Shadow of Power

7

Upstairs, the walls of the main courthouse are decorated with pictures of the local worthies, mostly judges, some of them dating back to just this side of the California gold rush. Here the noise and commotion, the jostling of bodies, is different from in the lobby downstairs. Most of the lawyers, clerks, and courthouse staff seem to have some goal and direction, even if the cases they’re working do not.

There are two separate courthouses in this town, one civil and the other criminal, connected by a bridge that spans the street between them. And for all intents and purposes, it is the only thing that connects them.

It is just my view, but on the civil side it would require a peculiar wit to call it a justice system. Buried in mud over the axles twenty years ago, lawmakers threw up their hands and pushed everything on the civil side out of the courthouse door and into arbitration. This became the tollbooth you had to pass through to get back into the courthouse.

Once there, however, any claim, no matter how frivolous, often results in the defendant’s ponying up money rather than being bankrupted by years of litigation or facing the prospect of death by old age in a courtroom full of busy lawyers flinging pieces of paper around.

On any matter that even hints of the complex, it can take years to get through trial, followed by decades on appeal. On anything that is in fact complex, a lawyer can spend his entire career on that single case, and many have done so.

Businesses and corporations that make up the economic backbone of the state long ago opted out of the state’s civil court system, using instead mediation, binding arbitration, and in many cases private judges working for local firms to preside over the case and render a judgment-the businessman’s express toll highway to a quick and final decision. Just as with health care and medicine, no one can afford the high cost of government-administered justice any longer.

That is, except for the scions of the criminal courts. A private judge cannot send your client off to prison for a few lifetimes or direct others to stick a needle in his arm, transporting him out of this world. When they figure that one out, we’ll all be in trouble.

A female clerk sashays down the corridor past me, clicking heels on the hard floor, all to the accompaniment of the plastic badges she flashes on her chest. Living in the age of security as we do, badges are everywhere. Ubiquitous clip-ons for temporary visitors behind the scenes, a requirement if they wish to enter the inner sanctum of a judge’s chambers. There are more permanent hard laminated ones hanging from chains around the neck for seasoned staff. Some of these are worn two and three together or from multiple chains, emblems of status, an outward display of who can enter the sanctum sanctorum. If you can’t get a bump in salary, you can at least have another badge and, if you’re real good, a shiny new chain to go with it, something to dazzle friends and impress the public on cafeteria coffee breaks.

With plenty of time, I saunter down the hall past Departments 11 and 12. Off to the right, I see the sign over my destination’s door, DEPARTMENT 13, and wonder whether our assignment to this court portends something ominous.

The purpose of this morning’s gathering is an off-the-record meeting, under the guise of a pretrial conference, this so that the judge can lay down the law. Not the statutes printed in the codebooks or the case law handed down by the appellate courts, but the law from on high, the holy writ according to the Honorable Plato Quinn, whom we have drawn as trial judge in People v. Carl Arnsberg.

Of course, all of this is off calendar, away from the prying eyes of the press or notice to the public. If a trial is theater, you can consider these to be notes on stage direction: where you will stand and how you will comport yourself, how the judge’s word is final on everything, from what evidence will come before the jury to when you can empty your bladder and by how much.

The last two weeks, I have wheeled and dealed and burned a few bridges. In periodic gatherings with the presiding judge of the superior court and the county’s public defender, what gentlemen might call meetings to those of us present became a desperate game of financial chicken.

I have known from the beginning that Sam Arnsberg’s savings, plus what he earns selling insurance, would never come close to covering the fees, let alone the monstrous costs, in this case.

His son, Carl, qualifies as an indigent, public-defender bait. The problem was to convince the public defender that he didn’t want the case and that there were at least arguable legal grounds for him and his office to bug out. The bigger problem was to convince the court to go along with this, to officially declare Arnsberg an indigent and to appoint me to represent him at public expense.

The public defender already had enough cases stacked up against the walls in his office to make convincing him he didn’t need this particular circus twirling on top of his desk not all that hard.

It is a rule carved in granite that for reasons of conflict of interest, lawyers in the same law firm cannot represent more than one criminal defendant charged in the same case. The catch here was that there was only one defendant charged in this case, our client, Carl Arnsberg. But there was at least the glimmer of other miscreants looming just over the horizon, the other branded bozos that Carl ran with, the people he talked to, the state’s star witnesses. True, they weren’t charged, but they could be, they might be, and since nobody knew exactly what they might say at some point in the future if pressed, the case could end up in a conspiracy involving the entire Third Reich.

At first the judge wasn’t buying. As far as he was concerned, multiple defendants meant just that, real people actually charged. But as time went by, as the trial loomed closer, as the public defender and I slipped his head into a vise and turned the handle, he began to see the light. Gentle hints that if forced to the wall I might have to withdraw, along with estimates by the public defender that he would need at least two more full-time lawyers and six months to come up to speed on the case-these finally turned the tide.

This morning I called Sam Arnsberg and gave him the news. The county will be funding not only the prosecution but the defense, including our experts and investigators. What I didn’t tell him is that my fee will be a fraction of my usual hourly rate. No doubt my statement of hours along with Harry’s will be chiseled down further by the presiding judge, who will review, approving or modifying, our billings for each month, part of the deal. But it gets us over the hump.

I pull open one of the heavy wooden doors at Department 13, pass through the darkened airlock between the two sets of double doors and into the courtroom. The place is empty except for a lone figure sitting in the front row. I could have anticipated this. Bent and a little stooped, wearing a tweed suit with the look and cut of something from another decade, is a withered form. His hands are pocked by age marks, and his arthritic fingers claw a sharpened pencil in one hand, a reporter’s notepad in the other.

Harvey Smidt must be seventy if he’s a day, the oldest salt in the courthouse press corps. Harv shuns pack journalism. He works alone, often in silence like a Trappist monk, and rejects technology. He won’t use a computer. Smidt still knocks out daily copy on an old Underwood manual typewriter, not even electric. It is the perennial courthouse mystery where he acquires his store of typewriter ribbons. He has an assistant who keys his stories in for him online when he is done and sends them to the pressroom, which in Harvey’s case is up in Los Angeles. His paper tolerates this because Harv does his work the old-fashioned way. He uses shoe leather. Two years ago he won a Pulitzer Prize for a series on the trial of the Santee Seven, a Mexican gang implicated in killings that ranged across four southwestern states and involved trafficking in enough drugs to swamp a Colombian cartel.

Nothing happens in the courthouse that Harvey isn’t aware of. He is the one person who doesn’t need a badge. His face is known to every bailiff, sheriff’s deputy, and clerk. It is rumored that he has his own set of keys to most of the out-of-bounds areas where courthouse files are kept. Smidt has been around since before the cornerstone was laid for the building. I’m not surprised that today he is sitting here alone. When it comes to a story, Harvey keeps his own counsel.

He is tall and slender, bent in the upper back from years of leaning into filing cabinets pilfering legal dirt, his neck calcified by decades of journalistic warfare, so that when he turns to look at me, he moves his whole body on the hard wooden bench.

“Mr. Madriani.” As he says this, his eyes have not quite caught up with me, as if he’s detected me by his keen sense of smell, like an animal of prey.

“Harv. How are you?”

“Good. Good. Do you have a minute?” He stands up. His smile is sly and personable, and he shows me his notebook, already open and ready. “What’s happening here today? This wasn’t on the calendar,” he says.

I might ask him how he found out about it, but he would never tell me.

“I’ll know when you know,” I say. “I’ll read about it in the morning paper.”

He smiles only a little. “What does the judge want to see you about? Hmm? Come on, off the record,” he says.

I keep walking.

“I saw Mr. Tuchio go in a few minutes ago.”

“Did you ask him?”

“I did.”

“And what did he say?”

“Said he didn’t know. Wasn’t sure.”

“There you go,” I tell him.

“Can we talk when you come out?” he asks.

“Harvey.” I shake my head. “There’s a gag order.”

He smiles. “Not for me.”

I try to get past him. For a man as frail as he is, he manages to block my way with practiced ease. “Something’s happening. What’s going on?”

“You’ve been around long enough, Harv. Probably just ground rules,” I tell him.

“You sure that’s all? Come on. You help me out and I’ll make sure they give you the luxury cell if the judge puts you in for contempt.” He gives me his most comely smile.

We both laugh.

I finally get past him through the railing at the bar, headed for the little hallway and the judge’s chambers in back.

“Any truth,” he says, “to the rumor that the prosecution’s got witnesses who will testify that your man only wanted to kidnap Scarborough?”

“Where’d you hear that?”

“I’m under a gag order there,” he says.

I don’t answer. To Harvey this is a yes.

“If so, it could be manslaughter,” he says.

“Maybe my client should have hired you,” I tell him. Arnsberg could do worse. Harvey is a graduate of the University of Hard Knocks Law School. He has sat through enough trials that he could do a credible job defending a multiple ax murderer.

I keep walking, though now there is a steady drip of adrenaline on my heart. Harvey has been talking to the prosecutors or the cops. You can build a gag order, but you can never fill all the little crevices that leak. Trying to undo the damage later is like bailing a flood from a broken levy with a bucket. If Harvey reports the kidnap rumor and the fact that the state has witnesses, it will be all over the media by tomorrow morning. Talking heads will be using it as a teaser to keep viewers tuned in between the commercials. Even with the jury impaneled and the judge having instructed them not to read or watch news concerning the case, this information, blaring from every cable network and sliding past on the electronic ticker tape running under the pictures, is a virtual certainty to reach them. If they believe that Arnsberg had any plan for Scarborough, whether kidnapping or killing, they’ll be leaning so far toward conviction that they’ll topple like dominoes the first time they climb into the jury box.

“See you on the way out,” says Harvey.

Smidt can be relentless. I will ask the judge to let me out through the back corridor and hope the prosecutor takes the same route. I turn past the bench and down the hall. In the distance, ten feet away, I can see the judge’s clerk, Rudalgo Ruiz, sitting at his desk just inside the door to the judge’s anteroom.

Ruiz is known to courthouse staff as R2. Not because of the two R’s in his name. Instead this is short for R2-D2. Ruiz is short, built like a barrel, and bald. The only things missing are the wheels and the discordant bleeping tones for communication. Though in some sense it would be preferable to what he has to say to me this morning. It is blunt and to the point. “They’re waiting for you,” he says. This from under black, furrowed brows, the only wisps of hair he has on his head. “I called you three times. Dun you have a secretary?”

I look at my watch-9:48. “My calendar said ten o’clock.”

“Judge bumped it up this morning.” Ruiz says this with adamancy. “Nine-thirty.” He taps the crystal on his wristwatch like maybe the judge can issue an order to make time go in reverse.

“On the second day, God shortened the hour,” I tell him.

He shakes his head at this blasphemy, then smiles, but only a little. “You better get your ass in there.” He nods toward chambers, where the door is open just a crack. I can hear voices inside, some muffled laughter.

I tap on the door.

“Come on in.” A booming voice.

I swing the door open and am greeted by the raised eyebrows of his eminence Judge Plato Quinn. Quinn has been on the superior court for more than two decades. A graduate of the D.A.’s office, he spent the first ten years of his legal career prosecuting major felonies and is not particularly beloved among the defense bar, though this is not all bad. Quinn is a man highly sensitive of his reputation. At times he will bend over backward to dispel any hint that he might carry water for the prosecution.

“I take it you don’t have a clock?” he says.

“Your clerk says I need a new secretary,” I tell him.

“Anything to bring you into the modern age.” The judge glances under the edge of my suit coat, looking for the telltale pouch on my belt.

I lift my coat a little, making it easier for him to visually frisk me.

“Only lawyer I know doesn’t own a cell phone,” he says.

At the moment my cell phone is in my briefcase.

“My having lost three of them going through security downstairs, the phone company wants my daughter as collateral to get another,” I tell him. “They tell me the last one I lost is still making phone calls long-distance from Beirut.”

As I close the door, I see the D.A., Bob Tuchio, seated on the couch, as if he were playing hide-and-seek behind the swinging door. “Your cell carrier should cut off services,” he says.

“It’s a two-year plan. They don’t like to lose the business,” I tell him.

He smiles, a dark eminence. Tuchio has eyes like two black olives, and a five o’clock shadow an hour after he shaves. His complexion is something from the heel of the boot in Italy. He is intense in court, but not emotional, at least not so that the unschooled eye would notice.

“Okay, so we wasted twenty minutes,” says Quinn. “I’ll take it out of your opening statement.” He looks at me and winks. “I gather that the two of you know each other?”

“We’ve never been formally introduced,” says Tuchio, “but I know Mr. Madriani by reputation.”

“Then it looks like you’re in trouble.” The judge regards me and smiles.

Tuchio rises from the couch and in a single smooth gesture closes the center button on his suit coat and offers me his hand. We shake.

Tuchio is a shade under six feet, slender, a cipher by way of demeanor. Power suits, this morning a dark blue worsted, flatter his lean frame. The chief deputy district attorney of this county for more than a decade, it is rumored that he is “D.A.-in-waiting,” until his boss retires, which is supposed to be next year. Tuchio’s only weakness may be what he can’t see. He is known unaffectionately behind his back by much of the defense bar as “Bob the Tush,” not so much because of the size of his behind as for its motion when the man gets wound up in court. He has acquired a kind of circular gyration as he speaks, this to offset the movement of his hands. If you cuffed his wrists, it would transform him to a mute. It is said, though I have not seen this, that when he gets up to speed, he can rattle his ass like a washing machine on spin cycle with the load out of balance. Unfortunately for many who have witnessed this, there may be a kind of mesmerizing effect to it, for it usually comes on closing argument just before the opposing counsel’s client goes down for the count. Tuchio has a conviction rate of better than 96 percent. He hasn’t lost a case in more than five years, though as chief deputy he can pick and choose his shots.

That he has selected Arnsberg to prosecute is not a good sign for our side. Tuchio will be heavily invested in the case, particularly on the eve of his rise to power. The last thing he needs is a loss under the glare of television lights as a prelude to his coronation.

“I thought it would be good if we all sat and talked. Sit down.” Quinn gestures with his hands toward the two client chairs across from his tufted throne on the other side of his massive mahogany desk. This is littered with files, one of which is ours. The judge slides this toward him, opens the cover, and begins to look at notes that he has apparently made for this meeting.

We sit, Tuchio to the right, me to the left.

“I don’t want any misunderstandings when we get to court,” says the judge. What Quinn means when he says we should talk is that he will do the talking and we will do the listening.

“First order of business,” he says. “I don’t want any gamesmanship. I know that the stakes are high here. A lot of the media is watching. That doesn’t mean a goddamn thing as far as I’m concerned. They already asked for cameras in the courtroom. I already said no.”

Quinn looks at me as if this were a major concession for which he is now free to plant land mines in the courtroom with some roadside bomb for the defense.

“Gag order is in effect, as you both know,” he tells us.

“That’s good, Your Honor, because someone has already violated it,” I tell him.

“What are you talking about?”

I tell him about Smidt outside in his courtroom asking questions about witnesses and theories of the case to which only those who are trying it and their agents are privy.

The judge’s gaze has not even fallen on him, and Tuchio is already in denial mode. “Didn’t come from my office. I issued a memo last week. Anyone violating your order will be fired and prosecuted. And I mean it.”

This is the boilerplate that is issued in every case where the media operatives are digging for dirt. It may as well be printed on little squares of toilet tissue for all the good it does.

“So you can tell us sitting here today that it didn’t come from one of the cops working the case?” I ask.

“You tell me which one,” says Tuchio, “and I’ll nail his ass.”

Now, there’s the rub.

“Do you have a name?” asks the judge.

I look at him and smile. A good lawyer, he knows the answer before he asks the question.

“Maybe we should invite Mr. Smidt to join us,” I tell him. “You could put him under oath and ask him.”

This sets a little crease in the judge’s forehead at the thought of going to war with the media, holding Harvey in contempt for refusing to reveal a source.

“Why? Make him media martyr of the month?” says Quinn. “For what?”

“It’s your gag order,” I tell him.

The judge swallows some pride. “I’ll talk to him later. Privately,” he says.

“Is that off the record?” I ask.

He shoots me a glance to kill.

“Next item,” he says. “Friday morning I want everybody to be up and running, ready to go. Understood?” He glances quickly at Tuchio, then spends a good long time looking at me. “No continuances. The jury is ready to go. Is that understood? Are you ready?” He directs this at me.

“One question, Your Honor. Why are we starting on Friday?”

“You have something better to do?”

“Why not Monday?” I say.

“Because my court is available on Friday,” says Quinn.

“Friday’s fine with me,” says Tuchio.

I’m sure it would be. The fact is, I begin to wonder if there isn’t some design in this. Any lawyer I know, given a choice, would deliver his opening statement to the jury as the last order of business before a weekend, leaving them to ponder his every word for two days before confusing them with the evidence.

“So I take it you’ll be ready to go on Friday with the rest of us?” Quinn is once again looking at me.

“Barring any more surprises,” I tell him. “But the fact is, the prosecution goes first.” I deflect the question to Tuchio.

“Oh, we’ll be ready, Your Honor.”

“Good. That’s good. This then leaves the question of the jury,” says Quinn.

Our jury has already been picked and primed, seven women, five men, with six alternates. As in any case of this kind, it is probable that the most I can hope for are a few strong-willed individuals for whom the seed of doubt is always germinating in their minds, or at least easily planted-people who will fight for their convictions or, better yet, who might be easily insulted, digging in their heels if others try to push them. My jury consultant, after shaking her psychic bag of bones over the juror questionnaires and after my having questioned them in the selection process, believes that we may have two who could fit this bill. On the other hand, African Americans are potential anathema for us. We have three on the panel, one retired military, another a janitor from a local school, and last a female investment adviser from one of the big firms downtown. There is no way to keep them off the jury on racial grounds, even though it is a given that Tuchio is likely to play the race card, even if from the sidelines.

“Is there a problem with the jury?” I ask.

“Whether they should be sequestered,” says Quinn.

I had been halfway expecting this. It is clear that Tuchio and the judge have talked about this before my arrival, as the D.A. is already looking over at me for arguments.

“Not as far as I’m concerned, Your Honor. Not at this point at least.”

“I’m not so sure,” says Tuchio. “Letting the jurors go home at night with the paparazzi salivating, following them to their front doors,” he says. “We could easily end up with a costly mistrial. Besides,” he says, “if we’re not going to sequester, we’re likely to need more than six alternates on the panel.”

“Hmm…” This sets the judge to thinking.

“If the court wants more alternates, we should get them,” I say. “But I would strongly oppose any motion to sequester without some showing of cause, a reason in this particular case.”

The argument here may seem strange to the untutored, but it is holy writ that locking a jury up for the duration in hotel rooms with bailiffs to tuck them in at night has devastating consequences for the defense, particularly in a lengthy trial. Jurors come to resent the isolation from family and friends. They begin to see themselves as incarcerated, which in fact they are. They place the blame invariably on the defendant, who should be the one in jail, even though in this case he is. Tuchio may have a legitimate reason for wanting to avoid a mistrial, but he also has an underlying agenda: to subtly poison jurors against the defendant.

“It’s too late for more alternates,” says Quinn. “I’ve already released the jury pool. If we proceed unsequestered, I want it to be understood that we will be running on a very thin thread.” It becomes clear that this is the purpose for this discussion, to put me on notice that the court can pull the trigger at any time. “The first hint of anything inappropriate,” says Quinn, “any untoward communication with a juror, and they’re off to the Hilton. Is that understood?” He looks at me yet again.

I nod.

“Good. Next item,” he says. “Witness lists. I want them finalized and submitted before close of business on Friday.” He looks at both of us for a change.

“Your Honor, until we see all of the People’s experts, we won’t know who we’ll need to counter them.”

“We’ll work that out,” he tells me. “In the meantime I want to see witness lists in pretty much final form by Friday.”

“With some exceptions?” I ask.

“With a few reasonable exceptions,” he says. “And I emphasize the word ‘reasonable.’” He looks down at the sheet in front of him in the open file. “That’s everything on my list,” he says.

“There is one issue,” I say.

He looks up at me as he hadn’t planned on either of us having an agenda.

“There is the matter of the victim’s computer files,” I say. “To date we’ve received only partial material from these. We have reason to believe that there are voluminous materials that the state has not turned over pursuant to our discovery motion.”

Quinn looks at Tuchio. “What about this? I don’t want any delays,” he says.

“Your Honor, we’re doing the best we can. Counsel is right-the requested materials are massive. It appears that only a part of the requested items are in the actual computers. According to my experts, my IT guys, Mr. Scarborough made a habit of moving data from the hard drive of his computers into storage on external hard drives. Thus far we have identified only some of these. We know that there are probably more. Here’s the problem,” he says. “We took out six, eight boxes of materials from his place in Washington, the town house. We have yet to process all of these.”

“Well, get on it,” says Quinn. “You have more people. Put them on it.”

“We have other cases going, Your Honor.”

“Then hire outside help,” says Quinn. “I want these materials in the hands of the defense by next week, understood? No ifs, ands, or buts.”

“We’ll do the best we can,” says Tuchio.

“No, you’ll get it done,” says Quinn.