“Can you tell the jury why you happened to meet at that particular location?”
“Because we were goin’ to a meeting at a range,” he says.
“What kind of range?”
“It was a shooting range. They called it ‘the reserve.’”
“Who called it…?”
“The Aryan Posse.” Gross makes it sound as if the term, the very name of the organization of which he was a charter member, is alien to him.
“But before you went to this shooting range, you and Mr. Arnsberg were together at the Del Rio Tavern, is that right?”
“That’s right.”
“How long were you there, at the tavern?”
“Oh, I don’t know. Maybe an hour. Maybe a little more.”
“Now, when you were at the tavern, was the defendant drinking, having any alcoholic beverages at the time?”
“Not much,” he says. “He mighta had a beer or two, but that’s all.”
“Did it appear to you that he was drunk or under the influence of alcohol or drugs at that time?”
“No. He was sober,” says Gross.
“And during this time, at the tavern, how many beers did you have?”
“Oh, I don’t know. Maybe four or five.”
“Were you drunk at the time?”
“Well, a little,” he says. “I mighta had a little buzz on. But I remember very clearly what was said.”
This, of course, is the whole point.
“Let’s get to that, what it was exactly that was said. At some time during your meeting with the defendant at the Del Rio Tavern, did the subject of Terry Scarborough come up?”
“Yeah, it did.”
“And how did the subject come up, do you remember?”
“As I remember, this guy’s picture, Scarborough, came up on the television behind the bar, on the news when we were sittin’ there. And Carl there got real upset. He was talkin’ out loud about how the guy was causing all kinds of problems. That he saw him on the news and how Scarborough wanted whites to pay money to the blacks because of slavery. He was sayin’ how this guy, Scarborough, wanted to turn the country over to ’em.”
“Over to whom?” asks Tuchio.
“You know. African Americans,” he says.
I’m wondering how long it took Tuchio to get Gross to drop the N-word and say the two he just said in their proper order.
“What else did Mr. Arnsberg say?”
“He was braggin’ about the fact that he worked at the hotel where this man, this Mr. Scarborough, used to stay in San Diego and probably would again. There was a lotta talk. And he said it would be easy to kidnap him.”
“Kidnap him?” Tuchio’s voice goes up two octaves.
“That’s what he said.”
I glance at the jury box at this moment. They are rapt, not even taking notes. They’re listening, which is worse.
“Did he say why he might want to do this, to kidnap Mr. Scarborough?”
“Well, it was pretty clear he didn’t like the man.”
“Scarborough?”
“Yeah. He kept callin’ him an agitator. Said he was causing all kinds of problems.”
“What kind of problems?” says Tuchio.
“Racial problems,” says Gross.
Tuchio gives it a good, long pause, so that the words settle all the way down to the floor in the jury box.
“From what the defendant said to you, then, did it appear that he had disagreements with Mr. Scarborough’s beliefs and values with regard to issues of race?”
Ask an obvious question and you get an obvious answer.
“Yeah, I would say so.”
“When he talked about this, did he appear to be angry?”
“Oh, yeah. He’d talk your arm off.”
People in the audience laugh.
“Was he agitated, excited?”
“He wasn’t happy, if that’s what you mean.”
More laughter.
Gross is starting to enjoy this.
“Was he mad?”
“Oh, yeah, mad as hell,” he says, and then he looks up at the judge with a nervous smile.
Quinn ignores him.
“I see,” says Tuchio. “Did the defendant say anything about how he might carry out this kidnapping?”
“Yeah. He said it would be no problem to hit him on the head and dump his body into a laundry cart and take it down a service elevator.”
“He said ‘hit him on the head,’ and he was talking about Mr. Scarborough?”
“Yeah, that’s what he said.”
Now the jury is taking notes.
“Let me ask you, at the time the defendant said this, that it would be easy to hit Mr. Scarborough on the head”-Tuchio wants to repeat this, a good sound bite and right on message-“did you think he was serious?”
“At that time, no,” he says. “But later-”
“Objection,” I say.
“Sustained,” says Quinn. “The jury will disregard the last part of the witness’s statement. Just answer the questions that are asked. Don’t volunteer anything,” the judge tells him.
“Yes, sir.”
Tuchio has an embarrassment of riches here. He’s not sure which one to pick next, so he goes back to the same fruit.
“Besides hitting Mr. Scarborough on the head”-he can’t say this one enough-“and dumping his body into a laundry cart and taking it down the elevator, did the defendant say anything else?”
“Yeah. He said we could take him out into the desert and shoot him.” This, coming from Gross, is worse than what is actually on the transcript from Henoch’s wire, because it sounds real. It is cast in the language of a credible threat.
To read the words in the transcript, it’s clear that Carl was bragging, turning macho phrases. “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.” I know this because the passage from the transcript is in my notes right in front of me on the table. But I can’t use it to cross-examine Gross, because neither the agent nor the transcript is in evidence. We made sure of that.
Around the edges of this testimony, it begins to settle on me that Tuchio isn’t angry at all. And he isn’t stupid. He has outfoxed us. If Gross was properly schooled, closeted for weeks and tutored, and it appears that he has been, he could in fact be more valuable than the transcript. Reading it, Tuchio must have realized that some of the verbatim language could actually become a burden. He also knew he couldn’t play games with the words if he had a government agent on the stand.
But with Gross he can paraphrase his way around the rough spots in order to smooth out his case.
As I sit here listening to him work us over with this witness, it suddenly dawns on me. Tuchio never wanted to call the agent in the first place. What he wanted was for us to take Henoch and his statement off the table, so that we couldn’t use him in our own case to prove discrepancies in Gross’s testimony. Now he is free to soar. Gross can say anything he wants, and unless we can shake him on cross, Tuchio is home free.
As the blood in my veins begins to chill, Tuchio and the witness take the jury for a verbal ride out into the desert, to the place the Posse called “the reserve”-the shooting range.
Gross tells the jury that somebody, he doesn’t know who, obtained large, poster-size photographs of Terry Scarborough and stapled them to targets, so that by the time he and Carl got to the range, some of the Posse members were already shooting at these with pistols and rifles.
Tuchio retrieves a copy of Perpetual Slaves, Scarborough’s book, from the evidence cart and shows the witness the picture of the author on the back cover.
Before he can even ask the question, Gross says, “That’s the one. That’s the picture they used.”
Now the jury has an image to go along with the words.
“Did you shoot at any of these targets, the ones with the victim’s picture on them?”
“No.” Gros
s is shaking his head earnestly. “I didn’t want to do that.”
“Why not?”
“I just didn’t want to do it. I didn’t think it was good. That’s all.”
Of course not, God forbid. Harry leans forward, looks past Carl to me, and rolls his eyes.
“Did Mr. Arnsberg shoot at any of the targets with the victim’s picture on-”
“Objection, Your Honor.” I am up out of my chair. “May we approach?”
Quinn waves us forward, off to the side of the bench.
“Your Honor, I’m going to object on the grounds of relevance. The victim wasn’t shot. This is being used for one purpose and one purpose only-to prejudice my client.” I cite 352 of the Evidence Code and tell Quinn that whether Carl shot at these targets or not, the issue has no probative value. It proves nothing. At the same time, the prejudicial effect on the jury is overwhelming.
Before I can even finish, Tuchio is over my shoulder. “Your Honor, it goes directly to the defendant’s state of mind. It’s in close proximity in point of time to the murder. It supports the theory of rage, and there has already been testimony on that.”
Quinn puts up a hand. He’s heard enough. “Gentlemen, we could split fine hairs on this one. And I could allow it to come in. It’s the kind of thing that reasonable minds can disagree on.” He’s whispering over the edge of the bench at the side away from the jury. “But I have to worry what the three figures in black who sit above me might do with it when and if they see it.” He’s talking about the appellate court. He looks at Tuchio. “You don’t want to have your case reversed on this, and neither do I.”
It’s one thing to have the feeling yourself, but when the judge says this, it becomes clear: Quinn senses that my client is going down.
“The wisest and safest course at this point is not to allow it. I’m going to sustain the objection. I think you should move on to another subject, Mr. Tuchio.” He sends us back out.
Gross is looking around as if he’s not sure whether to answer the question. Even though Tuchio never got a chance to finish it, the witness knows what it is. No doubt they have practiced it enough times.
As soon as I sit down, Carl is in my ear. “What happened?”
“Don’t worry about it. It’s okay,” I lie.
Tuchio is back, centered in front of the witness again. “Let’s leave the shooting range for the moment. Let’s go back to the tavern. To the Del Rio,” he says. “You testified earlier that the defendant talked to you and made statements regarding a possible kidnapping of the victim, Terry Scarborough, is that correct?”
“That’s right.”
“That he said he could hit the victim over the head and dump him into a laundry cart.”
“Yes.”
Tuchio thinks for a moment.
“During your meeting with him that day at the tavern,” he says, “back at the Del Rio, besides kidnapping, did the defendant ever say anything else to you, anything that you thought that was in any way…Let me rephrase this.”
Tuchio seems to be having trouble here, trying to change gears in a ham-handed way, and I’m wondering why, if he’s back at the Del Rio, he didn’t remember to bring whatever it is up earlier.
“When you were there at the tavern, at the Del Rio, did the defendant, Mr. Arnsberg, ever tell you how he might gain access to Mr. Scarborough if in fact Mr. Scarborough was in his room at the hotel behind a locked door?”
“Yes, he did.”
“And what was that?”
“At one point he was talking about how he had access. How he could get into rooms at the hotel real easy because he could get a master key.”
Carl’s sitting next to me, shaking his head, whispering, “I never said that.”
“And then he said, because he could get right up to him real easy, he said it would be real easy to hammer ’im.”
Out in the audience there is murmuring. What did he say?
“Were those his exact words?” asks Tuchio. “That he could hammer him?”
“That’s what he said.”
“That’s a lie!” Carl says it out loud now, and there is an eruption of voices in the audience. Two of the reporters in the front row break for the door at the back of the room.
Quinn slaps his gavel. “Keep your client quiet,” he tells me. Carl is pulling on my arm. He wants to tell me it’s a lie. But I already know it.
“Officer, stop those people right now,” says the judge. The two reporters stop dead in their tracks halfway up the main aisle. “Sit down,” says the judge. “You can file your stories during the break.”
Before Quinn can even put down his gavel, Tuchio turns to me and says, “Your witness.”
21
Quinn takes the noon break. I ask for a meeting in chambers, and all of us, the lawyers and the judge, end up hovering over his desk in the back.
“The man’s lying.” Harry’s had a bellyful of this. He’s leaning with both hands against the edge of the judge’s desk, bearing down on Quinn, who is seated in his padded black leather chair. “Look at the transcript of the wire,” says Harry. “There’s not a word in there about any of this, a master key or anything about hammering the victim.”
“You’ve got a good point, except for one thing,” says Quinn. “The wire transcript and the witness who was attached to them are not in evidence. As I recall, that was based on an agreement made right here in chambers by your partner, Mr. Madriani.”
“It’s one thing to keep evidence out,” says Harry. “It’s another to suborn perjury.”
“I resent that,” says Tuchio.
“Resent it all you want,” says Harry. “How do you explain the fact that these inventions by your witness don’t appear on the wire transcript?”
“Very easily,” says Tuchio. “The agent, aka Mr. Henoch, who was wearing the wire, was not with Gross and your client during the entire time of their conversation at the bar. It seems he stepped out twice-once to go to the john and again to make a telephone call from his cell phone outside, because he couldn’t get reception in the bar. At least that’s what he told us.”
“And unfortunately, we can’t put him on the stand to ask him,” says Harry.
“That’s not my fault,” says Tuchio. He smiles.
Harry glances at the judge, who gives him a shrug.
“And I should remind you,” says Tuchio, looking at me now, “that I never asked the witness whether anybody else was present during the conversation at the Del Rio, and you better not either. If the wire transcript and the agent are off-limits, that means as far as the jury is concerned he doesn’t exist. Am I right, Your Honor?”
Quinn nods. “That’s correct.”
My turn in the tumbler with Gross on cross-examination reveals just how well Tuchio has trained him. I ask him how many times he has met with the prosecutor, his assistants, or the police to discuss his testimony before appearing here today.
“Quite a few times,” he says.
“How many is quite a few?”
“A lot,” he says. He can’t remember the number of times or the precise duration or location of all these meetings, but they were held at various places, including a hotel downtown where he admits that the state picked up the tab for four nights immediately preceding his testimony here.
I ask him why they put him up in the hotel.
“It was for security.” He smiles and just lays it out there like a land mine waiting for me to step on it.
If I probe further, what he’ll say is that he’s putting his life on the line and that he’s in danger from his former friends in the Posse because of his testimony today, the inference being, why would a man put his life in jeopardy just to come here and lie?
I ask him if he has any criminal charges pending against him in this state or any other state at the federal level or anywhere in the universe, now or at any time since the police started talking to him.
He says, “No.”
I ask him whether the police or the prosecuto
r have offered him anything in return for his testimony.
Again, his answer is no. To listen to him, Gross is just your average, ordinary citizen willing to take a bullet in order to tell the truth.
“Have they offered to put you in any witness-protection program following your testimony here?”
“You mean the police? No,” he says.
“Or any other level of government, including the federal government?” I ask.
He doesn’t answer. Instead his eyes make a beeline for Tuchio’s table.
“Bench conference,” says Tuchio.
Before we even get to the side of the bench, it’s clear what has happened. The feds have rolled Gross up in their investigation and eaten him like an enchilada. They won’t need any pending criminal charges to cut a deal and gain cooperation. And because there were no charges pending, Gross wouldn’t even have a lawyer. For the man who extended a friendly hand and invited the feds to join the Posse party, a few months in the club for Agent Henoch and a peek at his badge would turn Gross into jelly.
As soon as the rest of the Aryan world found out, they would chain Gross, tasseled loafers and all, to the back of one of their choppers and drag him between here and Alamogordo a few hundred times, just to make sure he had no additional handwritten notes on other body parts.
At the side of the bench, a smiling Tuchio explains to the judge that while the federal government has not in fact made any formal offer of protection to Gross, they have discussed the possibility of such an offer in the future.
Of course they have, just as soon as they squeeze every seed and all the pulp out of him. In the meantime they’ll have him tucked into a cave complex somewhere on the other side of the moon, reminding him every few seconds of just how dangerous the world is. No wonder he’s dried out and off drugs. In such an environment, there would be no need for a prosecutor or the cops to suggest anything by way of invention regarding Gross’s testimony. The thought of being turned into an asphalt sled tends to make the mind not only cooperative but highly creative. A few newspaper clippings about the case, the evidence at hand, and rumors of what’s to come and Gross could fill in the blanks. After all, you always want to keep the people who are keeping you alive happy.
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