Shadow of Power

by Steve Martini

  “All of you saw it,” I say. “Where it came from?”

  There are nodding heads all around, Herman, Harry, and Jennifer.

  Twenty minutes later I’m on the phone. Judge Quinn is calling from his house. We have had to go through the bailiff’s office at the courthouse, staffed by only a skeleton crew on a holiday, to have them call Quinn at home and have him call me at my office, an emergency.

  Before I can say a word: “Mr. Madriani, if you’re looking for more time, the answer is no.”

  When I tell him what has happened, there is a moment of stone silence from the other end of the line. “Have you told Mr. Tuchio about this?”

  “I don’t know how to get ahold of him on a holiday,” I say.

  “Leave that to me,” he says. “He’ll have to have somebody from his office or forensics pick it up.”

  “Good.”

  “Stay there until they come. Be in chambers before court tomorrow morning. Let’s make it seven A.M.,” he says. “In the meantime don’t touch the damn thing. Leave it for forensics.”

  We hang up. There’s little sense in telling him, since I already have touched it, at least with the tweezers.

  Before I talked to Quinn on the phone, I dispatched Herman to call our forensics expert, to track him down at home so that he can be here when Tuchio’s people show up to take the letter and the hairs back to the police crime lab. I don’t want the letter or the little bag of hairs going anywhere unless our own expert is glued to them.

  Then I spend ten minutes with Harry hovering over the desk as I pry open the folded pages using the forceps and the rag. It is ordinary twenty-pound copy paper, the kind you can buy in any OfficeMax. As soon as I got it open, I knew. Whoever made it used a color copier. The elegant hand-scripted letters bore the tobacco-colored hue of the original ink. The script had obviously been reduced in size, though it was still quite readable. The four pages are stapled at the top left-hand corner. It is identical to the image I recall from the video over the restaurant table, the letter laid open as Scarborough and Ginnis talked.

  On the copy you could see the outline of the outside edges of the original, larger page on which the script was written, freehand with no lines. I tried to remember. On a trip to Williamsburg with Sarah several years ago, hearing a name for the page size commonly used in Jefferson’s day-a quarto or a folio, something like that. I wondered if this was it.

  I had Harry clean the glass surface on the copy machine, no chemicals just a damp cloth and elbow grease. Then he dried it thoroughly.

  We both checked to make sure there were no fibers from the cloth left behind on the glass that might stick to a page and send the crime lab on a wild-goose chase. Then I took the pages.

  Harry and I agreed that we could not remove the staple. The holes and the missing staple are something forensics would pick up on immediately. Also, if the dinner video of Scarborough and Ginnis comes into evidence, the missing staple becomes a problem in terms of comparison. And we wouldn’t dare try to replace it. You could never get it precisely in the same place, not so that a forensics expert wouldn’t know, and there is no doubt evidence of blood on the original staple.

  Consequently we were left to ham-hand the copying process. With Harry helping me, four ham hands being better than two, I held each scripted page down on the screen of the copier as Harry supported the other pages, trying not to bend or tear them from the stapled corner. Each page was copied with the copier cover up and out of the way. Doing this, holding the pages between pieces of cotton cloth took more than five minutes. Harry was sweating so profusely that he was afraid he might drip on one of the pages.

  We took particular care with the last page, the one with the filigree of blood on the center fold on the back. I knew that this would be critical, that the pattern of these little spots was now most likely the key item of evidence in our entire case. I tried to copy the scripted side as best I could without entirely flattening the paper.

  I also copied the front of the large envelope with the label, not that it was going to tell us much without a return address or postmark.

  Then I took a long, deep breath. I wasn’t sure this was a good thing to do, but I was going to do it anyhow. The way you might gingerly handle a touchy detonator on a bomb, I carefully laid the back of the last page on the glass surface of the copier. This was the side with the filigree of blood across the center. I left the other two folds, the top and bottom third of the page, sticking straight up, and with the cover of the copier lifted, I pushed the “copy” button again. As the heat of the light element from the copier warmed my face, I prayed that it would do nothing to impair or destroy the spiderwebs of dried blood touching the glass.

  After taking photos of the pages, including the blood on the back of the last page, I placed the call and waited for Quinn to call back.

  Ninety minutes later, with our forensics expert already at the office, a uniformed officer and a plainclothes investigator from the D.A.’s office arrived to collect the transfer box with the Jefferson Letter, the envelope, and the small Ziploc bag containing the strands of hair. Together with our forensics expert, the whole caboodle headed for the crime lab.

  24

  As we head off to court Tuesday morning, Harry and I are plagued by the thought that some sick mind reading of the details of the trial in the newspapers or online may have put together its own package of manufactured evidence and slid it under our door.

  The world is full of such sickness, armies of miscreants giving birth to computer viruses and laying waste to other people’s lives for their own amusement. If they have, the crime lab and our own expert will know, before the morning is out.

  Seven A.M., and we are with Quinn in chambers, behind closed doors.

  Tuchio is already wading in. Having been briefed by his forensics people, who are still laboring over the bloodied Jefferson Letter and the blond hairs in the bag, the prosecutor is busy working up options, trying to stretch the sidelines for some open-field running, if it turns out that the evidence is real.

  New evidence, so he demands the right to reopen his case. Quinn assures him that if the evidence is verified, he will entertain the motion. Fairness requires this.

  “It could be nothing, a sham, but if it turns out to be the item that was taken from the scene, it doesn’t change a thing,” says Tuchio. “The defendant himself could have taken it at the time of the murder.” He pauses to look at Harry and me, just for a second. “Of course, this could explain how it showed up so conveniently in his lawyer’s office at the last minute.”

  “In case you forgot, our client is in jail,” says Harry. “He would need long arms to slip it under our door.”

  “Use your imagination,” says Tuchio. “A confederate, a friend, a family member-or maybe it was already there.”

  What he means is, in our office. He is suggesting that Harry and I have had this, the bloodied Jefferson Letter, for some time, presumably given to us by Carl, or one of his friends or a family member, and held it for just such an occasion, so that it could be mysteriously delivered to ourselves and used in just this way.

  This is the fanatic divide between prosecutors and the criminal defense bar. So ingrained is it that I am barely annoyed by the innuendo. Any prosecutor in the same situation who didn’t at least make the suggestion, you would have to assume had the flu and a sufficiently high fever to affect his normal instincts.

  “And what about the blond hairs in the little Ziploc bag?” I ask him.

  “They may be nothing,” says Tuchio.

  “But what if they are?”

  Tuchio is biting his lip on this one. We are both thinking the same thing, that the loose blond hairs that arrived with the letter may match the ones found by police forensics techs on the bathroom floor of Scarborough’s hotel room. If not, and unless there is some sick brain teaser out there, why were they included with the letter?

  “If there’s one thing we know with certainty, it’s that Arnsberg isn’
t blond,” says Harry.

  Tuchio knows that if the hairs turn out to be a match, the prosecution will find itself waving off ghosts in its closing argument. The specter that some other dude did it will not only be walking in front of the jury, this phantom may be doing the jig.

  Tuchio turns to Judge Quinn. The judge thus far has been leaning back in his chair, counting ceiling tiles, taking in all the various arguments and innuendos.

  “It could be,” says Tuchio, “if those hairs, the ones in the plastic bag, prove a match, then it’s possible there could have been two assailants in the hotel room that day.”

  I was wondering how long it would take him to arrive at this.

  The prosecutor pushes this thought out in front of the judge to see if he might start a test drive for a new theory-that is, if the wheels don’t fall off-one that might carry him to the end of his case.

  “The only problem, Mr. Tuchio, is that I don’t remember you talking about any assailants other than the defendant in your opening statement, or for that matter presenting any evidence in that direction,” says Quinn.

  Tuchio could reopen his case and try to bring some in, but the fact that this evidence would be at such stark odds with what he has already presented does not allow this as a real and viable option.

  “That’s not entirely true, Your Honor.” He argues that there’s evidence of possible conspiracy in the state’s case, or at least that efforts were made by the defendant to enlist the assistance of others in the commission of violence against Scarborough.

  Tuchio reminds the judge of the testimony from Charlie Gross, about the bravado by Carl in the bar about kidnapping Scarborough from the hotel, and the fact that Carl’s words, according to the witness, were all cast in the plural-that “we” could kidnap the victim, that “we” could haul him out of the hotel, that “we” could take him out into the desert and shoot him.

  Quinn is suddenly sitting forward in his chair. “I hope you’re not suggesting to this court that your own witness is a co-conspirator to the crime?”

  Tuchio had better hope not, because if he is, he has just rung the bell for a mistrial, in which case we can all go home, including Carl, at least until Tuchio charges him again.

  “No, no, not at all.” Tuchio’s hand is up like a traffic cop’s. “Not at all. I’m not saying that. What I am saying is that there is evidence already in the state’s case that the defendant himself spoke in ways that might lead a reasonable person to conclude that others may have joined him in the commission of the crime. That’s all I’m saying.”

  This is the seam, as narrow as it is, that Tuchio wants to crawl through.

  You can bet that this sudden parsing of the language off the tripping tongue of Charlie Gross is not something that has sprung from the cortex of Tuchio’s nimble mind as we sit here. He has probably been up all night praying that the letter and the hairs in the envelope are a hoax, while periodically measuring the depth of the crater he’s in if they’re not. He is testing the judge to see if Quinn will go for it, if the court will allow him to argue on close, despite the state’s earlier theory that Carl acted alone, that there may have been two perpetrators, Carl and a blond person whom apparently they have not been able to identify.

  He explains to the judge that this could make sense-that is, if he can just pound all the little parts that are sticking out into place, so that they fit into his own case, the goal being the continued march toward the death house for Carl.

  “Don’t you see, Your Honor? The defendant’s blond confederate was probably the one who slipped the envelope under their office door,” he says.

  This is, of course, more polite than suggesting that we opened the door and that Blondie handed it to us, along with a lengthy explanation of what it was.

  But as Quinn says, “All this”-Tuchio’s sudden sighting of a second killer-“is strangely missing not only from your opening statement before the jury but from most of the evidence so far presented by any of your witnesses.”

  The prosecutor pounces on a word. “I would agree that it is missing from most of our evidence,” says Tuchio. “But not from all of it.”

  What he wants to know is whether the judge will allow him to venture into the realm of multiple killers before the jury in his closing argument.

  Harry and I are looking at each other wondering if Tuchio has been smoking something. But given the ways in which he has burned us so far, I’m not willing to take any more bets.

  “Fine, you want to argue on that narrow basis, be my guest,” says Quinn.

  Tuchio has his answer.

  Just before noon, with the jury in a holding pattern, we get the answer regarding the Jefferson Letter. Forensics experts, employees of the police crime lab, together with our own expert, agree. There is no question that this letter, the four pages from the manila envelope, is the item that was resting on the shadowed leather portfolio at the moment Scarborough was killed.

  We end up in Quinn’s chambers again. He wants to know if, based on this information, Tuchio wants to reopen his case for the prosecution.

  All morning the prosecutor has been closeted with his assistant, Janice Harmen, and Detrick, the lead homicide detective.

  The judge seems surprised when Tuchio says no, they’re prepared to go on as is.

  Quinn asks me if I’m ready to present my opening statement. I tell him that I’m not prepared to give the jury the full outline of our case until the results from the comparison of hair samples comes back from the lab. This is not expected until later in the afternoon.

  The judge excuses the jury and tells me to be ready with my opening statement first thing in the morning.

  Just after four o’clock in the afternoon, Harry and I are secluded in the conference room at the office going over notes to make sure that I hit all the high points in my opening, when the news arrives by telephone.

  It is Robert Stepro, our expert on hair and blood-spatter evidence. Harry puts him on the speakerphone.

  Stepro tells us that when Dewey Prichert, the state’s expert on hair and fiber, opened the tiny plastic bag from the manila envelope at the police crime lab, he extracted and counted five blond hairs. Microscopic examination revealed that all five had been cleanly clipped from their owner’s head, probably with a pair of scissors. All five samples from the baggie belong to the same person.

  And then the clincher, based on examination and findings, by both Prichert and Stepro: The characteristics of the five blond hair samples from the baggie are a positive match to the two blond hairs found lying free, under the toe kick in the bathroom of Scarborough’s hotel room. In addition, they match the one bloodstained blond strand of hair lifted from the crevice between the cushions in the chair where Scarborough was murdered.

  It is just shy of 9:20 Wednesday morning when I find myself standing in front of the jury box in Plato Quinn’s crowded courtroom. Every seat is filled, and there is a line outside in the hallway that stretches beyond the elevator at the far end of the corridor.

  “Ladies and gentlemen of the jury. My name is Paul Madriani. As you already know, my partner, Harry Hinds, and I represent the defendant, Carl Arnsberg.” I point to Harry, who nods and smiles, and then to Carl, who nods and waves one hand.

  “You have heard and seen a good deal of evidence to this point in the trial. But you have not heard or seen all the evidence in this case. When all the evidence is before you, you will be instructed by the judge regarding the law that you must apply in evaluating that evidence.

  “Among the items of instruction that you will be given by the judge are two fundamental and important rules. First is that the defendant is to be presumed innocent until and unless his guilt is established by the prosecution, by Mr. Tuchio, based on proof beyond a reasonable doubt.

  “The second fundamental rule is that the defendant in this case bears no burden of proof. He is not required by law to offer or to produce a single item of evidence establishing his own innocence. To the contrary, his inno
cence is fixed by law, established by law unless and until the state, the prosecutor”-I point at Tuchio with my arm fully extended-“can overturn the presumption of innocence by carrying his burden, proof beyond a reasonable doubt.

  “I could, if I wished, sit down at this moment and rest our case. And I could argue that my client should be freed, acquitted, found not guilty. But I am not going to do that, because we have evidence, considerable evidence-some of you might call it abundant evidence-evidence that you have not seen, that will not only establish reasonable doubt in your minds as to the defendant’s guilt, but evidence that will allow you to see the shadowed hand of the true perpetrator of this crime.”

  I move laterally in front of the jury box now, the six alternates seated outside and just in front of it.

  “So what is the defendant’s case, his case in his own defense?”

  I begin to outline it for them.

  I start with the rush to judgment, the fact that there has already been considerable evidence and that there will be more evidence that the police conducted a shoddy investigation. I remind them that they have already heard evidence from Detective Detrick, the lead homicide detective, that from the start the police pursued no suspects other than the defendant. I remind them that the police fell on Carl the moment they found his fingerprints and shoe impressions at the scene, this despite the fact that the defendant, along with other hotel employees, had a business reason for being in or near the vicinity of the victim’s room.

  “Objection, that last is argument,” says Tuchio.

  “Overruled,” says the judge. “The jury can decide.”

  I turn back to the jury. Now I must tread carefully. You would think, with the Jefferson Letter and the samples of hair contained in the manila envelope, that this would be a slam dunk. But it is not. Unless this is carefully presented, gingerly handled, the outlining of this evidence, the convenient fashion in which it landed in our office may produce the very result hoped for by Tuchio-skepticism and the feeling among jurors that they are being manipulated, that Carl or someone he knew delivered this to our office.