I make this look like some last-minute decision, something that I have landed on on the spur of the moment, grounded on the weakness of the state’s case.
Nelson is looking at me dumbfounded. These comments are highly improper, except that in a death case everything is fair game.
“Your Honor,” he says. “I object.”
“To what? My client not taking the stand? That is her privilege. The burden is on you to prove your case,” I say, “and you have failed.”
At this his eyes nearly bulge from his head.
“No,” he says, “I object to these gratuitous comments. The justifications for why he won’t put his client on the stand.” He’s imploring Acosta.
“The state is not permitted to comment in this area,” I tell Acosta. “Mr. Nelson is asking for a mistrial.” Having goaded him, I now complain about Nelson’s response.
Acosta is banging his gavel, telling us both to be quiet.
“That will be enough,” he says. “The defendant has chosen not to testify. That is her right. I instruct the jury to disregard all of the comments of both counsel. These are not evidence and are not to be considered by you in arriving at your verdict.”
Some trial lawyers call this cautionary instruction “the green-striped zebra rule.” A jury told that it may think of anything, anything in the world, except a green zebra, will of course envision, to the exclusion of all other objects in the universe, a green-striped zebra. It is not so easy for Acosta to kill this seed I have planted. Jurors now at least have a plausible explanation for Talia’s silence, one they have been told not to consider, so of course they will, not collectively, but in the dark recesses of their individual consciousnesses. It is at least an explanation, something to counter the natural inclination that only the guilty remain silent.
“Mr. Madriani, do you have any further witnesses?”
“The defense rests,” I say.
“Very well,” says Acosta. He looks at his watch, considering whether to continue today or to resume in the morning. “We will have closing arguments tomorrow, starting at nine o’clock. I would advise you both to be ready. This court stands adjourned.”
CHAPTER 39
It took most of the morning, behind closed doors with Acosta, to settle on the jury instructions. This is a mixed bag of short paragraphs, rules on the burden of proof, the presumption of innocence, circumstantial evidence and the weight to be given these facts, the inferences to be drawn from them. In the end it is a tight little package, items that both Nelson and I will refer to in our closing argument.
Through final argument we claw at each other like two flailing tomcats over a fish head. This is deadly combat. The stakes are high. The gloves are off. Closing argument in a death case, and all is fair game.
Nelson is now up before the jury. He tries to stretch the evidence. His first pitfall comes over the strand of Talia’s hair, the only physical link between her and the crime. His difficulty, of course, is that he must explain how this hair survived unscathed in the barrel of the shotgun, how it escaped the searing heat of the blast that took off the top of Ben’s head. He wants to put this problem behind him early, so the jury will not dwell on it.
This is a tactical mistake, I think, a deviation from the precept that you always start strong and finish on a high note. He stumbles a bit here, then picks himself up moving forward with his argument. He tells the jury that this piece of evidence is susceptible to a number of differing interpretations. “The hair may have worked its way to the side of the chamber before the trigger was pulled. Maybe the defendant opened the breech and closed it again after firing,” he says, though he can’t suggest a reason for this, since she apparently did not remove the spent cartridge. “She may have snagged the hair at that time,” he says. “You can’t always expect a person who has just committed such a brutal, merciless crime, to think and act logically.”
All of these explanations are equally lame. But Nelson puts a face of confidence on them and does an expert job peddling them to the jury. He moves on, smoothly, to the little pistol found by Tod at Talia’s house after the murder. He notes Coop’s expert testimony, that the standard metal jacket on a twenty-five-caliber bullet is entirely consistent with the fragment found in the skull of the victim.
“This,” he says, “this handgun found at the defendant’s residence, was the murder weapon that killed Ben Potter. Can you doubt it?
“You have heard Mrs. Foster,” he says, “the neighbor of the Potters, as she told of seeing the victim’s vehicle in the driveway of their house about the time of the murder. Mr. Madriani”-he looks at me full of scorn-“Mr. Madriani did what he could to confuse this poor woman, with pictures of cars that none of us under similar circumstances could distinguish. But notwithstanding this confusion, her testimony remains. This was a vehicle she had seen many times, a vehicle she was not likely to mistake.”
Nelson is a master at working with what he is given. He plays at the edges of circumstance like a virtuoso at the piano. His argument is straightforward, almost chronological.
“We have heard testimony of an alibi”-he leans on this word for all of the pejorative connotations it carries in the public mind-“an alibi for the defendant, a story related to police and investigated by them, thoroughly. Yet I would ask you to comb the record of this trial-there is not a shred of evidence to support this story of the defendant that she was out of town at the time of the murder. The defendant has produced nothing, not a single scrap of evidence, to tell us where she was on that night.”
He pauses, both hands on the railing, and takes in the entire panel with the sweep of his eyes. The law does not allow him to ask with words what he now asks with body language: Why has the defendant failed to come forward to tell us where she was the night Ben Potter was murdered?
I can tell that this has an effect on the jury. Even Rath will not meet my eyes as he considers this.
Nelson hits hard on the prenuptial agreement and scrambles to fill in the deficiencies in his evidence. “Mr. Madriani,” he says, “places great stock in the theory that the defendant never knew about Ben Potter’s plans to divorce her. Yet this is only a theory, so much conjecture. For we don’t know what the defendant knew or did not know on this point. We can only surmise.” He now turns from the jury and is looking at Talia, a silent indictment for her failure to testify.
“We do know that she had a great deal to lose,” he says. “The home she lived in, an opulent residence fit for a queen, all interest in the law firm managed by her husband, a firm worth millions of dollars. A carefree, some might even say indulgent, life-style to which she had become accustomed. All of this would have been swept away in an instant if Ben Potter had divorced the defendant.”
He centers himself again on the railing. “Ask yourselves, ladies and gentlemen, whether this, the loss of all of these things, the loss of all financial security as one approaches the middle years of life, is not an adequate motive for murder.”
He steps back slowly, nodding, a little body English to provide the answer to his own rhetoric.
He runs quickly through the testimony of Talia’s character witnesses, testimony which he says is “self-serving-the raving endorsement of the country club set, whose morals, like those of the defendant, belong in some barn.”
This stings, and I can see Talia take a mean bead on him. I lean toward her with a little admonition on demeanor. “Don’t give the jury something to dislike,” I tell her. She settles into a more placid expression.
“Ladies and gentlemen, ask yourselves, can you believe a character witness who tells us that these sojourns to a local motel in the middle of the day with other men were perfectly innocent tennis lessons?” There is scorn dripping from his voice.
He steps away from the railing shaking his head, a little mock laughter. “These people think we are hayseeds,” he says.