Shadow of Power (24 page)

“Ordinarily I would say that it would take longer,” says James, “but it’s possible, depending on how precariously balanced the body was at death. It might not take much of a change in body mass, the weight of the blood moving, to disturb the balance point if the body were in a position at death that was already close to falling.”

“Thank you, Doctor. Your witness.”

Tuchio is happy with this, smiling toward the jury as he heads for the counsel table.

He should be pleased. Thin as it may be, Dr. James has just supplied the answer to the question that has been causing Tuchio’s case to sag in the middle: What was it that made Carl panic and run, slipping in the blood and leaving his prints all over the floor at the scene? What else but the seeming apparition of a moving dead body suddenly toppling from the chair onto the floor as the defendant was getting ready to exit the room?

We take the noon break and come back. I grill James on the issue of lividity. I ask him whether it isn’t true that all the professional literature, studies on the subject, agree that it takes anywhere from a half hour at a minimum to two hours after death before lividity, the gravitational force on blood in the body, takes effect.

He concedes the point.

“So if that’s true, how could lividity move the body in this case from the chair to the floor in the period of four or five minutes following death?”

The cops and the prosecutor know that Carl, and no one else for that matter, after having murdered Scarborough in the way he did, would have stuck around more than four or five minutes. From all the evidence, the killer would have stayed just long enough to leave the gloved prints on the attaché case while searching for whatever it was and to clean the raincoat, God knows why, and then he would have jetted out of there like the Road Runner. My guess would be two or three minutes, not four or five.

James refuses to back off. “It’s possible,” he says, “that the body, if it were just at the tilting point in the chair at the time of death, could have been affected by the very earliest stages of lividity.”

“Or I suppose it could have been an earth tremor, or a puff of wind, or maybe a séance going on across town—”

“Objection.” Tuchio’s out of his chair.

Quinn slaps the gavel. “The jury will disregard counsel’s last comment,” says the judge. “Any more questions?”

“None, Your Honor.”

“Good. Next witness.”

Tuchio takes up the remainder of the afternoon with Carl’s former supervisor, the head of catering and the manager of the hotel dining room at the Presidential Regis. The witness testifies that Carl was not the best employee. He was often late for work, argued with other employees often over issues of politics, and was twice caught stealing items of food from the kitchen.

When asked why the defendant wasn’t fired, the supervisor explained that in the last year, following two raids by ICE, Immigration and Customs Enforcement, it had become very difficult to get good help, or to keep it. In other words, Carl only had the job because he didn’t need a green card to work.

Notwithstanding Carl’s shaky record as an employee, the witness told the jury that Carl Arnsberg, like most employees at the hotel, either possessed or had access to a master card key, which would have given him access not only to the victim’s hotel room but to the maintenance closet where the murder weapon, the hammer, was stored.

According to the witness, on the morning of the murder, the defendant left the hotel, disappeared without telling anyone, and failed to clock out with his time card.

End of the day, and Harry and I hoof it back to the rendezvous point.

“I know what I’d like to do. But given the fact that we live in a civilized society, Quinn would probably say no to waterboarding,” says
Harry. “We may just have to settle for a few early subpoenas. Turn the screws and hope,” he says. “Let ’em cool their ass on a hard bench in the courthouse, wondering when and whether they’ll be called.”

On Harry’s short list of recipients for witness subpoenas is the literary agent, Richard Bonguard; the Washington lawyer, Trisha Scott; and Scarborough’s editor, Jim Aubrey.

“We bring them out early and sweat ’em,” says Harry. “How much time do you think we have before Tuchio wraps his case?”

“I don’t know. Two weeks at the outside. No more,” I tell him.

Harry and I have gone over the state’s witness list. Besides Carl’s tavern buddies, Tuchio has several witnesses he will no doubt call, one of them a psychiatrist prepared to talk about hate crimes and how political hostility can fit the mold. He will no doubt get the shrink talking about the contents of Scarborough’s book as well as taped videos of some of the author’s more provocative interviews on television and how these might trigger hostility. There are also two hotel employees who argued with Carl about politics and who presumably will testify as to the level of anger he displayed. One of Carl’s neighbors also has a tale along these lines and is on Tuchio’s list. If he wants to put a few flourishes on his case, there are two or three members of the Aryan Posse he could drop on us. Though according to investigative reports, most of these had only a passing acquaintance with Carl. They told the cops that Carl was so far out on the fringes of the group that they didn’t know who he was, and when they were invited to classify Carl as a wannabe with the group, they said they didn’t know. Show the jury pictures of these guys, chopper gauchos with tattoos from here to hell, and the fact that they didn’t know him becomes Carl’s most positive character reference.

“So let’s play it safe and say we have a week,” says Harry. “We serve Bonguard, Scott, and Aubrey ASAP—tomorrow if we can do it—and bring ’em out now.”

We suspect that at least one of them, maybe all, has seen the Jefferson Letter and certainly knows more about it than he or she has revealed to us. If we’re right and we can squeeze it out of one or all of them, we could build a legal bridge, permitting us to talk about the letter in front of the jury. This, plus the shadow in blood on the leather—the inference, because we may not be able to say it overtly, that this silhouette
represents the missing letter—gives us at least the bones of a case. Dress it up in a few of the inconsistencies from Tuchio’s own presentation and the skeleton might dance long enough in front of the jury to inflict two or three of them with a terminal case of reasonable doubt.

A hung jury. It may be like kissing your sister, but it’s better than a lethal injection. And who knows? If the gods of reason are asleep over the jury room and somebody switches off the lights, we could even get an acquittal.

“What makes you think they’ll be more cooperative once they come west?” I ask Harry. I’m talking about Bonguard, Scott, and the editor.

“We get them thinking about that hot ball of sun,” says Harry, “the media spotlight over a witness stand in a trial with charged racial overtones.

“Take them out to dinner, separately,” he says, “and talk about the book.”

By the look I give him, he knows I’m not following him.

“Perpetual Slaves,”
he says. “That book is positively full of all kinds of hideous history. Tuchio is going to use it to brain our client. So over salad we ask Bonguard his thoughts on the intimate details in the book and its effect on race relations in modern America. Now, that’s some touchy stuff,” says Harry. He stops walking and looks at me.

What Harry has in mind is the modern equivalent of a Renaissance Florentine inquisition—everything but the stake, the pyre, and the burning bodies. If the restaurant would let him in, he would dress in a robe with a hood, holding a staff with a skeletonized hand nailed to the end of it.

“I wouldn’t want to have to talk about that stuff in open court, under oath, on the stand, with reporters in the front row working their pencils to a nub taking notes,” says Harry. “Hell, a single word, an unintended inference, or maybe just the wrong inflection in your voice—on a sensitive subject like that, you could fall on your own sword, kill a career in full bloom right there in front of the world.

“And we haven’t even gotten to the bad stuff yet,” says Harry, “whether Bonguard and Scarborough ever had conversations about all the violence that seemed to be following them around on tour. You know, I’ll bet if we subpoenaed the publisher’s sales records on that
book and plotted them against newspapers in the cities where the fire tour visited, you would see a direct correlation between the flames on the front page and the spikes in sales. Scarborough wasn’t an author, he was a firebug.”

To listen to my partner, you’d think that whoever murdered the man didn’t commit a crime, just simply killed a pyromaniac before he could burn another city. If we can’t spring something loose on the letter, this may become our best defense.

“Give me an hour with Bonguard,” he says. “No. No. Forty minutes,” says Harry, “tops. Before we get to dessert, he’ll tell me everything he knows about that letter, whether he saw it, and how many times. Believe me, he’ll be anxious to get on the stand as long as he can talk about anything except that book and how they marketed it.”

“And even if he didn’t see the letter, he’ll swear he did. Right?”

Harry starts walking again, trudging with his head down, hauling his heavy briefcase. “Hey, if he doesn’t tell me he’s lying, how am I supposed to know?”

T
he subpoenas, all three of them, went out this morning, for Richard Bonguard, Trisha Scott, and Jim Aubrey.

By 9:00
A.M.
the subpoenas aren’t even on our radar screen any longer. Harry and I have moved on to trying to put out the next fire. We are back in court, but not in front of the jury.

The judge has given them the morning off. Instead we are gathered in Quinn’s chambers, where Tuchio is scrambling to account for the late disclosure of an FBI agent on his witness list.

He tells the judge there was nothing he could do. According to Tuchio, he disclosed the existence of his witness and the entirety of the man’s statement given to police the moment the D.A.’s office received the information. All this was turned over to the defense as required by discovery.

“The fact that this witness was an agent of the FBI, working undercover, I did not know until later,” says Tuchio.

“How much later?” Quinn wants to know.

This morning his office is crowded. Besides Tuchio and his assistant, Janice Harmen, and Harry and I, there are two other men present, sitting on the couch against the wall behind us. One of them is the agent in charge of the FBI’s San Diego office. The other gentleman is a deputy United States Attorney from the Justice Department in Washington. Apparently the matter is of sufficient importance that Justice sent its own
man out from D.C. instead of simply handing it off to the United States Attorney in San Diego.

Trying to answer the judge’s question, fixing the precise date when everything was known, Tuchio looks like a one-man band, juggling his notes, riffling files in his briefcase, and whispering out of the side of his mouth to his assistant. Then they both huddle with the FBI agent. When the prosecutor finally turns back to the judge, he says, “About ninety days, Your Honor. We knew with certainty about ninety days ago.”

“Three months!” says Quinn.

“Yes. About ninety days.” For some reason this seems to sound better to Tuchio.

“And you disclosed the existence of the agent when?” says the judge.

Tuchio coughs a little, covers it with the back of his hand, and says, “Friday, Your Honor.”

“Last Friday?”

Tuchio nods.

Quinn nearly blows a fuse. “There are cases on point,” says the judge.

“Not with regard to collateral crimes, Your Honor. We’ve checked the cases.” Tuchio wants to split legal hairs with the judge, who looks as if he’d like to lean across the desk and smack him.

“I see,” says Quinn. “So you want to make a new law and have me reversed on appeal in order to do it, is that it?”

“No, Your Honor. That’s not what I’m saying.”

“Lemme get this straight,” says Quinn. “You have a law-enforcement officer, part of the government—albeit the federal government, not somebody playing under your own tent—and he’s in the middle of your case.”

“By sheer circumstance, Your Honor. The D.A.’s office had no idea.” Janice Harmen tries to draw some of the heat off of Tuchio.

“I appreciate that,” says the judge. “But just so I understand, you have statements made by the defendant, statements against penal interest made in the presence of this agent. You want to bring those statements before the jury to show the defendant’s state of mind prior to the commission of the crime.”

Tuchio is nodding.

“And you failed to disclose the fact that the witness is a federal agent until three days ago?” says the judge.

“That’s it,” says Tuchio.

“Not in my courtroom,” says Quinn. “What do you have to say to this, Mr. Madriani?”

Why should I interrupt Tuchio’s train wreck? I’m about to tell Quinn that I second his motion, that he shouldn’t sully his courtroom, but Tuchio cuts in before I can say anything.

“First of all, Your Honor, all the defendant’s statements were made prior to the commission of the crime. There is no question of Miranda here, no need to caution the defendant, because there was no focus of suspicion. The crime had not yet been committed.”

Quinn looks at him, that death stare again. “Tell me something I don’t know,” he says. “What I’m concerned about, Mr. Tuchio, is the fact that the witness carries the mantle of government on his shoulders, a material fact withheld from the defense in the preparation of their case.”

Tuchio finally tells the judge that while the witness Walter Henoch’s name appeared on the prosecution witness list, and while his statement was disclosed, the consent of the federal government for the witness to actually testify, to appear at trial, had been granted only four days earlier, on Thursday afternoon, the day before the prosecutors delivered the disclosure to our office.

Both Justice and the FBI, seated on the couch, confirm this. They tell the judge that the witness was part of an active, ongoing undercover investigation and that disclosure was hampered by serious concerns for the personal safety of their agent.

Harry was right. It’s an eleventh-hour deal.

This takes some of the edge off the judge. Though Quinn is still not completely mollified, his sense of indignation goes back in the box.

“I can appreciate that,” says the judge. “Still, there are questions of fundamental fairness that have to be discussed.” He turns to me. “Did you have any idea that you were dealing with an agent of the government?”

“We had no formal notice of any kind until Friday,” I tell him. This is not exactly responsive to the question he asked. Harry and I had guessed that there was too much polish to Henoch’s typed statement, so
that there was little doubt that somebody was wearing a wire, but as to the FBI we were blind.

“Well then, I guess we’re down to the question, what do you want to do about it?” He puts this to me.

“I would move to suppress the witness’s statement, Your Honor, and request an opportunity to prepare points and authorities.”

Out of the corner of my eye, I can see that Tuchio is jumping up and down arguing that suppression is an overkill, given that the witness and his statement were disclosed.

As Tuchio argues, my gaze wanders the room. It doesn’t require clairvoyance to pick out the man in the middle, the one with the occasional pained expression like a sudden attack of gas whenever the prosecutor turns a new argument, the guy with his head in a vise.

Welcome to the wonderful world of bureaucracy. You can bet that the FBI agent seated on the couch has never found himself in this position before—locked up in chambers in some judge’s courtroom, pulling for the defense in a criminal case.

He sits there quietly watching as his superiors in Washington, who want to make sure they aren’t caught off base, without political cover in the event of a riot following the trial, flush his investigation by outing his undercover agent. And that’s if the Aryan Posse doesn’t kill Henoch before he can testify.

“Your Honor, I have an alternative.” Tuchio finally gets to his punch line. He wants to confer with the FBI and the Justice Department for a moment. They huddle at the couch, murmuring. I can see the agent’s face. At first he seems not to understand what Tuchio is proposing. When he finally gets it, he has another attack, only this one is major, and overt. The agent is sitting there shaking his head, trying to argue with the attorney sitting next to him. It takes a few seconds, but the lawyer from Washington has the final word. He silences him.

Tuchio turns back to the judge. “Your Honor, I would propose that the witness be allowed to testify but that there be no statement or disclosure to the jury that the witness is an agent of the government or involved in any way with law enforcement. It makes perfect sense,” says Tuchio. “It conforms to our earliest disclosure of the witness and his statement.” Then he gets piggy. “In return,” he says, “we would ask that the defense
refrain from mentioning or disclosing to the jury the prior convictions of our other witness, Charles Gross.” He sort of slips this in sideways, as if his proffered concession on the agent weren’t being forced.

“That’s not going to happen,” I tell the judge. “Unless—”

“I don’t think so, either,” says Quinn.

“Fine,” says Tuchio, “forget the second part. Gross’s prior record can come in.”

“Unless what?” The judge is looking at me.

The prosecutor’s offer is a bad deal for us any way you cut it. Under Tuchio’s proposal the state has two corroborating witnesses. With Henoch’s testimony, every
t
crossed and
i
dotted, and with Gross on the stand later to confirm as much of it as he can remember, it won’t matter that Henoch’s badge is covered up and that Gross’s prior record is out on the table in front of the jury. The details of Henoch’s testimony and the confidence with which he delivers it will kill us. Jurors can smell credibility, and Henoch—or whatever his real name is—will reek of it.

“I have a different proposal, Your Honor. The prosecution presents their testimony through a single witness, Mr. Gross. In return, the defense would refrain from disclosing the witness’s prior convictions.” Then I add the sweetener. “The undercover agent, Walter Henoch—who I assume is already under subpoena?” I look to Tuchio.

“He is.”

“Mr. Henoch will refuse to testify and accordingly will be jailed for contempt.”

At first Tuchio shakes his head and laughs. It takes a second or two before he turns and looks at the FBI agent, a simpering expression on his face like,
Why in the hell would we jail one of our own?

But by then the FBI agent is already burrowed deep in the ear of his compatriot from Washington, talking fast enough that you might swear he was going to chew right through to the ear on the other side.

When Tuchio turns to face the judge again, his head all the way to the back of his neck is the color of a ripe radish. He calls it a fraud. “The court in good conscience cannot go along with such a proposal,” he says. “It would be a sham on the judicial process.”

I ask the judge what his powers are if a witness under subpoena refuses to testify.

“Contempt,” says Quinn. “The witness is in the bucket.”

And if there’s one thing that will put your man in tight with his friends in crime, it’s telling a court to go screw itself and doing time at the county lockup, all for the purpose of protecting his buds.

It is exactly the point that the FBI agent has now drilled into the head of the lawyer sitting next to him on the couch. The feds, having been given a glimpse of the nirvana that a little jail time could do to boost their program with the Posse, are having second thoughts.

When Tuchio tries to get them back on board, the lawyer from Justice tells him that the risks involved for their agent are suddenly looking much worse.

Listening to the two feds as they talk on the couch, I can see it’s obvious they think that telling the D.A. and the court to go to hell sounds like a much better idea.

Tuchio stands there burning. It’s the best deal he’s going to get. If he pushes back, I withdraw the offer on Gross’s rap sheet. The look on his face says it all, every four-letter word you can imagine except the one that he actually speaks.

“Fine. I’ll drop Mr. Henoch from my witness list, on the condition that it is part of a deal on the record so that it’s clear I’m not volunteering this.” This he directs to the two feds sitting on the couch. “That Henoch and his statement are unavailable to either side and that Gross’s prior criminal record is off-limits.”

It’s good by me, but I’m not so sure everybody else is happy.

To get out of the judge’s office, Tuchio has to squeeze through the door glued to the two feds, one talking in each of his ears. By now they have come to appreciate fully the unbridled benefits that could be afforded to a scofflaw witness followed quickly by the judge’s hammer.

The day Harry found Scarborough’s shadowed leather portfolio in the police evidence locker, he also noticed a number of boxes, files, and other materials belonging to the victim that authorities had gathered from Scarborough’s apartment in Washington.

Harry looked at the number of boxes and realized that if they were full, and most of them looked as if they were, the volume of materials
had to exceed by a considerable amount the documents given to us during discovery by the D.A.’s office. Later, of course, Tuchio dropped the mountain of paper on us right at the start of trial, Scarborough’s computer printouts, and for a few days we thought this might account for the difference.

In the interim, however, Harry had sent one of our paralegals back to the evidence locker to check out the boxes. Jennifer Sanchez is young, pretty, and relentless, not necessarily in that order. Ask her to pick up a piece of lint from your carpet and she’ll vacuum your entire house.

What she found was not paper files but rather DVDs, and some older VCR tapes, hundreds of them dumped into twenty-three cardboard boxes and stacked against the partitions of the evidence locker.

Scarborough apparently had a fetish for making and collecting copies of his appearances on television. From some of the labels, it was clear that at some point he’d hired a company that provided this service, taping his appearances and providing copies. The numbering scheme on the labels, a kind of Dewey decimal system, makes us think that Scarborough, or someone he hired, had probably organized these on shelves or in cabinets in his apartment. But when the authorities grabbed them during their search, they indiscriminately dumped them into boxes. Jennifer found scores of blank tapes and DVD disks, brand-new, still in their original cellophane wrappers mixed in with the copies in the evidence boxes.

Tuchio had in fact disclosed to us the existence of these materials on his police property’s list, in a single line: “Boxes of tapes and digital videos (various).” What this meant was that we were free to look at them whenever we wanted. The D.A.’s office didn’t copy them, and the police probably never looked at them. It would take two lifetimes to view them all.

Whether they even bothered to go through them as Jennifer did, just checking out the labels, we may never know. But this morning, as I was dueling with Tuchio over the FBI, Jennifer hit pay dirt.