Shadow of Power (27 page)

“Yes, he did.”

“And what was that?”

“At one point he was talking about how he had access. How he could get into rooms at the hotel real easy because he could get a master key.”

Carl’s sitting next to me, shaking his head, whispering, “I never said that.”

“And then he said, because he could get right up to him real easy, he said it would be real easy to hammer ’im.”

Out in the audience there is murmuring.
What did he say?

“Were those his exact words?” asks Tuchio. “That he could hammer him?”

“That’s what he said.”

“That’s a lie!” Carl says it out loud now, and there is an eruption of voices in the audience. Two of the reporters in the front row break for the door at the back of the room.

Quinn slaps his gavel. “Keep your client quiet,” he tells me. Carl is pulling on my arm. He wants to tell me it’s a lie. But I already know it.

“Officer, stop those people right now,” says the judge. The two reporters stop dead in their tracks halfway up the main aisle. “Sit down,” says the judge. “You can file your stories during the break.”

Before Quinn can even put down his gavel, Tuchio turns to me and says, “Your witness.”

Q
uinn takes the noon break. I ask for a meeting in chambers, and all of us, the lawyers and the judge, end up hovering over his desk in the back.

“The man’s lying.” Harry’s had a bellyful of this. He’s leaning with both hands against the edge of the judge’s desk, bearing down on Quinn, who is seated in his padded black leather chair. “Look at the transcript of the wire,” says Harry. “There’s not a word in there about any of this, a master key or anything about hammering the victim.”

“You’ve got a good point, except for one thing,” says Quinn. “The wire transcript and the witness who was attached to them are not in evidence. As I recall, that was based on an agreement made right here in chambers by your partner, Mr. Madriani.”

“It’s one thing to keep evidence out,” says Harry. “It’s another to suborn perjury.”

“I resent that,” says Tuchio.

“Resent it all you want,” says Harry. “How do you explain the fact that these inventions by your witness don’t appear on the wire transcript?”

“Very easily,” says Tuchio. “The agent, aka Mr. Henoch, who was wearing the wire, was not with Gross and your client during the entire time of their conversation at the bar. It seems he stepped out twice—once to go to the john and again to make a telephone call from his cell
phone outside, because he couldn’t get reception in the bar. At least that’s what he told us.”

“And unfortunately, we can’t put him on the stand to ask him,” says Harry.

“That’s not my fault,” says Tuchio. He smiles.

Harry glances at the judge, who gives him a shrug.

“And I should remind you,” says Tuchio, looking at me now, “that I never asked the witness whether anybody else was present during the conversation at the Del Rio, and you better not either. If the wire transcript and the agent are off-limits, that means as far as the jury is concerned he doesn’t exist. Am I right, Your Honor?”

Quinn nods. “That’s correct.”

My turn in the tumbler with Gross on cross-examination reveals just how well Tuchio has trained him. I ask him how many times he has met with the prosecutor, his assistants, or the police to discuss his testimony before appearing here today.

“Quite a few times,” he says.

“How many is quite a few?”

“A lot,” he says. He can’t remember the number of times or the precise duration or location of all these meetings, but they were held at various places, including a hotel downtown where he admits that the state picked up the tab for four nights immediately preceding his testimony here.

I ask him why they put him up in the hotel.

“It was for security.” He smiles and just lays it out there like a land mine waiting for me to step on it.

If I probe further, what he’ll say is that he’s putting his life on the line and that he’s in danger from his former friends in the Posse because of his testimony today, the inference being, why would a man put his life in jeopardy just to come here and lie?

I ask him if he has any criminal charges pending against him in this state or any other state at the federal level or anywhere in the universe, now or at any time since the police started talking to him.

He says, “No.”

I ask him whether the police or the prosecutor have offered him anything in return for his testimony.

Again, his answer is no. To listen to him, Gross is just your average, ordinary citizen willing to take a bullet in order to tell the truth.

“Have they offered to put you in any witness-protection program following your testimony here?”

“You mean the police? No,” he says.

“Or any other level of government, including the federal government?” I ask.

He doesn’t answer. Instead his eyes make a beeline for Tuchio’s table.

“Bench conference,” says Tuchio.

Before we even get to the side of the bench, it’s clear what has happened. The feds have rolled Gross up in their investigation and eaten him like an enchilada. They won’t need any pending criminal charges to cut a deal and gain cooperation. And because there were no charges pending, Gross wouldn’t even have a lawyer. For the man who extended a friendly hand and invited the feds to join the Posse party, a few months in the club for Agent Henoch and a peek at his badge would turn Gross into jelly.

As soon as the rest of the Aryan world found out, they would chain Gross, tasseled loafers and all, to the back of one of their choppers and drag him between here and Alamogordo a few hundred times, just to make sure he had no additional handwritten notes on other body parts.

At the side of the bench, a smiling Tuchio explains to the judge that while the federal government has not in fact made any formal offer of protection to Gross, they have discussed the possibility of such an offer in the future.

Of course they have, just as soon as they squeeze every seed and all the pulp out of him. In the meantime they’ll have him tucked into a cave complex somewhere on the other side of the moon, reminding him every few seconds of just how dangerous the world is. No wonder he’s dried out and off drugs. In such an environment, there would be no need for a prosecutor or the cops to suggest anything by way of invention regarding Gross’s testimony. The thought of being turned into an asphalt sled tends to make the mind not only cooperative but highly creative. A few newspaper clippings about the case, the evidence at hand, and rumors of what’s to come and Gross could fill in the blanks.
After all, you always want to keep the people who are keeping you alive happy.

Tuchio tells the court that any additional questioning along this line will compel the witness to disclose the existence of Agent Henoch and the government’s undercover investigation. Quinn agrees. This is out of bounds, and I find myself back in front of the witness exploring other areas of discussion.

These quickly dry up. Under questioning, Gross admits that he is one of the founding members of the Posse, but as he said earlier, this is all behind him.

He concedes that Carl was not formally a member of the Aryan Posse. But then, as if to take this back with the other hand, he adds that the defendant was called on several occasions and invited to attend Posse events.

“Whenever he was invited, he always seemed to show up at these events. And he enjoyed himself,” says Gross.

If I go any further along this line, I will invite Tuchio on redirect to get into these outings and to explore whether perhaps the Posse was into late-night cross burnings and hooded gatherings. Tuchio would then tell the jury that this would explain the nature of the rage visited on Scarborough’s body.

So I turn to the only thing left that is available, Gross’s invention on the stand.

“Mr. Gross, let me ask you a question. Haven’t you ever heard people use the phrase ‘I’ll hammer him’ or ‘I’ll hammer them’ as a figure of speech, something someone might say in a kind of macho way?”

“No.”

“Seriously? You’ve never heard it used like that?”

He shakes his head.

“You have to answer out loud,” says the judge.

“No. I already told him.”

“Come on, Mr. Gross, surely you’ve been around enough bars that you’ve heard people use that term before?”

“I don’t think so,” he says. “Not till I heard your client say it.”

“Have you ever watched a baseball game, Mr. Gross?”

“Yeah.”

“Have you ever heard an announcer say after a home run, ‘He really hammered that ball’?”

“I don’t know. If I heard it, I don’t remember it,” he says. Gross isn’t going to give an inch on this.

“Well, let me ask you then, have you ever heard anyone say, ‘I’m gonna nail him’?”

“Oh, I’ve heard that,” he says.

“Well then, let me ask you, when you heard that ‘I’m gonna nail him,’ did you really think that the person who said it was actually going to go out and get a nail and nail it or drive it into the person he was talking about?”

“Probably not,” he says. “But I never heard anybody say ‘I’m gonna hammer ’im’ before I heard him say it.”

“Your Honor, may the record reflect that the witness is referring to the defendant?” says Tuchio.

“So ordered,” says the judge.

“Since you watch baseball—You do, don’t you?”

“Sometimes,” he says. “Not very often.”

“I suppose it is pretty hard to balance that forty-inch screen on your motorcycle when you’re out there riding with the Aryan Posse, isn’t it?”

“Objection,” says Tuchio.

“It’s a fair question, Your Honor.”

Quinn smiles. “Overruled. You can answer the question.”

“I’ve never done that,” says Gross.

“When you were a kid, when you were growing up, I assume you watched baseball then, maybe even played it a little?”

“Then I did, yeah.”

“Good. Then you must remember a player—because he was big-time, very famous, well known, a major home-run hitter. In fact, he held the record for most career home runs for many years. A player named Hank Aaron?”

“Yeah.”

“Well then, you must remember his nickname?”

“No.”

“You don’t remember Hammerin’ Hank Aaron?”

He looks at me. “Yeah, but he was hittin’ baseballs, not heads,” he says.

“Move to strike, Your Honor.”

“Strike the witness’s last statement,” says Quinn. “The jury will disregard it.”

“Your Honor, we have no further use for this witness.” I turn and start back toward my chair.

“Mr. Tuchio, any redirect?” says the judge.

“No, Your Honor.”

“The witness is excused,” says Quinn. “Then we can either think about a break, or perhaps if it’s short, you can call your next witness.”

“Your Honor, the people have no further witnesses. The state rests its case.”

With Tuchio’s words my knees nearly buckle under me as I’m heading toward the table. The look on Harry’s face matches my own—thinly veiled terror. Wednesday, not even the end of the day, a week early, and Tuchio wraps his case. Quinn will expect my opening statement to the jury in the morning, outlining our evidence, our theory, and what we intend to prove. Without some way to talk about the shadowed leather and the missing letter, we have no case.

In the judge’s chambers, we argue tooth and nail, asking Quinn, begging him for time.

“Mr. Madriani.” Quinn is holding up both hands, palms out. “I warned everyone at the beginning of trial, no delays, no continuances.”

We make an offer of proof, I tell him about the letter and what we know, the information from Trisha Scott and Bonguard, Scarborough’s agent.

Quinn remembers seeing the videotape of Bonguard’s appearance on Leno. He has vague recollections regarding the mention of some historic letter, but nothing more.

Tuchio is sitting on the couch against the wall, relaxed, taking the whole thing in, watching Harry and me bleed all over the judge’s desk. If he is surprised by any of the information regarding the missing Jefferson Letter, you wouldn’t know it by looking at him. He doesn’t even look up when I mention the name Arthur Ginnis, though Quinn does a double take.

“You’re talking about
the
Justice Ginnis?” he says.

“Your Honor,” Harry wades in, “if you would just…if you would take just a couple of minutes to look at something.” Harry is feeling around in his briefcase.

“I have no time for this,” says Quinn.

Harry dances around the desk toward the judge’s desktop computer behind his chair.

Quinn is waving him off. “It’s not going to do you any good.”

I hand him a stapled sheaf of papers a quarter inch thick.

“What’s this?”

“That’s a transcript,” I tell him.

While he is talking to me, Harry is loading the DVD into the judge’s computer.

“A transcript of what?” Quinn looks at the pages now stuck in his hand.

“It’s a transcript, Your Honor, verbatim. The audio on what you’re about to see is not very good. But that”—Harry points to the stapled pages—“is word for word.”

“Word for word of what?” asks the judge again.

“This.” As Harry says it, the judge swings around in his chair to face the computer monitor.

“Where did you get that?” This is the first comment from Tuchio since we’ve entered the judge’s chambers.

That Tuchio by now would have seen the video of Ginnis and Scarborough played out over the table in the restaurant comes as no surprise. The evidence clerk would have made sure that a copy of the DVD was sent to his office the moment Jennifer left the property room. Unless I miss my bet, it is the reason that Tuchio wrapped his case and dropped the ball into our court so early. He knows there is something out there. He is gambling that we haven’t had time to find it. And as bets go, this is not a long shot. What surprises Tuchio is the transcript. There’s no way we could have sent the disk out to a lab and gotten a transcript back in the few days since Jennifer found it. For the moment I ignore his question.

For all of his hesitancy, Quinn is now turned in his chair with his back to us and seems riveted by the video the instant the familiar face appears on the screen. At first he tries to listen, and then he starts reading, turning pages.

“Your Honor, I’ve seen the video. It’s meaningless.” Tuchio is trying to draw Quinn’s attention away from the screen. “You can’t even understand what they’re saying. Some pieces of paper,” he says. “For all we know, it could be a grocery list.”

“Be quiet,” says Quinn.

If there is any group in society that is stratified, rigid, and tight, it is the American judiciary. Judges are ever conscious of those above and below them. The pecking order comes with the robe. If you want to catch a judge’s attention, show him someone higher on the food chain, in what appears to be, what may be, a compromising situation. It is human nature. He may not act, he may never say a word, but you can bet he’ll look.

Twenty-six minutes later, the computer monitor flickers. The video ends. When the judge finally swings around in his chair, it is not with the kind of vigor and dispatch you might expect if he were going to dismiss us outright. The chair turns slowly, like the grinding wheels of the master it serves. I get the first glimmer that maybe we’ve bought some time.