Shadow of Power

30

Because of the riots, Quinn has had to move the jury across town to a hotel where they deliberate in a conference room for two days while the police battle with rioters in the streets downtown.

Three days later they finally return to the courthouse where burned-out vehicles along Broadway are still smoldering. And they continue to deliberate.

It was that morning that Harry came into my office and reminded me that in our rush to the island, our search for Ginnis, and the forty-eight-hour forensic mayhem after the delivery of the Jefferson Letter, we had forgotten to follow up on one item. He had it in his hand.

It was a copy of the Post-it note on the inside of the jewel-case cover holding the DVD found by Jennifer in the police evidence locker, now nearly two months ago, the one with Ginnis’s name on it.

But it was the other name on the slip that Harry was talking about, the name Edgar Zobel. He hands me a stapled stack of pages, maybe twenty in all.

Edgar Zobel, a French émigré to the United States, came to Virginia with his parents as a young boy. Zobel had always had an interest in writing, not so much with an eye toward content as style. In his youth he had mastered the art of calligraphy. He actually held two U.S. copyrights for scripts that were later developed into type fonts first used on old Selectric typewriters and later incorporated in digitized type fonts for computers, but that would be later in life.

Growing up in Virginia, he was immersed in the Colonial history of the area. Museums in and around Washington often exhibited the private and public letters of historic figures. As a child Zobel marveled at the different colors of ink and the elegant flourishes of script, on paper yellowed by age, the edges of which were often frayed. He practiced the fine styles of penmanship employed by those composing letters that now rested under glass in the display cases of museums. By the time he was fifteen, he possessed his own collection of these in replica form. Several of them were mounted, framed, and hung on the walls of his room.

In an age before computers, when other kids were out playing baseball or swimming, Edgar was busy indulging his fetish, replicating more items for his collection of historic documents. He became adroit in the use of sealing wax and collected old metal stamps created to impress an image in the hot wax that sealed folded letters in the time before envelopes were invented.

By the time he was thirty, Zobel could copy the elegant freestyle script of more than eighteen of the early U.S. presidents so closely that even experienced handwriting experts would have difficulty identifying the replica from the real. Without a thorough analysis of the paper and ink, it would have been impossible to tell.

It was about that time that Zobel was approached by two men who owned a small shop in the historic district of Fredericksburg, Virginia. The shop dealt in antiquities, mostly Civil War memorabilia with an occasional item dating back to the Revolution. The men wanted Zobel to craft some elegant replicas of historic correspondence that they could sell to customers who either couldn’t afford to or didn’t want to pay the high prices of historic originals. To make a few bucks, Zobel was happy to do it.

The copied documents always carried a printed disclaimer, “Hand-Reproduced Replica,” on the back. Almost all of Zobel’s early copies were of well-known historic letters or documents, but they were different from the usual lithograph copy you might find in typical curio shops, much more authentic to the eye in terms of paper texture and ink. They had a kind of three-dimensional quality, including the folds in the paper and its frayed edges, that made them look astonishingly real. Each document was scripted on unique paper. For Colonial documents Zobel would use custom-made paper, large sheets similar to those used in the Colonial period, which were then either cut or torn into quarters to make traditional “quartos,” the quarter pages often used for writing. Sometimes he would employ a smaller “folio” size.

In time the owners of the shop where Zobel’s work was displayed came to realize that collectors of rare documents were traveling long distances, some from as far away as New York, Boston, and Chicago, to buy up everything that Zobel created, as fast as he could produce it. When the shop raised its prices for Zobel’s works, while the profits rose, the result was the same. Their inventory of his work was gone almost before it could be hung. Tony decorating salons in Georgetown and Manhattan began to call, asking if they could commission specific items. If the shop could have cloned Zobel, they would have made a fortune.

The problem was, there was a built-in economic ceiling for his work. The moment the prices started approaching the cost of an original, demand disappeared. It didn’t take long before it dawned on them that if people with money in New York and Boston were decorating the walls of their studies and libraries with Zobel’s elegant copies, how much more would they pay if they thought the article was real?

They didn’t have to argue long to convince Zobel. He had been working up calluses on his fingers, was running out of turkey quills, and had less than twelve hundred dollars to show for eighteen documents, all of which were sold nearly before they were written. Zobel was having visions of dying like van Gogh, broke, only to have collectors trading his works for millions years later, as pieces of art.

The first item they crafted was an original letter from Washington to one of his aides, an obscure two paragraphs about military stores for his troops. For provenance the shop owners claimed that the item was found pasted to the back of a drawer in an eighteenth-century dining set that came into their shop. The piece sold at auction in New York for eighteen thousand dollars. They did it again, a different letter, a different author, and this time they used a party not connected with the shop who said she found the item behind an old photo, a family heirloom. They netted twenty-three thousand dollars at auction.

Now they were in business. They kept the documents sufficiently obscure, with only one notable signature, so the price would stay in the realm of reason and the buyer would not be induced to have experts examine the paper and ink. In fourteen months they’d sold seventeen pieces, netting nearly half a million dollars. It was that last piece, the seventeenth item that brought the roof down. It seems they’d gone to the well once too often. One of the auction houses in New York got suspicious. Unless someone had found a chest of forgotten letters, a mother lode of historic grocery lists penned by the pantheon of American founders, there were simply too many new finds coming from one region all at one time. A quick check of the ink and paper and it didn’t take long for the FBI to trace everything back to the little shop in Fredericksburg.

It is from the statement of facts in the circuit court’s opinion that Harry gleaned all these details of Zobel’s early life.

Edgar Zobel did six and a half years in the federal penitentiary in Atlanta for interstate fraud, wire and mail fraud, and lost his house, paying a fine of a quarter of a million dollars. He sat in prison while his lawyers filed an appeal that was ultimately denied by the federal Fourth Circuit Court of Appeals in Virginia, an opinion written by the Honorable John R. Logan, circuit judge. It took Harry a few minutes longer to find the names of the other two judges on the three-judge panel: the Honorable Rufus James and Arthur J. Ginnis, both concurring. That was twenty-six years ago.

Immediately I called Quinn and told him. I gave him the citation so he could find the case.

He told me that it was interesting, he would look at it, but that it was outside the record of the trial and could not be given to the jury.

I told him I knew that, but that it was the first solid piece of evidence we had that the Jefferson Letter, more than likely, was a fraud.

It took Herman a little longer than Harry-and some shoe leather-to discover that Zobel was still alive and to find him. In nearly a quarter of a century, he hadn’t ventured far. Zobel was living in a small house that unless you looked closely you might swear was a barn, along a dried-up creek among scrub oaks twelve miles outside Charlottesville, Virginia. The inside walls of his house were literally pasted with historic documents, some of them framed, some not.

Since getting out of prison twenty years earlier, Zobel had gone back to his roots. For a price he would sell you a replicated piece of history, anything you wanted, signed by a historic figure. Most of his business was done over the Internet and via e-mail.

Replicated documents or whimsical originals were sent out by UPS ground shipment, unless the buyer wanted to spring for overnight delivery.

According to what Zobel told Herman, he almost never saw the people who commissioned his work. He imposed only two requirements on his customers. First, they were required to sign and mail in a disclaimer, the form that was on Zobel’s Web site, verifying that they were commissioning the work and that there was no intent on their part to use the document for any fraudulent or unlawful purpose. Second, they had to agree that the document, when completed, would bear a discreet notation in indelible ink printed on the reverse side that the item was “a hand-replicated copy, and not an original.” That and payment, either by credit card to his site on the Internet or by check with return of the disclaimer, was all Zobel required.

When Herman showed Zobel a copy of the Jefferson Letter, the man nearly collapsed behind the counter. He had been waiting for the FBI to arrive for three weeks. When he saw the copy, he assumed that Herman was there to arrest him. Herman assured him that what he wanted was information and nothing more.

Zobel told him that from the start it was an unusual transaction, but that he’d done everything by the book. It had been ordered not over the Internet, but by phone. A price had been quoted, and a few days later an envelope arrived with typed memoranda of the contents to be penned in the letter, along with the signed disclaimer form, apparently printed off Zobel’s Web site. There were also fifteen crisp one-hundred-dollar bills, the price quoted.

All this made Zobel nervous. He was no longer on parole, but he didn’t want to go back to prison, so he did the right thing. He called his lawyer.

The lawyer assured him that as long as he had the signed disclaimer and he printed the notation on the back of the replicated document, he was in the clear. So he did it. According to Zobel’s records, the “original” of the J letter, written on four custom-made quarto-size sheets, was picked up by a private courier service two weeks later. Zobel didn’t note or write down the name of the courier service. When he pulled the disclaimer form from the file that included a copy of his work and the original envelope containing the money, the return address on the envelope read “T. Scarborough,” with Scarborough’s Georgetown address. And the disclaimer form bore the signature “T. Scarborough.” Herman used a subpoena to get the envelope and the original of the disclaimer form, leaving the subpoena and a copy of the form in Zobel’s files.

Back in the office, Harry, Herman, and I labor over the signature. While none of us are handwriting experts, Scarborough’s signature was somewhat unique. It would be difficult to copy. The signature at the bottom of Zobel’s disclaimer form appeared to be an original in blue ink, and from everything we can see-all the little nooks and crannies, right down to the tailored wisps of ink from his favored fountain pen-it appeared to be authentic.

So if someone else had commissioned the letter, how did they get Scarborough’s signature on the form?

Closeted with Quinn and Tuchio in chambers, we find this even more mystifying. The judge has been playing racquetball with the jury for more than ten days now, what with their constant requests for clarification on bits of evidence, some granted, some denied. They have returned three times to ask that Carl’s signed statement to the police following his arrest be read to them once more or, in the alternative, that they be given a copy.

Quinn has said no to a copy, from which they might end up parsing the words, but he has sent his clerk, Ruiz, in twice to read it to them.

If it’s possible to interpret their questions, with all the evidence that’s been presented to the jury, the stunning revelations of the Jefferson Letter and the matching evidence of hair samples from the envelope to those found at the scene, the jury seems hung up on a single point: how Carl could have gotten the tray with food to the table in Scarborough’s room without first seeing his body.

Guess what a jury will do with the evidence and you’ll be wrong a dozen times out of a dozen.

Quinn is now mired in another trial in a courtroom down the hall, so he has little time for us this morning.

“What the hell is going on?” says Quinn. “From the videotape and the transcript, the two of them having dinner, Teddy’s transcript, Ginnis gave Scarborough the copy of the letter. Now you bring me this,” he says.

The judge is holding the disclaimer form signed by Scarborough. “Why is Scarborough asking Ginnis for the original if he already had it?”

“It’s a good thing that video didn’t come in,” says Tuchio.

“I’m beginning to think that that video is the only thing that is real,” I tell him.

The judge has to get back to court. He is ushering us out just as Ruiz, his clerk, is coming the other way.

“You guys better stick around,” says Ruiz. “Your Honor, the jury is back,” he says.

“A verdict?”

Ruiz shrugs and shakes his head. He’s not sure, but they’ve notified the bailiff that they’re ready to come out of the jury room.

Twenty minutes later the courtroom is packed, Harry and Carl seated at the counsel table with me.

“What do you think?” says Carl.

“I don’t know. They’ve been out a long time.”

The general rule is that a quick verdict is a guilty verdict. The longer the jury is out, the greater the possibility that Carl will be acquitted. At least that’s the rule of thumb. I’ve told him this, but I haven’t dwelled on it. There’s the risk of rising expectations and the shattering shock if I’m wrong.

We wait for another eighteen minutes before the jury files in. When a jury comes in, it is always the same, the rush of emotions, the anxiety. My stomach produces enough acid to etch the concrete on my driveway. You find yourself leaping at every little sign, looking for signals. The sure and certain giveaway is when one or more of the jurors smiles at the defendant.

None of them do this today. The fact is that not a single one of them makes eye contact with Carl, or anyone else at our table. This is not good.

Quinn allows them to settle into their chairs. “The court will come to order.”

He waits for things to settle down out in the audience, until all you can hear is a couple of coughs and some throat clearing. “Mr. Foreman.”

The jury foreman rises.

“Has the jury arrived at a verdict?”

“It has not, Your Honor. We are deadlocked.”

A hung jury. There is commotion in the audience behind us, people up out of their chairs.

The judge hammers his gavel. “The court will come to order. You people out in the audience, take your seats and be quiet.”

When I turn, I see the expression of concern on Sam Arnsberg’s face, Carl’s dad, seated in the front row directly behind us. He’s not sure what this means, nor is Carl.

“What’s happening?”

“Just sit tight. Don’t talk to anybody, don’t say anything.”

Two of the deputies move up and stand just behind the bar railing at our backs. They are both facing out to the audience.

Everything now rests in Quinn’s hands, and I can tell by his expression that he is not happy.

He clears his throat. Quinn is considering his options as he sits up there on the bench. “Mr. Foreman.”

“Yes, Your Honor.”

“Now, I don’t want you to tell me what the vote is or which way the jury is leaning, but if I were to send you all back into the jury room to deliberate a little longer, do you think it’s likely that you would be able to arrive at a verdict?”

“I doubt it, Your Honor.”

This is not what Quinn wanted to hear.

“I’m going to ask the jurors to return to the jury room and just sit tight for a few more minutes. You’re not to deliberate, just sit there and relax.”

“What’s going on?” says Carl. “Does that mean I’m free?”

“Not yet,” I tell him.

The jury files out.

“I’ll see counsel in chambers. The defendant can go back in the lockup, just for a few minutes.”

The lawyers follow Quinn back to his office, but before he gets there, he stops for a second, tells us to go into the office while he talks with his clerk, Ruiz, just outside the door.

When he finally comes in, he doesn’t take off his robe but flops into his chair.

“Any motions?” he says.

Quinn is inviting Tuchio to make a motion for the dynamite charge.

“We would move that the court issue the modified Allen instruction to the jury, Your Honor.”

This is the polite name, the formal name. Many defense lawyers call it the “dynamite instruction,” because to them that’s what it is-a means to blast recalcitrant jurors, holdouts, into knuckling under and voting for conviction. The instruction in modified forms and variations has been around since the late 1800s and derives its name from the case that coined it, Allen v. United States.

It is generally brief, no more than a page when printed out on paper. In short, what it allows the judge to do is to instruct the jury that the state and the taxpayers have spent a great deal of money and the lawyers and the court have spent a great deal of time and energy to try the case. It also reminds them that if they fail to arrive at a verdict, the case may have to be retried. In effect it’s a mistrial, and that if this happens, it will cost more money and time. After some soothing words assuring the jurors that no one is trying to jimmy them into giving up an honestly held conviction, it ends with the bold statement that it is their duty to arrive at a verdict if they can do so.

Of course, by now all they remember is the last line, the “duty to arrive at a verdict” part delivered to them by God, who has just scowled at them from the bench. Some defense lawyers will tell you of cases in which the jury didn’t even get out of the box and back to the jury room before they voted to convict.

“Your Honor, you heard the jury foreman when you asked him if they could arrive at a verdict,” I say.

“He said he doubted it,” says Tuchio. “He didn’t say they were irreconcilably deadlocked.”

“Yeah, well, that’s a mouthful for anybody,” says Harry.

Quinn reaches into his drawer and pulls out the binder with jury instruction, looking for the page with the dynamite charge.

His clerk comes into chambers behind us and closes the door.

“Your Honor, can I ask you that before you read the charge to the jury-” I begin.

“Just a minute,” says the judge.

Ruiz cups a hand and whispers into the judge’s ear. Quinn swivels around in his chair so that they are both sheltered by the high back of the chair between us.

When the judge finally wheels around ten seconds later or so, he looks at me. “You were saying something, Mr. Madriani.”

“I wanted to ask you that before you read the charge to the jury, if you could one more time talk to the jury foreman to gain some kind of sense as to the real feasibility of a verdict?”

“That’s a fair request,” says Quinn. “Let’s head on back out.”

Eight minutes later the jury is back in the box. Carl is seated between Harry and me.

“The court will come to order,” says Quinn. “Mr. Foreman,” he says.

The jury foreman is back on his feet.

“Let me ask you one more time. If I were to send the jurors back into the jury room for further deliberations do you think they would be able to arrive at a verdict?”

“It’s not likely, Your Honor.” He says essentially the same thing a second time.

Quinn looks out from the bench. “At this time the court is going to declare a mistrial. The defendant is discharged. Mr. Tuchio, you’re free to file new charges.”

“Your Honor! Your Honor!” Tuchio is on his feet, one hand waving behind him at the audience, trying to get them back into their seats. This is like putting the genie back in the bottle. “May I request that the jury be polled?”

“That’s a fair request,” says the judge. “Everybody take your seats. Sit down, please. We’ll be through in just a minute.”

“Am I free?” says Carl.

“You are for now.”

He smiles at me, then turns and looks at his dad, a broad grin.

One by one they stand in the jury box and announce their verdict. Harry is taking notes on the jury sheets, the pages from jury selection, so we will know how they voted.

When they’re finished, Harry doesn’t have to tell us the tally. It is eleven to one for acquittal. The lone holdout, the woman in the jangling jewelry.

You can almost see the relief on Tuchio’s face. He has dodged a bullet by half an inch.

“The defendant is discharged,” says Quinn. “Free to go,” he says.

At least for now, unless Tuchio decides to recharge him. There is no double jeopardy in the case of a hung jury. The prosecution can do it all over again to the same defendant, with the same charges.

“Court is adjourned,” says the judge.

There is pandemonium in the courtroom, reporters leaning over the railing. They want to talk to Carl.

I tell him not to say a word, to keep his mouth shut. Harry takes him by the arm and goes with him back to the lockup and the jail to get his personal items and keep him away from the media.

One wrong word and Tuchio will jump on his back and use it against him in another trial.

At least in terms of a jury, the shock of the Jefferson Letter is past. It is not likely to have the same numbing effect if Tuchio does it over again. He also knows, as I do, that the Jefferson Letter is, without question, a tin-plated phony.