Shadow of Power Free with Bonus Material

by Steve Martini

  “Ladies and gentlemen of the jury. My name is Paul Madriani. As you already know, my partner, Harry Hinds, and I represent the defendant, Carl Arnsberg.” I point to Harry, who nods and smiles, and then to Carl, who nods and waves one hand.

  “You have heard and seen a good deal of evidence to this point in the trial. But you have not heard or seen all the evidence in this case. When all the evidence is before you, you will be instructed by the judge regarding the law that you must apply in evaluating that evidence.

  “Among the items of instruction that you will be given by the judge are two fundamental and important rules. First is that the defendant is to be presumed innocent until and unless his guilt is established by the prosecution, by Mr. Tuchio, based on proof beyond a reasonable doubt.

  “The second fundamental rule is that the defendant in this case bears no burden of proof. He is not required by law to offer or to produce a single item of evidence establishing his own innocence. To the contrary, his innocence is fixed by law, established by law unless and until the state, the prosecutor”—I point at Tuchio with my arm fully extended—“can overturn the presumption of innocence by carrying his burden, proof beyond a reasonable doubt.

  “I could, if I wished, sit down at this moment and rest our case. And I could argue that my client should be freed, acquitted, found not guilty. But I am not going to do that, because we have evidence, considerable evidence—some of you might call it abundant evidence—evidence that you have not seen, that will not only establish reasonable doubt in your minds as to the defendant’s guilt, but evidence that will allow you to see the shadowed hand of the true perpetrator of this crime.”

  I move laterally in front of the jury box now, the six alternates seated outside and just in front of it.

  “So what is the defendant’s case, his case in his own defense?”

  I begin to outline it for them.

  I start with the rush to judgment, the fact that there has already been considerable evidence and that there will be more evidence that the police conducted a shoddy investigation. I remind them that they have already heard evidence from Detective Detrick, the lead homicide detective, that from the start the police pursued no suspects other than the defendant. I remind them that the police fell on Carl the moment they found his fingerprints and shoe impressions at the scene, this despite the fact that the defendant, along with other hotel employees, had a business reason for being in or near the vicinity of the victim’s room.

  “Objection, that last is argument,” says Tuchio.

  “Overruled,” says the judge. “The jury can decide.”

  I turn back to the jury. Now I must tread carefully. You would think, with the Jefferson Letter and the samples of hair contained in the manila envelope, that this would be a slam dunk. But it is not. Unless this is carefully presented, gingerly handled, the outlining of this evidence, the convenient fashion in which it landed in our office may produce the very result hoped for by Tuchio—skepticism and the feeling among jurors that they are being manipulated, that Carl or someone he knew delivered this to our office.

  So I back into it and tread lightly.

  “You have already seen and heard evidence by the state’s expert, Mr. Prichert, that investigators and police crime-lab technicians failed to discover that something was missing, taken from the victim’s hotel room in the minutes following Mr. Scarborough’s murder.”

  I remind them of the shadowed leather portfolio, shaded in the victim’s blood, and the item missing from the top of it, and I tell them that this is further evidence of a shoddy investigation.

  “Moreover,” I tell them, “we will produce evidence explaining to you, showing you, what that mysterious missing item was. Additionally, we will produce evidence that the item in question was not found by police in the possession of the defendant following his arrest, but that it was found elsewhere, during the time that this trial has been ongoing. And, ladies and gentlemen, I will warn you that the contents of this item will shock you.”

  Now I have their attention, which for the moment is all I want.

  As I turn, Tuchio is smiling at me. He senses the problem we are having with this evidence, and he is enjoying it. As the saying goes, “Beware of Greeks bearing gifts.”

  “In addition to the mysterious missing item, you have seen and heard evidence from Mr. Prichert regarding samples of hair found at the murder scene, in the bathroom and between the cushions of the chair in which the victim was seated when he was murdered.

  “According to the testimony produced by the state, by the prosecutor, these hair samples, none of which match the defendant’s hair, are simply random strands of hair deposited by former hotel guests or employees.

  “But we will produce evidence that this is not so. We will present evidence here in this courtroom, conclusive evidence that at least three of these strands of unidentified human hair found by police evidence experts at the scene, hairs none of which match the defendant’s, that these hairs are directly and conclusively linked to the mysterious missing item taken from the victim’s hotel room in the minutes after he was murdered.”

  Harry and I decided last night, near midnight, in the conference room that we had no other choice during our opening statement but to build our case around the Jefferson Letter, to keep veiled its contents, to hang everything from this enigma like a Christmas tree, and to ignore for the moment the manner in which the letter came into our possession.

  To tell a jury in so many words in our opening statement that it was slipped under our door in the middle of the night by an unknown messenger is to invite disbelief on a nuclear scale.

  We are banking on two things. If we are careful, we can control the order of evidence and testimony as it comes in. We can lay groundwork with the credibility of our witnesses to dull, to an extent, the natural suspicion of how this evidence was acquired.

  The second thing we are counting on is the shock effect of the Jefferson Letter itself. While you always want to keep a jury in suspense, the stunning contents of the Jefferson Letter—what it says and what it means—are a dynamic unto themselves. That, and the timing with which this is delivered, is critical.

  “Finally,” I tell them, “you will see evidence in the form of a videotape that will explain to you the importance, the significance, of the mysterious item taken from the victim’s room in the moments after he was murdered.”

  This is vague, and left vague for a reason.

  “When you have heard all the testimony, and seen all the evidence, I believe you will finally understand why Terry Scarborough was killed and that the defendant Carl Arnsberg had nothing to do with this crime. I believe that the evidence will show and that you will come to understand that the murder was committed for other reasons, by another perpetrator, and that the motive for this murder was connected to the mysterious missing item—the item that you will see and hear about, here in this courtroom, because we, the defense, will present it to you in evidence.”

  I look them in the eye, slowly, from one end of the jury box to the other, in silence. I am six or seven feet back, just in front of the six alternates seated outside in front of the jury railing.

  “I ask you to watch and wait, to keep an open mind, to listen to the testimony, and to look at the evidence. Because I believe that the evidence will show that the killer of Terry Scarborough is not in this room today. He is elsewhere. I ask you to look carefully, because if you do, the evidence will reveal the shadowed figure of this killer as he moved through the hotel room that morning, around the body of Terry Scarborough, to reach out and to snatch the missing item from the top of that leather portfolio. Look carefully, ladies and gentlemen, look very carefully, because if you do, you will see…the shadowed hand of a murderer at work. Thank you.”

  TWENTY-FIVE

  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 argume
nt 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 door
frame 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.”