Compelling Evidence

CHAPTER 29

Jimmy Lama’s run up a dead end looking for Susan Hawley. She has disappeared. He has his finger in my face, spitting expletives at me on the steps in front of the courthouse, for the world to see.

It’s a chance passing. Lama’s coming out as I’m going in. Nikki is with me, taking off the morning from work to see the opening shots in Talia’s trial. Purely a commercial interest, she says.

“Where is she, hotshot? Where ya hiding her?” Lama’s calling my client every vile name he can think of and invents a few of his own, applying them to me, loud enough for a few passersby on the street to hear.

Hawley has given him the slip, and me too, pulled out of her apartment with no forwarding address or phone number. Immunity does funny things to different people. In the case of Susan Hawley it has given her an aggravated case of wanderlust.

If Lama has ambitions for advancement based on his part in “boinkgate,” Hawley’s disappearance has put a big hole in his plans. He is being hammered by the prosecutors to find her, before they must dismiss. It seems that without Hawley, they have no case, and Skarpellos has no alibi.

I’ve put Nikki behind me, with Lama still in my face.

He’s working his way through the cop’s version of Gray’s Anatomy, calling me names I don’t recognize.

Finally he breaks off this tirade and frames what, for Lama, is a coherent question.

“Where is the cheap fuck?” he says.

I don’t think this deserves an answer, even if I had one, and I begin to move around him up the steps, keeping myself between Lama and Nikki, shielding her as best I can from this spray of offense.

“You gettin’ a little on the side?” he says. “We know she’s a good fuck, but we only need her for an hour. I promise we’ll give her back when we’re finished.”

This stops me dead in my tracks, and for a fleeting instant I consider the curb a few feet away and the buses rolling by at a good clip. I would be doing humanity a vast service. But Nikki’s tugging on my arm.

“You really should get help for that,” I tell him.

“What?” he says.

“Professional assistance to keep the foam from dribbling down your chin.”

We are pitched, our necks bowed like two bucks ready to do primordial battle.

From the corner of my eye I see a figure approaching; it grabs Nikki by the arm and tugs her up the steps. It is George Cooper, come to the rescue, removing my wife from this ugly scene.

“We’ll subpoena her ass,” says Lama, “and serve it on you.”

“Spit is still spit,” I tell him.

With this he pulls up close, an inch from my face, without touching me. “One day,” he says. “You’ve got one day to produce her. Blow it and I’ll kick your ass.”

Coop is back down the steps, leaving Nikki on higher ground.

“Jimmy,” he says, his hand cuffing the back of Lama’s neck, where the hair bristles. “This is not the place.” Coop winks at me, playing a little matador with this mad bull, giving the two of us an honorable path of retreat. He moves Lama a few inches back toward the sidewalk, where the two talk quietly. This is Coop the peacemaker. One thing you always like about George Cooper is that he never checks his friendship at the courthouse steps.

Lama shrugs Coop’s hand off his shoulder. Then I get the back of Lama’s coat, and he is hoofing it toward the light on the corner.

Coop is back to me now. “You don’t want to mess with that one,” he says. Coop’s eyes are dark and serious. “Jimmy Lama’s big trouble.”

I am shaking with anger. Cooper and I move to Nikki waiting at the top of the steps. She’s looking at Lama in the distance.

“Lovely man,” says Nikki.

“Yeah, a real prince,” says Coop.

I’m burning to the tips of my ears.

Captain Mason Canard had been up and down, in and out, in the flash of an eye during the preliminary hearing, a seeming afterthought sandwiched as he was between the evidence tech and ballistics. With only O’Shaunasy to judge the evidence in the prelim, Nelson’s emphasis and order of presentation were geared to the technical legal eye.

Now, with twelve new scorekeepers in the box, Canard has been put in the lineup in the leadoff position.

He is of medium height, slender, well manicured, and well dressed. His worsted suit hangs nicely on his lean frame. The thinning silver-gray hair is combed back and off to one side, in the style reminiscent of British royalty in the thirties. If personal appearance counts for much, it is easy to see how Mason Canard rose to a position of authority in the department, and why Nelson has juggled his lineup in front of the jury. The cardinal rule: Lead with strength.

Nelson has the witness state his name for the record and launches into his background.

Canard is a thirty-year veteran of the police department, the last twelve heading up homicide’s special section, a group of elite detectives who take the cream of the cases. Given the social weight of the victim, and the early interest of federal authorities in the crime, Canard took charge of the scene in Ben’s office along with Nelson the night they found the body. He has been dubbed the investigating officer in charge, delegating most of the spadework to subordinates.

“You were not the first on the scene, then, Detective Canard?”

“No, when I arrived there were already three patrol cars, and the EMTs, the emergency medical technicians, had arrived. There were also a few other people, employees in the building.”

“But you took charge of the scene.”

“That’s correct. I was the senior law enforcement officer present.”

Nelson then takes the jury on a verbal tour of the procedures used by police to secure the building, to ensure that any evidence was well preserved, pristine.

According to Canard there was a veritable parade of yellow tape and positioned guards, all with an eye toward sealing every entrance and exit of the building.

“Do you know who discovered the body?”

There are no surprises here. Canard identifies Willie Hampton, the young janitor.

“Did you personally question Mr. Hampton and the other officers to determine if anything had been moved or disturbed at the scene before your arrival?”

“I did. I was assured that the victim and his physical surroundings were precisely as they had been discovered by Mr. Hampton.”

“Did you supervise the taking of photographs at the scene?”

“I did.”

Nelson retreats to the counsel table, where Meeks hands him a large manila envelope. He has been heading here with this witness from the start. A little gore for the jury.

He pulls out three sets of photographic prints, each fastened at the top by a large spring clip. He hands one of these to me and another to the bailiff for delivery to Acosta.

Talia is at my shoulder, all eyes. I have seen most of these before, delivered during discovery, but I’ve not given Talia the benefit of a preview. It would not do, before the jury, to have her view these scenes of carnage with seeming insensibility.

The first is a full shot of the office from the door, with a wide-angle lens, a little too far back for any real detail. It shows Ben’s desk, some disarray, papers on the floor, and his chair behind it, canted at an angle away from the camera.

I take off the clip and go on to the next.

This is a grisly eight-by-ten, a glossy color print, a close-up of Ben, from the top of the desk up-muted shades of congealed blood, the color of rust.

Talia sucks some heavy air, her fingers to her mouth, an expression of stark horror. It is all I could have hoped for. I turn on some tender care for my client, an arm on her shoulder, an encouraging word in her ear. While these concerns are real, it is also vital in a death case to humanize the defendant before the jury at every stage, to demonstrate that she has real emotions. It is why so few women suffer the death penalty, not that they are the fairer, more fragile sex, but that they are capable of exhibiting their emotions in open court. Unlike men, they are freed by social convention to flood the court in tears. Juries don’t like to kill real people, only the callous, those who utterly lack any sense of feeling or remorse.

I flip to the next photo. Another close-up, head and shoulder shot. These are what Nelson wants, to enflame the jury. There is no real semblance of Ben in this photo, but the image of a distorted and disfigured head, a picture of what the emergency room docs would call “massive tissue loss”-a vast portion of the top of his head gone, facial features stretched and distorted like some torn rubber mask.

Talia’s getting sick.

“Your Honor, could we have a moment.” She’s up and moving, with the help of one of her female friends, toward the door and the ladies’ room. She has set the stage for me.

“Your Honor, I would request a conference in chambers.”

Acosta goes off the record.

With the defendant gone, the court has little else to do. Acosta, Nelson, and I retire to the back, along with the court reporter, packing her stenograph. I leave Harry at the table to entertain Talia when she returns, to keep her from commiserating with Tod.

The door is closed. Acosta’s looking at me.

“Well, Mr. Madriani, the jury’s off on another coffee break. If we keep meeting like this, this trial’s going to bust their kidneys.”

I tap the copies of the photographs in my hand. “Your Honor, the defense will stipulate that the victim is dead.”

He laughs a little at this.

“Too many photographs?” he says. He’s nodding his head like he agrees with the obvious answer to his own question.

Nelson has done what every good trial lawyer does when dealing with pictures, produce them in abundance, offer thirty and secretly hope to get three.

“It’s not just the number,” I tell him, “but the content of some of these photographs that troubles me. Not terribly probative and highly prejudicial,” I say.

Nelson is the picture of exasperation.

“Your Honor, it’s not a coffee klatch. It’s the crime scene of a brutal murder. If the defendant wants nice pictures, she should go to a wedding.”

In this state judges have broad latitude regarding the admissibility of evidence. Under provisions of the evidence code, cumulative layers of documents all tending to prove the same argument may be distilled down to a single document or a couple, to save time.

More to the point, evidence which may be of marginal value in proving a matter in the case, but which is highly inflammatory, tending to prejudice the jury, may be excluded entirely. On this the judge is God.

“Even the most fair-minded jury,” I tell Acosta, “is not likely to look with kindness on a defendant charged with such brutality.”

I remind him that these photographs fail in all respects to establish any link between my client and the crime in question.

“Let me see them,” he says. Acosta’s left his own copies on the bench. I give him mine.

He flashes the wide-angle at Nelson, little detail and a lot of office furniture. “If you want crime scene, this one looks good,” he says.

He starts making a stack with the other close-ups, all facedown on his desk. He finds another, a picture of the shotgun lying on the floor, just Ben’s shod foot in a corner of the shot. “This one’s OK,” he says. He’s toying with the next. A hard close-up, a little blood, but so far the cleanest of the bunch.

Nelson’s fuming. “One picture of the victim would be nice,” he says. “So they can remember it wasn’t a victimless crime.”

Acosta looks at him with mean eyes. He drops the picture onto the stack of rejects, a victim of Nelson’s sarcasm and bad timing.

Back out before the jury, and Nelson has had his wish list of pictures butchered by the Coconut, though Acosta has covered his bets. He’s severely limited the photographs the state may use at this point in the trial, but left open the use of other pictures if the state establishes a compelling nexus between the defendant and the crime.

Talia’s in her seat, fragile, a gray pallor in her cheeks, holding her stomach with one hand. I think she’s lost her breakfast.

From a stack of twenty-six prints, Nelson has only eight left to show Canard for purposes of identification. These are all relatively harmless, long-distance shots of the office, points where the killer may have come and gone from the building, a lot of little exit signs, a sanitized album. They are quickly identified by the witness and marked.

“Your Honor, the people would move the remaining photographs into evidence.” Nelson will take what he can get, at least for the time being.

“Any objection, Mr. Madriani?”

“None, Your Honor.”

The pictures start filtering through the jury box, being passed from hand to hand. One of the older women tries to adjust her glasses to get the detail on the wide-angle. For this she will need a magnifying glass, I think.

Nelson and Canard do a few more preliminaries. The witness identifies the shotgun found at the scene, the twelve-gauge Bernardelli over-and-under. Then Nelson turns to a more pressing agenda.

“Detective Canard, did you have occasion to interview or talk with the defendant on the night of the murder?”

“Objection, Your Honor. The question assumes facts not in evidence.”

“Excuse me,” says Nelson. “Detective, did you have occasion to talk to the defendant the night that Mr. Potter died?”

“I did.”

“How did that interview come about?”

Canard explains how a radio car was dispatched to Ben’s house, but that no one was home. The patrol officer was ordered to wait at the residence until someone, any family member or friend, arrived. Then he was to radio Canard, who would drive out and make the overtures to the family. Except in an emergency where the victim was lingering, this was standard procedure in the department, he says. He tells the court that Talia arrived home about ten P.M. and he immediately left Ben’s office and went to the house.

“That was the first contact that you had with the defendant, Talia Potter?”

“It was.”

Nelson is slow, methodical on this, developing each question, setting a foundation of stone.

“Did you have occasion to inform the defendant that her husband was dead?”

“I did.”

“To your knowledge, had she been told previously by anyone else?”

“No,” Canard says. “Our officer at the house had express instructions not to contact the family.”

“Can you tell the jury, when you informed the defendant, Talia Potter, that her husband was dead, what was her reaction?”

Canard takes on a more thoughtful expression. “She took it rather casually,” he says.

“Casually?”

“Yes, no outward emotion,” says Canard.

“No tears? The defendant didn’t break down and cry?”

“Not immediately,” he says.

“She waited awhile?”

“Objection, Your Honor. Leading and suggestive. The district attorney is trying to put words into the mouth of the witness.”

“Sustained.”

“What did the witness say when you told her that her husband was dead?”

“She asked how it had happened.”

“What did you tell her?”

“I told her he died as a result of a gunshot wound, what appeared at that time to have been a possible suicide.”

“And what was her reaction to this?”

“She didn’t have much reaction. It was almost like she might have expected it.”

“Objection, Your Honor. Move to strike the second part of the answer as unresponsive to the question, speculative,” I say.

“Sustained. The witness is advised to confine himself to the questions asked.” Acosta’s looking down his nose at Canard.

“The reporter will strike the second part of the witness’s response. The jury will disregard the opinions of the witness concerning what the defendant might or might not have expected. This is not evidence,” he says.

“When you told her that her husband might have committed suicide, did the defendant start to cry at that time?”

“No,” he says.

Nelson’s trying to make of this lack of emotion something it is not, that Talia knew more than she did, that she knew Ben was already dead when she arrived home.

“In fact did she cry at any time in your presence during the initial interview at the victim’s residence?”

“No,” says Canard.

“During that interview did you ask the defendant where she had been that evening?”

“I did,” he says.

This will all come in. Talia, when she talked to Canard, was not in custodial interrogation, not the focus of suspicion. There was no need to Mirandize her, no way I can keep her alibi away from the jury, the false information she gave the police.

“And what did she tell you?”

“She said that she had been on a business trip, having left her office earlier that day and traveled to Vacaville to inspect, or I think she said ‘tour,’ some property. A house that was for sale.”

“The defendant was in the real estate business?”

“As far as I know, that’s correct.”

“According to the information given to you by the defendant, she went nowhere else, only to Vacaville to tour this property and back home?”

“That’s correct.”

“Detective Canard, can you tell us how far it is, in miles, between Capitol City and Vacaville, roughly?”

“About fifty miles, to the property in question. It’s out of town a little ways.”

“You’ve checked this?”

“On my odometer,” he says.

“How long would it take to drive that distance and back, in your estimation, doing the speed limit?”

“Two hours, less perhaps, depending on traffic.”

“Did you ask the defendant what time she left on this trip?”

“She told us it was about four o’clock, four P.M.,” he says.

“So it was possible that the defendant, if she left at four in the afternoon, could have driven to the property in Vacaville, toured it, perhaps briefly, and returned to Capitol City by, say, what”-Nelson shrugs-“six-thirty in the evening?”

“Possible,” says Canard.

“Detective Canard, did you or your staff take any action to independently verify the whereabouts of the defendant on the day in question?”

“We did. We obtained copies of the defendant’s credit card statements for the period in question and looked for gasoline purchases, restaurant purchases, items she might have purchased while in transit between Capitol City and Vacaville.”

“And what did you find?”

“We found no purchases made by the defendant by credit card between Capitol City and Vacaville on that date.”

“Did you make any other inquiries?”

“We subpoenaed checking account records belonging to the defendant, to see if she might have drawn any checks to establishments along that route on the date in question.”

“Did you find any?”

“No.”

Talia’s squirming next to me in the chair. She leans over toward me.

“They know,” she says.

I smile at her, for the benefit of the jury, like she has just said something amusing, a little wit to take the edge off the monotony. Then I nudge her with my knee, hard under the table. If she is acquitted, Talia could still be bruised for life.

“What other action, if any, did you take to verify this alibi?”

“According to the defendant she gained admission to the property in Vacaville by use of a realtor’s lockbox. The combination was given to her by the listing real estate agent in Vacaville. We dusted that box for prints, to see if we could identify the defendant’s fingerprints on the box.”

“Did you find her fingerprints on the lockbox?”

“No, we did not.”

“So you were unable to establish any independent verification that the defendant was in fact in Vacaville on the date that Ben Potter died, is that correct?”

“That’s correct.”

This is the high-water mark of Canard’s testimony, a piece in a mosaic, a flood of circumstances from which the jury is to infer that Talia was not surprised by Ben’s death because she had participated in it, that she in fact lied to the police concerning her whereabouts, that she possessed the opportunity to commit murder.

Nelson looks at me. “Your witness.”

For a lawyer, in trial there is nothing more difficult than dealing with a lie by your client to the authorities. I cannot put Talia on the stand to refute this. To do so would be to suborn perjury. I am left to nibble around the edges at the inferences and conclusions drawn by the cops based on this erroneous information.

“Officer Canard …”

“Detective,” he says, a little shot for dominance in the eyes of the jury.

I’m rising, moving toward him in the box.

“Excuse me. Detective Canard. How many homicide cases have you investigated in your career?”

“I don’t know, exactly.”

“A hundred?”

“More,” he says.

“Two hundred?”

“I don’t know.” Canard is wary, not sure of where I am going with this.

“A good number, I assume, enough cases that you would be considered experienced, a veteran homicide investigator?”

“Yes,” he says, satisfied that such abstractions are safe ground.

“So it’s safe to say that you’ve dealt with a good number of cases involving grieving family members, survivors of victims?”

“Yes.”

“How many do you think, a hundred such survivors?”

“I don’t know.” We’re back to numbers and Canard is taking a dive.

“A guess?” I say.

“Objection.” Nelson keeps his seat. “The witness has answered the question.”

“Sustained.”

“You’ve been heading up homicide’s special section for twelve years, is that correct?”

“Yes.”

“I assume that in that twelve-year period you would have had numerous occasions when it would have been necessary for you to bring bad tidings to survivors of crime victims, to tell a wife or child that a husband or father had been killed? Is that true?”

“The worst part of the job,” he says.

“I assume that some of these survivors might go into a state of shock on hearing this news?”

“I suppose,” he says.

“Do you know, detective, the physical symptoms of shock? For example, do you know whether a family member who is stunned to a state of shock by such horrible news, whether that family member would cry? Whether there would be instant tears at the moment they hear the news?”

“Objection, Your Honor. The witness is not a physician.”

“Sustained.”

I have what I want. I’ve planted the seed with the jury. I shift gears-from speculation to experience.

“Detective Canard, in all the homicide cases in your long career, is it your experience, is it your testimony, that in delivering news of some tragedy, the death of a close family member, that the survivor always and invariably, without exceptions, breaks down in tears upon hearing this news?”

One of the axioms of cross-examination-draw the question in absolutes, push it to the brink of the absurd, and over.

“Not always,” he says.

“So there have been some people in your experience as a homicide investigator who when told of the death of a loved one, actually did not immediately begin to cry?”

“That’s true,” he says. Anything else would bring laughter from the jury.

“And have you always and invariably concluded from this that the survivor who does not instantaneously break down in tears somehow is implicated in the death of the victim? Do you always assume that the person who doesn’t cry is a murderer?”

“Objection, Your Honor. The defense is misconstruing the testimony of the witness.”

“I think not, Your Honor. If the absence of instantaneous tears on the part of Talia Potter was not being offered to this jury for the sole and express purpose of implying her guilt in murder, I would like the district attorney to tell us for what purpose it was offered.”

Nelson is motioning with his hands, making faces, buying time to think.

“To show the defendant’s state of mind,” he says.

“Exactly,” I say, “to imply by any means, fair or foul, that she had a guilty state of mind.”

“It’s a fair question. The witness will answer it,” says Acosta.

Canard can’t remember the question.

“I’ll restate it,” I tell him. “Do you always assume that the person who doesn’t cry is a murderer?”

“No,” he says.

I look over at Nelson. I can tell he is beginning to wonder if he has not picked up the dirty end of this thing he has tried to bludgeon us with.

“So then in fact there is no theorem of police science, no reliable formula of law enforcement, that allows you to take a cup and measure the production of a person’s tear ducts in order to determine whether they are responsible for the death of their loved one?”

“Your Honor, I must object.” Nelson’s busy trying to break my rhythm.

Canard is a bundle of resentment sitting in the box.

Before the judge can rule on Nelson’s objection, Canard responds.

“No,” his teeth clenched.

Acosta lets the objection go by, no grounds being stated.

“So it is entirely possible, based on your experience as a seasoned homicide investigator, that the reason my client Talia Potter did not immediately break down in tears upon hearing the news of her husband’s death had absolutely nothing to do with any theory that she might be implicated in his death? Isn’t that correct?”

“I suppose,” he says.

“That it could well have been due to other factors, the shock that this news inflicted on her system, the variations in individual emotional makeup, all those things that, not being a physician, you wouldn’t know about?”

I look at Nelson, who’s trying to put a face on it, nonchalant, sprawled in his chair, playing with his pencil.

“I don’t know,” says Canard. “I suppose.”

“Fine,” I say. I allow a breather, a little punctuation to let the jury know I’m moving on to other subjects, that I consider this campaign finished.

Now I turn on the charm, easing back, signaling Canard that maybe the worst is over.

I ease into the next phase and get a quick admission. Canard’s tired of being beaten on. He concedes that it could take considerably longer than two hours to travel between Capitol City and Vacaville and back again if any portion of the trip was during the rush hour. In doing so he gives up any plausible argument that this would have been possible given the time of death in this case, about seven in the evening. Nelson scratches another point from his score card.

I ask Canard whether in the inventory of the personal effects found on the victim the police found his keys-to his car, the office, and his house. He confirms that these were on the body when it was discovered in the office.

“Detective Canard, you testified earlier that during the course of your investigation you examined the defendant’s gasoline credit card statement as a means of verifying her alibi, her trip to Vacaville?”

“That’s correct.”

“You also testified that the distance between Capitol City and the property which the defendant toured in Vacaville was approximately fifty miles, making for a rough hundred-mile round-trip. Is that correct?”

“Yes.”

“Do you know what kind of vehicle the defendant was driving on the day in question, the day her husband died?”

“I believe it was a Mercedes, the small two-door sports coup. Five hundred SL,” he says.

“During the course of your investigation did you happen to check the capacity of the fuel tank on that vehicle?”

“No,” he says.

“Would it surprise you to learn that the model will hold twenty-one point one gallons of fuel, that it gets seventeen miles to the gallon on the highway, that it has a range of over three hundred fifty miles, that it could have traveled between Capitol City and Vacaville more than seven times without refueling?”

“If you say so,” he says.

“But you didn’t check these facts?”

“No,” he says.

“So why are you surprised that you didn’t find gasoline credit card slips for the trip in question?”

“I didn’t say I was surprised, only that we looked.”

“I see,” I tell him, “checking out a real long shot, were you?”

He doesn’t answer this. I don’t expect him to. Some of the jurors are smiling in the box.

Like a trip to the dentist, this is not for Canard to enjoy.

I ask him how many days elapsed before they dusted the lockbox for Talia’s prints. He doesn’t know, but concedes it was several.

I ask him if he has any idea how many real estate agents might have fingered that box in the intervening period. Again he has no idea.

“Did you bother to ask the defendant whether she stopped to eat during this trip, either coming or going?”

“No,” he says.

“I see. It was easier to come here and tell this jury that you tried to verify the defendant’s alibi but could not, is that it, Detective Canard?”

“No,” he says. “We did an up-front job. We tried to verify it and couldn’t.”

“But you never asked the defendant whether she stopped to eat, maybe paid cash for a meal, or maybe she wasn’t hungry, maybe she wanted to wait until she got home to have a late dinner with her husband? You never asked her, did you? You were too busy assuming that because she didn’t cry on command she was guilty of murder.”

“No,” he says.

“Objection, Your Honor. Counsel’s badgering the witness.”

Canard’s stopped trying to ward off the blows, to cover up, now he just wants out. The myopia of their investigation is starting to show, the price a prosecutor pays when under pressure to nail someone in a notorious case. It is my first turn playing spin doctor, beating on the theme of the state’s unseeing obsession with Talia as the only possible perpetrator. And from the expressions I can see on the jurors’ faces, some of them are listening to the music.