“What will they think if I don’t get up and testify on my own behalf? Friends have told them that I am trustworthy. What kind of person allows others to speak for her and refuses to say anything herself?”
“They will be instructed not to consider this,” I tell her, “told by the court that they may draw no inferences whatever from your silence.”
“And you expect them to accept this?” she says.
I won’t tarry with her on this point. She has the better side of the argument, and we both know it. So I play devil’s advocate.
“We have already talked about your alibi in the trial,” I say, “during Canard’s testimony.” I remind her how I pushed the detective on the details of her car, the capacity of its fuel tank, the fact that she may not have been sufficiently hungry to stop for a meal on her return from Vacaville. These were explanations as to why the cops couldn’t verify her trip that day.
“If we backtrack now,” I tell her, “there will be a clear trail, an unbridled implication of deceit.” My questions to Canard were sufficiently abstract not to be considered perjurious. But jurors might consider this beyond the bounds of good advocacy. They might see this line of inquiry for what it was, an exercise in misdirection. Jurors don’t like to be lied to or misled. They have been known, on more than one occasion, to punish defendants for such license taken by their lawyers.
“We have crossed this river of fire,” I tell her. “We cannot go back.”
Resignation is written in her eyes. She knows I am right. But for the first time I sense something more in her expression, something which has not been there before, a lack of confidence, not in herself, but in me. She is wondering if, in causing her to make this decision, I may have consigned her to prison for the balance of her life, or worse, she is wondering if perhaps I am condemning her to death.
Jo Ann Campanelli sparkles this morning. Decked out in a suit she’s probably not worn since leaving the firm, she is our last witness, here to provide the coup de grace, to turn the last screws in our case against Skarpellos.
With makeup, sans the cigarette and hair net, Jo Ann looks twenty years younger than when I spoke with her at her house two months ago. Her nails are polished and manicured. Her blond hair, even with its streaks of gray, is so carefully coiffed that it is clear she has spent both time and money preparing for this appearance. She wears the obligatory silk scarf, tied in a bow about her neck. It seems that during her time out of the loop, no one has told Jo that this fad has passed. Though she hasn’t seen the inside of an office in nearly a year, on this morning Jo Ann Campanelli is the very image of commercial efficiency.
We lay the groundwork quickly, her history with the firm. I expose the fact that she no longer works there, that after twenty years of faithful service she was summarily discharged shortly after Ben Potter’s death, that she had to retain another lawyer to secure her retirement. We hit this head-on rather than hiding from it, in hopes that this will take the sting out of Nelson, who is sure to hammer on the theme that Jo Ann is here for vengeance.
Jo describes the armed camp to which the firm was reduced in the days following Ben’s death. She likens this to working in a police state. I take her back to the week before Ben’s murder, and set the stage, the argument in Ben’s office.
“Did the partners argue often over business?”
“In the last months, before I left, there had been a number of heated arguments,” she says. “Things were not going well in the firm.”
Jo Ann talks about the growing hostility between Ben and Tony, Tony’s overt jealousy that manifested itself in ways obvious to her and other employees.
I take her back to the argument between the two men only days before Ben was killed.
“I couldn’t help but hear it. There was a great deal of yelling-and name-calling,” she says. “My desk was directly outside of Mr. Potter’s office.”
“How long did this argument last?”
“The meeting went on for twenty minutes; that’s how long Mr. Skarpellos was in Mr. Potter’s office. The argument, the portion I could hear, lasted five minutes, maybe longer.”
“Could you make out any of what was being said?”
“Mr. Potter called Mr. Skarpellos a thief-I think his words were ‘a goddamn thief.’ ” She looks at the jury to make sure they’ve caught this nuance.
“Did Mr. Skarpellos say anything?”
“Mr. Potter did most of the talking. He sounded very angry. At one point I did hear Mr. Skarpellos say something about money, that he would get the money and put it back right away.”
“Did you hear anything else?”
“Just Mr. Potter telling Mr. Skarpellos to get out of his office.”
“Did he leave?”
“Like he was shot from a cannon,” she says.
There’s a little laughter in the jury box, just a titter.
This is the pecking order I knew in the firm. The Greek fed on minnows like Hazeltine and the junior associates, but was no match for Ben, particularly when Potter was angry.
“What did Mr. Skarpellos look like when he left Mr. Potter’s office that day?” I ask her.
“Red in the face, crimson, you might say. Mr. Skarpellos had a nickname among the staff,” she says. “We called him the Red Leper. When he got angry or embarrassed his face became very red, flushed, you might say.”
“Why the Red Leper?” I ask.
“When he was like this, you didn’t want to be around him.”
More laughter in the box.
“Did he have a bad temper?”
“Objection, calls for speculation.”
Before Acosta can rule I reframe the question. “Did you ever see him lose his temper?”
“A number of times.”
“Did you ever see him become violent?”
“Once I saw him throw a book at one of the associates.”
I raise my eyebrows a little, while facing the jury.
“He missed,” she says. It seems his aim was as bad as his temper.
“On the day of this argument in Mr. Potter’s office, did you have occasion to talk to Mr. Potter after the argument?”
“I did.”
“What did you talk about?”
“He called me into the office and asked me to take a letter.”
“Did this letter have anything to do with the argument-between Mr. Potter and Mr. Skarpellos?”
“Objection, hearsay,” says Nelson.
“If the court will admit the testimony subject to a motion to strike, I think you will see, Your Honor, that this is not hearsay.”
Acosta waffles a hand at the bench. “I’ll allow it, subject to a motion to strike.”
Nelson resumes his seat.
“It was to Mr. Skarpellos.”
“Do you recall what the letter said?”
“Mr. Potter was trying to confirm their earlier conversation.”
“The argument?”
She nods. “Yes. The letter accused Mr. Skarpellos of taking large sums of money from the client trust account. It stated that Mr. Potter had just discovered this and that he had instructed Mr. Skarpellos to return the money within forty-eight hours, or else Mr. Potter would be honor bound to report the matter to the bar.”
“Objection, motion to strike,” says Nelson. “This is clearly hearsay, Your Honor. Mr. Potter’s out-of-court statement cannot be admitted. He is not here to be cross-examined.”
“Not at all,” I say. “It has already been established, by Mr. Nelson’s stipulation read to the jury by this court, that Mr. Skarpellos is deemed to have taken large sums of money from the client trust account. This testimony is not being offered to prove the truth of the matter stated-that Skarpellos took the money. That is already proven, by the generous agreement of the district attorney. This testimony is being offered to show Ben Potter’s state of mind, that he was aware, or at least believed, that his partner had taken such sums from the trust account. State-of-mind evidence is not subject to the
hearsay rule, Your Honor.”
It is a subtle point, but one well recognized in the law, that the subjective beliefs of a declarant, not being facts but matters of faith, are not subject to the hearsay rule.
Acosta is looking at Nelson, who stands silent at the counsel table. I have stuffed his own stipulation down his throat, and now Nelson, his jaw half open, looks as if he will gag on it.
“The theft of the money from trust is a settled point,” says Acosta. “It would appear that we are looking at state-of-mind evidence here.” He is hoping that Nelson will agree, or at least remain silent.
“State of mind,” he says. “This is absurd.” Unless Nelson comes up with something more persuasive, this ship will sail.
Acosta raises his gavel like some auctioneer. “Motion denied,” he says.
The only one who catches the delicacy of this in the jury box is Robert Rath. I think for a moment that he has flashed the briefest, almost imperceptible, wink in my direction.
“Mrs. Campanelli, do you recall how much money was referred to in this letter?”
“Not exactly,” she says, “but it was a lot.” She’s shaking her head now trying to recall the figure. “It was more than a hundred thousand dollars. I know that.”
“Did you later type this letter?”
“Yes.”
“And did Mr. Potter sign it?”
“In my presence,” she says, “and he asked me to deliver it in a sealed envelope to Tony’s-Mr. Skarpellos’s-secretary.”
“And did you?”
“Yes.”
This letter is starting to look like a little CYA (cover your ass) on Ben’s part. If anyone screamed too loudly, or if the bar launched an independent inquiry, Potter could hide behind this letter, say that the minute he found out, he did the right thing. Though some might question whether waiting forty-eight hours was exactly the right thing. Potter himself might now question this, given his fate.
“On the day that you typed this first letter, did Mr. Potter dictate a second letter?”
“Yes.”
“And to whom was that letter addressed?”
“To the state bar.”
“And what did it say?”
“It contained much of the information that was in the first letter, but in the form of a complaint to the bar. He told the bar that the writing of this letter caused him a great deal of pain, but that it was necessary given the conduct of Mr. Skarpellos.”
“Did Mr. Potter give you any instructions regarding this second letter?”
“He told me to postdate it.”
“Could you explain for the jury?”
“He wanted me to date the letter two days later than the actual date that I typed it and then to give it to him.”
“Did Mr. Potter tell you why he wanted you to do this, to postdate the letter?”
“Objection, hearsay.” Nelson’s back up. “And don’t tell me this is state of mind.”
I shrug a little concession his way. “You caught me, what can I say.”
A little lighthearted laughter from the box. It won’t take a mental giant or a Ouija board to figure out why Ben would do this, other than to give the Greek time to gather the money and meet the forty-eight-hour deadline imposed in the first letter. It is the picture of a partner doing all he could to save a friend from his own demons.
“Did you ever see this letter, the one to the bar, again?”
“No. I typed it and gave it to Mr. Potter.”
“So you don’t know whether he had a chance to mail it”-I pause for a little effect-“before he was murdered?”
“No,” she says.
I look to the box. The jury has gotten the point.
Before I leave her, I have Jo Ann identify Ben’s will, her signature as a witness at the bottom. Strangely Nelson makes not even an effort at any objection on this. I suppose that since the Greek has admitted in open court that he was aware of the terms of this document, and his interest in Ben’s estate, there is little to be gained in Nelson’s mind by keeping the document itself out of evidence. It goes in without a hitch. One of the foibles of trial law. Problems never develop where you expect them.
“Your witness,” I say.
There are no surprises here. In his approach to Jo Ann, Nelson is entirely predictable.
“Mrs. Campelli,” he butchers her name.
“Campanelli,” she says.
“Excuse me. Mrs. Campanelli. Isn’t it true that you were fired by the Potter, Skarpellos firm for acts of insubordination?”
“No,” she says, “that is not true.”
“Isn’t it a fact that you were making inquiries into confidential client matters in the firm that you knew you had no business knowing about, that you had been instructed not to involve yourself in these, and that you were fired for that reason?”
“No,” she says, “I was fired after I asked questions about the client trust account. After Mr. Potter was killed, I went to one of the partners about this. I was never told why I was fired. You can draw your own conclusions.”
Nelson is not having his way with her.
“Isn’t it true that after you were fired, you harbored a deep hatred for Anthony Skarpellos?”
“I wouldn’t call it hatred,” she says. “It was more like contempt.”
There’s some snickering in the jury box.
“Fine, you harbored contempt for Mr. Skarpellos. Tell me,” he says, “didn’t this contempt play just a little role in your testimony here today?”
“I testified truthfully,” she says, “to every question.” There is a perfect look of righteous indignation about her, the kind that only older women can project well.
“Come now,” he says, “you’re not going to sit there and tell us that you didn’t enjoy saying some of the things you did today about Mr. Skarpellos?”
“I enjoy telling the truth,” she says.
“Tell me, Mrs. Campanelli, if this information, your testimony, was so important, why didn’t you go to the police with it immediately after Mr. Potter was killed?”
“I,” she stumbles here a little, “didn’t think I had enough evidence.”
“I see. You didn’t think this testimony was worth anything until Mr. Madriani approached you and told you he needed it for his defense, is that it?”
“No,” she says.
“But he did come to you, didn’t he?”
“Yes.” The indignation is gone now. Nelson is beginning to burrow in.
“Let’s talk about these letters,” he says. “There were two of them, is that right?”
“Yes.”
“Do you have copies of them?”
“No.”
“Well, you’re a secretary, don’t you usually keep copies of correspondence you prepare? Don’t you usually file it somewhere?”
“These were confidential letters,” she says. “They were highly personal. They were not filed in the usual manner.”
“I see, so Mr. Potter trusted you to type these letters, but he didn’t trust you enough to keep copies of them?”
He’s pummeling her now. Jo Ann is looking at him, meanness in her eyes. There is no way she can answer the question-like asking whether she still beats her husband.
“Isn’t it a fact,” he says, “that you never heard any argument between Mr. Potter and Mr. Skarpellos, about trust accounts or anything else?”
“That’s not true …”
“Isn’t it a fact that you concocted this entire story to provide Mr. Madriani with a defense and to get back at Mr. Skarpellos, who fired you?”
“Was he the one?” she says.
Nelson looks at her, taken aback for a moment.
“They never told me who did it,” she says. “They didn’t have the guts.”
Nelson has left himself open for this one. I don’t know whether the jury is buying it, but Jo is playing it for all it is worth.
“If I’d known, I would have been here sooner,” she says. “But my testimony would ha
ve been the same.” Her neck is bowed, like a rooster in a cock fight. She looks him dead in the eye. And after several seconds it is Nelson who blinks, then finally looks away.
No, I think, this will not come off as sour grapes.
After the morning break, Acosta asks me if the defense has any more witnesses. I have left them in the dark about Talia’s intentions, whether she will take the stand or not.
“Your Honor.” I rise from behind the counsel table, and I look down at my client with a purposeful gaze, as if pondering at this last moment what to do, whether to put Talia up or not.
“Considering the evidence, Your Honor, I see little purpose in subjecting Mrs. Potter to any more trauma. She’s been through a great deal. We have decided that in light of the state’s case we see no purpose whatever to be served in putting her on the stand.”
I make this look like some last-minute decision, something that I have landed on on the spur of the moment, grounded on the weakness of the state’s case.
Nelson is looking at me dumbfounded. These comments are highly improper, except that in a death case everything is fair game.
“Your Honor,” he says. “I object.”
“To what? My client not taking the stand? That is her privilege. The burden is on you to prove your case,” I say, “and you have failed.”
At this his eyes nearly bulge from his head.
“No,” he says, “I object to these gratuitous comments. The justifications for why he won’t put his client on the stand.” He’s imploring Acosta.
“The state is not permitted to comment in this area,” I tell Acosta. “Mr. Nelson is asking for a mistrial.” Having goaded him, I now complain about Nelson’s response.
Acosta is banging his gavel, telling us both to be quiet.
“That will be enough,” he says. “The defendant has chosen not to testify. That is her right. I instruct the jury to disregard all of the comments of both counsel. These are not evidence and are not to be considered by you in arriving at your verdict.”
Some trial lawyers call this cautionary instruction “the green-striped zebra rule.” A jury told that it may think of anything, anything in the world, except a green zebra, will of course envision, to the exclusion of all other objects in the universe, a green-striped zebra. It is not so easy for Acosta to kill this seed I have planted. Jurors now at least have a plausible explanation for Talia’s silence, one they have been told not to consider, so of course they will, not collectively, but in the dark recesses of their individual consciousnesses. It is at least an explanation, something to counter the natural inclination that only the guilty remain silent.
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