Compelling Evidence

by Steve Martini

  It is a subtle point, but one well recognized in the law, that the subjective beliefs of a declarant, not being facts but matters of faith, are not subject to the hearsay rule.

  Acosta is looking at Nelson, who stands silent at the counsel table. I have stuffed his own stipulation down his throat, and now Nelson, his jaw half open, looks as if he will gag on it.

  “The theft of the money from trust is a settled point,” says Acosta. “It would appear that we are looking at state-of-mind evidence here.” He is hoping that Nelson will agree, or at least remain silent.

  “State of mind,” he says. “This is absurd.” Unless Nelson comes up with something more persuasive, this ship will sail.

  Acosta raises his gavel like some auctioneer. “Motion denied,” he says.

  The only one who catches the delicacy of this in the jury box is Robert Rath. I think for a moment that he has flashed the briefest, almost imperceptible, wink in my direction.

  “Mrs. Campanelli, do you recall how much money was referred to in this letter?”

  “Not exactly,” she says, “but it was a lot.” She’s shaking her head now trying to recall the figure. “It was more than a hundred thousand dollars. I know that.”

  “Did you later type this letter?”

  “Yes.”

  “And did Mr. Potter sign it?”

  “In my presence,” she says, “and he asked me to deliver it in a sealed envelope to Tony’s—Mr. Skarpellos’s—secretary.”

  “And did you?”

  “Yes.”

  This letter is starting to look like a little CYA (cover your ass) on Ben’s part. If anyone screamed too loudly, or if the bar launched an independent inquiry, Potter could hide behind this letter, say that the minute he found out, he did the right thing. Though some might question whether waiting forty-eight hours was exactly the right thing. Potter himself might now question this, given his fate.

  “On the day that you typed this first letter, did Mr. Potter dictate a second letter?”

  “Yes.”

  “And to whom was that letter addressed?”

  “To the state bar.”

  “And what did it say?”

  “It contained much of the information that was in the first letter, but in the form of a complaint to the bar. He told the bar that the writing of this letter caused him a great deal of pain, but that it was necessary given the conduct of Mr. Skarpellos.”

  “Did Mr. Potter give you any instructions regarding this second letter?”

  “He told me to postdate it.”

  “Could you explain for the jury?”

  “He wanted me to date the letter two days later than the actual date that I typed it and then to give it to him.”

  “Did Mr. Potter tell you why he wanted you to do this, to postdate the letter?”

  “Objection, hearsay.” Nelson’s back up. “And don’t tell me this is state of mind.”

  I shrug a little concession his way. “You caught me, what can I say.”

  A little lighthearted laughter from the box. It won’t take a mental giant or a Ouija board to figure out why Ben would do this, other than to give the Greek time to gather the money and meet the forty-eight-hour deadline imposed in the first letter. It is the picture of a partner doing all he could to save a friend from his own demons.

  “Did you ever see this letter, the one to the bar, again?”

  “No. I typed it and gave it to Mr. Potter.”

  “So you don’t know whether he had a chance to mail it”—I pause for a little effect—“before he was murdered?”

  “No,” she says.

  I look to the box. The jury has gotten the point.

  Before I leave her, I have Jo Ann identify Ben’s will, her signature as a witness at the bottom. Strangely Nelson makes not even an effort at any objection on this. I suppose that since the Greek has admitted in open court that he was aware of the terms of this document, and his interest in Ben’s estate, there is little to be gained in Nelson’s mind by keeping the document itself out of evidence. It goes in without a hitch. One of the foibles of trial law. Problems never develop where you expect them.

  “Your witness,” I say.

  There are no surprises here. In his approach to Jo Ann, Nelson is entirely predictable.

  “Mrs. Campelli,” he butchers her name.

  “Campanelli,” she says.

  “Excuse me. Mrs. Campanelli. Isn’t it true that you were fired by the Potter, Skarpellos firm for acts of insubordination?”

  “No,” she says, “that is not true.”

  “Isn’t it a fact that you were making inquiries into confidential client matters in the firm that you knew you had no business knowing about, that you had been instructed not to involve yourself in these, and that you were fired for that reason?”

  “No,” she says, “I was fired after I asked questions about the client trust account. After Mr. Potter was killed, I went to one of the partners about this. I was never told why I was fired. You can draw your own conclusions.”

  Nelson is not having his way with her.

  “Isn’t it true that after you were fired, you harbored a deep hatred for Anthony Skarpellos?”

  “I wouldn’t call it hatred,” she says. “It was more like contempt.”

  There’s some snickering in the jury box.

  “Fine, you harbored contempt for Mr. Skarpellos. Tell me,” he says, “didn’t this contempt play just a little role in your testimony here today?”

  “I testified truthfully,” she says, “to every question.” There is a perfect look of righteous indignation about her, the kind that only older women can project well.

  “Come now,” he says, “you’re not going to sit there and tell us that you didn’t enjoy saying some of the things you did today about Mr. Skarpellos?”

  “I enjoy telling the truth,” she says.

  “Tell me, Mrs. Campanelli, if this information, your testimony, was so important, why didn’t you go to the police with it immediately after Mr. Potter was killed?”

  “I,” she stumbles here a little, “didn’t think I had enough evidence.”

  “I see. You didn’t think this testimony was worth anything until Mr. Madriani approached you and told you he needed it for his defense, is that it?”

  “No,” she says.

  “But he did come to you, didn’t he?”

  “Yes.” The indignation is gone now. Nelson is beginning to burrow in.

  “Let’s talk about these letters,” he says. “There were two of them, is that right?”

  “Yes.”

  “Do you have copies of them?”

  “No.”

  “Well, you’re a secretary, don’t you usually keep copies of correspondence you prepare? Don’t you usually file it somewhere?”

  “These were confidential letters,” she says. “They were highly personal. They were not filed in the usual manner.”

  “I see, so Mr. Potter trusted you to type these letters, but he didn’t trust you enough to keep copies of them?”

  He’s pummeling her now. Jo Ann is looking at him, meanness in her eyes. There is no way she can answer the question—like asking whether she still beats her husband.

  “Isn’t it a fact,” he says, “that you never heard any argument between Mr. Potter and Mr. Skarpellos, about trust accounts or anything else?”

  “That’s not true …”

  “Isn’t it a fact that you concocted this entire story to provide Mr. Madriani with a defense and to get back at Mr. Skarpellos, who fired you?”

  “Was he the one?” she says.

  Nelson looks at her, taken aback for a moment.

  “They never told me who did it,” she says. “They didn’t have the guts.”

  Nelson has left himself open for this one. I don’t know whether the jury is buying it, but Jo is playing it for all it is worth.

  “If I’d known, I would have been here sooner,” she says. “But my testimony would have been the same.�
� Her neck is bowed, like a rooster in a cock fight. She looks him dead in the eye. And after several seconds it is Nelson who blinks, then finally looks away.

  No, I think, this will not come off as sour grapes.

  After the morning break, Acosta asks me if the defense has any more witnesses. I have left them in the dark about Talia’s intentions, whether she will take the stand or not.

  “Your Honor.” I rise from behind the counsel table, and I look down at my client with a purposeful gaze, as if pondering at this last moment what to do, whether to put Talia up or not.

  “Considering the evidence, Your Honor, I see little purpose in subjecting Mrs. Potter to any more trauma. She’s been through a great deal. We have decided that in light of the state’s case we see no purpose whatever to be served in putting her on the stand.”

  I make this look like some last-minute decision, something that I have landed on on the spur of the moment, grounded on the weakness of the state’s case.

  Nelson is looking at me dumbfounded. These comments are highly improper, except that in a death case everything is fair game.

  “Your Honor,” he says. “I object.”

  “To what? My client not taking the stand? That is her privilege. The burden is on you to prove your case,” I say, “and you have failed.”

  At this his eyes nearly bulge from his head.

  “No,” he says, “I object to these gratuitous comments. The justifications for why he won’t put his client on the stand.” He’s imploring Acosta.

  “The state is not permitted to comment in this area,” I tell Acosta. “Mr. Nelson is asking for a mistrial.” Having goaded him, I now complain about Nelson’s response.

  Acosta is banging his gavel, telling us both to be quiet.

  “That will be enough,” he says. “The defendant has chosen not to testify. That is her right. I instruct the jury to disregard all of the comments of both counsel. These are not evidence and are not to be considered by you in arriving at your verdict.”

  Some trial lawyers call this cautionary instruction “the green-striped zebra rule.” A jury told that it may think of anything, anything in the world, except a green zebra, will of course envision, to the exclusion of all other objects in the universe, a green-striped zebra. It is not so easy for Acosta to kill this seed I have planted. Jurors now at least have a plausible explanation for Talia’s silence, one they have been told not to consider, so of course they will, not collectively, but in the dark recesses of their individual consciousnesses. It is at least an explanation, something to counter the natural inclination that only the guilty remain silent.

  “Mr. Madriani, do you have any further witnesses?”

  “The defense rests,” I say.

  “Very well,” says Acosta. He looks at his watch, considering whether to continue today or to resume in the morning. “We will have closing arguments tomorrow, starting at nine o’clock. I would advise you both to be ready. This court stands adjourned.”

  CHAPTER

  39

  IT took most of the morning, behind closed doors with Acosta, to settle on the jury instructions. This is a mixed bag of short paragraphs, rules on the burden of proof, the presumption of innocence, circumstantial evidence and the weight to be given these facts, the inferences to be drawn from them. In the end it is a tight little package, items that both Nelson and I will refer to in our closing argument.

  Through final argument we claw at each other like two flailing tomcats over a fish head. This is deadly combat. The stakes are high. The gloves are off. Closing argument in a death case, and all is fair game.

  Nelson is now up before the jury. He tries to stretch the evidence. His first pitfall comes over the strand of Talia’s hair, the only physical link between her and the crime. His difficulty, of course, is that he must explain how this hair survived unscathed in the barrel of the shotgun, how it escaped the searing heat of the blast that took off the top of Ben’s head. He wants to put this problem behind him early, so the jury will not dwell on it.

  This is a tactical mistake, I think, a deviation from the precept that you always start strong and finish on a high note. He stumbles a bit here, then picks himself up moving forward with his argument. He tells the jury that this piece of evidence is susceptible to a number of differing interpretations. “The hair may have worked its way to the side of the chamber before the trigger was pulled. Maybe the defendant opened the breech and closed it again after firing,” he says, though he can’t suggest a reason for this, since she apparently did not remove the spent cartridge. “She may have snagged the hair at that time,” he says. “You can’t always expect a person who has just committed such a brutal, merciless crime, to think and act logically.”

  All of these explanations are equally lame. But Nelson puts a face of confidence on them and does an expert job peddling them to the jury. He moves on, smoothly, to the little pistol found by Tod at Talia’s house after the murder. He notes Coop’s expert testimony, that the standard metal jacket on a twenty-five-caliber bullet is entirely consistent with the fragment found in the skull of the victim.

  “This,” he says, “this handgun found at the defendant’s residence, was the murder weapon that killed Ben Potter. Can you doubt it?

  “You have heard Mrs. Foster,” he says, “the neighbor of the Potters, as she told of seeing the victim’s vehicle in the driveway of their house about the time of the murder. Mr. Madriani”—he looks at me full of scorn—“Mr. Madriani did what he could to confuse this poor woman, with pictures of cars that none of us under similar circumstances could distinguish. But notwithstanding this confusion, her testimony remains. This was a vehicle she had seen many times, a vehicle she was not likely to mistake.”

  Nelson is a master at working with what he is given. He plays at the edges of circumstance like a virtuoso at the piano. His argument is straightforward, almost chronological.

  “We have heard testimony of an alibi”—he leans on this word for all of the pejorative connotations it carries in the public mind—“an alibi for the defendant, a story related to police and investigated by them, thoroughly. Yet I would ask you to comb the record of this trial—there is not a shred of evidence to support this story of the defendant that she was out of town at the time of the murder. The defendant has produced nothing, not a single scrap of evidence, to tell us where she was on that night.”

  He pauses, both hands on the railing, and takes in the entire panel with the sweep of his eyes. The law does not allow him to ask with words what he now asks with body language: Why has the defendant failed to come forward to tell us where she was the night Ben Potter was murdered?

  I can tell that this has an effect on the jury. Even Rath will not meet my eyes as he considers this.

  Nelson hits hard on the prenuptial agreement and scrambles to fill in the deficiencies in his evidence. “Mr. Madriani,” he says, “places great stock in the theory that the defendant never knew about Ben Potter’s plans to divorce her. Yet this is only a theory, so much conjecture. For we don’t know what the defendant knew or did not know on this point. We can only surmise.” He now turns from the jury and is looking at Talia, a silent indictment for her failure to testify.

  “We do know that she had a great deal to lose,” he says. “The home she lived in, an opulent residence fit for a queen, all interest in the law firm managed by her husband, a firm worth millions of dollars. A carefree, some might even say indulgent, life-style to which she had become accustomed. All of this would have been swept away in an instant if Ben Potter had divorced the defendant.”

  He centers himself again on the railing. “Ask yourselves, ladies and gentlemen, whether this, the loss of all of these things, the loss of all financial security as one approaches the middle years of life, is not an adequate motive for murder.”

  He steps back slowly, nodding, a little body English to provide the answer to his own rhetoric.

  He runs quickly through the testimony of Talia’s character witne
sses, testimony which he says is “self-serving—the raving endorsement of the country club set, whose morals, like those of the defendant, belong in some barn.”

  This stings, and I can see Talia take a mean bead on him. I lean toward her with a little admonition on demeanor. “Don’t give the jury something to dislike,” I tell her. She settles into a more placid expression.

  “Ladies and gentlemen, ask yourselves, can you believe a character witness who tells us that these sojourns to a local motel in the middle of the day with other men were perfectly innocent tennis lessons?” There is scorn dripping from his voice.

  He steps away from the railing shaking his head, a little mock laughter. “These people think we are hayseeds,” he says.

  “No,” he tells the jury, “these are not the actions of a loyal and loving wife, but a hedonistic life-style lived under the nose of a husband who was shamed and embarrassed in the community in which he lived, a husband who for good and obvious reason sought to end a fruitless marriage—and who for his efforts was murdered.”

  This last settles like prairie dust on an Iowa fanner. Even to this male-dominated jury it is difficult to square the monumental lack of discretion exhibited by Talia.

  Nelson has saved the most critical part for last, his defense of Tony Skarpellos. Here he is cast in the role of defense lawyer. Unless he can acquit the Greek in the eyes of this jury, the thread of two possible perpetrators, each with opportunity, each with a burning motive to kill, will fire more doubt than the state’s circumstantial case can withstand.

  “Mr. Madriani has gone to great lengths to draw the witness Anthony Skarpellos into the ring of suspicion in this case. Indeed, there are things we have heard that are disturbing in terms of Mr. Skarpellos’s conduct, his loose dealings with client funds. But this is not evidence of murder. This”—my theory of the case, says Nelson—“is misdirection, clearly calculated to draw the jury away from the real killer.”

  It is clear that within two minutes of launching into this, his last point of argument, Nelson has made a major blunder. He has nothing with which to counter our theory against the Greek. Harry’s advice on Susan Hawley, it seems, has turned out to be golden. While Nelson plays upon Tony’s alibi, the basketball game in Oakland, this has all the timbre of a hollow tune. Talia’s fate may not yet be decided, but one thing is clear: Tony Skarpellos suffers from a terminal lack of credibility in the eyes of this jury. He is not someone I would wish to defend here.