Shadow of Power (19 page)

Detrick goes through a lot of shrugging here. You might think the collar on his shirt or his necktie is too tight. Then he says, “Possible. But the problem is there are other possibilities based on your own hypothetical.”

“Like what, for example?”

“Well, using your own hypothetical,” he says, “with only one simple variation, let’s assume that someone did come to the door, but it was not someone the victim knew. Let’s say it was someone he didn’t know, but who he expected. Say, for example, the victim ordered a meal….” As soon as he says the words, he begins to smile. He’s wondering how I’m going to cut him off in front of the jury without leaving dangerous
lingering questions. Something like,
I’ll ask the questions, Detective.
But instead I let him go. He can’t believe it.

“And the waiter with the tray arrives at the door.” This is a hypothetical much more to Detrick’s liking. I can tell, because if he had a mustache at this moment, he’d be twisting the ends. “The victim might open the door, let the waiter in, return to his chair, and find himself in the same situation as in your hypothetical,” he says.

“And the hammer?” I ask. “Where was that, in your version?”

“Under a garment,” he says, “same as yours. Or perhaps on the tray under a napkin.”

“Ah, but then how do you explain the tray outside the door?” I ask. “From the blood spatter, we know the tray wasn’t on the table at the time of the assault.”

“Well, after the door was opened and the victim turned back to his chair, the perpetrator, a waiter in this case, would have had plenty of time. He could have put the tray down on the floor out in the hall, before he ever actually stepped into the room.” He looks at me. Try that hypo on for size.

“So let me get this clear. The door is opened by the victim. Let’s assume he looks through the peephole before he opens it.”

“Sure, he would naturally do that.” Detrick is being as helpful as possible now that he sees me headed down into a pit.

“The victim sees your hypothetical waiter standing just outside in the hall, holding the tray,” I say.

Detrick’s nodding, leaning forward in his chair, body language urging me on. I can tell he wants me to say it, to draw the mental image of how my client did the deed, right in front of the jury.

“Victim turns, goes back to his chair. By then the waiter has placed the tray with the food on the floor in the hall.” I run through it.

“Exactly,” he says.

“I take it your hypothetical waiter is by now holding the hammer, presumably in his right hand?” All the little details.

“I would assume so,” says Detrick.

“Then he steps inside the room.”

He’s nodding.

“He closes the door.”

“Yesss.” He says it like a serpent hissing.

“And so that I understand your version clearly, is it here, inside the entry with the door closed, the victim just a few feet away, that your hypothetical waiter stops, lays down the hammer, and puts on the raincoat?”

This, the raincoat that no one has mentioned since it was pulled from the evidence bag and identified for the jury, falls on Detrick like a lead anvil. A lesson in why you never want to wing it in front of a jury on a theory of how the deed went down. Unless it is carefully thought out and analyzed, more often than not, you will end up choking on the details.

Harry and I had spent four days going over every scenario of the murder that we could conceive. We made cardboard cutouts, each one representing an item of evidence, and played them like game pieces, running them through a printed maze set out on separate pieces of large poster board. Each board represented one of the possible theories of how Scarborough was murdered, like prepping for a final in law school. The instant Detrick opted for the theory of the invited waiter, I knew he was dead. Harry and I had already done it and ended up holding the cardboard cutout that read “Plastic Raincoat.”

The next time some wizened old judge tells you that trying any case is 5 percent theater and 95 percent preparation, you would be wise to believe him—or to find another line of work.

On the stand, Detrick hems and haws. He has stepped in it, but still, what happens next is something you don’t usually expect from an experienced witness. He makes it worse.

I’m halfway back to the counsel table, getting ready to move on to another point, when he says, “It’s entirely possible, in my scenario, that the hypothetical waiter could have been wearing the raincoat when he arrived at the hotel-room door.”

This last desperate surmise allows me to wander through a field of dreams on horseback, dragging Detrick behind me over every sharp, jagged edge that it presents.

It’s one thing to theorize that my client, Carl Arnsberg, wearing a raincoat, slipped into Scarborough’s room in silence using a key when no one was looking. But the picture of a waiter in white livery carrying
a tray, arriving at the door, knocking while he’s all decked out in a clear, thin, plastic tarp with sleeves, something large enough to cover a pup tent, is quite another matter.

I make the point verbally in front of the jury. Then I ratchet up the notion of this house of horrors for Detrick by going visual. I have the clerk pull the raincoat and open it in front of the jury. It may say size small on the collar, but you wouldn’t know it from the parachute of plastic now crinkling noisily in front of the jury box.

Even if Scarborough were in the middle of a mind meld, he would have to do a double take on any waiter showing up at his door wearing this, and he wouldn’t have to look into a darkened television screen to see it, or for that matter hear it.

Harry, who is a cerebral vacuum cleaner when it comes to examining evidence, told me a month ago, right after he saw the plastic raincoat, that we could run riot through Tuchio’s case, at least for a day or two. In Harry’s words, “Anyone trying to slip up behind Scarborough wearing that may as well have on a cowbell.”

Mercifully for Detrick, who would like to crawl under his chair, the judge allows only one more question before we break for the day.

“Let’s get back to my original hypothetical,” I tell him. “If the killer was someone Scarborough knew, presumably coming in from outside the hotel, wearing that same plastic raincoat in June in San Diego, where early-summer mornings are often shrouded in fog, sometimes light drizzle, isn’t it probable, isn’t it more likely, that that person wouldn’t draw a second look from anyone, including the victim?”

Detrick has the look of a whipped dog. By now it doesn’t matter what he says. The answer is so obvious that half the jurors probably don’t even hear it. He shifts in his chair, his chin pressed down into his chest, and he mumbles: “I suppose it…”

The court reporter misses it. She makes him say it again.

“I said, I suppose it’s possible.”

T
he next morning on my way to court, I find Harry waiting for me out on the sidewalk a half block from where I park my car. He’s all smiles. From the look on his face, I can tell he’s not standing there waiting to talk about the weather.

“Figured you’d be coming this way,” he says. “I’ve got some things here I think you’re going to want to see.”

He pulls several pages from his briefcase and hands them to me one at a time as we stand out on the street. “I found them about two o’clock this morning, going through the stacks on the conference table.” They’re computer printouts. Harry has been plumbing the depths of Scarborough’s computer memoranda.

The first item is an e-mail, very brief, three quick sentences, no salutation.
“Regarding the item of which we spoke last week, I am informed that I will require access to the original. A copy will not do. Please reply.”
It is signed T. Scarborough and dated eighteen months ago.

I look at the e-mail address in the “TO” box at the top. It is addressed to [email protected].

“What’s this?” I point to the address.

“Supreme Court of the United States,” says Harry. “It’s Arthur Ginnis’s e-mail address at the Court. Next,” he says. Harry hands me another page.

It’s another e-mail missive from Scarborough to Ginnis.
“Regarding my message of the 18th, I have received no reply. I assume it is possible to
gain access to the original? As I stated previously, a copy does not satisfy the requirements of my third party. Please reply as soon as possible.”

“And it gets more interesting,” says Harry. He hands me a third e-mail. This time it’s a reply from the Court to Scarborough, with Scarborough’s second message appearing below it. But the reply is not from Ginnis. The name on the bottom reads
“A. Aranda.”

“I write you on behalf of the Court. I have been asked to inform you that this site is for the conduct of official Court business only. If you have business of a personal nature, please direct it by way of ordinary mail to the following address.”
What follows is a street address in Washington, D.C., with a box number after the street name.

“So what do you make of it?” says Harry.

“Looks like Scarborough was trying to do business with Ginnis, used the wrong conveyance, and he got his hand slapped.”

“Ginnis may have slapped his hand,” says Harry, “but he didn’t tell him to go away.”

For a minute or more, Harry and I stand there on the street studying the brief lines on the paper like analysts trying to decipher language in a diplomatic code.

“The word ‘original,’” says Harry. “I’ll give you ten to one that’s Scarborough talk for the J thing, Mr. Jefferson’s infamous letter. Remember what the gal in D.C. told you?”

“Trisha Scott.”

“She said Scarborough only had a copy of the letter. That’s why he needed the original, to authenticate it. It’s dead-on,” says Harry.

“She also said that Ginnis didn’t know anything about the letter.”

“Fortunately for you and me,” says Harry, “we never believe people.” We had already dropped both Trisha Scott’s name as well as the name Arthur Ginnis into the middle of our witness list of possibles to be called, just in case. At the moment Scott’s looking like an odds-on bet for a subpoena. Of course, there’s always the risky unknown, what she might say if you put her on the stand.

“What do you make of this?” says Harry. He’s pointing to language in one of the e-mails. “Scarborough’s asking for the original, and then he says, ‘As I stated previously, a copy does not satisfy the requirements of my third party.’”

Harry gives me a quizzical glance. “Is he trying to publish the letter, or is he trying to sell it?”

I shake my head. We need to move quickly.

“Tell Herman to hire a gumshoe in D.C.,” I say, “somebody he knows or a good referral. Have them find out what’s at this street address.” I point to the D.C. address on the Court’s e-mail reply. “And if it’s a drop box, who rents it. Also ask them to check out the name A. Aranda on a directory of the Court’s employees. I assume there must be one. If not, tell them to do whatever they have to, but find out. Tell them we need the information by tomorrow.

“This next item I don’t want to job out. Ask Herman to get on his traveling clothes and catch the first flight back to D.C. If we end up having to drop a subpoena on Ginnis, first order of business, we’re going to have to know where he is.”

After Detrick was saved by the bell at yesterday evening’s break, you can bet Tuchio spent much of the night with him in the woodshed doing a refresher course on their theory of the case. This morning the detective is looking a little worn and frazzled.

Between the saucer-size eyes and the razor-quick double take Detrick does when I say his name, you might think Tuchio has been feeding him Benzedrine all night.

I don’t even ask Detrick about the detective’s note from the interview in New York with Richard Bonguard, including the early reference to the “J letter” and why the police didn’t follow up on this. This is another instance of their shoddy investigation, rush to judgment. But if asked, Detrick would no doubt simply say it was irrelevant. They already had their man and all the evidence that went with him.

This morning Detrick and I parry over one final point. We know that the killer tried to dispose of the raincoat by throwing it into a Dumpster. So if Carl killed Scarborough, why didn’t he do the same thing with his pants and shoes instead of trying to clean them? After all, he had the better part of twenty-four hours to get rid of them.

Detrick and I go back and forth over this several times, tugging and pushing. At one point he tries to repeat the statement that Carl gave the
cops during interrogation, that he kept them because he couldn’t afford to replace them. I cut Detrick off before he can go there.

“Wouldn’t you get rid of them,” I ask him, “if you were the killer?”

“Oh, I would,” he says. “But then in my experience as a homicide detective over the years, I’ve seen a lot of people do a lot of stupid things.”

I could ask him whether in his long experience he has seen people burning their clothes or throwing them in Dumpsters when their only act was the misfortune of stumbling onto a crime scene where they’d picked up traces of blood. But that would be one question too many. Detrick would say,
No, of course not, but then those people would have gone to the authorities and reported the crime.

“Thank you. That’s all I have for this witness.”

Tuchio spends twenty minutes on redirect trying to undo some of the damage from yesterday. He has Detrick repeat the state’s theory of the key in the lock, a secretive entry into Scarborough’s hotel room, and then emphasizes that in that case the killer would have been wearing the troublesome raincoat before he entered. It’s this image that Tuchio wants to leave with the jury before we move on.

He excuses Detrick. I let him go, subject to recall in my case in chief.

Tuchio’s next witness is Dewey Prichert, an employee of the police crime lab whose specialty is trace evidence.

Prichert has a kind of sad-sack look to him. If he were a dog, he’d be a basset hound. His sandy-colored hair is disappearing from his forehead faster than a glacier in global warming. The knot on his tie is a little crooked. He wears thick glasses and carries a small plastic pouch sprouting a couple of pens and a tiny metal ruler, all stuffed into the breast pocket of his sport coat. Professor Nerd, pass him on the street and you’d swear he spent his days in a physics lecture hall instead of squatting with tweezers plucking fibers and hair from around lakes of human blood.

The prosecutor moves quickly with Prichert as he has the witness identify specific photographs of blood spatter, close-ups of several small articles that were in the room. Prichert was the crime tech at the scene who lifted the two shoe impressions from the blood in the entry hall
and gathered bits of fibers from the floor and multiple strands of human hair, none of which, it seems, matched the hair of the defendant and several of which appear to be idle strands belonging to no one in particular, at least that the police could identify.

“How do you explain that?” asks the prosecutor. “The unidentified strands of hair?”

“Any hotel room is going to be a transient scene,” says Prichert. “We were able to account for several of the darker strands of hair that were found. They belonged to two of the maids who routinely cleaned that room. Others we assume at this point probably belong to previous occupants of the room.”

“So what you’re telling us,” says Tuchio, “is that it’s normal, that you might expect to find unidentified strands of hair in a place like a hotel room?”

“It’s not as bad as an airport terminal, but basically, yes.”

What Tuchio is trying to do here is to close the door on us, to diminish these loose strands of hair as SODDI evidence—“some other dude did it.” He knows that I have an expert on my list of witnesses prepared to jump on the unanswered question of hairs found at the scene.

Tuchio has the witness specify the number and various colors of hairs he collected in the hotel room. You would think the hotel didn’t own a vacuum. According to Prichert, he gathered eighty-seven separate strands, including fourteen hairs from three different animals. For a hotel with a “no pets” policy, if you could fork over the gold brick to pay the daily fare on the Presidential Suite, it seems the room came with a courtesy case of cataracts to blind hotel staff whenever Fifi or Fido emerged from the elevator.

Of the eighty-seven human strands, a good number, fifty-six, were multiple offenders. That is, they were classified as “questioned hair samples,” meaning that their owners were unknown but that microscopic examination revealed they were duplicates and in some cases triplicates coming from the same unknown person.

According to Prichert, this would not be unusual for a hotel room where tenants might spend anywhere from one to several days in close living quarters. He tells the jury that most of the hair samples were collected using a special vacuum with a small micron filter to trap the hair
and small fibers. In areas close to the victim’s body where he did not want to disturb other potential evidence, he used tape to lift any hairs or fibers. He explained to the jury that in a suite that size, with deep plush carpets, heavy upholstered furniture, and heavy curtains that hung to the floor, you could easily find a good number of hair samples, most of which have probably been there for a long time.

Tuchio pays particular attention to the thirteen questioned samples of hair found on or near the back of the chair where Scarborough was murdered and six unidentified samples found in the bathroom on the tile floor either near or under the toe kick of the bathroom counter. There were several hair samples on the counter itself and in the sink in the bathroom, but all of these were identified as belonging to the victim. Of the thirteen in the living area, most belonged to the victim himself and were severed by the jagged edge of the hammer’s claws as it punched holes in Scarborough’s head. But five of them on or around the area of the chair where the body was located, one a kind of sandy brown color, three blond, and one that had been subjected to enough different dyes that Prichert could not determine its true color, are unidentified, so-called questioned samples and belonging to persons unknown.

In addition there were two blond hairs, one four inches long and the other much shorter—he can’t remember the precise length—as well as several gray hairs and two brown samples, all of which were collected from the bathroom.

“Let’s start with the five hair samples found closest to the body, the ones you couldn’t identify. Can you tell the jury anything about these hairs?”

“Two of them I might classify as floaters, one blond sample of questioned hair about four inches in length and one shorter brown sample about an inch in length.”

“What do you mean by ‘floaters’?”

Prichert explains to the jury that if you’re looking for trace evidence deposited at the scene of a crime, you don’t usually tear up the carpet and look underneath. In collecting fibers or hair, unless there is some other reason to probe deeper, technicians usually look for surface deposits likely to have occurred during or about the time that the crime was committed, what the witness calls floaters.

“These four strands, the brown and three blond, were not on the surface of the chair,” says Prichert. “They were tucked into crevices formed by the back cushion at the level of the seat on either side at the back of the chair. They were sufficiently shallow that it was difficult to tell how long they might have been there.”

“What about the other eight unidentified strands of hair found on or near the chair?”

“All of those were tucked deep enough into crevices in the upholstery of the chair that I was able to exclude them as not being part of the crime scene. Most of them were balled up and caught up in filaments of dust, indicating that they’d been there too long to be connected to the crime.”

“Would you normally expect to find human hairs in that location, in the cracks of an upholstered chair?”

“It’s very common.”

“Why is that?”

“People sit, hair sheds, sometimes it gets caught in the tight spaces of the upholstery and is pulled out or more likely broken somewhere along the shaft. Repeated body movement in the chair and gravity can cause the loose strands of hair to migrate into crevices, usually between or at the edge of cushioned areas. In this case it was a leather chair. Loose hair would tend to slide easily, and unless it fell on the floor, it would slip into crevices almost immediately.”

“Did you find any unidentified hairs on the body or the clothing of the victim?”

“I found several strands belonging to the victim himself, but no unidentified or questioned samples, no.”

Tuchio turns his attention back to the club chair in which the cops theorize Scarborough was sitting at the time of the attack. He has the witness explain that the cushions on that particular chair were not loose. They could not be removed by a maid in order to dust and vacuum under and around them. Both seat and back cushions were stitched to the fixed upholstery of the chair.