I won’t tarry with her on this point. She has the better side of the argument, and we both know it. So I play devil’s advocate.
“We have already talked about your alibi in the trial,” I say, “during Canard’s testimony.” I remind her how I pushed the detective on the details of her car, the capacity of its fuel tank, the fact that she may not have been sufficiently hungry to stop for a meal on her return from Vacaville. These were explanations as to why the cops couldn’t verify her trip that day.
“If we backtrack now,” I tell her, “there will be a clear trail, an unbridled implication of deceit.” My questions to Canard were sufficiently abstract not to be considered perjurious. But jurors might consider this beyond the bounds of good advocacy. They might see this line of inquiry for what it was, an exercise in misdirection. Jurors don’t like to be lied to or misled. They have been known, on more than one occasion, to punish defendants for such license taken by their lawyers.
“We have crossed this river of fire,” I tell her. “We cannot go back.”
Resignation is written in her eyes. She knows I am right. But for the first time I sense something more in her expression, something which has not been there before, a lack of confidence, not in herself, but in me. She is wondering if, in causing her to make this decision, I may have consigned her to prison for the balance of her life, or worse, she is wondering if perhaps I am condemning her to death.
Jo Ann Campanelli sparkles this morning. Decked out in a suit she’s probably not worn since leaving the firm, she is our last witness, here to provide the coup de grace, to turn the last screws in our case against Skarpellos.
With makeup, sans the cigarette and hair net, Jo Ann looks twenty years younger than when I spoke with her at her house two months ago. Her nails are polished and manicured. Her blond hair, even with its streaks of gray, is so carefully coiffed that it is clear she has spent both time and money preparing for this appearance. She wears the obligatory silk scarf, tied in a bow about her neck. It seems that during her time out of the loop, no one has told Jo that this fad has passed. Though she hasn’t seen the inside of an office in nearly a year, on this morning Jo Ann Campanelli is the very image of commercial efficiency.
We lay the groundwork quickly, her history with the firm. I expose the fact that she no longer works there, that after twenty years of faithful service she was summarily discharged shortly after Ben Potter’s death, that she had to retain another lawyer to secure her retirement. We hit this head-on rather than hiding from it, in hopes that this will take the sting out of Nelson, who is sure to hammer on the theme that Jo Ann is here for vengeance.
Jo describes the armed camp to which the firm was reduced in the days following Ben’s death. She likens this to working in a police state. I take her back to the week before Ben’s murder, and set the stage, the argument in Ben’s office.
“Did the partners argue often over business?”
“In the last months, before I left, there had been a number of heated arguments,” she says. “Things were not going well in the firm.”
Jo Ann talks about the growing hostility between Ben and Tony, Tony’s overt jealousy that manifested itself in ways obvious to her and other employees.
I take her back to the argument between the two men only days before Ben was killed.
“I couldn’t help but hear it. There was a great deal of yelling-and name-calling,” she says. “My desk was directly outside of Mr. Potter’s office.”
“How long did this argument last?”
“The meeting went on for twenty minutes; that’s how long Mr. Skarpellos was in Mr. Potter’s office. The argument, the portion I could hear, lasted five minutes, maybe longer.”
“Could you make out any of what was being said?”
“Mr. Potter called Mr. Skarpellos a thief-I think his words were ‘a goddamn thief.’ ” She looks at the jury to make sure they’ve caught this nuance.
“Did Mr. Skarpellos say anything?”
“Mr. Potter did most of the talking. He sounded very angry. At one point I did hear Mr. Skarpellos say something about money, that he would get the money and put it back right away.”
“Did you hear anything else?”
“Just Mr. Potter telling Mr. Skarpellos to get out of his office.”
“Did he leave?”
“Like he was shot from a cannon,” she says.
There’s a little laughter in the jury box, just a titter.
This is the pecking order I knew in the firm. The Greek fed on minnows like Hazeltine and the junior associates, but was no match for Ben, particularly when Potter was angry.
“What did Mr. Skarpellos look like when he left Mr. Potter’s office that day?” I ask her.
“Red in the face, crimson, you might say. Mr. Skarpellos had a nickname among the staff,” she says. “We called him the Red Leper. When he got angry or embarrassed his face became very red, flushed, you might say.”
“Why the Red Leper?” I ask.
“When he was like this, you didn’t want to be around him.”
More laughter in the box.
“Did he have a bad temper?”
“Objection, calls for speculation.”
Before Acosta can rule I reframe the question. “Did you ever see him lose his temper?”
“A number of times.”
“Did you ever see him become violent?”
“Once I saw him throw a book at one of the associates.”
I raise my eyebrows a little, while facing the jury.
“He missed,” she says. It seems his aim was as bad as his temper.
“On the day of this argument in Mr. Potter’s office, did you have occasion to talk to Mr. Potter after the argument?”
“I did.”
“What did you talk about?”
“He called me into the office and asked me to take a letter.”
“Did this letter have anything to do with the argument-between Mr. Potter and Mr. Skarpellos?”
“Objection, hearsay,” says Nelson.
“If the court will admit the testimony subject to a motion to strike, I think you will see, Your Honor, that this is not hearsay.”
Acosta waffles a hand at the bench. “I’ll allow it, subject to a motion to strike.”
Nelson resumes his seat.
“It was to Mr. Skarpellos.”
“Do you recall what the letter said?”
“Mr. Potter was trying to confirm their earlier conversation.”
“The argument?”
She nods. “Yes. The letter accused Mr. Skarpellos of taking large sums of money from the client trust account. It stated that Mr. Potter had just discovered this and that he had instructed Mr. Skarpellos to return the money within forty-eight hours, or else Mr. Potter would be honor bound to report the matter to the bar.”
“Objection, motion to strike,” says Nelson. “This is clearly hearsay, Your Honor. Mr. Potter’s out-of-court statement cannot be admitted. He is not here to be cross-examined.”
“Not at all,” I say. “It has already been established, by Mr. Nelson’s stipulation read to the jury by this court, that Mr. Skarpellos is deemed to have taken large sums of money from the client trust account. This testimony is not being offered to prove the truth of the matter stated-that Skarpellos took the money. That is already proven, by the generous agreement of the district attorney. This testimony is being offered to show Ben Potter’s state of mind, that he was aware, or at least believed, that his partner had taken such sums from the trust account. State-of-mind evidence is not subject to the hearsay rule, Your Honor.”
It is a subtle point, but one well recognized in the law, that the subjective beliefs of a declarant, not being facts but matters of faith, are not subject to the hearsay rule.
Acosta is looking at Nelson, who stands silent at the counsel table. I have stuffed his own stipulation down his throat, and now Nelson, his jaw half open, looks as if he will gag on it.
“The theft of the money from trust is a settled point,” says Acosta. “It would appear that we are looking at state-of-mind evidence here.” He is hoping that Nelson will agree, or at least remain silent.