She is wrinkled and age-spotted, but a pleasant soul. She smiles occasionally at Talia, so one would think that to Mrs. Foster, her appearance here is some good, neighborly deed. This is the kind of witness who can hurt you with a jury, the kind with no obvious or even remote personal agenda.
“Your Honor, may I approach the witness?”
Acosta waves me on.
I drop an envelope on Nelson’s table and carry another to the witness box, where I pull out three photographs.
“Mrs. Foster, I have three pictures here of vehicles, all the same color, late-model cars. Can you look at these and tell me if any of them is Mr. Potter’s car, the car you saw that evening parked in his driveway?”
She looks at them, studying them top to bottom, adjusting her glasses that hang from a gold chain around her neck. She works at these photos like it is some multiple-choice examination, putting first one aside, then another, picking up the first one again, trying to exclude at least one of the distractors to give herself a fair guess between the other two.
“Your Honor, I object to this.” Nelson can see she is having trouble. “Mrs. Foster is not an expert on car design. She says she saw Mr. Potter’s car in the driveway that night. This is a vehicle she has seen many times and would clearly recognize. Now defense counsel is trying to confuse her.”
“Your Honor, I just want to know if she can identify the car.”
Acosta is looking at me over the top of his glasses.
“Get on with it,” he says.
“Mrs. Foster, can you tell me if any of the cars in these pictures looks like the car you saw at the Potter residence that night?”
“This one looks a little familiar,” she says.
“Is that the car?” I ask her.
She’s looking at me, searchingly, pleading as if for some hint.
“They all look so much alike,” she says.
“Cars can do that,” I tell her. “Both in pictures and in driveways.”
“I think this is it,” she says.
I turn it over and read the number on the back.
“Your Honor, let the record reflect that the witness has identified a late-model Toyota Cressida owned by my secretary.” I then turn back to the witness. “She will be happy, Mrs. Foster.”
The old lady looks at me.
“My secretary, to know that she drives a car that looks like a Rolls. It may keep her from putting the touch on me for a raise.”
There are smiles, a little laughter in the jury box.
Mrs. Foster shrugs her shoulders, a good-natured gesture, like she did the best that she could.
Harry has been less than forthright on this, shooting all of the pictures to avoid the give-away grill on Ben’s car.
“Picture number three, Mrs. Foster. That was Mr. Potter’s car.”
“Oh,” she says.
“Even trained police officers have a hard time telling some cars apart,” I say, a little balm for a bruised ego. Nelson doesn’t object. She seems to accept this with good grace.
I’m back at the counsel table now. “Mrs. Foster, I think you testified that the night that you saw this vehicle, whatever it was, in the driveway, you never actually saw Mr. Potter, in the vehicle or around it, is that correct?”
“Yes, that’s right.”
“Did you see him around the outside of the house or in the house, through any of the windows?”
“No.”
“So you don’t know whether Mr. Potter was actually at home that night or not?”
“His car was there,” she says.
“A car that looked like his was there.” I correct her.
“If you say so.” She makes a face. The path to old age, I think, must be like Mrs. Foster, obdurate and unbending.
“But you never actually saw Mr. Potter?”
“No.”
“Did you see Mrs. Potter that evening about the time that you saw this car in the driveway?”
“No,” she says. “Her car wasn’t there.” To the witness, it seems, possession of a vehicle is more than a sign of status, it is the sole evidence of existence.
“So you never actually saw either Mr. or Mrs. Potter at or around the Potter residence on the night in question?”
“No.”
“Did you hear anything unusual that night, any noises coming from the Potter residence?”
“No.” She shakes her head.
“No sharp sounds like firecrackers, or a car backfiring?”
“I didn’t hear a shot if that’s what you mean.”
“That’s what I mean, Mrs. Foster.” This lady is not as far gone as she looks.
“This car that was parked in the driveway of the Potter residence, did you notice what time it left?”
“I looked out about nine. It was gone,” she says.
“But you didn’t see who drove it away?”
“No.”
“Nothing further, Your Honor.”
“Redirect?”
“Just a couple, Your Honor.” Nelson is on his feet approaching the witness.
“Mrs. Foster, how far is it between your house and the Potter residence, approximately?”
She looks at him like this is the same as trying to tell cars apart.
“Let me see if I can make this easier on you.” Nelson thinks for a moment. “You’ve seen a tennis court, from one end to the other?”
She nods.
“Good. How many tennis courts could be laid from end-to-end between your house and the Potter residence?”
She mulls this over for a long time before answering.
“Three, maybe four,” she says.
“So it’s a considerable distance between your houses. These are not suburban homes on postage-stamp lots?”
“Oh no,” she says. “It’s a good walk to your neighbor’s.”
“So if someone fired a small handgun, inside of the Potter residence, it’s not inconceivable that you might not hear it?”
“Objection, calls for speculation.”
“Sustained.”
She shrugs but doesn’t really answer the question. He moves on.
“I suppose you were watching television on the night you saw Mr. Potter’s car in the driveway.”
“Objection, leading. The question also assumes facts not in evidence, that the vehicle observed by the witness was in fact the victim’s car.”
“Sustained.”
“Fine,” says Nelson. “Mrs. Foster, were you watching television on the night in question, when you saw the car in the driveway?”
“I don’t watch television,” she says.
“What were you doing that evening?”
“Playing with my cats,” she says. “I have six cats.”
“Ah.” Nelson is nodding his head like he understands this, an old lady and her cats. But it gets him no closer to where he wants to be, the inference that if Talia fired a bazooka at Ben inside their house, Mrs. Foster wouldn’t have heard it.
“But it’s possible,” he says, “that if a shot was fired in that house, you might not have heard it?” He finally does it head-on.
“Objection, calls for speculation on the part of the witness. She says she didn’t hear a shot. The jury can form its own conclusions,” I say.
The Coconut is making faces like he might actually allow the witness to venture a guess on this.
Mrs. Foster is pursing her lips, about to respond.
“If a tree falls in the forest, but there is no one there to hear it, does it make a sound?” I ask.
“Excuse me,” says Acosta.
“It’s an ancient conundrum of logic, Your Honor. Counsel may as well ask the witness that one while he’s at it. Philosophers have been speculating about it without an answer for five thousand years,” I say.
Acosta is bristling at my sarcasm. But it achieves its point. The witness is now thoroughly confused. I think she would rather look at pictures of cars again.
“The objection is overruled. The witness may
answer the question.”
Mrs. Foster looks at Nelson, not sure what the question is anymore.
Nelson is smiling. Acosta has driven one more spike into me and flashed him a big green light.
“Mrs. Foster, is it possible that if a gunshot was fired in the Potter residence, you might not have been able to hear it?”
She looks at me, wondering if trees and forests will be next.
“I don’t know,” she says.
With just three words she destroys this bone we’ve been fighting over.
“There,” I say. “She doesn’t know.”
Acosta gives me a look that could kill.
We break for lunch. When we return, Acosta has Eli Walker up from the little celebrity room at the jail and back in chambers.
Walker hasn’t shaved in three days. He has stains on the front of his suit pants that look remarkably like the man is now incontinent. There’s a palsy to his hands and a wild look in his eyes. In all it is a pathetic sight. I feel more sympathy here than I would have imagined, particularly given Walker’s part in all of this.
Nelson and Meeks are poised like vultures on a limb, standing in the corner waiting for Walker to hand over his source. Meeks has his note pad out as if to take the name of some unknown and distant subaltern, some buried bureaucrat who he thinks was Walker’s fountain of knowledge for the column that identified me as Talia’s lover.
“Have you had anything to eat, Mr. Walker?”
Acosta seems genuinely concerned by the condition of his prisoner. It would not do to have a member of the press corps die in his custody. Those who appoint and elevate judges might be asking some probing questions.
“I’m not hungry,” says Walker. His eyes seem to be scanning, looking for anything that might remotely resemble a decanter and glasses. But in chambers at least, the Coconut shows all the appearances of a teetotaler.
Walker’s lawyer makes a pitch to have a physician examine his client before he goes back to jail.
“Back to jail?” Walker says this like “fat chance.” There are a few obscenities, all directed at Walker’s lawyer. “You go back to jail,” he says. “You try it for a while and tell me how you like it.” With each word Eli’s spitting on his attorney, a veritable bath of saliva.
Walker looks at the judge. “Can I have a piece of paper and a pen?” he says.
Acosta obliges.
Walker’s hand is shaking so badly he has to steady the pen with both hands, a little chicken scratch on the blank note paper Acosta has given him.
“You won’t tell anybody where you got this?” says Walker.
Acosta smiles. “Mum’s the word,” he says.
Eli’s lawyer is upset, concerned that his client doesn’t understand the implications of what he’s doing.
“Mr. Walker, there’s the potential for liability here,” he says. “If you gave assurances of confidentiality to your source, and if you now reveal that source, and the person suffers some penalty, demotion, or loss of employment, you could be held liable for civil damages.”
This is an uncertain point of law, but a possibility, something on the cutting edge of appellate decisions in this state.
Walker gives him a look, as if to say “If the source wanted confidentiality, he should have brought me a drink in the can.” He folds the little scrap of paper in two and pushes it across the desk toward the Coconut.
Acosta looks at it, then passes it to Nelson. Meeks looks, but doesn’t take a note. It is clear that Harry and I are not to know who Walker’s source is.
“Mr. Walker, I’m very concerned about you.” Acosta is falling all over him now, not anxious to have him go back to his colleagues out in the hall looking like this. He calls his bailiff and gives firm instructions that the marshal is to take Walker to the nearest restaurant and buy him anything he wants, to eat or drink, and put it on the court’s tab. He hands the bailiff the county blue card, a plastic credit card accepted by merchants and innkeepers within throwing distance of the courthouse.
Acosta points the two of them toward the back door. “Then take him home so he can clean up,” he says. “And don’t let him come back until he does.” This last is whispered to the marshal, as if Eli could even care. The county’s about to get a bar tab to rival the S&L bail-out.
Acosta turns to Nelson.
“What about that?” The judge is pointing to the note in Meeks’s hand.
“I’ll take care of it,” says Meeks. Walker’s source, it seems, is about to become toast.
CHAPTER
35
IN the afternoon Nelson calls his final witness, Tony Skarpellos. We’ve done battle over this during our motions in limine, before the trial began. Harry and I moved the court to bar Skarpellos from testifying, on grounds that his original association with Talia’s defense, the employment of Cheetam and his hand in hiring me, now taints him with a conflict of interest.
Even before my present legal leprosy, Acosta rejected this argument. He bought Nelson’s contention that the Greek was never of counsel in the case, and that while he may have acted as a middleman in financing the early phases of her defense, Tony was not privy to any confidences with Talia, and therefore not barred by the attorney-client privilege. This may provide a little food for appeal if we lose.
I have done one other thing to blind Tony in this case. Among the shills on my list of witnesses I have placed the name of Ron Brown, Tony’s gofer in the firm. This has kept Brown out of the courtroom, sequestered like the other witnesses. He is unable to sit here and listen, as the eyes and ears of the Greek, and shuttle accounts of witness testimony to Skarpellos, to allow the Greek to conform his testimony accordingly. The other young lawyers in the firm are not likely to humor Tony with such duty; their tickets to practice are too dear.
Today the Greek is full of bluster and vinegar, a cock on the walk in a thousand-dollar gray pinstripe. He doesn’t do well in court, but Tony could always dress the part. He swaggers down the center aisle and to the stand, where he is sworn. Skarpellos doesn’t fix me with a stare until he’s in the box, seated. Then he nods to Nelson, a little greeting, like he’s ready to bury us.
Tony’s broad features seem magnified in this setting, a bearing and demeanor to match his ego.
Nelson waltzes him through his early days with the firm, how he came to meet Ben, and how they formed a fast friendship and prospering partnership. To listen to Tony, it was all amity and good cheer, two legal giants taking the high road to success. He mentions Potter’s imminent appointment to the high court. The Greek is working up a little fame-by-association before the jury, the theme being that Ben couldn’t have done it without him.
Against this background Nelson is laying the silver lining of his pitch with the Greek, that here is a man immanently trusted by the victim, a man to whom Benjamin Potter confided his most private thoughts and actions.
He wastes no time getting to the heart of it.
“You were interviewed by the police twice during this investigation, is that correct?”
“Right,” says Tony.
“Once about a week after the murder and the second time more recently, when you called the police and told them some things you had forgotten about?”
“That’s correct.”
Nelson unfortunately has benefited from Tony’s statement in my office, a necessary price I pay for the big dividend, the fact that Skarpellos can’t testify with certainty that Talia was aware of the stated plans for divorce by Ben. A hole in their motive.
Nelson is shoring up some of the weak spots. Tony’s convenient memory until just before trial, when he called the police to lay on them this revelation, Ben’s impending divorce, is now just an innocent oversight.
“During that second interview by the police …” Nelson looks for the date and pins it down. “You told them that the victim, Benjamin Potter, had a private conversation with you. Could you tell the court the substance of that conversation?”
“Objection, Your
Honor, hearsay.” Harry is on his feet. We’ve decided that Harry will do Skarpellos here and on cross. The Greek is less likely to ignite with Harry. I will take him later, when we recall him in our own case for Talia.
“Exception,” says Nelson, “state of mind.”
Harry’s shaking his head at this. “Under the circumstances, Your Honor, they are one and the same.”
Acosta waves them on to approach the bench, off to the side, away from the witness. There’s a lot of verbal dueling here, Harry and Nelson.
Talia leans over toward me. “This is a total lie,” she says. “Ben never said anything about divorce.” This is loud enough for the jury to hear, but the judge is occupied with Nelson and Harry. Meeks is giving us dirty looks from the other table. It is as close to testifying as Talia will get in this case.
They are still going at it at the bench. The issue is whether this testimony, the Greek’s recollections of what Ben told him outside the courtroom, is indeed hearsay, or whether it is subject to one of the myriad exceptions to the hearsay rule. In fact Nelson’s argument is that it doesn’t fall within the rule. Under the law, if an out-of-court statement is being offered to prove the truth of the matter stated, it is hearsay, the policy being that the party making the statement is not in court and therefore not available to be cross-examined.
Nelson insists that Ben’s statements about divorce are not being offered to prove that he in fact was seeking a divorce, but to show his state of mind, that he was thinking about it. This is a difference without a distinction, and Harry is telling the court this.
It’s a fine point, and one that is lost on Acosta. He gestures them back away from the bench.
“Objection overruled. I’ll allow it.”
“Mr. Skarpellos, tell us about your conversation with Mr. Potter,” says Nelson.
“We were talking about business, in my office, Ben and I, and out of the blue he says, ‘Tony, I want you to know I’m makin’ plans to divorce Talia.’ Of course, I was shocked to hear this,” he says. “I mean, I don’t know what to say to the guy.” The Greek is all animation and hand gestures, open palms faceup. Like he’s no Dr. Ruth.
“When did this occur, this conversation?”
Compelling Evidence Page 39