Shadow of Power

10

en minutes turns into an hour, a good part of which is spent with Quinn giving me more than a small slice of his mind. “If you want me to introduce your client to the jury, I’ll be more than happy to do so,” he tells me. “But under proper guidelines and with clear instructions to the defendant that under no circumstances is he to make any statement or say anything.”

“He didn’t, Your Honor.”

“Damn lucky for you,” he says. “And what’s this business with your investigator? Where the hell is Hinds?” He reminds me that Harry is assigned the penalty phase of the trial in the event that Arnsberg is convicted and the jury has to decide whether he gets life or death. “He’s supposed to be here.”

“When the evidence comes in,” I tell him. “When the first witness is sworn, he’ll be here.”

“I asked you where he was.”

“You want to know where he is, ask Mr. Tuchio.”

Quinn looks over at the prosecutor, who is lounging on the judge’s couch against the wall in the corner. “I don’t know where he is, Your Honor.”

“He’s back at the office checking for roadside bombs tucked into the truckload of materials from the victim’s computers that your office delivered to us at eight o’clock this morning.”

“Oh, that,” says Tuchio.

At this, Quinn looks up from his desk, flustered. “Those were supposed to be delivered a week ago.”

Tuchio’s turn to wiggle.

“What about it?” says the judge.

The Tush fishes the affidavit from his IT people out of his briefcase. “We sent the court a copy as soon as we got it,” he says.

“What the hell is this?” Quinn gets his glasses on and starts reading. “Why wasn’t I told?”

“We didn’t know ourselves until the last minute,” says Tuchio.

The judge tries to throw the paper. It seems to add to his frustration when it lands with all the force of a fallen leaf on the blotter in the middle of his desk.

“Get Hinds over here,” he says.

“When do we get to look at the materials?” I ask. “I know it’s a small point, but they may be central to our case.”

“You think maybe Scarborough left a suicide note in his computer?” says Tuchio. “‘I’m angry with the world. I’m depressed. P.S.-I’m gonna beat my brains out with a hammer.’”

“I want it on record”-I ignore him-“that this stuff came late. That the cops didn’t even see it before they charged.”

“You can look at it over the weekend,” says Quinn.

The fact that the cops haven’t even had the time, let alone the inclination, to look at these leaves open the question whether there are e-mails with death threats strewn all over Scarborough’s hard drives. And God knows what else.

“It’s a safe bet, given the subject matter of his writings, that there were probably regional chapters of ‘Hate Scarborough’ committees,” I tell them.

“Yes, but did they all have their fingerprints on the hammer?” says Tuchio.

“For all you know, there could have been a line forming outside that hotel room door with people paying quarters to take a whack at the back of his head,” I tell him.

“Yes, and they all wiped their fingerprints off the hammer except your client.”

“Enough,” says the judge. “You.” He points at me. “Call your partner. Get him on the phone and tell him to get over here now.”

It takes Harry almost an hour in midmorning traffic to cross the bridge, drive downtown, park his car, and hoof it to the courthouse.

Quinn is angry at my antics with Carl in front of the jury, so he takes it out on Harry. He lets us cool our heels while he sits in chambers as the clock edges toward the lunch hour, then sends Ruiz out to announce that his lordship has released the jury and gone to lunch. Court will reconvene at one-thirty.

“Did you find anything?” I ask.

Harry and I eat stale sandwiches out of wrappers from a deli around the corner. We are standing up at a counter listening to the strains of “We Shall Overcome” over the backdrop of the percussion section of the Nazi National Orchestra beating their hard hats against garbage-can covers they’ve turned into shields.

“There’s a lot of stuff there,” says Harry. “And there’s no way to be sure we got it all.” He tells me that he has left two paralegals separating the materials by date and subject. The most important-the stuff pregnant with possibilities, according to Harry-are Scarborough’s e-mails, though he did a quick toss, turning as much of the stack as he could upside down looking for early drafts of Scarborough’s book. It is here, according to Trisha Scott, that Scarborough left references to the letter supposedly written by Jefferson, the would-be dynamite for Scarborough’s next book.

“Nothing,” says Harry. “Maybe she’s right. If he shredded the printout copies of all his old work, maybe he erased everything from the computers as well.”

The state’s theory is that Carl killed Scarborough for reasons of racial animus, not because the author was black, since he wasn’t, but because his words both written and verbal threatened the Aryan sense of racial superiority-that, and to impress others with similar views.

Over all of this, the missing Jefferson Letter now looms large. There is the question of its intrinsic value as a motive for murder, assuming that the original letter was available and Scarborough could get his hands on it. It is also possible, though there is no evidence at the moment, that perhaps the author had the original at the time of his death. If so, the fact that it is missing and that the police did not find it on Carl or at his apartment in the hours following the murder may be the stuff of which a credible defense is made.

Beyond this is the information from Trisha Scott, how Scarborough tried to use the letter in Perpetual Slaves and how she convinced him not to, for reasons of questioned authenticity. We have the detective’s note, following his interview with Bonguard, that the letter was the inspiration for all-the book, the tour, and what is now approaching $30 million in earned royalties. It is possible that whoever possessed the original of the letter, and who presumably gave Scarborough his copy, might be jealous. Maybe he wanted a cut of the book’s earnings and Scarborough refused to give it up? All of these are possible motives for murder, and from everything we know, none of them apply to Carl Arnsberg.

The Jefferson Letter is the seething force that inspired Scarborough’s historic venom. It is there, throbbing, at the heart of our case. We cannot see it, but its effect and its force are palpable.

It’s one forty-five when the wizard finally comes out from behind the curtain and takes the bench. Quinn shuffles a few papers as he looks down to make sure that Harry is really there and that it’s not somebody in a Harry mask.

Finally satisfied, he looks down at Tuchio. “Is the prosecution ready to proceed?”

Tuchio stands. “We are, Your Honor.”

“Then you may present your opening statement.”

The prosecutor circles the front of the counsel table until he is standing before the jury, no more than six feet from the alternates seated directly in front of him. His arms are folded, feet slightly apart, the power suit draped on his body. He looks at them for a few long seconds in silence, studying the twelve in the box from one end to the other before he finally speaks.

“Why are we here?”

He allows the question to linger in the air just long enough. Tuchio has a sense of timing.

“I’ll tell you,” he says.

Somehow I thought he would.

“We are here so that the People of the State of California can present evidence to you”-the volume of his voice rises now-“evidence of a heinous, cold-blooded crime, the most serious crime possible, the intentional taking of another human life, the capital crime of murder.

“I am going to tell you a story, ladies and gentlemen. It is a true story-”

I was hoping for Hansel and Gretel.

“-with evidence to support it and witnesses who, under oath, swearing to tell the truth, will sit right there.” Tuchio points with an outstretched arm toward the now-empty witness box. “Witnesses who will tell you in their own words what they saw and what they heard. You will see the murder weapon. You will see photographs of the crime scene in all its horror. You will hear experts, scientists and others, explain to you their professional opinions concerning aspects of the evidence and how they came to arrive at their conclusions.

“After you have seen all the evidence and heard all the testimony, you will be instructed by the judge on how to evaluate what you have seen and heard here in this courtroom. And then you will be asked to render a verdict.

“Your Honor, I would ask the defendant to rise.”

The judge wasn’t ready for this. Neither was I. Quinn looks befuddled, but he complies with Tuchio’s request. “The defendant will stand.”

Carl looks at me like, What’s going on?

I tell him to stand, to look straight at the jury. Don’t look away.

We both get up. Carl faces the jury once more. But this time he isn’t smiling. He looks scared.

Tuchio turns back to the jury box. “You will be asked to decide whether that man”-he turns, again with an outstretched arm, his finger pointed like a cocked pistol at Carl-“whether on July eighth of this year, the defendant, Carl Everett Arnsberg, in cold blood and with malice aforethought, murdered Terrance Scarborough.”

Tuchio drops his arm and stands there in front of them in silence. Carl is still standing, looking at the jury like a stone statue. No one is smiling at him from out of the jury box this time. I tug gently on his coat sleeve, and we both sit.

Tuchio turns and looks at us, wrings his hands a little, then starts again.

“On the morning of June fourteenth, a warm, sunny day here in San Diego, Terry Scarborough, a man of letters, an author of some considerable note, who was to appear on national television that night, was busy in his hotel room preparing to appear on Jay Leno’s show.”

Tuchio doesn’t mention that Scarborough was also a lawyer. Why risk tweaking a broad public bias?

“Mr. Scarborough had everything to live for. He had just published a new book, a book that had become a number-one national bestseller.” He nods his head, strokes his chin with one hand, and begins to move in front of the jury, pacing. “Oh, it was a controversial book to be sure. It was a book that dealt with serious issues.” He ends up at the prosecution table right on beat, and from a cardboard box on top he plucks a copy of Scarborough’s book. Then he heads back toward the jury, studying the book’s cover, opening it, fanning a few pages until he gets back to the closed cover. I have now seen this enough times that the image on the book’s jacket is burned into my brain.

The Tush and I have argued behind closed doors with the judge about whether the jury should be allowed to read the book. For the moment the answer is no, though Quinn has left himself enough room to change his mind if he chooses to. The question is whether the book is relevant. Tuchio says that it is, his argument being that it was the content of the book that formed the motive for the murder, or rather Arnsberg’s resentment of that content. The judge is not satisfied that the state has established this. He wants to see more evidence.

“Perpetual Slaves: The Branding of America’s Black Race,” Tuchio reads the title to the jury. Then he holds the book up so that they can all see the front cover.

Even from a few feet away, they can’t miss the large, rust-hued photograph, probably a daguerreotype dating to the Civil War. It is a picture of a black slave, his hands chained as he stands withered and dazed, his head lifted, looking straight ahead. Around his neck a heavy iron ring has been bolted closed. Sprouting outward from this ring, like rays from the sun, are footlong sharpened spikes, so that the man cannot even lay his head on the ground to rest. If you look closely, you can see scars on his shoulder where the lash of a whip has opened the skin like a plow turning furrows in the earth.

“This is a book about the evils of slavery.” Tuchio looks over at me as he says this, almost begging for an objection.

He knows Quinn would slap me down. As long as Tuchio doesn’t veer into argument or dally too long at the fringes, the judge will give him leeway in his opening, enough to make his case if he has the proof.

“It is a book about the burdens and brutality of an institution that many believe has left painful social stigmas. Stigmas that still divide this country, even today.”

“Amen.” A single loud male voice from the audience.

Quinn grabs his gavel and slaps it once as he looks out from behind an angry stare.

He could have the deputies start searching the aisles for the miscreant, but Tuchio doesn’t give him time.

“Among other things this book recites portions of the United States Constitution, provisions written more than two hundred years ago, provisions that allowed human beings, African Americans, to be held in bondage, owned by other Americans as slaves. Of course, most of us are aware of this, the history of slavery, the Civil War, all of that. But what’s more, this book informed the public of what many people, people who are not lawyers, did not know-that this language, the odious language of slavery written so many years ago, that this language remains to this day a part of our Constitution.” A few eyes in the jury box open up wide at the revelation.

“Oh, slavery was abolished sure enough, repealed by amendments after the Civil War. But the language of slavery was never actually removed from the text of the Constitution. Most people don’t know that,” he says. “And many are offended by it. It remains there in the Constitution as a visible stigma of what it is to be black in America.”

“Your Honor, I’m going to object.” I’m on my feet.

The judge is nodding. “I agree. Mr. Tuchio, what does this have to do-”

“I’ve made the point, Your Honor, if you’ll allow me to move on.”

“Please do.”

Tuchio thinks for a moment, regroups. “This book, and the message that it contained, was the reason Mr. Scarborough was in San Diego that day, the day he was killed. He was on a book tour, doing readings at local bookshops and sitting for news interviews on television and radio.”

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

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

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

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

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

He finally drops the hand holding the book.

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

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

Tuchio takes a few steps.

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

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

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

Tuchio’s tush is beginning to rock and roll.

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

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

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

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

It’s Tuchio doing Elvis on Steriods.

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

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

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

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

“Mr. Tuchio.”

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

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

Sure they will.

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

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

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

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

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

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

Let them chew on that one for the weekend.