The Bomb Maker's Son

by Robert Rotstein

  Marilee Reddick and her gaggle of Assistant US Attorneys walk into the courtroom and pass by without acknowledging me. I’m certain Reddick would love to aim some choice invectives at me for wasting her afternoon, but Judge Gibson’s microphone must be deterring her. I approach her and say, “Any leads on the JB bomber, Marilee?”

  “Same answer as before. Ian Holzner and whoever is working with him.”

  “It’s relevant to my defense in this case. You have an obligation to disclose it.”

  “Take it up with the judge.” She turns away and pretends to talk with one of her assistants.

  Suddenly, the judge, dressed in his robes, walks out of chambers and clambers into his chair. Even the courtroom personnel are surprised. The clerk cries out a tardy, “All rise!” and the spectators half stand and sit down because Gibson already has. Reddick and I remain standing.

  “Buenos días, ladies and gents,” the judge says. “United States versus Holzner. Motion to suppress evidence. I’ll hear from Mr. Parky . . . Mr. Parker Stern.” The joke is getting old.

  I go to the lectern, and the room rotates on its wobbly axis. The fear scorches my cheeks from the inside. I inhale, but the room won’t stop shaking. I steal a quick glance at Lovely. Her face shows no emotion. She’s undoubtedly worried that any show of concern will cause me to panic. She reaches for her black binder, where she has notes for her proposed oral argument. I’m actually about to ask her to take over when I realize why Holzner’s methods won’t work for the kind of fear I have. He was afraid of capture, afraid of prison, afraid of humiliation, afraid of losing his family. Those fears were real, and so when he tried to control them by focusing on something else, he knew what he was running from. My fears are about nothing—they just exist. It’s impossible to hide from a feeling that has no boundary. Paradoxically, this epiphany of hopelessness calms me down enough so I can speak.

  “Your Honor, Parker Stern and Lovely Diamond appearing for the defendant, Ian Holzner. This is a motion to suppress a hand-drawn diagram of the Playa Delta Veterans Administration and certain fingerprint evidence of equipment traditionally used to make explosives. To admit the evidence would offend due process of law under the Fifth Amendment to the Constitution. It’s quite simple: agents working for the government of the United States, the greatest democracy ever known to humankind, dangled an innocent man over a third-floor balcony railing to force him to provide information about his brother. The word appalling doesn’t describe the horror of the government’s crime.”

  “What the government did back then was a major no-no,” the judge says. “But it was Jerry’s rights that were violated, not Ian’s. Isn’t Ian out of luck under the case law?”

  Lovely starts shuffling papers, a sign that she’s agitated, though the judge asked an obvious question.

  “Your Honor,” I say, “that’s ordinarily true about motions to suppress, where the police have conducted an illegal search of someone’s property, which doesn’t involve a deliberate threat to a person’s life and limb. This case is different. The test for a violation of due process is whether the government engaged in conduct that was shocking, outrageous, and intolerable. What COINTELPRO did to Jerry Holzner fits all three requirements. It was heinous coercion of a witness, typical of the actions of a totalitarian state—Stalinist Russia, Nazi Germany. That it happened on American soil is sickening. There’s never been a reported judicial opinion where the government was able to rely on physical coercion of a third party to obtain evidence against a defendant. To put it bluntly, the government shouldn’t be acquiring evidence by torturing an American citizen who’s done nothing wrong.”

  I glance at Lovely, who’s nodding approvingly. I’m doing a decent job of putting her sophisticated thoughts into simple words. As strong as she thinks the argument might be, however, most courts and legal scholars have rejected her theory. The conservative Supreme Court has consistently favored the police, even when they violate a third party’s constitutional rights. So I have to drive the argument home.

  “How rogue can a government agent go and still get away with it?” I say. “What if those criminals had decided to drop Jerry Holzner from that ledge and kill him after he disclosed the information just so they could cover up their activities? Would it comport with principles of due process to allow the government to use the evidence against his surviving brother? Of course not. Evidence that is the fruit of murder and torture is not constitutionally admissible against anyone, and to allow it in this case would forever taint this court and besmirch the criminal-justice system.”

  “Didn’t Jerry Holzner bring a civil suit?” the judge asks. “Wasn’t that his remedy? Why let Ian, a criminal—an alleged criminal—get a windfall?”

  “We haven’t been able to locate Jerry Holzner to get the entire story. The public files have long ago been lost or destroyed. But contemporaneous news articles reported that in 1977 Jerry Holzner settled his claim for two thousand dollars. Even back then, that amount was a pittance. Hardly compensation for being tortured the way he was. It’s pretty clear Jerry’s lawyers didn’t think he could stand up to the Federal Bureau of Investigation, which at the time accused Jerry of aiding and abetting Ian Holzner, which was a blatant lie to cover up the government’s crimes. Plus, how attractive would Jerry have been as a plaintiff against the revered FBI of J. Edgar Hoover? Jerry’s brother was a wanted terrorist. No jury of the time would’ve had sympathy for him. No jury would’ve awarded damages against the FBI. And damages couldn’t begin to deter and punish the government for its behavior. An award of millions wouldn’t have made the government flinch. The civil remedy simply isn’t enough to vindicate due process. The only remedy consistent with the Constitution is to exclude this evidence here and now.”

  Gibson has closed his eyes, and his nodding has continued throughout my presentation. I fear his head movements are not an expression of approval, but a sign that I’ve lulled him to sleep.

  But then he says, “How do you respond to that, Ms. Reddick?”

  Reddick hops out of her chair and sidles over to the lectern. “I respond with the Supreme Court’s opinion in United States v. Payner. The IRS set up a Bahamian banker. He was in Miami, transacting illegal business with some Americans. They arranged a date with a woman. Except, she wasn’t a woman—well, she was—but she was also an IRS plant. When the Bahamian was on the date, IRS agents broke into his hotel room, seized his brief case, got a locksmith to make a key, opened the case, and copied four hundred incriminating documents. What’s relevant is that they didn’t use the illegally seized documents against the Bahamian banker whose rights were violated, Your Honor, but against an American criminal named Jack Payner, who was convicted of falsifying his income-tax returns. Payner made the same due-process argument as Mr. Stern has made here, but the Supreme Court rejected it in a footnote. End of story, end of the defendant’s motion.” For emphasis she pounds on the lectern, but her fist catches the microphone and amplifies the noise into a sound that resembles a gunshot. The courtroom deputy starts, the marshals hop up, spectators gasp, a male voice lets out an elongated, “Whoa,” and Lovely Diamond springs up out of her chair, whether intending fight or flight I’m not sure.

  Judge Gibson and I are among the few people who don’t react. I saw Marilee Reddick bump the microphone with her hand, so I knew it wasn’t a bomb. Old Judge Gibson is probably crazy-fearless in the same way I’m crazy-scared.

  “Calm down, people,” he says. “False alarm. There will be no acts of terror in the courtroom of Carlton Gibson.” He rubs his bald head as if it’s a white-fringed crystal ball, foretelling a future of peace and harmony in his courtroom. Then he picks up his pen and points it at me. “So how do you respond to the US Attorney’s argument about the Payner case? Isn’t that finito for your motion, counsel?”

  The nervous energy still buzzing in the air from the microphone mishap has a calming effect on me, maybe because for once I’m not the most frightened person in the room.

>   “Let’s start with the Payner decision. Setting a crook up on a fake date is hardly the same as dangling an innocent man from a three-story-high balcony. But let’s put the legalities aside for a moment, Your Honor, and talk about what really happened. You can only do justice when you focus on what really happened. During World War Two, the Italian partisans who captured Benito Mussolini hung him from meat hooks. That’s essentially what the FBI did to Jerry Holzner. There are two differences: first, Mussolini was an evil fascist dictator, whereas Jerry Holzner was an innocent citizen; second, Mussolini was a corpse when they hung him by his heels, whereas Jerry Holzner was very much alive, such that he could experience the torture that our government inflicted on him. We don’t allow such things in America, especially from people sworn to uphold the law. It’s nothing short of outrageous for the US Attorney to come into court today and ask you to sanction such horrifying behavior. The evidence must be excluded under due process of law.” I sit down. Like I always do after I finish an oral presentation, I feel unburdened, my stage fright washed away like a penitent’s sins.

  But I’m not finished. Judge Gibson asks, “Mr. Stern, give me the name of a case that says that such a defense survives the Supreme Court’s decision in Payner.”

  He’s looking for a legal basis for ruling in our favor. Keeping the map and fingerprint evidence out could mean freedom for Ian Holzner. I leaf through our legal brief, looking for some cases decided by a court in Philadelphia. While the judge waits for me, he uses his pen to tap out a rhythm on his legal pad. Five seconds later, he abruptly stands, points the pen toward the back of the room, and hollers, “You there! I will not countenance that! You’re disrupting these proceedings. Stand up!”

  At first I think that he’s speaking to Lou Frantz. Then Moses Dworsky points his own thumb at his chest in the classic Who, me? gesture.

  “Yes, you, sir. Stand up, I say!”

  “I beg the Court’s pardon, but I do not believe I have done anything to cause offense,” Dworsky says.

  “I know you,” the judge says. His face turns a bluish-red, almost as if someone is strangling him—true lividity is part of a classic Carlton Gibson explosion. “You’re the Elephant Man. Didn’t I tell you years ago never to set foot in my courtroom again? Didn’t I, sir?”

  “My moniker was the Eloquent Elephant,” Dworsky says, in a soft, deferential voice that still projects throughout the room. “I shrink neither from that appellation nor from my physical appearance. With respect, Your Honor, you had no right to bar me from a public courtroom. The idea offends all concepts of a transparent system of justice.”

  Although as Holzner’s lawyer I wish Dworsky had never uttered the words, as an officer of the court I know that he’s absolutely right about the law. Gibson’s attempt to bar him does offend justice.

  “Amigos, this is Moses Dworsky,” the judge says. “A corrupt, radical lawyer who was disbarred for treason. Should’ve been imprisoned. Sir, what business do you have in my courtroom?”

  Dworsky folds his hands in front of him deferentially. “I am now a private investigator, retained by attorney Parker Stern to assist him in the defense of Ian Holzner, wrongly accused by an unjust system. So my presence in the courtroom is not intended to annoy Your Honor, but rather to assist the defense team.”

  Judge Gibson looks at me, his rheumy eyes now round as obsolete half-dollar coins. “That man works for you?”

  “Your Honor, he works for me in the capacity of—”

  The judge uses his fists to lift himself out of his chair. “The defendant’s motion to suppress evidence is denied. We’re adjourned.” He angrily tosses his pen on the desk, and when it rolls to the floor and his law clerk goes to retrieve it, he barks, “Leave it!” and exits the courtroom.

  Lovely reaches over and clamps my forearm with her fingers. She doesn’t have to say it—we were winning, and Dworsky derailed it. What did he do to anger Gibson so?

  CHAPTER TWENTY-ONE

  Turning my back on a smirking Marilee Reddick, I sprint up the aisle in pursuit of Moses Dworsky, who’s already skulked out of the courtroom. I get outside just in time to see him disappear into the men’s room down the hall. As I wait, Lovely Diamond comes out of the courtroom.

  “What a clusterfuck,” she says. “Where the hell is he?”

  “Restroom.”

  We wait another minute, then three, then five.

  “Are you sure he’s in there?” she asks.

  “I saw him go through the door. And there’s no other exit.”

  “Go get him.”

  “I’m not going to follow him into the bathroom.”

  “If you don’t, I will, Parker.”

  She’s in her battle stance—shoulders back, eyes shiny and hard as glazed ceramic. I start walking toward the restroom, but before I get there, Dworsky emerges. Lovely might as well be pointing a handgun at him, because when he sees her he raises his hands.

  “Apologies,” he says. “I am a man in his seventies who still has his prostate gland, which creates certain complications better left unarticulated.”

  “What did you do to upset the judge?” Lovely asks. “The timing was so bad it’s almost as if you intended to . . .” That her voice trails off only intensifies the power of the accusation.

  Dworsky’s ears turn scarlet. The hair on the rims seems to prickle with electricity. “Miss Diamond, are you seriously implying that I sabotaged your hearing?”

  “Did you?”

  “Stern, are you going to stand by and let her make these unfounded and scurrilous accusations against me?”

  While Lovely has been interrogating him, I’ve tried to determine whether I can read something in his expression or body language that would indicate that what happened was anything other than an unfortunate accident. I can’t. His righteous indignation, his red-tinged ears, tell me nothing. I’ve never been much for trying to assess a person’s truthfulness by observing his behavior. As a kid, I worked with too many good actors to believe that body language conveys anything about reality.

  “Calm down, Lovely,” I say. “We can’t be sure that Gibson was going to rule in our favor.”

  “He absolutely would have.”

  “Where does this leave our relationship, Parker?” Dworsky says.

  “Status quo,” I say. “Unless you want to end it.”

  “Absolutely not. When I undertake a task, I finish it.” He pauses, and when Moses Dworsky pauses, you can almost see the less-used punctuation marks—a colon or a dash—floating over his head like a comic-book caption. He raises an index finger. “Apropos of doing the job, I have arranged for you to have a meeting with Charles Sedgwick at the California State Prison at Santa Bernardina, his locus of incarceration.”

  “He refused to talk to me,” I say. “What’s changed?”

  “He discovered that I was involved in the case. Believe it or not, Parker, I give you credibility. In my day I was really something. You are to meet him on Tuesday, November twenty-fifth, eight days hence. Is there anything else I can help you with? If not I must get back to the office.”

  “We’ll see you back there,” I say.

  He turns and walks toward the escalator, swinging his arms like a happy-go-lucky bridge troll.

  Almost immediately, Lou Frantz exits the courtroom and approaches us. I bristle whenever the man gets close.

  “You have no idea why the judge got mad at him, do you?” he says.

  “He appeared in the courtroom after the judge told him not to,” Lovely says. “A gazillion years ago.”

  “Not even close,” he says.

  “Then why don’t you tell us, Lou,” I say.

  “He was scratching his nose with his middle finger but then stopped scratching and left the finger against his nose. It kind of looked like he was flipping the judge the bird. Perhaps it was just an unfortunate coincidence, but I don’t know.”

  “Right when the judge was going to rule?” Lovely asks.

  “Come on, Lovel
y,” I say. “You don’t seriously think Dworsky intentionally sabotaged our argument by picking his nose?”

  “Scratching,” Frantz says.

  “It was unlucky timing,” I say. “And anyway, who would’ve thought the judge would notice?”

  “I don’t believe in coincidences,” Lovely says. “Judge Gibson’s irrational. All Moses had to do was catch his eye and give him the finger, and kaboom. I’m getting out of this hellhole. It reeks of injustice in here.” She turns and marches down the hall, like a retreating soldier trying to maintain her dignity until the next battle.

  CHAPTER TWENTY-TWO

  The Santa Bernardina State Penitentiary is a maximum-security prison in Northern California, an hour’s flight plus a forty-five-minute drive from Los Angeles. By the time I park the car and pass through the rigorous security check, I’m exhausted.

  Charles Sedgwick is serving his life sentence for the Playa Delta murders even though he neither built nor planted the bomb but only carried out reconnaissance. During his trial, he refused to cooperate in his own defense, instead turning his back on the judge, chanting political slogans while court was in session, putting his feet on the table, and making obscene gestures at the judge and prosecution witnesses. Finally, the judge had enough of Sedgwick’s outbursts and bound and gagged him just as Judge Julius Hoffman did to Bobby Seale in the trial of the Chicago Eight.

  When I enter the noncontact visiting room, Sedgwick is waiting for me behind the Plexiglas-and-light-hardwood partition. On the upper wall a sign reads, KEEP HANDS IN PLAIN VIEW AT ALL TIMES. Although there are a dozen booths, I’m the only visitor in the room. Most of the inmates are in prison gangs, and according to the associate warden, an unaffiliated old radical like Charles Sedgwick is a target of violence. So he’s housed in the PHU—the protective housing unit.