Shadow of Power

20

Harry called Herman in Washington at the crack of dawn this morning and asked him if he had his passport with him. It seems Herman never leaves home without it. The man has been chasing leads on cases long enough to know he can never be sure where the next one will have him stepping off.

As I’m heading downtown, to Quinn’s ten o’clock court call, Herman is winging his way to Miami for a connecting flight south to Curaçao.

Tuchio spends the next couple of days combing his list for witnesses to fill in some of the cracks. He calls his psychiatric witness and lays out in more detail the elements and driving mental characteristics that can detonate rage in the commission of a homicide. Among the inventory of motives the psychiatrist cites is social and political animosity, particularly the kind grounded in racial hostility. Since we haven’t put Carl’s mental state in issue, via a plea of insanity or diminished capacity, the state’s witness was not able to interview, test, or examine Carl. This is no doubt a plus for our side. There has never been a realistic hope of mounting a defense on these grounds, so exposing him to examination by a state’s expert would most likely result in a finding that Carl meets all the criteria for the commission of this kind of crime. It’s the problem with putting Carl on the stand. Tuchio would eat him for lunch, pepper him with questions about Scarborough and his book. He would turn down the lights and show Carl videos of the author in provocative interviews, and when the lights came back up, there’s no telling what might be the first words out of Carl’s mouth.

On Wednesday morning I’m climbing the courthouse steps and see a small convention of bikers, lots of leather and denim across the street. People riding Harleys today could be a clan of executives from IBM, but not these guys. I count maybe twenty of the outriders from the fabled Aryan Posse, badasses all of them.

Associates and members are estimated at close to seventy-five on the street and roughly twice that number in prisons around the country. It’s not the size of the organization but its deep roots within the Aryan prison community, where the racial divide is deep, sharp, and violent, that have the attention of authorities.

The reason they’re here this morning is Tuchio’s main attraction, his witness of the day, Charles Gross. He is one of their own. I’m guessing that the state is bringing Gross on now in order to sandwich him between other witnesses so that the rough edges don’t look so bad.

As I clear security on the courthouse main floor, I can see fifteen, maybe more, uniformed officers moving quickly toward the stairs at the back of the building. Something is happening, but I can’t tell what.

When the elevator door opens onto the corridor upstairs and I step out, I notice four of the Posse members down the hall, at the door to Quinn’s courtroom, each trying to get a ticket of admission.

After leaving thirty pounds of chain, dangling Nazi Iron Crosses, metal skulls, and other symbols of evil in a box downstairs at the security check, they still can’t get inside.

As I draw closer, I can hear why.

“Court dress code,” says the deputy. “No messages. No signs.”

They are all wearing leather vests, the uniform of the day, no shirts underneath, enough hair on their chests and in their armpits to build an entire condo complex of nests for a flock of crows. In an arc across their backs in leather, in various colors and assorted fonts are the words ARYAN POSSE.

“I been in court before. I wore this.” The one talking is six feet and well muscled, with frazzled blond hair to his shoulders, frayed and brittle enough to have been fried in a Chinese wok. He could make a good living as an extra doing Conan the Barbarian movies.

“That was then, this is now,” says the officer. “You can’t get in wearing that, not here, not today. Take it outside,” he says.

“Fuck that shit!” This comes from the Norse god who’s in the deputy’s face, in a voice loud enough so that everyone in the corridor has stopped moving, including me.

The deputies are standing in the airlock between the two sets of double doors leading to the courtroom, the outer doors are open. The inner doors look like they’re closed.

“You’re just doin’ this because of who we are. You know it, and I know it.”

His three buddies in biker boots and frayed jeans are bunched up behind him, all nodding, discrimination being a terrible thing.

“You can’t even see it if we’re sittin’ down. Hell, it’ll be up against the back of the chair.”

“Hey, I told you. I’m not gonna tell you again. No exceptions. No signs, no messages,” says the deputy. He and another officer are wedged in the door like a stone wall.

What I saw downstairs now becomes clear. By now the small army of uniforms is probably standing just on the other side of the closed door in the stairwell about ten feet behind Conan and his buddies-no doubt getting ready to play jack-in-the-box with cans of pepper spray and nightsticks if things get pushy.

The bikers move a step or so away to confer, then Odin is back in the deputy’s face. “Fine, we’ll take ’em off.”

“Excuse me?”

“Our jackets. You don’t like ’em, we’ll take ’em off.”

“Fine, take ’em off, take ’em outside, get a shirt, and come back,” says the cop.

“Where the hell are we gonna get shirts? By then all the seats’ll be taken.”

“That’s your problem. But you can’t enter the courtroom without a shirt.”

The blond one says, “Shiiit.” His arms are flexed, he’s leaning in like maybe they can just blow past the two cops, into the room, and grab seats. This has all the dynamics of a budding brawl. The guy’s ego is way out to there; he’s wearing it on his chin. A hundred people in the corridor watching it. You can feel it in the air. He’s not going to back off.

It is at this instant that a small patch of gray sticks her head out from behind and under the flexed elbow of one of the deputies in the door. Before he can move, she slips past him. She must be eighty-five and can’t weigh much more than that in pounds. She’s holding a small water cup in her hand. One of the courthouse regulars, she has picked this moment to go take her meds. Standing in no-man’s-land, she is stopped in her tracks, her eyes just at the level of the blond guy’s belt. She looks up at him and smiles.

His fighting gaze locked, he’s staring at the deputy, snorting bull breath.

She tries to squeeze through between the open door and Armageddon, but he has her blocked.

The deputy leans faintly forward as if he wants to reach out and pull her back. But he knows if he moves, it’s going to trigger a brawl, and the old lady, frail as a bird would be crushed in the middle.

She looks up one more time and says-and you can hear it clear as a bell in the silent corridor-“Excuse me.” This tiny little voice.

Like “open sesame,” something from a Stooges movie. The four bikers, their heavy boots taking baby steps in unison as if they were all connected at the hip, give her just enough room to get by. As she squeezes through, the four of them are left standing there, watching as she trundles past. Just like that, an instant of diversion and the moment passes, the time for action melts.

You can almost hear the cops in the stairwell bouncing cans of pepper spray off the walls and jumping on their hats.

The old woman heads for the water fountain, looking around in wonder at all the people standing in the hallway staring at her like statues.

As she gets up on tiptoe at the fountain with her cup, I’m thinking we need to clone this, package up all the parts, and ship boxes to the Gaza Strip, Beirut, and downtown Baghdad.

Then, like stop motion, people start moving again. The Posse passes me going the other way, toward the elevator. I can hear a few “goddamn”s and “kick his ass”es as they go by. They’d better watch it or the Gray Missile may get into the elevator with them.

Whether they’re here in support or measuring their friend Mr. Gross for a box after he talks, one thing is certain. Unless they have a supply of long-sleeved dress shirts in the saddlebag of one of their choppers-or they can sprint down to Nordstrom at the speed of light-they won’t be getting into Judge Quinn’s theater of thrills this morning.

Inside the courtroom I pass through the gate at the railing. Tuchio is standing at his table talking with his assistant, Harmen. She glances up and sees me.

“Good morning,” I say.

She smiles and returns the greeting.

Tuchio looks at me, a near-death stare. He doesn’t say a word. His head goes back down, and he’s talking to Harmen again. He is still stinging from the meeting in chambers and the loss of his federal agent.

As I slip into my chair at our table, Harry has already caught this.

“Man’s positively furious.” Harry is busy lining up his three pencils and a pen along one side of his legal pad. Then he reverses them and puts them on the other side. “Which looks better to you?” he says.

I smile and ignore him.

“Good news,” he says, “from the East. One of our process servers tagged Scarborough’s editor, Jim Aubrey, with the subpoena just before noon, New York time. One down, two to go,” he says.

There is still no word on Bonguard or Trisha Scott.

“In case you’re feeling bad, he treated me the same way,” says Harry.

“Who?” I’m busy looking at notes, a summary of Charlie Gross’s statement to the cops.

“Tuchio. When I showed up this morning, I said hello. He was like dry ice, frozen solid and still smoking.” Harry abandons his Monopoly game with the writing implements just long enough to bring his closed fist gently up to his chest in the region of his heart. “And I have to tell you, it hurts.”

“So you want to send him a sympathy card?”

“You joke, but I haven’t felt this bad since my dog died of rabies,” says Harry.

“You don’t have a dog.”

“I know, but if I had one and he died of rabies, I can imagine that he might look a lot like Tuchio does right now. I’ve been thinking. The next time we screw him over, maybe we should try to be a little more polite. When a prosecutor starts foaming at the mouth, you have to begin to wonder what he might do if he really got mad.”

When I glance over at Harry, I get the sense that perhaps he’s only half joking.

Tuchio brings on his witness of the day, Charles “Charlie” Gross.

When the jury is in the box and Carl is planted in his chair between Harry and me, Arnsberg gives me a strange look when he sees the witness, as if to say, Who’s that?

Gross, if he is to be believed, is one of the charter members and the chief financial officer for the Aryan Posse.

According to an investigative report, Gross keeps track of the group’s beer and booty fund as well as the accounts receivable from meth and other pharmaceuticals they sell, often jotting down numbers in ink on the palm of his hand. That way he figures if he gets busted, sweat will dissolve all the evidence. I guess if the IRS wants to see the Posse’s books, they’re just going to have to cut off his hand. It’s thinking like this that got Gross right to the top in the organization.

If you saw any of his mug shots, you’d have to admit that Tuchio has done a crackerjack job of cleaning the witness up for today’s appearance. Gross looks like they’ve put him through a car wash and had him detailed.

Gone are the long, sparse, stringy strands of dirty blond hair that hung down below his shoulders from the craggy, bald summit of Half Dome. The state probably spent forty bucks having the hundred or so hairs on the top of his head styled and clipped. The back and sides of his head are as neatly trimmed as if Suki ran his mower over them.

This morning Gross is wearing a pair of dark blue cuffed slacks with a sharp crease to them, a maroon polo shirt, and a watch that looks like a Rolex, probably a knockoff from Taiwan out of the police property room. The tasseled loafers are a nice touch. No doubt Gross’s feet haven’t seen the inside of anything that wasn’t steel-toed, flapped, and hooked for lacing and that weighed less than ten pounds since he came out of the womb.

Looking at him on the stand, you might swear that you saw him playing the back nine at the village country club yesterday afternoon.

When the feds spring their trap and his pals go looking for Gross to shoot him because he was the idiot who recruited and sponsored the FBI agent, there will be no need to put him in witness protection. Tuchio’s transformation of the man is so complete the Posse will never recognize him. I’m almost wishing that Conan and his friends had gotten in. By now they’d be sitting out in the audience and asking, “Where the hell is Charlie, and who the fuck is that?”

Since he looks like your average accountant on his day off, when they asked him to raise his right hand to be sworn and Gross lifted the left by mistake and then the right, I took a good look at both palms. I wanted to see if he was still keeping books. Unfortunately, it appears as if the scrubbing must have started with the hands.

Unless I can get Gross to take off his shirt, raise his arms, and turn a pirouette, displaying the story of his life ingrained in the graffiti on his body, it’s hard to imagine how the jury is going to get the full flavor of the man.

Tuchio uses a good deal of finesse here. He moves carefully through the witness’s background, covering everything except his three felony convictions and the fact that he has spent almost thirteen years of his life in prison. This is out of bounds under the deal we cut in chambers. Tuchio knows I can’t get at it on cross-examination, so he’s free to ignore it.

But he does not try to hide the fact of Gross’s long association with the Aryan Posse. He explores this in detail, because he knows if he doesn’t, I will expose it on cross, making it look as if they were hiding it.

He takes more than twenty minutes, hitting all the possible low points in Gross’s life, including two divorces, problems with drugs, and the fact that he’s had difficulty holding jobs.

Then Tuchio makes clear his tactic with the witness: The world loves a reformed sinner.

“Let me ask you,” says Tuchio, “are you still a member of the Aryan Posse?”

“No. I’m no longer involved with that group. I want nothing to do with them.”

“Can you tell the jury when you quit this organization?”

“It was after I saw the news,” he says.

“What news?”

“The news. The man killed here,” he says.

“You mean the victim in this case, Terrance Scarborough?”

“Yeah. That’s the one.”

“Why did that make you quit your membership in the Aryan Posse?”

“Because of things I saw and heard. I was ashamed,” he says. Gross looks right at the jury as he says this. “The people in that group did some bad things,” he says, “and I wanted to change my life. I didn’t want to be involved anymore.”

If you listen closely, you can hear the violin music in the background. This is not something Tuchio pulled out of the bag yesterday or the day he lost the agent’s testimony in chambers. This has all the signs of careful stage direction and choreography.

“And why were you ashamed?”

“Because it was a bad life,” he says. “All that hate against other people because of the color of their skin. It was wrong, and I didn’t want to be part of it anymore.”

One woman, an African American in the jury box, is nodding as she hears this. Tuchio will be handing out prayer books and hymnals any minute.

“Was there anything in particular that brought you to this decision, to change your life?”

“Yeah, it was a conversation with him.” Gross sticks his arm out and points. The “him” he’s talking about is Carl.

“Let the record reflect,” says the judge, “that the witness has identified the defendant.”

If I could cut off the prosecutor right here, at this moment, I could pick up the theme and explain how my client led this man from a life of sin to redemption, and we could all march out to the strains of “The Old Rugged Cross.” But somehow I’m guessing that this is not where Tuchio is going.

“And can you tell the jury, what was it in particular that the defendant said that brought you to this point, to take your life in another direction?”

“I was drunk,” says Gross. “And he said some things…terrible things, some awful things about this man who was murdered, this Mr. Scarborough, and I was ashamed. Not right then,” he says, “but later, after he was murdered, because I had laughed when Mr. Arnsberg said this stuff. That memory stayed with me for a long time.”

“I see.” Tuchio makes all this sound as if he’s hearing it for the first time. Gross’s delivery is fervent. There’s just enough scent of the old malefactor lingering about him so that even a cynic like me-on a bad day, if someone blinded me, jammed cotton in my ears, and stuck garlic up my nose-might find myself believing him.

Tuchio carefully takes the witness through his association with Carl, the fact that the two of them had met only a total of eight or ten times, and often in bars. Gross admits that he had a problem with alcohol, but, like everything else that was bad in his life, this, too, is now behind him.

Then Tuchio draws him up and gets specific. He gives the witness the date and then asks him whether he remembers meeting with Carl at a bar off Interstate 8 out near El Centro.

“Yes, I remember that meeting. It was at the Del Rio Tavern,” says Gross.

“Can you tell the jury why you happened to meet at that particular location?”

“Because we were goin’ to a meeting at a range,” he says.

“What kind of range?”

“It was a shooting range. They called it ‘the reserve.’”

“Who called it…?”

“The Aryan Posse.” Gross makes it sound as if the term, the very name of the organization of which he was a charter member, is alien to him.

“But before you went to this shooting range, you and Mr. Arnsberg were together at the Del Rio Tavern, is that right?”

“That’s right.”

“How long were you there, at the tavern?”

“Oh, I don’t know. Maybe an hour. Maybe a little more.”

“Now, when you were at the tavern, was the defendant drinking, having any alcoholic beverages at the time?”

“Not much,” he says. “He mighta had a beer or two, but that’s all.”

“Did it appear to you that he was drunk or under the influence of alcohol or drugs at that time?”

“No. He was sober,” says Gross.

“And during this time, at the tavern, how many beers did you have?”

“Oh, I don’t know. Maybe four or five.”

“Were you drunk at the time?”

“Well, a little,” he says. “I mighta had a little buzz on. But I remember very clearly what was said.”

This, of course, is the whole point.

“Let’s get to that, what it was exactly that was said. At some time during your meeting with the defendant at the Del Rio Tavern, did the subject of Terry Scarborough come up?”

“Yeah, it did.”

“And how did the subject come up, do you remember?”

“As I remember, this guy’s picture, Scarborough, came up on the television behind the bar, on the news when we were sittin’ there. And Carl there got real upset. He was talkin’ out loud about how the guy was causing all kinds of problems. That he saw him on the news and how Scarborough wanted whites to pay money to the blacks because of slavery. He was sayin’ how this guy, Scarborough, wanted to turn the country over to ’em.”

“Over to whom?” asks Tuchio.

“You know. African Americans,” he says.

I’m wondering how long it took Tuchio to get Gross to drop the N-word and say the two he just said in their proper order.

“What else did Mr. Arnsberg say?”

“He was braggin’ about the fact that he worked at the hotel where this man, this Mr. Scarborough, used to stay in San Diego and probably would again. There was a lotta talk. And he said it would be easy to kidnap him.”

“Kidnap him?” Tuchio’s voice goes up two octaves.

“That’s what he said.”

I glance at the jury box at this moment. They are rapt, not even taking notes. They’re listening, which is worse.

“Did he say why he might want to do this, to kidnap Mr. Scarborough?”

“Well, it was pretty clear he didn’t like the man.”

“Scarborough?”

“Yeah. He kept callin’ him an agitator. Said he was causing all kinds of problems.”

“What kind of problems?” says Tuchio.

“Racial problems,” says Gross.

Tuchio gives it a good, long pause, so that the words settle all the way down to the floor in the jury box.

“From what the defendant said to you, then, did it appear that he had disagreements with Mr. Scarborough’s beliefs and values with regard to issues of race?”

Ask an obvious question and you get an obvious answer.

“Yeah, I would say so.”

“When he talked about this, did he appear to be angry?”

“Oh, yeah. He’d talk your arm off.”

People in the audience laugh.

“Was he agitated, excited?”

“He wasn’t happy, if that’s what you mean.”

More laughter.

Gross is starting to enjoy this.

“Was he mad?”

“Oh, yeah, mad as hell,” he says, and then he looks up at the judge with a nervous smile.

Quinn ignores him.

“I see,” says Tuchio. “Did the defendant say anything about how he might carry out this kidnapping?”

“Yeah. He said it would be no problem to hit him on the head and dump his body into a laundry cart and take it down a service elevator.”

“He said ‘hit him on the head,’ and he was talking about Mr. Scarborough?”

“Yeah, that’s what he said.”

Now the jury is taking notes.

“Let me ask you, at the time the defendant said this, that it would be easy to hit Mr. Scarborough on the head”-Tuchio wants to repeat this, a good sound bite and right on message-“did you think he was serious?”

“At that time, no,” he says. “But later-”

“Objection,” I say.

“Sustained,” says Quinn. “The jury will disregard the last part of the witness’s statement. Just answer the questions that are asked. Don’t volunteer anything,” the judge tells him.

“Yes, sir.”

Tuchio has an embarrassment of riches here. He’s not sure which one to pick next, so he goes back to the same fruit.

“Besides hitting Mr. Scarborough on the head”-he can’t say this one enough-“and dumping his body into a laundry cart and taking it down the elevator, did the defendant say anything else?”

“Yeah. He said we could take him out into the desert and shoot him.” This, coming from Gross, is worse than what is actually on the transcript from Henoch’s wire, because it sounds real. It is cast in the language of a credible threat.

To read the words in the transcript, it’s clear that Carl was bragging, turning macho phrases. “Hell, we could have his ass out in the desert tied to a post in front of a firing squad before he knew what hit him. Skin his ass before we shoot him.” I know this because the passage from the transcript is in my notes right in front of me on the table. But I can’t use it to cross-examine Gross, because neither the agent nor the transcript is in evidence. We made sure of that.

Around the edges of this testimony, it begins to settle on me that Tuchio isn’t angry at all. And he isn’t stupid. He has outfoxed us. If Gross was properly schooled, closeted for weeks and tutored, and it appears that he has been, he could in fact be more valuable than the transcript. Reading it, Tuchio must have realized that some of the verbatim language could actually become a burden. He also knew he couldn’t play games with the words if he had a government agent on the stand.

But with Gross he can paraphrase his way around the rough spots in order to smooth out his case.

As I sit here listening to him work us over with this witness, it suddenly dawns on me. Tuchio never wanted to call the agent in the first place. What he wanted was for us to take Henoch and his statement off the table, so that we couldn’t use him in our own case to prove discrepancies in Gross’s testimony. Now he is free to soar. Gross can say anything he wants, and unless we can shake him on cross, Tuchio is home free.

As the blood in my veins begins to chill, Tuchio and the witness take the jury for a verbal ride out into the desert, to the place the Posse called “the reserve”-the shooting range.

Gross tells the jury that somebody, he doesn’t know who, obtained large, poster-size photographs of Terry Scarborough and stapled them to targets, so that by the time he and Carl got to the range, some of the Posse members were already shooting at these with pistols and rifles.

Tuchio retrieves a copy of Perpetual Slaves, Scarborough’s book, from the evidence cart and shows the witness the picture of the author on the back cover.

Before he can even ask the question, Gross says, “That’s the one. That’s the picture they used.”

Now the jury has an image to go along with the words.

“Did you shoot at any of these targets, the ones with the victim’s picture on them?”

“No.” Gross is shaking his head earnestly. “I didn’t want to do that.”

“Why not?”

“I just didn’t want to do it. I didn’t think it was good. That’s all.”

Of course not, God forbid. Harry leans forward, looks past Carl to me, and rolls his eyes.

“Did Mr. Arnsberg shoot at any of the targets with the victim’s picture on-”

“Objection, Your Honor.” I am up out of my chair. “May we approach?”

Quinn waves us forward, off to the side of the bench.

“Your Honor, I’m going to object on the grounds of relevance. The victim wasn’t shot. This is being used for one purpose and one purpose only-to prejudice my client.” I cite 352 of the Evidence Code and tell Quinn that whether Carl shot at these targets or not, the issue has no probative value. It proves nothing. At the same time, the prejudicial effect on the jury is overwhelming.

Before I can even finish, Tuchio is over my shoulder. “Your Honor, it goes directly to the defendant’s state of mind. It’s in close proximity in point of time to the murder. It supports the theory of rage, and there has already been testimony on that.”

Quinn puts up a hand. He’s heard enough. “Gentlemen, we could split fine hairs on this one. And I could allow it to come in. It’s the kind of thing that reasonable minds can disagree on.” He’s whispering over the edge of the bench at the side away from the jury. “But I have to worry what the three figures in black who sit above me might do with it when and if they see it.” He’s talking about the appellate court. He looks at Tuchio. “You don’t want to have your case reversed on this, and neither do I.”

It’s one thing to have the feeling yourself, but when the judge says this, it becomes clear: Quinn senses that my client is going down.

“The wisest and safest course at this point is not to allow it. I’m going to sustain the objection. I think you should move on to another subject, Mr. Tuchio.” He sends us back out.

Gross is looking around as if he’s not sure whether to answer the question. Even though Tuchio never got a chance to finish it, the witness knows what it is. No doubt they have practiced it enough times.

As soon as I sit down, Carl is in my ear. “What happened?”

“Don’t worry about it. It’s okay,” I lie.

Tuchio is back, centered in front of the witness again. “Let’s leave the shooting range for the moment. Let’s go back to the tavern. To the Del Rio,” he says. “You testified earlier that the defendant talked to you and made statements regarding a possible kidnapping of the victim, Terry Scarborough, is that correct?”

“That’s right.”

“That he said he could hit the victim over the head and dump him into a laundry cart.”

“Yes.”

Tuchio thinks for a moment.

“During your meeting with him that day at the tavern,” he says, “back at the Del Rio, besides kidnapping, did the defendant ever say anything else to you, anything that you thought that was in any way…Let me rephrase this.”

Tuchio seems to be having trouble here, trying to change gears in a ham-handed way, and I’m wondering why, if he’s back at the Del Rio, he didn’t remember to bring whatever it is up earlier.

“When you were there at the tavern, at the Del Rio, did the defendant, Mr. Arnsberg, ever tell you how he might gain access to Mr. Scarborough if in fact Mr. Scarborough was in his room at the hotel behind a locked door?”

“Yes, he did.”

“And what was that?”

“At one point he was talking about how he had access. How he could get into rooms at the hotel real easy because he could get a master key.”

Carl’s sitting next to me, shaking his head, whispering, “I never said that.”

“And then he said, because he could get right up to him real easy, he said it would be real easy to hammer ’im.”

Out in the audience there is murmuring. What did he say?

“Were those his exact words?” asks Tuchio. “That he could hammer him?”

“That’s what he said.”

“That’s a lie!” Carl says it out loud now, and there is an eruption of voices in the audience. Two of the reporters in the front row break for the door at the back of the room.

Quinn slaps his gavel. “Keep your client quiet,” he tells me. Carl is pulling on my arm. He wants to tell me it’s a lie. But I already know it.

“Officer, stop those people right now,” says the judge. The two reporters stop dead in their tracks halfway up the main aisle. “Sit down,” says the judge. “You can file your stories during the break.”

Before Quinn can even put down his gavel, Tuchio turns to me and says, “Your witness.”