“Was he agitated, excited?”
“He wasn’t happy, if that’s what you mean.”
More laughter.
Gross is starting to enjoy this.
“Was he mad?”
“Oh, yeah, mad as hell,” he says, and then he looks up at the judge with a nervous smile.
Quinn ignores him.
“I see,” says Tuchio. “Did the defendant say anything about how he might carry out this kidnapping?”
“Yeah. He said it would be no problem to hit him on the head and dump his body into a laundry cart and take it down a service elevator.”
“He said ‘hit him on the head,’ and he was talking about Mr. Scarborough?”
“Yeah, that’s what he said.”
Now the jury is taking notes.
“Let me ask you, at the time the defendant said this, that it would be easy to hit Mr. Scarborough on the head”-Tuchio wants to repeat this, a good sound bite and right on message-“did you think he was serious?”
“At that time, no,” he says. “But later-”
“Objection,” I say.
“Sustained,” says Quinn. “The jury will disregard the last part of the witness’s statement. Just answer the questions that are asked. Don’t volunteer anything,” the judge tells him.
“Yes, sir.”
Tuchio has an embarrassment of riches here. He’s not sure which one to pick next, so he goes back to the same fruit.
“Besides hitting Mr. Scarborough on the head”-he can’t say this one enough-“and dumping his body into a laundry cart and taking it down the elevator, did the defendant say anything else?”
“Yeah. He said we could take him out into the desert and shoot him.” This, coming from Gross, is worse than what is actually on the transcript from Henoch’s wire, because it sounds real. It is cast in the language of a credible threat.
To read the words in the transcript, it’s clear that Carl was bragging, turning macho phrases. “Hell, we could have his ass out in the desert tied to a post in front of a firing squad before he knew what hit him. Skin his ass before we shoot him.” I know this because the passage from the transcript is in my notes right in front of me on the table. But I can’t use it to cross-examine Gross, because neither the agent nor the transcript is in evidence. We made sure of that.
Around the edges of this testimony, it begins to settle on me that Tuchio isn’t angry at all. And he isn’t stupid. He has outfoxed us. If Gross was properly schooled, closeted for weeks and tutored, and it appears that he has been, he could in fact be more valuable than the transcript. Reading it, Tuchio must have realized that some of the verbatim language could actually become a burden. He also knew he couldn’t play games with the words if he had a government agent on the stand.
But with Gross he can paraphrase his way around the rough spots in order to smooth out his case.
As I sit here listening to him work us over with this witness, it suddenly dawns on me. Tuchio never wanted to call the agent in the first place. What he wanted was for us to take Henoch and his statement off the table, so that we couldn’t use him in our own case to prove discrepancies in Gross’s testimony. Now he is free to soar. Gross can say anything he wants, and unless we can shake him on cross, Tuchio is home free.
As the blood in my veins begins to chill, Tuchio and the witness take the jury for a verbal ride out into the desert, to the place the Posse called “the reserve”-the shooting range.
Gross tells the jury that somebody, he doesn’t know who, obtained large, poster-size photographs of Terry Scarborough and stapled them to targets, so that by the time he and Carl got to the range, some of the Posse members were already shooting at these with pistols and rifles.
Tuchio retrieves a copy of Perpetual Slaves, Scarborough’s book, from the evidence cart and shows the witness the picture of the author on the back cover.
Before he can even ask the question, Gross says, “That’s the one. That’s the picture they used.”
Now the jury has an image to go along with the words.
“Did you shoot at any of these targets, the ones with the victim’s picture on them?”
“No.” Gross is shaking his head earnestly. “I didn’t want to do that.”
“Why not?”
“I just didn’t want to do it. I didn’t think it was good. That’s all.”
Of course not, God forbid. Harry leans forward, looks past Carl to me, and rolls his eyes.
“Did Mr. Arnsberg shoot at any of the targets with the victim’s picture on-”
“Objection, Your Honor.” I am up out of my chair. “May we approach?”
Quinn waves us forward, off to the side of the bench.
“Your Honor, I’m going to object on the grounds of relevance. The victim wasn’t shot. This is being used for one purpose and one purpose only-to prejudice my client.” I cite 352 of the Evidence Code and tell Quinn that whether Carl shot at these targets or not, the issue has no probative value. It proves nothing. At the same time, the prejudicial effect on the jury is overwhelming.
Before I can even finish, Tuchio is over my shoulder. “Your Honor, it goes directly to the defendant’s state of mind. It’s in close proximity in point of time to the murder. It supports the theory of rage, and there has already been testimony on that.”
Quinn puts up a hand. He’s heard enough. “Gentlemen, we could split fine hairs on this one. And I could allow it to come in. It’s the kind of thing that reasonable minds can disagree on.” He’s whispering over the edge of the bench at the side away from the jury. “But I have to worry what the three figures in black who sit above me might do with it when and if they see it.” He’s talking about the appellate court. He looks at Tuchio. “You don’t want to have your case reversed on this, and neither do I.”
It’s one thing to have the feeling yourself, but when the judge says this, it becomes clear: Quinn senses that my client is going down.
“The wisest and safest course at this point is not to allow it. I’m going to sustain the objection. I think you should move on to another subject, Mr. Tuchio.” He sends us back out.
Gross is looking around as if he’s not sure whether to answer the question. Even though Tuchio never got a chance to finish it, the witness knows what it is. No doubt they have practiced it enough times.
As soon as I sit down, Carl is in my ear. “What happened?”
“Don’t worry about it. It’s okay,” I lie.
Tuchio is back, centered in front of the witness again. “Let’s leave the shooting range for the moment. Let’s go back to the tavern. To the Del Rio,” he says. “You testified earlier that the defendant talked to you and made statements regarding a possible kidnapping of the victim, Terry Scarborough, is that correct?”
“That’s right.”
“That he said he could hit the victim over the head and dump him into a laundry cart.”
“Yes.”
Tuchio thinks for a moment.
“During your meeting with him that day at the tavern,” he says, “back at the Del Rio, besides kidnapping, did the defendant ever say anything else to you, anything that you thought that was in any way…Let me rephrase this.”
Tuchio seems to be having trouble here, trying to change gears in a ham-handed way, and I’m wondering why, if he’s back at the Del Rio, he didn’t remember to bring whatever it is up earlier.
“When you were there at the tavern, at the Del Rio, did the defendant, Mr. Arnsberg, ever tell you how he might gain access to Mr. Scarborough if in fact Mr. Scarborough was in his room at the hotel behind a locked door?”
“Yes, he did.”
“And what was that?”
“At one point he was talking about how he had access. How he could get into rooms at the hotel real easy because he could get a master key.”
Carl’s sitting next to me, shaking his head, whispering, “I never said that.”
