Steve Martini - Compelling Evidence

“It’s impossible to know,” I tell her.

She nods, like perhaps she accepts this. But I know better.

Harry is back with two glasses and some ice. He pours Talia a stiff drink, mixed with a little water. His own he takes straight.

In the first stack of papers is a letter from Peggie Conrad, the paralegal in Sharon Cooper’s case. There are a number of papers here, things for me to sign in order to finalize this probate that is still hanging fire. They are all paper-clipped together, a thick packet.

Harry does a one-cheeker on the corner of my desk while Talia sits on the sofa against the wall.

“My guess,” says Harry, “is five days.” He’s laying odds on how long the jury will be out. This, I think, is a little moral support for Talia. He’s telling her to calm down, to relax, or she won’t have to worry about the verdict: She will be a mental basket case before they announce it. Though right now, I wonder if she is not in better shape than Harry.

“Damn,” I say.

“What is it?” Harry’s looking at me, like I’ve just dropped a live grenade.

“Nothing,” I tell him. “Just something I forgot to tell Peggie Conrad about in Sharon’s case.”

In the chaos surrounding Eli Walker’s column, the disclosure of my affair with Talia, I’d forgotten to call off Peggie, to tell her that Coop had already taken care of the receipt for the toaster left for repair by Sharon at the hardware store. She has now spun her wheels and duplicated his efforts, for there in this stack of papers is a xeroxed copy of the receipt. This must be the store’s own copy, a lot of writing on the printed form, a heavy scrawl that is difficult to decipher.

The intercom on my phone rings, but I don’t move to get it. My eyes are struggling with the cryptic handwriting of some store clerk, making out only one word on this form. Instead Harry picks the phone up. He puts his glass down on the desk, his expression suddenly dark, worried.

“They’re back,” he says.

“What?”

“The jury, they’re back.”

“A verdict?” I ask.

“I don’t know; Dee took the message. All she said is the jury is back.”

Typical of Dee Magnuson, she has given us a collective coronary. With Dee it is seldom sins of commission that one must worry about, but those of omission. She failed, when the clerk called, to find out why the jury was back. There may be reasons other than a verdict.

When we arrive in the courtroom, the jury is already in the box. They are not talking, but listening-to testimony being reread by the court reporter. It takes me several seconds before my mind zeros in on the colloquy being read. It is Nelson’s expert on the strand of hair, Mordecai Johnson-my cross-examination. This is cause for concern, that the jury is focusing on the only piece of evidence linking Talia to the crime, as if they are searching the record for some hook upon which to hang a conviction. Or maybe they’re just looking one more time, to assure themselves that in fact there is no compelling evidence.

But more than the words being read, a dry monotone by the reporter, I am concerned by something else that I see, there beyond the jury railing. Centered in the second row sits Robert Rath, my alpha factor. He is not where he should be.

I look at the seat, far left, front row, the chair nearest the judge, which should be occupied by the foreman of this jury. It is held by one of the four women I had tried to remove from the panel. She looks at me, a fleeting glance, as I stare, my mouth half open. So much for the science of jury selection. I have miscalculated badly, and I wonder if perhaps I have made other mistakes. For the first time I begin to question seriously whether this jury will be buying the theory of Tony Skarpellos as killer.

The reporter finishes with her notes, and Acosta looks to the jury.

“Madam foreman, is there anything else?”

“One of the instructions,” she says. “The one dealing with the defendant’s silence during this trial. We would like it read again, and explained.”

Harry looks at me. For the first time he is grappling seriously with thoughts of a death penalty phase. He doesn’t have to talk for me to know this. It is written in his eyes.

Acosta handles this gingerly, leaving the jury in the box, while Nelson and Meeks, Harry and I join him in chambers. This is required procedure in this state, a conference out of the presence of the jury before the judge may read or explain any jury instruction once deliberations have started. The Coconut is worried; he sees mistrial written in this request. He is beginning to wonder whether my assertions of Nelson’s body language may not have been closer to the fact than he’d realized.

He is on the prosecutor like a cheap blanket. Nelson is adamant that he has done nothing wrong.

This is a short meeting. We all agree. Acosta will read the instruction word for word; he will explain nothing. He will respond to specific questions if the jurors have any, and then perhaps only after a further sidebar with counsel.

Back out with the jury, Acosta reads the instruction. But this does not resolve their problem. It seems there is a real dilemma. One of the jurors has made a serious mistake. He has commented on the defendant’s failure to take the stand.

Acosta looks at me, trouble in his eyes.

I have heard and seen enough. I am out of my chair. “Your Honor, the defense moves for a mistrial.”

Nelson is up objecting, saying that this error can be cured. “The fact that the jury has collectively brought this to the attention of the court indicates that they understand the spirit, the requirement, of this instruction,” he says. “Certainly any problem is capable of being cured by further instruction of this court. We have spent too much time and effort to have a mistrial at this late date.”

But I am insistent. “The law in this area is clear. It is prejudicial error, prima facie,” I say, “for the jury to comment upon or to consider the defendant’s assertion of her Fifth Amendment privilege.”

Acosta’s in a quandary. The law is four-square on our side. There is not a principle in jurisprudence more firmly established. The appellate reports are filled with cases of convictions reversed for lesser cause than this.

Acosta calls us to a sidebar. He leans over the lip of the bench toward our faces, whispering so the jury cannot hear.

“A difficult problem.” He is all consolation now, trying to appease me. It’s a good argument, he says, my request for a mistrial. “But I think it is one best raised on appeal, if that becomes necessary.” He raises bushy eyebrows. “In good conscience, I cannot stop the trial at this stage. I must go forward. Put yourself in my place.”

In this he is, as ever, practical. Every gesture, each ruling calculated for effect.

“Your Honor, is it fair that my client should be put to the cost of an appeal?” I ask. “Have the threat of a conviction hanging over her head, perhaps for years?”

“She has not yet been convicted,” he tells me.

“Your Honor, look at them. Listen to what they’re saying.”

He makes a face, cocked off to the side at a forty-five-degree angle, a crooked smile, like he is not responsible for these twelve people. The message is clear. If I am not happy with this jury, I have no one to blame but myself.

“Your motion is denied,” he whispers.

We back away, and he puts it on the record.

Through all of this, I have been carrying a single piece of paper, the little receipt from the hardware store, the piece of paper from Sharon’s probate. I’d had it in my hand when Dee dropped her bomb that the jury was back. I have folded this thing into a million little squares as I wait, the product of my nerves.