Shadow of Power (31 page)

A
s we head off to court Tuesday morning, Harry and I are plagued by the thought that some sick mind reading of the details of the trial in the newspapers or online may have put together its own package of manufactured evidence and slid it under our door.

The world is full of such sickness, armies of miscreants giving birth to computer viruses and laying waste to other people’s lives for their own amusement. If they have, the crime lab and our own expert will know, before the morning is out.

Seven
A.M.
, and we are with Quinn in chambers, behind closed doors.

Tuchio is already wading in. Having been briefed by his forensics people, who are still laboring over the bloodied Jefferson Letter and the blond hairs in the bag, the prosecutor is busy working up options, trying to stretch the sidelines for some open-field running, if it turns out that the evidence is real.

New evidence, so he demands the right to reopen his case. Quinn assures him that if the evidence is verified, he will entertain the motion. Fairness requires this.

“It could be nothing, a sham, but if it turns out to be the item that was taken from the scene, it doesn’t change a thing,” says Tuchio. “The
defendant himself could have taken it at the time of the murder.” He pauses to look at Harry and me, just for a second. “Of course, this could explain how it showed up so conveniently in his lawyer’s office at the last minute.”

“In case you forgot, our client is in jail,” says Harry. “He would need long arms to slip it under our door.”

“Use your imagination,” says Tuchio. “A confederate, a friend, a family member—or maybe it was already there.”

What he means is, in our office. He is suggesting that Harry and I have had this, the bloodied Jefferson Letter, for some time, presumably given to us by Carl, or one of his friends or a family member, and held it for just such an occasion, so that it could be mysteriously delivered to ourselves and used in just this way.

This is the fanatic divide between prosecutors and the criminal defense bar. So ingrained is it that I am barely annoyed by the innuendo. Any prosecutor in the same situation who didn’t at least make the suggestion, you would have to assume had the flu and a sufficiently high fever to affect his normal instincts.

“And what about the blond hairs in the little Ziploc bag?” I ask him.

“They may be nothing,” says Tuchio.

“But what if they are?”

Tuchio is biting his lip on this one. We are both thinking the same thing, that the loose blond hairs that arrived with the letter may match the ones found by police forensics techs on the bathroom floor of Scarborough’s hotel room. If not, and unless there is some sick brain teaser out there, why were they included with the letter?

“If there’s one thing we know with certainty, it’s that Arnsberg isn’t blond,” says Harry.

Tuchio knows that if the hairs turn out to be a match, the prosecution will find itself waving off ghosts in its closing argument. The specter that some other dude did it will not only be walking in front of the jury, this phantom may be doing the jig.

Tuchio turns to Judge Quinn. The judge thus far has been leaning back in his chair, counting ceiling tiles, taking in all the various arguments and innuendos.

“It could be,” says Tuchio, “if those hairs, the ones in the plastic bag, prove a match, then it’s possible there could have been two assailants in the hotel room that day.”

I was wondering how long it would take him to arrive at this.

The prosecutor pushes this thought out in front of the judge to see if he might start a test drive for a new theory—that is, if the wheels don’t fall off—one that might carry him to the end of his case.

“The only problem, Mr. Tuchio, is that I don’t remember you talking about any assailants other than the defendant in your opening statement, or for that matter presenting any evidence in that direction,” says Quinn.

Tuchio could reopen his case and try to bring some in, but the fact that this evidence would be at such stark odds with what he has already presented does not allow this as a real and viable option.

“That’s not entirely true, Your Honor.” He argues that there’s evidence of possible conspiracy in the state’s case, or at least that efforts were made by the defendant to enlist the assistance of others in the commission of violence against Scarborough.

Tuchio reminds the judge of the testimony from Charlie Gross, about the bravado by Carl in the bar about kidnapping Scarborough from the hotel, and the fact that Carl’s words, according to the witness, were all cast in the plural—that “we” could kidnap the victim, that “we” could haul him out of the hotel, that “we” could take him out into the desert and shoot him.

Quinn is suddenly sitting forward in his chair. “I hope you’re not suggesting to this court that your own witness is a co-conspirator to the crime?”

Tuchio had better hope not, because if he is, he has just rung the bell for a mistrial, in which case we can all go home, including Carl, at least until Tuchio charges him again.

“No, no, not at all.” Tuchio’s hand is up like a traffic cop’s. “Not at all. I’m not saying that. What I am saying is that there
is
evidence already in the state’s case that the defendant himself spoke in ways that might lead a reasonable person to conclude that others may have joined him in the commission of the crime. That’s all I’m saying.”

This is the seam, as narrow as it is, that Tuchio wants to crawl through.

You can bet that this sudden parsing of the language off the tripping tongue of Charlie Gross is not something that has sprung from the cor
tex of Tuchio’s nimble mind as we sit here. He has probably been up all night praying that the letter and the hairs in the envelope are a hoax, while periodically measuring the depth of the crater he’s in if they’re not. He is testing the judge to see if Quinn will go for it, if the court will allow him to argue on close, despite the state’s earlier theory that Carl acted alone, that there may have been two perpetrators, Carl and a blond person whom apparently they have not been able to identify.

He explains to the judge that this could make sense—that is, if he can just pound all the little parts that are sticking out into place, so that they fit into his own case, the goal being the continued march toward the death house for Carl.

“Don’t you see, Your Honor? The defendant’s blond confederate was probably the one who slipped the envelope under their office door,” he says.

This is, of course, more polite than suggesting that we opened the door and that Blondie handed it to us, along with a lengthy explanation of what it was.

But as Quinn says, “All this”—Tuchio’s sudden sighting of a second killer—“is strangely missing not only from your opening statement before the jury but from most of the evidence so far presented by any of your witnesses.”

The prosecutor pounces on a word. “I would agree that it is missing from
most
of our evidence,” says Tuchio. “But not from all of it.”

What he wants to know is whether the judge will allow him to venture into the realm of multiple killers before the jury in his closing argument.

Harry and I are looking at each other wondering if Tuchio has been smoking something. But given the ways in which he has burned us so far, I’m not willing to take any more bets.

“Fine, you want to argue on that narrow basis, be my guest,” says Quinn.

Tuchio has his answer.

Just before noon, with the jury in a holding pattern, we get the answer regarding the Jefferson Letter. Forensics experts, employees of the po
lice crime lab, together with our own expert, agree. There is no question that this letter, the four pages from the manila envelope, is the item that was resting on the shadowed leather portfolio at the moment Scarborough was killed.

We end up in Quinn’s chambers again. He wants to know if, based on this information, Tuchio wants to reopen his case for the prosecution.

All morning the prosecutor has been closeted with his assistant, Janice Harmen, and Detrick, the lead homicide detective.

The judge seems surprised when Tuchio says no, they’re prepared to go on as is.

Quinn asks me if I’m ready to present my opening statement. I tell him that I’m not prepared to give the jury the full outline of our case until the results from the comparison of hair samples comes back from the lab. This is not expected until later in the afternoon.

The judge excuses the jury and tells me to be ready with my opening statement first thing in the morning.

Just after four o’clock in the afternoon, Harry and I are secluded in the conference room at the office going over notes to make sure that I hit all the high points in my opening, when the news arrives by telephone.

It is Robert Stepro, our expert on hair and blood-spatter evidence. Harry puts him on the speakerphone.

Stepro tells us that when Dewey Prichert, the state’s expert on hair and fiber, opened the tiny plastic bag from the manila envelope at the police crime lab, he extracted and counted five blond hairs. Microscopic examination revealed that all five had been cleanly clipped from their owner’s head, probably with a pair of scissors. All five samples from the baggie belong to the same person.

And then the clincher, based on examination and findings, by both Prichert and Stepro: The characteristics of the five blond hair samples from the baggie are a positive match to the two blond hairs found lying free, under the toe kick in the bathroom of Scarborough’s hotel room. In addition, they match the one bloodstained blond strand of hair
lifted from the crevice between the cushions in the chair where Scarborough was murdered.

It is just shy of 9:20 Wednesday morning when I find myself standing in front of the jury box in Plato Quinn’s crowded courtroom. Every seat is filled, and there is a line outside in the hallway that stretches beyond the elevator at the far end of the corridor.

“Ladies and gentlemen of the jury. My name is Paul Madriani. As you already know, my partner, Harry Hinds, and I represent the defendant, Carl Arnsberg.” I point to Harry, who nods and smiles, and then to Carl, who nods and waves one hand.

“You have heard and seen a good deal of evidence to this point in the trial. But you have not heard or seen all the evidence in this case. When all the evidence is before you, you will be instructed by the judge regarding the law that you must apply in evaluating that evidence.

“Among the items of instruction that you will be given by the judge are two fundamental and important rules. First is that the defendant is to be presumed innocent until and unless his guilt is established by the prosecution, by Mr. Tuchio, based on proof beyond a reasonable doubt.

“The second fundamental rule is that the defendant in this case bears no burden of proof. He is not required by law to offer or to produce a single item of evidence establishing his own innocence. To the contrary, his innocence is fixed by law, established by law unless and until the state, the prosecutor”—I point at Tuchio with my arm fully extended—“can overturn the presumption of innocence by carrying his burden, proof beyond a reasonable doubt.

“I could, if I wished, sit down at this moment and rest our case. And I could argue that my client should be freed, acquitted, found not guilty. But I am not going to do that, because we have evidence, considerable evidence—some of you might call it abundant evidence—evidence that you have not seen, that will not only establish reasonable doubt in your minds as to the defendant’s guilt, but evidence that will allow you to see the shadowed hand of the true perpetrator of this crime.”

I move laterally in front of the jury box now, the six alternates seated outside and just in front of it.

“So what is the defendant’s case, his case in his own defense?”

I begin to outline it for them.

I start with the rush to judgment, the fact that there has already been considerable evidence and that there will be more evidence that the police conducted a shoddy investigation. I remind them that they have already heard evidence from Detective Detrick, the lead homicide detective, that from the start the police pursued no suspects other than the defendant. I remind them that the police fell on Carl the moment they found his fingerprints and shoe impressions at the scene, this despite the fact that the defendant, along with other hotel employees, had a business reason for being in or near the vicinity of the victim’s room.

“Objection, that last is argument,” says Tuchio.

“Overruled,” says the judge. “The jury can decide.”

I turn back to the jury. Now I must tread carefully. You would think, with the Jefferson Letter and the samples of hair contained in the manila envelope, that this would be a slam dunk. But it is not. Unless this is carefully presented, gingerly handled, the outlining of this evidence, the convenient fashion in which it landed in our office may produce the very result hoped for by Tuchio—skepticism and the feeling among jurors that they are being manipulated, that Carl or someone he knew delivered this to our office.

So I back into it and tread lightly.

“You have already seen and heard evidence by the state’s expert, Mr. Prichert, that investigators and police crime-lab technicians failed to discover that something was missing, taken from the victim’s hotel room in the minutes following Mr. Scarborough’s murder.”

I remind them of the shadowed leather portfolio, shaded in the victim’s blood, and the item missing from the top of it, and I tell them that this is further evidence of a shoddy investigation.

“Moreover,” I tell them, “we will produce evidence explaining to you, showing you, what that mysterious missing item was. Additionally, we will produce evidence that the item in question was not found by police in the possession of the defendant following his arrest, but that it was found elsewhere, during the time that this trial has been ongoing.
And, ladies and gentlemen, I will warn you that the contents of this item will shock you.”

Now I have their attention, which for the moment is all I want.