opening statement before the jury but from most of the evidence so far presented by any of your witnesses.”
The prosecutor pounces on a word. “I would agree that it is missing from most of our evidence,” says Tuchio. “But not from all of it.”
What he wants to know is whether the judge will allow him to venture into the realm of multiple killers before the jury in his closing argument.
Harry and I are looking at each other wondering if Tuchio has been smoking something. But given the ways in which he has burned us so far, I’m not willing to take any more bets.
“Fine, you want to argue on that narrow basis, be my guest,” says Quinn.
Tuchio has his answer.
Just before noon, with the jury in a holding pattern, we get the answer regarding the Jefferson Letter. Forensics experts, employees of the police crime lab, together with our own expert, agree. There is no question that this letter, the four pages from the manila envelope, is the item that was resting on the shadowed leather portfolio at the moment Scarborough was killed.
We end up in Quinn’s chambers again. He wants to know if, based on this information, Tuchio wants to reopen his case for the prosecution.
All morning the prosecutor has been closeted with his assistant, Janice Harmen, and Detrick, the lead homicide detective.
The judge seems surprised when Tuchio says no, they’re prepared to go on as is.
Quinn asks me if I’m ready to present my opening statement. I tell him that I’m not prepared to give the jury the full outline of our case until the results from the comparison of hair samples comes back from the lab. This is not expected until later in the afternoon.
The judge excuses the jury and tells me to be ready with my opening statement first thing in the morning.
Just after four o’clock in the afternoon, Harry and I are secluded in the conference room at the office going over notes to make sure that I hit all the high points in my opening, when the news arrives by telephone.
It is Robert Stepro, our expert on hair and blood-spatter evidence. Harry puts him on the speakerphone.
Stepro tells us that when Dewey Prichert, the state’s expert on hair and fiber, opened the tiny plastic bag from the manila envelope at the police crime lab, he extracted and counted five blond hairs. Microscopic examination revealed that all five had been cleanly clipped from their owner’s head, probably with a pair of scissors. All five samples from the baggie belong to the same person.
And then the clincher, based on examination and findings, by both Prichert and Stepro: The characteristics of the five blond hair samples from the baggie are a positive match to the two blond hairs found lying free, under the toe kick in the bathroom of Scarborough’s hotel room. In addition, they match the one bloodstained blond strand of hair lifted from the crevice between the cushions in the chair where Scarborough was murdered.
It is just shy of 9:20 Wednesday morning when I find myself standing in front of the jury box in Plato Quinn’s crowded courtroom. Every seat is filled, and there is a line outside in the hallway that stretches beyond the elevator at the far end of the corridor.
“Ladies and gentlemen of the jury. My name is Paul Madriani. As you already know, my partner, Harry Hinds, and I represent the defendant, Carl Arnsberg.” I point to Harry, who nods and smiles, and then to Carl, who nods and waves one hand.
“You have heard and seen a good deal of evidence to this point in the trial. But you have not heard or seen all the evidence in this case. When all the evidence is before you, you will be instructed by the judge regarding the law that you must apply in evaluating that evidence.
“Among the items of instruction that you will be given by the judge are two fundamental and important rules. First is that the defendant is to be presumed innocent until and unless his guilt is established by the prosecution, by Mr. Tuchio, based on proof beyond a reasonable doubt.
“The second fundamental rule is that the defendant in this case bears no burden of proof. He is not required by law to offer or to produce a single item of evidence establishing his own innocence. To the contrary, his innocence is fixed by law, established by law unless and until the state, the prosecutor”-I point at Tuchio with my arm fully extended-“can overturn the presumption of innocence by carrying his burden, proof beyond a reasonable doubt.
“I could, if I wished, sit down at this moment and rest our case. And I could argue that my client should be freed, acquitted, found not guilty. But I am not going to do that, because we have evidence, considerable evidence-some of you might call it abundant evidence-evidence that you have not seen, that will not only establish reasonable doubt in your minds as to the defendant’s guilt, but evidence that will allow you to see the shadowed hand of the true perpetrator of this crime.”
I move laterally in front of the jury box now, the six alternates seated outside and just in front of it.
“So what is the defendant’s case, his case in his own defense?”
I begin to outline it for them.
I start with the rush to judgment, the fact that there has already been considerable evidence and that there will be more evidence that the police conducted a shoddy investigation. I remind them that they have already heard evidence from Detective Detrick, the lead homicide detective, that from the start the police pursued no suspects other than the defendant. I remind them that the police fell on Carl the moment they found his fingerprints and shoe impressions at the scene, this despite the fact that the defendant, along with other hotel employees, had a business reason for being in or near the vicinity of the victim’s room.
“Objection, that last is argument,” says Tuchio.
“Overruled,” says the judge. “The jury can decide.”
I turn back to the jury. Now I must tread carefully. You would think, with the Jefferson Letter and the samples of hair contained in the manila envelope, that this would be a slam dunk. But it is not. Unless this is carefully presented, gingerly handled, the outlining of this evidence, the convenient fashion in which it landed in our office may produce the very result hoped for by Tuchio-skepticism and the feeling among jurors that they are being manipulated, that Carl or someone he knew delivered this to our office.
So I back into it and tread lightly.
“You have already seen and heard evidence by the state’s expert, Mr. Prichert, that investigators and police crime-lab technicians failed to discover that something was missing, taken from the victim’s hotel room in the minutes following Mr. Scarborough’s murder.”
I remind them of the shadowed leather portfolio, shaded in the victim’s blood, and the item missing from the top of it, and I tell them that this is further evidence of a shoddy investigation.
“Moreover,” I tell them, “we will produce evidence explaining to you, showing you, what that mysterious missing item was. Additionally, we will produce evidence that the item in question was not found by police in the possession of the defendant following his arrest, but that it was found elsewhere, during the time that this trial has been ongoing. And, ladies and gentlemen, I will warn you that the contents of this item will shock you.”
Now I have their attention, which for the moment is all I want.
As I turn, Tuchio is smiling at me. He senses the problem we are having with this evidence, and he is enjoying it. As the saying goes, “Beware of Greeks bearing gifts.”
“In addition to the mysterious missing item, you have seen and heard evidence from Mr. Prichert regarding samples of hair found at the murder scene, in the bathroom and between the cushions of the chair in which the victim was seated when he was murdered.
“According to the testimony produced by the state, by the prosecutor, these hair samples, none of which match the defendant’s hair, are simply random strands of hair deposited by former hotel guests or employees.
“But we will produce evidence that this is not so. We will present evidence here in this courtroom, conclusive evidence that at least three of these strands of unidentified human hair found by police evidence experts at the scene, hairs none of which match the defendant’s, that these hairs are directly and conclusively linked to the mysterious missing item taken from the victim’s hotel room in the minutes after he was murdered.”
Harry and I decided last night, near midnight, in the conference room that we had no other choice during our opening statement but to build our case around the Jefferson Letter, to keep veiled its contents, to hang everything from this enigma like a Christmas tree, and to ignore for the moment the manner in which the letter came into our
