Compelling Evidence

CHAPTER 37

Skarpellos has barely had time to change his suit and he is back on the stand. This time I’m in his face from the start. Harry’s at the table taking notes. I make no bones about it; this witness is unfriendly. With Acosta’s indulgence, grudging as it is, Tony is labeled a hostile witness-giving me license to lead with my questions.

“This story,” I say. “This thing about Ben Potter telling you about some divorce plans, it didn’t actually happen, not the way you say, did it?”

“Absolutely, every word.” He is adamant.

“Did he ever tell you that he’d informed his wife about this? Did he ever come out and say point-blank that he had told Talia that he wanted a divorce?”

I’m treading on safe ground here. If he says anything but a simple “no,” I will confront him with a copy of the transcript from the deposition taken in my office.

He admits that Ben never told him that Talia knew of his plans for divorce. But then he tries to embellish, a little embroidery of speculation.

“Divorce is not something that a husband keeps from his wife. Not when he’s already shopping for a lawyer.” He volunteers this to the jury without any question being posed.

“Move to strike,” I say. “The witness is engaging in pure conjecture.”

“Sustained. The court reporter will strike the response of the witness. Mr. Skarpellos, just answer the questions that are asked.”

The Greek wipes his nose with a thumb and nods, all belligerence, like a street kid who’s just gotten a little snot knocked out of him.

“As far as you know, Mr. Skarpellos, based on your own personal knowledge, what you saw and heard, Ben Potter never told Talia Potter about any plans for a divorce, isn’t that true?”

“Yeah,” he says. He’s getting surly now.

“In the early going in this case, you loaned money to Mrs. Potter for her defense, didn’t you?”

“Damn right,” he says. “And she hasn’t paid me back yet.”

“Your Honor.” I’m looking to Acosta to jerk his chain one more time.

“Mr. Skarpellos. We have a small cell downstairs that we reserve for uncooperative witnesses. I do not want to have to tell you again.”

The Greek is drawing a deadly bead on him.

“How much did you lend Talia Potter in this case?” I ask him.

“I don’t know, seventy-five, eighty thousand.”

“Eighty thousand dollars?” I say.

He nods.

“No trifling amount,” I say. “You did this out of the generosity of your heart, and for no other reason?”

He looks at me bristling. He knows I have copies of the loan agreements he forced Talia to sign, the ones that post Ben’s share in the firm as collateral for these loans.

“I extended some money to her because her husband’s estate was all tied up. She needed the money to pay you,” he says.

He turns it around, makes it look as if I am some bloodsucker.

I smile at him and move away.

“You have a reputation in this town,” I say, “for being a shrewd businessman. These were not what you would call signature loans, were they? They were collateralized, secured by property held by the defendant, weren’t they?”

“You don’t give eighty thousand dollars away on good looks,” he says. He’s giving a single, beefy laugh for the benefit of the jury.

“And what collateral did you hold as security for these loans?”

“A note for Potter’s interest in the firm,” he says.

“A firm worth many millions of dollars,” I say, “and you extended a loan of eighty thousand. Some would call that more than shrewd, Mr. Skarpellos. Some might even call it predatory.”

“Call it what you want. She needed the money, and I gave it to her when no one else was there.”

I nod, making a face toward the jury, like “Maybe this is something only a loanshark can fully understand.”

“I suppose you lent her money because you thought she was innocent of these charges?”

“No,” he says. “I lent her money because she needed it.”

I’m pacing toward the jury as he says this, and I stop dead in my tracks, big eyes looking at them. A little mock surprise.

“So you believed that Talia Potter murdered your partner, that she killed one of your best friends, and you thought you would lend her a little money for her defense, just for kicks? Or was this a business proposition you simply couldn’t pass up, a once-in-a-lifetime deal that you had to get in on?”

“I don’t know,” he says. “I wasn’t thinking. Things were going pretty fast.”

“Well, which is it, did you think she committed the crime or not?”

“Objection, calls for speculation on the part of the witness,” says Nelson.

He’s a little slow getting to this.

“No, it doesn’t,” I say. “I’m trying to find out the state of mind of this witness at the time he made these loans. What motivated him to give money to a woman who was charged with killing his partner.”

Acosta makes a gesture from the bench with one hand, like the pope giving a lazy blessing; then he lets me go on probing this area. It seems some of his rancor is beginning to diminish.

“At the time I made the loan, I didn’t know whether she committed the crime or not,” says Skarpellos.

“I must admit, I’m confused,” I say. “You are here testifying in this case, telling this jury that Ben Potter was going to divorce his wife, supplying what would appear to be a neat motive for murder, except for the fact that Mrs. Potter apparently didn’t know about this divorce, and all the while you don’t know whether you think she murdered Ben Potter or not. One day you’re financing Talia Potter’s defense and the next you’re here testifying against her.”

“Objection,” says Nelson. “Is there a question in there somewhere?”

“I was subpoenaed,” says Skarpellos.

“The witness seems to think so,” I tell Nelson.

He sits down.

“But you were not under any court order, you were not compelled to call the police, to volunteer this story that you claim you forgot about, this tale of marital woe that you say was related to you by Mr. Potter, were you?”

“No. I called because I thought it was important.”

“We’ve been over all this,” says Nelson.

“So we have,” says Acosta. “Mr. Madriani, move on.”

“Certainly, Your Honor. Let’s talk about Mr. Potter’s estate,” I say. “Did you know that your partner Mr. Hazeltine had prepared Ben Potter’s will?”

“Objection,” says Nelson. “I thought we agreed this was irrelevant.”

“Maybe you agreed it was. I did not,” I tell him. “I’m prepared to make an offer of proof, Your Honor, out of the presence of this witness, demonstrating that this is not only relevant but vital to Talia Potter’s defense.”

Acosta waves us up, a little sidebar at the far end of the bench, away from Skarpellos.

I tell him that other witnesses we will present will tie this together, will show its relevance. In hushed tones I tell them that the Greek had a great deal to gain from the death of Ben Potter. I show them the operative paragraph of Ben’s will, the part that makes Skarpellos his principal beneficiary, but only if Talia Potter cannot be. Nelson argues, under his breath, until I silence him.

“This witness has lied to your own investigators,” I tell him. “Have you checked his alibi for the night of the murder?”

“We have,” he says. “It’s ironclad.”

“It’s a lie,” I say. “He has tampered with another witness, and I will prove it.”

These are serious charges, and Acosta is taking full note.

We back away from the bench.

“I will allow it,” says the judge. A major victory from the briefest moment of whispered argument. I can tell this has an effect on the jury. They are wondering what I have told the Coconut that would make such a difference.

“Mr. Skarpellos,” I say, “did you know that your partner Matt Hazeltine prepared a will for Ben Potter?”

“I don’t know, I may have.”

“Did you ever talk to Mr. Hazeltine about that will?”

He pauses, looking at me. The lie in his eyes, but not yet on his lips. He’s wondering if I have talked to Hazeltine, if I will recall him to the stand. Mostly he is wondering if Hazeltine will commit perjury to conceal what happens in every law office with every confidence that is chewed over by lawyers who believe they are exempt from the canon that a client’s secret is sacred.

“We might have,” he says.

“You might have talked about Ben Potter’s will with Mr. Hazeltine. Surely you’d remember something like that?” I say.

“We talk about a lot of things in the office. I can’t remember them all.”

“I see. You discuss confidential attorney-client information openly among yourselves in the office. This is sort of like gossip?” I say.

“No.” He says this with a good deal of contempt. “Sometimes it’s necessary to talk among colleagues, to discuss things, advice,” he says. “You know.”

“Are you telling us that Mr. Hazeltine came to you and asked for your advice on how to draft Mr. Potter’s will?”

Suddenly his shoulders have a life of their own, shrugging like he’s trying to get this monkey off his back. “He might have,” he says.

“But you can’t remember?”

“No, I can’t remember.”

“Then let’s make this clear,” I say. “For the record, Mr. Skarpellos, isn’t it true that you and Mr. Hazeltine discussed Mr. Potter’s will and that Mr. Hazeltine told you that you had been named as Mr. Potter’s principal beneficiary in the event that something might happen to Mrs. Potter? Isn’t that true?”

It’s a calculated risk. But then I know the dynamics of that place, the firm, and what Tony Skarpellos can exact from the other partners.

“We might have,” he says.

“You might have?” I thunder at him.

“OK, we talked about it. All right?”

“All right,” I say. I ease the pitch of my voice back down, smiling a little, as if to say “See how easy that was?”

I turn and head for the counsel table and a drink of water, like I am toasting a major point that has just been scored. As I pour from the pitcher Harry slides his note pad sideways. The next item on our agenda. I replace the copy of Ben’s will, which I’ve been carrying, and pull another document from files Harry’s organized on the table.

I’m back at Tony in the box.

“Mr. Skarpellos, you were interviewed by the police shortly after the death of Mr. Potter, is that correct?”

“Early the next morning,” he says. He tells us how the cops got him out of bed at three in the morning to inform him that Ben was dead.

“I assume you immediately went to the office?”

“Right away.”

“Who did you talk to?”

“The guy heading up the investigation. Captain Canard.”

“Good,” I say. I’m moving in front of the witness box, seemingly pleased that I have gotten him this far.

“Do you remember what you talked about with Captain Canard?”

“It was confusing,” he says. “A lot of chaos in the office. Cops all over the place.”

“But what did you talk about?”

“He asked me if I knew of any reason why Ben should take his own life.”

“And what did you say?”

“I never bought the suicide,” he says. “I told him no.”

I nod that we are in agreement, at least on this point, like maybe I’ve finally buried the hatchet, like maybe we’re making up. Skarpellos is breathing a little easier now.

“What else did you talk about?”

“He asked if I knew of anybody who might want to kill Ben, anybody with a grudge.” According to the Greek he thought this a little strange, but then considered the questions of possible foul play as part of the police ritual.

According to Tony, Ben was a prince, a man loved by all, and he told this to Canard.

“It was all pretty routine?” I say. “The questions you’d expect?”

“Sure.”

“I suppose they asked you where you were that night?” This is in the police report I have taken from Harry’s stack of documents on the table.

“Yeah. They asked.”

“What did you tell them?”

“I went to a basketball game in the city that night.”

“Oakland?” I say.

He nods.

I remind him about the record and the court reporter, and he puts it in words.

“Who played that night?” I say.

He looks at me, more than a little contempt in the eyes.

“The Lakers,” he says. “L.A.” He’s smiling, like “Try that on.”

“Who won?”

“You know, I can’t remember. It was just a preseason exhibition,” he says. “We left before the game ended and with all the confusion later that night-the next morning,” he corrects himself, “it didn’t really seem important.”

“Understandable,” I say. “You say ‘we’ left early. Did you go to the game with someone else?”

“Why don’t you read the police report, in your hand there,” he says. Skarpellos smiles at the jury, like “What am I, some fool?”

“It says here you went to the game with a woman, Susan Hawley. This Ms. Hawley is a friend?”

“Yeah, she’s a friend.”

“Have you known her long?”

“Your Honor, where is this going?” Nelson up out of his chair.

“Good question, counsel. Does this have a point, Mr. Madriani?”

“If you’ll bear with me, Your Honor.”

“My patience is getting short,” says Acosta.

“Have you known Ms. Hawley long?” I say.

“A couple of years.”

“Would you say she’s a social friend, or commercial. Was this business?”

“Social,” he says. Tony’s all puffed up, the Greek version of machismo, like this woman is somehow his badge of virility.

“So you didn’t hire her for the evening?”

His eyes are two flaming caldrons.

“Your Honor, I object. The witness shouldn’t be subjected to this kind of abuse,” says Nelson. He’s trying to put himself verbally between us. A reprise of his role in my office the day of the Greek’s deposition. Tony is starting to get up out of his chair.

“Mr. Madriani.” Acosta’s got the gavel in his hand, like he too is coming after me.

I prevail on the Coconut for a little more latitude.

“Make it quick,” he says.

Nelson is fuming. There are whispered rantings into Meeks’s ear.

I’m back to the counsel table. Harry has the document waiting for me as I arrive. I slip it between the pages of the police report.

“Mr. Skarpellos, did you ever have any kind of dealings with Ms. Hawley that could in any way be termed commercial?”

I linger on the last word a little.

“Your Honor, I resent this,” he says. The Greek knows what the jury will think if they see this woman. The police are still looking for Hawley. Bets are, they will tag her very soon.

“Answer the question,” says Acosta.

Skarpellos looks at him, like “What is this, witness-bashing day?”

“Did you ever have any dealings with Ms. Hawley that could in any way be termed commercial? Was she ever a client of the firm?”

I think he knows what I have. He knows we’ve subpoenaed the firm’s trust account records. This, it seems, was a little nugget Harry and I never expected. If nothing else, it reveals the extent to which Tony Skarpellos had treated the firm’s trust account as his personal slush fund.

“She’s a friend,” he says. “Nothing more.”

“Are you sure you want to stick with that?”

He looks at me with no answer, the bushy eyebrows mountains of contempt.

“Mr. Skarpellos, I have a certified copy of a check here.” I pull it from the middle of the police report. “I would ask you to look at it and tell me if that is your signature on the bottom.”

He studies it for several seconds, looking at the name of the payee and back to his own name scrawled in a bold hand on the signature line.

“We can have an expert come in and compare an exemplar of your signature with that on the check if you like.”

“It’s mine,” he says.

“Then can you explain to the jury why it was that on November thirteenth of last year you made this check out, against your law firm’s client trust account, in the amount of twenty-five thousand dollars, payable to Susan Hawley?” I take the copy of the canceled check back from him and wave it a little in the air.

He’s been tracking me, his mind just far enough ahead that I can tell he’s come up with something. He pulls himself up to his full height in the chair, his head cocked arrogantly to the side.

“That was a personal loan,” he declares.

“A personal loan,” I howl. “Do you often make personal loans to friends from your client trust account, Mr. Skarpellos? Under the laws of this state that is a segregated account. The money in it belongs to your clients, not you. You do understand that?”

“Your Honor, the witness should be warned,” says Nelson. He’s on his feet.

Acosta, it seems, is mesmerized by this latest revelation, by the boldness of the Greek, and his apparent utter disregard for matters of client trust. “Absolutely,” he says. He’s come back to reality and the chores at hand.

“Mr. Skarpellos, you don’t have to answer that last question. If you wish, you may assert your Fifth Amendment privilege against self-incrimination,” he says.

Acosta is telling him, in terms that Tony, and the jury, can understand, that for a lawyer to invade a client trust account is, in this state, not only unethical, but a crime.

Skarpellos grunts, like Acosta’s admonition sounds like good advice.

“I take it you don’t wish to answer that question,” says Acosta.

“Right,” he says.

I glance at the jury. Stern, unmoved faces. From the grim expressions I can tell that the Greek now has all the credibility of a junk-bond broker.

“Let’s forget for a moment,” I say, “the source of this money and concentrate instead on the purpose of this payment. You say it was a loan. Why did Ms. Hawley need this loan?”

“I don’t know,” he says.

“You gave her a check for twenty-five thousand dollars and never once asked the purpose of this loan?”

“That’s right,” he says.

“Now earlier, when you were testifying about the loan you made to the defendant for her legal fees, you stated, and I quote”-I read from my yellow pad: “ ‘You don’t give eighty thousand dollars away on good looks.’ But in this case you obviously feel comfortable with giving away twenty-five thousand dollars with only good looks as collateral. What’s the deciding standard, Mr. Skarpellos-the amount of debt or the relative attractiveness of the debtor?”

There’s a little laughter from the front rows of the audience, a few smiles in the jury box. I am getting the evil eye from the Greek. As I look at him there, seated in the box, meanness from the set of his jaw to the ripple of his brow, I think maybe this was the last image Ben Potter saw in this life.

“What were the terms of this loan?” I ask.

“What do you mean?” he says.

“The terms,” I say. “What interest did you charge, was it simple or compound, how long did Ms. Hawley have to repay the loan?”

“We never discussed that,” he says.

“Was there anything in writing other than the trust account check?” I say.

“No.”

“I see. So you just wrote a check for twenty-five thousand dollars, without any promissory note, no statement as to interest to be paid, or the term for repayment, no questions as to what the money is for, and you come here and you expect this jury to believe that this twenty-five-thousand-dollar check was a loan to Ms. Hawley?”

“That’s what it was,” he says.

“No,” I say. “That’s not what it was, and you and I both know it. That twenty-five thousand dollars was to buy an alibi from Ms. Hawley, an alibi for the night of Ben Potter’s murder. Isn’t that true?”

“That’s a lie,” he says.

“Is it really?”

“That’s a damn lie,” he says, hoping this latter will have more impact with the jury. But his body English falls flat, failing to convey either anger or indignation. If demeanor can be said to count for much, the only emotion now apparent from the Greek is fear.

He’s still sputtering from the witness box. “Not true,” he says. “You’ve hated me from the beginning, because I was Ben’s friend …”

Acosta’s on his gavel, hammering away. He senses what’s coming.

“You were his enemy,” he says. “You and her.”

Acosta’s now up out of his chair, towering over the Greek, hammering on the railing around the witness box, inches from Tony’s ear. He is bellowing at the Greek, at the top of his voice. “Mr. Skarpellos, another word and I’ll hold you in contempt,” he says. Skarpellos is one sentence, one angry burst from a mistrial, and Acosta knows it. Ambition, judicial elevation flash before his eyes. If he had a gag, even a garrote, he would use it now.

Skarpellos splits an infinitive, stops in mid-sentence, looks at the angry judge, and reins in his wrath.

“I will have no more of this,” says Acosta. He points his gavel like a blunted sword at the Greek. Their eyes meet and the Coconut makes plain who is in charge here. Halting, never giving up eye contact, like he’s warding off some mongrel dog searching for an opening, the judge finally takes his seat.

“Counsel.” He looks at me. “Are you finished?”

“Not quite, Your Honor.”

“Then get on with it.”

I have the certified copy of the Greek’s check marked for identification and move it into evidence. There’s no objection from Nelson. Meeks is making notes. I can tell by the way he is eyeing the Greek that these are little mental ticklers to take a hard look at the statutes on embezzlement.

I look at Skarpellos. “As I recall, you told police the morning after the murder that you couldn’t think of anyone who might kill Ben Potter. Is that correct?”

He looks at me. He’s breathing heavily now, a lot of adrenaline pumping inside that barrel chest.

“Yeah, that’s right.”

“Isn’t it true, Mr. Skarpellos, that you yourself had a heated argument with the victim, Ben Potter, only a few days before he was killed?”

He looks back up at Acosta. “This is bullshit,” he says. “I don’t have to put up with this.”

“The witness will answer the question,” says Acosta. “And he will watch his language while he’s in my courtroom.”

“I’m sorry, Your Honor. I apologize. But this is not true. I never had an argument with Ben Potter. We were good partners.”

“Then you should so testify,” says Acosta. “But watch your tongue.” Acosta nods toward me to continue.

“Isn’t it true, Mr. Skarpellos, that in fact Mr. Potter had discovered that you had taken sizable sums from the firm’s client trust account, diverting those moneys to your own personal use, and that he gave you an ultimatum, that unless you paid that money back, restored it to the trust account, he would report you to the state bar?”

“This is garbage. I don’t have to answer that.”

“Isn’t it true that Ben Potter discovered you stealing money from the trust account and threatened to report you to the bar, to have you disbarred from the practice of law?”

“That’s garbage,” he says. “I don’t know where you’re hearing this crap.”

“I’ve warned you once, Mr. Skarpellos. I won’t do it again. I don’t accept that kind of language in my courtroom.” There are a lot of indignant looks flashing from the judge to the jury, like maybe the judiciary and the courts are some offshoot of the temperance league. “That question can be answered with a simple yes or no,” says Acosta.

“No,” says Skarpellos.

“Are you telling us that you never took any money from the trust account?”

“I’m taking the Fifth,” he says.

I retreat to the counsel table and retrieve the final document. “Besides the check,” I say, “that you wrote to Susan Hawley, isn’t it true that you failed to pay over funds owing to another client, one Melvin Plotkin, for whom your firm had taken possession of a two-hundred-and-fifty-thousand-dollar settlement in a personal injury case?”

“Where did you hear that?” he says. “A lotta gossip.”

I hand him a copy of the formal letter of complaint filed by Plotkin with the bar. Mr. Plotkin had made five demands on the firm for payment over a period of seven months. The attorneys in the case had gone to the Greek, imploring him to release the funds to the client, but Skarpellos had ignored them. Tod had given me the inside dealings on this, anxious to implicate his boss. We have searched for the letter dictated by Ben to Jo Ann and addressed to the bar. So far we have been unable to find this smoking gun. But the Plotkin letter is the next best thing.

“I ask you to examine this letter, Mr. Skarpellos, and tell me whether you’ve ever seen a copy of it before.”

Again he looks at it, but his eyes are not following the words. He’s stalling for time.

“Where did you get this?” he says. “There’s been no disciplinary finding in this case, no action taken by the bar. State bar investigations are supposed to be confidential.”

“Not from a criminal courts subpoena,” I tell him.

“Your Honor, this is a terrible breach of confidentiality, an invasion of privacy,” he says.

He gets no sympathy from the judge.

“I would ask you again, have you ever seen a copy of this letter, Mr. Skarpellos? You will notice that you are copied on the ‘cc’s’ at the bottom,” I tell him.

“Yes I got a copy of it,” he says. “And the entire matter has been resolved.”

“Yes, you settled it privately, isn’t that true?”

“Absolutely,” he says. “We take care of our clients. This was a simple misunderstanding.”

“I see, you took Mr. Plotkin’s money and used it for eighteen months and he somehow misunderstood how you could do that. Is that it?”

Tony doesn’t answer this, but his head is constantly shaking, like he wants to say “no” but doesn’t know how.

“The state bar didn’t quite understand it either, did they?”

I get no response to this.

“Isn’t it true that you settled this complaint, that you paid Mr. Plotkin his money only after the bar began its investigation, and then you only paid him on condition that he would withdraw this complaint, to get the bar off your back? Isn’t that true?”

“No,” he says.

“I can bring Mr. Plotkin in here to tell us what happened.”

The Greek is looking at me, his eyes darting.

“Isn’t it true that to settle this case you took other moneys from trust, that you operated a little shell game, stealing from one client to pay another, and that this is what Ben Potter discovered?”

I am off in never-never land now, guessing, filling in bare spots with a little imagination.

“No,” he says.

“How did you lose the money, Mr. Skarpellos, gambling?” I pour a little more vice over him and turn him slowly on the skewer.

“Isn’t it true that Ben Potter found out about your diversions of money, and that the two of you argued in the office violently, and that he gave you forty-eight hours to pay the money back or he was going to the bar?”

I give him more to worry about, a little detail, the forty-eight-hour deadline told to me by Jo Ann.

He looks at me round-eyed now, ready to kill, I think.

“If this had happened you’d have lost your ticket to practice, your interest in the firm, maybe gone to jail,” I say. “That is something someone would kill for, isn’t it, Mr. Skarpellos?”

“No,” he says, “that’s not true.”

I would warn him of the consequences of perjury, but what is a lie when employed to conceal a murder?

I turn away from him and to the bench.

“Your Honor, this is a certified copy of a letter received by the state bar, signed by Melvin Plotkin, a client of the Potter, Skarpellos law firm. Mr. Plotkin is under subpoena and will testify as to the authenticity of this letter and the circumstances leading up to its submission to the bar. We would ask at this time that the letter be marked for identification.”

“I will mark it, subject to further foundational testimony,” says Acosta.

I turn and look at the Greek for a long moment; then I shake my head, a little scorn for the benefit of the jury.

“I don’t think I have any further use for this witness,” I say. There is more than a trace of derision in my voice.

Nelson is in deep consultation with Meeks. It would take a minor miracle to rehabilitate Skarpellos now. It takes Nelson and Meeks less than five seconds to come to this same conclusion. The best they can do is to get him out of the courtroom, out of the sight of this jury as quickly as possible, and hope that memories, like the dark days of winter, are short.