Compelling Evidence (45 page)

self in these, and that you were fired for that L "No," she says, "I was fired after I asked client trust account. After Mr. Potter was killed, the partners about this. I was never told why I .,v1:i 4W, draw your own conclusions."

Nelson is not having his way with her. "Isn't it true that after you were fired, )w4m!. We 4_1 hatred for Anthony Skarpellost' "I wouldn't call it hatred," she says. "It tempt‐" There's some snickering in the jury box. "Fine, you harbored contempt for Mr..177‐ "M says, "didn't this contempt play just a little 61 here todayt'

'‐They never told me who did it," she says. "They 4r, the guts."

Nelson has left himself open for this one. I don't know the jury is buying it, but Jo is playing it for all it is woo ' "If I'd known, I would have been here sooner," she *V my testimony would have been the same." Her neck .114* like a rooster in a cock fight. She looks him dead in'‐And after several seconds it is Nelson who blinks, I= looks away.

I No, I think, this will not come off as sour grapes. After the morning break, Acosta asks me if the 41'7 any more witnesses. I have left them in the dark 10‐7611 intentions, whether she will take the stand or not.

"Your Honor." I rise from behind the counsel table, down at my client with a purposeful gaze, as if last moment what to do, whether to put Talia up or lie: "Considering the evidence, Your Honor, I see little subjecting Mrs. Potter to any more trauma. She's a great deal. We have decided that in light of the i we see no purpose whatever to be served in putting 0,1, stand."

1 I make this look like some last‐minute decision, iswslw;@ I have landed on on the spur of the moment, P4 weakness of the state's case.

Nelson is looking at me dumbfounded. These highly improper, except that in a death case Ai;; game. "Your Honor," he says. "I object."

"To what? My client not taking the stand? That is The burden is on you to prove your case," I say, failed."

At this his eyes nearly bulge from his head. @,6 "No," he says, "I object to these gratuitous *M11111, . justifications for why he won't put his client on the imploring Acosta. S "The state is not permitted to comment in thi Acosta. "Mr. Nelson is asking for a mistrial." :M‐14 him, I now complain about Nelson's response. Acosta is banging his gavel, telling us both to be "rhat will be enough," he says. "the defendant 7,rr' to testify. That is herright. I instruct thejury 1.Flmm‐rt@f`

CHAPTER 22.

most of the morning, behind closed doors with Acosta, i. on the jury instructions. This ‐is a mixed bag of short t,"IZIL rujes on the burden of proof, the presumption of circumstantial evidence and the weight to be given facts, the‐inferences to be drawn from them. In the end it fight little package, items that both Nelson and I will refer our closing argument. M i final argument we claw at each other like two flailing 7%M@, over a fish head. This is deadly combat. The stakes are i The gloves are off. Closing argument in a death case, and I'Ktk game. is now up before the jury. He tries to stretch the His first pitfall comes over the strand of Talia's hair, physical link between her and the crime. His difficulty, ,!I@ is that he must explain how this hair survived unscathed barrel of the shotgun, how it escaped the searing heat of M.‐ that took off the top of Ben's head. He wants to put J M , i lnis behind him early, so the jury will not dwell on it. k is a tactical mistake, I think, a deviation from the precept 'it)r always start strong and finish on a high note. He stumbles here, then picks himself up moving forward with his arguhe tells the jury that this piece of evidence is susceptible to ‐N of differing interpretations. "The hair may have worked to the side of the chamber before the trigger was pulled. the defendant opened the breech and closed it again after he says, though he can't suggest a reason for this, since e,00, J. she apparently did not remove the spent cartridge. snagged the hair at that time," he says. "You can't irt a person who has just committed such a brutal, w‐)iql! to think and act logically."

a All of these explanations are equally lame. But @fo face of confidence on them and does an expert job to the jury. He moves on, smoothly, to the little Tod at Talia's house after the murder. He notes ‐W,'7

testimony, that the standard metal jacket on a 0 W bullet is entirely consistent with the fragment z M*41.1"" of the victim. "This," he says,

"this handgun found at the W‐Ii. dence, was the murder weapon that killed Ben doubt it?

"You have heard Mrs. Foster," he says, "the sz, Potters, as she told of seeing the victim's IV I I of their house about the time of the murder.

Mr. looks at me full of scorn‐‐‐@"Mr. Madriani did ,IJ confuse this poor woman, with pictures of cars under similar circumstances could distinguish. ing this confusion, her testimony remains. This had seen many times, a vehicle she was not Nelson is a master at working with what he 7s .4 at the edges of circumstance like a virtuoso argument is straightforward, almost chronolo

"We have heard testimony of an ali

C'for all of the pejorative conno it ‐ .%lit mind‐‐‐‐@'an alibi, for the defendant, a investigated by them, tdhoroughhly. Y 0 1 `0@ the record of this trial‐there is not a shred of wi*,@this story of the defendant that she was out ‐AM‐7of the murder. The defendant has produced scrap of evidence, to tell us where she was He pauses, both hands on the railing, and panel with the sweep of his eyes. The law, does b tations F* story 4

et I w ud ask with words what he now asks with body ‐@‐IIWÌ the defendant failed to come forward to tell us ,‐i night Ben Potter was murdered?

I can tell that this has an effect on the jury. Al meet my eyes as he considers this. Nelson hits hard on the prenuptial Tt it fill in the deficiencies in his evidence. "M4,. @wrq‐@, great stock in the theory that the defendant never knew Ren Potter's plans to divorce her. Yet this is only a theory, c njecture. For we don't know what the defendant knew JG notoknow on this point. We can only surmise." He now from the jury and is looking at Talia, a silent indictment failure to testify. A do know that she had a great deal to lose," he says. "The ;AT;; lived in, an opulent residence fit for a queen, all interest law firm managed by her husband, a firm worth millions A carefree, some might even say indulgent, life‐style she had become accustomed. All of this would have swept away in an instant if Ben Potter had divorced the himself again on the railing. "Ask yourselves, ladies whether this, the loss of all of these things, the loss ITFITIR MUT security as one approaches the middle years of life, adequate motive for murder." back slowly, nodding, a little body English to provide to his own rhetoric. runs quickly through the testimony of Talia's character 4@E@ testimony which he says is

"self‐serving‐4he raving mismou of the country club set, whose morals, like those of IMIM belong in some barn." #ki stings, and I can see Talia take a mean bead on him. I lean ‐ illli4, with a little admonition on demeanor. "Don't give the '7MMIJW. to dislike," I tell her. She settles into a more placid and gentlemen, ask yourselves, can you believe a charwho tells us that these sojourns to a local motel in the Til‐ the day with other men were perfectly innocent tennis There is scorn dripping from his voice. away from the railing shaking his head, a little mock I'Mese people think we are hayseeds," he says. he tells the jury, "these are not the actions of a loyal and wife, but a hedonistic life‐style lived under the nose Of who was shamed and embarrassed in the community

,'he lived, a husband who for good and obvious reason 3111.4 end a fruitless marriage‐‐and who for his efforts was q' settles like prairie dust'on an Iowa farmer. Even to ZZOM from M‐1 jury it is difficult to square the monumental K‐194R@w, exhibited by Talia.

always start with the basics. nod a little, anticipating the question that I know has entered minds. !a@'t)ho'yt!,!`you are right. This: is a difficult task that our government has imposed upon the various states, particularly in a case Soch as this one, where the evidence is circumstantial, where there no witnesses to the crime. i, "But," I say,

"Ns is what the founding fathers ij)tended, that no @",rrwz man or woman should suffer for a wrongful conviction, r, be unjustly imprisoned, or worse, executed because of an ‐ I NOW prosecutor or a mistake on the part of the state. It is OX, system, the best in die world." I soothe them lest they feel that Nelson is too much the undere* Iremind them that he has an army of police officers to f or him , an office filled with professional prosecutors, . *M, (resources of the state, against me and Harry alone. I point

"Wii Hinds" sitting at the table, lonely next to Talia. "The state, of these resources," I say, "deserves the burden of proof )jj;:p seem to accept this as a given. I move on to defuse Talia's " PT%r" I'T"J. Nelson has nibbled around the fringes," I say.

"By irtnuentm, implication he has questioned what the law does not permit to ask directly‐he has, by subtle suggestion, challenged the of Talia Potter in this trial."

"O'k)) Honor, I did not," he says. Nelson

is on his feet. He 13: this is taboo. If even implied in the transcript, it is grounds Jv, instant mistrial. He cannot allow my assertion to remain Ae.‐ record will speak for itself," says Acosta. "I heard no 7,to)o from the defense as Mr. Nelson spoke." .,A,.@ can one object to gestures and inflections, Your Honort' ,','2kt not show up between the fines of black print on the trial I tell him. on with it," he says. ZM#f my gaze to the jtuy. will confront this question directly and honestly,"

I tell '.,"In a few moments the judge will read to you a number

,ain'low, One of these bears directly on the right of Talia o@4( silent throughout this trial. That is her undeniable, right," I say. has a right to rely on the state of the government's evior any failure of that evidence. If the state hag failed to : prove every essential element of the charge against law Mr. Nelson may not expect her to supply his own This the law does not permit."

I pick up the jury instruction sheet from die xslh@w4w@ of two that Acosta will read from on this point."

"A., in a criminal trial,' " I

read, " 'has a constitutional ii,41"PI, compelled to testify. You must not draw any .w fact that a defendant does not testify. You must Vol this matter, nor permit it to enter into your Irm.way' whatever." I embellish here, one word at the

"This is the law," I say, "apart from

any .111!1cations that the state may give you, gestures that may have seen." I turn and look at Nelson. "Iffis a ffindamental right which the state may not invade."t I return to the counsel table and replace the

@iiqf' paper, take a sip of water, and make my way back There are other reasons, I tell them, for my 477(". note that she has in fact answeird These charges I @ @ guilty, by mounting a vigorous defense, by who have attested to her innocence. "And there is that she has not taken the stand. She is a proud o@ months now has been subjected to the worst 17"Tirow'.1 society can inflict on any citizen, an accusation ot 7an utter and complete invasion of any sense. Of not subject her to more I say. "This I cannot i I assume the blame for her silence, take it upon 6C to scatter it to the winds. I pause for a moment and give them a deep ivis myself up to my full height, and speak. "I asked you, when we started, a single vexing issue pivotal to the outcome of this trial. I v‐1, the presentation of the state's entire case y any , any evidence convict Talia Potter of the crime with whic It is now time to call them on this. I give

"Akihfrom one end of the panel to the other. ou 141 h she

"Ask yourselves, in the silence of your the state has produced a scintilla, even the that Talia Potter is Mir'. the death of her husband, Benjamin Potter."

I look at them in abject silence for a long wt.;6thought some time to penetrate. : "What has the prosecution demonstrated in nearly three weeks your time, at untold public expenset' I ask them. "Mr. Nelson has given You Photographs of horrific violence @r, he would have you believe was perpetrated by my client, Potter. These," I say, "were designed to make you lash .!A1 blindly at anyone charged with this crime. Is this compelling

"J* llrlrwerq;@ of the guilt of Talia Potter? "He has provided a single stratid of human hair so pristine in condition that his own experts cannot explain the absence of scorching while it was lodged in the chamber of a shotgun Int (t, the victim's mouth. Is this of the Ali i: of Talia Pottert' touch upon the implausible explanation for this that Nelson given in his closing, an explanation, I say, that is not home by the evidence of his own witnesses. "I did not object to speculation, though I could have," I say, "because there is on the record to support it. I did not object because that you could see with your own eyes and hear with

"Ali own ears, the absence of evidence on

this' very point." I 't‐ at them, nodding my head slowly, a demonstration that 1 '7@ their judgment, their common sense in such things. I have @rl Tnol: gained more here, by this tactic, than by any objection 7MR: have made. '45i. Nelson has produced a witness who tells us that the victim MA‐M. to divorce Mrs. Potter, a presumed motive for murder. ,14 own witness cannot tell us whether Talia Potter in fact 77riniis supposed plan to end her marriage, a motive so secret lir;@

defendant herself was unaware of it. Is this compelling 1@r';01*iòf the guilt of Talia Pottertl them of Mrs. Foster, who could not identify the who did not see Ben or Talia at the house on the *'o" the murlder'but whose testimony was offered for this of c r and innuendos of lovers in the night, mote le ks '=o hq*, that the state, with all of its resources, cannot All of this to the same chorus: "Is this compelling of the guilt of Talia Pottert' certain that Nelson is burning at the counsel table, but as else before the jury.he puts a face on this, cool and th.hem that the evidence of this case requires, cries out for, verdict, "a verdict of not guilty." 412 @ I move slowly away from the railing, several feet, ‐wi mull on this point for a brief moment. Then I am ;r"* "When I came to you the first time, in my sis.,go .is,@ I not only asked you that question, whether th one of , but I promised you vw@ 1 promised that I would deliver to you the person vistor. ‐n Potter,