Compelling Evidence

by Steve Martini

  “I don’t know,” he says. “I wasn’t thinking. Things were going pretty fast.”

  “Well, which is it, did you think she committed the crime or not?”

  “Objection, calls for speculation on the part of the witness,” says Nelson.

  He’s a little slow getting to this.

  “No, it doesn’t,” I say. “I’m trying to find out the state of mind of this witness at the time he made these loans. What motivated him to give money to a woman who was charged with killing his partner.”

  Acosta makes a gesture from the bench with one hand, like the pope giving a lazy blessing; then he lets me go on probing this area. It seems some of his rancor is beginning to diminish.

  “At the time I made the loan, I didn’t know whether she committed the crime or not,” says Skarpellos.

  “I must admit, I’m confused,” I say. “You are here testifying in this case, telling this jury that Ben Potter was going to divorce his wife, supplying what would appear to be a neat motive for murder, except for the fact that Mrs. Potter apparently didn’t know about this divorce, and all the while you don’t know whether you think she murdered Ben Potter or not. One day you’re financing Talia Potter’s defense and the next you’re here testifying against her.”

  “Objection,” says Nelson. “Is there a question in there somewhere?”

  “I was subpoenaed,” says Skarpellos.

  “The witness seems to think so,” I tell Nelson.

  He sits down.

  “But you were not under any court order, you were not compelled to call the police, to volunteer this story that you claim you forgot about, this tale of marital woe that you say was related to you by Mr. Potter, were you?”

  “No. I called because I thought it was important.”

  “We’ve been over all this,” says Nelson.

  “So we have,” says Acosta. “Mr. Madriani, move on.”

  “Certainly, Your Honor. Let’s talk about Mr. Potter’s estate,” I say. “Did you know that your partner Mr. Hazeltine had prepared Ben Potter’s will?”

  “Objection,” says Nelson. “I thought we agreed this was irrelevant.”

  “Maybe you agreed it was. I did not,” I tell him. “I’m prepared to make an offer of proof, Your Honor, out of the presence of this witness, demonstrating that this is not only relevant but vital to Talia Potter’s defense.”

  Acosta waves us up, a little sidebar at the far end of the bench, away from Skarpellos.

  I tell him that other witnesses we will present will tie this together, will show its relevance. In hushed tones I tell them that the Greek had a great deal to gain from the death of Ben Potter. I show them the operative paragraph of Ben’s will, the part that makes Skarpellos his principal beneficiary, but only if Talia Potter cannot be. Nelson argues, under his breath, until I silence him.

  “This witness has lied to your own investigators,” I tell him. “Have you checked his alibi for the night of the murder?”

  “We have,” he says. “It’s ironclad.”

  “It’s a lie,” I say. “He has tampered with another witness, and I will prove it.”

  These are serious charges, and Acosta is taking full note.

  We back away from the bench.

  “I will allow it,” says the judge. A major victory from the briefest moment of whispered argument. I can tell this has an effect on the jury. They are wondering what I have told the Coconut that would make such a difference.

  “Mr. Skarpellos,” I say, “did you know that your partner Matt Hazeltine prepared a will for Ben Potter?”

  “I don’t know, I may have.”

  “Did you ever talk to Mr. Hazeltine about that will?”

  He pauses, looking at me. The lie in his eyes, but not yet on his lips. He’s wondering if I have talked to Hazeltine, if I will recall him to the stand. Mostly he is wondering if Hazeltine will commit perjury to conceal what happens in every law office with every confidence that is chewed over by lawyers who believe they are exempt from the canon that a client’s secret is sacred.

  “We might have,” he says.

  “You might have talked about Ben Potter’s will with Mr. Hazeltine. Surely you’d remember something like that?” I say.

  “We talk about a lot of things in the office. I can’t remember them all.”

  “I see. You discuss confidential attorney-client information openly among yourselves in the office. This is sort of like gossip?” I say.

  “No.” He says this with a good deal of contempt. “Sometimes it’s necessary to talk among colleagues, to discuss things, advice,” he says. “You know.”

  “Are you telling us that Mr. Hazeltine came to you and asked for your advice on how to draft Mr. Potter’s will?”

  Suddenly his shoulders have a life of their own, shrugging like he’s trying to get this monkey off his back. “He might have,” he says.

  “But you can’t remember?”

  “No, I can’t remember.”

  “Then let’s make this clear,” I say. “For the record, Mr. Skarpellos, isn’t it true that you and Mr. Hazeltine discussed Mr. Potter’s will and that Mr. Hazeltine told you that you had been named as Mr. Potter’s principal beneficiary in the event that something might happen to Mrs. Potter? Isn’t that true?”

  It’s a calculated risk. But then I know the dynamics of that place, the firm, and what Tony Skarpellos can exact from the other partners.

  “We might have,” he says.

  “You might have?” I thunder at him.

  “OK, we talked about it. All right?”

  “All right,” I say. I ease the pitch of my voice back down, smiling a little, as if to say “See how easy that was?”

  I turn and head for the counsel table and a drink of water, like I am toasting a major point that has just been scored. As I pour from the pitcher Harry slides his note pad sideways. The next item on our agenda. I replace the copy of Ben’s will, which I’ve been carrying, and pull another document from files Harry’s organized on the table.

  I’m back at Tony in the box.

  “Mr. Skarpellos, you were interviewed by the police shortly after the death of Mr. Potter, is that correct?”

  “Early the next morning,” he says. He tells us how the cops got him out of bed at three in the morning to inform him that Ben was dead.

  “I assume you immediately went to the office?”

  “Right away.”

  “Who did you talk to?”

  “The guy heading up the investigation. Captain Canard.”

  “Good,” I say. I’m moving in front of the witness box, seemingly pleased that I have gotten him this far.

  “Do you remember what you talked about with Captain Canard?”

  “It was confusing,” he says. “A lot of chaos in the office. Cops all over the place.”

  “But what did you talk about?”

  “He asked me if I knew of any reason why Ben should take his own life.”

  “And what did you say?”

  “I never bought the suicide,” he says. “I told him no.”

  I nod that we are in agreement, at least on this point, like maybe I’ve finally buried the hatchet, like maybe we’re making up. Skarpellos is breathing a little easier now.

  “What else did you talk about?”

  “He asked if I knew of anybody who might want to kill Ben, anybody with a grudge.” According to the Greek he thought this a little strange, but then considered the questions of possible foul play as part of the police ritual.

  According to Tony, Ben was a prince, a man loved by all, and he told this to Canard.

  “It was all pretty routine?” I say. “The questions you’d expect?”

  “Sure.”

  “I suppose they asked you where you were that night?” This is in the police report I have taken from Harry’s stack of documents on the table.

  “Yeah. They asked.”

  “What did you tell them?”

  “I went to a basketball gam
e in the city that night.”

  “Oakland?” I say.

  He nods.

  I remind him about the record and the court reporter, and he puts it in words.

  “Who played that night?” I say.

  He looks at me, more than a little contempt in the eyes.

  “The Lakers,” he says. “L.A.” He’s smiling, like “Try that on.”

  “Who won?”

  “You know, I can’t remember. It was just a preseason exhibition,” he says. “We left before the game ended and with all the confusion later that night—the next morning,” he corrects himself, “it didn’t really seem important.”

  “Understandable,” I say. “You say ‘we’ left early. Did you go to the game with someone else?”

  “Why don’t you read the police report, in your hand there,” he says. Skarpellos smiles at the jury, like “What am I, some fool?”

  “It says here you went to the game with a woman, Susan Hawley. This Ms. Hawley is a friend?”

  “Yeah, she’s a friend.”

  “Have you known her long?”

  “Your Honor, where is this going?” Nelson up out of his chair.

  “Good question, counsel. Does this have a point, Mr. Madriani?”

  “If you’ll bear with me, Your Honor.”

  “My patience is getting short,” says Acosta.

  “Have you known Ms. Hawley long?” I say.

  “A couple of years.”

  “Would you say she’s a social friend, or commercial. Was this business?”

  “Social,” he says. Tony’s all puffed up, the Greek version of machismo, like this woman is somehow his badge of virility.

  “So you didn’t hire her for the evening?”

  His eyes are two flaming caldrons.

  “Your Honor, I object. The witness shouldn’t be subjected to this kind of abuse,” says Nelson. He’s trying to put himself verbally between us. A reprise of his role in my office the day of the Greek’s deposition. Tony is starting to get up out of his chair.

  “Mr. Madriani.” Acosta’s got the gavel in his hand, like he too is coming after me.

  I prevail on the Coconut for a little more latitude.

  “Make it quick,” he says.

  Nelson is fuming. There are whispered rantings into Meeks’s ear.

  I’m back to the counsel table. Harry has the document waiting for me as I arrive. I slip it between the pages of the police report.

  “Mr. Skarpellos, did you ever have any kind of dealings with Ms. Hawley that could in any way be termed commercial?”

  I linger on the last word a little.

  “Your Honor, I resent this,” he says. The Greek knows what the jury will think if they see this woman. The police are still looking for Hawley. Bets are, they will tag her very soon.

  “Answer the question,” says Acosta.

  Skarpellos looks at him, like “What is this, witness-bashing day?”

  “Did you ever have any dealings with Ms. Hawley that could in any way be termed commercial? Was she ever a client of the firm?”

  I think he knows what I have. He knows we’ve subpoenaed the firm’s trust account records. This, it seems, was a little nugget Harry and I never expected. If nothing else, it reveals the extent to which Tony Skarpellos had treated the firm’s trust account as his personal slush fund.

  “She’s a friend,” he says. “Nothing more.”

  “Are you sure you want to stick with that?”

  He looks at me with no answer, the bushy eyebrows mountains of contempt.

  “Mr. Skarpellos, I have a certified copy of a check here.” I pull it from the middle of the police report. “I would ask you to look at it and tell me if that is your signature on the bottom.”

  He studies it for several seconds, looking at the name of the payee and back to his own name scrawled in a bold hand on the signature line.

  “We can have an expert come in and compare an exemplar of your signature with that on the check if you like.”

  “It’s mine,” he says.

  “Then can you explain to the jury why it was that on November thirteenth of last year you made this check out, against your law firm’s client trust account, in the amount of twenty-five thousand dollars, payable to Susan Hawley?” I take the copy of the canceled check back from him and wave it a little in the air.

  He’s been tracking me, his mind just far enough ahead that I can tell he’s come up with something. He pulls himself up to his full height in the chair, his head cocked arrogantly to the side.

  “That was a personal loan,” he declares.

  “A personal loan,” I howl. “Do you often make personal loans to friends from your client trust account, Mr. Skarpellos? Under the laws of this state that is a segregated account. The money in it belongs to your clients, not you. You do understand that?”

  “Your Honor, the witness should be warned,” says Nelson. He’s on his feet.

  Acosta, it seems, is mesmerized by this latest revelation, by the boldness of the Greek, and his apparent utter disregard for matters of client trust. “Absolutely,” he says. He’s come back to reality and the chores at hand.

  “Mr. Skarpellos, you don’t have to answer that last question. If you wish, you may assert your Fifth Amendment privilege against self-incrimination,” he says.

  Acosta is telling him, in terms that Tony, and the jury, can understand, that for a lawyer to invade a client trust account is, in this state, not only unethical, but a crime.

  Skarpellos grunts, like Acosta’s admonition sounds like good advice.

  “I take it you don’t wish to answer that question,” says Acosta.

  “Right,” he says.

  I glance at the jury. Stern, unmoved faces. From the grim expressions I can tell that the Greek now has all the credibility of a junk-bond broker.

  “Let’s forget for a moment,” I say, “the source of this money and concentrate instead on the purpose of this payment. You say it was a loan. Why did Ms. Hawley need this loan?”

  “I don’t know,” he says.

  “You gave her a check for twenty-five thousand dollars and never once asked the purpose of this loan?”

  “That’s right,” he says.

  “Now earlier, when you were testifying about the loan you made to the defendant for her legal fees, you stated, and I quote”—I read from my yellow pad: “ ‘You don’t give eighty thousand dollars away on good looks.’ But in this case you obviously feel comfortable with giving away twenty-five thousand dollars with only good looks as collateral. What’s the deciding standard, Mr. Skarpellos—the amount of debt or the relative attractiveness of the debtor?”

  There’s a little laughter from the front rows of the audience, a few smiles in the jury box. I am getting the evil eye from the Greek. As I look at him there, seated in the box, meanness from the set of his jaw to the ripple of his brow, I think maybe this was the last image Ben Potter saw in this life.

  “What were the terms of this loan?” I ask.

  “What do you mean?” he says.

  “The terms,” I say. “What interest did you charge, was it simple or compound, how long did Ms. Hawley have to repay the loan?”

  “We never discussed that,” he says.

  “Was there anything in writing other than the trust account check?” I say.

  “No.”

  “I see. So you just wrote a check for twenty-five thousand dollars, without any promissory note, no statement as to interest to be paid, or the term for repayment, no questions as to what the money is for, and you come here and you expect this jury to believe that this twenty-five-thousand-dollar check was a loan to Ms. Hawley?”

  “That’s what it was,” he says.

  “No,” I say. “That’s not what it was, and you and I both know it. That twenty-five thousand dollars was to buy an alibi from Ms. Hawley, an alibi for the night of Ben Potter’s murder. Isn’t that true?”

  “That’s a lie,” he says.

  “Is it r
eally?”

  “That’s a damn lie,” he says, hoping this latter will have more impact with the jury. But his body English falls flat, failing to convey either anger or indignation. If demeanor can be said to count for much, the only emotion now apparent from the Greek is fear.

  He’s still sputtering from the witness box. “Not true,” he says. “You’ve hated me from the beginning, because I was Ben’s friend …”

  Acosta’s on his gavel, hammering away. He senses what’s coming.

  “You were his enemy,” he says. “You and her.”

  Acosta’s now up out of his chair, towering over the Greek, hammering on the railing around the witness box, inches from Tony’s ear. He is bellowing at the Greek, at the top of his voice. “Mr. Skarpellos, another word and I’ll hold you in contempt,” he says. Skarpellos is one sentence, one angry burst from a mistrial, and Acosta knows it. Ambition, judicial elevation flash before his eyes. If he had a gag, even a garrote, he would use it now.

  Skarpellos splits an infinitive, stops in mid-sentence, looks at the angry judge, and reins in his wrath.

  “I will have no more of this,” says Acosta. He points his gavel like a blunted sword at the Greek. Their eyes meet and the Coconut makes plain who is in charge here. Halting, never giving up eye contact, like he’s warding off some mongrel dog searching for an opening, the judge finally takes his seat.

  “Counsel.” He looks at me. “Are you finished?”

  “Not quite, Your Honor.”

  “Then get on with it.”

  I have the certified copy of the Greek’s check marked for identification and move it into evidence. There’s no objection from Nelson. Meeks is making notes. I can tell by the way he is eyeing the Greek that these are little mental ticklers to take a hard look at the statutes on embezzlement.

  I look at Skarpellos. “As I recall, you told police the morning after the murder that you couldn’t think of anyone who might kill Ben Potter. Is that correct?”

  He looks at me. He’s breathing heavily now, a lot of adrenaline pumping inside that barrel chest.

  “Yeah, that’s right.”

  “Isn’t it true, Mr. Skarpellos, that you yourself had a heated argument with the victim, Ben Potter, only a few days before he was killed?”