The Two-Witness Rule: A Novel

by William Eleazer

  “Mr. Gordon and Mr. Marino have opposed each other in three recent criminal trials. Of course, this alone, does not support our motion, but these were hotly contested, high-profile, criminal trials. Because of the high stakes, emotions come into play. We believe, as noted in the prosecution standards I just quoted, that a fair-minded, objective observer, could and would conclude that the prosecutor’s neutrality, judgment, and ability to administer the law in an objective manner could be compromised. To avoid this, we move that Mr. Marino be removed from prosecuting this case.”

  Samarkos turned from the lectern and took his seat at the defense table.

  Fasi stood at the prosecution table. “Your Honor, we believe our brief conclusively refutes any basis claimed for this motion. There is no legitimacy for a claim that Mr. Marino could or would be a witness in this case, and there is no reasonable argument that his service as prosecutor in this case would breach any standard of the National District Attorneys Association. The defendant is entitled to counsel of his choice; he is not entitled to the prosecutor of his choice.” He then took his seat.

  Judge McCabe looked at Samarkos. “Anything else from the defense?”

  “No, Your Honor.”

  Judge McCabe quickly announced his decision. “The motion is denied. Any further motions from either counsel?”

  Both counsel replied in the negative, and the judge conferred with the court clerk for a couple of minutes, then announced, “I’m setting the trial for the week of November 17. Is that satisfactory with counsel?”

  Scott and Samarkos consulted their calendars and neither found a conflict. Scott thought the five months until trial was a long time to have an indicted lawyer flying around the country appearing as counsel in criminal trials. And he knew there would possibly be delays that would increase that time. But the trial date was set, and he would begin preparations.

  Chapter Five

  Thursday, June 26

  Samarkos was in his office a few hours after the motion hearing when he received the phone call. It was expected.

  “Hello, Max,” he said.

  “I’ve only got a couple minutes,” Gordon said. “We’re in recess at my trial in Cleveland. Give me an update on the hearing this morning. Did you get that little shithead removed?”

  “The motion was denied, as I explained to you that it likely would be,” Samarkos replied.

  “And I explained to you that you were to get him dismissed. Did you forget?”

  “Max, I gave it my best shot. I know you want him off the case, but really, your case is stronger with Marino prosecuting. I know you’ve had a bad experience opposing him in the Harrison trials, but he’s still the least experienced felony prosecutor in the DA’s office. Best to have him as lead counsel.”

  “Let me see if I understand you, Charles. You did not get him removed, and you have no plans to get him removed,” Gordon said.

  “Unless you know something I don’t, we don’t have additional grounds for his removal,” said Samarkos. “The judge has ruled on it, and further argument will not change the ruling and will only irritate the judge.”

  “That’s it? That’s all you’ve got for me?” Gordon replied in a clearly exasperated tone.

  “That’s all I have on that issue. But I’ve received the initial discovery package from the prosecution, and I’m getting to work on that now.”

  “Don’t bother,” said Gordon. “If you are the best attorney in Savannah and can’t follow simple instructions, apparently there is no one there capable of handling this case. I’ll find someone who can. Are you competent enough to submit a motion to withdraw as counsel?”

  Samarkos kept his cool. He had dealt with difficult clients many times but few like Max Gordon. Gordon, as the client, had set the fees in this case—a first for Samarkos—and they were quite good. But no fee was sufficient for representing an abusive client the likes of Max Gordon. In fact, rather than being disappointed at losing Max as a client, he felt relieved. He did not lack other well-paying clients.

  Samarkos ignored Max’s question. “Whoever you hire, Max, should contact me ASAP. The prosecution has provided quite a bit of discovery. They are working on the case as we speak, and your new lawyer needs to get moving. But let me make sure I understand exactly what you want. You want me off the case—and to submit a withdrawal motion, effective immediately.”

  “Finally, you seem to understand something,” Max replied.

  “It will be done today, Max,” Samarkos said. He hung up the phone and smiled. He would do so with pleasure.

  Samarkos prepared the motion, and as it was being typed, he called Scott.

  “Thought I would give you a heads-up. I’m submitting a motion to withdraw from the Gordon case—at my client’s request.”

  “Are you at liberty to give me the reason?” asked Scott. “Or did he just dislike you as much as he dislikes me?” Scott said with a chuckle.

  “No comment on that, Scott. Let’s just say he wasn’t happy with the decision on the motion this morning, and we had a mild disagreement on strategy.”

  “Mild? You got fired over a mild disagreement?”

  “Maybe we can have a chat about this sometime after this trial is concluded. Right now, I just wanted to let you know I will be off the case as soon as the judge approves my motion to withdraw,” Samarkos said.

  “Do you know who he’s bringing in?” asked Scott.

  “No, Gordon didn’t tell me who he has in mind,” Samarkos replied. “You’ll likely find out as soon as I do. Please hold any additional discovery material until we hear. What you’ve already provided to me, I’ll turn over to his new counsel, so you won’t have to start over.”

  “By the way, Charles,” Scott said. “The argument you presented about my being disqualified for possibly being a witness concerned me when I first heard it. Initially, I didn’t think there were any possible grounds for having me dismissed, but I hadn’t thought about the witness argument. I knew he hated my guts for being an arrogant son-of-a-bitch, but that was not going to be enough.” Scott chuckled as he spoke.

  “So, you heard that. I wasn’t sure. You kept walking,” Samarkos said.

  “I thought it was sort of funny. I’m not exactly in love with Max Gordon either,” Scott responded.

  “I can understand that,” Samarkos said. “And now that we’ve cleared that up, I’ll let you go. I’ll send over a copy of my withdrawal motion this afternoon.”

  “Thanks,” Scott said, “for the heads-up.”

  Chapter Six

  Monday, June 30

  The following Monday, Scott received a phone call from Fasi. “If you have some time today, stop by my office. I want to discuss the Gordon case.”

  “I can do it now.”

  “Good. Come on down.”

  Scott welcomed the opportunity to visit in Fasi’s office. It was a mini-museum of sports memorabilia. The walls were covered with framed and autographed photos of sports legends. Two photos that impressed Scott the most were Braves Hall of Famer Hank Aaron and Braves star pitcher Greg Maddux. Both were pictured in their Braves uniforms, and both photos were signed with bold handwriting in blue ink. Scott was drafted by the Braves in 2001, after his senior year at the University of Alabama, and spent two years on their minor league roster before realizing he wasn’t going to make it to the majors. While there, he met Maddux and watched several games in which he pitched. He was sure Maddux would join Aaron in the Hall of Fame someday. The photos brought back some bittersweet memories of his brief stay in the Braves’ franchise.

  Scott walked down the corridor to Fasi’s office, was waved in, and took a seat.

  “Anything new on Max Gordon’s case since the hearing last week?” Fasi asked.

  “Yes, a couple of things. When Samarkos informed Max that he lost the motion to have me dismissed, it upset Max so much he fired Sama
rkos,” Scott said with a grin.

  “Fired him? You’re kidding!”

  “Nope. Samarkos called me that same afternoon, telling me that he and Gordon had a mild disagreement over strategy and at Gordon’s demand, Samarkos had just submitted his request to withdraw. I haven’t received the judge’s action on the request, and no one so far has entered an appearance as substitute counsel. Samarkos told me to hold any further discovery material until the new counsel appears.”

  “Do you know if he’s planning on hiring a local attorney?”

  “No, Samarkos said Gordon didn’t tell him who he planned to hire.”

  “I expect he’ll bring in someone from out of town. What’s going on with your witnesses? They’ve all been arraigned, haven’t they?”

  “All except the guy from Colorado, Josh Johnson. He’s scheduled for arraignment Wednesday. He’s still locked up. Couldn’t make bail. Claims he lost all his money in a divorce last year and at a couple of casinos in Black Hawk, Colorado, and he’s broke. But I think he’s stashed that $250,000 Gordon paid him somewhere, probably down in Mexico or the Caribbean. He just can’t get his hands on it now. But that’s fine with us. We need to cut a deal for his testimony. A few days in the Chatham County jail should help with that, but we haven’t proposed anything yet. He’s represented by the public defender.”

  “What about the other witnesses?”

  “The local guy, Patel, was arraigned and is out on bail,” Scott replied. “Good that he’s out on bail; he’s a basket case. Would have to be on suicide watch if in jail, according to his attorney.”

  “Who’s his attorney?”

  “Luke Schaub. Luke says Patel’s embarrassed, contrite, depressed. Can’t believe he could get involved in Gordon’s deal. He had a couple of kids to put through college, but he was doing well enough in his business for that. But $250,000—that was just too much and he bit. I want to make a reasonable plea offer. But what’s reasonable, Joe? Here’s a guy with no record at all. My investigator, Richard Evans, tells me he can’t even find a traffic citation. Seemed to be a perfect father and citizen until Max came along.”

  Fasi folded his arms and then got up from his desk and walked to a window. He had a solemn, pensive expression on his face. He looked out on the street below for a few moments before turning to face Scott.

  “Not too unusual, Scott. Money corrupts, especially big money. But let’s take a look at all the players in this case. The DA, me, you—we need to all be on the same page. I’m sure you agree that the worst of all defendants in this case is the corruptor-in-chief, Max Gordon. The others must pay for their crimes, but Max should pay the most and feel the full impact of the law. We should make whatever offers are needed to nail him. To convict Max, we need their testimony.” Fasi walked back to his desk and sat down.

  “Of course,” Scott said. “And we’ll get it. Max’s co-defendant, Wilborn—the delivery guy—has a deal in place in Fulton County for his drug trafficking charges. DeBickero helped him cut a deal on the state charges in exchange for his testimony in our case—a maximum of ten years, and perhaps less, depending on how the judge feels after he gets our report on his cooperation. He’s already pleaded guilty but won’t be sentenced until after this trial. He’s out on bail, with an ankle monitor. We won’t have any problem with his testimony. He doesn’t have any room to wiggle. The feds could have him locked up for any period of time they wish—ten years to life, and he still faces the charges in this case. And regarding those charges, I want to get a plea out of him soon—lock him in. He’s a principal in the perjury subornation charges, same as Max, facing ten years on each. I would like to make an offer now—whatever he gets here to be served concurrently with whatever sentence he gets in Fulton County.”

  “The defense will have a field day with him on cross, whether or not he testifies with a plea offer in place,” Fasi said. “But we can’t help that—just something we have to accept. So offer it, if you think that will help your case. And how strong a case do you think you have with those witnesses?”

  Scott raised his chin, looking toward the ceiling. After a few moments, he lowered his head and let out a sigh.

  “Well let me think about my witnesses,” he said with a grimace. “I’ve got two, who by the time we go to trial, will be admitted perjurers testifying with nice plea deals. And I have one convicted drug dealer, who by the time we go to trial, will also be convicted of two counts of subornation of perjury and two counts of influencing witnesses and also testifying under a plea deal. So it should be a slam dunk.” Scott smiled, then laughed at his assessment.

  Fasi added his own: “Reminds me of a famous quote by a Marine general during the Korean War—Chesty Puller, I believe it was—‘They’re on our right, they’re on our left, they’re in front of us, they’re behind us; they can’t get away from us this time.’” They both laughed.

  “That was my dad’s favorite Marine Corps quote, and he had a lot of ‘em,” said Fasi. “He was in the Marine Corps for two years, got to Vietnam with the First Marine Division just before the division pulled out in 1971. Served the rest of his time at Camp Pendleton, was discharged when his two years were up. And thirty-five years later, he still claims to be a Marine.” Fasi smiled as he spoke. Obviously he had fond memories of his dad. He stood up again and went to the window. Without turning to look at Scott, he asked, “Now really, Scott, how do you think the case is shaping up?”

  “Seriously, Joe,” Scott said, “I think we’re in good shape. These witnesses will have a lot of baggage, but I think they’ll be believable. We have to take our witnesses as they are. I think I’ve heard you say that. We’ll have to make some deals that I would prefer not to make, but we need to put Max out of action once and for all. We should be able to get ten years for him. He’ll lose his license. Wilborn will probably get about six to eight, and he’ll also lose his license. All in all, a good result.”

  Fasi turned once more to Scott. “Then keep on top of it and keep me informed—weekly, if you have anything new. I’ll be sitting as second chair, but you’ll continue as lead counsel. And let me know if you need any additional help.”

  The meeting was over. As far as Scott was concerned it was a very satisfactory meeting. It confirmed that he would remain as lead counsel. He was also happy that Fasi would be sitting with him. He hoped Fasi would take charge of jury selection, the part of a criminal trial where Scott felt he was weakest and in which he knew Fasi excelled. But the trial itself would be his.

  Chapter Seven

  Thursday, July 3

  Scott was in his office early Thursday morning, taking care of some pressing last-minute matters. He would be leaving later that afternoon with Jennifer for Hilton Head to begin a long weekend. Scott had been looking forward to this Fourth-of-July weekend for quite some time. His schedule had him working at least one full day on most weekends since the middle of May. His visits with Jennifer to her parents’ home were always special. Her parents were gracious hosts during the day and left them to be alone for the evenings. Sometimes it was for a concert at Sea Pines Resort, other times just a stroll along the beach with a blanket, looking for a quiet place in the dunes to lie down together and listen to the churning of the waves.

  Scott had a light work schedule the following week, but there was an important motion hearing midweek. He hoped nothing new would come up in the next few hours that could not be put off until at least Monday. It had happened before when he and Jennifer were planning a weekend at Hilton Head. When the phone rang, and he heard Charles Samarkos on the other end, he was sure it was about to happen again.

  “Scott, Charles here. Hope your morning is going well. Ready for a nice Fourth?”

  “Good morning, Charles. My morning is going fine; I hope you aren’t calling with something to spoil it.”

  “No, just wanted to tell you I received a call from James Colosimo. He reports that he’s been hired as
defense counsel by Max Gordon. He’s arriving from Atlanta on Monday to discuss the case with me and pick up the discovery material. He mentioned that he’d like to meet with you before he returned. Asked that I give you a call to see if you had some time Monday afternoon. I told him I would check and call him back.”

  “I’ll make time.” Scott looked at his calendar. Monday afternoon was clear. “Tell him two o’clock works for me. Is he an Atlanta lawyer?”

  “Yes, criminal defense. Lots of white collar crime, major drug cases.”

  “Do you know him?” asked Scott.

  “Met him several years ago at a Georgia Criminal Defense Lawyers conference in Atlanta. He was on a panel discussion about some topic I can’t remember. But I remember Colosimo—he took command of the panel and spoke a lot about himself and his background. Very colorful guy. Originally from Chicago. Proudly claims ‘Diamond Jim’ Colosimo was his great-grandfather.”

  “‘Diamond Jim’ Colosimo? Who was that?”

  “He was an Al Capone-era Mafioso. In the twenties—early prohibition time.”

  “That’s someone he’s proud to claim as a relative?”

  “Oh, yes, very much so,” said Samarkos. “He even dresses the part. Diamonds on the fingers of both hands. Passes out business cards with his photo, and a diamond in each corner. He’s an interesting guy. Got me curious about the great-grandfather claim, so after I got back from Atlanta, I checked out ‘Diamond Jim’ Colosimo on the Internet. I had heard of ‘Diamond Jim’ Brady but not ‘Diamond Jim’ Colosimo. But there it was, along with a photo, and he had a big—I mean really big and wide—black moustache, just like our panel guy. The website reported that ‘Diamond Jim’ wore white linen suits, and I recalled our speaker was also dressed in a white linen suit. But I had no way of checking his claim that it was his great-grandfather.”