Shadow of Power

26

Quinn calls the lunch break, and Harry and I meet with Jennifer Sanchez, our paralegal, at a small bistro two blocks from the dwindling army of demonstrators in front of the courthouse.

Jennifer is decked out in her best going-to-court suit, slacks and a jacket with a white blouse and ruffled collar. She’s nervous, and you can see it. I tell her that I’ll be with her the entire time, that if Tuchio tries to get rough, I’ll be all over him.

She nods and smiles, but in her eyes I can see the anxiety.

“Just think before you answer any questions. If you don’t know the answer, say you don’t know.”

Harry says, “Listen, you won’t have any problems on direct. Paul will lay it all out for you. But when Tuchio gets up on cross-examination,” he says, “he is going to try and pick up speed, get a quick rhythm going so that you can’t think between questions. Don’t let him do it,” says Harry.

“Pause between answers. He can’t ask another question till you’ve answered the one before it, and if he tries, we’ll object. All you have to do is stay calm. Just tell the jury what you saw, what happened.”

Jennifer doesn’t want any lunch. She’s afraid she may not be able to keep it down. Harry and I go light, and less than an hour later we’re back in the courtroom.

Jennifer is on the stand, sworn and seated, her back straight as a board, hands in her lap. She takes a deep breath, and I take her carefully through the preliminaries-the fact that she has spent her whole life in San Diego and attended local schools, her training as a paralegal, her employment with our office, the fact that she loves her work, any piece of information that might endear her to the jury. Our entire case now hinges on whether they believe her.

“I think it was exactly a week ago, Thursday morning, can you tell the jury what time you arrived at work?”

“It was about seven A.M.,” she says. “I had a lot of work to do, and I wanted to get an early start.”

“And when you arrived, was there anyone else in the office?”

“No. I was the first one there.”

“Please tell the jury what you found when you opened the door to the office that morning?” I try to make this sound as matter-of-fact as I can.

“When I unlocked the door and opened it, there were a couple of items on the floor. There was an envelope and a flyer, I think an advertisement, and the flyer was from a new restaurant that was opening down the street.”

“And the envelope, did you know who that was from?”

“No.”

“Did it have a return address on it?”

“No.”

“Did it have any postage on it? Stamps or a tape from a postage machine?”

“No. Just a label addressed to you and a typed notation under the office address saying ‘Personal and Confidential.’”

“Was it unusual to find letters or other pieces of literature slipped under the door in the morning when you arrived at work?”

“No. Happens all the time,” she says. “Clients sometimes slip envelopes with checks for payment of bills, advertisements, sometimes even reports from expert witnesses if they’re small enough.”

“So finding this envelope on the floor didn’t surprise you?”

“No. Not at all.”

“Can you tell the jury what you did with this envelope after you found it?”

“I picked it up, and I put it on your desk.”

“In my office?”

“Yes.”

“You didn’t open it?”

“No.”

“Can you tell the jury why you didn’t open it?”

“It’s firm policy,” she says, “that items coming in marked personal or confidential are to be delivered unopened to the person they’re addressed to in the office.”

“What about other mail, not marked personal or confidential? Can you tell the jury what happens with that?”

“It’s opened by one of the secretaries. If it’s business or legal, the correspondence is normally removed from the envelope, and then the envelope is stapled to the letter or whatever it is, so that if there’s a postmark or a cancellation on the envelope, we have it.”

“But this didn’t happen with the envelope you found on the floor?”

“No.”

“Because it was sent to me, and marked personal and confidential?”

“That’s correct.”

We talk about the size of the envelope, large enough to hold letter-size paper laid flat, unfolded. I ask her if she touched the envelope again at any time after she set it on my desk, and she says no.

I ask her if anyone else touched it, and she says she doesn’t think so.

I ask her if she knows when the envelope was finally opened, and she tells the jury that this happened the following Monday morning when I returned to the office.

“And were you present when this was done?”

“I was in your office,” she says.

“So between Thursday morning when you discovered the envelope on the floor inside the door to our office and Monday morning when I returned to the office, as far as you know the envelope in question remained on my desk, unopened?”

“That’s correct.”

Now I have her tell the jury where Harry and I were during all this time, from the moment she discovered the letter on the floor until I returned on Monday morning to open it.

“You were out of the country on business,” she says.

“And how do you know that?”

“Because I helped make the travel arrangements, one of the secretaries and myself,” she says, “and because in preparation for my appearance here today, both you and Mr. Hinds showed me your passports with both entry and exit stamps for the dates in question from the island of Curaçao in the Caribbean.”

We have had certified copies of the passport pages prepared. I show them to Jennifer, we have them marked for identification, and we enter them in evidence.

“Do you know the date and time that we departed the airport en route to Curaçao?”

“It was just before eight last Wednesday night,” she says. “I think seven-fifty or seven fifty-five.”

“And can you tell the jury where you were at that time, on Wednesday night-this would be the night before you discovered the envelope on the floor?”

“I was having dinner with a friend at a restaurant on Coronado Island.”

“And what did you do after dinner?”

“I went back to the office for about an hour.”

“And what time did you arrive at the office?”

“A little after ten,” she says.

“And how long did you remain at the office that evening?”

“I had some work to finish. I left the office to go home. I think it was a few minutes after eleven.”

“When you left, was there anyone else in the office?”

“No.”

“And I assume that the envelope you discovered the next morning was not on the floor in the office when you left the office Wednesday evening?”

“That’s correct. It was not there.”

“Now let me change gears here. Do you know why Mr. Hinds and I traveled to the island of Curaçao?”

“Objection, hearsay,” says Tuchio. “All she can know is what they told her.”

“Sustained.”

I stop and think. At this moment we are winging it. Tuchio’s objection suddenly has me reaching for something I hadn’t planned on, something I’ve never discussed with Jennifer in our preparations.

“Apart from anything I may have told you, or that Mr. Hinds may have told you, put that out of your mind,” I tell her. “Apart from any of that, do you have any independent knowledge of your own, based on your own observations, your own work in the office, things you have personally observed or witnessed that give you any independent knowledge as to what Mr. Hinds and I were doing on the island of Curaçao during the period in question?”

“Objection, Your Honor.” Tuchio is on his feet, leaning over the table, both hands extended. He can’t get around the corner of the table fast enough. He wants a conference at the side of the bench.

By the time we get there, Quinn is already leaning over.

“Your Honor, they’re trying to come in through the back door on the restaurant video,” says Tuchio. “We know that this witness discovered the DVD in the evidence locker. We have to assume that she’s seen it. Madriani is trying to use the video to leverage her into saying Ginnis’s name, because as soon as she does, he’ll have the jury distracted, looking in all the wrong places for the killer. There is still no foundation for that video”-Tuchio pounds the words home-“and no basis in evidence to mention Arthur Ginnis’s name.”

I go back to my argument that the Jefferson Letter, Scarborough’s copy, which we now have, and its appearance in the restaurant video link these two items inextricably. To allow the letter into evidence without the video of Scarborough and Ginnis is to leave the jury half blind.

“Apart from that,” I tell Quinn, “Ms. Sanchez knows, based on her own independent observations and her own work product, that Mr. Hinds and I were searching for a witness on that island, and she knows who that witness is. She knows what we were doing in Curaçao. Mr. Tuchio would have the jury believe that we took a vacation in the middle of the trial.”

“Sounds about right to me,” says Tuchio.

Quinn is nodding. “I’m not going to allow you to talk about the video, Mr. Madriani. So stay away from that line of questioning,” he says. “However, I think it is fair to inform the jury that you were in Curaçao on legitimate business. The witness can confirm that you were on the island searching for a witness. But that is all. There is to be no disclosure as to the identity of that witness. Do you understand?” He looks at me.

I nod.

“No, better yet,” he says, “I’ll take care of this myself, from the bench.”

The judge waves us away. What Quinn is worried about is that Jennifer and I will get our signals mixed and that before anyone can stop her, she’ll blurt out the name Arthur Ginnis.

Quinn wheels around and sits upright in his chair.

By the time I get back to the witness stand, Jennifer is sitting there on needles. I can tell she knows where I’m trying to go, and she’s itching to answer the question.

The judge clears his throat and intones, “The jury may take notice of the fact that Mr. Madriani and Mr. Hinds were on legitimate business and that during the period in question they were searching for a witness on the island of Kureasaw.” He murders the name. “The record will so reflect.”

He looks down at me. “Now move on, Mr. Madriani.”

Jennifer gives me a slight shrug and an innocent smile as if to say, All we can do is try.

I draw her attention to Monday morning and the envelope on my desk.

For the next forty minutes, through questions and answers, she describes to the jury what she saw when I opened the envelope in my office that morning-the folded pages with the spots of blood-and then later when Harry picked up the envelope and the tiny plastic bag with the strands of hair fell out. We include testimony describing the awkward copying of the Jefferson Letter that went on in the office and the photographs that were taken.

The state will waste no time stirring the toxin of cynicism with innuendos and inferences, if not outright assertions that we planted the letter in our own office and that we choreographed all this for the benefit of the jury.

When Jennifer is finished describing what happened in the office, I retreat to the evidence cart.

First I show her the outer envelope with my name and the words “Personal & Confidential” typed on the address label. This is now encased in a clear plastic evidence bag from the police crime lab.

She identifies it as the envelope found on the office floor Thursday morning.

Next is Scarborough’s copy of the Jefferson Letter, the folded document with the rust-colored blood on one side. For the moment the letter is sealed in a clear plastic bag, though this will be removed later to better preserve the blood evidence on the paper.

Jennifer identifies this as one of the items extracted from the envelope that morning. She still does not know the contents of the letter, nor do any of the other members of our office staff or expert witnesses, who have been instructed not to read it. The reason for this is the need to carefully control the timing of this evidence before the jury. If we slip up and open the door for Tuchio to get into this in his cross-examination of one of our witnesses, it could destroy the entire strategy of our defense.

She then identifies the other item, the small plastic bag, though the hairs that it once contained have now been removed for preservation.

“Now let me ask you, do you have any idea, any information at all, as to who might have placed this envelope under the door to our law office on Coronado?”

“No. I have no idea at all.”

“So the only thing you can tell the jury is that the envelope was not there Wednesday night when you left the office at approximately eleven o’clock and that it was there at approximately seven the following morning when you arrived for work?”

“That’s correct.”

I turn to Tuchio. “Your witness.”

He wastes no time. He goes right for the jugular.

“Lemme get this straight, Ms. Sanchez. You expect this jury to believe that you never saw those items, the bloody letter,” he calls it, “and the little baggie of hair before they magically appeared on your office floor last Thursday morning, is that right?”

“I don’t know what the jury wants to believe. All I can do is tell them the truth.”

Good girl.

“Come. Come now,” he says. “Are you telling us that Mr. Madriani didn’t instruct you on what to say here this morning, that he didn’t dictate it to you line by line so that you would get it straight?”

To Jennifer these are fighting words. “That’s exactly what I’m telling you.” She looks at the jury now and ignores him. “What I am telling you is what I saw, everyth-”

“You’re telling us you never saw those items-”

“Your Honor, he’s cutting the witness off. If he wants to ask a question, he should allow the witness to answer.”

Tuchio turns to look at me. “I thought she was finished.”

“She wasn’t,” I tell him.

“Gentlemen, direct your comments here, to me, not to one another,” says Quinn. “The witness will be allowed to complete her answers.” The judge gives Jennifer a courtly smile and tells her to go ahead and finish.

She looks directly at the jury once more. “What I’m telling you is what I saw, all of it, everything, nothing added and nothing taken away. It is the truth.” She says this with an earnestness and a fire in her eyes.

When she turns back to him, Tuchio just stands there. For at least six or seven seconds, there is nothing but silence. Then he asks, “Are you finished?”

“Yes.” She looks at him, one of those drop-dead expressions that only a woman can give you.

“I wasn’t sure,” he says. “Let me ask you another question,” he says. “Did Mr. Madriani prepare you for your testimony here today? Did you spend any time talking with him about it, discussing it?”

“We did.”

“How much time?” he says.

“An hour, maybe a little more.”

“And Mr. Hinds, let’s not leave out Mr. Hinds. Did you spend any time with him preparing for your appearance here in court?”

“Some,” she says.

“How much?”

“About two hours.”

“Was that together with Mr. Madriani or separate?” he says.

“Part of it was together with both of them. Part of it was separate.”

“And where and when did this take place, this preparation?” Tuchio makes it sound like a four-letter word.

“In the office, last night and the night before.”

“So it was all very recent?” he says.

“Yes.”

“Well, I guess that makes sense,” he says. “After all, there wasn’t much time to prepare this whole thing, the mystery missive, and the little hairs being dropped on everyone so late and so suddenly,” he says.

“Is there a question in any of that?” says Quinn.

“I was about to frame one, Your Honor.”

“Then get on with it.”

“When this envelope was opened by Mr. Madriani in his office that day, Monday, I believe you testified that there were four people present in the room, is that correct?”

“Yes.”

“Mr. Madriani, Mr. Hinds, yourself, and Mr. Diggs, is that right?”

“That’s right.”

“Now, I can understand why Mr. Madriani can’t take the stand to testify. He is counsel in the case, as well as is Mr. Hinds. But did they tell you why you were selected to come here and tell us this story?” Tuchio would use the word “fable,” but the judge would jump on him.

“First of all, they didn’t tell me to do it. They asked me, and I said yes.”

“So you were anxious to come here today and testify?”

“No. I can’t say I’m enjoying the experience,” she says.

Some of the members of the jury laugh.

“But if that’s the case, why are you here instead of Mr. Diggs? He saw the same things you did, didn’t he?”

“Not exactly,” she says. “Mr. Diggs didn’t find the envelope on the floor. I’m not a lawyer,” she says, “but I didn’t think he could testify to that. Could he?”

Quinn’s chuckling up on the bench, and then he whispers, “You may not be a lawyer, but you’re doing fine.” He looks at the court reporter and wags a finger. He doesn’t want the comment on the record.

“Well, other than the economy of witnesses,” says Tuchio, “was there any other reason Mr. Diggs couldn’t testify here today? I mean, you certainly could have taken the stand and told the jury how you found the envelope, but the rest of it, why not use Mr. Diggs?”

“Why bother, since I’m here already?” she says.

“Mr. Diggs is the African American investigator in your office, isn’t he?”

“That’s correct.”

“Well, wouldn’t it be more natural for an investigator-who sees things, investigates matters, and I assume who testifies regularly in court-to appear here today to tell us what he saw rather than a paralegal? And believe me,” he adds, “I’m not trying to denigrate what you do for a living. We have paralegals in our office, and without them we couldn’t survive. But why you and not the investigator, that’s what I want to know.”

“I don’t know,” she says. “Maybe he was busy.”

“Ah,” he says. “Too busy to testify in the biggest case in their office?” He looks over at our table, then back to the jury box.

“I don’t know,” she says. “All I know is that they asked me if I was willing to do it, and I said yes.”

“Is it possible that they-by ‘they’ I mean Mr. Madriani and Mr. Hinds-may have asked Mr. Diggs to testify here today and that Mr. Diggs declined?”

“What would make you think that?” she says.

“I get to ask the questions. You get to answer them,” says Tuchio. “Is it possible that Mr. Diggs declined to testify?”

“No,” she says.

“Do you know that to be a fact?” he asks.

“Well, no, I don’t know it, but I know Herman-”

“So you haven’t discussed this with Mr. Diggs, whether they asked him to testify here today and what he may have said?”

“No. We’ve been busy,” she says.

Tuchio can be sure that this was a tactical decision made by Harry and me. He could also be certain that we wouldn’t share the rationale for this decision with Jennifer, for the very reason that if he asked her on the stand as he has, she would be able to say truthfully that she didn’t know why she was here instead of Herman. Why force your witness to tell jurors to their face that you’re trying to manipulate them?

Besides the fact that she discovered the envelope on the floor, something Herman couldn’t testify to, is the simple fact that with a majority of women on the jury, she is the sympathetic witness, a woman on the stand testifying before women on the jury. Tuchio would have to use more restraint in the manner in which he attacked her on cross.

So now he feels free to damage us in other ways, planting the false seed, the innuendo, that perhaps Herman knew something, maybe about the way in which the letter and the hairs arrived at our office, and that therefore he either declined or was not permitted by Harry and me to testify.

When I look over, Harry is already working his cell phone under the table, sending a text message to Herman, telling him to come on over and join the party.

“Since you’re not sure about the answer to that one, let me ask another question,” says Tuchio. “When Mr. Madriani opened the envelope on his desk that morning-Monday, I believe-I think you testified that he pulled the bloody letter out of the envelope with a large pair of tweezers, not his hand, is that correct?”

“That’s right.”

“Why did he do this?”

Jennifer gives him a quizzical look. “I don’t understand the question.”

“What I mean is, when you open an envelope, don’t you usually just reach in and take out whatever’s inside? I mean, unless you think there’s a bomb, or a snake, or a bloody letter in there, why would you go and get a pair of forceps before you even reached inside with your hand?”

“I think I testified that he did reach inside,” she says.

“But he didn’t take it out, not with his hand, did he?”

Jennifer hesitates.

“Did he?” he says. Tuchio knows I didn’t, because my prints were not on the letter when the crime lab examined it.

“No. I think he may-”

“You’ve answered the question,” he says. “The answer is no. So let me ask you a different question.” He’s starting to get into a rhythm. “I know you’re not a lawyer,” he says. “But you have worked on this case, right?”

“To some extent.”

“You know what it’s about, most of the evidence, right?”

“Some of it.”

“Well, you know about the mysterious missing item?” As he says this, Tuchio turns and looks back at me.

When she doesn’t answer, he looks back to her. “The bloody letter?” he clarifies it for her.

“Yes.”

“And the hair evidence, the strands of hair in the bathroom and on the chair at the scene.”

“I know what I’ve read in the papers,” she says. Jennifer’s getting cautious now.

“That would be enough,” he says. “If someone wanted to plant evidence-say, slip it under a lawyer’s door, an item that was taken from the scene of a murder in order to show that the person who was charged didn’t do the crime, and let’s say there was evidence, clear, conclusive evidence that the defendant had in fact been at the scene of the crime-wouldn’t that present a problem?”

“I guess I’m not following,” says Jennifer.

“What I mean is, if we know that the defendant was at the scene and that the item was taken from the scene, doesn’t it stand to reason that the defendant could have taken it in the first place, and if so, how does that clear him?”

“I’m going to object, Your Honor. Hypothetical questions. Counsel is asking the witness to speculate. She’s not a lawyer. She’s not a crime-scene-reconstruction expert.”

“No, but she is here testifying as to how the envelope arrived at their office. The question doesn’t go to her expertise, it goes to credibility. If she doesn’t understand what may be happening here, then maybe she’s in the clear.”

What Tuchio is saying is maybe Jennifer thinks she is telling the truth and that she’s being used, on the stand, for this reason.

“Overruled,” says Quinn. “I’ll allow it.”

Tuchio restates the question without mentioning names. How could Carl be exonerated, cleared by the sudden and mysterious appearance of an item that was at the scene, when we know that Carl was at the scene?

“Well, if he didn’t have the item when he was arrested and he’s been in jail, how could he-”

“Deliver the item to your office?” Tuchio finishes the question for her. “Easy. He could have handed it off to someone else. A friend, a family member, a lawyer,” he says.

Jennifer shakes her head. “No. No…no.”

“How would you know?” he says. “Are you familiar with every item, every scrap of paper, every scintilla and wisp of evidence in the files at your office? Do you know what’s in everybody’s desk drawers or for that matter what they might have in their possession outside of the office?”

“How could I?” she says. “That’s not possible.”

Harry is leaning back in his chair, running his hands through his hair, trying to catch her attention, get her to take a deep breath and to stop.

“My point exactly. All you actually know is what you’ve seen. Isn’t that so?”

“That’s all anybody knows,” she says.

“Precisely.”

“No,” she says. “That can’t…no. And what about the hair?” she says.

I glance over, and Harry rolls his eyes.

“Ah, now we get to the nub,” he says. “The hair, isn’t that convenient?”

She looks at him but doesn’t answer.

“I mean, once you realize that simply producing the item taken from the scene isn’t going to do the trick, that you need something more, isn’t it convenient that this something more, whatever it is, just happens to be in the same envelope?”

She doesn’t answer.

“Well, isn’t it? Convenient, I mean?”

“I don’t know,” she says.

“Well then, let me ask you one final question. Who stands to benefit the most from the items in the envelope that were slipped under your office door in the middle of the night? That should be an easy one,” he says.

She looks at him.

“Come on now, isn’t the answer obvious? Who else could possibly benefit? It’s the defendant, Carl Arnsberg, Mr. Madriani’s client, isn’t it?”

“I don’t know.”

“You don’t know?” His voice goes up a full octave from the first word to the last.

“I suppose,” she says.

“You suppose?”

“Yes.”