This morning Acosta recessed for only ten minutes, then returned to deny our motion for a judgment of acquittal at the close of Nelson’s case. This was a mere formality, an act of going through the motions, a routine followed by every defendant in every trial. I argued that the prosecution had failed to make its case, to prove each element of the crime beyond a reasonable doubt, to a moral certainty, and that for this reason there was no plausible issue for the jury to decide.
For Acosta, feeling as he does now toward me, his denial of this motion was an easy call. It was made and argued out of the presence of the jury, the only saving grace. They did not see us lose on this core issue. It will become one more arrow in our quiver on appeal, if Talia is convicted.
So now I stand directly in front of them, centered on the jury box, eye contact so intense it would kill the thin-skinned.
“This was a serious crime,” I muster all of the sand that I can, holding their eyes, riveting their attention.
“And like you,” I say, “we believe that serious crimes must be punished. Talia Potter believes this. She has lost a husband to a brutal murder. Who is more the victim here, society, or the widow who is left to grieve?” I ask.
I look at Talia, her gaze cast down at the table, dutifully mournful. Harry next to her, a little subtle consolation.
“We understand the urge to convict,” I tell them. “But in venting this urge you must not punish the wrong party. To do so would be to perpetrate an injustice more monstrous than the crime itself.” I see a few heads nodding gently in these rows of corn.
“Yes, we agree that whoever committed this crime did so with cold and calculated premeditation.” Here I bring my voice to a strident pitch. “But the evidence will show,” I say, “that this person, this killer, was not the defendant, Talia Potter.”
I spend some time dwelling on the scene of this crime, Ben’s office, the freight elevator, the distances the killer had to negotiate to complete each stage of this crime, the use of the shotgun. And I ask, “Are these the acts of a woman? Are these the acts of Talia Potter?
“As you hear the evidence that we are about to present, I want you to consider the fact that there are many ways to kill,” I tell them, “many more easy, sanitized ways to murder than this. As you watch this evidence unfold, ask yourselves, Is it likely, is it probable that if Talia Potter were going to kill her husband, she would do it in this way?”
I leave them with thoughts of Coop’s implausible furniture dolly and watch as Nelson and Meeks confer over pencils poised on pads. This is a problem for their case. In helping me, in warding off the theories of an accomplice, wittingly or not, Coop has put a major hole in their case against Talia.
I retreat to the counsel table for a drink of water, then return to the railing.
“Who is Talia Potter?” I ask them. This is vital, to humanize Talia in their eyes. I take them on a tour of her life, her bootstrap beginnings and her rise through effort and education to become a prosperous businesswoman, I say, a respected member of the community in her own right.
I remind them that the only reason the defendant is here on this charge is that the state has denied her the chance to refute these charges, these accusations of guilt, before the grand jury which indicted her.
“Those were secret proceedings,” I say, “proceedings which she was not allowed to attend, proceedings controlled entirely by the prosecution, before which she was not allowed to be represented by an attorney. That is why she is here before you today.”
From the looks, I can tell that this is not something that they have previously considered, the elemental lack of fairness in the process that has landed Talia in her present predicament.
“The court that bound her over for trial here did not apply the standard of proof beyond a reasonable doubt,” I say, “but merely looked to see if there was any evidence, no matter how slight, no matter how remote, that might implicate Talia Potter.”
I glance at Acosta. He’s not going to quibble with me over the fine points of probable cause.
“You, ladies and gentlemen, are the first people to look at the facts of this case and to apply that critical standard of proof required by law, proof beyond a reasonable doubt. For all intents this is Talia Potter’s first fair opportunity to prove her innocence. Yes, I said prove her innocence, this despite the fact that by law the burden is on the state to prove guilt.
“This,” I say, “is why it is vital that you arrive here without preconceived notions.”
I strike at the concealed theme of every prosecutor in every case, the unspoken implication that society is ravaged by an epidemic of crime sweeping through our lives.
“You must purge your minds of such thoughts. Such concepts violate the oath which you have taken as jurors. You are not here like some committee of vigilantes,” I tell them, “charged with exacting vengeance on the part of society.”
Then I move to more manifest issues at hand. “The state attempts to put passion on trial here,” I say. “They have gone to extraordinary lengths to tell you about liaisons with two men at a motel.”
This I can’t ignore. To do so is to give the issue of Talia’s infidelity the luster of hard evidence, to allow Nelson to portray it as part of the motive for murder.
“We are not children, ladies and gentlemen. None of us is so naive as to believe that such things do not occur. We understand that all marriages are not models made in heaven. The pictures of idyllic couples-Desi and Lucy, Ozzie and Harriet, visions from our youth-these, ladies and gentlemen, are myth. We know that. That infidelity may, from time to time, creep into a marriage does not mean that two people don’t love each other, that they are anything more or less than human beings with all of their failings and frailties.
“But here we are talking of murder. And despite what the prosecutor would have you believe, the fact that Talia Potter may have been seen at a motel with a man, or with an army of men, does not make her a murderer.”
Now I focus on them hard.
“Talia Potter is no murderer,” I say, “despite the protestations of this prosecutor.” Now it is Nelson’s turn. I am pointing my cocked finger at him.
In the guise of an opening statement, I am giving to the jury a glaring summation of the state’s case, its weaknesses and shortcomings. This is the advantage of deferring our opening statement. I tread dangerously close, then cross the line into clear argument, but Nelson does not object, careful that he should not appear to be unfair in his dealings with the defense. After all, we did not object during his speech to the jury. His continuing silence is an invitation. I take broad latitude.
Acosta is glaring at me from the bench. Objection or not, he cannot restrain himself longer.
“Mr. Madriani, your argument will come later,” he says. “This is the time for an opening statement. That is what we will hear, nothing else.”
I nod toward the bench, rebuked a little, but the point still made.
“Very well, Your Honor.” I return my gaze to the jury. I modulate my voice a little and change tack. “When we are finished,” I tell them, “I will ask you a single central question, an inquiry that strikes to the heart of this case and that will lead you to your ultimate verdict in this trial. I would ask you to prepare yourselves now and through the balance of this trial to answer that single question.” I have their full attention now. They are wondering what this is, this magic bullet that will guide all reason.
“I will ask you whether in the presentation of its case,” I say, looking and pointing at their table, where Meeks seems a little hapless, “the state has produced any compelling evidence, even the slightest compelling evidence, of the guilt of Talia Potter.
“Oh, there are things in this case with which we do not disagree, Mr. Nelson and myself,” I say. “We agree with the state that Ben Potter was murdered.”
Still not sure that this is an opening statement, Acosta appears satisfied that he has at least squeezed a concession from me.
“O
n that we agree,” I say. “This was no suicide. We agree, whoever perpetrated this dark crime did so with cold and calculated premeditation.
“But you have seen the inconsistencies in the state’s case, the holes in their evidence, the unexplained facts. What does this evidence portend, ladies and gentlemen? What does it tell you?”
“Mr. Madriani.” The Coconut is on me from the bench, warning me again.
I ignore him and answer my own question.
“It reveals, as we will demonstrate by our evidence”-I turn to Acosta, my language now back on track in the formula of an opening statement, what we will show-“that someone has gone to great lengths to make it appear as if Talia Potter has committed this crime. Someone with a great deal to gain, someone with a compelling reason to murder Ben Potter.
“What you have heard thus far is highly circumstantial, bits and pieces of information, from which the state expects you to make quantum leaps in logic, to draw inferences that defy reason, to find Talia Potter guilty of a murder she did not commit.”
Acosta is fuming from the bench.
“But I would ask you to wait, ladies and gentlemen, to wait until you have heard and seen all of the evidence including that which we will now present.
“At the conclusion of this case, I will ask you to contrast the circumstances as portrayed by the state with what you will see and hear in the next several days. From this point on, ladies and gentlemen, you will receive hard, compelling evidence, evidence demonstrating beyond all reasonable doubt who killed Ben Potter, and why.”
With this there are a dozen sets of round eyes staring at me from beyond the railing. In making this promise I am venturing no calculated risk. From the beginning, we have been committed to this theory of the case. Now we must either prove it, or suffer the consequences.
I am being given a second bite at the apple. Acosta’s ruling that the terms of Ben’s will are irrelevant, and his refusal to allow me to question Matt Hazeltine on the subject, have been major impediments to our case. Unless I can show that Skarpellos stands to inherit vast sums from Potter’s estate if Talia is convicted, I cannot lead the jury to the obvious conclusion that the Greek has framed her.
“She knows about it,” says Harry, “every period and paragraph.”
We are in the hall outside the courtroom. The Coconut is off the bench, on a bladder call. Harry has been talking to Jo Ann Campanelli. It seems that Jo is privy to the terms of Ben’s will, one of two witnesses who signed it in the office the day it was drafted. I don’t know why I hadn’t thought of this, the subscribing witnesses. In this state two are required to validate any will, and Jo Ann’s name was on the bottom of this one. Harry has discovered this while I was busy shoveling myself out of the various pits dug for me by Acosta.
“Not only did she sign it,” he says, “but she typed it from notes supplied by Hazeltine after he met with Potter.” Harry is ecstatic. I tell him to bring his feet back down to earth. We still have to deal with Acosta, to whom any discussion of Ben’s will is utterly beside the point.
I have subpoenaed the will, but cannot get it into evidence without a foundational witness. Jo Ann is now clearly my best shot to accomplish this. But this latest revelation now affects the order of my witnesses. From the beginning I have been torn, whether to put the Greek up first, to nail him down on his alibi, expound upon his warm relations with Potter, and then impeach him with successive witnesses and evidence-Jo Ann, who heard Ben and Tony brawl in the office, and the trust account records showing that the Greek had stolen regularly from these funds-or to take Skarpellos up last, in a dramatic confrontation that would give him the advantage of seeing these earlier witnesses, reading accounts of their testimony in the local papers, and conforming his own responses accordingly.
From the beginning it had been my plan to take Tony up first. Now this changes. I need something to distract him, to make him believe that I am impeaching him, but with something less than I actually have.
Kim Palmer is one of those small-boned women, lean and tan, wiry, with a kind of athletic beauty born only in spas and weight rooms where the chic distaff set hangs out. Before Talia’s arrest, she and Kim were thick as thieves. Now the relationship is more restrained. Still, I’ve not had to twist arms to get Kim to come here and vouch for an old friend. She is one of several character witnesses we’ve put up. Two of Talia’s commercial associates have already laid in a measure of good repute, Talia as the serious, upstanding businesswoman. Both have stated that they would trust her with their lives and fortunes.
Kim Palmer is a special case. The only one of Talia’s social set I will use.
“So you’ve known Talia Potter for a number of years?” I say.
“Eight,” she says.
“And during that time you’ve been close?”
“Good friends,” says Kim.
“How frequently would you see Mrs. Potter, during this period?”
“At least twice a week. We worked out together at the gym and had lunch at least once a week.”
“Do you know her to be a truthful person?”
“I would trust her with my life,” she says.
“As friends did you confide in each other, things that you might not tell other, less intimate friends?”
“I think so.”
“Did Mrs. Potter ever talk about her marriage?”
“Oh yes.”
“And what did she tell you?”
“That she was very happy, that she loved her husband. She told me this many times. Her life revolved around her husband.”
“Did Mrs. Potter ever tell you that during the course of her marriage, while she was married to Ben Potter, she’d gone out with other men?”
“Absolutely not. As I say, she was happily married.”
There are a few smiles in the jury box. Robert Rath, my alpha factor, has his hand to his mouth, unable to keep the mirth from his face. This testimony may not be worth much, except as a diversion with the Greek, to make him think that my sole point of attack will be to his credibility on the issue of Ben’s planned divorce.
“Mrs. Palmer, did Talia Potter ever tell you that her husband was considering a divorce?”
“Never,” she says.
“Given the nature of your relationship, is this something that she would have shared with you, the fact that her husband might be considering a divorce?”
“Absolutely. We were like sisters,” she says.
There are jurors looking at the ceiling, counting the tiles.
“But she never told you at any time that Ben Potter was considering a divorce?”
“No. Never. Absolutely not.”
“Did you know Ben Potter?”
“I’d met him on several occasions. My husband and I had gone to parties at the Potter residence. They’d been dinner guests at our home on at least three or four occasions.”
“Did Mr. and Mrs. Potter appear to you to be in love?”
“Objection.” Nelson is up. “Calls for speculation.”
“Very much,” she says. “He doted on her, and she loved it.”
“Sustained,” says Acosta. He smiles at Kim Palmer. “When the other attorney objects …” She nods pertly like a precocious child, attentive to his every instruction. “You’re supposed to stop talking until I rule on it.”
“Sorry,” she says.
“It’s all right.” He smiles, a big wolfish grin. Then in his most manly tone he instructs the court reporter to strike the witness’s response. I think he is taken with her. I have visions of Don Juan in black spandex, haunting Kim Palmer on the health club scene. It is not a pretty sight.
I pause to consider the next question, a tactic to get me around Nelson’s objection.
“What would you say if someone other than Mr. or Mrs. Potter had told you that Ben Potter was considering a divorce?”
“I would say that they were either terribly misinformed, or else they were lying.”
She smiles up at Acosta.
<
br /> He nods, like “This is fine.” She is doing it just the right way.
Then I turn her over to Nelson.
“Mrs. Palmer, isn’t it true that the defendant had numerous affairs with other men?”
“No,” she says.
“Isn’t it true that you yourself had affairs with other men and that the two of you, Talia Potter and yourself, actually double-dated with these men on several occasions?”
“Absolutely not, I resent the implication,” she says. She is looking up at the judge for protection. There is wonderful indignation here. Acosta is reserving his most disapproving expression for Nelson, the look of a man being summoned to fight the town bully for the honor of a woman scorned.
“Mrs. Palmer.” Nelson says this as if to emphasize the fact of her marriage, that this too is a fallen woman. “Do you know a man named Raul Sanchez?” he asks.
With this there are large round eyes on Kim Palmer. “I don’t recall …” She’s speaking slowly, thinking, or pretending to. “That name does ring a bell,” she says.
“It should,” says Nelson. “The tennis pro at the club you and Mrs. Potter attended.”
“Oh yes. Now I remember him.”
“Good,” says Nelson. “To your knowledge, did Mrs. Potter ever date Raul Sanchez?” He rolls the name “Raul” off his tongue like this is some exotic elixir, some Latin aphrodisiac.
She laughs at this, a high giddy cackle that leaves half the jury smiling.
“I don’t think so,” she says. “Not likely.” She seems amused by this thought.
“Would it surprise you if I told you that the defendant was seen checking into a motel on more than one occasion with Raul Sanchez?”
“Oh, that,” she says. She laughs again. “Is that what this is all about? No, it wouldn’t surprise me in the least.”
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