The Judge (42 page)

"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 under lying 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.

Finally with this distraction I am able to reach over with an arm on Acosta's shoulder, a show of support in a difficult moment. His head slowly comes up, and I notice for the first time that his eyes are moist.

"Judge Nichols, isn't it true that you were questioned during the grand jury proceedings?"

"Hmm?" Kline's question rouses Nichols from his own reverie, the pain of watching Acosta.

"Oh, yes," he says.

"But you never told the grand jury about the defendant's comments, what you testified to here today?"

"No."

"Why not?"

"I wasn't asked."

"And yet you came forward in these proceedings and disclosed this information. Why?" It's like a stake through our heart, what motivated this sudden show of candor. Nichols had to know this moment would come, and yet the look on his face makes it evident that he is not prepared with an answer.

He stumbles, comes up with something lame.

"I thought it was something that needed to be said," he tells Kline. "Why?"

"It was evidence." Nichols looks at the jury as he says this, clearly assuming that this will suffice.

"It was also evidence at the time of the grand jury, wasn't it?"

"I suppose so."

"But you waited until now?" "Yes."

"Why is that?" Nichols doesn't respond, but looks up toward the ceiling collecting his thoughts, looking for a way out without inflicting more damage. He is counting the holes in acoustic tile and praying.

Kline allows the pregnant pause, then picks up the beat.

"Judge Nichols, is it fair to say that at the time of the grand jury proceedings you had doubts concerning the defendant's guilt, and that as you sit here today you no longer have such doubts?"

"Objection, Your Honor. Outrageous." I'm on my feet. Harry is up as well, and for an instant I think I hear some profanity cross his lips.

Nichols actually responds to the question, and if I can read lips, he says, "No," but no one in the room can hear this, least of all the court reporter, who in the maelstrom gives up and takes her fingers off the stenograph keys.

There is chaos in every quarter of the room. While it was the unstated question on every mind, that Kline would actually ask this with the jury present sends Radovich into a fury. The fact that Nichols tried to answer finally brings a delayed refrain from the press rows of whadd he say?" Harry turns and tells them the witness said, "No," and several of them actually write this down. We may win the media battle and lose the war.

Radovich, still in his chair but leaning over the bench, slaps his gavel on wood. "I'll clear the room," he warns.

This brings it down a decibel or two and he turns on Kline. "That's an improper question, and I think you know it," he says. "Get out your wallet," he tells him. Radovich is going to impose sanctions, here in front of the world. He does not even send the jury out. It is the thing with the prosecution. There is no right of appeal.

The person most surprised by this seems to be Nichols himself. The thought of dressing down a lawyer, much less humiliating him in public, is a notion alien to this judge. He would have hoped to live in more temperate times, when winning was not everything.

"The jury is to disregard the question and any implications," says Radovich.

"I have no more questions of the witness," says Kline. He says this almost absently as he fishes for his checkbook in the maroon silk lining of his coat.

"You're damn right," says the judge. "It's gonna cost you six hundred dollars for the last one. Pony up to the clerk," he tells him.

"I will see counsel in chambers," he says. "Five-minute recess."

Radovich slams his gavel so hard that the hammerhead separates from the handle and careens across the floor, hitting one of the sheriff's guards in the foot.

By the time we get inside, Radovich has not cooled.

Kline is still pocketing his checkbook and overflowing with apologies. "I spoke before I thought," he says.

"You may have talked us all into a mistrial." Radovich is several shades of red.

"I don't think it's that serious," says Kline.

"You aren't the appellate court," says Radovich. "At least not yet."

He has been smelling ambition on Kline since the start and now it slips from his lips.

"If there's a problem it can be handled by an instruction," says Kline. "They've been told to disregard it."

"Your Honor, the question was clearly laid," I say. "The jury cannot have missed the implication. They would take a strong lead from the conclusions of a sitting judge, one with no incentive to lie."

"So what do you want?" says Radovich. "To try this thing again?" He's looking to see if I'm moving for a mistrial. This he would no doubt deny.

"No," I tell him.

"Then what?" he says.

"Some leveling of the playing field," I tell him.

Kline has a wary look. He sees something coming but is not sure what. "I think it can fairly be argued," I say, "that Mr. Kline begged the question of motive for my client's temper, the reason for his intemperate statements about the victim. I think we should be allowed to inquire into this on cross examination." There's a wail from Kline that I suspect can be heard outside in the courtroom. The press is probably wondering if Radovich is skinning him with a cat-o'-nine tails.

"Your Honor, I was very careful not to get into that. It's beyond the scope of direct." He moans in front of the judge's desk, insisting that there is no precedent. "Besides," he says, "anything Nichols would have to say on chat score is clearly hearsay, with no exception."

"On the matter of precedent," I say, "there are cases dealing with the context of a witness's testimony. It's only fair that the jury should under stand the context in which my client made these statements. What motivated them?"

"What could justify such ugly remarks?" asks Kline. "Why don't we let the witness tell us," I say.

"On your own time," he tells me. "You want to call him in your own case, fine," he says. "You can ask him what you want." The problem with this, and Kline knows it, is that to call Nichols as our own witness would no doubt open the issue of Acosta's character.

Cross this line, and the Coconut's life is an open book, the pages of which I do not know myself, though I would venture that Phil Mendel and the boys from Vice have already penned volumes of this, bound and stacked, waiting to be read.

"Enough," says Radovich. "You want to get into motive for the statements" he's looking at me "do it."

"But, Judge ..." Kline's final appeal is cut off. "You don't like it, object," says Radovich.

He's done with us, out from behind the desk and heading for the courtroom, Kline and I still squabbling in his wake.

Once there, back at counsel table, Acosta has a hand on my arm, trying to find out what happened.

"Watch and see," I tell him. "I don't know." Radovich calls the room to order. Nichols is on the stand.

"Your witness," says the judge.

When I get my opening I do not wait. The theory here is to strike while Radovich is still hot, angry with Kline. If he's going to give me an edge it will be now.

"You testified," I say, "that the first thing you remember my client. Mr. Acosta, saying is that Ms. Hall lied."

"That's correct," says Nichols.

"Did he say what she had lied about?" "Objection. Beyond the scope of direct." "Overruled on those grounds," says Radovich. "Hearsay," says Kline.

Radovich wavers only an instant before he pronounces overruled.

Kline now knows that this, a bad ruling on evidence, is the balance of his sanction.

"Please answer the question," I tell Nichols.

He seems delighted to comply. "He told me that she lied about the nature of their conversation the evening he was arrested. That he had never tried to solicit an act of prostitution, but instead had been called by Ms. Hall on the telephone, who asked him to meet with her." "Did he tell you why she wanted to meet with him?"

"According to Judge Acosta, she had information for him in connection with a grand jury investigation."

"Did he say which one?"