Compelling Evidence m-1 Page 16

  He nods and smiles, blowing smoke rings toward the ceiling. “I agree,” he says. “But we’ve got a few things going for us.”

  “Like what?”

  “Like how a woman overpowers a much larger, stronger man, even an older man of Potter’s age. Why she would use a shotgun-you’ve got to admit this is not a woman’s weapon.” He’s back to this now.

  “You’re not listening,” I say. “The cops are operating on the theory that she was helped.”

  His phone rings beside him. My hand reaches it before he can pick it up. I slide it onto the floor in the well by my feet, where it rings itself to death.

  He looks at me, somewhat offended, then smiles. “OK,” he says. “Go on.”

  “For starters, the DA’s got suspicion in spades, and it all points toward Talia.” I tell him about our theory of a second shot, that one witness will place Ben’s car at the house near the time of death, and that Talia has not even the hint of an alibi.

  When I am finished he pauses thoughtfully for a moment before speaking.

  “So what am I hearing?” he says. “You want to open negotiations for a plea bargain?”

  I arch an eyebrow. “It beats backing into a trial we’re not prepared for.”

  He takes this as it is intended, a rebuke for his lack of interest and time spent on the case. There follow several thick billows of smoke as he chugs on the cigar. There’s some heavy eye-watering here. My only consolation is that these are not the Greek’s shit sticks.

  “You’re telling me I’m not doing my job. Is that it?”

  “In a word, yes.”

  “I was trying cases when you were doing preschool,” he says. “Who the hell are you to chastise me?”

  “I’m the man who knows you’ve stepped in it,” I say.

  He says nothing, but I get the evil eye, narrow slits cast to the side as he chomps on his cigar, leaning forward, gripping the wheel with both hands.

  “You wanna talk to the DA,” he says. “Fine, do it. As they say, everything in life’s negotiable.”

  “Good try,” I say. “But it’s your case, remember. I’m just Keenan counsel. I get to pick up the pieces if she’s convicted.”

  I can see where he’s going. Unprepared for the prelim, he would hang the albatross of a last-minute deal around my neck-tell Talia that he was ready to go to trial, but that more timid minds prevailed. He would disappear into the shadows as I tried to sell her on a guilty plea for some reduced charge.

  “Then you don’t want to settle?” he says.

  “I’m not ready to cut and run if that’s what you mean.”

  He cracks a smile, regaining a little composure now that he’s on the offensive. “I know what your problem is,” he says. “You’re beginning to think that maybe the lady did it?”

  Cheetam’s living on another planet.

  I laugh.

  “Oh, don’t laugh,” he says. “I can tell when a lawyer begins to have doubts. I can read young lawyers like tea leaves.”

  “Yeah, well, I wouldn’t give up your ticket to practice for a deck of tarot cards, at least not yet,” I say. “And for your information-no. I don’t think she did it. But from the evidence, it looks like others might believe it, depending how it’s presented.”

  “Then why not cop a plea? Save ourselves a lot of trouble and her a considerable degree of risk. Why, as you say, should we circle the wagons if it’s a loser?”

  “What are you suggesting, murder two?” I ask.

  “Maybe we try manslaughter first,” he says. “You know, man and wife, a crime of passion. It would wash.”

  But I can tell by the tone that with Cheetam, everything is negotiable.

  “No.”

  “Why not?”

  “Call me sentimental,” I say. “But when I take a retainer from a client I feel an obligation to give it my best effort. Besides, Talia will never go for it. Believe me.”

  He looks over at me, a sardonic grin on his face. It’s Cheetam the soothsayer again.

  “You know her pretty well?”

  I nod.

  “You know,” he says, “mere is a saying: “A lawyer who sleeps with a client ends up screwing himself.’ Have you heard it before?”

  I look at him speechless.

  There are furrows on his forehead, as if to say, “Oh yes, I know about you.”

  “It doesn’t take a mental giant,” he says. “One day you’re with the firm, the next day you’re gone. The lady’s married to a man with a hundred partners and associates, but she asks for you out of the blue when she’s charged.” He rolls his eyes toward the roof of the car as if to show the obviousness of it all.

  Still, I think, this is a wild guess, nothing behind his words but a lot of bravado. The smile begins to fade from his face. He leaves me with just a grain of doubt, the grit of uncertainty. I am left to wonder if Talia has come clean with him in one of their heart-to-hearts, client to lawyer, baring her soul.

  I gesture toward his cigar, which is sending up a stream of smoke from between his fingers on the wheel “What do they stuff those things with,” I say, “peyote?”

  He laughs. “If that’s the way you want it.”

  “That’s the way it is.” I lie and try to turn the conversation back toward business.

  “If we have to cut a deal, we do it after the prelim. I think we should see what they’ve got, and how their witnesses hold up under cross-examination.”

  He’s looking over at me again, now between intersections. Cheetam is smiling like the cat who got the canary. He knows I’m lying. He has a hard time keeping a straight face when discussing business.

  “We might get a better deal now,” he says.

  “If their case collapses, we might not want a deal.”

  “Hmm.” He considers this for a moment, chomping a little on his cigar. I am thankful for the smoke and the distraction.

  “Your decision,” I say.

  “Yes, it is,” he says. There’s a cockiness in his tone.

  “But if you want my advice …”

  He says nothing to stop me.

  “I think we should cover ourselves. Treat the prelim as more discovery. An opportunity to depose their witnesses,” I say. “Don’t let Talia take the stand, give ’em as little as possible, look for weaknesses in their case, and prepare for the long haul. Prepare for trial.”

  There’s a moment of dead silence. The kind that usually precedes some difficult revelation

  “I thought Tony would have talked to you by now,” he says.

  “About what?”

  “About who’s gonna try the case.”

  “What are you talking about?”

  “I’m afraid I’m no longer available.”

  I look at him more in amusement than in surprise. For some reason, nothing Gilbert Cheetam says or does surprises me. The man is too whimsical. He is stone-faced, looking out at traffic as he crosses through an intersection.

  “I have a conflict,” he says. “A calendaring conflict A major products case in the East. Asbestos. I thought Tony would have told you.”

  ‘Tony and I don’t talk that much.”

  I can feel ice in my veins. The Greek has bought Talia a stalking horse in the person of Gilbert Cheetam. I wonder how long he’s been aware of this conflict, and who they hold in the wings to try Talia’s case.

  “It’s likely to go at least five months, this product liability case back east,” he says. “So …”

  He looks over at me with a coy smile. “I figured we’d just better nip it here in the preliminary hearing.” He says this with all the verve of someone ordering shrimp, as if it’s something imminently within his power.

  I sit looking across at Gilbert Cheetam, amused to the point of laughter, and suddenly my head is filled with only one thing, the book contract that he has already signed.

  “You often contract for books on cases you’re not gonna try?” I say.

  “Oh, that. Not a problem. The contract’s assignab
le. If it goes to trial, I’ll just sell the rights to whoever tries the case. The publisher already has a ghostwriter,” he says. “I just take a percentage.” He smiles a broad, toothy grin as he holds the saliva-soaked panatela in his mouth. “As I say, ‘Everything in life’s negotiable.’ ”

  “Swell.”

  As he pulls away from the curb, leaving me in front of the Emerald Tower to perform more spadework on the case that he is not going to try, there is a sinking feeling in my stomach. It comes with the knowledge that Talia and I, each in our own way, have been had.

  CHAPTER 17

  In this state a death sentence requires proof that a killing is accompanied by “special circumstances,” especially heinous conduct-evidence of an evil intent beyond the mere taking of another human life. In Talia’s case the prosecution is charging two of these: murder for financial gain and lying in wait.

  The preliminary hearing is a circus. We are immersed in the din of the curious-reporters, courthouse groupies, old ladies and retired men in straw hats with nothing better to do, lawyers with an idle hour between appearances. They are all crowded here in department 17 of the municipal court.

  Just behind the press seats, there are four good-looking women in their early thirties with stylish tans who have followed the case closely. Tod is with them. They are sending strong signals of support to Talia, who occasionally looks back at them and smiles. These, I assume, are friends, from the tennis or country club.

  Talia is drawn and pale. Reports of her arrest in the papers reflected a mere formality, an appearance at police headquarters in the company of a lawyer, me, to be printed, booked, and released on bail-$200,000. For this we used some of the equity in Talia’s house, avoiding the premium that would be collected by a bondsman. Though she is at the moment starved for cash, $200,000 for a woman of Talia’s apparent means is viewed by the players in this matter as a pittance. The court, at least for the moment, is satisfied that my client does not present an overly great risk of flight. In Talia’s case it is a certainty. Everything she holds dear in life is here, in this town.

  In the darkening hollows around her eyes, I can see signs of stress. It is as if the trauma of the past several months, Ben’s death, and now the state’s implication of her in that sordid and murky affair have finally begun to take their toll.

  The working news moguls are here in strength-graying bureau chiefs for the large metropolitans from the south and around the bay, local reporters stringing for national publications, crews for the three network affiliates, and a sea of reporters from smaller papers-all clamoring for seats in the front two rows.

  The klieg-light set and the minicam crews with their belted battery packs are left like waifs outside the door.

  There is a man I see for the first time today. He is alone at the other counsel table, closest to the empty jury box. I have never met him, but I know from photos in the newspaper who he is. Tall and dark, a brooding presence with deep-set eyes and a shock of raven-black hair over a forehead etched deep with furrows drooping at the temples toward hollow cheeks. It is a face which might appear noble, even Lincolnesque if masked by a growth of beard. He stands emptying the contents of a worn leather briefcase onto the table: an assortment of books, a single pad of legal-length yellow paper. The sheets at the center of the pad are uniformly impressed to an onion-skin texture by the heavy scrawl of handwriting. Despite the stories I’ve heard from Sam Jennings and others, Duane Nelson does not cut the image of a political hack.

  “All rise.” A beefy bailiff to the far side of middle age marches out around to the front of the bench. A heavy revolver slaps his thigh as he walks. “Remain standing. Municipal court of Capitol County, department 17, is now in session, the Honorable Gail O’Shaunasy presiding.”

  Those in the aisle scurry for seats.

  O’Shaunasy whisks out of chambers and ascends the stairs to the bench, a flash of swirling black robes and authority. In her early thirties, she is the latest rising star on the muni court bench.

  “We have a few preliminaries,” says O’Shaunasy.

  There is some minor jostling that follows, Cheetam rising and in the affected erudite English of an aging beefcake actor launching a number of pretrial motions. These have been hatched by Cheetam and Ron Brown. They are aimed at excluding evidence-the carpet fibers found at Talia’s house and some shotgun cartridges seized in Ben’s study.

  Nelson rises to the occasion, citing chapter and verse the case law for the proposition that a search warrant wasn’t necessary. “Mrs. Potter,” he says, “consented to the search.” Then the coup de grace. It seems that Ron Brown, whose role it was to address all prehearing motions, has failed to inform Cheetam of the court’s forty-eight-hour rule. Cheetam has blown it, delivering his motions to the DA that morning.

  O’Shaunasy is clearly angered by Cheetam’s cavalier attitude toward the local rules of court. Parochial as these may be, their willful violation is the fastest way to alienate a local judge who helped write them.

  Cheetam pounds the table and speaks of the seriousness of the charges against his client.

  O’Shaunasy puts up a single hand to cut him off.

  “Mr. Nelson is right. The evidence here points to consent for the search. I’ve read your points and authorities, Mr. Cheetam. I see nothing in the facts which would lead me to conclude that the police had begun to focus suspicion on the defendant at the time mat they visited her home for this inquiry. Is there something I don’t know?”

  Cheetam stands, confronted with the law. Unable to say “yes” for want of anything to follow it with, and unable to say “no” for fear of losing on the issue, he says nothing.

  “On this issue, this one time, I will overlook your clear violation of the forty-eight-hour rule, Mr. Cheetam. Do not do it again. Do you understand me?”

  Cheetam nods like a schoolboy.

  “But on the merits I find that the search was pursuant to the defendant’s consent, without duress and before she became the focus of suspicion in this case. Your motion is denied.”

  The only one moved thus far by Cheetam’s strategy and argument, it seems, is Talia, who appears almost terrified that the first blood shed in this battle is her own.

  Contrary to all that I have been led to expect by Sam Jennings, Nelson is an imposing presence. He projects just the right mix of authority and public benevolence.

  The state calls its first witness, Mordecai Johnson, an aging detective with a balding head of gray. Johnson is one of two evidence technicians called to the scene at Ben’s office the night of the killing. He testifies about the hair follicle found in the locking mechanism of the shotgun, and links it not exclusively but close enough to Talia to be damaging.

  “Consistent,” he says, “in all respects with hair samples taken from the head of the defendant, Talia Potter.”

  Johnson labors only briefly over the blood in the service elevator-just long enough to establish the direction of travel with the body, and raise the implication that Ben was already dead when he was carried into the office.

  Nelson’s finished with the witness. Cheetam takes him on cross. Science has yet to devise a universally accepted method for identifying the hair of a specific individual. Cheetam manages to get this admission from the witness.

  “Then you can’t say with scientific certainty that the hair found in the locking mechanism of the shotgun actually belonged to Mrs. Potter?”

  “No,” concedes Johnson. “Only that it is identical in all major characteristics to samples taken from the defendant.” He sticks the pike in a little deeper.

  For all of his famed pizazz, Cheetam is notoriously slow on his feet. With no question before the witness, Johnson is allowed to give a quick and dirty dissertation on the characteristics of hair, the pigment in the cortex, the thin medulla, all identical with the sample from Talia’s head, he says. Cheetam fails to cut him off. All the while O’Shaunasy’s taking notes.

  I’m scrawling my own on a yellow pad. Cheetam
returns to the counsel table to look at the forensics report. I push my pad under his nose like an idiot board. He pages idly through the report for a second while glancing sideways at my note, then returns to the witness.

  “Mr. Johnson, do you know where the shotgun found at the scene was normally stored or kept?”

  “I was told, by Mrs. Potter and others, that that particular weapon was usually kept in a gun case in Mr. Potter’s study.”

  “At the Potter residence?”

  “That’s correct.”

  “Then would it be unusual, given the fact that this weapon was stored at the Potter residence, that a single strand of hair perhaps belonging to Mrs. Potter might be found on this weapon?”

  The witness looks quizzically at Cheetam.

  “I mean, wouldn’t it be possible that such a strand of hair might be carried through the air, or could have been deposited on the gun when the case was being cleaned or dusted by Mrs. Potter?”

  “I suppose,” he says.

  “So it’s entirely possible that this strand of hair could have been on this weapon, caught in the locking mechanism, long before the day that Mr. Potter was killed, isn’t it?”

  “Possible,” says the witness.

  “Nothing further of this witness, Your Honor.”

  I tear the page of notes from my pad and crumple it. They won’t make much of the hair at trial, I think.

  Ballistics comes on next. The witness, an expert from the state department of justice, testifies about the weight and size of the various shot pellets found in the victim and in the ceiling of Potter’s office. He talks about velocity and the trajectory of the shot that took off the top of Ben’s head. The witness nibbles around the fringes of the monster pellet without actually stating that there was a second shot. Nelson is digging a pit and covering it with leaves.

  Cheetam rises to cross-examine. He pops a single question.

  “Officer, is it not true that the trajectory of the shotgun pellets from the shot inflicted to the head of Mr. Potter were in fact consistent with a self-inflicted wound?”