Harry’s chewing on my ear to sit down and shut up. He pushes me onto the couch. “If he has the right to remain silent, and the right to counsel, then I’m his lawyer,” he says, “and I’m advising him not to say another word.”
The Coconut looks at Harry, little black beady eyes, marking him as a troublemaker. “Very well,” he says. “What about this evidence? You’ve heard the district attorney. Why should I not let it in?”
Harry doesn’t need a second invitation. There is more composure here than I would have credited. Harry’s going for the jugular, cutting into Nelson on the damage this revelation will do with the jury. He’s a bundle of rhetorical questions.
“We have an isolated piece of evidence,” he says. “A witness says he saw the defendant with Mr. Madriani at his motel, on what-one occasion?”
“Three,” says Nelson. “Three times.”
“Fine, three, a half-dozen, twenty. What difference does it make? The issue is, What does this testimony prove?” he says. “That they conspired to murder Ben Potter?” Harry shakes his head. “This is what the DA wants to offer it for. But this evidence doesn’t prove that fact, and to allow the jury to jump to this conclusion is to allow them to be misled.
“No,” Harry continues. “This testimony will prove one thing and one thing only. That Paul Madriani went to a motel with the defendant-fine, three times.”
From this, he tells the court, maybe, though it is not even certain, the jury can draw inferences that the two of us had a little sack time. Maybe we were busy working on business, he says. He wonders aloud how much this motel clerk can testify to, whether he purports to have been watching through the keyhole.
“We’re not trying a cause for alienation of affections here. This is a murder trial. I would ask the court a single question. Does this fact, the fact that the defendant and her attorney went to a motel, prove that the defendant committed the murder of Ben Potter?”
“Not by itself,” says Nelson. “But together with other evidence, fair inferences can be drawn.”
“No,” says Harry. “Unfair inferences can be drawn. And that’s what you are about here, offering this kind of evidence. It’s not probative of any material fact in the case, and it is highly prejudicial to the defendant.”
“In what way?” says Acosta.
“In the way that it deprives her of competent counsel.”
“This is ludicrous,” says Nelson. “She selected Mr. Madriani to represent her and she has Mr. Madriani.”
Harry moves forward and leans on the lip of Acosta’s desk as if to put a little weight on the next point.
“It will deprive her of competent counsel, not because Mr. Madriani is any less able than he was before this evidence was introduced, but because he is no longer believable in the eyes of the jury. If this court lets this evidence in, it will transform the defense counsel into the ultimate unindicted co-conspirator,” says Harry. “You know it, and I know it, and if you allow this, an appellate court will know it.”
Nelson is laughing, scoffing at this.
“This is what it is,” says Harry. “A little character assassination goes a long way in the eyes of a jury.”
He turns to Acosta. “Have no doubt about it,” he says, “the people want to present this testimony for one reason and one reason only, to discredit defense counsel in the eyes of this jury. It’s the only way they can win a losing case.”
Nelson is denouncing this, claiming that Harry is overreaching, trying to make more of the Walker column and the testimony of this witness than they are worth.
“Fine,” says Harry. “Then drop the witness.”
“Why should we?”
“That’s enough,” says Acosta. He is mean eyes, elbows on the desk, steepled fingers as he looks at Harry. It does not take a mind-meld to deduce that he is busy searching for ways to allow this evidence, and running headlong into Harry’s logic on each.
“Anything more, Mr. Nelson?”
“I think it’s all been said.”
“You?” he says to Harry.
“No, Your Honor.”
For a time, my fate seems to hang, suspended as it were in the hiss of conditioned air that sweeps in from the register over the Coconut’s desk.
“When are you calling this witness, Mr. Nelson?”
The DA shrugs a little, like gauging time in a trial is hard to do. “Two days,” he says.
“Fine. I’ll be taking this matter under submission. I will give you my ruling as to whether this witness may take the stand, and if so, the scope of his testimony, before that time.”
“Thank you, Your Honor.”
“That’s all.” We are excused from the Coconut’s quarters.
Harry and Nelson are making for the door. I’m on my feet. The court reporter is packing up.
“Not you, Mr. Madriani. I want to talk to you.”
We are alone now, me and the dark brows and brooding eyes of Armando Acosta.
“I will admit it, you have gall,” he says. With only a little lighting from below he could easily be mistaken for one of Lucifer’s chief lieutenants. The dark Mediterranean tones take on a measure of evil here, so that being alone in this room with him is frightening, foreboding.
“You will learn,” he says. “You don’t do this to me. Not in my court.”
I say nothing. It is best to let him vent this without resistance. Acosta is feeling the heat. He is up for appointment to the appellate court, and now is not the time for a mistrial in a notorious case. He sees this, my part with Talia, as compromising his future, and he will not have it. To the Coconut this is not business or professional-it is personal.
“You think you have me over a barrel?” he says. There is a profane smile here. “If I let this in, this testimony, you think either you will get a mistrial or I will be slapped down on appeal, is that it?”
He waits for an answer. But I fix him with a stare, in silence, keeping the apprehension out of my eyes. It is best not to run from mangy dogs with bared teeth, or to show fear to Armando Acosta.
“You have made a big mistake,” he says. “A big mistake.”
Then unceremoniously he tells me to get out, to leave his chambers.
The process is called “filing an affidavit,” the document used by lawyers to disqualify any trial judge before the start of a case. The law allows one to a customer in any trial. It is a process that I now know I will be using with regularity in the future, whenever I have the misfortune of drawing Armando Acosta.
I have hit bottom, I think. After all of the blows, professional and personal, my career in apparent tatters, I am left to wonder if I too will be served with process, charged with Talia in Ben’s murder. With all of this it might seem strange to another that it is my failed marriage that comes to trouble me the most, my loneliness and the gnawing void that has been my life since Nikki walked out on me.
It is a nightly ritual. I wander aimlessly through the rooms of the house, always ending in the same place, standing in the doorway to Sarah’s bedroom. Little brown teddy bears on a pink lattice pattern decorate the walls of this room, barren of all furnishings. Sarah forgot a few toys during her last visit. A naked doll, its hair seeming to molt, arms and legs twisted in unnatural ways, lies forlorn in the middle of the carpet. Tonight I feel as if I share some symbiotic fate with this cast-off creature, abandoned and alone.
Increasingly I have turned my lawyer’s analytic mind to the question of how I arrived at the point of a failed marriage and a broken family, things I never dreamed life would hold for me. Like cancer or AIDS, these are afflictions we see visited on others, never ourselves.
While my affair with Talia was a symptom of my condition, I have never considered it the central cause of my current domestic distress. Talia came later, after Nikki had left me. My problems had a more central cause, my obsession with work, my unceasing need for approval from Ben, and the delusion of success that seemed to accompany these. It was these things, I think, that culminated in
a terminal loss of respect in Nikki’s eyes. Like too many in our generation, I searched for acceptance and esteem in all the wrong places.
Nikki is now heavily invested, not only financially but emotionally, in Talia’s trial. It is the one positive result that has come from the hammering in the press and the whippings I have taken from the Coconut.
I’d misread her badly in that telephone conversation. It was not anger but fear that was in her voice-fear for me, that I would be charged. We have talked since. Nikki now clearly sees my life tied to the fate of this woman she has despised. It has curbed her animus and mellowed her judgment in ways I could not have anticipated.
For all of my lawyer’s analysis and after-the-fact intuition, I play childish games, bargaining with the devil to restore my life. In these Faustian episodes, in the recesses of my mind, I offer up my soul for another chance-Nikki and Sarah back in my life. Like a child stepping over the cracks in the sidewalk, believing such mundane acts will alter the fates of life, I play endless scenarios in my mind, how I can win them back. And always the same answer. My destiny is now tied to Talia’s trial. Success or failure, this contest now holds the balance of my fate. It is the anvil on which I must sever the psychic chains of doubt and dependence that had bound me to Ben, to regain the autonomy of my soul, to take Nikki and Sarah back into my life.
CHAPTER 33
A hostile judge can kill you in a thousand ways. Today Acosta is giving us a demonstration, a tour in the arbitrary exercise of authority.
He has denied Harry’s motion for a mistrial based on Eli Walker’s column. Speaking in cryptic terms, never mentioning Walker by name or the article by its headline, Acosta generalizes about adverse pretrial publicity in ways that make the listener think he is talking in mere abstractions.
He hints to jurors that the defendant has questioned their integrity, raised issue as to whether some of them may have seen certain news articles concerning the trial, this in direct violation of the court’s earlier admonitions. He asks if this is so, to a chorus of shaking heads from the jury box and irate expressions directed at Talia. Making it a team effort, they-the judge, the jury, and the prosecution-against us, Acosta then states his confidence, that he is personally satisfied this is not the case, that these are upstanding jurors who take their oath of service seriously.
It is a shameless display in the naked abuse of power, a grim spectacle, I fear a preview of things to come.
Talia is clearly shaken by these antics, her eyes darting first to me, then to Harry, frantic that we should do something to end this. There is nothing so unnerving to a defendant in a criminal case as the specter of authority turned against him in the form of a rogue judge. It is taking a toll on her; I can feel the tremble in her chair next to my own.
The Coconut takes every opportunity to slam the defense in rejecting the motion, characterizing it before the jury as “a stalling effort on the part of the defendant.”
I am up and down like a yo-yo-objecting to the characterizations of our motion and hammered back down to my seat by Acosta.
“Your Honor, we would request that the jury be polled, questioned individually, as to whether they have seen the news item in question.”
“Denied,” says Acosta. “Do you question the integrity of this panel?” he says. “You saw me ask them. To a man and woman, they denied having seen the article in question.”
They look at me, the beginnings of a seething mob, all except for Robert Rath, my alpha factor. He is an enigma. I sense that perhaps he knows or can guess what transpired behind closed doors in the judge’s chambers yesterday, that maybe he has seen Walker’s column.
“I must object, Your Honor, to the way this is being handled.”
“Now you question this court?” he says. “Is there no end to your arrogance, sir?”
In muted deferential terms I remind him that the court has a duty of inquiry, to assure a fair trial. I perfect this objection for the record, one eye on appeal.
“Your objection is noted,” he says, “now sit down.”
He turns to the prosecution, all creamy smiles. “Mr. Nelson, your next witness,” he says.
Like that, it is done, Walker’s column swept away, like bread crumbs brushed from the bench. We are left to wonder how many on the jury panel have seen this piece of work by Eli Walker, and what effect it may have. I study the expressions in the box, a sea of open hostility whipped to a froth by the court. If I had hoped to read their minds, to garner some sense of the impact of Walker’s piece, whether they still trust me, Acosta’s antics have made this impossible.
A somber-faced Coop is up next. I can tell that he is not looking forward to this. Nelson and he move through the preliminaries like Rogers and Astaire in the two-step. I stipulate to Coop’s qualifications as an expert witness. Nelson thanks me, and then moves a twenty-page curriculum vitae into evidence. I object on grounds that this is unnecessary, irrelevant, given our stipulation. Acosta overrules me and orders that copies of Coop’s resume be made for each juror. He may as well nail it on the courthouse door.
Coop’s performance is a repeat of his testimony in the preliminary hearing, nothing new or unexpected. He talks of lividity, the law of gravity and death, and the bullet fragment, the cause of death, lodged in the basal ganglion. He has pictures of this, a tiny bit of metal lost in hues of red and brown congealed blood, before it was extracted.
With Coop’s testimony Nelson quickly fixes the time of death, between seven P.M. and seven-ten P.M. Nelson is stacking the blocks of his closing argument. Coop tells jurors that Ben Potter was shot in the head with the small-caliber handgun, the body moved and the shotgun blast administered later in the office.
With this testimony and the evidence of Willie Hampton, the jurors can now see that an hour and fifteen minutes transpired between the shots, enough time to haul the body a considerable distance.
Nelson moves carefully through all of this, leading the jury by the hand through his theory of murder. He’s had Coop bring more photographs, a veritable album of revulsion. These are post mortem pictures, showing the tiny bullet fragment lodged at the base of the brain, more graphic shots of the distended face and fractured cranial vault after the shotgun had done its work. Nelson drops these on me and hands a separate set to the judge. He has Coop identify each and explain in vivid terms what is shown.
Coop tells the jury that a contact shot to the head with a shotgun, whether to the temple or in the mouth, will result in evisceration of large portions of the brain. The bulk of the pellets and the wad will exit in such cases.
“What makes shotgun wounds at close range so devastating,” he says, “is that virtually all of the kinetic energy of the round is transferred to the victim as part of the wounding effect. It is unlike a rifle, where the bullet may exit the victim, expending energy outside of the body.”
Coop holds up one of the larger photos for the jury to see, from a distance. “This type of wound inflicted to the mouth results in massive comminuted fractures of the skull and pulpification of the brain. Bursting ruptures of the head are the rule in such cases. You can see here,” he says, pointing with a pen to the picture, “the skull was largely fragmented. Parts of the cranial vault and a portion of both cerebral hemispheres were ejected from the head. The scalp suffered extensive laceration.”
There will be few jurors having heavy fare for lunch today.
This damage explains, he says, how the earlier bullet that caused death was so badly fragmented and lost. According to Coop, but for the little fragment, the authorities have never found that bullet.
While I would like to stop this, there is no way I can put an end to this graphic description of these wounds. I will try to block close observation of the photos by the jury, by keeping them out of evidence.
Coop fishes for another photograph from the stack until he finds what he wants.
“You can see here that this was an intraoral shot,” he says. “Soot is present on the palate, the tongue, he
re, here, and here, also on the lips, here.” He’s pointing with his pen. The more dauntless souls in the jury box are craning their necks to see.
“Stretchlike striae or superficial lacerations of the perioral skin and nasolabial folds are apparent, here. These are due to bulging of the face caused by rapidly expanding hot gases as the shotgun was fired.”
Whoever killed Ben may have been sloppy in his misdirection setting a scenario of suicide, but there is a clinical aspect to the administration of this shotgun blast, something I have not considered before.
Coop is finished with the pictures. Nelson moves to have them placed into evidence.
“Your Honor, we would object to the photographs, at least some of them,” I say. There are duplicates, several shots with only minor variations of angle, each taken at sundry distances from the corpse, but all far more graphic than anything Canard had offered. I itemize our objections, the prejudicial effect these will have on the jury, and single out three that I think are appropriate for use.
Acosta is paging through them, ignoring me for all intents. He looks to Nelson for opposing argument. The DA makes a half-baked effort, conceding by his body language and lack of enthusiasm that he will lose the vast number of these. He is finished.
The judge looks at me for the first time in this colloquy as if to emphasize what is to follow.
“Defendant’s objection is overruled,” he says. The entire bundle of photographs will go to the jury. Such is the discretion of the court, and its lesson in abuse.
There’s a trace of alarm registered in Coop’s expression. It shows itself in subtle but wide-eyed interest, as if now he is seeing for the first time the effect of the revelations in Eli Walker’s column, not on the jury so much as on this judge.
Compelling Evidence m-1 Page 36