“Yes.”
“In fact, last month Mr. Harrison succumbed to that stroke, correct?”
“That is correct.”
“So none of the information you have provided concerning the source of these funds came from Mr. Harrison, did it?”
“No, it did not,” Carl responded.
“I listened carefully for testimony linking these payoff funds to Mr. Gordon. What I heard was that any link to Mr. Gordon was provided entirely by what Clarence Wilborn told you. Did I miss something, Mr. DeBickero?”
Carl paused for a long while before responding. “No, that’s correct. It was Wilborn who provided the information.”
“And I listened for the name of the individual who Mr. Gordon allegedly hired—the man who allegedly contacted the witnesses to fix the payments for their alleged perjury. I did not hear a name. Did I miss that also, Mr. DeBickero?”
Carl paused and tightened his lips before responding. “No, we were not able to learn his name. Wilborn never learned his name. He said—”
Colosimo quickly cut him off. “Just answer my question. You do not know the name of this so-called ‘agent’ of Mr. Gordon, do you?”
“No, sir.”
“You have been the assigned senior GBI agent for this investigation since it began over a year ago, correct?”
“Yes.”
“And finding that agent of Mr. Gordon has been an important task, correct?”
“Yes.”
“You had others in the Georgia Bureau of Investigation to assist you?”
“That is true.”
“And you and others have spent many days and hours trying to identify this person?”
“Yes.”
“How much of that time was spent trying to determine if it was indeed Mr. Gordon who hired that man, or if perhaps it was Mr. Wilborn who hired this fixer?”
“Our time has been spent trying to find the person, regardless of who hired him.”
“Would it have made any difference to your investigation if you found that it was Clarence Wilborn who hired him and not Mr. Gordon?”
“Not really. Wilborn worked under the direction of Mr. Gordon. Mr. Wilborn was hired because Mr. Gordon was not a member of the Georgia Bar. Wilborn was his sponsor for this trial. And of course, Wilborn has also been charged. He is jointly responsible for these crimes along with the defendant.”
“During your investigation did you consider that Mr. Wilborn may have undertaken these crimes himself, without the direction or concurrence of Mr. Gordon?”
“As I said, Wilborn worked under the direction of Gordon. Gordon was the lead attorney in charge of the defense of John Harrison.”
“That was not the question. I’m sure the jury would appreciate you answering the question. Shall I repeat it?”
“No, I recall the question. We conducted a thorough investigation and saw no reason to take the focus off the prime suspect, Max Gordon.”
“You apparently aren’t going to answer the question, so let me answer it for you. You have been conducting this investigation for over a year, and not once, not once, have you ever considered that the alleged perjured testimony resulted from a scheme by Clarence Wilborn alone, without the concurrence or even knowledge of Mr. Gordon.” Colosimo turned, walked over to the lectern and picked up the papers he had left there, then added, “I have no further questions of this so-called witness.”
Scott rose from his chair. “Your Honor, I object to that spurious comment by Mr. Colosimo. Such comments are uncalled for.”
“This appears to be an appropriate time for our morning break,” Judge McCabe said. “Bailiff, please escort the jury out. Counsel, please remain.”
When the jury had departed and counsel once more were seated, Judge McCabe sat forward in his chair and looked sternly at Colosimo. “Let me be perfectly clear, Mr. Colosimo. Such insulting remarks to witnesses will not go unnoticed by the court or the jury. It will not help you with the jury, and it will not be tolerated by the court. This is not a ball game where you get three strikes. In this court, you get one strike. Two, and you’ll be held in contempt, or worse. This time I will just consider it an isolated lapse, but I suggest you don’t test me. Have I made myself clear?”
Colosimo stood, looking down and refusing to make eye contact with the judge. “You have made yourself quite clear,” he replied. “And I apologize for the remark. It will not happen again.”
“We will be in recess until eleven,” the judge responded. “Redirect examination may be conducted then.”
Scott and Fasi remained in the courtroom to discuss the significance of Colosimo’s cross-examination. He had not made an opening statement that might have alerted them to Gordon’s defense, so this was the first hint of what the defense would be: It was quite simple. Clarence Wilborn alone planned and executed the scheme, all without the assistance or knowledge of Gordon. But it did not come as an actual surprise. They had considered all likely defenses, and some highly unlikely—such as entrapment—but with the evidence available to the prosecution, none seemed to have any reasonable chance of success, including the one suggested by Colosimo’s recent cross-examination. There was no evidence that Wilborn was responsible, and they could conceive of no motive for such independent action on his part. David Harrison had hired Gordon to defend his son, and Wilborn entered the defense merely because Gordon was not a member of the Georgia Bar and thus needed a sponsor. Wilborn would have had to secretly obtain the funds needed for the payoff from David Harrison, and there was no evidence that the two had even met. Scott could conceive of no way the defense could pull it off. But he also saw two experienced criminal defense attorneys seated at the other table, both with sharp and cunning minds. Anything was possible.
When the jury was back in and Scott had his opportunity for redirect examination, he had a single question for DeBickero.
“During this lengthy investigation of the charges against the defendant, did you find any evidence—any evidence at all—to suggest that these crimes were the independent action of Clarence Wilborn, acting without the concurrence or knowledge of the defendant?”
“I did not,” Carl responded.
There was no recross-examination and Scott called his next witness, Clarence Wilborn. The initial questions pertained to his bio—residence, education and law practice. Scott also asked if he had ever been disciplined by the Georgia Bar, which he admitted, explaining his law license was suspended for a year for commingling client funds. Scott had a special reason for this question, and he expected it to come up again later in the trial. After the biographical questions, the questioning turned to when and how Wilborn was brought into the case, his duties, assignments, and salary. He testified that he made at least five trips to Chicago to meet with Gordon, where they discussed all the possible defenses, both the legal ones and the illegal one that they finally agreed upon—to pay the two witnesses to lie at the trial. He told of his own involvement in an illegal drug cartel that was headquartered in Atlanta and of his introduction of Gordon to some of the higher operatives. These cartel agents were experts at moving their drug money through multiple bank accounts, including some off-shore accounts, so that the money was washed clean. A reverse laundering would occur with Senator David Harrison’s checks, which would start out clean and end up dirty. But the process was similar. He testified that after he introduced Gordon to the cartel agents, Gordon handled all the details. Gordon hired the man who negotiated the $250,000 deals with the two witnesses. He never met the man nor learned of his identity. When the arrangements were complete, he went to the cartel headquarters in Atlanta, picked up the cash in two suitcases and drove to Colorado and Savannah to deliver them. Wilborn authenticated the photos he took of both Patel and Johnson with smiles on their faces as they ogled the money. These were photos taken at the direction of Gordon to ensure that the recipients of the cash were lock
ed into the scheme. Finally he told of his arrest on drug charges and his offer to assist in this case in exchange for a more favorable sentence.
Wilborn’s direct examination was completed at 3:10 p.m., after being interrupted by the lunch break. There were only a couple of objections by Colosimo to his testimony, which surprised Scott. He had anticipated Colosimo being a fully irascible and confrontational trial attorney. Scott had occasionally looked over at the defense table to observe Gordon. Gordon sat quietly, with a somber, disinterested look on his face. Scott wondered if this was the calm before the storm. Judge McCabe called a court recess until 3:30 p.m., when the cross-examination would begin.
During the recess, Scott sent McSweeney to check if there was anything new in the hunt for Josh Johnson. There was not. So far there had been no sightings or tips, and Scott was beginning to lose hope that Johnson would be located in time to testify. McSweeney also reported that Patel was still in one of the small witness waiting rooms. He appeared quite nervous, as would be expected, but Luke Schaub, his attorney, was checking in with him frequently. Unless Johnson was located, Patel would be his only witness on the subornation of perjury indictment. However, conviction on either one of those two charges, along with the two charges of influencing witnesses, would ensure that Gordon was put away for many years and would lose his law license. To Scott, making sure he lost his law license and thus his ability to continue to spread his corruption within the criminal justice system was even more important than any prison time he might serve.
Colosimo began his cross examination by testing Wilborn on many minor details, hoping to show inconsistencies and discrepancies in his testimony. This was expected and was generally ineffective, as Scott had schooled Wilborn during many witness preparation sessions over the past few weeks on what to expect. He held up well, providing very little that would benefit the defense. But Scott knew it would be different when Colosimo zeroed in on his pretrial agreements for the charges in this case and his drug charges in Atlanta.
“So you were a part of a major drug cartel working out of Atlanta?”
“Yes.”
“Your cartel covered quite a bit of territory—north Georgia and parts of Alabama, Tennessee and South Carolina?”
“Yes, sir.”
“Selling marijuana, cocaine, and any drug you could get your hands on to make a profit, right?”
“Yes.”
“And you got caught?”
“Yes.”
“By the feds?”
“Yes, sir.”
“They caught you with 300 grams, cocaine mixture, and charged you with trafficking, correct?”
“Yes, that’s right.”
“And the case was solid, wasn’t it? They had you cold, isn’t that correct?”
“I believe so.”
“Now you’ve told the jury you are an attorney. You are, or were, a criminal defense attorney?”
“That’s right.”
“Defended clients facing drug charges?”
“Yes.”
“Sort of a specialty of your practice—drug offenses, right?”
“I suppose you could say that.”
“Well, I think you were saying that on your law firm’s website. You had a federal drug trafficking penalty chart right on your website, didn’t you?”
“Yes.”
“In fact, that was your major practice, defending drug offenses?”
“I defended quite a few, not sure I would call it my major practice.”
“Well, I guess not. Apparently your major practice was dealing in drugs. That’s how you made most of your money, wasn’t it? Drug dealing?”
Wilborn did not answer. He looked down at the floor in front of him and then to Scott. But Scott could not help him. The only objection that he could think of was relevancy, and to make that objection would only underscore the fact that he was a drug dealer, which the jury already knew.
“So when the feds arrested you, you knew you were in big trouble. Really big trouble, right?”
“Yes.”
“I want you to turn to the jury, Mr. Wilborn, and tell them just how big that trouble was. Tell the jury just what was the maximum penalty you were facing, caught trafficking with that 300 grams of cocaine.”
“Sentence of ten years.”
“Sentence of ten years? Now Mr. Wilborn. That’s a deceptive statement, isn’t it? You know that ten years is the minimum sentence for that amount of cocaine. What’s the maximum sentence you were facing?”
“I think it’s life.”
“You don’t think it, you know it, don’t you, Mr. Wilborn?”
“I suppose so.”
“Suppose so? You know so. In fact, you had ‘life’ written in bold letters on that drug trafficking penalty chart right on your website. Isn’t that true?”
Scott realized that all his coaching and preparation was for naught. Why would an experienced attorney respond this way? One weasel response leads to another, and all the time the jury is sizing up the credibility of Scott’s chief witness.
“Ok . . . Ok. It’s life. Max sentence is life.”
“So facing a possible sentence of life in prison, you cut a deal, right?”
“I was approached with a deal.”
“Approached with a deal. OK. That was from that GBI agent, right?”
“Yes.”
“And it was quite a deal, wasn’t it? Got the feds to turn the case over to the state for prosecution. Instead of facing a minimum of ten years confinement and a maximum of life imprisonment, you got a deal for a maximum of ten. Quite a deal wasn’t it, Mr. Wilborn?”
Wilborn did not respond.
“All you had to do was testify against Mr. Gordon, right?”
“Testify truthfully,” added Wilborn.
“I’m glad you mentioned that, Mr. Wilborn. Your so-called truthful testimony had to correspond with what the prosecutor is expecting from you now, correct?”
“I don’t know what the prosecutor is expecting.”
“Oh, you don’t?” Colosimo walked to the defense table, picked up a document, and looked at Judge McCabe. “May I approach the witness?” he said.
Scott noted again that Colosimo never used the term, “Your Honor,” which most attorneys used frequently as a term of respect when addressing a trial judge. He also noted that his star witness’s credibility was about to take another beating, assuming he had any credibility left.
After the judge granted the request, Colosimo approached the witness with the document he had retrieved from the table. “In fact Mr. Wilborn,” he continued, “I believe I have your statement right here.” He briefly showed the document to Wilborn. “Is this your statement?”
Another weak response of “yes.”
“At the bottom of this three-page, typed statement, it reads, ‘The above is a true statement, and if my pretrial agreement is approved, I agree to testify truthfully in substance as written above. Signed, Clarence Wilborn.’” Colosimo handed the statement to Wilborn.
“Did I read that correctly, Mr. Wilborn?”
Wilborn did not respond and looked over at Scott. They made eye contact, and Wilborn must have seen the exasperation—or perhaps anger—in Scott’s eyes. He responded immediately with an almost inaudible “yes.”
“You didn’t prepare this document, did you, Mr. Wilborn?”
“No.”
“In fact, it was prepared by that GBI agent who bailed you out of the awful predicament you were in, correct?”
“Yes.”
“This was your ticket out of a possible sentence to life imprisonment in a federal penitentiary, right?”
Wilborn stared at Colosimo but did not respond.
“Yes, your ticket out. Drafted by the GBI, typed by the GBI and thrust in front of you to sign, right?”
Wilborn still did not respond.
“The jury is waiting for a response, Mr. Wilborn. It was your ticket out. Drafted by the GBI, typed by the GBI and thrust in front of you with a pen to sign, right?”
Another pause, then a barely audible, “yes.”
And so the attack on his credibility went for another ten to fifteen minutes. And then the questions began that would introduce the jury to the essence of Gordon’s defense.
“And at no time did you tell the GBI agent of what really happened, did you Mr. Wilborn?”
Wilborn looked confused. There was a long pause before he answered. Finally, “I don’t understand your question.”
“Oh, I think you do, Mr. Wilborn. But we’ll get back to that. Wasn’t it last August that you were asked by Mr. Gordon to assist with the Harrison case?”
“Yes.”
“He needed you, or someone with a Georgia Bar license, to sponsor him?”
“That’s correct.”
“And you accepted it because the pay was going to be quite substantial, correct?”
“Well, I accepted it.”
“You knew the defendant was the son of one of the richest men in Georgia, didn’t you?”
“According to Mr. Gordon, yes.”
“And you knew he would provide whatever amount of money was necessary to defend his son?”
“I don’t know. But that’s what Mr. Gordon said, yes.”
“Now tell me if this is what you recall. Listen carefully. After you agreed to enter the case and accept the assignment as sponsor for Mr. Gordon, you flew to Chicago, met with him in his office in midafternoon to discuss the case. And he explained all the evidence the prosecution would be presenting at trial. Is that what you recall?”
“Yes, I recall that.”
“You would be staying overnight in Chicago, so he invited you to join him for dinner, right?”
“Yes.”
“Seven o’clock, at Gallucci’s, a short walk from your hotel. Is that how you recall it?”
“I think so.”
Scott wondered where Colosimo was going with this line of questions. Again he thought of objecting on relevancy grounds but decided to wait for the time being.
The Two-Witness Rule: A Novel Page 17
