Compelling Evidence

by Steve Martini

  Skarpellos pegs it about four months before Ben was killed.

  “When he told you this, what did you say to him?”

  “I can’t remember,” he says. “I think I was too shocked to say anything.”

  It gets more elaborate from here. Skarpellos tells the jury that he and Ben talked openly about a good divorce lawyer. It seems there was no one in the firm who could do this work, so Potter relied on Tony to come up with a few good names. At least this is Tony’s version of the story.

  “He’s lying.” Talia’s at my ear again.

  “Did you ever give him any names?”

  “Checked around, and the next day,” he says, “I gave him three of the best in town.”

  “Why was it so important to get a good lawyer?” asks Nelson.

  “The prenuptial thing,” says Skarpellos. “They had a prenuptial agreement, Ben and Talia, and Ben was sure that she, that Talia would try to knock it over. To get around it so that she wouldn’t be cut out completely.”

  Talia’s looking at me like this is some fantasy.

  “Do you know why Mr. Potter wanted a divorce?”

  “There was talk in the office …”

  “Objection, hearsay.” Harry’s cut him off.

  “Sustained.”

  “Do you have any personal knowledge as to why he wanted a divorce, Mr. Skarpellos?”

  Tony looks directly at me, mean little slits. “Yeah,” he says. “Ben told me he wanted to marry someone else.”

  There’s a stir in the courtroom.

  “Who?” says Nelson.

  “I don’t know. He didn’t say. Just that he wanted to keep it under wraps until after the nomination was confirmed.”

  “His appointment to the court?”

  “That’s right.”

  There’s a rumble through the courtroom. Two reporters have crushed five others in the aisle making for the door and the minicams outside.

  I’m sitting in my chair looking at the Greek, stunned that even he could come up with this.

  Talia’s in a daze. “This is not true,” she says. “I would have known.” This is directed to me, but her voice carries, and Acosta is on us with his gavel.

  “Mr. Madriani, tell your client to be quiet.”

  He looks out and by this time there is bedlam in the seats behind us. The two rows of chairs reserved for the press are empty. If someone were to shoot the judge now, no one would notice. Such is the initiative of pack journalism. In the audience, those who heard the Greek’s words are repeating them to others who did not. Like a cheap recorder with ghost sounds, this message comes back a hundred times.

  “Nothing more of this witness, Your Honor.” Nelson has all he could ask for, a looming motive for murder.

  “A short recess, Your Honor?” Harry’s on his feet.

  “Order, or I’ll clear the courtroom,” says Acosta. He slaps the gavel twice and the clamor of voices comes down a few decibels. “Those reporters who left,” he says. “They get at the end of the spectators’ line when they want to come back in.” The ultimate penalty. Longer than probation in most criminal cases is the wait in line outside this courtroom. Acosta’s pointing with his hammer at the bailiff near the back door to make sure that he understands this latest wrinkle in house rules. The cop nods. Reporters are not used to queuing up behind other mere mortals for access to the news. Acosta’s sending them a message. Disrupt his courtroom, and you join the line from hell. Three journalists, halfway to the door when they hear this edict, return to their seats.

  The judge is now looking at Harry almost as an aside. “No recess,” he says. “We’re going to get this over with now. Cross-examination, Mr. Hinds.”

  Harry’s looking at me, like “Gimme a break.” “What if I had glass kidneys?” He says this in a whisper, turning to me as he crosses in front of our table on the way toward the witness.

  “Quite a story,” he says. “I almost don’t know where to begin.”

  “You might start with a question,” says Acosta.

  “Right, Your Honor.” It’s Harry’s best deadpan.

  “Mr. Skarpellos, you say that when your partner told you he was going to divorce his wife you were unable to say anything to him because you were too shocked, is that correct?”

  “Yeah. I was surprised.”

  “Then from all appearances they had a happy marriage?”

  “What do I know?” he says.

  “That’s what we’re trying to find out, Mr. Skarpellos.”

  “The witness will answer the question.”

  “I don’t know,” he says. “Ben wasn’t real happy the day he told me about the divorce.”

  “Let’s get to that day,” says Harry. “You say that Mr. Potter told you he was going to divorce his wife, and that he asked you for the names of some good divorce lawyers, is that correct?”

  “Right.”

  “And the next day you gave him the names of three good lawyers?”

  “Right.”

  “Very prompt of you,” says Harry. “Did you think this was an emergency that required immediate attention?”

  “When a friend asks for help, I give it,” he says.

  “I see. Who were these lawyers?”

  “What do you mean?”

  “What are their names, the three lawyers you recommended to your partner?”

  “I can’t remember. It’s been a long time. These weren’t guys I knew. I had to check around to get their names. Wrote ’em down and gave ’em to Ben, that’s all.”

  “Checked them out thoroughly, did you?”

  There’s a sneer from Skarpellos.

  “To your knowledge, did Ben Potter ever hire any of these lawyers?”

  “I don’t know.”

  “Did he ever talk to you again about any intentions to divorce Talia Potter?”

  “No. Just the one time.”

  Harry takes him over the falls on the issue of why he failed to tell the police about this conversation sooner, during his first interview with them. Skarpellos says he forgot, and Harry makes some points with the jury, a rehash of the deposition.

  “A man is reported to have killed himself, and you don’t think it’s significant that he’s talking about divorce, a shattered marriage? You don’t think he might be depressed by such things?”

  “Like I say, he was thinking of marrying somebody else.”

  Skarpellos wrings his hands in the box a little, gives a shrug, like “Whadda ya gonna do.” “I didn’t think,” he says.

  “But you remembered this conversation fast enough after the defendant was charged with murder?”

  “Sure,” he says. “I thought it might be important.”

  I can see some of the jurors making mental notes in the box on this. The Greek will not be winning any credibility awards today.

  “Do you know for a fact whether Ben Potter ever told his wife he was planning on divorcing her?”

  “No.”

  “So he never told you that in fact he had ever discussed the subject of divorce with Talia Potter, isn’t that correct?”

  “True.”

  “To your knowledge, then, it’s possible that Talia Potter never knew that Ben Potter had ever contemplated divorce?”

  “Objection.” Nelson’s on his feet. “Calls for speculation on the part of the witness.”

  “Sustained.”

  It doesn’t matter; Harry’s made the point with the jury.

  “Mr. Skarpellos, isn’t it a fact that during the early stages of Talia Potter’s defense in this case you actually met with the defense attorneys representing her and arranged to advance fees and other costs for her defense?”

  “Objection,” says Nelson. “This exceeds the scope of the direct examination.”

  “Bears on the witness’s credibility, Your Honor, bias or motive for his testimony.”

  “I’ll allow it,” says Acosta, “subject to a motion to strike if counsel fails to tie it together.”

  Harry looks at
Skarpellos, waiting for an answer.

  “I did advance some fees,” he says. “It was a business deal. An advance against the purchase of Mr. Potter’s interest in the firm.”

  “And at some point you stopped advancing those fees, isn’t that correct?”

  “Yes.”

  “Why?”

  “I couldn’t afford it any longer.”

  “Come, come, Mr. Skarpellos. Isn’t it a fact that you stopped advancing fees to the defendant because you believed that she would be convicted, and that if this happened you stood to inherit Mr. Potter’s interest in the firm without the need to purchase it?”

  “No,” he says. “I don’t know any such thing.”

  “Isn’t it true, Mr. Skarpellos, that if Talia Potter is convicted in this trial, by virtue of Ben Potter’s will you stand to inherit the bulk of his estate, his entire interest in the law firm, a fortune, millions of dollars?”

  “Objection,” says Nelson.

  “I wouldn’t know. I have no idea what was in his will.”

  “I see, he let you into his confidence regarding his divorce, but not his will.”

  “Objection, Your Honor.”

  “Strike that last comment. The jury will disregard the last comment of defense counsel.”

  “Nothing more of this witness, Your Honor.” Harry has set the stage.

  “Redirect?” says Acosta.

  “Nothing, Your Honor.” Nelson’s not going to touch it.

  Harry turns to the bench. “We reserve the right,” he says, “to recall this witness during our case in chief. We would request that the court hold him available.”

  “So ordered,” says Acosta. “Mr. Skarpellos, you will remain on call until you testify in the case for the defense or the defense has rested. Do you understand?”

  The Greek is angry. He’d thought this was the end of it. He figured he was getting by cheap.

  Nelson has finished his case. The state rests.

  CHAPTER

  36

  I search the faces of the twelve souls who will soon decide Talia’s future, perhaps whether she lives or dies. It is the chief bane of the criminal defense lawyer, juries conditioned by a generation of violence on the tube and glad-handing politicians campaigning on the theme that crime is rampant in our lives. It is no wonder that we now believe there is evil under every rock. Jurors arrive here with one driving notion, that it is their job to convict, that it is their civic duty. This is the sword that I must lift from over Talia’s head in my opening argument.

  This morning Acosta recessed for only ten minutes, then returned to deny our motion for a judgment of acquittal at the close of Nelson’s case. This was a mere formality, an act of going through the motions, a routine followed by every defendant in every trial. I argued that the prosecution had failed to make its case, to prove each element of the crime beyond a reasonable doubt, to a moral certainty, and that for this reason there was no plausible issue for the jury to decide.

  For Acosta, feeling as he does now toward me, his denial of this motion was an easy call. It was made and argued out of the presence of the jury, the only saving grace. They did not see us lose on this core issue. It will become one more arrow in our quiver on appeal, if Talia is convicted.

  So now I stand directly in front of them, centered on the jury box, eye contact so intense it would kill the thin-skinned.

  “This was a serious crime,” I muster all of the sand that I can, holding their eyes, riveting their attention.

  “And like you,” I say, “we believe that serious crimes must be punished. Talia Potter believes this. She has lost a husband to a brutal murder. Who is more the victim here, society, or the widow who is left to grieve?” I ask.

  I look at Talia, her gaze cast down at the table, dutifully mournful. Harry next to her, a little subtle consolation.

  “We understand the urge to convict,” I tell them. “But in venting this urge you must not punish the wrong party. To do so would be to perpetrate an injustice more monstrous than the crime itself.” I see a few heads nodding gently in these rows of corn.

  “Yes, we agree that whoever committed this crime did so with cold and calculated premeditation.” Here I bring my voice to a strident pitch. “But the evidence will show,” I say, “that this person, this killer, was not the defendant, Talia Potter.”

  I spend some time dwelling on the scene of this crime, Ben’s office, the freight elevator, the distances the killer had to negotiate to complete each stage of this crime, the use of the shotgun. And I ask, “Are these the acts of a woman? Are these the acts of Talia Potter?

  “As you hear the evidence that we are about to present, I want you to consider the fact that there are many ways to kill,” I tell them, “many more easy, sanitized ways to murder than this. As you watch this evidence unfold, ask yourselves, Is it likely, is it probable that if Talia Potter were going to kill her husband, she would do it in this way?”

  I leave them with thoughts of Coop’s implausible furniture dolly and watch as Nelson and Meeks confer over pencils poised on pads. This is a problem for their case. In helping me, in warding off the theories of an accomplice, wittingly or not, Coop has put a major hole in their case against Talia.

  I retreat to the counsel table for a drink of water, then return to the railing.

  “Who is Talia Potter?” I ask them. This is vital, to humanize Talia in their eyes. I take them on a tour of her life, her bootstrap beginnings and her rise through effort and education to become a prosperous businesswoman, I say, a respected member of the community in her own right.

  I remind them that the only reason the defendant is here on this charge is that the state has denied her the chance to refute these charges, these accusations of guilt, before the grand jury which indicted her.

  “Those were secret proceedings,” I say, “proceedings which she was not allowed to attend, proceedings controlled entirely by the prosecution, before which she was not allowed to be represented by an attorney. That is why she is here before you today.”

  From the looks, I can tell that this is not something that they have previously considered, the elemental lack of fairness in the process that has landed Talia in her present predicament.

  “The court that bound her over for trial here did not apply the standard of proof beyond a reasonable doubt,” I say, “but merely looked to see if there was any evidence, no matter how slight, no matter how remote, that might implicate Talia Potter.”

  I glance at Acosta. He’s not going to quibble with me over the fine points of probable cause.

  “You, ladies and gentlemen, are the first people to look at the facts of this case and to apply that critical standard of proof required by law, proof beyond a reasonable doubt. For all intents this is Talia Potter’s first fair opportunity to prove her innocence. Yes, I said prove her innocence, this despite the fact that by law the burden is on the state to prove guilt.

  “This,” I say, “is why it is vital that you arrive here without preconceived notions.”

  I strike at the concealed theme of every prosecutor in every case, the unspoken implication that society is ravaged by an epidemic of crime sweeping through our lives.

  “You must purge your minds of such thoughts. Such concepts violate the oath which you have taken as jurors. You are not here like some committee of vigilantes,” I tell them, “charged with exacting vengeance on the part of society.”

  Then I move to more manifest issues at hand. “The state attempts to put passion on trial here,” I say. “They have gone to extraordinary lengths to tell you about liaisons with two men at a motel.”

  This I can’t ignore. To do so is to give the issue of Talia’s infidelity the luster of hard evidence, to allow Nelson to portray it as part of the motive for murder.

  “We are not children, ladies and gentlemen. None of us is so naive as to believe that such things do not occur. We understand that all marriages are not models made in heaven. The pictures of idyllic couples—Desi an
d Lucy, Ozzie and Harriet, visions from our youth—these, ladies and gentlemen, are myth. We know that. That infidelity may, from time to time, creep into a marriage does not mean that two people don’t love each other, that they are anything more or less than human beings with all of their failings and frailties.

  “But here we are talking of murder. And despite what the prosecutor would have you believe, the fact that Talia Potter may have been seen at a motel with a man, or with an army of men, does not make her a murderer.”

  Now I focus on them hard.

  “Talia Potter is no murderer,” I say, “despite the protestations of this prosecutor.” Now it is Nelson’s turn. I am pointing my cocked finger at him.

  In the guise of an opening statement, I am giving to the jury a glaring summation of the state’s case, its weaknesses and shortcomings. This is the advantage of deferring our opening statement. I tread dangerously close, then cross the line into clear argument, but Nelson does not object, careful that he should not appear to be unfair in his dealings with the defense. After all, we did not object during his speech to the jury. His continuing silence is an invitation. I take broad latitude.

  Acosta is glaring at me from the bench. Objection or not, he cannot restrain himself longer.

  “Mr. Madriani, your argument will come later,” he says. “This is the time for an opening statement. That is what we will hear, nothing else.”

  I nod toward the bench, rebuked a little, but the point still made.

  “Very well, Your Honor.” I return my gaze to the jury. I modulate my voice a little and change tack. “When we are finished,” I tell them, “I will ask you a single central question, an inquiry that strikes to the heart of this case and that will lead you to your ultimate verdict in this trial. I would ask you to prepare yourselves now and through the balance of this trial to answer that single question.” I have their full attention now. They are wondering what this is, this magic bullet that will guide all reason.

  “I will ask you whether in the presentation of its case,” I say, looking and pointing at their table, where Meeks seems a little hapless, “the state has produced any compelling evidence, even the slightest compelling evidence, of the guilt of Talia Potter.