Shadow of Power (15 page)

He turns the book over in his hand so that when he holds it up again for the jury to see, they are no longer looking at the front cover, but the back, the full-size color photograph of Scarborough taken somewhere in a studio, his blue eyes peering out at them, his dark hair neatly combed, his tanned face smiling in the full flush of life.

The Tush has more pictures of Scarborough. The jury will see those later. I’ve seen them already, crime-scene shots from the hotel and others from the morgue. The contrast between the one in his hand and those will not be good for our side.

“What Terry Scarborough could not know that morning, what he didn’t know that day, was that it would be his last. Because as he sat there in that hotel room savoring his success after a long, hard effort of research and writing, Terry Scarborough was brutally and savagely beaten to death, by a killer using of all things the sharp, naked claws of a carpenter’s hammer.”

A couple of the women on the jury wince. Tuchio now has their undivided attention.

“So ask yourself, what led to this crime? Was it the result of some dispute, an act of passion or rage following an argument? We don’t know what was going through Mr. Scarborough’s mind at the moment of his death, other than the claws of that hammer. But what we do know, based on evidence that we will produce here in this courtroom, is that the killer did not confront his victim face-to-face. We will produce evidence showing that the person who killed Mr. Scarborough did not give him even the slightest chance to defend himself. No. No. The state will present evidence that Terry Scarborough”—he points again to the picture on the book jacket—“never saw his killer, because the person who
struck him with that hammer came at him unseen from out of the shadows, from behind, as Terry Scarborough sat in his hotel room, in a chair, making notes.”

He finally drops the hand holding the book.

“This is not a long and tortured story, a tale of intrigue, of some dark deed in the heat of passion between people who knew each other. In fact, if we were able to bring Terry Scarborough back to life and bring him here into this courtroom today and point to his killer, Mr. Scarborough wouldn’t recognize him, because he never knew him. He never met him, except in that brief instant of violence at opposite ends of a bloody hammer.

“Ladies and gentlemen, the state will present evidence that the defendant”—he points at Carl—“Carl Everett Arnsberg, was an employee at the hotel where Terry Scarborough stayed, the hotel where he was killed. We will show that the defendant, Carl Arnsberg, had access to master keys that would allow him to enter the rooms of hotel guests, including the room of the victim, Terry Scarborough.”

Tuchio takes a few steps.

“The state will present evidence that the murder weapon, the hammer used to kill Terry Scarborough, belonged to that same hotel where the victim, Terry Scarborough, was staying and where he was murdered. We will present evidence that this hammer was normally kept with other tools, locked inside a maintenance closet located on the same floor as the victim’s room, and that the defendant”—he points again—“Carl Everett Arnsberg, possessed a key to that maintenance locker.”

Tuchio starts with the little stuff and works up. Always leave them on a high note.

“The state will present evidence of shoe impressions, impressions left in the blood of the victim on the floor of the hotel room where Terry Scarborough was murdered, impressions that match shoes”—his finger is like a pistol now—“owned by, and found by police in the residence of, the defendant, Carl Everett Arnsberg.”

Tuchio’s tush is beginning to rock and roll.

“The state will present evidence from witnesses who will testify that fingerprints found on the bloody handle of the murder weapon, the hammer used to kill Terry Scarborough, match the fingerprints of the
defendant, Carl Everett Arnsberg.” He points again, now getting into high gear the rapid staccato of his case. From behind he’s starting to move like Buddy Holly.

“The state will present evidence that when he was arrested, the defendant, Carl Everett Arnsberg, had in his possession, both on his person and in his apartment, items showing the schedule and locations where the victim, Terry Scarborough, was slated to speak and to sign books.”

It is this that forms one of the bases for the death penalty, the theory that Arnsberg was stalking his victim.

“Finally we will produce witnesses who will testify here before you in open court that in the days just before Terry Scarborough was murdered, this defendant, Carl Everett Arnsberg, met with others and made statements indicating a clear and open hostility toward the victim, Terry Scarborough. We will show that that hostility was based on the defendant’s objections and his outright hatred for the ideas and thoughts espoused by Terry Scarborough and published in this book.” Tuchio now holds it up high. “We will show that the defendant, Carl Everett Arnsberg, in the presence of others, stated a clear willingness and intention to commit serious acts of violence upon the victim, Terry Scarborough.”

It’s Tuchio doing Elvis on Steriods.

Movement or not, he is slick. He avoids overstating the evidence, though the inference is clear. He would have the jury believe that Carl threatened to kill Scarborough and did so in front of witnesses. It’s a fine point, but from what we know from the state’s witnesses, the only conversation was about kidnapping Scarborough. Nor is it entirely clear who first suggested the idea.

If you aren’t careful, you can fall into this pit and end up jerking the jury around at the worst possible time, in your closing argument. It is a favored game of defense lawyers. What did the state promise, and what did it prove? Like everything else, you have to measure the words. If you aren’t listening or, worse, fail to get the transcript and read it, you end up arguing that the prosecutor promised but failed to prove that your client threatened the victim’s life. Then, while you’re choking on the transcript of Tuchio’s actual words from his opening statement, he will be pointing out to the jury that kidnapping is in fact a crime of violence, which is all he ever said.

By then lawyers’ hour will be over, with the jury in no mood to split more hairs. Kidnapping, killing, it won’t matter. Carl will be kissing his mom good-bye and packing his toothbrush for a trip to the death house.

“Ladies and gentlemen, there may be many reasons a person will kill other human beings. But to do it because of what they think or because of what they write surely must be among the worst.”

“Mr. Tuchio.”

Before I can object, Quinn is on him, looking down from his perch. This is argument, pure and simple. Tuchio knows it.

“The jury will disregard that last statement,” says the judge.

Sure they will.

“We will show,” Tuchio goes on as if nothing has happened, “that it was this book and the thoughts and statements contained in it that are at the heart of this case, the reason Terry Scarborough was murdered.” He hammers the point home.

Tuchio turns and aims the cover of Scarborough’s book toward our table like Moses brandishing the tablets.

I have coached Carl that in moments like this he is not to look down or to allow the prosecutor to force him to avert his eyes.

“Ladies and gentlemen, we will prove beyond any reasonable doubt that that man, the defendant, Carl Everett Arnsberg, murdered Terry Scarborough and that he did so in cold blood and with malice aforethought. Thank you.”

There is a sprinkling of applause from the audience. It is quickly gaveled down by the judge.

If Tuchio is grandstanding, he’s doing a bang-up job. As for the race card, there was never any question. It had to be played. From the beginning the state had a problem. They needed a motive for the crime. Thanks to Scarborough, they picked the only one seemingly available, the one that screamed out at them from everything Scarborough said and wrote, the motive that would fire the fury of any reasonable juror to believe that Terry Scarborough died at the hands of a crazed bigot.

Let them chew on that one for the weekend.

S
aturday morning, and the small Craftsman bungalow on Coronado, the place I call home, seems cold and empty. My daughter, Sarah, is gone, off to college in Colorado. It’s been almost two years now. Still I miss her, the quiet talks we once had, the animated chatter of her friends when they came to visit, the late-night runs for pizza, teenagers sprawled on the sofa and chairs of my living room talking and laughing. They would take over the house, and I would head upstairs, listening to the muffled music of their voices down below. I miss it all.

This morning there is no clatter of dishes, no smell of pancakes on the griddle. These days breakfast alone is a little fruit, maybe a piece of toast if I’m in the mood, and call it good. My doctor may be happier. I’m not sure I am. I can’t remember the last time I made a full pot of coffee or cooked anything outside the microwave. Now my coffee comes either from the little single-cup French press on the counter or from one of the kiosks that seem to sprout like poppies all over town.

Once in a while, I will run into one of Sarah’s old high-school friends at the village grocery or window-shopping the boutiques on Orange Avenue. When asked how she’s doing, I will say fine, and she is, blossoming, becoming her own person, spreading her wings, new friends and horizons. I talk with Sarah on the phone every few days, more often if I can get her to answer her cell. She comes home every summer, at least for now. I see her at Christmas and Thanksgiving and
whenever I can tear myself away for a weekend in the Rockies. The rest of the time I spend learning the emotional dimensions of the empty-nest syndrome, what it is to be alone. Friends tell me I will get used to this.

This morning I pad around the cold confines of my house in slippers and a robe, carrying the morning paper in one hand, a cup of coffee in the other. I plop down in one of the chairs facing the television and click the set on with the remote. This has become my Saturday-morning ritual, one hour of all the bad news I can handle.

The screen flickers on, goes silent for an instant, and then the sound comes on: “You know, I think Paul Madriani is probably a very good local criminal defense attorney. I certainly have nothing against him.” It’s lawyers’ hour, as if that ever ends on one of the cable news channels. A gal wearing some red lace frock outfit—all that’s missing is a peacock feather in her hair. I’ve seen her before. She’s one of the regular electronic legal mouthpieces. “What this case needs is someone with national credentials, somebody who can put together a kind of racial political dream team.”

“I agree entirely with Gladys.” Some guy claws his way onto the screen, bow tie and preppy sport coat. “Otherwise his client is going to get steamrolled. I can tell you right now that in this case the state is gunning for bear. They know what happened in O.J. It was a career killer for those who prosecuted. They’re not going to make that mistake again.”

I turn to the front page of the newspaper, another bombing in Baghdad, trouble with Iran—who could have guessed? The kicker at the top of the paper tells me the dollar is sliding again. Pretty soon we’ll have to use pesos to stay ahead of inflation.

I open the paper hoping maybe things will get better inside. Page two, there’s a three-column picture of the melee in front of the courthouse yesterday morning. The reporting seems to cover the brawl outside more than the events inside, which for us is just fine. The story spends only four ’graphs recapping Tuchio’s opening statement, though they hit the high points, a summary of all the damaging evidence the state promises to present and of course the erroneous interpretation that the state has witnesses who will testify that Arnsberg threatened Scarborough’s life.

I continue reading. Next page a headline at the top:
DEMOCRATS AT WAR WITH THE WHITE HOUSE
.

I read on. The District of Columbia circuit court is seen as the incubator and launching pad for future appointments to the Supreme Court. The story explains that the high court has been evenly split along party lines for more than a decade. It talks about some of the hot-button issues, abortion and the death penalty. Whether the Court should be urged by Congress to more clearly define the war powers of the president. Whether government should be allowed to intercept private e-mails without a warrant. Whether citizens should continue to be allowed to own and possess firearms. The list goes on.

I have a letter out to Ginnis’s chambers at the Supreme Court and have left a telephone message. I’ve asked him to contact me and introduced myself as defense counsel in the Scarborough murder case. I have not mentioned the Jefferson Letter or asked any specific questions, only made a request that we speak. So far I have received no reply. I turn back to the article.

I close up the paper and put it to the side. There is no rocket science in this. The federal courts are untouchable. The framers of the Constitution made them that way. Where else could a beverage company take your house for a new bottling plant and have the elevated minds of the high court define this as a public purpose under the eminent-domain powers of the Constitution?

One federal appellate circuit occasionally goes off on a wobble so erratic and out of conformity, not only with precedent but with strictures of ordinary reason, that at times it has been referred to quietly by some who practice before it as the “Ninth Circus.”