“She knew about the letter,” I tell him. “She says Scarborough made reference to it in earlier drafts of the manuscript, before the book was published, but that this was all deleted because she says Scarborough couldn’t authenticate the letter. She claimed Ginnis wouldn’t know anything about it. That he wasn’t the source.”
“Did she tell you about his participation in this little venture?” Harry means CEPP.
“No.”
“You have to figure she clerked for him. A close friend, she must have known what he was involved in. So what do we have?” says Harry.
“A tiger by the tail,” I tell him. “A Supreme Court justice who probably won’t talk to us. Unless we can subpoena him.”
“That’ll be a neat trick,” says Harry, “getting through the phalanx of federal marshals that guard the Supreme Court building. And we don’t know what he’s gonna say.”
Harry is right.
“Let’s face it,” he says. “The letter is problematic. We don’t know what it’s worth on the open market. We don’t know whether someone might kill to get it, only that it’s a possibility. According to everything Bonguard and Scott told you, Scarborough only had a copy of the letter.”
“And that he may have had access to the original through someone else,” I add.
“Ginnis?”
“Maybe.”
“Still, we can’t prove that he had the original in his possession when he was killed,” says Harry. “Without that, you can’t prove motive for murder.”
“There is another possibility.”
“What’s that?” says Harry.
“That whoever killed Scarborough didn’t do it to get the letter.”
“Then why?”
“To keep its contents from being published.”
Harry gives me a quizzical look.
“Scarborough’s book, the language of slavery, the fact that this was still in the Constitution-these were known facts,” I tell him, “though not generally items of controversy until Scarborough mainlined them, put them up on a marquee, at which time they stirred up riots around the country.”
“So?”
“So people often don’t pay much attention to government until it hits them in the head like a two-by-four. Scarborough spelled it out in big letters, the continuing stigma, the national insult. If the letter is as explosive as he believed, there’s no telling what kind of fires it might ignite if it were published, especially in the kind of flammable prose used by Terry Scarborough. Not some dry scholarly work but a racial call to arms.”
“In which case it wouldn’t matter whether he had the original of the letter or a copy,” says Harry.
“Exactly.”
“But who would kill him for that?”
“Not our client,” I tell him.
“No,” says Harry. “Probably not.”
Harry and I have had our share of high-profile cases, but this one, tinged as it is by the issue of race, possesses an explosive quality all its own. To the extent possible, I have avoided the media, for there are obvious pitfalls here, questions the answers to which can be twisted to fit a dozen different political agendas.
This morning one of these has exploded on us like a roadside bomb during our trek to trial. In an effort to extinguish the flames from this, Harry and I meet with Carl Arnsberg at the jail. It is nearly seven in the evening, the first chance we’ve had to talk to him. Harry and I have been locked up in court all day with jury selection and pretrial motions.
Inside the closed cubicle, the little concrete conference room, Harry is first to erupt.
“Why the hell didn’t you tell us about these people? Surprises like this can lead to the death house. Who are they?” Harry’s face is flushed. He is angry.
Arnsberg avoids eye contact. “Friends,” he says.
“Why didn’t you tell us about them?”
“Didn’t think it was important,” says Arnsberg. He is sitting at a small stainless-steel table that is bolted to the floor, his head resting in his hands as he gazes down at its scratched surface.
“Not important?” Harry’s voice rises a full octave. “Lemme ask you. Do you know what they’re saying?” Harry looks at him.
“No.”
“They’re saying that you talked openly about kidnapping Scarborough, that you tried to talk the two of them into helping you. And that this all took place just two days before Scarborough was killed.”
“It’s not true.” For the first time, Arnsberg’s gaze comes up from the table. He looks at Harry straight on. “That’s a lie. I never asked anybody to help me. I was only talking.”
“We have their statement,” says Harry.
“I don’t care what you have. It’s a lie.”
It is a game played by prosecutors: Bury the needle in a stack of other needles. In reply to our request for discovery, the district attorney, in addition to reports and photographs of the physical evidence, has sent us a list of more than three hundred potential witnesses-people who worked at the hotel, acquaintances of the defendant, some of whom have known him but not talked to him since grade school, others who might be eyewitnesses who may have seen Arnsberg in the hall outside Scarborough’s room that morning. Harry, with investigators for our side in tow, has been forced to waste valuable time checking all these out. Most of them are chaff, people the D.A. will never call, because they have nothing of value to offer in his case. They are put on the list to distract us, to waste our time and limited resources. Most of all they are there to provide camouflage, to hide the handful of razor-sharp pieces of real evidence lying just beneath the surface over which they hope to drag us and tear us to pieces. Unfortunately for us, Walter Henoch and Charles “Charlie” Gross threaten to do just that.
“You say you were only talking to these friends,” I chime in. “Talking about what?”
“Passin’ the time o’ day. Shootin’ the shit. You know. Just talkin’.”
“About what?” If he could, Harry would waterboard Arnsberg at this point. To my partner, torturing a client who lies to his own lawyer should be part of the attorney-client privilege. Misdirection from a client is one of the things that sets off Harry’s naturally short fuse.
“All right, sure we talked about the man.”
“Scarborough?” says Harry.
Arnsberg nods, then puts his head back in his hands, elbows propped up on the table.
“Look at me,” says Harry. “What did you tell them? Specifically. Details.”
“I told ’em it would be a piece of cake.” Arnsberg still won’t look at him. “So what?”
“What would be a piece of cake?”
“Kidnapping him. I maya mentioned it, that’s all. But it was only talk. We weren’t gonna do anything. I never talked about killin’ him.” To Arnsberg this seems to make everything all right.
“Still, the man’s dead,” says Harry. “Somebody did something.”
“Wasn’t me.”
“How long did you know these two guys?” I ask.
“I dunno. Charlie I known for a year, maybe a little more. The other guy-”
“Walter Henoch.”
“Yeah. I didn’t know him hardly at all.”
“I see,” says Harry. “Just well enough to discuss a kidnapping with the man.”
“You make it sound bad.” Arnsberg finally looks up at him.
“Not half as bad as the prosecutor will make it sound. Believe me,” says Harry.
Arnsberg’s eyes are bloodshot, as if he is missing a lot of sleep in the jailhouse maelstrom at night.
“Where did you meet these guys-Charlie and Walter?”
“Like I said, we just had a few drinks. Met at a bar.”
“Does the bar have a name?” says Harry.
“ Del Rio Tavern. Place out offa I-8, near El Centro.”
“Why way out there?” says Harry.
“We were meetin’ some other people.”
“The Aryan Posse?” I ask.
The ki
d looks at me, kind of cross-eyed. “Some of ’em might have been members.”
I have been alerted to this by Carl’s father, who warned me that his son had gotten involved in something called the Aryan Posse, a neofascist group with connections out in the desert halfway to Arizona, at some kind of meeting place. Mail used to come to the house when Carl was living there with his mother and father. His father saw it and raised hell. But it didn’t do any good. This has been the other shoe waiting to drop. There have been a few items in the newspaper, references to Arnsberg as a neo-Nazi, but to date nothing definitive. This makes me wonder what the cops have that they will drop on our heads come trial.
“We’d just had a few drinks together, after work. You know. We’d shoot the shit.” This according to Carl.
“And you drove all the way out into the desert for that?” says Harry. “What’s the matter? No bars in town that suit your taste?”
Arnsberg looks up at him through one eye but doesn’t answer.
“Carl, you may as well tell us. It’s going to come out during trial. Were you a member of the Aryan Posse?”
“No. You keep askin’ me, and I keep tellin’ ya. No, I never joined. Just went to a couple of their meetings out there. That’s all.”
“You were on their telephone list. They called you for events,” I tell him.
“Lot of people got called to go to events. Doesn’t mean they’re members. You go to a meeting, they get your cell number.”
“Did you talk to anybody at any of these meetings about Scarborough?” I ask.
“No. Not me. Never. I mean, there was a lot of talk about him. They had pictures of him.”
“Of Scarborough?”
“Yeah.”
“Where did they get these pictures?”
“I don’t know. Maybe off his book.”
“You mean off the book jacket?” says Harry.
“I don’t know. But they shot it all up.”
“His picture?”
“Yeah. They made it into, like, a target. His face in the bull’s-eye. Put it out on the range and shot it all to hell.” He laughs.
Carl thinks this is cool. He won’t be nearly so cavalier if the prosecutor gets wind and paints the image for the jury.
“Did you shoot at it?” I ask. This would have devastating consequences if prosecutors can get testimony of Arnsberg shooting at images of the victim days before he was killed.
“No. I shot a few rounds. But not at the target. Some empty beer cans. At their range. Somebody handed me a gun. It looked like fun, so I shot a few. But I don’t remember shootin’ at anything that looked like Scarborough.”
“You don’t remember,” says Harry.
“No.”
“Wonderful. Now we have a good mental image to go along with the words, verbal musings over how easy it might be to abduct the man. D.A.’s gonna have a field day,” says Harry.
“Hell, it was all over the papers, on the news,” says Arnsberg. “Guy was stirring up trouble. He was a shit disturber. Fucking agitator. You want to know the truth, he got what he deserved.”
It is becoming increasingly clear that we may not be able to put our client on the stand. One statement like this before the jury and they will erect a scaffold in the jury box and hang him there on the spot out of sheer principle.
“Tell us exactly how the issue of kidnapping came up,” I say. “When you were talking to your friends? By the way, was anybody else present, besides the three of you?”
“No.” He thinks for a second. “No. Just us three.”
“Go on. How did it start?”
“Lemme think,” he says. This time it takes him a couple of seconds. “I’m pretty sure it was the other guy, that guy Walt. He said there was a lot of talk out on the reserve. That’s what they called the place the Posse met. He said there was people talking about gettin’ this guy.”
“ Scarborough?”
“Right. He said something like ‘their blood was up.’”
“Walt said this?” says Harry. “What did he mean by that?”
“They was mad. You know. Then he said I was lucky, cuz I was workin’ in the hotel, and according to the newspapers he was gonna be staying right there where I worked. So at least I could see him up close, like that.”
“Walt said this?” I ask.
“Walt, or it mighta been Charlie. I’m not sure. One of ’em said it. That’s how it got started.”
Harry’s following all this as he pages through the witness statement.
“Who suggested kidnapping?” I ask.
“I don’t know. I mighta said something. That it would be easy to do. Ya know, it was cool. Just talking with guys. I had a few beers. I was never gonna do it,” he says. “Just talk.”
“What did they say then? Walt and Charlie?” I ask.
“They said, ‘Yeah. Cool, man. Right on.’”
“Yeah, they wanted to do it, or yeah, it would be easy?”
“I think they meant it would be easy. I’m not sure,” he says.
“Well, let me read to you,” says Harry. “Maybe it’ll refresh your memory.” He flips a couple of pages. These are stapled together at the top left-hand corner. He finds his place, then lowers the spectacles a little on the bridge of his nose so that he can look over the top of them at Arnsberg.
“‘Walter Henoch: You’d do that?
“‘Carl Arnsberg: Yeah.
“‘Walter Henoch: Kidnap him?
“‘Carl Arnsberg: Yeah. I’d do it. I might need some help, but I’d do it.
“‘The three of us did high fives at the table. I ordered another round of beers.’ This is Henoch speaking,” says Harry.
Harry flips a page, scans down it, then another. “Here,” he says.
“‘Carl Arnsberg: It would be easy. Rap him up the side of the head, throw his ass in a laundry cart, and take him down the service elevator. Hell, we could have his ass out in the desert tied to a post in front of a firing squad before he knew what hit him. Skin his ass before we shoot him.’
“Did you say that?” Harry looks at him.
“No. No, no. I don’t think so. Like I say, it was a while ago. But I don’t remember anything like that.”
“Maybe all those beers, you forgot?” says Harry.
“No. No. I never said that.”
“You’re sure?”
“Yeah. Yeah I’m sure.” His words are emphatic. The look in his eyes is anything but. Like a kid caught pissing against the side of the schoolhouse by the principal.
“You’re sure?” Harry asks him again.
This time all he gets is a shrug from Arnsberg. “I think so. If I said it, I didn’t mean it.”
“So you might have said it?”
“Hey, I don’t think so. I know I didn’t talk about killing him.” The gravity of all this is beginning to settle on Carl Arnsberg, like stone weights used to crush a man. Up to this point, the case has been circumstantial, physical evidence at the scene that tied Arnsberg to the location of the crime and the time it was committed. Apart from his associations and his potential motive of hate, he also had a business reason for being in the room that morning. He was delivering breakfast, by all rights an innocent act. This, however, is something else: witnesses who can put words in Arnsberg’s mouth in the period immediately prior to the murder, especially when those words cut close to the events of the actual crime. This could give the state a case with legs. It is not something complex and hard to comprehend, like DNA with its infinite mathematical probabilities, something the defense could flip on its head and play with. If the jury believes the witness statements, they become a pipeline to the defendant’s innermost thoughts, a statement of intentions.
Worse is the part that Harry and I are not telling him. These particular witness statements are not in the usual form, a loose narrative of paraphrased remembrances jotted down from recall days or weeks after the event.
These witness statements are in the form of a transcript, chapter and vers
e, with quotation marks at the beginning and end of each passage, direct quotations. There is only one way that such a transcript is normally made-that is, if one of the participants to the conversation is wearing a wire.
Our best guess is that this particular gathering of neo-Nazis popped up on some law-enforcement radar screen. If the cops rolled one of the members, perhaps nailing him on drugs or some other charge, and then cut a deal, getting him to wear a wire whenever he talked to his friends, this would explain how Carl was caught on tape. He may not have attended many meetings, but he was at the wrong place at the wrong time, shooting off his mouth.
Sit down at a street-side café with an intimate friend to have a confidential conversation and your words along with pictures may show up on YouTube and the World Wide Web. If Harry had to guess, his candidate for wearer of the wire would be Walter Henoch, the newest man on the scene, the one Arnsberg didn’t know that well, the man who got him talking.
7
Upstairs, the walls of the main courthouse are decorated with pictures of the local worthies, mostly judges, some of them dating back to just this side of the California gold rush. Here the noise and commotion, the jostling of bodies, is different from in the lobby downstairs. Most of the lawyers, clerks, and courthouse staff seem to have some goal and direction, even if the cases they’re working do not.
There are two separate courthouses in this town, one civil and the other criminal, connected by a bridge that spans the street between them. And for all intents and purposes, it is the only thing that connects them.
It is just my view, but on the civil side it would require a peculiar wit to call it a justice system. Buried in mud over the axles twenty years ago, lawmakers threw up their hands and pushed everything on the civil side out of the courthouse door and into arbitration. This became the tollbooth you had to pass through to get back into the courthouse.
Once there, however, any claim, no matter how frivolous, often results in the defendant’s ponying up money rather than being bankrupted by years of litigation or facing the prospect of death by old age in a courtroom full of busy lawyers flinging pieces of paper around.
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