“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.
26
Quinn 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?”
