“I doubt if he was pushed from the chair. Or if he was, it was with a minimal amount of force.”
“Why do you say that?”
“Because of the position in which the victim came to rest on the floor. The upper part of his legs and the anterior midsection of his body, the area at his midsection in the front, were actually elevated just off the floor, and the body was twisted. That was because the lower part of his body, his feet and lower legs, were wedged against the front of the heavy chair when his head, shoulders, and upper body hit the floor. If someone had pushed him forcefully out of the chair, it’s my opinion that he would have landed clear of the chair in a prone or more-prone position on the floor.”
“So is it more likely, in your opinion, that the victim wasn’t pushed but that he fell from the chair onto the floor?”
“Probably. I would say so. At some point, from whatever force, I believe that he tilted forward and fell.”
“And would this necessarily have occurred—the victim falling from the chair, I mean—either during or immediately following the assault?”
“Not necessarily.”
“But you said earlier, did you not, that the victim was unconscious, paralyzed, and that he died almost instantly or within a very short period of time following the initial blow from the hammer?”
“That’s correct.”
“So how is it possible that he could have fallen from the chair later?” says Tuchio.
“Lividity,” says the witness.
James explains that after death unclotted blood in the upper extremities of the body begins to move, due to gravitational forces, toward the lower portions of the body. For example, a body that is leaning at the edge of a bed at death can actually be tumbled or rolled by the gradual force of lividity so that it ends up on the floor.
“Just as the victim here ended up on the floor?” Tuchio’s leaning toward the witness, urging him on.
“It’s possible. If the victim here were leaning slightly forward and his weight were stabilized at the time of death, held up or balanced by, say, the arm or the side of the chair. In this case the right side of the chair, since he fell to that side. Then lividity as the blood settled—in this case toward the anterior or front of the chest and stomach, since he would be leaning slightly forward—might very easily cause the body to topple forward out of the chair.”
“Would this explain the awkward position on the floor in which the body was found?” asks Tuchio.
“It could.”
“Could this happen as soon as, say, four or five minutes following death?”
The science may be garbage, but I can see where Tuchio is going with this, backfilling one of the holes in his case.
“Ordinarily I would say that it would take longer,” says James, “but it’s possible, depending on how precariously balanced the body was at death. It might not take much of a change in body mass, the weight of the blood moving, to disturb the balance point if the body were in a position at death that was already close to falling.”
“Thank you, Doctor. Your witness.”
Tuchio is happy with this, smiling toward the jury as he heads for the counsel table.
He should be pleased. Thin as it may be, Dr. James has just supplied the answer to the question that has been causing Tuchio’s case to sag in the middle: What was it that made Carl panic and run, slipping in the blood and leaving his prints all over the floor at the scene? What else but the seeming apparition of a moving dead body suddenly toppling from the chair onto the floor as the defendant was getting ready to exit the room?
We take the noon break and come back. I grill James on the issue of lividity. I ask him whether it isn’t true that all the professional literature, studies on the subject, agree that it takes anywhere from a half hour at a minimum to two hours after death before lividity, the gravitational force on blood in the body, takes effect.
He concedes the point.
“So if that’s true, how could lividity move the body in this case from the chair to the floor in the period of four or five minutes following death?”
The cops and the prosecutor know that Carl, and no one else for that matter, after having murdered Scarborough in the way he did, would have stuck around more than four or five minutes. From all the evidence, the killer would have stayed just long enough to leave the gloved prints on the attaché case while searching for whatever it was and to clean the raincoat, God knows why, and then he would have jetted out of there like the Road Runner. My guess would be two or three minutes, not four or five.
James refuses to back off. “It’s possible,” he says, “that the body, if it were just at the tilting point in the chair at the time of death, could have been affected by the very earliest stages of lividity.”
“Or I suppose it could have been an earth tremor, or a puff of wind, or maybe a séance going on across town—”
“Objection.” Tuchio’s out of his chair.
Quinn slaps the gavel. “The jury will disregard counsel’s last comment,” says the judge. “Any more questions?”
“None, Your Honor.”
“Good. Next witness.”
Tuchio takes up the remainder of the afternoon with Carl’s former supervisor, the head of catering and the manager of the hotel dining room at the Presidential Regis. The witness testifies that Carl was not the best employee. He was often late for work, argued with other employees often over issues of politics, and was twice caught stealing items of food from the kitchen.
When asked why the defendant wasn’t fired, the supervisor explained that in the last year, following two raids by ICE, Immigration and Customs Enforcement, it had become very difficult to get good help, or to keep it. In other words, Carl only had the job because he didn’t need a green card to work.
Notwithstanding Carl’s shaky record as an employee, the witness told the jury that Carl Arnsberg, like most employees at the hotel, either possessed or had access to a master card key, which would have given him access not only to the victim’s hotel room but to the maintenance closet where the murder weapon, the hammer, was stored.
According to the witness, on the morning of the murder, the defendant left the hotel, disappeared without telling anyone, and failed to clock out with his time card.
End of the day, and Harry and I hoof it back to the rendezvous point.
“I know what I’d like to do. But given the fact that we live in a civilized society, Quinn would probably say no to waterboarding,” says Harry. “We may just have to settle for a few early subpoenas. Turn the screws and hope,” he says. “Let ’em cool their ass on a hard bench in the courthouse, wondering when and whether they’ll be called.”
On Harry’s short list of recipients for witness subpoenas is the literary agent, Richard Bonguard; the Washington lawyer, Trisha Scott; and Scarborough’s editor, Jim Aubrey.
“We bring them out early and sweat ’em,” says Harry. “How much time do you think we have before Tuchio wraps his case?”
“I don’t know. Two weeks at the outside. No more,” I tell him.
Harry and I have gone over the state’s witness list. Besides Carl’s tavern buddies, Tuchio has several witnesses he will no doubt call, one of them a psychiatrist prepared to talk about hate crimes and how political hostility can fit the mold. He will no doubt get the shrink talking about the contents of Scarborough’s book as well as taped videos of some of the author’s more provocative interviews on television and how these might trigger hostility. There are also two hotel employees who argued with Carl about politics and who presumably will testify as to the level of anger he displayed. One of Carl’s neighbors also has a tale along these lines and is on Tuchio’s list. If he wants to put a few flourishes on his case, there are two or three members of the Aryan Posse he could drop on us. Though according to investigative reports, most of these had only a passing acquaintance with Carl. They told the cops that Carl was so far out on the fringes of the group that they didn’t know who he was, and when t
hey were invited to classify Carl as a wannabe with the group, they said they didn’t know. Show the jury pictures of these guys, chopper gauchos with tattoos from here to hell, and the fact that they didn’t know him becomes Carl’s most positive character reference.
“So let’s play it safe and say we have a week,” says Harry. “We serve Bonguard, Scott, and Aubrey ASAP—tomorrow if we can do it—and bring ’em out now.”
We suspect that at least one of them, maybe all, has seen the Jefferson Letter and certainly knows more about it than he or she has revealed to us. If we’re right and we can squeeze it out of one or all of them, we could build a legal bridge, permitting us to talk about the letter in front of the jury. This, plus the shadow in blood on the leather—the inference, because we may not be able to say it overtly, that this silhouette represents the missing letter—gives us at least the bones of a case. Dress it up in a few of the inconsistencies from Tuchio’s own presentation and the skeleton might dance long enough in front of the jury to inflict two or three of them with a terminal case of reasonable doubt.
A hung jury. It may be like kissing your sister, but it’s better than a lethal injection. And who knows? If the gods of reason are asleep over the jury room and somebody switches off the lights, we could even get an acquittal.
“What makes you think they’ll be more cooperative once they come west?” I ask Harry. I’m talking about Bonguard, Scott, and the editor.
“We get them thinking about that hot ball of sun,” says Harry, “the media spotlight over a witness stand in a trial with charged racial overtones.
“Take them out to dinner, separately,” he says, “and talk about the book.”
By the look I give him, he knows I’m not following him.
“Perpetual Slaves,” he says. “That book is positively full of all kinds of hideous history. Tuchio is going to use it to brain our client. So over salad we ask Bonguard his thoughts on the intimate details in the book and its effect on race relations in modern America. Now, that’s some touchy stuff,” says Harry. He stops walking and looks at me.
What Harry has in mind is the modern equivalent of a Renaissance Florentine inquisition—everything but the stake, the pyre, and the burning bodies. If the restaurant would let him in, he would dress in a robe with a hood, holding a staff with a skeletonized hand nailed to the end of it.
“I wouldn’t want to have to talk about that stuff in open court, under oath, on the stand, with reporters in the front row working their pencils to a nub taking notes,” says Harry. “Hell, a single word, an unintended inference, or maybe just the wrong inflection in your voice—on a sensitive subject like that, you could fall on your own sword, kill a career in full bloom right there in front of the world.
“And we haven’t even gotten to the bad stuff yet,” says Harry, “whether Bonguard and Scarborough ever had conversations about all the violence that seemed to be following them around on tour. You know, I’ll bet if we subpoenaed the publisher’s sales records on that book and plotted them against newspapers in the cities where the fire tour visited, you would see a direct correlation between the flames on the front page and the spikes in sales. Scarborough wasn’t an author, he was a firebug.”
To listen to my partner, you’d think that whoever murdered the man didn’t commit a crime, just simply killed a pyromaniac before he could burn another city. If we can’t spring something loose on the letter, this may become our best defense.
“Give me an hour with Bonguard,” he says. “No. No. Forty minutes,” says Harry, “tops. Before we get to dessert, he’ll tell me everything he knows about that letter, whether he saw it, and how many times. Believe me, he’ll be anxious to get on the stand as long as he can talk about anything except that book and how they marketed it.”
“And even if he didn’t see the letter, he’ll swear he did. Right?”
Harry starts walking again, trudging with his head down, hauling his heavy briefcase. “Hey, if he doesn’t tell me he’s lying, how am I supposed to know?”
NINETEEN
The subpoenas, all three of them, went out this morning, for Richard Bonguard, Trisha Scott, and Jim Aubrey.
By 9:00 A.M. the subpoenas aren’t even on our radar screen any longer. Harry and I have moved on to trying to put out the next fire. We are back in court, but not in front of the jury.
The judge has given them the morning off. Instead we are gathered in Quinn’s chambers, where Tuchio is scrambling to account for the late disclosure of an FBI agent on his witness list.
He tells the judge there was nothing he could do. According to Tuchio, he disclosed the existence of his witness and the entirety of the man’s statement given to police the moment the D.A.’s office received the information. All this was turned over to the defense as required by discovery.
“The fact that this witness was an agent of the FBI, working undercover, I did not know until later,” says Tuchio.
“How much later?” Quinn wants to know.
This morning his office is crowded. Besides Tuchio and his assistant, Janice Harmen, and Harry and I, there are two other men present, sitting on the couch against the wall behind us. One of them is the agent in charge of the FBI’s San Diego office. The other gentleman is a deputy United States Attorney from the Justice Department in Washington. Apparently the matter is of sufficient importance that Justice sent its own man out from D.C. instead of simply handing it off to the United States Attorney in San Diego.
Trying to answer the judge’s question, fixing the precise date when everything was known, Tuchio looks like a one-man band, juggling his notes, riffling files in his briefcase, and whispering out of the side of his mouth to his assistant. Then they both huddle with the FBI agent. When the prosecutor finally turns back to the judge, he says, “About ninety days, Your Honor. We knew with certainty about ninety days ago.”
“Three months!” says Quinn.
“Yes. About ninety days.” For some reason this seems to sound better to Tuchio.
“And you disclosed the existence of the agent when?” says the judge.
Tuchio coughs a little, covers it with the back of his hand, and says, “Friday, Your Honor.”
“Last Friday?”
Tuchio nods.
Quinn nearly blows a fuse. “There are cases on point,” says the judge.
“Not with regard to collateral crimes, Your Honor. We’ve checked the cases.” Tuchio wants to split legal hairs with the judge, who looks as if he’d like to lean across the desk and smack him.
“I see,” says Quinn. “So you want to make a new law and have me reversed on appeal in order to do it, is that it?”
“No, Your Honor. That’s not what I’m saying.”
“Lemme get this straight,” says Quinn. “You have a law-enforcement officer, part of the government—albeit the federal government, not somebody playing under your own tent—and he’s in the middle of your case.”
“By sheer circumstance, Your Honor. The D.A.’s office had no idea.” Janice Harmen tries to draw some of the heat off of Tuchio.
“I appreciate that,” says the judge. “But just so I understand, you have statements made by the defendant, statements against penal interest made in the presence of this agent. You want to bring those statements before the jury to show the defendant’s state of mind prior to the commission of the crime.”
Tuchio is nodding.
“And you failed to disclose the fact that the witness is a federal agent until three days ago?” says the judge.
“That’s it,” says Tuchio.
“Not in my courtroom,” says Quinn. “What do you have to say to this, Mr. Madriani?”
Why should I interrupt Tuchio’s train wreck? I’m about to tell Quinn that I second his motion, that he shouldn’t sully his courtroom, but Tuchio cuts in before I can say anything.
“First of all, Your Honor, all the defendant’s statements were made prior to the commission of the crime. There is no question of Miranda here, no need to
caution the defendant, because there was no focus of suspicion. The crime had not yet been committed.”
Quinn looks at him, that death stare again. “Tell me something I don’t know,” he says. “What I’m concerned about, Mr. Tuchio, is the fact that the witness carries the mantle of government on his shoulders, a material fact withheld from the defense in the preparation of their case.”
Tuchio finally tells the judge that while the witness Walter Henoch’s name appeared on the prosecution witness list, and while his statement was disclosed, the consent of the federal government for the witness to actually testify, to appear at trial, had been granted only four days earlier, on Thursday afternoon, the day before the prosecutors delivered the disclosure to our office.
Both Justice and the FBI, seated on the couch, confirm this. They tell the judge that the witness was part of an active, ongoing undercover investigation and that disclosure was hampered by serious concerns for the personal safety of their agent.
Harry was right. It’s an eleventh-hour deal.
This takes some of the edge off the judge. Though Quinn is still not completely mollified, his sense of indignation goes back in the box.
“I can appreciate that,” says the judge. “Still, there are questions of fundamental fairness that have to be discussed.” He turns to me. “Did you have any idea that you were dealing with an agent of the government?”
“We had no formal notice of any kind until Friday,” I tell him. This is not exactly responsive to the question he asked. Harry and I had guessed that there was too much polish to Henoch’s typed statement, so that there was little doubt that somebody was wearing a wire, but as to the FBI we were blind.
“Well then, I guess we’re down to the question, what do you want to do about it?” He puts this to me.
“I would move to suppress the witness’s statement, Your Honor, and request an opportunity to prepare points and authorities.”
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