It is the timing that is most troubling. Kline has done something now, we are not sure what, to smoke him out.
“It figures,” says Harry. “Nichols sitting alone in chambers each day, wondering if somehow it would come out. The admission?” he says.
“I admitted nothing,” says Acosta.
“You made death threats,” says Harry.
“Bitter words that meant nothing,” says Armando.
“Well, now I guess we’ll get a chance to see what the jury thinks.” Harry has the final word.
For Nichols it must have been a long, anxious wait. A sitting judge sweating bullets, wondering if death threats uttered to him in confidence would somehow find their way into the record. It is the kind of thing that could undo a judicial career, a lot of questions by the Commission on Judicial Qualifications if he was found to be withholding evidence.
“Why would he do it? Why would he tell them?” says Acosta.
“Covering his ass,” says Harry.
“But why now?” says the judge. “Why this particular time, when things were going so well?” He looks to Harry, then me. The thought has crossed our minds.
“Maybe he knows something we don’t,” I say.
Some dark evidence. The thought suddenly settles on Acosta. This is how they would pry Nichols loose, something so damning in its implications that even a friend of long standing could not ignore it.
“What could it be?” he says.
“No doubt we’ll find out,” I tell him.
“Yeah. When they dump it on our heads like a ton of shit,” says Harry.
To Acosta sitting behind the glass, it would appear that the final rat has now left the ship.
This has been a continuing theme for the past two weeks. First, his bailiff, who had been with Acosta for ten years, told him that he was under strict orders to report any telephone contacts with the judge and advised him not to call again.
Then, last week, Acosta called his clerk to ask a favor, something he wanted from his office. She would not take his call and did not return it. Kline has been putting pressure on these people through the judges to cut him off. Isolation as a weapon.
The sense that he is now alone seems to have settled on Acosta like the angel of death, his only remaining partisan besides ourselves being Lili. According to him, they are closer now than at any time in their marriage.
“We got one thing,” says Harry. “Nichols’s name isn’t on their witness list.”
“True,” I tell him. “But it’s likely that Radovich will carve an exception. Kline is arguing that there is no way the cops could have discovered Acosta’s threats unless Nichols came forward.”
“He is undoubtedly right.” Acosta seems to come out of some dark reverie on the other side of the glass. “There is only one explanation for this: Oscar came forward because he thinks I am guilty.”
This has just dawned on him.
“Yeah, well.” Harry is looking at him. Nichols may not be alone in this thought.
“His intuitions we can keep out,” I tell him. “Right now I’m worried about what he’ll say on the stand. And, if possible, how to keep him off of it.”
The test as to whether Nichols can testify is one of good faith. If the police could not have uncovered the damning threats made by Acosta to Nichols, there is no way they could have disclosed the information to us in discovery or put Nichols on their witness list. While we were under no duty to disclose this information ourselves, it is another matter now to deceive Radovich, to tell him that we are surprised by the disclosure. He would probably not believe us in any event.
There is a certain equity in Kline’s argument that Radovich would be certain to pick up on. If Acosta has not been sufficiently truthful with his own lawyers to alert them to this, death threats that he made, a ticking bomb in the middle of their case, who better to suffer the slings and arrows than the defendant himself.
“Kline will play on it, that Nichols’s conscience got the better of him,” says Harry. “This, and the fact that he is a sitting judge, will put the flourish on his credibility,” he says.
We mull over the options, few as they are.
Harry suggests that perhaps we could stipulate. A last-ditch effort. What he means is a settled statement, something sanitized and agreed to between the parties that would summarize Nichols’s testimony without letting him on the stand.
“We could file off the rough edges,” he says. “The jury might not pay much attention.”
“Why would Kline go for it?” says Acosta. He may be in a funk, but he has not lost touch with reality.
“We argue surprise,” says Harry. “That it’s an eleventh-hour witness. Try to get Radovich to pressure him. It is, after all, a possible grounds for appeal.” The defendant’s ultimate trump card. “Something we can try to bargain with.”
We talk about it, Harry and I. While it may not succeed, it is the best among a poor batch of alternatives. While we are talking, arguing the fine points of how to approach this, Acosta seems mired in his own dark thoughts. He sits behind the glass, hands coupled, fingers steepled under his chin. Suddenly, in midsentence, he cuts us off.
“There is another alternative,” he says.
“What’s that?”
“I could talk to him,” he says. “Call Oscar and ask him to visit me.”
“No way,” says Harry.
“He is still a friend,” says Acosta. “No matter what they showed him,” he says, “I believe he would listen to me.”
“Right, and when they put him on the stand, and they ask him about your meeting and what was said, the fact that you asked him not to testify or, worse, to lie, what do we do then?” Harry is right. It is a prescription for disaster.
“I would not tell him to lie,” says Acosta.
“Then what the hell good would a meeting do?” says Harry. What Harry is saying is that short of perjury, there is nothing Nichols can do to soften the damage that Acosta has already done to himself by these threats.
“Still I would not ask him to lie.” Acosta is adamant on this. A badge of honor.
“Well, excuse me,” says Harry, “but Mr. Kline might just put that twist on it, don’t you think?”
Sheepish eyes from the other side of the glass.
“Of course you are right,” he says. “I don’t know what I was thinking. Why, only fools represent themselves,” he says.
“In this case we’ll make allowances,” says Harry. “The term applies equally to counsel and client,” he says.
Acosta even laughs at this. Harry does not.
In the afternoon, Kline comes at us with a piece of evidence that he had promised the jury in his opening statement, an effort to link Acosta to the pair of broken eyeglasses found in Hall’s apartment the morning after the murder.
As Kline steps into the well of the courtroom he is, as usual, a fashion statement, his wife’s money worn well on his back. Today he sports a dark gray striped worsted suit, flapping a maroon silk lining as he strides the courtroom, a dress shirt of starched linen with French cuffs a yard long, and a tie that screams imperial power.
Inside the suit, despite the knocks he has taken, Kline’s confidence is budding. With each witness he seems to grow in stature. He is becoming a presence in the courtroom that in a few months could spell trouble for the defense bar. From the licks he has taken he has learned to reply in kind. Though he has taken a racking on some of the early witnesses, there is an evolving method to Kline’s strategy in this trial that is now becoming apparent. He has consciously and in planned fashion taken his knocks early, and has saved strength for the end.
Dr. Norman Hazlid is what some would call a “doc-in-the-box.” He is a licensed optometrist who works under contract with one of the chain eyeglass retailers at a mall out in the north area. Hazlid does quickie eye exams and refers his patients to Vision Ease, a discount retailer where for sixty-nine dollars you can get a selection of frames and lenses in an hour.