“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 socia
ble 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.
TWENTY-SIX
Quinn calls the lunch break, and Harry and I meet with Jennifer Sanchez, our paralegal, at a small bistro two blocks from the dwindling army of demonstrators in front of the courthouse.
Jennifer is decked out in her best going-to-court suit, slacks and a jacket with a white blouse and ruffled collar. She’s nervous, and you can see it. I tell her that I’ll be with her the entire time, that if Tuchio tries to get rough, I’ll be all over him.
She nods and smiles, but in her eyes I can see the anxiety.
“Just think before you answer any questions. If you don’t know the answer, say you don’t know.”
Harry says, “Listen, you won’t have any problems on direct. Paul will lay it all out for you. But when Tuchio gets up on cross-examination,” he says, “he is going to try and pick up speed, get a quick rhythm going so that you can’t think between questions. Don’t let him do it,” says Harry.
“Pause between answers. He can’t ask another question till you’ve answered the one before it, and if he tries, we’ll object. All you have to do is stay calm. Just tell the jury what you saw, what happened.”
Jennifer doesn’t want any lunch. She’s afraid she may not be able to keep it down. Harry and I go light, and less than an hour later we’re back in the courtroom.
Jennifer is on the stand, sworn and seated, her back straight as a board, hands in her lap. She takes a deep breath, and I take her carefully through the preliminaries—the fact that she has spent her whole life in San Diego and attended local schools, her training as a paralegal, her employment with our office, the fact that she loves her work, any piece of information that might endear her to the jury. Our entire case now hinges on whether they believe her.
“I think it was exactly a week ago, Thursday morning, can you tell the jury what time you arrived at work?”
“It was about seven A.M.,” she says. “I had a lot of work to do, and I wanted to get an early start.”
“And when you arrived, was there anyone else in the office?”
“No. I was the first one there.”
“Please tell the jury what you found when you opened the door to the office that morning?” I try to make this sound as matter-of-fact as I can.
“When I unlocked the door and opened it, there were a couple of items on the floor. There was an envelope and a flyer, I think an advertisement, and the flyer was from a new restaurant that was opening down the street.”
“And the envelope, did you know who that was from?”
“No.”
“Did it have a return address on it?”
“No.”
“Did it have any postage on it? Stamps or a tape from a postage machine?”
“No. Just a label addressed to you and a typed notation under the office address saying ‘Personal and Confidential.’”
“Was it unusual to find letters or other pieces of literature slipped under the door in the morning when you arrived at work?”
“No. Happens all the time,” she says. “Clients sometimes slip envelopes with checks for payment of bills, advertisements, sometimes even reports from expert witnesses if they’re small enough.”
“So finding this envelope on the floor didn’t surprise you?”
“No. Not at all.”
“Can you tell the jury what you did with this envelope after you found it?”
“I picked it up, and I put it on your desk.”
“In my office?”
“Yes.”
“You didn’t open it?”
“No.”
“Can you tell the jury why you didn’t open it?”
“It’s firm policy,” she says, “that items coming in marked personal or confidential are to be delivered unopened to the person they’re addressed to in the office.”
“What about other mail, not marked personal or confidential? Can you tell the jury what happens with that?”
“It’s opened by one of the secretaries. If it’s business or legal, the correspondence is normally removed from the envelope, and then the envelope is stapled to the letter or whatever it is, so that if there’s a postmark or a cancellation on the envelope, we have it.”
“But this didn’t happen with the envelope you found on the floor?”
“No.”
“Because it was sent to me, and marked personal and confidential?”
“That’s correct.”
We talk about the size of the envelope, large enough to hold letter-size paper laid flat, unfolded. I ask her if she touched the envelope again at any time after she set it on my desk, and she says no.
I ask her if anyone else touched it, and she says she doesn’t think so.
I ask her if she knows when the envelope was finally opened, and she tells the jury that this happened the following Monday morning when I returned to the office.
“And were you present when this was done?”
“I was in your office,” she says.
“So between Thursday morning when you discovered the envelope on the floor inside the door to our office and Monday morning when I returned to the office, as far as you know the envelope in question remained on my desk, unopened?”
“That’s correct.”
Now I have her tell the jury where Harry and I were during all this time, from the moment she discovered the letter on the floor until I returned on Monday morning to open it.
“You were out of the country on business,” she says.
“And how do you know that?”
“Because I helped make the travel arrangements, one of the secretaries and myself,” she says, “and because in preparation for my appearance here tod
ay, both you and Mr. Hinds showed me your passports with both entry and exit stamps for the dates in question from the island of Curaçao in the Caribbean.”
We have had certified copies of the passport pages prepared. I show them to Jennifer, we have them marked for identification, and we enter them in evidence.
“Do you know the date and time that we departed the airport en route to Curaçao?”
“It was just before eight last Wednesday night,” she says. “I think seven-fifty or seven fifty-five.”
“And can you tell the jury where you were at that time, on Wednesday night—this would be the night before you discovered the envelope on the floor?”
“I was having dinner with a friend at a restaurant on Coronado Island.”
“And what did you do after dinner?”
“I went back to the office for about an hour.”
“And what time did you arrive at the office?”
“A little after ten,” she says.
“And how long did you remain at the office that evening?”
“I had some work to finish. I left the office to go home. I think it was a few minutes after eleven.”
“When you left, was there anyone else in the office?”
“No.”
“And I assume that the envelope you discovered the next morning was not on the floor in the office when you left the office Wednesday evening?”
“That’s correct. It was not there.”
“Now let me change gears here. Do you know why Mr. Hinds and I traveled to the island of Curaçao?”
“Objection, hearsay,” says Tuchio. “All she can know is what they told her.”
“Sustained.”
I stop and think. At this moment we are winging it. Tuchio’s objection suddenly has me reaching for something I hadn’t planned on, something I’ve never discussed with Jennifer in our preparations.
“Apart from anything I may have told you, or that Mr. Hinds may have told you, put that out of your mind,” I tell her. “Apart from any of that, do you have any independent knowledge of your own, based on your own observations, your own work in the office, things you have personally observed or witnessed that give you any independent knowledge as to what Mr. Hinds and I were doing on the island of Curaçao during the period in question?”
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