Compelling Evidence

CHAPTER 34

Since the day Coop arrived at the house with Walker’s article, that morning when Nikki called and roused me from sleep, she has taken a totally different view of Talia’s trial. She’s been ensconced here in the courtroom for three days running, two rows back, watching me, burning what little she has of vacation from her job, and wondering if her husband, the father of her child, will soon be indicted for murder.

I’ve tried to assure her that they have nothing, that Walker and his sources are playing a game of reckless innuendo. I’ve reminded her of Lama and his threat, consoling her that he has only made good on some bad publicity.

But Nikki is a worrier born and bred. She has watched Talia’s case as it slides from optimism to the lip of oblivion and has now borrowed enough thoughts of woe to keep us both in misery for the next decade. In her mind I am already in shackles and striped pajamas, Sarah seeing me on weekends from behind a little screen of wire mesh. The only consolation she seems able to take from this experience is that I am master of my own fate, that in defending Talia I am in a very real sense now defending myself. Nikki has a renewed sense of confidence in my abilities as a trial lawyer-more confidence, I fear, than I have in myself.

This morning I sit with her briefly and talk, holding her hand and giving her more empty assurances that this is all just journalistic bluster, and wonder myself where it will end.

Talia is at the counsel table with Harry. I catch her eye occasionally looking at us. I sense a little embarrassment here for the pain she has caused, not just to me, but to Nikki. The two of them are cautiously polite to one another, Talia uncertain of Nikki’s feelings. But my wife has been surprisingly cordial, even supportive, in the few comments she has made.

It is eight A.M., and the bailiff waves us on. I hook up with Harry, who is assembling our little library on the counsel table.

The moment of truth has arrived. On the second day after my bashing by Acosta, the judge has us back in chambers to announce his ruling on James Preston, the motel clerk, and whether he may testify.

As I arrive, Nelson is down at the mouth, like maybe he and Acosta have just had words. The Coconut is all preened for his day on the bench. A shirt so heavily starched that he could sleep standing up in it, gold cuff links, and broad red suspenders. He hasn’t yet donned his black robe.

His facial good nature changes as I enter chambers behind Harry. Acosta’s mouth and eyes take on a grim set.

“A seat, gentlemen.” He’s leafing through papers on his desk, as if he can’t find the script on this one.

“This is a real problem,” he says. “Mr. Preston.” He’s still looking for his notes.

He stares at me briefly from under hooded brows.

“Of course, it wouldn’t be a problem if Mr. Madriani had learned to keep his pecker in his pants,” he says. There is no court reporter here today, so Acosta is free to indulge himself, a few cheap shots. He will enter his ruling by way of a minute order, a single-page form, typed by his clerk.

Meeks and Nelson are carrying on a whispering campaign in the far corner, like they already know what the court is going to do on this.

“I’ve given this great thought,” says Acosta. He’s playing at being Solomon, stroking his chin with the fingers of one hand, affecting the look of the wise.

“The various arguments, and the prejudice to the defendant should I allow unlimited testimony by Mr. Preston. After considering all of these arguments carefully, it is my view that James Preston should testify …”

There’s a palpable sigh from Harry. During the last two days, with its dark omen, he has been boning up hard for the penalty phase. Death looms larger on the horizon now than at any time since the start of the trial.

“I think,” says Acosta, “that it is both relevant and material, these affairs that the defendant appears to have had during her marriage. The jury should be allowed to draw its own conclusions in these regards.” He looks at Nelson deferentially, as if the DA has scored major points on this argument.

The full hammer of vengeance, I think.

“But,” says Acosta, “there is one troubling aspect. Mr. Madriani’s part in all of this.”

I sense more sackcloth and a dusting of new ash.

“Mr. Hinds makes a persuasive argument, that to allow the witness to identify Mr. Madriani is to so thoroughly discredit Mrs. Potter’s attorney as to deny her a fair trial. I think there is merit to this,” he says.

There are furrows over heavy brows here, as if to emphasize this thoughtful, weighty moment in the logical progression of things. As if this notion of fairness is the product of great inspiration, some original thought with the Coconut.

“So,” he says, “the testimony of the witness will be limited. He will not be allowed to identify Mr. Madriani. The others are all fair game,” says Acosta. He is beaming a broad smile at the desk. His arms are open in an expansive gesture to Nelson as if to say “Go get ’em.” This explains Nelson’s gloomy look as we arrived. He’d been given a preview of this by the court.

“One proviso,” says Acosta. “If there’s any independent evidence linking Mr. Madriani to this crime, all bets are off. I may alter my ruling.”

“What does that mean?” I say.

“That means you’d better be clean,” he says. “If I find out that you and your client hatched a scheme to deceive this court, I will allow Mr. Preston to be recalled and to finger you in front of the jury. Do I make myself clear?” he says.

We are to try the case under the cloud of the Coconut’s subjective suspicions.

“Perfectly,” I say.

“Fine.”

The cops have been beating the brush trying to poke holes in my alibi for the night Ben was killed. In assisting me through this travail, Dee has been worse than worthless. The only entry on her calendar for the night in question is a hairdressing appointment, something so cavalier and routine that it jogs nothing of her own recollections.

Instead of the obvious truth, that she has left the office at five and that I was there working when she pulled out, Dee has told the police that she has no idea where I was on the night in question. This has spawned more intrigue than answers, and the police are now redoubling their efforts to link me with Talia.

To my surprise, after all of the pain he has caused, James Preston’s testimony turns out to be largely anticlimactic. Even my own suspicions that he would recognize Tod have turned out to be wrong. On the stand he identifies two men, the illustrious Raul, Talia’s tennis pro, residing in Rio when Ben was killed, and another man, Joseph Blackborn, Talia’s accountant. It would be a neat trick for the prosecution to link Blackborn and Talia romantically. He is fifty-eight going on ninety, slight of build, with thin pursed lips, a face like Don Knotts’s.

Talia tells me that Blackborn was in fact business, that they used the motel to finish some final schedules for income tax returns a year ago, because his office was being painted, and it proved a more convenient location than her own. I believe her.

It seems Raul and I were the only two getting in our licks back before Tod, and we were each ancient history long before Ben was murdered.

The jury seems to treat Preston’s testimony as a serious yawn. All during his brief time on the stand he is giving me the evil eye from the witness box. It seems Mr. Preston doesn’t appreciate the fact that his moment of fame has been preempted by the judge. He glances up at Acosta, an expression of misgiving. I think he believes the Coconut and I are engaged in some iniquitous conspiracy to cheat justice, the lawyers’ guild protecting its own. And he resents this. Apparently no one has explained to him why he is not being allowed to finger me, or perhaps he doesn’t accept this rationale, a fair trial for Talia. Either way, Preston has the composure and equanimity of a stick of sweating dynamite on the stand.

As Nelson finishes with him, I am leaning across Talia and whispering into Harry’s ear. We choose not to tempt fate and therefore waive any cross-examination. There is nothing to be gained, and if I should provoke Preston’s ire, a great deal to lose.

Nelson calls Talia’s neighbor next.

Mildred Foster is nearing eighty, with little else to do but watch the saga of life on parade from the windows of her house. She has lived on the two-acre estate next to Ben and Talia since they moved in five years ago, and to Talia she is a mystery.

“What a strange woman,” she says. “Five years and I’ve never seen her, even outside in the yard.”

“But she’s seen you,” I say, “and more importantly, Ben’s car on the evening he was killed.”

Foster is the kind of person who lives with a spyglass at the window. I would bet that her drapes are frayed and tattered from her fingering them every time a car door is slammed on the street.

Nelson has her up for one reason only. She testifies that Ben’s car was at the Potter house early in the evening on the day he was murdered. She saw it in the driveway, but didn’t see Ben. It is unclear whether arthritis has slowed her sprint to the windows, or whether she was simply distracted.

“Mrs. Foster, can you tell us what time it was that you looked out your window and saw Mr. Potter’s car?”

“About eight,” she says.

“Did you hear it pull up?”

“No,” she says. “My hearing’s not so good anymore.”

“I see, but you looked out your window and the car was parked there?”

She nods.

“Let the record reflect that the witness has answered affirmatively.” Acosta is doing the honors, helping the court reporter.

“So you have no idea what time the car might have arrived there?”

“It wasn’t there at five when I looked out.”

“So sometime between five o’clock, when you looked out your window, and eight o’clock, when you looked again, Mr. Potter drove up and parked his car in the driveway?”

“Objection. The question assumes facts not in evidence, that Mr. Potter was driving the car.”

“Sustained.”

“Correction, Mrs. Foster, is it true that sometime between five o’clock and eight o’clock, someone drove Mr. Potter’s car into the driveway and parked it?”

“That’s true.”

“And that person was not in the car when you looked out the window and saw it?”

“That’s right.”

This is all very neat. Nelson is working on broad inferences, that Talia and a lover were lying in wait at the house, that Ben came home, that they did him with the little handgun and took the body to the office. All circumstantial, but the sort of stuff a jury might use to reach mind-bending conclusions.

“Your witness.”

“Mrs. Foster, do you know for a fact that the vehicle you saw parked in the driveway of the Potter residence was Mr. Potter’s car?”

“Oh yes, it was his car. I know that car very well. I’ve seen it many times.”

She is wrinkled and age-spotted, but a pleasant soul. She smiles occasionally at Talia, so one would think that to Mrs. Foster, her appearance here is some good, neighborly deed. This is the kind of witness who can hurt you with a jury, the kind with no obvious or even remote personal agenda.

“Your Honor, may I approach the witness?”

Acosta waves me on.

I drop an envelope on Nelson’s table and carry another to the witness box, where I pull out three photographs.

“Mrs. Foster, I have three pictures here of vehicles, all the same color, late-model cars. Can you look at these and tell me if any of them is Mr. Potter’s car, the car you saw that evening parked in his driveway?”

She looks at them, studying them top to bottom, adjusting her glasses that hang from a gold chain around her neck. She works at these photos like it is some multiple-choice examination, putting first one aside, then another, picking up the first one again, trying to exclude at least one of the distractors to give herself a fair guess between the other two.

“Your Honor, I object to this.” Nelson can see she is having trouble. “Mrs. Foster is not an expert on car design. She says she saw Mr. Potter’s car in the driveway that night. This is a vehicle she has seen many times and would clearly recognize. Now defense counsel is trying to confuse her.”

“Your Honor, I just want to know if she can identify the car.”

Acosta is looking at me over the top of his glasses.

“Get on with it,” he says.

“Mrs. Foster, can you tell me if any of the cars in these pictures looks like the car you saw at the Potter residence that night?”

“This one looks a little familiar,” she says.

“Is that the car?” I ask her.

She’s looking at me, searchingly, pleading as if for some hint.

“They all look so much alike,” she says.

“Cars can do that,” I tell her. “Both in pictures and in driveways.”

“I think this is it,” she says.

I turn it over and read the number on the back.

“Your Honor, let the record reflect that the witness has identified a late-model Toyota Cressida owned by my secretary.” I then turn back to the witness. “She will be happy, Mrs. Foster.”

The old lady looks at me.

“My secretary, to know that she drives a car that looks like a Rolls. It may keep her from putting the touch on me for a raise.”

There are smiles, a little laughter in the jury box.

Mrs. Foster shrugs her shoulders, a good-natured gesture, like she did the best that she could.

Harry has been less than forthright on this, shooting all of the pictures to avoid the give-away grill on Ben’s car.

“Picture number three, Mrs. Foster. That was Mr. Potter’s car.”

“Oh,” she says.

“Even trained police officers have a hard time telling some cars apart,” I say, a little balm for a bruised ego. Nelson doesn’t object. She seems to accept this with good grace.

I’m back at the counsel table now. “Mrs. Foster, I think you testified that the night that you saw this vehicle, whatever it was, in the driveway, you never actually saw Mr. Potter, in the vehicle or around it, is that correct?”

“Yes, that’s right.”

“Did you see him around the outside of the house or in the house, through any of the windows?”

“No.”

“So you don’t know whether Mr. Potter was actually at home that night or not?”

“His car was there,” she says.

“A car that looked like his was there.” I correct her.

“If you say so.” She makes a face. The path to old age, I think, must be like Mrs. Foster, obdurate and unbending.

“But you never actually saw Mr. Potter?”

“No.”

“Did you see Mrs. Potter that evening about the time that you saw this car in the driveway?”

“No,” she says. “Her car wasn’t there.” To the witness, it seems, possession of a vehicle is more than a sign of status, it is the sole evidence of existence.

“So you never actually saw either Mr. or Mrs. Potter at or around the Potter residence on the night in question?”

“No.”

“Did you hear anything unusual that night, any noises coming from the Potter residence?”

“No.” She shakes her head.

“No sharp sounds like firecrackers, or a car backfiring?”

“I didn’t hear a shot if that’s what you mean.”

“That’s what I mean, Mrs. Foster.” This lady is not as far gone as she looks.

“This car that was parked in the driveway of the Potter residence, did you notice what time it left?”

“I looked out about nine. It was gone,” she says.

“But you didn’t see who drove it away?”

“No.”

“Nothing further, Your Honor.”

“Redirect?”

“Just a couple, Your Honor.” Nelson is on his feet approaching the witness.

“Mrs. Foster, how far is it between your house and the Potter residence, approximately?”

She looks at him like this is the same as trying to tell cars apart.

“Let me see if I can make this easier on you.” Nelson thinks for a moment. “You’ve seen a tennis court, from one end to the other?”

She nods.

“Good. How many tennis courts could be laid from end-to-end between your house and the Potter residence?”

She mulls this over for a long time before answering.

“Three, maybe four,” she says.

“So it’s a considerable distance between your houses. These are not suburban homes on postage-stamp lots?”

“Oh no,” she says. “It’s a good walk to your neighbor’s.”

“So if someone fired a small handgun, inside of the Potter residence, it’s not inconceivable that you might not hear it?”

“Objection, calls for speculation.”

“Sustained.”

She shrugs but doesn’t really answer the question. He moves on.

“I suppose you were watching television on the night you saw Mr. Potter’s car in the driveway.”

“Objection, leading. The question also assumes facts not in evidence, that the vehicle observed by the witness was in fact the victim’s car.”

“Sustained.”

“Fine,” says Nelson. “Mrs. Foster, were you watching television on the night in question, when you saw the car in the driveway?”

“I don’t watch television,” she says.

“What were you doing that evening?”

“Playing with my cats,” she says. “I have six cats.”

“Ah.” Nelson is nodding his head like he understands this, an old lady and her cats. But it gets him no closer to where he wants to be, the inference that if Talia fired a bazooka at Ben inside their house, Mrs. Foster wouldn’t have heard it.

“But it’s possible,” he says, “that if a shot was fired in that house, you might not have heard it?” He finally does it head-on.

“Objection, calls for speculation on the part of the witness. She says she didn’t hear a shot. The jury can form its own conclusions,” I say.

The Coconut is making faces like he might actually allow the witness to venture a guess on this.

Mrs. Foster is pursing her lips, about to respond.

“If a tree falls in the forest, but there is no one there to hear it, does it make a sound?” I ask.

“Excuse me,” says Acosta.

“It’s an ancient conundrum of logic, Your Honor. Counsel may as well ask the witness that one while he’s at it. Philosophers have been speculating about it without an answer for five thousand years,” I say.

Acosta is bristling at my sarcasm. But it achieves its point. The witness is now thoroughly confused. I think she would rather look at pictures of cars again.

“The objection is overruled. The witness may answer the question.”

Mrs. Foster looks at Nelson, not sure what the question is anymore.

Nelson is smiling. Acosta has driven one more spike into me and flashed him a big green light.

“Mrs. Foster, is it possible that if a gunshot was fired in the Potter residence, you might not have been able to hear it?”

She looks at me, wondering if trees and forests will be next.

“I don’t know,” she says.

With just three words she destroys this bone we’ve been fighting over.

“There,” I say. “She doesn’t know.”

Acosta gives me a look that could kill.

We break for lunch. When we return, Acosta has Eli Walker up from the little celebrity room at the jail and back in chambers.

Walker hasn’t shaved in three days. He has stains on the front of his suit pants that look remarkably like the man is now incontinent. There’s a palsy to his hands and a wild look in his eyes. In all it is a pathetic sight. I feel more sympathy here than I would have imagined, particularly given Walker’s part in all of this.

Nelson and Meeks are poised like vultures on a limb, standing in the corner waiting for Walker to hand over his source. Meeks has his note pad out as if to take the name of some unknown and distant subaltern, some buried bureaucrat who he thinks was Walker’s fountain of knowledge for the column that identified me as Talia’s lover.

“Have you had anything to eat, Mr. Walker?”

Acosta seems genuinely concerned by the condition of his prisoner. It would not do to have a member of the press corps die in his custody. Those who appoint and elevate judges might be asking some probing questions.

“I’m not hungry,” says Walker. His eyes seem to be scanning, looking for anything that might remotely resemble a decanter and glasses. But in chambers at least, the Coconut shows all the appearances of a teetotaler.

Walker’s lawyer makes a pitch to have a physician examine his client before he goes back to jail.

“Back to jail?” Walker says this like “fat chance.” There are a few obscenities, all directed at Walker’s lawyer. “You go back to jail,” he says. “You try it for a while and tell me how you like it.” With each word Eli’s spitting on his attorney, a veritable bath of saliva.

Walker looks at the judge. “Can I have a piece of paper and a pen?” he says.

Acosta obliges.

Walker’s hand is shaking so badly he has to steady the pen with both hands, a little chicken scratch on the blank note paper Acosta has given him.

“You won’t tell anybody where you got this?” says Walker.

Acosta smiles. “Mum’s the word,” he says.

Eli’s lawyer is upset, concerned that his client doesn’t understand the implications of what he’s doing.

“Mr. Walker, there’s the potential for liability here,” he says. “If you gave assurances of confidentiality to your source, and if you now reveal that source, and the person suffers some penalty, demotion, or loss of employment, you could be held liable for civil damages.”

This is an uncertain point of law, but a possibility, something on the cutting edge of appellate decisions in this state.

Walker gives him a look, as if to say “If the source wanted confidentiality, he should have brought me a drink in the can.” He folds the little scrap of paper in two and pushes it across the desk toward the Coconut.

Acosta looks at it, then passes it to Nelson. Meeks looks, but doesn’t take a note. It is clear that Harry and I are not to know who Walker’s source is.

“Mr. Walker, I’m very concerned about you.” Acosta is falling all over him now, not anxious to have him go back to his colleagues out in the hall looking like this. He calls his bailiff and gives firm instructions that the marshal is to take Walker to the nearest restaurant and buy him anything he wants, to eat or drink, and put it on the court’s tab. He hands the bailiff the county blue card, a plastic credit card accepted by merchants and innkeepers within throwing distance of the courthouse.

Acosta points the two of them toward the back door. “Then take him home so he can clean up,” he says. “And don’t let him come back until he does.” This last is whispered to the marshal, as if Eli could even care. The county’s about to get a bar tab to rival the S amp;L bail-out.

Acosta turns to Nelson.

“What about that?” The judge is pointing to the note in Meeks’s hand.

“I’ll take care of it,” says Meeks. Walker’s source, it seems, is about to become toast.