Shadow of Power

by Steve Martini

  “I agree entirely with Gladys.” Some guy claws his way onto the screen, bow tie and preppy sport coat. “Otherwise his client is going to get steamrolled. I can tell you right now that in this case the state is gunning for bear. They know what happened in O.J. It was a career killer for those who prosecuted. They’re not going to make that mistake again.”

  I turn to the front page of the newspaper, another bombing in Baghdad, trouble with Iran-who could have guessed? The kicker at the top of the paper tells me the dollar is sliding again. Pretty soon we’ll have to use pesos to stay ahead of inflation.

  I open the paper hoping maybe things will get better inside. Page two, there’s a three-column picture of the melee in front of the courthouse yesterday morning. The reporting seems to cover the brawl outside more than the events inside, which for us is just fine. The story spends only four ’graphs recapping Tuchio’s opening statement, though they hit the high points, a summary of all the damaging evidence the state promises to present and of course the erroneous interpretation that the state has witnesses who will testify that Arnsberg threatened Scarborough’s life.

  I continue reading. Next page a headline at the top: DEMOCRATS AT WAR WITH THE WHITE HOUSE.

  Republicans are accusing Democrats in the Senate of holding up two nominations to the federal circuit court of appeals in Washington, D.C. They claim the Democrats are playing politics with the courts, hoping for better tidings following the next presidential election, now less than nine months away.

  Democratic leaders in the Senate vowed to work with the president. But from all appearances, members of the Senate Judiciary Committee have their feet planted solidly in cement.

  As one Republican critic put it, “Given the Mexican standoff in the Senate, nobody is going on the D.C. circuit unless Democrats are allowed to take the nominee into the Senate cloakroom and perform a lobotomy.”

  I read on. The District of Columbia circuit court is seen as the incubator and launching pad for future appointments to the Supreme Court. The story explains that the high court has been evenly split along party lines for more than a decade. It talks about some of the hot-button issues, abortion and the death penalty. Whether the Court should be urged by Congress to more clearly define the war powers of the president. Whether government should be allowed to intercept private e-mails without a warrant. Whether citizens should continue to be allowed to own and possess firearms. The list goes on.

  According to one Court observer, “Decisions involving important social, legal, and political issues now teeter on the edge of a knife; judicial edicts that can dictate the rules of society for a hundred years increasingly are being decided by a single swing vote on the Court.”

  Members of Congress realize that the current political equilibrium between the Court’s liberal and conservative members cannot last. According to one source, there are at least three members of the Court who would like to retire but who feel they cannot until there is a changing of the guard at the White House.

  The piece goes on to discuss some of the senior members of the Court, three of them in their seventies and one who is eighty-seven. Two of them have had recent illnesses. Should any of them retire or die, it would be considered a coup by the current White House, since the power to name their replacement would significantly alter the balance on the Court.

  “One of these justices, Arthur Ginnis”-my eyes perk up as they run over the type with his name-“who is 67 and underwent hip surgery last winter, has been on and off of medical leave from the Court for several months due to complications. Ginnis was expected to return to the Court full-time in the fall, but that didn’t happen. According to reports, he is making progress but still recovering at an undisclosed location outside Washington. Political pressure is building for Ginnis to either return to the Court or retire. There is no law that requires him to do so, and there is some historic precedent based on other long-term absences for illness.

  For the moment the high court is hobbled, unable to take up a number of controversial cases in its current term. This is because, according to Court watchers, it is Ginnis who is seen as the pivotal swing vote in many of these cases. According to these observers, decisions as to whether to take up these cases will simply have to wait for his return.

  I have a letter out to Ginnis’s chambers at the Supreme Court and have left a telephone message. I’ve asked him to contact me and introduced myself as defense counsel in the Scarborough murder case. I have not mentioned the Jefferson Letter or asked any specific questions, only made a request that we speak. So far I have received no reply. I turn back to the article.

  Politicians on both sides of the aisle seem to comprehend the significance of the moment, that a change of epic proportions in the ideological makeup of the high court may be just over the horizon, a change that could dictate social and legal policy in the country for much of this century.

  As for the question of who will control the Court, leaders in both political parties see the current skirmish over nominations to the D.C. circuit court as the opening salvo in a looming war.

  To quote one lawyer who has argued cases before the Supreme Court, “Given the number of imponderables, the fact that it is impossible to anticipate what momentous issues will be presented to the Court in the future, stocking the Supreme Court with your believers is now the biggest political endgame in America.”

  I close up the paper and put it to the side. There is no rocket science in this. The federal courts are untouchable. The framers of the Constitution made them that way. Where else could a beverage company take your house for a new bottling plant and have the elevated minds of the high court define this as a public purpose under the eminent-domain powers of the Constitution?

  One federal appellate circuit occasionally goes off on a wobble so erratic and out of conformity, not only with precedent but with strictures of ordinary reason, that at times it has been referred to quietly by some who practice before it as the “Ninth Circus.”

  12

  Monday morning, and Quinn’s courtroom is like a pool filled with gasoline. Now that there is no longer any doubt that the state’s case will be racially charged, we’re all swimming in it, and the air is electric.

  First up into the witness box are two patrol officers, the first to arrive on the scene immediately after the crime was called in. They each testify that they took one look and concluded that the victim was dead. They did a quick search of the entire suite to determine there was no one else inside and then sealed the area, making sure that no one else entered. One of them took a statement from the hotel maid who’d opened the door and found the body slumped on the floor in front of a chair in the living room.

  This is all preliminary and sets the stage for Brant Detrick, the lead homicide detective. If you’re looking to settle a jury down and get them into the rhythm of your case, Detrick is a good opening witness.

  According to his testimony and based on notes he made at the time, Detrick was on the scene within forty minutes of the initial call to 911.

  The D.A. then takes a few minutes to qualify the witness not only as an experienced homicide detective but as an expert in crime-scene reconstruction, for which Detrick has taken courses both locally and with the FBI.

  Tuchio then has him lead us on a verbal and visual tour of what the cops found at the scene. He has Detrick stand in front of an easel with a mockup of the floor plan of Scarborough’s hotel room. This shows furniture drawn to scale and situated where it was on that day.

  In the process, the detective offers testimony, a partial re-creation of the events at the scene and how according to the police they unfolded. He identifies the chair, the one the cops believe Scarborough was seated in when he was murdered.

  “There was a considerable amount of blood on the headrest at the upper back of this chair, leading us to conclude that the victim was seated in this chair when he was struck from behind,” says Detrick.

  He moves on to the area where the body came to res
t, on the floor, in front of the chair, and off to the right as you look into the room.

  “We believe that the victim either toppled or slid from the chair, as a result of one or more of the impacts from the murder weapon as it struck him or because lividity caused the body to slide out of the chair and onto the floor at some point after he died.”

  Tuchio and the witness get into a discussion explaining to the jury the hydraulics of lividity, the movement of blood in the body after death by the force of gravity, and that this can sometimes move a body, especially if it’s propped in a chair or leaning toward the edge of a bed.

  “When you arrived that morning, what else did you see?” asks Tuchio.

  “There was a lot of blood and spatter evidence,” says Detrick. “The floor around the chair in the living room near where the body was found was pretty much covered in blood, as was the tile floor in the entry.”

  “What do you mean by ‘spatter evidence’?” asks Tuchio.

  “I’m talking about droplets and spray that are usually flung out in an arc of some kind when a weapon, a blunt instrument, or a knife has become covered with blood and is repeatedly swung. This tends to throw out a spray of blood, sometimes tissue, that ends up on other surfaces-a wall or the ceiling, for example.”

  “And you saw evidence of such blood spatter in this case in the victim’s hotel room?”

  “I did.”

  “Where?”

  “There were patterns on the ceiling, directly above and to the front, and behind the chair near where the body was found.”

  Tuchio has him draw a dotted line on the room diagram in the direction and location where the spatter evidence was found. “There was also some evidence of spatter on the television screen, here.” He marks the location of the television directly in front and several feet away from the chair. “And on a small table, here, and a light briefcase, a leather portfolio that was on that table. And farther off to the right, we found some traces on the surface of a small table, underneath a tablecloth and tray with food on it.”

  “But not on top of the tablecloth or tray?” Tuchio makes this very clear.

  “No.”

  Harry and I have been wondering how they’re going to deal with this. Blood under the cloth and tray but not on top means Arnsberg would have had to kill Scarborough while juggling a tray full of food and a tablecloth in one hand while he hit him with the hammer in the other.

  “Did you find anything else?”

  “We found a carpenter’s framing hammer.”

  “When you say framing hammer, can you describe the hammer for the jury?”

  “It was a typical hammer, the kind you might find in any hardware store. A metal hammer with claws for pulling nails or prying wood apart.”

  “Was there anything peculiar about this hammer that brought it to your attention?”

  “Yes. It had a considerable amount of blood on it, along with traces of tissue and hair stuck to the hammer in the area of the claws.”

  “Okay. In relation to the other items in the room-the area where the victim lay, the chair, the television-where did you find this hammer?”

  “It was on the tile floor a few feet off the carpet in the entry.”

  Tuchio has him mark the diagram with the location where the hammer was found.

  “When you saw this hammer, did you form any conclusions based on its location and the fact that it bore signs of blood and tissue?”

  “The obvious one,” says Detrick.

  “And what was that?”

  “That there was a good chance that this was the murder weapon.”

  Tuchio then walks over to the metal evidence cart that has been rolled out in front of the clerk’s desk. He picks through several paper bags, each of them sealed closed with a labeled tape from the police crime lab. He checks the tag on each bag until he finds the one he wants. Without opening it he carries the bag to Detrick, who is now back in the witness chair, and hands it to him.

  “Would you open it, please, and remove the item inside?”

  Everybody in the courtroom already knows what’s there, but the little drama keeps us all looking.

  Detrick, who is wearing a pair of white cotton gloves, tears open the top of the bag, reaches inside, and removes the hammer. He holds it gently in both his gloved hands so the jury can see it. What appears to be rust but in fact is dried blood can be seen on the claws and head of the hammer.

  “Detective Detrick, do you recognize that hammer?”

  There is an evidence tag hanging from a string tied around the handle near the head. Detrick looks at the tag. “I do. It’s the hammer that was found on the floor in the entry hall not far from the body of the victim, Terry Scarborough.”

  “Can you tell us anything else about that particular hammer? Its size, shape…?”

  “According to our investigation, it’s a thirteen-ounce, smooth, octagon-face, straight-claw fiberglass hammer with a rubber grip and a twelve-and-a-half-inch-long handle.”

  “When you say fiberglass, what part of it is fiberglass?”

  “The handle, which is covered by rubber at the grip.”

  He has Detrick point to the hammer’s claws. “And straight claw,” says Tuchio. “As opposed to what?”

  “Rounded or curved claw,” says Detrick.

  “It sounds like you’ve become an expert on hammers,” says Tuchio.

  “No, we made inquiries, mostly telephone calls, based on the manufacturer’s information stamped into the metal regarding model numbers, and that’s the information we got back.”

  “Can you tell us who owns that particular hammer?”

  “Based on a mark painted on the handle and a number stamped on the head of the hammer, it’s part of the tool inventory belonging to the Presidential Regis Hotel in San Diego.”

  “Is that the hotel where the victim, Terry Scarborough, was staying on the morning he was killed?”

  “It is.”

  Tuchio has the witness put the hammer back in the bag, then has it marked for identification and returns it to the evidence cart. He won’t move it into evidence, not yet, not until other witnesses from the crime lab and the coroner’s office identify trace evidence that was found on it, hair and tissue along with blood, tying it directly to the victim. Instead he reaches underneath to the second shelf on the cart and finds the next item. This is in a manila file.

  “Before we move on, let me ask you,” says Tuchio. “Besides the hammer you’ve just identified and the blood and spatter evidence that you’ve testified to earlier, did you find anything else unusual in the immediate area around the victim?”

  There is some confusion here. Detrick is not precisely sure where Tuchio is trying to take him.

  “In the tiled area of the entry hall,” prompts the prosecutor.

  “You’re talking about the shoe impressions?”

  Tuchio doesn’t say it but nods.

  “Yes. We found shoe prints, impressions from the soles of two shoes, as well as what appeared to be a partial human palm print and three separate fingerprints.”

  “Where did you find these?”

  “They were quite obvious. They were on the surface of the tile floor in the entry. They were imposed in the partially dried blood on the tile.”

  Detrick comes off the stand long enough to locate on the room diagram the general area where these were found. He has trouble marking the area of finger-and palm prints, as it is almost on top of where he placed the hammer.

  Detrick is back on the stand.

  “Let me ask you, Detective, as the lead investigator on the scene, did you have occasion to have photographs taken of the crime scene and the area around it that morning?”

  “I did.”

  Tuchio now hands him the file from the evidence cart that he has been holding and asks him to look at the photographs inside. “We have provided copies of all these items to the court and to the defense,” says Tuchio.

  The judge nods and opens a file in front of hi
m on the bench.

  Tuchio and I argued over these for the better part of two days in front of the judge in chambers, during and just after jury selection. There were nearly two hundred photographs of the scene taken that day by police from various angles and distances. We have culled them down to twenty-eight photographs, close-ups and distance shots showing the layout of the room, the scene from different angles. There are close-ups of the television set and a leather briefcase, a kind of thin zippered portfolio on a table next to it, both showing signs of a light film, which we know to be the fine spray of blood flung out by the centrifugal force of the hammer as it was swung to strike Scarborough’s head. There are a few distance shots showing the body on the floor, a few papers scattered under and around him, shots of the hammer and the location where it lay on the floor in the entry, pictures of the shoe impressions with rulers for scale and two of the palm and fingerprints, again with a ruler for scale. There is one showing what we believe to be the elongated skid mark in the blood, the comma that comes to an end at the wall.

  There are only four shots that show close-ups of the victim, close enough to see the gaping wounds with clotted blood and brain tissue at the back of his head. One of these, a shot from above showing not only the wounds but Scarborough’s left eye wide open, pupil dilated like a fired camera lens, is the most startling. Tuchio fought for this photograph to come in as if it were the Holy Grail. I argued that the graphic nature was so shocking as to be prejudicial in the extreme. It was the end of a long day, and the prosecutor’s tactic of holding this for last worked. Quinn was tired, worn down by too many arguments. He swept mine away with the comment that “after all, there was a murder.”

  Detrick looks at the photos, identifies each of them as having been taken at the scene. Under questioning he identifies photographs of the hammer, the shoe prints, and the single palm print and fingerprints.