The Judge

CHAPTER 24

They have discovered Oscar Nichols.

“How the hell?” says Acosta. We are in the lockup of the county jail, Harry, Acosta, and I. The judge sits on the other side of the thick glass, speaking through the microphone implanted in the shield between us. We are at this moment sitting shell-shocked, and contemplating the havoc that this one witness could wreak on our case.

“How did they find him?” Acosta is looking weary, the effects of stress with each new witness, every new revelation, the peaks of our case, and the valleys that are certain to come.

“He came forward,” I tell him. “Of his own volition.”

This seems to unnerve Acosta more than the fact itself, that a man he believed to be a friend would do this.

Word of this has come in the form of a motion from prosecutors to call Nichols in their case. Affidavits attached to the motion reveal that Nichols called Kline’s office three days ago and disclosed that he had information, supposed admissions made to him by the defendant.

It appears that regardless of the damage we have dealt to Kline’s evidence-the undermining of hair and fibers, and his avoidance of the metal scrapings-Nichols has been troubled from the inception by a single gnawing notion: that his old friend may be guilty of murder.

It is the timing that is most troubling. Kline has done something now, we are not sure what, to smoke him out.

“It figures,” says Harry. “Nichols sitting alone in chambers each day, wondering if somehow it would come out. The admission?” he says.

“I admitted nothing,” says Acosta.

“You made death threats,” says Harry.

“Bitter words that meant nothing,” says Armando.

“Well, now I guess we’ll get a chance to see what the jury thinks.” Harry has the final word.

For Nichols it must have been a long, anxious wait. A sitting judge sweating bullets, wondering if death threats uttered to him in confidence would somehow find their way into the record. It is the kind of thing that could undo a judicial career, a lot of questions by the Commission on Judicial Qualifications if he was found to be withholding evidence.

“Why would he do it? Why would he tell them?” says Acosta.

“Covering his ass,” says Harry.

“But why now?” says the judge. “Why this particular time, when things were going so well?” He looks to Harry, then me. The thought has crossed our minds.

“Maybe he knows something we don’t,” I say.

Some dark evidence. The thought suddenly settles on Acosta. This is how they would pry Nichols loose, something so damning in its implications that even a friend of long standing could not ignore it.

“What could it be?” he says.

“No doubt we’ll find out,” I tell him.

“Yeah. When they dump it on our heads like a ton of shit,” says Harry.

To Acosta sitting behind the glass, it would appear that the final rat has now left the ship.

This has been a continuing theme for the past two weeks. First, his bailiff, who had been with Acosta for ten years, told him that he was under strict orders to report any telephone contacts with the judge and advised him not to call again.

Then, last week, Acosta called his clerk to ask a favor, something he wanted from his office. She would not take his call and did not return it. Kline has been putting pressure on these people through the judges to cut him off. Isolation as a weapon.

The sense that he is now alone seems to have settled on Acosta like the angel of death, his only remaining partisan besides ourselves being Lili. According to him, they are closer now than at any time in their marriage.

“We got one thing,” says Harry. “Nichols’s name isn’t on their witness list.”

“True,” I tell him. “But it’s likely that Radovich will carve an exception. Kline is arguing that there is no way the cops could have discovered Acosta’s threats unless Nichols came forward.”

“He is undoubtedly right.” Acosta seems to come out of some dark reverie on the other side of the glass. “There is only one explanation for this: Oscar came forward because he thinks I am guilty.”

This has just dawned on him.

“Yeah, well.” Harry is looking at him. Nichols may not be alone in this thought.

“His intuitions we can keep out,” I tell him. “Right now I’m worried about what he’ll say on the stand. And, if possible, how to keep him off of it.”

The test as to whether Nichols can testify is one of good faith. If the police could not have uncovered the damning threats made by Acosta to Nichols, there is no way they could have disclosed the information to us in discovery or put Nichols on their witness list. While we were under no duty to disclose this information ourselves, it is another matter now to deceive Radovich, to tell him that we are surprised by the disclosure. He would probably not believe us in any event.

There is a certain equity in Kline’s argument that Radovich would be certain to pick up on. If Acosta has not been sufficiently truthful with his own lawyers to alert them to this, death threats that he made, a ticking bomb in the middle of their case, who better to suffer the slings and arrows than the defendant himself.

“Kline will play on it, that Nichols’s conscience got the better of him,” says Harry. “This, and the fact that he is a sitting judge, will put the flourish on his credibility,” he says.

We mull over the options, few as they are.

Harry suggests that perhaps we could stipulate. A last-ditch effort. What he means is a settled statement, something sanitized and agreed to between the parties that would summarize Nichols’s testimony without letting him on the stand.

“We could file off the rough edges,” he says. “The jury might not pay much attention.”

“Why would Kline go for it?” says Acosta. He may be in a funk, but he has not lost touch with reality.

“We argue surprise,” says Harry. “That it’s an eleventh-hour witness. Try to get Radovich to pressure him. It is, after all, a possible grounds for appeal.” The defendant’s ultimate trump card. “Something we can try to bargain with.”

We talk about it, Harry and I. While it may not succeed, it is the best among a poor batch of alternatives. While we are talking, arguing the fine points of how to approach this, Acosta seems mired in his own dark thoughts. He sits behind the glass, hands coupled, fingers steepled under his chin. Suddenly, in midsentence, he cuts us off.

“There is another alternative,” he says.

“What’s that?”

“I could talk to him,” he says. “Call Oscar and ask him to visit me.”

“No way,” says Harry.

“He is still a friend,” says Acosta. “No matter what they showed him,” he says, “I believe he would listen to me.”

“Right, and when they put him on the stand, and they ask him about your meeting and what was said, the fact that you asked him not to testify or, worse, to lie, what do we do then?” Harry is right. It is a prescription for disaster.

“I would not tell him to lie,” says Acosta.

“Then what the hell good would a meeting do?” says Harry. What Harry is saying is that short of perjury, there is nothing Nichols can do to soften the damage that Acosta has already done to himself by these threats.

“Still I would not ask him to lie.” Acosta is adamant on this. A badge of honor.

“Well, excuse me,” says Harry, “but Mr. Kline might just put that twist on it, don’t you think?”

Sheepish eyes from the other side of the glass.

“Of course you are right,” he says. “I don’t know what I was thinking. Why, only fools represent themselves,” he says.

“In this case we’ll make allowances,” says Harry. “The term applies equally to counsel and client,” he says.

Acosta even laughs at this. Harry does not.

In the afternoon, Kline comes at us with a piece of evidence that he had promised the jury in his opening statement, an effort to link Acosta to the pair of broken eyeglasses found in Hall’s apartment the morning after the murder.

As Kline steps into the well of the courtroom he is, as usual, a fashion statement, his wife’s money worn well on his back. Today he sports a dark gray striped worsted suit, flapping a maroon silk lining as he strides the courtroom, a dress shirt of starched linen with French cuffs a yard long, and a tie that screams imperial power.

Inside the suit, despite the knocks he has taken, Kline’s confidence is budding. With each witness he seems to grow in stature. He is becoming a presence in the courtroom that in a few months could spell trouble for the defense bar. From the licks he has taken he has learned to reply in kind. Though he has taken a racking on some of the early witnesses, there is an evolving method to Kline’s strategy in this trial that is now becoming apparent. He has consciously and in planned fashion taken his knocks early, and has saved strength for the end.

Dr. Norman Hazlid is what some would call a “doc-in-the-box.” He is a licensed optometrist who works under contract with one of the chain eyeglass retailers at a mall out in the north area. Hazlid does quickie eye exams and refers his patients to Vision Ease, a discount retailer where for sixty-nine dollars you can get a selection of frames and lenses in an hour.

He is in his mid-forties, well-dressed, and articulate in the details of vision care.

A foundation for the broken glasses has been laid previously by the Homicide detectives, who have identified them as having been found at the scene in Hall’s apartment. They were marked by the clerk and given an evidence number, which Kline now refers to.

He has the witness remove the glasses from a paper evidence bag. Because there is blood on one portion of the broken lens, Hazlid wears surgical gloves to examine them.

“Doctor, have you had the opportunity to inspect these glasses previously?” he asks.

“I have.”

“Let’s begin with their condition,” says Kline. “What can you tell us about that?”

“The left lens is cracked. I would say as a result of some considerable force.”

“Perhaps by someone stepping on them?”

It is leading and suggestive, but with the broken glass taken from the victim’s foot as attested to by the medical examiner, there is little point in objecting.

“Perhaps. That would probably do it,” says Hazlid.

The witness picks the glasses up and looks at them more closely. “The metal frame is bent, probably the same force that cracked the lens. The left temple screw is missing.”

“That’s the part that holds the little stanchion that goes to the ear in place?” Kline calls it a hinge.

“Right.” Though Hazlid would clearly have another word for this.

“And can you tell us, is there anything unique about these glasses, either with respect to the lenses or the frame?”

“Both,” says the witness.

Acosta is in my ear as I try to listen. He is adamant that he has never seen the doctor before. This is not his regular optometrist, and Acosta is at a loss as to how the man could possibly connect him to the glasses. I tell him to sit and relax, but he is highly agitated.

“Let’s start with the frames,” says Kline. “In what regard are they unique?”

“It’s a type of frame that is manufactured specifically for Vision Ease,” he says. “A special licensing arrangement. We don’t sell many of them, because they’re quite expensive.”

“Does it have a name or a model number?”

“It’s called a Specter Four Thirty,” says Hazlid.

“And they’re not sold by any other retailer?”

“No.”

Bad news for us.

“Do you know how many were sold, say, in the last five years by Vision Ease?”

“I can look it up,” he says.

“Please.”

For this Hazlid has brought along a computer printout, a small ream of fan-folded pages that he ciphers through like an accountant until he finds what he’s looking for. He puts one finger under something at the left margin and moves it across the page, then looks up.

“Forty-one pair,” he says.

“That’s all? Nationwide?”

“Correct.” Hazlid explains that the manufacturer has been selling this particular frame for only two years, that they are very pricey and haven’t caught on. He attributes this to price resistance.

“How much?” says Kline, peering at the glasses as though he might purchase them if they didn’t have blood all over them and a cracked lens.

“Wholesale they run one hundred seventy-nine dollars. They retail for four hundred and eighteen,” he says.

Kline whistles low and long at the markup. Several of the jurors laugh. It is something about which I cannot object.

Hazlid tries to justify this. “Designer frames,” he says.

There is a clear innuendo as Kline looks over at Acosta, an indictment by inference. This has its effect on the jury, people sitting here for thirty dollars a day and mileage, looking at my client who now stands charged with purchasing a set of frames worth half a month’s salary.

“Do you know how many pairs of these particular frames were sold by your own store?”

For this Hazlid doesn’t consult his documents.

“Three,” he says.

“And yours is the only branch in Capital City?”

“Yes.”

“Where’s the next nearest store that would sell this frame?”

“The Bay Area,” says Hazlid.

Kline closes that door quickly. He asks how many that store has sold, and gets four more. The only other stores are in the southern part of the state, where the witness accounts for five more sales.

“So in the entire state,” says Kline, he’s calculating in his head. “They sold a total of twelve of these particular frames?”

“That’s correct.”

“Does the retailer maintain records of these sales?”

“We do computerized inventory at the point of sale,” he says.

Harry drops his pencil on the table and glances at the lights on the ceiling, and then over at me, body language that is not good. I do not return this.

“When a customer comes in, we get their address and phone number, the stock number of the item purchased, in this case frames, and a file number from which we can retrieve their prescription if it’s on record.”

I am trying to look cool, undaunted. Acosta next to me is an automaton. He has said nothing since his initial disclaimer about the doctor.

“So you have records of sale for each of the three customers who purchased the Specter Four Thirty frames from your store?”

“Yes.”

“Do those records reveal a sale of this particular brand and model frame to the defendant, Armando Acosta?”

“No.”

The sigh of relief from Harry at the end of our table is palpable. He picks up his pencil, wipes some sweat from under his nose, and looks over at Acosta. He actually slaps him on the arm, the first show of solidarity Harry has displayed with our client.

There is little emotion from the Coconut other than surprise at Harry’s jubilation.

“Do you show any sales for this frame in the last name of Acosta?” asks Kline.

“Yes.”

Harry stops the party.

“And in what name is that?”

“Lili Acosta,” says the witness.

“And is there an address?”

“Two thirty-four Sorenson Way, out in Oak Grove,” he says.

Harry snaps the pencil in his fingers, one end flying onto the floor. The Coconut is dog shit again.

Lili is not here today, the first time she has missed since the trial’s start, and I am left to wonder if this is by design. Harry looks down the line at me, over the top of his own glasses, a flat expression like I told you so.

“I had forgotten about them,” says Acosta. He is in my ear. “They were a gift from my wife. I did not wear them, except at home.”

It is the reason we have been blindsided by the glasses from the murder scene: they were not purchased through Acosta’s regular optometrist, whose records we have scoured. Now we are left with egg on our face to bluff our way through.

Kline steps back a pace and looks up at Radovich on the bench. “I think the record will reflect that that is the residence address of the defendant, and that Lili Acosta is the wife?” He turns toward me.

“We’ll stipulate,” I say. Anything to cut this short.

“When was the purchase made?” Kline’s back to the witness.

“September eighteenth, a year ago,” says Hazlid.

He gets the price, full retail, and the fact that Lili paid for them with a credit card, a joint account with her husband.

“But these are men’s glasses?” says Kline.

“Right. I would have to assume-”

“Objection.”

“Sustained. There’s no need to be assuming anything,” says Radovich.

Kline regroups, that avenue being blocked, he tries another.

“Did she indicate who they were for at the time of purchase?”

“Objection. No foundation. Hearsay. The witness has not testified that he sold these glasses,” I tell Radovich.

“Sustained.”

“Do the business records reflect this?” says Kline.

“No.”

Kline doesn’t need an answer, the question is enough. The jurors are capable of filling in this blank for themselves: a wife’s purchase of men’s glasses.

“Let’s talk about the lenses,” he says. “Is there anything that stands out with regard to these?”

“The glass is quite expensive, and it’s not a common prescription,” says the witness.

“Tell us about the expensive glass.” Kline is looking at Acosta.

Here we go again.

“Top of the line,” says the witness. “What we call ‘high-index glass.’ Very thin. Very light. But capable of taking a high prescription value.”

“What do you mean by that?”

“You get lightness in terms of weight, comparable to plastic, but more resistant to scratches, and you can load the glass with a high degree of correction.”

“Cheaper glass won’t do this?”

“No.”

“And I take it the customer pays for this?”

“Usually twice as expensive as normal optical glass.”

“What are we talking about?”

“A hundred, a hundred and fifty dollars.”

“In the case of these glasses, how much?”

“A hundred and fifty dollars,” says the witness.

We are rapidly approaching what most families would spend for food and clothing in a month, and we haven’t costed in the doctor, his prescription, or calculated the tax.

“I thought you were a discount store?” says Kline.

“We are,” says the witness. “We also offer prompt service. Some customers want it done right now.” He actually snaps his fingers when he says this, so that one cannot help but come to the notion that this has been rehearsed.

“Objection. Speculation.”

“Overruled,” says Radovich.

Kline has done his homework and is now reaping the rewards, doing a tap dance on our bones-all the flourishes to aggravate a jury. The image he is nurturing is clear; Acosta with his face in the public trough, drawing down the salary of a prince, enough to buy designer eyewear and too important to wait in line like the unwashed masses.

“You wouldn’t expect to make too many sales like this, would you?” says Kline.

“As I said, maybe just a handful each year.”

What he means are a few potentates, an Arab oil sheikh or two, and perhaps a judge.

“But they would be very profitable sales, so you’d remember them and record them?”

“Objection. Leading. Assumes facts not in evidence.”

“Mr. Kline,” says Radovich. “You wanna testify, you raise your hand and take the stand.”

“Sorry, Your Honor.”

“Why don’t you try again?” says the judge.

Kline regroups. “Would the records of such a sale stand out, Doctor?”

“Yes.”

“Do you know how many customers purchased glasses of that kind, the so-called high-index glass set in Specter Four Thirty frames, since the frames were offered for sale by Vision Ease?”

“Two,” he says.

“Do you know whether one of these was Lili Acosta?”

“It was,” he says.

For an accused defendant it could be said that there is not much that is more damaging than a matching fingerprint, though Kline is working with evidence approaching that realm at this point. It is now becoming clear what he laid on Oscar Nichols to convince him of Acosta’s guilt-the bloodied spectacles resting on the railing, and the witness who sits on the stand.

“Anything else peculiar about the lenses?” asks Kline. He is not finished.

“I would say the correction for astigmatism is unusual.”

“Perhaps you could explain to the jury in laymen’s terms?”

“The prescription here is for a reading glass, a common prescription for eyes as they age. But the patient who wore these also suffered from serious astigmatism. That’s an irregularity in the curvature of the lens of the eye. It results in light entering the eye not meeting at a single focal point. If serious, this can result in blurred vision. The patient who wore these glasses suffered from astigmatism in both eyes.”

“Was it serious?”

“For some forms of work,” says Hazlid, “it would be quite an impairment.”

“I won’t get into the methods of corrects. We don’t need to do that,” says Kline. “But with regard to the pair of spectacles before you in evidence, do you know what the prescription is for each lens in these glasses?”

The moment of drama, Kline with his sword drawn, aimed at our vitals.

“I do.”

“Would you please tell the jury?”

“Omitting the correction for reading, which is common, a plus two for each eye, the correction for astigmatism to the left eye is three point two five diopters, by twenty-three degrees. For the right eye it is four point two five diopters, by one hundred and fifty-seven degrees.”

“Would you say that is an unusual prescription?”

“I would say that it is highly unusual.”

With this, Kline appears to have come further than he anticipated with this witness. He is beaming at the jury box, not a smile, but the stern expression of resolve. There is an electric atmosphere in the room at this moment, a clear shift of momentum that I am not likely to reverse with this witness. With a single item of evidence Kline is on the verge of crossing the threshold beyond reasonable doubt, over the river and into the prosecutor’s promised land, where the burden would shift to us.

“Doctor, can you tell us, do you have on record the vision prescription for the defendant, Armando Acosta, as last recorded by Vision Ease?”

“I do,” he says.

“And what is it?”

“What I have just given you,” says Hazlid. “It is the same prescription as found in the pair of glasses in evidence before you.”

As he says this, you could drop a pin in the jury box and locate it by its own sound. The glasses on the jury railing at this moment are the focal point for eighteen sets of eyes, jurors and alternates, all with a single question. How will the defendant explain the presence of these at the murder scene, a sliver of their broken glass embedded like a piece to a puzzle in the victim’s foot?