I shake his hand.
"Counsel." He eases past me, open hand still extended.
Lenore looks at him but says nothing. Nor does she take his hand. "Well," says Kline, "I tried." He smiles one more time and retreats to his own side.
Acosta is looking at her. Any illusion that Lenore as a former prosecutor might possess influence with the state goes the way of the Tooth Fairy and the Easter Bunny.
"Good move!" I whisper to her from the side of my mouth. "Stick your spur in a little deeper. Let's see if we can really motivate him."
Before she can humor this with a reply there is movement in the corridor behind the bench. Judge Radovich emerges, announced by the bailiff Harland Radovich is from one of the mountainous counties to the north, a place presided over by a dormant volcano and a three-judge court, where cattle ranching and open range are still a way of life.
Radovich drew the short straw from the Judicial Council as the out-of-county candidate and has landed Acosta's case along with all of its pretrial trappings.
He is ageless, though if I had to guess, I would put him in his mid-fifties. He sports cowboy boots and a ruddy out-of-doors look with a straight Oklahoma hairdo, including cowlick and forelock like the spiraling ends on a cob of corn. He makes no pretense of being a legal scholar, but seems imbued with a certain innate common sense that for some reason we normally attribute to a closeness with the earth.
It is difficult to say what Acosta's take is on this. He and Radovich are beings from different planets.
"Good morning," says the judge.
We make the representations for the record, Kline for the people, Lenore for our side. It is, after all, her case. I am striving to keep a low profile. If I can substitute out early on, I will.
Yesterday was lawyers' day. We all sallied forth with arguments on the hot legal issues. There was the question of joinder: whether the crimes, solicitation and murder, were sufficiently related, one allegedly being the motive for the other, that they were required to be joined in the same trial. This was Lenore's pitch, to head off a separate trial on the misdemeanor case. The state has after all charged the killing of a judicial witness as the basis for special circumstances, the grounds to seek the death penalty if acosta is convicted.
Radovich spent much of the day scratching his head. How many angels can dance on the head of a pin? If he'd had a haystack he would have put it in his teeth. He is not one prone to reason on a high level. It is something Kline discovered early on, and all day he played the judge like a piano.
He argued that our attempt to avoid a separate trial was an invasion of prosecutorial discretion, the sacred right of the state to bring to justice those who have violated the law. He reminded Radovich that the court could not substitute its judgment for that of the state in determining when to bring charges.
From the wrinkled eyebrows on the bench I could tell this was a sensitive point with Radovich. After all, he is a mere visitor in our county, not somebody who has to face the electorate here.
In all of this, the politics of Kline's arguments weighed heavier than the law. He had sized up Radovich, a keen assessment. Here sits a judge reluctant to extend his judicial reach, a conservative cowboy of the old school. Tell the judge that your opponent's argument will offend another branch of government, and watch him recoil.
We lost the argument on joinder, and this morning we are down to our last straw if we are to avoid a potentially disastrous mini-trial on the iniquities of the Coconut. It may not be one of those momentous events in the law a man and a woman haggling over the terms of vice but if seeded into the minds of a jury, it may be enough for Kline to execute our client.
This morning we do battle over the issue of evidence, whether the state has enough to actually bring the solicitation case against the Coconut.
With Brittany Hall dead and the failure of the electronic wire to record the conversation, it is our position that there is no evidence.
But Kline has again proved resourceful. He says he has a witness, an offer of proof.
"Let's get on with it," says Radovich.
Seconds later the bailiff escorts a man, perhaps thirty, dressed in casual clothes, to the witness stand. He is sworn and steps up to take a seat.
Kline, whose witness it is, opens on him while Lenore sits next to me, steaming.
"State your name for the record."
"Harold Frost." Harold is also known as "Jack" to those on the force because of his disposition. He is an ice king, a man who in a pinch could shoot you four times and demonstrate all the remorse of a rock. He is a tall string bean of a man, bald, with a fringe of short brown hair above the ears, narrow-set eyes, and a crooked, hawklike nose that some say matches the man's scruples. If I were going to look for someone on the force who might test the tensile strength of the truth on the stand, it would be Jack Frost.
"Would you tell us what you do for a living?"
"I'm a sergeant, employed by the Capital City Police Department." "And how long have you been employed in that capacity?" "Thirteen years," he says.
"In what division are you currently employed?"
"Vice." There is little finesse here. Instead Kline goes right for the jugular, directing the witness's attention to the night Acosta was arrested in the hotel room with Hall. Frost says he was on Vice detail, assigned to a three-man, one-woman unit at the Fairmore Hotel, a unit designed to ferret out high-priced call girl activities in the upscale hotels downtown.
"We were trying to nail the Johns, to discourage the commerce," as he calls it.
"Did you have occasion that evening to make an arrest?" says Kline. "I did."
"Do you recall who it was you arrested, and on what charge?"
"Right there." Frost points with a finger toward our client. "He was arrested and charged with section six forty-seven B."
"Let the record reflect that the witness has identified the defendant, Armando Acosta." Radovich nods.
"Is that a Penal Code section?" says Kline. "Right."
"And what is Penal Code section six forty-seven B, Sergeant?"
"Solicitation to commit an act of prostitution. It's a misdemeanor," says Frost.
"One involving moral turpitude, is it not?"
"Objection. Calls for a legal conclusion," says Lenore. "Sustained." Kline would like to get this in. It would cinch up the issue of motive; a judge threatened with removal from the bench and the loss of career might well move to silence a witness.
"Were you the arresting officer that night?" "One of two," he says.
"Who was the other?"
"My partner, Jerry Smathers."
"Tell us, Sergeant. Is it the usual process to physically take a suspect into custody in such a case?"
"Usually the suspect is cited and released." "Tell us about the process."
"Objection," says Lenore from the table. "Irrelevant. The issue here is not whether our client was arrested or cited, but whether the state presently possesses sufficient evidence to sustain a conviction, or for that matter to even take the matter to a trial."
"Overruled," says the judge.
Kline motions the witness to answer.
"In most cases," says Frost, "identification is made, usually a driver's license. A current address is obtained, and the suspect is asked to sign a promise to appear in court."
"Like a traffic ticket?" says Kline. "Right."
"Why wasn't that done here?"
"Because the defendant refused to sign the citation."
"He refused?" Kline is now turning, playing to the press. "Yes."
"Did he say why?"
"Not exactly," says Frost. "What did he say?"
"He said it was bullshit." "Those were his words?"
"He called the whole thing bullshit. Said we were all pimps." Kline takes the moment to glimpse the press, a lot of pencils flailing, noise like chicken scratches on paper.
"The defendant gave no other explanation for his refusal to sign the citation?" asks Kline.
"He asked if we knew who he was." Facial gestures from Kline, feigned surprise. He is good at this.
"And what did you say?"
"I told him I didn't care who he was. That if he didn't sign the citation he would be arrested."
"And what did he say to that?"
"He told me to shove the ticket up my ass." Acosta is now at my shoulder, lips to my ear. "It is all true. I lost my temper," he whispers. "It is also true that he is a pimp," he adds.
"Did you know that the suspect was a judge of a court of record?" says Kline.
"I knew who he was," says Frost.
"Did this influence you?" Such knowledge to the likes of Jack Frost would be like painting a bull's-eye on the suspect.
"No, it didn't influence me."
"Did you arrest him at that point?"
"We tried to reason with him." I would check his flashlight for dents, Frost's standard method of reasoning.
"I told him that if he signed we wouldn't have to take him into custody, and that he could go home."
"Not true," says Acosta. More revelations in my ear. "They hand cuffed me immediately. No mention of a citation," he says. "And they got me there under false pretense."
"But he still refused to sign the citation?" asks Kline. "Right. He became abusive," says Frost.
"More foul language?" says Kline. "Objection. Leading."
"Sustained. Let the witness think up his own answers," says Radovich.
"Your Honor." Kline with a smile, like how could the court think there is anything but truth telling here?
"Move on," says Radovich.
"So what did you do, Sergeant?"
"We had to arrest him." There's a pause as Kline retreats to the podium, turns, and leans on it.
"I would ask you to direct your attention to the moments immediately preceding the arrest of the defendant, before you entered that hotel room, and tell the court who was present in the room at the Fairmore Hotel at that time?"
"Before I went in?"
"That would have been the female decoy, Brittany Hall, and the defendant."
"Just the two of them alone in that room. No other officers or witnesses?"
"Right." Where were you at that time?" "I was outside the hotel room door."
"What were you doing there, outside the door?" "I was trying to listen," says Frost.
"Why?"
"For security," says the cop. "We had word that the electronic wire worn by the decoy had malfunctioned."
"You were told this?" "Right."
"And so you were outside the door in case the decoy needed help?" "Right."
"Listening?" "That's correct."
"Was the decoy a policewoman?"
"No. She was a reserve officer, a police science student who volunteered on occasion for such duty."
"She had performed these duties before?" "Four or five times that I know of," he says.
"And while you were outside the door to the hotel room at the Fairmore that night, did you overhear any part of the conversation between the defendant and Ms. Hall?"
"What did you hear?"
"I heard the defendant offer money to the decoy for the act," he says. I see Lenore roll her eyes.
"That's not true," says Acosta.
Radovich raps his gavel, and Acosta bites his tongue.
"How much money did the defendant offer Ms. Hall to engage in an act of sex?"
"Two hundred dollars," says Frost.
"And specifically what did he talk about by way of a sexual act? Did he get specific?"
"Half-and-half," says Frost.
A look that is a question mark from Kline.
"Sexual intercourse and oral copulation," says Frost. Frantic pencils behind me in the press row.
"Did he suggest this, or the decoy?" "No. No. It was the defendant."
"It is why I did not want a preliminary hearing," Acosta whispers to e.
"You can see what they are doing. All lies," he says. He turns to Lili and shakes his head. If he cannot deny it publicly he can at least do so privately, to the one person this would hurt the most. He mouths the words, silently. "It is not true."
"Your Honor." Kline notices that Acosta is turned around in his chair. The press is reading his lips.
"Mr. Acosta." Radovich motions with one hand for him to turn around, face front. The judge gives me a look, as though I am dilatory in my Job of baby-sitting.
"Get on with it. Counsel." Radovich seems to take no pleasure in this. "So you clearly heard the defendant offer this money in return for sex? "
"Yes."
"And you can testify to this in trial, in open court, under oath?" "Sure." For the moment Kline has what he wants, money offered, the first element of the crime, consideration. He floats a few softball questions up: "Did the decoy suggest the act?"
"Who took the conversation toward sex?" This is all intended to show that Acosta was not entrapped, that the crime was inspired in his own mind.
"Did the defendant do anything after that?"
"Objection," says Lenore. "No foundation. The witness has never said that he could see what they were doing."
"Could you see them?" asks the judge. "No."
"Sustained. Next question." Kline is searching for the other element, the overt act. This could come in several ways: money paid, pants dropped. The problem is that disrobing or the payment of cash does not require words, unless the decoy is counting out change and giving receipts.
Kline regroups at the podium, studies the cop on the stand for a moment. "Sergeant Frost. Did you hear anything else outside the door that evening?" What, like the rustling of clothes? The crinkling of cash? Give me a break," says Lenore.
"Is there an objection in there somewhere?" says Radovich. "Leading," says Lenore.