Max did not stop for a response, and his voice became more excited as he continued.
“Picture this, Scott: a month from now, you’ve just concluded your case, and I stand up and make my motion for a verdict of acquittal. You make some argument about a voice match on an old cassette tape, but the judge sits there quietly, slowly shaking his head in disbelief. The courtroom is media-packed—TV, radio, newspaper—waiting for the ruling. You hear the judge say ‘granted,’ and there’s a stampede of the media rushing for the door. Got that picture in your mind? The DA’s office will be the laughing stock, and you, personally, will be the butt of every joke in every office in Chatham County. Hell, every office in Georgia.”
Max stopped for a moment, apparently to catch his breath. Beads of sweat appeared on his forehead. But when he continued, it was in a completely different voice: calm, bar stool buddy-to-buddy.
“Now Scott, put another picture in your mind. About a month from now. You’ve got a hundred fifty thousand in the bank, you’ve found a beautiful home in northwest Atlanta, your student loans are all paid, and you’re set up for life in a world-class law firm. Now, what do you say about that picture?”
Scott stared icily at Max, the intensity of his gaze undiminished as he rose slowly from his chair. He waited until he was standing, towering over Max Gordon.
“I say fuck you, Max,” Scott said coldly. “You are the most corrupt and despicable son of a bitch I have ever met.” He picked up the slip of paper Max had placed in the open briefcase. He crushed it between his palms and tossed it at Max.
“And tell the go-to guy to stick that up his ass. You got the picture?” He stared at Max for a few seconds. “I’ll see you in court.”
Scott grabbed his briefcase to leave, but Max and his chair blocked his path.
“Get the hell out of the way!”
Max quickly complied.
CHAPTER FORTY-SEVEN
Scott was still seething when he pulled into the parking lot at Jennifer’s apartment complex twenty minutes later. Hearing Max Gordon lecture him on “the ethical duty of a prosecutor” incensed him. He sat in his car, trying to make sense of this clandestine meeting. It was clear that Gordon was trying to bribe him. He was angry, but at himself as much as Gordon. How could he have been so stupid, so naive, to find himself in a decrepit flea-bitten-motel being propositioned for a bribe? What had he ever done or said that would have encouraged Max Gordon to think he would accept such an offer? It was clearly planned with some high powered attorney-friend of Senator Harrison. Max Gordon must have convinced them that the young prosecutor would be a cooperative mark.
Scott shook his head in disbelief. That someone would question his integrity had never entered his mind. But there, in that cheap scummy motel room off the Interstate, someone thought he could be bought.
Scott unlatched the driver’s door and kicked it open with his foot. He stepped outside and took several deep breaths, trying to quell the anger swirling inside him as he walked slowly to Jennifer’s apartment. It was an absolutely gorgeous day. Azaleas surrounding the apartment building were already in full bloom. It was difficult to maintain his rage surrounded by such a bounty of nature’s beauty. By the time Jennifer opened the door, it was under control but still plainly visible.
“What’s wrong, Scott?” Jennifer asked, as she reached for and held both of his hands in hers. “What happened?”
Scott sat on the sofa and explained the afternoon’s events from beginning to end in full detail.
“Just what possessed me to think an evil scumbag like Max Gordon would have anything positive or productive to present at a grungy one-star motel off I-95? How could I have been so stupid? I thought he really wanted to plea bargain. But now that I look back on that, it was me—I was the one who wanted it. The worst thing is he’s right, Jennifer. I don’t have a case, at least not one that I can bargain. No weapon, no eyewitnesses, no prints, no crime scene forensics. As Max said, ‘I’ve got a brief appearance of a masked man no one can identify.’”
“You’ve got more than that, Scott. You have the gun purchase records and the voice ID.”
“Right—and that’s about it. I’ll be making the shortest closing argument for a murder case in Georgia history.” Scott sighed and smiled, breaking the tension. “At least that will be a record, and then I’ll be famous.”
Jennifer waived off his joke. “What about the attempted bribe, Scott? Who will you report that to?”
“No one. It couldn’t be proved, and it would only cause problems for the case as well as the DA’s office. Can’t you see it in the paper? ‘Harrison prosecutor accuses defense counsel of attempted bribe.’ I have no evidence except my word—don’t even have the slip of paper with the phone number. And no matter how you slice it, it just sounds sordid. Every lawyer in town would be asking the same question: ‘Why did he go to a grimy old motel ten miles from his office on a Saturday afternoon to plea bargain?’ I can’t even provide a valid answer to myself. It makes me feel dirty just discussing it—in fact, I want to take a hot shower right now. No question, as soon as the story broke, I’d be removed from the case. I’m not breaking that news.”
“Well, I certainly won’t tell anyone.”
“Then you and I are the only ones who’ll know. And of course, Max Gordon, the go-to guy, and Senator Harrison with the money for the scheme. But I don’t think they’ll be mentioning it.” Scott paused, glancing at his watch. “We should be getting on our way to Hilton Head.”
“Do you still want to take that hot shower?”
“Yes, do you mind?”
Jennifer smiled. “Not if I can join you. Will that be OK?”
“I’d be delighted,” replied Scott, returning the smile.
“Then let’s go.” Jennifer grabbed his hand and led him down the hallway.
CHAPTER FORTY-EIGHT
April 28, 2008
At 9:00 a.m., Scott and Joe Fasi sat face to face with the jury sworn to try the case of State of Georgia v. John Harrison. As expected, there was immense media coverage, even for the five-day jury selection process held the previous week. The public seemed to have an unquenchable appetite for news of the Toussaint’s murder—and for the Senator’s son back on trial—and every media source in Georgia was determined to provide a banquet meal of information each day.
In an effort to control the scene, Judge Thaler had ordered media pooling. The courtroom was set up as in the first Georgia v. Harrison trial: a tripod mounted TV camera in a far isle with two operators nearby, media-pool representatives in the front row, and the rest of the gallery packed with spectators. However, unlike the previous trial, neither Senator Harrison nor his wife attended. At the time of the arrest, the senator stated that he was confident in the innocence of his son but would have no further comment until the trial was concluded. He had stuck with his promise. At every campaign stop he was deluged with questions about his son, but the answer was always the same: no comment. Still, on those occasions, the anguish in his eyes spoke for him.
The jury process had been long and tedious, but Fasi was good with a jury and conducted all the voir dire for the prosecution. Although he used no notes, he had an uncanny ability to recall jurors’ names after hearing them only once and was flawless in connecting their previous responses. “Mr. Kantziper, I believe you said you were retired, but had done some bit-part acting recently … Mr. Hanson, as a CPA, have you ever testified as an expert witness in a trial? … Mrs. Northorp, you said you had been called for jury service twice when you lived in Pittsburgh … ” Scott wondered if he could ever develop such skill.
The notoriety of the trial made seating a jury difficult, and after two days of questioning, Max Gordon made a motion for a change of venue. Judge Thaler denied the motion, and the wearisome process continued. While initially it seemed highly unlikely that a jury could be seated in Savannah, by late Friday five men and seven women had been chosen to hear the case along with three alternates.
John H
arrison had, as he had promised, refused to provide a voice sample, and Gordon filed a motion to exclude all evidence of the voice ID lineup utilizing the cassettes, claiming that the cassette with Harrison’s voice could not be proved to be “authentic”—that is, the real voice of Harrison—without revealing the source. And revealing the source—his testimony at the Florida robbery trial—would be highly prejudicial and grounds for reversal. He cited the Armstead decision, making essentially the same argument made in January by Harlan Stern. Scott countered that the authenticity of the tape was highly relevant and essential. He informed Judge Thaler that he had witnesses available to authenticate the tape, but offered to simply stipulate that the cassette contained the voice of John Harrison. Gordon refused the offer. Judge Thaler resolved the issue by giving the defense the choice between a stipulation or allowing proof by testimony. Gordon quickly opted for the stipulation.
The defense had not responded to Scott’s demand for alibi defense, thus precluding anyone other than the defendant testifying as to any alibi. This left the prosecution in the dark about the defense, but to Scott it was clear: the defense hinged on the weakness of the state’s case. At the end of the prosecution’s case, they might even choose not to put on any evidence at all.
When Judge Thaler nodded to him to present his opening statement, Scott took a deep breath and walked out to face the jury.
“Members of the jury,” he began, “we are here today because of the horrifying and unforgettable crimes that occurred on a Saturday night last September at Toussaint’s restaurant here in Savannah. It was almost nine o’clock, and inside the busy restaurant, diners were enjoying food and conversation with friends and relatives. Some were celebrating a special occasion, and some were there just for a welcome night out. Daniel Voss and his wife Doris were there with their eighteen-year-old daughter Angela, a high school senior. They were celebrating an award that had arrived for Angela in the mail that morning—a full scholarship to Emory University, where she hoped someday to study medicine.
“Mildred Thompson, the cashier, was at her register in the entrance vestibule when suddenly a man appeared holding a 9mm pistol and wearing a ski mask over his face.” Scott stopped, turned to the defense table, and pointed at John Harrison.
“It was that man.”
In the short opening—no more than twenty minutes—Scott carefully laid out his evidence. He described for the jury the tragic scene the first responders and Detective Majewski and his team found at the restaurant when they arrived. He noted the general physical description of the robber as related by the eyewitnesses—race, height, build. He told the jury of the recent purchase by the defendant of a pistol of the same caliber used in the murder. He detailed the voice identification procedure with the cassettes and how two witnesses had identified the defendant’s voice as that of the robber. He informed them about the live voice lineup in which the defendant refused to participate.
Considering the evidence he had, it was a good opening statement. But Scott recognized what he had known all along—this was a weak case. Sure, he had a couple dozen witnesses—the medical examiner, forensic team members, detectives, restaurant employees—all with a part to play, but physical evidence connecting the defendant to the robbery and murder was missing.
Max Gordon—dressed in his impeccably tailored suit, Italian silk designer tie, and his gaudy pink handkerchief—rose to make the opening for the defense. It was a powerful assault on the prosecution’s evidence, item by item, ending with a simple, rhetorical question: “What American jury could ever convict on evidence such as this?”
Scott was asking himself the same question.
CHAPTER FORTY-NINE
April 30, 2008
Wednesday, the third day of the prosecution’s case, was the time for the testimony of Mildred Thompson and Troy Donaway, the two witnesses who had identified John Harrison’s voice. They would be Scott’s concluding witnesses. As in most trials, he wanted to end the presentation of his evidence with his strongest witness. He would start with Thompson and follow with Donaway, who had made the most positive ID.
The trial so far had gone about as well as he could expect. The testimony of Majewski on Monday and Detective Nell Rose, who testified Tuesday, seemed to be well received by the jury. Majewski presented evidence of the defendant’s refusal to participate in the live voice ID, which was once again objected to by Gordon and again overruled. There were no mistakes or surprises from the forensic team, medical examiner, or first responders—all who testified during those first two days.
Daniel Voss and his wife both testified Monday. Their testimony was emotional and obviously very painful. Scott would have preferred to spare them the anguish of reliving that monstrous event, but it was essential that everyone who witnessed the murder testify. Even though they could not identify the defendant and had no other evidence linking the defendant to the crime, their testimony was important. It put a real face on the crime. Angela was now not just the name of the victim of this tragedy but a beautiful, living, loving daughter of these devoted and now grief-stricken parents. Scott’s questioning was kept brief, and Gordon did not cross-examine either of them.
Judge Thaler kept the court in session each day until nearly 6:00 p.m. The jury was not sequestered, and he wanted to conclude the case quickly to shield them from the extensive media coverage. Each day he issued a stern warning against reading the newspaper, or listening to TV or radio broadcasts, or discussing the case with anyone. “And I mean anyone—including your spouse, or even another juror. Anyone!”
Joe Fasi, sitting as second chair, watched as Scott presented all the witnesses and responded to all objections. And there were many objections. Max Gordon may have looked like a clown with his slicked down hair and his pink handkerchief dangling from his top pocket, but he was a cagey courtroom advocate. His cross-exams were extensive, well-targeted, and sharp. He was bringing his best game to this trial.
It was 8:45 a.m., and Scott and Fasi were sitting at the prosecution table waiting for the morning session to begin. Scott looked towards the courtroom entry door and saw Richard Evans approaching with a very serious look. He knew it was not good news.
“What’s up, Richard?”
“Just got a call from Belinda Eddy, Mildred Thompson’s aide. They are just arriving at the airport here. They weren’t able to get their flight out of Atlanta last night. I’m not sure what the problem was. She’ll be here, but not in time to be your first witness.”
Scott took a deep breath. “I knew things were going too smoothly. But as problems go, that’s not a big one, Richard. I wanted to put her on first today and end with Donaway, but I’ll just switch them. Donaway should be out there waiting.”
“He is. He’s got an unlit cigarette in his mouth. Seems like a nervous dude to be such a big-time host on a call-in show.”
“I think that’s a job requirement—chain smoking nervous guy.”
“Will you need to speak with Mildred Thompson before she testifies?”
“No, I knew about her medical appointment in Atlanta, so I had a session with her on Saturday before she left. Just check to see if she has any questions or concerns.”
A few minutes later, Judge Thaler entered from his side door and called the court to order. After the jury was seated, he gave his familiar silent nod in the direction of the prosecution table. Scott rose and called Donaway to the stand. Following a few introductory questions, Scott directed him to Toussaint’s restaurant for a description of what he observed and heard that night. Donaway described the scene.
“Did you hear the robber speak?”
“Yes, I heard him clearly. He said, ‘Everyone down. Make a sound and you’re dead.’ Apparently I was a bit slow, because he followed that with ‘Down, damn it. Down!’ I was just a few feet away. The cashier got down, but I stayed up until he pointed his pistol straight at me—then I quickly got down. Then I heard him say to the cashier, ‘You, up! Place all your cash in this bag. All bills,
coins, and rolls of coins. And don’t look at me. Touch that phone and you are dead.’”
Donaway testified from a ramrod-straight posture in the witness chair, with a clear commanding voice. He seemed to be very much enjoying his part in the drama.
“What did the cashier do?” Scott asked.
“It looked like she started doing what he told her to do, putting the cash in his bag. Apparently she wasn’t fast enough for him, because I heard him say, ‘Hurry, hurry.’”
“Tell the jury what happened next.”
“A man, woman, and a teenage girl walked into the vestibule; I guess to pay their bill. The guy with the mask shouted at them, ‘Stop, get down,’ but I could see they were all frightened, and they froze. They just stood there, not moving. I found out later they were the Voss family. I had just come from the pistol range and had my target pistol with me in a hard plastic case. I couldn’t leave it in my Jeep Wrangler, because it’s open. As I was lying there, I made a decision to try to stop this robbery. I was going to get my pistol and aim it at him. Maybe he would drop the bag and run. But he didn’t. He started firing and got three rounds off. I’m the one he should have been aiming at, but he hit the cashier and the girl. He was gone as soon as he fired those rounds.”
Scott next led Donaway through what happened immediately afterwards and then to the voice lineup procedure.
“As you listened to those cassettes, did you hear the voice of the man who was behind that mask?”
“I did, and I wrote my initials on the cassette,” Donaway replied proudly, as he crossed his arms and sat back in his chair.
Scott showed Donaway a cassette, previously identified by both Majewski and Rose, bearing his initials. Donaway confirmed the initials were his.
“How can you be so certain of the voice you identified, Mr. Donaway?”
“Because of my job. I’ve been a radio talk show host for years. I listen to voices for hours each day. I can tell instantly if the person has called before. I can recognize a voice after hearing it just one time. I am very good at—”
The Indictments Page 25
