Compelling Evidence

by Steve Martini

  He looks back up at Acosta. “This is bullshit,” he says. “I don’t have to put up with this.”

  “The witness will answer the question,” says Acosta. “And he will watch his language while he’s in my courtroom.”

  “I’m sorry, Your Honor. I apologize. But this is not true. I never had an argument with Ben Potter. We were good partners.”

  “Then you should so testify,” says Acosta. “But watch your tongue.” Acosta nods toward me to continue.

  “Isn’t it true, Mr. Skarpellos, that in fact Mr. Potter had discovered that you had taken sizable sums from the firm’s client trust account, diverting those moneys to your own personal use, and that he gave you an ultimatum, that unless you paid that money back, restored it to the trust account, he would report you to the state bar?”

  “This is garbage. I don’t have to answer that.”

  “Isn’t it true that Ben Potter discovered you stealing money from the trust account and threatened to report you to the bar, to have you disbarred from the practice of law?”

  “That’s garbage,” he says. “I don’t know where you’re hearing this crap.”

  “I’ve warned you once, Mr. Skarpellos. I won’t do it again. I don’t accept that kind of language in my courtroom.” There are a lot of indignant looks flashing from the judge to the jury, like maybe the judiciary and the courts are some offshoot of the temperance league. “That question can be answered with a simple yes or no,” says Acosta.

  “No,” says Skarpellos.

  “Are you telling us that you never took any money from the trust account?”

  “I’m taking the Fifth,” he says.

  I retreat to the counsel table and retrieve the final document. “Besides the check,” I say, “that you wrote to Susan Hawley, isn’t it true that you failed to pay over funds owing to another client, one Melvin Plotkin, for whom your firm had taken possession of a two-hundred-and-fifty-thousand-dollar settlement in a personal injury case?”

  “Where did you hear that?” he says. “A lotta gossip.”

  I hand him a copy of the formal letter of complaint filed by Plotkin with the bar. Mr. Plotkin had made five demands on the firm for payment over a period of seven months. The attorneys in the case had gone to the Greek, imploring him to release the funds to the client, but Skarpellos had ignored them. Tod had given me the inside dealings on this, anxious to implicate his boss. We have searched for the letter dictated by Ben to Jo Ann and addressed to the bar. So far we have been unable to find this smoking gun. But the Plotkin letter is the next best thing.

  “I ask you to examine this letter, Mr. Skarpellos, and tell me whether you’ve ever seen a copy of it before.”

  Again he looks at it, but his eyes are not following the words. He’s stalling for time.

  “Where did you get this?” he says. “There’s been no disciplinary finding in this case, no action taken by the bar. State bar investigations are supposed to be confidential.”

  “Not from a criminal courts subpoena,” I tell him.

  “Your Honor, this is a terrible breach of confidentiality, an invasion of privacy,” he says.

  He gets no sympathy from the judge.

  “I would ask you again, have you ever seen a copy of this letter, Mr. Skarpellos? You will notice that you are copied on the ‘cc’s’ at the bottom,” I tell him.

  “Yes I got a copy of it,” he says. “And the entire matter has been resolved.”

  “Yes, you settled it privately, isn’t that true?”

  “Absolutely,” he says. “We take care of our clients. This was a simple misunderstanding.”

  “I see, you took Mr. Plotkin’s money and used it for eighteen months and he somehow misunderstood how you could do that. Is that it?”

  Tony doesn’t answer this, but his head is constantly shaking, like he wants to say “no” but doesn’t know how.

  “The state bar didn’t quite understand it either, did they?”

  I get no response to this.

  “Isn’t it true that you settled this complaint, that you paid Mr. Plotkin his money only after the bar began its investigation, and then you only paid him on condition that he would withdraw this complaint, to get the bar off your back? Isn’t that true?”

  “No,” he says.

  “I can bring Mr. Plotkin in here to tell us what happened.”

  The Greek is looking at me, his eyes darting.

  “Isn’t it true that to settle this case you took other moneys from trust, that you operated a little shell game, stealing from one client to pay another, and that this is what Ben Potter discovered?”

  I am off in never-never land now, guessing, filling in bare spots with a little imagination.

  “No,” he says.

  “How did you lose the money, Mr. Skarpellos, gambling?” I pour a little more vice over him and turn him slowly on the skewer.

  “Isn’t it true that Ben Potter found out about your diversions of money, and that the two of you argued in the office violently, and that he gave you forty-eight hours to pay the money back or he was going to the bar?”

  I give him more to worry about, a little detail, the forty-eight-hour deadline told to me by Jo Ann.

  He looks at me round-eyed now, ready to kill, I think.

  “If this had happened you’d have lost your ticket to practice, your interest in the firm, maybe gone to jail,” I say. “That is something someone would kill for, isn’t it, Mr. Skarpellos?”

  “No,” he says, “that’s not true.”

  I would warn him of the consequences of perjury, but what is a lie when employed to conceal a murder?

  I turn away from him and to the bench.

  “Your Honor, this is a certified copy of a letter received by the state bar, signed by Melvin Plotkin, a client of the Potter, Skarpellos law firm. Mr. Plotkin is under subpoena and will testify as to the authenticity of this letter and the circumstances leading up to its submission to the bar. We would ask at this time that the letter be marked for identification.”

  “I will mark it, subject to further foundational testimony,” says Acosta.

  I turn and look at the Greek for a long moment; then I shake my head, a little scorn for the benefit of the jury.

  “I don’t think I have any further use for this witness,” I say. There is more than a trace of derision in my voice.

  Nelson is in deep consultation with Meeks. It would take a minor miracle to rehabilitate Skarpellos now. It takes Nelson and Meeks less than five seconds to come to this same conclusion. The best they can do is to get him out of the courtroom, out of the sight of this jury as quickly as possible, and hope that memories, like the dark days of winter, are short.

  CHAPTER

  38

  SUSAN Hawley has been captured by the police; her picture from a file photo—part of a story about the trial on the evening news—netted her in L.A. As always, she was in the tow of other beautiful people, at a gala with some movie mogul when the cops nailed her.

  Harry and I are in a quandary, whether to call her to the stand or not. We’re closeted in my office talking strategy.

  Skarpellos has made such a disaster of his testimony that it’s hard to imagine that anything further could be gained by putting Hawley up.

  Harry says no. “She’s slick,” he says, “bright and quick.” The stuff of which pricey call girls are made. If they applied themselves in other ways, most could make it in the world of corporate high finance, I think.

  “It’s risky,” says Harry. “Skarpellos couldn’t save himself, but Hawley might.” There is concern here that she could come up with a plausible story for the $25,000 “loan”—a down payment on a condo, or a new car. She might say that she told the Greek this. “Then she’ll flash big eyes at the jury,” says Harry. “I can hear her. She will tell them, ‘That Tony, lover that he is, he just forgot, that’s all.’ ” Like that, we could lose all we’ve gained from the Greek.

  Harry looks at me stark and cold, like this
is a premonition. It is one of the things I like best about Harry. He has good instincts.

  It is for reasons such as this that I was not more overt in pointing to Skarpellos in my opening statement. Nelson would have done more to cover up. This is more difficult now. We are deep in the defense case, and Nelson is saddled with the Greek’s lame explanation for the $25,000 “loan.” He is, I think, not likely to move the court to reopen his own case to call Susan Hawley.

  “If we could crush her on the stand,” I tell Harry, “get her to admit that it was all a scam, tampered testimony that Skarpellos bought, that Tony and she were not together on the night Ben was murdered, it would be like putting the smoking gun in the Greek’s hand.”

  Harry looks at me, a wry smile. This is the stuff of trial lawyer lore, bald fiction, not what happens each day in most open courts in this state. Cases are won or lost, not on the truth, but by the preponderance of perjury uttered by witnesses on the stand, who lie with impunity and then walk away. This is most true on the criminal side.

  If we put Susan Hawley up and fail, she could cut the legs out from under our case, I concede. Harry is right. The risk is too great. We will not call her to the stand.

  The telephone rings. I pick it up—it’s Nikki. I say “hi” and ask her to hold for a second.

  Harry’s happy with my decision on Hawley, says he thinks we’ve dodged a bullet. He heads back to his office down the hall.

  I take my hand off the mouthpiece of the phone.

  “Hi,” I say.

  “How’s it going?” she asks. Nikki has burned too much vacation, and she is back on the job, at least for a few days.

  “Ask me in a week,” I tell her.

  “I read about Skarpellos in the morning paper,” says Nikki. “They’re speculating that the bar may be opening an investigation into his finances.”

  “Long overdue,” I say.

  “You sound tired.”

  “I am.” Nikki knows the hours I’m working. She’d been a wallflower in my life long enough, during my stint with the firm, and before that when I was in the DA’s office, to know that I am not worth being around when I’m in the middle of a trial.

  “You haven’t been over in a while,” she says. “Sarah thinks you died.”

  I feel bad about this. I haven’t seen Sarah in two weeks. I promise to make amends when this is all over.

  “How about dinner,” she says, “over here tonight? I’ll make it quick, something you like.”

  “I wish I could. Harry and I are scheduled to go over notes tonight for the witnesses in the morning,” I tell her.

  She’s not hurt; she says she understands. She’s not so sure about Sarah.

  “A week and the case is to the jury. I will make it all up then,” I say. “Can she wait one more week?”

  “I guess she’ll have to.”

  “I promise,” I say.

  “I’ll tell her. Try to get some sleep,” she says. Then she hangs up.

  I feel like a first-class shit. The plight of the trial lawyer’s family.

  Nikki has been fighting old battles again, her demons of dependence—the feeling that with my career, in our marriage, she was a mere afterthought to be tended to, serviced, somewhere between late nights at the office and weekends laboring over briefs and pleadings.

  It seems she has a new sense not only of herself, but of who I am, now that I no longer float like some satellite in the orbit of Ben. I feel that in her eyes I am now the master of my own destiny, as threatened as that may be. If indeed we are each a mirror image of how we perceive others see us, I can now say that there is something of greater worth reflected in Nikki’s eyes each time she looks at me.

  In the weeks since the start of the trial, she has found herself caught between a growing desire to reconcile our differences and the thought that we have, each in our own ways, paid such a painful price to find ourselves. It has taken her more than a year to shed that self-image which makes a wife in our society an invisible appendage of her spouse. And she is unwilling to backslide.

  She has sent clear messages of late, like an emissary ending a war, that if I want her back it must be on her own terms.

  I pick up the phone and dial her.

  She answers.

  “What’s for dinner?” I say.

  A bit of jubilation at the other end of the line.

  “You look like the lawyer from hell,” he says. Harry’s commenting on the big gray bags sagging under my eyes and on the wrinkled dress shirt.

  I explain that Nikki forgot to set her alarm. Dinner turned into an hour of play with Sarah and a long evening of conversation over wine with Nikki, a lot of mellow forgiveness and subtle understandings. We rolled out of the sheets at eight-thirty, me with a nine A.M. court call. It was Sarah who woke us, bright eyes of wonder and delight, crawling over the sheets and my body to snuggle between her mother and me. It was not a night of much sleep. It seems that we have rediscovered old passions, rekindled a new interest in life together.

  Melvin Plotkin, five-foot-two, is a real piece of cake. An irate businessman injured in a fiery auto collision four years ago. Neither the psychic trauma of the accident nor the permanent injuries sustained have taken the starch out of this little man. He has burn scars on his upper arms and neck, places where skin grafts have left splotches of discoloration. His case was settled for a quarter-million dollars by attorneys for P&S two years ago. He got his money eighteen months later, after a pitched battle with Skarpellos.

  Tony has probably stolen from a dozen other clients, but Plotkin is not to be horsed around with. He owns a small collection agency and survives like a pilot fish swimming with the sharks. Harry suspects that Plotkin—shrewd, no stranger to sharp business practices—cooks his own books, that he probably steals from the mom-and-pop shops that assign their claims to him for collection, so he knows how it’s done. It stands to reason that he would be the first and loudest to scream if cheated.

  We have our problems with Plotkin. It seems he once owned a much larger collection agency, started on a shoestring and with much hard work. He tinkered with a merger, a national firm ten years ago, and in the end found himself muscled out of his own business. Two lawyers for the larger company showed him the door. Since then Plotkin has had an abiding hatred of lawyers. He is here under subpoena.

  I have him look at the letter sent to the state bar, the one complaining about Skarpellos and the trust fund.

  “Yeah, I wrote it,” he says. “A license to steal.” This is meant as a general indictment of all lawyers. He looks up at Acosta, and from the dour expression on his face, it would seem the same applies to judges.

  “Did you talk to Mr. Skarpellos first?”

  “I talked to my lawyer first,” he says, “the one who settled the case.” This was one of the younger associates in the firm.

  “What did he tell you?”

  “What’s he gonna say—your money’s here, your money’s there, insurance site drafts take a long time to clear—the giant stall,” he says. “I’ve spent a lifetime chasing deadbeats, I know a stall when I hear it.”

  “Then you talked to Mr. Skarpellos?”

  “No, then I talked to his secretary. Mr. Skarpellos is a hard man to catch.”

  “And what did you say to his secretary?”

  “I got a little hot, I guess. She says Mr. Skarpellos is busy. So I call back. Three times I call back. All the while they’re sitting on two hundred and fifty thousand dollars of my money,” he says. “So finally I have words with this—this secretary.” He can’t seem to come up with a better word for her. I think the lady probably earned her wages that day.

  According to Plotkin, his language “became colorful.” She hung up on him. He called her back, says he was polite this time, but I don’t know if I buy this, because she hung up again. A half-hour later Tony called him back and taught him a few words that weren’t in Plotkin’s own vocabulary. The next day Plotkin sent flowers to the secretary, and a note that bo
rdered on a death threat to Skarpellos.

  This missive had no effect on the Greek. He just kept the money and instructed his secretary not to put Plotkin through on the phone anymore.

  After two more letters to the firm went unanswered, Plotkin called the bar. They invited him to send a formal complaint. He did, and a week later an investigator visited the offices of Potter, Skarpellos. This finally had a sobering effect on Tony. The next day, according to Plotkin, he got a call from the firm.

  “They wanted me to come over for a meeting,” he says.

  “Who’s they?”

  “Another partner called me. Hazeltine. Said he wanted me to come by and pick up my check.”

  “Did you?”

  “Sure. I went by the next morning.”

  “And what happened?”

  “They hustle me into a conference room. I look around this place and see where my money has gone,” he says.

  “Who was present at this meeting?”

  “The lawyer who represented me—Daniel Liston is his name. He’s the only one there.”

  This is an associate I knew, but not well, when I left the firm.

  “He seems real embarrassed,” says Plotkin. “Tells me he has a cashier’s check for my part of the settlement, but first I have to sign some papers.”

  “Papers?”

  “Yeah, a receipt and something else.”

  I look at him, like “Please continue.”

  “He has this letter, typed on plain paper, to the state bar, asking that my complaint be withdrawn, and stating that the entire matter was a misunderstanding. My name is typed at the bottom where I’m supposed to sign.”

  I look at the jury. They seem mesmerized by this. Perhaps we have turned the corner. One would think that Tony Skarpellos is on trial here and not Talia.

  “Did you sign this letter?”

  “I had to get my money. A bunch of bloodsuckers,” he says.

  “Objection,” says Nelson. “If the witness could testify without making speeches.”

  “Sustained. The reporter will strike the last comment,” says Acosta. “Just answer the questions, Mr. Plotkin.”