The Two-Witness Rule: A Novel

by William Eleazer

  “You got there first, had them seat you in a nice quiet corner, ordered a drink and there you waited for Mr. Gordon, correct?”

  Wilborn paused for a long moment before responding. “Yes.”

  “He found you and ordered a drink also, and the two of you ordered dinner, right?”

  “Of course. That’s what we were there for.”

  “That’s what Mr. Gordon was there for. But you had something else in mind, didn’t you?”

  Wilborn frowned but did not immediately answer.

  “It was during that dinner at Gallucci’s restaurant that you suggested to Mr. Gordon that the best way to defend the case was to buy off the two witnesses, isn’t that correct, Mr. Wilborn?”

  So this is where he was heading, thought Scott. Setting up a time and place—a quiet corner of a nice Italian restaurant to bring a touch of drama to this bizarre defense. Quite clever. Colosimo surely knows that this accusation will be denied by the witness. But what is important is that the seed for the defense has been presented in a realistic way to the jury. The jury wants time, place, and circumstances for all evidence. They have it now.

  “That’s not true,” replied Wilborn.

  “Mr. Gordon refused to discuss this plan of yours, didn’t he, Mr. Wilborn?”

  “There was nothing to discuss.”

  “So you decided you would carry it out yourself, isn’t that true?”

  “No, that’s not true.”

  “And you paid a personal visit to Mr. Harrison, explained your plan, and he provided the funds. And you carried out this crime alone, without the consent or knowledge of Mr. Gordon. Isn’t this also true, Mr. Wilborn?”

  Several evidentiary objections came to mind, but Scott decided it best to let Colosimo proceed with this absurd defense. No juror would believe such fantasy. Colosimo would dig a hole and bury both himself and his client.

  When Colosimo ended his cross-examination, Scott had just a few questions on redirect examination.

  “Did you fully explain to the GBI agent, Carl DeBickero, your involvement in these crimes before he prepared the document that you signed?” Scott had noted that Colosimo had refused to refer to Carl by name, always calling him “that GBI agent.” Scott would be sure to refer to him by his name. He followed that question with, “Was there anything in the statement Carl DeBickero prepared that you had not already described as being true?”

  “No.”

  “The defense counsel asked you a number of questions suggesting that you recommended this crime to the defendant at a restaurant in Chicago, that he refused, and you then executed it yourself without his knowledge. How much of that was true?”

  “None, except we did have dinner together at a Chicago restaurant the first time I met with the defendant, but the payoff scheme was not discussed. That was not discussed until the following week, during our second meeting. By then it was all planned out by the defendant. I’m not saying I didn’t agree. I did. But it was a mutual agreement. My main contribution was the delivery of the cash. I certainly did not contact Mr. Harrison myself. That would have been foolish. I never even met the man.”

  Scott had no additional questions and Wilborn was excused as a witness. It was now 5:15 p.m. and Judge McCabe recessed the court until 9:00 a.m. the following morning. Scott looked back at the gallery. It had been filled to capacity, but the crowd was hastily departing. He saw the man he had seen earlier—the man he recognized as a member of Colosimo’s staff. He was approaching the defense table, along with another man who Scott thought he also recognized from Colosimo’s web page. He wasn’t sure, but it looked like the other disbarred attorney who Colosimo proudly claimed as a “staff member.” The two “staff members” and Colosimo, along with the defendant, were soon joined in what appeared to be a serious discussion. Scott watched while gathering his notes, then closed his briefcase and left the courtroom. He was anxious to return to his office and check if Johnson had been located.

  He received the news from Richard Evans. No sight or sound of Johnson. He immediately called Luke Schaub.

  “Johnson’s still missing, so I’ll be calling Patel as the first witness in the morning. I’d like to have a brief chat with him first. Please have him there no later than eight-thirty.”

  “Sure, we’ll be there.”

  Chapter Thirty-Four

  Wednesday, November 19

  Scott drove to the Chatham County Courthouse in a heavy early morning rain, still hoping for news of Johnson’s arrest. If so, Patel would still be his first witness, and Fasi could prepare Johnson for his testimony, which would be next.

  Anxious to start preparing Patel for his testimony, Scott hurried to the witness waiting room. It was 8:30 a.m., the time agreed upon, but no one was there. Perhaps, he thought, Luke and Patel are waiting in the courtroom. But as he entered the courtroom, he saw that it was almost vacant—just a bailiff and a couple of early risers who wanted to make sure they had a seat. He sat in a chair at his table and waited. Scott did not expect Fasi until shortly before 9:00 a.m.

  Soon, Luke Schaub entered the courtroom—alone. His expression was grim, and he was slowly shaking his head as he approached. He sank hard into one of the upholstered chairs next to Scott, who knew immediately, this is not good.

  “I stopped by Patel’s store, but he wasn’t there. I was to pick him up at eight, grab a cup of coffee, and come on over. His cashier said she hadn’t seen him; he hadn’t been in. I waited a while, then decided he must have come straight over here. Nope. Not in the witness room, and no one seems to have seen him. Makes no sense; he wanted to get this over.”

  “Yes, and I cut him a good deal and let him out on bail,” Scott said, before biting his lip and staring off in space. He was silent, deep in thought, then said quietly to no one in particular, “I know, no good deed . . .” He struck the table hard with his fist and turned to Luke. “You don’t suppose those two depraved bastards bought off these two witnesses again. First to lie and now to disappear? What’s the saying, ‘Fool me once, shame on you; but fool me twice . . . ’? Well, it’s on me now. I’ll have to take the fall for this one. They had already proven they could be bought. I should have kept them both locked up. Yes, I screwed up royally.”

  “I don’t believe Patel was bought, Scott. I gave him strict instructions to speak with no one about this case and to call me immediately if anyone attempted to speak with him about it. I think he understood. He knew he was facing a long prison sentence in the state pen, and he knew you gave him a good deal. I’m at a loss to understand why he’s missing, but I don’t believe he was bought, as you call it, again. I’m going back to my office. Have someone call me if he shows, and I’ll call you if I locate him.” Luke got up from his chair and left the courtroom.

  At that time, Scott saw Fasi coming through the entrance, along with Bob McSweeney. Maybe they would have good news.

  They didn’t. “Still no sign of Johnson,” McSweeney said. “I just spoke with Richard. He’s been in contact with every county and state agency that may have any information, and there is none.”

  “Well, I have no more witnesses now.” Scott folded his arms across his chest and took a deep breath. He was visibly upset and frustrated. And he felt a deep personal failure. “Any suggestions, Joe?”

  “Scott, sometimes these things happen, no matter how much time and effort you put into the planning,” Joe replied. “It’s not a great defeat. You still have the witness influencing charges. That will be enough to send him to prison. And I know one of your primary concerns is also to get him disbarred, and a conviction on either of the remaining charges will surely do that. Of course, you’ll get a motion for a judgment of acquittal on the subornation charges, so just accept it and get ready for whatever the defense tries to throw at the jury. You are going to win this case.”

  Judge McCabe entered, soon followed by the jury. Scott dreaded to hear th
e words he knew the judge would be saying next.

  “Call your next witness.”

  Scott stood. “Your Honor, the State rests.”

  This announcement came as a big surprise to the newsmen and spectators in the gallery, prompting a mild but disruptive frenzy. The disturbance was quickly quelled by three sharp raps of Judge McCabe’s gavel. He instructed the bailiff to take the jury out—not because of the commotion in the gallery but because he knew that the defense would now be making a motion.

  As soon as the jury was removed, Colosimo stood. “The defense moves for a directed verdict of acquittal on all charges.”

  Scott had expected such a motion on the subornation of perjury charges. Not only had he failed to prove perjury with two witnesses, he had produced no witnesses. But he was momentary stunned by the motion directed at all charges. The witness influencing charges did not require two witnesses. He was sure the unrebutted testimony of Wilborn concerning the payments to the two witnesses to lie was sufficient under the law. Nevertheless, the motion alarmed him.

  Colosimo began his argument on the motion by noting the absence of any witnesses to perjury. Then he lashed out at the credibility of Wilborn, arguing that “no reasonable juror could believe him” and thus none of the charges were proved.

  Scott rose to respond. “Your Honor, we do not contest the defense motion as it relates to the charges of subornation of perjury. Our witnesses have disappeared. But we have presented sufficient evidence on each and every element of the charges of influencing the two witnesses. Whether Clarence Wilborn is believable is for the jury to determine.”

  Judge McCabe quickly ruled. “The motion with regard to both charges alleging subornation of perjury is granted. The motion as it relates to charges of influencing a witness is denied. Bailiff, please bring in the jury. We will begin with the defense case.”

  Chapter Thirty-Five

  Wednesday, November 19

  When the jury was back in the courtroom and seated, Judge McCabe looked toward the defense table. “Mr. Colosimo, you waived your opening. Do you wish to make an opening statement now?”

  “No, I’m sure this jury understands what this case is about. I’ll call my first, and my only witness, Mr. Maxwell Gordon,” Colosimo responded, emphasizing only.

  Scott was surprised that Colosimo did not take the opportunity to address the jury with an opening statement as invited by the judge. But he also realized that Colosimo was probably right—the jury did indeed know what the case was about. There was no surprise that Gordon would be the only witness, because the defense had not provided a witness list, a requirement if they planned to call any witnesses other than the defendant. Emphasizing that the only defense witness would be Gordon seemed to be something Colosimo was proud of—sort of “that’s all we need.” Both Scott and Fasi thought this to be a strange strategy. They knew Gordon could not produce a truthful witness to support his claim that Wilborn, and only Wilborn, was responsible for the crimes, but that should present no hindrance to Gordon—lying witnesses was his specialty.

  They had expected a long list of such witnesses, as well as a list of witnesses they had no intention of calling, a common defense ruse used to send prosecutors off on a futile hunt for evidence, wasting precious trial preparation time. They had also anticipated a list of supposedly distinguished citizens who would testify to his “sterling character.” But the defense sent no list of any kind. Apparently the defense was convinced that its simple strategy of pitting Gordon’s sworn testimony against the testimony of a fully discredited Clarence Wilborn would be more compelling.

  Colosimo began by asking a number of personal questions, establishing that Gordon was an attorney, a member of three different state bar associations, admitted to practice before the United States Supreme Court and numerous other federal courts. He earned a “national reputation for success”—his description—and was “eminently known for taking on tough cases and unpopular causes, and winning”—also his description. Scott could have objected to this inadmissible bolstering, but he thought it best to let the pompous clown bore the jury with such self-aggrandizement.

  Then the questioning moved to the circumstances surrounding the charges in this case. Gordon testified that he had been asked by Senator Harrison, “a longtime and special friend”—again his words—to defend his son, who was facing a serious charge—robbery. He was convicted, but the verdict was reversed on appeal. Again he was asked by Senator Harrison to defend his son and again he accepted. This time his son was acquitted.

  “What did that acquittal have to do with the charges in this case?” Colosimo asked.

  “Everything,” answered Gordon. “The trial was covered by TV and news media throughout Georgia. There was also national media present. The Chatham County District Attorney was extremely embarrassed that he charged the son of one of Georgia’s most revered politicians and lost. The DA’s future campaign for governor was severely hurt.”

  Scott and Fasi sent puzzled looks to each other. Josh Magidson had never even hinted at running for governor or any other state office. The jury was composed of Savannah citizens, and they would have heard nothing, not even a rumor, of such aspirations on the part of the district attorney. Surely the jury would see this for what it was, pure nonsense, Scott thought. Fasi’s face showed a slight smile.

  “And how did that impact this case, Mr. Gordon?” Colosimo asked.

  “The DA was angry and sought revenge.”

  Scott was up immediately. “Objection, Your Honor! That is pure speculation. I move to strike it.”

  “Yes, the objection is sustained. The jury must disregard the witness’s last answer.”

  Scott got what he wanted, but he knew that Colosimo also got what he wanted. He had suggested a motive for the charges against his client.

  “Well, let me put it this way, Mr. Gordon—what action did the district attorney take?”

  “He brought these charges against me, so that now I’m in a courtroom, but not as a defense counsel, where I have served successfully and honorably for thirty years. I am here as a defendant facing false charges.”

  “Tell the jury the real facts about these charges, as you know them.”

  “If the witnesses lied, I know nothing about it. If the witnesses were paid to lie, as the prosecution claims, I know nothing of it. Clarence Wilborn says he delivered $250,000 to each witness. That may be true, but I have no knowledge of it except his testimony. There has been no other evidence connecting me to this offense except his statement to the GBI agent and his testimony in court yesterday. The investigation of the charges against me revealed nothing except what was contained in Clarence Wilborn’s lies. It was convenient for this investigation to focus on me. That’s what the district attorney wanted. And that’s what Mr. Marino wanted—they wanted the GBI to serve me up on a platter, and that’s what happened.”

  Scott considered objecting. It was pure speculation for the witness to testify what the district attorney “wanted,” or what Scott “wanted.” That may be an argument for Colosimo to try to work into his closing argument, but this witness had no personal knowledge of it. Scott had a valid objection, but he decided not to object. Right or wrong, he felt such an objection put him in a defensive mode. He, as well as Colosimo, could address this in the closing, and Scott felt he would prevail.

  For the next fifteen minutes, the defendant answered Colosimo’s questions with essentially the same answers: the money for the payoff was obtained by Wilborn without Gordon’s knowledge; it was delivered to the witnesses without his knowledge; and he had no knowledge of the payoff or the perjured testimony until he was arrested.

  When Colosimo completed his direct exam, Judge McCabe ordered a twenty minute recess. Scott was pleased to have this time to consider his options. One was to merely say, “No questions.” The jury could see the lameness of the defense case. There was no real issue of whether t
he witnesses received the payoff as claimed by Wilborn. He had photos of both Patel and Johnson admiring their cash. And DeBickero had confiscated Patel’s suitcase still filled with all the cash he had received. No, there was no question that the witnesses had received the cash and for no other plausible reason except to lie at the trial. So why would Wilborn do this except for that purpose? And no one could believe that Wilborn would take it upon himself to make the payoff without directions from Gordon. After all, his main role in the case was to provide the needed Georgia Bar member sponsorship for Gordon.

  Yes, Scott could merely say, “No questions,” but he believed every juror would expect some cross-examination after a defendant took the witness stand and denied involvement, even if the denial was utterly incredible. So Scott began with a few questions about a link between Wilborn and Senator Harrison. No, Wilborn had never gone with him to the Senator’s office. No, he had never introduced the two. No, he could not provide any evidence that linked Wilborn to Senator Harrison in any way.

  Then Scott moved on to questions of Gordon’s relationship to Wilborn—when and how they first met.

  “I am not a member of the Georgia Bar, so I needed someone with a Georgia Bar license to sponsor me for the trial. I called an attorney friend in Atlanta and he recommended Clarence Wilborn,” Gordon testified.

  “Your friend didn’t volunteer to sponsor you?” Scott asked.

  “No, he was too busy with his own practice,” Gordon responded.

  “What were the special traits of Clarence Wilborn that prompted that recommendation?”

  “I don’t know. I trusted my friend. I’ve known him for years.”

  “You didn’t have to tell him. He knew the type of attorney you wanted, didn’t he?”

  “I don’t understand your question,” Gordon responded.

  “You were in this courtroom when Clarence Wilborn testified. He testified he had been suspended from practice for a year for misconduct, commingling funds. And he was into drugs— buying and selling. A major drug cartel. That’s a man you can do business with—the man you wanted on your team, right?”