Compelling Evidence

by Steve Martini

  This is like waving a red flag under the nose of a raging bull.

  “Sir.” Acosta is now looking at Eli’s lawyer. “You are treading on thin ice. Continue with this and you may be sharing a cell with your client.” He’s talking about contempt, the ultimate hammer of any judge.

  The Shield Act, or so-called newsman’s privilege, takes up a single section of the codes. It has been lobbied into law by newspaper publishers, enacted by the politicians and scoffed at by the judiciary, which has shredded it with exceptions in a dozen court decisions. This is what happens when the legislative branch attempts to limit the powers and prerogatives of those who wear black robes.

  Acosta’s mastery of the legal issues here leads me to believe that he has actually spent time in the case reports over the weekend, since Walker’s column, sifting the law. He is laying the groundwork for the record, speaking in muted tones and crystalline terms that a two-year-old might comprehend, with an eye on appeal should Walker choose to go to jail rather than talk.

  “So that there is no misunderstanding, Mr. Walker, the Shield Act is a qualified privilege only,” says Acosta. “This means that where issues of fair trial are involved, as they are here, it must give way. In short, the Shield Act does not apply to protect these sources. Do you understand?”

  More conferencing, Walker to his lawyer and back.

  “Your Honor, my client would like to cooperate, but he can’t.”

  “Can’t or won’t, counsel? Are you telling me that he doesn’t know the identity of his own sources?”

  With Walker I can believe this might be the case.

  “No, Your Honor. He is constrained by professional ethics.”

  This I cannot believe.

  “He cannot in good conscience reveal the identity of these sources.”

  Nelson is fuming in the corner. From all indications he has turned his office on its ear looking for the culprit. He was caught flatfooted when the motel clerk fingered me late last week from a file shot on television. News, presumably, the witness wasn’t supposed to be watching. I am now left to wonder how many of the jurors have also seen Eli Walker’s column. Judicial orders that they shade their eyes are difficult to enforce. It’s like watching water turn to steam, you may never know the cause, you see only the result, in this case a quick conviction.

  I could give Nelson a little help in his search for the office leak, point him in the right direction, but this morning the DA is looking at me as if I am some lowlife. Acosta too is miffed that I should be compromised like this, not concerned for my own reputation, but fearful that this latest fracas may result in a mistrial.

  Through all of this, the court is looking at ten days of wasted time and money, and the bad press that accompanies it if the case must be dumped. This is to say nothing of the months of preparation. It is not something that Acosta wants on his judicial résumé, not something likely to lead to further elevation. Some judges are defense oriented, others side with the prosecution. Armando Acosta has only one constituency that he strives to attend, himself. He is determined to discover the people responsible for this leak and to punish them accordingly.

  “Is that your final answer, Mr. Walker?”

  Eli nods.

  “You must speak for the record.”

  “Yes, Your Honor. I have a commitment to my profession,” he says. “I cannot tell you.”

  He speaks in a noble tone, like George Washington to his daddy about the cherry tree.

  I am wondering if his lawyer has told Eli that they do not serve booze in the county jail, even in the relatively tame little room they reserve for star boarders. In forty-eight hours, ethics will take a backseat to the DTs, and if I know Eli, and my senses are correct, he will feed Lama to the Coconut.

  “Then you leave me no alternative, Mr. Walker. I hereby hold you in contempt and order you into the custody of the county sheriff for a period of three days, at the end of which time we shall meet and confer again. We can all hope that by that time you will have come to your senses.”

  “Your Honor, I would request that my client be allowed to remain free, pending appeal of the court’s order.”

  “Denied,” says Acosta.

  It will take at least three days for his lawyer to get to the appellate courts on an extraordinary writ.

  The lawyer seeks assurances that Walker will not be kept in the general lockup with other prisoners. Acosta assures him, in his own inimitable fashion, that Eli will not be raped, then nods to the bailiff, a sign that it is time for Eli to go.

  The bailiff takes him by an arm out into the courtroom and around to the courthouse holding cells. Walker’s lawyer drifts away, back into the courtroom and the corridor beyond, to tell the assembled throngs, the media horde, what their hero has done.

  “Now to more pressing matters,” says Acosta. “What are we going to do about your witness, Mr. Nelson?”

  Before Nelson can open his mouth Harry is up from the couch on his feet, moving for a mistrial. We have agreed that Harry should take the lead in this matter, to defuse Acosta’s clear rage at me, and to take the self-serving edge off my current predicament.

  “Thank you, Mr. Hinds. I’ll take your motion under submission. Right now I’d like to hear from the DA if you don’t mind.”

  Harry takes his seat. We are like two bookends on the Coconut’s couch.

  “James Preston has clearly identified Mr. Madriani as one of several men seen with the defendant checking into the Edgemont Motel,” says Nelson.

  “So what?” says Harry.

  Acosta shoots him a look that would stop a charging bull elephant, but not Harry Hinds. He is up again, like some spring-loaded puppet.

  “There’s nothing, not a shred of evidence linking Mr. Madriani to the crime. This is gossip-mongering, pure and simple. The prosecution is in trouble so it’s trying to put the passions of the defendant on trial, to discredit her attorney,” he says.

  “That cell,” says Acosta, “the one that Mr. Walker is now occupying. I should warn you, Mr. Hinds, it has plenty of room for two. Now sit down and shut up.”

  This puts Harry back down on the couch again.

  Acosta looks at the court reporter. “Strike that latter from the record. From the part about jail,” he says.

  The court reporter stares at the Coconut, like “This isn’t done.” Acosta shoots her another withering look, and keys are being punched on the little stenograph, history being rewritten.

  Nelson rips into Harry’s argument. “This is competent, relevant evidence,” he says. “It is something the jury should hear. Something on which the jury should be allowed to form its own conclusions.”

  He tries to soft-peddle this to the Coconut, giving assurances that the state will not dwell unduly on my indiscretions.

  He knows as well as I that a single reference to this matter will seal Talia’s fate in the eyes of the jury. It would be as if suddenly the devil had jumped up to argue her cause.

  He concedes that I am only one of several men that the witness will identify as having been with the defendant at the motel. What they want to expose, he tells the court, is not my own failings, but Talia’s record of infidelity.

  “The fact that the defendant was engaged in extracurricular activities goes to her state of mind,” says Nelson, “her motive for wanting to terminate what was clearly an unsatisfying marriage.”

  Acosta mulls over this for a moment, weighing the ins and outs of this argument.

  “Now,” he says, “it’s your turn.” Harry starts to get up.

  “No, no, not you,” he says. “Him.” The Coconut injects all the contempt he can into this single personal pronoun, gesturing toward me with the back of his hand. He wants me in sackcloth and ashes.

  I am on my feet, stumbling verbally. The hardest thing a lawyer will ever have to do, defend himself.

  “I apologize to the court,” I say, “for this situation that I find myself in.” I try to explain that this relationship with my client is
something of ancient history, like the Druids at Stonehenge. The Coconut isn’t buying this, or maybe it’s just that he doesn’t care.

  “But you didn’t disclose it to the authorities, to the court, did you, Mr. Madriani?”

  “No, Your Honor, I did not.”

  “Why?” he says.

  I begin to get into it, going backward, starting with my last conversation with Ben at Wong’s the night before he died.

  Nelson cuts me off before I’ve finished a sentence.

  “Your Honor, if we’re going to do this I want to Mirandize Mr. Madriani.”

  “Of course,” says Acosta.

  I am struck cold by this. Besides the notion that I may have to bare my soul, acknowledge my affair with Talia, is the obvious fact that Acosta has taken back this question because he thinks that in answering it I may incriminate myself. I stand here staring at him in stark silence, knowing that the judge who is trying Talia’s cause now believes it possible that I may have helped her in this crime.

  “This is ridiculous,” says Harry.

  “No, Your Honor, it’s not. We have reason to be concerned,” says Nelson. “Mr. Madriani misled the officers who questioned him after the murder. He was asked why he left the Potter, Skarpellos law firm, whether he’d had disagreements with the victim. He denied this. Now it begins to look as if he left the firm because he was discovered having an affair with the victim’s wife. This goes to motive,” he says.

  “Whose motive? Are we talking about the defendant or me?”

  Nelson looks me in the eye. “Any way you like it,” he says.

  I cannot hold myself back. “Ben knew it,” I say, “he knew about Talia and me, but we talked it through. We stepped away friends, before he died. Why else do you think he recommended me to oversee the trust fund at the law school?”

  “Mr. Madriani.” Acosta is trying to silence me. “You’re warned,” he says, “not to say another word. Do so at your own peril. Do you understand?” Acosta wants to keep me from fouling the record. He nods to Nelson to Mirandize me, but nobody seems to have the little card. A half-dozen lawyers in the room and no one can spout what every flatfoot on the beat knows by heart. Nelson wings it, about eighty percent correct, he hits the high points, the right to counsel, to remain silent.

  Harry’s chewing on my ear to sit down and shut up. He pushes me onto the couch. “If he has the right to remain silent, and the right to counsel, then I’m his lawyer,” he says, “and I’m advising him not to say another word.”

  The Coconut looks at Harry, little black beady eyes, marking him as a troublemaker. “Very well,” he says. “What about this evidence? You’ve heard the district attorney. Why should I not let it in?”

  Harry doesn’t need a second invitation. There is more composure here than I would have credited. Harry’s going for the jugular, cutting into Nelson on the damage this revelation will do with the jury. He’s a bundle of rhetorical questions.

  “We have an isolated piece of evidence,” he says. “A witness says he saw the defendant with Mr. Madriani at his motel, on what—one occasion?”

  “Three,” says Nelson. “Three times.”

  “Fine, three, a half-dozen, twenty. What difference does it make? The issue is, What does this testimony prove?” he says. “That they conspired to murder Ben Potter?” Harry shakes his head. “This is what the DA wants to offer it for. But this evidence doesn’t prove that fact, and to allow the jury to jump to this conclusion is to allow them to be misled.

  “No,” Harry continues. “This testimony will prove one thing and one thing only. That Paul Madriani went to a motel with the defendant—fine, three times.”

  From this, he tells the court, maybe, though it is not even certain, the jury can draw inferences that the two of us had a little sack time. Maybe we were busy working on business, he says. He wonders aloud how much this motel clerk can testify to, whether he purports to have been watching through the keyhole.

  “We’re not trying a cause for alienation of affections here. This is a murder trial. I would ask the court a single question. Does this fact, the fact that the defendant and her attorney went to a motel, prove that the defendant committed the murder of Ben Potter?”

  “Not by itself,” says Nelson. “But together with other evidence, fair inferences can be drawn.”

  “No,” says Harry. “Unfair inferences can be drawn. And that’s what you are about here, offering this kind of evidence. It’s not probative of any material fact in the case, and it is highly prejudicial to the defendant.”

  “In what way?” says Acosta.

  “In the way that it deprives her of competent counsel.”

  “This is ludicrous,” says Nelson. “She selected Mr. Madriani to represent her and she has Mr. Madriani.”

  Harry moves forward and leans on the lip of Acosta’s desk as if to put a little weight on the next point.

  “It will deprive her of competent counsel, not because Mr. Madriani is any less able than he was before this evidence was introduced, but because he is no longer believable in the eyes of the jury. If this court lets this evidence in, it will transform the defense counsel into the ultimate unindicted co-conspirator,” says Harry. “You know it, and I know it, and if you allow this, an appellate court will know it.”

  Nelson is laughing, scoffing at this.

  “This is what it is,” says Harry. “A little character assassination goes a long way in the eyes of a jury.”

  He turns to Acosta. “Have no doubt about it,” he says, “the people want to present this testimony for one reason and one reason only, to discredit defense counsel in the eyes of this jury. It’s the only way they can win a losing case.”

  Nelson is denouncing this, claiming that Harry is overreaching, trying to make more of the Walker column and the testimony of this witness than they are worth.

  “Fine,” says Harry. “Then drop the witness.”

  “Why should we?”

  “That’s enough,” says Acosta. He is mean eyes, elbows on the desk, steepled fingers as he looks at Harry. It does not take a mind-meld to deduce that he is busy searching for ways to allow this evidence, and running headlong into Harry’s logic on each.

  “Anything more, Mr. Nelson?”

  “I think it’s all been said.”

  “You?” he says to Harry.

  “No, Your Honor.”

  For a time, my fate seems to hang, suspended as it were in the hiss of conditioned air that sweeps in from the register over the Coconut’s desk.

  “When are you calling this witness, Mr. Nelson?”

  The DA shrugs a little, like gauging time in a trial is hard to do. “Two days,” he says.

  “Fine. I’ll be taking this matter under submission. I will give you my ruling as to whether this witness may take the stand, and if so, the scope of his testimony, before that time.”

  “Thank you, Your Honor.”

  “That’s all.” We are excused from the Coconut’s quarters.

  Harry and Nelson are making for the door. I’m on my feet. The court reporter is packing up.

  “Not you, Mr. Madriani. I want to talk to you.”

  We are alone now, me and the dark brows and brooding eyes of Armando Acosta.

  “I will admit it, you have gall,” he says. With only a little lighting from below he could easily be mistaken for one of Lucifer’s chief lieutenants. The dark Mediterranean tones take on a measure of evil here, so that being alone in this room with him is frightening, foreboding.

  “You will learn,” he says. “You don’t do this to me. Not in my court.”

  I say nothing. It is best to let him vent this without resistance. Acosta is feeling the heat. He is up for appointment to the appellate court, and now is not the time for a mistrial in a notorious case. He sees this, my part with Talia, as compromising his future, and he will not have it. To the Coconut this is not business or professional—it is personal.

  “You think you have me over a barrel?” he says.
There is a profane smile here. “If I let this in, this testimony, you think either you will get a mistrial or I will be slapped down on appeal, is that it?”

  He waits for an answer. But I fix him with a stare, in silence, keeping the apprehension out of my eyes. It is best not to run from mangy dogs with bared teeth, or to show fear to Armando Acosta.

  “You have made a big mistake,” he says. “A big mistake.”

  Then unceremoniously he tells me to get out, to leave his chambers.

  The process is called “filing an affidavit,” the document used by lawyers to disqualify any trial judge before the start of a case. The law allows one to a customer in any trial. It is a process that I now know I will be using with regularity in the future, whenever I have the misfortune of drawing Armando Acosta.

  I have hit bottom, I think. After all of the blows, professional and personal, my career in apparent tatters, I am left to wonder if I too will be served with process, charged with Talia in Ben’s murder. With all of this it might seem strange to another that it is my failed marriage that comes to trouble me the most, my loneliness and the gnawing void that has been my life since Nikki walked out on me.

  It is a nightly ritual. I wander aimlessly through the rooms of the house, always ending in the same place, standing in the doorway to Sarah’s bedroom. Little brown teddy bears on a pink lattice pattern decorate the walls of this room, barren of all furnishings. Sarah forgot a few toys during her last visit. A naked doll, its hair seeming to molt, arms and legs twisted in unnatural ways, lies forlorn in the middle of the carpet. Tonight I feel as if I share some symbiotic fate with this cast-off creature, abandoned and alone.

  Increasingly I have turned my lawyer’s analytic mind to the question of how I arrived at the point of a failed marriage and a broken family, things I never dreamed life would hold for me. Like cancer or AIDS, these are afflictions we see visited on others, never ourselves.

  While my affair with Talia was a symptom of my condition, I have never considered it the central cause of my current domestic distress. Talia came later, after Nikki had left me. My problems had a more central cause, my obsession with work, my unceasing need for approval from Ben, and the delusion of success that seemed to accompany these. It was these things, I think, that culminated in a terminal loss of respect in Nikki’s eyes. Like too many in our generation, I searched for acceptance and esteem in all the wrong places.