Shadow of Power (33 page)

Tuchio now stands in front of the witness, incredulous, disbelieving that Hettinger didn’t realize. “Didn’t Mr. Madriani tell you?”

“Who’s Mr. Madriani?” says Hettinger.

“The lawyer who just questioned you!” says Tuchio.

“I never saw him before today, just now,” he says.

“Then who did you talk to? Somebody from his office?” he asks.

“I don’t know. I didn’t get the man’s name,” he says. “I just had lunch with him. Big guy, black fellow,” he says. “Nice guy. He bought me lunch.”

Tuchio wants a conference at the side of the bench. By the time I get there, he is hopping mad, and this time you can tell he’s not acting. “We had no disclosure as to this witness,” he tells Quinn.

“The man was on our list,” I tell Quinn.

“You know damn well what I mean.”

“Your language, Mr. Tuchio, for the record.” Quinn gestures with his head toward the court reporter standing behind the prosecutor with her stenograph machine, taking it all down.

“This is trial by ambush,” says Tuchio.

“Your Honor, we’re not responsible for the state’s investigation—or lack of it, for that matter. Mr. Hettinger has been going to work every day for months since Mr. Scarborough was murdered. The police had every opportunity to go out and talk to him.”

“Did you have a signed written statement from the witness?” Quinn directs this to me.

“No, Your Honor, we did not.”

“Then without a written statement, there was nothing to disclose except the witness’s name,” says the judge, “and from what I understand, you received that, Mr. Tuchio.”

Having gotten no sympathy from the court, Tuchio marches back out and locks horns with Hettinger.

Under questioning, the maintenance man admits that he was out of town for almost a week just before Scarborough was murdered and that he didn’t return to work until almost two weeks after the crime.

“So if you weren’t there, in the building, in the hotel on the day in question, the morning that the victim was murdered, you really can’t tell this jury whether that hammer”—Tuchio points toward the evidence cart—“was in the stairwell or in the maintenance closet or anywhere else, can you? Yes or no?” he says.

“All I know is that the hammer—”

“Yes or no!” says Tuchio.

“Objection, Your Honor. The witness should be allowed to answer the question in his own way.”

“Sustained,” says the judge. “You can answer the question any way you want.”

“Why are you being so nasty?” Hettinger directs this at Tuchio.

“Except that way,” says the judge. “Just answer the question—if you can. Do you remember the question?”

“Yes, I remember,” says Hettinger. “What I was about to say is that all I know was that the hammer was in the stairwell where I kept it when I left on vacation and that when I got back, it was
gone.
” He says this with such venom that Tuchio takes a half step back and a quick glance toward the jury.

This is not the verbal image the prosecutor wanted. It cuts too close to the bone of the shadowed hand in my opening statement.

Tuchio pauses, steps back and thinks for a moment.

“Perhaps we got off on the wrong foot,” he says. “Mr. Hettinger, let me ask you a question.” Tuchio takes a different approach now. The volume of his voice drops, his demeanor becomes friendlier, less imposing. “I understand that you were brought here today not fully understanding what was happening.”

“Objection, Your Honor. Is that a question? Because it sounds to me like Mr. Tuchio is testifying,” I say.

Tuchio turns it around and makes a question out of it, asking Hettinger if anyone from our side assisted him in the preparation of his testimony.

“No. Just lunch with the man, like I said.”

“And this man you had lunch with, did he make suggestions regarding your testimony here today? Did he tell you anything to say?”

“No. He just took notes.”

Dead end. Tuchio still searching.

Now with a more sociable style, he goes back to the point he wanted to make earlier. “You were gone for how long on vacation, around the time of the murder?”

“Three weeks.”

“So during that three-week period, you really couldn’t know whether that hammer was still in the stairwell where you left it, could you?”

“No.”

“You couldn’t be sure, for example, whether perhaps one of your
colleagues might have picked it up and used it and perhaps put it back in one of the maintenance closets, could you?”

“How could I? I wasn’t there,” says Hettinger.

“Exactly,” says Tuchio. “So for all you know, as you sit here today, that hammer could have been anywhere on the morning of the murder, or for that matter during the week before the murder, because you don’t know where it was during the time that you were on vacation?”

“That’s true.”

“For all you know, the murderer could have found that hammer the day after you left for vacation and had it in his possession for days before the murder was committed?”

“Objection, leading, calls for speculation.”

“Sustained,” says Quinn.

“But since you couldn’t see that hammer from all the way up there in Idaho, there are a lot of possibilities as to where that hammer might have been, right?”

“I suppose anything’s possible,” says the witness.

This looks like the best Tuchio can do. Then he pauses for a moment and tries to reach further.

“I think you testified that the lock, the one that didn’t work on the maintenance closet upstairs, was on a list for repairs. Isn’t that what you said?”

“That’s right.”

“Isn’t it possible that the lock on that maintenance closet might have been repaired while you were gone on vacation, so that on the day that the victim was murdered, if that hammer was in that closet, it would have been locked behind closed doors. Is that not a possibility?”

Tuchio is leaning forward, waiting for the words “Anything’s possible,” but instead the witness says, “I doubt it.”

“That’s all I have for this witness, Your Honor.” Tuchio tries to turn and get away.

“’Cuz the lock was still broken when I got back from vacation.”

Why you never want to ask a question unless you already know the answer.

Q
uinn calls the lunch break, and Harry and I meet with Jennifer Sanchez, our paralegal, at a small bistro two blocks from the dwindling army of demonstrators in front of the courthouse.

Jennifer is decked out in her best going-to-court suit, slacks and a jacket with a white blouse and ruffled collar. She’s nervous, and you can see it. I tell her that I’ll be with her the entire time, that if Tuchio tries to get rough, I’ll be all over him.

She nods and smiles, but in her eyes I can see the anxiety.

“Just think before you answer any questions. If you don’t know the answer, say you don’t know.”

Harry says, “Listen, you won’t have any problems on direct. Paul will lay it all out for you. But when Tuchio gets up on cross-examination,” he says, “he is going to try and pick up speed, get a quick rhythm going so that you can’t think between questions. Don’t let him do it,” says Harry.

“Pause between answers. He can’t ask another question till you’ve answered the one before it, and if he tries, we’ll object. All you have to do is stay calm. Just tell the jury what you saw, what happened.”

Jennifer doesn’t want any lunch. She’s afraid she may not be able to keep it down. Harry and I go light, and less than an hour later we’re back in the courtroom.

Jennifer is on the stand, sworn and seated, her back straight as a board, hands in her lap. She takes a deep breath, and I take her carefully
through the preliminaries—the fact that she has spent her whole life in San Diego and attended local schools, her training as a paralegal, her employment with our office, the fact that she loves her work, any piece of information that might endear her to the jury. Our entire case now hinges on whether they believe her.

“I think it was exactly a week ago, Thursday morning, can you tell the jury what time you arrived at work?”

“It was about seven
A.M.
,” she says. “I had a lot of work to do, and I wanted to get an early start.”

“And when you arrived, was there anyone else in the office?”

“No. I was the first one there.”

“Please tell the jury what you found when you opened the door to the office that morning?” I try to make this sound as matter-of-fact as I can.

“When I unlocked the door and opened it, there were a couple of items on the floor. There was an envelope and a flyer, I think an advertisement, and the flyer was from a new restaurant that was opening down the street.”

“And the envelope, did you know who that was from?”

“No.”

“Did it have a return address on it?”

“No.”

“Did it have any postage on it? Stamps or a tape from a postage machine?”

“No. Just a label addressed to you and a typed notation under the office address saying ‘Personal and Confidential.’”

“Was it unusual to find letters or other pieces of literature slipped under the door in the morning when you arrived at work?”

“No. Happens all the time,” she says. “Clients sometimes slip envelopes with checks for payment of bills, advertisements, sometimes even reports from expert witnesses if they’re small enough.”

“So finding this envelope on the floor didn’t surprise you?”

“No. Not at all.”

“Can you tell the jury what you did with this envelope after you found it?”

“I picked it up, and I put it on your desk.”

“In my office?”

“Yes.”

“You didn’t open it?”

“No.”

“Can you tell the jury why you didn’t open it?”

“It’s firm policy,” she says, “that items coming in marked personal or confidential are to be delivered unopened to the person they’re addressed to in the office.”

“What about other mail, not marked personal or confidential? Can you tell the jury what happens with that?”

“It’s opened by one of the secretaries. If it’s business or legal, the correspondence is normally removed from the envelope, and then the envelope is stapled to the letter or whatever it is, so that if there’s a postmark or a cancellation on the envelope, we have it.”

“But this didn’t happen with the envelope you found on the floor?”

“No.”

“Because it was sent to me, and marked personal and confidential?”

“That’s correct.”

We talk about the size of the envelope, large enough to hold letter-size paper laid flat, unfolded. I ask her if she touched the envelope again at any time after she set it on my desk, and she says no.

I ask her if anyone else touched it, and she says she doesn’t think so.

I ask her if she knows when the envelope was finally opened, and she tells the jury that this happened the following Monday morning when I returned to the office.

“And were you present when this was done?”

“I was in your office,” she says.

“So between Thursday morning when you discovered the envelope on the floor inside the door to our office and Monday morning when I returned to the office, as far as you know the envelope in question remained on my desk, unopened?”

“That’s correct.”

Now I have her tell the jury where Harry and I were during all this time, from the moment she discovered the letter on the floor until I returned on Monday morning to open it.

“You were out of the country on business,” she says.

“And how do you know that?”

“Because I helped make the travel arrangements, one of the secretaries and myself,” she says, “and because in preparation for my appearance here today, both you and Mr. Hinds showed me your passports with both entry and exit stamps for the dates in question from the island of Curaçao in the Caribbean.”

We have had certified copies of the passport pages prepared. I show them to Jennifer, we have them marked for identification, and we enter them in evidence.

“Do you know the date and time that we departed the airport en route to Curaçao?”

“It was just before eight last Wednesday night,” she says. “I think seven-fifty or seven fifty-five.”

“And can you tell the jury where you were at that time, on Wednesday night—this would be the night before you discovered the envelope on the floor?”

“I was having dinner with a friend at a restaurant on Coronado Island.”

“And what did you do after dinner?”

“I went back to the office for about an hour.”

“And what time did you arrive at the office?”

“A little after ten,” she says.

“And how long did you remain at the office that evening?”

“I had some work to finish. I left the office to go home. I think it was a few minutes after eleven.”

“When you left, was there anyone else in the office?”

“No.”

“And I assume that the envelope you discovered the next morning was not on the floor in the office when you left the office Wednesday evening?”

“That’s correct. It was not there.”

“Now let me change gears here. Do you know why Mr. Hinds and I traveled to the island of Curaçao?”

“Objection, hearsay,” says Tuchio. “All she can know is what they told her.”

“Sustained.”

I stop and think. At this moment we are winging it. Tuchio’s objection suddenly has me reaching for something I hadn’t planned on, something I’ve never discussed with Jennifer in our preparations.

“Apart from anything I may have told you, or that Mr. Hinds may have told you, put that out of your mind,” I tell her. “Apart from any of that, do you have any independent knowledge of your own, based on your own observations, your own work in the office, things you have personally observed or witnessed that give you any independent knowledge as to what Mr. Hinds and I were doing on the island of Curaçao during the period in question?”

“Objection, Your Honor.” Tuchio is on his feet, leaning over the table, both hands extended. He can’t get around the corner of the table fast enough. He wants a conference at the side of the bench.

By the time we get there, Quinn is already leaning over.

“Your Honor, they’re trying to come in through the back door on the restaurant video,” says Tuchio. “We know that this witness discovered the DVD in the evidence locker. We have to assume that she’s seen it. Madriani is trying to use the video to leverage her into saying Ginnis’s name, because as soon as she does, he’ll have the jury distracted, looking in all the wrong places for the killer. There is still no foundation for that video”—Tuchio pounds the words home—“and no basis in evidence to mention Arthur Ginnis’s name.”

I go back to my argument that the Jefferson Letter, Scarborough’s copy, which we now have, and its appearance in the restaurant video link these two items inextricably. To allow the letter into evidence without the video of Scarborough and Ginnis is to leave the jury half blind.

“Apart from that,” I tell Quinn, “Ms. Sanchez knows, based on her own independent observations and her own work product, that Mr. Hinds and I were searching for a witness on that island, and she knows who that witness is. She knows what we were doing in Curaçao. Mr. Tuchio would have the jury believe that we took a vacation in the middle of the trial.”

“Sounds about right to me,” says Tuchio.

Quinn is nodding. “I’m not going to allow you to talk about the video, Mr. Madriani. So stay away from that line of questioning,” he
says. “However, I think it is fair to inform the jury that you were in Curaçao on legitimate business. The witness can confirm that you were on the island searching for a witness. But that is all. There is to be no disclosure as to the identity of that witness. Do you understand?” He looks at me.

I nod.

“No, better yet,” he says, “I’ll take care of this myself, from the bench.”

The judge waves us away. What Quinn is worried about is that Jennifer and I will get our signals mixed and that before anyone can stop her, she’ll blurt out the name Arthur Ginnis.

Quinn wheels around and sits upright in his chair.

By the time I get back to the witness stand, Jennifer is sitting there on needles. I can tell she knows where I’m trying to go, and she’s itching to answer the question.

The judge clears his throat and intones, “The jury may take notice of the fact that Mr. Madriani and Mr. Hinds were on legitimate business and that during the period in question they were searching for a witness on the island of Kureasaw.” He murders the name. “The record will so reflect.”

He looks down at me. “Now move on, Mr. Madriani.”

Jennifer gives me a slight shrug and an innocent smile as if to say,
All we can do is try.

I draw her attention to Monday morning and the envelope on my desk.

For the next forty minutes, through questions and answers, she describes to the jury what she saw when I opened the envelope in my office that morning—the folded pages with the spots of blood—and then later when Harry picked up the envelope and the tiny plastic bag with the strands of hair fell out. We include testimony describing the awkward copying of the Jefferson Letter that went on in the office and the photographs that were taken.

The state will waste no time stirring the toxin of cynicism with innuendos and inferences, if not outright assertions that we planted the letter in our own office and that we choreographed all this for the benefit of the jury.

When Jennifer is finished describing what happened in the office, I retreat to the evidence cart.

First I show her the outer envelope with my name and the words “Personal & Confidential” typed on the address label. This is now encased in a clear plastic evidence bag from the police crime lab.

She identifies it as the envelope found on the office floor Thursday morning.

Next is Scarborough’s copy of the Jefferson Letter, the folded document with the rust-colored blood on one side. For the moment the letter is sealed in a clear plastic bag, though this will be removed later to better preserve the blood evidence on the paper.

Jennifer identifies this as one of the items extracted from the envelope that morning. She still does not know the contents of the letter, nor do any of the other members of our office staff or expert witnesses, who have been instructed not to read it. The reason for this is the need to carefully control the timing of this evidence before the jury. If we slip up and open the door for Tuchio to get into this in his cross-examination of one of our witnesses, it could destroy the entire strategy of our defense.

She then identifies the other item, the small plastic bag, though the hairs that it once contained have now been removed for preservation.

“Now let me ask you, do you have any idea, any information at all, as to who might have placed this envelope under the door to our law office on Coronado?”

“No. I have no idea at all.”

“So the only thing you can tell the jury is that the envelope was not there Wednesday night when you left the office at approximately eleven o’clock and that it was there at approximately seven the following morning when you arrived for work?”

“That’s correct.”

I turn to Tuchio. “Your witness.”

He wastes no time. He goes right for the jugular.

“Lemme get this straight, Ms. Sanchez. You expect this jury to believe
that you never saw those items, the bloody letter,” he calls it, “and the little baggie of hair before they magically appeared on your office floor last Thursday morning, is that right?”

“I don’t know what the jury wants to believe. All I can do is tell them the truth.”

Good girl.

“Come. Come now,” he says. “Are you telling us that Mr. Madriani didn’t instruct you on what to say here this morning, that he didn’t dictate it to you line by line so that you would get it
straight
?”

To Jennifer these are fighting words. “That’s exactly what I’m telling you.” She looks at the jury now and ignores him. “What I am telling you is what I saw, everyth—”

“You’re telling us you never saw those items—”

“Your Honor, he’s cutting the witness off. If he wants to ask a question, he should allow the witness to answer.”

Tuchio turns to look at me. “I thought she was finished.”

“She wasn’t,” I tell him.

“Gentlemen, direct your comments here, to me, not to one another,” says Quinn. “The witness will be allowed to complete her answers.” The judge gives Jennifer a courtly smile and tells her to go ahead and finish.