Shadow of Power Free with Bonus Material

by Steve Martini

  According to the bailiff, a delegation from the local chapter of the NAACP and the National Lawyers Guild have appealed for calm, while another group has appeared at the courthouse’s main entrance and demanded a copy of the Jefferson Letter. One of the deputies, a lieutenant, told them that he would relay their request to the judge, who would take it under advisement.

  By one o’clock we’re back in the courtroom. Quinn is running a taut ship at this point, hustling to get the case to the jury before the folks outside can burn the building down. His biggest fear is more revelations regarding the letter. But sooner or later it has to come out.

  Our last two witnesses are both educators, one more surprise for Tuchio and, if the letter comes in, what may prove to be a hideous shocker for the nation.

  Kathy Lafair is a teacher who also holds a joint degree in clinical and educational psychology and has been tucked into our witness list for months. She has given us nothing in writing that we would have to turn over to the prosecution, though Harry and I know what she will say.

  Lafair teaches classes in the evenings at a school in the eastern area of the county. It is part of an extension program for special education, serving adults who dropped out of school when they were kids due to learning disabilities and who now find themselves locked out of the system because they lack basic skills.

  Under oath and on the stand, she tells the jury that with counseling, encouragement, and sometimes one-on-one tutoring, some of these adults can find their way back to the dreams they once had as children, to learn and to enjoy more productive lives.

  Sadly, however, this was not the case for Carl Arnsberg.

  Harry was the one who discovered the problem, and he felt bad about it. He’d made a wisecrack about Carl early in the case, just after the three of us had met for the first time at the jail.

  Harry and I were talking, and the issue was whether Scarborough’s book might have set Carl off, especially if he were a nutcase. Harry brushed it aside with one of his glib comments.

  The comment came back to haunt him two weeks later in a meeting with Carl to go over some items of evidence delivered to us by the D.A.’s office. By that time Harry had some suspicions, but he wasn’t sure. He handed Carl a slip of paper and told him to take a look at it. Harry was busy hunting for other documents in his briefcase.

  Carl picked up the slip of paper, studied it for a few seconds, and then put it down.

  Harry regarded Carl and said, “What do you think?”

  “Oh, it’s fine. Looks good.”

  The half slip of paper was a form with some printing on it and some boxes to be checked. Two of the boxes had X’s typed in them. It was the charging document for “special circumstances”—the legal justification, and the basis if he is convicted, for the State of California to execute Carl Everett Arnsberg.

  Carl is illiterate. It’s not that he has difficulty reading. He can’t read a word. He never told us, didn’t say anything. Carl has been hiding this from people all his life. We didn’t know the full story until he gave us the name of Kathy Lafair.

  This morning she sits on the stand and smiles at him.

  Carl’s head is down. He glances up at her every once in a while, but he won’t look her in the eye. Kathy Lafair is just another reminder of failure in Carl’s life, one of many.

  “Can you tell the jury how you came to know the defendant, Carl Arnsberg?” I ask her.

  “He was one of my students,” she says. “For about six weeks. Three times a week at night, he would come to classes.”

  “And what did you teach?”

  “Basic reading comprehension.”

  “Can you tell the jury what that is?”

  “It’s what you call beginner’s reading. What you would normally teach to children in kindergarten and first grade.”

  “Was Carl able to read at all?”

  “No.” She looks over at him. “Carl, you shouldn’t be ashamed. It’s not your fault.”

  “Your Honor, I’m going to object to this.” Tuchio is up out of his chair. “If she wants to testify, that’s fine. But to be having conversations with the defendant…”

  “Mr. Tuchio, relax,” says the judge. “Sit down.” He looks at the witness. “Go ahead, Mr. Madriani.”

  “When you say he couldn’t read, did he have the ability to comprehend any words typed or written on a page? For example, could he recognize his own name if it were printed or typed?”

  “No.”

  “And you know this for a fact?”

  “I do.”

  “Before we go any further, can you tell the court what degrees or special training you have?”

  “I hold a bachelor’s degree in education from the University of California at Berkeley and a master’s degree in clinical and educational psychology from UCLA.”

  “As a clinical and educational psychologist, can you tell the jury what you do?”

  “I do a good deal of testing. I administer standardized tests and conduct evaluations.”

  “To what purpose do you do this?”

  “To determine whether students suffer from any recognized learning disabilities. It’s diagnostic. There’s a wide range of learning disabilities, from hyperactivity and attention deficit disorder to autism and dyslexia and more,” she says.

  “And how long have you been doing this?”

  “Twenty-two years.”

  “Did you have occasion to conduct any tests on the defendant, Carl Arnsberg?”

  “I did.”

  “When?”

  “Let’s see. That would have been about two years ago.”

  “So the tests were not performed in connection with this case?”

  “No. They were related to his schooling.”

  This is important, to avoid a claim by the prosecution that we had tests conducted and failed to disclose the results in discovery.

  “And as a result of these tests, were you able to determine whether Carl suffered from any known or recognized learning disability?”

  “Yes. He suffers from dyslexia.”

  “Can you tell the jury what that is?”

  “Dyslexia manifests itself in an inability to process certain visual signals, usually symbols, letters, and written words. It can affect verbal abilities as well, but that’s not as common.”

  “Is it curable? Can it be treated?”

  “Not in the ordinary sense. You can’t prescribe medication for it. There’s no pill you can take. It can be overcome in some cases, but depending on the severity it can be very difficult, very frustrating, and in some cases it can take years. Basically what you’re doing is therapy, educational intervention, but it’s usually more effective in early childhood. The older the person is, the more difficult it may be to treat.”

  “What about in Carl’s case?”

  “Carl had a problem,” she says. “Because no one knew he suffered from dyslexia. He managed to hide it very well. His parents didn’t know. He didn’t know himself until he was tested and diagnosed in our office.”

  “And how old was he then?”

  “I think he was twenty or twenty-one years old.”

  “So he went all the way through school with dyslexia, and he never knew it.”

  “Unfortunately, that’s not uncommon, especially years ago. It went undiagnosed in many cases.”

  “Can you explain to the jury what it’s like to suffer from dyslexia?”

  “The best example I can give,” she says, “is a ciphering machine. It would be as if every written message that you received was enciphered in a code and everyone else in the world was given a decoding machine, except you. They would be getting and sending messages constantly. You would be getting messages, but you wouldn’t be able to understand any of them. And you wouldn’t be able to send any either, because you didn’t understand how to encode them.”

  “So I imagine that would be very frustrating.”

  “That’s the problem,” she says. “It’s the frustration and c
onstant anxiety that generally overwhelms the person. But it’s a very slow, agonizing process.”

  “How do you mean?”

  She explains that it generally starts in childhood when the sufferer is just beginning to socialize with other children. As they all begin school, the other children progress, because the learning process is so heavily dependent upon reading skills. This leaves the person suffering from dyslexia looking at those around him and wondering why they’re progressing and he’s not. This results in a multitude of other problems—acting out in an effort to compensate for the inability to learn, aggression, feelings of inadequacy, depression, a whole range of psychological problems. “Depending on the child, many of these attendant problems become worse as the child gets older with major problems in adolescence, in the teenage years.”

  “Can the frustration result in violence?”

  “It can, and there are many documented cases of this. Studies show that a considerable number of inmates incarcerated in correctional facilities suffer from dyslexia. Of course, it’s not possible to know how their lives might have changed had this been diagnosed in early childhood and the disorder remedied.”

  “Does dyslexia have anything to do with intelligence, how smart or how bright a person may be?”

  “Albert Einstein suffered from dyslexia. Does that answer your question? There is absolutely no correlation at all between intelligence and dyslexia. Go online sometime and check the lists of names—celebrities, inventors, writers. Agatha Christie, if you can imagine. Alexander Graham Bell and Thomas Edison were both dyslexic.”

  “How do you account for the fact that some people are able to cope with and overcome the disorder and others aren’t?”

  “That’s impossible to say. In some cases it may have to do with the severity of the disorder. In others it may have more to do with the fact that they had someone around them in their early developmental years who was willing and able to spend the enormous amount of time that is required to overcome dyslexia.”

  “With regard to Carl, based on your testing and evaluation, can you tell the jury how severe the dyslexia was in his case?”

  “Severe. On a scale of one to ten, with ten being the most severe, I would rate Carl at nine.”

  I walk to the evidence cart and collect Scarborough’s book, Perpetual Slaves. I show the witness the cover. I call her attention to the bold lettering, the title. In your opinion, if I were to show this to Carl, the title of this book, would he be able to read it?”

  She shakes her head. “I don’t mean this in a bad way, Carl.” Then she looks back at me. “There isn’t a chance.”

  “And if there was some correspondence—say, a letter, a handwritten letter—and I told Carl to go and find that letter, would he have the ability to distinguish that letter based on the writing from other letters and correspondence that might be at that location?”

  “No.”

  “Thank you. Your witness.”

  Tuchio gets up, looks at the witness. “Ms. Lafair, is it?”

  “Yes.”

  “Would the defendant’s condition, dyslexia, interfere with his ability to watch television or process visual images such as video, news programs, things like that?”

  “Generally, no. But if there was any writing on the screen, he wouldn’t be able to read it.”

  “But he could understand the sounds coming from the television, the spoken words and the pictorial images?”

  “Generally, yes.”

  “Let me ask you about the hypothetical situation that Mr. Madriani raised, the handwritten letter in the room and the defendant’s ability to distinguish it from other correspondence. Let me give you a little variation on the theme. If there was a handwritten letter in that room and the letter in question was written in a unique color of ink, say, a tobacco color, brown as opposed to blue or black. If I told Carl to go and get the letter written in the brown ink and there was no other letter written in that color ink, would he be able to distinguish that letter from other letters?”

  “Dyslexia generally doesn’t affect the ability to distinguish colors.”

  “So he would be able to distinguish in that case?”

  “In the circumstances that you outlined, yes.”

  “I have no further questions, Your Honor.”

  Tuchio has taken half of the loaf away from me. He will argue that it didn’t matter that Carl couldn’t read Scarborough’s book, because what fired him up and sent him over the edge were the television interviews with the victim. And as for the letter, if he knew the color of the ink, he would be able to find the Jefferson Letter. Of course, this begs the question: Why would someone suffering from severe dyslexia want a handwritten letter, especially if it had no intrinsic value because it was a copy, not the original?

  The end of the day, and we do battle in chambers over Quinn’s desk. There are two issues, the restaurant videotape showing Ginnis and Scarborough quibbling over the letter spread out on the middle of the table and the Jefferson Letter itself.

  To be honest, it’s a hard call. The video, if Quinn would let me have it, shows the victim with Ginnis across the table, as well as the letter in the middle between them. With a little maneuvering room, Teddy Nons’s transcript, and a few carefully timed winks and twitches as the jury watches the video, it wouldn’t be difficult to get them leaning in the right direction, into Ginnis’s lap over dinner.

  The only problem is, I promised them a shocker in my opening statement, and moving pictures of Ginnis, even with a scowl, isn’t going to cut it. And there’s no group on earth less forgiving than twelve angry people sleeping in hotel rooms who have been promised a punch line that isn’t delivered.

  Right out of the box, Quinn is worried that disclosure regarding the contents of the letter is the equivalent of tossing jet fuel on a fire.

  “Can you guarantee that there won’t be violence if that letter is read?” Quinn is looking at me.

  But Tuchio pipes up first. “Besides, there is no way to know whether the letter is authentic.”

  “Let me suggest that we put the letter aside for the moment and take up the question of the video,” I tell them.

  “Well, there’s no basis for that to come in at all,” says Tuchio. “It’s hearsay, and there’s still no foundation. Good luck,” he says.

  I go back to my original argument that it’s all one big package; pictures of the letter in the video serve to verify that the two documents, the one in the video and the item taken from the murder scene, are the same thing. Since the video shows the interested players huddled over the item, why not let the jury in on the secret so that everybody knows?

  There’s not the slightest chance in the world that Quinn is going to go for this, and before I can lean back in my chair, he says so. “The video’s off the table. It’s not coming in.”

  Precisely, and since every judge wants to play Solomon, we’re down to the basic questions: What part of the baby is he willing to give me, and how do we sever it?

  “We could stay here and argue all night,” I say. “But Mr. Tuchio made a point, and I think it’s a good one.”

  “You agree with something Tuchio said?” Quinn stares at me.

  “At this particular moment, I’m tired, Your Honor. Forgive me.”

  “No, that’s all right. What were these words of wisdom?”

  “The question of authenticity. We will stipulate to the fact that there’s no way we can prove that the letter is authentic, but that’s not really at issue here.”

  “It sure is,” says Tuchio.

  “No, the letter is physical evidence taken from the scene of a murder. The presumption, and it’s a reasonable one, is that the killer took it. The unanswered question is why. Now, if the pages on that paper were blank, there wouldn’t be an issue. We would have to tell the jury that the idiot took blank paper. Except they aren’t blank. There are words on them. But here’s the kicker. We’re not offering those words to prove the truth of what is stated in the let
ter, so there’s no issue of hearsay. The question goes to motive. Why did the killer take the letter in the first place, and that’s a question of fact for the jury.”

  Quinn is following all this. “He’s right.”

  “No,” says Tuchio. “He’s not. There’s still a question of authenticity. Is the letter real?”

  “No,” I say. “In this setting, as a matter of law, it doesn’t matter whether it’s real. The killer took it because he had a reason to take it. That reason is an issue for the jury.”

  “Well, why do you think he took it?” says Tuchio.

  “That’s for me to know and you to find out. There is a question of authenticity, but it doesn’t have anything to do with the law,” I say. “Or this case. It has to do with public safety.”

  And here comes the hook for Quinn. “There are probably a few thousand people out there who’d like to set fire to this building right now, and God knows how many other buildings around the county. And when they find out what’s in that letter, they’re going to want to redouble their efforts. Those are the people who should be concerned about the authenticity of the letter.

  “So let me make a suggestion. Tomorrow you turn off the lights in the courtroom and we go dark. The eyes of the world are on this place right now. The federal government is threatening to come and take the letter away. The court sends out a press release tonight, to every media outlet it can find. In the press release, you tell the world that there is a letter. It purports to be in the hand of Jefferson, but the court cannot verify whether the letter is real or not. Furthermore we may never be able to answer the question of whether it’s real, because we don’t have the original; we don’t know where it is or whether it even exists. That should pour cold water on hot heads. When they realize that the party favor may not pop, that there’s no there there, we can hope their feet will get sore from standing around and they’ll go home. If we’re lucky.”

  “Or,” says Tuchio, “the court could order that the letter not be read in court. Much simpler,” he says.