by Ed Gaffney
“The walls of the tunnel at this point were also damaged—much of the tile had been blown away, revealing the concrete subsurface, which was also damaged. The walls and ceiling of the tunnel there were entirely black from the soot and the smoke generated by the fire and the explosion. The vehicle itself was lying on its side. It was entirely demolished.”
“Were you able to ascertain the fate of the driver of the truck?”
The jury knew full well that Esteban Cruz was the driver of the truck, and that he was dead. If pressed, they probably could have drawn you a reasonable sketch of the man’s unusually thin face, dark eyes, skinny mustache, and the oval birthmark on his cheek. But Varick knew that he had to play this straight, because unless he could formally and convincingly tie Cruz to Juan Gomez, his case would collapse.
“When I inspected the cab of the vehicle, I was unable to see any human remains. In fact, much of what was visible was difficult to identify, because the damage from the fire was so extensive. Anything that was plastic, or leather, or glass—in fact, anything that wasn’t metal—seemed to have been burned away, or burned and melted into a condition that made it impossible to recognize.”
Varick interrupted the Q and A at this point to introduce photos of the scene that Francona was discussing. The witness was doing a good job. His descriptions were apt. The annihilation of the tanker truck was astonishingly thorough.
“Given the condition of the truck after the explosion, can you tell the jury what you did to ascertain the owner and/or the driver of the truck?”
“We caught a break there,” Francona replied. Unlike the devastatingly emotional story of Liam Kenney, this witness’s testimony was gripping because everyone felt compelled to understand this horror. The firsthand account of the lead investigator somehow made us feel closer to that understanding. “Parts of the truck literally blew apart, and scattered all over the place. Lucky for us, one of the pieces of the truck that survived was its license plate. We found it embedded in the ceiling of the tunnel, approximately forty feet from the blast site.”
“How were you able to determine that the license plate found was from the exploded tanker truck?”
The question was important, and Captain Francona was ready for it. “There is a video surveillance camera at the entrance to the tunnel,” he said. “We reviewed the tape corresponding to the time immediately before the explosion, and we saw the tanker truck entering the tunnel. We were able to see the license plate from the tape, and verify our identification from the plate in the tunnel ceiling.”
Varick now addressed the judge. “Your Honor, I’d like, at this time, to play what the parties have stipulated as Exhibit Sixteen, the surveillance tape recording of the moments before the explosion.”
“Very well,” said the judge.
At this point, Sarge dimmed the lights, and then, with a remote control, turned on a television monitor mounted in the upper right corner of the room. Then, using a second remote control, he started the tape.
The picture wasn’t particularly high quality, and the camera was mounted low and aimed down and toward the tunnel entrance, so that you couldn’t see much except a small piece of roadway and the lowest parts of vehicles just before they passed into the tunnel.
A second or two after the tape began to play, the rear end of what was obviously a fuel tanker came into view, bearing license plate number 2R–3309.
But more disturbing was the fact that once the truck passed from view, the roadway surface was soaked with what we all now knew to be gasoline.
And as if that weren’t bad enough, some seconds later a cloud of black smoke emerged from the right side of the frame. And then the transmission ended.
Sarge stopped the tape, and brought the lights back up.
Varick then pulled a large plastic bag from a box sitting on his table. It contained a badly damaged license plate. It was partially melted, and so severely warped and dented that the first digit was impossible to discern. The remaining ones were R-3309. He handed it to Francona. “Are you familiar with the item that I have handed to you?”
The witness made a show of examining the exhibit, reading it, and then turning it over. “Yes,” he said. “This is the license plate that exploded off the back of the tanker truck, and lodged itself into the tunnel ceiling, approximately forty feet away.”
I was coming to appreciate Varick’s efforts this morning. He could have already paraded God knows how many autopsy photos in front of the jury by this point. In any murder case, such exhibits were prosecution gold. They were undeniably relevant, and emotionally devastating. Every judge instructs juries to keep emotions out of their deliberations, and every lawyer knows that when the autopsy photos are admitted, it’s virtually impossible for them to find the defendant not guilty. Those photos make them need to hold someone accountable for the violent death they had been made to witness.
But Varick chose instead, at least so far, to tell the prosecution’s story without the typical tabloid gore. The jury was getting the facts they needed to perform their duty. This witness’s testimony, supplemented by the photos of the scene and the ruined license plate, did an excellent job. There was no question in any of our minds how powerful the blast had been, and how hot the fire had burned on that tragic spring morning in Denver.
“Were you able to identify the owner of the truck based on the license plate identification?”
“Yes. The truck was registered to a business called Mountain Star Trucking Company. The owner’s name was Samuel D’Amato.”
“And without telling us of the content of any conversation you might have had with Mr. D’Amato, did you speak to him?”
I’m afraid that we all had me to thank for the awkwardness of that particular question. Because of my insistence on strict adherence to the rules of evidence on the previous day, Varick was bending over backward to be sure that his witness’s testimony didn’t contain hearsay—like the content of his conversation with the truck’s owner.
“Yes, I spoke to him.”
“And after that conversation, what was the next step you took in your investigation?”
“My next step was to apply for and to obtain a search warrant for the home of Esteban Cruz, 523 Smythe Place, in Dutton, Colorado.”
One of the reasons my father and I were writing that book was to try to avoid the silly dance that Varick was doing with his witness. The jury, as well as virtually every one of the millions of viewers of the trial, knew that Francona had asked D’Amato who had been driving the truck that morning, and learned that it was Cruz. Then he asked where Cruz lived, and D’Amato checked his records, and gave the police captain the address.
But we couldn’t hear that testimony, because, technically, it might have been hearsay—the words of an individual other than the one on the witness stand.
“Did you act on the warrant?”
Captain Francona had brought what looked like a copy of his police report with him to the stand, but as he had with all of the other questions to this point, he answered without consulting it.
“Yes, sir. Several officers and I arrived at the subject’s home at approximately nine A.M. on May eighteenth. We knocked and announced that we were police officers, but no one answered. The front door to the home was unlocked, and we entered, again announcing our presence. But shortly after we gained entry, it was clear that no one was in the residence.”
Judge Lomax interrupted at that point. “Before we get into what the police did or did not find in Mr. Cruz’s home, I think it would be prudent for us to take the morning recess. Ten minutes.”
He stood. Sarge shouted, “All rise,” and we stood up as the judge and the jury left the room.
As we all sat down again, my client turned to me and asked, “So, how do you think it’s going?”
“So far so good,” I replied. “But that’s only because they haven’t started to talk about the evidence they have which links you to Cruz.”
Gomez shook his head. His brown eyes were as earne
st as any I’d ever seen. “I’m telling you, man, there ain’t no evidence that links me to that psycho. I never seen him before in my life.”
I had a box full of papers and tapes at home that contradicted my client’s assertion, but I didn’t see the point in belaboring what we both already knew.
Gomez wasn’t quite ready to let it go, though. “You’re ready to do something, though? You’re not going to let them just get up there and say anything, are you? You’re going to—I don’t know. Object, say something about my rights, tell them I’m innocent?”
I had prepared a cross-examination for Captain Francona, based on a few areas of his testimony that I expected were going to be thin.
But frankly, it wasn’t going to be much.
“I don’t know exactly how damaging it will be to their case, but when it’s my turn to ask questions, I promise you, I will…” To be honest, I didn’t know quite how to finish the sentence. But then, Beta’s words from the bathroom came back to me. “—Make some noise.”
And then a tiny voice from the device lodged in my left ear said, “Damn right you will.”
EIGHTEEN
IT DIDN’T TAKE long for the witness to recapture our attention.
“The first thing we found when we walked through the door was directly in front of us, right there in the entrance. I don’t know what you’d call it. A display, or a shrine, maybe. It was this arrangement of a small table with a chair on either side of it. On top of the table was a Koran, lying open. On the chair to the left of the table, there were two pictures. One looked like it was a family portrait. There was a man and a woman, probably in their forties, with three children standing in front of them—two girls and a boy. The boy had a birthmark on his right cheek.
“The other picture was just of the boy, but as a young man, holding a certificate of some kind. In front of that photo was a driver’s license, issued to Esteban Cruz. The person in the driver’s license photo was the same person as the boy in the family portrait.”
Preston introduced the two photos and the driver’s license as exhibits, and they were passed through the jury box. Everyone had seen the pictures before—they’d been all over the news within a week of the blast. But there was a difference when you held photos like that in your hands. It made everything more real. And much worse.
When the jury was finished with the exhibits, Preston asked, “What was on the other chair?”
“It was a suicide note.”
Cruz had printed his final letter from his computer on plain white paper. He hadn’t been one of the world’s great typists, or spellers, but the message was clear enough. It read:
Allah is great.
Today I am a marter. Today, I go to paradise.
I do this for Allah. Praise always to him, the almighty one.
The Koran tells me to do this for the world. To die for the world. Read it and you will see.
I cry for you, my family. My mother and father. I cry for you always. And my sisters. The wolrd will be bettter this way. I die, and many infidels die in the hottest fire.
My truck is my prayer to Allah.
Allah be praised.
This note was also leaked to the press months ago, so I was surprised to see two or three of the jurors react visibly when they were reading it. The good-looking postal worker seemed saddened—maybe from the realization that so much misery could be caused by just one desperate person, or maybe from the loss of this man’s soul to the hatred that had scarred our country so deeply. It was abundantly clear, though, that seeing this letter made the taxi driver and the math teacher angry. I have to admit, my feelings toward Esteban Cruz also leaned in that direction.
When the last of the jurors had viewed the suicide note, Preston returned to his questioning. “Did you say that the Koran that was out on the table between the two chairs was open?”
“Yes.”
Varick handed the captain a leather-bound volume with a protruding bookmark. “Do you recognize this?”
The witness took the book from the prosecutor, examined it, opened it to the bookmarked page, and said, “Yes. This is the Koran that was sitting on the table in Esteban Cruz’s home.”
Preston nodded. “And the pages that are bookmarked? Do you recognize them?”
Francona looked at the book, and then back up at Varick. “Yes, sir. Those were the pages that the book had been left open to. Certain of the passages were highlighted.”
“Would you read those highlighted portions aloud to us, please?”
Returning his attention to the book, the witness read, “‘Make holy war on the unbelievers and the hypocrites; hell will be their home.’”
Varick let that sink in before his next question. “Did you find anything else of interest in your search of the premises?”
Captain Francona handed the Koran to the clerk, and looked back up at the A.D.A. “There was nothing else of particular interest in the entryway or in the living room. Just past the living room was a kitchen, which also was unremarkable. But there was an eat-in area at the end of the kitchen. There was a folding table set up there, with a couple of chairs. And on top of that table, we discovered a calendar, with the date May sixteenth circled in red.”
And on it went. Next to the dramatically marked calendar were several flyers advertising various talks being given by a Muslim cleric named Maliq Al-Hazra, who apparently had been visiting Cruz’s home mosque, in Colorado Springs, during the six months before the attack. The flyers weren’t particularly high quality. Some of the language describing the topics of Al-Hazra’s talks was unquestionably radical.
Cruz’s checkbook indicated that he had cleaned out his bank account the day before the tunnel bombing and sent his remaining money to one of his sisters.
Although there wasn’t much doubt that Esteban Cruz was the man who had been at the flashpoint of this tragedy, there was little to no evidence from this witness that connected him to my client.
Still, after the lunch break, when it was time for cross-examination, I felt the need to emphasize that fact to the jury. I knew that the bulk of the evidence linking Juan Gomez to Cruz had been found in Gomez’s place. But I still felt it was important for the jury to realize that at least so far, the prosecution had established absolutely no connection between Juan Gomez and the catastrophic events in Denver.
I stood, buttoned my suit jacket, and faced the witness. “Captain Francona, in your search of the home of Esteban Cruz, did you come across the name ‘Juan Gomez’ anywhere?”
Intelligent witnesses, especially those on a mission to influence the outcome of a trial, often analyze the opposing attorney’s strategy, and try to keep one step ahead of them. Unfortunately, Oswald Francona was such a witness. And he was pretty good at it, too.
“No, sir, I didn’t. Of course, I didn’t see anyone else’s name anywhere in the apartment.”
“I’m sorry,” I responded. “I thought you said that you saw Maliq Al-Hazra’s name on several flyers on the table next to the calendar.”
The police captain smiled and nodded. “I apologize, Counselor. You’re absolutely right. When you asked if I’d seen your client’s name anywhere in the apartment, I thought you meant written anywhere by Mr. Cruz. But the answer would have been the same—I didn’t see the name of Juan Gomez handwritten, printed, or typed, in the apartment.”
Captain Francona wasn’t just intelligent—he was obviously very experienced in testifying in criminal trials. In less than sixty seconds, he had managed to get quite a bit accomplished. First, he initially misinterpreted my question so that he could undermine my message to the jury. “Don’t make too much of the fact that Juan Gomez’s name wasn’t anywhere in Cruz’s apartment—no one else’s name was in the apartment, either.”
And then, when I called him on it, he managed to apologize in a way which made him out to be the good guy, and by implication, me the bad guy. I didn’t take it personally. I knew that criminal trials weren’t popularity contests. And I knew that
I was in the middle of an unwinnable case. But to be fair to my client, I had to try. And so far, there really was no link between Esteban Cruz and Juan Gomez. It was my job to make sure the jury did not forget that.
“Okay. So the name Juan Gomez wasn’t anywhere in Esteban Cruz’s apartment. How about Mr. Gomez’s phone number? Was that found anywhere?”
I knew that the answer was no. But I also knew that this witness wasn’t going to just leave it at that.
“No. Actually, we didn’t find an address book, or a phone book, or any list of any kind in the subject’s apartment.” The witness smiled. “I guess you could say the answer is similar to my first one. We didn’t find your client’s phone number, but we didn’t find anyone else’s phone number, either.”
“I see. Well, how about evidence of travel by Mr. Cruz to Phoenix? Or even to Arizona? Did you find anything in the apartment to support the notion that Mr. Cruz had ever come to see Mr. Gomez?”
Again, Captain Francona merely smiled and shook his head. “No, sir. No credit card receipts for plane tickets to Phoenix, nothing like that.”
I wasn’t ready to let go. “How about a cell phone? Sometimes cell phones have phone books in their memory, or a list of recent calls. Did you find a cell phone that contained records that indicated any connection between my client and Esteban Cruz?”
“No cell phone was found, sir. If Mr. Cruz had one, we assumed that he had it with him on the truck when it exploded.”
I nodded. But I was hoping to drive home the point to the jury in as thorough a way as I could. So I pushed forward. “Did you check Mr. Cruz’s financial records? Did the bills he received for any phone service he might have had reveal any connection between Mr. Cruz and Mr. Gomez?”
The captain shifted in his seat. Finally, I had gotten into an area he wasn’t completely prepared for.
“Well, in Mr. Cruz’s trash, we did find a handful of recently paid bills. One of them was a cell phone bill. And there were no calls made to or from Phoenix, or Arizona.”
“But you checked into the phone numbers that did appear on the bill, didn’t you?”