“The bloody letter!”
“That’s what he said. Now, this could be important, because if you remember, two weeks ago this same defense lawyer, Paul Madriani, was able to get one of the prosecution’s main witnesses, a forensics expert, to admit that there was evidence of something missing from the crime scene.”
“I remember that, a leather briefcase or a binder. Something like that.”
“No, actually, it was what the lawyer called a shadow left on the surface of a light leather portfolio by blood, what they call spatter evidence. It’s a long, complicated story, but the bottom line is that the expert witness from the police crime lab was forced to admit that this blood shadow on the leather surface of the case meant that something was taken from the scene before the police got there. Then you have to step back about a week-”
“Make it quick, ’cuz we’re comin’ up on a hard break.”
“As fast as I can. You remember the stories last week on the AP wire reporting that Scarborough was supposed to have had an important letter or some historic correspondence with him at the time he was murdered, and there was talk of a Supreme Court justice, Arthur Ginnis, being the possible source for this item?”
“And you think that’s what this is all about?”
“We don’t know, but it’s certainly a possibility. We’re checking it out.”
“Listen, I gotta go.”
“Catch you later.”
“Keep us posted.”
Harry gives me a sideways glance. “If we could just take out the part about the state bar investigation, maybe we get a copy of that and see if Quinn will let us put it in front of the jury. I mean, it doesn’t have Ginnis’s face in it, and it only mentions his name once.”
Considering that the jurors are corralled in the courtroom in the daytime and locked up in a hotel all night with the television unplugged, the cable disconnected, and an armed guard outside their door, I’d take bets they aren’t watching cable news.
It’s the problem we’re having. Before we’re finished, everybody in the world is going to know about the Jefferson Letter and the Ginnis connection, except for the people who count-Carl’s jury.
In the afternoon Harry and I bring Herman to the stand.
In rapid order I have Herman verify and corroborate Jennifer’s earlier recollections, her testimony regarding the opening of the manila envelope in my office, and the processing of its contents.
Because we have not prepared Herman, there are a few discrepancies based on his memory of events. His testimony is a little ragged around the edges. But if anything this seems to work to our advantage. It sounds believable, unrehearsed, because it is. Herman uses different words than Jennifer did to describe things. He talks about “forceps” instead of “large tweezers.”
Best of all, Herman does not try to fill in what he doesn’t know: how it came to pass that I saw the letter inside the envelope and therefore avoided touching it with my hand. When I ask him this, he says he doesn’t remember.
But he does remember seeing the look on my face. “At that moment,” says Herman, “I thought there might be something dangerous in the envelope, because of the way you looked at it and the way you moved.”
“So what were you thinking at that moment?”
“If you wanna know the truth, I was thinking it might be a letter bomb,” says Herman. “It does happen. Happened to a lawyer in Atlanta last year,” he tells the jury.
If we had warned Herman about Tuchio’s pitch to the jury, that I avoided touching the letter because I already knew it was there, you get into problems. You could end up inspiring a witness to “remember” trivial details of things that never happened. Some people just want to help. But when it comes to details and the magnetic ability of the human mind to remember, there are limits to what a jury will believe. Anxiety over a possible bomb in a letter is not a problem.
Then I take him to the point, the reason he’s here. “Before this morning did I or Mr. Hinds or anyone else in our office ever ask you to testify in these regards?”
“No. Not until Mr. Hinds contacted me this morning.”
“Is there any reason why you might not want to testify regarding the manila envelope and the contents and how it was opened in my office?”
“No.”
“So if someone were to tell the jury that you had been asked previously by Mr. Hinds or myself to testify in these regards, and they told the jury that you declined to do so, for some secret or unstated reason or for any reason, what would you say to that?”
“I would say they either didn’t know what they were talking about or they were lying,” says Herman. He looks at the jury. “It’s not true.”
Then I nail the lid on this coffin, asking Herman if he has any information or knowledge as to who might have slipped the evidence, the manila envelope, under our office door.
He shakes his head. “Not a clue,” he says.
“Do you have any knowledge as to why they might have done it?”
“No.”
I move to the evidence cart and lift the plastic sealed envelope, the folded letter, and the small bag so that Herman and the jury can see them. Quinn has them identified for the record.
“And to make clear to the jury, have you ever seen any of these items, or any of the evidence contained in them, before last Monday morning when I opened the contents of this envelope on the desk in my office?”
“No, sir. First time I saw any of that was after you opened that envelope.”
“Your witness.”
Tuchio tries to take Herman for the ride he took with Jennifer earlier in the day, over the same falls. That Herman knows only what he has seen and heard from Harry and me, and then the question: How can he be sure that he is not being badly used here in court today?
Herman looks the prosecutor in the eye. “I don’t understand the question,” says Herman. “So why don’t you just say what you mean? Get it on the table,” says Herman.
“Fine,” says Tuchio. “How do you know that the evidence in that envelope wasn’t put there by one of the lawyers in your own office, or by someone associated with or related to the defendant, Mr. Arnsberg?”
“Because I have known Mr. Madriani and Mr. Hinds for years, and I know that neither of them would ever do such a thing, that’s how I know.”
“But what you’re saying is based on faith,” says Tuchio, “not fact. You believe they wouldn’t do it, but you don’t know that?”
“Are you asking me?”
“Yes.”
“I know it. Maybe you don’t,” says Herman.
The jury laughs.
“I’ll have to ask you to forgive my natural cynicism,” says Tuchio. “It comes from years of prosecuting cases.”
“That’s all right, I forgive you,” says Herman.
A little laughter from the audience and more from the jury box.
Tuchio steps away from the witness. He ponders for a moment, and when he stops, he ends up at the evidence cart. He returns to the witness. He is now holding the clear plastic bag containing the Jefferson Letter. He holds it up, and he asks Herman, “Do you know what this is?”
Herman nods. “Yeah. It’s the pages that Mr. Madriani took out of that envelope on Monday morning.”
“That’s not my question. My question is, do you know what the document is?”
“I know what it’s called,” says Herman.
“Objection, Your Honor.”
“I haven’t asked a question yet,” says Tuchio.
“Ask your question,” says the judge.
“If you know, can you please tell the jury what this document is called?”
“Objection. Exceeds the scope of direct, Your Honor.”
“Sustained,” says Quinn.
One of the rules of the road on cross-examination, a lawyer cannot ask questions that go beyond the bounds of the subject matter raised by his opponent during direct examination of the witness. Since I have not asked Herman or any other witn
ess to tell the jury what the letter is called or to disclose any of its contents, Tuchio cannot simply pull this question out of his hand and play it like a trump card on cross.
He puts the bag with the letter down on a table near the witness. Herman glances at it, the item for which we have laid a quest for months, and Herman still doesn’t know what it says. He has hinted a few times that his curiosity is burning. But Herman says he understands. He is confident there must be good reasons Harry and I are keeping the contents of the letter to ourselves. Still, it would take the spirit of a saint not to feel like the odd man out after all we’ve been through.
Then Tuchio edges into whether Herman feels awkward testifying on behalf of a defendant, a client with the kinds of associations of Carl Arnsberg, “the Aryan Posse,” he says.
“I do my job,” says Herman. “That’s what it means to be professional.”
“But it doesn’t bother you? You never think about that.”
“No.”
This doesn’t work, so Tuchio goes back to basics.
“You say Mr. Madriani and Mr. Hinds wouldn’t be responsible for putting that envelope under the door, but what about Mr. Arnsberg? What about the defendant?”
Herman looks at Carl. “You’re asking me my opinion?”
“Sure.”
“I don’t think he would do it either.”
What else can Herman say?
“To save his life, you don’t think Mr. Arnsberg would have a friend or a relative-let’s leave Mr. Madriani and Mr. Hinds out of it-”
“Thanks for the courtesy,” says Harry.
The jury laughs.
“Not at all,” says Tuchio.
He turns back to the witness. “You don’t think that to save his own life, Mr. Arnsberg would have a friend, someone he knows, slide that envelope and the contents under his lawyers’ door? Is that what you’re telling this jury?”
“If you’re asking me my opinion, my answer is no, I don’t.”
Whether the jury will believe this, who knows? But the fact that Herman would say it, knowing Carl’s native inclinations and his prior associations…And then suddenly, with this thought halfway through the cortex of my brain, I realize where Tuchio is going.
“Would you tell the jury what that opinion is based on? Your considerable opinion of Mr. Arnsberg?”
“Your Honor, I’m going to object. This exceeds the scope of direct. The witness is not here as a character witness. He’s here solely for the purpose of refuting the false implication raised by Mr. Tuchio that the witness refused or declined to testify because he was supposed to have some secret knowledge about that envelope, which he does not.”
“Nah, nah, nah. Bring it up here,” says Quinn.
We end up at the side of the bench.
“Your Honor, this witness was brought in here for a very narrow purpose, and Mr. Tuchio knows it. If he wants to cross-examine the witness as to what he saw in the office that day, the day the envelope was opened, fine, but getting into the defendant’s character is way off base.”
“The witness is on the stand,” says Tuchio. “He’s testified as to what he says he saw when the envelope was opened. He claims he never saw any of it before. Now he says he doesn’t believe that Mr. Arnsberg would have anything to do with slipping it under the door or having friends do it. That’s all fair game,” he says. “And I have the right to test the witness’s credibility, Your Honor.”
“Objection overruled,” says Quinn.
Just like that, we’re back out. Tuchio is one of the craftiest lawyers I’ve ever met. We didn’t deliver the right witness to him this morning, so he baited us, laid inferences that we were compelled to refute so that he could get Herman in here on the stand. I know where he’s going, and there’s nothing I can do about it.
“Where was I? Oh, yes. You stated that you don’t believe that Mr. Arnsberg would have anything to do with putting that envelope under your office door. Is that correct?”
“That’s right.”
“What is that opinion based on? Your considerable opinion of Mr. Arnsberg?”
“You get to know someone. You talk to them. You generally get a feel for them.”
“Intuition?” says Tuchio.
“If you want to call it that.”
“Let me ask you, how well do you know Carl Arnsberg?”
“I don’t know. I’ve known him for some months now.”
“Have you ever gone to his house for dinner?”
Herman looks at him and smiles. “He’s been in jail since I met him. You know that.”
“Of course. Have you ever been to his parents’ house for dinner?”
Tuchio plays the racial divide.
“Can’t say as I have.”
“Have you met his parents?”
“I’ve talked to Carl’s father. I don’t think I’ve ever met his mother.”
“Have you ever met any of Carl’s friends, his associates?” Tuchio smiles as he says this.
You can see where he is taking it, and there are a dozen intersecting avenues once he gets there. Set Herman up and ask him about the Posse, Carl’s buddies. Oh, and by the way, what do you think they might do to you if they got you out on the reserve alone? If that doesn’t get the witness’s juices flowing, Tuchio will trout out the “traitor to your race” theme.
“I don’t think I ever met any of his friends,” says Herman.
“So, during the course of your investigation, your work on this case-You have done work on this case?”
“Some,” says Herman.
“During the course of that work, you never had occasion to interview any of the friends or associates of the defendant?”
By now Herman has seen it and scoped out the terrain.
“You’re talking about the Aryan Posse?” He deals with it in the way Herman deals with everything, directly. “And you want to know why the firm didn’t send an African American investigator out to interview the members of the organization?”
“It was on my mind,” says Tuchio. But this is not exactly the way he would have approached it.
“Well, first off, your question assumes that these are Carl’s friends, and to be honest, I don’t know that.”
“We’ll get to that later,” says Tuchio. “For the moment let’s just stick to the question of why your firm didn’t send you out to the reserve, to interview members of the Aryan Posse? If they weren’t his friends, they certainly knew your client.”
This is what Tuchio has wanted to get at all day.
“Well, it ain’t rocket science,” says Herman. “Some people might think that if I went out there, I might not come back.”
Full-out laughter from the jury box. Belly laughs from two of the bailiffs.
“So the thought was that if you went out there, harm might come to you.”
“No, you got it wrong,” says Herman. “Harm never comes to you unless you go looking for it.”
This of course is the answer to the prosecutor’s question, but Tuchio doesn’t like it.
“Still, you just said that if you went out there, there was a chance you might not come back?”
“There’s always the chance, but there’s one thing you can be sure of.”
“What’s that?” says Tuchio.
“If I didn’t come back, it wasn’t ’cuz I joined up,” says Herman.
More laughter from the box. Some of the deputies are turning toward the walls they’re laughing so hard.
Tuchio is getting tired of Herman’s one-liners.
So he tries to go frontal with him.
“Let’s cut to the chase. Let’s make it clear for the jury,” he says. “The reason your firm didn’t want to send you, an African American, out to the reserve to talk with the Aryan Posse was that they knew it wasn’t safe. Isn’t that a fact?”
“I thought that’s what I just said.”
“So those are dangerous people as far as you’re concerned? The Aryan Posse?”
“Let me pu
t it this way-”
“No. No. Just answer the question. Yes or no,” says Tuchio.
“That kind of rigid attitude will give you ulcers,” says Herman.
“Don’t worry about my ulcers, just answer the question,” says Tuchio.
“But I do worry,” says Herman. “People like you get ulcers and screw up, and then people like me get sent out to the Aryan reserve undercover.”
More laughter. Two of the deputies out in the audience, faces red as beets, are laughing their way toward a coronary.
“That doesn’t answer my question,” says Tuchio.
No, but the jurors are rolling around like bowling balls in the box. There’s nothing that can kill a serious prosecution faster than laughter. Herman is loose on the stand, and Tuchio is starting to feel like he’s center stage at Comedy Club Central.
“The Aryan Posse, are they dangerous people? Yes or no?”
“I can’t answer that question.”
“Yes or no?” says Tuchio.
“I’m not gonna answer the question yes or no.” Herman sits in the chair, dwarfing it, his arms folded, and his lips clenched like those of a third-grader refusing to eat his carrots, all 285 pounds of him.
“Answer the question,” says Tuchio.
“You want an answer, I’ll give you an answer. I just can’t answer it yes or no. You don’t want an answer, I’ll go home. Either way is fine by me,” says Herman.
“Your Honor, I’d ask that the court direct the witness to answer the question,” says Tuchio.
“He’s offering to answer the question, Your Honor. Counsel won’t let him,” I say.
“Let the witness answer the question,” says Quinn.
“Answer it!” says Tuchio.
“I don’t know whether the Aryan Posse is dangerous or not. How can I say that everybody, just because they belong to a group, is dangerous or not dangerous? The reason I wasn’t sent out there wasn’t necessarily that they were dangerous-though they might be, I don’t know-but the reason was because the purpose of an investigation is to get information. What do you think those people are gonna tell me when I get out there on the white man’s reservation? You think they’re gonna open their souls and tell me their secrets? You believe that, then you’re no cynic,” says Herman. “You gotta either be terminally stupid or the reincarnation of Mahatma Gandhi.”
Shadow of Power Page 37
