Shadow of Power (14 page)

This is an expensive, high-stakes case. Quinn knows that if he ends
up with an unhappy or rebellious jury, he can find himself staving off a mutiny as he bails to avoid a mistrial. When taxpayers fork over millions on a case that will be constantly on the airwaves, with updates every minute or so, the last thing anybody wants is a story with no ending. The political powers aren’t likely to forget who was at the helm if the trip has to be taken again and the case tried over.

“I hope you all slept well last night.” He gets a few nodding heads, some half grins, and a broad smile from the woman decked out in her best going-to-court outfit, complete with rings and jangling jewelry.

“We have a little work to do today, but it shouldn’t take too long. I’m hoping for a light day. I know it’s Friday, so I hope to get you out of here and on your way home before the rush hour.”

This brings a lot of vigorous, happy nodding from the direction of the box.

The judge shoots a look at Tuchio, whose opening statement is the principal order of business for the day, a little gentle stage direction from on high not to be too long-winded.

“We’ll also get to know each other a bit better. I hope you’re all comfortable with the court staff.” Quinn introduces his clerk and the bailiff, whom they already know. What they don’t know is that if they are sequestered, he will become their personal jailer.

“These people are here to make sure that your time on jury duty is as pleasant and comfortable as we can make it.” Quinn makes it sound like a party, cookies and milk over photographs of Scarborough, his head all bloodied by the claws of a hammer.

Some of the jurors are looking around, taking their first gander out at the bleachers, where there is standing room only and a sea of serious faces, some of them still flushed by the threats from the judge. The jurors are probably realizing for the first time how important they are, the random hand of government having given them the power, like the emperor with his arm outstretched, closed fist with thumb protruding, suspended over the question of life and death.

Quinn does a few more introductions. He starts on us.

“You already know Mr. Tuchio, the district attorney.”

The Tush gives them a big smile and waves from his chair.

“And Ms. Harmen, who will be assisting him.”

She nods and favors them with the pearly whites.

“And of course counsel for the defense, Mr. Madriani.” The judge nods pleasantly toward me. “I see Mr. Hinds is not with us today.”

“He couldn’t make it, Your Honor.” I could tell him that Harry has become the recycling king, buried under a pile of last-minute paper by Tuchio, but why bother?

Quinn skips right over my client, the eight-hundred-pound gorilla, the reason we’re all here, and instead finds himself looking at Herman, whom he doesn’t know.

I get up out of my chair, fingering the middle button on my suit coat, and give the jury my best college smile.

I introduce Herman, who stands and half bows toward the jury. “And last but not least my client, Carl Arnsberg. Carl.” I gesture for him to stand.

This catches Carl completely off guard. Nobody told him he was going to have to stand up and meet people. He becomes what he is, a kid stumbling over his feet trying to get up. When he finally makes it, he looks over at the jury and offers a kind of sheepish grin that slowly blossoms into a full smile. This becomes infectious when a few of the jurors begin to smile back.

Tuchio is halfway out of his chair, worried, I suspect, that Arnsberg might try to say something, like,
Please don’t kill me. I didn’t do it
. This is matched by Quinn’s stark expression up on the bench, judge in the headlights.

It is one of those moments when dumb luck plays a hand, surprise aided by awkward innocence and the ill-fitting suit that Herman picked off the rack giving Carl the image of a prairie schoolboy. All that’s missing is a stalk of hay dangling from his teeth.

It’s a good thing none of the jurors have X-ray vision, or they’d be looking at the edgy artwork, swastikas, and other social commentary tattooed on his arms and upper body.

Carl stands there grinning, casting an occasional shy downward glance. The judge finally pushes his heart back down into his chest and says, “Thank you, Mr. Madriani.”

Under the glare from the bench, I put a hand on Carl’s shoulder, and we both quietly sit.

Quinn is not happy having his dog and pony show with the jury hijacked. But on the scale of things at the moment it is not worth his wrath.

When you’re defending, the one thing you don’t want sitting in the chair next to you at a murder trial is the invisible man, a silent, emotionless cipher of a client charged with crimes so vile that normal people have trouble imagining them.

When I look over, Tuchio is hunched at his table, working over the notes for his opening statement, his pen whittling away. He has a kind of benign no-crime, no-foul grin on his face, though you can bet he is seething inside. If he wants to put Carl to death, he will have to burn out of their brains the image of the defendant standing in front of the jury, smiling at them with the homespun geniality of Will Rogers.

“I’m going to give the jury a brief break. Ten-minute recess,” says Quinn. “I will see counsel in chambers.”

T
en minutes turns into an hour, a good part of which is spent with Quinn giving me more than a small slice of his mind. “If you want me to introduce your client to the jury, I’ll be more than happy to do so,” he tells me. “But under proper guidelines and with clear instructions to the defendant that under no circumstances is he to make any statement or say anything.”

“He didn’t, Your Honor.”

“Damn lucky for you,” he says. “And what’s this business with your investigator? Where the hell is Hinds?” He reminds me that Harry is assigned the penalty phase of the trial in the event that Arnsberg is convicted and the jury has to decide whether he gets life or death. “He’s supposed to be here.”

“When the evidence comes in,” I tell him. “When the first witness is sworn, he’ll be here.”

“I asked you where he was.”

“You want to know where he is, ask Mr. Tuchio.”

Quinn looks over at the prosecutor, who is lounging on the judge’s couch against the wall in the corner. “I don’t know where he is, Your Honor.”

“He’s back at the office checking for roadside bombs tucked into the truckload of materials from the victim’s computers that your office delivered to us at eight o’clock this morning.”

“Oh, that,” says Tuchio.

At this, Quinn looks up from his desk, flustered. “Those were supposed to be delivered a week ago.”

Tuchio’s turn to wiggle.

“What about it?” says the judge.

The Tush fishes the affidavit from his IT people out of his briefcase. “We sent the court a copy as soon as we got it,” he says.

“What the hell is this?” Quinn gets his glasses on and starts reading. “Why wasn’t I told?”

“We didn’t know ourselves until the last minute,” says Tuchio.

The judge tries to throw the paper. It seems to add to his frustration when it lands with all the force of a fallen leaf on the blotter in the middle of his desk.

“Get Hinds over here,” he says.

“When do we get to look at the materials?” I ask. “I know it’s a small point, but they may be central to our case.”

“You think maybe Scarborough left a suicide note in his computer?” says Tuchio. “‘I’m angry with the world. I’m depressed. P.S.—I’m gonna beat my brains out with a hammer.’”

“I want it on record”—I ignore him—“that this stuff came late. That the cops didn’t even see it before they charged.”

“You can look at it over the weekend,” says Quinn.

The fact that the cops haven’t even had the time, let alone the inclination, to look at these leaves open the question whether there are e-mails with death threats strewn all over Scarborough’s hard drives. And God knows what else.

“It’s a safe bet, given the subject matter of his writings, that there were probably regional chapters of ‘Hate Scarborough’ committees,” I tell them.

“Yes, but did they all have their fingerprints on the hammer?” says Tuchio.

“For all you know, there could have been a line forming outside that hotel room door with people paying quarters to take a whack at the back of his head,” I tell him.

“Yes, and they all wiped their fingerprints off the hammer except your client.”

“Enough,” says the judge. “You.” He points at me. “Call your partner. Get him on the phone and tell him to get over here now.”

It takes Harry almost an hour in midmorning traffic to cross the bridge, drive downtown, park his car, and hoof it to the courthouse.

Quinn is angry at my antics with Carl in front of the jury, so he takes it out on Harry. He lets us cool our heels while he sits in chambers as the clock edges toward the lunch hour, then sends Ruiz out to announce that his lordship has released the jury and gone to lunch. Court will reconvene at one-thirty.

“Did you find anything?” I ask.

Harry and I eat stale sandwiches out of wrappers from a deli around the corner. We are standing up at a counter listening to the strains of “We Shall Overcome” over the backdrop of the percussion section of the Nazi National Orchestra beating their hard hats against garbage-can covers they’ve turned into shields.

“There’s a lot of stuff there,” says Harry. “And there’s no way to be sure we got it all.” He tells me that he has left two paralegals separating the materials by date and subject. The most important—the stuff pregnant with possibilities, according to Harry—are Scarborough’s e-mails, though he did a quick toss, turning as much of the stack as he could upside down looking for early drafts of Scarborough’s book. It is here, according to Trisha Scott, that Scarborough left references to the letter supposedly written by Jefferson, the would-be dynamite for Scarborough’s next book.

“Nothing,” says Harry. “Maybe she’s right. If he shredded the printout copies of all his old work, maybe he erased everything from the computers as well.”

The state’s theory is that Carl killed Scarborough for reasons of racial animus, not because the author was black, since he wasn’t, but because his words both written and verbal threatened the Aryan sense of racial superiority—that, and to impress others with similar views.

Over all of this, the missing Jefferson Letter now looms large. There
is the question of its intrinsic value as a motive for murder, assuming that the original letter was available and Scarborough could get his hands on it. It is also possible, though there is no evidence at the moment, that perhaps the author had the original at the time of his death. If so, the fact that it is missing and that the police did not find it on Carl or at his apartment in the hours following the murder may be the stuff of which a credible defense is made.

Beyond this is the information from Trisha Scott, how Scarborough tried to use the letter in
Perpetual Slaves
and how she convinced him not to, for reasons of questioned authenticity. We have the detective’s note, following his interview with Bonguard, that the letter was the inspiration for all—the book, the tour, and what is now approaching $30 million in earned royalties. It is possible that whoever possessed the original of the letter, and who presumably gave Scarborough his copy, might be jealous. Maybe he wanted a cut of the book’s earnings and Scarborough refused to give it up? All of these are possible motives for murder, and from everything we know, none of them apply to Carl Arnsberg.

The Jefferson Letter is the seething force that inspired Scarborough’s historic venom. It is there, throbbing, at the heart of our case. We cannot see it, but its effect and its force are palpable.

It’s one forty-five when the wizard finally comes out from behind the curtain and takes the bench. Quinn shuffles a few papers as he looks down to make sure that Harry is really there and that it’s not somebody in a Harry mask.

Finally satisfied, he looks down at Tuchio. “Is the prosecution ready to proceed?”

Tuchio stands. “We are, Your Honor.”

“Then you may present your opening statement.”

The prosecutor circles the front of the counsel table until he is standing before the jury, no more than six feet from the alternates seated directly in front of him. His arms are folded, feet slightly apart, the power suit draped on his body. He looks at them for a few long seconds in silence, studying the twelve in the box from one end to the other before he finally speaks.

“Why are we here?”

He allows the question to linger in the air just long enough. Tuchio has a sense of timing.

“I’ll tell you,” he says.

Somehow I thought he would.

“We are here so that the People of the State of California can present evidence to you”—the volume of his voice rises now—“evidence of a heinous, cold-blooded crime, the most serious crime possible, the intentional taking of another human life, the capital crime of murder.

“I am going to tell you a story, ladies and gentlemen. It is a true story—”

I was hoping for Hansel and Gretel.

“—with evidence to support it and witnesses who, under oath, swearing to tell the truth, will sit right there.” Tuchio points with an outstretched arm toward the now-empty witness box. “Witnesses who will tell you in their own words what they saw and what they heard. You will see the murder weapon. You will see photographs of the crime scene in all its horror. You will hear experts, scientists and others, explain to you their professional opinions concerning aspects of the evidence and how they came to arrive at their conclusions.

“After you have seen all the evidence and heard all the testimony, you will be instructed by the judge on how to evaluate what you have seen and heard here in this courtroom. And then you will be asked to render a verdict.

“Your Honor, I would ask the defendant to rise.”

The judge wasn’t ready for this. Neither was I. Quinn looks befuddled, but he complies with Tuchio’s request. “The defendant will stand.”

Carl looks at me like,
What’s going on?

I tell him to stand, to look straight at the jury. Don’t look away.

We both get up. Carl faces the jury once more. But this time he isn’t smiling. He looks scared.

Tuchio turns back to the jury box. “You will be asked to decide whether that man”—he turns, again with an outstretched arm, his finger pointed like a cocked pistol at Carl—“whether on July eighth of this year, the defendant, Carl Everett Arnsberg, in cold blood and with malice aforethought, murdered Terrance Scarborough.”

Tuchio drops his arm and stands there in front of them in silence. Carl is still standing, looking at the jury like a stone statue. No one is smiling at him from out of the jury box this time. I tug gently on his coat sleeve, and we both sit.

Tuchio turns and looks at us, wrings his hands a little, then starts again.

“On the morning of June fourteenth, a warm, sunny day here in San Diego, Terry Scarborough, a man of letters, an author of some considerable note, who was to appear on national television that night, was busy in his hotel room preparing to appear on Jay Leno’s show.”

Tuchio doesn’t mention that Scarborough was also a lawyer. Why risk tweaking a broad public bias?

“Mr. Scarborough had everything to live for. He had just published a new book, a book that had become a number-one national bestseller.” He nods his head, strokes his chin with one hand, and begins to move in front of the jury, pacing. “Oh, it was a controversial book to be sure. It was a book that dealt with serious issues.” He ends up at the prosecution table right on beat, and from a cardboard box on top he plucks a copy of Scarborough’s book. Then he heads back toward the jury, studying the book’s cover, opening it, fanning a few pages until he gets back to the closed cover. I have now seen this enough times that the image on the book’s jacket is burned into my brain.

The Tush and I have argued behind closed doors with the judge about whether the jury should be allowed to read the book. For the moment the answer is no, though Quinn has left himself enough room to change his mind if he chooses to. The question is whether the book is relevant. Tuchio says that it is, his argument being that it was the content of the book that formed the motive for the murder, or rather Arnsberg’s resentment of that content. The judge is not satisfied that the state has established this. He wants to see more evidence.

“Perpetual Slaves: The Branding of America’s Black Race,”
Tuchio reads the title to the jury. Then he holds the book up so that they can all see the front cover.

Even from a few feet away, they can’t miss the large, rust-hued photograph, probably a daguerreotype dating to the Civil War. It is a picture
of a black slave, his hands chained as he stands withered and dazed, his head lifted, looking straight ahead. Around his neck a heavy iron ring has been bolted closed. Sprouting outward from this ring, like rays from the sun, are footlong sharpened spikes, so that the man cannot even lay his head on the ground to rest. If you look closely, you can see scars on his shoulder where the lash of a whip has opened the skin like a plow turning furrows in the earth.

“This is a book about the evils of slavery.” Tuchio looks over at me as he says this, almost begging for an objection.

He knows Quinn would slap me down. As long as Tuchio doesn’t veer into argument or dally too long at the fringes, the judge will give him leeway in his opening, enough to make his case if he has the proof.

“It is a book about the burdens and brutality of an institution that many believe has left painful social stigmas. Stigmas that still divide this country, even today.”

“Amen.” A single loud male voice from the audience.

Quinn grabs his gavel and slaps it once as he looks out from behind an angry stare.

He could have the deputies start searching the aisles for the miscreant, but Tuchio doesn’t give him time.

“Among other things this book recites portions of the United States Constitution, provisions written more than two hundred years ago, provisions that allowed human beings, African Americans, to be held in bondage, owned by other Americans as slaves. Of course, most of us are aware of this, the history of slavery, the Civil War, all of that. But what’s more, this book informed the public of what many people, people who are not lawyers, did not know—that this language, the odious language of slavery written so many years ago, that this language remains to this day a part of our Constitution.” A few eyes in the jury box open up wide at the revelation.

“Oh, slavery was abolished sure enough, repealed by amendments after the Civil War. But the language of slavery was never actually removed from the text of the Constitution. Most people don’t know that,” he says. “And many are offended by it. It remains there in the Constitution as a visible stigma of what it is to be black in America.”

“Your Honor, I’m going to object.” I’m on my feet.

The judge is nodding. “I agree. Mr. Tuchio, what does this have to do—”

“I’ve made the point, Your Honor, if you’ll allow me to move on.”

“Please do.”

Tuchio thinks for a moment, regroups. “This book, and the message that it contained, was the reason Mr. Scarborough was in San Diego that day, the day he was killed. He was on a book tour, doing readings at local bookshops and sitting for news interviews on television and radio.”