“You haven’t been over in a while,” she says. “Sarah thinks you died.”
I feel bad about this. I haven’t seen Sarah in two weeks. I promise to make amends when this is all over.
“How about dinner,” she says, “over here tonight? I’ll make it quick, something you like.”
“I wish I could. Harry and I are scheduled to go over notes tonight for the witnesses in the morning,” I tell her.
She’s not hurt; she says she understands. She’s not so sure about Sarah.
“A week and the case is to the jury. I will make it all up then,” I say. “Can she wait one more week?”
“I guess she’ll have to.”
“I promise,” I say.
“I’ll tell her. Try to get some sleep,” she says. Then she hangs up.
I feel like a first-class shit. The plight of the trial lawyer’s family.
Nikki has been fighting old battles again, her demons of dependence-the feeling that with my career, in our marriage, she was a mere afterthought to be tended to, serviced, somewhere between late nights at the office and weekends laboring over briefs and pleadings.
It seems she has a new sense not only of herself, but of who I am, now that I no longer float like some satellite in the orbit of Ben. I feel that in her eyes I am now the master of my own destiny, as threatened as that may be. If indeed we are each a mirror image of how we perceive others see us, I can now say that there is something of greater worth reflected in Nikki’s eyes each time she looks at me.
In the weeks since the start of the trial, she has found herself caught between a growing desire to reconcile our differences and the thought that we have, each in our own ways, paid such a painful price to find ourselves. It has taken her more than a year to shed that self-image which makes a wife in our society an invisible appendage of her spouse. And she is unwilling to backslide.
She has sent clear messages of late, like an emissary ending a war, that if I want her back it must be on her own terms.
I pick up the phone and dial her.
She answers.
“What’s for dinner?” I say.
A bit of jubilation at the other end of the line.
“You look like the lawyer from hell,” he says. Harry’s commenting on the big gray bags sagging under my eyes and on the wrinkled dress shirt.
I explain that Nikki forgot to set her alarm. Dinner turned into an hour of play with Sarah and a long evening of conversation over wine with Nikki, a lot of mellow forgiveness and subtle understandings. We rolled out of the sheets at eight-thirty, me with a nine A.M. court call. It was Sarah who woke us, bright eyes of wonder and delight, crawling over the sheets and my body to snuggle between her mother and me. It was not a night of much sleep. It seems that we have rediscovered old passions, rekindled a new interest in life together.
Melvin Plotkin, five-foot-two, is a real piece of cake. An irate businessman injured in a fiery auto collision four years ago. Neither the psychic trauma of the accident nor the permanent injuries sustained have taken the starch out of this little man. He has burn scars on his upper arms and neck, places where skin grafts have left splotches of discoloration. His case was settled for a quarter-million dollars by attorneys for P amp;S two years ago. He got his money eighteen months later, after a pitched battle with Skarpellos.
Tony has probably stolen from a dozen other clients, but Plotkin is not to be horsed around with. He owns a small collection agency and survives like a pilot fish swimming with the sharks. Harry suspects that Plotkin-shrewd, no stranger to sharp business practices-cooks his own books, that he probably steals from the mom-and-pop shops that assign their claims to him for collection, so he knows how it’s done. It stands to reason that he would be the first and loudest to scream if cheated.
We have our problems with Plotkin. It seems he once owned a much larger collection agency, started on a shoestring and with much hard work. He tinkered with a merger, a national firm ten years ago, and in the end found himself muscled out of his own business. Two lawyers for the larger company showed him the door. Since then Plotkin has had an abiding hatred of lawyers. He is here under subpoena.
I have him look at the letter sent to the state bar, the one complaining about Skarpellos and the trust fund.
“Yeah, I wrote it,” he says. “A license to steal.” This is meant as a general indictment of all lawyers. He looks up at Acosta, and from the dour expression on his face, it would seem the same applies to judges.
“Did you talk to Mr. Skarpellos first?”
“I talked to my lawyer first,” he says, “the one who settled the case.” This was one of the younger associates in the firm.
“What did he tell you?”
“What’s he gonna say-your money’s here, your money’s there, insurance site drafts take a long time to clear-the giant stall,” he says. “I’ve spent a lifetime chasing deadbeats, I know a stall when I hear it.”
“Then you talked to Mr. Skarpellos?”
“No, then I talked to his secretary. Mr. Skarpellos is a hard man to catch.”
“And what did you say to his secretary?”
“I got a little hot, I guess. She says Mr. Skarpellos is busy. So I call back. Three times I call back. All the while they’re sitting on two hundred and fifty thousand dollars of my money,” he says. “So finally I have words with this-this secretary.” He can’t seem to come up with a better word for her. I think the lady probably earned her wages that day.
According to Plotkin, his language “became colorful.” She hung up on him. He called her back, says he was polite this time, but I don’t know if I buy this, because she hung up again. A half-hour later Tony called him back and taught him a few words that weren’t in Plotkin’s own vocabulary. The next day Plotkin sent flowers to the secretary, and a note that bordered on a death threat to Skarpellos.
This missive had no effect on the Greek. He just kept the money and instructed his secretary not to put Plotkin through on the phone anymore.
After two more letters to the firm went unanswered, Plotkin called the bar. They invited him to send a formal complaint. He did, and a week later an investigator visited the offices of Potter, Skarpellos. This finally had a sobering effect on Tony. The next day, according to Plotkin, he got a call from the firm.
“They wanted me to come over for a meeting,” he says.
“Who’s they?”
“Another partner called me. Hazeltine. Said he wanted me to come by and pick up my check.”
“Did you?”
“Sure. I went by the next morning.”
“And what happened?”
“They hustle me into a conference room. I look around this place and see where my money has gone,” he says.
“Who was present at this meeting?”
“The lawyer who represented me-Daniel Liston is his name. He’s the only one there.”
This is an associate I knew, but not well, when I left the firm.
“He seems real embarrassed,” says Plotkin. “Tells me he has a cashier’s check for my part of the settlement, but first I have to sign some papers.”
“Papers?”
“Yeah, a receipt and something else.”
I look at him, like “Please continue.”
“He has this letter, typed on plain paper, to the state bar, asking that my complaint be withdrawn, and stating that the entire matter was a misunderstanding. My name is typed at the bottom where I’m supposed to sign.”
I look at the jury. They seem mesmerized by this. Perhaps we have turned the corner. One would think that Tony Skarpellos is on trial here and not Talia.
“Did you sign this letter?”
“I had to get my money. A bunch of bloodsuckers,” he says.
“Objection,” says Nelson. “If the witness could testify without making speeches.”
“Sustained. The reporter will strike the last comment,” says Acosta. “Just answer the questions, Mr. Plotkin.”
I have him look at
a copy of this letter. I have subpoenaed this too from the bar. He identifies it as the one signed by him at the meeting.
“After you signed this letter, did Mr. Liston give you your money?”
“That’s all he gave me,” he says. “My portion of the settlement, less their third, and no interest. They kept my money for a year and a half, and didn’t pay a dime of interest.”
“You didn’t sue them?”
“I considered myself lucky to get out of that den of thieves with anything,” he says.
Nelson considers whether he should object to this. He’s halfway up, then thinks better of it. We may argue over Plotkin’s characterization, but the facts are clear, more than a little larceny has in fact occurred.
I have the second letter, the one withdrawing the complaint marked for identification, and move both letters, the complaint and its withdrawal, into evidence. There is no objection from Nelson.
“Your witness.” I look at Nelson.
He confers with Meeks, only for a second. “We have no questions of this witness,” he says. “But we’d like a conference in chambers.”
Acosta looks at his watch. “It’s time for a morning break. We’ll take a half-hour,” he says.
Nelson can see that I am digging a deep hole for the Greek, converting what had started as a sideshow into the main event. My auditor is next. He has facts and figures to document every discrepancy in the firm’s trust account for the last six years. This will lay a bold mental bracket around the Greek’s financial indiscretions for the jury. We have identified more than a half-million dollars that has been “borrowed” at one time or another, all of it against checks bearing Tony’s signature. Not all of this money has been paid back. It seems that Skarpellos had been more relentless in his abuse of these trust funds than even I had imagined. He had operated a considerable Ponzi out of the firm’s trust account for years. In thinking back, Ben had never given me any real indication of the magnitude of this theft.
This evidence begs a nagging question: whether Ben knew about and tolerated these practices for years, and complained only when his own ambitions were placed in jeopardy. I consider this and wonder, as one often does about those now departed, whether I had known him as well as I thought.
Acosta speaks first. “I would like to save some time,” he says. The court reporter’s stenograph keys are tapping softly.
Nelson nods. They have concocted something between them. It doesn’t take a mental giant to see this.
Nelson speaks as if on cue. “We will stipulate,” he says, “that Mr. Skarpellos appears to have engaged in reprehensible conduct.”
“Clear violation of bar ethics,” says Acosta. He’s shaking his head, his features all screwed up, an expression of disgust that is aimed at convincing me that I have now made my point on the Greek, that anything more is just overkill.
“We’re consuming a great deal of the court’s time on this,” says Nelson.
“Now that you have your case in, time is suddenly of the essence?” I ask him.
There is a rule concerning cumulative evidence, facts which are redundant, all tending to prove the same thing. Judges have broad discretion to exclude such evidence in the interest of time, and Nelson makes clear that this will be his objection if I persist with my accountant.
“We think this is more than a little cumulative,” says Meeks, trying to help his boss along. He cites Plotkin’s testimony and Tony’s own babbling bordering on admissions as examples of this.
“We?” I look at him.
“Mr. Nelson and I.” Meeks runs quick cover for the judge, as if Acosta has no hand in this and is hearing it all for the first time.
“I’m not trying to cut you off,” says Nelson. “Please understand.”
“Yeah, God forbid,” says Harry.
Nelson shoots him a little quick contempt. “You’ve been given wide latitude by the court.” He looks at Acosta, who nods, like this is a point well taken. “It’s just that we could save some time if we were to enter into a few stipulations.”
This is a tactical move by Nelson to take the sting out of much of this evidence. I suspect that the state’s auditors have been as busy as our own. Nelson would like to keep this out, but he can’t. The next best thing is some orderly and wooden way of placing this evidence before the jury, some dull rendition that will take the luster from it, that will put the jury to sleep like the repetitious prayers of a rosary.
“What do you propose?”
“We will stipulate,” Nelson says, looking at notes now, “ … that during the two years immediately preceding the death of Benjamin Potter, Tony Skarpellos withdrew approximately two hundred and twenty thousand dollars from the client trust account of Potter, Skarpellos, Edwards, and Hazeltine. That these withdrawals appear to have been unauthorized, and that the funds appear to have been diverted to personal use. I think this would cover the point as well as any evidence you could introduce,” he says. “Of course, you understand that these stipulations would be binding only in this case. They would have no effect on Mr. Skarpellos.”
“Of course,” I say.
Acosta’s looking at me and nodding, licking his chops, like this could save him a whole half-day. But we all know what this is about. It is about convicting Talia. Tony Skarpellos is looming larger in the minds of the jury with each passing witness, the motive for murder more compelling.
Harry’s scrambling, looking through our notes to see if there are any other bombshells that Nelson’s stipulation doesn’t cover.
“Your Honor, we’d like a fair shot at putting this before the jury,” I say.
“Mr. Nelson’s stipulation would appear to do that.” The Coconut is all mellow, like melted Brie. He speaks in tones that drip reason and goodwill.
“In all deference to opposing counsel,” I say, “this is not fair. We must be allowed to develop our case for the defense.”
“I am persuaded,” says Acosta, “that this is cumulative evidence.” This brings it within his broad discretion, to rule that our accountant can be hobbled, blocked at every turn by objections from Nelson. To this we would have no appeal. It is either play ball or they will cut us up in little pieces.
So I bargain with them. “Our other witness,” I say, “Mrs. Campanelli, must be allowed to testify fully as to her knowledge of the dealings between Mr. Skarpellos and the victim.”
Nelson looks at Acosta. He is not happy. But there is no way that they can bar this testimony. It is in no way cumulative, but new evidence of heated argument and confrontation between Tony and Ben. Under our theory, this argument is the spark that ignited murder.
“Agreed,” says Nelson.
“Good.” Acosta is happy. Another decision he will not have to make.
The Coconut reads in a monotone, like some bovine in heat. Nelson’s stipulation is put into the record, for the jury to hear. There are a lot of question marks, puzzled faces beyond the jury railing. But Robert Rath, my alpha factor, is taking notes. I think this little escapade by Nelson may backfire. With Rath to explain the significance behind closed doors, this stipulation leaves little to the imagination. It is now carved in stone that for our purposes here, Tony Skarpellos has shamelessly raided the client trust account-a major cog in our case.
“I don’t care what you say. I am going to testify. I have to,” says Talia.
Talia is insisting that I allow her to take the stand. She is chain-smoking again, against my advice. But this is something that, I sense, is now beyond her control. There are paroxysms of anxiety here, manic episodes, elevated and expansive moods followed shortly by irritability and depression. These swings seem to be associated with no particular success or crisis in the case. Instead, I think, they are attributable to the fact that as a verdict draws near, Talia is increasingly an emotional basket case.
“You can’t testify,” I say. “Nelson would eat you for lunch.”
What is difficult is that this is her call. As her attorney, I hold the strings. I c
an decide what witnesses we call, what evidence we submit. But the defendant’s right to testify or not is hers and hers alone. I counsel her against it. I tell her I will not participate in perjury.
There are cases in point in this jurisdiction. A lawyer who knows his client is about to lie on the stand does not withdraw, but by leave of the court may sit idle at the counsel table and watch as his client weaves a narrative. In refusing to participate, the lawyer upholds his duty as an officer of the court. Inquisitive jurors of course wonder what is happening, and in due course form their own opinions. It is usually a disaster. I tell her this.
I try to steady Talia. Calm her. I tell her that she is suffering a major case of judgment jitters.
Except for those so strung out on drugs that their brains are fried, every defendant gets these jitters as a verdict draws close. With Talia, this tension manifests itself in a need for control. She is desperate to help her own cause, paralyzed by the lack of mastery over her life.
We argue. I insist. I cannot put her on the stand. She has lied to the police about her alibi. I tell her that this would mark her as something less than trustworthy with the jury on every aspect of her testimony. With this revelation as a club, and three nails, I tell her, Nelson would nail her to the cross. He would break her back on cross-examination, inquiring into every aspect of her evening with Tod. Did they sleep together? Did they make love? It would not be a quantum leap in logic for Nelson to lead the jury to question whether Tod and Talia had not in fact teamed up to murder Ben.
“I don’t care,” she says. “I will tell them the truth. It was a mistake to lie to the police. Everybody’s entitled to one mistake.” There’s another cigarette between her fingers; the first, only half smoked, was crushed out less than a minute ago in the ashtray on my desk.
“If you testify,” I tell her, “they will convict you.” I muster all the authority possible in my eyes as I deliver this prediction. I don’t often engage in clairvoyance, but in this case I make an exception. Such is the certainty in my own mind on this point.
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