by Kenneth Eade
“I don’t recall.”
“You also said, and I quote, ‘Don’t worry about an increase in payments. Let’s get you into this loan, and you can always get into a non-qualifying loan in the next 18 months because your house is going to be increasing in value.’ Didn’t you say that to Mr. and Mrs. Marsh?”
“Objection,” said Black. “The witness has already testified that he doesn’t recall.”
“And I’m refreshing his recollection. Didn’t you say that to Mr. and Mrs. Marsh?”
“I may have said something like that, but I don’t remember exactly.”
Brent spent the morning grilling Bernstein on everything from A through Z on the Prudent Bank takeover of Tentane Mutual, including their late assignment of the Marsh deed of trust into the trust pool and the subsequent cover up.
***
After the break, Brent set up Bernstein for the real torture.
“Mr. Bernstein, in October 2008, you discovered, did you not, that Prudent Bank was under investigation by the FBI and a federal grand jury for alleged bank fraud, isn’t that correct?”
“Yes, I did.”
“And did you come to learn that the FBI had spoken to Mr. and Mrs. Marsh in connection with that investigation?”
“I don’t recall.”
“Come on, Mr. Bernstein, you knew that Mr. Marsh had made a complaint to the FBI about the way his loan refinance application was handled.”
“I recall something about that, yes.”
“And you spoke to Mr. Marsh about his complaint, isn’t that correct?”
“I wanted to see if there was anything I could do to help him.”
“Mr. Bernstein, because Mr. and Mrs. Marsh were going to expose the illegal transfer of their loan to
Prudent Bank, you stood to lose your promotion to Vice President, isn’t that correct?”
Bernstein clutched the armrests of the chair so tightly his knuckles turned three different shades.
“No!”
“Yes, Mr. Bernstein! Yes! And when you found out about what Mr. and Mrs. Marsh intended to tell the Grand Jury, you went to their house on November 25th…”
“No!”
“Let me finish! You went to their house on November 25th…”
“No I didn’t!”
“And you killed Mrs. Marsh…”
April continued to look at Bernstein, although the sight of him made her sick. She couldn’t take much more of him.
“Objection!” said Black.
“Join!” said Reiser.
“No!”
“And you left only after you thought you had also killed Mr. Marsh…”
“No!”
“Counsel, I object to this line of questioning,” yelled Black.
“I’m not finished! You bashed Mrs. Marsh’s head in, didn’t you Mr. Bernstein?” demanded Brent. “And the last time you saw her, she looked like THIS!” said Brent, throwing the gruesome photo in front of him.”
April covered her eyes with her hand and turned away. Bernstein shot up from his chair, ripping the lapel microphone from his jacket and throwing it against the table. “I don’t have to listen to this shit!” he said.
“On the contrary, Mr. Bernstein, you do have to listen to this shit. Sit down, I haven’t excused you.” Ignoring Brent, Bernstein stormed out of the conference room.
“Let the record show that Mr. Bernstein has refused to answer the last question and has left the room while still on the record,” said Brent.
Both lawyers stood up and Reiser said, “We need a conference with Mr. Bernstein, can we go off the record?”
“Well, it’s a little late for that,” said Brent.
“And lay off the theatrics, or we’ll have to move for sanctions,” said Black.
“Do what you have to do,” said Brent, as Reiser and Black stormed out of the room. “But be back in five minutes so we can finish this today. Otherwise be prepared to come back tomorrow morning.”
Jack came in to sweep the chair with the roller. After a few minutes, he exclaimed, “We have a hair!”
23
FBI Agent Angela Wollard was frustrated by the lack of leads in the Rick Penn missing person’s case. She had exhausted all the usual inquiries; interviewed all family members, friends, and acquaintances. Rick had simply vanished from the face of the earth.
His blue Porsche Boxster had been left in the driveway of his abandoned home, and a thorough sweep by the crime lab had uncovered no physical evidence to indicate “foul play” with the exception of one thing, which was not evidence at all. Penn’s car had been wiped clean. There was not a solitary fingerprint on it, which was very odd. Someone had gone to the trouble of making sure that the car had no stories to tell. Certainly Penn’s own fingerprints should have been all over the door handle and steering wheel, but they were not. It was as if the car had been driven there by a ghost. All of her experience and all of her instincts led Angela to the insight that this lack of evidence of criminal activity was more of a cover up than a coincidence.
It was this nagging thought that drove Angela out to Rick’s house on a quest for that epiphany that would put her on the trail for whom she was sure was Rick’s murderer. Rick’s car had been left where it was. Since there was no crime scene, there was no reason to impound it.
She saw it as she approached and parked, and stared at it for several moments before she exited her own vehicle, carrying her evidence kit, and slipped on her gloves for that hopeful evidentiary discovery she was about to make.
Approaching the car, she actually talked to it. “Okay, time to tell me where you came from and who drove you here.”
She felt a bit foolish, as the best evidence team in the FBI had already been over the car thoroughly, but the Colombo in her could not let it go, so she started with the outside of the car, scraping soil samples from the inside of the tire treads, the undercarriage, the bumpers, and even squashed bugs from the headlights. Then she opened the car with the bump key from the evidence envelope and went over the entire interior, vacuuming the carpet and upholstery for hairs and fibers, and dusting the dashboard, doors and seats for prints.
After what seemed like hours, Angela realized that she was exhausted, as well as hungry, and, upon her final assessment, figured that she had kicked the dead horse enough times. She decided to fuel up at lunch, then head back to the lab to deposit her findings for examination.
***
When she arrived at the office, Brent Marks was sitting in the waiting room.
“Hi Brent. Don’t give me any business about working the Rick Penn case. I’ve been at it all day.”
“Hey, calm down. Did you ever consider I may just be dropping by to take you to lunch?”
“Right. Well, you’re too late for that. Anyway, I decided to go out to the car and give it the once-over again.”
“Why? I thought it was clean.”
“Maybe too clean. It’s been wiped clean, in fact.”
“Interesting. So did you find anything on your second sweep?”
“Don’t know yet. Have to drop by the lab to put it in for analysis. By the way, did you get those results back on the hair that you got from the deposition?”
“Yes. Unfortunately, it didn’t match the hair at the crime scene. But I know he’s guilty. Probably of the Marsh murder and Rick’s.”
“We don’t know that Rick was murdered.”
“Come on, Angela. Do you think my best friend would just disappear without letting me know? And in the middle of a case this big?”
“Look, nobody takes this case more seriously than I do. That’s why I went over the car again myself.”
“I know. I’m sorry. I just can’t believe he’s not here anymore. You don’t know how many times I’ve been working on something on this case and go to dial his number to ask him a question, and then I realize he’s not going to be there. The other day I was thinking about what to get him for his upcoming birthday. And, until I know what really happened, there’s
still that hope that he might still be alive.”
Angela put her hand on Brent’s and said, reassuringly, “We’ll find him.”
24
Beverly Senlon was in the waiting room in Brent’s office when he arrived, leafing through one of Melinda’s old People magazines.
“Hello, Dr. Senlon,” said Brent. “Come in,” and gestured toward his office.
Senlon came into Brent’s office, sat down and opened her briefcase. From it, she withdrew a small manila file folder.
“So, how is it going with Mr. Marsh?”
“We’ve actually made a great deal of progress,” said Senlon, who smiled as she put on her reading glasses and opened the folder. “Our tests show that Mr. Marsh is fully aware of what is going on in his surroundings and that he hears and understands us. The problem is that he cannot communicate with us, because of his injuries – that is – in any traditional way.”
“What does that mean?”
“Mr. Marsh was severely injured in the attack. He suffered traumatic injuries to his brain and spinal cord, which have left him completely paralyzed and unable to move or speak, use sign language, or to point at a spelling board. But we are using methods called augmentative and alternative communication, or AAC, to try to establish a method of communication.”
“Do you think he may be able to testify in court using this alternative communication?”
“That is our ultimate goal. We’re formulating a picture board with special symbols that he will point to by his eye movements.”
“That sounds complicated.”
“Yes and no. It’s kind of like learning another language. Mr. Marsh is in kindergarten now.”
“When will he be in high school?”
“He’s a very intelligent and capable man, Mr. Marks, but it’s going to take some time. He gets frustrated at times. Imagine having something to say but not being able to say it? But we will get there.”
“How do you know that?”
“Instinct and experience. He’s trying very hard, because he has something very important to tell us. We just don’t know what it is yet.”
***
“Jack, we’re getting down to the wire and I didn’t get much in discovery on mail fraud. What have you got for me?” Brent leaned on his elbows on the desk as Jack ruffled through his files.
“Not much.”
“Come on, Jack, do you really want me to prove up a murder case to get my RICO? We’re hanging on a thread here.”
“I know, I know. The subpoenas have been served on the notaries, so we have them on the robo-signing.”
“I can depose them. What else?”
“I ran down all the leads on the internal mailing records. It’s just that, unless it’s certified, we can’t really prove that they used the postal service.”
“Let’s get as close as we can. I can zero in on their standard practices using the mail with the notaries. Just try to pin down a mail clerk or someone. With a multi-state operation like Tentane’s was, it can’t be that difficult.”
“Okay.”
“And remember, discovery cutoff is in two months. We have to jam on this, Jack.”
***
Einstein said time is an illusion. Tell that to a lawyer preparing a federal case. One thing was for sure – you can procrastinate, but time will not – and you will run out of it soon enough. Brent knew only too well that he would never have enough time to prepare. There was just the time he had and that was it. Whether he was ready or not, he had to be ready.
25
Angela could not believe her eyes as she opened the envelope with the test results. From vacuuming Penn’s car, not only had she picked up a hair fiber, but it also matched the hair found at the Marsh crime scene. She had run the comparison on a hunch, and the hunch had paid off. Penn’s disappearance was definitely connected to the Marsh murder. She called ahead to Brent and headed out in the direction of his office to share the news.
***
Everyone had given up on George Marsh. They assumed that, since he didn’t appear to have a reaction that they recognized as communication, he was a vegetable. George Marsh was a prisoner of his own body. With no ability to speak or to move anything except his eyes, he had long since given up on life. But if he could just help his daughter; protect her; that was worth any effort.
Dr. Senlon seemed to know what she was doing, but Marsh was frustrated. He had something very important to tell April, but no capacity to compose it without speech. If he could have moved his arms, he would have grabbed that stupid symbol board and thrown it to the ground.
“You’re doing very well, Mr. Marsh. Let’s review the new symbols we learned today,” said Dr. Senlon, as April looked on. “April, this will eventually help you to communicate with your father.”
The communication board had numbers 0 through 10 and the alphabet, surrounded by common phrases, including “yes” and “no.” It also had the days of the week and the months of the year on the bottom of the board.
Finally, Senlon decided to try an experiment. “Mr. Marsh,” she asked, “are you ready to talk to me about what happened the night your wife was murdered?” she asked.
Marsh blinked once, indicating yes.
“Very good!” said Senlon, and she proceeded to take Marsh through the complicated process of telling his story with the board, using Senlon as his interpreter. At the end, April looked at her with curious eyes. Senlon smiled.
“We have a witness,” she said.
***
Angela had found a break in the case, but all it proved was that the same unknown person who had been in the Marshes’ house sometime before or during the murder had also been, at one time, either a passenger or driver of Rick Penn’s car. All eyes were on Angela as she revealed the contents of the report.
“I don’t have the authority to release it to you as part of the Penn case, but if you subpoena reports of any physical evidence connected with your RICO case against the bank, I’m sure that the FBI will release it to you,” said Angela.
Jack and Angela could see that Brent was deep in the invisible labor of thought. Finally, he said, “We’re no better off than we were before. Jack, you need to get me something. Put a face to this hair sample.”
“I’m on it.”
“And Angela, thank you so much for this. I know you’re treading on dangerous ground revealing it to us.”
“I just want to get this guy,” she said.
“As do we all. We have more good news. Dr. Senlon had a breakthrough with George Marsh, so I’m putting him on the witness list. So far, her report says that Marsh and his wife were attacked by two men, and he can identify them both. She also says that there was a third guy at the house, calling the shots, but she couldn’t nail anything down on him. Senlon and Jack are going to go over some mug shots with him tomorrow.”
“Make sure you show him a picture of Bernstein,” said Angela.
“Is that another hunch, Agent Wollard?”
“Call it an educated guess,” she replied.
“You heard the lady, Jack. And if that doesn’t work, get a sketch artist over to the rest home. We’re still light years away from proving murder, even under a civil standard. We all know what we need to do.”
26
The deposition of George Marsh could go only one of two ways – success or disaster. If a success, Brent would be able to present his entire testimony – live– at the trial. If a disaster, anything that was not answered by Marsh in the deposition would not be allowed into evidence during his testimony.
Brent was breaking new ground in presenting a witness by means of augmentative and alternative communication. There was no case law that he found that could support it. On the other hand, that also meant that there was no case law against it.
The bank would challenge George Marsh’s competency to testify and the judge, not the jury, would be the one who would decide whether to allow his testimony by means of AAC or not. So there were two hurdles to
jump through to get Marsh’s testimony before the jury at trial.
Brent had little time to prepare Marsh, because he didn’t want to wear him out for the ordeal that lay ahead, so he had gone through the basics, mostly to establish a rhythm with Dr. Senlon, who would be interpreting Marsh’s communications.
George Marsh was strapped in a wheelchair equipped with a neck brace next to the court reporter. Dr. Senlon sat in a chair by his side, dressed in a smart, crisp suit, looking very doctorly.
After they had settled in, Bill Black showed up with Bernstein. Black, Bernstein’s personal lawyer, was a rough and tumble litigator with 30 years behind his belt. True to his name, he wore a jet black suit with a dark blue shirt and a purple tie, which accentuated the blue rays in his hazel eyes. Bernstein trained his eyes on Marsh as he took a seat. He looked like he was searching for some kind of reaction. Five minutes later, Joe Stein himself took his place at the conference table. Stein stole the spotlight immediately.
“Counsel, before we go on the record, I would like to make it perfectly clear that if this deposition is handled the same way as the Bernstein deposition, not only will we seek sanctions, but we will also be making a complaint to the Bar for unethical conduct.”
“Let’s go on the record,” Brent said to the Court Reporter. “Please Mr. Stein, tell me what you just told me.”
“I’m not a witness here,” said Stein.
“Oh, but you are. You just threatened me.”
“Counsel, I merely reminded you of your ethical obligations and that you would be held to answer to any unethical conduct.”