The Judge

CHAPTER 25

After the testimony on the eyeglasses, Kline brings on his next witness like icing on the cake, cream in your coffee, or a nail in your coffin, depending on your point of view.

With hair that went fully white before he was fifty, Oscar Nichols has an amiable face and a soft sermonizing style that makes the passing of a sentence in criminal matters sound like a religious experience. There is a certain ethereal quality to his manner that has caused the less benevolent of the courthouse crowd to refer to him over the years as “Uncle Remus.”

He is not an imposing figure. I would guess he stands five feet six and weighs a hundred and fifty pounds with sand in his pockets. He has a kind of permanent smile etched in his cheeks, grin ridges like cement. His ascendancy to the bench lends credence to the theory that the meek shall inherit the earth, or at least that portion of it inside the bar railing. To this day I do not know his politics. He runs his court by consensus, an endless search for agreement among the disagreeable-a kind of legal burlesque in which prosecutors and defense attorneys who despise each other haggle over justice for defendants who would kill them both if the guards would only remove the shackles.

Nichols is everyman’s vision of the benevolent grandfather, a monument to innocence who prays at the altar of trust. He would give matches to an arsonist who said he was cold. He would also, in a pinch, do the right thing, which unfortunately at this moment means offering incriminating testimony against an old friend.

This morning Acosta seems almost relieved to see him. I have to stand and do barricade duty in the aisle to keep the Coconut from talking to the witness who is about to hang him. Even with this they get in a quick exchange of pleasantries-inquiries about each other’s wife and family, the press taking notes.

Kline is busy pushing some papers at his table across the gulf, while he confers with one of his associates. He has been deft in his handling of these last witnesses, making up for lost ground.

With the glasses he laid a nice trap, discovering evidence that was outside of the loop, spectacles not purchased from Acosta’s regular optometrist and therefore not discovered by us. For Armando’s part, he has apologized profusely for this oversight. He now remembers that the glasses were last seen in his house months before. He has no idea how they came to be found at the scene of a murder.

My cross of Hazlid was an exercise in damage control. I picked around the edges, the only point of any import, the missing temple screw. On this Hazlid threw me a bone, acknowledging that based on the condition of the screw hole, the lack of torque and twisting around it, it is probable that the screw was missing before the glasses were trampled in Hall’s apartment. Forensics never found the screw, and Hazlid testified that it would be difficult if not impossible to use the glasses without it.

From this I drew conjecture, that the witness could not discount entirely, that it was possible that the glasses had been discarded by their owner, perhaps tossed aside where anyone could have found them. The inference is clear; somebody planted them. Whether the jury will buy this is another matter.

Nichols presents a different set of problems. From a strategic point the difficulty is the relationship between the two men. It goes back twenty years. Everyone in the courthouse knew they were tight. If there was one person on a professional plane that Acosta would have confided in, it was Oscar Nichols. It is this friendship, and the notion that Nichols has now been persuaded that Acosta is guilty, that is the most damaging aspect-a friend, a judge, who has made his own judgment. Coming on top of the glasses, this is certain to have an insidious effect on the jury.

Kline stumbles on the social proprieties starting off. He calls him “Your Honor” and then corrects himself, referring to Nichols instead as “Judge.” This seems to run contrary to his earlier insistence that there should be only one judge in the courtroom using the title. But Kline is not one to be shackled by consistency.

“Judge Nichols, would you tell the jury how long you have known the defendant?”

“More than twenty years,” he says.

“Would you consider yourself a friend?”

Nichols looks over at Acosta and issues a deep sigh, something painful that could be read in many ways. “Yes. I would.” Then adds: “I hope so.”

If his voice were analyzed for stress at this moment, it would send the dial off the meter, pencil marks skittering over the edges of the graph paper.

Kline disarms and inveigles, floating up marshmallow questions about the cloistered nature of the judicial branch, the loneliness of judging, and the need to confide, like gods, only among themselves.

“I suppose this would spawn an element of trust among colleagues?” says Kline. “To share things?” He means their darkest secrets.

“I suppose, on professional matters over the years,” says Nichols, “you would develop confidants. People you could talk to.”

This is not exactly what Kline had in mind.

“And on personal matters. I suppose you would discuss those, too?”

“It happens,” says Nichols.

“Would you say that in the past you’ve had such a relationship with the defendant?”

“At times.”

“And is it fair to say that at times he’s had the same kind of confidential relationship with you? He would talk, share things?” Kline is animated, filled with gestures of good faith to show he has no cards up his sleeves.

“Yes.”

“So you shared things back and forth?”

“At times.”

“Judge Nichols, are you familiar with the Silver Street Diner, just down the street from the courthouse?”

“Yes.”

“Do you sometimes have coffee there?”

“On occasion.”

“Is it one of those places where judges sometimes go to get away from the courthouse?”

Nichols weighs this. Then concedes. “At times.”

“Where you can have a private conversation without a lot of lawyers, or maybe the media looking on?”

“Leading and suggestive,” I tell Radovich. The diner is not after all the village confessional.

“Sustained.”

“Anyway you can go there and get away from the courthouse?” Kline is back to where he started.

“Yes.”

He draws the witness to the twenty-fifth of June last year and asks him if he remembers a conversation with the defendant at the diner.

“Yes. I remember.” Nichols’s voice goes up an octave, anxiety registering as pitch. He takes a drink of water from the glass on the railing in front of him, and has trouble looking at Acosta as he does this.

“Do you recall who suggested having coffee that day, whether it was you or the defendant?”

“I think it was Judge Acosta,” says Nichols. For a moment he looks over as if perhaps he is going to ask, “Armando, do you remember?” But then he realizes where he is.

“Did the defendant come and get you in your office in the courthouse?”

“I think he called.”

“Why didn’t he just come downstairs and get you?” Kline knows the answer. By that time Acosta had been suspended from the bench following the prostitution arrest. He wants the witness to say this.

“He wasn’t there that day,” says Nichols.

“Why not?”

“Because of the difficulties a few nights before.” This is Oscar’s shorthand for saying that his buddy had been busted seeking party favors.

When Nichols tries to cut the corner, taking this edge off, Kline brings him back, reminding him of this ugly incident, the prostitution sting.

“Yes. That’s right,” Nichols says. “He’d stepped down from the bench.”

“Stepped down or suspended?” It’s clear Kline’s not getting a lot of help from Nichols. Perhaps the witness is having second thoughts.

“I suppose ‘suspended’ is the proper term,” says Nichols.

“Good,” says Kline, “so that we get it right for the record.”

Nichols is back at the glass of water, wiping sweat from his forehead, shooting a glance at Acosta, who by now is stone-faced, issuing only an occasional shrug when it comes to the facts he cannot deny, a kind of dispensation offered to a friend.

“I take it this is uncomfortable for you?” says Kline.

A long deep sigh from Nichols. “It’s not fun,” he says.

Kline knows that the more painful this is, the more likely the jury is to accept Nichols’s testimony as truthful.

“Was there anyone else present other than yourself and the defendant during this conversation over coffee?”

“You mean at the diner?”

“Yes. At the diner.”

“No. Just the two of us.”

“And do you recall what the conversation was about?”

“He was. .”

“The defendant?” says Kline.

“Yes. The defendant was. .”

Kline manages to put the word in Nichols’s mouth while the witness is busy searching for a term that will lessen the impact of what he has to say. Nichols finally settles on “upset.”

“And what was he upset about?” says Kline.

“The arrest,” he says.

“This would have been the prostitution arrest?”

“Yes.”

“Now, upset can mean a lot of things to different people,” says Kline. “When you say upset, what exactly do you mean?”

“I mean he was upset.” Nichols is not going to offer synonyms and allow Kline to take his pick of the most damning.

“Do you mean he was sick?” says Kline.

Nichols mentally chews on this, knowing it is not what he means at all, but then finally says: “In a way he was sick.”

“Or was he mad? Angry?” Clearly Kline would prefer one of these.

“That, too,” says Nichols.

Kline concentrates on the portion reflecting anger and asks whether this was directed at anyone in particular.

“At the police generally,” says Nichols.

What is happening here is clear. Kline is trying as much as possible to skirt the issue of a frame-up, the assertion that Acosta believed he was set up by the cops in the prostitution case. He would play it straight up that he was angry solely because he got caught.

He beats around this bush with a few more questions, and finally does not ask the ultimate question; the reason for this anger. Instead he tries to focus it.

“Was there anyone specific on the police force or perhaps, more to the point, working with the police, who was singled out by the defendant as the subject of this anger?”

“You mean the woman?” says Nichols.

Kline doesn’t respond but leans forward, peering over the top of his glasses at the witness, as if some unseen magnetism is drawing him toward the stand.

“It’s true that his words were directed at her,” says Nichols.

“You’re talking about the victim, Brittany Hall?”

“Yes,” says Nichols.

Kline licks his lips, finally to the point.

“Now, Judge Nichols.” He centers himself before the witness stand, legs spread a little, knees locked, his arms outstretched, palms facing each other like a skier cutting water behind a boat. “I want you to concentrate, think only about those portions of your conversation with the defendant that involved comments regarding Ms. Hall.” Kline stops and looks at the witness as if to say “Have you got that?”

Nichols nods like he does.

“Now I’d like to ask whether you can recall specific statements made by the defendant, his own words if possible?”

There’s a considerable pause as Nichols takes in all the parameters. He glances toward Acosta, who is not at this moment looking at him.

“There are things I remember,” he says. “How specific I’m not sure. It’s been a long time,” he says.

“Take your time,” says Kline.

“I know he said that Ms. Hall lied,” says Nichols.

“That’s good. What else?” He doesn’t ask the obvious question, lied about what?

So far Kline has navigated through the shoals of causation, the underlying reason for Acosta’s fury, the alleged setup by the cops on the prostitution sting. He is banking on the fact that since this does not qualify as an admission against interest by the defendant, that Radovich will exclude any reference to the alleged frame-up as being hearsay. If we want to get it in we would have to put Acosta himself on the stand. The naked underbelly of our case.

“During this conversation how did he refer to Ms. Hall, by name, or in some other way?” Kline tiptoes through this minefield trying to avoid asking the wrong question, opening the door.

“Yes. He called her some names,” says Nichols.

“Do you remember what names he used?”

“They were foul, out of character for Armando,” he says.

I would question how well he knows my client.

“Move to strike the answer,” says Kline.

Radovich leans over. “You’ll have to answer the question,” he says.

“He. . ah. . he referred to her as a lying cunt.”

“Those were his words?” Kline faces the jury head-on. “Lying cunt?”

“It’s what he said.”

“Did you hear any other references?”

“No. No. He just called her that word, and said that death was too good for her.”

“He said this?” Kline feigns surprise, as if it is the first time he is hearing this. “He called her a lying cunt and said that death was too good for her?”

“That’s what he said.”

“Did he say this out loud or in a whisper?” asks Kline.

“Under his breath.”

“But you could hear this?”

“Yes. I don’t think he meant anything by it.”

“Move to strike the last response,” says Kline. “The supposition of the witness.”

“The jury will disregard it,” says Radovich.

Kline takes a step back from the witness, turns, and runs a forefinger over the cleft of his chin.

“You still consider yourself a friend of the defendant, don’t you?”

“I do.”

“And do you think he considers you a friend?”

“Calls for speculation.” I try to get him off the hook.

“Sustained.”

“But you would like him to still be your friend, wouldn’t you?” Another way of saying the same thing.

I object as leading, but Radovich overrules it.

Nichols looks over, a face filled with doubt. “I hope that he still is.”

Suddenly I look over and realize that this last statement by the witness has driven Acosta into a cocoon. He will not lift his gaze to his old friend, something I have told him he must do, to face this moment head-on before the jury. He is downcast, dour, a whipped dog.

Kline suspends the questioning, sensing an opportunity to capitalize. At this moment every set of eyes in the courtroom is on the defendant, who is now the very posture of guilt.

Kline cannot believe his good luck. He actually assumes a startled expression, staring at the defendant, and stretches this moment of silence to an awkward pause so that the judge has to chide him to move along.

Finally with this distraction I am able to reach over with an arm on Acosta’s shoulder, a show of support in a difficult moment. His head slowly comes up, and I notice for the first time that his eyes are moist.

“Judge Nichols, isn’t it true that you were questioned during the grand jury proceedings?”

“Hmm?” Kline’s question rouses Nichols from his own reverie, the pain of watching Acosta.

“Oh, yes,” he says.

“But you never told the grand jury about the defendant’s comments, what you testified to here today?”

“No.”

“Why not?”

“I wasn’t asked.”

“And yet you came forward in these proceedings and disclosed this information. Why?”

It’s like a stake through our heart, what motivated this sudden show of candor. Nichols had to know this moment would come, and yet the look on his face makes it evident that he is not prepared with an answer.

He stumbles, comes up with something lame.

“I thought it was something that needed to be said,” he tells Kline.

“Why?”

“It was evidence.” Nichols looks at the jury as he says this, clearly assuming that this will suffice.

“It was also evidence at the time of the grand jury, wasn’t it?”

“I suppose so.”

“But you waited until now?”

“Yes.”

“Why is that?”

Nichols doesn’t respond, but looks up toward the ceiling collecting his thoughts, looking for a way out without inflicting more damage. He is counting the holes in acoustic tile and praying.

Kline allows the pregnant pause, then picks up the beat.

“Judge Nichols, is it fair to say that at the time of the grand jury proceedings you had doubts concerning the defendant’s guilt, and that as you sit here today you no longer have such doubts?”

“Objection, Your Honor. Outrageous.” I’m on my feet. Harry is up as well, and for an instant I think I hear some profanity cross his lips.

Nichols actually responds to the question, and if I can read lips, he says, “No,” but no one in the room can hear this, least of all the court reporter, who in the maelstrom gives up and takes her fingers off the stenograph keys.

There is chaos in every quarter of the room. While it was the unstated question on every mind, that Kline would actually ask this with the jury present sends Radovich into a fury. The fact that Nichols tried to answer finally brings a delayed refrain from the press rows of “Whadd he say?”

Harry turns and tells them the witness said, “No,” and several of them actually write this down. We may win the media battle and lose the war.

Radovich, still in his chair but leaning over the bench, slaps his gavel on wood. “I’ll clear the room,” he warns.

This brings it down a decibel or two and he turns on Kline.

“That’s an improper question, and I think you know it,” he says. “Get out your wallet,” he tells him. Radovich is going to impose sanctions, here in front of the world. He does not even send the jury out. It is the thing with the prosecution. There is no right of appeal.

The person most surprised by this seems to be Nichols himself. The thought of dressing down a lawyer, much less humiliating him in public, is a notion alien to this judge. He would have hoped to live in more temperate times, when winning was not everything.

“The jury is to disregard the question and any implications,” says Radovich.

“I have no more questions of the witness,” says Kline. He says this almost absently as he fishes for his checkbook in the maroon silk lining of his coat.

“You’re damn right,” says the judge. “It’s gonna cost you six hundred dollars for the last one. Pony up to the clerk,” he tells him.

“I will see counsel in chambers,” he says. “Five-minute recess.” Radovich slams his gavel so hard that the hammerhead separates from the handle and careens across the floor, hitting one of the sheriff’s guards in the foot.

By the time we get inside, Radovich has not cooled. Kline is still pocketing his checkbook and overflowing with apologies. “I spoke before I thought,” he says.

“You may have talked us all into a mistrial.” Radovich is several shades of red.

“I don’t think it’s that serious,” says Kline.

“You aren’t the appellate court,” says Radovich. “At least not yet.” He has been smelling ambition on Kline since the start and now it slips from his lips.

“If there’s a problem it can be handled by an instruction,” says Kline. “They’ve been told to disregard it.”

“Your Honor, the question was clearly laid,” I say. “The jury cannot have missed the implication. They would take a strong lead from the conclusions of a sitting judge, one with no incentive to lie.”

“So what do you want?” says Radovich. “To try this thing again?” He’s looking to see if I’m moving for a mistrial. This he would no doubt deny.

“No,” I tell him.

“Then what?” he says.

“Some leveling of the playing field,” I tell him.

Kline has a wary look. He sees something coming but is not sure what.

“I think it can fairly be argued,” I say, “that Mr. Kline begged the question of motive for my client’s temper, the reason for his intemperate statements about the victim. I think we should be allowed to inquire into this on cross examination.”

There’s a wail from Kline that I suspect can be heard outside in the courtroom. The press is probably wondering if Radovich is skinning him with a cat-o’-nine tails.

“Your Honor, I was very careful not to get into that. It’s beyond the scope of direct.” He moans in front of the judge’s desk, insisting that there is no precedent. “Besides,” he says, “anything Nichols would have to say on that score is clearly hearsay, with no exception.”

“On the matter of precedent,” I say, “there are cases dealing with the context of a witness’s testimony. It’s only fair that the jury should understand the context in which my client made these statements. What motivated them?”

“What could justify such ugly remarks?” asks Kline.

“Why don’t we let the witness tell us,” I say.

“On your own time,” he tells me. “You want to call him in your own case, fine,” he says. “You can ask him what you want.”

The problem with this, and Kline knows it, is that to call Nichols as our own witness would no doubt open the issue of Acosta’s character. Cross this line, and the Coconut’s life is an open book, the pages of which I do not know myself, though I would venture that Gus Lano and the boys from Vice have already penned volumes of this, bound and stacked, waiting to be read.

“Enough,” says Radovich. “You want to get into motive for the statements”-he’s looking at me-“do it.”

“But, Judge. .” Kline’s final appeal is cut off.

“You don’t like it, object,” says Radovich.

He’s done with us, out from behind the desk and heading for the courtroom, Kline and I still squabbling in his wake.

Once there, back at counsel table, Acosta has a hand on my arm, trying to find out what happened.

“Watch and see,” I tell him. “I don’t know.”

Radovich calls the room to order. Nichols is on the stand.

“Your witness,” says the judge.

When I get my opening I do not wait. The theory here is to strike while Radovich is still hot, angry with Kline. If he’s going to give me an edge it will be now.

“You testified,” I say, “that the first thing you remember my client, Mr. Acosta, saying is that Ms. Hall lied.”

“That’s correct,” says Nichols.

“Did he say what she had lied about?”

“Objection. Beyond the scope of direct.”

“Overruled on those grounds,” says Radovich.

“Hearsay,” says Kline.

Radovich wavers only an instant before he pronounces overruled. Kline now knows that this, a bad ruling on evidence, is the balance of his sanction.

“Please answer the question,” I tell Nichols.

He seems delighted to comply. “He told me that she lied about the nature of their conversation the evening he was arrested. That he had never tried to solicit an act of prostitution, but instead had been called by Ms. Hall on the telephone, who asked him to meet with her.”

“Did he tell you why she wanted to meet with him?”

“According to Judge Acosta, she had information for him in connection with a grand jury investigation.”

“Did he say which one?”

“Yes. It involved an investigation into police corruption. Specifically, the Police Association.”

“So according to Judge Acosta. .” Kline doesn’t even bother to object when I use the title. At the moment he is more concerned about the content of the testimony. “He was lured to this meeting with information relating to official duties.”

“Objection. Mischaracterizes the evidence,” says Kline.

“Overruled.”

The fact that Radovich doesn’t think so gives credence to the assumption.

“That’s what he told me,” says Nichols.

“And this is why he was angry?”

“That, and because he said she fabricated evidence,” says Nichols. “False testimony concerning his alleged solicitation.”

“And it was in this context that he made the rash statements that you testified to earlier?”

“Yes. Absolutely.” Nichols is anxious to take the edge off of this if possible. To do his duty without damaging a friend. His kind of justice.

“Did Judge Acosta say anything during this conversation about Ms. Hall being involved with the Police Association, the people under investigation?” I ask.

Nichols thinks hard for a moment. He clearly wants to help, but cannot. He shakes his head. “I don’t think so.”

I of course know the answer to this already. Nichols would have volunteered had he known. Anything to resurrect his friendship. The purpose in asking is to plant the seed with the jury.

“Did he ever tell you that she was closely associated with members of that association, in particular, the officers assigned to Vice who were with her the night Judge Acosta was arrested?” I water and nurture it.

“No. I’m afraid not,” he says.

I turn back toward my table, as if I am finished, then stop at some fleeting afterthought.

“One more question, Judge. I’m curious,” I tell him. “Did you ever tell the police when they questioned you, or the district attorney, about Judge Acosta’s insistence that he was set up, framed on the prostitution matter?”

“Yes. I told them what I told you.”

I look over at Kline. The effect of this is to make clear that he was withholding this from the jury.

“And did they pursue it with you? Did they ask a lot of follow-up questions about the details of what Ms. Hall might have told Judge Acosta to lure him there that evening?”

Nichols’s eyes brighten. He may be a soft touch, but he is not stupid. He sees where I am going, a lifeline to rehabilitate his relationship.

“As a matter of fact, no, they didn’t.” Then before I can turn, he goes the extra yard. “They didn’t seem interested.”

Kline gasps, then holds the objection. He knows the damage is done.