Compelling Evidence (37 page)

"We're not trying a cause for alienation of affections here. This is‐ a murder trial. I would ask the court a single question. Does this W, the fact that the defendant and her attorney went to a motel, prove that the defendant committed the murder of Ben Potter?"

"Not by itself," says

Nelson. "But together with other evidence, fair inferences can be drawn." ,No," says Harry. "Unfair inferences can be drawn. And that's what you are about here, offering this kind of evidence. It's not probative of any material fact in the case, and it is highly prejudicial to the defendant." ,In what wayt' says Acosta. "in the way that it deprives her of competent counsel."

"This is ludicrous," says Nelson. "She selected Mr. Madriani to represent her and she has Mr. Madriani."

Harry moves forward and leans on the lip of Acosta's desk as if to put a little weight on the next point. ;, "it will deprive her of competent counsel, not because Mr. Madriani is any less. able than he was before this evidence was immiuced, but because he is no longer believable in the eyes the jury. If this court lets this evidence in, it will transforlmn defense counsel into the ultimate unindicted co‐conspirator," Harry. "You know it, and I know it, and if you allow this, Wilate court will know it." Nelson is laughing, scoffing at this.

is what it is," says Harry, "A little character assassination a long way in the eyes of a jury." ‐He turns to Acosta. "Have no doubt about it,"

he says, "the e want to present this testimony for one reason and one only, to discredit defense counsel in the eyes of this jury, 1he only way they can win a losing case." son is denouncing this, claiming that Harry is overreaching, to make, more of the Walker column and the testimony of witness than they are worth. e," says Harry, "Men drop the witness." should we?" t's enough," says Acosta. He is mean eyes, elbows on the led fingers as be looks at Harry. It does not take a ld to deduce that he is busy searching for ways to allow evidence, and running headlong into Harry's logic on each. thing more, Mr. Nelson?"

"I think it's all been said."

"You?" he says to Harry. "No, Your Honor." For a time, my fate seems to hang, suspended as it hiss of conditioned air that sweeps in from the i*

Coconut's desk. "When are you calling this witness, Mr. Nelson?"

The DA shrugs a little, like gauging time in a do. "Two days," he says.

"Fine. I'll be taking this matter under submission. I you my ruling as to whether this witness may take the ‐,i;% if so, the scope of his testimony, before that time."

"Thank you, Your Honor." t, "Mat's all." We are excused from the Coconu s Lolij@ Harry and Nelson are making for the door. I'm on i i court reporter is packing up. "Not you, Mr. Madriani. I want to talk to you."

We are alone now, me and the dark brows and '97M%1omt,1* Armando Acosta.

"I will admit it, you have gall," he says. With o t 144 lighting from below he could easily be mistaken Lucifer's chief lieutenants. The dark Mediterranean 77@, on a measure of evil here, so that being alone in this ‐v. him is frightening, foreboding. "You will learn," he says. "You don't do this to me. court. 11 I say nothing. It is best to let him vent this 401 1 11@ Acosta is feeling the heat. He is up for appointment to late court, and now is not the time for a mistrial in a case. He sees this, my part with Talia, as swoo'adii .U1 and he will not have it. To the Coconut this is not professional‐it is personal. ‐ "You think you have me over a barrel?" he says. profane smile here. "If I let this in, this testimony, you you will get a mistrial or I will be slapped down on 7 that itt, He waits for an answer. But I fix him with a stare, keeping the apprehension out of my eyes. It is best from mangy dogs with bared teeth, or to show fear rel Acosta. "You have made a big mistake," he says. "A big Then unceremoniously he tells me to get out, to leave his chambers. The process is called "filing an affidavit," the document used by lawyers to disqualify any trial judge before the start of a case. IU

law allows one to a customer in a y al. It is a process that I now know I will be us ng with regularity in the future, whenever I have the misfortune of drawing Armando Acosta. I have hit bottom, I think. After all of the blows, professional and pasonal, my career in apparent tatters, I am left to wonder if I too will be served with process, charged with Talia in Ben's murder. With all of this it might seem strange to another that it is my failed marriage that comes to trouble me the most, my loneliness Od the gnawing void that has been my life since Nikki walked @A on me. it is a nightly ritual. I wander aimlessly through the rooms of the house, always ending in the same place, standing in the dwrway to Sarah's bedroom. Little brown teddy bears on a pink lattice pattern decorate the walls of this room, barren Of ag furnishings. Sarah forgot a few toys during her last visit. A mw doll, its hair seeming to molt, arms and legs twisted in t*11, @M ways, lies forlorn in the middle of the carpet. Tonight 19"M as if I share some symbiotic fate with this cast‐off creature, '0‐715 Mot and alone. hlincreasingly I have turned my lawyer's analytic mind to the 111o of how

I arrived at the point of a failed marriage and family, things I never dreamed life would hold for me. or AIDS, these are afflictions we see visited on others, "14 ourselves. While my affair with Talia was a symptom of my condition, I @1'111 ‐never considered it the central cause of my current domestic 1.. N*, Talia came later, after Nikki had left me. My problems more central cause, my obsession with work, my unceasing for approval from Ben, and the delusion of success that 77% to accompany these. It was these things, I think, that mi in a terminal loss of respect in Nikki's eyes. Like too

"J in our generation, I searched for

acceptance and esteem in the wrong places. I'* is now heavily invested, not only financially but emoin Talia's trial. It is the one positive result that has come 77Ne hammering in the press and the whippings I have taken the Coconut. :

CHAPTER 20.

hostile judge can kill you in a

thousand ways. Today Acosta U, giving us a demonstration, a tour in the arbitrary exercise authority. He has denied Harry's motion for a mistrial based on Eli Walk‐ !"Mlbo@oi ."Speaking in cryptic terms, never mentioning Walker lime or the article by its headline, Acosta generalizes about pretrial publicity in ways that make the listener think he in mere abstractions. W@ ‐ hints to jurors that the defendant has questioned their integr sed issue as to whether some of them may have seen ai news articles concerning the trial, this in direct violation court's earlier admonitions. He asks if this is so, to a 11@

of shaking heads from the jury box and irate expressions ‐77, at Talia.

Making it a team effort, they‐‐4he judge, the and the prosecution‐against us, Acosta then states his that he is personally satisfied this is not the case, are upstanding jurors who take their oath of service is a shameless display in the naked abuse of power, a grim I fear a preview of things to come. is clearly shaken by these antics, her eyes darting first to to Harry, frantic that we should do something to end inii; is nothing so unnerving to a defendant in a criminal @2 the specter of authority turned against him in the form of judge. It is taking a toll on her; I can feel the tremble in I next to my own. Coconut takes every opportunity to slam the defense in rejecting the motion, characterizing it before the jury as

"TT effort on the part

of the defendant."

I am up and down like a yo‐yo‐‐objecting to the ‐imrll. ations of our motion and hammered back down to my Acosta. "Your Honor, we would request that the jury be tioned individually, as to whether they have semen tdffihe in question."

"Denied," says Acosta. "Do you question the )sim‐, panel?" he says. "You saw me ask them. To a man iwl they denied having seen the article in question."

They look at me, the beginnings of a seething mob, @.I, for Robert Rath, my alpha factor. He is an enigma. perhaps he knows or can guess what transpired Mi doors in the judge's chambers yesterday, that maybe Walker's column, "I must object, Your Honor, to the way this IS died."

"Now you question this court?" he says. "Is there your arrogance, sirt'

In muted deferential terms I remind him that the duty of inquiry, to assure a fair trial. I perfect this si the record, one eye on appeal.

"Your objection is noted," he says, "now siti. 0 . He turns to the prosecution, all creamy smiles. your next witness," he says. Like that, it is done, Walker's column swept ‐,k,.,vvjw crumbs brushed from the bench. We are left to .‐msron the jury panel have seen this piece of work by what effect it may have. I study the expressions in of open hostility whipped to a froth by the court. If 17.wl. read their minds, to garner some sense of the )w!4 piece, whether they still trust me, Acosta's antics 7777`@ impossible. A somber‐faced Coop is up next. I can tell that i forward to this. Nelson and he move through the !714 Rogers and Astaire in the two‐step. I stipulate to . I, I I cations as an expert witness. Nelson thanks me, @,W a twenty‐page curriculum vitae into evidence. 10 that this is unnecessary, irrelevant, given our it overrules me and orders that copies of Coop's for each juror. He may as well nail it on the iiciio@I' coop's performance is a repeat of his testimony in the prelimiwy hearing, nothing new or unexpected. He talks of lividity, the In%, .of gravity and death, and the bullet fragment, the cause of 4tath ,lodged in the basal ganglion. He has pictures of this, a tiny bit of metal lost in hues of red and brown congealed blood, before it was extracted. With Coop's testimony Nelson quickly fixes the time of death, j:,:,7@7i;, seven P.m. and seven‐ten P.m. Nelson is stacking the

"M4., of his closing argument. Coop tells jurors that Ben Potter 4‐i IL@ shot in the head with the sma‐caliber handgun, the body

?"Ir and the shotgun blast administered later in the office. 1% With this testimony and the evidence of Willie Hampton, the can now see that an hour and fifteen minutes transpired the shots, enough time to haul the body a considerable moves carefully through all of this, leading the jury tlk hand through his theory of murder. He's had Coop bring

.‐photographs, a veritable album of revulsion. These am post IFVW

pictures, showing the tiny bullet fragment lodged at the

"Tol'the brain,

more graphic shots of the distended face and '@, @1‐ ‐ cranial vault after the shotgun had done its work. Nelson these on me and hands a separate set to the judge. He has identify each and explain in vivid terms what is shown. tells the jury that a contact shot to the head with a ,jli.(, whether to the temple or in the mouth, will result in A

‐7‐Mimi of large portions of the brain. The bulk of the pellets U!, wad will "it in such cases. makes shotgun wounds at close range so devastating," jl'is that virtually all of the kinetic energy of the round ,7"ftv M‐1 to the victim as part of the wounding effect. It is 4a rifle, where the bullet may exit the victim, expending ,;,i' outside

of the body." holds up one of the larger photos, for the jury to see, from

"This type of wound inflicted to the mouth results in comminuted fractures of the skull and pulpification of "01', Bursting ruptures of the head are the rule in such case.‐. see here,' says, pointing with a pen to the picture, was largely fragmented. Parts of the cranial vault and a both cerebral hemispheres were ejected from the head. ‐'suffered extensive laceration." will be few jurors having heavy fare for lunch today. damage explains, he says, how the earlier bullet that caused death was so badly fragmented and lost. Coop, but for the little fragment, the authorities have nev that bullet. While I would like to stop this, there is no wwayy If ccan" end to this graphic description of these wounds. I will uy close observation of the photos by the jury, by keeping of evidence. Coop fishes for another photograph from the stack Unti what he wants. "You can see here that this was an intraoral shot,"

"Soot is present on the palate, the tongue, here, here, also on the lips, here." He's pointing with his pen. dauntless souls in the jury box are craning their necks

"Stretchlike striae or superficial lacerations

of the and nasolabial folds are apparent, here. These are dure of the face caused by rapidly expanding hot gases as was fired."

Whoever killed Ben may have been sloppy in his setting a scenario of suicide, but there is a clinical, the administration of this shotgun blast, something considered before. Coop is finished with the pictures.

Nelson moves to placed into evidence. "Your Honor, we would object to the photographs, of them" I say. There are duplicates, several s mmor vanations of angle, each taken at sundry di the corpse, but all far more graphic than anything' offered. I itemize our objections, the prejudicial have on the jury, and single out three that I think for use.

Acosta is paging through them, ignoring me He looks to Nelson for opposing argument. The half‐baked effort, conceding by hiss body language@. enthusiasm that he will lose the vast number of' finished.

The judge looks at me for the first time in this to emphasize what is to follow. "Defendant's objection is overruled," he says. of photographs will go to the jury. Sud 11 is the court, and its lesson in abuse. Cool There's a trace of alarm registered in p S,f : for the first time the effect of the revelations in Eli Walker's column, not on the jury so much as on this judge. The pictures arc marked for identification. They are making their way through the jury. Like wind rustling through a corn field, the photos leave their impression. ,voctor."

Nelson is back to him now. "In your professional opinion, is it possible that a woman of the physical stature of the defendant, Talia Potter, could wield a *agun in such a fashion as to inflict the massive head wound aidenced in this case?"

"Yes," He says this without reservation. Nelson is moving toward a roll, gaining his rhythm. "_An your opinion, and assuming that she had help from an )%ccomplice, would it have been physically possible for a woman the size and strength of this defendant to have inflicted the ,3,16rw wound, moved die body some distance, propped the victim that chair, put the shotgun in his mouth, and fired it?" '‐OCERTAINLY," he says, "but your assumption is unnecessary." ‐‐,Nelson has his back to him and is moving away from the @Nlmss box when this comes. So I can see the expression on face. Irritation, a little disbelief. @@,*Excuse me?" '3t is possible for the defendant to have done all of those things, ;*'%out the assistance of an accomplice," says Coop. %M is stirring in the courtroorn. Those following the case read for weeks the press speculation about a secret ]over, ,@::complice who aided and abetted Talia in murder. Now they ng for the first time from the state's own medical expert ts, may not be the case. 7"M put the pictures down, aware that something important .Xn said, bringing their attention back to the witness. is physically possible that a woman of the size and strength defendant could have committed this crime alone," says He emphasizes the last word, for those jurors who may been lost in the scenes of horror still wending their way JI the box. ‐"‐A looks at him, his jaw slacked, clearly miffed by this ice from the script. They have gone over this testimony..16" crossed him, thrown him a curve. k but surely, doctor‐Nelson pumps up his most ingratiale to extract a little concession from the witness‐"surely it's more plausible that the defendant would have had in doing this?" He gropes. Maybe Coop has missed the