Back in the office, Harry, Herman, and I labor over the signature. While none of us are handwriting experts, Scarborough’s signature was somewhat unique. It would be difficult to copy. The signature at the bottom of Zobel’s disclaimer form appeared to be an original in blue ink, and from everything we can see—all the little nooks and crannies, right down to the tailored wisps of ink from his favored fountain pen—it appeared to be authentic.
So if someone else had commissioned the letter, how did they get Scarborough’s signature on the form?
Closeted with Quinn and Tuchio in chambers, we find this even more mystifying. The judge has been playing racquetball with the jury for more than ten days now, what with their constant requests for clarification on bits of evidence, some granted, some denied. They have returned three times to ask that Carl’s signed statement to the police following his arrest be read to them once more or, in the alternative, that they be given a copy.
Quinn has said no to a copy, from which they might end up parsing the words, but he has sent his clerk, Ruiz, in twice to read it to them.
If it’s possible to interpret their questions, with all the evidence that’s been presented to the jury, the stunning revelations of the Jefferson Letter and the matching evidence of hair samples from the envelope to those found at the scene, the jury seems hung up on a single point: how Carl could have gotten the tray with food to the table in Scarborough’s room without first seeing his body.
Guess what a jury will do with the evidence and you’ll be wrong a dozen times out of a dozen.
Quinn is now mired in another trial in a courtroom down the hall, so he has little time for us this morning.
“What the hell is going on?” says Quinn. “From the videotape and the transcript, the two of them having dinner, Teddy’s transcript, Ginnis gave Scarborough the copy of the letter. Now you bring me this,” he says.
The judge is holding the disclaimer form signed by Scarborough. “Why is Scarborough asking Ginnis for the original if he already had it?”
“It’s a good thing that video didn’t come in,” says Tuchio.
“I’m beginning to think that that video is the only thing that is real,” I tell him.
The judge has to get back to court. He is ushering us out just as Ruiz, his clerk, is coming the other way.
“You guys better stick around,” says Ruiz. “Your Honor, the jury is back,” he says.
“A verdict?”
Ruiz shrugs and shakes his head. He’s not sure, but they’ve notified the bailiff that they’re ready to come out of the jury room.
Twenty minutes later the courtroom is packed, Harry and Carl seated at the counsel table with me.
“What do you think?” says Carl.
“I don’t know. They’ve been out a long time.”
The general rule is that a quick verdict is a guilty verdict. The longer the jury is out, the greater the possibility that Carl will be acquitted. At least that’s the rule of thumb. I’ve told him this, but I haven’t dwelled on it. There’s the risk of rising expectations and the shattering shock if I’m wrong.
We wait for another eighteen minutes before the jury files in. When a jury comes in, it is always the same, the rush of emotions, the anxiety. My stomach produces enough acid to etch the concrete on my driveway. You find yourself leaping at every little sign, looking for signals. The sure and certain giveaway is when one or more of the jurors smiles at the defendant.
None of them do this today. The fact is that not a single one of them makes eye contact with Carl, or anyone else at our table. This is not good.
Quinn allows them to settle into their chairs. “The court will come to order.”
He waits for things to settle down out in the audience, until all you can hear is a couple of coughs and some throat clearing. “Mr. Foreman.”
The jury foreman rises.
“Has the jury arrived at a verdict?”
“It has not, Your Honor. We are deadlocked.”
A hung jury. There is commotion in the audience behind us, people up out of their chairs.
The judge hammers his gavel. “The court will come to order. You people out in the audience, take your seats and be quiet.”
When I turn, I see the expression of concern on Sam Arnsberg’s face, Carl’s dad, seated in the front row directly behind us. He’s not sure what this means, nor is Carl.
“What’s happening?”
“Just sit tight. Don’t talk to anybody, don’t say anything.”
Two of the deputies move up and stand just behind the bar railing at our backs. They are both facing out to the audience.
Everything now rests in Quinn’s hands, and I can tell by his expression that he is not happy.
He clears his throat. Quinn is considering his options as he sits up there on the bench. “Mr. Foreman.”
“Yes, Your Honor.”
“Now, I don’t want you to tell me what the vote is or which way the jury is leaning, but if I were to send you all back into the jury room to deliberate a little longer, do you think it’s likely that you would be able to arrive at a verdict?”
“I doubt it, Your Honor.”
This is not what Quinn wanted to hear.
“I’m going to ask the jurors to return to the jury room and just sit tight for a few more minutes. You’re not to deliberate, just sit there and relax.”
“What’s going on?” says Carl. “Does that mean I’m free?”
“Not yet,” I tell him.
The jury files out.
“I’ll see counsel in chambers. The defendant can go back in the lockup, just for a few minutes.”
The lawyers follow Quinn back to his office, but before he gets there, he stops for a second, tells us to go into the office while he talks with his clerk, Ruiz, just outside the door.
When he finally comes in, he doesn’t take off his robe but flops into his chair.
“Any motions?” he says.
Quinn is inviting Tuchio to make a motion for the dynamite charge.
“We would move that the court issue the modified Allen instruction to the jury, Your Honor.”
This is the polite name, the formal name. Many defense lawyers call it the “dynamite instruction,” because to them that’s what it is—a means to blast recalcitrant jurors, holdouts, into knuckling under and voting for conviction. The instruction in modified forms and variations has been around since the late 1800s and derives its name from the case that coined it, Allen v. United States.
It is generally brief, no more than a page when printed out on paper. In short, what it allows the judge to do is to instruct the jury that the state and the taxpayers have spent a great deal of money and the lawyers and the court have spent a great deal of time and energy to try the case. It also reminds them that if they fail to arrive at a verdict, the case may have to be retried. In effect it’s a mistrial, and that if this happens, it will cost more money and time. After some soothing words assuring the jurors that no one is trying to jimmy them into giving up an honestly held conviction, it ends with the bold statement that it is their duty to arrive at a verdict if they can do so.
Of course, by now all they remember is the last line, the “duty to arrive at a verdict” part delivered to them by God, who has just scowled at them from the bench. Some defense lawyers will tell you of cases in which the jury didn’t even get out of the box and back to the jury room before they voted to convict.
“Your Honor, you heard the jury foreman when you asked him if they could arrive at a verdict,” I say.
“He said he doubted it,” says Tuchio. “He didn’t say they were irreconcilably deadlocked.”
“Yeah, well, that’s a mouthful for anybody,” says Harry.
Quinn reaches into his drawer and pulls out the binder with jury instruction, looking for the page with the dynamite charge.
His clerk comes into chambers behind us and closes the door.
“Your Honor, can I ask you that before you read the charge t
o the jury—” I begin.
“Just a minute,” says the judge.
Ruiz cups a hand and whispers into the judge’s ear. Quinn swivels around in his chair so that they are both sheltered by the high back of the chair between us.
When the judge finally wheels around ten seconds later or so, he looks at me. “You were saying something, Mr. Madriani.”
“I wanted to ask you that before you read the charge to the jury, if you could one more time talk to the jury foreman to gain some kind of sense as to the real feasibility of a verdict?”
“That’s a fair request,” says Quinn. “Let’s head on back out.”
Eight minutes later the jury is back in the box. Carl is seated between Harry and me.
“The court will come to order,” says Quinn. “Mr. Foreman,” he says.
The jury foreman is back on his feet.
“Let me ask you one more time. If I were to send the jurors back into the jury room for further deliberations do you think they would be able to arrive at a verdict?”
“It’s not likely, Your Honor.” He says essentially the same thing a second time.
Quinn looks out from the bench. “At this time the court is going to declare a mistrial. The defendant is discharged. Mr. Tuchio, you’re free to file new charges.”
“Your Honor! Your Honor!” Tuchio is on his feet, one hand waving behind him at the audience, trying to get them back into their seats. This is like putting the genie back in the bottle. “May I request that the jury be polled?”
“That’s a fair request,” says the judge. “Everybody take your seats. Sit down, please. We’ll be through in just a minute.”
“Am I free?” says Carl.
“You are for now.”
He smiles at me, then turns and looks at his dad, a broad grin.
One by one they stand in the jury box and announce their verdict. Harry is taking notes on the jury sheets, the pages from jury selection, so we will know how they voted.
When they’re finished, Harry doesn’t have to tell us the tally. It is eleven to one for acquittal. The lone holdout, the woman in the jangling jewelry.
You can almost see the relief on Tuchio’s face. He has dodged a bullet by half an inch.
“The defendant is discharged,” says Quinn. “Free to go,” he says.
At least for now, unless Tuchio decides to recharge him. There is no double jeopardy in the case of a hung jury. The prosecution can do it all over again to the same defendant, with the same charges.
“Court is adjourned,” says the judge.
There is pandemonium in the courtroom, reporters leaning over the railing. They want to talk to Carl.
I tell him not to say a word, to keep his mouth shut. Harry takes him by the arm and goes with him back to the lockup and the jail to get his personal items and keep him away from the media.
One wrong word and Tuchio will jump on his back and use it against him in another trial.
At least in terms of a jury, the shock of the Jefferson Letter is past. It is not likely to have the same numbing effect if Tuchio does it over again. He also knows, as I do, that the Jefferson Letter is, without question, a tin-plated phony.
THIRTY-ONE
Over the phone that night, Harry and I put our heads together and came to the same conclusion, that the magic pill that caused the judge to declare a mistrial was not the declaration of the jury foreman but the whispered message of R2-D2, his clerk, as they huddled behind the judge’s chair in chambers seconds before we came back out.
Quinn had said something to Ruiz as we were first going into chambers to argue over the dynamite instruction. Harry and I will never know, but if we had to guess, the judge had dispatched his clerk to talk to one of the bailiffs who normally usher the jury around. Dirt travels, and people talk. It is not unusual for deputies and bailiffs to pick up smoke signals and drums telling them with some certitude what’s going on behind closed doors.
This is what Ruiz was telling the judge behind the chair. That they were deadlocked eleven to one and that the single holdout had her heels dug in and her position had become a question of pride.
The blond hairs in the envelope presented me with a process of elimination, a question between the two of them, Trisha Scott and Richard Bonguard. If you didn’t think long and hard, you might flip a coin trying to come up with the answer.
I made the long-distance call and left a message with the secretary. Less than an hour later, the secretary called back, a meeting was set. The next day I flew east.
Harry had asked me once what possible reason Bonguard might have to kill the golden goose, his megabucks client Terry Scarborough. Among the theories is that it’s possible he had no choice. He knew Margaret Ginnis. They met at a political function. He thought that Antonin Scalia, the leading edge of the right wing on the Court, was the wit, but he didn’t like his politics. Ginnis held the balance of power on the Court. So when things happened in the islands, who was Margaret to call but her friend, her former agent, her political ally, Richard Bonguard? It was possible that working together, in secret, they could change history. It was possible, but not likely.
The reason, unless I miss my bet, is that there’s no way Bonguard could have known at the time of the murder that the Jefferson Letter was a fraud. And it was this fact that propelled the murder. Unless I’m wrong, Ginnis would never have told his wife what he was doing. The risks were too great. He would not want to put her in jeopardy if things went wrong, risked having her accused of collusion and conspiracy. But there was one person, sufficiently in the shadows and therefore safe, with whom he might share the secret: his trusted former clerk.
That night, as Harry and I flew east toward Miami and south to Curaçao, we must have passed Trisha Scott in the air, jetting the other way. She was in a frantic dash to reach our office, racing to slip the envelope with the Jefferson Letter and a few of her own clipped hairs under our office door. Scott saw what was happening. Reading news reports of the trial, watching the revelations minute by minute on television, she knew that the only way to stop us from looking further, to prevent us from stumbling over what was really happening, was to deliver the evidence and hope that this would draw the attention of the world back to the trial. But she was already too late.
When I called to make the arrangements, I insisted that we meet in a public place. I no longer know who it is I’m dealing with. Here in a crowded room, I feel safer. It is the same Washington restaurant where we first met for dinner.
We spend a couple of minutes in false pleasantries—the weather, politics. I’m not entirely certain if she realizes why I’m here. She is animated, sitting erect in the chair, actually laughing once at something she heard in one of the campaigns. She is also very nervous.
Then I broach the subject. “I take it you do understand that it’s over now?”
She gives me a quizzical expression, then leans in toward the table. “Excuse me?”
“It’s over. All of it,” I tell her.
She makes a perfect oval with her mouth as if she wants to say, What’s over? But as she studies my face, she stops herself. She closes her mouth and doesn’t say a word.
In this instant, Trisha Scott looks as if she’s aged ten years in the seven months that have passed since our last meeting.
“I am not a cop. I’m not a reporter. Under other circumstances I wouldn’t even be here tonight. But I have a client, and he’s still hanging out there on the line, in jeopardy. Do you understand?”
“I read that in the newspapers. I’m sorry to hear it,” she says. “But I’m not sure what that has to do with me.”
“Then let’s cut to the chase,” I tell her. “I left a memorandum on my desk with an e-mail to my partner as well as to the district attorney with your name, phone number, and address on it, just in case something bad were to happen to me during my trip here tonight. I told them to find you and to pluck a few hairs and that all their questions would be answered.”
This s
eems to freeze her in place.
Trisha Scott could feel safe sending off bits of her hair in an envelope under our office door because she knew there was no national database for hair samples as there is for fingerprints. Unless there was someone to point the way, to connect her to the crime, the hair evidence might serve to exonerate Carl without implicating her. I wanted this on the table early, so that if she had plans to send me to join Scarborough, she would know from the get-go that they are fruitless.
“It’s over. Do you understand?”
It takes a few seconds, and then she seems to wither in the chair. Whatever will or determination was left evaporates almost in the blink of an eye. I find myself suddenly looking at a different person across the table, at what I can only characterize as a catatonic mask.
For a long time, she says nothing. She takes a drink of water, her eyes suddenly scanning the restaurant. She sets the glass back down and seems to look right through me as she gathers her thoughts.
“I want you to understand…I wonder…I wonder if I could go to the ladies’ room?”
“I don’t think that’s a good idea,” I say.
“Police?”
I nod. They’re not here yet. They are on their way, but she doesn’t have to know this.
“Oh, God! I want you to understand how it was. It’s important that you understand.”
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