If I probe further, what he’ll say is that he’s putting his life on the line and that he’s in danger from his former friends in the Posse because of his testimony today, the inference being, why would a man put his life in jeopardy just to come here and lie?
I ask him if he has any criminal charges pending against him in this state or any other state at the federal level or anywhere in the universe, now or at any time since the police started talking to him.
He says, “No.”
I ask him whether the police or the prosecutor have offered him anything in return for his testimony.
Again, his answer is no. To listen to him, Gross is just your average, ordinary citizen willing to take a bullet in order to tell the truth.
“Have they offered to put you in any witness-protection program following your testimony here?”
“You mean the police? No,” he says.
“Or any other level of government, including the federal government?” I ask.
He doesn’t answer. Instead his eyes make a beeline for Tuchio’s table.
“Bench conference,” says Tuchio.
Before we even get to the side of the bench, it’s clear what has happened. The feds have rolled Gross up in their investigation and eaten him like an enchilada. They won’t need any pending criminal charges to cut a deal and gain cooperation. And because there were no charges pending, Gross wouldn’t even have a lawyer. For the man who extended a friendly hand and invited the feds to join the Posse party, a few months in the club for Agent Henoch and a peek at his badge would turn Gross into jelly.
As soon as the rest of the Aryan world found out, they would chain Gross, tasseled loafers and all, to the back of one of their choppers and drag him between here and Alamogordo a few hundred times, just to make sure he had no additional handwritten notes on other body parts.
At the side of the bench, a smiling Tuchio explains to the judge that while the federal government has not in fact made any formal offer of protection to Gross, they have discussed the possibility of such an offer in the future.
Of course they have, just as soon as they squeeze every seed and all the pulp out of him. In the meantime they’ll have him tucked into a cave complex somewhere on the other side of the moon, reminding him every few seconds of just how dangerous the world is. No wonder he’s dried out and off drugs. In such an environment, there would be no need for a prosecutor or the cops to suggest anything by way of invention regarding Gross’s testimony. The thought of being turned into an asphalt sled tends to make the mind not only cooperative but highly creative. A few newspaper clippings about the case, the evidence at hand, and rumors of what’s to come and Gross could fill in the blanks. After all, you always want to keep the people who are keeping you alive happy.
Tuchio tells the court that any additional questioning along this line will compel the witness to disclose the existence of Agent Henoch and the government’s undercover investigation. Quinn agrees. This is out of bounds, and I find myself back in front of the witness exploring other areas of discussion.
These quickly dry up. Under questioning, Gross admits that he is one of the founding members of the Posse, but as he said earlier, this is all behind him.
He concedes that Carl was not formally a member of the Aryan Posse. But then, as if to take this back with the other hand, he adds that the defendant was called on several occasions and invited to attend Posse events.
“Whenever he was invited, he always seemed to show up at these events. And he enjoyed himself,” says Gross.
If I go any further along this line, I will invite Tuchio on redirect to get into these outings and to explore whether perhaps the Posse was into late-night cross burnings and hooded gatherings. Tuchio would then tell the jury that this would explain the nature of the rage visited on Scarborough’s body.
So I turn to the only thing left that is available, Gross’s invention on the stand.
“Mr. Gross, let me ask you a question. Haven’t you ever heard people use the phrase ‘I’ll hammer him’ or ‘I’ll hammer them’ as a figure of speech, something someone might say in a kind of macho way?”
“No.”
“Seriously? You’ve never heard it used like that?”
He shakes his head.
“You have to answer out loud,” says the judge.
“No. I already told him.”
“Come on, Mr. Gross, surely you’ve been around enough bars that you’ve heard people use that term before?”
“I don’t think so,” he says. “Not till I heard your client say it.”
“Have you ever watched a baseball game, Mr. Gross?”
“Yeah.”
“Have you ever heard an announcer say after a home run, ‘He really hammered that ball’?”
“I don’t know. If I heard it, I don’t remember it,” he says. Gross isn’t going to give an inch on this.
“Well, let me ask you then, have you ever heard anyone say, ‘I’m gonna nail him’?”
“Oh, I’ve heard that,” he says.
“Well then, let me ask you, when you heard that ‘I’m gonna nail him,’ did you really think that the person who said it was actually going to go out and get a nail and nail it or drive it into the person he was talking about?”
“Probably not,” he says. “But I never heard anybody say ‘I’m gonna hammer ’im’ before I heard him say it.”
“Your Honor, may the record reflect that the witness is referring to the defendant?” says Tuchio.
“So ordered,” says the judge.
“Since you watch baseball—You do, don’t you?”
“Sometimes,” he says. “Not very often.”
“I suppose it is pretty hard to balance that forty-inch screen on your motorcycle when you’re out there riding with the Aryan Posse, isn’t it?”
“Objection,” says Tuchio.
“It’s a fair question, Your Honor.”
Quinn smiles. “Overruled. You can answer the question.”
“I’ve never done that,” says Gross.
“When you were a kid, when you were growing up, I assume you watched baseball then, maybe even played it a little?”
“Then I did, yeah.”
“Good. Then you must remember a player—because he was big-time, very famous, well known, a major home-run hitter. In fact, he held the record for most career home runs for many years. A player named Hank Aaron?”
“Yeah.”
“Well then, you must remember his nickname?”
“No.”
“You don’t remember Hammerin’ Hank Aaron?”
He looks at me. “Yeah, but he was hittin’ baseballs, not heads,” he says.
“Move to strike, Your Honor.”
“Strike the witness’s last statement,” says Quinn. “The jury will disregard it.”
“Your Honor, we have no further use for this witness.” I turn and start back toward my chair.
“Mr. Tuchio, any redirect?” says the judge.
“No, Your Honor.”
“The witness is excused,” says Quinn. “Then we can either think about a break, or perhaps if it’s short, you can call your next witness.”
“Your Honor, the people have no further witnesses. The state rests its case.”
With Tuchio’s words my knees nearly buckle under me as I’m heading toward the table. The look on Harry’s face matches my own—thinly veiled terror. Wednesday, not even the end of the day, a week early, and Tuchio wraps his case. Quinn will expect my opening statement to the jury in the morning, outlining our evidence, our theory, and what we intend to prove. Without some way to talk about the shadowed leather and the missing letter, we have no case.
In the judge’s chambers, we argue tooth and nail, asking Quinn, begging him for time.
“Mr. Madriani.” Quinn is holding up both hands, palms out. “I warned everyone at the beginning of trial, no delays, no continuances.”
We make an offer of proof, I tell him about the letter a
nd what we know, the information from Trisha Scott and Bonguard, Scarborough’s agent.
Quinn remembers seeing the videotape of Bonguard’s appearance on Leno. He has vague recollections regarding the mention of some historic letter, but nothing more.
Tuchio is sitting on the couch against the wall, relaxed, taking the whole thing in, watching Harry and me bleed all over the judge’s desk. If he is surprised by any of the information regarding the missing Jefferson Letter, you wouldn’t know it by looking at him. He doesn’t even look up when I mention the name Arthur Ginnis, though Quinn does a double take.
“You’re talking about the Justice Ginnis?” he says.
“Your Honor,” Harry wades in, “if you would just…if you would take just a couple of minutes to look at something.” Harry is feeling around in his briefcase.
“I have no time for this,” says Quinn.
Harry dances around the desk toward the judge’s desktop computer behind his chair.
Quinn is waving him off. “It’s not going to do you any good.”
I hand him a stapled sheaf of papers a quarter inch thick.
“What’s this?”
“That’s a transcript,” I tell him.
While he is talking to me, Harry is loading the DVD into the judge’s computer.
“A transcript of what?” Quinn looks at the pages now stuck in his hand.
“It’s a transcript, Your Honor, verbatim. The audio on what you’re about to see is not very good. But that”—Harry points to the stapled pages—“is word for word.”
“Word for word of what?” asks the judge again.
“This.” As Harry says it, the judge swings around in his chair to face the computer monitor.
“Where did you get that?” This is the first comment from Tuchio since we’ve entered the judge’s chambers.
That Tuchio by now would have seen the video of Ginnis and Scarborough played out over the table in the restaurant comes as no surprise. The evidence clerk would have made sure that a copy of the DVD was sent to his office the moment Jennifer left the property room. Unless I miss my bet, it is the reason that Tuchio wrapped his case and dropped the ball into our court so early. He knows there is something out there. He is gambling that we haven’t had time to find it. And as bets go, this is not a long shot. What surprises Tuchio is the transcript. There’s no way we could have sent the disk out to a lab and gotten a transcript back in the few days since Jennifer found it. For the moment I ignore his question.
For all of his hesitancy, Quinn is now turned in his chair with his back to us and seems riveted by the video the instant the familiar face appears on the screen. At first he tries to listen, and then he starts reading, turning pages.
“Your Honor, I’ve seen the video. It’s meaningless.” Tuchio is trying to draw Quinn’s attention away from the screen. “You can’t even understand what they’re saying. Some pieces of paper,” he says. “For all we know, it could be a grocery list.”
“Be quiet,” says Quinn.
If there is any group in society that is stratified, rigid, and tight, it is the American judiciary. Judges are ever conscious of those above and below them. The pecking order comes with the robe. If you want to catch a judge’s attention, show him someone higher on the food chain, in what appears to be, what may be, a compromising situation. It is human nature. He may not act, he may never say a word, but you can bet he’ll look.
Twenty-six minutes later, the computer monitor flickers. The video ends. When the judge finally swings around in his chair, it is not with the kind of vigor and dispatch you might expect if he were going to dismiss us outright. The chair turns slowly, like the grinding wheels of the master it serves. I get the first glimmer that maybe we’ve bought some time.
For a while he is silent, leaning forward, elbows on his desk, steepled fingers to his chin. “I take it it’s Scarborough on this side of the table?”
“Without question,” I tell him.
“You can’t see him,” says Tuchio.
“No, but you can hear his voice,” says Quinn. “This, ah…this item on the table,” he says. “It’s only a copy.”
“As far as we know, but that may not matter,” I tell him. “The words on the page, what it says, may have intrinsic value, not necessarily in dollars but to the person who took it.”
“You mean whoever killed Scarborough.”
“We know who killed Scarborough,” says Tuchio. “He’s in the lockup downstairs, on his way back to the jail as we speak. He—”
“Humor me, Mr. Tuchio.” The judge cuts him off.
“It may not be the letter itself,” I tell Quinn. “The original, I mean, but the message it delivers—or doesn’t deliver, if it’s destroyed or disappears.”
“What are you saying?” says Quinn.
“Scarborough ignited considerable racial unrest with the current book. According to Bonguard, he was planning on going nuclear in the next book with whatever was in that letter.”
“And you think a two-hundred-year-old letter could cause that kind of an uproar?” says Quinn.
“I don’t know. But we do know a few things. Scarborough had it in his possession when he met with Ginnis over the table in that restaurant. And you saw all the furtive expressions on the justice’s face and read the transcript.”
“I’d like to see that transcript,” says Tuchio.
“And the letter wasn’t found in the hotel room after Scarborough was killed, or in his Georgetown apartment. So where did it go?”
“The item on the leather portfolio,” says Quinn.
I give him a look like, Bingo. “You saw it come out of Scarborough’s pocket. Letter paper, folded in thirds. It matches the size of the shadow,” I tell him.
“Any piece of business correspondence folded for an envelope would fit the size and shape of that shadow,” says Tuchio. “Your Honor, we’ve been all over that video. The police have seen it and listened to it. I’ve seen it and listened to it.”
“I’m surprised you had the time,” says Harry. “Since the property room delivered it to you only two days ago, after we discovered it in the police evidence locker.”
Tuchio shakes this off. He doesn’t respond.
“Is that true?” says Quinn. “The police never saw this?” He waves the transcript at him. “You never saw this or the video before charging Arnsberg?”
“I still haven’t seen that, Your Honor.” Tuchio means the transcript. “I’d like to know where they got it, and for that matter whether it’s even reliable, because you can’t hear a damn thing on the video.”
“Where did you get it?” Quinn looks at me.
“We have a certified declaration,” says Harry.
As Harry is fishing this from his briefcase, I tell Quinn, “We got it from a man named Theodore Nons, Your Honor.”
“Teddy Nons.” Quinn looks at me with arched eyebrows. “I haven’t had Teddy Nons in my court since analog tapes went out.”
“Who is Teddy Nons?” says Tuchio. The judge hands him the transcript, and Tuchio starts scanning it, flipping pages.
“He’s a blind man, sightless since birth,” says the judge. “But he has an extraordinarily acute sense of hearing. He’s a qualified audio expert.”
“They say he can hear some things that dogs can’t even pick up.” Harry hands the declaration to the judge, who glances at it and sets it aside.
“Sounds like an urban legend.” Tuchio is still riffling through the transcript.
“No, you can take it to the bank,” says Quinn. “Teddy used to make the claim in newspaper ads in the local legal sheet advertising his services. Some lawyer challenged him in my courtroom, a demonstration on that very point. And Teddy beat the dog.”
Quinn is looking at the calendar on the blotter of his desk. He bites his upper lip, sucks some air through his teeth, as he dances a pencil over the blotter. “Ordinarily I wouldn’t do this, but it looks like you caught a little luck, Mr. Madriani.”
�
��How is that, Your Honor?”
“Monday is a holiday. Memorial Day.”
“Judge. Your Honor!”
“Relax, Mr. Tuchio. I know it gets confusing, but it’s not just about winning and losing. The world won’t come to an end if we give the defendant two more days. Today is Wednesday. The court will go dark Thursday and Friday,” says Quinn. “With the weekend and Monday, that gives you five days. Make good use of them. Come Tuesday morning you will be in my courtroom with your opening statement, ready to go. Is that understood?”
“Yes, Your Honor.” Harry and I say it in unison as he is popping the disk out of the judge’s computer.
“I wonder, could I keep the disk and the transcript over the weekend?” says Quinn. “I’ll make a copy of the transcript for Mr. Tuchio.”
Harry looks at me.
“Sure.” Something tells me there will be a lot of black robes huddled around Quinn’s computer between now and the weekend.
He smiles. “Then I wouldn’t waste any more of your precious time here,” he says.
Harry and I are out the door.
TWENTY-TWO
They say bad news comes in threes. I believe it. When Tuchio rested his case, we didn’t know it, but messages were waiting for us at the office. The process servers in New York and Washington both missed their last two marks. The only one they’ve managed to serve is Scarborough’s editor, James Aubrey.
According to her office, Trisha Scott left on a sudden vacation that afternoon, off to Europe for the next three weeks, and Bonguard just as quickly disappeared somewhere out on the road with a client. His secretary wasn’t sure when he would be back. She asked our man if he wanted to leave a message. First rule of process serving: When you’re trying to tag somebody with a subpoena, you don’t leave voice mail.
Ten o’clock Wednesday night, Harry and I are trying to catch some Z’s crushed into coach seats like steerage on a packed flight somewhere over the Southwest. I’m learning more than I ever wanted to know about the island of Curaçao. For one thing, if you want to get there, you have to slingshot across the country to Miami before you can even start to head south—almost fourteen hours in transit, and this is one of the quicker flights. I’m beginning to think that this island is a remote dark hole in the earth, off the beaten path, a place where a person might go if he wanted to hide out for a while, perhaps dodge the scent of scandal.
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