The Two-Witness Rule: A Novel

by William Eleazer

  “I take it he entered a ‘not guilty’ plea to both?” Fasi asked.

  “Yes,” Scott said. “I contacted his attorney about a deal for a guilty plea to the conspiracy charge and dismissing the perjury charge. I explained he could get ten years for perjury but only five for the conspiracy. I offered him three years. His attorney is new to the PD office and wants some time to consider the plea before making a recommendation to his client. I think the offer is more than fair, considering the gravity of the crimes that were committed. But I need his testimony, so I may have to give a bit—perhaps suspend a portion. We’ll see.”

  “What about the other perjurer—the local guy?” asked Fasi.

  “I offered him the same deal. He hasn’t gotten back with me,” Scott said. “And that’s about all that’s new with the witnesses, but there’s something new with the defendant—Gordon has a new defense counsel.”

  “Local attorney?” asked Fasi.

  “No, from Atlanta—James Colosimo, but he prefers to go by the name of ‘Diamond Jim’ Colosimo—and he’s just the sort of guy you would expect to team up with Max Gordon.”

  Scott related to Fasi all he had learned about “Diamond Jim” from Samarkos and Grady—all the weirdness, as well as Grady’s assessment that despite his weirdness, he’s a fairly savvy trial attorney. He described Colosimo’s law firm’s website with the two “law school graduates,” his garish personal appearance, and his snarky conversation at the meeting Monday afternoon. He also told of his comment that the two-witness rule would prevent proof of perjury. Finally, Scott recounted Colosimo’s suggestion that he research what had happened to William McSwiggin’s career after his attempt to prosecute Capone.

  Fasi was seated comfortably in his chair and listened silently until Scott told of Jennifer’s research, which revealed that McSwiggin was murdered. Then, he quickly sat upright, bristling with anger.

  “Give me Colosimo’s phone number!” Fasi said. “I’m going to call that schmuck right now. He needs to be put on notice that he better keep his Chicago-style lawyering in Atlanta because we’re not going to have it in Chatham County. He won’t be playing that game here.”

  “Joe, I don’t think that’s the best way to handle this guy,” Scott said. “In fact, that’s probably what he’s hoping for—get us pissed off, angry, concentrating on things that are not related to the case. It’s part of his MO, according to Grady. I think it best to ignore him. Grady says there is no sign of violence in the guy. I don’t know anything about the background of his two disbarred staff associates, but we can have Carl check them out. He doesn’t scare me, and I don’t want him thinking he does. Let’s just ignore it for now.”

  Fasi stood up from his desk, walked to a window and looked out without speaking. Several moments later he turned and faced Scott.

  “You are probably right, Scott. As you saw, it worked!” Fasi began to laugh. “The son-of-a-bitch got me steamed up, and I haven’t even met him! Played us—well, played me—like a violin. He may be weird, but as Grady warned us, a savvy guy. We not only have to watch him, but we have to watch ourselves.”

  Fasi looked over at Scott and said, “About his question of how you’ll prove the perjury, Scott. It does present a problem with the two-witness rule. I tried a case a few years ago, an armed robbery down on River Street. The witness testified he was at a restaurant in Macon with the defendant when the armed robbery occurred. We charged him with perjury. We produced two witnesses who testified that he was actually in Savannah—and we got a conviction. Classic example of the two-witness rule. But the facts of this case are so different in applying the two-witness rule. Patel and Johnson testified that the defendant they were viewing in the courtroom was not the guy they had seen with the gun. What’s your proof they were lying?”

  “True, there is a problem,” Scott said, “but if they accept our plea offer—and I think they will—we’ll have their confession from the witness stand that they lied—that’s one witness. The statute also provides that perjury can be proved with one witness, corroborated by circumstances. That’s our case—we have the corroborating circumstances. We have Patel’s testimony at the first trial that John Harrison was the man with the gun—we’ll introduce the transcript. Josh Johnson arrived at the trial too late to testify—the jury was already in deliberations when he got to the courthouse. But he saw Harrison in the courtroom, seated at the defense table, and both Daniel Mackay and Richard Evans heard Johnson say, ‘That’s the man.’ I’ll have both testify. And we have the promise to lie for $250,000. That should count for something. It will be up to the jury to determine if this is sufficient corroboration, but I believe it is.”

  Fasi did not respond. He swiveled his chair to face the wall, crossed his legs, and leaned back, resting his head on the back of the chair. He seemed to be in deep thought.

  “But, Joe,” Scott continued, “even if the jury doesn’t buy the perjury, we still have him on two counts of influencing witnesses—five years on each count, with a one-year minimum. Sure, I want to nail Gordon on the subornation charge, but a conviction on any of these charges will surely put him away for years and out of the legal profession forever. Isn’t that what we want to accomplish?”

  Fasi still did not respond. He sat silently, still turned, facing the wall. Finally he turned toward Scott.

  “You are right, Scott. This is going to be a tough one—I’m afraid even tougher than you realize. But you appear to be on the right track, and I’m still going to have you run with it as lead counsel. Let me know when you need help—and keep me posted.”

  “Of course. I will,” Scott said, as he stood to leave. When he reached the door, he paused, and turned. “And thanks, Joe. I really look forward to trying this case. I won’t disappoint.”

  Chapter Eleven

  Wednesday, July 30

  It was 5:30 p.m., and Scott was sitting at the Library Bar nursing a draft and discussing with Juri their favorite subject, baseball. He was to meet Jennifer there after she finished her research work at the law library. It would be their last night together for several weeks. Jennifer was leaving for Hilton Head in the morning to prepare for her two-week vacation to Europe with her parents. They would be leaving Saturday. Jennifer was trying to wrap up the research for her ARP, which she hoped to complete by mid-September, well in advance of the due date. Today would be a busy one, and she had warned Scott that she might be running late.

  It was a slow day behind the bar, so Juri had time to give Scott one of his mini-lectures about the Braves. Forever the pessimist, Juri was sure the Braves were finished for the season.

  “Three in a row, Scott. Count ‘em—three losses in a row. Eight games behind the lousy Mets. And we’re in the weakest division in the majors. Did you see the game last night? Got beat by five runs! And Monday? Got beat by nine. We haven’t won a game since last Friday, and that was a sorry-ass Philly team. We’re done, Scott, finished!”

  “Ah, come on, Juri, you give up too soon. You’re talking about the Braves—division titles fourteen consecutive times. You seem to forget that.”

  “That ended three years ago, Scott. We need Ted Turner to buy the team again. He would put some money in that team. We need a couple more like Chipper Jones. Bobby Cox is the best manager in the game. He could coach a team to the World Series if the owners would just spring for a couple players. Right now we’ve got one player hitting over three hundred, and that’s Chipper. What do you think, Scott?”

  Scott was looking toward the entrance and saw Jennifer. “What do I think? I think I see the most beautiful girl in the world coming my way.” Scott stood up and turned a swivel barstool around for Jennifer to join him at the bar. Scott took Jennifer’s briefcase and placed it at the foot of his bar stool. Then he gently held her hands in both of his and briefly kissed her on the lips.

  By the time Jennifer was seated, Juri had her favorite drink ready. He placed it
in front of her, and said, “Scott says you’re leaving for a couple of weeks, so this one is on me—a going-away present. Which reminds me of a story. You ready?”

  Jennifer knew he was going to tell his “story” whether she was “ready” or not. And she knew his “story” would be a blonde joke. He never missed an opportunity. So she just smiled and nodded her head. Scott was smiling also; he knew a blonde joke was inevitable.

  Juri already had a broad grin on his face as he began. “The blonde suspects her boyfriend is cheating on her, so she goes out and buys a gun. Then she goes to his apartment. The door’s unlocked, and she walks in and finds him in the arms of a beautiful redhead. Well, the blonde is really hurt and angry. Opens her purse and takes out the gun. But she’s overcome with grief and puts the gun to her head, finger on the trigger. The boyfriend yells, ‘No, honey, don’t . . . don’t do it!’” Juri stopped and took a deep breath, and his grin turned into a broad smile. “Blonde replies, ‘Shut up, you’re next!’”

  Juri laughed and looked from Scott to Jennifer and back again, waiting for their approval. But he got their usual hisses, boos, and thumbs down. Still, they couldn’t help but smile and eventually laugh.

  When the laughter subsided, Juri asked Jennifer about her trip. This surprised Scott, who was expecting Juri to begin immediately with his story about the lady lawyer entering the bar with a duck.

  “My parents are taking me to Europe for a couple of weeks—early Christmas present. I’ve never been, but they have. Twice. I don’t know the daily schedule, but we have a direct flight from Atlanta to Paris. We’ll spend a few days there, and then go visit Normandy—some of the battlefield sites and the American cemetery. My dad’s dad—my grandfather—was part of the Normandy invasion. He always claimed he was one of the very lucky ones. He was just twenty years old when he landed on Omaha Beach on D-Day—but he survived that and the rest of the war OK, so I guess he really was one of the lucky ones. We’ll also visit the Loire Valley region and some wineries near Bordeaux. My mother wants to visit Copenhagen, so we fly from Paris for a couple of days in Copenhagen at the end of the trip. Maybe too much packed into such a short time, but I’m really looking forward to it. I get back just a few days before the start of the fall semester. And, Juri, I want you to watch out for Scott while I’m gone. Keep him busy and out of trouble.”

  “Sure, Jennifer,” Juri said. “Keeping Scott busy won’t be a problem. He’s got that big case he’s working on—the Harrison case . . . no, I mean Harrison’s attorney, that Max guy. Right, Scott?”

  And as was often the case with Juri, he did not wait for a response before continuing. “And maybe we can work in a trip to Atlanta for a game. The Braves are at the Diamondbacks next weekend, but the following weekend they are home for a three-day stand with the Giants. How about it, Scott? We can zip up in your Camaro in three hours, maybe less.”

  “I have an automobile, Juri, not an airplane. But you get us some good seats, right behind home plate, and we’ll do it.” Scott was amazed at how Juri kept the complete schedule of the Atlanta Braves in his head.

  “I’ll get ‘em. And I’ll take care of him, Jennifer.” Juri stopped and smiled. “Two weeks, eh? I know Scott’s got more on his mind than baseball, so you guys get out of here. I’ve got the tab.”

  Chapter Twelve

  Thursday, August 7

  Joe Fasi was in his office examining the new felony cases. One of his duties was to assign the new cases to the assistant DAs in the Felony Division. It was a time-consuming job, important but unappealing. It seemed that lately there were always more cases coming in than being disposed. Every assistant was carrying much more than Fasi felt reasonable, but there was no easy solution. In fact, there was no real solution—easy or otherwise. But it had to be done. Dividing cases evenly to each assistant did not work. Some cases took much more time than others, such as capital cases, child victim cases, and gang-related cases. Young and inexperienced prosecutors often took twice as much time to bring a case to disposition as experienced prosecutors. And many of his assistants had less than five years’ experience. Then there were those cases that appeared rather simple at first look but became quite complex upon further investigation, or when special defenses, such as insanity, were claimed. And all of this was compounded when a private attorney, whose fee was usually based on the amount of trial preparation and length of trial, entered the case, causing more delays and court appearances. Fasi not only had to assign the cases as they came in but monitor the ongoing case load of each assistant. This supervisory work took him out of the place he loved—the courtroom—except for a few exceptional cases that he assigned to himself as lead prosecutor, or second chair as in the Gordon case.

  Shortly before 9:00 a.m., Fasi’s phone rang. It was Janna O’Meara, secretary for Joshua Magidson, the district attorney.

  “Mr. Magidson wants to see you right away, like now,” Janna said.

  “I’ll be right up,” Fasi replied. This was important, he knew, from the “like now.” The DA usually scheduled an appointment.

  When Fasi arrived at the DA’s office, he found Detective John Majewski of the Savannah-Chatham Metropolitan Police Department, seated in one of the chairs near the DA’s desk.

  “Joe, I believe you know Detective John Majewski,” Magidson said, extending his hand in the direction of Majewski.

  “Of course; we’ve worked a number of cases together,” Fasi responded.

  “Have a seat. John wants to brief us on an incident that occurred last night. He informed me briefly of the subject, so I sent for you to hear the details. It involves a serious personnel matter.” Magidson then turned to Majewski with a worried look on his face. “So, let’s hear the details.”

  Majewski was a 28-year-veteran police officer, tall and fit, with a full head of salt and pepper hair. His clean-shaven face had a perpetual severe look on it, but Fasi had always found him cordial and professional, as well as an unflappable witness. His memory of investigations over the years was legend. He could recall like yesterday people and events that he had investigated years ago. He was the go-to detective when other detectives needed advice in difficult or high-profile cases. He carried himself like a drill sergeant, ramrod straight when walking and ramrod straight when sitting, as now.

  “Even though the investigation is still ongoing, we knew you would want an initial report right away. We aren’t certain of the specific charges as of now, but the facts appear clear. It occurred at the Henry Grady Inn, on Drayton Street. Are you familiar with that inn?” Majewski looked at Fasi as he spoke.

  “No, I’m not,” Fasi said. “I’ve seen it in passing, but that’s all I know about it.”

  “And I’m not familiar with it either,” added Magidson.

  Majewski continued. “It’s a bed and breakfast, two stories, Victorian style with a large, open, wraparound front porch. It’s on the east side of Drayton Street, about forty feet from the sidewalk. Drayton as you know, is one-way and runs south to north. There is a bus stop in front, with a wooden bench. About eleven-fifteen last night, a young lady—Monica Ashley, a tourist from Atlanta—stepped outside to smoke. Smoking is not allowed inside or on the porch, so she walked down the steps to the sidewalk and took a seat on the bench by the bus stop. She had a cell phone with her—an iPhone, the new one just released in June. The area there is well-lit from nearby street lights and lights from the porch and yard of the inn, so she felt safe. She saw a car moving slowly north on Drayton, close to the curb. It didn’t stop, but in a couple of minutes, it came by again, and this time stopped in front of the bench where the young lady was seated. A young white man was driving—the only person she saw in the vehicle. He rolled down his window on the passenger side and called out something she didn’t understand. Ms. Ashley thought he could be lost and asking directions, so she wasn’t too concerned. She just yelled back something like, ‘I’m not from here, don’t know the streets.�
� She’s not sure exactly what she said, but she wasn’t frightened.”

  Majewski pulled out a photo from his briefcase, and passed it to Magidson.

  “Here’s a photo of the inn, taken by a police photographer. You can see the bench and the steps that lead up to the inn. The spot where the photographer was standing when he took the photo would be about where the vehicle stopped.”

  Magidson looked at the photo for a moment, then passed it to Fasi.

  Majewski began again. “Then the man got out of his vehicle, walked behind it and approached the lady, who had just lit her cigarette. She remained seated, as he did not appear to be threatening. The man stopped five or six feet from her, and said, ‘Let’s go party.’ She did not get it immediately, but then he said, ‘I’ve got cash. Let’s go.’ That’s when she realized he believed she was a prostitute. She shouted, ‘Get away. Get away!’ She was still seated, and he grabbed her by the right arm and tried to pull her into the vehicle. She screamed and struggled, broke his grip, but fell on the sidewalk. He quickly went back around to the driver’s door, got in, and left the scene. Would have been all we had, except for this.”

  Majewski pulled another photo from his briefcase and passed it to the district attorney.

  “Fortunately, she wasn’t hurt, and she kept her senses throughout the ordeal. As soon as she saw the guy running to the driver’s side of the vehicle, she got her phone, which had been beside her on the bench, and snapped a photo. As you see, it’s a clear photo of the right rear of the vehicle, including the license plate, Georgia—GRE1345.”

  Magidson looked at the photo for a long moment before passing it to Fasi. Fasi studied it as Majewski continued.

  “As soon as she snapped the photo, she called 911. A precinct patrolman came within minutes, joined by another very shortly. We didn’t have a detective readily available at the time and since she was safe and there were no injuries, they took her statement and some photos. She gave the patrolman her iPhone, and he pulled up the photo with the license plate number. They ran the number and found the owner. Then they pulled up the owner’s driver’s license on a computer in a patrol vehicle and asked her if he was the man who attacked her. She said she thought he was—not the way we would like to have an ID, but that’s what we have. Early this morning one of our precinct detectives went to the inn to follow up on the investigation begun by the patrol officers last night, but the lady had already checked out. We have her Atlanta address and phone number, but really regret we weren’t able to get a better ID and a more complete investigation this morning before she left. There was also one other witness. He’s the night manager at the inn, a graduate student at Savannah State. He was in the vestibule of the inn when he heard the scream. He ran outside in time to see the vehicle pulling away from the curb, but he didn’t see the driver and couldn’t make an ID. He did identify the automobile in the photo as the one he saw pulling away as he ran outside. We’ll be interviewing him again.”