“Mr. Madriani, do you have any further witnesses?”
“The defense rests,” I say.
“Very well,” says Acosta. He looks at his watch, considering whether to continue today or to resume in the morning. “We will have closing arguments tomorrow, starting at nine o’clock. I would advise you both to be ready. This court stands adjourned.”
CHAPTER 39
It took most of the morning, behind closed doors with Acosta, to settle on the jury instructions. This is a mixed bag of short paragraphs, rules on the burden of proof, the presumption of innocence, circumstantial evidence and the weight to be given these facts, the inferences to be drawn from them. In the end it is a tight little package, items that both Nelson and I will refer to in our closing argument.
Through final argument we claw at each other like two flailing tomcats over a fish head. This is deadly combat. The stakes are high. The gloves are off. Closing argument in a death case, and all is fair game.
Nelson is now up before the jury. He tries to stretch the evidence. His first pitfall comes over the strand of Talia’s hair, the only physical link between her and the crime. His difficulty, of course, is that he must explain how this hair survived unscathed in the barrel of the shotgun, how it escaped the searing heat of the blast that took off the top of Ben’s head. He wants to put this problem behind him early, so the jury will not dwell on it.
This is a tactical mistake, I think, a deviation from the precept that you always start strong and finish on a high note. He stumbles a bit here, then picks himself up moving forward with his argument. He tells the jury that this piece of evidence is susceptible to a number of differing interpretations. “The hair may have worked its way to the side of the chamber before the trigger was pulled. Maybe the defendant opened the breech and closed it again after firing,” he says, though he can’t suggest a reason for this, since she apparently did not remove the spent cartridge. “She may have snagged the hair at that time,” he says. “You can’t always expect a person who has just committed such a brutal, merciless crime, to think and act logically.”
All of these explanations are equally lame. But Nelson puts a face of confidence on them and does an expert job peddling them to the jury. He moves on, smoothly, to the little pistol found by Tod at Talia’s house after the murder. He notes Coop’s expert testimony, that the standard metal jacket on a twenty-five-caliber bullet is entirely consistent with the fragment found in the skull of the victim.
“This,” he says, “this handgun found at the defendant’s residence, was the murder weapon that killed Ben Potter. Can you doubt it?
“You have heard Mrs. Foster,” he says, “the neighbor of the Potters, as she told of seeing the victim’s vehicle in the driveway of their house about the time of the murder. Mr. Madriani”-he looks at me full of scorn-“Mr. Madriani did what he could to confuse this poor woman, with pictures of cars that none of us under similar circumstances could distinguish. But notwithstanding this confusion, her testimony remains. This was a vehicle she had seen many times, a vehicle she was not likely to mistake.”
Nelson is a master at working with what he is given. He plays at the edges of circumstance like a virtuoso at the piano. His argument is straightforward, almost chronological.
“We have heard testimony of an alibi”-he leans on this word for all of the pejorative connotations it carries in the public mind-“an alibi for the defendant, a story related to police and investigated by them, thoroughly. Yet I would ask you to comb the record of this trial-there is not a shred of evidence to support this story of the defendant that she was out of town at the time of the murder. The defendant has produced nothing, not a single scrap of evidence, to tell us where she was on that night.”
He pauses, both hands on the railing, and takes in the entire panel with the sweep of his eyes. The law does not allow him to ask with words what he now asks with body language: Why has the defendant failed to come forward to tell us where she was the night Ben Potter was murdered?
I can tell that this has an effect on the jury. Even Rath will not meet my eyes as he considers this.
Nelson hits hard on the prenuptial agreement and scrambles to fill in the deficiencies in his evidence. “Mr. Madriani,” he says, “places great stock in the theory that the defendant never knew about Ben Potter’s plans to divorce her. Yet this is only a theory, so much conjecture. For we don’t know what the defendant knew or did not know on this point. We can only surmise.” He now turns from the jury and is looking at Talia, a silent indictment for her failure to testify.
“We do know that she had a great deal to lose,” he says. “The home she lived in, an opulent residence fit for a queen, all interest in the law firm managed by her husband, a firm worth millions of dollars. A carefree, some might even say indulgent, life-style to which she had become accustomed. All of this would have been swept away in an instant if Ben Potter had divorced the defendant.”
He centers himself again on the railing. “Ask yourselves, ladies and gentlemen, whether this, the loss of all of these things, the loss of all financial security as one approaches the middle years of life, is not an adequate motive for murder.”
He steps back slowly, nodding, a little body English to provide the answer to his own rhetoric.
He runs quickly through the testimony of Talia’s character witnesses, testimony which he says is “self-serving-the raving endorsement of the country club set, whose morals, like those of the defendant, belong in some barn.”
This stings, and I can see Talia take a mean bead on him. I lean toward her with a little admonition on demeanor. “Don’t give the jury something to dislike,” I tell her. She settles into a more placid expression.
“Ladies and gentlemen, ask yourselves, can you believe a character witness who tells us that these sojourns to a local motel in the middle of the day with other men were perfectly innocent tennis lessons?” There is scorn dripping from his voice.
He steps away from the railing shaking his head, a little mock laughter. “These people think we are hayseeds,” he says.
“No,” he tells the jury, “these are not the actions of a loyal and loving wife, but a hedonistic life-style lived under the nose of a husband who was shamed and embarrassed in the community in which he lived, a husband who for good and obvious reason sought to end a fruitless marriage-and who for his efforts was murdered.”
This last settles like prairie dust on an Iowa fanner. Even to this male-dominated jury it is difficult to square the monumental lack of discretion exhibited by Talia.
Nelson has saved the most critical part for last, his defense of Tony Skarpellos. Here he is cast in the role of defense lawyer. Unless he can acquit the Greek in the eyes of this jury, the thread of two possible perpetrators, each with opportunity, each with a burning motive to kill, will fire more doubt than the state’s circumstantial case can withstand.
“Mr. Madriani has gone to great lengths to draw the witness Anthony Skarpellos into the ring of suspicion in this case. Indeed, there are things we have heard that are disturbing in terms of Mr. Skarpellos’s conduct, his loose dealings with client funds. But this is not evidence of murder. This”-my theory of the case, says Nelson-“is misdirection, clearly calculated to draw the jury away from the real killer.”
It is clear that within two minutes of launching into this, his last point of argument, Nelson has made a major blunder. He has nothing with which to counter our theory against the Greek. Harry’s advice on Susan Hawley, it seems, has turned out to be golden. While Nelson plays upon Tony’s alibi, the basketball game in Oakland, this has all the timbre of a hollow tune. Talia’s fate may not yet be decided, but one thing is clear: Tony Skarpellos suffers from a terminal lack of credibility in the eyes of this jury. He is not someone I would wish to defend here.
Instead of ending on a high note, Nelson, it seems, has miscalculated. His final pitch to the jury drops flat like some sinking stone in a mountain lake. I think that he senses this. As he t
urns, his back to the jury, and makes for the counsel table, Nelson has the look of a man who wishes for one more chance. Unfortunately for our side, he will get it. The prosecution gets two shots at closing argument, an initial summation and then a rebuttal following our own, one of the perks of shouldering the burden of proof.
Nelson takes his seat, and Acosta looks at me.
My plan here has two major aspects, to tear at the soft underbelly of the state’s case so as to put Nelson on the defense, and to give him as little ammunition as possible for his rebuttal.
I move in front of the jury and smile. I speak in a conversational tone, as if I am leaning over the back fence to a neighbor.
“There is an abiding constant in the criminal law,” I tell them. “It is the same from Maine to California, from the Aleutians in Alaska to the Florida Keys. It is one of the few laws in this nation that is universal and unquestioned-the rule that criminal defendants are entitled to the presumption of innocence unless the state can prove their guilt by evidence beyond a reasonable doubt.”
I always start with the basics.
I nod a little, anticipating the question that I know has entered each of their minds.
“Oh yes, you are right. This is a difficult task that our government has imposed upon the various states, particularly in a case such as this one, where the evidence is circumstantial, where there are no witnesses to the crime.
“But,” I say, “this is what the founding fathers intended, that no innocent man or woman should suffer for a wrongful conviction, should be unjustly imprisoned, or worse, executed because of an overzealous prosecutor or a mistake on the part of the state. It is a good system, the best in the world.”
I soothe them lest they feel that Nelson is too much the underdog here. I remind them that he has an army of police officers to investigate for him, an office filled with professional prosecutors, all of the resources of the state, against me and Harry alone. I point to “Mr. Hinds” sitting at the table, lonely next to Talia. “The state, with all of these resources,” I say, “deserves the burden of proof.”
They seem to accept this as a given. I move on to defuse Talia’s silence.
“Mr. Nelson has nibbled around the fringes,” I say. “By innuendo and implication he has questioned what the law does not permit him to ask directly-he has, by subtle suggestion, challenged the silence of Talia Potter in this trial.”
“Your Honor, I did not,” he says. Nelson is on his feet. He knows this is taboo. If even implied in the transcript, it is grounds for an instant mistrial. He cannot allow my assertion to remain unchallenged.
“The record will speak for itself,” says Acosta. “I heard no objection from the defense as Mr. Nelson spoke.”
“How can one object to gestures and inflections, Your Honor?” These do not show up between the lines of black print on the trial transcript, I tell him.
“Get on with it,” he says.
I return my gaze to the jury.
“I will confront this question directly and honestly,” I tell them. “In a few moments the judge will read to you a number of instructions. One of these bears directly on the right of Talia Potter to remain silent throughout this trial. That is her undeniable, God-given right,” I say.
“She has a right to rely on the state of the government’s evidence, or any failure of that evidence. If the state has failed to prove every essential element of the charge against her, under the law Mr. Nelson may not expect her to supply his own deficiencies. This the law does not permit.”
I pick up the jury instruction sheet from the counsel table, one of two that Acosta will read from on this point. “ ‘A defendant in a criminal trial,’ ” I read, “ ‘has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. You must neither discuss this matter, nor permit it to enter into your deliberations in any way’ whatever.” I embellish here, one word at the end.
“This is the law,” I say, “apart from any suggestions or implications that the state may give you, gestures that you think you may have seen.” I turn and look at Nelson. “This is inviolable, a fundamental right which the state may not invade.”
I return to the counsel table and replace the single piece of paper, take a sip of water, and make my way back to the railing.
There are other reasons, I tell them, for my client’s silence. I note that she has in fact answered these charges by pleading not guilty, by mounting a vigorous defense, by producing witnesses who have attested to her innocence. “And there is another reason that she has not taken the stand. She is a proud woman, who for months now has been subjected to the worst trauma the state and society can inflict on any citizen, an accusation of serious crime, an utter and complete invasion of any sense of privacy. I will not subject her to more,” I say. “This I cannot do.” In this way I assume the blame for her silence, take it upon myself, and try to scatter it to the winds.
I pause for a moment and give them a deep sobering look, pull myself up to my full height, and speak.
“I asked you, when we started, a single vexing question, on an issue pivotal to the outcome of this trial. I asked you whether in the presentation of the state’s entire case you had heard or seen any compelling evidence, any evidence whatever, sufficient to convict Talia Potter of the crime with which she stands accused.”
It is now time to call them on this. I give an unflinching look from one end of the panel to the other.
“Ask yourselves, in the silence of your own minds, whether the state has produced a scintilla, even the slightest trace, of compelling evidence that Talia Potter is linked in any way with the death of her husband, Benjamin Potter.”
I look at them in abject silence for a long moment, giving this thought some time to penetrate.
“What has the prosecution demonstrated in nearly three weeks of your time, at untold public expense?” I ask them.
“Mr. Nelson has given you photographs of horrific violence that he would have you believe was perpetrated by my client, Talia Potter. These,” I say, “were designed to make you lash out blindly at anyone charged with this crime. Is this compelling evidence of the guilt of Talia Potter?
“He has provided a single strand of human hair so pristine in its condition that his own experts cannot explain the absence of any scorching while it was lodged in the chamber of a shotgun fired into the victim’s mouth. Is this compelling evidence of the guilt of Talia Potter?”
I touch upon the implausible explanation for this that Nelson has given in his closing, an explanation, I say, that is not borne out by the evidence of his own witnesses. “I did not object to this speculation, though I could have,” I say, “because there is no evidence on the record to support it. I did not object because I knew that you could see with your own eyes, and hear with your own ears, the absence of evidence on this very point.” I smile at them, nodding my head slowly, a demonstration that I trust their judgment, their common sense in such things. I have no doubt gained more here, by this tactic, than by any objection I could have made.
“Mr. Nelson has produced a witness who tells us that the victim was about to divorce Mrs. Potter, a presumed motive for murder. Yet his own witness cannot tell us whether Talia Potter in fact knew of this supposed plan to end her marriage, a motive so secret that the defendant herself was unaware of it. Is this compelling evidence of the guilt of Talia Potter?”
I remind them of Mrs. Foster, who could not identify the victim’s car, who did not see Ben or Talia at the house on the night of the murder, but whose testimony was offered for this very implication.
I talk of motel clerks and innuendos of lovers in the night, of accomplices that the state, with all of its resources, cannot identify. All of this to the same chorus: “Is this compelling evidence of the guilt of Talia Potter?”
I am certain that Nelson is burning at the counsel table, but as in everything else before the jury he puts a face on this, cool and indiffere
nt.
I tell them that the evidence of this case requires, cries out for, a single verdict, “a verdict of not guilty.”
I move slowly away from the railing, several feet, and let them mull on this point for a brief moment. Then I am back to them.
“When I came to you the first time, in my opening statement, I not only asked you that question, whether the state’s case was one of compelling evidence, but I promised you something else. I promised that I would deliver to you the person who perpetrated this crime, the person who murdered Ben Potter, who killed him in cold blood.”
Here my expression is dour. It does not take a mental giant to know where I am headed. All of these jurors have, in their own minds, been treading this ground for some days now, listening to the evidence against Tony and wondering.
“Let us see what we have,” I say. “Mr. Skarpellos has admitted, grudgingly as it may have been, that he was aware of the terms of Ben Potter’s will, the fact that he stood to inherit vast sums from Ben Potter’s estate, but only if Talia Potter were disposed of, out of the way. Her conviction would do that.”
I play upon this theme, Tony’s convenient memory, the fact that he waited months before he told police that Ben had confided to him his plans for divorce. This I meet in certain terms. I call it “a crock.” Some of the jurors are a little wide-eyed, wondering if this violates the Coconut’s edict on expletives and colored language.
“Loose dealings with client funds … I think this is how Mr. Nelson referred to the wholesale embezzlement, the looting of client moneys by Anthony Skarpellos. It is the first time I have heard outright theft characterized in this way, particularly by a fire-breathing prosecutor,” I tell them.
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