Shadow of Power (35 page)

Just like that, we’re back out. Tuchio is one of the craftiest lawyers I’ve ever met. We didn’t deliver the right witness to him this morning, so he baited us, laid inferences that we were compelled to refute so that he could get Herman in here on the stand. I know where he’s going, and there’s nothing I can do about it.

“Where was I? Oh, yes. You stated that you don’t believe that Mr. Arnsberg would have anything to do with putting that envelope under your office door. Is that correct?”

“That’s right.”

“What is that opinion based on? Your considerable opinion of Mr. Arnsberg?”

“You get to know someone. You talk to them. You generally get a feel for them.”

“Intuition?” says Tuchio.

“If you want to call it that.”

“Let me ask you, how well do you know Carl Arnsberg?”

“I don’t know. I’ve known him for some months now.”

“Have you ever gone to his house for dinner?”

Herman looks at him and smiles. “He’s been in jail since I met him. You know that.”

“Of course. Have you ever been to his parents’ house for dinner?”

Tuchio plays the racial divide.

“Can’t say as I have.”

“Have you met his parents?”

“I’ve talked to Carl’s father. I don’t think I’ve ever met his mother.”

“Have you ever met any of Carl’s friends, his associates?” Tuchio smiles as he says this.

You can see where he is taking it, and there are a dozen intersecting avenues once he gets there. Set Herman up and ask him about the Posse, Carl’s buddies. Oh, and by the way, what do you think they might do to you if they got you out on the reserve alone? If that doesn’t get the witness’s juices flowing, Tuchio will trout out the “traitor to your race” theme.

“I don’t think I ever met any of his friends,” says Herman.

“So, during the course of your investigation, your work on this case—You have done work on this case?”

“Some,” says Herman.

“During the course of that work, you never had occasion to interview any of the friends or associates of the defendant?”

By now Herman has seen it and scoped out the terrain.

“You’re talking about the Aryan Posse?” He deals with it in the way Herman deals with everything, directly. “And you want to know why the firm didn’t send an African American investigator out to interview the members of the organization?”

“It was on my mind,” says Tuchio. But this is not exactly the way he would have approached it.

“Well, first off, your question assumes that these are Carl’s friends, and to be honest, I don’t know that.”

“We’ll get to that later,” says Tuchio. “For the moment let’s just stick to the question of why your firm didn’t send you out to the reserve, to interview members of the Aryan Posse? If they weren’t his friends, they certainly
knew
your client.”

This is what Tuchio has wanted to get at all day.

“Well, it ain’t rocket science,” says Herman. “Some people might think that if I went out there, I might not come back.”

Full-out laughter from the jury box. Belly laughs from two of the bailiffs.

“So the thought was that if you went out there, harm might come to you.”

“No, you got it wrong,” says Herman. “Harm never comes to you unless you go looking for it.”

This of course is the answer to the prosecutor’s question, but Tuchio doesn’t like it.

“Still, you just said that if you went out there, there was a chance you might not come back?”

“There’s always the chance, but there’s one thing you can be sure of.”

“What’s that?” says Tuchio.

“If I didn’t come back, it wasn’t ’cuz I joined up,” says Herman.

More laughter from the box. Some of the deputies are turning toward the walls they’re laughing so hard.

Tuchio is getting tired of Herman’s one-liners.

So he tries to go frontal with him.

“Let’s cut to the chase. Let’s make it clear for the jury,” he says. “The reason your firm didn’t want to send you, an African American, out to the reserve to talk with the Aryan Posse was that they knew it wasn’t safe. Isn’t that a fact?”

“I thought that’s what I just said.”

“So those are dangerous people as far as you’re concerned? The Aryan Posse?”

“Let me put it this way—”

“No. No. Just answer the question. Yes or no,” says Tuchio.

“That kind of rigid attitude will give you ulcers,” says Herman.

“Don’t worry about my ulcers, just answer the question,” says Tuchio.

“But I do worry,” says Herman. “People like you get ulcers and screw up, and then people like me get sent out to the Aryan reserve undercover.”

More laughter. Two of the deputies out in the audience, faces red as beets, are laughing their way toward a coronary.

“That doesn’t answer my question,” says Tuchio.

No, but the jurors are rolling around like bowling balls in the box. There’s nothing that can kill a serious prosecution faster than laughter. Herman is loose on the stand, and Tuchio is starting to feel like he’s center stage at Comedy Club Central.

“The Aryan Posse, are they dangerous people? Yes or no?”

“I can’t answer that question.”

“Yes or no?” says Tuchio.

“I’m not gonna answer the question yes or no.” Herman sits in the chair, dwarfing it, his arms folded, and his lips clenched like those of a third-grader refusing to eat his carrots, all 285 pounds of him.

“Answer the question,” says Tuchio.

“You want an answer, I’ll give you an answer. I just can’t answer it yes or no. You don’t want an answer, I’ll go home. Either way is fine by me,” says Herman.

“Your Honor, I’d ask that the court direct the witness to answer the question,” says Tuchio.

“He’s offering to answer the question, Your Honor. Counsel won’t let him,” I say.

“Let the witness answer the question,” says Quinn.

“Answer it!” says Tuchio.

“I don’t know whether the Aryan Posse is dangerous or not. How can I say that everybody, just because they belong to a group, is dangerous or not dangerous? The reason I wasn’t sent out there wasn’t necessarily that they were dangerous—though they might be, I don’t know—but the reason was because the purpose of an investigation is to get information. What do you think those people are gonna tell me when I get out there on the white man’s reservation? You think they’re gonna open their souls and tell me their secrets? You believe that, then you’re no cynic,” says Herman. “You gotta either be terminally stupid or the reincarnation of Mahatma Gandhi.”

This brings the roof down around Tuchio’s ears. Even the judge is laughing.

Tuchio clears his throat, looks around a little, and waits for the laughter to die, but it doesn’t. He looks at Herman and considers whether there might be another tack to take. Finally he just shakes his head.

“No further questions.” You can barely hear it as he walks back to the counsel table.

W
hen Harry and I arrived at the courthouse just after eight in the morning, groups were already starting to form outside. The carnival atmosphere was gone, driven off by tension in the air, like an approaching army, a sense of siege, a feeling that the moment had arrived.

Even with the secrecy imposed by the judge’s guillotine, Plato Quinn’s gag order looming over all our heads, the press has now punctured the seal. Fragments of information concerning the infamous letter are beginning to surface, stories running on cable news and the networks.

By the time we get to the courtroom, Ruiz, the clerk, is busy waving all the lawyers down the hall toward the judge’s chambers. When we get there, Quinn is standing in the middle of the room leaning against the front edge of his desk, watching the television. He puts a finger to his lips to keep us quiet as we file in.

It is one of the cable channels. The reporter holding the microphone
is staring intently into the camera as he stands in front of the Capitol building in Washington.

They cut back to the studio.

With this last little bit, Quinn looks over at me, a mass of wrinkled eyebrows.

I’m having the same thought, wondering if perhaps the video of Scarborough and Ginnis over the table and Teddy Nons’s transcript of their conversation are all just part of a bad dream.

They switch to another story, and Quinn turns off the set.

“Close the door,” he says.

Five of us are in the room. Tuchio and Harmen, his assistant. Harry, myself, and Quinn.

“First question,” says Quinn, “is who leaked the information? Unless somebody raises a hand in the next second or so, I am going to assume that it was nobody in this room.” He waits for a few beats, looks at each of us and says, “At least
that’s
good news.

“Next order of business, I want to secure the letter, have it locked up in a safe place. Since it’s already been examined by forensics, is there any objection to working with a copy off the evidence cart from now on?”

I look at Harry. He shrugs. We all agree.

“Good. Then I’m gonna lock it up. I’ll have the county treasurer put it in their vault in a locked box.”

“As long as the evidence is preserved,” I tell him. “In the event of an appeal or retrial.”

“I’ll make sure of that,” says the judge. “Next,” he says. “How many of you have copies of the letter?”

I raise my hand. Tuchio raises his.

“You each have one?”

“As far as I know,” says Tuchio. “Nobody else in my office has one. I don’t know about the crime lab.”

“Find out,” says the judge. “You, Mr. Madriani. Do your forensics people have one?”

“I don’t know.”

“Find out,” he says.

“I want every copy that was made of that letter secured by you, Mr. Tuchio, and you, Mr. Madriani. I want them locked up in a safe. I don’t want your staff reading it, and if they already have read it, I don’t want them talking to anyone about it. Find out,” he says. “Do I make myself clear?”

Nothing but nodding heads in the room.

“When you leave here, call your offices immediately. Have them locate every copy that was made. Then I want to know, by three o’clock this afternoon, how many there are. And make sure you get them all.

“And I’m holding you responsible. If the crime lab has copies, if your forensics experts have copies, get ’em back. I don’t want to see anything more regarding the contents of that letter on television, and I don’t want to read about it in the newspapers, not until I decide whether what’s written on those pages is gonna come into evidence or whether it’s not.” He looks at his watch.

“Is there some question about that?” I ask.

“About what?” he says.

“About the contents of the letter coming into evidence?” I say.

“It’s something we’re going to have to talk about,” says Quinn. “I think it’s pretty clear to all of us at this point that we don’t have much time. Pretty soon I have a feeling that I’m going to be up to my hips in federal agents, U.S. Attorneys, and federal court orders, so the sooner we can wrap this trial the better.

“Are you ready with your witnesses?” He looks at me.

I nod.

“Good, then let’s get movin’,” he says.

Tuchio and Harmen are out of their chairs, moving toward the door. Quinn is wrestling with his robe, struggling to get it on, running over me, as I try to get in his way.

“Your Honor, before we leave, I have to know whether I’m going to
be allowed to introduce the contents of that letter into evidence and, if not, what your legal basis is for denying admission.”

He looks at his watch as he’s trying to move around me. “Not now,” he says. “This afternoon we’ll talk about it.”

“You got that, Mr. Tuchio?”

“Got it, Your Honor.”

“I’ll be prepared by then to entertain all arguments. If we need time for points and authorities”—he’s already heading down the hall toward the bench—“it can be arranged. Otherwise I’ll be prepared to enter a ruling on the restaurant video and the contents of the letter at that time. Now, let’s go.”

By ten o’clock, before the midmorning break, you can hear the drumbeat, the resonant pounding like that of Zulu warriors striking spears against their shields on the street outside. Periodically there is the electronic bleep and blare of an emergency vehicle.

Through all this we work with our witness. Fortunately, he is solid.

Robert Stepro is our resident forensics expert, the man who accompanied the envelope and its contents to the crime lab and watched as they processed and examined the bloodied side of the letter and the samples of hair.

This morning Stepro is equipped with enlarged photographs, taken with a macro lens and mounted on poster board, so that minute specks of blood appear the size of a nickel.

I sense that Tuchio has the feeling of a big-league baseball manager, ahead on the scoreboard but with the game about to be called on account of rain.

With the commotion growing outside and the risk that we may have to evacuate the courthouse, Tuchio tells the judge that he’s prepared to stipulate that the bloodied surface of the letter matches the shadow on the leather portfolio and that the letter is in fact the item taken from Scarborough’s hotel room that morning.

I insist on presenting at least the principal evidence, a prima facie case, so that there is no doubt in the minds of jurors when they go in to deliberate.

It’s clear that Tuchio does not intend to contest either this or the hair evidence contained in the envelope. His forensics experts have told him that any dispute over these items is a nonstarter.

It’s also clear that Tuchio has already settled on a changed theory: two killers working in tandem, Carl and a blond compatriot who slipped the envelope under our office door in the middle of the night. He will no doubt embellish this with hints of complicity by our office in order to tip the scales enough that jurors will excuse the inconsistencies in his own case.

In a period of less than two hours, Stepro, using his poster-board photographs on an easel in front of the jury, nails down the comparison evidence of the shadowed leather portfolio and the bloodied letter. The pattern of blood on the back of the letter at the edges where paper meets leather matches perfectly with spots of blood on the portfolio.

You would not have to be a scientist to see that, magnified many times, traces of blood—numerous, minute, oblong ringlets—had been severed by the covering edge of the paper. When the letter was placed back in the shadowed rectangle on the portfolio, these detached ovals were once again complete.

When asked for his opinion, Stepro states, “Better than any fingerprint, the complexity of the pattern and the countless intersecting matches between paper and leather put the issue beyond any possible doubt. The four folded pieces of paper were without question the object that created the shadow on leather.”

Stepro also testifies that examination of the paper reveals that the documents, the four pages, were stapled only one time. Further microscopic inspection of the staple at the folds in the metal where it was bent and closed to bind the pages indicates that it was probably driven in by an electric stapling machine and that, because of the tight closure, it is his opinion that no pages were removed or appear to be missing.

Finally I ask him about fingerprints on the pages and whether any were found.

“We found several fingerprints. I believe there were at least thirty-two full or partial prints on the four pages.”

“Were you able to lift these, and were you able to identify whom they belonged to?”

“We lifted all of them, and they all belonged to the same person, the victim, Terrance Scarborough.”

Ginnis knew exactly what he was doing in the video when he refused to touch the letter over the dinner table in the restaurant. When he finally reached out to dispose of the letter, to get it off the table, he did it with the butter knife, flipping the pages back to Scarborough.

According to Stepro, and included in the police crime lab’s report, is the finding that four small bloody spots on the folded surface of the letter, the spattered side, as well as a single blood spot on the reverse side, show traces of fiber transfer, similar to the spots found on and inside Scarborough’s attaché case, evidence of the blood-soaked cotton gloves of the killer.

When I finish with the witness, Tuchio gets up and asks a single question: whether the witness, during the course of his examination of the four pages, examined the writing or read the contents of the communication written on them.

The judge nearly swallows his tongue.

Before I can even object, the witness responds and says, “No. I was instructed by my client not to read the contents of the correspondence for the reason that it was confidential.”

“No further questions.” Tuchio takes his seat.

That he would pop this question in this way tells me two things. One is that Tuchio is as convinced as I am, despite what Quinn may be saying, that the contents of the Jefferson Letter will at some point be admitted into evidence and read to the jury. Second is that if it must come in, Tuchio would prefer that it come in now, before the defense has completed presenting its case. He’s hoping that this might dissipate its effect. Or at least remove it as far as possible from the point of deliberations so that its impact on the jury will be lessened, once they’re sedated a bit by the passage of time, closing arguments, and other evidence.

For the first time I can recall, ever in a trial, the judge has lunch brought in for the lawyers. With the pressure on, he’s not letting any of us out of
the courthouse. He tells court staff to stay close, to eat in the cafeteria. The race to a restaurant is not worth the risk of the melee outside, and Quinn wants everybody back in court by one o’clock.

A little past noon, and the rhythmic pounding of demonstrators, the ceaseless chants and yelling, against the pitched wail of electronic sirens outside, has the constancy and power of roiling surf.

It seems to overwhelm, until I realize that there are at least six solid walls of reinforced concrete between those of us in the building and the hell that is happening out on the street. I cannot fathom what the bedlam must sound like there.