The Best Defense

by A. W. Gray

  Sharon had made the call from Darla’s cell phone, standing inside the holding cell as the deputies led Darla back into court. She was now alone in the divided room, the wastebasket outside the bars stuffed with cheeseburger wrappers, the cell door standing open, the wall clock showing, God, 1:35. She was already five minutes late. Sharon made tracks, juggling her purse and briefcase, the slip of paper containing Aaron Levy’s car phone number clenched lightly between her teeth as she hustled into court through the rear entry, headed across the bullpen toward the defense table.

  The judge stared at her. So did the gallery. The TV cameramen aimed his lens in her direction. Well, look at me, I’m Sandra Dee, Sharon thought; Sharon Hays, Broadway dropout, now star of the freaking week, her purse and briefcase about to fall on the floor, a piece of paper dangling from her mouth. She stopped in her tracks, wrapped one hand around the handles of her purse and briefcase, and used her free hand to take the phone slip from between her teeth. She said breathlessly, “I apologize for my tardiness, Your Honor,” and then headed for her place with her cheeks a bright shade of crimson. On the prosecution side, Milton Breyer grinned at her. Kathleen Fraterno had her head down, studying but looked up with a blink of acknowledgment as Sharon passed.

  As she circled behind Preston Trigg, headed for her place, Judge Rudin boomed out, “So glad you could join us, Counsel.”

  Sharon ignored the jurist and sank into her chair. Preston Trigg leaned over and said, “The judge likes promptness.”

  “Thanks a load,” Sharon hissed, then put her lips near Darla’s ear. “I got it done,” she whispered. “Might’ve fudged a little on the circumstances, but—”

  “If you’re ready, Miss Hays,” Rudin growled from the bench, “we will now proceed.”

  Sharon closed her mouth with an audible click of teeth.

  Rudin addressed the courtroom at large. “We will now hear the state’s rebuttal to the defense’s motion to exclude.” Not the court will hear, Sharon thought, but we will hear, Rudin including himself as one of the viewing audience. The judge nodded to Breyer.

  Breyer stood and grandly extended a palm-up hand toward Fratemo. “If the court please,” Breyer said, “I’m going to defer to my colleague. Allow me to introduce Miss Kathleen Fraterno, who came in last night from Dallas.”

  Rudin folded a hand over his knuckles. “Ah, more Texas flavor.” He waited for a laugh, got none, then said, “Proceed, Miss Fraterno.”

  Kathleen rose and peered around as if to say, If anyone’s expecting me to bow, they’re wasting their time. She looked every bit as put off by the judge and all the TV bullshit as Sharon felt. Sharon was glad that Breyer hadn’t referred to Kathleen as his “assistant,” or more to the point, his flunky, and suspected that old Milt would have done so if he thought he could have gotten away with it. Fratemo took a final cursory look at her notes and approached the podium, carrying a copy of Sharon’s exclusion motion. She stood in erect posture and addressed the bench in her pleasant, well-modulated courtroom voice. “First of all, Your Honor, we wish to defer our rebuttal until tomorrow morning. We request briefing time in order to address all pertinent issues.”

  A murmur of surprise went through the gallery. Preston Trigg’s mouth opened like a fish’s on dry land. “We’d object to any continuance, Judge. If they’ve got argument, let’s hear it.”

  Trigg made his statement with out-thrust jaw, and Sharon was certain that the viewing audience was impressed, but her co-counsel’s objection was a waste of time. Fraterno was entitled to research before responding in a legitimate court of law. And in this side­show, if Drake Rudin saw an opportunity to spend one more day in front of the camera, Kathleen would win her request, hands down. The state’s motion was a stall—Sharon hadn’t read Kathleen’s brief, but was certain that Fratemo wouldn’t have found any points of law which Sharon herself had missed—but why on earth would they want a delay? Sharon popped her briefcase open and stared at the printout from Rob’s bank as she waited for the judge to come to a decision.

  Rudin spoke up in a hurry. “Overruled, Counsel,” he said to Trigg, then looked to Fratemo. “How much time does the state of Texas need?” he asked. “Overnight, Your Honor. And so this session won’t be a complete waste of time, we have another witness to present.”

  Rudin pinched his lower lip. “Not having to do with the weapon?”

  “Not the weapon per se, your honor, where it was found, but … Well, with the court’s permission, I’d like to go ahead.” Fratemo’s tone was polite yet forceful; the court had no option other than to let her put her witness on, which Kathleen damned well knew.

  Sharon looked to the back. She supposed that Stan Green was about to make a filibuster appearance, or perhaps another of Dallas County’s forensics people. Not the gun per se, Fratemo had said, which meant that Texas was about to produce testimony about the .38 without addressing Sharon’s motion to exclude.

  Fratemo was a whiz at this sort of thing. Once when Sharon was a prosecutor, she and Kathleen had tried a particularly sticky murder case. The police had burst into the suspect’s apartment with insufficient probable cause—none, actually, just a patrol cop’s off-the-wall statement that the suspect had acted suspiciously when carrying out his garbage—and taken a knife from the dishwasher which was flecked with the victim’s blood. Sharon and Kathleen had agreed going in that the judge wouldn’t admit the knife, no way, so Fraterno had devised a different plan of attack. She’d produced the suspect’s sister—under the guise of testimony as to the suspect’s activities prior to the crime—who’d told from the witness stand how the suspect had fixed her dinner the night before the murder. Kathleen’s direct examination had brought out a description of the knife—which the suspect had used in carving a roast—down to its ivory handle, which had been sufficient, along with graphic forensic testimony regarding the vicious sawing wounds in the victim’s torso, to plant the knife in the jury’s mind without actually introducing the weapon into evidence. Something similar was coming with regard to the .38, Sharon knew, and she had to be on her toes. She sat slightly forward as Fraterno called her witness.

  “State calls,” Fraterno said, “Curtis Nussbaum.” Sharon recoiled as if slapped. She fought to recover, and pulled out the bank printout along with the photo of Nussbaum and his security man on the set of Spring of the Comanche, as she waited for the witness to come down the aisle.

  Nussbaum made his entry with a minimum of aplomb, man-behind-the-scenes fashion, his walk brisk and businesslike, no sag, rio swagger. His head was recently shaved, and he wore a conservative blue suit and navy tie. His shoes were dully polished, Mr. Believable-in-the-flesh, here to do his civic duty. He took the oath in a slightly gravelly voice and ascended to the stand.

  Fratemo regarded her witness like an old friend. “State your full name, please.”

  “Curtis Laydon Nussbaum.” The agent’s expression didn’t change. His permanent smirk was gone, replaced with an honest, bland look, and Sharon decided that Nussbaum might be a better actor than some of his clients. Where had the state come up with this guy? Agents normally kept hidden from the public eye while their clients took center stage, and most agents would flee the country rather than make a courtroom appearance, so why was Nussbaum all of a sudden Mr. Cooperative? If he’s willing to talk, Sharon thought, he’s got a profit motive.

  Fratemo leaned on the podium, bent one knee, and rested one high-heeled shoe on its toe. “And what is your occupation, sir?”

  “Theatrical agent.”

  “More to the point, are you David Spencer’s agent?”

  Nussbaum’s gaze flicked to Sharon in a manner which made her uncomfortable, then went back to Fraterno. “Was.”

  “Before he died; yes. But you have other clients, don’t you?”

  “More than a hundred.” Nussbaum’s answer caused Sharon to blink; most agents’ client list was the darkest of secre
ts. Famous clients, sure, no one minded being photographed at dinner with Tom Cruise, but the ninety-nine percent of the actors whom the agent sent to F.A.O. Schwarz as Playskool blocks, or who dressed up in chicken suits and stood on the curb to wave passersby into restaurants, those were assignments the agent would leave swept under the rug. Out of the hundred clients Nussbaum represented, Sharon imagined that the viewing audience would recognize four or five names, no more than that.

  Fratemo flipped over a page in Sharon’s motion to exclude. “Mr. Nussbaum, generally, how would you classify your relationship to your clients?”

  “I take a personal interest in all my clients,” Nussbaum said. He pronounced the adjective “poisonal,” Brooklyn fashion, and shifted his weight in the chair.

  “Do you perform more functions than just getting your clients acting jobs?” Fratemo asked.

  “Most certainly.” Most soitanly.

  “And could you describe a few of those?” Nussbaum assumed a tone of pride. “I do everything for my people so that they can concentrate on their careers and not worry about the details.”

  “So you pay their bills …”

  “From a trust account, yes.”

  “… provide financial advice …”

  “When I’m requested to.”

  “So your relationship is much closer than, say, lawyer to client.”

  “I would hope so.” Nussbaum favored the defense table with a disdainful blink.

  “More so with some than with others?” Fratemo asked.

  “I try not to play favorites. But it’s natural that, in dealing with large numbers, you’re going to be closer to some.”

  “Mr. Nussbaum, how would you describe your relationship with David Spencer?”

  “More uncle to nephew. Even father to son. I got that boy his very first acting job.”

  He got most of his clients their first job, Sharon thought, but David Spencer was on Nussbaum’s A-list because he’d just happened to hit it big. She suspected that if Spencer had been a flop on the screen, Nussbaum would have been less his surrogate dad and more his distant relative. She glanced at Darla. She was doing a good job, holding her head up and listening intently.

  “Did you and Mr. Spencer see each other socially?” Fratemo said.

  “Alia time.” Nussbaum leaned on his elbow. “Alia time.”

  “Exchange gifts?” Fratemo’s lashes lifted as she looked up at the witness.

  Uh-oh, Sharon thought, here comes the gun. She straightened, her attention firmly on the coming exchange of words.

  “He’d give me things at Hanukkah, even though he was Protestant.”

  “And would you return the favor? At Christmas time, say?”

  “I tried to make my presents to David more practical. He had so much already.”

  Sharon permitted herself a grim smile. The image of Curtis Nussbaum thoughtfully shopping for tokens of his esteem was a bit much.

  “I see.” There was the barest pause, a change in Fratemo’s cadence which Sharon recognized. The subtle alteration in diction meant that Kathleen wanted everyone’s undivided attention. The ploy was more effective than some lawyers’ tricks such as slamming books down on tables or yelling at the tops of their lungs. “Mr. Nussbaum,” Fratemo said, “did you ever give David Spencer a pistol?”

  “Yes. For protection. A boy in his position, strangers coming up to him all the time …”

  “He could have been in danger?”

  “Happens every day in Hollywood. Stalkers, you know.”

  Sharon pictured Spencer, staggering around in front of Planet Hollywood drunk as a lord, and wondered what the safety factor would have been if the actor had been packing his gun. Question of who was protecting whom from what, Sharon thought. She picked up her pen and wrote: Find out if Nussbaum tipped the FBI as to the gun’s hiding place in the house. If he did, and if Darla was telling the truth that she’d never seen the weapon before, it stood to reason that Nussbaum had planted the gun or had had it down. Curtis Nussbaum was at the top of Sharon’s list for alternate theory number one, and the more the agent talked, the more Sharon liked the idea.

  “When did you give him this pistol?”

  Nussbaum reflectively regarded the ceiling. “It was, let’s see, about a year ago.”

  “Was this an expensive weapon?”

  Nussbaum firmly shook his head. “I wanted something for him, practical. A lot of Hollywood weapons are popguns, twenty-twos, would stop nothing if the situation was critical.”

  “I see. Could you describe this weapon for us?”

  “I had a client, used to be a cop. He gave me this gun. It was a revolver.”

  Fratemo shifted her weight and crossed her forearms on the podium. “Wasn’t it what is commonly known as a police special?”

  “That’s what he called it,” Nussbaum said. “Myself, I’m not into weapons.”

  “A thirty-eight-caliber?”

  Sharon tensed her thighs, ready to stand. “Yes,” Nussbaum said.

  Fraterno glanced toward the prosecution table, but as yet made no move to walk over and pick up the box containing the pistol. Sharon relaxed some, but not much.

  “When did you last see David Spencer, Mr. Nussbaum?” Fraterno’s tone was matter-of-fact, almost casual.

  “Alive? I flew down to Dallas and identified his—” “Alive, sir,” Fraterno said, “before the … tragedy.”

  There was a sniffling sound from within the gallery, and the television camera swiveled in that direction. Sharon turned as a young woman in the second row blew her nose. Sharon counted three more females in tears, then faced the front once more. One gotcha for Kathleen, Sharon thought. She wondered how many of those women had personally known David Spencer. She’d bet that none of them had.

  “I was at David’s house,” Nussbaum said, “the day he flew to Texas. Helped him pack and then drove him to the airport. Him and his lady.” He glanced at Darla, then steadied his gaze on Fratemo.

  “David’s house being on the beach? Malibu?”

  “Yes.”

  “Did he pack the .38 pistol you’d given him?”

  “Yeah. I remember it was loaded. David didn’t pay a lot of attention to details. I had him unload the pistol and put the bullets in another suitcase, which is the only way the airlines will let you check a weapon.”

  “Thank you. To be very clear, Mr. Nussbaum, immediately after David packed his gun, what did you then do?”

  “Carried both pieces of luggage to my car and put them in the trunk.” Nussbaum smiled sadly. “You’re a person’s agent, sometimes you’re his valet.” He chuckled, and there were a few small titters in the courtroom.

  “Did you drive him to the airport immediately after that?”

  “Hadda wait awhile. David finally brought Miss Cowan’s things, and the two of us, the butler and I, loaded her stuff in beside David’s.”

  “During the entire time, were you ever away from David’s luggage?”

  “Only when I was behind the wheel and the luggage was in the trunk,” Nussbaum said. Sharon felt a surge of admiration; Fratemo was conducting one cracker­jack of a direct examination. She’d subtly lapsed into calling the slain actor “David,” omitting his last name, an age-old prosecutor’s trick designed to humanize the victim in the jury’s eyes. Or in this case the viewing audience’s eyes, which for all practical purposes amounted to the same thing.

  “Was the trunk locked?”

  “Yes. It’s automatic.”

  “So, without unlocking your trunk, is it fair to say that no one could have tampered with David’s luggage?”

  “More than fair.”

  “So, Mr. Nussbaum …” Fratemo looked as if she were deep in thought, stumped. Which was all an act; Kathleen had never examined a witness in her life when she didn’t plan ten or fifteen questions
ahead. When she had everyone’s attention riveted on the witness, she finally asked, “When you arrived at the airport, did a skycap take the passenger’s luggage? Miss Cowan’s and David’s?” With the same subtlety with which she humanized David Spencer, Fratemo distanced prospective jurors from Darla by calling her “Miss Cowan.” Sharon made a note that during her cross, Darla would be Darla and David would be Mr. Spencer, anything which might turn the tables a bit.

  “Rolled a cart right up to the curb,” Nussbaum said. “And carried the baggage directly to check-in,” Fratemo finished. “Mr. Nussbaum, are you relatively certain that the pistol and bullets were in David Spencer’s luggage when he left for Dallas?”

  “Oh, they were in there.” Nussbaum flashed a tiny grin. “Unless Houdini was inside one of those suitcases.”

  Kathleen smiled back at the witness as if the two of them shared a secret. She then tossed the spitter without missing a beat, without altering her tone so much as half an octave. “When did you next see the weapon, sir?”

  Nussbaum opened his mouth to answer.

  Sharon bounced to her feet. “Approach, Your Honor?” Kathleen had almost pulled it off, lulling the defense with the baggage routine. Sharon’s voice trembled with anxiety. At the podium, Fratemo’s shoulders slumped.

  Rudin gave come-hither gestures. Sharon went quickly to the bench with Kathleen bringing up the rear. “She’s sandbagging us, Judge,” Sharon whispered.

  “Oh?” Rudin raised his eyebrows. “How is that?”

  “The witness is about to testify,” Sharon said, “that he’s seen the gun today, probably in this courtroom or just out in the hall. Miss Fratemo then plans to have him identify the weapon.”