“Not much, but one new detail interests me. The Harrison acquittal celebration started at the memorial in front of the courthouse. But do you know where it ended?”
“No idea. Where?” asked Fasi.
“Toussaint’s.”
“You’re kidding.”
“Nope. They had quite a crowd there that night—John Harrison, his mom and dad, his pen pal girlfriend, Max Gordon and his sidekick, and a couple others yet to be identified—probably some of Max’s crew. They had one of the special party rooms and stayed there well into the evening. Majewski doesn’t expect this to lead anywhere, but he’s taking a careful look into it. I say it has some relevance—he knows it’s an expensive restaurant, he knows the layout, and that the cash register is located in a quiet foyer some distance from the dining area. That’s not much, but I’m thankful for anything. Majewski also says they’re checking a couple of new leads on the pistol, but nothing there so far.”
“How do you feel about taking it to trial with the evidence you have right now?”
Scott took in a deep breath and paused for a long moment before answering. “Well, I surely wouldn’t be very comfortable. It would be tough … but we should win if Donaway and Mildred Thompson hold up. Donaway is of course our best witness … no, our best witness is the defendant. He’ll have to take the stand to explain what happened to that 9mm pistol he bought, and I believe any jury will see right through him.”
“Even if all goes well, Scott, it’s a difficult case. Winnable, but a long way from the case you would have, had they found the gun during the search. And this leads to something we need to discuss. This is a capital case, but is it a case for the death penalty? Have you thought about that?”
“I always assumed we would seek the death penalty, so I haven’t really given it any thought. Have you?”
“Definitely. We’ll have to run our recommendation by the DA. He would have to approve taking it to trial as a death penalty case. And if I had to make my recommendation right now, I would say we shouldn’t seek the death penalty.”
Scott raised his eyebrows. “No?”
“Here’s my thinking on that,” Fasi continued. “Weak cases don’t make good death penalty cases. You and I know he’s not only a murderer but a serial robber. The jury, however, doesn’t know that, and they won’t hear anything about it. Sure, some have read about his recent trial, but I don’t have to remind you that he was acquitted. In fact, I expect there’re many in town who now think we really didn’t have a case and should never have brought it. Get a couple of those on this jury, and the verdict won’t be pretty.”
Scott nodded. He knew that his new boss had a point.
“I know,” Joe continued, “that most prosecutors believe a death-qualified jury is more prone to convict. That may be true, but when you ask twelve people to convict on a charge that carries the penalty of death, you better have a damn strong case. Right now we don’t. Reasonable doubt is a hard thing for some jurors to wrap their minds around. He didn’t confess, and there’s no forensic evidence. Considering he may be put to death, they think, ‘I just can’t vote guilty.’ And even if he’s found guilty, the jury must also be unanimous in its vote for a death sentence.”
Joe paused and looked closely at Scott. “Believe me, getting someone with no prior convictions from ‘there to the chair’ is a long road to an unlikely event. That’s my thinking, anyway. How about you?”
“I really can’t disagree with anything you said, Joe. You make a strong argument. I believe he did it, and I believe we can prove it, but we surely don’t need anything else to make the case more difficult. One of the arguments I always hear from death penalty opponents is that a death sentence is so much more expensive to the state than life imprisonment. That seems illogical, but I’ve never heard anyone refute it. So, let’s save the state some money. We’re in agreement.”
“Good. And one other thing. I told you that we would both be lead prosecutors. But we know that’s not the way cases are tried, and it’s unnecessary. It was yours at the start, Scott, so I’ll be second chair. You’re the lead prosecutor from here on out.”
****
Scott returned to his office, pleased that his new boss seemed to have such confidence in him. He would be ready when April 21 arrived. But right now he needed to set something right that had been bothering him for a couple of weeks. He had a phone call to make.
Scott lived by a “mind your own business” philosophy—if it did not personally affect him or his job, or involve something illegal or perhaps physically dangerous to others, he refused to get involved. He had no problem staying clear of the gossip and rumor mills while at Savannah Law, a trait that followed him to the DA’s office. He was pretty sure the world would be a better place if people could just live and let live. But there were exceptions, and this was one of them.
He dialed the switchboard operator at Savannah Law and asked for Professor Charles Rose.
“Professor, this is Scott Marino. I hope you remember me.”
“Of course, Scott, I’ve followed some of your trials with the DA’s office. What can I do for you?”
“Are you still the faculty advisor for the Honor Court?”
“Unfortunately, yes. Once you get appointed to it, it’s yours for life,” he joked. “What’s on your mind?”
Scott explained as discretely as possible what he knew about the APR paper with the title “Retroactive Federal Tax Consequences after Fraudulent Executive Stock Options” and where it originated.
“One of the assistant deans at Miami Law is a friend of mine. I’m sure he’ll work on this with me. And I can assure you, Scott, I consider this a very serious matter. We’ll investigate and take whatever action is appropriate.”
And Scott knew he would. This call was out of character for Scott and left him a bit unsettled. But the vision of Moose standing on the edge of Talmadge Memorial Bridge—and the source of Moose’s despair—continued to flash through his mind. It was a call he had to make.
****
At about the same time Scott was on the phone with Professor Rose, Judge Cox was submitting a recusal notice to the chief judge. Without elaboration, it said, “In accord with Canon 3 of the Code of Judicial Conduct, which requires that judges disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, I hereby recuse myself in the case of State v. John Harrison.”
Shortly afterwards, the random rotation system assigned the case to Judge James Thaler, a twenty-year veteran of the Chatham County Superior Court.
CHAPTER FORTY-TWO
January 9, 2008
Scott was in Judge Thaler’s courtroom Wednesday morning for a pretrial hearing in the Harrison case. He had never tried a case before Judge Thaler, so he had asked around the office. There was general agreement that Thaler was smart and capable—and unusually humble and laid back for a superior court judge. He directed the proceedings in the courtroom as much with gestures and a head nod as with his voice. Unlike some of the other superior court judges, he did not conduct much of the jury voir dire, leaving almost all of the questioning to counsel. It took much longer, but most counsel preferred his style of jury selection. He rarely became annoyed or upset with an attorney, but when he did, he could give the erring attorney a scathing reprimand in a soft voice, not much above a whisper, that would not likely be forgotten. And he would do it in the courtroom, on the record, not privately in his chambers.
Scott was particularly amused by his colleagues’ anecdotes about the judge. He learned that Thaler had once demanded that two attorneys, who had been exceptionally obnoxious and disrespectful toward each other during a jury trial, prepare their own letters to the General Counsel of the Georgia Bar reporting their unethical conduct—and threatened them with contempt of court if they failed to do so.
There was no such drama that morning. The hearing went smoothly and quickly. Scott had one motion—to compel a voice sample from the defendant. Judge Thaler set a
hearing on the motion for the end of the following week, January 18. The defense had no motions. Judge Thaler said he expected jury selection to be lengthy because of the notoriety of the case, so he was setting aside the week of April 21, 2008, for jury selection and the following week for trial.
As Scott left the courtroom, he saw Bill Baldwin sitting in the gallery. Scott waved, and Bill joined him on the way to the elevators.
“Must be a slow week to have the ace reporter for the South Georgia Times sitting in on a boring pretrial hearing,” said Scott.
“Our readers don’t think any news about the Toussaint’s murder case is boring. We get ten to fifteen calls a day asking about it. This little hearing may be front page news tomorrow. So, what else can we add?”
“Nothing to add. I know I sound like a broken record, but we’re still searching for evidence and finding nothing new. We have what we have.”
“Well, let’s hope you find some, including that missing pistol. This one’s shaping up to be a bigger media event than last year’s trial. I received a phone call yesterday from Roger Curlin, a senior reporter for the National Law Journal. He’s being assigned here for the duration of the trial. He wanted an update.”
“I recall Curlin. He was here for the trial last year. He had a long post-trial article in the Journal. And got it right—I’ve told you before how that always surprises me when a reporter gets it right.” Scott grinned.
“Yes, I recall. And I’ll ignore it again. But you owe me a report on the witness perjury investigation. What’s new there?”
“Actually, I had a phone call last Friday from the GBI agent handling the investigation, Carl DeBickero. You know Carl, don’t you?”
“Yep, met him years ago. And where I hang out, our paths cross often.”
“He thinks they may get a break in the case. Didn’t go into any details, but he thinks they are on to something that could break the case open. He was reluctant to tell me anything except that they were optimistic. And even if he did—”
Bill interrupted. “Yeah, I know, even if he did, you couldn’t tell me. Right?”
“Right. Someday I’ll be able to discuss this—and with you and no other reporter. Everything I know. I promise. Exclusive. But, Bill, absolutely nothing in the paper about that investigation until then.”
“I’ve already promised that—you can bank on it.”
CHAPTER FORTY-THREE
January 18, 2008
Both Scott and Joe Fasi were present for the hearing on the prosecution motion to compel a voice sample from John Harrison. As expected, Harlow Stern had filed a lengthy reply in opposition. The courtroom was vacant except for the attorneys, court personnel, and three spectators. One, of course, was Bill Baldwin—waiting for his lead story for the next morning’s paper.
Judge Thaler looked down from the bench toward the defense table where Stern was seated. “Mr. Stern, I note that the defendant is not present. Have you made him aware of this hearing and its purpose?”
“I have fully explained the nature and purpose of the hearing, Your Honor. The defendant informed me that he does not wish to be present, and he has expressly waived his right to be present.”
Judge Thaler gazed at an open file lying in front of him and was silent for a short moment before responding. “I’ve read your brief, Mr. Marino, and yours, Mr. Stern. But I would like to know just how the prosecution would proceed if I grant this motion. How would the voice sample be taken?”
“Your Honor, it would be similar to a visual lineup. We would have the defendant and five other males—southern white men, similar age and education of the defendant—speak one at a time behind a screen. They would all read from a script containing the words that the witnesses heard the robber speak. The witnesses would be told that the defendant may or may not be in the voice lineup. Then we would ask, after each reading, if the voice was the voice they heard at Toussaint’s. Briefly, that’s it, Your Honor.”
“And you oppose that, Mr. Stern?”
“Most certainly, Your Honor. It would be in violation of Georgia’s constitutional guarantee of the privilege against incriminating oneself. I recognize that the federal courts, including the Supreme Court of the United States, have sanctioned such compelled evidence, but as stated in State v. Armstead, cited in my brief, our state constitution gives greater protection. In Armstead, the court found that compelling a handwriting sample was a violation of the Georgia Constitution, despite the fact that such has been found not to violate our federal constitution. The decision was clear: our state constitution cannot give less protection than the federal constitution, but it can provide more.”
Judge Thaler held up his hand toward Stern, his signal that he had heard enough, and then merely nodded at Scott for a response.
“Your Honor, I’m aware of the Armstead decision. And as Mr. Stern noted, it involved compelling handwriting samples. While one may argue that there is little self-incrimination difference between compelling handwriting samples and voice samples, the Georgia appellate courts permitted voice samples before Armstead, and they have continued to find no constitutional violation in compelling voice samples even after the Armstead decision. I have included those cases in my brief, Your Honor.”
Judge Thaler held up both hands. Oral argument was over.
“The motion is granted. Anything else, gentlemen?”
“Yes, Your Honor,” replied Stern. “I want to state on the record that I have discussed this motion with the defendant prior to the hearing today. He has requested, if this motion is granted, that I inform the court that he will not participate in any voice lineup. He has requested that I state his reasons for not participating. Specifically, he believes the whole procedure would be a sham because the witnesses would be prompted by the detectives, and he believes that his arrest on these charges resulted from a conspiracy between the DA’s office and the Metro Police Department. I want the record to note that I do not share this view, but it is placed in the record at the specific request of Mr. Harrison.”
“Thank you, Mr. Stern. You may wish to explain to your client that the motion was granted, and if he does indeed refuse to cooperate in providing the voice samples, I will instruct the jury accordingly.”
“And may I ask, Your Honor, specifically, what will be that instruction?”
“It will go something like this: ‘Refusal to provide a voice sample as ordered by the court is circumstantial evidence of consciousness of guilt. The weight to be given such evidence is for the jury to decide.’ Of course, Mr. Stern, the defendant may always testify as to his reasons for refusing. Anything else from either counsel?”
There was none. And Bill Baldwin had his lead article for the next day’s paper. There would be more trial facts and trial publicity, all providing the defense with more argument for a change of venue.
****
Scott returned to his office, pleased with the results of the morning court session. The promised instruction was encouraging. In fact, he hoped Harrison would indeed refuse to cooperate. If he submitted to the voice ID as proposed, the result may prove to be unfavorable. Scott would prefer the assurance of the instruction.
As he sat reflecting on this new development, his phone rang.
“Scott, this is Charles Rose. Just want to catch you up on the matter you reported to me a few weeks ago. Do you have a minute?”
“Sure, Professor.”
“As you may remember, Honor Court proceedings are not entirely confidential at Savannah Law. The charge, findings, and any sanctions are printed and displayed on the student bulletin board, but, of course, the names or other means of personal identification are redacted from the report. Since you are the person who made the report, I believe you are entitled to know the results if you are interested.”
“Of course, Professor, I am interested. Do you mean that proceedings have been completed?”
“Yes, but there were no contested proceedings. Dean Simms gave the ARP paper to Professor Gershon to evalu
ate. He called the student in, and it was clear within minutes that the work was not hers. She admitted she had received the paper from a student at another law school and agreed to what we call ‘Adjudication by Admission’—essentially throwing herself on the mercy of the Honor Court. Only the Honor Court was not very merciful. They recommended expulsion. That sanction requires the dean’s approval, and yesterday he approved it. The dean also appointed a faculty committee to examine the whole ARP process; obviously it needs tightening. I appreciate you bringing this to our attention, Scott.”
Scott had mixed emotions about the call. He wasn’t really happy to hear that Jessica had been expelled, but he believed it to be appropriate. His mind raced back to the desperate scene on the bridge and his plea to Jessica to come and help. Whatever they did to her showed more compassion than she showed for Moose that Sunday morning. She used him and threw him away.
CHAPTER FORTY-FOUR
March 5, 2008
With less than a month to go before the Harrison trial, no new evidence had come to light, and the investigation was essentially at a standstill. As he promised, John Harrison refused to provide any voice samples. Every new tip on a possible location of the pistol was thoroughly checked, and each led nowhere.
Majewski was convinced the most likely location for the pistol was at the bottom of the Savannah River. He was sure Harrison was smart enough to know that the weapon could be easily linked to him and to the crime. It was hot, he knew it, and he would surely dispose of it. He didn’t need it to provide his financial support—he had a rich pen pal and was set up well in her nice beach house on Tybee Island. But robbery was his thrill, his kick, and he would eventually be drawn to it again. Majewski believed he was a dangerous person, a psychopath who would rob and likely kill again if not put away for good. He had his most skilled and successful investigators on the case, and they would continue to pursue every possible lead. But now they, as well as Majewski, were quite discouraged.
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