possession.
To tell a jury in so many words in our opening statement that it was slipped under our door in the middle of the night by an unknown messenger is to invite disbelief on a nuclear scale.
We are banking on two things. If we are careful, we can control the order of evidence and testimony as it comes in. We can lay groundwork with the credibility of our witnesses to dull, to an extent, the natural suspicion of how this evidence was acquired.
The second thing we are counting on is the shock effect of the Jefferson Letter itself. While you always want to keep a jury in suspense, the stunning contents of the Jefferson Letter-what it says and what it means-are a dynamic unto themselves. That, and the timing with which this is delivered, is critical.
“Finally,” I tell them, “you will see evidence in the form of a videotape that will explain to you the importance, the significance, of the mysterious item taken from the victim’s room in the moments after he was murdered.”
This is vague, and left vague for a reason.
“When you have heard all the testimony, and seen all the evidence, I believe you will finally understand why Terry Scarborough was killed and that the defendant Carl Arnsberg had nothing to do with this crime. I believe that the evidence will show and that you will come to understand that the murder was committed for other reasons, by another perpetrator, and that the motive for this murder was connected to the mysterious missing item-the item that you will see and hear about, here in this courtroom, because we, the defense, will present it to you in evidence.”
I look them in the eye, slowly, from one end of the jury box to the other, in silence. I am six or seven feet back, just in front of the six alternates seated outside in front of the jury railing.
“I ask you to watch and wait, to keep an open mind, to listen to the testimony, and to look at the evidence. Because I believe that the evidence will show that the killer of Terry Scarborough is not in this room today. He is elsewhere. I ask you to look carefully, because if you do, the evidence will reveal the shadowed figure of this killer as he moved through the hotel room that morning, around the body of Terry Scarborough, to reach out and to snatch the missing item from the top of that leather portfolio. Look carefully, ladies and gentlemen, look very carefully, because if you do, you will see…the shadowed hand of a murderer at work. Thank you.”
25
The problem we are having is with the video, the reason for the fuzzy reference in my opening.
Early in the morning, before our opening statement, the judge entertained argument in chambers as to whether he might allow the restaurant video showing Ginnis and Scarborough huddled over the table talking, along with Teddy Nons’s transcript of their conversation.
Tuchio argued that nothing has changed, that there was no foundation for the video, since we still cannot prove when it was made or who made it.
Harry and I argued that the video should come in for the limited purpose of further verifying that the letter spattered with blood is in fact the same item that Scarborough unfolded on the table as the two men were talking. We now have a video expert prepared to testify that freeze-frames of this video, processed by computer and magnified, show that the letter laid out on the dining table at the restaurant is identical to the first of the four pages in the Jefferson Letter delivered to our office.
The comparison is exact, right down to ink smears in the writing and shadows in the margins showing the edges of the original letter where it was copied. Audio comparison of Scarborough’s voice patterns from the restaurant video have also been matched with known videotaped interviews of the author, so that there is now no question that it is in fact Scarborough who is seated across from Ginnis on the video.
Once the video is in, even for this narrow purpose, Tuchio knows that the game is up. With images of the letter open on the table, and all the furtive looks and glances from Ginnis, even if the jury doesn’t know who he is and can’t hear his words, they can fill in the blanks, ghost killer on the half shell.
Quinn has reserved judgment on whether the video can come into evidence for the limited purpose of further verifying that the copy of the letter was in Scarborough’s possession. It’s a long shot, but he wants to think about it. And Harry and I certainly want to give him the time.
What we did convince the judge to do was to allow us to use the video of the Leno show, the interview with Richard Bonguard, Scarborough’s literary agent, talking about the letter and its presumed importance, even though Bonguard claimed never to have seen the letter himself. Bonguard still has not returned to his office. He is obviously hiding out, waiting until the smoke clears. The foundation for this video can be laid by a production coordinator for the show who will testify as to when and where the video was made and who the participants were.
The fact that everything on the program video is hearsay, since none of the participants are here to be cross- examined, doesn’t seem to bother Quinn. For the moment it allows me to make my opening statement, including vague allusions to a video while at the same time permitting the judge more time to consider whether he will allow us to use the real video, the one with Ginnis in the hot seat.
Thursday morning, nine o’clock, and our first witness hits the stand. When you’re cruising through a magnetic minefield, it’s best to do so in a slow boat made of wood. So you might say that our opening witness is a bit dull- except for one thing: He can explain to the jury how the murder weapon, the hammer, found its way into the hands of the killer.
From the inception Tuchio and the cops have been welded to the theory that Carl possessed special access both to the victim in his hotel room and to the murder weapon, the hammer, because Carl had access to master card keys due to his job in the hotel. All their evidence has confirmed this-from Carl’s supervisor, who verified this fact and testified to it on the stand, to Carl’s own boasting and bravado at the Del Rio Tavern, where he bragged about having access to Scarborough because of master keys. It is one of the linchpins of their case, that only someone with access to the locked maintenance closet could have gotten the hammer. That pin is about to be pulled.
Wally Hettinger has worked for the Presidential Regis Hotel for almost eight years. He is a maintenance man, one of eleven people working around the clock to keep the hotel running smoothly and to repair any problems that may crop up twenty-four hours a day.
After he’s given his name and background and told the jury where he works, the first thing out of Hettinger’s mouth in response to a question is that the lock on the maintenance closet on the top floor of the Presidential Regis was broken. This is the place where the state claims the hammer was stored.
This is one item of evidence that catches Tuchio by surprise. Herman found the witness in the way Herman finds everything, by hanging around and talking to people, often people on the bottom corporate rungs.
“If you tried to turn the knob on the door, it would feel like it was locked,” says Hettinger. “But if you pulled on it, the door would open. It had been that way for a while.” He shrugs a shoulder. “The latch bolt on the lock didn’t quite meet the opening on the metal striker bar that fits in the doorframe. It’s a common problem on doors. It was a big problem at the hotel. You ask me, I think it’s a problem with the way they were manufactured-I mean the doors at the Regis.”
This draws an objection from Tuchio. “The witness is not an engineer or an expert on door manufacture.”
Quinn strikes the witness’s comment and tells the jury to disregard the bit about manufacturing problems.
“Were you required to repair hotel doors often?” I ask.
“All the time.” The witness tells the jury the doors were heavy, solid-core metal. “So over time gravity gets a hold, and they sag,” he says. “Either the screws in the hinges work loose and the door slides down a little-doesn’t take much, eighth of an inch sometimes is all-or else sometimes just the screws in the top hinges come loose and the door will lean a bit in the frame. Either way,” says Hettinger, “the bolt from the lock won’t hit the opening in the striker right, and the lock won’t catch. In which case the door may look closed, but it’s not locked.”
“Why didn’t you fix it? The maintenance closet door, I mean?”
I can see Tuchio and Detrick at their table poring over my witness list trying to find Hettinger’s name buried in all the chaff. Six hundred names in all. We stuck him somewhere in the middle, so that if they started checking them out, working from either end, Hettinger might be the last they would get to.
“I had that door on a list for repair,” he says, “but it wasn’t priority. Guest rooms are priority.”
“Did you tell the police that the lock on the maintenance-closet door was broken?”
