He beats around this bush with a few more questions, and finally does not ask the ultimate question; the reason for this anger. Instead he tries to focus it.
“Was there anyone specific on the police force or perhaps, more to the point, working with the police, who was singled out by the defendant as the subject of this anger?”
“You mean the woman?” says Nichols.
Kline doesn’t respond but leans forward, peering over the top of his glasses at the witness, as if some unseen magnetism is drawing him toward the stand.
“It’s true that his words were directed at her,” says Nichols.
“You’re talking about the victim, Brittany Hall?”
“Yes,” says Nichols.
Kline licks his lips, finally to the point.
“Now, Judge Nichols.” He centers himself before the witness stand, legs spread a little, knees locked, his arms outstretched, palms facing each other like a skier cutting water behind a boat. “I want you to concentrate, think only about those portions of your conversation with the defendant that involved comments regarding Ms. Hall.” Kline stops and looks at the witness as if to say “Have you got that?”
Nichols nods like he does.
“Now I’d like to ask whether you can recall specific statements made by the defendant, his own words if possible?”
There’s a considerable pause as Nichols takes in all the parameters. He glances toward Acosta, who is not at this moment looking at him.
“There are things I remember,” he says. “How specific I’m not sure. It’s been a long time,” he says.
“Take your time,” says Kline.
“I know he said that Ms. Hall lied,” says Nichols.
“That’s good. What else?” He doesn’t ask the obvious question, lied about what?
So far Kline has navigated through the shoals of causation, the underlying reason for Acosta’s fury, the alleged setup by the cops on the prostitution sting. He is banking on the fact that since this does not qualify as an admission against interest by the defendant, that Radovich will exclude any reference to the alleged frame-up as being hearsay. If we want to get it in we would have to put Acosta himself on the stand. The naked underbelly of our case.
“During this conversation how did he refer to Ms. Hall, by name, or in some other way?” Kline tiptoes through this minefield trying to avoid asking the wrong question, opening the door.
“Yes. He called her some names,” says Nichols.
“Do you remember what names he used?”
“They were foul, out of character for Armando,” he says.
I would question how well he knows my client.
“Move to strike the answer,” says Kline.
Radovich leans over. “You’ll have to answer the question,” he says.
“He. . ah. . he referred to her as a lying cunt.”
“Those were his words?” Kline faces the jury head-on. “Lying cunt?”
“It’s what he said.”
“Did you hear any other references?”
“No. No. He just called her that word, and said that death was too good for her.”
“He said this?” Kline feigns surprise, as if it is the first time he is hearing this. “He called her a lying cunt and said that death was too good for her?”
“That’s what he said.”
“Did he say this out loud or in a whisper?” asks Kline.
“Under his breath.”
“But you could hear this?”
“Yes. I don’t think he meant anything by it.”
“Move to strike the last response,” says Kline. “The supposition of the witness.”
“The jury will disregard it,” says Radovich.
Kline takes a step back from the witness, turns, and runs a forefinger over the cleft of his chin.
“You still consider yourself a friend of the defendant, don’t you?”
“I do.”
“And do you think he considers you a friend?”
“Calls for speculation.” I try to get him off the hook.
“Sustained.”
“But you would like him to still be your friend, wouldn’t you?” Another way of saying the same thing.
I object as leading, but Radovich overrules it.
Nichols looks over, a face filled with doubt. “I hope that he still is.”
Suddenly I look over and realize that this last statement by the witness has driven Acosta into a cocoon. He will not lift his gaze to his old friend, something I have told him he must do, to face this moment head-on before the jury. He is downcast, dour, a whipped dog.
Kline suspends the questioning, sensing an opportunity to capitalize. At this moment every set of eyes in the courtroom is on the defendant, who is now the very posture of guilt.
Kline cannot believe his good luck. He actually assumes a startled expression, staring at the defendant, and stretches this moment of silence to an awkward pause so that the judge has to chide him to move along.
Finally with this distraction I am able to reach over with an arm on Acosta’s shoulder, a show of support in a difficult moment. His head slowly comes up, and I notice for the first time that his eyes are moist.
“Judge Nichols, isn’t it true that you were questioned during the grand jury proceedings?”
“Hmm?” Kline’s question rouses Nichols from his own reverie, the pain of watching Acosta.
“Oh, yes,” he says.
“But you never told the grand jury about the defendant’s comments, what you testified to here today?”
“No.”
“Why not?”
“I wasn’t asked.”
“And yet you came forward in these proceedings and disclosed this information. Why?”
It’s like a stake through our heart, what motivated this sudden show of candor. Nichols had to know this moment would come, and yet the look on his face makes it evident that he is not prepared with an answer.
He stumbles, comes up with something lame.
“I thought it was something that needed to be said,” he tells Kline.
“Why?”
“It was evidence.” Nichols looks at the jury as he says this, clearly assuming that this will suffice.
“It was also evidence at the time of the grand jury, wasn’t it?”
“I suppose so.”
“But you waited until now?”
“Yes.”
“Why is that?”
Nichols doesn’t respond, but looks up toward the ceiling collecting his thoughts, looking for a way out without inflicting more damage. He is counting the holes in acoustic tile and praying.
Kline allows the pregnant pause, then picks up the beat.
“Judge Nichols, is it fair to say that at the time of the grand jury proceedings you had doubts concerning the defendant’s guilt, and that as you sit here today you no longer have such doubts?”
“Objection, Your Honor. Outrageous.” I’m on my feet. Harry is up as well, and for an instant I think I hear some profanity cross his lips.
Nichols actually responds to the question, and if I can read lips, he says, “No,” but no one in the room can hear this, least of all the court reporter, who in the maelstrom gives up and takes her fingers off the stenograph keys.
There is chaos in every quarter of the room. While it was the unstated question on every mind, that Kline would actually ask this with the jury present sends Radovich into a fury. The fact that Nichols tried to answer finally brings a delayed refrain from the press rows of “Whadd he say?”
Harry turns and tells them the witness said, “No,” and several of them actually write this down. We may win the media battle and lose the war.
Radovich, still in his chair but leaning over the bench, slaps his gavel on wood. “I’ll clear the room,” he warns.
This brings it down a decibel or two and he turns on Kline.
“That’s an improper question, and I think you know it,” he says. “Get out your wallet,” he tells him. Radovich is going to impose sanctions, here in front of the world. He does not even send the jury out. It is the thing with the prosecution. There is no right of appeal.
The person most surprised by this seems to be Nichols himself. The thought of dressing down a lawyer, much less humiliating him in public, is a notion alien to this judge. He would have hoped to live in more temperate times, when winning was not everything.