"I'll bet you would," says Kline.
"I would prefer to get on with the trial," says Radovich. "Former T judge it is," he says. "Now get to work." It is an unsettling label, one that begs more than it answers, like the term ex-husband, with all the negative connotations. From the state's perspective it is moot.
Kline will no doubt refer to him as "the defendant" whenever he cannot call him "killer." As I head back toward the jury railing Acosta flags me to the table.
"What happened?" he says.
"For the time being you are mister," I tell him.
He has a hold on my sleeve, telling me that this is mean spirited, unfair.
"We'll talk about it later," I tell him.
From his expression, I can tell he is not satisfied with this, but accepts it for the moment. With the Coconut, appearance is everything.
He may wear jail togs outside of this courtroom, but in his mind he is still "His Honor" in robes.
I make my way back to the jury railing, where I make apologies for a Kline's interruption.
S This draws another objection. Radovich tells him to sit down, and me to move on. '& "Ladies and gentlemen, I would like to introduce my client, Armando II, Acosta." He rises only slightly from his chair as the guards eye him nervously.
Acosta gives the panel something that the affected might construe as a courtly gesture. There is a move he does with one arm across his waist as he bends, that looks like his hand should be holding a velvet cap with a plume of feathers. This Acosta has practiced for days in his cell. It is more than I had wanted, and comes off as just a little eccentric. It would be fine if insanity were our defense.
Before he can curtsy or perform the minuet, I cough to get the jury's attention off of him.
"Ladies and gentlemen," I say, "the prosecutor in this case has skill fully told you what evidence he has. But there is something missing, seriously missing in his presentation. What he has not told you, is what he does not have." I quickly cover the areas of weakness in our case, the fact that Acosta has no alibi for the night of the murder, and that some of the physical evidence found on the victim, carpet fibers and hair, may, on first blush, appear to be similar to hair and fibers found at Acosta's residence. But I tell them to keep their minds open. They will hear evidence that similar does not mean identical.
It would be foolish to pass over these points without acknowledging their existence, as if we are hiding from the truth.
I do not touch on Oscar Nichols and the damning threats against Hall Acosta made to him that day over lunch. So far Nichols has not turned up on the prosecution's list of witnesses, so I gamble that they will not find him.
"The prosecutor has told you what he has," I say. "But he has not been completely forthcoming." With this there are stern expressions from beyond the railing.
"He has not told you about the evidence that is missing from his case." One old lady looks at me, pencil poised over paper, as if I am about to indict Kline for tampering with the proof.
"There is so much that he has not told you," I say, "that it is difficult to know where to begin." Radovich, elbow on the bench, one hand propping up his chin, gives me a look like I'd better figure it out soon.
"The prosecutor, Mr. Kline," I tell them, "does not have an eyewitness to the crime. In fact he has not a single eyewitness who can put my client anywhere near Brittany Hall's apartment that night. He does not have a witness, but he has not told you this," I say.
I turn from the jury box, take a step, and turn back.
"The prosecutor does not have a murder weapon. To this day," I tell them, "he has only a theory of how the victim came to suffer the so-called blunt-force trauma that killed her. He has no weapon, no instrument of death that would implicate my client. But he has not told you this." My rhythm takes on the cadence of a child's rhyme.
"The prosecutor has no fingerprints linking my client to the scene of the murder, or to the location where they found the victim's body in the alley that night. But he has not told you this. Nor does he have any blood belonging to my client at the scene of the murder, or in the alley where they found the victim. But he has not told you this.
"He has no documents, no receipts for any purchases by my client on the night of the murder that would place him anywhere near the location of this crime. But he has not told you this.
"He has no confession, no statement incriminating my client. But he has not told you this.
"He found no bruises on my client's body, no scratches on his face that would indicate a physical altercation or violent struggle in the period immediately preceding the victim's death. But he has not told you this.
" Heads are beginning to bob and sway with the refrain. Follow the bouncing ball. At one point I actually use my pencil as if I were directing a choir, and two of the women smile. They would finish the line aloud for me if I stopped:
But he has not told you this.
I would light a bonfire and have them all singing along, if Radovich would allow it.
My litany goes on at length as I highlight all the classic points of incrimination, all of which are absent in this case. Kline has given me an opening, an early slip that we cannot expect again. He sits fixed, bolt-upright in his chair, playing with a pencil, pretending that this is all nothing, while I rape him atop the jury railing to a chorus of "But he has not told you this." Welcome to the practice of felony trials.
Acosta is nearly giddy in his chair as he watches my performance, itching to join in. Finally I bring it to an end, breaking the rhythm.
"There is a great deal that the prosecutor has not told you about that night," I say. "About this case. Much of this will not come before you in this trial until the defense has a chance to present its own case.
You must agree to keep an open mind. Can I ask you, ladies and gentlemen, for your solemn promise? Will you wait to form a judgment until we have a chance to present our case?" It is a rhetorical question, but nearly every juror is now nodding in the box. One woman actually speaks up and says, "Yes." There is an atmosphere in the courtroom like a tent revival at this moment. Jurors that have seen the light. It is time for conversion, emersion in the truths of our case.
"My client, Mr. Acosta, was, before his arrest, an aggressive judge on the superior court of this county. A respected member of the bench." So I dissemble a little on character. This is not evidence, and I cannot be impeached.
"He has pursued the business of judging in an aggressive manner, too aggressive for some who have come under the scrutiny of the county's grand jury.
"This case," I say, "is about law enforcement. It is about police. And as in every occupation there are good police officers, and a few, hopefully a very few, bad ones." I lead them on a tour of the grand jury probe, information that Acosta has given me about the investigation, despite the fact that he is sworn to secrecy in such matters. In motions before the trial we thrashed out the limits of how far I can go on this, and I take it to the limit.
"There was, ongoing at the time that Brittany Hall was murdered, an intense grand jury investigation, an investigation into police corruption in this city, by a panel of jurors, not unlike yourselves. A part of that investigation is still in progress, and while I cannot divulge specifics about that matter, suffice it Co say that it involves charges of serious criminal misconduct by a number of police officers under investigation." There are hot pencils scratching on paper in the press rows. There has been wind of this investigation for months, rumors in the press, but this is the first official confirmation. It is what happens in the winds of conflict when the right to a fair trial clashes with government secrecy.
I am not allowed to talk about the murder of officer Wiley, or the suspicion that he may have been killed by fellow officers to silence him because he knew too much.
Still there are bulging eyes in the jury box, a few plunging Adam's apples as they listen.
"My client in this case, Armando Acosta, served as the judge in charge of that grand jury. He was vigorously pursuing that investigation at the time that he was arrested for soliciting prostitution." Here it is a straight recitation of the facts.
"We will present evidence that that arrest was engineered by the very police officers who were the subject of the grand jury probe, and that Ann and o Acosta's arrest had one purpose and one purpose only: to stop the investigation, and to intimidate the honest officials who were striving to weed out corruption on this city's police force." I am drawing wide eyes from the panel, several of whom are taking notes.
"We will produce evidence that the victim in this case, Brittany Hall, was closely allied with members of that force, having worked as a civilian employee with the Vice detail.
"We believe that there are reasons, reasons that will become apparent to you with the evidence of this case, why Brittany Hall was murdered, but not by Armando Acosta. The evidence will show, ladies and gentlemen, that Brittany Hall was murdered by others, because she knew too much." With this I cross the Rubicon. I am committed to the theory of our case, and while we have no burden of proof, the jury is not likely to forget what I have promised to show them.
I return to the implied promise that I have extracted from each of them, to withhold judgment until our case is presented.
I move toward conclusion, where I know that the court will give me more leeway, and I edge into argument.
Kline shifts nervously in his chair, but hesitates to object, knowing that Radovich is likely to give me license here.
"These are cynical times, ladies and gentlemen. Times in which the presumption of innocence, which the law guarantees to each of us, has too often been twisted into an assumption of guilt. Such cynicism may double where (he charge is brought against a public official, particularly one in a position of trust, such as a judge." I turn this point against Kline.
"You must fight the tendency to think in those terms. You must not listen to the merchants of cynicism," I tell them. : As I say this I am staring directly at Kline in his chair. He is halfway up, out of it.
"And instead," I say, "look at the evidence of the case, and rely on your own sound judgment. I am confident that if you do that, you will find Armando Acosta not guilty."
Outside on the courthouse steps I am having microphones thrust in my face. Harry and I are blocked by a phalanx of men and a few women wielding cameras on their shoulders, hot lights in our eyes. It is a movable feast for journalists.
"Mr. Madriani, can you tell us what you know about the grand jury investigation of the police association?"
"I cannot say anything more," I tell them. "Are indictments coming?"
"You'll have to ask the district attorney's office about that."
"Sir, you made some rather serious accusations in your opening statement.
We'd like to know what evidence there is to back this up." "Watch in court like everyone else," I tell them.
Harry finds a seam in the cordon of cameras, lowers a shoulder, and I follow him through the hole.
Somebody asks Harry a question I cannot understand.
"No comment," he says. Harry nudges one of the minicams and the thing nearly falls off the operator's shoulder, saved only by a strap around the guy's arm.
One woman with a microphone comes at me from the side.
"Have you talked with Mr. Mendel or his association concerning these charges?" I ignore her.
"Do you intend to call Mr. Mendel to the stand?" By now she is behind me and I am opening the distance between us, continuing to ignore the stream of questions.
"Mr. Madriani, are you telling us that Philip Mendel or some of his supporters had something to do with the murder of Brittany Hall?" This last is shouted above the din of other reporters, so that there is no one on the street within fifty feet who can miss it.
"That seems to be the thrust of your opening statement," says the reporter. The new journalism: if you can't get a reply, testify. Her voice will be on the six o'clock news, with pictures of the back of my head. silence as a public admission.
"Why don't you answer their questions?" When I look up, I'm staring into the face of Tony Arguillo. He has come from someplace in this mob to put himself between Harry and me, and is now blocking my way to the curb.
"Well?" he says. "At a loss for words?"
"The judge has issued a gag order," I tell him. "And if you're smart you'll keep your mouth closed."
"A gag order. Oh, yes. That's it. Upholding the requirements of the profession," says Arguillo. He makes the word sound dirty.
"Right," he says. "It couldn't have anything to do with the fact that what a cock-sucking lying lawyer says in a courtroom is privileged, now could it. The fact that lies made there are immune from the laws of defamation--a little slander?" I nudge him with a shoulder and for a second Tony stiffens. I think we are going to get into it, right here in front of the cameras. His two little beady eyes are locked on me like the homing beam on a missile.
Then he breaks this and turns to a couple of the reporters.
"I'll tell you that everything he said in that courtroom is a crock," he says. "A pack of lies." It is Tony as the true believer. He seems genuinely offended by the disclosure of information about the grand jury investigation, this despite the fact that it is old news, chewed over in the press for months. I push past him.
"Who are you?" One of the reporters is talking to Tony. "Can we have your name?" Arguillo's ignoring them.
"Why don't you talk about it out here where you can get your ass sued?" Tony continues to taunt me from behind this time. "Just like the rest of the fucking breed. Fucking lawyers all the same." They will be using a lot of electronic bleeps on the news tonight.
My blood is boiling like hot lead to the tips of my ears. I fight the temptation to turn and get into it. I ignore him, one fist clenched and shaking at my side; I walk away.
Harry's made it to the curb, where he's hailed a passing cab. It pulls up and he opens the door. The throng of journalists move in around us like piranhas boiling on the surface of a lake. As I look over the top of the vehicle, I see a figure staring intently at me from across the street. It i s Phil Mendel, making no pretense of the fact that I am the center of his attention at this moment. I am wondering if he was in the courtroom to hear the opening, perhaps with Tony, or if he has heard the questions being propounded here on the steps.
Whatever Mendel's sense of our case had been before this moment he is certain to have a whole new perspective now.
Saturday MORNING AND sarah IS CLEANING HER room. She is the master of the stall. My daughter, at eight years of age, can take an hour to make her bed in the morning and another to brush her teeth. She can daydream about a dozen things at once, hold her own in aimless conversation with unseen beings, and recite verse with no meter or rhyme. Put her in the shower with a bar of soap and she will drain the local reservoir.
Sarah's mother, Nikki, who died two years ago, possessed artistic skills that seem to have passed to Sarah. She can draw human forms, men and women which shame my stick figures. But numbers elude her, and she has her own system for spelling that substitutes the consonants of any word interchangeably. I have talked to the teachers at her school and they tell me to be patient. Each child, they say, progresses at his or her own speed. For Sarah, except for the tasks she enjoys, this seems to be glacial.
"What's she doing up there?" Lenore's laughing, amused by the stomping sounds of little feet on the floor overhead.
Lenore arrived last evening, only to be corralled by Sarah, and the three of us ended up playing board games until Sarah went to bed. Then Lenore and I turned to the wine and some soft music.
She's supposed to be cleaning up. You want to go up for an inspection?" "I think I'll pass," she says.
Lenore's two children are off this week with their father, who lives in the southern part of the state and comes up only infrequently for visitation.
For several weeks Sarah has been pleading to ask a little girlfriend from school to the house to play. I have insisted that she wait but not told her the reason.
For a single father with a little girl these are dangerous times. I have a friend, a career prosecutor whose life was savaged by accusations that he fondled a child at his daughter's slumber party. Despite the fact that his accuser later recanted and that he was acquitted after a three-month trial, he is now bankrupt and wears his own version of the scarlet letter.