Shadow of Power (13 page)

Herman is busy checking the boxes, seven of them stacked against the wall near his end of the defense table. These transfer cases with lids on them contain the materials delivered early this morning, documents and other evidence we may need during trial.

I lay my briefcase on the table. Herman lifts his head out of one of the boxes and turns to look.

“You come in through that mess outside?” he asks.

I nod.

“People got nothin’ better to do,” Herman mumbles to himself, his head going back halfway into one of the boxes. “You see all that crap back at the office? Damn truckload. That stuff have to come over here, too?”

“I won’t know until Harry goes through it all.”

“Yeah, Harry’s up to his ass,” he says.

Harry is back at the office pawing through boxes of printed data from Scarborough’s computers. Tuchio dumped all of it on us this morning at eight o’clock, when a small van backed up to the sidewalk out in front of our office and unloaded boxes of documents. How long the D.A. has had these is uncertain, but Tuchio can prove that it was all printed within the last forty-eight hours. Of that he made sure.

It’s all part of the game of modern litigation. Try your case while your opponent pushes a mountain of paper over on top of you.

“Excuse me, Counselor.”

I turn. Tuchio is behind me, smiling, his radiance. He approaches from across the divide, the space that separates the two counsel tables. This morning he is decked out in his best power suit, blue pinstripes and a club tie, starched cuffs with gold links. Marching behind him as if in lockstep is his female deputy and the detective Brant Detrick.

Detrick I know. Tuchio makes a short introduction, and we shake hands. Herman comes over. I introduce him.

Then Tuchio presents his assistant. “I’d like you to meet Deputy District Attorney Janice Harmen.”

“District attorney?” I say. “Have I missed something? We aren’t on appeal yet, are we?”

Tuchio laughs just a little. “Ms. Harmen is on loan. She’ll be with my office for the duration.”

She shakes my hand with a firm grip, no limp fingertips. Brown eyes, smooth coffee-colored complexion, her hair long to the shoulders with a slight wave. As she lets go of my hand, she looks me dead in the
eye. The message is clear: woman on the rise. She intends to make her bones on my client.

“So how are you doing?” Tuchio stays and talks. His assistants return to their table. There’s something almost longing in the way Tuchio approaches you, as if he were actually earnest about making a new friend.

“Frankly, I’d be doing a lot better if my partner wasn’t back at the office picking through piles of paper we should have had two weeks ago,” I tell him.

“Oh, that. Yes, I know. I do apologize for the lateness. But there was nothing I could do. I got the stuff myself only late yesterday afternoon.”

“Is that right?”

“Absolutely,” he says. He looks almost hurt that I should question this, then glances over his shoulder. “Janice.” In the hum of the courtroom, a reporter is leaning over the railing talking to the deputy DA. “Janice.” This time he says it louder. He gets her attention. “Can you get me a copy of that certificate? You know, the one from IT.”

She nods and breaks away from the reporter, turns around and goes fishing in one of the sample cases under their table. These cases are commonly used by lawyers to carry heavy legal volumes and books.

“We got the materials to you as soon as we could,” says Tuchio. “Our IT guys tell me there was hell to pay lifting the documents from Scarborough’s hard disks. To begin with, there was a ton of material. I suppose you could figure that, the man being a writer. But some of it was old, archived on his computers but using software that’s been off the market for ages. I’m no computer buff, but—”

Before he can finish, Janice is at his shoulder with a piece of paper. He takes it, looks at it briefly, then hands it to me.

It is an affidavit prepared by the police department’s forensics lab and signed by one of their techs, showing the date they started working on Scarborough’s computer hard drives. According to the affidavit, they started more than a month ago, only to run into endless problems.

Tuchio tells me that Scarborough used three different word-processing programs over the years. Something called WordStar, Word-Perfect, and finally Word.

“That made it hard enough,” says Tuchio. “Some of the older versions of these programs aren’t supported any longer. Nobody sells them.
I assume nobody uses them anymore either.” He leans over and looks at the affidavit with me. “See, right here.” He points to the paragraph where his technicians verify this.

“I assume your people have heard of ASCII?” I ask him. That’s the thing about trying cases—you tend to learn a little bit about a lot of things, sometimes just enough to get you in trouble. ASCII is a common machine language usually readable from PC computers. Most documents, if they’re the product of an obsolete program, can still be converted into ASCII and from this printed into text.

“I don’t know what that is,” says Tuchio. “You obviously know more about this than I do. But whatever it is, that wasn’t the biggest problem.”

“So what was?”

“Scarborough must have been at least a little paranoid,” he says.

“Why do you say that?”

“Because everything in his computers was hidden behind a zillion passwords, and according to our technicians, he knew how to make them, the passwords, letters and numbers,” says Tuchio, “nothing simple. Our IT people had to run software day and night for almost two weeks trying to crack ’em. They’d unlock one, only to run into another. Well, there it is,” he says. “Now you have everything that we have.” He smiles and then starts to turn to leave.

“Are you sure your people got everything that was on the hard drives?” I ask.

“Um…” He turns back, thinks for a moment, then offers a slight shrug. “Why do you ask?”

“I just want to be certain.”

“Can any of us ever be sure of anything? They tell me that they were very thorough. But if you think we may have missed something, you’re free to have your experts examine the drives. We can make arrangements. Do you want them?”

“Let me look at the materials first, and then I’ll let you know. In the meantime you will preserve the drives?”

“Of course.” He shakes my hand one more time. “Good luck,” he says. “You can keep that.” He smiles and taps the affidavit in my hand, then turns and heads back to his counsel table. Tuchio knows that at this moment he has knocked me off balance. I make a mental note to
send him a letter confirming our conversation regarding the computer drives, with a copy to the court.

With the affidavit showing that the prosecutor did everything in his power to produce the materials from Scarborough’s computers, any complaint by our side to the court asking for time to review the documents would be fruitless. With the jury impaneled and mobs in the street, the judge will tell me to read this mountain of paper while the state puts on its own case.

The prosecutor has done one better. He’s gone out of his way to plant a small seed of confusion in our case, hoping, no doubt, that we will be distracted, waste time, perhaps chase this thing down some dead-ended rabbit hole. He has posed a question with no answer: Why would Scarborough, who wrote books to be published so that the whole world could read them, bother to conceal everything he wrote behind an infinite array of passwords?

E
very seat is now filled. The overflow is sent back outside the courtroom to stand in line and wait for those with weak kidneys to start giving up their seats.

“Keep it down,” comes a booming voice from a sheriff’s sergeant at the back of the room, and a quiet chill settles over the audience.

Up front, a door at our side of the room opens just a crack. Through the small mesh-wired window in the door, I can see part of the head and shoulder of a uniformed deputy. He looks out at the crowd, checking everything one last time. Finally the door opens all the way. Out come two big deputies, more beef from the guard detail at the jail. Behind them, almost lost in their shadow, walks Carl Arnsberg, his head down, arms at his sides. He is wearing a new suit, his dark hair clipped short and parted on the left, slick and clean. He looks as if he’s been polished using a high-speed buffer. Even his perennial five o’clock shadow is gone.

There are some hushed, muffled whispers in the audience as people point at Carl.

Herman, who delivered Carl’s suit to the jail, whispers out of the side of his mouth, “Think ah used too much makeup.”

I get a glimpse between the deputies. Arnsberg’s face has a kind of white, bloodless look about it, like maybe a mortician got hold of him.

As they frog-march him toward our counsel table, suddenly the silence in the room is punctured by a loud shout: “Fucking fascist!” I turn my head to see a guy standing in the third row behind Tuchio’s table, looking wild-eyed at Carl. The guy scrambles over the row of seats in front of him, stepping on people as he goes. He hurdles the next two rows. Before any of the cops can reach him, he runs over the bailiff standing at the gate and through the railing.

He is two strides from Arnsberg when I lash out with one hand. I catch just a piece of his blue T-shirt as he blasts by me. Everything after that is lost in a blur of motion. Somehow this is launched off the top of our table like a rocket out of a silo. It nails the guy in the side just above the diaphragm. You can hear the breath go out of him like a crushed bellows as he is driven into the floor by something that looks like an SUV wearing a suit. Herman bounces on him once, then comes up straddling the guy like a cowboy on a steer.

Two of the guards from Carl’s contingent pile on. They cuff the man. He’s lying facedown on the floor, dazed, probably wondering who put him in the Super Bowl without a jersey or a number. The cops don’t even bother to pick him up. They just slide him, belly down, across the floor like a hockey puck and through the door to the lockup.

The other two guards, the ones who were chaperoning Arnsberg, are busy dusting off Herman, checking to see if he’s okay.

A phalanx of deputies has now formed, strung out along the bar railing so that no one else in the audience has a chance of going upstage.

Out in the gallery, the crowd is milling. Up out of their seats like jack out of his box, their voices elevated, gestures animated. Give them a few glasses to hold and it could be a party. “Did you see that?” This is followed by the occasional instant mental playback, all with hand gestures for color. “Who is that guy?” “Must be a cop.”

If I told them that Herman was Superman’s African brother, half of them would believe me. How else could a mountain move that fast? Mixed in with the free radicals, some wearing black T-shirts as a show of solidarity, there are a good number of regular courthouse-goers here, retired folk who spend their days watching trials because it’s better than the three hundred channels on cable. Where else can you see real bullet
holes in the wall? Live theater, the best ticket in town, it’s free, and getting better now that they’ve brought contact sports inside.

From the corner of my eye, I see Sandra Arnsberg, Carl’s mother, standing on her tiptoes trying to see her son through the forest of uniforms in front of her.

I motion to her that I will get him.

In the rush of adrenaline, everybody but her has forgotten about Arnsberg. He is left standing by himself off to one side like some abandoned urchin. The guards talking to Herman cast an occasional glance his way just to make sure he doesn’t walk off. Where would he go with a wall of guards at the railing?

I walk over to him. “Are you all right?”

“Yeah,” he says. “What was that all about?” Evidently Carl hasn’t seen the action out on the street.

“Just some crazy,” I tell him.

“Yeah. Guy’s nuts.” Carl looks over his shoulder at the door to the lockup where they dragged the guy, probably wondering if he has to go out that way when we’re done.

“I thought you were supposed to come to the jail this morning?”

“I was.” I tell him about the D.A. dropping a ton of paper on us at the last minute.

This seems to unnerve him.

“Anything bad?” he says. “What? What did they send? Why so much at the last minute?” Carl doesn’t understand a lot of this. Any little wrinkle tends to send him into panic.

“It’s okay. It’s material we’ve been trying to get for some time. Printouts from Scarborough’s computers.”

“Oh.”

I take him by the arm, walk him to the counsel table, where we sit.

He smiles, then waves at his mom through a crack between the cops.

“They told me I can’t have any exercise time in the dayroom anymore. Something about not enough staff,” he says.

Carl has been doing twenty-three hours a day in solitary since they arrested him. Now he’ll be doing twenty-four. The sheriff has had to segregate him at the jail because they know they can’t protect him. With
the media hype, Carl has become the ultimate symbol in the great cause of every jail and prison in the country, the war of the races. The Aryan Nation would claim him as their own, force him to join whether he wanted to or not, and kill him if he refused. To the Black Brotherhood, he’s a dead man walking, top priority to be shanked in the shower or have his throat cut in the yard at the first opportunity. If they could do this in the middle of the trial, it would send a message—the only one that counts when you’re behind bars: “Don’t fuck with us.”

“Quiet!!!” Suddenly the booming voice of the sergeant at the back door again. “Everybody sit down.” The festivities out in the audience are over. As if somebody had pulled the plug in a game of musical chairs, there is a dash for seats. Within seconds the noise level drops.

Herman comes back to the table. On the way by, he slaps out a quick if low rendition of the brothers’ handshake with Carl—crossed palms, cupped fingers, and a light slap.

“Hey, man, you’re gettin’ better,” he says. Herman has been doing this ever since Carl’s first week in jail, after they broke the ice on information from the kid, leads that Herman had to run down with the leather of his shoes.

As Diggs sits, Carl leans over. “I owe ya, man.”

Herman shakes it off. “You owe me nothing.”

“No. No. I mean it. You nailed that guy,” says Carl.

“If I didn’t, the cops would have.”

“Yeah, but you did it.”

“Now let’s see if I can get outta bed in the morning, and after that I’ll have to see if I can move.” He laughs it off.

I know that Herman is taking heat. He has received some ugly phone calls, wrong numbers to “Uncle Tom.” Some hip artist did graffiti on his car. I’ve told him that there is no dishonor in begging off on this case. It’s one thing for a lawyer to take on a controversial cause. If John Adams was right, even the devil deserves a defense. I’ve told him that there are other investigators who can step in. Herman would be busy full-time just doing the other cases in our office.

To all of this Herman has said no. Part of this is the man’s nature. No one is going to tell him what case he can or cannot work. He is not a joiner of clubs—social, political, or otherwise. He is not afraid of any
thing that walks on two legs and could probably thrash most that walk on four. If you’re counting on group dynamics to change his mind, be advised that organized intimidation, whether racial or political, is much more likely to fuse his backbone into titanium than turn it to jelly.

And there is one thing that I know about Herman, because he has told me. Herman Diggs is the progeny of slaves. If the laws of genetics hold true, they must have been proud people, because if they are any kin to Herman, their masters never broke them.

I see a shadowed figure approach from the hallway leading to chambers. It’s Ruiz, the judge’s clerk. The show is about to begin.

Ruiz comes out and stands near the foot of the bench, his shoulders back, his chest puffed out, and in almost a squeaky tone, what passes for the voice of authority from R2-D2, announces, “All rise. Superior Court for the State of California, County of San Diego, is now in session, the Honorable Plato Quinn presiding.”

There is the hushed friction of cloth as it leaves every seat in the room, all on their feet. Quinn strides out, black robes flashing. He climbs the few steps to the bench and takes his seat. The high-backed leather throne swivels a little. He tries the gavel, and there is the shot-like clap of hard wood. “You may be seated.”

Everybody in the room drops as if legs just gave out.

The judge sits for a moment looking out at the courtroom, a death stare, his eye scanning the crowd, his expression one of paternal irritation. “Before we start,” he says, “I want to make a few things clear. Those of you in the audience, no matter what you might think or how strongly you might feel,
you
are not participants in this trial. You are here to watch and observe, and that is all. There will be no demonstrations or disturbances allowed in my courtroom. Any talking, clapping, booing, hand signals, written signs, or other gestures, any demonstration of emotion of any kind, and you will be removed. I don’t want to see any newspapers, books, magazines, or anything else being read in this courtroom while the trial is going on. If I do, you will be removed. If you want to read, go to the library. There will be no food or beverages anywhere in the courtroom, no candy or gum. If you want to stick gum under a chair, do it at home at your kitchen table, not here under my benches.”

He goes through the routine about cell phones, cameras, and recorders not being allowed inside the courtroom. “If you have any one of these, give it up now or lose it.” He pauses a second. Nobody holds up a hand or steps forward. “If I hear a cell phone ring, you may as well hand it to the bailiff to answer, because that phone now belongs to the county.

“Cause a problem in my courtroom and you will go to jail.” He gestures with his gavel toward the door at the lockup, which is now closed. “You will not pass go, and no one from the press will be allowed to talk to you so as to immortalize your message to the world. Do I make myself clear?”

Some in the audience are probably wondering whether this includes having Herman pulverize them in the form of a human blocking sled before they get to go to jail.

“If it becomes necessary, I will clear the courtroom. If this happens, no one will be allowed back into the audience. You can watch the trial on closed circuit downstairs. I will tell you right now that that room is tiny, the chairs are uncomfortable, and the bailiffs are just as uncompromising.”

He continues directing his death gaze out at them for what seems an uncomfortable eternity, then settles back in his chair.

“The clerk will call the case.”

Ruiz reads from a single typed sheet in his hand. “People of the State of California versus Carl Everett Arnsberg. Case number…”

We waive a formal reading of the charges, and then Quinn looks over at one of the bailiffs. “Bring in the jury.”

From a door just off to the right and next to the jury box, they come out, two men, one of them middle-aged, wearing a suit and a stern expression, followed by a younger man in blue jeans and a slip-over shirt. Then three women file out, two of them African American, one dressed neatly in a pantsuit, the other in jeans and a brightly colored top. The third woman is older, wearing a black wool skirt and a matching top with a Chinese red cashmere scarf around her neck, one end tossed over her shoulder. She is sporting bright jewelry—large rings on three fingers of one hand and a gold bracelet on the wrist of the other. When she leaves at the end of the day, you’ll be able to find her by following the
parade of felons attached to her jewelry after she passes the probation office downstairs.

The procession into the jury box continues.

We have dossiers on all of them, information down to whether they have nicknames and if so what they are, their jobs, income levels, the churches they attend if any, the number and names of their children and grandchildren. If it is possible to psychoanalyze them without shooting them up on drugs, we have done it, both sides, Tuchio with his state-paid consultant-cum-shrink and we with ours.

Like any jury, this one is a microcosmic social cauldron, an economic, racial, and political melting pot with the burner turned off. Other than being voters or having a driver’s license—which is how they got pulled into the jury pool to begin with—and besides the fact that they breathe air and will bleed if cut, there is almost nothing that any of them have in common. They’re here for two reasons: because the witch doctors of jury consulting believe they possess some hoped-for bias that will help either one side or the other or because one of us, Tuchio or I, ran out of bullets in the form of peremptory challenges to blast them off the jury.

They file into the jury box until it is full. The last six take chairs that have been set up just outside the railing to the box, directly in front of it. These are the alternates. For the time being, all of them are sleeping at home, comfortable in the thought that at least at night they can return to the real world and their families.

As soon as the last one takes his seat, Quinn starts in.

“Good morning!” He beams down at them from the bench—Mr. Happiness. Those in the audience have to be wondering if they’ve drawn Jekyll and Hyde as a judge and, if so, where he keeps his syringe.

Plato Quinn may play God in his own court, but he has presided over enough trials to know that in a case like this there is one group he has to cater to, come hell or high water. He’s looking at them now, flashing more teeth than the average alligator. He will feed them, worry about their bladders, give them regular breaks along with a steady diet of entertaining homilies from the bench, and if possible get them home early whenever he can.