More to the point, evidence which may be of marginal value in proving a matter in the case, but which is highly inflammatory, tending to prejudice the jury, may be excluded entirely. On this the judge is God.
“Even the most fair-minded jury,” I tell Acosta, “is not likely to look with kindness on a defendant charged with such brutality.”
I remind him that these photographs fail in all respects to establish any link between my client and the crime in question.
“Let me see them,” he says. Acosta’s left his own copies on the bench. I give him mine.
He flashes the wide-angle at Nelson, little detail and a lot of office furniture. “If you want crime scene, this one looks good,” he says.
He starts making a stack with the other close-ups, all facedown on his desk. He finds another, a picture of the shotgun lying on the floor, just Ben’s shod foot in a corner of the shot. “This one’s OK,” he says. He’s toying with the next. A hard close-up, a little blood, but so far the cleanest of the bunch.
Nelson’s fuming. “One picture of the victim would be nice,” he says. “So they can remember it wasn’t a victimless crime.”
Acosta looks at him with mean eyes. He drops the picture onto the stack of rejects, a victim of Nelson’s sarcasm and bad timing.
Back out before the jury, and Nelson has had his wish list of pictures butchered by the Coconut, though Acosta has covered his bets. He’s severely limited the photographs the state may use at this point in the trial, but left open the use of other pictures if the state establishes a compelling nexus between the defendant and the crime.
Talia’s in her seat, fragile, a gray pallor in her cheeks, holding her stomach with one hand. I think she’s lost her breakfast.
From a stack of twenty-six prints, Nelson has only eight left to show Canard for purposes of identification. These are all relatively harmless, long-distance shots of the office, points where the killer may have come and gone from the building, a lot of little exit signs, a sanitized album. They are quickly identified by the witness and marked.
“Your Honor, the people would move the remaining photographs into evidence.” Nelson will take what he can get, at least for the time being.
“Any objection, Mr. Madriani?”
“None, Your Honor.”
The pictures start filtering through the jury box, being passed from hand to hand. One of the older women tries to adjust her glasses to get the detail on the wide-angle. For this she will need a magnifying glass, I think.
Nelson and Canard do a few more preliminaries. The witness identifies the shotgun found at the scene, the twelve-gauge Bernardelli over-and-under. Then Nelson turns to a more pressing agenda.
“Detective Canard, did you have occasion to interview or talk with the defendant on the night of the murder?”
“Objection, Your Honor. The question assumes facts not in evidence.”
“Excuse me,” says Nelson. “Detective, did you have occasion to talk to the defendant the night that Mr. Potter died?”
“I did.”
“How did that interview come about?”
Canard explains how a radio car was dispatched to Ben’s house, but that no one was home. The patrol officer was ordered to wait at the residence until someone, any family member or friend, arrived. Then he was to radio Canard, who would drive out and make the overtures to the family. Except in an emergency where the victim was lingering, this was standard procedure in the department, he says. He tells the court that Talia arrived home about ten P.M. and he immediately left Ben’s office and went to the house.
“That was the first contact that you had with the defendant, Talia Potter?”
“It was.”
Nelson is slow, methodical on this, developing each question, setting a foundation of stone.
“Did you have occasion to inform the defendant that her husband was dead?”
“I did.”
“To your knowledge, had she been told previously by anyone else?”
“No,” Canard says. “Our officer at the house had express instructions not to contact the family.”
“Can you tell the jury, when you informed the defendant, Talia Potter, that her husband was dead, what was her reaction?”
Canard takes on a more thoughtful expression. “She took it rather casually,” he says.
“Casually?”
“Yes, no outward emotion,” says Canard.
“No tears? The defendant didn’t break down and cry?”
“Not immediately,” he says.
“She waited awhile?”
“Objection, Your Honor. Leading and suggestive. The district attorney is trying to put words into the mouth of the witness.”
“Sustained.”
“What did the witness say when you told her that her husband was dead?”
“She asked how it had happened.”
“What did you tell her?”
“I told her he died as a result of a gunshot wound, what appeared at that time to have been a possible suicide.”
“And what was her reaction to this?”
“She didn’t have much reaction. It was almost like she might have expected it.”
“Objection, Your Honor. Move to strike the second part of the answer as unresponsive to the question, speculative,” I say.
“Sustained. The witness is advised to confine himself to the questions asked.” Acosta’s looking down his nose at Canard.
“The reporter will strike the second part of the witness’s response. The jury will disregard the opinions of the witness concerning what the defendant might or might not have expected. This is not evidence,” he says.
“When you told her that her husband might have committed suicide, did the defendant start to cry at that time?”
“No,” he says.
Nelson’s trying to make of this lack of emotion something it is not, that Talia knew more than she did, that she knew Ben was already dead when she arrived home.
“In fact did she cry at any time in your presence during the initial interview at the victim’s residence?”
“No,” says Canard.
“During that interview did you ask the defendant where she had been that evening?”
“I did,” he says.
This will all come in. Talia, when she talked to Canard, was not in custodial interrogation, not the focus of suspicion. There was no need to Mirandize her, no way I can keep her alibi away from the jury, the false information she gave the police.
“And what did she tell you?”
“She said that she had been on a business trip, having left her office earlier that day and traveled to Vacaville to inspect, or I think she said ‘tour,’ some property. A house that was for sale.”
“The defendant was in the real estate business?”
“As far as I know, that’s correct.”
“According to the information given to you by the defendant, she went nowhere else, only to Vacaville to tour this property and back home?”
“That’s correct.”
“Detective Canard, can you tell us how far it is, in miles, between Capitol City and Vacaville, roughly?”
“About fifty miles, to the property in question. It’s out of town a little ways.”
“You’ve checked this?”
“On my odometer,” he says.
“How long would it take to drive that distance and back, in your estimation, doing the speed limit?”
“Two hours, less perhaps, depending on traffic.”
“Did you ask the defendant what time she left on this trip?”
“She told us it was about four o’clock, four P.M.,” he says.
“So it was possible that the defendant, if she left at four in the afternoon, could have driven to the property in Vacaville, toured it, perhaps briefly, and returned to Capitol City by, say, what”—Nelson shrugs—“six-thirty in the evening?”
“Possible,” says Canard.
“Detective Canard, did you or your
staff take any action to independently verify the whereabouts of the defendant on the day in question?”
“We did. We obtained copies of the defendant’s credit card statements for the period in question and looked for gasoline purchases, restaurant purchases, items she might have purchased while in transit between Capitol City and Vacaville.”
“And what did you find?”
“We found no purchases made by the defendant by credit card between Capitol City and Vacaville on that date.”
“Did you make any other inquiries?”
“We subpoenaed checking account records belonging to the defendant, to see if she might have drawn any checks to establishments along that route on the date in question.”
“Did you find any?”
“No.”
Talia’s squirming next to me in the chair. She leans over toward me.
“They know,” she says.
I smile at her, for the benefit of the jury, like she has just said something amusing, a little wit to take the edge off the monotony. Then I nudge her with my knee, hard under the table. If she is acquitted, Talia could still be bruised for life.
“What other action, if any, did you take to verify this alibi?”
“According to the defendant she gained admission to the property in Vacaville by use of a realtor’s lockbox. The combination was given to her by the listing real estate agent in Vacaville. We dusted that box for prints, to see if we could identify the defendant’s fingerprints on the box.”
“Did you find her fingerprints on the lockbox?”
“No, we did not.”
“So you were unable to establish any independent verification that the defendant was in fact in Vacaville on the date that Ben Potter died, is that correct?”
“That’s correct.”
This is the high-water mark of Canard’s testimony, a piece in a mosaic, a flood of circumstances from which the jury is to infer that Talia was not surprised by Ben’s death because she had participated in it, that she in fact lied to the police concerning her whereabouts, that she possessed the opportunity to commit murder.
Nelson looks at me. “Your witness.”
For a lawyer, in trial there is nothing more difficult than dealing with a lie by your client to the authorities. I cannot put Talia on the stand to refute this. To do so would be to suborn perjury. I am left to nibble around the edges at the inferences and conclusions drawn by the cops based on this erroneous information.
“Officer Canard …”
“Detective,” he says, a little shot for dominance in the eyes of the jury.
I’m rising, moving toward him in the box.
“Excuse me. Detective Canard. How many homicide cases have you investigated in your career?”
“I don’t know, exactly.”
“A hundred?”
“More,” he says.
“Two hundred?”
“I don’t know.” Canard is wary, not sure of where I am going with this.
“A good number, I assume, enough cases that you would be considered experienced, a veteran homicide investigator?”
“Yes,” he says, satisfied that such abstractions are safe ground.
“So it’s safe to say that you’ve dealt with a good number of cases involving grieving family members, survivors of victims?”
“Yes.”
“How many do you think, a hundred such survivors?”
“I don’t know.” We’re back to numbers and Canard is taking a dive.
“A guess?” I say.
“Objection.” Nelson keeps his seat. “The witness has answered the question.”
“Sustained.”
“You’ve been heading up homicide’s special section for twelve years, is that correct?”
“Yes.”
“I assume that in that twelve-year period you would have had numerous occasions when it would have been necessary for you to bring bad tidings to survivors of crime victims, to tell a wife or child that a husband or father had been killed? Is that true?”
“The worst part of the job,” he says.
“I assume that some of these survivors might go into a state of shock on hearing this news?”
“I suppose,” he says.
“Do you know, detective, the physical symptoms of shock? For example, do you know whether a family member who is stunned to a state of shock by such horrible news, whether that family member would cry? Whether there would be instant tears at the moment they hear the news?”
“Objection, Your Honor. The witness is not a physician.”
“Sustained.”
I have what I want. I’ve planted the seed with the jury. I shift gears—from speculation to experience.
“Detective Canard, in all the homicide cases in your long career, is it your experience, is it your testimony, that in delivering news of some tragedy, the death of a close family member, that the survivor always and invariably, without exceptions, breaks down in tears upon hearing this news?”
One of the axioms of cross-examination—draw the question in absolutes, push it to the brink of the absurd, and over.
“Not always,” he says.
“So there have been some people in your experience as a homicide investigator who when told of the death of a loved one, actually did not immediately begin to cry?”
“That’s true,” he says. Anything else would bring laughter from the jury.
“And have you always and invariably concluded from this that the survivor who does not instantaneously break down in tears somehow is implicated in the death of the victim? Do you always assume that the person who doesn’t cry is a murderer?”
“Objection, Your Honor. The defense is misconstruing the testimony of the witness.”
“I think not, Your Honor. If the absence of instantaneous tears on the part of Talia Potter was not being offered to this jury for the sole and express purpose of implying her guilt in murder, I would like the district attorney to tell us for what purpose it was offered.”
Nelson is motioning with his hands, making faces, buying time to think.
“To show the defendant’s state of mind,” he says.
“Exactly,” I say, “to imply by any means, fair or foul, that she had a guilty state of mind.”
“It’s a fair question. The witness will answer it,” says Acosta.
Canard can’t remember the question.
“I’ll restate it,” I tell him. “Do you always assume that the person who doesn’t cry is a murderer?”
“No,” he says.
I look over at Nelson. I can tell he is beginning to wonder if he has not picked up the dirty end of this thing he has tried to bludgeon us with.
“So then in fact there is no theorem of police science, no reliable formula of law enforcement, that allows you to take a cup and measure the production of a person’s tear ducts in order to determine whether they are responsible for the death of their loved one?”
“Your Honor, I must object.” Nelson’s busy trying to break my rhythm.
Canard is a bundle of resentment sitting in the box.
Before the judge can rule on Nelson’s objection, Canard responds.
“No,” his teeth clenched.
Acosta lets the objection go by, no grounds being stated.
“So it is entirely possible, based on your experience as a seasoned homicide investigator, that the reason my client Talia Potter did not immediately break down in tears upon hearing the news of her husband’s death had absolutely nothing to do with any theory that she might be implicated in his death? Isn’t that correct?”
“I suppose,” he says.
“That it could well have been due to other factors, the shock that this news inflicted on her system, the variations in individual emotional makeup, all those things that, not being a physician, you wouldn’t know about?”
I look at Nelson, who’s trying to put a face on it, nonchalant, sprawled in his chair, playing with his pencil.
“I don’t k
now,” says Canard. “I suppose.”
“Fine,” I say. I allow a breather, a little punctuation to let the jury know I’m moving on to other subjects, that I consider this campaign finished.
Now I turn on the charm, easing back, signaling Canard that maybe the worst is over.
I ease into the next phase and get a quick admission. Canard’s tired of being beaten on. He concedes that it could take considerably longer than two hours to travel between Capitol City and Vacaville and back again if any portion of the trip was during the rush hour. In doing so he gives up any plausible argument that this would have been possible given the time of death in this case, about seven in the evening. Nelson scratches another point from his score card.
I ask Canard whether in the inventory of the personal effects found on the victim the police found his keys—to his car, the office, and his house. He confirms that these were on the body when it was discovered in the office.
“Detective Canard, you testified earlier that during the course of your investigation you examined the defendant’s gasoline credit card statement as a means of verifying her alibi, her trip to Vacaville?”
“That’s correct.”
“You also testified that the distance between Capitol City and the property which the defendant toured in Vacaville was approximately fifty miles, making for a rough hundred-mile round-trip. Is that correct?”
“Yes.”
“Do you know what kind of vehicle the defendant was driving on the day in question, the day her husband died?”
“I believe it was a Mercedes, the small two-door sports coup. Five hundred SL,” he says.
“During the course of your investigation did you happen to check the capacity of the fuel tank on that vehicle?”
“No,” he says.
“Would it surprise you to learn that the model will hold twenty-one point one gallons of fuel, that it gets seventeen miles to the gallon on the highway, that it has a range of over three hundred fifty miles, that it could have traveled between Capitol City and Vacaville more than seven times without refueling?”
“If you say so,” he says.
“But you didn’t check these facts?”
“No,” he says.
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