The Judge (28 page)

"Mr. Kline," says Radovich, "you are aware of the limitations regarding character," he says.

"Yes, Your Honor."

"Then the jury will disregard this last statement," says the judge. T he issue here is whether the state will be allowed to delve into Acosta's character, past acts that are not related to the crimes in question. This is taboo unless we open the issue ourselves by placing evidence of our client's good character before the jury. With the Coconut, ? this would be something on the order of foraging for grass in the Sahara.

"Carry on," says Radovich.

Kline gives him a slight bow of the head, an appropriate show of respect that for anyone else might come off as subjugation, but not with Kline.

He picks up without losing a beat. ' "The state will prove," he says, "beyond a reasonable doubt that the defendant, Armando Acosta, brutally and in cold blood murdered Brittany Hall, a judicial witness, in order to silence her and save his faltering judicial career." It is only a taste of what awaits us in the trial.

Then, for nearly two hours of uninterrupted monologue, Kline postures for effect, pacing in front of the jury box, as he makes point after point, turning on the key issues of his case, the hair and fibers, which he says expert witnesses will link to the defendant; the note in the victim's own hand showing an appointment with the defendant for the day of the murder; the absence of any alibi for the defendant; the broken pair of reading glasses found at the murder scene, which Kline says he will link unequivocally to our client.

With this I glance over at Acosta, who gives me a daunting look. If the y have evidence of this they have failed to disclose it. Harry nearly rises from his chair, but I motion him to let it go. There's time for this out of the presence of the jury. Why make an issue here mark it indelibly in their minds?

I see Harry make a note.

Kline has difficulty on one point that he cannot seem to explain, and yet cannot pass over without comment. Why, in his theory of acosta as killer, would the judge move the body after the murder, to deposit it in a trash bin a mile from the woman's apartment?

Kline admits that this involved risk, which no rational person would take on lightly. But then he adds that the defendant at that moment would not be acting rationally. His quick explanation is that having committed murder, the man panicked.

"Your Honor, I object. This is surmise and argument," I tell Radovich. "Do the people intend to produce evidence on the point?" Kline gives me a look like this is unlikely. How would he climb into the defendant's mind?

"Then you shouldn't be mentioning it here," says Radovich. "The jury will disregard the last comment, the speculations of the district attorney,

" says the judge.

Acosta raps me on the arm lightly with a clenched fist, a blow for our side.

It is a nagging loose thread, one that Kline cannot tuck neatly into his case. The fact remains that he has no ready explanation why the killer would take the time and assume the risk of moving the body. It is one of those gnawing points that lends itself to other theories, suggesting another sort of killer, one with reason to move Hall's body. The first that comes to mind is a live-in lover. And yet no evidence of cohabitation was discovered in the apartment, no male clothing in the closet or drawers, no witnesses who saw men coming and going. And no effort was made to conceal the fact that death occurred in the woman's apartment. For the moment, the mysterious movement of Hall's body is a lit the more useful to our side, since we have no burden of proof.

Kline has saved the most poignant and powerful for last. "There is," he says, "a motherless little child left by this brutal crime." Kimberly Hall, a hapless five-year-old.

"Little Kimmy," as he calls her, is waiting in the wings to tell us what happened.

Up to this point he had not indicated whether he would call her as a witness. Though she remains on his list, I had assumed this was for psychic value, and to keep us off balance.

Following the little girl's traumatized performance outside of court, her stone silence and confusion in front of the camera, we had concluded that she would not appear. She had offered nothing concrete by way of evidence, at least not verbally. Now Kline seems to be saying otherwise.

"This little girl was present during the argument and violent confrontation that took her mother's life," he tells the jury. "We are not certain at this point whether she can identify the killer, but she can attest to the valiant struggle that her mother made to save her own life, and the violence that took that life." It is clear what he is doing. If the child cannot identify the killer, she can at least, by her very presence in the courtroom, attest to the tragic loss suffered in this case.

I am torn as to whether to rise and object.

Radovich looks at me. He has seen the video and knows that it is void of any such evidentiary content. On a proper motion he might bar the witness from testifying, strike Kline's bold statements, spare Kimberly the need to appear.

The problem here is that to object before the jury on such a sensitive point would be to do more damage than good. Regardless other tender years, Kimberly is the only possible witness who was present on the night of the murder. Any objection may send the signal that we have something to hide. With Acosta whispering animated protests in my ear, I sit silent and suffer the point at Kline's hands.

He balances precariously, just on the edge of argument, as he talks about the child. For an instant, Kline is overcome himself by the emotion of the moment, his voice cracking, then breaking. He talks about the living victim of this crime, Kimberly Hall. That these thoughts seem to drain him emotionally is not lost on the jury. Several of the women on the panel offer pained expressions, as if they would like to ease this load from Kline's shoulders.

I am on the edge of my seat, half a beat from objection.

Then, as though in a daze, Kline draws himself up, as if this comes from an inner strength he did not know he possessed.

"You will hear from little Kimberly Hall in this courtroom," says Kline. He doesn't say what they will hear. Promising more in an opening statement than you can deliver at trial is like stepping on a legal land mine. Your opponent is certain to saw off your leg somewhere above the knee in closing argument. t "And after you hear this little girl ..."

His voice breaks one more time. He regroups. "And after you hear Kimberly," he says, "it will be left to you to decide who murdered her mother." He turns and looks at Acosta as he says this. "And what punishment should be meted out for that terrible crime." With this thought Kline leaves the jury, and as he turns for the sanctuary of his counsel table, there is, halfway down his cheek, a lone tear.

It is in every way a capital performance.

W e are on the noon break, and I am going over notes in the courthouse cafeteria with Harry, prep for our opening, when a bailiff from one of the other departments finds us.

"Mr. Madriani. You got a call," he says. "On one of the pay phones outside." I give Harry a look, like who would call me here?

"Maybe the office," he says.

I leave him to take it, make my way across the room, shuttling between tables to the bank of pay phones on the wall outside. The receiver for one of these is dangling near the floor by its cord. I pick it up.

"Hello."

"It's me." Lenore's voice. "I took a chance that you would be lunching in." She means in the courthouse.

Lenore has been careful not to be seen near the courtroom since her ouster from the case. She has taken up other digs for work, another friend across town, at least until the trial is over, a kind of moving Chinese wall to avoid tainting the partnership with conflict. Despite this, she is still working in the shadows, shamelessly feeding us information.

"How is it going?" she asks.

"My turn in the tumbler this afternoon," I tell her. "Our opening statement."

"Any surprises from Kline?" I tell her about the reading glasses, that the state has promised the jury that they will link these to Acosta.

"Maybe Kline is hoping," she says. "Throwing up a little dirt in hopes that some will stick." At the moment this sounds more like our own case.

"Why did you call?" I can sense in her breathless tones that there is more than curiosity at work here.

"I am hearing rumblings from people downtown that Mendel is on the warpath," she tells me.

"Somebody take his rawhide chew stick away?" I ask.

"It may not be so funny," she says. "It is your name he is taking in vain. He got service on the subpoenas yesterday afternoon." Lenore is talking about the legal process Harry spent a week preparing, subpoenas with enough small print to strain Mendel's eyes. Hinds is rooting around in the association's private papers, tracking through the organization's financial dealings like a dog peeing on somebody else's lawn. He has demanded bank statements and telephone records, with particular emphasis on the private line that rings in Mendel's office.

These would be obtained from third parties, so Mendel cannot destroy or alter them.

"Word is, he's storming around his office, demanding your scalp," she tells me.

"When's the next performance? Harry would like to buy tickets." "Mendel may cut a comic figure, but he is not one to take lightly." "Is he threatening my life?"

"Mendel's more subtle than that. Besides, I'm not privy to the private conversations of the rabble that hangs in his office." According to Lenore, there are those among his cadre who are no doubt sticking pins in my effigy as we speak.

"You knew we had to cross over these waters," I tell her. "It's been part of our defense from the beginning."

"True, but I thought I would be standing there with you." This is it. A moment of pained silence on the phone, the guilt that is eating at Lenore.

"And I didn't think you would do it with such enthusiasm," she says. "What can I say? Harry gets carried away."

"Then maybe you should let Harry start your car in the mornings," she says.

"You make it sound ominous."

"Just cover your ass," she tells me. "I wouldn't want to see anything happen to it." This is a conversation we can continue at another time.

"Are we still on for tonight?" I ask her. "Are you sure you won't be too tired?" "I'll get the wine."

"What, so we can drown our sorrows?" she asks.

"That and other things." She laughs, something just on the edge of seductive. "Your place, eight o'clock." I hear the click on the line and dead air, and in my mind the resonance; the lyrical qualities of lenore's voice.

L e presumption of innocence is an intellectual exercise not subscribed to by the common man. For this reason, after Kline's scorched-earth opening it is an uphill battle to drag the jury back to neutral ground.

I start with something that is not always obvious in such a formal setting: introductions. It is an effort at bonding that every good lawyer learns.

"My name is Madriani," I tell the jury, "Paul." I give them a toothy grin, which, pleasantly, most of them return.

"My client"--I gesture toward the table--"Judge Acosta." "Objection." Kline is out of his chair.

"What? You would deny the common decency of an introduction?" In fact I have baited him, knowing that he would object to this. "I object to the use of the title judge,"

" he says. He starts to speak, and RADOVICH cuts him off in midsyllable.

"Sidebar," he says.

By the time I get there Kline is already bubbling over with venom. "The defendant was suspended from the bench," he tells Radovich.

"Order of the supreme court," he says. "Pending disposition in this trial.

He should not be referred to as judge." "

"Petty point," I tell him. "There is nothing legal in the title. You show me where it says in the law that someone cannot call themselves a judge."

"It's misleading," he says. "Confusing to the jury."

"Then we can explain it to them. Tell them that there's a temporary order that will be expunged when my client is acquitted."

"Fat chance." Kline gives me a "screw you" expression.

Bagdonovich coaxes Kline to accept the title, with an explanation to the jury. "I think that would solve any confusion," he says.

It is more than I had expected.

"Absolutely," I say. "We can cooperate to work out the language." We have just started and I am already six yards up Kline's ass with a hot poker.

"No, Your Honor, that's not right. The fact is that he's been removed from the bench," says Kline. "There is only one judge in this court room," he tells Radovich. Always pander to power.

It is a point that will have an effect on the jury, and Kline wants to settle it early.

Radovich wrinkles the skin at the bridge of his nose. Kline senses the ground shifting under his feet.

"Perhaps we could refer to the defendant as former judge," " says Kline.

"We can live with former judge." The master of the fall-back position. "We would prefer judge, with a fair explanation to the jury," I say.