“I had no knowledge of that, none at all,” Gordon replied.
“You are telling this jury that you hired an attorney without vetting him at all? You know you could have checked him out, don’t you?”
“You expect me to be clairvoyant? I’m to know that an attorney is going to commit a crime?”
“No, not that an attorney is going to commit a crime but to check if he has already committed a crime. He testified yesterday that he had his license suspended for a year for misconduct. You could have checked that, right?”
“I checked to see if he had a Georgia Bar license. The only thing I needed was his license.”
“Of course. Where did you check?”
“The Georgia Bar website. It lists all the Georgia Bar members. He was listed.”
“And it also states whether the member has ever been disciplined, right?”
Gordon did not respond so Scott continued.
“Right there on the website below the name, in bold red letters, it states whether the member has, or does not have, any public disciplinary history, doesn’t it?”
Gordon twisted in his seat but again did not respond immediately, so Scott pressed on.
“When you saw that entry in red for Clarence Wilborn, it confirmed what your friend had already told you, didn’t it? That Clarence Wilborn was just the corrupt-type associate you wanted. Just the man you needed for the job, right?”
“Absolutely not! And I certainly had no idea he would come to this courtroom with his lies, just as I had no idea those two witnesses would lie.”
“I’m glad you mentioned that, Mr. Gordon, that you had no idea those two witnesses would lie. In fact, you knew in advance they would lie, didn’t you?”
“I’ve answered that. The answer is ‘no.’ And it will be ‘no’ the next time you ask that question.”
“Do you recall that moment in the trial when the witness, Johnson, said he couldn’t identify the defendant as the robber?”
“I do, of course.”
“You saw the astonishment on the face of Mr. Cox, the prosecutor, didn’t you?” Scott asked.
“Yes, but I would call it pure shock.”
“Because it was so unexpected?”
“Because it obliterated his case. He certainly didn’t expect it,” Gordon replied.
“But it was the answer you expected, wasn’t it?” Scott asked.
“I don’t know what I expected. The witness was called by the prosecution. He was their witness. He couldn’t identify the defendant. But it was a true answer—the answer that led to the acquittal,” Gordon responded.
“It was what one could call the defining moment of the trial, wouldn’t you say?” Scott asked.
“Turned out that way.”
“Do you recall how you conducted your cross-examination?”
“My cross? A cross wasn’t necessary. The witness failed to identify the defendant.”
“And that’s exactly my point, Mr. Gordon. You did in fact conduct a cross-exam, didn’t you?”
“A very limited one,” Gordon responded.
“And you began by having the defendant, your client, stand and face the witness, Josh Johnson, didn’t you?”
“I believe I recall that.”
Scott picked up a thick document from his table. It was marked, authenticated, and accepted into evidence as an exhibit.
“I have a transcript of that trial, Mr. Gordon. I’m going to read from it and ask if that’s the cross-examination you conducted. The questions are yours, the answers by the witness, Josh Johnson.
“Question: ‘Mr. Johnson, the man you saw with the pistol, did you have a profile view of him as you were looking through that window?’
“Answer: ‘Yes sir, I did.’
“Question: ‘A left profile or right profile?’
“Answer: ‘It was his left.’
“Question: (to defendant) ‘Mr. Harrison, turn so Mr. Johnson can see your left profile.’ (Defendant turned as directed). ‘Is this the man you saw that night with the pistol?’
“Answer: ‘No, sir, it is not.’”
Scott took a couple of steps closer to the witness. “Did I read that correctly, Mr. Gordon. Or would you like to see the transcript?”
“I don’t need to see the transcript. That’s about how it went.”
“Now, Mr. Gordon, tell us—what experienced criminal defense attorney would have his client stand for another identification—this time a profile view—by a witness who had already, as you just said, obliterated the prosecution’s case? What experienced criminal defense counsel would take such an unnecessary chance for the witness, who might finally say, ‘Yes, that’s the man’?”
“Well, it worked out fine.”
“Yes, it worked out fine because you knew he would not make the identification. You bet $250,000 on it, didn’t you?”
Gordon was again slow in answering, but Scott did not wait for an answer. “I have no further questions of this witness, Your Honor,” Scott said, as he turned and walked to join Fasi at the prosecution table.
There was no redirect examination by Colosimo. Judge McCabe asked if the defense had any additional evidence.
“The defense rests,” Colosimo replied.
“Does the prosecution have a case in rebuttal?” the judge asked.
“May we have a short recess, Your Honor—ten minutes?” Scott asked. He wanted to see if either of his missing witnesses had been located. He hoped he would be able to call at least one as a rebuttal witness. Judge McCabe granted the request, and Scott sent Bob McSweeney to check with Richard Evans on the progress in locating the witnesses.
McSweeney returned with the answer Scott expected—both were still missing. So, all the evidence was now in. His closing would be quite different than the one he had planned a couple of weeks ago, but he was confident he could convince the jury of the two charges of influencing witnesses, the only charges still before the jury. When the court reconvened, Scott announced he had no witnesses in rebuttal.
Judge McCabe looked at the clock on the courtroom wall. “We’ll take an early lunch break now and reconvene at one-thirty. I want counsel to remain in the courtroom.”
When the jury had departed, Colosimo renewed his motion for a directed verdict of acquittal to the remaining charges, which was quickly denied. Then the usual quibbling over jury instructions began. Despite the fact that the elements constituting the crime of influencing witnesses were clearly laid out in Section 16-10-93 of the Georgia Code, the spat did not end until almost 12:30 p.m. Scott had an hour to review what he would be saying in his closing argument. He had never tried a case that would end with a mea culpa—witnesses promised but not produced. He and Fasi discussed the best approach to the problem. They both concluded there was no easy way out. The only way to approach the dilemma was to admit the error and be sincere and appear to be sincere. This was made more difficult by the fact that Scott could not explain the reasons for their absence, even if he knew—which he didn’t. The exhilaration he usually felt in preparing and making a closing argument was missing. This was going to be painful.
Chapter Thirty-Six
Wednesday, November 19
“Members of the jury,” Scott began. “At the beginning of this trial, I stood before you—in this very same spot—and told you of two men who would testify that they had been paid to testify falsely at a criminal trial in September of last year. But, as the judge instructed you, the opening statement is not evidence. It’s merely what we expect to present as evidence. And now you see the value of that instruction, because I was unable to bring those two men to this trial. As a consequence, Judge McCabe has dismissed the two charges that pertained to the expected testimony of these two witnesses. Why I was unable to present these witnesses is not something for you to consider in your deliberations. It simply is not an
issue. It is not evidence, and those two charges are no longer before you.”
Scott could feel a pain in the pit of his stomach. This was an opening no prosecutor should ever have to present to a jury. But he must, and he continued.
“What is before you now—what you must decide when you go back to the jury room to deliberate—is whether the defendant is guilty of the crime of influencing witnesses. And you must determine it from the facts that have been proved in this court.
“It is not my purpose to instruct you on the law of this case. That comes—must come—from Judge McCabe. But here are the questions you must answer in arriving at your verdict:
“Did a person give Vijay Patel or Josh Johnson some benefit, reward, or consideration?
“Was this benefit, reward, or consideration given with the intent to deter them from testifying truthfully in court?
“Was the person who did this the defendant in this case, Maxwell T. Gordon?” He turned and pointed directly at the defendant. “That man,” he said.
“Members of the jury, you know the answer to each of these questions.” He paused briefly before continuing. “But do you know the most appalling thing about all this?”
Scott stopped for a longer pause, turning his head slowly and making eye contact with each juror before answering his own question.
“It worked! John Harrison walked out of this courtroom a free man, thanks to those lies purchased with cash from the defendant.” Scott expected an objection to this last comment. Because of the no-show of Patel and Johnson, he had presented no actual evidence that the false testimony ever occurred. But he believed it to be a fair argument considering the payment had been for that very purpose. In any case, Colosimo did not object.
He then went on to review the evidence provided by the testimony of Carl DeBickero and Clarence Wilborn. He displayed the enlarged photos of Patel and Johnson viewing their payments. He acknowledged the blemished character of Wilborn as well as the fact Wilborn was testifying with a pretrial agreement to reduce his own sentence. But he questioned what possible explanation there could be for the evidence—the uncontested evidence— that both Patel and Johnson received a suitcase filled with cash. Who could have been behind such a plan? Who could have provided such a large amount of money? Who had the money, plan, and motive? Who but Gordon? He was now ready to conclude.
“Members of the jury, the evidence is clear. As clear as the photos of Vijay Patel and Josh Johnson smiling as they looked at that $250,000, compliments of that defendant.” Scott paused and pointed once again at Gordon.
“It is now your privilege, your duty, to render the judgment in this case. On behalf of the state of Georgia, I ask that you do nothing more than what you took an oath to do at the beginning of this trial—that you return a just verdict, a verdict that speaks the truth. A verdict that says this defendant is guilty of the two charges of influencing witnesses, as alleged in the indictment. And not because I say so, but because the evidence says so. Thank you for your service on this jury.”
Colosimo did not wait for the judge to invite him to begin his closing argument. He was on his feet immediately.
“Isn’t it convenient,” he began, “for Mr. Marino to ask that you ignore the unfulfilled promises he made in his opening statement. To ignore the lies that Clarence Wilborn told you. To ignore the fact that the one person who appeared in this courtroom who had a compelling motive to lie was Clarence Wilborn. Do you recall his response when I asked him what benefit he was receiving for his testimony in this case? Instead of facing a possible sentence of life in prison, he will receive less than ten years, possibly much less. That, ladies and gentlemen, may be the only truth he told during the entire time he was in that witness chair.”
And so it went, just as Scott had expected. A scorching excoriation of Wilborn’s testimony and character, followed by the argument that the indictments resulted from the embarrassment of the district attorney in losing the case. And then a full report of the defendant’s bio and professional accomplishments. As Grady had warned him months before, Colosimo, despite his garish dress and ostentatious display of diamonds and gold, was in fact, a formidable courtroom advocate. He had a powerful voice and a keen sense of drama. He had the rapt attention of each juror, and he missed nothing in pinpointing every weakness in the prosecution’s case. When Colosimo was approaching the end of his argument, his voice became more modulated.
“Ladies and gentlemen of the jury. There is one part of the prosecutor’s argument that we can agree with, and that is you have the duty to render a just verdict in this case. You took an oath to do so. You must hold the state to its burden of proof: beyond a reasonable doubt. Believing that Maxwell Gordon is guilty is not sufficient. Each and every one of you must believe in his guilt beyond any reasonable doubt.
“A verdict of guilty would be not only an unjust verdict affecting Maxwell Gordon for life, but a verdict that would affect all of you for the rest of your lives. Every day you will recall your service on this jury. Every day you will look back on this trial and ask yourself, ‘Did I do the right thing? Did I do justice to that man? Wasn’t there a serious conflict in the evidence? Wasn’t there at least some reasonable doubt?’ But then it will be too late. There will be nothing you can do to right that wrong. If you have any reasonable doubt, now is the time to say so. Tomorrow, next week, next year, will be too late. Do justice in this case today. Find Maxwell Gordon not guilty!”
Colosimo slowly turned his head from side to side, momentarily making eye contact with each juror, then walked to the defense table and took his seat.
Scott had made notes of each point that Colosimo had made. He tried to refute each one, but a rush of tension and three days of stress clouded his mind, and he felt physically weakened. At times he felt his hands shake, and trying to maintain eye contact with the jury as he checked his notes was difficult. With his vigorous voice dampened, and his body exhausted, he knew he must quickly conclude.
“I urge you to use your good old walking around common sense,” he said, using what vocal strength he had left. “No one is required to leave common sense in the hallway when serving on a jury. Return the only verdict that is just and speaks the truth, a verdict of guilty to both charges.”
He paused and took a step backward. Then he viewed the jury from side to side, trying to make eye contact with as many as he could. “Thank you,” he said, as he returned to the prosecution table.
Scott knew his final closing was far from his best. The pressure of the trial had finally gotten to him. He could only hope that it was at least adequate to underscore the absurdity of the defense. He was unsure of how it was received, so the discrete handshake and smile from Fasi as he sat down at his table was comforting. He was at once relieved that this trial was over and disappointed in the way it ended—only two charges for the jury to consider. But he was satisfied that the jury had the necessary evidence to convict on both.
Judge McCabe ordered a twenty-minute recess, after which he would begin giving the jury instructions. The courtroom spectators began filing out, but Scott and Fasi remained at their table. They had only one remaining task, to listen carefully to the judge’s instructions for any errors—this was not a trial they wanted to retry because of an instruction error. The room was almost cleared when they saw Luke Schaub approaching.
“I got a call a few minutes ago from a sheriff’s deputy. Patel was picked up out at Tybee Island. He’s now down at the county detention center.”
“Well, isn’t that dandy,” Scott said. “The charges he was to help us with were dismissed six hours ago. So, he served himself up on a platter—goodbye pretrial agreement for a short sentence in the county jail. Hello, Vijay Patel, welcome to the state pen.”
“The deputy who called me is the one who drove him from Tybee Island to the detention center. Apparently they had quite a talk on the way.”
“About what?”
“About why he went missing.”
“That should be interesting.”
“It is. He said he showed up at the courthouse Tuesday morning, ready to testify and saw some guy by the name of ‘Anderson.’ Anderson was one of two men who visited him at his store a few weeks ago, giving him advice about a defense he had to the charge of perjury. The man with Anderson assured him he could beat the charge because of the ‘two-witness rule.’ Patel did some research with the help of a reference librarian at a public library. He believed it was true. And he wondered why his attorney—that’s me—didn’t tell him about it. The deputy asked him why he didn’t tell me about it, and Patel said he was afraid because I had given him strict instructions not to discuss the case with anyone. He was confused but still planned to testify because he still trusted his attorney.”
“But he didn’t,” added Scott.
“Right. Yesterday morning when he arrived at the courthouse, Anderson was standing near the entrance. Anderson said, ‘Are you stupid?’ That’s all he said, but it made him rethink his options. He drove out to Tybee and just strolled the beaches, thinking. Didn’t go home. They found him there this morning.”
“Good deputy,” Scott said. “Drew a lot of information from Patel during that thirty minute drive from the beach. He should be a detective. I think I know this guy ‘Anderson.’ Colosimo has an office goon with that name.”
“You think Colosimo was involved in this?”
“Of course, fits his style. And it seems Patel gave an honest answer by leaving the courthouse to walk on the beach—yes, he’s stupid.”
“Sure seems that way,” said Luke. “I had explained to him we could surely beat the perjury charge but not the conspiracy count. He was looking at five years, with a one year minimum. I made it clear that the pretrial was a total deal—plea to both and get a max of twelve months. It was a decent deal even at the twelve months, but it’s entirely possible he would have served only a couple. But he blew it. I doubt he knows how bad he blew it.”
The Two-Witness Rule: A Novel Page 19
