like Nelson has just offered us tea and toast.

  Between clenched teeth I whisper: “Look at them, in the eye. Each one of them.”

  She lifts her gaze, a defiant expression, not good, but better than a whipped dog, I think.

  Nelson moves on to other evidence from which inferences can be drawn linking Talia with this horror. He tells the jury that a witness, a neighbor, will testify that the victim’s vehicle was seen at the residence he shared with the defendant at or near the time of death.

  “While Talia Potter claims to have been out of town at this time, ladies and gentlemen, police over months of intensive investigation have been unable to verify this story,” he says.

  Nelson leaves Talia’s lame alibi at the jury railing like some spoiled morsel of meat, already beginning to send up rancid odors.

  His sense of timing is meticulous, pauses in all the right places for effect. His speech borders on closing argument, but not close enough for me to disrupt it with objections, well prepared, rehearsed, like some out-of-town play finally arriving on Broadway.

  He talks about the prenuptial agreement, the fact that Talia stood to lose everything from her liaison with Ben unless she was married to the victim at the time of his death. He discusses this document in hushed tones, as if it were holy writ.

  He takes more time talking about the marriage, the undeniable difference in their ages. He trips deftly through the tulips of Talia’s reputation, mostly inferences, innuendo, but all supported by witnesses, he says, nothing with which he might draw a colorable objection. There is the leopard-skin jock strap found by the maid in Talia’s bed, clothing which the maid will testify did not belong to the victim. This is enough to raise a few eyebrows, titillate a few libidos. He finesses this, then becomes more overt.

  “A witness that we will produce, ladies and gentlemen, will tell you that the defendant was seen on numerous occasions in the company of other men, not her husband, registering, taking a room at a local motel, with these men.” He plays upon this effect, letting the full force seep in for the jury.

  It is becoming clear that it is not Talia on trial here, but her passions.

  He has yet to explain in clear terms how Talia murdered Ben, and then by herself moved the body and dealt with the grisly task of the shotgun in the mouth. But it is now no quantum leap for this jury to close the loop of inference, to find that she had help from a lover for these chores.

  Nelson steals a glance at his watch, moving sideways, out of the jurors’ sight. Everything well staged. Forty minutes he has been at this, the optimum time for a jury to retain the critical elements.

  “Finally, ladies and gentlemen, the state will produce a witness, an intimate friend and business associate of the victim, who will tell you that at the time of his death, Ben Potter, for reasons which will become obvious to you all, was seriously contemplating a divorce from the defendant, Talia Potter, and that he was in the process of searching for a good divorce lawyer for that very purpose when he was murdered. A divorce, ladies and gentlemen, which when coupled with the prenuptial agreement, would have left the defendant, Talia Potter, in financial ruin.

  “The evidence will show,” he says, “that to avoid this divorce, to avoid the prospect of losing everything that mattered to Talia Potter—wealth, social status, a marital relationship which she treated as casual and convenient—that Talia Potter engaged in an intricate and diabolical plot, and that with careful premeditation, she murdered Ben Potter.”

  He stands for a moment, again at center stage, by the railing, engaging their eyes, the collective soul of this jury, then moves to the counsel table and takes his seat.

  The jurors, at least half of them, are taking a more studied and cautious look at Talia, weighing these words against the figure they see at our table. I can feel her shaking in the chair next to me. Carefully I take my hand and put it over hers on the arm of the chair, out of their view. It is as if I have somehow grounded her, and the trembling passes.

  “Mr. Madriani, your opening argument?” Acosta’s looking at me.

  “The defense will reserve its opening, Your Honor, until close of the state’s case.”

  It is a calculated risk, to wait, one theory being to dispel any forceful impressions left by Nelson before these thoughts can find a home among the jury.

  I believe that I can be more deliberate, more damaging to the state’s case after it has closed, presented all of its evidence. I am lying in wait, to pummel the prosecution with the Greek. Nelson may have theories, educated hunches as to where I am headed. For the moment I choose to leave him only with these.

  Acosta looks at his watch. It is after three o’clock.

  “Unless there are objections we will adjourn, to reconvene at nine o’clock tomorrow morning. The state will be prepared to present its first witness at that time.”

  CHAPTER

  29

  JIMMY Lama’s run up a dead end looking for Susan Hawley. She has disappeared. He has his finger in my face, spitting expletives at me on the steps in front of the courthouse, for the world to see.


  It’s a chance passing. Lama’s coming out as I’m going in. Nikki is with me, taking off the morning from work to see the opening shots in Talia’s trial. Purely a commercial interest, she says.

  “Where is she, hotshot? Where ya hiding her?” Lama’s calling my client every vile name he can think of and invents a few of his own, applying them to me, loud enough for a few passersby on the street to hear.

  Hawley has given him the slip, and me too, pulled out of her apartment with no forwarding address or phone number. Immunity does funny things to different people. In the case of Susan Hawley it has given her an aggravated case of wanderlust.

  If Lama has ambitions for advancement based on his part in “boinkgate,” Hawley’s disappearance has put a big hole in his plans. He is being hammered by the prosecutors to find her, before they must dismiss. It seems that without Hawley, they have no case, and Skarpellos has no alibi.

  I’ve put Nikki behind me, with Lama still in my face.

  He’s working his way through the cop’s version of Gray’s Anatomy, calling me names I don’t recognize.

  Finally he breaks off this tirade and frames what, for Lama, is a coherent question.

  “Where is the cheap fuck?” he says.

  I don’t think this deserves an answer, even if I had one, and I begin to move around him up the steps, keeping myself between Lama and Nikki, shielding her as best I can from this spray of offense.

  “You gettin’ a little on the side?” he says. “We know she’s a good fuck, but we only need her for an hour. I promise we’ll give her back when we’re finished.”

  This stops me dead in my tracks, and for a fleeting instant I consider the curb a few feet away and the buses rolling by at a good clip. I would be doing humanity a vast service. But Nikki’s tugging on my arm.

  “You really should get help for that,” I tell him.

  “What?” he says.

  “Professional assistance to keep the foam from dribbling down your chin.”

  We are pitched, our necks bowed like two bucks ready to do primordial battle.

  From the corner of my eye I see a figure approaching; it grabs Nikki by the arm and tugs her up the steps. It is George Cooper, come to the rescue, removing my wife from this ugly scene.

  “We’ll subpoena her ass,” says Lama, “and serve it on you.”

  “Spit is still spit,” I tell him.

  With this he pulls up close, an inch from my face, without touching me. “One day,” he says. “You’ve got one day to produce her. Blow it and I’ll kick your ass.”

  Coop is back down the steps, leaving Nikki on higher ground.

  “Jimmy,” he says, his hand cuffing the back of Lama’s neck, where the hair bristles. “This is not the place.” Coop winks at me, playing a little matador with this mad bull, giving the two of us an honorable path of retreat. He moves Lama a few inches back toward the sidewalk, where the two talk quietly. This is Coop the peacemaker. One thing you always like about George Cooper is that he never checks his friendship at the courthouse steps.

  Lama shrugs Coop’s hand off his shoulder. Then I get the back of Lama’s coat, and he is hoofing it toward the light on the corner.

  Coop is back to me now. “You don’t want to mess with that one,” he says. Coop’s eyes are dark and serious. “Jimmy Lama’s big trouble.”

  I am shaking with anger. Cooper and I move to Nikki waiting at the top of the steps. She’s looking at Lama in the distance.

  “Lovely man,” says Nikki.

  “Yeah, a real prince,” says Coop.

  I’m burning to the tips of my ears.

  Captain Mason Canard had been up and down, in and out, in the flash of an eye during the preliminary hearing, a seeming afterthought sandwiched as he was between the evidence tech and ballistics. With only O’Shaunasy to judge the evidence in the prelim, Nelson’s emphasis and order of presentation were geared to the technical legal eye.

  Now, with twelve new scorekeepers in the box, Canard has been put in the lineup in the leadoff position.

  He is of medium height, slender, well manicured, and well dressed. His worsted suit hangs nicely on his lean frame. The thinning silver-gray hair is combed back and off to one side, in the style reminiscent of British royalty in the thirties. If personal appearance counts for much, it is easy to see how Mason Canard rose to a position of authority in the department, and why Nelson has juggled his lineup in front of the jury. The cardinal rule: Lead with strength.

  Nelson has the witness state his name for the record and launches into his background.

  Canard is a thirty-year veteran of the police department, the last twelve heading up homicide’s special section, a group of elite detectives who take the cream of the cases. Given the social weight of the victim, and the early interest of federal authorities in the crime, Canard took charge of the scene in Ben’s office along with Nelson the night they found the body. He has been dubbed the investigating officer in charge, delegating most of the spadework to subordinates.

  “You were not the first on the scene, then, Detective Canard?”

  “No, when I arrived there were already three patrol cars, and the EMTs, the emergency medical technicians, had arrived. There were also a few other people, employees in the building.”

  “But you took charge of the scene.”

  “That’s correct. I was the senior law enforcement officer present.”

  Nelson then takes the jury on a verbal tour of the procedures used by police to secure the building, to ensure that any evidence was well preserved, pristine.

  According to Canard there was a veritable parade of yellow tape and positioned guards, all with an eye toward sealing every entrance and exit of the building.

  “Do you know who discovered the body?”

  There are no surprises here. Canard identifies Willie Hampton, the young janitor.

  “Did you personally question Mr. Hampton and the other officers to determine if anything had been moved or disturbed at the scene before your arrival?”

  “I did. I was assured that the victim and his physical surroundings were precisely as they had been discovered by Mr. Hampton.”

  “Did you supervise the taking of photographs at the scene?”

  “I did.”

  Nelson retreats to the counsel table, where Meeks hands him a large manila envelope. He has been heading here with this witness from the start. A little gore for the jury.

  He pulls out three sets of photographic prints, each fastened at the top by a large spring clip. He hands one of these to me and another to the bailiff for delivery to Acosta.

  Talia is at my shoulder, all eyes. I have seen most of these before, delivered during discovery, but I’ve not given Talia the benefit of a preview. It would not do, before the jury, to have her view these scenes of carnage with seeming insensibility.

  The first is a full shot of the office from the door, with a wide-angle lens, a little too far back for any real detail. It shows Ben’s desk, some disarray, papers on the floor, and his chair behind it, canted at an angle away from the camera.

  I take off the clip and go on to the next.

  This is a grisly eight-by-ten, a glossy color print, a close-up of Ben, from the top of the desk up—muted shades of congealed blood, the color of rust.

  Talia sucks some heavy air, her fingers to her mouth, an expression of stark horror. It is all I could have hoped for. I turn on some tender care for my client, an arm on her shoulder, an encouraging word in her ear. While these concerns are real, it is also vital in a death case to humanize the defendant before the jury at every stage, to demonstrate that she has real emotions. It is why so few women suffer the death penalty, not that they are the fairer, more fragile sex, but that they are capable of exhibiting their emotions in open court. Unlike men, they are freed by social convention to flood the court in tears. Juries don’t like to kill real people, only the callous, those who utterly lack any sense of feeling or remorse.

  I flip to the next phot
o. Another close-up, head and shoulder shot. These are what Nelson wants, to enflame the jury. There is no real semblance of Ben in this photo, but the image of a distorted and disfigured head, a picture of what the emergency room docs would call “massive tissue loss”—a vast portion of the top of his head gone, facial features stretched and distorted like some torn rubber mask.

  Talia’s getting sick.

  “Your Honor, could we have a moment.” She’s up and moving, with the help of one of her female friends, toward the door and the ladies’ room. She has set the stage for me.

  “Your Honor, I would request a conference in chambers.”

  Acosta goes off the record.

  With the defendant gone, the court has little else to do. Acosta, Nelson, and I retire to the back, along with the court reporter, packing her stenograph. I leave Harry at the table to entertain Talia when she returns, to keep her from commiserating with Tod.

  The door is closed. Acosta’s looking at me.

  “Well, Mr. Madriani, the jury’s off on another coffee break. If we keep meeting like this, this trial’s going to bust their kidneys.”

  I tap the copies of the photographs in my hand. “Your Honor, the defense will stipulate that the victim is dead.”

  He laughs a little at this.

  “Too many photographs?” he says. He’s nodding his head like he agrees with the obvious answer to his own question.

  Nelson has done what every good trial lawyer does when dealing with pictures, produce them in abundance, offer thirty and secretly hope to get three.

  “It’s not just the number,” I tell him, “but the content of some of these photographs that troubles me. Not terribly probative and highly prejudicial,” I say.

  Nelson is the picture of exasperation.

  “Your Honor, it’s not a coffee klatch. It’s the crime scene of a brutal murder. If the defendant wants nice pictures, she should go to a wedding.”

  In this state judges have broad latitude regarding the admissibility of evidence. Under provisions of the evidence code, cumulative layers of documents all tending to prove the same argument may be distilled down to a single document or a couple, to save time.