Compelling Evidence (44 page)

Skarpellos appean to have engaged in reprehensible (+,i violation of bar ethics," says Acosta. He's shaking his his features all screwed up, an expression of disgust that is at convincing me that I have now made my point on the bat anything more is just overkill. ,41%v, consuming a great deal of the court's time on this," Nelson. that you have your case in, time is suddenly of the ,774" 1 ask him. is a rule concerning cumulative evidence, facts which " all tending to prove the same thing.

Judges have Li to exclude such evidence in the interest of time, !M&e'@f makes clear that this will be his objection if I persist accountant. : is more than a little cumulative," says !‐ "We think this Is along. He cites Plotkin trying to help his boss Tony's own babbling bordering on admissions as o*1‐04 this. "We?" I look at him. ‐Mr. Nelson and L" Meeks runs quick cover for ill I ‐A in this and is hearing it &1, as if Acosta has no a V. first time. says Nelson. I. O@jx ,I'm not trying to cut you off," stand."

"yeah, God forbid," says Harry. * "You've unb a CL into a few stipulations.' if we were to enter I t‐ $.V.The next best thing is some orur‐LILY CU. this evidence before the jury, some dull rendition tcleen like prayers of a rosary. ?

"what do you propose. to have been

unauthorized, an, UIVVIEQU F_ introduce," he says. as my evidence you could at these stipulations would be ‐ITTI, 4wrunderstand th , .‐JI ‐of course:' I say‐b motive for murder more compelling. sa 2"U'p, "ally .

lisithat Nelson's stipulaff@' any other bombshe ‐ COMPELUNG EVIDEKA 393

"Your Honor, we'd like a fair shot at putting this before the 'jury," I say. "Mr. Nelson's stipulation would appear to do that. "The Coconut is all mellow, like melted Brie. He speaks in tones that drip reason and goodwill. "In all deference to opposing counsel," I say, Viis is not fair. We must be allowed to develop our case for the defense." ,11 am persuaded," says Acosta, "that this is cumulative evidence." This brings it within his broad discretion, to rule that our accountant can be hobbled, blocked at every turn by objections 'j, from Nelson. To this we would have no appeal. It is either play ffll or they will cut us up in little pieces. So I bargain with them. "Our other witness," I say, "Mrs.

must be allowed to testify fully as to her knowledge gs s between Mr.

Skarpellos and the victim." Flthe7deal'li, Nelson looks at Acosta. He is not happy. But there is no way *gn. ttlicyy can bar this testimony. It is in no way cumulative, but of heated argument and confrontation between Tony Ben. Under our theory, this argument is thespark that ignited

"Agreed," says Nelson. "Good." Acosta is happy. Another decision he will not have Coconut reads in a monotone, like some bovine in heat.

'@7,rs s stipulation is put into the record, for the jury to hear. t;, are a lot of question marks, puzzled faces beyond the railing. But Robert Rath, my alpha factor, is taking notes. this little escapade by Nelson may backfire. With Rath 17‐ Ois, the significance behind closed doors, this stipulation "i" little to die imagination. It is now carved in stone that our purposes here, Tony Skarpellos has shamelessly raided

,Ptm trust account‐a major cog in our case. @‐nln @ care what you say. I am going to testify. I have to," is insisting that I allow her to take the stand. She is again, against my advice. But this is something sense, is now beyond her control. There are paroxysms ,liag here, manic episodes, elevated and expansive moods @‐Nt @; by irritability and depression. These swings seem associated with no particular success or crisis in the case. Instead, I think, they are attributable to the d Vis

‐ , I dict draws near, Talia is increasingly an emotional Mr. "You can't testify," I say. "Nelson would eat ou What is difficult is that this is her call. As 0; the strings. I can decide 'what witnesses we c 1, VA we submit. But the defendant's. right to testify or hers alone. I counsel her against it. I tell her I will Nor"" in pedurythere are cases in point in this jurisdiction. A knows his client is about to lie on the stand does ‐$Tli' but by leave of the court may sit idle at the watch as his client weaves a narrative. In refusing row, the lawyer upholds his duty as an officer of the 6ron@twlll jurors of course wonder what is happening, and .isu form their own opinions. It is usually a disaster. 1

I try to steady Talia. Calm her. I tell her that A' 7R7 a major case of judgment jitters. Except for those so strung out on drugs that fried, every defendant gets these jitters as a With Talia, this tension manifests itself in a need She is desperate to help her own cause, of mastery over her life. Oil We argue. I insist. I cannot put her on the stand. to the police about her alibi. I tell her that this vicli, as something less than trustworthy with the jury 1) 1'e@ Of her testimony.

With this revelation as a club, I tell her, Nelson would nail her to the cross. her back on cross‐examination, inquiring into evening with Tod.

Did they sleep together? Did It would not be a quantum leap in logic for LIM jury to question whether Tod and ‐Talia had not ),V to murder Ben.

"I don't care," she says. "I will tell them the mistake to lie to the police. Everybody's entitled (61, There Is another cigarette between her fingers; qj; * 7f, smoked, was crushed out less than a minute on my desk. "If you testify," I tell her, "they will 6roovil‐w" all the authority possible in my eyes as I tion. I don't often engage in clairvoyance, make an exception. Such is the certainty in this point. :

"What will they think if I don't get up and testify on my own behalp Friends have told them that I am trustworthy. What kind of person allows others to speak for her and refuses to say anyong herselff' "They will be instructed not to consider this," I tell her, "told by the court that they may draw no inferences whatever from your silence."

"And you expect them to accept this?" she says. I won't tarry with her on this point. She has the better side of argument, and we both know it.

So I play devil's advocate. @ "We have already talked about'your alibi in the trial," I say, s: Canard's testimony." I remind her how 1. pushed the 774f*w4r on the details of her car, the capacity of its fuel tank, fact that she may not have been sufficiently hungry to stop meal on her return from Vacaville. These were explanations to why the cops couldn't verify her trip that day. "If we backtrack now," I tell her, "there will be a clear trail, M" MUM implication of deceit." My questions to Canard were 71.,MM, abstract not to be considered perjurious. But jurors 47.5

Fconsider this beyond the bounds of good advocacy. They '0,1;1 see this line of inquiry for what it was, an exercise in Jurors don't like to be lied to or misled. They have worowa (, on more than one occasion, to punish defendants for license taken by their lawyers. VA. have crossed this river of fire," I tell her. "We cannot go 4*isv@‐ written in her eyes. She knows I am right. But for TM'time I sense something more in her expression, something

"If has not been there before, a lack of

confidence, not in n me. She is wondering if, in causing her to make b@t i I may have consigned her to prison for the balance 77"Ne, or worse, she is wondering if perhaps I am condemning lit death. Campanelli sparkles this morning. Decked out in a suit Probably not worn since leaving the firm, she is our last

"Rfqaocl ,.a, here to provide the coup

de grace, to turn the last screws case against Skarpellos. 1i makeup, sans the cigarette and hair net, Jo Ann looks years younger than when I spoke with her at her house Zjtik ago. Her nails are polished and manicured. Her blond i:@Ns with its streaks of gray, is so carefully coiffed that it is clear she has spent both time and money jju1

appearance. She wears the obligatory silk scarf, about her neck. It seems that during her time out no one has told Jo that this fad has passed. 'is 1 9 seen the inside of an office in nearly a year, on Ann Campanelli is the very image of We lay the groundwork quickly, her history vhi, expose the fact that she no longer works there, Mowf' years of faithful service she was summarily JMTI‐.'"@ after Ben Potter's death, that she had to retain :IJTO@it secure her retirement. We hit this head‐on rather I I , I I it, in hopes that this will take the sting out ot @M Mt to hammer on the theme that Jo Ann is here Jo describes the armed camp to which the firm

"ISO the days following Ben's death. She

likens this police state. I take her back to the week before set the stage, the argument in Ben's office. "Did the partners argue often over business?" @nad

"In the last months, before I left, there had of heated arguments," she says. "Things were the firm."

N, Jo Ann talks about the growing hostility Tony, Tony's overtjealous that oty‐iod M‐Merm‐ I y to her and other employees. I take her back to the argument between the E'i before Ben was killed. "I couldn't help but hear it. There was a great and name‐calling," she says. "My desk was IT&M t, Potter's office."

"How long did this argument last?"

"The meeting went on for twenty minutes; Is 114 Skarpellos was in Mr.

Potter's office. The iit‐ lit‐I could hear, lasted five minutes, maybe longer.@' "Could you make out any of what was being ,"Mr. Potter called Mr. Skarpellos a thief‐4 were 'a goddamn thief.' " She looks at the '05

they've caught this nuance. "Did Mr. Skarpsellos say anything?"

"Mr. Potter did most of the talking. He ‐isi1w r7t‐_ 51" one point I did hear Mr. Skarpellos say that he would get the money and put it back _V`f

"Did you hear anything else?"

"Mr. Potter was trying to confirm their earlier

"The argument?"

She nods. "Yes. The letter accused Mr..1, large sums of money from the client trust aaccc Mr. Potter had just discovered this and that he Mr.

Skarpellos to return the money within else Mr. Potter would be honor bound to the bar."

"Objection, motion to strike," says Nelson. hearsay, Your Honor. Mr.

Potter's out‐of‐court ‐1 be admitted. He is not here to be cross‐examined

"Not at all," I say. "It has already been *i F‐1 1 son9 s stipulation read to the jury by this court, I is deemed to have taken large sums of ent trust account. This testimony is not being o.. the truth of the matter stated‐‐‐that Skarpellos * ey. That is already proven, by the generous i, district attorney. This testimony is being o Potter's state of mind, that he was aware, or that his partner had taken such sums from Is State‐of‐mind evidence is not subject to the PTI Honor."

It is a subtle point, but one well recognized i the subjective beliefs of a declarant, not being of faith, are not subject to the hearsay rule.

Acosta is looking at Nelson, who stands 141 sel table. I have stuffed his own stipulation Il and now Nelson, his jaw half open, looks as if it. "Me theft of the money from trust is a @,O Acosta. "It would appear that we are looking evidence here." He is hoping that Nelson will remain silent. "State of mind," he says. "This is absurd." comes up with something more persuasive, this Acosta raises his gavel like some auctioneer. he says. The only one who catches the delicacy of this Robert Rath. I think for a moment that he has 1 M.almost imperceptible, wink in my direction. "Mrs. Campanelli, do you recall how to in this letter?"

Wrz: exactly," she says, "but.it was a lot." She's shaking her now trying to recall the figure. "It was more than a hundred dollars. I know that." Irtre you later type this lettert' 21 rol@ did Mr. Potter sign iff I Ris, my presence," she says, "and he asked me to deliver it in envelope to Tony's‐Mr. Skarpellos's‐secretary." 1 rol, did you?" Alfj@

letter is starting to look like a little CYA (cover your @" on Ben's part. If anyone screamed too loudly, or if the bar 4TM11 an independent inquiry, Potter could hide behind this say that the niinute he found out, he did the right thing. , some might question whether waiting forty‐eight hours exactly the right thing. Potter himself might now question iven his fate. 149 Atis the day that you typed this first letter, did Mr. Potter dictate 14r, IT, letter?" ,)Xre to whom was that letter addressed?" :, r‐ the state bar." 47o7o, what did it sayt' I

"W"11TV'IT'ro much of the information that was in the first letter, the form of a complaint to the bar. He told the bar that the of this letter caused him a great deal of pain, but that it. V46N.&PI&I given the conduct of Mr. Skarpellos." )Tj, Mr. Potter give you any instructions regarding this second IF r told me to postdate it." ,VMR.1 you explain for the jury?" "I'wanted me to date the letter two days later than the actual T101‐ I typed it and then to give it to him." 1"r. o this, to Mr.

Potter tell you why he wanted you to d the letter?" hearsay." Nelson's back up. "And don't tell me this 0 @fm in d." 4 a little concession his way. "You caught me, what can 1a Piri; lighthearted laughter from the box. It won't take a giant or a Ouija board to figure out why Ben would do ‐F,r4 than to give the Greek time to gather the money and meet the forty‐eight‐hour deadline imposed in the first 7 the picture of a partner doing all he could to save a his own demons. "Did you ever see this letter, the one to the bar, , i fi i

"No. I typed it and gave it to

Mr. Potter."

"So you don't know whether he had a chance to w@,' pause for a little effect‐"before he was murdered?"

"No," she says. I look to the box. The jury has gotten the point. Before I leave her, I have Jo Ann identify MIT signature as a witness at the bottom. Strangely

"M not even an effort at any objection on this. I

‐ilmy'r. the Greek has admittcd in open court that he was terms of this document, and his interest in Ben's ‐.;:17 little to be gained in Nelson's mind by &.MPF1MM"1 z @ out of evidence. It goes in without a hitch. One of trial law. Problems never develop where you

"Your

witness," I say. There are no surprises here. In his approach to is entirely predictable. "Mrs. Campelli" he butchers her name.

"Campanelli," she says. "Excuse me. Mrs. Campanelli. Isn't it true that by the Potter, Skarpellos firm for acts of

"No," she says, "that is not

true."

"Isn't it a fact that you were making inqumiies client matters in the firm that you knew y knowing about, that you had been instructed otsx.