Compelling Evidence

CHAPTER 35

In the afternoon Nelson calls his final witness, Tony Skarpellos. We’ve done battle over this during our motions in limine, before the trial began. Harry and I moved the court to bar Skarpellos from testifying, on grounds that his original association with Talia’s defense, the employment of Cheetam and his hand in hiring me, now taints him with a conflict of interest.

Even before my present legal leprosy, Acosta rejected this argument. He bought Nelson’s contention that the Greek was never of counsel in the case, and that while he may have acted as a middleman in financing the early phases of her defense, Tony was not privy to any confidences with Talia, and therefore not barred by the attorney-client privilege. This may provide a little food for appeal if we lose.

I have done one other thing to blind Tony in this case. Among the shills on my list of witnesses I have placed the name of Ron Brown, Tony’s gofer in the firm. This has kept Brown out of the courtroom, sequestered like the other witnesses. He is unable to sit here and listen, as the eyes and ears of the Greek, and shuttle accounts of witness testimony to Skarpellos, to allow the Greek to conform his testimony accordingly. The other young lawyers in the firm are not likely to humor Tony with such duty; their tickets to practice are too dear.

Today the Greek is full of bluster and vinegar, a cock on the walk in a thousand-dollar gray pinstripe. He doesn’t do well in court, but Tony could always dress the part. He swaggers down the center aisle and to the stand, where he is sworn. Skarpellos doesn’t fix me with a stare until he’s in the box, seated. Then he nods to Nelson, a little greeting, like he’s ready to bury us.

Tony’s broad features seem magnified in this setting, a bearing and demeanor to match his ego.

Nelson waltzes him through his early days with the firm, how he came to meet Ben, and how they formed a fast friendship and prospering partnership. To listen to Tony, it was all amity and good cheer, two legal giants taking the high road to success. He mentions Potter’s imminent appointment to the high court. The Greek is working up a little fame-by-association before the jury, the theme being that Ben couldn’t have done it without him.

Against this background Nelson is laying the silver lining of his pitch with the Greek, that here is a man immanently trusted by the victim, a man to whom Benjamin Potter confided his most private thoughts and actions.

He wastes no time getting to the heart of it.

“You were interviewed by the police twice during this investigation, is that correct?”

“Right,” says Tony.

“Once about a week after the murder and the second time more recently, when you called the police and told them some things you had forgotten about?”

“That’s correct.”

Nelson unfortunately has benefited from Tony’s statement in my office, a necessary price I pay for the big dividend, the fact that Skarpellos can’t testify with certainty that Talia was aware of the stated plans for divorce by Ben. A hole in their motive.

Nelson is shoring up some of the weak spots. Tony’s convenient memory until just before trial, when he called the police to lay on them this revelation, Ben’s impending divorce, is now just an innocent oversight.

“During that second interview by the police …” Nelson looks for the date and pins it down. “You told them that the victim, Benjamin Potter, had a private conversation with you. Could you tell the court the substance of that conversation?”

“Objection, Your Honor, hearsay.” Harry is on his feet. We’ve decided that Harry will do Skarpellos here and on cross. The Greek is less likely to ignite with Harry. I will take him later, when we recall him in our own case for Talia.

“Exception,” says Nelson, “state of mind.”

Harry’s shaking his head at this. “Under the circumstances, Your Honor, they are one and the same.”

Acosta waves them on to approach the bench, off to the side, away from the witness. There’s a lot of verbal dueling here, Harry and Nelson.

Talia leans over toward me. “This is a total lie,” she says. “Ben never said anything about divorce.” This is loud enough for the jury to hear, but the judge is occupied with Nelson and Harry. Meeks is giving us dirty looks from the other table. It is as close to testifying as Talia will get in this case.

They are still going at it at the bench. The issue is whether this testimony, the Greek’s recollections of what Ben told him outside the courtroom, is indeed hearsay, or whether it is subject to one of the myriad exceptions to the hearsay rule. In fact Nelson’s argument is that it doesn’t fall within the rule. Under the law, if an out-of-court statement is being offered to prove the truth of the matter stated, it is hearsay, the policy being that the party making the statement is not in court and therefore not available to be cross-examined.

Nelson insists that Ben’s statements about divorce are not being offered to prove that he in fact was seeking a divorce, but to show his state of mind, that he was thinking about it. This is a difference without a distinction, and Harry is telling the court this.

It’s a fine point, and one that is lost on Acosta. He gestures them back away from the bench.

“Objection overruled. I’ll allow it.”

“Mr. Skarpellos, tell us about your conversation with Mr. Potter,” says Nelson.

“We were talking about business, in my office, Ben and I, and out of the blue he says, ‘Tony, I want you to know I’m makin’ plans to divorce Talia.’ Of course, I was shocked to hear this,” he says. “I mean, I don’t know what to say to the guy.” The Greek is all animation and hand gestures, open palms faceup. Like he’s no Dr. Ruth.

“When did this occur, this conversation?”

Skarpellos pegs it about four months before Ben was killed.

“When he told you this, what did you say to him?”

“I can’t remember,” he says. “I think I was too shocked to say anything.”

It gets more elaborate from here. Skarpellos tells the jury that he and Ben talked openly about a good divorce lawyer. It seems there was no one in the firm who could do this work, so Potter relied on Tony to come up with a few good names. At least this is Tony’s version of the story.

“He’s lying.” Talia’s at my ear again.

“Did you ever give him any names?”

“Checked around, and the next day,” he says, “I gave him three of the best in town.”

“Why was it so important to get a good lawyer?” asks Nelson.

“The prenuptial thing,” says Skarpellos. “They had a prenuptial agreement, Ben and Talia, and Ben was sure that she, that Talia would try to knock it over. To get around it so that she wouldn’t be cut out completely.”

Talia’s looking at me like this is some fantasy.

“Do you know why Mr. Potter wanted a divorce?”

“There was talk in the office …”

“Objection, hearsay.” Harry’s cut him off.

“Sustained.”

“Do you have any personal knowledge as to why he wanted a divorce, Mr. Skarpellos?”

Tony looks directly at me, mean little slits. “Yeah,” he says. “Ben told me he wanted to marry someone else.”

There’s a stir in the courtroom.

“Who?” says Nelson.

“I don’t know. He didn’t say. Just that he wanted to keep it under wraps until after the nomination was confirmed.”

“His appointment to the court?”

“That’s right.”

There’s a rumble through the courtroom. Two reporters have crushed five others in the aisle making for the door and the minicams outside.

I’m sitting in my chair looking at the Greek, stunned that even he could come up with this.

Talia’s in a daze. “This is not true,” she says. “I would have known.” This is directed to me, but her voice carries, and Acosta is on us with his gavel.

“Mr. Madriani, tell your client to be quiet.”

He looks out and by this time there is bedlam in the seats behind us. The two rows of chairs reserved for the press are empty. If someone were to shoot the judge now, no one would notice. Such is the initiative of pack journalism. In the audience, those who heard the Greek’s words are repeating them to others who did not. Like a cheap recorder with ghost sounds, this message comes back a hundred times.

“Nothing more of this witness, Your Honor.” Nelson has all he could ask for, a looming motive for murder.

“A short recess, Your Honor?” Harry’s on his feet.

“Order, or I’ll clear the courtroom,” says Acosta. He slaps the gavel twice and the clamor of voices comes down a few decibels. “Those reporters who left,” he says. “They get at the end of the spectators’ line when they want to come back in.” The ultimate penalty. Longer than probation in most criminal cases is the wait in line outside this courtroom. Acosta’s pointing with his hammer at the bailiff near the back door to make sure that he understands this latest wrinkle in house rules. The cop nods. Reporters are not used to queuing up behind other mere mortals for access to the news. Acosta’s sending them a message. Disrupt his courtroom, and you join the line from hell. Three journalists, halfway to the door when they hear this edict, return to their seats.

The judge is now looking at Harry almost as an aside. “No recess,” he says. “We’re going to get this over with now. Cross-examination, Mr. Hinds.”

Harry’s looking at me, like “Gimme a break.” “What if I had glass kidneys?” He says this in a whisper, turning to me as he crosses in front of our table on the way toward the witness.

“Quite a story,” he says. “I almost don’t know where to begin.”

“You might start with a question,” says Acosta.

“Right, Your Honor.” It’s Harry’s best deadpan.

“Mr. Skarpellos, you say that when your partner told you he was going to divorce his wife you were unable to say anything to him because you were too shocked, is that correct?”

“Yeah. I was surprised.”

“Then from all appearances they had a happy marriage?”

“What do I know?” he says.

“That’s what we’re trying to find out, Mr. Skarpellos.”

“The witness will answer the question.”

“I don’t know,” he says. “Ben wasn’t real happy the day he told me about the divorce.”

“Let’s get to that day,” says Harry. “You say that Mr. Potter told you he was going to divorce his wife, and that he asked you for the names of some good divorce lawyers, is that correct?”

“Right.”

“And the next day you gave him the names of three good lawyers?”

“Right.”

“Very prompt of you,” says Harry. “Did you think this was an emergency that required immediate attention?”

“When a friend asks for help, I give it,” he says.

“I see. Who were these lawyers?”

“What do you mean?”

“What are their names, the three lawyers you recommended to your partner?”

“I can’t remember. It’s been a long time. These weren’t guys I knew. I had to check around to get their names. Wrote ’em down and gave ’em to Ben, that’s all.”

“Checked them out thoroughly, did you?”

There’s a sneer from Skarpellos.

“To your knowledge, did Ben Potter ever hire any of these lawyers?”

“I don’t know.”

“Did he ever talk to you again about any intentions to divorce Talia Potter?”

“No. Just the one time.”

Harry takes him over the falls on the issue of why he failed to tell the police about this conversation sooner, during his first interview with them. Skarpellos says he forgot, and Harry makes some points with the jury, a rehash of the deposition.

“A man is reported to have killed himself, and you don’t think it’s significant that he’s talking about divorce, a shattered marriage? You don’t think he might be depressed by such things?”

“Like I say, he was thinking of marrying somebody else.”

Skarpellos wrings his hands in the box a little, gives a shrug, like “Whadda ya gonna do.” “I didn’t think,” he says.

“But you remembered this conversation fast enough after the defendant was charged with murder?”

“Sure,” he says. “I thought it might be important.”

I can see some of the jurors making mental notes in the box on this. The Greek will not be winning any credibility awards today.

“Do you know for a fact whether Ben Potter ever told his wife he was planning on divorcing her?”

“No.”

“So he never told you that in fact he had ever discussed the subject of divorce with Talia Potter, isn’t that correct?”

“True.”

“To your knowledge, then, it’s possible that Talia Potter never knew that Ben Potter had ever contemplated divorce?”

“Objection.” Nelson’s on his feet. “Calls for speculation on the part of the witness.”

“Sustained.”

It doesn’t matter; Harry’s made the point with the jury.

“Mr. Skarpellos, isn’t it a fact that during the early stages of Talia Potter’s defense in this case you actually met with the defense attorneys representing her and arranged to advance fees and other costs for her defense?”

“Objection,” says Nelson. “This exceeds the scope of the direct examination.”

“Bears on the witness’s credibility, Your Honor, bias or motive for his testimony.”

“I’ll allow it,” says Acosta, “subject to a motion to strike if counsel fails to tie it together.”

Harry looks at Skarpellos, waiting for an answer.

“I did advance some fees,” he says. “It was a business deal. An advance against the purchase of Mr. Potter’s interest in the firm.”

“And at some point you stopped advancing those fees, isn’t that correct?”

“Yes.”

“Why?”

“I couldn’t afford it any longer.”

“Come, come, Mr. Skarpellos. Isn’t it a fact that you stopped advancing fees to the defendant because you believed that she would be convicted, and that if this happened you stood to inherit Mr. Potter’s interest in the firm without the need to purchase it?”

“No,” he says. “I don’t know any such thing.”

“Isn’t it true, Mr. Skarpellos, that if Talia Potter is convicted in this trial, by virtue of Ben Potter’s will you stand to inherit the bulk of his estate, his entire interest in the law firm, a fortune, millions of dollars?”

“Objection,” says Nelson.

“I wouldn’t know. I have no idea what was in his will.”

“I see, he let you into his confidence regarding his divorce, but not his will.”

“Objection, Your Honor.”

“Strike that last comment. The jury will disregard the last comment of defense counsel.”

“Nothing more of this witness, Your Honor.” Harry has set the stage.

“Redirect?” says Acosta.

“Nothing, Your Honor.” Nelson’s not going to touch it.

Harry turns to the bench. “We reserve the right,” he says, “to recall this witness during our case in chief. We would request that the court hold him available.”

“So ordered,” says Acosta. “Mr. Skarpellos, you will remain on call until you testify in the case for the defense or the defense has rested. Do you understand?”

The Greek is angry. He’d thought this was the end of it. He figured he was getting by cheap.

Nelson has finished his case. The state rests.