Shadow of Power (4 page)

To listen to the media, Arnsberg didn’t kill a person of color. He did something worse. He killed their self-appointed messenger, in this case a lawyer, author, and celebrity, all the ingredients to whip up a hot story, except for sex, and they’re relying on innuendo for that one. The media mavens are now calling the case the “San Diego Slavery Slaying,” and they’re camped all over it, 24/7.

“I talked to my dad. He says you can get me off.” This the kid directs at me.

“We’ll do whatever we can. But there are no guarantees. We can’t do anything unless we know everything. That means everything
you
know. If you withhold information from us, even something you might not think is important…then you’re just wasting our time. You can bet the cops will find out about it—that is, if they don’t already know—and when they start dropping surprises on us in court, there will be nothing I or anyone else can do to help you. Understand?”

He swallows, then nods, not something hip or cool, but vigorous, like someone who suddenly realizes that the threads of security, whatever it is that tethers him to this life, are far thinner than he ever realized. “Yeah. I told you everything I know. Really,” he says. “I didn’t do it. I swear.”

“All right.” We lecture him on jailhouse etiquette, not to talk to anyone—guards, cellmates, even family—about events in the case. Anything told to them can be repeated in testimony on the stand. Even family members can be forced to testify against him. “You talk only to us, Harry or myself, that’s it.”

“Somebody in the jail wants to talk about the weather, fine. Sports, feel free. But anything having to do with your case, with Scarborough, with race relations in general, you’re a mute,” says Harry. “If you have to, swallow your tongue. If we’re in trial and somebody asks how it went in court, you don’t know.”

“I understand,” he says. “I talk to nobody. Only the two of you.”

“And your buddies, the ones you may have talked to before the event, don’t talk to them at all,” says Harry. “As far as you’re concerned, they don’t exist. If they come visiting during hours, you don’t want to see them, and you don’t want to be seen talking to them.”

“What do I tell them?”

“You don’t tell them anything. If they call the jail and want to talk to you, you don’t take the call. If they show up in the visiting room and you see them, you don’t sit down. You turn and you walk. Anything you tell them can be used against you. It can be twisted for whatever reason and end up being your word against theirs as to what was said. Worse than that,” says Harry, “the cops may be listening in. Friends have been known to wear wires. Just figure that if any of these old friends show up to give you moral support, and you talk to them, you may as well have a heart-to-heart with the D.A., because you probably are.”

He nods nervously, in the stark realization that he is alone, a dying man in a desert, with only me and Harry to toss him the occasional drop of water.

Harry and I start collecting our papers and notes, the photos go back into my briefcase.

“I need to know one thing,” says Arnsberg.

“What’s that?” I ask.

“They aren’t serious? They don’t really wanna…well, you know…”

I stop with the briefcase and look at him. “No, I don’t.”

“I mean, they’re not gonna really execute me?” he says. “They’re sayin’ that just to put pressure. Right? They’re thinking squeeze hard enough and I’ll do a deal. That’s it, isn’t it? Sure. That’s gotta be it. Scare me and they figure I’ll confess, tell ’em I did something I didn’t do. I can understand that. I mean, I won’t do it. I mean, confess to something I didn’t do. But I understand it. It makes sense.” In half a second, his eyes flash from me to Harry and back again.

At this moment I wish his father were not my friend, that instead I was dealing with the child of a stranger, where my only psychic connection to the outcome would be just the blood that ordinarily oozes from my pores whenever I stand with a client to hear a verdict.

“Carl. I can call you Carl?”

He nods.

“Carl, I want you to understand this because you’ll save yourself a lot of pain if you get it into your head and come to grips with it now. The police, the D.A., the State of California are not testing the water here. They’re not playing
Let’s Make a Deal
. Given the case, the media hype, and racial politics, unless something major breaks our way, I can’t see that they would ever accept a deal, though if things get bad, we may have to go there before we’re finished. They’re doing this because they believe they have the evidence to convict you, send you to the death house at San Quentin, and inject enough lethal drugs into your body to kill you. I wish I could tell you it wasn’t true, but if they have their way, that is exactly what they intend to do.”

It’s hard to tell whether he even hears all this. His face looking up at me is that flushed. A second later the breath seems to leave his body as his shoulders slump and he sags in the chair. His head is down. The nightmare is real. He begins to tear up, then sucks it all back in a boyish effort to keep his nose from running. He wipes his eyes with the back of his forearm, the one decorated with the swastika. Carl Arnsberg may be twenty-three and halfway to becoming a hard-baked race case, but at this moment I would gauge his social age to be no more than ten, with the hardness quotient of his heart somewhere in the neighborhood of hot Jell-O.

“I don’t know what happened. I guess it’s my fault. Somehow I lost touch with him. You know how hard it is to raise kids.”

Sam Arnsberg is a friend of long standing. We went to college together, belonged to the same fraternity, dated some of the same girls.

Today, seated in one of the client chairs across from my desk, Sam doesn’t even look like the same person I once knew. But for certain aspects of terminal cancer, there is nothing I can think of in life that will destroy a person faster than the perils of dealing with the American judicial system. Even mired in the middle of it as I am, I cannot imagine what Sam is going through, a child facing a possible death sentence.

“Maybe you should find someone else to do this,” I tell him.

“No! I trust you. I have faith in you.” He says it as if he were reaching
out to grasp one of those life rings they toss from a passing ship to a man who is drowning.

“Maybe a little too much faith,” I tell him. “I never knew your son as a child. And you and I may be a little too close. Sometimes it can cloud judgment,” I tell him.

Over the years since college, Sam and I stayed in contact, first by phone and letters and later with e-mail. We exchanged stories of family life. When Nikki died, Sam came out to California and spent almost a week helping me to pick up the pieces of my life. During later years he became an important voice on the phone, one of the few people with whom I could share intimate thoughts.

“I know it’s bad,” he says.

“I would be lying if I told you it wasn’t. There’s a lot of evidence. Almost none of it, as far as I can see, is going to be good for Carl.”

“Let me guess what’s bothering you. You’re afraid that if you lose, if Carl dies, I’ll blame you, that we won’t be able to look each other in the eye again. Won’t happen,” he says.

“What? I won’t lose?”

“No. If Carl dies, there is only one person to blame, and that’s my boy. Will you do it? Will you take the case?”

Sam has been to two other lawyers already, both of them major criminal-defense hotshots, people to whom I referred him when he first came to me. Whether it was the evidence in the case or the racial hot wires attached to it, neither of them would touch it.

Sam could step away. His son is an indigent, eligible for the services of the public defender. But he doesn’t want to do that.

“All right. Let me talk to my partner, but I’m sure he’ll go along.” I know Harry well enough to know that he will, though he will chew my ass raw and reserve the right to do so again the first minute the case goes sour.

Sam smiles as a tear runs down his face from out of the corner of his eye. Like father, like son.

“Why did he run?” asks Sam. “Did he tell you?”

“I suppose because he was afraid.”

“Did he say—”

“Stop!”

He looks at me.

“You’re his dad. You and I are friends. It’s going to be hard, but there are going to be things that I will not be able to share with you. Most of the things that Carl tells me, lawyer-client, I cannot tell anyone else, including you.”

“I understand. But I have to know. One thing.”

“What’s that?”

“From what you know, did he do it? Did he kill that man?”

“If you mean did he confess, did he make any admission, the answer is no. He maintains his innocence.”

“Thank God,” he says, heaving a long sigh as he looks up at the ceiling. “You know, I don’t know what got into him. All this stuff. The tattoos, his friends. Where did he get all that? We didn’t raise him to be that way.”

I shake my head.

“We used to play baseball together. I coached his Little League team. Babe Ruth when he was older. We played catch. He used to pitch to me.” He looks down at the desk, his eyes tearing up again as he thinks back. “When he was small, he thought he might play in the big leagues someday. The dreams kids have,” says Sam. “Then I looked up, and he was gone. Now this.”

At seventeen, after an argument with his father, Carl dropped out of school, moved out of the house, and began to drift. It was the last real contact his family had with him.

Sandra is Sam’s wife of nearly thirty years. They have two older children, a daughter, Susan, who is in grad school and a son, James, who is married with children and works with his dad in the family business, a small insurance agency.

“Susan’s talking about dropping out of school,” he says. “She’s enrolled at Columbia. It’s gonna be tough. Tough.” I know he’s talking about finances. “She’s a smart kid.”

“Yes.”

“It’s hard. It’s on the news, twenty-four hours a day. Her brother’s name, his picture, lawyers and judges—they call them experts—all speculating on things they don’t know. Susie has friends at school, but she’s having a hard time. She says she’ll just drop out for a while and go back later. But I don’t want her to. It’s enough that it destroys Sandy and
me. I don’t want it to affect the other kids. They have their own lives. Besides, it’s not like she can hide at home. These people are camped outside our house,” he says, “trucks with satellite dishes, people with cameras, microphones, lights. The middle of the night, they light up your bedroom. They chased Sandy down the driveway of her own home. Her own home,” he says.

“I saw it on TV,” I tell him, half a minute of tape showing his wife rolling out the trash, fending off questions and dodging boom mikes. Film of this from different angles tumbled through the news cycle on each of the cable networks every fifteen minutes for two days. “Breaking news” is now anything on videotape that can be used to punctuate the ever-rising flood of ads. Every story, no matter what or where, is now national in scope. Johnny has a fight with Jimmy in the third grade, and the whole country is told about it by breathless “reporters” hanging from news choppers hovering over the school. Park a police car by a building and call in a rumor, and whatever you say will be broadcast around the world twice before you can hang up. Unless you knew better, you might swear that Chicken Little has taken over the newsroom and bolted the door. Hyping hysteria and peddling panic around the clock is now an enterprise listed on the Dow Jones ticker. And everybody watches, anxiety junkies cruising for another hit, just in case there’s some real news. After all, another 9/11 could happen, and we might miss it.

“Anything else you need from me?” Sam asks, then slaps his head. “Of course there is. Let me write you a check.”

“Listen, we’ll talk about it later,” I tell him. “I’ve got another meeting, and I’m running late.”

“Sorry. I shouldn’t be taking up so much of your time.”

“If not you, then who?” I walk him to the door.

He turns, squeezes my arm at the shoulder. “Thanks.”

“Try not to worry.”

He nods and is out the door. Gone.

I close the door behind him. I have no appointment. But I couldn’t think of any graceful way to stop Sam from talking about money. The fees and costs in a case like this will bankrupt even an upper-income family. Welcome to the justice system.

I
t is an axiom of criminal defense that a good lawyer must know his victim at least as well as he knows his own client. To that end, Harry and I are huddled this morning in the conference room at our law office on Coronado Island near San Diego.

Even before the picture appears on the screen, I can visualize his image and facial expressions. Terrance Scarborough is sufficiently familiar to anyone who has ever heard the word “law” that you could say he has the kind of recognition that Washington has on the dollar bill. Scarborough has been the ultimate media monger for more than a decade, on constant call as a legal expert for any network or cable channel that would have him. Set up a camera with a red light and Scarborough would cut a swath through humanity to get to it.

It is rumored that instead of legal briefs he carried only a clean shirt, a tie, and some Pan-Cake makeup in his briefcase. He had racked enough frequent-flier miles on trips between the networks in New York and CNN in Atlanta that he could fly to the moon for free.

Although he was an adjunct professor of law at Georgetown, I have yet to find anyone who took a class from Scarborough. While technically on faculty, he spent his time writing treatises on radical social theories. Like Mao, he seemed to be working on his own Little Red Book, anything to inspire discontent and class strife.

He garnered enough traction to generate a fair amount of social
heat, and along the way he made himself a staple of television’s cable age. Without question, Scarborough had a messianic need to be the constant center of attention. According to Harry, he has now achieved that ultimate goal, posthumously, and, if I am reading my partner correctly, deservedly. So meager is Harry’s sympathy for Scarborough that I have been left to wonder a few times whether Harry’s hammer is missing from his own toolbox.

Scarborough’s motives, like most things in life, are a question of perception. It was Benjamin Franklin who is reputed to have said that “revolution in the first person is never illegal, as in ‘our revolution.’ It is only in the second person, ‘their revolution,’ that it becomes illegal.” Perspective, being a fine line, involves walking in the shoes of another. Yesterday’s demagogue is tomorrow’s committed leader when his message begins to resonate with the public—and so becomes elevated to today’s political martyr when he is murdered.

We have gathered a number of recent news video clips from an online clipping service and had them burned onto a DVD.

As Scarborough’s image flickers on the screen, it is impossible to deny that he possessed a certain charisma. Six-one and slender, so that dark power suits hung well from his body. Everything about him lent an edge of authority to his argument, from his emerald eyes and sculpted cheekbones to the dapper cleft in his chin. If you turned down the sound and just looked, you might see vestiges of Cary Grant, until you listened to the words.

“What is so insidious, so sinister, is the way in which the nation’s Founding Fathers, people like Madison, Franklin, and Adams, concealed the words of slavery from the public and from history. They slipped the offending language into the Constitution, where it slithered like a hidden serpent through their grand experiment in Democracy,” says Scarborough. “And to this day no one has seen fit to remove those words.

“You can complain about the Bolshevik Revolution and its failure to deliver,” he says. “But there is no deal in history dirtier and more deceptive than the inclusion of slavery in the United States Constitution. What is worse, these offending words are still there, for all to see, there in the organic law of this nation. They may be dead-letter law, no longer
enforceable, but they are still visible, AND THEY ARE STILL OFFENSIVE!”

This is the point of Scarborough’s thesis: the manner in which the Constitution is amended. The video we are watching is from a speech he gave in the weeks before he was killed. It was delivered at a university near Chicago while he was on tour for his book
Perpetual Slaves.
The audience is mostly young, many of them black.

“If you don’t believe that the old Rebel flag of the defeated Confederacy should be hanging outside in front of state capitols in this nation, just beneath the Stars and Stripes, then how is it that the language of slavery should remain visible in the United States Constitution? Is there a different standard for the federal government?” he asks.

“What is so intellectually dishonest is that these ‘great men,’ the minds of the American enlightenment—Adams, Franklin, Madison, and others—dodged the use of plain language when it came to concealing slavery. And nothing has changed. The leaders of this nation continue to dodge it today.

“Look, search, and you will not find the words ‘slave’ or ‘slavery’ anywhere in the Constitution. No, they insult the descendants of slaves, and the national government has seen fit to continue to allow these to exist in print to this very day.

“Look at the infamous fugitive-slave clause, Article Four, Section Two, of the Constitution. This was the cardinal law of slavery crafted at the birth of the nation, the provision that crushed even the shadow of a dream of freedom for African slaves. And did it use the words ‘slave’ or ‘slavery’? No, of course not.

“It uses the euphemism ‘No person held to service or labor’ who escaped to a free state was to be freed. Why? Because the Constitution at its inception says that they should be dragged back and delivered up not to their ‘masters’ or ‘owners’ but to ‘the party to whom service or labor may be due.’

“And have these words been removed from the Constitution?” Scarborough puts a hand up to his ear and listens.

Some in the audience shout, “NO!”

“That’s right. The language is still there, a monument to the guile and craftiness of the slave owners who crafted our Constitution.

“Read Article One, Section Two, the insidious three-fifths clause, and tell me what it means or, more important, WHY IT IS STILL THERE. The continued appearance of these words is a national offense, an insult to every African American walking on this continent.

“Historians know what it means, because they study it. Lawyers know what it means. The federal courts know what it means, because they enforced it. Congress knows what it means, because they passed the enabling statutes that allowed the institution of slavery to function. And Congress has done nothing in more than a hundred and fifty years, since the Civil War and the repeal of slavery by the Thirteenth Amendment, to remove the offending words from the Constitution. Members of Congress sit there and complain about the Dixie flag, and the states that fly it, while they have this
stink
on their own hands,” says Scarborough. He allows the fiery oratory to settle on the audience.

“In simple terms the three-fifths clause identifies all the classes of people in the United States at the time of its founding. They needed this for purposes of taxation and apportionment, the formula to determine the number of representatives each state would get in the new Congress.

“The clause identifies ‘free persons.’

“It identifies ‘Indians.’

“It identifies ‘those bound to service for a term of years,’ indentured servants and debtors working off their debts.

“And then, last
and certainly least,
the clause identifies ‘three-fifths of all other persons’ then remaining in the new United States of America.”

Scarborough allows this to settle for a moment.

“Now, who do you think these ‘other persons’ were? Who could they so conveniently and easily carve up into three-fifths of a human being, like a turkey on a platter?

“Who could it possibly be that these enlightened men of the founding generation were talking about?”

“African slaves!” The words are shouted by someone out in the audience.

“That’s right, African slaves. ‘Other people’ who weren’t treated as people at all, because they were owned by white Americans as property,
traded and sold like animals. They were being counted as three-fifths of a human being not so that they could vote for members of Congress but so that their owners, their white masters, could have the power of this franchise added to their own. White slave owners could increase the power of their own vote by buying more slaves. This was the incentive, the inducement carved into the cornerstone of the Constitution at the nation’s founding—AND THESE WORDS ARE STILL THERE!” Scarborough pounds on the podium with this, his theme. “Read the book,” he says.

The chant of “Take it out…Take it out…Take it out” starts to rumble through the audience.

He may be a writer, but Scarborough knows how to work an audience. He is a firebrand. Whether you like him or not, I would be willing to take bets that at this moment he is not pretending. This is an issue in which he clearly believes. He allows the chant to continue for twenty or thirty seconds before he cuts it off with his hands in the air.

“Read Article One, Section Nine, of the Constitution, where it says, ‘The migration or importation of SUCH PERSONS’”—he holds up his hand and shakes his finger to emphasize the words—“would not be prohibited by Congress but by the various states then existing. Were they talking about people who wanted to migrate here from Norway or France? NO! So who
were
they talking about?”

“African slaves!” Now it comes back automatically from the audience, more voices and much louder.

“Yes! They were talking about African slaves, using nice words like ‘imported,’ as if they were fine wine or cheese—human beings dragged here in chains, all at the will of the various states.

“Do you believe that these words should be removed from the Constitution and thrown into the dustbin of history?”

“YES!” A crushing chorus from the audience.

“WHEN?”

“NOW!” This is even louder. The speakers from the set we are watching vibrate under the strain.

“Everywhere you look, they concealed the dirty deal by avoiding the words. They wanted to traffic in SLAVES, all right, but they certainly didn’t want to say it, not so that the whole world and posterity would see
it in print. And if the avoidance of language is not evidence of their guilt, then I will produce it,” he says.

“The founders will tell you that they tried to end slavery but they were not able. STICK AROUND,” bellows Scarborough, “because I will tell you the truth. The sequel to this book”—he holds up
Perpetual Slaves
—“Volume Two, will end the myth of American history once and for all. I will tell you what really happened, why they avoided the words. What propelled their fear, their trepidation? You won’t find it in any history book,” he says. “So don’t bother looking.

“We are talking about a continuing national insult to more than twelve percent of the nation’s population, more than thirty-five million people, and about the absolute stone silence of the country’s leaders on this point. They run for office. They’re out there now on the stump, but ask them about this and they will dodge and weave and avoid the question. They will tell you that the Constitution is the province of the Supreme Court. They will tell you anything that avoids a commitment to take the words out—to remove the offending language.”

The chorus of “Take it out” starts again.

“Some of them will tell you, ‘NO, leave it there as a historic relic, as a reminder of what white masters did to their black slaves.’ But the permanent and enduring stigma of these words, the offense that they carry, is deep!” says Scarborough.

“Ask yourselves…ask yourselves why these ploys on language, these aging, offensive euphemisms, have not been removed? They will pull down the Confederate flag, but they won’t remove this from your own Constitution? It says ‘We the People,’ but the words remain offensive,” he says.

The chant starts up again, but Scarborough shouts over the top of it.

“Can they sweep it under the table as the founders did?”

“NO!” The entire audience is on its feet now, hands cupped to mouths, clenched fists pumping on the ends of raised arms.

“Because I will tell you something more. I will give you another document, a document that the world has never seen, a secret letter written in the hand not of
one
of the founders but
the
founder, confirming the darkest deal in American history. If you want to see the original
sin of slavery unmasked at its inception, evidenced in the handwritten words of God himself, then wait for the sequel,” says Scarborough.

Tumultuous cheers, diagonal blue lines across the screen, as the video ends.

Less than twenty-four hours after Scarborough’s speech, a rally in downtown Chicago, demanding action to remove the words of slavery from the Constitution, turned violent when police moved in and clashed with demonstrators.

The next day the national media picked up snippets of Scarborough’s speech, and like a trail of gunpowder, flashes of violent confrontation followed his book tour across the country as sales of the book exploded.

“My question is, how did the guy live so long?” says Harry. “If I talked like that, I’d have blown a fuse years ago. And how did he get so close to the Supreme Court?”

“Did he?”

“That’s certainly the image he projected,” says Harry. “The ultimate in-the-know Court watcher.”

“Maybe it was just that, an image,” I tell him.

Scarborough had argued a single case before the Supreme Court almost ten years ago now and won, not a landmark decision by any stretch. He had coupled this with an uncanny ability to hang on the social fringes of the Court and get his picture taken.

It was rumored in his earlier career that he coveted a spot on the Court for himself. However, given the passion of his politics and its public airing, he had little chance of being nominated and none whatever of being confirmed in the Senate. Some might argue that bitterness over this only drove him to further excess.

Harry and I look through a number of film clips, mostly interviews of Scarborough on his most recent book tour. The screen flickers between clips, and another face appears, a different venue this time.

“This is what I was telling you about,” says Harry. “This is Scarborough’s literary agent.” Harry looks at his notes. “Guy named Richard Bonguard.”