Shadow of Power (34 page)

She looks directly at the jury once more. “What I’m telling you is what I saw, all of it, everything, nothing added and nothing taken away. It is the truth.” She says this with an earnestness and a fire in her eyes.

When she turns back to him, Tuchio just stands there. For at least six or seven seconds, there is nothing but silence. Then he asks, “Are you finished?”

“Yes.” She looks at him, one of those drop-dead expressions that only a woman can give you.

“I wasn’t sure,” he says. “Let me ask you another question,” he says. “Did Mr. Madriani prepare you for your testimony here today? Did you spend any time talking with him about it, discussing it?”

“We did.”

“How much time?” he says.

“An hour, maybe a little more.”

“And Mr. Hinds, let’s not leave out Mr. Hinds. Did you spend any time with him preparing for your appearance here in court?”

“Some,” she says.

“How much?”

“About two hours.”

“Was that together with Mr. Madriani or separate?” he says.

“Part of it was together with both of them. Part of it was separate.”

“And where and when did this take place, this preparation?” Tuchio makes it sound like a four-letter word.

“In the office, last night and the night before.”

“So it was all very recent?” he says.

“Yes.”

“Well, I guess that makes sense,” he says. “After all, there wasn’t much time to prepare this whole thing, the mystery missive, and the little hairs being dropped on everyone so late and so suddenly,” he says.

“Is there a question in any of that?” says Quinn.

“I was about to frame one, Your Honor.”

“Then get on with it.”

“When this envelope was opened by Mr. Madriani in his office that day, Monday, I believe you testified that there were four people present in the room, is that correct?”

“Yes.”

“Mr. Madriani, Mr. Hinds, yourself, and Mr. Diggs, is that right?”

“That’s right.”

“Now, I can understand why Mr. Madriani can’t take the stand to testify. He is counsel in the case, as well as is Mr. Hinds. But did they tell you why you were selected to come here and tell us this
story
?” Tuchio would use the word “fable,” but the judge would jump on him.

“First of all, they didn’t tell me to do it. They asked me, and I said yes.”

“So you were anxious to come here today and testify?”

“No. I can’t say I’m enjoying the experience,” she says.

Some of the members of the jury laugh.

“But if that’s the case, why are you here instead of Mr. Diggs? He saw the same things you did, didn’t he?”

“Not exactly,” she says. “Mr. Diggs didn’t find the envelope on the floor. I’m not a lawyer,” she says, “but I didn’t think he could testify to that. Could he?”

Quinn’s chuckling up on the bench, and then he whispers, “You may not be a lawyer, but you’re doing fine.” He looks at the court reporter and wags a finger. He doesn’t want the comment on the record.

“Well, other than the economy of witnesses,” says Tuchio, “was there any other reason Mr. Diggs couldn’t testify here today? I mean, you certainly could have taken the stand and told the jury how you found the envelope, but the rest of it, why not use Mr. Diggs?”

“Why bother, since I’m here already?” she says.

“Mr. Diggs is the African American investigator in your office, isn’t he?”

“That’s correct.”

“Well, wouldn’t it be more natural for an investigator—who sees things, investigates matters, and I assume who testifies regularly in court—to appear here today to tell us what he saw rather than a paralegal? And believe me,” he adds, “I’m not trying to denigrate what you do for a living. We have paralegals in our office, and without them we couldn’t survive. But why you and not the investigator, that’s what I want to know.”

“I don’t know,” she says. “Maybe he was busy.”

“Ah,” he says. “Too busy to testify in the biggest case in their office?” He looks over at our table, then back to the jury box.

“I don’t know,” she says. “All I know is that they asked me if I was willing to do it, and I said yes.”

“Is it possible that they—by ‘they’ I mean Mr. Madriani and Mr. Hinds—may have asked Mr. Diggs to testify here today and that Mr. Diggs declined?”

“What would make you think that?” she says.

“I get to ask the questions. You get to answer them,” says Tuchio. “Is it possible that Mr. Diggs declined to testify?”

“No,” she says.

“Do you know that to be a fact?” he asks.

“Well, no, I don’t know it, but I know Herman—”

“So you haven’t discussed this with Mr. Diggs, whether they asked him to testify here today and what he may have said?”

“No. We’ve been busy,” she says.

Tuchio can be sure that this was a tactical decision made by Harry
and me. He could also be certain that we wouldn’t share the rationale for this decision with Jennifer, for the very reason that if he asked her on the stand as he has, she would be able to say truthfully that she didn’t know why she was here instead of Herman. Why force your witness to tell jurors to their face that you’re trying to manipulate them?

Besides the fact that she discovered the envelope on the floor, something Herman couldn’t testify to, is the simple fact that with a majority of women on the jury, she is the sympathetic witness, a woman on the stand testifying before women on the jury. Tuchio would have to use more restraint in the manner in which he attacked her on cross.

So now he feels free to damage us in other ways, planting the false seed, the innuendo, that perhaps Herman knew something, maybe about the way in which the letter and the hairs arrived at our office, and that therefore he either declined or was not permitted by Harry and me to testify.

When I look over, Harry is already working his cell phone under the table, sending a text message to Herman, telling him to come on over and join the party.

“Since you’re not sure about the answer to that one, let me ask another question,” says Tuchio. “When Mr. Madriani opened the envelope on his desk that morning—Monday, I believe—I think you testified that he pulled the bloody letter out of the envelope with a large pair of tweezers, not his hand, is that correct?”

“That’s right.”

“Why did he do this?”

Jennifer gives him a quizzical look. “I don’t understand the question.”

“What I mean is, when you open an envelope, don’t you usually just reach in and take out whatever’s inside? I mean, unless you think there’s a bomb, or a snake, or a bloody letter in there, why would you go and get a pair of forceps before you even reached inside with your hand?”

“I think I testified that he did reach inside,” she says.

“But he didn’t take it out, not with his hand, did he?”

Jennifer hesitates.

“Did he?” he says. Tuchio knows I didn’t, because my prints were not on the letter when the crime lab examined it.

“No. I think he may—”

“You’ve answered the question,” he says. “The answer is no. So let me ask you a different question.” He’s starting to get into a rhythm. “I know you’re not a lawyer,” he says. “But you have worked on this case, right?”

“To some extent.”

“You know what it’s about, most of the evidence, right?”

“Some of it.”

“Well, you know about the mysterious missing item?” As he says this, Tuchio turns and looks back at me.

When she doesn’t answer, he looks back to her. “The bloody letter?” he clarifies it for her.

“Yes.”

“And the hair evidence, the strands of hair in the bathroom and on the chair at the scene.”

“I know what I’ve read in the papers,” she says. Jennifer’s getting cautious now.

“That would be enough,” he says. “If someone wanted to plant evidence—say, slip it under a lawyer’s door, an item that was taken from the scene of a murder in order to show that the person who was charged didn’t do the crime, and let’s say there was evidence, clear, conclusive evidence that the defendant had in fact been at the scene of the crime—wouldn’t that present a problem?”

“I guess I’m not following,” says Jennifer.

“What I mean is, if we know that the defendant was at the scene and that the item was taken from the scene, doesn’t it stand to reason that the defendant could have taken it in the first place, and if so, how does that clear him?”

“I’m going to object, Your Honor. Hypothetical questions. Counsel is asking the witness to speculate. She’s not a lawyer. She’s not a crime-scene-reconstruction expert.”

“No, but she is here testifying as to how the envelope arrived at their office. The question doesn’t go to her expertise, it goes to credibility. If she doesn’t understand what may be happening here, then maybe she’s in the clear.”

What Tuchio is saying is maybe Jennifer thinks she is telling the truth and that she’s being used, on the stand, for this reason.

“Overruled,” says Quinn. “I’ll allow it.”

Tuchio restates the question without mentioning names. How could Carl be exonerated, cleared by the sudden and mysterious appearance of an item that was at the scene, when we know that Carl was at the scene?

“Well, if he didn’t have the item when he was arrested and he’s been in jail, how could he—”

“Deliver the item to your office?” Tuchio finishes the question for her. “Easy. He could have handed it off to someone else. A friend, a family member, a
lawyer,
” he says.

Jennifer shakes her head. “No. No…no.”

“How would you know?” he says. “Are you familiar with every item, every scrap of paper, every scintilla and wisp of evidence in the files at your office? Do you know what’s in everybody’s desk drawers or for that matter what they might have in their possession outside of the office?”

“How could I?” she says. “That’s not possible.”

Harry is leaning back in his chair, running his hands through his hair, trying to catch her attention, get her to take a deep breath and to stop.

“My point exactly. All you actually know is what you’ve seen. Isn’t that so?”

“That’s all anybody knows,” she says.

“Precisely.”

“No,” she says. “That can’t…no. And what about the hair?” she says.

I glance over, and Harry rolls his eyes.

“Ah, now we get to the nub,” he says. “The hair, isn’t that convenient?”

She looks at him but doesn’t answer.

“I mean, once you realize that simply producing the item taken from the scene isn’t going to do the trick, that you need something more, isn’t it convenient that this something more, whatever it is, just happens to be in the same envelope?”

She doesn’t answer.

“Well, isn’t it? Convenient, I mean?”

“I don’t know,” she says.

“Well then, let me ask you one final question. Who stands to benefit the most from the items in the envelope that were slipped under your office door in the middle of the night? That should be an easy one,” he says.

She looks at him.

“Come on now, isn’t the answer obvious? Who else could possibly benefit? It’s the defendant, Carl Arnsberg, Mr. Madriani’s client, isn’t it?”

“I don’t know.”

“You don’t know?” His voice goes up a full octave from the first word to the last.

“I suppose,” she says.

“You suppose?”

“Yes.”

T
he next day, to avoid the media crush downstairs, Quinn allows Harry and me to slip out for lunch using the elevator reserved for judges and high court personnel, located in a back corridor behind chambers.

Jennifer’s testimony regarding the package slipped under our door has resparked the electronic media’s attention gap. Secrecy, “the bloody letter” wrapped in a possible scandal, how it turned up in our office—it now has them salivating.

By the time Harry, Herman, and I meet up at the pub downtown for lunch, news updates from the trial are going head-to-head with primary election returns.

We are seated at a table scarfing sandwiches, watching election numbers on Fox News on the television over the bar. We are eating fast, trying to clue Herman in on Jennifer’s testimony and Tuchio’s insinuation that for some reason we were keeping Herman out of court because he knew something about the envelope under the door.

“They’re saying I did it. Put it under the door?”

“They can’t be that stupid,” says Harry. “By now the cops have to know that you were in Curaçao with us.”

“Tuchio’s trying to throw up smoke,” I tell him.

“There is breaking news…. A report from San Diego and the Scarborough murder trial in just a moment. Are…are we ready? Okay, Howard, are you there?”

I ask the bartender to turn up the sound so we can hear it.

Harry gives me a sideways glance. “If we could just take out the part about the state bar investigation, maybe we get a copy of that and see if Quinn will let us put it in front of the jury. I mean, it doesn’t have Ginnis’s face in it, and it only mentions his name once.”

Considering that the jurors are corralled in the courtroom in the daytime and locked up in a hotel all night with the television unplugged, the cable disconnected, and an armed guard outside their door, I’d take bets they aren’t watching cable news.

It’s the problem we’re having. Before we’re finished, everybody in the world is going to know about the Jefferson Letter and the Ginnis connection, except for the people who count—Carl’s jury.

In the afternoon Harry and I bring Herman to the stand.

In rapid order I have Herman verify and corroborate Jennifer’s earlier
recollections, her testimony regarding the opening of the manila envelope in my office, and the processing of its contents.

Because we have not prepared Herman, there are a few discrepancies based on his memory of events. His testimony is a little ragged around the edges. But if anything this seems to work to our advantage. It sounds believable, unrehearsed, because it is. Herman uses different words than Jennifer did to describe things. He talks about “forceps” instead of “large tweezers.”

Best of all, Herman does not try to fill in what he doesn’t know: how it came to pass that I saw the letter inside the envelope and therefore avoided touching it with my hand. When I ask him this, he says he doesn’t remember.

But he does remember seeing the look on my face. “At that moment,” says Herman, “I thought there might be something dangerous in the envelope, because of the way you looked at it and the way you moved.”

“So what were you thinking at that moment?”

“If you wanna know the truth, I was thinking it might be a letter bomb,” says Herman. “It does happen. Happened to a lawyer in Atlanta last year,” he tells the jury.

If we had warned Herman about Tuchio’s pitch to the jury, that I avoided touching the letter because I already knew it was there, you get into problems. You could end up inspiring a witness to “remember” trivial details of things that never happened. Some people just want to help. But when it comes to details and the magnetic ability of the human mind to remember, there are limits to what a jury will believe. Anxiety over a possible bomb in a letter is not a problem.

Then I take him to the point, the reason he’s here. “Before this morning did I or Mr. Hinds or anyone else in our office ever ask you to testify in these regards?”

“No. Not until Mr. Hinds contacted me this morning.”

“Is there any reason why you might not want to testify regarding the manila envelope and the contents and how it was opened in my office?”

“No.”

“So if someone were to tell the jury that you had been asked previously by Mr. Hinds or myself to testify in these regards, and they told
the jury that you declined to do so, for some secret or unstated reason or for any reason, what would you say to that?”

“I would say they either didn’t know what they were talking about or they were lying,” says Herman. He looks at the jury. “It’s not true.”

Then I nail the lid on this coffin, asking Herman if he has any information or knowledge as to who might have slipped the evidence, the manila envelope, under our office door.

He shakes his head. “Not a clue,” he says.

“Do you have any knowledge as to why they might have done it?”

“No.”

I move to the evidence cart and lift the plastic sealed envelope, the folded letter, and the small bag so that Herman and the jury can see them. Quinn has them identified for the record.

“And to make clear to the jury, have you ever seen any of these items, or any of the evidence contained in them, before last Monday morning when I opened the contents of this envelope on the desk in my office?”

“No, sir. First time I saw any of that was after you opened that envelope.”

“Your witness.”

Tuchio tries to take Herman for the ride he took with Jennifer earlier in the day, over the same falls. That Herman knows only what he has seen and heard from Harry and me, and then the question: How can he be sure that he is not being badly used here in court today?

Herman looks the prosecutor in the eye. “I don’t understand the question,” says Herman. “So why don’t you just say what you mean? Get it on the table,” says Herman.

“Fine,” says Tuchio. “How do you know that the evidence in that envelope wasn’t put there by one of the lawyers in your own office, or by someone associated with or related to the defendant, Mr. Arnsberg?”

“Because I have known Mr. Madriani and Mr. Hinds for years, and I know that neither of them would ever do such a thing, that’s how I know.”

“But what you’re saying is based on faith,” says Tuchio, “not fact. You believe they wouldn’t do it, but you don’t know that?”

“Are you asking me?”

“Yes.”

“
I
know it. Maybe
you
don’t,” says Herman.

The jury laughs.

“I’ll have to ask you to forgive my natural cynicism,” says Tuchio. “It comes from years of prosecuting cases.”

“That’s all right, I forgive you,” says Herman.

A little laughter from the audience and more from the jury box.

Tuchio steps away from the witness. He ponders for a moment, and when he stops, he ends up at the evidence cart. He returns to the witness. He is now holding the clear plastic bag containing the Jefferson Letter. He holds it up, and he asks Herman, “Do you know what this is?”

Herman nods. “Yeah. It’s the pages that Mr. Madriani took out of that envelope on Monday morning.”

“That’s not my question. My question is, do you know what the document is?”

“I know what it’s called,” says Herman.

“Objection, Your Honor.”

“I haven’t asked a question yet,” says Tuchio.

“Ask your question,” says the judge.

“If you know, can you please tell the jury what this document is called?”

“Objection. Exceeds the scope of direct, Your Honor.”

“Sustained,” says Quinn.

One of the rules of the road on cross-examination, a lawyer cannot ask questions that go beyond the bounds of the subject matter raised by his opponent during direct examination of the witness. Since I have not asked Herman or any other witness to tell the jury what the letter is called or to disclose any of its contents, Tuchio cannot simply pull this question out of his hand and play it like a trump card on cross.

He puts the bag with the letter down on a table near the witness. Herman glances at it, the item for which we have laid a quest for months, and Herman still doesn’t know what it says. He has hinted a few times that his curiosity is burning. But Herman says he understands. He is confident there must be good reasons Harry and I are keeping the con
tents of the letter to ourselves. Still, it would take the spirit of a saint not to feel like the odd man out after all we’ve been through.

Then Tuchio edges into whether Herman feels awkward testifying on behalf of a defendant, a client with the kinds of associations of Carl Arnsberg, “the Aryan Posse,” he says.

“I do my job,” says Herman. “That’s what it means to be professional.”

“But it doesn’t bother you? You never think about that.”

“No.”

This doesn’t work, so Tuchio goes back to basics.

“You say Mr. Madriani and Mr. Hinds wouldn’t be responsible for putting that envelope under the door, but what about Mr. Arnsberg? What about the defendant?”

Herman looks at Carl. “You’re asking me my opinion?”

“Sure.”

“I don’t think he would do it either.”

What else can Herman say?

“To save his life, you don’t think Mr. Arnsberg would have a friend or a relative—let’s leave Mr. Madriani and Mr. Hinds out of it—”

“Thanks for the courtesy,” says Harry.

The jury laughs.

“Not at all,” says Tuchio.

He turns back to the witness. “You don’t think that to save his own life, Mr. Arnsberg would have a friend, someone he knows, slide that envelope and the contents under his lawyers’ door? Is that what you’re telling this jury?”

“If you’re asking me my opinion, my answer is no, I don’t.”

Whether the jury will believe this, who knows? But the fact that Herman would say it, knowing Carl’s native inclinations and his prior associations…And then suddenly, with this thought halfway through the cortex of my brain, I realize where Tuchio is going.

“Would you tell the jury what that opinion is based on? Your considerable opinion of Mr. Arnsberg?”

“Your Honor, I’m going to object. This exceeds the scope of direct. The witness is not here as a character witness. He’s here solely for the purpose of refuting the false implication raised by Mr. Tuchio that the
witness refused or declined to testify because he was supposed to have some secret knowledge about that envelope, which he does not.”

“Nah, nah, nah. Bring it up here,” says Quinn.

We end up at the side of the bench.

“Your Honor, this witness was brought in here for a very narrow purpose, and Mr. Tuchio knows it. If he wants to cross-examine the witness as to what he saw in the office that day, the day the envelope was opened, fine, but getting into the defendant’s character is way off base.”

“The witness is on the stand,” says Tuchio. “He’s testified as to what he says he saw when the envelope was opened. He claims he never saw any of it before. Now he says he doesn’t believe that Mr. Arnsberg would have anything to do with slipping it under the door or having friends do it. That’s all fair game,” he says. “And I have the right to test the witness’s credibility, Your Honor.”

“Objection overruled,” says Quinn.