“What has the prosecution demonstrated in nearly three weeks of your time, at untold public expense?” I ask them.
“Mr. Nelson has given you photographs of horrific violence that he would have you believe was perpetrated by my client, Talia Potter. These,” I say, “were designed to make you lash out blindly at anyone charged with this crime. Is this compelling evidence of the guilt of Talia Potter?
“He has provided a single strand of human hair so pristine in its condition that his own experts cannot explain the absence of any scorching while it was lodged in the chamber of a shotgun fired into the victim’s mouth. Is this compelling evidence of the guilt of Talia Potter?”
I touch upon the implausible explanation for this that Nelson has given in his closing, an explanation, I say, that is not borne out by the evidence of his own witnesses. “I did not object to this speculation, though I could have,” I say, “because there is no evidence on the record to support it. I did not object because I knew that you could see with your own eyes, and hear with your own ears, the absence of evidence on this very point.” I smile at them, nodding my head slowly, a demonstration that I trust their judgment, their common sense in such things. I have no doubt gained more here, by this tactic, than by any objection I could have made.
“Mr. Nelson has produced a witness who tells us that the victim was about to divorce Mrs. Potter, a presumed motive for murder. Yet his own witness cannot tell us whether Talia Potter in fact knew of this supposed plan to end her marriage, a motive so secret that the defendant herself was unaware of it. Is this compelling evidence of the guilt of Talia Potter?”
I remind them of Mrs. Foster, who could not identify the victim’s car, who did not see Ben or Talia at the house on the night of the murder, but whose testimony was offered for this very implication.
I talk of motel clerks and innuendos of lovers in the night, of accomplices that the state, with all of its resources, cannot identify. All of this to the same chorus: “Is this compelling evidence of the guilt of Talia Potter?”
I am certain that Nelson is burning at the counsel table, but as in everything else before the jury he puts a face on this, cool and indifferent.
I tell them that the evidence of this case requires, cries out for, a single verdict, “a verdict of not guilty.”
I move slowly away from the railing, several feet, and let them mull on this point for a brief moment. Then I am back to them.
“When I came to you the first time, in my opening statement, I not only asked you that question, whether the state’s case was one of compelling evidence, but I promised you something else. I promised that I would deliver to you the person who perpetrated this crime, the person who murdered Ben Potter, who killed him in cold blood.”
Here my expression is dour. It does not take a mental giant to know where I am headed. All of these jurors have, in their own minds, been treading this ground for some days now, listening to the evidence against Tony and wondering.
“Let us see what we have,” I say. “Mr. Skarpellos has admitted, grudgingly as it may have been, that he was aware of the terms of Ben Potter’s will, the fact that he stood to inherit vast sums from Ben Potter’s estate, but only if Talia Potter were disposed of, out of the way. Her conviction would do that.”
I play upon this theme, Tony’s convenient memory, the fact that he waited months before he told police that Ben had confided to him his plans for divorce. This I meet in certain terms. I call it “a crock.” Some of the jurors are a little wide-eyed, wondering if this violates the Coconut’s edict on expletives and colored language.
“Loose dealings with client funds … I think this is how Mr. Nelson referred to the wholesale embezzlement, the looting of client moneys by Anthony Skarpellos. It is the first time I have heard outright theft characterized in this way, particularly by a fire-breathing prosecutor,” I tell them.
“It is not possible to believe that Ben Potter would confide his innermost secrets to a man such as this, a man who, as we have heard, is known to have stolen openly from the client trust accounts of his own firm. This theft,” I say, “is a given, hard evidence, which has been accepted as such by the state and which you must conclude, for the purposes of this trial, is now fact.”
I see a series of nodding heads in the jury-slow, timorous, but there.
“We have heard from the witness Jo Ann Campanelli about the violent argument between Tony Skarpellos and the victim shortly before the murder. We know that the victim sent a written ultimatum to Mr. Skarpellos ordering him to pay the money back to the trust account or to suffer the consequences, consequences which may well have included the loss of his license to practice law in this state. This,” I say, “was a compelling motive for murder.”
I punch hard at the Greek’s alibi, the money paid to Susan Hawley, the so-called loan without interest, or collateral. “We should all be so lucky as to borrow at the bank of Anthony Skarpellos,” I say. This draws a few smiles from behind the railing.
I wonder aloud at the state’s investigative myopia, why they have centered on my client to the exclusion of another obvious suspect, one steeped in motive and opportunity.
“Who had more to gain,” I say, “Talia Potter or Anthony Skarpellos? Who had more to lose?”
“Look at the facts,” I tell them. “We do not know whether Talia Potter knew of her husband’s presumed plans for divorce, an assertion for which we have only the word of Anthony Skarpellos, a witness who has much to gain by the conviction of Talia Potter. This is the state of the people’s evidence,” I say. “Far from compelling.
“On the other hand, there is no question that Anthony Skarpellos knew of the threat represented by Ben Potter, a threat communicated in writing, precise in its terms, certain in its consequences.”
I back away from them at the railing, until I am opposite the witness box.
“Tony Skarpellos sat there in that chair, ladies and gentlemen”-I point to the box-“and told you that he did not argue with Ben Potter before the murder. We now know that was a lie.” I remind them of Jo Ann’s testimony of hearing this violent argument.
“He sat there”-I point again as if this was the scene of the crime-“and denied that he had ever taken money from the trust account of his own firm. We now know that was a lie.”
I drop my voice a full octave. “He sat there, ladies and gentlemen, and denied that he murdered Ben Potter, and I submit that that was a lie as well.”
In silence, I hold their eyes for a full ten seconds on this point. It is something Ben had taught me for all of the pregnant places in argument. It seems an eternity. Most of the jurors break eye contact with me before I have finished.
“Ladies and gentlemen, you have an obligation when you get into that room, when you close the door for deliberations, to consider all of the evidence. If you, any one of you, hold a view of this evidence that says that my client is not guilty, and you should, you must hold firmly to that view. You must not be bullied, or cajoled into abandoning that position for reasons of convenience, to go along with the others, to be sociable,” I say. “This is no afternoon tea, no party, but a trial for the life of Talia Potter. In the course of a year, there are many jurors who sit where you sit now. Few will judge such weighty issues.
“There is, lurking in the subconscious, a dynamic in every case that I have ever tried,” I tell them, “a belief that unless the jury can come to a unanimous verdict, somehow it has failed as a body, it has wasted precious taxpayers’ money, wasted tremendous amounts of time, for the court, for its fellow jurors, and for the lawyers who have participated. This is not so.
“The law says, for good reason, that you may only convict or acquit, based upon a unanimous vote of the jury, all of you together,” I tell them. “This, however, does not mean that a jury that has not come to a unanimous vote has failed to produce a result. The result in such a case, ladies and gentlemen, is that some jurors, one or more jurors, are persuaded that the state has failed to produce sufficient evidence of guilt to prove, beyond a reasonable doubt, that this defendant is guilty. Such a result, ladies and gentlemen, means that my client is entitled to the continued presumption of innocence to which every one of us in this room is entitled until and unless the state proves our guilt.”