The Two-Witness Rule: A Novel

by William Eleazer

  Fasi walked out of the door and Scott got back to his other cases. He would start work again on the Gordon case after making contact with Carl in the afternoon. He was pleased that he was still an assistant DA and once again had the lead in the Gordon case. He was even more pleased that Jennifer would be returning with her parents from their European trip this week, and he would be joining them at Hilton Head on Saturday for a celebration of their return.

  ❖ ❖ ❖

  Scott called Carl in midafternoon. Carl was at the GBI office in Statesboro and was pleased to hear that Scott was back on the Gordon case. Nothing had really changed in the interim, and they did not expect any big changes. There were a number of administrative matters still to attend to—preparation and service of subpoenas for example—but no new leads to chase down. And they weren’t waiting for forensic reports. This was not a case where forensics would play a role—nothing to connect Gordon to the crimes except the other witnesses who were also caught up in them. Scott thought about how this trial would differ from the trials seen on TV. There would be no forensic evidence to present, no white coats to testify. He would have to convince the jury of Gordon’s guilt with witnesses who the jury would know were testifying with pretrial agreements to save their own hides. But Carl had produced a solid investigation, and despite the baggage dragging behind his three main witnesses, he was still confident he could and would get a conviction.

  Soon into the conversation, Scott gave Carl a report of his Saturday night visit to Colosimo’s. When he was finished, Carl said, “Sounds like you were ready to rumble. I’m glad you held your cool.”

  “I didn’t hold my cool. But Juri ushered me out before I did something foolish.”

  “That’s what friends are for. At least we now have a good lead on who originated that setup,” Carl said. “We haven’t made much progress, but I must confess we’ve slowed the investigation since it became clear you weren’t involved. That was my main concern—and your DA’s main concern and the reason it got my top priority for a week. But after I got that report from the GBI Lab that cleared you, I moved my major effort to some other pressing investigations. But for sure, we’re going to continue working it. We expect to have the results from our phone records subpoena soon.”

  “I don’t recall if I ever told you,” said Scott, “but Colosimo has two associates in his small office—both disbarred attorneys. I suspect if you could get some photos, there’s a good chance the girl—I can’t recall her name—could ID them.”

  “Glenna. Sure, we’ll do that. I can pull them up from DMV records. I think I have her convinced she needs to cooperate, or she’ll be taking the fall alone and eating jail rations for a year or so. And I’ll have Majewski show them around to the employees at the Henry Grady Inn. Maybe get an ID there, too.”

  “Yeah, would be a better ID than one coming from Glenna. I seem to recall she ID’d me a couple of weeks ago.” Scott paused a moment as he reflected on how he was so quickly thrust into the investigation by that false ID.

  “I’ll be contacting Patel’s attorney, Luke Schaub, in a few days,” Scott continued. “I want to make sure Patel is stable. Last time I spoke to Luke, he said Patel was almost a basket case.”

  A few minutes later they hung up, with Carl saying he would be in Savannah the next week on a different investigation and would give him a call.

  Chapter Twenty-Seven

  Thursday, August 28

  Scott received a phone call early Thursday morning from Luke Schaub. “My client approved the pretrial. I’ll be over your way in about twenty minutes to discuss a case I have with Daniel Mackay and can bring the pretrial by. Is this a good time?”

  “Sure, come on over. I’ll be here all morning.”

  Scott was anxious to see that it was signed by the defendant, Vijay Patel. The latest offer was for a maximum of twelve months confinement for the plea of guilty to both charges—perjury and conspiracy to commit perjury—and for testifying against Gordon. Scott had originally offered a pretrial for three years confinement, but that had been rejected. And when it became clear that twelve months was all he could expect, he relented and made the new offer. He thought the crimes deserved much more, but knew that this lower sentence was crucial to get Patel to cooperate. Limiting it to twelve months meant he could serve the sentence in the Chatham County jail, near his family—assuming he didn’t completely fall apart and have to be committed to Central State Hospital in Milledgeville. Scott had not set a deadline for accepting the plea, but to encourage acceptance, it contained a clause that the offer could be withdrawn by the prosecutor anytime before it was accepted.

  He had made a similar offer to Josh Johnson’s attorney, Doug Noah, a few weeks back, but so far he had not heard from him. Neither Patel nor Johnson had any prior convictions or arrests. Nevertheless, Scott thought the pretrial was much too generous for the offense—perjury in a robbery case—especially since it led to freeing a man who soon robbed again and in the act killed a teenage girl. But he had to have this testimony.

  Luke arrived shortly with the pretrial. Scott looked it over and was pleased to see it was approved, signed, and witnessed.

  “How’s your client holding up?” asked Scott.

  “Hanging in there. Scared. Despondent. Pretty torn up. Has made it hard for me to discuss the pretrial and explain why it’s good for him. If the only charge was perjury, I’d advise him to refuse it—take it to trial. With the two-witness rule, I don’t think you could prove it. But the conspiracy is another matter. I can’t see any way around it, with the photos and testimony of Wilborn. Plus, he led the GBI agent straight to where he had hidden the cash payment, and he admitted what the payment was for. So how could he beat it? But he could beat the perjury charge, no question. I know you think the pretrial is too lenient, and you wouldn’t have offered it except you want Gordon more than the others. Just know this, Scott. Except for this one bad act, he’s an exemplary citizen. Even good citizens sometimes have a limit and his was $250,000 cash. I can assure you, he is deeply remorseful.”

  “As he should be. Does he understand he’s partially responsible for the death of a beautiful and talented teenager—on her way to college with a scholarship and hopefully into medical school?”

  “I don’t think so, and I’m not about to remind him. He could easily come unglued. Neither of us wants that.”

  “You are so right. I need his testimony, so prop him up every way he needs it. I’m not sure how a jury will respond to his testimony, knowing he got such a favorable pretrial. I’m a bit uncomfortable waiting to have him actually enter his plea until after the Gordon trial, though I doubt it makes any difference to the jury. Colosimo will make sure they know he’s testifying with a plea agreement to save his ass from a much more severe sentence.”

  “Yes,” replied Luke. “And waiting until later to enter his plea may keep him from unraveling before he has to testify.”

  “Does he understand the judge also has to accept the plea agreement?”

  “I explained that. He said he understood. But do you think there’s a chance that the judge won’t accept it?”

  “Of course, there’s always a chance, but Judge McCabe is a former prosecutor. He’ll surely understand the necessity of a pretrial like this, even if it appears too generous. I don’t think there’s much of a chance that he won’t accept it. And if he doesn’t, we’ll have to drop the perjury case. That will leave the conspiracy case, and as you say, there’s no way around that one. Agree?”

  “Well, that’s the way I see it now,” said Luke.

  “His co-defendant, Johnson, is still confined. Hasn’t been able to make his $25,000 bail and hasn’t accepted the pretrial yet. And if he does, it requires that he enter his plea before the start of Gordon’s trial. So the jury will get the testimony from one perjurer awaiting conviction and another already convicted. Can’t build a stronger case than that, can I?” T
hey both laughed.

  “Do you plan to be in the courtroom when your client testifies against Gordon?” asked Scott.

  “Of course.”

  “Good. Should give him encouragement,” Scott said. “Colosimo will rake him over. We need to get him ready. When can we three meet for trial preparation?”

  “I’ll check and give you a call.”

  Chapter Twenty-Eight

  Wednesday, September 10

  Scott returned to his office from a midmorning court hearing to the sound of his desk phone ringing. He laid his briefcase down and answered. It was Doug Noah, the attorney from the public defender’s office who was representing Johnson. Johnson had been unable to make bail and was still confined in the Chatham County Jail to await trial.

  “I’m calling about that pretrial offer. I think we can do it, if we can get Johnson’s bail reduced a bit.”

  “How much?”

  “He can make bail at $10,000.”

  “That’s a $15,000 reduction. I’d say that’s more than ‘a bit.’ And if he has $10,000, how does he rate a public defender? For that kind of money, he could hire Jeff Brown or David Paul—or any of Savannah’s finest.”

  “Yeah, hire ‘em for maybe a week. But anyway, it’s not his money—he doesn’t have any control over it. It’s being put up by a friend from one of the casinos in Black Hawk, Colorado. That’s where he says he lost all his money.”

  There was no question in Scott’s mind that Johnson still had the $250,000. Somewhere. He had admitted to Carl DeBickero that he received it—and there were photos taken by Wilborn of the delivery. Scott could not believe someone who received that much in illegal funds would be out flaunting it at some casino. But the location of that money was not Scott’s major interest. What he wanted was Johnson’s testimony.

  “So specifically, what are you asking?”

  “That you agree to ask the judge to reduce his bail to $10,000. In return, Johnson will agree to plead to conspiracy to commit perjury and testify fully and truthfully against Max Gordon. Maximum sentence of one year confinement.”

  Scott considered it for a moment. The bail money was not his major concern; it was illusionary. The state didn’t get to keep it. It was returned after the trial and sentencing were concluded, so to Scott, reducing the bail wasn’t a problem. He wasn’t sure of getting a conviction for perjury because the two-witness rule would come into play. But he had no question he could get a conviction on the conspiracy charge, where the rule did not apply. It really made no difference; conviction for either crime would be sufficient to support the sentence proposed. But he was going to insist that he plead guilty as charged, just as he had demanded of Patel.

  “Here’s the deal I can make. Nothing less,” said Scott. “He pleads guilty to both charges, perjury and conspiracy to commit perjury. He agrees to testify truthfully at Max Gordon’s trial. I’ll agree to bail at $10,000, with ankle monitor, and travel limited to Chatham County while awaiting trial. Sentencing comes after he testifies in Gordon’s trial, but he must plead before trial. Maximum sentence of one year confinement.”

  There was a long pause on the other end before Scott heard the response. “Write it up. I think he’ll take it. He realizes with those photos, you have him slam-dunk for conspiracy, and that will get him up to five years.”

  Chapter Twenty-Nine

  Monday, October 5

  Vijay Patel was rearranging the beer and soft drinks in Fast Eddie’s, his small convenience store on Waters Avenue in Savannah. It was 10:30 p.m., and business was unusually slow even for a Monday, which was always the slowest. As he did on many nights when there were few customers, he let his cashier off early. The trial in which he would have to testify was fast approaching and constantly on his mind. And his guilty plea and sentence would soon follow. The pressure was causing constant anxiety and many sleepless nights. His family was supportive, but he was heartsick for having caused them such embarrassment. And soon he would be a convicted felon and sentenced to the county jail for a year, and the pain he had caused his family would continue. He was weary, depressed, and he could see no end to this misery that he had brought upon himself and his family.

  Two casually dressed men entered the store and walked to the beer cooler where Patel was working. One appeared to be about thirty-five years old, the other a little older, perhaps in his early forties. The younger man opened one of the glass doors of the twenty-foot-long refrigeration unit and looked in. He removed a Heineken six-pack and held it up for the older man to see. The older man nodded as if he was in agreement with the choice. Patel observed this from about ten feet.

  “I can help you with that,” Patel said. “I’ll be over at the cash register.” Then Patel walked quickly over to the service counter to wait on his two customers.

  When they reached the counter, the older man threw a twenty on the counter, and Patel rang up the order and made change. Then the man carefully made eye contact with Patel, and said, “Are you perhaps the owner of this store?”

  “Yes, I am,” Patel responded.

  “Vijay Patel?”

  “Yes.”

  “I understand you are in a bit of legal trouble. I think we can help. Would you like to know how we can help?”

  Patel was puzzled by the question and apprehensive at what was happening—two men entering his store and questioning him about his legal problems. “I have an attorney,” he responded.

  “Yes, I understand that. I believe his name is Luke Schaub. Is that correct?”

  Patel was surprised and wary of the question. “Yes, and he has instructed me not to discuss my case with anyone. And I don’t intend to.”

  “Oh, we don’t want to discuss your case. Your attorney was absolutely correct in advising you not to discuss the case. But I’m sure he hasn’t asked you to close your ears and your mind to information that may help. That’s all we’re here for. This information is free if you want to listen. We’ll not ask you any questions. That’s a promise. But I would think you would want to have this information—there is a way out of your legal problem. If you want to hear it, we will provide the information you need. If you don’t want to hear it, we’ll walk out the store right now. Your choice.”

  There was no “way out,” Patel was sure, yet here was a man promising just that, if he wanted to hear it. He would not have to discuss the case or answer any questions. He was wise enough to understand the importance of Schaub’s instructions and he would follow them. But what harm could come from just listening to what this man had to say? Like a drowning man clutching for any floating debris, he would listen.

  “Ok, I’ll hear you out. But no questions, none.”

  “Of course not, that was our promise. You are charged with perjury, a serious crime. And because it is such a serious crime, the law in Georgia requires not only that the prosecutor prove the charge beyond a reasonable doubt, but prove it by more than one witness. This is called the two-witness rule. That’s very important to your case, Mr. Patel. For example, if you were charged with murder, the testimony of one witness—a single witness—would be sufficient to prove your guilt. But for perjury, two witnesses are required. I promised you I would not ask any questions, but think about it. Ask yourself, where are the two witnesses? Mr. Patel, you are simply offering yourself on a platter to the prosecutors. They can’t prove you lied, but you are going to take the stand and tell the jury you lied. And you are going to do that because you think you are getting a good deal. Yes, a good deal.”

  The older man, who was speaking, turned to the younger man and asked, “Anderson, what is the maximum sentence for someone convicted of perjury?”

  “Ten years imprisonment, minimum of one, plus a fine.”

  “So you are indeed getting a good deal, but a good deal only if it could be proved. And you now know it can’t be proved.”

  Patel listened carefully. Could there be an
y truth to this? Could there indeed be a way out of his problem? He wanted to believe them. However, he kept cautioning himself not to be taken in by these two men whom he had never met.

  “Of course you are wondering now why we, complete strangers are telling you this. Well, Mr. Patel, there are some of us in the community who stand for justice. And you are also wondering why your attorney has never explained this to you. We can’t answer that. Perhaps he is unaware of this requirement for proof of perjury. And then again, maybe he is aware, but for some reason unknown to you, failed or refused to discuss it with you. Perhaps he is working with the prosecutor. Money moves around quickly in the criminal justice system—you experienced that yourself with that suitcase of $250,000. Or maybe it’s not the money at all, but a favor your defense counsel needed from the prosecutor on behalf of another client, perhaps a wealthier client. The criminal justice system holds many secrets. Crimes have a way of reaching out and corrupting others—those who commit them, those who investigate them, those who prosecute them, and yes, even those who defend them.”

  A customer came through the front door as they were talking, and walked up to the counter. He asked for a pack of cigarettes, which Patel quickly produced. The customer paid and quickly left. And just as quickly, Patel took the same position across the counter to listen again to these two strangers. He had serious doubts that anything they were saying or suggesting had any truth, but he would listen.

  “So, Mr. Patel, we have a solution for your problem and it is a simple, three-part plan. First, and most important, do not become a sacrificial lamb. Even though you have accepted a pretrial agreement, you are not required to testify at that trial and incriminate yourself. You have an absolute right against self-incrimination. I’m sure you know that. They cannot prove your perjury. You do not need to take our word for that, and this is the second part. I’m sure you have Internet access. Look up the ‘two-witness rule.’ Read it for yourself.”