The Two-Witness Rule: A Novel

by William Eleazer

  Fasi arrived at 8:45 a.m., flopped his briefcase on the table and took the chair on Scott’s right. About the same time, Bill Baldwin walked in and took a seat in the gallery among several reporter friends, including several from out of town. They had all attended the three trials in this same courthouse involving John Harrison. One half of the gallery was roped off for the eventual seating of the potential jurors, most of whom were now waiting in the Jury Assembly Room. Judge McCabe’s voir dire procedure was to question an entire panel—usually thirty to thirty-six—all at once, rather than in smaller groups. The empaneled jurors would only be seated in the jury box when they were actually selected and survived any peremptory challenge. The spectator half of the gallery was rapidly filling, and by the time Judge McCabe entered there were no seats left.

  There were three sharp raps on the courtroom’s floor by the bailiff with the tall, banner-laden wooden staff. This, followed by the command “all rise,” quickly brought the courtroom to its collective feet. Judge McCabe ordered everyone to be seated and after announcing the case for trial, inquired if counsel were prepared to proceed.

  Scott stood and said, “The State is ready to proceed, Your Honor.”

  Colosimo stood and after introducing himself to the court, said, “The defense is ready, but we have a brief motion to make before you bring in the venire.”

  “Well, let’s hear it,” Judge McCabe responded.

  “I was not present at the initial bail hearing, but I have read the transcript,” said Colosimo. “At that hearing, Mr. Marino argued for what, at best, should be termed a preposterous bail. He argued that the acquittal, which he claims was a result of perjury by two witnesses, led to the release of Mr. John Harrison. And that as a consequence, Mr. Harrison was free to purchase a weapon and commit the felony murder of a young woman—all the fault of the alleged perjury. That, of course, is a ridiculous stretch, but it was the prosecutor’s argument at the bail hearing. We expect that absurd story to be part of the prosecutor’s opening statement, and they may even attempt to sneak it in on some voir dire question. Therefore, we move that the prosecution be prohibited from mentioning anything, at any time, of a murder or any consequence of the acquittal. Such evidence would be highly prejudicial; it is not relevant to the charges before the court and would indeed be grounds for a mistrial.”

  Scott turned his head and looked at Fasi. Fasi leaned in and whispered, “Don’t fight it.”

  Scott had considered the issue from the time he began his preparation for the trial—and while true, the death would not have occurred but for the acquittal—it wasn’t relevant to the proof of the charges now before the court. He would concede to the argument, at least in part.

  “Your Honor, Mr. Colosimo’s suggestion that we would, in his words, sneak something into evidence, is offensive. But besides that, we have no intention of introducing the evidence of the horrible consequences of this perjury—that is, in the case-in-chief. But it is clearly relevant to the sentencing phase of this trial. We ask that you withhold ruling as to its admissibility on sentencing until then.”

  “That appears appropriate,” Judge McCabe responded. “The defense motion is granted as to the case-in-chief. At this time there is no need for an additional ruling. If there are no other motions, then we will bring in the venire and begin jury selection.”

  Jury selection began with Judge McCabe asking a seemingly interminable number of questions. As Fasi had said, there was little to ask after McCabe completed his questions. Neither Fasi nor Colosimo had more than twenty minutes of follow-up questions. Both Fasi and Colosimo used eight of their nine peremptory challenges and one each on the alternates. The jury selected for the case of State of Georgia v. Maxwell E. Gordon consisted of seven female and five male jurors, with two alternates, both female. Scott was pleased with the jury. Fasi had done his usual sterling job, but Scott was also impressed with Colosimo’s use of jury strikes. As his friend Grady from Atlanta had warned him early on, he may appear weird as the “Diamond Jim” character, but he was a competent trial attorney.

  The jury was sworn, and McCabe gave some basic information on what they should expect over the next few days. Then he dismissed them until the next morning.

  “Does either counsel have anything for the court before we adjourn for the day?” he asked after the jury had departed. “I will not be happy if you delay the trial in the morning with motions.”

  Neither counsel had anything further. “We’ll begin with opening statements at nine in the morning. Court is adjourned,” McCabe said.

  It was only 4:15 p.m. Scott was both surprised and pleased that the first day had gone so smoothly. As he picked up his briefcase to leave the courtroom, DA Office Investigator McSweeney handed him a note. “I was told this is important,” McSweeney said.

  Chapter Thirty-Two

  Monday, November 17

  Scott put his briefcase back down on the table. The note was from Richard Evans.

  Just got a call from Mike Moody, the probation officer monitoring Josh Johnson. Mike says Johnson has cut his ankle monitor. Richard.

  Just what I need—a disappearing witness, Scott mused. Not just a disappearing witness but an absolutely essential witness, with $250,000 to bet that no one will ever find him. Scott handed the note to Fasi, grabbed his briefcase and hurried from the courtroom to find Richard.

  He found him in his office, just as Richard was hanging up his phone.

  “That was Moody updating me on Johnson,” Richard said. “The base unit signaled that it was cut about forty-five minutes ago. Johnson’s monitor was a GPS type. The reading on the base unit showed his location near the airport. Moody immediately got in contact with airport security. No sign of him there, and he’s not on any manifest. Johnson’s a smart guy; probably deliberately cut it near the airport as a ruse. He could be in a stolen car, rental car, Greyhound bus or just lying low in a two-bit motel off I-95. We need to get a warrant to have him arrested ASAP.”

  “Judge Cox has his case,” Scott said. “I’ll see if he’s still here—he can revoke Johnson’s bail and issue a warrant. Call Moody and tell him to get over here as soon as he can. The judge will probably require better proof than we can provide.”

  Scott took the elevator down to the judge’s floor. After a quick buzz, the secretary ushered Scott into the judge’s chambers. Scott explained the situation with as much detail as he knew at the time, requesting a bail revocation and arrest warrant.

  “Yes, I think this calls for an emergency hearing,” Judge Cox said. “Notify his attorney. Tell him to get here promptly, and if he can’t, we’ll go without him. I’ll need the officer who was monitoring the ankle bracelet. How soon can you have him here?”

  “He’s on the way now. I’ll try to contact Johnson’s attorney. I’ll call as soon as I make contact, or if I can’t make contact. Thanks, Judge.” Scott quickly departed.

  Scott’s attempts to locate Johnson’s attorney were unsuccessful. And when it became clear that he could not be located, he phoned Judge Cox, who ordered the emergency bail hearing to proceed in his chambers as soon as all the available parties could be present. The hearing ended with Johnson’s bail being revoked and a warrant for his arrest. Richard took on the task to immediately disseminate the warrant information to local and state law enforcement agencies.

  An emergency bail revocation hearing for a missing witness was not the way Scott had hoped to end the day. The old adage that “You take your witnesses as you find them” came to mind, but with a new twist: “You take your witnesses if you find them.” The missing witness would be a major blow but to only one charge. The subornation of perjury charge involving Patel still remained, and the two charges of influencing witnesses were solid. Conviction on any would ensure that Max Gordon remained in the criminal justice system, not as a criminal defense counsel, but as an inmate. And just the thought of that was enough to bring a smile to Sco
tt’s face. But he had a difficult decision to make before his opening statement in the morning. Should he dismiss the charge which required the testimony of Johnson? Right now he was willing to gamble that Johnson would be found.

  Chapter Thirty-Three

  Tuesday, November 18

  “May it please the court and members of the jury . . .” Scott began his opening statement to the jury at 9:15 a.m. in the packed courtroom.

  He was standing in front of the jury, ten to twelve feet away, and speaking without notes. Unlike some judges who required counsel to address the jury from a lectern, Judge McCabe had no such rule, and Scott was taking full advantage of the open space. He had a strong, persuasive voice, and the opening statement allowed him to use it. He had worked hard on its preparation over the past several weeks. The facts of the case and the elements of proof seemed simple enough to him, but for a jury hearing the facts for the first time, it could be a bit overwhelming. He would have to be careful with the structure and convincing in its delivery. And now it was a bit complicated with the disappearance of Johnson. He had wrestled with his initial decision not to dismiss the charge that required Johnson’s testimony. He had discussed it with Fasi, and Fasi advised him that there was no right or wrong decision in such circumstances, but to “go with your gut.” Scott was betting that Johnson would be found, arrested, and brought to the courthouse in time to testify, so he made the decision to keep the charge before the court. Johnson’s name as a potential witness had come up during voir dire, and he considered how that should be handled in the opening statement. He decided it best not to mention Johnson at all in the opening. Colosimo, in his closing argument, would surely jump on anything mentioned in the opening and not proved.

  “In this same courtroom in September of last year, two men stood just a few feet from where you are now,” he continued. “They placed a hand on a Bible and took an oath ‘to tell the truth, the whole truth, and nothing but the truth.’ They were witnesses in a felony trial, a robbery that occurred here in Savannah. But neither man had any intention of telling the truth. They arrived in court with just the opposite intention—to tell a lie and nothing but a lie. And as you will find out, they did exactly that. And by doing so, both committed the offense of perjury.

  “But why? That’s a question which will be answered with the evidence that you will hear today and tomorrow. But let me give you the short version of the answer. Money. Lots of money. In fact $250,000 to each of these two witnesses. For their lies. And who provided that money? You will learn that the money came from a man seated right now in this very courtroom.”

  Scott turned and looked at Max Gordon. Then he walked to the defense table and stood next to Gordon. “And that man is seated right here,” Scott said, pointing directly at Gordon, who was seated with his arms folded, his face fixed in a grimace, his eyes focused on the floor in front of him. “He is Maxwell E. Gordon, and he is the defendant in this case.”

  Scott returned to his original position in front of the jury, and continued. “The evidence will show that money, lots of it, is the reason these men lied, and the defendant is the person who provided it. But then the question remains, why did the defendant provide $250,000 to these two men? We know the motive of the two men to lie was the payoff of $250,000 cash, but what was the motive of the defendant for providing this payoff? We will provide that answer also with testimony over the next day or two. But I have a shorthand answer to that question now.

  “You see, members of the jury, the defendant . . .” Scott stopped, turned and again pointed at Gordon. “. . . is an attorney, and he was representing a client by the name of John Harrison, charged with the crime of robbery. This was a retrial. The first trial resulted in a conviction and John Harrison was sentenced to ten years confinement in the state prison. But that conviction was overturned on appeal, so John Harrison was to be tried again for the robbery. It so happens that John Harrison’s father, David Harrison, was a very wealthy man, and as a father, he did not wish to see his son convicted of robbery again. He was able and willing to provide substantial funds for his son’s defense, and he hired the defendant.

  “Unfortunately for the defense, there were two eyewitnesses to the robbery. Both had identified the defendant during the first trial as the man they saw holding a gun during the robbery. And they were the only eyewitnesses.”

  Scott stopped, turned to look at Gordon, and then pointed once more at him as he continued. “So this defendant realized that he could obtain an acquittal if he could buy these two witnesses. And that he did, for $250,000 each. Funds provided by David Harrison and put into play by the defendant sitting now in this courtroom, right over there at the defense table. We don’t know if David Harrison was involved in the defendant’s plan or even knew of the defendant’s plan, and we don’t need to know. What we know is that it was the defendant who executed the plan with the help of his co-counsel, an attorney by the name of Clarence Wilborn, from Macon, Georgia.

  “Clarence Wilborn has admitted his involvement in this scheme. Wilborn was also involved in a major drug ring in Macon and Atlanta. It was through the drug connection that Gordon was able to launder, that is, convert, David Harrison’s payments to Gordon into actual paper money for the payoff. Wilborn will testify that Gordon hired an agent to negotiate the deal with the two witnesses, and at Gordon’s direction, Wilborn traveled by automobile to deliver the cash. One witness was living in Colorado, and one by the name of Vijay Patel, was living right here in Savannah. Wilborn will identify photos he took of the witnesses, each smiling as they viewed their newly delivered suitcase filled with $250,000 cash.

  “The payoff worked. Each witness, despite their oath to tell the truth, deliberately lied.” Scott once again pointed at Gordon. “John Harrison was seated at that very table where this defendant is seated. And both witnesses, when asked to identify the man with the gun, lied by saying it was not the defendant, John Harrison. The result? John Harrison was acquitted.”

  Scott used most of the remainder of his opening to introduce the jury to the testimony that would be coming from Carl DeBickero, who would be his first witness. He did not attempt to explain “subornation of perjury,” a term surely unfamiliar to many on the jury. The elements of proof required would be explained later when the judge gave the jury its instructions, and Scott would link the evidence to the required proof during closing argument. He also did not explain “the two-witness rule,” as this was a rule that benefitted only the defense. Perhaps Colosimo would bring it up in his opening statement, but Scott saw no reason to even mention it until closing arguments.

  Scott looked at the courtroom clock. He had been speaking for only twenty minutes, but it was time to wrap it up. “Members of the jury, yesterday you were informed of the charges against this defendant, and afterwards you took an oath, a solemn oath to render a true verdict on those charges according to the evidence. When this trial is concluded, I’m confident you’ll honor that oath by your verdict: a verdict of guilty to each and every charge. Thank you.”

  “Does the defense wish to make an opening statement now or reserve it for later?” asked Judge McCabe.

  Colosimo stood and responded, “We’ll reserve it.”

  Scott noted that from the beginning of the trial, Colosimo had never used the words, “Your Honor” when addressing the judge. He wondered if this was deliberate. He was surprised that Colosimo chose not to make his opening statement now. Most defense counsel made their opening at the beginning of the trial to counter or at least blunt the prosecutor’s presentation. By waiting, the jury heard only one side, and it became harder to dislodge the negative impression of the defendant that remains unchallenged until the defense case. But there were occasions when waiting was the best option, and Scott feared this might be one of them, as it was preventing him from having any knowledge of what the defense in the case would be. Here he was prosecuting a case with a criminal defense attorney defending a crimin
al defense attorney. He had no idea of what schemes those two could produce, especially when assisted by two disbarred and totally corrupt lawyers who had already displayed their cunning skills on the street in front of the Henry Grady Inn.

  “The prosecution may call its first witness,” the judge said.

  Scott called Carl DeBickero. Carl recounted how the case unfolded from the beginning, with the arrest of Clarence Wilborn and his offer to cooperate in exchange for sentencing benefits. He testified to the arrest of Patel, Patel turning over to him the $250,000 cash he had received from Wilborn, and his arrest of the defendant, Max Gordon. His direct testimony lasted slightly less than an hour.

  Colosimo stood to begin his cross-examination. He pressed the sides of his head, apparently to smooth down any protruding hair, then did the same to the black, rectangular moustache that extended halfway across his face. He walked to the lectern and placed some notes on it. He then took a few steps to the left. He began his cross-examination without any written notes or papers.

  “I listened carefully to your testimony, Mr. DeBickero. You did not testify to any interview with Mr. David Harrison, whose money you claim financed this alleged perjury. Did you interview Mr. Harrison?”

  “No, I did not,” Carl responded.

  “And that was because Mr. Harrison had a severe stroke and was unable to communicate, isn’t that right?”