Compelling Evidence (46 page)

@.‐Mo this crime, the person who murdered Be. in cold blood."

Here my expression is dour. It does not take a w@w, know wh I @@jere I am headed. All of these jurors have, minds, been treading this ground for some days now, the evidence against Tony and wondering. "Let us see what we have," I say. "Mr. Skarpellos grudgingly as it may have been, that he was aware wf,@@ Ben Potter' s will, the fact that he stood to inherit i‐al'o@ Ben Potter's estate, but only if Talia Potter were of the way. Her conviction would do that."

I play upon this theme, Tony's convenien he waited months before he told police that Ben him his plans for divorce. This I meet in certain M‐im, crock." Some of the jurors are a little wide‐eyed, wo violates the Coconut's edict on expletives and xs) "Loose dealings with client funds

... I think il Nelson referred to the wholesale embezzlement, client moneys by Anthony Skarpellos. It is the heard outright theft characterized in this way, t,l fire‐breathing prosecutor," I tell them.

"It is not possible to believe that Ben Potter vii"', his innermost secrets to a man such as this, a man have heard, is known to have stolen openly from accounts of his own‐firm. This theft," I say, '6is evidence, which has been accepted as such by the you must conclude, for the purposes of this 141" I see a series of nodding heads in the )1i but there. "We have heard from the witness Jo Ann Mo MM 11@. violent argument between Tony Skarpellos d the before the murder. We know that the A i sent a turn to Mr. Skarpellos ordering him to C 11TO)IT trust account or to suffer the consequ ces, *)OINIJ74 may well have included the loss of his license to this state. This," I say, "was a compelling motive;#.!‐11 I 1.p@nch hard at the Greek's alibi, the money paid to Susan the so_called loan without interest, or collateral. "We ,4, W. all be so lucky as to borrow at the bank of Anthony Is I say. This draws a few smiles from behind the 0 wonder aloud at the state's investigative myopia, why they f ‐1. centered on my client to the exclusion of another obvious A;__ I'm‐ one steeped. in motive and opportunity. 911tt had more to gain," I say, "Talia Potter or Anthony Who had more to lose?" 7IG"'k at the facts," I tell them. "We do not know whether if: Potter knew of her husband's presumed plans for dian, assertion for which we have only the word of Anthony Mw a witness who has much to gain by the conviction of Pozr. This is the state of the people's evidence," I say. i‐ from compelling. 1,jej, the other hand, there is no question that Anthony Irty‐ knew of the threat represented by Ben Potter, a communicated in writing, precise in its terms, certain in back away from them at the railing, until I am opposite the box. 'p

"Apig , Skarpeflos sat there in

that chair, ladies and gentle‐1 point to the box‐"and told you that he did not,argue Ben Potter before the murder. We now know that was a I remind them of Jo Ann's testimony of hearing this violent A7T,T;I,. sat there'!‐‐I point again as if this was the scene of the "and denied that he had ever taken money from the trust @@;M# of his own firm. We now know that was a lie." 4' my voice a full octave. "He sat there, ladies and gentleand denied that he murdered Ben Potter, and I submit that 7

was a lie as well." d, silence, I hold their eyes for a full ten seconds on this point..41@ something Ben had taught me for all of the pregnant places *1JR =4‐ i .. it seems an eternity. Most of the jurors break eye PTR: with me before I have finished. *,I_1T1h*‐ and gentlemen, you have an obligation when you get that room, when you close the door for deliberations, to @,Mq all of the evidence. If you, any one of you, hold a of this evidence that says that my client is not guilty, and should, you must hold firmly to that view. You must not be bullied, or cajoled into abandoning that position of convenience, to go along with the others, to be say. "This is no afternoon tea, no party, but a trial for N4 Talia Potter. In the course of a year, there are many n@x sit where you sit now. Few will judge such weighty '@,qr

"There is, lurking in the

subconscious, a dynamic )oir ‐A that I have ever tried," I tell them, "a belief that to can come to a unanimous verdict, somehow it has M4. it has wasted precious taxpayers' money, wasted amounts of time, for the court, for its fellow jurors, lawyers who have participated. This is not so. "Me law says, for good reason, that you may s0l, or acquit, based upon a unanimous vote of the @ILI Amf, together," I tell them. "This, however, does not w*11' that has not come to a unanimous vote has failed result. The result in such a case, ladies and ‐‐.

1 11 some jurors, one or more jurors, are persuaded tdhtq?11';failed to produce sufficient evidence of guilt to reasonable doubt, that this difendant is guiltyand gentlemen, means that my client is entitled to presumption of innocence to which every one of qdbdr";@@ is entitled until and unless the state proves *i@owjld I have made my last point to this jury. I briefly. "Ladies and gentlemen, there sits an innocent with an outstretched arm at Talia, then drop it to have offered one final salute. "This is my last opportunity to address you," thank you for the generous time you have patience, and most of all for your honesty, in I t which I am certain you will bring to your MAH,77c ‐7 X11 With this I am off on my heels, back to the quickly into my seat.

@ el Nelson sits for the briefest moment before @i .0.w@aw last‐minute notes on a yellow pad. When he is jury he does not waste any time, trying to take of my argument. This time he goes for the critical issue first. ""Why," he says, "would a man who has who has framed the victim's wife for that ‐64111T@=, a man lend eighty thousand dollars to defend the charges for which he has framed her?"

He smiles at the jury as if he has given them the opening moves of a Chinese puzzle. "Why," he says, "would any rational human do this?" I had asked myself the same question many times. The answer Ms always come back in the form of Gilbert Cheetam, and his r,ro‐ lack of competence.

One of the imponderables I cannot SSW‐ before this jury and expect them to understand. It was a it think; Cheetam for his lack of competence, and me 1(ol, my conflict@ my affairs with Talia. The Greek had assembled fl@" perfect defense team. Skarpellos was more perceptive than I 471, ever imagined. ‐ Nelson hits on this as a major theme, that it defies logic Skarpellos to have financed the defense, if in fact he had Ben. He leaves the strand of Talia's hair alone and instead shores up ,7,N

elements of his case. He tells them that there is no reason believe that the money paid to Susan Hawley was anything @7i@4, than what Tony Skarpellos says it was, a loan. "You may mirot the source of that payment," he says, "but its purpose a loan pure and simple." He questions why, in our case, lieved that Susan Hawley was a bought witness, we did call her to the stand. He says that police, who questioned 7TRMMM@" never doubted her story that she was with Tony ,M1w"

on the night of the murder. Nelson is proving to be a better defense lawyer than I had By the time he is done, he has leveled the playing field .4@‐L and the gargantuan butterflies which soared in my stomach V., start of this trial are back. What the jury will do with this i@ ..

is, I fear, a crapshoot of immense proportions. W E waited for the worst, a quick verdict, until that at least seemed unlikely. An hour of listening to Harry's fingers thumping on the counsel table, and Talia and I could stand it no longer. So we left. Talia doesn't know what to do with herself so she follows us, Harry and me, back to my office. Tod has come along, 4P,i moral support. With the jury‐ retired, there is no longer a ii esi*@ to the facade of distance I have imposed between the of them. Talia is like a sick and frightened child. To watch her one would VTI ‐1, that nothing bad can happen so long as she remains in our I have watched her enough over the past several days at she is now plea‐bargaining with the angels for her sense th The moment of truth is drawing near, and nerves are raw 1 myself have made resolutions to higher authority, io life, for an end to duplicity, if only we can dodge this bearing down upon us. '@_Acosta took nearly two hours to charge the jury, using the list instructions from our conference in chambers. These were "71 in a slow, methodical manner, framed in English that a @@Mne w could understand. Ahlt;@ to form, he did not embellish on these instructions or seek or interpret them further. These little nuggets of the have been crafted by legal scholars, most of them tested in ip, 711W@ courts, whittled and refined, until they can stand the Of time.

10JN111 jury took the little pile of forms from the clerk, the ones for their secret ballots on die verdict, with boxes marked ' 7, and "not guilty" printed on them. What takes place behind il doors is now shrouded in secrecy, like the college of *io,. before signaling the world with its chimney of white isitsit,one beyond the twelve souls now locked in that room with accuracy what happens there. Back in my office Harry finds the bottle in the bottom i Tr I'll, my desk, the good stuff, Seagram's V.O. He holds it k!2Ld" to clean glasses for us all. Tod and I swear off, but AWIT"', At this point, she needs it. Harry is off, down the hall, for a little ice. One of the tenants has a small MY office. To the drinkers on this floor, this machine has communal thing, like an oasis in the desert. There's a large canvas mailbag: in the comer of my has been there since the prelim, and since that time I It dropping letters into its dark hole each day. These are who have been following this case in the news, in papers and on the tube. It is always a mystery to me i7r! presumably with busy lives, have time for this. I have best of these letters to Talia‐those wishing her well, it, her innocence. I have saved some of the best for deep w,@:. depression. The death threats, some filled with oil NI t,jv,.@ dropped in the dingy bag. _Ic There are stacks of paper on my desk, four of '171‐11FI, as telephone books. Most have envelopes stapled to a sorting of the mail by Dec.

These are letters, bills, motions for discovery in cases I have";" about in weeks, all waiting for attention behind Taiwv'.@ has been putting out little fires on my desk, U?W%"M stuff since the trial began. I paw through the first @M, clear the easy pieces away, items I can put Post‐it. with notes to Dee for filing. "What are my chances?" she says.

Talia is. W r74 the desk, large oval eyes of emerald. Tod is in otwchairs. It is the first time she has asked this since emparieled. I want to tell her that it will be all right, that i away from this a free woman. But I know better A predict what any jury will do. It would be easier @rtpoi' numbers of this week's Lotto mania. A I tell her this, but cloak it in a few rules of thumbi rafts of security she might cling to. "Me longerthey stay out the better for us," I say. "A sign that perhaps one or more of the jurors is holding out."

"A hung jury?" says Tod. "Who knows."

With this her expression sags. "That's the best we can hope for, after all of this, a hung jury?" She looks at the two of us. Her confidence in lawyers has just slipped several notches. "It's impossible to know," I tell her. She nods, like perhaps she accepts this. But I know better.

Harry is back with two glasses and some ice. He pours Talia a stiff drink, mixed with a little water. His own he takes straight., in the first stack of papers is a letter from Peggie Conrad, the paralegal in Sharon Cooper's case. There are a number of papers here, things for me to sign in order to finalize this probate that is still hanging fire.

They are all paper‐clipped together, a thick packet. Harry does a one‐cheeker on the comer of my desk while Talia. sits on the sofa against the wall. "My guess," says Harry, "is five days." He's laying odds on how long the jury will be out. This, I think, is a little moral

,support for Talia. He's telling her to calm down, to relax, or she won't have to worry about the verdict: She will be a mentai tasket case before they announce it. Though right now, I wonder she is not in better shape than Harry. ‐"Danin," I say. "What is it?" Harry's looking at me, like I've just dropped a grenade. "Nothing," I tell him. "Just something I forgot to tell Peggie ad about in Sharon's case." In the chaos surrounding Eli Walker's column, the disclosure any affair with Talia, I'd forgotten to call off Peggie, to tell her t Coop had already taken care of the receipt for the toaster left .repair by Sharon at the hardware store. She has now spun her Is and duplicated his efforts, for there in this stack of papers a xeroxed copy of the receipt. This must be the store's own , a lot of writing on the printed form, a heavy scrawl that is cult to decipher. e intercom on my phone rings, but I don't move to get it. eyes are struggling with the cryptic handwriting of some store making out only one word on this form. Instead Harry picks the phone up. He puts his glass down on the desk, his 4.4ta suddenly dark, worried. "They're back," he says. "What?"

"The jury, they're back."

"A verdict?" I ask. I don't know‐, Dee took the message. All she said is Iv is back."

10 Typical of Dee Magnuson, she has given us a collective o‐; With Dee it is seldom sins of commission that one ii7@1 about, but those of omission. She failed, when the 4T, to find out why the jury was back.

There may be than a verdict. When we arrive in the courtroom, the jury is already @i They are not talking, but listening‐to testimony the court reporter. it takes me several seconds a7 zeros in on the colloquy being read. It is Nelson's *44 strand of hair, Mordecai Johnson‐my cause for concern, that the jury is focusing on the col evidence linking Talia to the crime, as if they are ‐fix record for some hook upon which to hang a they're just looking one more time, to assure MMIIM.fact there is no .

But more than the words being read, a dry reporter, I am concerned by, something else that I beyond the jury railing. Centered in the second row Rath, my alpha factor. He is not where he should be. I took at the seat, far left, front row, the which should be occupied by the foreman of this by one of the four women I had tried to remove im, @s She looks atme, a fleeting glance, as I stare, my So much for the science of jury selection. I have w . badly, and I wonder if perhaps I have made other

‐w' the first time I begin to question seriously whether be buying the theory of Tony Skarpellos as killer The reporter finishes with her notes, and iiimi jury. "Madam foreman, is there anything qset' "One of the instructions," she says. "The one defendant's silence during this trial. We would and explained." 4t. : Harry looks at me. For the first time he is grappling seriously with thoughts of a death penalty phase.