Nelson sits silently jotting a few notes. It is unlikely that he will ask any questions of his own, except to undo damage. He has access to the witness whenever he wants and would not wish to open an issue we have not thought of.
“Mr. Skarpellos, how is it that you came to be identified as a witness by the state in this case?”
He looks at Nelson, as if to get clearance.
“The police asked me questions,” he says. “I have to answer.” He shrugs his shoulders a little, like “What’s a guy gonna do?”
“And when did they ask you these questions?”
“Oh gee, let me think,” he says, like this is lost in antiquity. “Sometime after Ben was killed.”
I look at Nelson, who smiles at the obvious.
“How long after Ben was killed?”
“Let me think.”
“Maybe I can help,” says Nelson. “Mr. Skarpellos was told of the victim’s death the following day. Then we interviewed Mr. Skarpellos on October twenty-seventh, a week after the murder, the death of Mr. Potter. There was another interview, three weeks ago.”
I direct a further question to Nelson: “As long as you’re being helpful, I take it there were no sworn statements by this witness following either interview?”
“That’s correct. Just police reports. You have copies of those, I believe.” Nelson smiles. Nothing reduced to writing that can be discovered by the defense.
“Let’s focus on the first interview, the one back in October of last year. Do you recall what you told the police at that time?”
“It was pretty general. They asked me if I was aware of any reason why Ben, Mr. Potter, might want to kill himself. They were still operating on the assumption that it was suicide.”
“And what did you tell them?”
“I told them no, I couldn’t. I never believed Ben killed himself.”
“Why is that?”
“He just wouldn’t, that’s all.”
“Intuition?”
“Call it that if you want.”
“What else did they ask you at that time, in October?”
“They wanted to know if I saw or heard anything the night he died.”
“Did you?”
“I wasn’t around. I was out of town, in Oakland, at a basketball game with a friend.”
“Anything else, during that first interview?”
He thinks for a moment. “That’s about it.”
“Fine, let’s turn our attention to the more recent interview, the one three weeks ago. Did the police come to you?”
“They came to my office, if that’s what you mean.”
“Just a second,” Nelson breaks in. “If we can confer for a moment.”
We go off the record. Nelson cups a hand to Tony’s ear, whispers, then backs away. Tony’s eyes when they come back to me are mean little slits.
“I’m confused,” he says. “The police did come to my office. But I called them.”
Confused, my ass. Nelson is keeping him honest. “You called them?”
“Yes.”
“Why did you call them?”
“I remembered something, something I thought might be important.”
“What was that?”
“Before he died, Ben told me that he was planning on divorcing his wife, Talia.”
“Just like that,” I say.
“Well, it wasn’t just like that. I mean, we were talking about something else. Business or something, his nomination to the court, I can’t remember exactly. And he told me that he was gonna have to get a good divorce lawyer.”
“Why did he tell you this?”
“We were partners. We didn’t have a lot of secrets from one another. I knew his marriage wasn’t real happy.”
“And how did you come to know that?”
“Well, hell, you know.”
“No, tell me.”
“Everybody knows Talia was sleepin’ around.”
My blood is beginning to boil. “So it was things you heard?”
“Yeah, things I heard.”
“Gossip.”
“Call it whatever you want.”
“What else would you call it?”
“I don’t know. All I know is that he wanted a divorce.”
“When did you have this conversation with Mr. Potter?”
“It was in early summer. I think it was in June.”
“And when the police spoke to you immediately following Ben’s death, in October, you didn’t think to tell them about it then?”
“No.”
“A man’s contemplating divorce, has a terrible married life by your own accounts, and when the police ask you if you can think of any reason why he might commit suicide, you tell them you can’t think of a reason?”
“I wasn’t thinking,” he says.
“Obviously. What made you think that this information was suddenly important three weeks ago?”
“I don’t know.”
“Could it have anything to do with the fact that by that time Mrs. Potter had been bound over for trial, charged with murdering her husband?”
“Maybe,” he says. “That had a bearing.”
“So this information wasn’t important when Mr. Potter was believed to have killed himself, and only became important when it was believed that someone else killed him?”
“Well. I don’t know.”
I leave it alone. Food for the jury.
“Mr. Skarpellos, did you tell the police that you participated in early discussions with the defense team, with Mr. Cheetam and myself, during Mrs. Potter’s preliminary hearing?”
“He was never of counsel.” Nelson has pitched in. “You can argue it at the time of trial, but our view is that Mr. Skarpellos never held an attorney-client relationship with the defendant. He advanced fees and assisted her in obtaining counsel, that’s all. He never represented her.”
Nelson, I think, has the better argument on this point. Trying to bar the Greek from testifying on these grounds is probably a long shot. He was careful to stay far enough in the wings, to make me think now that some active planning was going on behind those bushy eyebrows.
“On the question of divorce, did you have one conversation with Mr. Potter, more than one, how many?”
“One,” he says. Skarpellos is accomplished at this. Tony knows that when it comes to lying, the smart ones keep it narrow and tight. It limits the chances for contradiction.
“During this one conversation did he tell you anything else bearing on his marital life?”
He’s looking at me, searching, trying to figure out what I’m probing for. Nelson I think knows, but he can’t help him. Battles are won with little advances.
“That he was unhappy. That he wanted out of the marriage.”
“Had he taken any steps to accomplish this at the time that you talked to him, hired a lawyer, filed any papers?” I feint, bob, and weave, moving away from the objective for a moment. This one I already know the answer to.
“No. If he did, he didn’t tell me.”
“And you don’t know whether he took any overt actions after that date, until the time of his death, to end his marriage-is that true?”
“Yes,” he says. “That’s true. I don’t know.”
“So all he told you was that he was planning to divorce his wife? That’s the total sum and substance of your conversation with him on the subject, is that correct?”
Skarpellos is looking at Nelson for help. He senses that he’s reaching a precipice, but like a man in the dark, he’s not sure where it is.
“That is the sum and substance of your conversation with Mr. Potter on the subject of his divorce, is that right?” I repeat the question.
“Right,” he says.
“Then from your testimony you don’t know whether he ever told his wife, Talia Potter, of his plans for divorce, isn’t that true?”
It’s too late. Skarpellos has slipped off the edge. A fortuitous recollection now would strain credibility to the br
eaking point.
“No,” he says. The linchpin. I breathe a little easier. Nelson has no way of proving that Talia knew of these supposed plans for divorce. You don’t kill to prevent things you don’t know about. His motive is hobbling on three legs.
“But she might have known,” says Skarpellos.
It’s too late and Nelson knows it. His expression has fallen like a dark angel.
“But you don’t know that she knew?”
“You have to assume that a husband would tell his wife, if he’s planning on divorcing her.”
“We’re not here to assume anything, but to find out what you know and when you knew it.”
To this I get two dark Mediterranean slits. The proverbial “if looks could kill.”
“Are we finished?” he asks.
I look over at Nelson, who waves me off.
“I think we’re done.”
“Good,” he says.
The court reporter retrieves her notes and begins to close up her machine.
Skarpellos is still burning inside. I can see smoke around the ears.
Time to put the lance in, to see what’s bubbling under the surface.
“Tony,” I say. “Tell me. How much do you stand to inherit from Ben’s estate if Talia takes the fall in this thing?”
His head snaps toward me. He’s out of his chair. Nelson’s got him by an arm. Harry’s got a hammerlock.
“You little shit,” he says. His tone has all the acid of vinegar. “You can’t believe,” he says, “that Ben failed at even one thing in life?”
Nelson’s trying to pull him toward the door. The Greek is giving more than passive resistance.
“Oh, I can believe that,” I say. “I just can’t believe that he would take someone like you into his confidence.”
This spawns two lashing arms. The Greek drags Nelson and Harry toward the other side of my desk. Delia’s guarding her stenograph machine, blocking Skarpellos with her body. She’s earning her per diem.
“Sonofabitch,” he says. “Open the record. I’ll give you an earload, you prick.”
“Shut up, the two of you.” Nelson’s got his hands full trying to keep him off of me.
I have no intention of going back on the record. Despite the common perception, a deposition is no exercise in truth finding. It’s an effort to redraw the facts in terms most favorable to your side. And for the moment I have what I want, a concession that the Greek can’t put Talia and Ben in the same room talking about divorce. Skarpellos has gone ballistic, perhaps more truth than I want on paper. I take little mental notes of what he says, and gauge the temperature of his combustion for future reference.
“You always put him on a fuckin’ pedestal.” Tony’s screaming about Ben. A lifetime of envy spilling all over my desk. “Well, he wasn’t perfect. He had a fucked-up marriage. He was porkin’ one of the girls in the office. Didn’t know that, did ya, asshole.”
They’re making headway toward the door. Nelson and Harry have him leaning backward. Harry’s got the door open, his knee wedged against it for leverage as he pushes the Greek through.
“He was fuckin’ the hired help. Put it on the record, why don’t you.” Skarpellos is ranting like some animal in heat. “Put that in your damn statement, why don’t ya?”
I can see Dee at her desk, looking at me, round-eyed, wondering what I’ve done to this witty and wonderful man.
Nelson has wrestled him toward the outer door. Skarpellos breaks free, but doesn’t come back at me. He’s regained enough composure, now looking around, coming down to earth, realizing that he’s the center of attention for four other people in this office, a little nonplussed. He’s flushed, his face red like a beet. He struggles to pump up a little dignity, straightens his coat. One panel is ripped at the seam on the back by the shoulder blade, something from the Incredible Hulk. Italian worsted and he’s wearing it sideways. He jerks on his tie. A lost cause.
Tony looks at me through the open door. “I’ll see ya in court, asshole.”
“Looking forward to it, Tony.”
He’s out the door.
Nelson looks at me. I know what’s going through his mind: a witness he can’t control, whether to put Skarpellos on the stand at all. But that ship has now sailed. If he doesn’t call the Greek, I will.
CHAPTER 27
Apprehension, about yourself, about your client, about the quality of your evidence, and about the seeming flaws of your opponent’s case-all of these are afflictions that plague the lawyer on the opening day of trial. Take each of them and double them down in spades when you are dealing in death, fending off a capital case.
For me it’s been more than six years since the stakes have been so high; longer for Harry.
There are butterflies the size of pterodactyls soaring in my stomach. I am charged by the electricity of nerves down to my knees as Harry and I assemble our files of notes and the few reference works we will need at the counsel table. We work at this in silence, each of us dealing with our own demons of doubt.
These nerves, I have concluded, are universal, perennial. They come with every trial, to every lawyer. The more poised have merely learned to cloak them with the grace that accompanies experience.
“Are you ready?” Harry asks me.
“As I will ever be,” I tell him. My mouth is dry, parched. I reach for the water glass and fill it. Take a little sip.
I’ve had to restrain Talia, to keep her from Tod, who is outside in the corridor, to hold her here at the table with Harry and me. It won’t do to have the press taking social notes of her open courtroom conversations with other men, worse if the jury sees them. An innocent scene will take on whole new meanings once the state hops upon its horse of conspiracy.
Harry’s been giving Hamilton a wide berth, eyeing him with a suspicion that is palpable, since our conversation regarding Tod’s string of indiscretions with Talia. He has me wondering if indeed there is a more calculating side to the man. If Hamilton knows more than he’s saying, anything that could exonerate Talia, and he is withholding this, then his affection for her is a carefully crafted facade. Harry has raised the issue with me-whether it is love or avarice that fuels Tod’s desire for Talia. There are gold diggers and worse who are so bold, who might wait in the wings, even at some jeopardy to themselves, for this woman and what she stands to inherit if she wins.
Tod has appeared for his lineup with the cops, to be ID’ed by their motel clerk. But the police have been amazingly quiet since. He’s not been arrested or questioned further. Maybe the clerk is blind, I think. It’s more likely that Nelson would prefer to spring this trap during the trial, when we can no longer prepare.
In the first rows, immediately behind the prosecution, are the assembled press, busy soaking up color with their pens and slender notebooks. The artists with their large drawing pads have laid claim to the end-row chairs, for a little elbow room.
The rest of the chairs in the courtroom, the largest one in the building, have been set aside for prospective jurors. The public will have to wait until after we have a jury for admission.
The court reporter is ready, poised at her little machine. Harriet Bloom, Acosta’s clerk, is busy at her desk shuffling papers.
From the back behind the bench, Acosta comes out swiftly. A rush of rustling black robes, he ascends to the bench.
“All rise.” The bailiff is at his station.
The judge settles into his high-back chair and takes quick stock of those in his courtroom.
“Department 16 of the superior court is now in session, the Honorable Armando Acosta presiding. Be seated.”
The judge adjusts his glasses, half-frame cheaters that perch toward the tip of his nose. He nods that he is ready, and the clerk calls the case.
A little silence to set the stage, and Acosta takes over.
“The jury clerk informs me that we have a larger pool than usual of prospective jurors for this case.”
It seems they’ve gone out of their way, ant
icipating that with the pretrial publicity and no change of venue, we will bump a good number selected from the voters’ rolls.
It’s conventional wisdom in the law that in a criminal case the defendant’s fate, like steel rebar in concrete, is fixed with the selection of the jury. This is, I think, one of those truisms that become prophecy only after the result is known, when the trial is over.
But I’m taking no chances. My early concessions in avoiding a change of venue were not, after all, motivated by civic spirit. I’ve exacted a little quid pro quo, in a motion crafted by Harry, over Nelson’s hearty objections and to his considerable chagrin. Acosta has agreed that if the defense is not satisfied with the fairness of this panel, at the proper time he will consider a few extra peremptory challenges, for us and the people. This is his effort at a little hydraulics to level the playing field, following all the adverse publicity against Talia.
To a lawyer in jury selection the peremptory challenge is like a Stinger Missile, used to blow an objectionable juror out of the box without need to show cause, bias or otherwise. It is to be guarded jealously and used with discretion. In this state each side is allowed ten peremptory challenges in most cases. But in cases where death may be the ultimate penalty that number is doubled.
“Before we call in the jury, Your Honor, the state has one matter,” says Nelson. “A motion in limine.”
Acosta looks up. “Here or chambers?” he asks.
“Chambers would be best, Your Honor.” This means it is something Nelson doesn’t want the press to know.
There’s a noticeable groan from the pool in the front row. A lot of grousing. Pens poised, not even started and it’s downtime already.
I’m wondering what problem Nelson is hatching for me.
The judge is down off the bench, Nelson and Meeks behind him, Harry and I taking up the rear.
In chambers Acosta doesn’t bother to take off his robe. If he has his way this will be a brief gathering.
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