The Two-Witness Rule: A Novel

by William Eleazer

  Bill interrupted. “But how did Wilborn get his hands on that much cash? Banks don’t just dole out that kind of money without a lot of paper work. Even as little as $10,000 requires a Currency Transaction Report to the feds, and that creates a paper trail that’s easily traced.”

  “No bank,” said Scott. “Remember—he had contacts in the syndicate—they deal in cash and had plenty. Wilborn introduced Gordon to one of the higher-ups in the syndicate, and Gordon took care of the details. Probably cost him a big premium above the cash he got, but those guys know how to wash a transaction to make the deal appear clean. I don’t know the details—not sure even DeBickero knows, but the deal was done and Wilborn headed out with the cash. Gordon had hired some hoodlum to contact the witnesses to make the deal, so he already had commitments from the witnesses. All Wilborn had to do was get in his vehicle and deliver. He drove to Denver to pay off Johnson, then to Savannah for Patel—alone. Took his time, careful to drive the speed limit. Didn’t want to get stopped with that much cash. Three thousand miles round trip.”

  “I’m surprised it got delivered. There he was, alone with half a million in cash. I’m amazed that a crook like Wilborn didn’t stop along the way—rent a storage shed, stash it, and disappear for a few years,” Bill said.

  “He probably now wishes he had,” Scott said. “I also wish he had—Angela Voss would still be alive and John Harrison would be serving ten years.”

  “What about the witnesses—Patel and the guy from Colorado? I know Patel was arrested. But what about the other guy?”

  “Josh Johnson. He was also arrested,” Scott replied. “Patel’s out on bail. Initially Johnson fought extradition from Colorado but finally gave up. He’s being escorted back to Savannah this weekend. We’re negotiating with Patel’s attorney for a plea deal, and we’ll do the same with Johnson when he gets here. The main culprit in this case is, of course, Gordon, and Gordon’s our major target. These two witnesses were clean as far as we know until Gordon entered the case. I would like to see him put away for life, but if we can get twenty years, even ten years, I’ll be satisfied.”

  “If they don’t accept the pretrial, how strong is your case against Patel and Johnson?”

  “Well, both admitted to Carl DeBickero that they received the cash. They could hardly deny it—Wilborn had taken photos of the delivery with both of them looking at a suitcase filled with $250,000 cash and smiling broadly for the camera. The photos, according to Wilborn, were taken at the direction of Max Gordon, apparently to confirm for Gordon that Wilborn actually delivered the funds. Wilborn gave the photos to DeBickero—a big bargaining chip in cutting his own pretrial deal.”

  “Are you lead counsel?”

  “So far, but I expect Fasi will sit with me at trial, just as he did in the murder trial. But that’s assuming I’m still on the case when it gets to trial. I expect that Samarkos may make a motion to have me dismissed from prosecuting the case.”

  Bill’s face showed surprise and concern. “Why, Scott?”

  “I don’t think his client is happy with me,” replied Scott, with a smile. “As we were leaving the courtroom this morning, Gordon said to Samarkos, just loud enough for me to hear, that he wanted that ‘arrogant son-of-a-bitch off this case.’ I couldn’t imagine he meant me,” Scott said with a chuckle. “Am I an arrogant son-of-a-bitch, Bill? I swear he was looking straight at me when he said it.”

  “Well, I can’t speak to your ancestry, but you are a bit arrogant. Is that grounds to have you dismissed from the case?”

  “Hardly. But if he wants me off the case, I’m sure Samarkos will try to find some other grounds.”

  “Are there any?”

  “No, but that won’t keep them from trying. Throw some mud balls and hope one sticks. One common ground for dismissing an attorney is for conflict of interest. But I don’t have any conflict. I wasn’t the investigator and wasn’t a member of the grand jury. Never had any dealing with the guy except as opposing counsel in three trials. Sure, I dislike the slimy bastard, but it’s OK for the prosecutor to dislike the defendant. If that were grounds for dismissal they wouldn’t be able to find a prosecutor anywhere south of Chattanooga to try this case. I’m sworn to give him a fair trial, not enjoy his company. Nothing that—”

  Scott did not finish his sentence. He looked to the center of the long bar. There was Jennifer, talking with Juri. Scott smiled as he watched. She was radiantly beautiful, and as always, she brought a smile to his face. Bill turned in the same direction.

  “I see Jennifer’s here, and I recall my promise to pay the tab and leave quickly,” Bill said, as he reached for his billfold.

  “No. Come on over and say ‘hi,’” Scott said.

  Scott and Bill moved from the privacy of the bar alcove to the center of the bar where Jennifer was sitting. A tonic and lime was on the bar in front of her.

  Scott gave her a quick kiss on her cheek, and said, “We didn’t see you come in, but I see you’ve been here long enough to get served. Sorry.” He took a seat next to Jennifer.

  “I saw that you and Bill were deep in conversation—didn’t want to interrupt.” Jennifer turned to face Bill. “Hi, Bill,” she said. “Haven’t seen you in a while.”

  “Yes, my bad luck, but nice to see you again. I stole a little time from Scott, but I’m leaving now so you two can catch up.” Bill placed some cash on the counter. As he was turning to leave, Juri stepped over to face them.

  “Can’t leave yet, Bill. I’ve got a story for Jennifer.” Juri was already beginning to smile, and Scott was trying to suppress a smile. He knew what would follow—Juri’s “story” would be a blonde joke. Bill slid into a bar stool and placed an elbow on the bar to listen.

  “Three blondes were walking through a forest when they came upon a set of tracks. First blonde says, ‘Those are deer tracks.’ The second blonde says, ‘No, those are elk tracks.’ Third blonde says, ‘You’re both wrong, those are moose tracks.’ And they were still arguing when the train hit them!”

  And with that, Juri’s smile turned into a broad grin. Then, the grin turned into a burst of laughter as he shifted his eyes from one to the other, looking for approval. Juri’s laughter was catching, and as usual, his audience followed. It was always the same, the good jokes as well as the bad.

  “Juri, you’ve already told one reporter joke,” Bill said. “I’m leaving before you think of another. And thanks, Scott, for the update on Gordon. Hope to see you again soon—and, of course, you too, Jennifer.” Bill headed for the exit.

  At that moment, a loud crash of dishes hitting the floor resounded throughout the building. It came from the restaurant area and was followed by loud but indistinct voices.

  “Sounds like they need some help,” Juri said, as he rushed out from behind the bar on his way to the accident.

  “I think that’ll keep Juri occupied a while,” Scott said to Jennifer. “Saved us from having to listen to that bad lawyer joke I know he was planning.” He reached for Jennifer’s hand. “Come on, I found a new Italian restaurant near Forsyth Park that I want to try.”

  Chapter Three

  Tuesday, June 17

  Joe Fasi arrived at the Chatham County DA’s office at 7:00 a.m., as he frequently did. He was usually the first one there. Not today. He looked down a corridor and saw a light that seemed to be coming from Scott Marino’s office. He had not spoken to Scott in a few days and decided to check in.

  “Good morning, Scott. Busy day today?”

  “Morning, Joe. Yes, starting that Sumter Street arson case this morning. Gonna be a battle of experts. Just checking a few last minute details and the reports of my two experts. I’ve read about everything I can get my hands on about arson investigations—there’s a ton of information out there on the Internet. But a couple of days ago I came across an article by John Lentini—he’s a nationally known fire investigator, forty years experience.
He claims that much of the information taught to arson investigators is mythical.”

  “Myths that impact your case?”

  “Maybe. For example, my experts give as one reason they believe an accelerant was used was the speed of the fire, and that the angle of the V-pattern indicates the speed. Lentini says that a rapidly burning fire doesn’t necessarily indicate accelerants were used, and you can’t tell speed from the V-pattern. Myths, he calls it. Of course, we have a lot more. I’m not relying solely on experts, but I do see a problem with some of their evidence.”

  “Where did you get your experts?” asked Fasi.

  “Both are with the GBI.”

  “Well, as you say, Scott, this is a battle of experts. Let them fight it out. I’m sure your experts can handle it. You do your job and let them do theirs.”

  Scott was seated behind his desk. Fasi had been standing since entering but now took a seat close to Scott.

  “Don’t believe I’ve spoken to you recently about our old friend Max Gordon—anything new since his arraignment?” asked Fasi.

  “Yes, got a motion yesterday from Samarkos to have me dismissed from the case. I read it but haven’t worked on a response yet. I’ll do that this weekend. Right now this arson trial is consuming me.”

  “Let me read it,” said Fasi. Scott searched under a pile of papers, found the motion and handed it to Fasi.

  After reading, Fasi said, “Scott, Samarkos seems to be relying mostly on the Prosecution Standards of the National District Attorneys Association. Any validity to the charges he makes?”

  “Nope.”

  “Any reason at all that you can think of that could support your dismissal?”

  “Nope.”

  “Then I’ll prepare the response. When is the hearing?”

  “Thursday, June 26. Judge McCabe has the case. But I can do it—had planned to work on it as soon as this arson trial is over, probably Friday.”

  “I think you have enough on your plate now—maybe too much. I’ll do it. Besides, it’s a complaint against you personally. It’s appropriate to have someone else respond.”

  “Well, thanks,” Scott said. In fact, he was genuinely relieved. He did have a lot on his plate.

  “Have you ever had a case with Judge McCabe?” Fasi asked.

  “No, this will be my first.”

  “He’s a former prosecutor,” Fasi said. “Good judge—runs a tight ship. Make me a copy of the motion. I’ll prepare the response in the next day or so and send you a copy.”

  Fasi took a long look at Scott as he got up to leave. Scott looked tired and appeared to have lost weight. Fasi was concerned. Scott was the least experienced assistant in the felony division and was carrying a full load of felony cases. The Max Gordon case was going to require extensive work. Fasi made a mental note to try to lighten Scott’s case load.

  Later that morning, Fasi phoned Louise Petren, office personnel manager. “Louise, could you please look up the vacation status of Scott Marino. How many vacation days has he taken in the past year?”

  “I don’t have to look it up, Mr. Fasi. I know he hasn’t taken a single day of vacation time since he was hired.”

  It did not surprise Fasi. But it concerned him. Trials are extremely exhausting, even for experienced counsel who had learned to pace themselves. Young Type A prosecutors could burn out quickly. Fasi knew he was responsible for mentoring this young assistant in the challenges he would face in his professional development; he had not until now considered potential health challenges.

  Chapter Four

  Thursday, June 26

  Scott and Fasi were already seated at the prosecution table when Samarkos entered. Seeing that Samarkos was alone, Scott’s thoughts turned to his missing client. Scott pictured Max Gordon in Cleveland, serving as defense counsel for some ultra-rich defendant who was unaware that Max was under indictment down in Savannah, Georgia, for paying witnesses to lie. Or perhaps, that special talent was the inducement for hiring Max. In any case, Scott still firmly believed that an attorney under indictment for a serious felony should not be appearing as counsel in any court. The motion he made at arraignment to include that restriction as part of Max’s bail had been reported by Bill Baldwin in the South Georgia Times, and Scott had discussed it with Fasi the next day. Fasi had not reproached him for it; in fact, Fasi seemed to think it was rather a reasonable motion, though he was not surprised that Judge Vesely denied it.

  Scott had not told Fasi of Max’s demand to Samarkos to “Get that arrogant son-of-a-bitch off this case!” He did not think it was relevant to the motion to have him removed from the case. Just because Max wanted him off was certainly not grounds for removal, and he believed it would be petty and trivial to include the comment. Though he was having second thoughts—perhaps he should have at least informed Fasi of it—it was too late now. Fasi had already submitted his response and prepared his argument.

  Judge Bernard McCabe took his seat promptly at 9:00 a.m., and with the usual pageantry exhibited in all the opening sessions of Chatham County courts—several loud and startling raps on the floor by a bailiff with a tall, banner-decorated wooden staff—the court was called to order.

  Judge McCabe was an imposing figure on the bench, in his late 50s, tall and broad shouldered, with his closely trimmed dark brown hair just beginning to show a bit of gray. He served in the district attorney’s office for twenty years before his appointment to the bench. What Scott had heard from Fasi and other attorneys was that McCabe was a cerebral judge who carefully weighed his decisions and was rarely, if ever, reversed. He was also known as a judge who was exceptionally courteous to all parties but always in control of the courtroom. Scott welcomed that. He knew this trial would be a hard-fought case throughout. His experience had been that the prosecution of a case is much easier with a tough, controlling judge. He had seen it first hand in the first Harrison robbery trial when Judge Desano quickly showed Max Gordon that he, and not Gordon, would remain in command.

  Judge McCabe spoke briefly with the clerk, then moved quickly to the business at hand. He sat back in his chair and looked at Samarkos. “I note for the record that Mr. Gordon, the defendant in this case, is not present. I also note in the file a written waiver of appearance for this session, purportedly signed by the defendant. Did you witness this signature, Mr. Samarkos?”

  “I did, Your Honor. Mr. Gordon has specifically authorized me to proceed on his behalf in his absence.”

  “Then we’ll proceed.” He turned to look at Fasi. “Mr. Fasi, I see you have an associate with you. Who will be representing the prosecution?”

  Fasi stood. “Your Honor, for the proceeding today, I will be representing the prosecution, but the lead counsel for this case as it proceeds will be Assistant District Attorney Scott Marino.”

  Scott stood and faced the judge.

  “Mr. Marino, I believe this is the first time you have appeared in one of my trials.”

  “That is correct, Your Honor.”

  “Then a special welcome, Mr. Marino. Please be seated.” The judge paused, then held up some papers. “I’ve had an opportunity to read the brief on your motion, Mr. Samarkos, as well as the prosecution’s response, but if you wish, I’ll hear further argument on your motion now.”

  Samarkos rose from his chair and walked briskly to the lectern.

  “Your Honor, I realize this is a rather unusual motion, but it is one of great importance to this trial and to Mr. Gordon. I want to emphasize some of the points made in my brief. The district attorney has assigned an assistant district attorney to this case—Scott Marino—who we believe is not qualified to proceed with the prosecution. It is our position that he should be prohibited from serving as prosecutor of the charges against Mr. Gordon. Two years ago, Mr. Marino was the prosecuting attorney in a robbery case involving John Harrison, who was defended by Mr. Gordon. That trial was reversed, and
Mr. Marino was one of the prosecutors in the retrial, in which Mr. Gordon served again as defense counsel. Then, just two months ago, Mr. Marino was the prosecutor in the Harrison murder trial in which, again, Mr. Gordon was the defense counsel. It was at the conclusion of that trial, in the presence of Mr. Marino, that Mr. Gordon was arrested for subornation of perjury, the charge alleged in the indictment for this case. The factual basis for the indictment is based on an allegation that at the robbery retrial of John Harrison, the testimony of two witnesses was perjured testimony resulting from a payoff allegedly by Mr. Gordon. I do not wish to argue how absurd and preposterous that charge is, but—”

  Samarkos was quickly interrupted. “Then don’t argue the absurdity, Mr. Samarkos. Just tell me why I should dismiss Mr. Marino from prosecuting this case.”

  Samarkos bent his head slightly and smiled. It was a mild rebuke, and he realized it was deserved. “Yes, Your Honor.” He then continued. “There are several reasons. First, because Mr. Marino was present when the alleged perjury occurred, he could very well be a witness in this case. That is sufficient in itself. But perhaps a more important reason can be found in the Prosecution Standards of the National District Attorneys Association. Let me quote: ‘The prosecutor should excuse himself or herself from any prosecution where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.’