Nikki is now heavily invested, not only financially but emotionally, in Talia’s trial. It is the one positive result that has come from the hammering in the press and the whippings I have taken from the Coconut.
I’d misread her badly in that telephone conversation. It was not anger but fear that was in her voice—fear for me, that I would be charged. We have talked since. Nikki now clearly sees my life tied to the fate of this woman she has despised. It has curbed her animus and mellowed her judgment in ways I could not have anticipated.
For all of my lawyer’s analysis and after-the-fact intuition, I play childish games, bargaining with the devil to restore my life. In these Faustian episodes, in the recesses of my mind, I offer up my soul for another chance—Nikki and Sarah back in my life. Like a child stepping over the cracks in the sidewalk, believing such mundane acts will alter the fates of life, I play endless scenarios in my mind, how I can win them back. And always the same answer. My destiny is now tied to Talia’s trial. Success or failure, this contest now holds the balance of my fate. It is the anvil on which I must sever the psychic chains of doubt and dependence that had bound me to Ben, to regain the autonomy of my soul, to take Nikki and Sarah back into my life.
CHAPTER
33
A hostile judge can kill you in a thousand ways. Today Acosta is giving us a demonstration, a tour in the arbitrary exercise of authority.
He has denied Harry’s motion for a mistrial based on Eli Walker’s column. Speaking in cryptic terms, never mentioning Walker by name or the article by its headline, Acosta generalizes about adverse pretrial publicity in ways that make the listener think he is talking in mere abstractions.
He hints to jurors that the defendant has questioned their integrity, raised issue as to whether some of them may have seen certain news articles concerning the trial, this in direct violation of the court’s earlier admonitions. He asks if this is so, to a chorus of shaking heads from the jury box and irate expressions directed at Talia. Making it a team effort, they—the judge, the jury, and the prosecution—against us, Acosta then states his confidence, that he is personally satisfied this is not the case, that these are upstanding jurors who take their oath of service seriously.
It is a shameless display in the naked abuse of power, a grim spectacle, I fear a preview of things to come.
Talia is clearly shaken by these antics, her eyes darting first to me, then to Harry, frantic that we should do something to end this. There is nothing so unnerving to a defendant in a criminal case as the specter of authority turned against him in the form of a rogue judge. It is taking a toll on her; I can feel the tremble in her chair next to my own.
The Coconut takes every opportunity to slam the defense in rejecting the motion, characterizing it before the jury as “a stalling effort on the part of the defendant.”
I am up and down like a yo-yo—objecting to the characterizations of our motion and hammered back down to my seat by Acosta.
“Your Honor, we would request that the jury be polled, questioned individually, as to whether they have seen the news item in question.”
“Denied,” says Acosta. “Do you question the integrity of this panel?” he says. “You saw me ask them. To a man and woman, they denied having seen the article in question.”
They look at me, the beginnings of a seething mob, all except for Robert Rath, my alpha factor. He is an enigma. I sense that perhaps he knows or can guess what transpired behind closed doors in the judge’s chambers yesterday, that maybe he has seen Walker’s column.
“I must object, Your Honor, to the way this is being handled.”
“Now you question this court?” he says. “Is there no end to your arrogance, sir?”
In muted deferential terms I remind him that the court has a duty of inquiry, to assure a fair trial. I perfect this objection for the record, one eye on appeal.
“Your objection is noted,” he says, “now sit down.”
He turns to the prosecution, all creamy smiles. “Mr. Nelson, your next witness,” he says.
Like that, it is done, Walker’s column swept away, like bread crumbs brushed from the bench. We are left to wonder how many on the jury panel have seen this piece of work by Eli Walker, and what effect it may have. I study the expressions in the box, a sea of open hostility whipped to a froth by the court. If I had hoped to read their minds, to garner some sense of the impact of Walker’s piece, whether they still trust me, Acosta’s antics have made this impossible.
A somber-faced Coop is up next. I can tell that he is not looking forward to this. Nelson and he move through the preliminaries like Rogers and Astaire in the two-step. I stipulate to Coop’s qualifications as an expert witness. Nelson thanks me, and then moves a twenty-page curriculum vitae into evidence. I object on grounds that this is unnecessary, irrelevant, given our stipulation. Acosta overrules me and orders that copies of Coop’s résumé be made for each juror. He may as well nail it on the courthouse door.
Coop’s performance is a repeat of his testimony in the preliminary hearing, nothing new or unexpected. He talks of lividity, the law of gravity and death, and the bullet fragment, the cause of death, lodged in the basal ganglion. He has pictures of this, a tiny bit of metal lost in hues of red and brown congealed blood, before it was extracted.
With Coop’s testimony Nelson quickly fixes the time of death, between seven P.M. and seven-ten P.M. Nelson is stacking the blocks of his closing argument. Coop tells jurors that Ben Potter was shot in the head with the small-caliber handgun, the body moved and the shotgun blast administered later in the office.
With this testimony and the evidence of Willie Hampton, the jurors can now see that an hour and fifteen minutes transpired between the shots, enough time to haul the body a considerable distance.
Nelson moves carefully through all of this, leading the jury by the hand through his theory of murder. He’s had Coop bring more photographs, a veritable album of revulsion. These are post mortem pictures, showing the tiny bullet fragment lodged at the base of the brain, more graphic shots of the distended face and fractured cranial vault after the shotgun had done its work. Nelson drops these on me and hands a separate set to the judge. He has Coop identify each and explain in vivid terms what is shown.
Coop tells the jury that a contact shot to the head with a shotgun, whether to the temple or in the mouth, will result in evisceration of large portions of the brain. The bulk of the pellets and the wad will exit in such cases.
“What makes shotgun wounds at close range so devastating,” he says, “is that virtually all of the kinetic energy of the round is transferred to the victim as part of the wounding effect. It is unlike a rifle, where the bullet may exit the victim, expending energy outside of the body.”
Coop holds up one of the larger photos for the jury to see, from a distance. “This type of wound inflicted to the mouth results in massive comminuted fractures of the skull and pulpification of the brain. Bursting ruptures of the head are the rule in such cases. You can see here,” he says, pointing with a pen to the picture, “the skull was largely fragmented. Parts of the cranial vault and a portion of both cerebral hemispheres were ejected from the head. The scalp suffered extensive laceration.”
There will be few jurors having heavy fare for lunch today.
This damage explains, he says, how the earlier bullet that caused death was so badly fragmented and lost. According to Coop, but for the little fragment, the authorities have never found that bullet.
While I would like to stop this, there is no way I can put an end to this graphic description of these wounds. I will try to block close observation of the photos by the jury, by keeping them out of evidence.
Coop fishes for another photograph from the stack until he finds what he wants.
“You can see here that this was an intraoral shot,” he says. “Soot is present on the palate, the tongue, here, here, and here, also on the lips, here.” He’s pointing with his pen. The more dauntless souls in the j
ury box are craning their necks to see.
“Stretchlike striae or superficial lacerations of the perioral skin and nasolabial folds are apparent, here. These are due to bulging of the face caused by rapidly expanding hot gases as the shotgun was fired.”
Whoever killed Ben may have been sloppy in his misdirection setting a scenario of suicide, but there is a clinical aspect to the administration of this shotgun blast, something I have not considered before.
Coop is finished with the pictures. Nelson moves to have them placed into evidence.
“Your Honor, we would object to the photographs, at least some of them,” I say. There are duplicates, several shots with only minor variations of angle, each taken at sundry distances from the corpse, but all far more graphic than anything Canard had offered. I itemize our objections, the prejudicial effect these will have on the jury, and single out three that I think are appropriate for use.
Acosta is paging through them, ignoring me for all intents. He looks to Nelson for opposing argument. The DA makes a half-baked effort, conceding by his body language and lack of enthusiasm that he will lose the vast number of these. He is finished.
The judge looks at me for the first time in this colloquy as if to emphasize what is to follow.
“Defendant’s objection is overruled,” he says. The entire bundle of photographs will go to the jury. Such is the discretion of the court, and its lesson in abuse.
There’s a trace of alarm registered in Coop’s expression. It shows itself in subtle but wide-eyed interest, as if now he is seeing for the first time the effect of the revelations in Eli Walker’s column, not on the jury so much as on this judge.
The pictures are marked for identification. They are making their way through the jury. Like wind rustling through a corn field, the photos leave their impression.
“Doctor.”
Nelson is back to him now.
“In your professional opinion, is it possible that a woman of the physical stature of the defendant, Talia Potter, could wield a shotgun in such a fashion as to inflict the massive head wound evidenced in this case?”
“Yes.” He says this without reservation.
Nelson is moving toward a roll, gaining his rhythm.
“In your opinion, and assuming that she had help from an accomplice, would it have been physically possible for a woman of the size and strength of this defendant to have inflicted the mortal wound, moved the body some distance, propped the victim in that chair, put the shotgun in his mouth, and fired it?”
“Certainly,” he says, “but your assumption is unnecessary.”
Nelson has his back to him and is moving away from the witness box when this comes. So I can see the expression on his face. Irritation, a little disbelief.
“Excuse me?”
“It is possible for the defendant to have done all of those things, without the assistance of an accomplice,” says Coop.
There is stirring in the courtroom. Those following the case have read for weeks the press speculation about a secret lover, an accomplice who aided and abetted Talia in murder. Now they are hearing for the first time from the state’s own medical expert that this may not be the case.
Jurors put the pictures down, aware that something important has been said, bringing their attention back to the witness.
“It is physically possible that a woman of the size and strength of the defendant could have committed this crime alone,” says Coop. He emphasizes the last word, for those jurors who may have been lost in the scenes of horror still wending their way through the box.
Nelson looks at him, his jaw slacked, clearly miffed by this departure from the script. They have gone over this testimony. Coop has crossed him, thrown him a curve.
“Yes, but surely, doctor”—Nelson pumps up his most ingratiating smile to extract a little concession from the witness—“surely it’s more plausible that the defendant would have had assistance in doing this?” He gropes. Maybe Coop has missed the signal.
“Is that a question?”
“Yes.”
“Then my answer would have to be no,” he says. “There is no physical evidence that I could find during my examination of the victim that would indicate the presence of more than one assailant in the commission of this crime.”
Nelson is looking at the table, at Meeks, for assistance. There is a motionless shrug from the hired help, a psychic “I dunno” from Meeks.
“I think maybe there’s some confusion here, doctor. Perhaps I’m not making myself clear.” Nelson does everything but genuflect in front of the witness box, his theory of conspiracy going up in smoke.
“The defendant is a woman who weighs what, one hundred fifteen, one hundred twenty pounds?”
“I wouldn’t know,” says Cooper. “I’ve never weighed her.” Some laughter from the audience. Acosta is on them with his gavel.
“So that we can be perfectly clear, you’re not telling this jury that a woman the size of the defendant could have shot the victim, a man over six feet in height, approaching two hundred pounds in weight, that she could then have moved the body by herself, transporting it from wherever he was killed to the office, that she then could have placed him in that chair and shot him with a shotgun, and done all of this by herself, without help from some other person?”
“It seems you have outdated notions of the fairer sex,” says Coop. “That is precisely what I am saying. It is entirely possible that a woman alone could have committed this crime.”
Nelson is clearly troubled by this. The theory of the weak female has been, from the beginning, at the heart of his case. Logic tells him that no reasonable jury will accept the notion that a lone woman, much less one who looks like Talia, could have carried out this grisly crime by herself.
Some jurors are taking notes. Cooper is shameless, sitting there in the box, paradox written on his face. Nelson and Meeks confer in a flurry of panic at the prosecution’s table. There is a little déjà vu in this for me, the shoe on the other foot, a witness they cannot control.
And yet through all of this, I know what Coop is about. He is throwing me a bone, driving a stake through Nelson’s theory of an accomplice. If they later charge me or anyone else with this crime, the state will be faced with the testimony of their own witness, inscribed in stone, on the record. It is Coop neutralizing my affair with Talia, granting his own unique form of clemency. I get a glance from him, oblique, from the corner of one eye, as he sits there in silence.
It is clear that Acosta does not find this amusing. “Would you like some time, Mr. Nelson? Perhaps a recess?” he says. I would object, but it would do no good. Acosta would order an immediate break to let Nelson regroup, to have his way with Cooper in some back room.
“Just a moment, You Honor.” Nelson’s not interested in prolonging this. To recess is to emphasize it in the jury’s collective psyche, a mistake. He must deal with it now, quickly, or run the risk that it will be indelibly ingrained, an accepted truth, that if Talia did this, she acted alone. A theory that in the minds of these jurors, Nelson knows, may be a non sequitur.
“No, Your Honor, we’re ready.” He moves back toward the witness box.
“Doctor Cooper, could you explain to the jury how a woman the size of the defendant would begin to move a body more than half again as heavy as her own?”
“There are ways,” he says, “that this could have been done.”
“Such as?”
“During my examination of the body, I discovered mild abrasions on both arms in identical locations on each, and across the chest of the victim. These abrasions were in a straight line, just below the nipples on the chest, between the elbows and shoulders on the arms.”
“Abrasions?” says Nelson. “Like rope burns?”
“No, like a strap, broad, approximately two inches across from top to bottom.”
Nelson is looking at Meeks again.
“Doctor, why didn’t you tell us about this during your testimony in the preliminary hearin
g?”
“No one asked,” he says.
He is right; Cheetam was too busy being reamed by the witness, and Nelson wasn’t interested in any revelations beyond the minimum necessary to bind Talia over.
But the prosecution doesn’t ask the other obvious question, why Coop didn’t tell them about this during the hours of preparation for trial. He has clearly sandbagged them. And Nelson is now tongue-tied. It wouldn’t do to emphasize before the jury the fact that the state’s witnesses have gone through hours of grueling rehearsal. Jurors are funny in this respect—they like to think that testimony in open court is spontaneous.
“These strap marks,” says Nelson, “when did you first discover them?”
“During the autopsy.”
“They weren’t in your notes, why?”
“An oversight,” says Coop.
Nelson gives him a look, like Coop has just told him the Easter Bunny is under subpoena, coming on next. The prosecutor is shaking his head. As distasteful as this is, he cannot leave it unfinished. Having opened this Pandora’s box, he must now explore it fully, or he knows I will do it for him. Nelson retreats to the counsel table and Meeks for a little damage assessment.
“Can we go off the record, Your Honor?”
Acosta directs it.
Meeks and Nelson are whispering, but voices carry. Meeks is furious, embarrassed before his boss, that in his preparation of the case he has not ferreted out this surprise. There are a lot of single-syllable expletives here. It seems Meeks is of the opinion that Cooper’s testimony should be reported on little squares of tissue paper and stored on a cardboard roll in the men’s room. It is, in short, a lie, he says. In two minutes of consultation, this, it seems, is the only consensus they form. Nelson is back to the witness, back on the record.
“And what did you deduce from these strap marks that were not in your report?”
Compelling Evidence Page 37