Scott held up a hand to stop him. He had said enough for the jury to know he was well-qualified to make the identification. If he were to continue, they would soon learn he was also a pompous pontifical blowhard.
Finally, Scott asked Donaway a question about his impending indictment—he would not allow Max Gordon the pleasure of revealing this information first.
“Mr. Donaway, are you presently facing criminal charges, charges originating from the Chatham County District Attorney’s office?”
“I am.”
“And what are those charges?”
“Possession of an unregistered silencer.”
“What is a ‘silencer’?”
“It’s just that—a device that helps protect your hearing by silencing the muzzle blast of a gun.”
“Have I, or anyone from the DA’s office, promised you anything in return for your testimony in this case?”
“No, sir,” responded Donaway in a loud voice, once again emphatically crossing his arms over his chest.
When Scott had finished, Judge Thaler nodded to the defense. It was time for what was sure to be a scathing and vigorous cross-examination. For the next half an hour, Scott watched as Max Gordon—with his questions, tone, and body language—made any identification of a voice, filtered through a cassette tape, sound incredulous. And when he was finished with that, he began a more personal attack on Donaway’s credibility.
“So you’re facing charges. I noted you didn’t tell the jury whether those charges are misdemeanor or felony charges. Which is it?”
“It’s a felony.”
“A felony. What’s the maximum punishment you can receive for that felony?”
“I think it’s five years.”
“Are you represented by counsel?”
“Yes, I am.”
“Has he explained the maximum sentence to you?”
“He has.”
“So it’s not really ‘I think it’s five years.’ You know it’s five years, don’t you?”
“I suppose so,” said Donaway, in a low, subdued voice.
“Is that a ‘yes’?”
“Yes,” replied Donaway softly. The ramrod posture was now slumping.
“You haven’t been brought to trial … in fact, no date has even been set for your trial, has it?”
“No.”
“And that’s because the prosecutor in your case wants to see how much help you can give in this case, right?”
“No, that’s not right.” Donaway’s eyes tightened in anger, but his voice remained subdued.
“The prosecutor in your felony case is the same prosecutor of this case—Mr. Marino—sitting right over there. Same prosecutor, isn’t that correct?” Gordon turned and pointed to Scott.
“Yes.”
“Yes, sitting right there, listening to every word you say. Now, you’ve discussed the testimony you were going to give in this case with Mr. Marino, haven’t you?”
“Yes, I have.”
“So he knows just what you are going to say?”
“I suppose so.”
“Is that another ‘yes’?”
“Yes.”
“And the more you help him with this case, the more you expect him to help with your case, right?”
“That’s not why I’m testifying,” replied Donaway, slowly shaking his head.
“And that was not my question, Mr. Donaway. If you don’t understand a question, say so. The question is, the more you help him with this case, the more you expect him to help with your case, isn’t that correct?”
“I don’t understand your question.”
“Am I speaking loudly enough for you?”
“Yes.”
“Then it’s probably because you don’t want to understand, so let me put it another way.” Gordon turned again briefly and pointed at Scott. “That prosecutor right over there, Mr. Marino, can cut you a deal or refuse to cut you a deal. You understand that, don’t you?”
“Well, if that’s the way it works,” replied Donaway in a voice sounding of defeat. The ramrod posture had vanished, and his response was barely audible. It was obvious that Donaway was no longer enjoying his part.
“The question really calls for a simple yes or no answer, Mr. Donaway. May the jury take that as a ‘yes’?”
And so it went for another half hour. It was difficult for Scott to tell if the acerbic and frequently belittling questions were helpful to the defense or not. The jury could surely conclude that Donaway had a special interest in testifying favorably for the prosecution. But Scott thought the same result could have been obtained with a less virulent examination; juries can quickly learn to dislike counsel who pepper their questions with sarcasm and seem to enjoy denigrating the witness. He hoped that would be the result of this examination by Max Gordon.
During the cross-examination, Scott received a note from Richard Evans. Mildred Thompson was present and ready to testify.
Scott had only a few questions on redirect exam and immediately called Thompson, who was escorted to the witness box by a bailiff. After the introductory questions, Scott led her through testimony of what she had seen and heard during the robbery and murder. He asked her to elaborate on how the bullet to her head had left her blind. It was obviously painful for her to relive that terrifying evening and its aftermath, but she held up surprisingly well.
Next, Scott turned her attention to her participation in the voice lineup conducted by Detective Rose. The jury had already heard testimony of the procedure, so the questions went directly to her cassette selections.
“Do you recall the instructions you were given before making your selections?”
“They were quite simple. I was to listen to several tapes and determine if I recognized the voice of the man who shot me. I was told his voice may or may not be on the tapes.”
“Describe for the jury what you did, following those instructions.”
“I reached in a box and pulled out a tape. I was told it was tape number two. I listened, but it didn’t sound like the man. Then I picked another tape. I don’t recall the number, but that wasn’t him either. The next tape I picked was tape number five, according to Detective Rose. I listened, and it sounded like him. I told Detective Rose that I believed it was him, but I couldn’t be certain. I listened to three other tapes, and none of them sounded like the man.”
With a few more questions, Scott completed his examination and returned to his seat at the prosecution table. Judge Thaler nodded to Max Gordon.
When Max Gordon rose to begin his cross-examination, he was careful to make some expression of sympathy for Mildred Thompson’s injuries. Scott was surprised that Max was able to tone down his smarminess, pitching his questions in a soft voice and friendly style.
“Because of your injuries, you weren’t interviewed about the robbery until almost two weeks after you were shot?”
“Yes, sir, almost two weeks. I was still in the hospital.”
“And that was by a detective who introduced himself to you as Detective Furlow?”
“Yes, I believe that was his name.”
“And Detective Furlow informed you that he was working with a team of Savannah detectives to identify the robber who had shot you?”
“Yes, that’s true.”
“Do you recall that conversation with Detective Furlow?”
“Yes, I believe so.”
“You told Detective Furlow that you never saw the man’s face because of the ski mask, and all you could give by way of identification was that he was a white male, medium build, and about six feet tall. Was that your description?”
“Yes, it was.”
“And the robber was shouting his orders to you and the others?”
“Yes.”
“It wasn’t a calm voice, like those voices you heard on the tapes, was it?”
“No.”
“I would imagine you were very frightened—man suddenly coming up to you with a gun in his hand. Were you afraid for your life?
”
“Yes I was. It’s something I’d never experienced.”
“Now this so-called voice identification or lineup, when you listened to tapes, that was a month after you heard the man shouting at you and the others. Is that correct?”
“Yes.”
“But none of the tapes included any man shouting, did they?”
“No.”
“They were all very calm, like they were reading from a script?”
“Yes.”
“Now, Ms. Thompson, after you listened to those tapes, you told Detective Rose that the voice ‘kind of” sounded like the robber, but you weren’t certain. Is that right?”
“Yes, that’s right.”
“And you wanted Detective Rose to clearly understand that you just couldn’t be certain?”
“Yes.”
“Because you, just like this jury, wouldn’t want to accuse an innocent person when you weren’t certain. Is that right?”
“Yes, that’s right.”
“Now Ms. Thompson, let’s make sure the jury understands your testimony. There is nothing else you saw or heard that night that can connect this defendant to that robbery, is there?”
Mildred Thompson paused and appeared to be thinking. When she finally answered, Max Gordon would wish he had never asked that question. It was a verdict-defining question, further justification for an old maxim of cross-examination: stop when you are ahead. There is always the chance of “one question too many.”
“Well, there is something—I just now remember,” Mildred said. “When he was pointing that pistol at me, it was only a foot or so away. I couldn’t take my eyes off of it. And I noticed that he had letters on his fingers that held the pistol.” Her voice came slowly, as if the fragments of her shattered memory were just falling into place. She looked sightlessly from the witness box. “You know, you think about all kinds of strange things at a time like that. I remember now—I remember thinking how odd it was to get big black letters tattooed on your hand—the letters ‘A D.’ They were right next to the knuckles. I see it clearly in my mind now—the ‘A’ on the middle finger, the ‘D’ on the ring finger. I guess I’ve been just trying to keep that sight out of my mind.”
Max Gordon’s face was the picture of total shock. Open mouthed, he turned to the defense table and looked at John Harrison, who was then sitting with his hands in his lap. The TV camera shifted focus from the witness to the defendant, and the gallery grew still and silent as the testimony sank in.
Scott, absolutely stunned by Thompson’s revelation, turned to Fasi and saw the fingers of Fasi’s right hand wrapped tightly around his lower jaw. Neither Scott nor Fasi spoke, not even a whisper, but their eyes met, asking the same question: Is this really happening?
Gordon turned again to face the witness, but he did not speak. He stood in place, rigid, his face ashen. But he said nothing.
All the members of the jury seemed to be leaning forward, but they were motionless. Some had placed their fingers tightly over their mouths. In the gallery, no cameras clicked, no papers rattled. Everyone in the courtroom had become inanimate. The eerie silence and stillness remained until broken by Judge Thaler.
“Mr. Gordon, do you have any further questions?”
Gordon turned once again to the defendant, who was looking down at his hands. The judge waited for a response from Gordon, but there was none.
“Mr. Gordon?”
“Your Honor?”
“Mr. Gordon, I asked if you have any further questions for this witness.”
Max Gordon shook his head slowly, “No, Your Honor.”
“Any redirect, Mr. Marino?”
Scott stood. “Yes, Your Honor,” he said, but then paused for a long moment to consider his options. His body grew tense. His mind was spinning, trying to grasp and evaluate this unexpected testimony. I want those knuckles shown to the jury, he thought. And then, just as quickly, What if she’s mistaken? And what if it was only temporary ink, now gone? He knew it could be a very quick end for the prosecution. But there was no way around it. The jury must see those knuckles.
“Your Honor, I request that you direct that the defendant be escorted forward to display his hands … his fingers and knuckles to the jury.”
Max Gordon, who now seemed to have recovered somewhat, was back on his feet in an instant. “Your Honor, may we have a sidebar?”
Judge Thaler nodded to the bailiff. “We’ll have a jury break while we take care of this.”
As soon as the jury was removed, another head bob granted Max Gordon permission to speak. Thaler conducted his courtroom like a catcher giving signals to his pitcher.
“Your Honor, we strenuously object to requiring the defendant to participate in any manner suggested by the prosecutor. You may recall the Armstead case, which I cited last week during the hearing on our objection to the voice lineup. In Armstead, the Georgia Court of Appeals held that compelling a handwriting sample, even out of the jury’s presence, was a violation of the Georgia constitution. This is a much more blatant violation—requiring the defendant to actively participate in a display before this jury trying him for murder.”
“Well, Mr. Gordon, as you pointed out, that Armstead case involved a forced handwriting sample. I’m sure you are aware that both federal and Georgia courts have long held there is no violation of rights in compelling a display of a tattoo or body part. Your objection is overruled.”
“With all due respect, I will advise my client that your order is illegal,” Gordon said, his voice rising in agitation. “Whether he complies will be up to him, but I cannot advise him to comply with an illegal order.”
“Apparently you are prepared to see your client forcefully brought before the jury, kicking and screaming. That would certainly be a unique sight, Mr. Gordon. My suggestion is that you do what you can to avoid that. You are instructed—no, ordered—not to inform the defendant that this is an illegal order. It isn’t. And I suggest you don’t prod me into holding you in contempt for telling the defendant otherwise. This is a serious matter, and the jury will see your client’s fingers and knuckles—one way or another. Now, we will take a short recess while you confer with your client.”
When the court reconvened, Judge Thaler nodded to Scott.
“Your Honor,” Scott said, “I request that you direct the defendant to display his right hand, fingers and knuckles, so that all members of the jury may clearly observe them.”
As if on cue, two very tall and muscular bailiffs walked to the defense table. The TV camera zoomed in on the defendant, and the courtroom once again became silent. The two defense counsel, sitting on each side of the defendant, stood. Scott looked on uneasily at the approaching confrontation. Then, he watched as John Harrison, with a bailiff on each side, stood, pushed his chair back, and walked slowly to the jury rail.
When he reached the rail, he extended both hands, palms down. Near the knuckle of his middle finger on his right hand, in solid black, was the letter “A”. Near the knuckle of the ring finger, was the letter “D”. Alexia Dimitris.
Now, undone by such an innocent, if juvenile, prison tattoo, Harrison stood before the jury with tears in his eyes. The jurors looked on intently, absorbing the significance of this new evidence. Some in the back row stood to get a better view. Clearly and indelibly penned on his fingers were the initials of his pen pal, his new love—just something he could show during her weekly visits.
“You may now return to your seat, Mr. Harrison,” Judge Thaler said, barely above a whisper.
Max Gordon sat slumped at the defense table, his face a mosaic of frustration and pain, as he reflected on the magnitude of the damage wrought by a question he should never have asked.
“The state rests,” said Scott. With that, Judge Thaler nodded to a bailiff to take the jury out.
Gordon rose to make a motion for a judgment of acquittal, a motion he had made hundreds of times in his long career as a defense counsel. This one would be quite different. It wasn’t th
at he had never made the motion knowing that it would be denied. He had. Like all criminal defense attorneys who take on tough cases, he had lost his share. But this was not a tough case; he had expected to win. Yet there he stood, defeated—by a single question of his own making. And now, the eloquent and persuasive voice that he always brought with him to the courtroom, abandoned him—replaced by a dispirited whimper.
The motion was quickly denied. “We’ll stop now for lunch,” said Judge Thaler. “This afternoon the defense may present its evidence. The court will be in recess until one-thirty.”
Scott turned to the gallery and saw Alexia Dimitris quickly making her way to the exit. He wondered what thoughts were now running through her mind. He gathered his papers into his briefcase, and he and Fasi returned to their offices.
****
The afternoon session was short. Before the jury returned to the courtroom, Max Gordon announced that the defense would not be presenting any evidence, and the defendant would not be testifying.
“We’ll recess for the day,” said Judge Thaler. “We’ll reconvene at nine in the morning to begin closing arguments.” He nodded to a bailiff.
When the jury had departed, he instructed counsel to remain so they could discuss jury instructions. As promised, Judge Thaler had a special instruction on the refusal of the defendant to participate in the voice ID lineup: It may be considered as circumstantial evidence of consciousness of guilt, the instruction would read. Gordon’s objection was promptly overruled. And with that, the most exciting—and turbulent—trial day of Scott Marino’s young career ended. He returned to his office to work on his closing argument. It would be slightly different from the one he had initially planned.
CHAPTER FIFTY
May 1, 2008
Scott and Joe Fasi took the elevator down to Judge Thaler’s courtroom together. It was 8:45 a.m., and the gallery was already packed. Bill Baldwin and Roger Curlin were seated together, talking quietly. In the back row were Daniel and Doris Voss. Scott looked carefully to see if Alexia Dimitris was present. She was not, and with the courtroom already filled, she would now be unable to get a seat even if she showed. This would be the first day she was absent, including all the long and boring days of jury selection. Scott noticed one person present whom he had not seen at any other session: Carl DeBickero, the GBI agent. He was accompanied by another agent Scott had seen but never met.
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