Compelling Evidence

CHAPTER 33

A hostile judge can kill you in a thousand ways. Today Acosta is giving us a demonstration, a tour in the arbitrary exercise of authority.

He has denied Harry’s motion for a mistrial based on Eli Walker’s column. Speaking in cryptic terms, never mentioning Walker by name or the article by its headline, Acosta generalizes about adverse pretrial publicity in ways that make the listener think he is talking in mere abstractions.

He hints to jurors that the defendant has questioned their integrity, raised issue as to whether some of them may have seen certain news articles concerning the trial, this in direct violation of the court’s earlier admonitions. He asks if this is so, to a chorus of shaking heads from the jury box and irate expressions directed at Talia. Making it a team effort, they-the judge, the jury, and the prosecution-against us, Acosta then states his confidence, that he is personally satisfied this is not the case, that these are upstanding jurors who take their oath of service seriously.

It is a shameless display in the naked abuse of power, a grim spectacle, I fear a preview of things to come.

Talia is clearly shaken by these antics, her eyes darting first to me, then to Harry, frantic that we should do something to end this. There is nothing so unnerving to a defendant in a criminal case as the specter of authority turned against him in the form of a rogue judge. It is taking a toll on her; I can feel the tremble in her chair next to my own.

The Coconut takes every opportunity to slam the defense in rejecting the motion, characterizing it before the jury as “a stalling effort on the part of the defendant.”

I am up and down like a yo-yo-objecting to the characterizations of our motion and hammered back down to my seat by Acosta.

“Your Honor, we would request that the jury be polled, questioned individually, as to whether they have seen the news item in question.”

“Denied,” says Acosta. “Do you question the integrity of this panel?” he says. “You saw me ask them. To a man and woman, they denied having seen the article in question.”

They look at me, the beginnings of a seething mob, all except for Robert Rath, my alpha factor. He is an enigma. I sense that perhaps he knows or can guess what transpired behind closed doors in the judge’s chambers yesterday, that maybe he has seen Walker’s column.

“I must object, Your Honor, to the way this is being handled.”

“Now you question this court?” he says. “Is there no end to your arrogance, sir?”

In muted deferential terms I remind him that the court has a duty of inquiry, to assure a fair trial. I perfect this objection for the record, one eye on appeal.

“Your objection is noted,” he says, “now sit down.”

He turns to the prosecution, all creamy smiles. “Mr. Nelson, your next witness,” he says.

Like that, it is done, Walker’s column swept away, like bread crumbs brushed from the bench. We are left to wonder how many on the jury panel have seen this piece of work by Eli Walker, and what effect it may have. I study the expressions in the box, a sea of open hostility whipped to a froth by the court. If I had hoped to read their minds, to garner some sense of the impact of Walker’s piece, whether they still trust me, Acosta’s antics have made this impossible.

A somber-faced Coop is up next. I can tell that he is not looking forward to this. Nelson and he move through the preliminaries like Rogers and Astaire in the two-step. I stipulate to Coop’s qualifications as an expert witness. Nelson thanks me, and then moves a twenty-page curriculum vitae into evidence. I object on grounds that this is unnecessary, irrelevant, given our stipulation. Acosta overrules me and orders that copies of Coop’s resume be made for each juror. He may as well nail it on the courthouse door.

Coop’s performance is a repeat of his testimony in the preliminary hearing, nothing new or unexpected. He talks of lividity, the law of gravity and death, and the bullet fragment, the cause of death, lodged in the basal ganglion. He has pictures of this, a tiny bit of metal lost in hues of red and brown congealed blood, before it was extracted.

With Coop’s testimony Nelson quickly fixes the time of death, between seven P.M. and seven-ten P.M. Nelson is stacking the blocks of his closing argument. Coop tells jurors that Ben Potter was shot in the head with the small-caliber handgun, the body moved and the shotgun blast administered later in the office.

With this testimony and the evidence of Willie Hampton, the jurors can now see that an hour and fifteen minutes transpired between the shots, enough time to haul the body a considerable distance.

Nelson moves carefully through all of this, leading the jury by the hand through his theory of murder. He’s had Coop bring more photographs, a veritable album of revulsion. These are post mortem pictures, showing the tiny bullet fragment lodged at the base of the brain, more graphic shots of the distended face and fractured cranial vault after the shotgun had done its work. Nelson drops these on me and hands a separate set to the judge. He has Coop identify each and explain in vivid terms what is shown.

Coop tells the jury that a contact shot to the head with a shotgun, whether to the temple or in the mouth, will result in evisceration of large portions of the brain. The bulk of the pellets and the wad will exit in such cases.

“What makes shotgun wounds at close range so devastating,” he says, “is that virtually all of the kinetic energy of the round is transferred to the victim as part of the wounding effect. It is unlike a rifle, where the bullet may exit the victim, expending energy outside of the body.”

Coop holds up one of the larger photos for the jury to see, from a distance. “This type of wound inflicted to the mouth results in massive comminuted fractures of the skull and pulpification of the brain. Bursting ruptures of the head are the rule in such cases. You can see here,” he says, pointing with a pen to the picture, “the skull was largely fragmented. Parts of the cranial vault and a portion of both cerebral hemispheres were ejected from the head. The scalp suffered extensive laceration.”

There will be few jurors having heavy fare for lunch today.

This damage explains, he says, how the earlier bullet that caused death was so badly fragmented and lost. According to Coop, but for the little fragment, the authorities have never found that bullet.

While I would like to stop this, there is no way I can put an end to this graphic description of these wounds. I will try to block close observation of the photos by the jury, by keeping them out of evidence.

Coop fishes for another photograph from the stack until he finds what he wants.

“You can see here that this was an intraoral shot,” he says. “Soot is present on the palate, the tongue, here, here, and here, also on the lips, here.” He’s pointing with his pen. The more dauntless souls in the jury box are craning their necks to see.

“Stretchlike striae or superficial lacerations of the perioral skin and nasolabial folds are apparent, here. These are due to bulging of the face caused by rapidly expanding hot gases as the shotgun was fired.”

Whoever killed Ben may have been sloppy in his misdirection setting a scenario of suicide, but there is a clinical aspect to the administration of this shotgun blast, something I have not considered before.

Coop is finished with the pictures. Nelson moves to have them placed into evidence.

“Your Honor, we would object to the photographs, at least some of them,” I say. There are duplicates, several shots with only minor variations of angle, each taken at sundry distances from the corpse, but all far more graphic than anything Canard had offered. I itemize our objections, the prejudicial effect these will have on the jury, and single out three that I think are appropriate for use.

Acosta is paging through them, ignoring me for all intents. He looks to Nelson for opposing argument. The DA makes a half-baked effort, conceding by his body language and lack of enthusiasm that he will lose the vast number of these. He is finished.

The judge looks at me for the first time in this colloquy as if to emphasize what is to follow.

“Defendant’s objection is overruled,” he says. The entire bundle of photographs will go to the jury. Such is the discretion of the court, and its lesson in abuse.

There’s a trace of alarm registered in Coop’s expression. It shows itself in subtle but wide-eyed interest, as if now he is seeing for the first time the effect of the revelations in Eli Walker’s column, not on the jury so much as on this judge.

The pictures are marked for identification. They are making their way through the jury. Like wind rustling through a corn field, the photos leave their impression.

“Doctor.”

Nelson is back to him now.

“In your professional opinion, is it possible that a woman of the physical stature of the defendant, Talia Potter, could wield a shotgun in such a fashion as to inflict the massive head wound evidenced in this case?”

“Yes.” He says this without reservation.

Nelson is moving toward a roll, gaining his rhythm.

“In your opinion, and assuming that she had help from an accomplice, would it have been physically possible for a woman of the size and strength of this defendant to have inflicted the mortal wound, moved the body some distance, propped the victim in that chair, put the shotgun in his mouth, and fired it?”

“Certainly,” he says, “but your assumption is unnecessary.”

Nelson has his back to him and is moving away from the witness box when this comes. So I can see the expression on his face. Irritation, a little disbelief.

“Excuse me?”

“It is possible for the defendant to have done all of those things, without the assistance of an accomplice,” says Coop.

There is stirring in the courtroom. Those following the case have read for weeks the press speculation about a secret lover, an accomplice who aided and abetted Talia in murder. Now they are hearing for the first time from the state’s own medical expert that this may not be the case.

Jurors put the pictures down, aware that something important has been said, bringing their attention back to the witness.

“It is physically possible that a woman of the size and strength of the defendant could have committed this crime alone,” says Coop. He emphasizes the last word, for those jurors who may have been lost in the scenes of horror still wending their way through the box.

Nelson looks at him, his jaw slacked, clearly miffed by this departure from the script. They have gone over this testimony. Coop has crossed him, thrown him a curve.

“Yes, but surely, doctor”-Nelson pumps up his most ingratiating smile to extract a little concession from the witness-“surely it’s more plausible that the defendant would have had assistance in doing this?” He gropes. Maybe Coop has missed the signal.

“Is that a question?”

“Yes.”

“Then my answer would have to be no,” he says. “There is no physical evidence that I could find during my examination of the victim that would indicate the presence of more than one assailant in the commission of this crime.”

Nelson is looking at the table, at Meeks, for assistance. There is a motionless shrug from the hired help, a psychic “I dunno” from Meeks.

“I think maybe there’s some confusion here, doctor. Perhaps I’m not making myself clear.” Nelson does everything but genuflect in front of the witness box, his theory of conspiracy going up in smoke.

“The defendant is a woman who weighs what, one hundred fifteen, one hundred twenty pounds?”

“I wouldn’t know,” says Cooper. “I’ve never weighed her.” Some laughter from the audience. Acosta is on them with his gavel.

“So that we can be perfectly clear, you’re not telling this jury that a woman the size of the defendant could have shot the victim, a man over six feet in height, approaching two hundred pounds in weight, that she could then have moved the body by herself, transporting it from wherever he was killed to the office, that she then could have placed him in that chair and shot him with a shotgun, and done all of this by herself, without help from some other person?”

“It seems you have outdated notions of the fairer sex,” says Coop. “That is precisely what I am saying. It is entirely possible that a woman alone could have committed this crime.”

Nelson is clearly troubled by this. The theory of the weak female has been, from the beginning, at the heart of his case. Logic tells him that no reasonable jury will accept the notion that a lone woman, much less one who looks like Talia, could have carried out this grisly crime by herself.

Some jurors are taking notes. Cooper is shameless, sitting there in the box, paradox written on his face. Nelson and Meeks confer in a flurry of panic at the prosecution’s table. There is a little deja vu in this for me, the shoe on the other foot, a witness they cannot control.

And yet through all of this, I know what Coop is about. He is throwing me a bone, driving a stake through Nelson’s theory of an accomplice. If they later charge me or anyone else with this crime, the state will be faced with the testimony of their own witness, inscribed in stone, on the record. It is Coop neutralizing my affair with Talia, granting his own unique form of clemency. I get a glance from him, oblique, from the corner of one eye, as he sits there in silence.

It is clear that Acosta does not find this amusing. “Would you like some time, Mr. Nelson? Perhaps a recess?” he says. I would object, but it would do no good. Acosta would order an immediate break to let Nelson regroup, to have his way with Cooper in some back room.

“Just a moment, You Honor.” Nelson’s not interested in prolonging this. To recess is to emphasize it in the jury’s collective psyche, a mistake. He must deal with it now, quickly, or run the risk that it will be indelibly ingrained, an accepted truth, that if Talia did this, she acted alone. A theory that in the minds of these jurors, Nelson knows, may be a non sequitur.

“No, Your Honor, we’re ready.” He moves back toward the witness box.

“Doctor Cooper, could you explain to the jury how a woman the size of the defendant would begin to move a body more than half again as heavy as her own?”

“There are ways,” he says, “that this could have been done.”

“Such as?”

“During my examination of the body, I discovered mild abrasions on both arms in identical locations on each, and across the chest of the victim. These abrasions were in a straight line, just below the nipples on the chest, between the elbows and shoulders on the arms.”

“Abrasions?” says Nelson. “Like rope burns?”

“No, like a strap, broad, approximately two inches across from top to bottom.”

Nelson is looking at Meeks again.

“Doctor, why didn’t you tell us about this during your testimony in the preliminary hearing?”

“No one asked,” he says.

He is right; Cheetam was too busy being reamed by the witness, and Nelson wasn’t interested in any revelations beyond the minimum necessary to bind Talia over.

But the prosecution doesn’t ask the other obvious question, why Coop didn’t tell them about this during the hours of preparation for trial. He has clearly sandbagged them. And Nelson is now tongue-tied. It wouldn’t do to emphasize before the jury the fact that the state’s witnesses have gone through hours of grueling rehearsal. Jurors are funny in this respect-they like to think that testimony in open court is spontaneous.

“These strap marks,” says Nelson, “when did you first discover them?”

“During the autopsy.”

“They weren’t in your notes, why?”

“An oversight,” says Coop.

Nelson gives him a look, like Coop has just told him the Easter Bunny is under subpoena, coming on next. The prosecutor is shaking his head. As distasteful as this is, he cannot leave it unfinished. Having opened this Pandora’s box, he must now explore it fully, or he knows I will do it for him. Nelson retreats to the counsel table and Meeks for a little damage assessment.

“Can we go off the record, Your Honor?”

Acosta directs it.

Meeks and Nelson are whispering, but voices carry. Meeks is furious, embarrassed before his boss, that in his preparation of the case he has not ferreted out this surprise. There are a lot of single-syllable expletives here. It seems Meeks is of the opinion that Cooper’s testimony should be reported on little squares of tissue paper and stored on a cardboard roll in the men’s room. It is, in short, a lie, he says. In two minutes of consultation, this, it seems, is the only consensus they form. Nelson is back to the witness, back on the record.

“And what did you deduce from these strap marks that were not in your report?”

“That the victim was moved with the use of a small dolly, perhaps a light furniture dolly. The kind that uses straps with a ratcheted winch to tighten them.”

“A dolly?” Nelson’s nodding. There is an amused assent in his expression, the sort that parents normally reserve for a child’s tale of fantasy. He flashes this at the jury. An invitation for them to join him on this flight of fancy.

“Yes, a dolly such as this, laid on the ground or the floor, with the body rolled onto it, would provide leverage. It would allow a person to lift many times their own weight,” says Coop.

It’s a delicate matter for the state not to destroy their own witness. In pursuing too vigorously an accomplice the police have yet to identify, Nelson runs the risk of so discrediting Cooper that he loses this defendant, the proverbial bird in the hand.

“I see, and you think that the defendant might have moved the body on such a dolly?”

“It’s possible,” he says. “With a carpet or something tied around the frame of the dolly, to mask the body from view.”

“A carpet.” Nelson is nodding again. His disbelief grows with each embellishment of this fiction.

“You wouldn’t want to go out on the street with a body strapped to a dolly and nothing covering it,” says Coop, “now would you?”

“Not me,” says Nelson. There’s laughter from the audience, a few smiles in the jury box.

Nelson’s shaking his head, retreating to his counsel table. He’s laughing mildly, putting the face of good nature on this disaster. Taking the jury into his confidence. Treating this last bit by Cooper like an inside joke, a bit of comic relief, in a day filled with grisly details of murder. It is the only avenue of escape he has, and Nelson plays it like a master.

“Nothing more of this witness,” he says.

“Mr. Madriani?”

I consider the pros and cons, the benefits and detriments of taking on Coop when he is in one of these moods. It’s hard to say what the jury is thinking at this point, how badly Coop’s credibility may have been harmed. In trying to put a torpedo in the theory of conspiracy, he has, I believe, helped Talia’s case considerably, though this, I’m sure, was never his intent. I will be glad for little favors, glad to leave well enough alone.

“No questions, Your Honor.”

Cooper smiles at me from the stand as he gets down. He will not be smiling after the hiding he’s sure to get from Nelson. As he leaves the courtroom, Meeks follows him down the aisle at a safe distance, like he’s headed for a drink or the men’s room. I know there will be a lot of angry words in the corridor, verbal pushing and shoving between Meeks and Cooper. This was a noble act by a friend, but nonetheless reckless. His career, I think, may be harmed beyond measure.

They call Matt Hazeltine next.

This does not go well for us. It takes Nelson exactly five questions, and the prenuptial agreement signed by Ben and Talia is in evidence. It is clear that Nelson and Meeks have spent some time with this witness since the preliminary hearing.

The equivocation that marked Hazeltine’s earlier testimony is gone. They have wrung every ounce of gentlemanly conduct from his demeanor. I suspect that the Greek has had something to do with this.

Hazeltine is now certain of the reason for Ben’s insistence on this contract. He doesn’t flinch with the mention of the “gold-digger’s covenant,” but embraces it, looking at Talia as if this term fits her exactly. There are a few flourishes here, remembered conversations between the witness and Ben, that place this contract in a new light, testimony not offered during the prelim. There is nothing solid here, nothing that might be attacked directly on cross, just implications and innuendos that Ben did not entirely trust his wife.

Nelson lays heavily on the lawyer’s interpretation of this agreement.

“The fact,” says Hazeltine, “is that Talia stood to be stripped of everything from the marriage, disinherited, unless she was lawfully married to Ben Potter at the time of his death.”

It is one of those sobering moments in a trial, an evidentiary watershed recognized by the jury. The brighter lights among them, including Robert Rath, realize that they have just been handed a major piece of the puzzle, part of the motive for murder.

With this Nelson completes his questioning of the witness, and I am invited to partake.

“Mr. Hazeltine, in addition to the prenuptial agreement, did you prepare a will for Ben Potter?”

“I did,” he says.

“And under the terms of that will, in the event that Mrs. Potter were to be somehow disqualified from inheriting, was their another heir named?”

“I don’t think I understand your question.” Hazeltine is evading the issue, protecting Skarpellos.

“I’m going to object to this line of questioning. Your Honor, on grounds of relevance.” Nelson is up at his table.

“Your Honor, we’ve heard extensive testimony regarding the victim’s testamentary intentions,” I tell the court. “The state has produced evidence to the effect that if my client was not married to the victim at the time of his death, she stood to be disinherited, to lose everything from the marriage. The inference is clear. The state is trying to make a case that she killed her husband to secure her rights of inheritance. Under the circumstances, we have every right to explore the victim’s intentions in these regards, to determine if there were others who stood to gain from his death, who might profit if my client is convicted.”

“Sustained,” says Acosta.

I look at him, stunned. It is not a good move by a trial lawyer, before a jury. But I cannot control myself.

“Your Honor. This is evidence that was readily admitted in the preliminary hearing, over just this very objection. I have a transcript, here, Your Honor.”

“I can’t account for the errors of the municipal court,” he says. “That was there; this is here. The objection is sustained. Now move on to other matters, or sit down.”

Unless I can establish the link showing that the Greek stood to benefit from the death of his partner and the conviction of Talia, a vital element will be missing from my case. Acosta will have broken my back.

“Your Honor, this is critical evidence.”

All the more pleasure. He looks at me and smiles, a mean Mediterranean sneer.

“Move on, Mr. Madriani.”

“I want this part of the record certified for appeal,” I tell the court reporter.

“Mr. Madriani, move on or I will hold you in contempt.”

Nelson has a look of distaste about him, the appearance of a man who likes to win, but not like this. He’s not making eye contact, with the court or with me. Instead he’s casting about, playing with scraps of paper on the counsel table. But a good lawyer, he quietly takes what is given to him.

And I take my seat, nothing more to be gained from this witness.

Talia is clearly agitated, writing a note to me when I get back to the table.

“Why is the judge doing this?” it says.

I lean over in her ear. “You and me,” I say. “The news story. It offended his sense of dignity.”

She reads the sarcasm in my voice and knows she is now in deep trouble.