Compelling Evidence (40 page)

Under the law, ;117,110‐lu't‐of‐court statement is being offered to prove die truth matter stated, it is hearsay, the policy being that the party the statement is not in court and therefore not available ross‐examined. Invol insists that Ben's statements about divorce are not being to prove that he in fact was seeking a divorce, but to show , that he was thinking about it. This is a differencè^nn a distinction, and Harry is telling the court this. a fine point, and one that is lost on Acosta. He gestures back away from the bench. @Io*we overruled. I'll allow it."

Skarpellos, tell us about your conversation with Mr. Potsays Nelson. k.

were talking about business, in my office, Ben and 1, and the blue he says, "Tony, I want you to know I'm makin' to divorce Talia.' Of course, I was shocked to hear this," he .11 mean, I don't know what to say to the guy." The Greek animation and hand gestures, open palms faceup. Like he's Ruth. did this occur, this conversationt' ‐;P7,.1tw pegs it about four months before Ben was killed. he told you this, what did you say to him?" _Zrv remember," he says. "I think I was too shocked to say more elaborate from here. Skarpellos tells the jury that Ben talked openly about a good divorce lawyer. It seems was no one in the firm who could do this work, so Potter 'o4 Tony to come up with a few good names. At least this Z, r'‐ 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 of the best in town."

"Why was it so important to get a good lawyer?" 47% "The prenuptial thing," says Skarpellos. "They had a agreement, Ben and Talia, and Ben was sure that she, would try to knock it over. To get around it so that irel be cut out completely." I!: Talia's looking at me like this is some fantasy. "Do you know why Mr. Potter wanted a divorce. V, There was talk in the office.. "Objection, hearsay." Harry's cut him off. "Sustained."

‐4t

"Do you have any personal knowledge as to why divorce, Mr.

Skarpellos?"

Tony looks directly at me, mean little slits. "I'LIM'k., "Ben told me he wanted to marry someone else." There's a stir in the courtroom. "Whot'

says Nelson. "I don't know. He didn't say. Just that he under wraps until after the nomination was ‐‐romimm, "His appointment to the court?"

s right." There's a rumble through the courtroom. Two crushed five others in the aisle making for the ‐M*k minicams outside.

t I'm sitting in my chair looking at the Greek, iq77,7fie could come up with this. Talia's in a daze. "This is not true," she says. known." This is directed to me, but her voice *1W 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 I us. The two rows of chairs reserved for the someone were to shoot the judge now, no one Such is the initiative of pack journalism. In the who heard the Greek's words are repeating 679M7' did not. Like a cheap recorder with ghost comes back a hundred times.

"Nothing more of this witness, Your Honor." Z r,@ could ask for, a looming motive for murder. "A short recess, Your Honor?" Harry's on his feet. ,@Order, or I'll clear the courb‐oom," says Acosta. He slaps the javel twice and the clamor of voices comes down a few decibels. rhose 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 fine outside this courtroom. Acosta's pointing with his hammer @_&t the bailiff near the back door to make sure that he understands this latest wrinkle in house rules. The cop nods. Reporters are not VWD to queuing up behind other mere mortals for access to the gews. Acosta's sending them a message.

Disrupt his courtroom, r,n you join the line from hell. Three journalists, halfway to the ‐?tv,) when they hear this edict, return to their seats. The judge is now looking at Harry almost as an aside. "No w::; he says. "We're going to get this over with now. Crossmr. Hinds."

Ai.po wj's looking at me, like

"Gimme a break."

"What if I had 1@I 4.t i ia, kidneys?" He says this in a wh sper, turning to me as he 1‐b,.v*, in front of our table on the way toward the witness, "Quite a story," he says. "I almost don't know where to gin."

be @%"You might start with a question," says Acosta. all Your Honor."

It's Harry's best deadpan. Skarpellos, you say that when‐your partner told you he going to divorce his wife you were unable to say anything i@in because you were too shocked, is that correct?" ..JVMF o. I was surprised." '*W6)i from all appearances they had a happy marriage?"

'k,"M do I know?" he says. 4 4 itr s what we're trying to find out, Mr.

Skarpellos." '410@ Witness will answer the question."

"I'Wiff I know,"

he says. "Ben wasn't real happy the day he about the divorce." get to that day," says Harry. "You say that Mr. Potter he was going to divorce his wife, and that he asked you names of some good divorce lawyers, is that correct?" the next day you gave him the names of three good MW

Prompt of you," says Harry. "Did you think this was an & that required immediate attention?" ‐j@ 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 T, your partner.. "I can't remember. It's been a long time. These knew. I bad to check around to get their names. Wrote 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 ‐iov lawyers?"

"I don't know."

"Did he ever talk to u again about any intentions YO Talia Potter?" .@K

"No. Just the one time," Harry takes him over the falls on the issue of vi to tell the police about this conversation sooner, t‐ I ". interview with them. Skarpeljos says he forgot, and V.' some points with the jury, a rehash of the depositi

"A man is reported to have killed himself, and

you it's significant that he's talking about divorce, a 47f' ' riage?

You don't think he might be depressed by 11V "Like I say, he was thinking of marrying ie)W4MW‐è Skarpellos wrings his hands in the box a little, like

"Whadda ya gonna do." I didn't think," he v 14 "But you remembered this conversation fast defendant was charged with murder?"

"Sure," he says. I thought it might be important. I can see some of the jurors making mental 116177" on this. The Greek will not be winning any

*IV4 today. "Do you know for a fact whether Ben he was planning on divorcing her?"

"No."

"So he never told you that in fact he had ever,‐" subject of divorce with Talia Potter, isn't that of 1) "True."

"To your knowledge, then, it's possible that knew that Ben Potter had ever contemplated @ "Objection." Nelson's on his feet. "Caus for .,I part of the witness."

"Sustained."

It doesn't matter, Harry's made the point with the jury. ‐Nir.

Skarpellos, isn't it a fact that during the early stages of . Potter's defense in this case you actually met with the ITIM, attorneys representing her and arranged to advance fees other costs for her defense?" ,Objection," says Nelson. "Mis exceeds the scope of the direct

‐Bears on the witness's credibility, Your Honor, bias or motive his testimony." ‐‐11111 allow it," says Acosta, "subject to a motion to strike if fails to tie it together." Harry looks at Skarpellos, waiting for ‐an answer. *t ,I did advance some fees," he says. "It was a business deal. An the firm." qtijqi@ against the purchase of Mr.

Potter's interest in ‐And at some point you stopped advancing those fees, isn't 17 correct?" y es

"Why?" couldn't afford it any longer."

"Come, come, Mr. Skarpe)los. Isn't it a fact that you stopped * r L fees to the defendant because you believed that she te convicted, and

that if this happened you stood to inherit 'hout the need to purchase itt' Potter's interest in the firm wit " #‐ " be says. "I don't know any such thing." in it true, Mr. Skarpellos, that if Talia Potter is convicted 0.@, trial, by virtue of Ben Potter's will you stand to inherit the *t,of his estate, his entire interest in the law firm, a fortune, 11111i,)*, of dollars?" says Nelson. 4@ wouldn't know. I have no idea what was in his will." ,A,"X@Eti he let you into his confidence regarding his divorce, but 14;@ will." ILMMLE L. Your Honor' r that last comment. The jury will disregard the last of defense counsel." ‐‐ more of this witness, Your Honor." Harry has set says Acosta. Your Honor."

Nelson's not going to touch it. turns to the bench. "We reserve the right," he says, "to this witness during our case in chief. We would request court hold him available."

"So ordered," says Acosta. "Mr. Skarpellos, you call until you testify in the case for the defense or th rested. Do you understandt' The Greek is angry. He'd thought this was the figured he was getting by cheap.

Nelson has finished his case. The state rests. Ortiz"

"And like you," I

say, "we believe that serious punished. Talia Potter believes this. She has lost a IM brutal murder. Who is more the victim here, society, oidi who is left to grieve?" I ask. I look at Talia, her gaze cast down at the Mollw‐, mournful. Harry next to her, a little subtle consolation.

"We understand the urge to convict," I tell ill' 11 venting this urge you must not punish the wrong so would be to perpetrate an injustice more w Al , 0‐01 crime itself." I see a few heads nodding gently in of corn. "Yes, we agree that whoever committed this crime cold and calculated premeditation." Here I bring my strident pitch. "But the evidence will show," I say, person, this killer, was not the defendant, Talia I spend some time dwelling on the scene of this office, the freight elevator, the distances the killer I to complete each stage of this crime, the use e I ask, "Are these the acts of a woman? Are these the 7' Potter? "As you hear the evidence that we are about to you to consider the fact that there are many ways them, "many more easy, sanitized ways to murder you watch this evidence unfold, ask yourselves, Is 1.1, probable that if Talia Potter were going to kill her would do it in this way?"

I leave them with thoughts of Coop's implausible ly and watch as Nelson and Meeks confer over pads. This is a problem for their case. In helping me, off the theories of an accomplice, wittingly or not, a major hole in their case against Talia. I retreat to the counsel table for a drink of

"P.1 to the railing. "Who is Talia Pottert' I ask them. This is vital, F

11Talia in their eyes. I take them on a tour of her life, beginnings and her rise through effort and a prosperous businesswoman, I say, a respected sirww_' community in her own right. I remind them that the only reason the defendant is charge is that the state has denied her the chance NY!': charges, these accusations of guilt, before the aw.J.."

indicted her. : "Those were secret proceedings," I say, "proceedings which she was not allowed to attend, proceedings controlled entirely by the 37MMUN, before which she was not allowed to be represented ty an attorney. That is why the is here before you today." y e e ly no how remote, that mig t implicate Talia Potter." I glance at Acosta. He's not going to quibble with me er the ,7@z@ points of probable cause. "You, ladies and gentlemen, are the first people to I at the @7 t‐;k, of this case and to apply that critical standard of proof =.#‐ I by law, proof beyond a reasonable doubt. For all intents is Talia Potter's first fair opportunity to prove her innocence. I said prove her innocence, this despite the fact that by law burden is on the state to prove guilt.

"Mis," I say, .is why it is vital that you arrive here without oxsw*r‐YL1,K4 notions. I strike at the concealed theme of every prosecutor in every :IL@,u‐, the unspoken implication that society is ravaged by an of crime sweeping through our lives. r""You must purge your minds of such thoughts. Such concepts M;o the oath which you have taken as jurors. You are not like some committee of vigilantes," I tell them, "charged exacting vengeance on the pan of society." ,11;(;j( I move to more manifest issues at hand. "The state put passion on trial here," I say. "They have gone VOW, ‐"to engths to tell you about liaisons with two men Ir motel." 40'k I can't ignore. To do so is to give the issue of Talia's ,ZZ, the luster of hard evidence, to allow Nelson to portray Part of the motive for murder. e k e a n @n dug @fia'

the an e s in h th me W a'mes m th c ' so off s s Is 0 @,i@,ropre *0 y idered e e e k 7 v'u' cons n ac ali he e en red me tha has laiidv ia n t ic ntp P ath ho Mal h P e did nota ly th W eas a "but erel 7e cot T i r Pr s y In u at nd her over for r of Pr. f@yond a r onable doubt ", I to see if th re was @y e idence ,no matter h w slight, n, 4 ow re W th M h W ‐ P h mo , at a t Implicate T ja otter. ov ook are not children, ladies and gentlemen. None of us is so i'l. as to believe that such things do not occur. We understand marriages are not models made in heaven. The pictures of ‐,i couples‐Desi and Lucy, Ozzie and Harriet, visions from ladies and gentlemen, are myth. We know that. ,01=@ may, from time to time, creep into a marriage does mean that two people don't love each other, that they are anything more or less than human beings with all of I M and frailties. "But here we are talking of murder. And despite prosecutor would have you believe" the fact that

"Ine, may have

been seen at a motel with a man, or with of men, does not make her a murderer." Now I focus on them hard. "Talia Potter is no murderer," I say, "despite the of this prosecutor." Now it is Nelson's turn. I am cocked finger at him. In the guise of an opening statement, I am givin glaring summation of the state's ease, its weaknes 9 comings. This i the advantage of deferring siticti I tread dangerously close, then cross the line into ‐of but Nelson does not object, careful that he should be unfair in his dealings with the defense. After all, object during his speech to die jury. His continuing invitation. I take broad latitude.

Acosta is glaring at me from the bench. 4M3 cannot restrain himself longer. "Mr. Madriani your argument will come later, is the time for ;; opening statement. That is what nothing else."