“Mr. Madriani.” Acosta’s got the gavel in his hand, like he too is coming after me.
I prevail on the Coconut for a little more latitude.
“Make it quick,” he says.
Nelson is fuming. There are whispered rantings into Meeks’s ear.
I’m back to the counsel table. Harry has the document waiting for me as I arrive. I slip it between the pages of the police report.
“Mr. Skarpellos, did you ever have any kind of dealings with Ms. Hawley that could in any way be termed commercial?”
I linger on the last word a little.
“Your Honor, I resent this,” he says. The Greek knows what the jury will think if they see this woman. The police are still looking for Hawley. Bets are, they will tag her very soon.
“Answer the question,” says Acosta.
Skarpellos looks at him, like “What is this, witness-bashing day?”
“Did you ever have any dealings with Ms. Hawley that could in any way be termed commercial? Was she ever a client of the firm?”
I think he knows what I have. He knows we’ve subpoenaed the firm’s trust account records. This, it seems, was a little nugget Harry and I never expected. If nothing else, it reveals the extent to which Tony Skarpellos had treated the firm’s trust account as his personal slush fund.
“She’s a friend,” he says. “Nothing more.”
“Are you sure you want to stick with that?”
He looks at me with no answer, the bushy eyebrows mountains of contempt.
“Mr. Skarpellos, I have a certified copy of a check here.” I pull it from the middle of the police report. “I would ask you to look at it and tell me if that is your signature on the bottom.”
He studies it for several seconds, looking at the name of the payee and back to his own name scrawled in a bold hand on the signature line.
“We can have an expert come in and compare an exemplar of your signature with that on the check if you like.”
“It’s mine,” he says.
“Then can you explain to the jury why it was that on November thirteenth of last year you made this check out, against your law firm’s client trust account, in the amount of twenty-five thousand dollars, payable to Susan Hawley?” I take the copy of the canceled check back from him and wave it a little in the air.
He’s been tracking me, his mind just far enough ahead that I can tell he’s come up with something. He pulls himself up to his full height in the chair, his head cocked arrogantly to the side.
“That was a personal loan,” he declares.
“A personal loan,” I howl. “Do you often make personal loans to friends from your client trust account, Mr. Skarpellos? Under the laws of this state that is a segregated account. The money in it belongs to your clients, not you. You do understand that?”
“Your Honor, the witness should be warned,” says Nelson. He’s on his feet.
Acosta, it seems, is mesmerized by this latest revelation, by the boldness of the Greek, and his apparent utter disregard for matters of client trust. “Absolutely,” he says. He’s come back to reality and the chores at hand.
“Mr. Skarpellos, you don’t have to answer that last question. If you wish, you may assert your Fifth Amendment privilege against self-incrimination,” he says.
Acosta is telling him, in terms that Tony, and the jury, can understand, that for a lawyer to invade a client trust account is, in this state, not only unethical, but a crime.
Skarpellos grunts, like Acosta’s admonition sounds like good advice.
“I take it you don’t wish to answer that question,” says Acosta.
“Right,” he says.
I glance at the jury. Stern, unmoved faces. From the grim expressions I can tell that the Greek now has all the credibility of a junk-bond broker.
“Let’s forget for a moment,” I say, “the source of this money and concentrate instead on the purpose of this payment. You say it was a loan. Why did Ms. Hawley need this loan?”
“I don’t know,” he says.
“You gave her a check for twenty-five thousand dollars and never once asked the purpose of this loan?”
“That’s right,” he says.
“Now earlier, when you were testifying about the loan you made to the defendant for her legal fees, you stated, and I quote”-I read from my yellow pad: “ ‘You don’t give eighty thousand dollars away on good looks.’ But in this case you obviously feel comfortable with giving away twenty-five thousand dollars with only good looks as collateral. What’s the deciding standard, Mr. Skarpellos-the amount of debt or the relative attractiveness of the debtor?”
There’s a little laughter from the front rows of the audience, a few smiles in the jury box. I am getting the evil eye from the Greek. As I look at him there, seated in the box, meanness from the set of his jaw to the ripple of his brow, I think maybe this was the last image Ben Potter saw in this life.
“What were the terms of this loan?” I ask.
“What do you mean?” he says.
“The terms,” I say. “What interest did you charge, was it simple or compound, how long did Ms. Hawley have to repay the loan?”
“We never discussed that,” he says.
“Was there anything in writing other than the trust account check?” I say.
“No.”
“I see. So you just wrote a check for twenty-five thousand dollars, without any promissory note, no statement as to interest to be paid, or the term for repayment, no questions as to what the money is for, and you come here and you expect this jury to believe that this twenty-five-thousand-dollar check was a loan to Ms. Hawley?”
“That’s what it was,” he says.
“No,” I say. “That’s not what it was, and you and I both know it. That twenty-five thousand dollars was to buy an alibi from Ms. Hawley, an alibi for the night of Ben Potter’s murder. Isn’t that true?”
“That’s a lie,” he says.
“Is it really?”
“That’s a damn lie,” he says, hoping this latter will have more impact with the jury. But his body English falls flat, failing to convey either anger or indignation. If demeanor can be said to count for much, the only emotion now apparent from the Greek is fear.
He’s still sputtering from the witness box. “Not true,” he says. “You’ve hated me from the beginning, because I was Ben’s friend …”
Acosta’s on his gavel, hammering away. He senses what’s coming.
“You were his enemy,” he says. “You and her.”
Acosta’s now up out of his chair, towering over the Greek, hammering on the railing around the witness box, inches from Tony’s ear. He is bellowing at the Greek, at the top of his voice. “Mr. Skarpellos, another word and I’ll hold you in contempt,” he says. Skarpellos is one sentence, one angry burst from a mistrial, and Acosta knows it. Ambition, judicial elevation flash before his eyes. If he had a gag, even a garrote, he would use it now.
Skarpellos splits an infinitive, stops in mid-sentence, looks at the angry judge, and reins in his wrath.
“I will have no more of this,” says Acosta. He points his gavel like a blunted sword at the Greek. Their eyes meet and the Coconut makes plain who is in charge here. Halting, never giving up eye contact, like he’s warding off some mongrel dog searching for an opening, the judge finally takes his seat.
“Counsel.” He looks at me. “Are you finished?”
“Not quite, Your Honor.”
“Then get on with it.”
I have the certified copy of the Greek’s check marked for identification and move it into evidence. There’s no objection from Nelson. Meeks is making notes. I can tell by the way he is eyeing the Greek that these are little mental ticklers to take a hard look at the statutes on embezzlement.
I look at Skarpellos. “As I recall, you told police the morning after the murder that you couldn’t think of anyone who might kill Ben Potter. Is that correct?”
He looks at me. He’s breathing heavily now,
a lot of adrenaline pumping inside that barrel chest.
“Yeah, that’s right.”
“Isn’t it true, Mr. Skarpellos, that you yourself had a heated argument with the victim, Ben Potter, only a few days before he was killed?”
He looks back up at Acosta. “This is bullshit,” he says. “I don’t have to put up with this.”
“The witness will answer the question,” says Acosta. “And he will watch his language while he’s in my courtroom.”
“I’m sorry, Your Honor. I apologize. But this is not true. I never had an argument with Ben Potter. We were good partners.”
“Then you should so testify,” says Acosta. “But watch your tongue.” Acosta nods toward me to continue.
“Isn’t it true, Mr. Skarpellos, that in fact Mr. Potter had discovered that you had taken sizable sums from the firm’s client trust account, diverting those moneys to your own personal use, and that he gave you an ultimatum, that unless you paid that money back, restored it to the trust account, he would report you to the state bar?”
“This is garbage. I don’t have to answer that.”
“Isn’t it true that Ben Potter discovered you stealing money from the trust account and threatened to report you to the bar, to have you disbarred from the practice of law?”
“That’s garbage,” he says. “I don’t know where you’re hearing this crap.”
“I’ve warned you once, Mr. Skarpellos. I won’t do it again. I don’t accept that kind of language in my courtroom.” There are a lot of indignant looks flashing from the judge to the jury, like maybe the judiciary and the courts are some offshoot of the temperance league. “That question can be answered with a simple yes or no,” says Acosta.
“No,” says Skarpellos.
“Are you telling us that you never took any money from the trust account?”
“I’m taking the Fifth,” he says.
I retreat to the counsel table and retrieve the final document. “Besides the check,” I say, “that you wrote to Susan Hawley, isn’t it true that you failed to pay over funds owing to another client, one Melvin Plotkin, for whom your firm had taken possession of a two-hundred-and-fifty-thousand-dollar settlement in a personal injury case?”
“Where did you hear that?” he says. “A lotta gossip.”
I hand him a copy of the formal letter of complaint filed by Plotkin with the bar. Mr. Plotkin had made five demands on the firm for payment over a period of seven months. The attorneys in the case had gone to the Greek, imploring him to release the funds to the client, but Skarpellos had ignored them. Tod had given me the inside dealings on this, anxious to implicate his boss. We have searched for the letter dictated by Ben to Jo Ann and addressed to the bar. So far we have been unable to find this smoking gun. But the Plotkin letter is the next best thing.
“I ask you to examine this letter, Mr. Skarpellos, and tell me whether you’ve ever seen a copy of it before.”
Again he looks at it, but his eyes are not following the words. He’s stalling for time.
“Where did you get this?” he says. “There’s been no disciplinary finding in this case, no action taken by the bar. State bar investigations are supposed to be confidential.”
“Not from a criminal courts subpoena,” I tell him.
“Your Honor, this is a terrible breach of confidentiality, an invasion of privacy,” he says.
He gets no sympathy from the judge.
“I would ask you again, have you ever seen a copy of this letter, Mr. Skarpellos? You will notice that you are copied on the ‘cc’s’ at the bottom,” I tell him.
“Yes I got a copy of it,” he says. “And the entire matter has been resolved.”
“Yes, you settled it privately, isn’t that true?”
“Absolutely,” he says. “We take care of our clients. This was a simple misunderstanding.”
“I see, you took Mr. Plotkin’s money and used it for eighteen months and he somehow misunderstood how you could do that. Is that it?”
Tony doesn’t answer this, but his head is constantly shaking, like he wants to say “no” but doesn’t know how.
“The state bar didn’t quite understand it either, did they?”
I get no response to this.
“Isn’t it true that you settled this complaint, that you paid Mr. Plotkin his money only after the bar began its investigation, and then you only paid him on condition that he would withdraw this complaint, to get the bar off your back? Isn’t that true?”
“No,” he says.
“I can bring Mr. Plotkin in here to tell us what happened.”
The Greek is looking at me, his eyes darting.
“Isn’t it true that to settle this case you took other moneys from trust, that you operated a little shell game, stealing from one client to pay another, and that this is what Ben Potter discovered?”
I am off in never-never land now, guessing, filling in bare spots with a little imagination.
“No,” he says.
“How did you lose the money, Mr. Skarpellos, gambling?” I pour a little more vice over him and turn him slowly on the skewer.
“Isn’t it true that Ben Potter found out about your diversions of money, and that the two of you argued in the office violently, and that he gave you forty-eight hours to pay the money back or he was going to the bar?”
I give him more to worry about, a little detail, the forty-eight-hour deadline told to me by Jo Ann.
He looks at me round-eyed now, ready to kill, I think.
“If this had happened you’d have lost your ticket to practice, your interest in the firm, maybe gone to jail,” I say. “That is something someone would kill for, isn’t it, Mr. Skarpellos?”
“No,” he says, “that’s not true.”
I would warn him of the consequences of perjury, but what is a lie when employed to conceal a murder?
I turn away from him and to the bench.
“Your Honor, this is a certified copy of a letter received by the state bar, signed by Melvin Plotkin, a client of the Potter, Skarpellos law firm. Mr. Plotkin is under subpoena and will testify as to the authenticity of this letter and the circumstances leading up to its submission to the bar. We would ask at this time that the letter be marked for identification.”
“I will mark it, subject to further foundational testimony,” says Acosta.
I turn and look at the Greek for a long moment; then I shake my head, a little scorn for the benefit of the jury.
“I don’t think I have any further use for this witness,” I say. There is more than a trace of derision in my voice.
Nelson is in deep consultation with Meeks. It would take a minor miracle to rehabilitate Skarpellos now. It takes Nelson and Meeks less than five seconds to come to this same conclusion. The best they can do is to get him out of the courtroom, out of the sight of this jury as quickly as possible, and hope that memories, like the dark days of winter, are short.
CHAPTER 38
Susan Hawley has been captured by the police; her picture from a file photo-part of a story about the trial on the evening news-netted her in L.A. As always, she was in the tow of other beautiful people, at a gala with some movie mogul when the cops nailed her.
Harry and I are in a quandary, whether to call her to the stand or not. We’re closeted in my office talking strategy.
Skarpellos has made such a disaster of his testimony that it’s hard to imagine that anything further could be gained by putting Hawley up.
Harry says no. “She’s slick,” he says, “bright and quick.” The stuff of which pricey call girls are made. If they applied themselves in other ways, most could make it in the world of corporate high finance, I think.
“It’s risky,” says Harry. “Skarpellos couldn’t save himself, but Hawley might.” There is concern here that she could come up with a plausible story for the $25,000 “loan”-a down payment on a condo, or a new car. She might say that she told the Greek this. “Then she’ll flash big eyes at the jury,” s
ays Harry. “I can hear her. She will tell them, ‘That Tony, lover that he is, he just forgot, that’s all.’ ” Like that, we could lose all we’ve gained from the Greek.
Harry looks at me stark and cold, like this is a premonition. It is one of the things I like best about Harry. He has good instincts.
It is for reasons such as this that I was not more overt in pointing to Skarpellos in my opening statement. Nelson would have done more to cover up. This is more difficult now. We are deep in the defense case, and Nelson is saddled with the Greek’s lame explanation for the $25,000 “loan.” He is, I think, not likely to move the court to reopen his own case to call Susan Hawley.
“If we could crush her on the stand,” I tell Harry, “get her to admit that it was all a scam, tampered testimony that Skarpellos bought, that Tony and she were not together on the night Ben was murdered, it would be like putting the smoking gun in the Greek’s hand.”
Harry looks at me, a wry smile. This is the stuff of trial lawyer lore, bald fiction, not what happens each day in most open courts in this state. Cases are won or lost, not on the truth, but by the preponderance of perjury uttered by witnesses on the stand, who lie with impunity and then walk away. This is most true on the criminal side.
If we put Susan Hawley up and fail, she could cut the legs out from under our case, I concede. Harry is right. The risk is too great. We will not call her to the stand.
The telephone rings. I pick it up-it’s Nikki. I say “hi” and ask her to hold for a second.
Harry’s happy with my decision on Hawley, says he thinks we’ve dodged a bullet. He heads back to his office down the hall.
I take my hand off the mouthpiece of the phone.
“Hi,” I say.
“How’s it going?” she asks. Nikki has burned too much vacation, and she is back on the job, at least for a few days.
“Ask me in a week,” I tell her.
“I read about Skarpellos in the morning paper,” says Nikki. “They’re speculating that the bar may be opening an investigation into his finances.”
“Long overdue,” I say.
“You sound tired.”
“I am.” Nikki knows the hours I’m working. She’d been a wallflower in my life long enough, during my stint with the firm, and before that when I was in the DA’s office, to know that I am not worth being around when I’m in the middle of a trial.
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