Shadow of Power (12 page)

“Only lawyer I know doesn’t own a cell phone,” he says.

At the moment my cell phone is in my briefcase.

“My having lost three of them going through security downstairs, the phone company wants my daughter as collateral to get another,” I
tell him. “They tell me the last one I lost is still making phone calls long-distance from Beirut.”

As I close the door, I see the D.A., Bob Tuchio, seated on the couch, as if he were playing hide-and-seek behind the swinging door. “Your cell carrier should cut off services,” he says.

“It’s a two-year plan. They don’t like to lose the business,” I tell him.

He smiles, a dark eminence. Tuchio has eyes like two black olives, and a five o’clock shadow an hour after he shaves. His complexion is something from the heel of the boot in Italy. He is intense in court, but not emotional, at least not so that the unschooled eye would notice.

“Okay, so we wasted twenty minutes,” says Quinn. “I’ll take it out of your opening statement.” He looks at me and winks. “I gather that the two of you know each other?”

“We’ve never been formally introduced,” says Tuchio, “but I know Mr. Madriani by reputation.”

“Then it looks like you’re in trouble.” The judge regards me and smiles.

Tuchio rises from the couch and in a single smooth gesture closes the center button on his suit coat and offers me his hand. We shake.

Tuchio is a shade under six feet, slender, a cipher by way of demeanor. Power suits, this morning a dark blue worsted, flatter his lean frame. The chief deputy district attorney of this county for more than a decade, it is rumored that he is “D.A.-in-waiting,” until his boss retires, which is supposed to be next year. Tuchio’s only weakness may be what he can’t see. He is known unaffectionately behind his back by much of the defense bar as “Bob the Tush,” not so much because of the size of his behind as for its motion when the man gets wound up in court. He has acquired a kind of circular gyration as he speaks, this to offset the movement of his hands. If you cuffed his wrists, it would transform him to a mute. It is said, though I have not seen this, that when he gets up to speed, he can rattle his ass like a washing machine on spin cycle with the load out of balance. Unfortunately for many who have witnessed this, there may be a kind of mesmerizing effect to it, for it usually comes on closing argument just before the opposing counsel’s client goes down for the count. Tuchio has a conviction rate of better than 96 percent. He
hasn’t lost a case in more than five years, though as chief deputy he can pick and choose his shots.

That he has selected Arnsberg to prosecute is not a good sign for our side. Tuchio will be heavily invested in the case, particularly on the eve of his rise to power. The last thing he needs is a loss under the glare of television lights as a prelude to his coronation.

“I thought it would be good if we all sat and talked. Sit down.” Quinn gestures with his hands toward the two client chairs across from his tufted throne on the other side of his massive mahogany desk. This is littered with files, one of which is ours. The judge slides this toward him, opens the cover, and begins to look at notes that he has apparently made for this meeting.

We sit, Tuchio to the right, me to the left.

“I don’t want any misunderstandings when we get to court,” says the judge. What Quinn means when he says
we
should talk is that
he
will do the talking and we will do the listening.

“First order of business,” he says. “I don’t want any gamesmanship. I know that the stakes are high here. A lot of the media is watching. That doesn’t mean a goddamn thing as far as I’m concerned. They already asked for cameras in the courtroom. I already said no.”

Quinn looks at me as if this were a major concession for which he is now free to plant land mines in the courtroom with some roadside bomb for the defense.

“Gag order is in effect, as you both know,” he tells us.

“That’s good, Your Honor, because someone has already violated it,” I tell him.

“What are you talking about?”

I tell him about Smidt outside in his courtroom asking questions about witnesses and theories of the case to which only those who are trying it and their agents are privy.

The judge’s gaze has not even fallen on him, and Tuchio is already in denial mode. “Didn’t come from my office. I issued a memo last week. Anyone violating your order will be fired and prosecuted. And I mean it.”

This is the boilerplate that is issued in every case where the media operatives are digging for dirt. It may as well be printed on little squares of toilet tissue for all the good it does.

“So you can tell us sitting here today that it didn’t come from one of the cops working the case?” I ask.

“You tell me which one,” says Tuchio, “and I’ll nail his ass.”

Now, there’s the rub.

“Do you have a name?” asks the judge.

I look at him and smile. A good lawyer, he knows the answer before he asks the question.

“Maybe we should invite Mr. Smidt to join us,” I tell him. “You could put him under oath and ask him.”

This sets a little crease in the judge’s forehead at the thought of going to war with the media, holding Harvey in contempt for refusing to reveal a source.

“Why? Make him media martyr of the month?” says Quinn. “For what?”

“It’s your gag order,” I tell him.

The judge swallows some pride. “I’ll talk to him later. Privately,” he says.

“Is that off the record?” I ask.

He shoots me a glance to kill.

“Next item,” he says. “Friday morning I want everybody to be up and running, ready to go. Understood?” He glances quickly at Tuchio, then spends a good long time looking at me. “No continuances. The jury is ready to go. Is that understood? Are
you
ready?” He directs this at me.

“One question, Your Honor. Why are we starting on Friday?”

“You have something better to do?”

“Why not Monday?” I say.

“Because my court is available on Friday,” says Quinn.

“Friday’s fine with me,” says Tuchio.

I’m sure it would be. The fact is, I begin to wonder if there isn’t some design in this. Any lawyer I know, given a choice, would deliver his opening statement to the jury as the last order of business before a weekend, leaving them to ponder his every word for two days before confusing them with the evidence.

“So I take it you’ll be ready to go on Friday with the rest of us?” Quinn is once again looking at me.

“Barring any more surprises,” I tell him. “But the fact is, the prosecution goes first.” I deflect the question to Tuchio.

“Oh, we’ll be ready, Your Honor.”

“Good. That’s good. This then leaves the question of the jury,” says Quinn.

Our jury has already been picked and primed, seven women, five men, with six alternates. As in any case of this kind, it is probable that the most I can hope for are a few strong-willed individuals for whom the seed of doubt is always germinating in their minds, or at least easily planted—people who will fight for their convictions or, better yet, who might be easily insulted, digging in their heels if others try to push them. My jury consultant, after shaking her psychic bag of bones over the juror questionnaires and after my having questioned them in the selection process, believes that we may have two who could fit this bill. On the other hand, African Americans are potential anathema for us. We have three on the panel, one retired military, another a janitor from a local school, and last a female investment adviser from one of the big firms downtown. There is no way to keep them off the jury on racial grounds, even though it is a given that Tuchio is likely to play the race card, even if from the sidelines.

“Is there a problem with the jury?” I ask.

“Whether they should be sequestered,” says Quinn.

I had been halfway expecting this. It is clear that Tuchio and the judge have talked about this before my arrival, as the D.A. is already looking over at me for arguments.

“Not as far as I’m concerned, Your Honor. Not at this point at least.”

“I’m not so sure,” says Tuchio. “Letting the jurors go home at night with the paparazzi salivating, following them to their front doors,” he says. “We could easily end up with a costly mistrial. Besides,” he says, “if we’re not going to sequester, we’re likely to need more than six alternates on the panel.”

“Hmm…” This sets the judge to thinking.

“If the court wants more alternates, we should get them,” I say. “But I would strongly oppose any motion to sequester without some showing of cause, a reason in this particular case.”

The argument here may seem strange to the untutored, but it is holy writ that locking a jury up for the duration in hotel rooms with bailiffs to tuck them in at night has devastating consequences for the defense, particularly in a lengthy trial. Jurors come to resent the isolation from family and friends. They begin to see themselves as incarcerated, which in fact they are. They place the blame invariably on the defendant, who should be the one in jail, even though in this case he is. Tuchio may have a legitimate reason for wanting to avoid a mistrial, but he also has an underlying agenda: to subtly poison jurors against the defendant.

“It’s too late for more alternates,” says Quinn. “I’ve already released the jury pool. If we proceed unsequestered, I want it to be understood that we will be running on a very thin thread.” It becomes clear that this is the purpose for this discussion, to put me on notice that the court can pull the trigger at any time. “The first hint of anything inappropriate,” says Quinn, “any untoward communication with a juror, and they’re off to the Hilton. Is that understood?” He looks at me yet again.

I nod.

“Good. Next item,” he says. “Witness lists. I want them finalized and submitted before close of business on Friday.” He looks at both of us for a change.

“Your Honor, until we see all of the People’s experts, we won’t know who we’ll need to counter them.”

“We’ll work that out,” he tells me. “In the meantime I want to see witness lists in pretty much final form by Friday.”

“With some exceptions?” I ask.

“With a few reasonable exceptions,” he says. “And I emphasize the word ‘reasonable.’” He looks down at the sheet in front of him in the open file. “That’s everything on my list,” he says.

“There is one issue,” I say.

He looks up at me as he hadn’t planned on either of us having an agenda.

“There is the matter of the victim’s computer files,” I say. “To date we’ve received only partial material from these. We have reason to believe that there are voluminous materials that the state has not turned over pursuant to our discovery motion.”

Quinn looks at Tuchio. “What about this? I don’t want any delays,” he says.

“Your Honor, we’re doing the best we can. Counsel is right—the requested materials are massive. It appears that only a part of the requested items are in the actual computers. According to my experts, my IT guys, Mr. Scarborough made a habit of moving data from the hard drive of his computers into storage on external hard drives. Thus far we have identified only some of these. We know that there are probably more. Here’s the problem,” he says. “We took out six, eight boxes of materials from his place in Washington, the town house. We have yet to process all of these.”

“Well, get on it,” says Quinn. “You have more people. Put them on it.”

“We have other cases going, Your Honor.”

“Then hire outside help,” says Quinn. “I want these materials in the hands of the defense by next week, understood? No ifs, ands, or buts.”

“We’ll do the best we can,” says Tuchio.

“No, you’ll get it done,” says Quinn.

T
he framers of the Constitution may have been brilliant, but they weren’t perfect.

They lived in another age—lawyers, merchants, and gentlemen farmers—amateur politicians all. For their time the concepts they introduced were radical, but they were not unrestrained. The preamble may have been orchestrated for “We the People,” but the fine print kept the common fingers off the piano keys.

The founders were men of property, in an age when only men who owned property could vote. The concept of common suffrage, to say nothing of women voting, was alien to them, something they would have rebelled against as vigorously as they fought the British Empire.

Campaigning for election to office was an act of personal dishonor.

They could not conceive of their experiment falling into the hands of full-time politicians steered by armies of consultants, forming committees to suck millions in “donations” from those seeking favor from government; permanent officeholders who would wield the levers of power with the partisan ruthlessness of warlords.

A Congress routinely hijacking essential national legislation just to load it with amendments like tumors, hauling pork back to their districts to solidify their death grip on power—this would have been as alien to them as E.T.

When Lincoln sat in Congress for his single term, beginning in
1847, he considered himself lucky to have a desk with a drawer for his private papers and the privilege to borrow a book from time to time from the Library of Congress.

Only the insane of the eighteenth century could foresee that a bleak two lines added to the Constitution a century after its creation, authorizing the collection of a federal income tax, could result in a seventy-year rampage by government to mentally rape its own citizens with millions of pages of totally unintelligible tax laws, rules, regulations, and forms.

Today we have special federal tax courts because the law is so convoluted that ordinary federal judges are presumed too ignorant and unschooled to understand the complexities of laws and forms that every citizen down to the village janitor is required to understand, to obey, and to sign under penalty of perjury and threat of imprisonment.

Nor could it be possible in the Age of Reason to foresee a Social Security system that if run by a private business would result in their arrest, prosecution, and conviction for operating a Ponzi scheme. In the real world, taking invested funds in the form of Social Security taxes, paying current claims, and skimming the rest for other purposes is called embezzlement. When government does it, it is simply called politics. In either case the arithmetic is always the same. When the scheme goes belly-up, its operators, if they’re smart, will be in Brazil, or, in the case of Congress, retired, which is the political equivalent of being in Brazil.

With all of this, the people in what is touted as the greatest democracy on the planet have no effective recourse. They cannot act directly to fix any of the obvious open sores or seeping wounds in their own government, because the founders didn’t trust them with the only effective medicine, the power to amend their own Constitution. That is reserved for the serpent its creators never saw.

Short of revolution, something Jefferson urged take place at least every twenty years, the average citizen is left to pound sand by casting a largely empty vote to replace the devil-in-office with the devil-in-waiting and hope that the caustic nature of power to corrupt can somehow be neutralized.

Praying for the devil to grow a halo, we all plod on, one foot in front of the other, trusting that somehow we will not follow the Soviet Union over the national cliff.

It is little wonder, then, that the founders failed to envision the minuscule procedural crack that allowed the language of slavery to remain visible as a festering sore in the Constitution more than a century after the institution had a stake driven through its heart in the Civil War.

It would have taken a soothsaying of monumental capacity to foresee that Scarborough 150 years later could pick at this scab, the language of slavery, and open it to the point of inducing race riots and the civil unrest that now looms like a battle scene on Broadway out in front of the county courthouse downtown.

Early February, Friday morning, opening day of trial, and I’m being escorted by four burly sheriff’s deputies through the throng of people, a horde I would estimate at more than a thousand as it jams the sidewalks. There are groups of angry protesters hurling insults like mortar rounds from one side of the street across the four broad lanes of traffic to the other side in front of the main entrance to the courthouse.

A huge banner, letters three feet high in black paint, has been unfurled and is now being displayed on the sidewalk in front of the courthouse:

END BLACK SLAVERY

Separate lines of deputies have been deployed along the whole block, all dressed in riot regalia, holding ballistic shields to keep the two warring armies from charging each other and doing battle around the cars and buses that are now stalled in traffic. A few crazies have managed to infiltrate the enemy camp on this side of the street, one of them trying to rip at the banner. Three uniformed cops are busy trying to keep them from being killed, struggling to pull them through the mob back to the ideological safe zone on the other side, where their own band of crazies is located.

I am reminded of the politically sensitive phrase that the city prints on many of its forms in big bold type:

DIVERSITY BRINGS US ALL TOGETHER

They’d better hope not, at least not today, or there’s going to be one hell of a mess in the middle of Broadway.

Deputies at the fringes are confiscating any sign attached to a stick.
Verbal insults are one thing, war clubs another. The sheriff has prepared buses normally used for jail transport so that if things get out of control, these can be rolled into place like a barricade to block the street directly in front of the courthouse. Thus far they’ve avoided using these.

So wild is the melee that Court TV, which wanted to film the trial but failed to get approval from the judge, has abandoned its outdoor perch, a covered enclosure set up on a scaffold near the corner at the intersection. Some in the crowd have now taken hold of the green metal pipes that support the scaffold. They are pushing and pulling them so that the entire structure, cameras included, is shimmying as if in an earthquake.

Many of the demonstrators in front of the courthouse are African American, some of them singing, others shouting. One woman, the veins on her neck protruding like electric wires under the skin, has blown her vocal cords. So hoarse is her voice that despite all the energy coiled in her body I can barely hear or make out her rasping words as I pass her with my escort, barely ten feet away.

As yet no one has taken particular notice of us. There are so many cops on the street that four more with a guy in a suit don’t even register. Lucky for me. If this continues, once my picture gets around and they realize I’m defending Arnsberg, I may need an armored car just to get to court.

The other side of the street looks like Halloween, people in costume, some of them wearing hard hats and white T-shirts with the sleeves rolled to the armpits. They might pass for construction workers on break, except that their clothes look like they just came out of the washer. A small group, maybe six or eight nutcases in starched brown uniforms, all sporting swastikas on their arms, give the cops indignant looks and prance at the curb as if they’re waiting for the second coming of the Führer.

One of them ventures into the street and gives a stiff-armed Nazi salute to the cop in front of him. The deputy returns the greeting by nudging the guy with his shield, pushing him back up onto the sidewalk, where he lands on his ass. A few feet away, Oberführer Number Two tries to get a bullhorn past security. A tug-of-war ensues. The cops end up with the bullhorn, and the field marshal ends up on the ground, his hands behind his back, being prepared for nylon handcuffs.

Surrounded by the escort, I hoof it quickly to the steps at the main entrance when something flies past my head. It hits one of the cops in the back. A partially crushed and fizzing can of soda shoots bubbles and jets of tarry liquid as it spins like a bottle rocket on the sidewalk at his feet. The officer is angry. Even with the armored vest he’s wearing under his shirt, he’ll have a fair-size bruise on his back by tonight. We stop momentarily while they scan the crowd, trying to identify who threw it. A few seconds and they give up. Even if they could identify the pitcher, pulling him out of an angry mob could turn what is a budding riot into a rampage. We make it to the front door.

Inside, the decibel level drops a hundred points. My escort takes a few seconds to regroup. One of them wipes some of the Coke off of his colleague’s back with a handkerchief, and they head back out.

On the ground floor of the courthouse, security is tight. Nobody gets in without going through the metal detector. Every briefcase and purse is scanned on the conveyor belt. Today there are uniformed officers questioning people as to their business, their purpose in the courthouse. If they’re loitering to see the action, they’re sent outside. By now every chair in the courtroom upstairs will be filled.

Anything, even a loud voice inside the lobby, will draw uniforms before you can move. I’ve sent boxes with all our trial documents and other materials ahead of me. Two young staffers hired part-time were assigned by Harry to deliver them to the courtroom early in the morning, before the storm troopers and the rest of the mob outside got out of bed.

It takes a couple of minutes to get my briefcase with the notebook computer through security. Before I can retrieve everything at the other side of the scanner, two reporters, one of them with a camera crew, jump me. The camera’s lights catch me in their glow.

“Does your client know what’s going on outside?”

“I don’t know. I haven’t seen my client this morning.” I’m walking, a good pace to get to the elevator, dodging people milling in the lobby.

Somehow the reporter with the camera is keeping up.

“What is he feeling?”

“Is he feeling any remorse?”

“Remorse for what?”

“He is charged with murder, isn’t he?” The one reporter has his microphone in my face, camera aimed at me from over his shoulder as they sidle along, three of us like a human crab.

“Mr. Arnsberg has pleaded not guilty and is therefore presumed innocent. Why should an innocent man have feelings of remorse?”

“What about the evidence, his prints at the scene?” The guy with the camera is goading, pushing for some flare, a show of anger–cum–sound bite.

I finally get past him.

“The public doesn’t buy his plea.” He says this to my back as I head to the elevator.

“Then the public has a serious problem with our system of justice. Maybe you should go and talk to them about that.”

“Does your client know any of the people in Nazi uniforms across the street?”

I ignore them and keep walking.

“Does he have a Nazi uniform?”

If he does, I’m hoping that Harry got to it before the cops and had the foresight to burn it. So far we haven’t seen any pictures produced by the prosecution or otherwise showing Arnsberg in any uniform. But I don’t tell the reporters this. There’s always room for surprises. I keep moving toward the elevator, taking long, fast strides.

The cameraman, his lights blazing, trails me, capturing shots from behind. I can feel the heat of the lights on my back all the way to the elevator doors.
See the defense lawyer running away. Details at eleven.
I step inside and push the button—sanctuary. Upstairs is off-limits to cameras. The worst they can do now is sketch me.

Inside the courtroom the scene is enough to make the owner of the local cineplex green with envy. The center aisle is jammed, people trying to find empty seats. Uniformed deputies are everywhere, against the walls, mixed in with the mob.

One of the bailiffs is confiscating black baseball caps with white stitching above the bill reading
END SLAVERY
. These are being worn by a group of people who want to sit together. The First Amendment may
still be in effect, but not in Plato Quinn’s courtroom. If you want to send a message to the jury, you’re going to have to use invisible ink.

A muscle of a deputy, beef on the hoof, is posted at the gate to the bar railing, making sure nobody gets up near the bench or back behind the scenes. Rudalgo Ruiz, Quinn’s clerk, keeps a nervous eye on the crowd as he shuffles papers at his table in front of the judge’s bench.

Tuchio is already here, seated at the counsel table to the right nearest the jury box, privilege of the prosecution. Next to him is one of the homicide detectives, Brant Detrick, the man who worked up the case against Arnsberg. Tall and blond, Detrick is a veteran of homicide. With almost twenty years on the force, he’s the kind of witness that defense lawyers hate. You could turn him upside down and shake him, and Detrick would show not the slightest bias or personal stake in the outcome of the trial. “Just doing my job,” while he quietly hangs your client. If anything, he has gotten more difficult over the years. Now that he’s getting closer to retirement, the touch of gray at the temple and the wrinkles where his glasses crimp the bridge of his nose give him a kind of professorial look. At the far end of Tuchio’s table is a woman I have not seen before, one of his assistants, a female prosecutor, African American. Only the blind would not be aware of the racial elements in this case. It’s more difficult for jurors to ignore this issue with a minority sitting at the counsel table.

At the far end of the defense table, I see the large, hulking form of Herman Diggs, his bald black head glowing like a beacon under the courtroom’s canister lights. Herman is our investigator. A human mountain originally from Detroit, Herman backed into his current vocation after a promising football career ended with a blown knee. We found each other in Mexico, on a case that grew ugly with violence. Herman and I came up realizing that we were the only two in sight who could trust each other. With Herman at my table, Tuchio would no doubt accuse me of playing the same card.