Shadow of Power

25

The problem we are having is with the video, the reason for the fuzzy reference in my opening.

Early in the morning, before our opening statement, the judge entertained argument in chambers as to whether he might allow the restaurant video showing Ginnis and Scarborough huddled over the table talking, along with Teddy Nons’s transcript of their conversation.

Tuchio argued that nothing has changed, that there was no foundation for the video, since we still cannot prove when it was made or who made it.

Harry and I argued that the video should come in for the limited purpose of further verifying that the letter spattered with blood is in fact the same item that Scarborough unfolded on the table as the two men were talking. We now have a video expert prepared to testify that freeze-frames of this video, processed by computer and magnified, show that the letter laid out on the dining table at the restaurant is identical to the first of the four pages in the Jefferson Letter delivered to our office.

The comparison is exact, right down to ink smears in the writing and shadows in the margins showing the edges of the original letter where it was copied. Audio comparison of Scarborough’s voice patterns from the restaurant video have also been matched with known videotaped interviews of the author, so that there is now no question that it is in fact Scarborough who is seated across from Ginnis on the video.

Once the video is in, even for this narrow purpose, Tuchio knows that the game is up. With images of the letter open on the table, and all the furtive looks and glances from Ginnis, even if the jury doesn’t know who he is and can’t hear his words, they can fill in the blanks, ghost killer on the half shell.

Quinn has reserved judgment on whether the video can come into evidence for the limited purpose of further verifying that the copy of the letter was in Scarborough’s possession. It’s a long shot, but he wants to think about it. And Harry and I certainly want to give him the time.

What we did convince the judge to do was to allow us to use the video of the Leno show, the interview with Richard Bonguard, Scarborough’s literary agent, talking about the letter and its presumed importance, even though Bonguard claimed never to have seen the letter himself. Bonguard still has not returned to his office. He is obviously hiding out, waiting until the smoke clears. The foundation for this video can be laid by a production coordinator for the show who will testify as to when and where the video was made and who the participants were.

The fact that everything on the program video is hearsay, since none of the participants are here to be cross-examined, doesn’t seem to bother Quinn. For the moment it allows me to make my opening statement, including vague allusions to a video while at the same time permitting the judge more time to consider whether he will allow us to use the real video, the one with Ginnis in the hot seat.

Thursday morning, nine o’clock, and our first witness hits the stand. When you’re cruising through a magnetic minefield, it’s best to do so in a slow boat made of wood. So you might say that our opening witness is a bit dull-except for one thing: He can explain to the jury how the murder weapon, the hammer, found its way into the hands of the killer.

From the inception Tuchio and the cops have been welded to the theory that Carl possessed special access both to the victim in his hotel room and to the murder weapon, the hammer, because Carl had access to master card keys due to his job in the hotel. All their evidence has confirmed this-from Carl’s supervisor, who verified this fact and testified to it on the stand, to Carl’s own boasting and bravado at the Del Rio Tavern, where he bragged about having access to Scarborough because of master keys. It is one of the linchpins of their case, that only someone with access to the locked maintenance closet could have gotten the hammer. That pin is about to be pulled.

Wally Hettinger has worked for the Presidential Regis Hotel for almost eight years. He is a maintenance man, one of eleven people working around the clock to keep the hotel running smoothly and to repair any problems that may crop up twenty-four hours a day.

After he’s given his name and background and told the jury where he works, the first thing out of Hettinger’s mouth in response to a question is that the lock on the maintenance closet on the top floor of the Presidential Regis was broken. This is the place where the state claims the hammer was stored.

This is one item of evidence that catches Tuchio by surprise. Herman found the witness in the way Herman finds everything, by hanging around and talking to people, often people on the bottom corporate rungs.

“If you tried to turn the knob on the door, it would feel like it was locked,” says Hettinger. “But if you pulled on it, the door would open. It had been that way for a while.” He shrugs a shoulder. “The latch bolt on the lock didn’t quite meet the opening on the metal striker bar that fits in the doorframe. It’s a common problem on doors. It was a big problem at the hotel. You ask me, I think it’s a problem with the way they were manufactured-I mean the doors at the Regis.”

This draws an objection from Tuchio. “The witness is not an engineer or an expert on door manufacture.”

Quinn strikes the witness’s comment and tells the jury to disregard the bit about manufacturing problems.

“Were you required to repair hotel doors often?” I ask.

“All the time.” The witness tells the jury the doors were heavy, solid-core metal. “So over time gravity gets a hold, and they sag,” he says. “Either the screws in the hinges work loose and the door slides down a little-doesn’t take much, eighth of an inch sometimes is all-or else sometimes just the screws in the top hinges come loose and the door will lean a bit in the frame. Either way,” says Hettinger, “the bolt from the lock won’t hit the opening in the striker right, and the lock won’t catch. In which case the door may look closed, but it’s not locked.”

“Why didn’t you fix it? The maintenance closet door, I mean?”

I can see Tuchio and Detrick at their table poring over my witness list trying to find Hettinger’s name buried in all the chaff. Six hundred names in all. We stuck him somewhere in the middle, so that if they started checking them out, working from either end, Hettinger might be the last they would get to.

“I had that door on a list for repair,” he says, “but it wasn’t priority. Guest rooms are priority.”

“Did you tell the police that the lock on the maintenance-closet door was broken?”

“No. Nobody ever talked to me. When it happened-the murder, I mean-I was on vacation. Visiting my brother up in Idaho.”

Of course the cops talked to the hotel maintenance manager, who didn’t know anything about it, since no one had ever told him.

“I mean, he knew about the problem with the doors,” says Hettinger. “A major headache,” he says. “But he didn’t know about that particular door. If we told him about every door every time it happened, none of us would ever get anything done.”

According to Hettinger, he had become a kind of specialist at fixing the doors, he and one other maintenance man. If there was a problem with a door lock anywhere in the hotel, they got the call.

Whether the cops knew that the lock on the maintenance-closet door was broken and chose to keep it out of their notes, or whether they simply tried turning the handle, assumed it was locked, and had one of the hotel employees use a card key before they actually pulled the handle, opened the door, and checked out the closet, we will never know. But if I had to guess, I would say it’s the latter. They simply didn’t know.

No doubt Tuchio will try to play with this on cross. That if the police couldn’t figure out that the maintenance-closet door wasn’t bolted and locked, how could a random phantom killer be lucky enough to figure it out? The problem for Tuchio is that he can’t know what’s coming next.

I ask Hettinger if this problem-the bolt on the door locks hanging up-to his knowledge had ever occurred on the doors to the Presidential Suite, the room Scarborough was staying in the morning he was killed.

He says, “Yes.” He remembers fixing them a couple of times. According to the witness, they were a particular problem because they were double doors, a six-foot span instead of just three, with one of the doors bolted to the floor and the doorframe above and fixed in place, while the other door swung open and closed.

I then put on a pair of latex surgical gloves and have the clerk retrieve the hammer, the murder weapon, from the evidence cart. I show this to the witness.

“Have you ever seen this hammer before?”

He looks at it closely, puts on a pair of glasses. “Is that it?” He seems surprised. “Is that the hammer that was used to kill the man?”

I assure him that this is the murder weapon and ask him again if he has ever seen it before.”

“Well, yeah,” he says. “The paint marks there on the handle and the number stamped into the top. That was one of the hammers I used all the time to fix the doors. I just thought somebody stole it when I came back from vacation. I didn’t even put in a claim, ’cuz I knew the hotel wouldn’t pay for it. So I just bought another one. Replaced it,” he says.

“We’ll get to that in a moment,” I tell him. “For now, let me ask you a question. If this hammer was inside the maintenance closet on the top floor of the Regis, and the lock on the door to that closet was broken so that it didn’t catch, is it not a fact that anyone could have pulled on that door, opened it, and taken the hammer?”

“I suppose so.”

“Would they have needed a key to open the maintenance-closet door?”

“Not if the lock wasn’t working,” says Hettinger. “But it really wouldn’t have mattered,” he says.

“Why not?”

“Because that hammer, the one you got there, it wasn’t in the maintenance closet.”

This sets off a stir out in the audience. Tuchio, who has been making notes, points of attack to use in coming at the witness on cross-examination, puts down his pen.

“If it wasn’t in the maintenance closet, where was it?”

“Oh, we kept a couple of hammers in that closet, but that one, because of the straight claws on it”-he points with his finger-“that one I kept on an open shelf in the main staircase on the eighth floor.”

“Why would you do that?”

“Because we only had two good ones, tempered-steel hammers with straight claws, I mean. All the rest were round, curved claws,” he says. “The straight claws we kept in the staircase, along with a screwdriver and a couple of wooden wedges. They were a special set of tools,” he says. “To fix the doors.”

I have him explain to the jury how this worked. That he would loosen the screws on the door hinges with the screwdriver, then use the straight claws on the hammer to lever the door from the bottom, by slipping the claws in the crack between the floor and the bottom of the door. Using the leverage of the hammer handle, he would jimmy the door in place until it was square and then slip a wooden wedge into the space beneath the door to hold it in place while he tightened the hinge screws again. To listen to Hettinger, it was an endless job.

“We kept one set of tools-the straight-claw hammer, the screwdriver, and the wedges-on a shelf on the eighth floor and the other one four stories down, in the same staircase.

“Why not in one of the maintenance closets on those floors?”

“We did that for a while. But on the day shift there’s eight of us working maintenance, three at night. Seemed like every time I got a call to fix a door, I’d go to get the hammer, and somebody else had it. All that was left was the curved claws, and they were useless. Because of the way the claws are rounded,” he says. “You couldn’t get the claws under the door because the hammer handle would jam against the side of the door. I’d have to run all over the hotel and find who had straight claws and get ’ em back. So I figured it was easier to take ’em out of the closet and store ’em someplace else.”

The witness tells the jury that the stairwell where the hammers were stored was open to the public. It had to be. It was the main fire escape. Anyone wanting to use it could simply walk in and climb the stairs. But according to Hettinger, almost no one ever did.

“Would you climb fourteen stories if you had an elevator?” He looks to the jury as he asks the rhetorical question. “That’s why I figured, a couple of tools on a shelf in a corner, down low where it was hard to see, who’s gonna mess with them?”

We now know one other thing. Whoever killed Scarborough didn’t use the elevator.

Quinn calls the midmorning break, and as soon as we are back in court, Tuchio tries his best to shake Hettinger’s testimony concerning the hammer and where it was stored in the days just before the murder.

First he browbeats Hettinger to soften him up, demanding to know why the witness did not come forward to report these facts-the location of the hammer, the broken lock-to police, after he realized that this was the murder weapon.

“I never knew it was the murder weapon till today,” he says.

This is true. When Herman was talking to Hettinger, while springing for sandwiches and a beer in a bar during Hettinger’s lunch hour, Herman managed to gather up all the interesting little tidbits about dysfunctional doors and locks in the hotel. He was busy scribbling notes as to how the doors had to be jimmied up in order to repair them.

When Hettinger started complaining that his hammer was gone when he came back from vacation, and that he had to buy a new one out of his own pocket because he knew the hotel wouldn’t pay for it, since he didn’t store the missing hammer in the “locked” maintenance closet, Herman almost dropped his pencil. It wasn’t hard to figure what had happened, especially after Hettinger described the straight claws and the reason he hid the hammer in the stairwell in the first place.

Herman never told the witness that the hammer he had stored there was the murder weapon, and from reading the newspapers how was Hettinger to guess? According to the cops, the hammer was taken from the maintenance closet, where the witness hadn’t gone looking for a hammer in months. He had to assume that the police knew what they were talking about.

Tuchio now stands in front of the witness, incredulous, disbelieving that Hettinger didn’t realize. “Didn’t Mr. Madriani tell you?”

“Who’s Mr. Madriani?” says Hettinger.

“The lawyer who just questioned you!” says Tuchio.

“I never saw him before today, just now,” he says.

“Then who did you talk to? Somebody from his office?” he asks.

“I don’t know. I didn’t get the man’s name,” he says. “I just had lunch with him. Big guy, black fellow,” he says. “Nice guy. He bought me lunch.”

Tuchio wants a conference at the side of the bench. By the time I get there, he is hopping mad, and this time you can tell he’s not acting. “We had no disclosure as to this witness,” he tells Quinn.

“The man was on our list,” I tell Quinn.

“You know damn well what I mean.”

“Your language, Mr. Tuchio, for the record.” Quinn gestures with his head toward the court reporter standing behind the prosecutor with her stenograph machine, taking it all down.

“This is trial by ambush,” says Tuchio.

“Your Honor, we’re not responsible for the state’s investigation-or lack of it, for that matter. Mr. Hettinger has been going to work every day for months since Mr. Scarborough was murdered. The police had every opportunity to go out and talk to him.”

“Did you have a signed written statement from the witness?” Quinn directs this to me.

“No, Your Honor, we did not.”

“Then without a written statement, there was nothing to disclose except the witness’s name,” says the judge, “and from what I understand, you received that, Mr. Tuchio.”

Having gotten no sympathy from the court, Tuchio marches back out and locks horns with Hettinger.

Under questioning, the maintenance man admits that he was out of town for almost a week just before Scarborough was murdered and that he didn’t return to work until almost two weeks after the crime.

“So if you weren’t there, in the building, in the hotel on the day in question, the morning that the victim was murdered, you really can’t tell this jury whether that hammer”-Tuchio points toward the evidence cart-“was in the stairwell or in the maintenance closet or anywhere else, can you? Yes or no?” he says.

“All I know is that the hammer-”

“Yes or no!” says Tuchio.

“Objection, Your Honor. The witness should be allowed to answer the question in his own way.”

“Sustained,” says the judge. “You can answer the question any way you want.”

“Why are you being so nasty?” Hettinger directs this at Tuchio.

“Except that way,” says the judge. “Just answer the question-if you can. Do you remember the question?”

“Yes, I remember,” says Hettinger. “What I was about to say is that all I know was that the hammer was in the stairwell where I kept it when I left on vacation and that when I got back, it was gone.” He says this with such venom that Tuchio takes a half step back and a quick glance toward the jury.

This is not the verbal image the prosecutor wanted. It cuts too close to the bone of the shadowed hand in my opening statement.

Tuchio pauses, steps back and thinks for a moment.

“Perhaps we got off on the wrong foot,” he says. “Mr. Hettinger, let me ask you a question.” Tuchio takes a different approach now. The volume of his voice drops, his demeanor becomes friendlier, less imposing. “I understand that you were brought here today not fully understanding what was happening.”

“Objection, Your Honor. Is that a question? Because it sounds to me like Mr. Tuchio is testifying,” I say.

Tuchio turns it around and makes a question out of it, asking Hettinger if anyone from our side assisted him in the preparation of his testimony.

“No. Just lunch with the man, like I said.”

“And this man you had lunch with, did he make suggestions regarding your testimony here today? Did he tell you anything to say?”

“No. He just took notes.”

Dead end. Tuchio still searching.

Now with a more sociable style, he goes back to the point he wanted to make earlier. “You were gone for how long on vacation, around the time of the murder?”

“Three weeks.”

“So during that three-week period, you really couldn’t know whether that hammer was still in the stairwell where you left it, could you?”

“No.”

“You couldn’t be sure, for example, whether perhaps one of your colleagues might have picked it up and used it and perhaps put it back in one of the maintenance closets, could you?”

“How could I? I wasn’t there,” says Hettinger.

“Exactly,” says Tuchio. “So for all you know, as you sit here today, that hammer could have been anywhere on the morning of the murder, or for that matter during the week before the murder, because you don’t know where it was during the time that you were on vacation?”

“That’s true.”

“For all you know, the murderer could have found that hammer the day after you left for vacation and had it in his possession for days before the murder was committed?”

“Objection, leading, calls for speculation.”

“Sustained,” says Quinn.

“But since you couldn’t see that hammer from all the way up there in Idaho, there are a lot of possibilities as to where that hammer might have been, right?”

“I suppose anything’s possible,” says the witness.

This looks like the best Tuchio can do. Then he pauses for a moment and tries to reach further.

“I think you testified that the lock, the one that didn’t work on the maintenance closet upstairs, was on a list for repairs. Isn’t that what you said?”

“That’s right.”

“Isn’t it possible that the lock on that maintenance closet might have been repaired while you were gone on vacation, so that on the day that the victim was murdered, if that hammer was in that closet, it would have been locked behind closed doors. Is that not a possibility?”

Tuchio is leaning forward, waiting for the words “Anything’s possible,” but instead the witness says, “I doubt it.”

“That’s all I have for this witness, Your Honor.” Tuchio tries to turn and get away.

“’Cuz the lock was still broken when I got back from vacation.”

Why you never want to ask a question unless you already know the answer.