Compelling Evidence

CHAPTER 38

Susan Hawley has been captured by the police; her picture from a file photo-part of a story about the trial on the evening news-netted her in L.A. As always, she was in the tow of other beautiful people, at a gala with some movie mogul when the cops nailed her.

Harry and I are in a quandary, whether to call her to the stand or not. We’re closeted in my office talking strategy.

Skarpellos has made such a disaster of his testimony that it’s hard to imagine that anything further could be gained by putting Hawley up.

Harry says no. “She’s slick,” he says, “bright and quick.” The stuff of which pricey call girls are made. If they applied themselves in other ways, most could make it in the world of corporate high finance, I think.

“It’s risky,” says Harry. “Skarpellos couldn’t save himself, but Hawley might.” There is concern here that she could come up with a plausible story for the $25,000 “loan”-a down payment on a condo, or a new car. She might say that she told the Greek this. “Then she’ll flash big eyes at the jury,” says Harry. “I can hear her. She will tell them, ‘That Tony, lover that he is, he just forgot, that’s all.’ ” Like that, we could lose all we’ve gained from the Greek.

Harry looks at me stark and cold, like this is a premonition. It is one of the things I like best about Harry. He has good instincts.

It is for reasons such as this that I was not more overt in pointing to Skarpellos in my opening statement. Nelson would have done more to cover up. This is more difficult now. We are deep in the defense case, and Nelson is saddled with the Greek’s lame explanation for the $25,000 “loan.” He is, I think, not likely to move the court to reopen his own case to call Susan Hawley.

“If we could crush her on the stand,” I tell Harry, “get her to admit that it was all a scam, tampered testimony that Skarpellos bought, that Tony and she were not together on the night Ben was murdered, it would be like putting the smoking gun in the Greek’s hand.”

Harry looks at me, a wry smile. This is the stuff of trial lawyer lore, bald fiction, not what happens each day in most open courts in this state. Cases are won or lost, not on the truth, but by the preponderance of perjury uttered by witnesses on the stand, who lie with impunity and then walk away. This is most true on the criminal side.

If we put Susan Hawley up and fail, she could cut the legs out from under our case, I concede. Harry is right. The risk is too great. We will not call her to the stand.

The telephone rings. I pick it up-it’s Nikki. I say “hi” and ask her to hold for a second.

Harry’s happy with my decision on Hawley, says he thinks we’ve dodged a bullet. He heads back to his office down the hall.

I take my hand off the mouthpiece of the phone.

“Hi,” I say.

“How’s it going?” she asks. Nikki has burned too much vacation, and she is back on the job, at least for a few days.

“Ask me in a week,” I tell her.

“I read about Skarpellos in the morning paper,” says Nikki. “They’re speculating that the bar may be opening an investigation into his finances.”

“Long overdue,” I say.

“You sound tired.”

“I am.” Nikki knows the hours I’m working. She’d been a wallflower in my life long enough, during my stint with the firm, and before that when I was in the DA’s office, to know that I am not worth being around when I’m in the middle of a trial.

“You haven’t been over in a while,” she says. “Sarah thinks you died.”

I feel bad about this. I haven’t seen Sarah in two weeks. I promise to make amends when this is all over.

“How about dinner,” she says, “over here tonight? I’ll make it quick, something you like.”

“I wish I could. Harry and I are scheduled to go over notes tonight for the witnesses in the morning,” I tell her.

She’s not hurt; she says she understands. She’s not so sure about Sarah.

“A week and the case is to the jury. I will make it all up then,” I say. “Can she wait one more week?”

“I guess she’ll have to.”

“I promise,” I say.

“I’ll tell her. Try to get some sleep,” she says. Then she hangs up.

I feel like a first-class shit. The plight of the trial lawyer’s family.

Nikki has been fighting old battles again, her demons of dependence-the feeling that with my career, in our marriage, she was a mere afterthought to be tended to, serviced, somewhere between late nights at the office and weekends laboring over briefs and pleadings.

It seems she has a new sense not only of herself, but of who I am, now that I no longer float like some satellite in the orbit of Ben. I feel that in her eyes I am now the master of my own destiny, as threatened as that may be. If indeed we are each a mirror image of how we perceive others see us, I can now say that there is something of greater worth reflected in Nikki’s eyes each time she looks at me.

In the weeks since the start of the trial, she has found herself caught between a growing desire to reconcile our differences and the thought that we have, each in our own ways, paid such a painful price to find ourselves. It has taken her more than a year to shed that self-image which makes a wife in our society an invisible appendage of her spouse. And she is unwilling to backslide.

She has sent clear messages of late, like an emissary ending a war, that if I want her back it must be on her own terms.

I pick up the phone and dial her.

She answers.

“What’s for dinner?” I say.

A bit of jubilation at the other end of the line.

“You look like the lawyer from hell,” he says. Harry’s commenting on the big gray bags sagging under my eyes and on the wrinkled dress shirt.

I explain that Nikki forgot to set her alarm. Dinner turned into an hour of play with Sarah and a long evening of conversation over wine with Nikki, a lot of mellow forgiveness and subtle understandings. We rolled out of the sheets at eight-thirty, me with a nine A.M. court call. It was Sarah who woke us, bright eyes of wonder and delight, crawling over the sheets and my body to snuggle between her mother and me. It was not a night of much sleep. It seems that we have rediscovered old passions, rekindled a new interest in life together.

Melvin Plotkin, five-foot-two, is a real piece of cake. An irate businessman injured in a fiery auto collision four years ago. Neither the psychic trauma of the accident nor the permanent injuries sustained have taken the starch out of this little man. He has burn scars on his upper arms and neck, places where skin grafts have left splotches of discoloration. His case was settled for a quarter-million dollars by attorneys for P amp;S two years ago. He got his money eighteen months later, after a pitched battle with Skarpellos.

Tony has probably stolen from a dozen other clients, but Plotkin is not to be horsed around with. He owns a small collection agency and survives like a pilot fish swimming with the sharks. Harry suspects that Plotkin-shrewd, no stranger to sharp business practices-cooks his own books, that he probably steals from the mom-and-pop shops that assign their claims to him for collection, so he knows how it’s done. It stands to reason that he would be the first and loudest to scream if cheated.

We have our problems with Plotkin. It seems he once owned a much larger collection agency, started on a shoestring and with much hard work. He tinkered with a merger, a national firm ten years ago, and in the end found himself muscled out of his own business. Two lawyers for the larger company showed him the door. Since then Plotkin has had an abiding hatred of lawyers. He is here under subpoena.

I have him look at the letter sent to the state bar, the one complaining about Skarpellos and the trust fund.

“Yeah, I wrote it,” he says. “A license to steal.” This is meant as a general indictment of all lawyers. He looks up at Acosta, and from the dour expression on his face, it would seem the same applies to judges.

“Did you talk to Mr. Skarpellos first?”

“I talked to my lawyer first,” he says, “the one who settled the case.” This was one of the younger associates in the firm.

“What did he tell you?”

“What’s he gonna say-your money’s here, your money’s there, insurance site drafts take a long time to clear-the giant stall,” he says. “I’ve spent a lifetime chasing deadbeats, I know a stall when I hear it.”

“Then you talked to Mr. Skarpellos?”

“No, then I talked to his secretary. Mr. Skarpellos is a hard man to catch.”

“And what did you say to his secretary?”

“I got a little hot, I guess. She says Mr. Skarpellos is busy. So I call back. Three times I call back. All the while they’re sitting on two hundred and fifty thousand dollars of my money,” he says. “So finally I have words with this-this secretary.” He can’t seem to come up with a better word for her. I think the lady probably earned her wages that day.

According to Plotkin, his language “became colorful.” She hung up on him. He called her back, says he was polite this time, but I don’t know if I buy this, because she hung up again. A half-hour later Tony called him back and taught him a few words that weren’t in Plotkin’s own vocabulary. The next day Plotkin sent flowers to the secretary, and a note that bordered on a death threat to Skarpellos.

This missive had no effect on the Greek. He just kept the money and instructed his secretary not to put Plotkin through on the phone anymore.

After two more letters to the firm went unanswered, Plotkin called the bar. They invited him to send a formal complaint. He did, and a week later an investigator visited the offices of Potter, Skarpellos. This finally had a sobering effect on Tony. The next day, according to Plotkin, he got a call from the firm.

“They wanted me to come over for a meeting,” he says.

“Who’s they?”

“Another partner called me. Hazeltine. Said he wanted me to come by and pick up my check.”

“Did you?”

“Sure. I went by the next morning.”

“And what happened?”

“They hustle me into a conference room. I look around this place and see where my money has gone,” he says.

“Who was present at this meeting?”

“The lawyer who represented me-Daniel Liston is his name. He’s the only one there.”

This is an associate I knew, but not well, when I left the firm.

“He seems real embarrassed,” says Plotkin. “Tells me he has a cashier’s check for my part of the settlement, but first I have to sign some papers.”

“Papers?”

“Yeah, a receipt and something else.”

I look at him, like “Please continue.”

“He has this letter, typed on plain paper, to the state bar, asking that my complaint be withdrawn, and stating that the entire matter was a misunderstanding. My name is typed at the bottom where I’m supposed to sign.”

I look at the jury. They seem mesmerized by this. Perhaps we have turned the corner. One would think that Tony Skarpellos is on trial here and not Talia.

“Did you sign this letter?”

“I had to get my money. A bunch of bloodsuckers,” he says.

“Objection,” says Nelson. “If the witness could testify without making speeches.”

“Sustained. The reporter will strike the last comment,” says Acosta. “Just answer the questions, Mr. Plotkin.”

I have him look at a copy of this letter. I have subpoenaed this too from the bar. He identifies it as the one signed by him at the meeting.

“After you signed this letter, did Mr. Liston give you your money?”

“That’s all he gave me,” he says. “My portion of the settlement, less their third, and no interest. They kept my money for a year and a half, and didn’t pay a dime of interest.”

“You didn’t sue them?”

“I considered myself lucky to get out of that den of thieves with anything,” he says.

Nelson considers whether he should object to this. He’s halfway up, then thinks better of it. We may argue over Plotkin’s characterization, but the facts are clear, more than a little larceny has in fact occurred.

I have the second letter, the one withdrawing the complaint marked for identification, and move both letters, the complaint and its withdrawal, into evidence. There is no objection from Nelson.

“Your witness.” I look at Nelson.

He confers with Meeks, only for a second. “We have no questions of this witness,” he says. “But we’d like a conference in chambers.”

Acosta looks at his watch. “It’s time for a morning break. We’ll take a half-hour,” he says.

Nelson can see that I am digging a deep hole for the Greek, converting what had started as a sideshow into the main event. My auditor is next. He has facts and figures to document every discrepancy in the firm’s trust account for the last six years. This will lay a bold mental bracket around the Greek’s financial indiscretions for the jury. We have identified more than a half-million dollars that has been “borrowed” at one time or another, all of it against checks bearing Tony’s signature. Not all of this money has been paid back. It seems that Skarpellos had been more relentless in his abuse of these trust funds than even I had imagined. He had operated a considerable Ponzi out of the firm’s trust account for years. In thinking back, Ben had never given me any real indication of the magnitude of this theft.

This evidence begs a nagging question: whether Ben knew about and tolerated these practices for years, and complained only when his own ambitions were placed in jeopardy. I consider this and wonder, as one often does about those now departed, whether I had known him as well as I thought.

Acosta speaks first. “I would like to save some time,” he says. The court reporter’s stenograph keys are tapping softly.

Nelson nods. They have concocted something between them. It doesn’t take a mental giant to see this.

Nelson speaks as if on cue. “We will stipulate,” he says, “that Mr. Skarpellos appears to have engaged in reprehensible conduct.”

“Clear violation of bar ethics,” says Acosta. He’s shaking his head, his features all screwed up, an expression of disgust that is aimed at convincing me that I have now made my point on the Greek, that anything more is just overkill.

“We’re consuming a great deal of the court’s time on this,” says Nelson.

“Now that you have your case in, time is suddenly of the essence?” I ask him.

There is a rule concerning cumulative evidence, facts which are redundant, all tending to prove the same thing. Judges have broad discretion to exclude such evidence in the interest of time, and Nelson makes clear that this will be his objection if I persist with my accountant.

“We think this is more than a little cumulative,” says Meeks, trying to help his boss along. He cites Plotkin’s testimony and Tony’s own babbling bordering on admissions as examples of this.

“We?” I look at him.

“Mr. Nelson and I.” Meeks runs quick cover for the judge, as if Acosta has no hand in this and is hearing it all for the first time.

“I’m not trying to cut you off,” says Nelson. “Please understand.”

“Yeah, God forbid,” says Harry.

Nelson shoots him a little quick contempt. “You’ve been given wide latitude by the court.” He looks at Acosta, who nods, like this is a point well taken. “It’s just that we could save some time if we were to enter into a few stipulations.”

This is a tactical move by Nelson to take the sting out of much of this evidence. I suspect that the state’s auditors have been as busy as our own. Nelson would like to keep this out, but he can’t. The next best thing is some orderly and wooden way of placing this evidence before the jury, some dull rendition that will take the luster from it, that will put the jury to sleep like the repetitious prayers of a rosary.

“What do you propose?”

“We will stipulate,” Nelson says, looking at notes now, “ … that during the two years immediately preceding the death of Benjamin Potter, Tony Skarpellos withdrew approximately two hundred and twenty thousand dollars from the client trust account of Potter, Skarpellos, Edwards, and Hazeltine. That these withdrawals appear to have been unauthorized, and that the funds appear to have been diverted to personal use. I think this would cover the point as well as any evidence you could introduce,” he says. “Of course, you understand that these stipulations would be binding only in this case. They would have no effect on Mr. Skarpellos.”

“Of course,” I say.

Acosta’s looking at me and nodding, licking his chops, like this could save him a whole half-day. But we all know what this is about. It is about convicting Talia. Tony Skarpellos is looming larger in the minds of the jury with each passing witness, the motive for murder more compelling.

Harry’s scrambling, looking through our notes to see if there are any other bombshells that Nelson’s stipulation doesn’t cover.

“Your Honor, we’d like a fair shot at putting this before the jury,” I say.

“Mr. Nelson’s stipulation would appear to do that.” The Coconut is all mellow, like melted Brie. He speaks in tones that drip reason and goodwill.

“In all deference to opposing counsel,” I say, “this is not fair. We must be allowed to develop our case for the defense.”

“I am persuaded,” says Acosta, “that this is cumulative evidence.” This brings it within his broad discretion, to rule that our accountant can be hobbled, blocked at every turn by objections from Nelson. To this we would have no appeal. It is either play ball or they will cut us up in little pieces.

So I bargain with them. “Our other witness,” I say, “Mrs. Campanelli, must be allowed to testify fully as to her knowledge of the dealings between Mr. Skarpellos and the victim.”

Nelson looks at Acosta. He is not happy. But there is no way that they can bar this testimony. It is in no way cumulative, but new evidence of heated argument and confrontation between Tony and Ben. Under our theory, this argument is the spark that ignited murder.

“Agreed,” says Nelson.

“Good.” Acosta is happy. Another decision he will not have to make.

The Coconut reads in a monotone, like some bovine in heat. Nelson’s stipulation is put into the record, for the jury to hear. There are a lot of question marks, puzzled faces beyond the jury railing. But Robert Rath, my alpha factor, is taking notes. I think this little escapade by Nelson may backfire. With Rath to explain the significance behind closed doors, this stipulation leaves little to the imagination. It is now carved in stone that for our purposes here, Tony Skarpellos has shamelessly raided the client trust account-a major cog in our case.

“I don’t care what you say. I am going to testify. I have to,” says Talia.

Talia is insisting that I allow her to take the stand. She is chain-smoking again, against my advice. But this is something that, I sense, is now beyond her control. There are paroxysms of anxiety here, manic episodes, elevated and expansive moods followed shortly by irritability and depression. These swings seem to be associated with no particular success or crisis in the case. Instead, I think, they are attributable to the fact that as a verdict draws near, Talia is increasingly an emotional basket case.

“You can’t testify,” I say. “Nelson would eat you for lunch.”

What is difficult is that this is her call. As her attorney, I hold the strings. I can decide what witnesses we call, what evidence we submit. But the defendant’s right to testify or not is hers and hers alone. I counsel her against it. I tell her I will not participate in perjury.

There are cases in point in this jurisdiction. A lawyer who knows his client is about to lie on the stand does not withdraw, but by leave of the court may sit idle at the counsel table and watch as his client weaves a narrative. In refusing to participate, the lawyer upholds his duty as an officer of the court. Inquisitive jurors of course wonder what is happening, and in due course form their own opinions. It is usually a disaster. I tell her this.

I try to steady Talia. Calm her. I tell her that she is suffering a major case of judgment jitters.

Except for those so strung out on drugs that their brains are fried, every defendant gets these jitters as a verdict draws close. With Talia, this tension manifests itself in a need for control. She is desperate to help her own cause, paralyzed by the lack of mastery over her life.

We argue. I insist. I cannot put her on the stand. She has lied to the police about her alibi. I tell her that this would mark her as something less than trustworthy with the jury on every aspect of her testimony. With this revelation as a club, and three nails, I tell her, Nelson would nail her to the cross. He would break her back on cross-examination, inquiring into every aspect of her evening with Tod. Did they sleep together? Did they make love? It would not be a quantum leap in logic for Nelson to lead the jury to question whether Tod and Talia had not in fact teamed up to murder Ben.

“I don’t care,” she says. “I will tell them the truth. It was a mistake to lie to the police. Everybody’s entitled to one mistake.” There’s another cigarette between her fingers; the first, only half smoked, was crushed out less than a minute ago in the ashtray on my desk.

“If you testify,” I tell her, “they will convict you.” I muster all the authority possible in my eyes as I deliver this prediction. I don’t often engage in clairvoyance, but in this case I make an exception. Such is the certainty in my own mind on this point.

“What will they think if I don’t get up and testify on my own behalf? Friends have told them that I am trustworthy. What kind of person allows others to speak for her and refuses to say anything herself?”

“They will be instructed not to consider this,” I tell her, “told by the court that they may draw no inferences whatever from your silence.”

“And you expect them to accept this?” she says.

I won’t tarry with her on this point. She has the better side of the argument, and we both know it. So I play devil’s advocate.

“We have already talked about your alibi in the trial,” I say, “during Canard’s testimony.” I remind her how I pushed the detective on the details of her car, the capacity of its fuel tank, the fact that she may not have been sufficiently hungry to stop for a meal on her return from Vacaville. These were explanations as to why the cops couldn’t verify her trip that day.

“If we backtrack now,” I tell her, “there will be a clear trail, an unbridled implication of deceit.” My questions to Canard were sufficiently abstract not to be considered perjurious. But jurors might consider this beyond the bounds of good advocacy. They might see this line of inquiry for what it was, an exercise in misdirection. Jurors don’t like to be lied to or misled. They have been known, on more than one occasion, to punish defendants for such license taken by their lawyers.

“We have crossed this river of fire,” I tell her. “We cannot go back.”

Resignation is written in her eyes. She knows I am right. But for the first time I sense something more in her expression, something which has not been there before, a lack of confidence, not in herself, but in me. She is wondering if, in causing her to make this decision, I may have consigned her to prison for the balance of her life, or worse, she is wondering if perhaps I am condemning her to death.

Jo Ann Campanelli sparkles this morning. Decked out in a suit she’s probably not worn since leaving the firm, she is our last witness, here to provide the coup de grace, to turn the last screws in our case against Skarpellos.

With makeup, sans the cigarette and hair net, Jo Ann looks twenty years younger than when I spoke with her at her house two months ago. Her nails are polished and manicured. Her blond hair, even with its streaks of gray, is so carefully coiffed that it is clear she has spent both time and money preparing for this appearance. She wears the obligatory silk scarf, tied in a bow about her neck. It seems that during her time out of the loop, no one has told Jo that this fad has passed. Though she hasn’t seen the inside of an office in nearly a year, on this morning Jo Ann Campanelli is the very image of commercial efficiency.

We lay the groundwork quickly, her history with the firm. I expose the fact that she no longer works there, that after twenty years of faithful service she was summarily discharged shortly after Ben Potter’s death, that she had to retain another lawyer to secure her retirement. We hit this head-on rather than hiding from it, in hopes that this will take the sting out of Nelson, who is sure to hammer on the theme that Jo Ann is here for vengeance.

Jo describes the armed camp to which the firm was reduced in the days following Ben’s death. She likens this to working in a police state. I take her back to the week before Ben’s murder, and set the stage, the argument in Ben’s office.

“Did the partners argue often over business?”

“In the last months, before I left, there had been a number of heated arguments,” she says. “Things were not going well in the firm.”

Jo Ann talks about the growing hostility between Ben and Tony, Tony’s overt jealousy that manifested itself in ways obvious to her and other employees.

I take her back to the argument between the two men only days before Ben was killed.

“I couldn’t help but hear it. There was a great deal of yelling-and name-calling,” she says. “My desk was directly outside of Mr. Potter’s office.”

“How long did this argument last?”

“The meeting went on for twenty minutes; that’s how long Mr. Skarpellos was in Mr. Potter’s office. The argument, the portion I could hear, lasted five minutes, maybe longer.”

“Could you make out any of what was being said?”

“Mr. Potter called Mr. Skarpellos a thief-I think his words were ‘a goddamn thief.’ ” She looks at the jury to make sure they’ve caught this nuance.

“Did Mr. Skarpellos say anything?”

“Mr. Potter did most of the talking. He sounded very angry. At one point I did hear Mr. Skarpellos say something about money, that he would get the money and put it back right away.”

“Did you hear anything else?”

“Just Mr. Potter telling Mr. Skarpellos to get out of his office.”

“Did he leave?”

“Like he was shot from a cannon,” she says.

There’s a little laughter in the jury box, just a titter.

This is the pecking order I knew in the firm. The Greek fed on minnows like Hazeltine and the junior associates, but was no match for Ben, particularly when Potter was angry.

“What did Mr. Skarpellos look like when he left Mr. Potter’s office that day?” I ask her.

“Red in the face, crimson, you might say. Mr. Skarpellos had a nickname among the staff,” she says. “We called him the Red Leper. When he got angry or embarrassed his face became very red, flushed, you might say.”

“Why the Red Leper?” I ask.

“When he was like this, you didn’t want to be around him.”

More laughter in the box.

“Did he have a bad temper?”

“Objection, calls for speculation.”

Before Acosta can rule I reframe the question. “Did you ever see him lose his temper?”

“A number of times.”

“Did you ever see him become violent?”

“Once I saw him throw a book at one of the associates.”

I raise my eyebrows a little, while facing the jury.

“He missed,” she says. It seems his aim was as bad as his temper.

“On the day of this argument in Mr. Potter’s office, did you have occasion to talk to Mr. Potter after the argument?”

“I did.”

“What did you talk about?”

“He called me into the office and asked me to take a letter.”

“Did this letter have anything to do with the argument-between Mr. Potter and Mr. Skarpellos?”

“Objection, hearsay,” says Nelson.

“If the court will admit the testimony subject to a motion to strike, I think you will see, Your Honor, that this is not hearsay.”

Acosta waffles a hand at the bench. “I’ll allow it, subject to a motion to strike.”

Nelson resumes his seat.

“It was to Mr. Skarpellos.”

“Do you recall what the letter said?”

“Mr. Potter was trying to confirm their earlier conversation.”

“The argument?”

She nods. “Yes. The letter accused Mr. Skarpellos of taking large sums of money from the client trust account. It stated that Mr. Potter had just discovered this and that he had instructed Mr. Skarpellos to return the money within forty-eight hours, or else Mr. Potter would be honor bound to report the matter to the bar.”

“Objection, motion to strike,” says Nelson. “This is clearly hearsay, Your Honor. Mr. Potter’s out-of-court statement cannot be admitted. He is not here to be cross-examined.”

“Not at all,” I say. “It has already been established, by Mr. Nelson’s stipulation read to the jury by this court, that Mr. Skarpellos is deemed to have taken large sums of money from the client trust account. This testimony is not being offered to prove the truth of the matter stated-that Skarpellos took the money. That is already proven, by the generous agreement of the district attorney. This testimony is being offered to show Ben Potter’s state of mind, that he was aware, or at least believed, that his partner had taken such sums from the trust account. State-of-mind evidence is not subject to the hearsay rule, Your Honor.”

It is a subtle point, but one well recognized in the law, that the subjective beliefs of a declarant, not being facts but matters of faith, are not subject to the hearsay rule.

Acosta is looking at Nelson, who stands silent at the counsel table. I have stuffed his own stipulation down his throat, and now Nelson, his jaw half open, looks as if he will gag on it.

“The theft of the money from trust is a settled point,” says Acosta. “It would appear that we are looking at state-of-mind evidence here.” He is hoping that Nelson will agree, or at least remain silent.

“State of mind,” he says. “This is absurd.” Unless Nelson comes up with something more persuasive, this ship will sail.

Acosta raises his gavel like some auctioneer. “Motion denied,” he says.

The only one who catches the delicacy of this in the jury box is Robert Rath. I think for a moment that he has flashed the briefest, almost imperceptible, wink in my direction.

“Mrs. Campanelli, do you recall how much money was referred to in this letter?”

“Not exactly,” she says, “but it was a lot.” She’s shaking her head now trying to recall the figure. “It was more than a hundred thousand dollars. I know that.”

“Did you later type this letter?”

“Yes.”

“And did Mr. Potter sign it?”

“In my presence,” she says, “and he asked me to deliver it in a sealed envelope to Tony’s-Mr. Skarpellos’s-secretary.”

“And did you?”

“Yes.”

This letter is starting to look like a little CYA (cover your ass) on Ben’s part. If anyone screamed too loudly, or if the bar launched an independent inquiry, Potter could hide behind this letter, say that the minute he found out, he did the right thing. Though some might question whether waiting forty-eight hours was exactly the right thing. Potter himself might now question this, given his fate.

“On the day that you typed this first letter, did Mr. Potter dictate a second letter?”

“Yes.”

“And to whom was that letter addressed?”

“To the state bar.”

“And what did it say?”

“It contained much of the information that was in the first letter, but in the form of a complaint to the bar. He told the bar that the writing of this letter caused him a great deal of pain, but that it was necessary given the conduct of Mr. Skarpellos.”

“Did Mr. Potter give you any instructions regarding this second letter?”

“He told me to postdate it.”

“Could you explain for the jury?”

“He wanted me to date the letter two days later than the actual date that I typed it and then to give it to him.”

“Did Mr. Potter tell you why he wanted you to do this, to postdate the letter?”

“Objection, hearsay.” Nelson’s back up. “And don’t tell me this is state of mind.”

I shrug a little concession his way. “You caught me, what can I say.”

A little lighthearted laughter from the box. It won’t take a mental giant or a Ouija board to figure out why Ben would do this, other than to give the Greek time to gather the money and meet the forty-eight-hour deadline imposed in the first letter. It is the picture of a partner doing all he could to save a friend from his own demons.

“Did you ever see this letter, the one to the bar, again?”

“No. I typed it and gave it to Mr. Potter.”

“So you don’t know whether he had a chance to mail it”-I pause for a little effect-“before he was murdered?”

“No,” she says.

I look to the box. The jury has gotten the point.

Before I leave her, I have Jo Ann identify Ben’s will, her signature as a witness at the bottom. Strangely Nelson makes not even an effort at any objection on this. I suppose that since the Greek has admitted in open court that he was aware of the terms of this document, and his interest in Ben’s estate, there is little to be gained in Nelson’s mind by keeping the document itself out of evidence. It goes in without a hitch. One of the foibles of trial law. Problems never develop where you expect them.

“Your witness,” I say.

There are no surprises here. In his approach to Jo Ann, Nelson is entirely predictable.

“Mrs. Campelli,” he butchers her name.

“Campanelli,” she says.

“Excuse me. Mrs. Campanelli. Isn’t it true that you were fired by the Potter, Skarpellos firm for acts of insubordination?”

“No,” she says, “that is not true.”

“Isn’t it a fact that you were making inquiries into confidential client matters in the firm that you knew you had no business knowing about, that you had been instructed not to involve yourself in these, and that you were fired for that reason?”

“No,” she says, “I was fired after I asked questions about the client trust account. After Mr. Potter was killed, I went to one of the partners about this. I was never told why I was fired. You can draw your own conclusions.”

Nelson is not having his way with her.

“Isn’t it true that after you were fired, you harbored a deep hatred for Anthony Skarpellos?”

“I wouldn’t call it hatred,” she says. “It was more like contempt.”

There’s some snickering in the jury box.

“Fine, you harbored contempt for Mr. Skarpellos. Tell me,” he says, “didn’t this contempt play just a little role in your testimony here today?”

“I testified truthfully,” she says, “to every question.” There is a perfect look of righteous indignation about her, the kind that only older women can project well.

“Come now,” he says, “you’re not going to sit there and tell us that you didn’t enjoy saying some of the things you did today about Mr. Skarpellos?”

“I enjoy telling the truth,” she says.

“Tell me, Mrs. Campanelli, if this information, your testimony, was so important, why didn’t you go to the police with it immediately after Mr. Potter was killed?”

“I,” she stumbles here a little, “didn’t think I had enough evidence.”

“I see. You didn’t think this testimony was worth anything until Mr. Madriani approached you and told you he needed it for his defense, is that it?”

“No,” she says.

“But he did come to you, didn’t he?”

“Yes.” The indignation is gone now. Nelson is beginning to burrow in.

“Let’s talk about these letters,” he says. “There were two of them, is that right?”

“Yes.”

“Do you have copies of them?”

“No.”

“Well, you’re a secretary, don’t you usually keep copies of correspondence you prepare? Don’t you usually file it somewhere?”

“These were confidential letters,” she says. “They were highly personal. They were not filed in the usual manner.”

“I see, so Mr. Potter trusted you to type these letters, but he didn’t trust you enough to keep copies of them?”

He’s pummeling her now. Jo Ann is looking at him, meanness in her eyes. There is no way she can answer the question-like asking whether she still beats her husband.

“Isn’t it a fact,” he says, “that you never heard any argument between Mr. Potter and Mr. Skarpellos, about trust accounts or anything else?”

“That’s not true …”

“Isn’t it a fact that you concocted this entire story to provide Mr. Madriani with a defense and to get back at Mr. Skarpellos, who fired you?”

“Was he the one?” she says.

Nelson looks at her, taken aback for a moment.

“They never told me who did it,” she says. “They didn’t have the guts.”

Nelson has left himself open for this one. I don’t know whether the jury is buying it, but Jo is playing it for all it is worth.

“If I’d known, I would have been here sooner,” she says. “But my testimony would have been the same.” Her neck is bowed, like a rooster in a cock fight. She looks him dead in the eye. And after several seconds it is Nelson who blinks, then finally looks away.

No, I think, this will not come off as sour grapes.

After the morning break, Acosta asks me if the defense has any more witnesses. I have left them in the dark about Talia’s intentions, whether she will take the stand or not.

“Your Honor.” I rise from behind the counsel table, and I look down at my client with a purposeful gaze, as if pondering at this last moment what to do, whether to put Talia up or not.

“Considering the evidence, Your Honor, I see little purpose in subjecting Mrs. Potter to any more trauma. She’s been through a great deal. We have decided that in light of the state’s case we see no purpose whatever to be served in putting her on the stand.”

I make this look like some last-minute decision, something that I have landed on on the spur of the moment, grounded on the weakness of the state’s case.

Nelson is looking at me dumbfounded. These comments are highly improper, except that in a death case everything is fair game.

“Your Honor,” he says. “I object.”

“To what? My client not taking the stand? That is her privilege. The burden is on you to prove your case,” I say, “and you have failed.”

At this his eyes nearly bulge from his head.

“No,” he says, “I object to these gratuitous comments. The justifications for why he won’t put his client on the stand.” He’s imploring Acosta.

“The state is not permitted to comment in this area,” I tell Acosta. “Mr. Nelson is asking for a mistrial.” Having goaded him, I now complain about Nelson’s response.

Acosta is banging his gavel, telling us both to be quiet.

“That will be enough,” he says. “The defendant has chosen not to testify. That is her right. I instruct the jury to disregard all of the comments of both counsel. These are not evidence and are not to be considered by you in arriving at your verdict.”

Some trial lawyers call this cautionary instruction “the green-striped zebra rule.” A jury told that it may think of anything, anything in the world, except a green zebra, will of course envision, to the exclusion of all other objects in the universe, a green-striped zebra. It is not so easy for Acosta to kill this seed I have planted. Jurors now at least have a plausible explanation for Talia’s silence, one they have been told not to consider, so of course they will, not collectively, but in the dark recesses of their individual consciousnesses. It is at least an explanation, something to counter the natural inclination that only the guilty remain silent.

“Mr. Madriani, do you have any further witnesses?”

“The defense rests,” I say.

“Very well,” says Acosta. He looks at his watch, considering whether to continue today or to resume in the morning. “We will have closing arguments tomorrow, starting at nine o’clock. I would advise you both to be ready. This court stands adjourned.”