“Don’t waste my time,” he says. “The next time you come here, I expect you to have these things worked out.”
The deputy DA takes the brunt of the judge’s wrath. He turns and sees his boss seated, tapping on the railing. Nelson is flanked by two of the senior deputies from the office. I know one of them. Peter Meeks is a wizard with the written word, a master of briefs. In junior high, where crib notes and the brokering of homework were the path of passage, part of the rites of puberty, Meeks would have been the guy drafted to pen the daily essays.
The two lawyers in front of Acosta pick up their papers. The defense attorney leads his client away, still grousing about some part of the deal he wasn’t getting. They drift past the bailiff’s station to the hidden door back behind the bench and disappear, grumbling into the shadows.
Acosta shuffles files and looks up at us.
“People versus Talia Potter.”
Pleasantries are exchanged as Acosta shifts social gears, a little more upbeat now that Nelson is at the table and the court is no longer dealing with the hired help.
Talia and I spread out at the defense table.
“The people are asking for a trial date, is that correct?”
“Correct, Your Honor.” Nelson and his two assistants take their seats and fumble with a few papers.
“Mr. Madriani, before we get to a date, this court would like to know your intentions with regard to venue.”
The court is asking whether we intend to try to move the trial to another city, a change of venue to ease the sting of adverse pretrial publicity.
“We’ve considered a change of venue, Your Honor. However, given the nature of the press coverage in this case, the fact that my client’s husband was nationally prominent and that news of his death and these charges have run repeatedly on the national wires, I’m not sure that a change of venue would serve any purpose.”
“I’m inclined to think you’re right,” says Acosta. I can tell what he’s thinking, that this is easier than it should be. “Then I take it you’re waiving any motion for a change of venue?”
“I didn’t say that, Your Honor, only that we will not seek a change at this time. We would reserve the right to file an appropriate motion at a later time, during voir dire, if it becomes apparent that we cannot empanel an impartial jury.”
Harry and I have set aside $10,000 of our limited resources to hire a market research firm whose specialty is the demographics of jury selection. The company will do a random population sampling for Talia’s case. In ten days we will know what portion of Capitol County has heard of Talia, read about the crime, and formed opinions as to her guilt or innocence. We will know the socioeconomic breakdown of those who believe her innocent and those who think she might be guilty. We will know the effects of five months of blistering daily news coverage. Similar samples will be taken in four other counties of comparable size where, if a change of venue is ordered, we might expect the case to be moved. This will tell us whether anything is to be gained by moving the trial. So for now, I maneuver to keep my options open.
Acosta’s not sure what to do with this thing, the open and unresolved issue of venue. It’s not in the bench book, the folder of crib notes they gave him with his robes that he clutches like the Bible on the bench. Like most compulsives, he likes things in neat little boxes.
He clears his throat a little and looks at Nelson. “Do you have any problem with that?”.
Nelson is huddled with his minions at the other table. He finally looks up.
“No, Your Honor. That’s fine.”
“Very well.” Acosta was hoping for a little help. He checks the notes in front of him. Next item.
“Publicity,” he says. “It’s a problem in this case.” Acosta is looking out at the reporters in the front row. In a banana republic he would have an easy answer. Here his options are more limited.
“I’m reimposing the order that was lifted after the preliminary hearing,” he says. “The parties and their counsel are not to discuss any of the details of this trial or to comment upon it in any fashion with the press or with any parties outside of this courtroom, except for the usual preparation of witnesses and collaboration among co-counsel. Is that understood?”
A noticeable groan goes up from the front row. The age of enterprising journalism, it seems, is over.
This is fine with me. Acosta has freed us from the need to fire return salvos in a war of words designed for public consumption. Given the disparity of resources, ours against the state’s, I’m not anxious to waste my time, or Harry’s, coming up with daily sound bites.
Nelson and I acknowledge the terms of the gag order.
The door opens at the back of the courtroom. I turn a little in my chair to see Harry hustling down the aisle, breathless and sweating.
“Mr. Hinds, I’m glad you could join us.”
“Sorry, Your Honor. I was interviewing a client at the jail. Had a little trouble getting out.”
“The people who come here tell me it’s like that.” Acosta smiles, broad and paternal.
Harry dumps his briefcase on the counsel table and pulls up a chair.
“I’ve imposed a gag order in this case. We wouldn’t want you to end up back at the jail as a guest, so you might get the details from Mr. Madriani.”
Harry nods. He’s ransacking the innards of his briefcase looking for a note pad.
“Is discovery complete?”
“No, Your Honor.” I speak before Nelson can.
He looks at me a little startled.
I whisper across the breach between the tables, about his secret witness. I wink a little to avoid the details. Busy pens are working in the front row.
“Oh yes.” He remembers. His source who knows more about her marriage than Talia.
“There is one witness we discovered late,” he says. “I’ve already informed the defense as to the nature of the testimony this witness will provide. I will follow that up with a letter. There is no written statement by the witness. I’m prepared to disclose the identity of the witness, the name and address, at the close of this hearing, if that would assist the defense.”
“Is that acceptable, Mr. Madriani?”
“That’s fine, Your Honor.” I shrug my shoulders.
“You’ve delivered everything else, Mr. Nelson?”
“Yes, Your Honor.”
“And Mr. Madriani, have you shared your witness list with the people?”
This is not a legal requirement for the defense in this state, but a courtesy enforced by most judges. In this regard Nelson and I have each loaded our lists with the names of a dozen shills, witnesses we have no intention of calling. In this way we conceal our strategy, our respective theories of the case. We force each other to waste valuable time preparing for witnesses the jury will never see. Such are the games that lawyers play.
I tell the court that I have indeed delivered my witness list and physical evidence discovered by the defense in the preparation of its case.
This latter is wholly gratuitous. I am referring in cryptic terms to the small handgun, Talia’s twenty-five caliber. We were correct in our assumption. Ballistics has come up dry on any match with the bullet fragment found in Ben. It has proven too small for comparison. The only prints found on the gun were those of Talia and Tod Hamilton, both accounted for in our report that accompanied the gun when it was delivered to the police. Nelson will use this to show that Talia had access to a handgun, but he will have an uphill battle. There is no concrete evidence linking this weapon to the crime. I will argue that the gun as evidence lacks any real probative value, that its introduction into evidence may lead to possible erroneous conclusions on the part of a jury, assumptions prejudicial to our client. In this way, I believe, I can keep the gun out.
“Are there any other motions from the people?”
Nelson looks down the line at his brain trust, the paper pushers. If there is a paper blizzard thrown by the state during the trial, these two will be work
ing the wind machine.
“Not at this time, Your Honor.”
“Mr. Madriani, is there anything else?”
“No, Your Honor.”
“Then the clerk will give us an available date.”
Acosta’s clerk is a courthouse fixture. Harriet Bloom has already survived three of the Coconut’s predecessors, who succumbed to death, retirement, and the voters’ wrath, in that order. She is seated directly below the bench at a cluttered desk turned sideways so that she can see the counsel tables and the judge. She reads from a large calendar blotter under acetate.
“The first opening is October third.”
Two weeks away.
Acosta looks at Nelson, who nods, and for the record says: “Fine with us, Your Honor.”
Then to me. Harry and I are checking our calendars. I am open. Harry makes it unanimous.
“Very well, trial is set for October third, nine A. M., this department. If there’s nothing more, this court stands adjourned.”
A few reporters bolt for the door and the pay phones outside in the hall. Others take their chances searching out the boundaries and limits of Acosta’s order. They descend on Nelson first.
“I have nothing to say.” He’s leaving the courtroom with Meeks, leaving the other assistant to gather up the books and papers from the table and return them to two large brief boxes.
“Excuse me, ladies and gentlemen.” Nelson pushes his way through the reporters and to the door.
Most begin to close their notebooks. Two of them move closer, look at me. I give them nothing that might invite a question. They stand like waifs in a bread line, hoping for some crumbs.
“Nice weather,” I say. One of them laughs, then closes his notebook.
Nelson’s deputy, the one left behind to clean up, approaches, quiet, like an Indian on a raid. He hands me a folded piece of paper and is gone, like that.
Talia and Harry are making for the door. He’s getting her out before the press can stall her in the hallway. I hear the chatter and shouting as they hit the cameras outside.
“Are you confident you can win?”
Harry is saying, “Excuse us.”
“How do you feel about all this?”
“Wonderful,” he says. “We love all the attention.” It’s Harry’s voice, moving toward the elevator. “Oh Jesus, I’m sorry.” He’s probably stepped on some woman’s toes or kneed some guy in the groin. Harry’s great in a crowd scene.
I open the note passed to me by Nelson’s man. It’s printed in large block letters, blue ballpoint pen on a single piece of yellow legal paper.
OUR WITNESS ON THE ISSUE OF THE DEFENDANT ' S DIVORCE IS ANTHONY R. SKARPELLOS. WE WILL CONFIRM THIS BY WRITTEN MEMORANDUM TO FOLLOW.
The firm’s office address and telephone number are included, as if I need them.
For some reason I am not surprised. The Greek has taken the offensive, drawn the first blood.
CHAPTER 26
“For those of us of the pessimistic persuasion,” says Harry, “it’s the prime directive-shit happens.” It’s Harry’s law of cynical gravity, his way of telling me that this latest news was beyond my control, or perhaps a premonition of worse things to come. With Harry it’s hard to tell.
On the heels of Nelson’s revelation that Skarpellos is his surprise witness, I have now learned that the DA’s office has given a grant of immunity to Susan Hawley.
During an hour-long telephone conversation I have explained this to her in crystalline terms comprehensible to Quasimodo, all to a chorus of “No way, Jose,” and expletives that do not bear repeating. While immunity, in this case, will mean that she goes free, apparently this scenario crimps certain commercial interests. It seems there is an ethic, even among the fishnet-stocking set. Dates who fink on their johns, at least in the rarefied political circles frequented by Susan Hawley, are blackballed for life.
“They may as well publish my name on the list of AIDS victims,” she tells me.
Susan Hawley is convinced that if she talks, she will be relegated to hawking her wares in the backseats of cars or with her skirt hoisted in dark alleys.
I have been careful to avoid any conversation with Hawley regarding her alibi for Skarpellos. On this I have a serious conflict of interest. Harry and I have erected what is known in the law as a quick “Chinese wall.” Since learning of her alibi for the Greek I have kept Harry, to the extent possible, in the dark on my dealings with Hawley, any information regarding her past life that she has confided to me during my defense of her. It will be left to Harry to deal with Hawley as a witness if she is called. He will have to impeach her, destroy her credibility with the jury. I will make a full disclosure to the court regarding my legal representation of this woman and excuse myself from any participation in questioning her. It is a questionable remedy, but one I think the court will be compelled to accept.
In adamant terms, she has told me she will not testify; her final words before hanging up are still in my ear: “They will have to find me first.” In the last hour I’ve come to wonder if I’m included in the plural pronoun. Successive telephone calls to her apartment by Dee have gone unanswered.
“This is not what I need,” I tell Harry.
“Substitute out,” he says. Harry is referring to the process that permits a lawyer upon proper notice to withdraw from a case.
“Fat chance,” I say. If the lady doesn’t appear come showtime, I know that the judge will be making probing inquiries as to her whereabouts, starting with me.
For the moment I have to shelve my concerns about Susan Hawley. Delia Barns has arrived, ushered into my office by Dee.
Delia is a certified shorthand reporter I use regularly for depositions. She is here at my request to take a sworn statement from Tony Skarpellos.
Nelson’s eleventh-hour disclosure from Skarpellos as a possible key witness in the state’s case leaves me little time to assess the potential damage of Tony’s testimony. I’ve asked the court for some leeway, a little special process because of this surprise. Acosta has ordered that I may take a sworn statement from Skarpellos. Normally this is not allowed, unless there is reason to believe that a witness may not be available at trial, somebody on his deathbed.
But I want to catch the Greek before he senses where I am headed with my defense. If we wait until trial I’m afraid his Mediterranean temper will cause him to embellish upon whatever evidence he claims to have. It would be like the Greek to add a few fictional flourishes to his story, a parting shot once he knows I’ve discovered his fight with Ben, that I know about Ben’s threat to go to the state bar.
We pass time, a little courthouse gossip, as Delia sets up her machine and feeds in a narrow stack of fan-folded paper for her stenographic notes. I offer her coffee. She declines, and we run dry of conversational items.
A few minutes later Nelson arrives. I have noticed him for this statement. He is here to protect his interests, to ensure that I don’t put words in the mouth of his witness.
“Where’s Mr. Skarpellos?” he says.
I tell him that he’s apparently not used to dealing with Tony.
He shakes his head, a little curious at my comment.
“Tony’s life is a chronicle of wasted time,” I tell him, “other people’s.” It’s true. It’s Skarpellos’s way of enforcing the social pecking order. He would make the pope wait.
Delia’s beginning to fume. She’s watching the clock. Court reporters are paid a per diem by the half-day, the good ones making more than the lawyers who hire them. But Delia doesn’t like downtime. There are too many notes awaiting transcription back in the office.
The Greek is now forty minutes late. The silence is heavy in my office.
Finally I hear voices in the outer reception area, Tony’s hearty bluster, partying with Dee. We wait. He doesn’t enter. There are a few high giggles. It seems Dee is busy being entertained. Nelson’s looking at me, as if to ask who’s running this circus. I’m about to get up and chew some ass, whe
n finally Dee tears herself away.
“They’re all waiting for you in the office. This way,” she says, as if he could get lost between her desk and the door.
Dee announces him, then is gone, like a shadow at dusk. I call her back in to see if anybody wants coffee. She informs me that we’re out. Seems Dee has forgotten to order from the coffee service. I’d send her out, to the deli across the street, but knowing Dee I wouldn’t see her for days.
“Wonderful,” I say. “Why don’t you cover the phone.”
Tony’s shaking hands all around, like some glad-handing union president. His smile is broad, mendacious. There’s not the slightest apology for keeping us waiting, no sheepishness for his last-minute role in the state’s case, this despite the fact of his firm’s early association in Talia’s defense, something I intend to probe him about.
We get through the introductions. Tony stands looking down at the hard wooden chair I’ve placed in front of my desk, catercorner to the reporter and her little machine.
“The hot seat?” He looks at me. “You might take a little pity on an old man with hemorrhoids,” he says.
“I thought they were knowledge bumps,” I tell him.
There are a few chuckles at Tony’s expense.
Nelson is on his feet. He’d like a minute or two outside alone with his witness.
“Fine,” I tell him. “I’ll have my secretary powder her nose.” This is one of the few things Dee does well.
It takes several minutes, the conference between Nelson and Skarpellos. When they return, Tony has all the appearances of a trip to the woodshed. The levity has been sucked from his sails.
He takes the empty chair.
“Are we ready?” I ask.
“We’re ready,” says Nelson.
He opens a notebook on his lap and leans forward. Harry will be penning our notes, which we will use until the certified transcript is returned.
I open the record, stating my name and the date, location, and purpose of the meeting. I identify those in attendance, except for Skarpellos, whom I ask to identify himself and spell his last name for the record. We move quickly through the initial background information, the fact that Tony and Ben were partners, setting the stage, the history of their relationship.
Compelling Evidence m-1 Page 27