Shadow of Power

19

The subpoenas, all three of them, went out this morning, for Richard Bonguard, Trisha Scott, and Jim Aubrey.

By 9:00 A.M. the subpoenas aren’t even on our radar screen any longer. Harry and I have moved on to trying to put out the next fire. We are back in court, but not in front of the jury.

The judge has given them the morning off. Instead we are gathered in Quinn’s chambers, where Tuchio is scrambling to account for the late disclosure of an FBI agent on his witness list.

He tells the judge there was nothing he could do. According to Tuchio, he disclosed the existence of his witness and the entirety of the man’s statement given to police the moment the D.A.’s office received the information. All this was turned over to the defense as required by discovery.

“The fact that this witness was an agent of the FBI, working undercover, I did not know until later,” says Tuchio.

“How much later?” Quinn wants to know.

This morning his office is crowded. Besides Tuchio and his assistant, Janice Harmen, and Harry and I, there are two other men present, sitting on the couch against the wall behind us. One of them is the agent in charge of the FBI’s San Diego office. The other gentleman is a deputy United States Attorney from the Justice Department in Washington. Apparently the matter is of sufficient importance that Justice sent its own man out from D.C. instead of simply handing it off to the United States Attorney in San Diego.

Trying to answer the judge’s question, fixing the precise date when everything was known, Tuchio looks like a one-man band, juggling his notes, riffling files in his briefcase, and whispering out of the side of his mouth to his assistant. Then they both huddle with the FBI agent. When the prosecutor finally turns back to the judge, he says, “About ninety days, Your Honor. We knew with certainty about ninety days ago.”

“Three months!” says Quinn.

“Yes. About ninety days.” For some reason this seems to sound better to Tuchio.

“And you disclosed the existence of the agent when?” says the judge.

Tuchio coughs a little, covers it with the back of his hand, and says, “Friday, Your Honor.”

“Last Friday?”

Tuchio nods.

Quinn nearly blows a fuse. “There are cases on point,” says the judge.

“Not with regard to collateral crimes, Your Honor. We’ve checked the cases.” Tuchio wants to split legal hairs with the judge, who looks as if he’d like to lean across the desk and smack him.

“I see,” says Quinn. “So you want to make a new law and have me reversed on appeal in order to do it, is that it?”

“No, Your Honor. That’s not what I’m saying.”

“Lemme get this straight,” says Quinn. “You have a law-enforcement officer, part of the government-albeit the federal government, not somebody playing under your own tent-and he’s in the middle of your case.”

“By sheer circumstance, Your Honor. The D.A.’s office had no idea.” Janice Harmen tries to draw some of the heat off of Tuchio.

“I appreciate that,” says the judge. “But just so I understand, you have statements made by the defendant, statements against penal interest made in the presence of this agent. You want to bring those statements before the jury to show the defendant’s state of mind prior to the commission of the crime.”

Tuchio is nodding.

“And you failed to disclose the fact that the witness is a federal agent until three days ago?” says the judge.

“That’s it,” says Tuchio.

“Not in my courtroom,” says Quinn. “What do you have to say to this, Mr. Madriani?”

Why should I interrupt Tuchio’s train wreck? I’m about to tell Quinn that I second his motion, that he shouldn’t sully his courtroom, but Tuchio cuts in before I can say anything.

“First of all, Your Honor, all the defendant’s statements were made prior to the commission of the crime. There is no question of Miranda here, no need to caution the defendant, because there was no focus of suspicion. The crime had not yet been committed.”

Quinn looks at him, that death stare again. “Tell me something I don’t know,” he says. “What I’m concerned about, Mr. Tuchio, is the fact that the witness carries the mantle of government on his shoulders, a material fact withheld from the defense in the preparation of their case.”

Tuchio finally tells the judge that while the witness Walter Henoch’s name appeared on the prosecution witness list, and while his statement was disclosed, the consent of the federal government for the witness to actually testify, to appear at trial, had been granted only four days earlier, on Thursday afternoon, the day before the prosecutors delivered the disclosure to our office.

Both Justice and the FBI, seated on the couch, confirm this. They tell the judge that the witness was part of an active, ongoing undercover investigation and that disclosure was hampered by serious concerns for the personal safety of their agent.

Harry was right. It’s an eleventh-hour deal.

This takes some of the edge off the judge. Though Quinn is still not completely mollified, his sense of indignation goes back in the box.

“I can appreciate that,” says the judge. “Still, there are questions of fundamental fairness that have to be discussed.” He turns to me. “Did you have any idea that you were dealing with an agent of the government?”

“We had no formal notice of any kind until Friday,” I tell him. This is not exactly responsive to the question he asked. Harry and I had guessed that there was too much polish to Henoch’s typed statement, so that there was little doubt that somebody was wearing a wire, but as to the FBI we were blind.

“Well then, I guess we’re down to the question, what do you want to do about it?” He puts this to me.

“I would move to suppress the witness’s statement, Your Honor, and request an opportunity to prepare points and authorities.”

Out of the corner of my eye, I can see that Tuchio is jumping up and down arguing that suppression is an overkill, given that the witness and his statement were disclosed.

As Tuchio argues, my gaze wanders the room. It doesn’t require clairvoyance to pick out the man in the middle, the one with the occasional pained expression like a sudden attack of gas whenever the prosecutor turns a new argument, the guy with his head in a vise.

Welcome to the wonderful world of bureaucracy. You can bet that the FBI agent seated on the couch has never found himself in this position before-locked up in chambers in some judge’s courtroom, pulling for the defense in a criminal case.

He sits there quietly watching as his superiors in Washington, who want to make sure they aren’t caught off base, without political cover in the event of a riot following the trial, flush his investigation by outing his undercover agent. And that’s if the Aryan Posse doesn’t kill Henoch before he can testify.

“Your Honor, I have an alternative.” Tuchio finally gets to his punch line. He wants to confer with the FBI and the Justice Department for a moment. They huddle at the couch, murmuring. I can see the agent’s face. At first he seems not to understand what Tuchio is proposing. When he finally gets it, he has another attack, only this one is major, and overt. The agent is sitting there shaking his head, trying to argue with the attorney sitting next to him. It takes a few seconds, but the lawyer from Washington has the final word. He silences him.

Tuchio turns back to the judge. “Your Honor, I would propose that the witness be allowed to testify but that there be no statement or disclosure to the jury that the witness is an agent of the government or involved in any way with law enforcement. It makes perfect sense,” says Tuchio. “It conforms to our earliest disclosure of the witness and his statement.” Then he gets piggy. “In return,” he says, “we would ask that the defense refrain from mentioning or disclosing to the jury the prior convictions of our other witness, Charles Gross.” He sort of slips this in sideways, as if his proffered concession on the agent weren’t being forced.

“That’s not going to happen,” I tell the judge. “Unless-”

“I don’t think so, either,” says Quinn.

“Fine,” says Tuchio, “forget the second part. Gross’s prior record can come in.”

“Unless what?” The judge is looking at me.

The prosecutor’s offer is a bad deal for us any way you cut it. Under Tuchio’s proposal the state has two corroborating witnesses. With Henoch’s testimony, every t crossed and i dotted, and with Gross on the stand later to confirm as much of it as he can remember, it won’t matter that Henoch’s badge is covered up and that Gross’s prior record is out on the table in front of the jury. The details of Henoch’s testimony and the confidence with which he delivers it will kill us. Jurors can smell credibility, and Henoch-or whatever his real name is-will reek of it.

“I have a different proposal, Your Honor. The prosecution presents their testimony through a single witness, Mr. Gross. In return, the defense would refrain from disclosing the witness’s prior convictions.” Then I add the sweetener. “The undercover agent, Walter Henoch-who I assume is already under subpoena?” I look to Tuchio.

“He is.”

“Mr. Henoch will refuse to testify and accordingly will be jailed for contempt.”

At first Tuchio shakes his head and laughs. It takes a second or two before he turns and looks at the FBI agent, a simpering expression on his face like, Why in the hell would we jail one of our own?

But by then the FBI agent is already burrowed deep in the ear of his compatriot from Washington, talking fast enough that you might swear he was going to chew right through to the ear on the other side.

When Tuchio turns to face the judge again, his head all the way to the back of his neck is the color of a ripe radish. He calls it a fraud. “The court in good conscience cannot go along with such a proposal,” he says. “It would be a sham on the judicial process.”

I ask the judge what his powers are if a witness under subpoena refuses to testify.

“Contempt,” says Quinn. “The witness is in the bucket.”

And if there’s one thing that will put your man in tight with his friends in crime, it’s telling a court to go screw itself and doing time at the county lockup, all for the purpose of protecting his buds.

It is exactly the point that the FBI agent has now drilled into the head of the lawyer sitting next to him on the couch. The feds, having been given a glimpse of the nirvana that a little jail time could do to boost their program with the Posse, are having second thoughts.

When Tuchio tries to get them back on board, the lawyer from Justice tells him that the risks involved for their agent are suddenly looking much worse.

Listening to the two feds as they talk on the couch, I can see it’s obvious they think that telling the D.A. and the court to go to hell sounds like a much better idea.

Tuchio stands there burning. It’s the best deal he’s going to get. If he pushes back, I withdraw the offer on Gross’s rap sheet. The look on his face says it all, every four-letter word you can imagine except the one that he actually speaks.

“Fine. I’ll drop Mr. Henoch from my witness list, on the condition that it is part of a deal on the record so that it’s clear I’m not volunteering this.” This he directs to the two feds sitting on the couch. “That Henoch and his statement are unavailable to either side and that Gross’s prior criminal record is off-limits.”

It’s good by me, but I’m not so sure everybody else is happy.

To get out of the judge’s office, Tuchio has to squeeze through the door glued to the two feds, one talking in each of his ears. By now they have come to appreciate fully the unbridled benefits that could be afforded to a scofflaw witness followed quickly by the judge’s hammer.

The day Harry found Scarborough’s shadowed leather portfolio in the police evidence locker, he also noticed a number of boxes, files, and other materials belonging to the victim that authorities had gathered from Scarborough’s apartment in Washington.

Harry looked at the number of boxes and realized that if they were full, and most of them looked as if they were, the volume of materials had to exceed by a considerable amount the documents given to us during discovery by the D.A.’s office. Later, of course, Tuchio dropped the mountain of paper on us right at the start of trial, Scarborough’s computer printouts, and for a few days we thought this might account for the difference.

In the interim, however, Harry had sent one of our paralegals back to the evidence locker to check out the boxes. Jennifer Sanchez is young, pretty, and relentless, not necessarily in that order. Ask her to pick up a piece of lint from your carpet and she’ll vacuum your entire house.

What she found was not paper files but rather DVDs, and some older VCR tapes, hundreds of them dumped into twenty-three cardboard boxes and stacked against the partitions of the evidence locker.

Scarborough apparently had a fetish for making and collecting copies of his appearances on television. From some of the labels, it was clear that at some point he’d hired a company that provided this service, taping his appearances and providing copies. The numbering scheme on the labels, a kind of Dewey decimal system, makes us think that Scarborough, or someone he hired, had probably organized these on shelves or in cabinets in his apartment. But when the authorities grabbed them during their search, they indiscriminately dumped them into boxes. Jennifer found scores of blank tapes and DVD disks, brand-new, still in their original cellophane wrappers mixed in with the copies in the evidence boxes.

Tuchio had in fact disclosed to us the existence of these materials on his police property’s list, in a single line: “Boxes of tapes and digital videos (various).” What this meant was that we were free to look at them whenever we wanted. The D.A.’s office didn’t copy them, and the police probably never looked at them. It would take two lifetimes to view them all.

Whether they even bothered to go through them as Jennifer did, just checking out the labels, we may never know. But this morning, as I was dueling with Tuchio over the FBI, Jennifer hit pay dirt.

It wasn’t a label but rather a yellow Post-it, a two-inch-square note, stuck under the clear plastic cover of the DVD’s jewel case. The Post-it had two names penned on it in blue ink: “Arthur Ginnis” and “Edgar Zobel.” Jennifer did the only thing she could. She had the DVD copied by one of the evidence and property clerks, along with making a photocopy of the jewel case’s cover, showing the Post-it note.

Harry has been fielding text messages from her since two-thirty this afternoon, three of them, telling us there was something urgent waiting for us back at the office.

By the time we get there, it is almost seven. Jennifer is waiting at the office door, her forehead furrowed and her dark, oval eyes the size of teacups.

“You’re gonna wanna see this,” she says. She is so excited she’s almost crying.

We dump our briefcases on the floor just inside the door and follow her to the conference room, where the lights are on and there are voices. One of the secretaries and another paralegal are seated at the conference table hunched over legal pads and holding pencils. As soon as they see us, one of them says, “Start it over,” and the secretary punches a button on the remote.

A second later, just before the screen flickers to blue, I see the image and recognize the face.

I look at Jennifer. “Arthur Ginnis.”

She nods. “But there’s more,” she says. And now she does cry.

“What?”

Both of the paralegals and the secretary know that Harry, Herman, and I have been on a hunt for the Jefferson Letter for more than eight months, since before the trial started, wondering if it existed and, if it did, who had it and where it was.

She wipes away the tears and teeters on her tiptoes, wringing her hands in front of her like she’s going to break her knuckles. “We think it’s there, on the video,” she says.

“Punch it up,” says Harry.

For the next twenty-six minutes, the five of us sit around the table, our eyes glued to the television screen, watching the image of Arthur Ginnis talking to someone across a table in what appears to be a crowded restaurant-white linen tablecloth and crystal glassware, the clink of dishes and the cluttered sounds of conversation and laughter drowning out almost everything Ginnis says on the video. You can make out maybe every sixth or seventh word.

This is what they’ve been working on since midafternoon, the three women with pencils and pads, listening to the video over and over again, trying to write down words, partial sentences, trying to work out a rough transcript of what is being said on the video.

The curved end of Ginnis’s cane can be seen hooked over the edge of the table.

Every once in a while, he will laugh, and the intelligible few words that follow can be heard, but it’s just idle chatter. At one point he’s buttered a piece of bread when he laughs, throws his head back, and says, “I know. It was hilarious. I saw that on CNN.” Then his voice drops again, and his words are swallowed up in the surrounding noise.

Several times he leans with his elbows against the table and talks fervently to whoever it is on the other side. We can’t see the face of this person, just his right hand, the sleeve of his suit coat, and the starched cuff of his shirt where it sticks out.

Each time Ginnis leans against the table, the camera shakes. From this, and from the slight fish-eye wide angle of the video and the fact that he never once looks at the camera, it’s obvious: Ginnis doesn’t know he’s being filmed. I’m guessing that the lens on the camera was probably not much larger in circumference than the eraser on the end of a pencil. It was probably concealed in a small binder, a day planner, or the hollow case of a cell phone, good enough to capture thirty minutes, maybe an hour, of low-quality video and sound. You can buy one in any spy shop.

We are just over nine minutes into the tape when the camera shakes a little and the hand on this side of the table disappears from view. When it reappears a second or so later, it is holding a sheaf of paper, folded in thirds.

“There it is.” Jennifer’s pointing at the screen.

The hand comes back into view, and the papers are unfolded. They are stapled together at the top left-hand corner, what appears to be four pages. This is obvious because the forefinger of the other hand idly fans them at the bottom as if to show the camera the individual sheets.

“What do you think it’s worth?” The man holding the letter is speaking, and with the elevated volume of his voice you can hear it clearly. “The original, I mean.” This is even more audible.

Harry looks at me and mouths the words, The firebug.

We have both heard Scarborough’s voice enough times from videos of appearances on his final book tour to recognize it.

The look from Ginnis is dour. You can’t hear his words, but you can read his lips: “Put it away.”

For almost fifteen seconds, you can see the reduced image of elegant handwritten script, something from another age, on the open page in front of the camera. If you froze the picture with the proper equipment, you could read it. Just on the inside margins of the page, you can see the shadowed line from the edge of the original document that was copied.

He tries to hand the letter to Ginnis, but the old man occupies himself with a piece of bread in one hand and the knife going for the butter in the other. He mumbles something.

“We think he said, ‘I don’t want to talk about it,’” says Jennifer. “We’ve listened to it a dozen times, but he’s leaning forward, his head is down, and we can’t make it out.”

There is some wobble with the camera, and when Ginnis settles back against his chair again, the letter is open, faceup, in the middle of the table. Scarborough’s empty right hand now lifts the crystal wineglass in front of him. The hand and the wine both disappear. A few seconds later and the glass is back on the table.

“When can I have the original? I need it before I can deliver.” Over the din of laughter and the clatter of dishes, you can hear this clearly. It is obvious now that not only is the volume of Scarborough’s voice elevated but that he is much closer to the concealed microphone.

Across the table Ginnis’s thin face shows the taut strings of flesh from his jawline down his neck. His face may wear the stress of recent illness, but his expression is the classic portrait of the furtive look-Gollum from Lord of the Rings. He is holding the buttered bread, but he is not eating. Swallowing nothing, yet his Adam’s apple is bobbing.

“Have you finished it?” Ginnis says. You can’t hear his words, but you can once more read his lips. The women all agreed. That’s what he said.

We cannot hear anything from Scarborough. He may have said something and we didn’t hear it, or he may have gestured, but it appears that he communicated something to Ginnis, because the old man smiles and says, “Good.”

Just like that, he is affable once more. He wipes the butter off both edges of his knife. Then he reaches out with the knife and lifts the letter just enough so that it slides back across the table toward Scarborough. He smiles. Nods a few times and says, “Put it away. You’ll have what…”

“‘Put it away. You’ll have’ what?” says Harry.

“What you need,” says Jennifer. “It took us three or four times, but we finally got it.”

Both hands come out once more, and the letter is folded. Within seconds it disappears, back where it came from, probably into the inside breast pocket of Scarborough’s coat.

Ginnis and Scarborough talk quickly now. One of the women flips her pencil into the air, and it lands on the pad in front of her. “We tried to get some of this, but his face is in his plate most of the time. At one point he says ‘good work,’ but that’s all we could make out.”

The video ends, and we turn off the set.

“It’s yeoman service,” I tell them. “Bonuses all around.” Even if I have to pay them out of my own pocket. “And you.” I look at Jennifer. “Don’t let anybody ever tell you that you’re not tenacious,” I tell her.

The party goes on for a while as they debrief and unwind all the details of the morning and afternoon since Jennifer returned with the disk and they first punched it up. Twenty minutes later Jennifer is the last of our staff out the door, walking on air, headed for home.

Harry watches her from the open door as she disappears under the arch and out to the street, and then closes it. “You know, it’s only a guess, but I would bet she’ll never forget this day.”

“No. I doubt that she will.”

“Not to diminish what any of them did. Hell, this morning we weren’t even sure that the letter existed. Now we have a picture of it,” says Harry. “For all the good it will do us.”

“I know,” I say. “There’s no foundation to get any of it in, unless we can produce the person who made the video, and he’s dead.”

“Did you see the look on Ginnis’s face when Scarborough dropped that letter on the table?” says Harry. “That old man is up to his teeth in this thing. There’s a lot of fear in that video.”

“That wasn’t fear you saw. That was anger.”

Harry shoots me a questioning look.

“Ginnis’s face on that video brought back something that Trisha Scott told me months ago, when I met with her in Washington. She said Ginnis despised Scarborough and that he wouldn’t have anything to do with him. It was her way of trying to get me to leave Ginnis alone.”

“Yeah, and as I recall, she lied to you about other things, too,” says Harry.

“I’m not so sure.”

“Well, you just saw them sitting there on that video, or are my eyes deceiving me?” says Harry. “I grant you they may not have been all warm and fuzzy over each other. But apparently there’s enough commercial avarice between them to bridge any troubled waters.”

“I also read the book,” I tell him.

“What book?”

“The one Scarborough wrote about the Supreme Court, Case of the Century, about the presidential election and the razor’s-edge balloting decided by the Court.”

“How can anyone forget?” says Harry.

The election was nearly twelve years ago, the administration long gone.

“I ordered the book from Amazon. It’s been on my nightstand for four months.”

“Not a lot of leisure for nighttime reading, is what you’re telling me,” says Harry.

“I finally got around to it last weekend. It’s a real page-turner.”

“Don’t keep me in suspense,” he says.

“In it Scarborough does for the Court what Martin Luther did for the Catholic Church. He excoriated the nine of them. But he saved the bitterest bile for Ginnis, the swing vote in the big case. According to Scarborough, Ginnis handpicked his own president.”

“Lucky man! Still, somebody had to do it,” says Harry. “As I recall, after all the lawyers showed up, the two candidates were no longer willing to pitch pennies for the post.”

“Scarborough called Ginnis a party hack, and that was among the more gracious things he had to say.”

“Sour grapes,” says Harry.

“No, not sour. Poisonous,” I tell him.

Harry looks at me.

“The real cross Scarborough left Ginnis to carry was the charge that the justice had committed ethical violations. Scarborough claimed that Ginnis engaged in private, out-of-court communications, ex parte, during the case with some of the lofty lawyers representing the soon-to-be-anointed president. And Scarborough said there was a point to all this talking. Ginnis was lobbying for another judicial post, and he was doing it from a point of leverage.”

“Something higher than the Supreme Court?” says Harry.

“Chief justice!”

This draws a pair of arched eyebrows from Harry.

“According to Scarborough, Ginnis wanted to head up the Court.”

“I don’t remember that. I remember when the position came open, chief justice,” says Harry. “That was a few years ago. But I don’t remember Ginnis being mentioned as a candidate.”

“That’s the point. He wasn’t. Trisha Scott told me the charges were a lie. She may have been right. I don’t know. But it didn’t matter. When the position of chief justice fell vacant two years after the razor-sharp election, Ginnis didn’t even make the short list.”

“Maybe he was too old,” says Harry.

“No. That wasn’t it. It wasn’t in Scarborough’s book either, but it did make Newsweek, a tiny one-column article at the time. A source in the White House-unnamed, of course-said Ginnis was the president’s first pick for chief justice. The problem was, they couldn’t put him on the list because of Scarborough’s book and the charges he’d made. To nominate Ginnis would lend credence to the charges, and the administration, Ginnis’s handpicked president, didn’t want the heat. How’s that for having your career capped?”

“The top of the pyramid is always slippery,” says Harry.

“And I’ve been told that time heals all wounds. But you do have to wonder,” I say. “The two of them sitting there breaking bread.”

“So where does that leave us?”

“Without the Jefferson Letter, the only evidence we have is that video. That means we don’t have a choice,” I tell him. “We’ve got to find Ginnis, track him down and serve him. Shackle and drag him if we have to, but get him here, and get him into court.”