Compelling Evidence (29 page)

"Are we readyt' I ask. "We're ready," says Nelson. He opens anotebook on his lap and leans forward. Har penning our notes, which we will use until the certified is returned. I open the record, stating my name and the date, loc purpose of the meeting. I identify those in attendance, e Skarpellos, whom I ask to identify himself and spell his for the record.

We move quickly through the initial ba information, the fact that Tony and Ben were partners, s stage, the history of their relationship.

Nelson sits silently jotting a few notes. It is unlikel will ask any questions of his own, except to undo has access to the witness whenever he wants and would to open an issue we have not thought of. "Mr.

Skarpell'os, how is it that you came to be ident witness by the state in this case?9' He looks at Nelson, as if to get clearance. "The police asked me questions," he says. "I have to He shrugs his shoulders a little, like

"What's a guy go

"And when did they ask you these

questions?"

"Oh gee, let me think," he says, like this is lost in

"Sometime after

Ben was killed."

I look at Nelson, who smiles at the obvious. "How long after Ben was killed?"

"Let me think."

"Maybe I can help:' says Nelson. "Mr. Skarpellos the victim's death the following day. Then we intervi Skarpellos on October twenty‐seventh, a week after der, the death of Mr. Potter. There was another inte weeks ago."

I direct a further question to Nelson: "As long as y helpful, I take it there were no sworn statements by this witness following either interview?"

"That's correct. Just police reports. You have copies of those, I believe," Nelson smiles. Nothing reduced to writing that can be discovered by the defense. "Let's focus on the first interview, the one back in October of last yean Do you recall what you told the police at that firne?"

"it was pretty general. They asked me if I was aware of any reason why Ben, Mr. Potter, might want to kin himself. They were still operating on the assumption that it was suicide."

"And what did you tell them?"

"I told them no, I couldn't. I never believed Ben killed himself." ',Why is that?"

"He just wouldn't, that's all."

"Intuition?" '@Call it that if you want."

"What else did they ask you at that time, in Octobert' "They wanted to know if I saw or heard. anything the night he died."

"Did you?"

"I wasn't around. I was out of town, in Oakland, at a basketball #une with a friend."

"Anything else, during that first interview?"

He thinks for a moment. "That's about it."

"Fine, let's turn our attention to the more recent interview, the three weeks ago. Did the police come to you?" They came to my office, if that's what you mean."

"Just a second," Nelson breaks in. "If we can confer for a We go off the record. Nelson cups a hand to Tony's ear, , then backs away. Tony's eyes when they come back me are mean little slits. "I'm confused," he says.

"Me police did come to my office. I called them." 9" sed, my ass. Nelson is keeping him honest. "You called did you call them?" remembered something, something I thought might 'be t.11 "What was that?"

"Before he died, Ben told me that he was planning on div his wife, Talia."

"Just like that," I say. "Well, it wasn't just like that. I mean, we were talking something else. Business or something, his nomination court, I can't remember exactly. And he told me that gonna have to get a good. divorce lawyer."

"Why did he tell you this?"

"We were partners. We didn't have a lot of secrets fr another. I knew his marriage wasn't real happy."

"And how did you come to know that?"

"Well, hell, you know."

"No, tell me."

"Everybody knows Talia. was sleepin' around."

My blood is beginning to boil. "So it was things you

"Yeah, things I

heard."

"Gossip."

"Call it whatever you want."

"What else would you call it?"

"I don't know. All I know is that he wanted a divo

"When did you have

this conversation with Mr. Po

"It was in early summer. I think it was in

June."

"And when the police spoke to you immediately Ben's death, in October, you didn't think to tell the

"A man's contemplating divorce, has a

terrible m you, if I your own accounts, and whewthe police ask YOU." of any reason why he might commit suicide, you tell. can't think of a reasont' "I wasn't thinking," he says. "Obviously. What made you think that this info suddenly important three weeks agot' "I don't know."

"Could it have anything to do with the fact that Mrs. Potter had been bound over for trial, charged wi her husband?"

"Maybe " he says. "That had a bearing. "So thi; information wasn't important when believed to have killed himself, and only became it was believed that someone else killed him?" ‐vell. I don't know." I leave it alone. Food for the jury. ‐Mr. Skarpellos, did you tell the police that you participated in early discussions with the defense team, with Mr.

Cheetam and myself, during Mrs. Potter's preliminary hearing?"

"He was never of counsel." Nelson has pitched in. "You can argue it at the time of trial, but our view is that Mr. Skarpellos never held an attorney‐client relationship with the defendant. He advanced fees and assisted her in obtaining counsel, that's all. He Wver represented her."

Nelson, I think, has the better argument on this point. Trying to bar the Greek from testifying on these grounds is probably a long shot. He was careful to stay far enough in the wings, to make me think now that some active planning was going on behind those busby eyebrows. ,On the question of divorce, did you have one conversation with Mr. Potter, more than one, how many?" . '@One," he says. Skarpellos is accomplished at this. Tony knows dw when it comes to lying, the smart ones keep it narrow and 0& It limits the chances for contradiction. I "During this one conversation did he tell you anything else bearing on his marital lifet' He's looking at ine, searching, trying to figure out what I'm .ng for. Nelson I think knows, but he can't help him. Battles won with little advances. at he was unhappy. That he wanted out of the marriage."

he taken any steps to accomplish this at the time that you to him, hired a lawyer, filed any paperst' I feint' bob, and moving away from the objective for a moment. This one y know the answer to. o. If he did, he didn't tell me." d you don't know whether he took any overt actions after 4date, until the time of his death, to end his marriage‐is true?"

'he says. "That's true. I don't know."

I he told you was that he was planning to divorce his at's the total sum and substance of your conversation on the subject, is that correct?"

llos is looking at Nelson for help. He senses that he's .a precipice, but like a man in the dark, he's not sure it is. is the sum and substance of your conversation with Mr. Potter on the subject of his divorce, is that right?" I rep question. "Right," he says. "Then from your testimony you don't know whether told his wife, Talia Potter, of his plans for divorce, isn true?"

It's too late. Skarpellos has slipped off the edge. A for recollection now would strain credibility to the breaking

"No," he says. The

linchpin. I breathe a little easier. Nel no way of proving that Talia knew of these supposed pl divorce. You don't kill to‐ prevent things you don't know His motive is hobbling on three legs. "But she might have known," says Skarpellos. It's too late and Nelson knows it. His expression has a dark angel. "But you don't know that she knew?"

"You have to assume that a husband would tell his w1i planning on divorcing her."

"We're not here to assume anything, but to find out know and when you knew it."

To this I get two dark Mediterranean slits. The prov looks could kill."

"Are we finished?" he asks. I look over at Nelson, who waves me off. "I think we're done."

"Good," he says. The court reporter retrieves her notes and begins to, her machine. Skarpellos is still burning inside. I can see sm the ears.

Time to put the lance in, to see what's bubbling. surface. "Tony," I say. "fell me. How much do you s from Ben's estate if Talia takes the fall in this thing. His head snaps toward me. He's out of his chair. him by an arm. Harry's got a hammerlock. "You little shit," he says. His tone has all the ac

"You can't believe," he says, "that Ben failed at ev in life?"

Nelson's trying to pull him toward the door. giving more than passive resistance. "Oh, I can believe that," I say. "I just can't would take someone like you into his confidence."

This spawns two lashing arms. The Greek drags Nelson and Harry toward the other side of my desk. Delia's guarding her stenograph machine, blocking Skarpellos with her body. She's earning her per diem.

"Sonofabitch," he says. "Open the record. I'll give you an carload, you prick."

"Shut up, the two of you." Nelson's got his hands full trying to keep him off of me. ' I have no intention of going back on the record.

Despite the common perception, a deposition is no exercise in truth finding. it's an effort to redraw the facts in terms most favorable to your side. And for the moment I have what I want, a concession that the Greek can't put Talia and Ben in the same room talking about divorce.

Skarpellos has gone ballistic, perhaps more truth than I want on paper.

I take little mental notes of what he says, and puge the temperature of his combustion for future reference. "You always put him on a fuckin'

pedestal," Tony's screaming *Awt Ben. A lifetime of envy spilling all over my desk. "Well, he wasn't perfect. He had a fucked‐up marriage, He was porkin' one of the girls in the office. Didn't know that, did ya, asshole."

They're making headway toward the door. Nelson and Harry him leaning backward. Harry's got the door open, his knee against it for leverage as he pushes the Greek through. "He was fuckin' the hired help. Put it on the record, why don't Skarpellos is ranting like some animal in beat.

"Put that in damn statement, why don't ya?" I can see Dee at her desk, looking at me, round‐eyed, wondering ve done to this witty and wonderful man. on has wrestled him toward the outer door. Skarpellos free, but doesn't come back at me. He's regained enough ure, now looking around, coming down to earth, realizing s the center of attention for four other people in this office, nonplussed. He's flushed, his face red like a beet. He to pump up a little dignity, straightens his coat. One is ripped at the seam on the back by the shoulder blade, 119 from the Incredible Hulk. Italian worsted and he's it sideways. He jerks on his tie. A lost cause. looks at me through the open door. "I'll see ya in court, ng forward to it, Tony." Out the door, Harry's been giving Hamilton a wide berth, eyeing him suspicion that is palpable, since our conversation regarding string of indiscretions with Talia. He has me wondering if there is a more calculating side to the man. If Hamilton more than he's saying, anything that could exonerate VIF ' he is withholding this, then his affection for her is a *@' crafted facade.

Harry has raised the issue with ost;4=VJR1"" love or avarice that fuels Tod's desire for Talia. There diggers and worse who are so bold, who might wait in 171 even at some jeopardy to themselves, for this woman she stands to inherit if she wins. Tod has appeared for his lineup with the cops, to by their motel clerk. But the police have been since. He's not been arrested or questioned further. %Yoe clerk is blind, I think.

It's more likely that Nelson .‐i' fer to spring this trap during the trial, when we can prepare. In the first rows, immediately behind the

)gemygm assembled press, busy soaking up color with their !;@ ;1 .41 der notebooks. The artists with their large drawing Z claim to the end‐row chairs, for a little elbow r on@@'l The rest of the chairs in the courtroom, the largest building, have been set aside for prospective jurors. will have to wait until after we have a jury for ‐‐iorilmr," The court reporter is ready, poised at her little Bloom, Acosta's clerk, is busy at her desk shuffling From the back behind the bench, Acosta comes rush of rustling black robes, he ascends to the MMV, "All rise." The bailiff is at his station. The judge settles into his high‐back chair and F1 rv1 of those in his courhwm. "Department 16 of the superior court is now m Honorable Armando Acosta presiding. Be seated."

The judge adjusts his glasses, half‐frarne toward the tip of his nose.

He nods that he is ready, calls the case. A little silence to set the stage, and Acosta takes

"The jury clerk informs me that we have a TMA

usual of prospective jurors for this case."

It seems they've gone out of their way, @&Z the pretrial publicity and no change of venue, @.T good number selected from the voters' rolls. irs conventional wisdom in the law that in a criminal case the defendant's fate, like steel rebar in concrete, is fixed with the selection of the jury. This is, I think, one of those truisms that become prophecy only after the result is known, when the trial is over. But I'm taking no chances. My early concessions in avoiding change of venue were not, after all, motivated by civic spirit. I've txacted a little quid pro quo, in a motion crafted by Harry, 01M Nelson's hearty objections and to his considerable chagrin. j,., has agreed that if the defense is not satisfied with the ;k& of this panel, at the proper time he will consider a few li@@ peremptory challenges, for us and the people. This is his at a little hydraulics to level the playing field, following the adverse publicity against Talia. @p4 a lawyer in jury selection the peremptory challenge is like *,ti;; Missile, used to blow an objectionable juror out of the ,4A.." , @, without need to show cause, bias or otherwise. It is to be ;*7?T.s jealously and used with discretion. In this state each is allowed ten peremptory challenges in most cases. But where death may be the ultimate penalty that number 4.

oo we call in the jury, Your Honor, the state has one says Nelson. "A motion in limine." looks up. "Here or chambers?" he asks. C P vl;w, would be best, Your Honor." This means it is ‐4* ..I Nelson doesn't want the press to know. a noticeable groan from the pool in the front row. A Pens poised, not even started and it's downtime wondering what problem Nelson is hatching for me. judge is down off the bench, Nelson and Meeks behind : I and I taking up the rear, R *it., Acosta doesn't bother to take off his robe. If he Way this will be a brief gathering. I is it9"