Shadow of Power

12

Monday morning, and Quinn’s courtroom is like a pool filled with gasoline. Now that there is no longer any doubt that the state’s case will be racially charged, we’re all swimming in it, and the air is electric.

First up into the witness box are two patrol officers, the first to arrive on the scene immediately after the crime was called in. They each testify that they took one look and concluded that the victim was dead. They did a quick search of the entire suite to determine there was no one else inside and then sealed the area, making sure that no one else entered. One of them took a statement from the hotel maid who’d opened the door and found the body slumped on the floor in front of a chair in the living room.

This is all preliminary and sets the stage for Brant Detrick, the lead homicide detective. If you’re looking to settle a jury down and get them into the rhythm of your case, Detrick is a good opening witness.

According to his testimony and based on notes he made at the time, Detrick was on the scene within forty minutes of the initial call to 911.

The D.A. then takes a few minutes to qualify the witness not only as an experienced homicide detective but as an expert in crime-scene reconstruction, for which Detrick has taken courses both locally and with the FBI.

Tuchio then has him lead us on a verbal and visual tour of what the cops found at the scene. He has Detrick stand in front of an easel with a mockup of the floor plan of Scarborough’s hotel room. This shows furniture drawn to scale and situated where it was on that day.

In the process, the detective offers testimony, a partial re-creation of the events at the scene and how according to the police they unfolded. He identifies the chair, the one the cops believe Scarborough was seated in when he was murdered.

“There was a considerable amount of blood on the headrest at the upper back of this chair, leading us to conclude that the victim was seated in this chair when he was struck from behind,” says Detrick.

He moves on to the area where the body came to rest, on the floor, in front of the chair, and off to the right as you look into the room.

“We believe that the victim either toppled or slid from the chair, as a result of one or more of the impacts from the murder weapon as it struck him or because lividity caused the body to slide out of the chair and onto the floor at some point after he died.”

Tuchio and the witness get into a discussion explaining to the jury the hydraulics of lividity, the movement of blood in the body after death by the force of gravity, and that this can sometimes move a body, especially if it’s propped in a chair or leaning toward the edge of a bed.

“When you arrived that morning, what else did you see?” asks Tuchio.

“There was a lot of blood and spatter evidence,” says Detrick. “The floor around the chair in the living room near where the body was found was pretty much covered in blood, as was the tile floor in the entry.”

“What do you mean by ‘spatter evidence’?” asks Tuchio.

“I’m talking about droplets and spray that are usually flung out in an arc of some kind when a weapon, a blunt instrument, or a knife has become covered with blood and is repeatedly swung. This tends to throw out a spray of blood, sometimes tissue, that ends up on other surfaces-a wall or the ceiling, for example.”

“And you saw evidence of such blood spatter in this case in the victim’s hotel room?”

“I did.”

“Where?”

“There were patterns on the ceiling, directly above and to the front, and behind the chair near where the body was found.”

Tuchio has him draw a dotted line on the room diagram in the direction and location where the spatter evidence was found. “There was also some evidence of spatter on the television screen, here.” He marks the location of the television directly in front and several feet away from the chair. “And on a small table, here, and a light briefcase, a leather portfolio that was on that table. And farther off to the right, we found some traces on the surface of a small table, underneath a tablecloth and tray with food on it.”

“But not on top of the tablecloth or tray?” Tuchio makes this very clear.

“No.”

Harry and I have been wondering how they’re going to deal with this. Blood under the cloth and tray but not on top means Arnsberg would have had to kill Scarborough while juggling a tray full of food and a tablecloth in one hand while he hit him with the hammer in the other.

“Did you find anything else?”

“We found a carpenter’s framing hammer.”

“When you say framing hammer, can you describe the hammer for the jury?”

“It was a typical hammer, the kind you might find in any hardware store. A metal hammer with claws for pulling nails or prying wood apart.”

“Was there anything peculiar about this hammer that brought it to your attention?”

“Yes. It had a considerable amount of blood on it, along with traces of tissue and hair stuck to the hammer in the area of the claws.”

“Okay. In relation to the other items in the room-the area where the victim lay, the chair, the television-where did you find this hammer?”

“It was on the tile floor a few feet off the carpet in the entry.”

Tuchio has him mark the diagram with the location where the hammer was found.

“When you saw this hammer, did you form any conclusions based on its location and the fact that it bore signs of blood and tissue?”

“The obvious one,” says Detrick.

“And what was that?”

“That there was a good chance that this was the murder weapon.”

Tuchio then walks over to the metal evidence cart that has been rolled out in front of the clerk’s desk. He picks through several paper bags, each of them sealed closed with a labeled tape from the police crime lab. He checks the tag on each bag until he finds the one he wants. Without opening it he carries the bag to Detrick, who is now back in the witness chair, and hands it to him.

“Would you open it, please, and remove the item inside?”

Everybody in the courtroom already knows what’s there, but the little drama keeps us all looking.

Detrick, who is wearing a pair of white cotton gloves, tears open the top of the bag, reaches inside, and removes the hammer. He holds it gently in both his gloved hands so the jury can see it. What appears to be rust but in fact is dried blood can be seen on the claws and head of the hammer.

“Detective Detrick, do you recognize that hammer?”

There is an evidence tag hanging from a string tied around the handle near the head. Detrick looks at the tag. “I do. It’s the hammer that was found on the floor in the entry hall not far from the body of the victim, Terry Scarborough.”

“Can you tell us anything else about that particular hammer? Its size, shape…?”

“According to our investigation, it’s a thirteen-ounce, smooth, octagon-face, straight-claw fiberglass hammer with a rubber grip and a twelve-and-a-half-inch-long handle.”

“When you say fiberglass, what part of it is fiberglass?”

“The handle, which is covered by rubber at the grip.”

He has Detrick point to the hammer’s claws. “And straight claw,” says Tuchio. “As opposed to what?”

“Rounded or curved claw,” says Detrick.

“It sounds like you’ve become an expert on hammers,” says Tuchio.

“No, we made inquiries, mostly telephone calls, based on the manufacturer’s information stamped into the metal regarding model numbers, and that’s the information we got back.”

“Can you tell us who owns that particular hammer?”

“Based on a mark painted on the handle and a number stamped on the head of the hammer, it’s part of the tool inventory belonging to the Presidential Regis Hotel in San Diego.”

“Is that the hotel where the victim, Terry Scarborough, was staying on the morning he was killed?”

“It is.”

Tuchio has the witness put the hammer back in the bag, then has it marked for identification and returns it to the evidence cart. He won’t move it into evidence, not yet, not until other witnesses from the crime lab and the coroner’s office identify trace evidence that was found on it, hair and tissue along with blood, tying it directly to the victim. Instead he reaches underneath to the second shelf on the cart and finds the next item. This is in a manila file.

“Before we move on, let me ask you,” says Tuchio. “Besides the hammer you’ve just identified and the blood and spatter evidence that you’ve testified to earlier, did you find anything else unusual in the immediate area around the victim?”

There is some confusion here. Detrick is not precisely sure where Tuchio is trying to take him.

“In the tiled area of the entry hall,” prompts the prosecutor.

“You’re talking about the shoe impressions?”

Tuchio doesn’t say it but nods.

“Yes. We found shoe prints, impressions from the soles of two shoes, as well as what appeared to be a partial human palm print and three separate fingerprints.”

“Where did you find these?”

“They were quite obvious. They were on the surface of the tile floor in the entry. They were imposed in the partially dried blood on the tile.”

Detrick comes off the stand long enough to locate on the room diagram the general area where these were found. He has trouble marking the area of finger-and palm prints, as it is almost on top of where he placed the hammer.

Detrick is back on the stand.

“Let me ask you, Detective, as the lead investigator on the scene, did you have occasion to have photographs taken of the crime scene and the area around it that morning?”

“I did.”

Tuchio now hands him the file from the evidence cart that he has been holding and asks him to look at the photographs inside. “We have provided copies of all these items to the court and to the defense,” says Tuchio.

The judge nods and opens a file in front of him on the bench.

Tuchio and I argued over these for the better part of two days in front of the judge in chambers, during and just after jury selection. There were nearly two hundred photographs of the scene taken that day by police from various angles and distances. We have culled them down to twenty-eight photographs, close-ups and distance shots showing the layout of the room, the scene from different angles. There are close-ups of the television set and a leather briefcase, a kind of thin zippered portfolio on a table next to it, both showing signs of a light film, which we know to be the fine spray of blood flung out by the centrifugal force of the hammer as it was swung to strike Scarborough’s head. There are a few distance shots showing the body on the floor, a few papers scattered under and around him, shots of the hammer and the location where it lay on the floor in the entry, pictures of the shoe impressions with rulers for scale and two of the palm and fingerprints, again with a ruler for scale. There is one showing what we believe to be the elongated skid mark in the blood, the comma that comes to an end at the wall.

There are only four shots that show close-ups of the victim, close enough to see the gaping wounds with clotted blood and brain tissue at the back of his head. One of these, a shot from above showing not only the wounds but Scarborough’s left eye wide open, pupil dilated like a fired camera lens, is the most startling. Tuchio fought for this photograph to come in as if it were the Holy Grail. I argued that the graphic nature was so shocking as to be prejudicial in the extreme. It was the end of a long day, and the prosecutor’s tactic of holding this for last worked. Quinn was tired, worn down by too many arguments. He swept mine away with the comment that “after all, there was a murder.”

Detrick looks at the photos, identifies each of them as having been taken at the scene. Under questioning he identifies photographs of the hammer, the shoe prints, and the single palm print and fingerprints.

Tuchio has each of the photographs marked for identification and immediately moves them into evidence.

“Any objection?” says Quinn.

We both know he will swat down anything I say, since we have argued this already, but for the record, possible appeal, it is necessary. “As to People’s Thirteen, the one photograph we object to based on Evidence Code section 352. That the prejudicial content so clearly outweighs any probative value.”

“Overruled,” says Quinn. “The items are admitted into evidence.”

Tuchio immediately moves that the jury be allowed to see them.

“So ordered,” says the judge.

The photos begin to circulate through the box. While this is happening, Tuchio poses a number of bland questions to Detrick-whether he or any of his officers searched other rooms in the suite, whether they found anything in those rooms, if he or any of his officers collected witness statements from any of the hotel employees-this without getting into any real details, nothing that might cause any juror to listen or take notes. He would read the phone book to them if he could. Tuchio wants nothing here that might distract from the photographs circulating through the jury box at this moment. Some of the jurors are looking at them wide-eyed and slack-jawed, the thought never having entered their minds that a hammer, a tool so common that most of them have at least one in their own homes, could do this to a human head. They will be looking at their toolboxes in the future with the same cautious glance they now aim over the top of the eight-by-ten glossies toward Carl, sitting next to me.

Finally, when he can’t dawdle any longer, Tuchio starts another line of questioning.

“Detective Detrick, have you ever had occasion to meet or personally talk to the defendant, Carl Arnsberg?”

“I have.”

“When was the first time you met him, if you can remember?”

“It was the day after the murder. The following morning, I believe.”

“Can you tell the jury why you met with the defendant?”

“In order to interview him.”

“Why?”

“We were in the process of questioning all the employees who were on duty at the Presidential Regis Hotel on the day of the murder, and information came to us that the defendant, Mr. Arnsberg-”

“Objection, Your Honor. Hearsay.”

Quinn looks up.

“We don’t even know what the witness is going to say, Your Honor.” Tuchio tries to edge in.

“May we approach the bench?” I want to get it away from the jury.

The judge waves us forward. He pushes the little button on the bench. This creates a tone barely audible to the human ear, but if we were to shout, people in the jury box as well as those in the audience would never hear a word.

“We know what the witness is going to say, Your Honor.” I talk before Tuchio can get a word in. “He’s going to tell the jury that Arnsberg ran, that he fled the scene, when in fact there’s no evidence of that at all.”

“He left work unannounced,” says Tuchio. “He didn’t tell his supervisor or anyone else why he was leaving or where he was going. And that’s why the police bumped him up on the list of employees to be interviewed. Pure and simple,” says Tuchio.

“That’s not why the prosecutor wants it in, Your Honor. He’s wants it to infer flight from the scene.”

“It is what it is,” says Quinn. “The jury will have to decide.”

“It’s also hearsay, Your Honor. The witness is testifying to information given to him by others-the hotel supervisor, for one-and he’s not on the stand.”

“Oh, he will be,” says Tuchio, “to testify that your man disappeared, didn’t say a word to any of the other employees, and that the last time anybody saw him was before the victim’s body was found by the maid and reported.”

“Overruled,” says Quinn.

Just like that we’re back out, the dead button switched off. The prosecutor puts the question to Detrick again.

“As I was saying, we were in the process of interviewing all the hotel employees who were on duty that day-”

“The day of the murder?” says Tuchio.

“Yes. And information came to our attention that the defendant, Mr. Arnsberg, had left work early that day, unannounced. He hadn’t told his supervisor or anyone else that he was leaving. So we wanted to interview him at the first opportunity.”

“And that opportunity was the following day?”

“Correct.”

“When you interviewed him the next day, where did that interview take place?”

“At the defendant’s apartment in downtown San Diego.”

“And did you ask him why he’d left work early the previous day?”

“I did.”

“And what did he say?”

“He said he wasn’t feeling well, so he went home.”

“But he didn’t tell his supervisor?”

“No.”

“Or anyone else he worked with?”

“Not that we’ve been able to locate.”

“Did you ask him why he didn’t tell his supervisor?”

“I never had the chance.”

“Why was that?”

“Because I received a phone call on my cell phone from headquarters that fingerprint evidence from the crime scene had been analyzed and that that evidence appeared to link the defendant, Mr. Arnsberg, to the crime.”

“What did you do then?”

“We took Mr. Arnsberg into custody.”

“You arrested him?”

“That’s right.”

Now Tuchio starts making repeated trips to the evidence cart and back to the witness on the stand. First comes a paper bag containing the plastic raincoat. Detrick identifies it, along with a bloodied towel from the hotel that the raincoat was wrapped in when police found it in the Dumpster near the hotel parking area.

Another trip, another paper bag, this one larger than the bag containing the hammer.

“After you arrested Mr. Arnsberg, did you at any time obtain a warrant to search the premises of his apartment, the location where you first questioned him?”

“One of my officers did.”

“And did you conduct a search pursuant to that warrant?”

“We did.”

“When did you conduct that search?”

“The same day. The day we arrested the defendant.”

“And did you find anything during the course of that search?”

“We found a pair of dark slacks that appeared to have a few small stains of what looked like dried blood. These appeared to be ground into the fabric near the knee and hip areas.”

“Can you tell the jury where you found these slacks?”

“In a clothes dryer in the basement of the apartment building where the defendant, Carl Arnsberg, lived.”

“So these slacks were being dried after being washed?”

“Objection. Calls for speculation.”

“Sustained,” says the judge.

Still, the point is made. Unless he was removing wrinkles, why would Arnsberg be drying a pair of slacks if he hadn’t washed them?

“But they were being dried?” Tuchio comes right back.

“They were already dry,” says Detrick. The machine was off, but it was still warm when we found the slacks inside.”

“Did you find anything else during your search?”

“We found a pair of dark Nike running shoes with rippled soles that appeared to have traces of blood in some of the grooves. There were also stains that looked like they could be blood on the outside of the upper part of the right shoe.”

“And where did you find these shoes?”

“They were on the kitchen counter near the sink.”

“Did you find anything else during the course of this search?”

“A small, hard-bristled brush and a can of cleanser,” says Detrick.

“Where did you find these?”

“On the sink right next to the shoes.”

This time Tuchio comes back from the evidence cart with an array of bags. One at a time, he hands them up to the witness, and they do the drill.

Detrick, still wearing the white gloves, identifies the dark slacks found in the dryer, then the shoes, along with the brush and the can of cleanser that was found on the sink next to them.

The jury is taking it all in, most of them busily making notes.

Like pixels on a screen, the pieces of evidence in Tuchio’s case start to flicker and glow with the early outline of a picture. At the moment there’s nothing I can do to dim it, the image of a killer diligently doing his laundry, busy scrubbing the blood of his victim from his slacks and shoes.

Finally he has Detrick recap the evidence presented so far by putting it all together. He asks the witness, as an expert in crime-scene reconstruction and based on his investigation and observations at the scene, to give the jury his studied opinion as to the sequence of events surrounding the commission of the crime.

According to Detrick, the killer entered Scarborough’s hotel room probably by using a master key, as there was no evidence of a forced entry. The killer probably already had the murder weapon, having secured it from a maintenance closet on that floor by using the same master key used to enter the victim’s room. The electronic key employed in a lock by someone who is experienced in its use would be virtually silent. According to the witness, the killer was already wearing the clear plastic raincoat that the police found in the Dumpster near the hotel parking area, this to prevent blood from splattering all over his clothes. The perpetrator approached the victim, who was seated in the chair facing away from the door and was probably engrossed in studying or reading documents that were later found near the body by police. According to Detrick the killer could have covered the eleven feet from the door to the back of the victim’s chair in less than two seconds, striking the victim with the murder weapon from the right side and making contact in the area near the base of the skull, thus immediately rendering Scarborough unconscious.

“This was followed,” says the witness, “by a savage attack involving multiple blows with the murder weapon to the top or crown of the victim’s head, the rear at the base of the skull, as well as the lower right side of the victim’s head around the right ear and just behind it.” The medical examiner will give chapter and verse, the details of all this. “For this reason,” says Detrick, “we conclude that the assailant was right-handed.”

This of course includes 90 percent of the world, including our client. “In addition,” says Detrick, “we believe, based on the patterns of blood-spatter evidence and the various locations where this was found, that at some point in the attack-and most probably from its very inception, including the initial blow to the victim’s head-that the perpetrator used both hands to wield and swing the murder weapon, the hammer.”

I look over, and Harry is staring back at me. Unless Carl has a secret life that includes juggling in a circus act, the cops have just abandoned any notion that he was holding the tray while swinging the hammer. So how did the tablecloth and tray get on top of the blood they found on the table? While I can dream, it is not possible that they could have missed this.

“Based on the evidence at the scene, blood spatter on a small table testified to earlier, we believe-it is my opinion-that the perpetrator then proceeded to put into place what he thought was a carefully contrived cover story by retrieving a tray of food and a tablecloth which we suspect he may have left outside the hotel room’s door, probably on the floor in the hallway.”

This is neat, since every hallway in every hotel has a few trays on the floor outside rooms, and therefore no one walking by would notice.

“Based on the evidence, it is my opinion that these items-the tablecloth, tray, and food-were brought inside the room and carefully laid on a table a few feet from the body of the victim after the crime was committed.”

This is how they explain away the presence of the food, the tray, the tablecloth, and Carl’s explanation of how he came to be in the room. The cops have always had two problems here. Explaining away the blood on top of the table and the absence of blood on top of the tray and tablecloth was only part of it. Even if they could somehow sweep away the blood evidence, how could they possibly explain to the jury how Carl could enter the room, waltz behind Scarborough sitting in the chair, set the table that was off to the side, and then walk back and nail Scarborough from behind with the hammer? Harry and I have scratched our heads over this one for months. We thought it was possible they might argue that Arnsberg did just that-set the table, got behind, and somehow distracted the victim, perhaps with the meal check to be signed. In the chair, while he was writing and looking down, Scarborough would have been a perfect target. But the meal check was still on the tray when the cops found it, unsigned and pristine, with no blood on it. Detrick’s explanation, a story that in one fell swoop takes care of all this, is the kind of result-oriented theory that causes your average cynical and jaded defense lawyer to wonder if just maybe his client isn’t telling the truth after all.

“Based on the evidence,” says Detrick, “at some point we believe that the perpetrator became startled, panicked, and ran, and that during this flight his shoes picked up substantial quantities of blood from the carpet in the area surrounding the chair and the victim. This blood was then transferred to the tile floor in the entry as he exited the carpeted area, resulting in two shoe impressions.” The witness points at the location on the diagram.

“This, coupled with a quantity of blood already accumulating on the tile floor in the entry area, caused the perpetrator to slip and fall, resulting in what appears to be the skid mark here”-Detrick points at the chart-“as well as the finger-and palm prints left on the tile.” He points again to the diagram. “Based on the evidence from the scene, it is my opinion that the raincoat worn by the perpetrator at the time of the crime failed to cover or shield his entire body, so that portions of his clothing made contact with the victim’s blood when he fell.”

This is the final stroke. Tuchio’s witness has tied it all up in one neat package. They will argue that the reason Arnsberg left work and ran home without telling anyone is that he had blood on his clothes, something he hadn’t planned for in the original scheme. Tuchio will tell the jury that Carl simply didn’t think fast enough to come up with the story that he ultimately told the cops, the one he related to Harry and me during our meeting at the jail when he admitted to the slip and fall.

This brings the prosecutor to the final order of business with this witness, Carl’s statement to the police the day they arrested him.

Detrick establishes that they Mirandized the defendant, told him that he was entitled to legal counsel, that a lawyer would be appointed if he couldn’t afford one, that he had the right to remain silent, but that anything he said could be used against him. Then they asked him if he wanted to talk.

Of course, by that time Carl was a veritable motormouth, his jaw jacking with every little detail of what he saw and what he did, right down to the slip and slide in the entry hall, everything out on the table so that the police could understand and give him a lift home as soon as possible.

For their part, the cops were measuring the size of the swastika on the inside of his forearm and wondering how hard it would be to get photos of this, or better yet the real thing stretched out and nailed to the top of the jury railing, where the twelve good citizens could study it, a picture being worth a thousand words and all.

The statement in the form of a transcript, questions and answers, is in essence chapter and verse what Carl told Harry and me at the jail-the tray up on his shoulder as he backed into Scarborough’s room, tented under the tablecloth. This along with vigorous denials each time the interrogators, Detrick and his partner, accused him of killing Scarborough. During their questioning they also got into the issue of the bloody pants and shoes. At one point Detrick asked Arnsberg why he simply didn’t burn them, drop them off a pier into the ocean, or toss them into a Dumpster somewhere, where they could not be found. Carl gave him a simple answer, one so hapless and unvarnished that it might just pass for the truth. Carl told the cops that he couldn’t destroy his clothes, because he couldn’t afford to buy new ones and he needed them for work.

It’s one of those ironic situations that can crop up in a trial. As a rule you never want a client to say squat to the cops anytime, anyplace, about anything. But in this case I’m not at all certain that Tuchio would introduce this statement, as there is virtually nothing in it that is incriminating, unless they can punch holes in it with their later witnesses. It also provides us with the argument that, armed with advanced knowledge of the defendant’s explanation for his conduct, the state then reverse-engineered the theory of its case to account for every detail of Carl’s story. Detrick’s reconstruction is just a little too neat.

The reason Tuchio brings the statement in is that he knows if he doesn’t, he can be sure that I’ll ask Detrick about it on cross-examination, in which case Carl’s words would take on much more credence, the inference being that the prosecution was trying to hide them.

While neither Tuchio nor I can be certain how this will play out in front of the jury, one thing is sure: The D.A. cannot cross-examine the printed statement as he could with Carl if I were to put him on the stand. All in all, it may not be such a bad way for Carl to get his story in front of the jury.

Tuchio tries to have Detrick testify as to particulars, the actual content of what was said during the interrogation.

In a snap I’m on my feet objecting. “The document speaks for itself, Your Honor.”

“So it does,” says Quinn. “Sustained.”

The state moves it into evidence, and we spend the next twelve and a half minutes listening as Ruiz, Quinn’s clerk, reads the statement aloud to the jury. This avoids all the inflections, comments, and inferences that you can bet would slip in with Detrick’s color commentary.

When R2-D2 finishes reading, Tuchio turns and looks at me. “Your witness.”