Counterplay

26

“Your Honor, That Is The People’s case.”

As Guma announced the end of the prosecution case in chief and sat down, Karp glanced over at the defense table. It was now their turn to proceed. Karp wondered about the worried looks and the agitated confabbing between the lawyers and Stavros.

“I don’t think they were prepared for us to be done quite so soon,” Karp whispered. “It seems to have thrown them for a loop.”

“Good,” Guma whispered back. “Anything that’s bad for them is good for us.”

The night before they’d talked and decided to move as fast as possible to finish. We might be able to finish this before the weekend, Karp said. Maybe even get a jury decision by Friday.

What? And deprive Emil of one last weekend boinkin’ the former Miss Bliss? Guma laughed.

Yeah, let’s pick up the pace, and see if we can rattle them a little, Karp said. They had a plan for dealing with the defense’s star witness, Dante Coletta, but it was going to take some finesse and a dash of distraction to spring the trap.

Beginning at 9:00 A.M. sharp, Guma summoned former detective Bassaline to the stand to testify about his investigation into the disappearance of Teresa Stravros.

When he began to testify about what the gardener, Jeff Kaplan, had said about the rose garden, Anderson had objected. Mr. Kaplan is deceased, Your Honor, he said. We won’t have the opportunity to cross-examine him. And who knows if this witness’s recollections after fourteen years are accurate or something he may have…dredged up after talking to the prosecution.

Guma had smiled at the remark and turned to Bassaline. Detective, you wouldn’t have happened to keep any notes of your discussion with Mr. Kaplan, would you?

Bassaline smiled back and produced a detective’s notepad. As a matter of fact, I’m something of a packrat, he answered. Especially in regard to this kind of case…it sort of eats at me, and I can’t bring myself to throw away my notes, just in case. So I spent a chunk of last week up in the attic until I found this. He held up the notebook.

The defense objection is overruled, the judge had said. You may continue, Mr. Guma.

After Bassaline left the stand, Guma called Detective Fairbrother to the stand to testify about the subsequent investigation, including the credit card and bank statement hoax.

In his opening statement, Anderson had already alluded to the hoax having been perpetrated by Kaplan and his alleged girlfriend, a mystery woman no one seemed able to locate. So there was no need to bring up the handwriting analysis that showed the signatures did not match those of Teresa Stavros. However, Guma went into some detail to demonstrate how elaborate the plan had been while Detective Bassaline’s description of Kaplan as a punch-drunk former fighter was fresh in the jurors’ minds.

After the detectives, Karp had quickly moved through his witnesses, Swanburg and Gates. Then Fairbrother had been recalled to testify about Stavros’s flight when the grave was discovered.

When he left the house, did he say anything? Guma had asked innocently.

He said he had errands to run, Fairbrother replied.

Did he say those errands were in Canada? Guma asked.

Objection, Anderson complained. My client was not in Canada when he was arrested.

Close enough, Guma retorted. But I withdraw the question. He’d then waited until Fairbrother left the courtroom and declared that he had concluded the people’s case.

“Very well,” Judge Lussman said. “Mr. Anderson, are you prepared to call your first witness?”

There was still quite a bit of head shaking going on as Anderson rose. “Uh, Your Honor, we’d like to make a motion outside the hearing of the jury.”

Lussman sent the jury out of the courtroom. “All right, Mr. Anderson, make your motion.”

“The defense moves for a directed verdict of not guilty,” Anderson said. “The state has not proved its case beyond a reasonable doubt.”

Guma stood and started to speak, but the judge waved him back to his seat. “No need, Mr. Guma,” he said. “I find that the prosecution has provided enough evidence that a jury could, at this point, find the defendant guilty as charged. Are you ready to call your witness?”

“Well, Your Honor,” Anderson said, “I’d like the morning to prepare a brief on why we believe that the prosecution has not met its burden…”

Karp scowled. It was normal for the defense at this point to make the motion to dismiss the case on the ground Anderson cited. However, the “time to prepare a brief” was just a silly attempt to stall.

“I’ve made my decision, Mr. Anderson,” the judge said. “Now, do you have a witness to call?”

Anderson twisted his lips as if trying to weigh how far he could push the judge. “Well, we were expecting the prosecution to take up all of the morning, as well as most if not all of the afternoon. I’m not sure-”

“He’s stalling,” Karp said under his breath to Guma. “In fact, seems a little desperate.”

“Yeah, wonder why,” Guma agreed. “Maybe our theory about wanting one more weekend with Amarie was on the money.”

“I believe, Mr. Anderson, that I requested that you have your witnesses ready to go this morning,” Lussman said. “I believe you’ve tried cases before me in the past and should know that I don’t like delays. We have asked the jurors to put aside their lives and should respect their time. Not to mention, but I will, we have an enormous backlog of cases before this court-you were the one who insisted that an expedited trial take place on this particular week because of your busy schedule-and there’s no time to waste.”

One of the other lawyers tugged at Anderson’s sleeve and said something. “Yes, Your Honor,” Anderson said. “I was just caught a little off guard is all.”

“Good, then we’ll proceed,” Lussman said. “I’ll ask the jury to return, and you may call your first witness.”

A minute later, Dr. Peter Oatman, a psychologist who taught at the University of California-Santa Barbara, was on the stand to testify about the pitfalls of “repressed memory.” With his bleach-blond-and probably dyed, Karp thought-hair, perfect tan, and heavy gold chain around his neck, the middle-aged psychologist was the stereotypical California beach boy, which gave Karp an idea as he listened to the man testify.

Having noted that he’d been an expert witness at more than three hundred trials, Oatman knew his role. He listened carefully to each question from the defense as if he were hearing them for the first time. Then looking thoughtfully first at the ceiling, he’d drop his gaze to the jurors and give his answer.

“Dr. Oatman, is there any such thing as repressed memory?” Anderson asked.

Oatman allowed himself a small chuckle and shook his head as if he’d been asked if he believed in Santa Claus. “If you’re talking about the sort of small things we all ‘forget’ in the course of our daily lives, then something ‘jogs’ our memory, then yes,” he said. “Our brains can be very selective about ordering up which memories are necessary to get us through the day, such as how to drive a car. We might head out one morning, not quite sure of where to turn, but we see something that reminds us-a street sign or a building-then ‘poof,’ we recall the memory of how to get where we’re going.”

“Do you recall reading about the supposed ‘recovery’ of repressed memory of the prosecution’s witness, Zachary Stavros, such as it applies to my client Emil Stavros and the crime with which he’s been charged?” Anderson asked.

“I have.”

“Is that the sort of ‘jogging’ of the memory you were talking about?”

Oatman rolled his eyes and again shook his head. “No. This quasi science that some of my colleagues in the psychology business profess is very unreliable. It’s more likely, in this case, that the ‘memory’ is a combination of the boy’s imagination-a way for him to deal with the sad loss of his mother and the idea that she might have abandoned him-and, perhaps, something his therapist may have suggested accidentally…or not.”

“Are you saying this ‘memory’ could have been planted, Dr. Oatman?” Anderson asked as if the idea had never occurred to him.

“Yes. When someone is under hypnosis, they are very suggestible. It’s sort of like having a dream where you wake up and wonder if it really happened. Of course, with a dream, we quickly realize that it wasn’t real. But it’s not as easy with a memory we pick up while under hypnosis. It may continue to be viewed as ‘real’ unless we are disabused of the notion.”

Anderson turned over his witness to Karp, who noted that while Oatman had the same superficial smile plastered on his face, he had difficulty looking him in the eyes. Nervous, he thought, with good cause.

“Good morning, Dr. Oatman,” Karp said. “If I may say so, you look like you spend a lot of time in the sun.”

“I’ll take that as a compliment, Mr. Karp. But don’t worry,” Oatman replied, turning to the jury with a smile, “it hasn’t addled my brains.”

Karp laughed with the rest of the courtroom. Smarmy bastard, he thought, but that ought to help. “I suppose not. Are you a surfer?”

Oatman looked surprised and glanced at Anderson, who was smiling but looked as if his brain was grinding trying to decide if he ought to object.

“Why yes, I try to get out a few times a week, as a matter of fact,” Oatman said. “I’m not as young as I used to be, so I have to work a lot harder to stay on board.”

“I see,” Karp said. “Then you’d be familiar with the term ‘goofy-footed’?”

“Yes, I’ve heard of it,” Oatman said, shrugging as he addressed the jury. “Most surfers, like most of the population, are right-footed so the most comfortable or standard stance is with the left foot forward. Standing the opposite way is therefore ‘goofy-footed,’ though most surfers will switch back and forth.”

“So do you switch back and forth from standing left-footed and goofy-footed, too?”

Anderson saw the danger and jumped to his feet. “I object, Your Honor. He’s trying to bait the witness into saying something that isn’t relevant to this case.”

Judge Lussman looked at Karp with a half smile. “Is there some sort of relevance to this line of questioning, Mr. Karp?”

Karp smiled. “As a matter of fact, there is, Your Honor, and I’ll get to the point, if I may proceed.”

“You may, Mr. Karp,” the judge said. “But do so quickly.”

“Yes, Your Honor. Dr. Oatman, you told the jury that you’ve testified in more than three hundred cases. Is that true?”

Oatman was on guard. “Yes, more than three hundred cases.”

“Ever testified as a prosecution witness regarding repressed memory?”

“Yes, I have appeared for both the prosecution and the defense,” Oatman said. “I consider myself a scientist…the facts are the facts. My clients, whether the prosecution or the defense, know going in that I will state my opinion without regard for how it impacts their case.”

“I see. And have you ever testified to the effect that there is scientific validity to recovery of repressed memory?”

Oatman’s eyes flashed with alarm. “I may have early in my career when I was still somewhat on the fence.”

“How long did you say you’ve been a practicing psychologist?”

“Approximately twenty-five years.”

“So if you said something that supported repressed memory as scientifically valid in, say, the last five years, would that have been early or late in your career?”

Oatman gave a weak smile. “Ah, you must be talking about the seminar in Canada…I can explain-”

Karp interrupted. “Please, first answer my question. Would that have been early in your career?”

“Well, uh, no, not really,” Oatman said. “But-”

“Then why, Dr. Oatman, would you have told the audience at the University of Toronto in May 2000 that, and I quote, ‘the science of recovering repressed memories can no longer be considered in the same vein as witchcraft or past-life regression…time and again, hypnotized patients in clinical studies have recovered memories that could be proven with empirical facts.”

“Well, taken out of context-”

“Out of context, Dr. Oatman? Didn’t this appear in a professional magazine that ran the report of your speech past you before publication?”

“Well, yes, I didn’t mean ‘out of context’ like that…I meant that I was playing the devil’s advocate,” Oatman said, his smile beginning to resemble a grimace.

“This was a debate?” Karp asked, looking back at his notes. “I saw nothing to indicate that you were debating someone who was playing the other side of the devil’s advocate.”

“Well, perhaps I could have put that better-”

“Yes, perhaps,” Karp said. “So do you recall telling your audience that, and again I quote, ‘the science of repressed memory’ could be an important tool for attorneys on both sides of the aisle?”

“Yes,” Oatman said sullenly.

“Who paid for you to give that speech, Dr. Oatman?”

“Relevance!” Anderson shouted, jumping to his feet.

“Overruled.”

Oatman glared at Karp. “The speech was given to the Toronto Bar Association.”

“So you told a roomful of lawyers that repressed memory was scientifically valid and an important courtroom tool?”

“Yes, Mr. Karp,” Oatman said. “That’s what I said.”

“So based on today’s testimony that would make you goofy-footed when it comes to your views on repressed memory?” Karp asked, thinking that one never knew when perusing one of Zak’s skateboard and surfboard magazines might come in handy.

“Objection!” Anderson shouted.

“Sustained,” the judge said shaking his head at Karp before turning to the jury. “You will disregard the last question from Mr. Karp…. And Mr. Karp, please restrain yourself.”

On redirect, Anderson made a feeble attempt at rehabilitating his witness, who claimed to have reached his current feelings about repressed memory recovery “in the past year or so.” But the defense attorney was also aware that none of the jurors were taking notes, and in fact, some were watching Oatman with their arms crossed.

Not a good sign for Dr. Oatman, Karp thought. He didn’t even bother to look up from his notes when Anderson turned the psychologist back over to him for recross. “I have nothing further for this witness, Your Honor,” he said. He didn’t bother to conceal the contempt in his voice, even though personally, until this case, he hadn’t given repressed memory much credence either.

The defense called its expert witnesses to counter Drs. Swanburg and Gates, but their testimony was so weak that Karp didn’t bother to cross-examine them. “I have no questions,” he said with a little nudge. “The people will let the jury weigh who to believe.”

He enjoyed watching the defense lawyers look up at the clock and then huddle. “They don’t like the pace of the trial,” Karp said to Guma when the court recessed for lunch.

“Then maybe we should pick it up,” Guma replied with a wicked smile.

The spectator and press sections of the courtroom were buzzing when Karp and Guma returned from lunch. The defense’s star witness, Dante Coletta, was going to be called to the stand where-just like in a Perry Mason movie-he would finger the man who “really” killed Teresa Stavros. The crowd expected fireworks, and Karp knew that Guma was ready to give it to them.

When the judge returned and the jury was seated, Bryce Anderson called Coletta to the stand. The man swaggered to the stand, looking back and forth from one row of spectators to the other, nodding and smiling like he’d just been named best actor at the Academy Awards.

The swagger remained as Anderson led him through the story he’d told Karp and Guma about the murder of Teresa Stavros. He shook his head at the conclusion of Anderson’s questioning and said, “I feel terrible about this. I should of said something at the time, but I was trying to protect a friend and was worried about taking the rap, too. Still, it weighs on my conscience, you know.”

When the other attorney took his seat, Guma remained still with his eyes closed. Karp wondered if he’d fallen asleep and was about to prod him when his friend opened his eyes, took a quick look at the photograph of Teresa and Zachary on his desk, and then stood abruptly to walk to the lectern.

Karp smiled. The bulldog is back, he thought. They’d gone over the strategy the night before and again at lunch, and it could best be summed up with giving Coletta “enough rope to hang himself.”

“So, Mr. Coletta, is it fair to say that you owe Mr. Stavros a lot?” Guma began.

“Yeah,” Coletta said, looking up at the ceiling as if he’d discovered something interesting there. “Mr. Stavros gave me a chance when I got out of prison.”

“For what?” Guma asked.

“Objection!” Anderson said.

“Mr. Anderson, I will allow it on the issue of the witness’s credibility,” said the judge.

“Assault and robbery,” Coletta replied.

Guma checked his notes and looked up. “Anything else?”

“There was a rape charge in there, too,” Coletta muttered.

“Oh, was that a repressed memory?” Guma asked as the courtroom spectators laughed and whispered.

Lussman gave Guma a sharp look. “We get your point, Mr. Guma. Please continue to another area.”

Then, after several questions regarding Coletta’s version of events, Guma acted as though he was winding down but then remembered something else. “Refresh my memory, Mr. Coletta,” he said. “Was Mrs. Stavros standing when Mr. Kaplan shot her?”

Coletta furrowed his brows. The defense attorneys had coached him to think before he answered the prosecution’s questions and answer as generally as possible.

“I think that’s right,” he said.

“Think? Well, let’s see-if you’d turn to page 153 in your Q amp;A given to Clarke Fairbrother on-”

“Yeah, yeah, that’s right,” Coletta said. “She was standing up.”

“And how many times did you say Mr. Kaplan shot her?”

“Uh, once, like I said,” Coletta said. “He grabbed the gun from her and she turned to go call the cops, and he shot her once. Bang. Just once.”

Coletta’s brain was working overtime. There was a lot at stake, including his own future, and he worried that he’d already messed up more than was good for him. But he did remember that the lawyers had told him that there was a single bullet hole in the bitch’s head. Emil Stavros had scratched his head at that but shrugged. I thought I pulled the trigger twice, he had said. But it was dark and my hand was shaking. I could have missed.

“With the court’s permission, Mr. Coletta, I wonder if you’d mind stepping down from the witness box to demonstrate how this shooting occurred,” Guma said, doing his best “slightly addled older attorney” act.

“I object,” Anderson said. “This isn’t a theater.”

“Mr. Guma?” the judge said with his eyebrows raised.

“Mr. Coletta did this once before for my partner, Mr. Karp, which I think helped us understand how this could have happened,” Guma said. “So I’m just trying to paint a clear picture for the jurors. As you know, Mr. Coletta’s, uh, version of these events came in rather…late…in the game. I’d like a refresher myself.”

“I’ll allow it. But keep it short and to the point, Mr. Guma.”

“Of course, Your Honor.” Guma waited for Coletta to climb down from the witness stand. “Now, pretend your fingers are a gun. I’ll turn my back, like so…and if you would, show the jury about how far Mr. Kaplan held the gun from the back of Mrs. Stavros’s head.”

Coletta did as told and stepped back a pace as he pointed his fingers at the back of Guma’s head. “He was about this far away.”

“And then ‘boom,’ right?”

“Yeah, yeah…boom…he shot her, she went down…end of story.”

“End of story,” Guma repeated. “Yes, well, you can retake the stand, Mr. Coletta.”

When Coletta was settled, Guma looked up and stated, “Your Honor, for the record, the witness indicated the shooter was about a foot away from the deceased at the time of the shooting and shot the deceased in the head one time.”

“The record will so reflect,” Judge Lussman said.

Then Guma asked, “Is there anything else you can recall from that night? Some detail?”

Coletta tried to look thoughtful, then shrugged. But before he could answer, Guma slipped in, “Such as…what was she wearing?”

Coletta paused to remember what he’d told the prosecutors back in July. Then his face brightened. “Yeah, I think it was one of those white filmy negligee things. She was a pretty hot looker, if you know what I mean.”

Guma appeared to bite his lip. “Yes,” he said dryly, “I know what you mean. So it was white, sort of see-through?”

“Yeah, that’s what I remember.”

“Not blue?”

“Oh no,” Coletta said. “Definitely not blue.”

“And after Kaplan shot her, you helped with the burial?”

Coletta glanced quickly over at the jury. Anderson had told him this would be the dicey part and that he needed to look like a man consumed by guilt when he answered. “Yeah, like I said, I feel real bad about that,” he said. “But back then I was like, ‘Well, it’s done. Jeff’s my buddy…it’s done…’ and I thought the cops would try to pin the rap on me, too.”

“And what we also have is that you felt like you owed Mr. Stavros because he gave you a job-part of which was to ferry him back and forth to his mistress-after you got out of prison?”

“I-”

“Yes, or no, Mr. Coletta. True or false…if you know the difference.”

“Objection! Your Honor, that comment was entirely beyond the pale!” Anderson was red-faced with anger.

Karp looked at Guma, knowing his friend was walking a fine line and hoped that his personal investment in the case wasn’t going to carry over into the courtroom and destroy their good work. But when their eyes locked, Guma winked.

“Mr. Guma,” the judge lectured. “You know and I know that comment was beyond the scope of cross-examination. I will not tolerate another such breach of good conduct. Am I understood?”

Guma bowed his head and nodded. “Yes, Your Honor. Sorry, Your Honor.” He stood so that only Karp could see that his fingers were crossed.

The judge turned to the jurors. “As you can see, at times even fine attorneys such as our Mr. Guma can get carried away in the emotion of the moment. I’ll remind you that offhand remarks and comments by either side are not to be considered evidence. The evidence is what you see and hear from the witness on the stand and from whatever exhibits may be marked and received in evidence. Please disregard Mr. Guma’s uncalled-for remark. Now, Mr. Guma, do you have any other questions?”

“None, Your Honor. However, we do have a matter to take up with Your Honor out of the presence of the jury.”

“Very well, Mr. Guma,” the judge said. “The witness may step down.”

After Coletta left with considerably less swagger than when he entered, the judge sent the jury out of the room. “All right, now what is this matter you wanted to bring up?”

It was Karp who stood to respond. “My esteemed colleague was referring to our intention to call three witnesses to the stand for impeachment purposes regarding Mr. Coletta’s testimony during the people’s rebuttal case.”

Anderson scowled. “I object strenuously. They don’t get to retry their case just because they messed up and forgot to ask the right questions the first time.”

“There was no ‘mess-up,’ Your Honor,” Karp said. “Again, I’d remind the court that Mr. Coletta was something of a ‘witness out of the blue.’ We simply want to present witnesses who can give the jury something with which to weigh his truthfulness.”

“I’ll allow it,” Lussman said. “But keep it very straight and narrow, Mr. Karp.”

“I promise, Your Honor,” Karp said. “Now, we’d like to recall the jury and continue. I believe we have an hour left in the day.”

The defense attorneys and Stavros immediately put their heads together. Anderson turned back. “Your Honor, we were prepared to present our case as requested on a shorter notice than we’d anticipated. We simply are unprepared to consider what these ‘impeachment’ witnesses will bring to the table. We’re requesting that the court recess until tomorrow morning.”

The judge nodded. “Very well. We’ll call the jury back in and adjourn for the day. Mr. Guma and Mr. Karp, have your first witness here and ready to go at nine sharp.”

“With bells on our toes,” Guma replied, “with bells on our toes.”

Lussman smiled wryly. “I’m sure that won’t be necessary, Mr. Guma. Shoes will be sufficient.”