“No,” he tells the jury, “these are not the actions of a loyal and loving wife, but a hedonistic life-style lived under the nose of a husband who was shamed and embarrassed in the community in which he lived, a husband who for good and obvious reason sought to end a fruitless marriage-and who for his efforts was murdered.”
This last settles like prairie dust on an Iowa fanner. Even to this male-dominated jury it is difficult to square the monumental lack of discretion exhibited by Talia.
Nelson has saved the most critical part for last, his defense of Tony Skarpellos. Here he is cast in the role of defense lawyer. Unless he can acquit the Greek in the eyes of this jury, the thread of two possible perpetrators, each with opportunity, each with a burning motive to kill, will fire more doubt than the state’s circumstantial case can withstand.
“Mr. Madriani has gone to great lengths to draw the witness Anthony Skarpellos into the ring of suspicion in this case. Indeed, there are things we have heard that are disturbing in terms of Mr. Skarpellos’s conduct, his loose dealings with client funds. But this is not evidence of murder. This”-my theory of the case, says Nelson-“is misdirection, clearly calculated to draw the jury away from the real killer.”
It is clear that within two minutes of launching into this, his last point of argument, Nelson has made a major blunder. He has nothing with which to counter our theory against the Greek. Harry’s advice on Susan Hawley, it seems, has turned out to be golden. While Nelson plays upon Tony’s alibi, the basketball game in Oakland, this has all the timbre of a hollow tune. Talia’s fate may not yet be decided, but one thing is clear: Tony Skarpellos suffers from a terminal lack of credibility in the eyes of this jury. He is not someone I would wish to defend here.
Instead of ending on a high note, Nelson, it seems, has miscalculated. His final pitch to the jury drops flat like some sinking stone in a mountain lake. I think that he senses this. As he turns, his back to the jury, and makes for the counsel table, Nelson has the look of a man who wishes for one more chance. Unfortunately for our side, he will get it. The prosecution gets two shots at closing argument, an initial summation and then a rebuttal following our own, one of the perks of shouldering the burden of proof.
Nelson takes his seat, and Acosta looks at me.
My plan here has two major aspects, to tear at the soft underbelly of the state’s case so as to put Nelson on the defense, and to give him as little ammunition as possible for his rebuttal.
I move in front of the jury and smile. I speak in a conversational tone, as if I am leaning over the back fence to a neighbor.
“There is an abiding constant in the criminal law,” I tell them. “It is the same from Maine to California, from the Aleutians in Alaska to the Florida Keys. It is one of the few laws in this nation that is universal and unquestioned-the rule that criminal defendants are entitled to the presumption of innocence unless the state can prove their guilt by evidence beyond a reasonable doubt.”
I always start with the basics.
I nod a little, anticipating the question that I know has entered each of their minds.
“Oh yes, you are right. This is a difficult task that our government has imposed upon the various states, particularly in a case such as this one, where the evidence is circumstantial, where there are no witnesses to the crime.
“But,” I say, “this is what the founding fathers intended, that no innocent man or woman should suffer for a wrongful conviction, should be unjustly imprisoned, or worse, executed because of an overzealous prosecutor or a mistake on the part of the state. It is a good system, the best in the world.”
I soothe them lest they feel that Nelson is too much the underdog here. I remind them that he has an army of police officers to investigate for him, an office filled with professional prosecutors, all of the resources of the state, against me and Harry alone. I point to “Mr. Hinds” sitting at the table, lonely next to Talia. “The state, with all of these resources,” I say, “deserves the burden of proof.”
They seem to accept this as a given. I move on to defuse Talia’s silence.
“Mr. Nelson has nibbled around the fringes,” I say. “By innuendo and implication he has questioned what the law does not permit him to ask directly-he has, by subtle suggestion, challenged the silence of Talia Potter in this trial.”
“Your Honor, I did not,” he says. Nelson is on his feet. He knows this is taboo. If even implied in the transcript, it is grounds for an instant mistrial. He cannot allow my assertion to remain unchallenged.
“The record will speak for itself,” says Acosta. “I heard no objection from the defense as Mr. Nelson spoke.”
“How can one object to gestures and inflections, Your Honor?” These do not show up between the lines of black print on the trial transcript, I tell him.
“Get on with it,” he says.
I return my gaze to the jury.
“I will confront this question directly and honestly,” I tell them. “In a few moments the judge will read to you a number of instructions. One of these bears directly on the right of Talia Potter to remain silent throughout this trial. That is her undeniable, God-given right,” I say.
“She has a right to rely on the state of the government’s evidence, or any failure of that evidence. If the state has failed to prove every essential element of the charge against her, under the law Mr. Nelson may not expect her to supply his own deficiencies. This the law does not permit.”
I pick up the jury instruction sheet from the counsel table, one of two that Acosta will read from on this point. “ ‘A defendant in a criminal trial,’ ” I read, “ ‘has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. You must neither discuss this matter, nor permit it to enter into your deliberations in any way’ whatever.” I embellish here, one word at the end.
“This is the law,” I say, “apart from any suggestions or implications that the state may give you, gestures that you think you may have seen.” I turn and look at Nelson. “This is inviolable, a fundamental right which the state may not invade.”
I return to the counsel table and replace the single piece of paper, take a sip of water, and make my way back to the railing.
There are other reasons, I tell them, for my client’s silence. I note that she has in fact answered these charges by pleading not guilty, by mounting a vigorous defense, by producing witnesses who have attested to her innocence. “And there is another reason that she has not taken the stand. She is a proud woman, who for months now has been subjected to the worst trauma the state and society can inflict on any citizen, an accusation of serious crime, an utter and complete invasion of any sense of privacy. I will not subject her to more,” I say. “This I cannot do.” In this way I assume the blame for her silence, take it upon myself, and try to scatter it to the winds.
I pause for a moment and give them a deep sobering look, pull myself up to my full height, and speak.
“I asked you, when we started, a single vexing question, on an issue pivotal to the outcome of this trial. I asked you whether in the presentation of the state’s entire case you had heard or seen any compelling evidence, any evidence whatever, sufficient to convict Talia Potter of the crime with which she stands accused.”
It is now time to call them on this. I give an unflinching look from one end of the panel to the other.
“Ask yourselves, in the silence of your own minds, whether the state has produced a scintilla, even the slightest trace, of compelling evidence that Talia Potter is linked in any way with the death of her husband, Benjamin Potter.”
I look at them in abject silence for a long moment, giving this thought some time to penetrate.