Compelling Evidence

by Steve Martini

  Instead of ending on a high note, Nelson, it seems, has miscalculated. His final pitch to the jury drops flat like some sinking stone in a mountain lake. I think that he senses this. As he turns, his back to the jury, and makes for the counsel table, Nelson has the look of a man who wishes for one more chance. Unfortunately for our side, he will get it. The prosecution gets two shots at closing argument, an initial summation and then a rebuttal following our own, one of the perks of shouldering the burden of proof.

  Nelson takes his seat, and Acosta looks at me.

  My plan here has two major aspects, to tear at the soft underbelly of the state’s case so as to put Nelson on the defense, and to give him as little ammunition as possible for his rebuttal.

  I move in front of the jury and smile. I speak in a conversational tone, as if I am leaning over the back fence to a neighbor.

  “There is an abiding constant in the criminal law,” I tell them. “It is the same from Maine to California, from the Aleutians in Alaska to the Florida Keys. It is one of the few laws in this nation that is universal and unquestioned—the rule that criminal defendants are entitled to the presumption of innocence unless the state can prove their guilt by evidence beyond a reasonable doubt.”

  I always start with the basics.

  I nod a little, anticipating the question that I know has entered each of their minds.

  “Oh yes, you are right. This is a difficult task that our government has imposed upon the various states, particularly in a case such as this one, where the evidence is circumstantial, where there are no witnesses to the crime.

  “But,” I say, “this is what the founding fathers intended, that no innocent man or woman should suffer for a wrongful conviction, should be unjustly imprisoned, or worse, executed because of an overzealous prosecutor or a mistake on the part of the state. It is a good system, the best in the world.”

  I soothe them lest they feel that Nelson is too much the underdog here. I remind them that he has an army of police officers to investigate for him, an office filled with professional prosecutors, all of the resources of the state, against me and Harry alone. I point to “Mr. Hinds” sitting at the table, lonely next to Talia. “The state, with all of these resources,” I say, “deserves the burden of proof.”

  They seem to accept this as a given. I move on to defuse Talia’s silence.

  “Mr. Nelson has nibbled around the fringes,” I say. “By innuendo and implication he has questioned what the law does not permit him to ask directly—he has, by subtle suggestion, challenged the silence of Talia Potter in this trial.”

  “Your Honor, I did not,” he says. Nelson is on his feet. He knows this is taboo. If even implied in the transcript, it is grounds for an instant mistrial. He cannot allow my assertion to remain unchallenged.

  “The record will speak for itself,” says Acosta. “I heard no objection from the defense as Mr. Nelson spoke.”

  “How can one object to gestures and inflections, Your Honor?” These do not show up between the lines of black print on the trial transcript, I tell him.

  “Get on with it,” he says.

  I return my gaze to the jury.

  “I will confront this question directly and honestly,” I tell them. “In a few moments the judge will read to you a number of instructions. One of these bears directly on the right of Talia Potter to remain silent throughout this trial. That is her undeniable, God-given right,” I say.

  “She has a right to rely on the state of the government’s evidence, or any failure of that evidence. If the state has failed to prove every essential element of the charge against her, under the law Mr. Nelson may not expect her to supply his own deficiencies. This the law does not permit.”

  I pick up the jury instruction sheet from the counsel table, one of two that Acosta will read from on this point. “ ‘A defendant in a criminal trial,’ ” I read, “ ‘has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. You must neither discuss this matter, nor permit it to enter into your deliberations in any way’ whatever.” I embellish here, one word at the end.

  “This is the law,” I say, “apart from any suggestions or implications that the state may give you, gestures that you think you may have seen.” I turn and look at Nelson. “This is inviolable, a fundamental right which the state may not invade.”

  I return to the counsel table and replace the single piece of paper, take a sip of water, and make my way back to the railing.

  There are other reasons, I tell them, for my client’s silence. I note that she has in fact answered these charges by pleading not guilty, by mounting a vigorous defense, by producing witnesses who have attested to her innocence. “And there is another reason that she has not taken the stand. She is a proud woman, who for months now has been subjected to the worst trauma the state and society can inflict on any citizen, an accusation of serious crime, an utter and complete invasion of any sense of privacy. I will not subject her to more,” I say. “This I cannot do.” In this way I assume the blame for her silence, take it upon myself, and try to scatter it to the winds.

  I pause for a moment and give them a deep sobering look, pull myself up to my full height, and speak.

  “I asked you, when we started, a single vexing question, on an issue pivotal to the outcome of this trial. I asked you whether in the presentation of the state’s entire case you had heard or seen any compelling evidence, any evidence whatever, sufficient to convict Talia Potter of the crime with which she stands accused.”

  It is now time to call them on this. I give an unflinching look from one end of the panel to the other.

  “Ask yourselves, in the silence of your own minds, whether the state has produced a scintilla, even the slightest trace, of compelling evidence that Talia Potter is linked in any way with the death of her husband, Benjamin Potter.”

  I look at them in abject silence for a long moment, giving this thought some time to penetrate.

  “What has the prosecution demonstrated in nearly three weeks of your time, at untold public expense?” I ask them.

  “Mr. Nelson has given you photographs of horrific violence that he would have you believe was perpetrated by my client, Talia Potter. These,” I say, “were designed to make you lash out blindly at anyone charged with this crime. Is this compelling evidence of the guilt of Talia Potter?

  “He has provided a single strand of human hair so pristine in its condition that his own experts cannot explain the absence of any scorching while it was lodged in the chamber of a shotgun fired into the victim’s mouth. Is this compelling evidence of the guilt of Talia Potter?”

  I touch upon the implausible explanation for this that Nelson has given in his closing, an explanation, I say, that is not borne out by the evidence of his own witnesses. “I did not object to this speculation, though I could have,” I say, “because there is no evidence on the record to support it. I did not object because I knew that you could see with your own eyes, and hear with your own ears, the absence of evidence on this very point.” I smile at them, nodding my head slowly, a demonstration that I trust their judgment, their common sense in such things. I have no doubt gained more here, by this tactic, than by any objection I could have made.

  “Mr. Nelson has produced a witness who tells us that the victim was about to divorce Mrs. Potter, a presumed motive for murder. Yet his own witness cannot tell us whether Talia Potter in fact knew of this supposed plan to end her marriage, a motive so secret that the defendant herself was unaware of it. Is this compelling evidence of the guilt of Talia Potter?”

  I remind them of Mrs. Foster, who could not identify the victim’s car, who did not see Ben or Talia at the house on the night of the murder, but whose testimony was offered for this very implication.

  I talk of motel clerks and innuendos of lovers in the night, of accomplices that the state, with all of its resources, cannot identify. All of this to the same chorus: “Is this
compelling evidence of the guilt of Talia Potter?”

  I am certain that Nelson is burning at the counsel table, but as in everything else before the jury he puts a face on this, cool and indifferent.

  I tell them that the evidence of this case requires, cries out for, a single verdict, “a verdict of not guilty.”

  I move slowly away from the railing, several feet, and let them mull on this point for a brief moment. Then I am back to them.

  “When I came to you the first time, in my opening statement, I not only asked you that question, whether the state’s case was one of compelling evidence, but I promised you something else. I promised that I would deliver to you the person who perpetrated this crime, the person who murdered Ben Potter, who killed him in cold blood.”

  Here my expression is dour. It does not take a mental giant to know where I am headed. All of these jurors have, in their own minds, been treading this ground for some days now, listening to the evidence against Tony and wondering.

  “Let us see what we have,” I say. “Mr. Skarpellos has admitted, grudgingly as it may have been, that he was aware of the terms of Ben Potter’s will, the fact that he stood to inherit vast sums from Ben Potter’s estate, but only if Talia Potter were disposed of, out of the way. Her conviction would do that.”

  I play upon this theme, Tony’s convenient memory, the fact that he waited months before he told police that Ben had confided to him his plans for divorce. This I meet in certain terms. I call it “a crock.” Some of the jurors are a little wide-eyed, wondering if this violates the Coconut’s edict on expletives and colored language.

  “Loose dealings with client funds … I think this is how Mr. Nelson referred to the wholesale embezzlement, the looting of client moneys by Anthony Skarpellos. It is the first time I have heard outright theft characterized in this way, particularly by a fire-breathing prosecutor,” I tell them.

  “It is not possible to believe that Ben Potter would confide his innermost secrets to a man such as this, a man who, as we have heard, is known to have stolen openly from the client trust accounts of his own firm. This theft,” I say, “is a given, hard evidence, which has been accepted as such by the state and which you must conclude, for the purposes of this trial, is now fact.”

  I see a series of nodding heads in the jury—slow, timorous, but there.

  “We have heard from the witness Jo Ann Campanelli about the violent argument between Tony Skarpellos and the victim shortly before the murder. We know that the victim sent a written ultimatum to Mr. Skarpellos ordering him to pay the money back to the trust account or to suffer the consequences, consequences which may well have included the loss of his license to practice law in this state. This,” I say, “was a compelling motive for murder.”

  I punch hard at the Greek’s alibi, the money paid to Susan Hawley, the so-called loan without interest, or collateral. “We should all be so lucky as to borrow at the bank of Anthony Skarpellos,” I say. This draws a few smiles from behind the railing.

  I wonder aloud at the state’s investigative myopia, why they have centered on my client to the exclusion of another obvious suspect, one steeped in motive and opportunity.

  “Who had more to gain,” I say, “Talia Potter or Anthony Skarpellos? Who had more to lose?”

  “Look at the facts,” I tell them. “We do not know whether Talia Potter knew of her husband’s presumed plans for divorce, an assertion for which we have only the word of Anthony Skarpellos, a witness who has much to gain by the conviction of Talia Potter. This is the state of the people’s evidence,” I say. “Far from compelling.

  “On the other hand, there is no question that Anthony Skarpellos knew of the threat represented by Ben Potter, a threat communicated in writing, precise in its terms, certain in its consequences.”

  I back away from them at the railing, until I am opposite the witness box.

  “Tony Skarpellos sat there in that chair, ladies and gentlemen”—I point to the box—“and told you that he did not argue with Ben Potter before the murder. We now know that was a lie.” I remind them of Jo Ann’s testimony of hearing this violent argument.

  “He sat there”—I point again as if this was the scene of the crime—“and denied that he had ever taken money from the trust account of his own firm. We now know that was a lie.”

  I drop my voice a full octave. “He sat there, ladies and gentlemen, and denied that he murdered Ben Potter, and I submit that that was a lie as well.”

  In silence, I hold their eyes for a full ten seconds on this point. It is something Ben had taught me for all of the pregnant places in argument. It seems an eternity. Most of the jurors break eye contact with me before I have finished.

  “Ladies and gentlemen, you have an obligation when you get into that room, when you close the door for deliberations, to consider all of the evidence. If you, any one of you, hold a view of this evidence that says that my client is not guilty, and you should, you must hold firmly to that view. You must not be bullied, or cajoled into abandoning that position for reasons of convenience, to go along with the others, to be sociable,” I say. “This is no afternoon tea, no party, but a trial for the life of Talia Potter. In the course of a year, there are many jurors who sit where you sit now. Few will judge such weighty issues.

  “There is, lurking in the subconscious, a dynamic in every case that I have ever tried,” I tell them, “a belief that unless the jury can come to a unanimous verdict, somehow it has failed as a body, it has wasted precious taxpayers’ money, wasted tremendous amounts of time, for the court, for its fellow jurors, and for the lawyers who have participated. This is not so.

  “The law says, for good reason, that you may only convict or acquit, based upon a unanimous vote of the jury, all of you together,” I tell them. “This, however, does not mean that a jury that has not come to a unanimous vote has failed to produce a result. The result in such a case, ladies and gentlemen, is that some jurors, one or more jurors, are persuaded that the state has failed to produce sufficient evidence of guilt to prove, beyond a reasonable doubt, that this defendant is guilty. Such a result, ladies and gentlemen, means that my client is entitled to the continued presumption of innocence to which every one of us in this room is entitled until and unless the state proves our guilt.”

  I have made my last point to this jury. I glance at Talia briefly.

  “Ladies and gentlemen, there sits an innocent woman.” I point with an outstretched arm at Talia, then drop it to my side as if I have offered one final salute.

  “This is my last opportunity to address you,” I say, “so I will thank you for the generous time you have given us, for your patience, and most of all for your honesty, integrity, and wisdom, which I am certain you will bring to your deliberations.”

  With this I am off on my heels, back to the counsel table and quickly into my seat.

  Nelson sits for the briefest moment before rising, taking a few last-minute notes on a yellow pad. When he is finally before the jury he does not waste any time, trying to take this apart, the meat of my argument.

  This time he goes for the critical issue first.

  “Why,” he says, “would a man who has committed murder, and who has framed the victim’s wife for that crime—why would such a man lend eighty thousand dollars to defend the wife on the very charges for which he has framed her?”

  He smiles at the jury as if he has given them the opening moves of a Chinese puzzle. “Why,” he says, “would any rational human being do this?”

  I had asked myself the same question many times. The answer has always come back in the form of Gilbert Cheetam, and his utter lack of competence. One of the imponderables I cannot argue before this jury and expect them to understand. It was a masterstroke, I think; Cheetam for his lack of competence, and me for my conflict, my affairs with Talia. The Greek had assembled the perfect defense team. Skarpellos was more perceptive than I had ever imagined.

  Nelson hits on this as a major theme, that it defies log
ic for Skarpellos to have financed the defense, if in fact he had murdered Ben.

  He leaves the strand of Talia’s hair alone and instead shores up other elements of his case. He tells them that there is no reason to believe that the money paid to Susan Hawley was anything other than what Tony Skarpellos says it was, a loan. “You may question the source of that payment,” he says, “but its purpose is clear, a loan pure and simple.” He questions why, in our case, if we believed that Susan Hawley was a bought witness, we did not call her to the stand. He says that police, who questioned her extensively, never doubted her story that she was with Tony Skarpellos on the night of the murder.

  Here Nelson is proving to be a better defense lawyer than I had expected. By the time he is done, he has leveled the playing field again, and the gargantuan butterflies which soared in my stomach at the start of this trial are back. What the jury will do with this case is, I fear, a crapshoot of immense proportions.

  CHAPTER

  40

  WE waited for the worst, a quick verdict, until that at least seemed unlikely. An hour of listening to Harry’s fingers thumping on the counsel table, and Talia and I could stand it no longer. So we left.

  Talia doesn’t know what to do with herself so she follows us, Harry and me, back to my office. Tod has come along, for moral support. With the jury retired, there is no longer a purpose to the facade of distance I have imposed between the two of them.

  Talia is like a sick and frightened child. To watch her one would think that nothing bad can happen so long as she remains in our presence. I have watched her enough over the past several days to sense that she is now plea-bargaining with the angels for her life. The moment of truth is drawing near, and nerves are raw, on edge. I myself have made resolutions to higher authority, for a better life, for an end to duplicity, if only we can dodge this train bearing down upon us.