Shadow of Power

8

The framers of the Constitution may have been brilliant, but they weren’t perfect.

They lived in another age-lawyers, merchants, and gentlemen farmers-amateur politicians all. For their time the concepts they introduced were radical, but they were not unrestrained. The preamble may have been orchestrated for “We the People,” but the fine print kept the common fingers off the piano keys.

The founders were men of property, in an age when only men who owned property could vote. The concept of common suffrage, to say nothing of women voting, was alien to them, something they would have rebelled against as vigorously as they fought the British Empire.

Campaigning for election to office was an act of personal dishonor.

They could not conceive of their experiment falling into the hands of full-time politicians steered by armies of consultants, forming committees to suck millions in “donations” from those seeking favor from government; permanent officeholders who would wield the levers of power with the partisan ruthlessness of warlords.

A Congress routinely hijacking essential national legislation just to load it with amendments like tumors, hauling pork back to their districts to solidify their death grip on power-this would have been as alien to them as E.T.

When Lincoln sat in Congress for his single term, beginning in 1847, he considered himself lucky to have a desk with a drawer for his private papers and the privilege to borrow a book from time to time from the Library of Congress.

Only the insane of the eighteenth century could foresee that a bleak two lines added to the Constitution a century after its creation, authorizing the collection of a federal income tax, could result in a seventy-year rampage by government to mentally rape its own citizens with millions of pages of totally unintelligible tax laws, rules, regulations, and forms.

Today we have special federal tax courts because the law is so convoluted that ordinary federal judges are presumed too ignorant and unschooled to understand the complexities of laws and forms that every citizen down to the village janitor is required to understand, to obey, and to sign under penalty of perjury and threat of imprisonment.

Nor could it be possible in the Age of Reason to foresee a Social Security system that if run by a private business would result in their arrest, prosecution, and conviction for operating a Ponzi scheme. In the real world, taking invested funds in the form of Social Security taxes, paying current claims, and skimming the rest for other purposes is called embezzlement. When government does it, it is simply called politics. In either case the arithmetic is always the same. When the scheme goes belly-up, its operators, if they’re smart, will be in Brazil, or, in the case of Congress, retired, which is the political equivalent of being in Brazil.

With all of this, the people in what is touted as the greatest democracy on the planet have no effective recourse. They cannot act directly to fix any of the obvious open sores or seeping wounds in their own government, because the founders didn’t trust them with the only effective medicine, the power to amend their own Constitution. That is reserved for the serpent its creators never saw.

Short of revolution, something Jefferson urged take place at least every twenty years, the average citizen is left to pound sand by casting a largely empty vote to replace the devil-in-office with the devil-in-waiting and hope that the caustic nature of power to corrupt can somehow be neutralized.

Praying for the devil to grow a halo, we all plod on, one foot in front of the other, trusting that somehow we will not follow the Soviet Union over the national cliff.

It is little wonder, then, that the founders failed to envision the minuscule procedural crack that allowed the language of slavery to remain visible as a festering sore in the Constitution more than a century after the institution had a stake driven through its heart in the Civil War.

It would have taken a soothsaying of monumental capacity to foresee that Scarborough 150 years later could pick at this scab, the language of slavery, and open it to the point of inducing race riots and the civil unrest that now looms like a battle scene on Broadway out in front of the county courthouse downtown.

Early February, Friday morning, opening day of trial, and I’m being escorted by four burly sheriff’s deputies through the throng of people, a horde I would estimate at more than a thousand as it jams the sidewalks. There are groups of angry protesters hurling insults like mortar rounds from one side of the street across the four broad lanes of traffic to the other side in front of the main entrance to the courthouse.

A huge banner, letters three feet high in black paint, has been unfurled and is now being displayed on the sidewalk in front of the courthouse:

END BLACK SLAVERY

Separate lines of deputies have been deployed along the whole block, all dressed in riot regalia, holding ballistic shields to keep the two warring armies from charging each other and doing battle around the cars and buses that are now stalled in traffic. A few crazies have managed to infiltrate the enemy camp on this side of the street, one of them trying to rip at the banner. Three uniformed cops are busy trying to keep them from being killed, struggling to pull them through the mob back to the ideological safe zone on the other side, where their own band of crazies is located.

I am reminded of the politically sensitive phrase that the city prints on many of its forms in big bold type:

DIVERSITY BRINGS US ALL TOGETHER

They’d better hope not, at least not today, or there’s going to be one hell of a mess in the middle of Broadway.

Deputies at the fringes are confiscating any sign attached to a stick. Verbal insults are one thing, war clubs another. The sheriff has prepared buses normally used for jail transport so that if things get out of control, these can be rolled into place like a barricade to block the street directly in front of the courthouse. Thus far they’ve avoided using these.

So wild is the melee that Court TV, which wanted to film the trial but failed to get approval from the judge, has abandoned its outdoor perch, a covered enclosure set up on a scaffold near the corner at the intersection. Some in the crowd have now taken hold of the green metal pipes that support the scaffold. They are pushing and pulling them so that the entire structure, cameras included, is shimmying as if in an earthquake.

Many of the demonstrators in front of the courthouse are African American, some of them singing, others shouting. One woman, the veins on her neck protruding like electric wires under the skin, has blown her vocal cords. So hoarse is her voice that despite all the energy coiled in her body I can barely hear or make out her rasping words as I pass her with my escort, barely ten feet away.

As yet no one has taken particular notice of us. There are so many cops on the street that four more with a guy in a suit don’t even register. Lucky for me. If this continues, once my picture gets around and they realize I’m defending Arnsberg, I may need an armored car just to get to court.

The other side of the street looks like Halloween, people in costume, some of them wearing hard hats and white T-shirts with the sleeves rolled to the armpits. They might pass for construction workers on break, except that their clothes look like they just came out of the washer. A small group, maybe six or eight nutcases in starched brown uniforms, all sporting swastikas on their arms, give the cops indignant looks and prance at the curb as if they’re waiting for the second coming of the Führer.

One of them ventures into the street and gives a stiff-armed Nazi salute to the cop in front of him. The deputy returns the greeting by nudging the guy with his shield, pushing him back up onto the sidewalk, where he lands on his ass. A few feet away, Oberführer Number Two tries to get a bullhorn past security. A tug-of-war ensues. The cops end up with the bullhorn, and the field marshal ends up on the ground, his hands behind his back, being prepared for nylon handcuffs.

Surrounded by the escort, I hoof it quickly to the steps at the main entrance when something flies past my head. It hits one of the cops in the back. A partially crushed and fizzing can of soda shoots bubbles and jets of tarry liquid as it spins like a bottle rocket on the sidewalk at his feet. The officer is angry. Even with the armored vest he’s wearing under his shirt, he’ll have a fair-size bruise on his back by tonight. We stop momentarily while they scan the crowd, trying to identify who threw it. A few seconds and they give up. Even if they could identify the pitcher, pulling him out of an angry mob could turn what is a budding riot into a rampage. We make it to the front door.

Inside, the decibel level drops a hundred points. My escort takes a few seconds to regroup. One of them wipes some of the Coke off of his colleague’s back with a handkerchief, and they head back out.

On the ground floor of the courthouse, security is tight. Nobody gets in without going through the metal detector. Every briefcase and purse is scanned on the conveyor belt. Today there are uniformed officers questioning people as to their business, their purpose in the courthouse. If they’re loitering to see the action, they’re sent outside. By now every chair in the courtroom upstairs will be filled.

Anything, even a loud voice inside the lobby, will draw uniforms before you can move. I’ve sent boxes with all our trial documents and other materials ahead of me. Two young staffers hired part-time were assigned by Harry to deliver them to the courtroom early in the morning, before the storm troopers and the rest of the mob outside got out of bed.

It takes a couple of minutes to get my briefcase with the notebook computer through security. Before I can retrieve everything at the other side of the scanner, two reporters, one of them with a camera crew, jump me. The camera’s lights catch me in their glow.

“Does your client know what’s going on outside?”

“I don’t know. I haven’t seen my client this morning.” I’m walking, a good pace to get to the elevator, dodging people milling in the lobby.

Somehow the reporter with the camera is keeping up.

“What is he feeling?”

“Is he feeling any remorse?”

“Remorse for what?”

“He is charged with murder, isn’t he?” The one reporter has his microphone in my face, camera aimed at me from over his shoulder as they sidle along, three of us like a human crab.

“Mr. Arnsberg has pleaded not guilty and is therefore presumed innocent. Why should an innocent man have feelings of remorse?”

“What about the evidence, his prints at the scene?” The guy with the camera is goading, pushing for some flare, a show of anger-cum-sound bite.

I finally get past him.

“The public doesn’t buy his plea.” He says this to my back as I head to the elevator.

“Then the public has a serious problem with our system of justice. Maybe you should go and talk to them about that.”

“Does your client know any of the people in Nazi uniforms across the street?”

I ignore them and keep walking.

“Does he have a Nazi uniform?”

If he does, I’m hoping that Harry got to it before the cops and had the foresight to burn it. So far we haven’t seen any pictures produced by the prosecution or otherwise showing Arnsberg in any uniform. But I don’t tell the reporters this. There’s always room for surprises. I keep moving toward the elevator, taking long, fast strides.

The cameraman, his lights blazing, trails me, capturing shots from behind. I can feel the heat of the lights on my back all the way to the elevator doors. See the defense lawyer running away. Details at eleven. I step inside and push the button-sanctuary. Upstairs is off-limits to cameras. The worst they can do now is sketch me.

Inside the courtroom the scene is enough to make the owner of the local cineplex green with envy. The center aisle is jammed, people trying to find empty seats. Uniformed deputies are everywhere, against the walls, mixed in with the mob.

One of the bailiffs is confiscating black baseball caps with white stitching above the bill reading END SLAVERY. These are being worn by a group of people who want to sit together. The First Amendment may still be in effect, but not in Plato Quinn’s courtroom. If you want to send a message to the jury, you’re going to have to use invisible ink.

A muscle of a deputy, beef on the hoof, is posted at the gate to the bar railing, making sure nobody gets up near the bench or back behind the scenes. Rudalgo Ruiz, Quinn’s clerk, keeps a nervous eye on the crowd as he shuffles papers at his table in front of the judge’s bench.

Tuchio is already here, seated at the counsel table to the right nearest the jury box, privilege of the prosecution. Next to him is one of the homicide detectives, Brant Detrick, the man who worked up the case against Arnsberg. Tall and blond, Detrick is a veteran of homicide. With almost twenty years on the force, he’s the kind of witness that defense lawyers hate. You could turn him upside down and shake him, and Detrick would show not the slightest bias or personal stake in the outcome of the trial. “Just doing my job,” while he quietly hangs your client. If anything, he has gotten more difficult over the years. Now that he’s getting closer to retirement, the touch of gray at the temple and the wrinkles where his glasses crimp the bridge of his nose give him a kind of professorial look. At the far end of Tuchio’s table is a woman I have not seen before, one of his assistants, a female prosecutor, African American. Only the blind would not be aware of the racial elements in this case. It’s more difficult for jurors to ignore this issue with a minority sitting at the counsel table.

At the far end of the defense table, I see the large, hulking form of Herman Diggs, his bald black head glowing like a beacon under the courtroom’s canister lights. Herman is our investigator. A human mountain originally from Detroit, Herman backed into his current vocation after a promising football career ended with a blown knee. We found each other in Mexico, on a case that grew ugly with violence. Herman and I came up realizing that we were the only two in sight who could trust each other. With Herman at my table, Tuchio would no doubt accuse me of playing the same card.

Herman is busy checking the boxes, seven of them stacked against the wall near his end of the defense table. These transfer cases with lids on them contain the materials delivered early this morning, documents and other evidence we may need during trial.

I lay my briefcase on the table. Herman lifts his head out of one of the boxes and turns to look.

“You come in through that mess outside?” he asks.

I nod.

“People got nothin’ better to do,” Herman mumbles to himself, his head going back halfway into one of the boxes. “You see all that crap back at the office? Damn truckload. That stuff have to come over here, too?”

“I won’t know until Harry goes through it all.”

“Yeah, Harry’s up to his ass,” he says.

Harry is back at the office pawing through boxes of printed data from Scarborough’s computers. Tuchio dumped all of it on us this morning at eight o’clock, when a small van backed up to the sidewalk out in front of our office and unloaded boxes of documents. How long the D.A. has had these is uncertain, but Tuchio can prove that it was all printed within the last forty-eight hours. Of that he made sure.

It’s all part of the game of modern litigation. Try your case while your opponent pushes a mountain of paper over on top of you.

“Excuse me, Counselor.”

I turn. Tuchio is behind me, smiling, his radiance. He approaches from across the divide, the space that separates the two counsel tables. This morning he is decked out in his best power suit, blue pinstripes and a club tie, starched cuffs with gold links. Marching behind him as if in lockstep is his female deputy and the detective Brant Detrick.

Detrick I know. Tuchio makes a short introduction, and we shake hands. Herman comes over. I introduce him.

Then Tuchio presents his assistant. “I’d like you to meet Deputy District Attorney Janice Harmen.”

“District attorney?” I say. “Have I missed something? We aren’t on appeal yet, are we?”

Tuchio laughs just a little. “Ms. Harmen is on loan. She’ll be with my office for the duration.”

She shakes my hand with a firm grip, no limp fingertips. Brown eyes, smooth coffee-colored complexion, her hair long to the shoulders with a slight wave. As she lets go of my hand, she looks me dead in the eye. The message is clear: woman on the rise. She intends to make her bones on my client.

“So how are you doing?” Tuchio stays and talks. His assistants return to their table. There’s something almost longing in the way Tuchio approaches you, as if he were actually earnest about making a new friend.

“Frankly, I’d be doing a lot better if my partner wasn’t back at the office picking through piles of paper we should have had two weeks ago,” I tell him.

“Oh, that. Yes, I know. I do apologize for the lateness. But there was nothing I could do. I got the stuff myself only late yesterday afternoon.”

“Is that right?”

“Absolutely,” he says. He looks almost hurt that I should question this, then glances over his shoulder. “Janice.” In the hum of the courtroom, a reporter is leaning over the railing talking to the deputy DA. “Janice.” This time he says it louder. He gets her attention. “Can you get me a copy of that certificate? You know, the one from IT.”

She nods and breaks away from the reporter, turns around and goes fishing in one of the sample cases under their table. These cases are commonly used by lawyers to carry heavy legal volumes and books.

“We got the materials to you as soon as we could,” says Tuchio. “Our IT guys tell me there was hell to pay lifting the documents from Scarborough’s hard disks. To begin with, there was a ton of material. I suppose you could figure that, the man being a writer. But some of it was old, archived on his computers but using software that’s been off the market for ages. I’m no computer buff, but-”

Before he can finish, Janice is at his shoulder with a piece of paper. He takes it, looks at it briefly, then hands it to me.

It is an affidavit prepared by the police department’s forensics lab and signed by one of their techs, showing the date they started working on Scarborough’s computer hard drives. According to the affidavit, they started more than a month ago, only to run into endless problems.

Tuchio tells me that Scarborough used three different word-processing programs over the years. Something called WordStar, Word-Perfect, and finally Word.

“That made it hard enough,” says Tuchio. “Some of the older versions of these programs aren’t supported any longer. Nobody sells them. I assume nobody uses them anymore either.” He leans over and looks at the affidavit with me. “See, right here.” He points to the paragraph where his technicians verify this.

“I assume your people have heard of ASCII?” I ask him. That’s the thing about trying cases-you tend to learn a little bit about a lot of things, sometimes just enough to get you in trouble. ASCII is a common machine language usually readable from PC computers. Most documents, if they’re the product of an obsolete program, can still be converted into ASCII and from this printed into text.

“I don’t know what that is,” says Tuchio. “You obviously know more about this than I do. But whatever it is, that wasn’t the biggest problem.”

“So what was?”

“Scarborough must have been at least a little paranoid,” he says.

“Why do you say that?”

“Because everything in his computers was hidden behind a zillion passwords, and according to our technicians, he knew how to make them, the passwords, letters and numbers,” says Tuchio, “nothing simple. Our IT people had to run software day and night for almost two weeks trying to crack ’em. They’d unlock one, only to run into another. Well, there it is,” he says. “Now you have everything that we have.” He smiles and then starts to turn to leave.

“Are you sure your people got everything that was on the hard drives?” I ask.

“Um…” He turns back, thinks for a moment, then offers a slight shrug. “Why do you ask?”

“I just want to be certain.”

“Can any of us ever be sure of anything? They tell me that they were very thorough. But if you think we may have missed something, you’re free to have your experts examine the drives. We can make arrangements. Do you want them?”

“Let me look at the materials first, and then I’ll let you know. In the meantime you will preserve the drives?”

“Of course.” He shakes my hand one more time. “Good luck,” he says. “You can keep that.” He smiles and taps the affidavit in my hand, then turns and heads back to his counsel table. Tuchio knows that at this moment he has knocked me off balance. I make a mental note to send him a letter confirming our conversation regarding the computer drives, with a copy to the court.

With the affidavit showing that the prosecutor did everything in his power to produce the materials from Scarborough’s computers, any complaint by our side to the court asking for time to review the documents would be fruitless. With the jury impaneled and mobs in the street, the judge will tell me to read this mountain of paper while the state puts on its own case.

The prosecutor has done one better. He’s gone out of his way to plant a small seed of confusion in our case, hoping, no doubt, that we will be distracted, waste time, perhaps chase this thing down some dead-ended rabbit hole. He has posed a question with no answer: Why would Scarborough, who wrote books to be published so that the whole world could read them, bother to conceal everything he wrote behind an infinite array of passwords?