Compelling Evidence

CHAPTER 26

“For those of us of the pessimistic persuasion,” says Harry, “it’s the prime directive-shit happens.” It’s Harry’s law of cynical gravity, his way of telling me that this latest news was beyond my control, or perhaps a premonition of worse things to come. With Harry it’s hard to tell.

On the heels of Nelson’s revelation that Skarpellos is his surprise witness, I have now learned that the DA’s office has given a grant of immunity to Susan Hawley.

During an hour-long telephone conversation I have explained this to her in crystalline terms comprehensible to Quasimodo, all to a chorus of “No way, Jose,” and expletives that do not bear repeating. While immunity, in this case, will mean that she goes free, apparently this scenario crimps certain commercial interests. It seems there is an ethic, even among the fishnet-stocking set. Dates who fink on their johns, at least in the rarefied political circles frequented by Susan Hawley, are blackballed for life.

“They may as well publish my name on the list of AIDS victims,” she tells me.

Susan Hawley is convinced that if she talks, she will be relegated to hawking her wares in the backseats of cars or with her skirt hoisted in dark alleys.

I have been careful to avoid any conversation with Hawley regarding her alibi for Skarpellos. On this I have a serious conflict of interest. Harry and I have erected what is known in the law as a quick “Chinese wall.” Since learning of her alibi for the Greek I have kept Harry, to the extent possible, in the dark on my dealings with Hawley, any information regarding her past life that she has confided to me during my defense of her. It will be left to Harry to deal with Hawley as a witness if she is called. He will have to impeach her, destroy her credibility with the jury. I will make a full disclosure to the court regarding my legal representation of this woman and excuse myself from any participation in questioning her. It is a questionable remedy, but one I think the court will be compelled to accept.

In adamant terms, she has told me she will not testify; her final words before hanging up are still in my ear: “They will have to find me first.” In the last hour I’ve come to wonder if I’m included in the plural pronoun. Successive telephone calls to her apartment by Dee have gone unanswered.

“This is not what I need,” I tell Harry.

“Substitute out,” he says. Harry is referring to the process that permits a lawyer upon proper notice to withdraw from a case.

“Fat chance,” I say. If the lady doesn’t appear come showtime, I know that the judge will be making probing inquiries as to her whereabouts, starting with me.

For the moment I have to shelve my concerns about Susan Hawley. Delia Barns has arrived, ushered into my office by Dee.

Delia is a certified shorthand reporter I use regularly for depositions. She is here at my request to take a sworn statement from Tony Skarpellos.

Nelson’s eleventh-hour disclosure from Skarpellos as a possible key witness in the state’s case leaves me little time to assess the potential damage of Tony’s testimony. I’ve asked the court for some leeway, a little special process because of this surprise. Acosta has ordered that I may take a sworn statement from Skarpellos. Normally this is not allowed, unless there is reason to believe that a witness may not be available at trial, somebody on his deathbed.

But I want to catch the Greek before he senses where I am headed with my defense. If we wait until trial I’m afraid his Mediterranean temper will cause him to embellish upon whatever evidence he claims to have. It would be like the Greek to add a few fictional flourishes to his story, a parting shot once he knows I’ve discovered his fight with Ben, that I know about Ben’s threat to go to the state bar.

We pass time, a little courthouse gossip, as Delia sets up her machine and feeds in a narrow stack of fan-folded paper for her stenographic notes. I offer her coffee. She declines, and we run dry of conversational items.

A few minutes later Nelson arrives. I have noticed him for this statement. He is here to protect his interests, to ensure that I don’t put words in the mouth of his witness.

“Where’s Mr. Skarpellos?” he says.

I tell him that he’s apparently not used to dealing with Tony.

He shakes his head, a little curious at my comment.

“Tony’s life is a chronicle of wasted time,” I tell him, “other people’s.” It’s true. It’s Skarpellos’s way of enforcing the social pecking order. He would make the pope wait.

Delia’s beginning to fume. She’s watching the clock. Court reporters are paid a per diem by the half-day, the good ones making more than the lawyers who hire them. But Delia doesn’t like downtime. There are too many notes awaiting transcription back in the office.

The Greek is now forty minutes late. The silence is heavy in my office.

Finally I hear voices in the outer reception area, Tony’s hearty bluster, partying with Dee. We wait. He doesn’t enter. There are a few high giggles. It seems Dee is busy being entertained. Nelson’s looking at me, as if to ask who’s running this circus. I’m about to get up and chew some ass, when finally Dee tears herself away.

“They’re all waiting for you in the office. This way,” she says, as if he could get lost between her desk and the door.

Dee announces him, then is gone, like a shadow at dusk. I call her back in to see if anybody wants coffee. She informs me that we’re out. Seems Dee has forgotten to order from the coffee service. I’d send her out, to the deli across the street, but knowing Dee I wouldn’t see her for days.

“Wonderful,” I say. “Why don’t you cover the phone.”

Tony’s shaking hands all around, like some glad-handing union president. His smile is broad, mendacious. There’s not the slightest apology for keeping us waiting, no sheepishness for his last-minute role in the state’s case, this despite the fact of his firm’s early association in Talia’s defense, something I intend to probe him about.

We get through the introductions. Tony stands looking down at the hard wooden chair I’ve placed in front of my desk, catercorner to the reporter and her little machine.

“The hot seat?” He looks at me. “You might take a little pity on an old man with hemorrhoids,” he says.

“I thought they were knowledge bumps,” I tell him.

There are a few chuckles at Tony’s expense.

Nelson is on his feet. He’d like a minute or two outside alone with his witness.

“Fine,” I tell him. “I’ll have my secretary powder her nose.” This is one of the few things Dee does well.

It takes several minutes, the conference between Nelson and Skarpellos. When they return, Tony has all the appearances of a trip to the woodshed. The levity has been sucked from his sails.

He takes the empty chair.

“Are we ready?” I ask.

“We’re ready,” says Nelson.

He opens a notebook on his lap and leans forward. Harry will be penning our notes, which we will use until the certified transcript is returned.

I open the record, stating my name and the date, location, and purpose of the meeting. I identify those in attendance, except for Skarpellos, whom I ask to identify himself and spell his last name for the record. We move quickly through the initial background information, the fact that Tony and Ben were partners, setting the stage, the history of their relationship.

Nelson sits silently jotting a few notes. It is unlikely that he will ask any questions of his own, except to undo damage. He has access to the witness whenever he wants and would not wish to open an issue we have not thought of.

“Mr. Skarpellos, how is it that you came to be identified as a witness by the state in this case?”

He looks at Nelson, as if to get clearance.

“The police asked me questions,” he says. “I have to answer.” He shrugs his shoulders a little, like “What’s a guy gonna do?”

“And when did they ask you these questions?”

“Oh gee, let me think,” he says, like this is lost in antiquity. “Sometime after Ben was killed.”

I look at Nelson, who smiles at the obvious.

“How long after Ben was killed?”

“Let me think.”

“Maybe I can help,” says Nelson. “Mr. Skarpellos was told of the victim’s death the following day. Then we interviewed Mr. Skarpellos on October twenty-seventh, a week after the murder, the death of Mr. Potter. There was another interview, three weeks ago.”

I direct a further question to Nelson: “As long as you’re being helpful, I take it there were no sworn statements by this witness following either interview?”

“That’s correct. Just police reports. You have copies of those, I believe.” Nelson smiles. Nothing reduced to writing that can be discovered by the defense.

“Let’s focus on the first interview, the one back in October of last year. Do you recall what you told the police at that time?”

“It was pretty general. They asked me if I was aware of any reason why Ben, Mr. Potter, might want to kill himself. They were still operating on the assumption that it was suicide.”

“And what did you tell them?”

“I told them no, I couldn’t. I never believed Ben killed himself.”

“Why is that?”

“He just wouldn’t, that’s all.”

“Intuition?”

“Call it that if you want.”

“What else did they ask you at that time, in October?”

“They wanted to know if I saw or heard anything the night he died.”

“Did you?”

“I wasn’t around. I was out of town, in Oakland, at a basketball game with a friend.”

“Anything else, during that first interview?”

He thinks for a moment. “That’s about it.”

“Fine, let’s turn our attention to the more recent interview, the one three weeks ago. Did the police come to you?”

“They came to my office, if that’s what you mean.”

“Just a second,” Nelson breaks in. “If we can confer for a moment.”

We go off the record. Nelson cups a hand to Tony’s ear, whispers, then backs away. Tony’s eyes when they come back to me are mean little slits.

“I’m confused,” he says. “The police did come to my office. But I called them.”

Confused, my ass. Nelson is keeping him honest. “You called them?”

“Yes.”

“Why did you call them?”

“I remembered something, something I thought might be important.”

“What was that?”

“Before he died, Ben told me that he was planning on divorcing his wife, Talia.”

“Just like that,” I say.

“Well, it wasn’t just like that. I mean, we were talking about something else. Business or something, his nomination to the court, I can’t remember exactly. And he told me that he was gonna have to get a good divorce lawyer.”

“Why did he tell you this?”

“We were partners. We didn’t have a lot of secrets from one another. I knew his marriage wasn’t real happy.”

“And how did you come to know that?”

“Well, hell, you know.”

“No, tell me.”

“Everybody knows Talia was sleepin’ around.”

My blood is beginning to boil. “So it was things you heard?”

“Yeah, things I heard.”

“Gossip.”

“Call it whatever you want.”

“What else would you call it?”

“I don’t know. All I know is that he wanted a divorce.”

“When did you have this conversation with Mr. Potter?”

“It was in early summer. I think it was in June.”

“And when the police spoke to you immediately following Ben’s death, in October, you didn’t think to tell them about it then?”

“No.”

“A man’s contemplating divorce, has a terrible married life by your own accounts, and when the police ask you if you can think of any reason why he might commit suicide, you tell them you can’t think of a reason?”

“I wasn’t thinking,” he says.

“Obviously. What made you think that this information was suddenly important three weeks ago?”

“I don’t know.”

“Could it have anything to do with the fact that by that time Mrs. Potter had been bound over for trial, charged with murdering her husband?”

“Maybe,” he says. “That had a bearing.”

“So this information wasn’t important when Mr. Potter was believed to have killed himself, and only became important when it was believed that someone else killed him?”

“Well. I don’t know.”

I leave it alone. Food for the jury.

“Mr. Skarpellos, did you tell the police that you participated in early discussions with the defense team, with Mr. Cheetam and myself, during Mrs. Potter’s preliminary hearing?”

“He was never of counsel.” Nelson has pitched in. “You can argue it at the time of trial, but our view is that Mr. Skarpellos never held an attorney-client relationship with the defendant. He advanced fees and assisted her in obtaining counsel, that’s all. He never represented her.”

Nelson, I think, has the better argument on this point. Trying to bar the Greek from testifying on these grounds is probably a long shot. He was careful to stay far enough in the wings, to make me think now that some active planning was going on behind those bushy eyebrows.

“On the question of divorce, did you have one conversation with Mr. Potter, more than one, how many?”

“One,” he says. Skarpellos is accomplished at this. Tony knows that when it comes to lying, the smart ones keep it narrow and tight. It limits the chances for contradiction.

“During this one conversation did he tell you anything else bearing on his marital life?”

He’s looking at me, searching, trying to figure out what I’m probing for. Nelson I think knows, but he can’t help him. Battles are won with little advances.

“That he was unhappy. That he wanted out of the marriage.”

“Had he taken any steps to accomplish this at the time that you talked to him, hired a lawyer, filed any papers?” I feint, bob, and weave, moving away from the objective for a moment. This one I already know the answer to.

“No. If he did, he didn’t tell me.”

“And you don’t know whether he took any overt actions after that date, until the time of his death, to end his marriage-is that true?”

“Yes,” he says. “That’s true. I don’t know.”

“So all he told you was that he was planning to divorce his wife? That’s the total sum and substance of your conversation with him on the subject, is that correct?”

Skarpellos is looking at Nelson for help. He senses that he’s reaching a precipice, but like a man in the dark, he’s not sure where it is.

“That is the sum and substance of your conversation with Mr. Potter on the subject of his divorce, is that right?” I repeat the question.

“Right,” he says.

“Then from your testimony you don’t know whether he ever told his wife, Talia Potter, of his plans for divorce, isn’t that true?”

It’s too late. Skarpellos has slipped off the edge. A fortuitous recollection now would strain credibility to the breaking point.

“No,” he says. The linchpin. I breathe a little easier. Nelson has no way of proving that Talia knew of these supposed plans for divorce. You don’t kill to prevent things you don’t know about. His motive is hobbling on three legs.

“But she might have known,” says Skarpellos.

It’s too late and Nelson knows it. His expression has fallen like a dark angel.

“But you don’t know that she knew?”

“You have to assume that a husband would tell his wife, if he’s planning on divorcing her.”

“We’re not here to assume anything, but to find out what you know and when you knew it.”

To this I get two dark Mediterranean slits. The proverbial “if looks could kill.”

“Are we finished?” he asks.

I look over at Nelson, who waves me off.

“I think we’re done.”

“Good,” he says.

The court reporter retrieves her notes and begins to close up her machine.

Skarpellos is still burning inside. I can see smoke around the ears.

Time to put the lance in, to see what’s bubbling under the surface.

“Tony,” I say. “Tell me. How much do you stand to inherit from Ben’s estate if Talia takes the fall in this thing?”

His head snaps toward me. He’s out of his chair. Nelson’s got him by an arm. Harry’s got a hammerlock.

“You little shit,” he says. His tone has all the acid of vinegar. “You can’t believe,” he says, “that Ben failed at even one thing in life?”

Nelson’s trying to pull him toward the door. The Greek is giving more than passive resistance.

“Oh, I can believe that,” I say. “I just can’t believe that he would take someone like you into his confidence.”

This spawns two lashing arms. The Greek drags Nelson and Harry toward the other side of my desk. Delia’s guarding her stenograph machine, blocking Skarpellos with her body. She’s earning her per diem.

“Sonofabitch,” he says. “Open the record. I’ll give you an earload, you prick.”

“Shut up, the two of you.” Nelson’s got his hands full trying to keep him off of me.

I have no intention of going back on the record. Despite the common perception, a deposition is no exercise in truth finding. It’s an effort to redraw the facts in terms most favorable to your side. And for the moment I have what I want, a concession that the Greek can’t put Talia and Ben in the same room talking about divorce. Skarpellos has gone ballistic, perhaps more truth than I want on paper. I take little mental notes of what he says, and gauge the temperature of his combustion for future reference.

“You always put him on a fuckin’ pedestal.” Tony’s screaming about Ben. A lifetime of envy spilling all over my desk. “Well, he wasn’t perfect. He had a fucked-up marriage. He was porkin’ one of the girls in the office. Didn’t know that, did ya, asshole.”

They’re making headway toward the door. Nelson and Harry have him leaning backward. Harry’s got the door open, his knee wedged against it for leverage as he pushes the Greek through.

“He was fuckin’ the hired help. Put it on the record, why don’t you.” Skarpellos is ranting like some animal in heat. “Put that in your damn statement, why don’t ya?”

I can see Dee at her desk, looking at me, round-eyed, wondering what I’ve done to this witty and wonderful man.

Nelson has wrestled him toward the outer door. Skarpellos breaks free, but doesn’t come back at me. He’s regained enough composure, now looking around, coming down to earth, realizing that he’s the center of attention for four other people in this office, a little nonplussed. He’s flushed, his face red like a beet. He struggles to pump up a little dignity, straightens his coat. One panel is ripped at the seam on the back by the shoulder blade, something from the Incredible Hulk. Italian worsted and he’s wearing it sideways. He jerks on his tie. A lost cause.

Tony looks at me through the open door. “I’ll see ya in court, asshole.”

“Looking forward to it, Tony.”

He’s out the door.

Nelson looks at me. I know what’s going through his mind: a witness he can’t control, whether to put Skarpellos on the stand at all. But that ship has now sailed. If he doesn’t call the Greek, I will.