“Clear violation of bar ethics,” says Acosta. He’s shaking his head, his features all screwed up, an expression of disgust that is aimed at convincing me that I have now made my point on the Greek, that anything more is just overkill.
“We’re consuming a great deal of the court’s time on this,” says Nelson.
“Now that you have your case in, time is suddenly of the essence?” I ask him.
There is a rule concerning cumulative evidence, facts which are redundant, all tending to prove the same thing. Judges have broad discretion to exclude such evidence in the interest of time, and Nelson makes clear that this will be his objection if I persist with my accountant.
“We think this is more than a little cumulative,” says Meeks, trying to help his boss along. He cites Plotkin’s testimony and Tony’s own babbling bordering on admissions as examples of this.
“We?” I look at him.
“Mr. Nelson and I.” Meeks runs quick cover for the judge, as if Acosta has no hand in this and is hearing it all for the first time.
“I’m not trying to cut you off,” says Nelson. “Please understand.”
“Yeah, God forbid,” says Harry.
Nelson shoots him a little quick contempt. “You’ve been given wide latitude by the court.” He looks at Acosta, who nods, like this is a point well taken. “It’s just that we could save some time if we were to enter into a few stipulations.”
This is a tactical move by Nelson to take the sting out of much of this evidence. I suspect that the state’s auditors have been as busy as our own. Nelson would like to keep this out, but he can’t. The next best thing is some orderly and wooden way of placing this evidence before the jury, some dull rendition that will take the luster from it, that will put the jury to sleep like the repetitious prayers of a rosary.
“What do you propose?”
“We will stipulate,” Nelson says, looking at notes now, “ … that during the two years immediately preceding the death of Benjamin Potter, Tony Skarpellos withdrew approximately two hundred and twenty thousand dollars from the client trust account of Potter, Skarpellos, Edwards, and Hazeltine. That these withdrawals appear to have been unauthorized, and that the funds appear to have been diverted to personal use. I think this would cover the point as well as any evidence you could introduce,” he says. “Of course, you understand that these stipulations would be binding only in this case. They would have no effect on Mr. Skarpellos.”
“Of course,” I say.
Acosta’s looking at me and nodding, licking his chops, like this could save him a whole half-day. But we all know what this is about. It is about convicting Talia. Tony Skarpellos is looming larger in the minds of the jury with each passing witness, the motive for murder more compelling.
Harry’s scrambling, looking through our notes to see if there are any other bombshells that Nelson’s stipulation doesn’t cover.
“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, “this is not fair. We must be allowed to develop our case for the defense.”
“I 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 from Nelson. To this we would have no appeal. It is either play ball or they will cut us up in little pieces.
So I bargain with them. “Our other witness,” I say, “Mrs. Campanelli, must be allowed to testify fully as to her knowledge of the dealings between Mr. Skarpellos and the victim.”
Nelson looks at Acosta. He is not happy. But there is no way that they can bar this testimony. It is in no way cumulative, but new evidence of heated argument and confrontation between Tony and Ben. Under our theory, this argument is the spark that ignited murder.
“Agreed,” says Nelson.
“Good.” Acosta is happy. Another decision he will not have to make.
The Coconut reads in a monotone, like some bovine in heat. Nelson’s stipulation is put into the record, for the jury to hear. There are a lot of question marks, puzzled faces beyond the jury railing. But Robert Rath, my alpha factor, is taking notes. I think this little escapade by Nelson may backfire. With Rath to explain the significance behind closed doors, this stipulation leaves little to the imagination. It is now carved in stone that for our purposes here, Tony Skarpellos has shamelessly raided the client trust account-a major cog in our case.
“I don’t care what you say. I am going to testify. I have to,” says Talia.
Talia is insisting that I allow her to take the stand. She is chain-smoking again, against my advice. But this is something that, I sense, is now beyond her control. There are paroxysms of anxiety here, manic episodes, elevated and expansive moods followed shortly by irritability and depression. These swings seem to be associated with no particular success or crisis in the case. Instead, I think, they are attributable to the fact that as a verdict draws near, Talia is increasingly an emotional basket case.
“You can’t testify,” I say. “Nelson would eat you for lunch.”
What is difficult is that this is her call. As her attorney, I hold the strings. I can decide what witnesses we call, what evidence we submit. But the defendant’s right to testify or not is hers and hers alone. I counsel her against it. I tell her I will not participate in perjury.
There are cases in point in this jurisdiction. A lawyer who knows his client is about to lie on the stand does not withdraw, but by leave of the court may sit idle at the counsel table and watch as his client weaves a narrative. In refusing to participate, the lawyer upholds his duty as an officer of the court. Inquisitive jurors of course wonder what is happening, and in due course form their own opinions. It is usually a disaster. I tell her this.
I try to steady Talia. Calm her. I tell her that she is suffering a major case of judgment jitters.
Except for those so strung out on drugs that their brains are fried, every defendant gets these jitters as a verdict draws close. With Talia, this tension manifests itself in a need for control. She is desperate to help her own cause, paralyzed by the lack of mastery over her life.
We argue. I insist. I cannot put her on the stand. She has lied to the police about her alibi. I tell her that this would mark her as something less than trustworthy with the jury on every aspect of her testimony. With this revelation as a club, and three nails, I tell her, Nelson would nail her to the cross. He would break her back on cross-examination, inquiring into every aspect of her evening with Tod. Did they sleep together? Did they make love? It would not be a quantum leap in logic for Nelson to lead the jury to question whether Tod and Talia had not in fact teamed up to murder Ben.
“I don’t care,” she says. “I will tell them the truth. It was a mistake to lie to the police. Everybody’s entitled to one mistake.” There’s another cigarette between her fingers; the first, only half smoked, was crushed out less than a minute ago in the ashtray on my desk.
“If you testify,” I tell her, “they will convict you.” I muster all the authority possible in my eyes as I deliver this prediction. I don’t often engage in clairvoyance, but in this case I make an exception. Such is the certainty in my own mind on this point.
“What will they think if I don’t get up and testify on my own behalf? Friends have told them that I am trustworthy. What kind of person allows others to speak for her and refuses to say anything herself?”
“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.