Steve Martini - The Judge

“I think he called.”

“Why didn’t he just come downstairs and get you?” Kline knows the answer. By that time Acosta had been suspended from the bench following the prostitution arrest. He wants the witness to say this.

“He wasn’t there that day,” says Nichols.

“Why not?”

“Because of the difficulties a few nights before.” This is Oscar’s shorthand for saying that his buddy had been busted seeking party favors.

When Nichols tries to cut the corner, taking this edge off, Kline brings him back, reminding him of this ugly incident, the prostitution sting.

“Yes. That’s right,” Nichols says. “He’d stepped down from the bench.”

“Stepped down or suspended?” It’s clear Kline’s not getting a lot of help from Nichols. Perhaps the witness is having second thoughts.

“I suppose ‘suspended’ is the proper term,” says Nichols.

“Good,” says Kline, “so that we get it right for the record.”

Nichols is back at the glass of water, wiping sweat from his forehead, shooting a glance at Acosta, who by now is stone-faced, issuing only an occasional shrug when it comes to the facts he cannot deny, a kind of dispensation offered to a friend.

“I take it this is uncomfortable for you?” says Kline.

A long deep sigh from Nichols. “It’s not fun,” he says.

Kline knows that the more painful this is, the more likely the jury is to accept Nichols’s testimony as truthful.

“Was there anyone else present other than yourself and the defendant during this conversation over coffee?”

“You mean at the diner?”

“Yes. At the diner.”

“No. Just the two of us.”

“And do you recall what the conversation was about?”

“He was. .”

“The defendant?” says Kline.

“Yes. The defendant was. .”

Kline manages to put the word in Nichols’s mouth while the witness is busy searching for a term that will lessen the impact of what he has to say. Nichols finally settles on “upset.”

“And what was he upset about?” says Kline.

“The arrest,” he says.

“This would have been the prostitution arrest?”

“Yes.”

“Now, upset can mean a lot of things to different people,” says Kline. “When you say upset, what exactly do you mean?”

“I mean he was upset.” Nichols is not going to offer synonyms and allow Kline to take his pick of the most damning.

“Do you mean he was sick?” says Kline.

Nichols mentally chews on this, knowing it is not what he means at all, but then finally says: “In a way he was sick.”

“Or was he mad? Angry?” Clearly Kline would prefer one of these.

“That, too,” says Nichols.

Kline concentrates on the portion reflecting anger and asks whether this was directed at anyone in particular.

“At the police generally,” says Nichols.

What is happening here is clear. Kline is trying as much as possible to skirt the issue of a frame-up, the assertion that Acosta believed he was set up by the cops in the prostitution case. He would play it straight up that he was angry solely because he got caught.

He beats around this bush with a few more questions, and finally does not ask the ultimate question; the reason for this anger. Instead he tries to focus it.

“Was there anyone specific on the police force or perhaps, more to the point, working with the police, who was singled out by the defendant as the subject of this anger?”

“You mean the woman?” says Nichols.

Kline doesn’t respond but leans forward, peering over the top of his glasses at the witness, as if some unseen magnetism is drawing him toward the stand.

“It’s true that his words were directed at her,” says Nichols.

“You’re talking about the victim, Brittany Hall?”

“Yes,” says Nichols.

Kline licks his lips, finally to the point.

“Now, Judge Nichols.” He centers himself before the witness stand, legs spread a little, knees locked, his arms outstretched, palms facing each other like a skier cutting water behind a boat. “I want you to concentrate, think only about those portions of your conversation with the defendant that involved comments regarding Ms. Hall.” Kline stops and looks at the witness as if to say “Have you got that?”

Nichols nods like he does.

“Now I’d like to ask whether you can recall specific statements made by the defendant, his own words if possible?”

There’s a considerable pause as Nichols takes in all the parameters. He glances toward Acosta, who is not at this moment looking at him.

“There are things I remember,” he says. “How specific I’m not sure. It’s been a long time,” he says.

“Take your time,” says Kline.

“I know he said that Ms. Hall lied,” says Nichols.

“That’s good. What else?” He doesn’t ask the obvious question, lied about what?

So far Kline has navigated through the shoals of causation, the underlying reason for Acosta’s fury, the alleged setup by the cops on the prostitution sting. He is banking on the fact that since this does not qualify as an admission against interest by the defendant, that Radovich will exclude any reference to the alleged frame-up as being hearsay. If we want to get it in we would have to put Acosta himself on the stand. The naked underbelly of our case.

“During this conversation how did he refer to Ms. Hall, by name, or in some other way?” Kline tiptoes through this minefield trying to avoid asking the wrong question, opening the door.

“Yes. He called her some names,” says Nichols.

“Do you remember what names he used?”

“They were foul, out of character for Armando,” he says.

I would question how well he knows my client.

“Move to strike the answer,” says Kline.

Radovich leans over. “You’ll have to answer the question,” he says.

“He. . ah. . he referred to her as a lying cunt.”

“Those were his words?” Kline faces the jury head-on. “Lying cunt?”

“It’s what he said.”

“Did you hear any other references?”

“No. No. He just called her that word, and said that death was too good for her.”

“He said this?” Kline feigns surprise, as if it is the first time he is hearing this. “He called her a lying cunt and said that death was too good for her?”

“That’s what he said.”

“Did he say this out loud or in a whisper?” asks Kline.

“Under his breath.”

“But you could hear this?”

“Yes. I don’t think he meant anything by it.”

“Move to strike the last response,” says Kline. “The supposition of the witness.”

“The jury will disregard it,” says Radovich.

Kline takes a step back from the witness, turns, and runs a forefinger over the cleft of his chin.

“You still consider yourself a friend of the defendant, don’t you?”

“I do.”

“And do you think he considers you a friend?”

“Calls for speculation.” I try to get him off the hook.

“Sustained.”

“But you would like him to still be your friend, wouldn’t you?” Another way of saying the same thing.

I object as leading, but Radovich overrules it.

Nichols looks over, a face filled with doubt. “I hope that he still is.”

Suddenly I look over and realize that this last statement by the witness has driven Acosta into a cocoon. He will not lift his gaze to his old friend, something I have told him he must do, to face this moment head-on before the jury. He is downcast, dour, a whipped dog.

Kline suspends the questioning, sensing an opportunity to capitalize. At this moment every set of eyes in the courtroom is on the defendant, who is now the very posture of guilt.

Kline cannot believe his good luck. He actually assumes a startled expression, staring at the defendant, and stretches this moment of silence to an awkward pause so that the judge has to chide him to move along.