CHAPTER 33
A hostile judge can kill you in a thousand ways. Today Acosta is giving us a demonstration, a tour in the arbitrary exercise of authority.
He has denied Harry’s motion for a mistrial based on Eli Walker’s column. Speaking in cryptic terms, never mentioning Walker by name or the article by its headline, Acosta generalizes about adverse pretrial publicity in ways that make the listener think he is talking in mere abstractions.
He hints to jurors that the defendant has questioned their integrity, raised issue as to whether some of them may have seen certain news articles concerning the trial, this in direct violation of the court’s earlier admonitions. He asks if this is so, to a chorus of shaking heads from the jury box and irate expressions directed at Talia. Making it a team effort, they-the judge, the jury, and the prosecution-against us, Acosta then states his confidence, that he is personally satisfied this is not the case, that these are upstanding jurors who take their oath of service seriously.
It is a shameless display in the naked abuse of power, a grim spectacle, I fear a preview of things to come.
Talia is clearly shaken by these antics, her eyes darting first to me, then to Harry, frantic that we should do something to end this. There is nothing so unnerving to a defendant in a criminal case as the specter of authority turned against him in the form of a rogue judge. It is taking a toll on her; I can feel the tremble in her chair next to my own.
The Coconut takes every opportunity to slam the defense in rejecting the motion, characterizing it before the jury as “a stalling effort on the part of the defendant.”
I am up and down like a yo-yo-objecting to the characterizations of our motion and hammered back down to my seat by Acosta.
“Your Honor, we would request that the jury be polled, questioned individually, as to whether they have seen the news item in question.”
“Denied,” says Acosta. “Do you question the integrity of this panel?” he says. “You saw me ask them. To a man and woman, they denied having seen the article in question.”
They look at me, the beginnings of a seething mob, all except for Robert Rath, my alpha factor. He is an enigma. I sense that perhaps he knows or can guess what transpired behind closed doors in the judge’s chambers yesterday, that maybe he has seen Walker’s column.
“I must object, Your Honor, to the way this is being handled.”
“Now you question this court?” he says. “Is there no end to your arrogance, sir?”
In muted deferential terms I remind him that the court has a duty of inquiry, to assure a fair trial. I perfect this objection for the record, one eye on appeal.
“Your objection is noted,” he says, “now sit down.”
He turns to the prosecution, all creamy smiles. “Mr. Nelson, your next witness,” he says.
Like that, it is done, Walker’s column swept away, like bread crumbs brushed from the bench. We are left to wonder how many on the jury panel have seen this piece of work by Eli Walker, and what effect it may have. I study the expressions in the box, a sea of open hostility whipped to a froth by the court. If I had hoped to read their minds, to garner some sense of the impact of Walker’s piece, whether they still trust me, Acosta’s antics have made this impossible.
A somber-faced Coop is up next. I can tell that he is not looking forward to this. Nelson and he move through the preliminaries like Rogers and Astaire in the two-step. I stipulate to Coop’s qualifications as an expert witness. Nelson thanks me, and then moves a twenty-page curriculum vitae into evidence. I object on grounds that this is unnecessary, irrelevant, given our stipulation. Acosta overrules me and orders that copies of Coop’s resume be made for each juror. He may as well nail it on the courthouse door.
Coop’s performance is a repeat of his testimony in the preliminary hearing, nothing new or unexpected. He talks of lividity, the law of gravity and death, and the bullet fragment, the cause of death, lodged in the basal ganglion. He has pictures of this, a tiny bit of metal lost in hues of red and brown congealed blood, before it was extracted.
With Coop’s testimony Nelson quickly fixes the time of death, between seven P.M. and seven-ten P.M. Nelson is stacking the blocks of his closing argument. Coop tells jurors that Ben Potter was shot in the head with the small-caliber handgun, the body moved and the shotgun blast administered later in the office.
With this testimony and the evidence of Willie Hampton, the jurors can now see that an hour and fifteen minutes transpired between the shots, enough time to haul the body a considerable distance.
Nelson moves carefully through all of this, leading the jury by the hand through his theory of murder. He’s had Coop bring more photographs, a veritable album of revulsion. These are post mortem pictures, showing the tiny bullet fragment lodged at the base of the brain, more graphic shots of the distended face and fractured cranial vault after the shotgun had done its work. Nelson drops these on me and hands a separate set to the judge. He has Coop identify each and explain in vivid terms what is shown.
Coop tells the jury that a contact shot to the head with a shotgun, whether to the temple or in the mouth, will result in evisceration of large portions of the brain. The bulk of the pellets and the wad will exit in such cases.
“What makes shotgun wounds at close range so devastating,” he says, “is that virtually all of the kinetic energy of the round is transferred to the victim as part of the wounding effect. It is unlike a rifle, where the bullet may exit the victim, expending energy outside of the body.”
Coop holds up one of the larger photos for the jury to see, from a distance. “This type of wound inflicted to the mouth results in massive comminuted fractures of the skull and pulpification of the brain. Bursting ruptures of the head are the rule in such cases. You can see here,” he says, pointing with a pen to the picture, “the skull was largely fragmented. Parts of the cranial vault and a portion of both cerebral hemispheres were ejected from the head. The scalp suffered extensive laceration.”
There will be few jurors having heavy fare for lunch today.
This damage explains, he says, how the earlier bullet that caused death was so badly fragmented and lost. According to Coop, but for the little fragment, the authorities have never found that bullet.
While I would like to stop this, there is no way I can put an end to this graphic description of these wounds. I will try to block close observation of the photos by the jury, by keeping them out of evidence.
Coop fishes for another photograph from the stack until he finds what he wants.
“You can see here that this was an intraoral shot,” he says. “Soot is present on the palate, the tongue, here, here, and here, also on the lips, here.” He’s pointing with his pen. The more dauntless souls in the jury box are craning their necks to see.
“Stretchlike striae or superficial lacerations of the perioral skin and nasolabial folds are apparent, here. These are due to bulging of the face caused by rapidly expanding hot gases as the shotgun was fired.”
Whoever killed Ben may have been sloppy in his misdirection setting a scenario of suicide, but there is a clinical aspect to the administration of this shotgun blast, something I have not considered before.
Coop is finished with the pictures. Nelson moves to have them placed into evidence.
“Your Honor, we would object to the photographs, at least some of them,” I say. There are duplicates, several shots with only minor variations of angle, each taken at sundry distances from the corpse, but all far more graphic than anything Canard had offered. I itemize our objections, the prejudicial effect these will have on the jury, and single out three that I think are appropriate for use.