Capitol Murder

by Phillip Margolin

  The receptionist was stunning in an understated way that was more Vogue than Penthouse. She flashed a perfect smile as Dana approached her desk.

  “Good morning, Miss Cutler,” she said before Dana could introduce herself. “My name is Cassie. If you’ll come with me, I’ll take you to see Mr. Schatz. He’s expecting you.”

  Dana followed Cassie down a narrow hall past the open doors of offices occupied by earnest young men and women Dana assumed were Schatz’s associates. Dana turned down an offer of tea or coffee before Cassie ushered her into her boss’s corner office. As expected, there was a wall of fame displaying headlines from the attorney’s most famous cases, as well as framed awards and pictures of Schatz with movie actors, television personalities, presidents, and lesser but well-known politicians. The windows behind Schatz presented a view of the Capitol dome at one end of the Mall and the White House at the other.

  “Sit. We’ve got a busy morning ahead of us and only a little time for me to brief you,” Schatz said. Dana liked the fact that there was no small talk. “In one half hour, you and I are going to walk over to the Department of Justice to have the pleasure of having our balls busted by Deputy Assistant Attorney General Terry Crawford, who is heading up the prosecution of our client. I will hand him motions for discovery, and he will laugh at us and treat us like shit, while making no effort to disguise the pure joy he gets out of trampling on the constitutional and statutory rights of those unfortunate enough to find themselves in the federal criminal injustice system.”

  “It sounds like you’ve dealt with Crawford before.”

  “Many times, unfortunately. Terry is a complete asshole, but you should never underestimate him. He is also very smart and very, very cunning. The only saving grace of having him as an opponent is that he is so driven to screw all defense attorneys that he occasionally makes mistakes.”

  “If you know we’re not going to accomplish anything, why do you want me along?”

  “Do you have a good memory, Dana?”

  “It’s decent.”

  “Good, because your job will be to observe. While we are with Terry, or any of his cronies, let me do the talking. You do the listening. It’s not out of the realm of possibility that Terry will do something as a result of his zeal that may, in the future, lead to a motion charging him with prosecutorial misconduct. If I file such a motion, I’ll need witnesses.”

  “You got it. So when do I get to interview our client?”

  “That’s not going to happen.”

  Dana frowned. “Some of the best leads I’ve gotten have come from the defendant.”

  “I’m sure that’s true, but Ron is off-limits to you.”

  “And why is that?”

  “Ron Tolliver does not trust anyone. I’ve tried to get him to talk to me about the case, and he refuses.”

  “Why don’t you let me give it a shot?”

  “Maybe later, but I’m trying to build rapport with him. I also want him to see me as his only point of contact with the world outside his prison. And don’t worry; you’ll have plenty of tasks that will occupy your time.”

  Schatz glanced at his diamond-studded gold Rolex. “It’s time to enter the dragon’s den, Cutler. Put on your armor and follow me.”

  “Striker, grab a pad and pen and come to my office,” Terrence Crawford barked over the intercom.

  Ginny had been arranging thousands of pages of investigative reports into neat piles before punching holes in them so they would fit into a three-ring binder. She had been at this task for three days and was so relieved to escape from it that she was actually grateful to Crawford, who had been treating her like a secretary when he wasn’t ignoring her.

  Ginny started to ask Crawford what he wanted her to do, but the intercom went dead. Ginny sighed and pulled a yellow legal pad out of the bottom drawer of her desk. When she reached Crawford’s office, he was reading a brief.

  “Sit,” he said, pointing at a chair in a corner of the room without looking up.

  Ginny waited for Crawford to explain why he had summoned her. When five minutes passed, Ginny had had enough.

  “What is it you want me to do, Mr. Crawford?”

  The deputy AG looked at Ginny as if he hadn’t realized she was in the room. Then he directed a malicious smile at her.

  “In five minutes, Bobby Schatz is going to come in here and demand all sorts of things, which I am not going to give him. When he comes to grips with the fact that I’m not going to budge, Schatz is going to run to court and accuse me of everything from pederasty to rape. As with any accused, I will fare better in court if I can produce a witness who can testify that I did none of the acts Schatz will dream up.”

  Ginny was about to reply when Crawford’s intercom buzzed and his secretary announced the arrival of Schatz and his investigator. Crawford told her to send them in. A moment later, the door swung open and the secretary stood aside to admit Bobby Schatz. A second later, Dana Cutler followed him into the office. Crawford was looking at Schatz, or he would have seen Ginny’s jaw drop. Dana’s eyes locked in on her friend, but her expression gave away none of the surprise she felt.

  “Hey, Bobby, come on in,” Crawford said as he walked around his desk and shook hands.

  “Thanks, Terry. I’d like you to meet my investigator, Dana Cutler.”

  “A pleasure.”

  Crawford did not introduce Ginny, but he did motion Schatz and Dana toward a comfortable couch that stood against the wall under a framed copy of the Constitution.

  “So, Bobby, what can I do for you?” Crawford asked as soon as he’d retaken his seat.

  “I’m interested in discovery, Terry. For starters, I’d appreciate a look at the affidavit you used to get the warrant to search my client’s house.”

  “I’m sorry, I can’t help you there.”

  “Why not? I’m entitled to see it, and I’ll need to read it if I’m going to challenge the search.”

  “My problem is that I can neither confirm nor deny the existence of such warrants.”

  “You’re joking!”

  “The Foreign Intelligence Surveillance Act is no joke, Bobby. If a search warrant affidavit for Tolliver’s house was obtained from the FISA court, it would be classified, and I wouldn’t be able to even acknowledge its existence.”

  “If you’re going to use evidence from the search you conducted using a FISA warrant, you have to tell me.”

  Crawford shrugged. “It’s early days, Bobby. I have no idea what evidence I’m going to use.”

  “Stop screwing around. You know a Federal District Court judge is going to tell you to give me the affidavit. We’re talking about the Fourth Amendment here.”

  “Maybe a judge will agree with you. File a motion and we’ll hash this out in court. But I seem to remember hearing that there isn’t a single case where a FISA affidavit has been disclosed to a defense attorney.” Crawford grinned. “Maybe you’ll set a precedent. What else would you like?”

  “I’d like to see the statements made by the four men who were arrested at FedEx Field.”

  “I’m not at liberty to confirm or deny that such men exist.”

  “Terry, pictures of the arrest have been on YouTube, Facebook, CNN, and every media outlet in America and abroad.”

  “Then serve a motion for discovery on YouTube.”

  “Cute, but you know this is bullshit,” Schatz said.

  “Hey, I don’t make the rules. Call your congressman and get him to repeal FISA. Me, I’m just an employee of the federal government, and my boss tells me I have to follow the law, which does not allow me to confirm or deny the existence of these so-called arrestees.”

  “Can you give me the names of their attorneys?” Schatz asked.

  “I’m not at liberty to discuss that.”

  “This isn’t a game, Terry. My client is facing serious jail time.”

  Crawford sat up and leaned forward. His face was tight and his body language signaled that he had shifted from taunting
Schatz to real anger.

  “We lost three thousand people on 9/11. There were over ninety thousand people in FedEx Field on Sunday, and your client wanted to kill them all, so I won’t be too upset if he has to serve serious jail time.”

  “You’re assuming he had some part in the plot.”

  “Oh, he did.”

  “You haven’t told me one thing that leads me to believe he was involved with the suicide bombers.”

  Crawford got hold of his emotions and leaned back in his chair. “You’ll get discovery at the appropriate time and not a second before. If you don’t like my position, file a motion.”

  Schatz looked as though he was about to say something else, but he changed his mind and stood up.

  “Thanks for taking the time to see us,” he said.

  “Sorry I couldn’t be more help,” Crawford lied.

  Seconds after the door closed behind Schatz and Dana, Crawford broke into a huge grin.

  “I hope you remember what you just saw, Miss Striker, because that is the way to kick ass and take names in the doing-justice business.”

  Ginny nodded and kept her opinion of what she had just seen to herself. Everything Crawford had done went against her basic sense of fair play. She knew that Crawford had complied with the law, but the end result was that Schatz would have no information he could use to defend his client. Ginny had no sympathy for terrorists, but a court would have to decide whether Tolliver was a terrorist. What if he was innocent but he couldn’t defend himself because his lawyer had no information about his case?

  Ginny was also upset by Crawford’s attitude. A man’s life might literally be at stake. Crawford was treating the case as if it concerned only him and Bobby Schatz, but the case really revolved around the ability of the government to prove Tolliver’s guilt beyond a reasonable doubt. Ginny was appalled by laws that hid evidence and begged for an unjust result and by a prosecutor who treated a matter this serious as a game.

  “Can he do that?” Dana asked when they were out of the building and headed back to Schatz’s office.

  “Oh, yeah. The federal rules are barbaric. Most prosecutors don’t follow them to the letter, but under them we aren’t entitled to see the statements of a witness until after he testifies, which means you probably aren’t going to have any time to investigate before I cross.

  “Then there’s the Federal Intelligence Surveillance Act. The government attorneys go to the FISA court, which is made up of federal judges. Their proceedings are secret, and it’s almost impossible for a defendant to find out the basis for the search or even that a search occurred unless they decide to use evidence they got using the warrant. And even then, there’s a declassification process that can prevent a defendant from ever knowing the real basis for the warrant.

  “What’s worse, the government is allowed to conduct searches and wiretaps under FISA without satisfying the normal Fourth Amendment requirement of showing probable cause that a crime has been committed when it’s trying to get a warrant.

  “On top of that you have CIPA, the Classified Information Procedures Act, which sets out procedures when a defendant wants discovery of evidence that’s classified. The defendant can’t get classified evidence unless a judge finds that it’s relevant, and the judge makes that finding in secret. If the government objects after a judge finds the evidence is relevant, the court enters a nondisclosure order and tries to figure out an appropriate sanction for the government’s failure to disclose the evidence it’s decided is relevant to defending the case. And even when there is no nondisclosure order, the defense attorney can only see the evidence if he has a security clearance, and the defense attorney is usually prohibited from showing the evidence to the defendant. If the judge decides that the defendant can see the evidence, he provides it in a sanitized form like a summary or a redacted document.”

  “What about the government’s obligation to give the defense evidence in its possession that can clear him?” Dana asked.

  “In the Moussaoui case, the defense wanted to interview terrorists who were detained in U.S. custody outside the country to develop witnesses who would testify that Moussaoui’s involvement with al-Qaeda was limited. The court wouldn’t let the defense interview the potential witnesses. The best they got were summaries of intelligence reports they would have been allowed to read to the jury if the case had gone to trial.

  “The whole thing stinks to high heaven, but our client is caught up in post–9/11 hysteria, and that gives a guy like Crawford an opportunity to trample on his rights that he’d never have if Tolliver were charged with bank robbery.”

  “What are you going to do?” Dana asked.

  Schatz shrugged. “I’ll scream and holler and file motions and hope that Crawford gets overconfident and screws up.”

  Chapter Thirty-nine

  The next morning, Ginny arrived at the DOJ bright and early. She was taking off her coat when Terrence Crawford pushed a multitiered cart into her office. Ginny was surprised to see her boss doing a job that would normally be assigned to a secretary.

  “Great news,” Crawford said. “I was able to rush through your security clearance, which means you are now able to organize these top-secret files.”

  Crawford scanned the office. When he spotted Ginny’s hole punch, he grinned maliciously.

  “Good, good,” he said. “You’ve got a hole punch and I’ve provided you with binders and tabs. When you’ve got the case file organized, bring it to my office. Say by tomorrow afternoon.”

  “Tomorrow, but . . .”

  “No buts. There’s a team of lawyers waiting for this material. I imagine this job will evoke fond memories of your days at Rankin, Lusk—the all-nighters, the Saturdays and Sundays at the office when normal people were at the beach or lying around at home doing the Times crossword.

  “Well, enough of this idle chatter. I’m taking up valuable time.”

  Crawford sped away before Ginny could protest any further. She was appalled by the joy he seemed to take in her discomfort. What a prick! She wondered if Crawford had any redeeming qualities. She sure couldn’t think of even one.

  Ginny walked over to the cart. Its three shelves were loaded down with banker’s boxes. In addition to the boxes, three-ring binders were stacked on the bottom shelf. Ginny counted twenty boxes in all. She lifted the cover of one of them. It was filled to the top with paper. She groaned. This was going to take forever; only she did not have forever, she had until the next afternoon.

  The first thought that sprang into her head was coffee. She was going to need a lot of it. On the way down to the basement cafeteria, something occurred to her. Security clearances had been discussed by Ginny’s coworkers on a few occasions, and Ginny had the impression that they took a while to get. On the day Crawford moved her over to Counterterrorism, he had mentioned that he was going to try to expedite the process, but he seemed to have pushed her clearance through in record time. She wondered why.

  Ginny filled a thermos to the top with coffee and carried it back to her office. Just thinking about the daunting task she was facing was exhausting. She poured out a cup of caffeine and took a stiff drink. Then she carried the first box to her desk and pulled a stack of paper out of it so she could see what she was dealing with. It didn’t take her long to realize that she was looking at 302s—the FBI equivalent of a police report—in the FedEx case. She was still pissed off at Crawford but not as pissed off as she had been. Working at Justice might not pay as much as Rankin, Lusk, but no one at Rankin, Lusk would have the inside scoop on one of the biggest terror cases in American history.

  Ginny read the first report. It was an interview with a person who worked at a concession stand at the football stadium. The interview concerned a fellow worker, but the name of the subject in whom the interviewer was interested was redacted. Ginny flipped through a few of the other reports. Names and other information—like an address in one case—were also blacked out. News stories on television and in the papers had repo
rted that hawkers for several concessions were believed to be suicide bombers who were arrested before they were able to detonate their bombs. Ginny assumed that the terrorists were being held at a secret prison somewhere. She wondered what that would be like and she shuddered. She had read stories about waterboarding, and she’d seen the pictures from Abu Ghraib prison. She was certain that she couldn’t stand up under that type of pressure. Something else about the prisoners being held at a secret prison bothered her, only she couldn’t put her finger on it, so she got back to work.

  A lot of the 302s in the first two boxes recounted interviews with people who worked at concession stands at FedEx Field. Ginny built a tower out of these reports on a corner of her desk. She would put them in a binder in alphabetical order when she had collected all of these interviews and the reports that concerned them.

  Ginny was reading a report of an interview with a woman named Ann O’Hearn when she noticed that Keith Evans and Maggie Sparks were the agents who had conducted the interview. She smiled. It made this tedious work easier when she could connect with someone involved in the investigation.

  Later on, Ginny came across a series of reports about a man named Lawrence Cooper who owned the concession stands where the suicide bombers had been employed. It came as a shock when she found out that he had been murdered. She thought about that. The terrorists had to figure out a way to get their people into FedEx Field. Maybe Cooper was part of the plot or a dupe who had been talked into hiring the suicide bombers. Maybe he was killed to prevent him from telling anyone who had arranged for him to hire the four bombers. Ginny felt proud of herself when she read a report by a detective who had drawn a similar conclusion.

  By the time six o’clock rolled around, Ginny’s head was swimming, her stomach was rumbling, and the lines on the reports were starting to blur. After calling Brad to tell him that he shouldn’t wait up for her, Ginny went down to the cafeteria. It was good to get away from the banker’s boxes, even if it was only for the time it would take her to buy her dinner. She carried a sandwich, two bags of chips, and more coffee back to her office.