When Men Betray

by Webb Hubbell

  “And you’re telling me you authorized your counsel to prepare this stipulation and that you understand its terms and consequences?” Marshall asked.

  Woody said yes.

  “Mr. Prosecutor, are you satisfied?”

  Sam looked at his team and said, “We are, Your Honor.”

  “The stipulation having been agreed to by counsel, and by the defendant himself, it will be entered into the record. Now, Mr. Pagano, do you have any further proof that you’d like to present?”

  “No, sir. The prosecution rests.”

  I took a deep breath as the gravity of the moment struck me. I stood a little unsteadily and addressed the court.

  “Your Honor. No training, no education, none of my experience is adequate to prepare me to defend a life, but here I am. Sadly, nothing I can do or say can change the fact that Russell Robinson is dead. But Woody Cole is alive. It’s his life that brought me back to Little Rock, and it brings me before you today.

  “Like all of you, I’ve watched the horrible scene at the capitol rotunda over and over, and I’ve had the same reaction each time—why?

  “My proffer today will go a long way toward answering that question. Yesterday, the prosecution presented a picture of a man I didn’t recognize. It wasn’t the Woody Cole I’ve known all these years. Instead, they showed us an embittered employee, angry at his boss and so consumed with hate that he killed him in front of the whole world. The prosecution paints a distorted portrait of Woody Cole that fits their image of a killer and a bitter man, not the image of the Woody Cole I know and not the one that fits the true facts once you put them into context.”

  Sam jumped up. “Your Honor, it sounds like counsel is testifying.”

  “He asked to give a brief opening statement. It is going to be brief, isn’t it, counsel?”

  “I will be brief, Your Honor. Context defines content, and you can’t define Woody Cole’s actions outside the context of what led up to that terrible day or what brings us here today. I’m here despite menacing threats to both my daughter and me and three actual attempts on my life. They are part of the context. The authorities want to shrug off these attempts as the act of a drunk driver, a knife-happy mugger, and now, this morning, maybe a rabid environmentalist who hates SUVs. I believe they were the deliberate actions of those who don’t want me to present what I’m here to tell you.”

  “Today, in order to bring context to the death of Senator Robinson, I’ll submit proof of who wants me dead and why.”

  Surely that would get everyone’s attention.

  “As we begin, let’s not forget what was established yesterday: Mr. Cole’s computer and file cabinets were stolen, his car was searched and wiped clean of prints, and the gun dealer who sold him the gun was interviewed by mysterious men before the gun was even fired. Other critical evidence is also missing—namely, the bullet fired from Woody’s gun.”

  That got Sam up. “Your Honor, we have a stipulation.”

  “Your Honor, we have a stipulation that a bullet from the gun purchased by the defendant caused Russell’s death. We didn’t stipulate that the bullet has been found. Has it, Sam?”

  He sat down as quickly as he had stood up. I continued, “This morning we’ll proffer evidence that establishes the true relationship between Senator Robinson and Mr. Cole, a relationship that is inconsistent with the picture painted by the prosecution. We will present evidence of what Mr. Cole discovered before the shooting. We will offer proof about the cause of the disagreement between Russell and Woody. We will produce evidence of what Woody Cole did the day before the shooting. And last, Your Honor, we’ll present a different picture of the shooting than the one you saw yesterday.”

  At last, Woody looked interested.

  Marshall interrupted. “Counsel, I’ve not heard anything that gives me any justification for keeping the public out of this hearing. I’m inclined to recess and invite them in.”

  “Your Honor, that’s because you asked me to be brief in my opening statement. I beg the court’s indulgence.”

  Marshall looked skeptical, but gave me the benefit of the doubt. “Proceed.”

  “Your Honor, the defense first proffers the testimony of Helen Cole, who will counter the evidence put on by the prosecution. She will describe Woody’s strong aversion to guns resulting from a hunting accident that killed his father. She’ll verify his admiration for Russell Robinson, and his involvement in each and every one of Russell’s political campaigns. She will reveal that Woody was disturbed by something in the days before the shooting, telling us that he worked night after night at his computer, printing out something that he locked in his file cabinet, that he made his bed and cleaned his room from top to bottom each morning.”

  Both Marshall and Sam would grasp the relevance. They knew Woody never made his bed and that, wherever he was—at home, in a car, or in his office—the place was a mess.

  “She will describe his mood the night before the shooting as upbeat and filled with nostalgia about his high school friends—drinking expensive wine.” Again, Marshall and Sam knew this was atypical. “She will identify an envelope containing a note and a key to a locker that Woody left for me the morning of the shooting.”

  Maggie handed Marshall and Rodney copies of the envelope, the note, and key.

  “Last, she will testify about the men who identified themselves as state troopers and carried off Woody’s file cabinet and computer.”

  I waited as Marshall carefully read the note. “Will she also explain this?”

  “No, Your Honor. The explanation will reveal itself later. But I feel sure that the court will find the testimony of Helen Cole, although she is naturally biased, to be factual and above reproach.

  “Next, I will proffer the testimony of four members of Governor Russell Robinson’s staff before he was elected to the US Senate—his deputy chief of staff, his counsel, his press secretary, and his chief legislative assistant. They will counter any perception that Woody was a ‘flunky’ or ‘hanger-on.’ Their testimony will confirm that Woody was Russell’s chief of staff, campaign manager, and right-hand man for many years. Their testimony will show that virtually all decisions about legislation, appointments, and appropriations went through Woody Cole. They will also testify that Woody managed Russell’s campaign for senator.”

  Although this was certainly not the image Lucy was trying to foist on the public, Sam knew the truth. So I was surprised when he interjected a comment.

  “Your Honor, I won’t object to any of this, but it seems that counsel is proving my case: Mr. Cole was upset that, after this long service, he wasn’t going to Washington but instead was about to be fired. If necessary, I believe the senator’s wife will confirm this.”

  So … Lucy was ready to testify. It would almost be worth going public just to have the opportunity to cross-examine her.

  I spoke quickly, before Marshall could react. “The prosecutor might want to rethink calling the first lady until he’s heard what my next witness will have to say, but let me get back to the four employees. There are only two areas where the governor led the charge on legislation and took a keen interest in both the exact language of a bill or an appropriation—the environment and the Townsend Arts Center. These four witnesses will say that because of the governor’s intense involvement in those areas, Woody Cole was hands-off, while the governor was completely hands-on.”

  Marshall unexpectedly stopped me … maybe it was the coffee. “Counsel, I’m calling a ten-minute break. When we return, it’s time for you to get on with whatever you’ve got.”

  Micki and I walked down the hall to stretch.

  “Where did you come up with the governor’s staff members?” she asked. “You can get in trouble proffering evidence that doesn’t exist.”

  “Not a problem. One of the projects I gave Clovis before you came on board was to interview people who worked for Russell and Woody. I have at least fifteen affidavits swearing to what I just told the court. I hope Sam
takes the bait so I can hand him all fifteen. The four I mentioned are the most prominent, but I have plenty more, and plenty more detail. Lucy pissed me off when she called Woody a flunky.”

  “Well, I can tell Marshall’s still bothered by your request to keep this secret. He’s getting impatient. I think you’ve about reached your limit with him.”

  I nodded and smiled. “You’re right. It’s time to let the cat out of the bag.”

  46

  “YOUR HONOR, THE next witness I will call is Janis Harold, a respected lawyer and much-admired member of this community. She served as counsel for both of Senator Robinson’s campaigns for governor as well as his campaign for senator.” Maggie distributed campaign documents that had been drafted by Janis and signed by both Russell and Woody. They’d been in the packet Janis gave me on Monday.

  “First, Ms. Harold will say she witnessed the close working relationship between the senator and Woody. She will also testify that she acted as personal counsel to both Senator Robinson and Mr. Cole. She drafted estate-planning documents for both and provided tax advice to the senator on a regular basis. She will testify that during the last campaign an opposition-research project was conducted under her direction that investigated every rumor or bit of gossip there was about the senator or his opponent.”

  Sam rose quickly. “Your Honor, I’m concerned where we’re going here. Does counsel think he can smear the senator in chambers? Gossip about the senator is not relevant to this murder trial.”

  I shook my head. “Actually, I’ve committed to my client and will commit to the prosecution that I have no plans to tarnish the senator’s reputation. The prosecution would have this court believe that Mr. Cole was a disgruntled employee, and I intend to establish the truth. Mr. Cole was so trusted that, other than the senator himself, Woody Cole alone had access to the opposition research. Not even the senator’s wife could touch it, as Ms. Harold’s testimony will establish. I have no intention of introducing any documents that were placed in those files. I simply want to establish the trust relationship and make everyone aware that these files exist.”

  Marshall said dryly, “I believe we are all now aware of their existence.”

  “Your Honor, Ms. Harold will also testify that on the Tuesday after his argument with the senator, the defendant asked her to prepare a trust instrument by which he placed almost all his assets in trust for the benefit of his mother, his former wife, my daughter, and ultimately, a foundation to benefit the environment. Ms. Harold will testify that the terms of this trust are irrevocable, and that on Wednesday afternoon, the defendant executed this trust. All of his assets are in it except for an amount he left in his bank account to cover expenses he expected his mother to have.”

  Maggie produced copies of the trust and a statement showing the value held in trust.

  Marshall kept his face carefully neutral, but Sam couldn’t help himself. “Well, I’ll be damned.”

  “It came as a surprise to me, too,” I said, looking at Sam.

  Sam stood.

  Marshall said, “Mr. Prosecutor, do you wish to say something?”

  “Well, I guess I’m surprised and confused. I wasn’t aware of the defendant’s wealth, so I wonder why the defense is establishing it here. I proved premeditation when I presented my case in chief; now it appears that the defense is going to great lengths to support my proof.”

  Marshall looked at me to respond.

  “That’s one view of the reason Woody Cole would create such a trust the day before the senator’s death. But an equally valid conclusion would be that Woody was planning his own death, and that’s what concerned Ms. Harold. She will testify that she was concerned that Woody planned to commit suicide, not murder.”

  I had touched a button. “Counsel is arguing and putting words in Ms. Harold’s mouth.” This time, Sam had taken the bait.

  “In anticipation of the prosecution’s concern, I asked Ms. Harold to write her own affidavit without my involvement. I’ll present this affidavit to the court as soon as I complete this proffer.”

  Deflated, Sam sat back down. My next problem was Marshall.

  “I’m not concerned about counsel fabricating proffered testimony. He’d find himself in contempt and sleeping in our holding cell. My question is why we don’t put these people on the stand and go forward with the proof the old-fashioned way.”

  “Judge, we are now to the point where I think you’ll understand my unusual request. Janis Harold will testify that, despite her long legal relationship with Senator Robinson, she learned only a month ago that another law firm had been hired to set up a Super PAC to support the senator’s national ambitions.

  “Janis Harold learned about the other law firm’s work on this project from the defendant. Subsequently, lawyers at this firm called to give her the details and confirmed that the director of this new Super PAC would be one Philip ‘Woody’ Cole. In other words, she will testify that Woody was not fired, but in fact had been tapped to guide and promote Russell’s future political ambitions. She’ll testify that the law firm that organized this Super PAC is my former law firm, Banks and Tuohey. She’ll also testify that I was surprised to learn these facts just this week. She assumed that I’d been involved.”

  Marshall looked confused. “Your former firm?”

  I told him that I was no longer affiliated with Banks and Tuohey. He didn’t press the issue, and I offered nothing more.

  Sam couldn’t stand it. “Your Honor, so what if the argument between Woody and Russell wasn’t about his being fired? Is Ms. Harold going to testify that they didn’t argue?”

  “Oh, they argued all right, and I’ll get to what about soon enough. Let me cover a few minor points before I get to the last segment of Ms. Harold’s testimony. She will testify that the senator asked her for tax advice concerning his duck club. The senator wanted to deduct some of the expenses of his duck club as business expenses, and, since he occasionally used it during campaigns, he wanted to charge some of its expenses to his campaign as well. The senator told her that he had kept a record of who visited the duck club and the business or political purpose for each visit.

  “Ms. Harold will also say that, in her opinion, Woody was as sane as she was.”

  Sam simply shook his head. I knew he couldn’t figure out why I was throwing away all my defenses.

  “If necessary, I’ll supplement her testimony with proof that my former firm did establish the Super PAC—to be known as the ‘Peace through Truth Fund.’

  “Finally, Your Honor, Ms. Harold will testify that on Wednesday, the day before the shooting, Woody brought her a large envelope containing what we now know to be a guest register maintained at Russell’s duck club. Ms. Harold will say that Woody asked her to store the book with the opposition-research files. Since then, a second register that augments the first has been found. I will present both of these books as exhibits. To help differentiate between the two books, I’ll refer to the one signed by the guests as the register and the one kept privately by Russell as the journal.”

  As Maggie distributed copies of the two books, Sam complained sharply, “I believe counsel said he didn’t intend to introduce anything from the opposition research. Moreover, if this is confidential information, how did counsel get ahold of it?”

  I turned to Marshall, “May I respond?”

  He nodded.

  “The only thing that ties the guest register to the opposition research is my client’s request that Ms. Harold store it in the same place. Even if it could be considered opposition research, the one person who is able to remove something from those files is my client, or someone who has his power of attorney—which I do.”

  I could hear Woody starting to fidget. I gave him a stern look, and he remained silent.

  “Counsel, it may be that you have the right to do with them as you please, but what is their relevance to this proceeding?”

  “Your Honor, if you’ll allow me, I can answer all the court’s questions.” />
  “I’ve already let you go this far, so go ahead, counsel, but please tell us where you’re going, because I’m missing something.”

  Okay, Marshall, what is it you don’t get?

  “Your Honor, a subsequent witness will identify both books as the records of the guests who came to Russell Robinson’s duck club over the last several years. She’ll say that guests filled out the first register as they entered or left the club. The senator kept the second book privately. She’ll testify that he periodically collected the register and referred to it as he made entries in his journal. A handwriting expert will verify that the journal is solely in the senator’s handwriting. For example, if you examine the two books side by side, you will see on the first page of the register the entry: November twenty-ninth two thousand three—Billy Wagner, Michael Kubek, and Mike Thompson—three mallards—great morning, great food, and even better company. Then, if you go to the journal, on the same date, the entry reads in Russell’s handwriting: Wagner, Kubek, and Thompson—Poultry producers—discussed upcoming legislation.

  “If you leaf through both books you’ll see that, for almost every guest, there is a corresponding entry in Russell’s journal. He never let anyone know he was keeping it. He kept it in a locked chest by his bed. The subsequent witness, who worked at the duck club for years, can identify those who were frequent guests at the club. She’ll tell you which ones hunted, which ones drank too much, and which ones conducted business. She’ll say there were times when people met at the duck club without Russell being present, and she can tell you who they were, whether they hunted or not, and which ones brought girlfriends.”

  I knew this would draw a rise from Sam.

  “I thought counsel wasn’t going to try to smear the senator. Just who is this mystery witness?” His voice was full of indignation.

  “The witness is Ms. Bea Taylor, the cook and housekeeper for the senator’s duck club. Some of her testimony will be corroborated by the guide who took the hunters out, but most of it is based on her own knowledge and her personal records.” I made it a point to keep my tone neutral.