Gross and Henoch were the two confidants that Carl decided to go backslapping with at a bar where the three of them entertained each other with funny stories of how they might drag Scarborough from his hotel room out to a shooting range in the desert and pin him to a target. They also discussed the ease with which they could kidnap Scarborough. All these alcohol-fueled plots and plans were of course facilitated by the fact that Carl worked at the hotel and presumably had access to the victim. The author had been kicking up dust his whole way across the country, and because racial discord was his theme, he’d drawn the attention of groups that Gross and Henoch ran with, in particular the Aryan Posse.
Ordinarily Harry would be digging for dirt on the two witnesses, Henoch and Gross, looking to see if they have criminal records or charges pending that the cops might have traded away to get their cooperation, their statements against our client.
Charlie Gross has a rap sheet showing three felony convictions in the last ten years. That’s the good news.
The bad news is that Walter Henoch has another first name. It is “Agent,” as in FBI. Henoch was in fact wired, and unless we can catch his secretary making typographical errors in the transcription of the tape, every word emanating from our client’s mouth during his meetings with Henoch is, as they say, gospel.
Harry and I both knew as soon as we saw the typed witness statements that it was highly likely that one of the two witnesses was wired for sound. We figured it was Henoch, because his signed statement reads like a screenplay, with everything but stage direction. We were hoping that at worst we might be dealing with a snitch, a member in good standing with the local Nazi club who was rolled by authorities and agreed to wear a wire. An FBI agent is another matter.
“It’s bad,” says Harry, “but there may still be some wiggle room.”
“What do you mean?”
“Well, I’ve been thinking about it all night. I almost called you last evening, but I figured I would let you sleep.”
“Thanks.”
“Don’t mention it,” he says.
“So what’s your point?”
“The disclosure by Tuchio in the sealed envelope delivered late yesterday. Why do you think he waited so long?”
“I don’t know. Tell me.”
“Tuchio has to know we’re going to raise hell with the judge,” says Harry.
“You bet. First thing Monday morning,” I tell him.
“So why didn’t he lay it on us earlier?” says Harry. “We guessed there was a wire. He had to know there was an agent.”
“What are you getting at?”
“I don’t think Tuchio knew until very late in the game, maybe as late as yesterday, whether the FBI would cooperate.”
These are the kinds of tea leaves most people might try to read. Harry, it seems, can smell them.
“Think about it,” he says. “You’re the FBI. You got your man burrowed deep in the bowels of some hate group. He’s taken a lot of risks, and you’ve taken a lot of time and effort to get him there. Suddenly a local prosecutor, with a dead body in a hotel room, discovers some of the affiliations of his principal suspect.”
“Carl and the Aryan Posse,” I say.
Harry nods. “It wouldn’t be hard for a diligent prosecutor to find out that, say, a local state-federal task force had penetrated the group.”
“Go on.”
“Tuchio was throwing the dice. Can you imagine the smile on his face when he found out how lucky he was, that of all the people in the local chapter of the Third Reich, Walter Henoch had selected our boy Carl to take under his wing in the bar that day?”
“True enough,” I say.
If Tuchio was having any second thoughts about his rush to judgment in charging Arnsberg, Carl’s chat with Henoch and his enthusiasm for kidnapping and target-shooting at the victim would have eased his conscience.
“Hell,” says Harry, “I’m surprised after reading Henoch’s statement that Tuchio didn’t file a motion to skip the trial, go right to execution, and ask for an order shortening time.”
“But you’re thinking the FBI was not hot to trot?”
He’s shaking his head. “Murder isn’t a federal rap,” says Harry, “even if it takes place in the Presidential Suite of a five-star hotel. Their job is protecting their agent and making sure their investigation stays on track. So here they sit, the FBI and Tuchio, eyeball to eyeball. The feds have a tape and a transcript of three men talking, two possible witnesses. You can be sure they tried to feed Charlie Gross to Tuchio. They would have offered him the transcript of the tape and Gross’s testimony.”
“But the transcript wouldn’t come in,” I say.
“Right,” says Harry. “Because Gross couldn’t lay a foundation for it. He couldn’t testify as to the wire, because he wasn’t wearing it and he didn’t know about it. So if that became the deal, the best Tuchio could do was try to have Gross memorize what was in the transcript, vomit it up in court, and hope we didn’t find out about it. Or he could rely on Gross’s memory of the conversation in the bar. Of course, Gross was probably drunk that night, and being a three-time loser, you have to figure he’s likely to have the IQ of a paper clip.”
“Plus the felony convictions. We could impeach him,” I say.
“So from every angle you have to admit that this would not be a good deal for Tuchio. He would have gone from the elation of an FBI agent in his hand, the knowledge that he could break our back, to the realization that he was going to have to sit through two months of memory courses with Quasimodo and then pray that Gross could get through it all without having to untie strings from each of his toes while he was on the stand. Bust his balloon,” says Harry. “But let’s not feel too sorry for him. After all, somewhere along the way he managed to pull the chestnut out of the fire. He’s back up to an FBI agent. That’s why we got the disclosure so late, yesterday afternoon,” he says.
I look at Harry. “It would take a while to get through all the little rabbit warrens back at Justice in D.C. Of course, when you have a few thousand people jumping up and down out in front of the courthouse, it doesn’t take a lot to imagine them lighting torches to burn a city or two if the jury were to deliver a result they don’t like.”
“Yeah, I’d bet that’s the kind of optimistic thinking Tuchio would have laid on them,” says Harry. “With that thought you’re bound to be able to stick your foghorn in somebody’s ear in Washington.”
“The question is, what exactly did the Justice Department tell Tuchio? How much rope did they give him? How firmly does he have Henoch in hand?”
EIGHTEEN
Monday morning Harry and I hook up at the same corner where we’d parted company Friday afternoon, two blocks from the courthouse. We may be dressed in Armani and wearing cordovan loafers, but inside is that age-old feeling you had in the fifth grade on the way to school when you knew your homework wasn’t done. We are no closer to spinning a defense than we were a month ago.
Outside on the street in front of the courthouse, the crescendo has quieted considerably. The helmeted riot squad is now down to a handful, bracing themselves against their scuffed acrylic shields like farmers leaning on hoes while they talk.
The mob carnival, what’s left of it, is not even a shadow of the beast from the first day. There are a few signs, one small group, maybe twelve or fifteen, walking in a circle chanting some mumbled mantra—St. Apathy’s Order of Indifferent Monks. A few teenagers in baggy pants, their belts down at knee level, are laughing and cavorting, gangsta wannabes, jumping from the steps trying to get on camera. In front of them with their backs to the kids, a line of reporters like victims at a firing squad stand erect, talking into an opposing line of cameras.
It is difficult to sustain the fighting morale of a fevered following when the bone over which you’re snarling turns into cerebral, scientific evidence. Still, Harry and I know that the armies of Hannibal and the Carthaginians will be back, and in full war paint, just as soon as they hear that a
jury is about to boot the ball through somebody’s goalpost.
Tuchio brings on the medical examiner, Dr. Dwight James. The courtroom is filled to overflowing. Judge Quinn warns family members and friends of the victim that they may wish to leave the room, for there will be lurid descriptions and graphic images.
Here things get much worse, for the reason that the M.E. brings along his own set of photos, pictures from the autopsy he performed on Scarborough at the morgue.
While Harry and I fought tooth and nail to keep most of these out, at some point the judge threw up his hands and admonished us once more that after all there was a crime and it involved a dead body.
The problem with many autopsy pictures is that, depending on the case, they can be much more graphic than shots taken at the scene. As they look at the photos on the overhead, I can tell that some of the jurors are having a hard time reconciling these with the person they saw beaming at them from the back of Scarborough’s book during Tuchio’s opening statement.
In the first shot, Scarborough is lying on the slab faceup. The blood from the wounds has been washed away, so that the lifeless complexion of his face is the white pallor of bleached paper. His mouth yawns, dragged open by the dropped chin that seems to hang slack as if it were not attached to the upper part of his head. All resemblance to the living form is gone.
The photos go downhill from there, shots of the scalp severed from the rear of the head and dropped like a flap over the victim’s face so that the M.E. can better examine the wounds.
The pictures are hideous enough that many of the jurors avert their eyes, so that when I look over again, they are staring at Carl. Arnsberg has not been able, since Dr. James began, to even look at the screen. Instead his gaze is fixed on his hands, clasped and resting on the table in front of him. His head and upper body are swaying back and forth as if he were in a rocking chair. Were he the subject of a van Gogh painting, you might title the image Man Teetering on the Edge.
According to Dr. James’s testimony, his examination revealed seventeen separate stab wounds to the back of the head, neck, and top of the cranial area of the victim. Each of these involved a double set of puncture wounds, one from each of the two claws of the hammer head.
The medical examiner testifies that Scarborough was rendered unconscious by the first blow, the only merciful thing, it seems, the witness has to say.
There are sounds of sobbing coming from out in the audience. Quinn raises his gavel, about to silence it, when he realizes it is coming from Scarborough’s sister, seated in the second row. Instead the judge motions with the gavel to one of the deputies. A moment later she is ushered to the door, the deputy with one hand on her arm, the other over her shoulder to steady her.
Dr. James picks up where he left off. Based on the autopsy, the witness believes that the first blow was administered to the right side of the victim’s head just below the temporal lobe and below and behind the right ear. Here the hammer’s claws penetrated both bone and tissue to a depth of more than three inches. It may not sound like much, but according to the witness the angle of entry and the location allowed the sharp metal claws to reach the victim’s brain stem, the medulla oblongata, where the spinal column joins the base of the brain.
“From that instant,” says James, “the victim was unconscious and his body was paralyzed.” He asserts that this and the element of total surprise account for the complete absence of any defensive wounds on the hands or arms of the victim. He simply never had a chance to turn and defend himself.
“Was this a mortal wound?” asks Tuchio.
“For all intents and purposes, it was. Within minutes a victim suffering this type of wound would die, since the medulla, the brain stem, controls vital functions such as respiration and heart rate.”
Tuchio then has the witness take the jury on a tour of the rest of the wounds, almost every one of which would have been fatal, as all but two of these punctured the skull and entered the brain at various locations.
According to the wound patterns, it is Dr. James’s opinion that the assailant, who approached the victim from behind, was right-handed and that he used two hands to wield the hammer for maximum force. This latter conclusion is based upon the torque, or twisting action, evident in the claw wounds as they penetrated the skull. As the doctor puts it, “This was the kind of torque you might see on the head of a golf club from the over-and-under grip on the club’s handle as it turned through the arc of a swing.”
“Could you tell,” asks Tuchio, “whether these separate blows—I think you said seventeen in all—”
“That’s correct.”
“Were they administered slowly over a period of, say, many seconds or minutes, or were they done quickly, in rapid succession?”
“No. No. In my opinion they were administered in rapid succession, in the time it would take to remove the claws from the previous wound, extend the arms fully for the next blow, and swing. The only thing that might slow the assailant down was if the claws got hung up or if the assailant was forced to stop from sheer physical fatigue.”
According to the witness, it was the latter, fatigue, that finally ended the attack. The killer simply became too exhausted to continue.
“Dr. James, can you tell the jury, is there a word or a term for this kind of attack?”
“There is.”
“And what is that word?”
“It’s called ‘rage.’ Sometimes the term ‘rage killing’ is applied.”
“Why is that?”
“Because of the frenzied nature of the attack and the fact that the evident emotional and physical energy expended is far more than anything reasonably necessary to deliver a mortal wound or to achieve the objective of simply killing the victim. The attack in a case of rage reveals a desire on the part of the assailant to destroy the victim, to erase him from existence, not simply kill him.”
As the witness says this, Tuchio is looking at Carl, as if to focus the jury’s attention on the defendant. I can tell by the satisfied expression on his face that the prosecutor has already measured how he can use all this in his closing argument.
“Doctor, is it safe to assume that there could be any number of emotional triggers that might bring on a rage killing?”
“There are.”
“Can you give us some examples?”
“A frustrated romantic liaison, a jealous lover. It could be based on a long-standing feud between the assailant and the victim, something that may have gone on for years seething under the surface.”
“In your experience, in the cases that you’ve seen or studied, would a rage killing require that the victim know his assailant?”
“No.”
“So as far as the victim is concerned, the killer could be a complete stranger, somebody that he or she doesn’t even know?”
“Yes. I’ve seen cases.”
“Could such a rage killing be predicated on or brought on by perceived differences in social or political views between the assailant—”
“Objection, Your Honor.” I’m up out of my chair.
“—and the victim?” Tuchio finishes the question.
“May we approach?” I ask the judge.
Tuchio and I are at the bench off to the side, the court reporter huddling right next to us with the stenograph machine, taking it all down.
“This is beyond the scope of the witness’s expertise,” I argue. “He is not a psychiatrist or a clinical psychologist. And besides lacking the expertise, he has never examined or even talked to my client.”
“Jeez, Your Honor, I’ve not mentioned the defendant’s name,” says Tuchio. “It’s a simple hypothetical question, put to an expert. The witness should be allowed to testify as to whether he has seen or observed such cases, within his own experience or from scientific journals in his field: Can a rage killing be triggered by political or social disagreement? Simple question,” says Tuchio.
Quinn thinks about it for a second or two. “Reframe the question,�
� he says.
I start to argue.
The judge puts his hand up and sends us back.
Tuchio restates the question and mentions the words “scientific journals” in the field of pathology, the ticket to passage for an inferred head job by the county coroner on Carl and his presumed motive for murder.
The question isn’t even finished, and James is leaning so far forward in his chair he nearly falls out of it before he can answer. “Yes, there are documented cases involving political and social triggers for rage killings. I have personally been involved in cases involving homophobia and racial hatred. Based on studies in pathology journals, acts of genocide—often in times of war, but not always—have been documented to involve rage killings almost by definition. Any form of deep-seated emotional and oftentimes utterly irrational hostility can form the basis for such a killing.”
“Thank you.”
For a second I think Tuchio is done with the witness. Then he stops. “There’s one more issue I’d like to cover.”
Quinn wants to know how long this is going to take. The judge is looking at his watch, wondering if we should break for lunch.
“Five minutes,” says Tuchio.
“Keep it short,” says Quinn.
“Dr. James, when you arrived at the scene, the hotel room, I assume that you attended the body at the scene?”
“I did.”
“When you arrived there, where was the victim’s body situated?”
“On the floor in the living room,” says James.
“On the floor, not in the chair?”
“That’s correct.”
“Could you tell how long the body had been there, in that position, on the floor?”
“No.”
“But you testified earlier that the initial attack on the victim had taken place when the victim was seated in the chair, is that correct?”
“That’s right, judging from the position of the body on the floor at the base of the chair, the location of wounds, and the blood evidence at the scene.”
“So based on your testimony, can we assume that at some point after the initial attack the victim was either pushed or fell from the chair onto the floor?”
Shadow of Power Free with Bonus Material Page 25
