“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.”
“And then he said, because he could get right up to him real easy, he said it would be real easy to hammer ’im.”
Out in the audience there is murmuring. What did he say?
“Were those his exact words?” asks Tuchio. “That he could hammer him?”
“That’s what he said.”
“That’s a lie!” Carl says it out loud now, and there is an eruption of voices in the audience. Two of the reporters in the front row break for the door at the back of the room.
Quinn slaps his gavel. “Keep your client quiet,” he tells me. Carl is pulling on my arm. He wants to tell me it’s a lie. But I already know it.
“Officer, stop those people right now,” says the judge. The two reporters stop dead in their tracks halfway up the main aisle. “Sit down,” says the judge. “You can file your stories during the break.”
Before Quinn can even put down his gavel, Tuchio turns to me and says, “Your witness.”
21
Quinn takes the noon break. I ask for a meeting in chambers, and all of us, the lawyers and the judge, end up hovering over his desk in the back.
“The man’s lying.” Harry’s had a bellyful of this. He’s leaning with both hands against the edge of the judge’s desk, bearing down on Quinn, who is seated in his padded black leather chair. “Look at the transcript of the wire,” says Harry. “There’s not a word in there about any of this, a master key or anything about hammering the victim.”
“You’ve got a good point, except for one thing,” says Quinn. “The wire transcript and the witness who was attached to them are not in evidence. As I recall, that was based on an agreement made right here in chambers by your partner, Mr. Madriani.”
“It’s one thing to keep evidence out,” says Harry. “It’s another to suborn perjury.”
“I resent that,” says Tuchio.
“Resent it all you want,” says Harry. “How do you explain the fact that these inventions by your witness don’t appear on the wire transcript?”
“Very easily,” says Tuchio. “The agent, aka Mr. Henoch, who was wearing the wire, was not with Gross and your client during the entire time of their conversation at the bar. It seems he stepped out twice-once to go to the john and again to make a telephone call from his cell phone outside, because he couldn’t get reception in the bar. At least that’s what he told us.”
“And unfortunately, we can’t put him on the stand to ask him,” says Harry.
“That’s not my fault,” says Tuchio. He smiles.
Harry glances at the judge, who gives him a shrug.
“And I should remind you,” says Tuchio, looking at me now, “that I never asked the witness whether anybody else was present during the conversation at the Del Rio, and you better not either. If the wire transcript and the agent are off-limits, that means as far as the jury is concerned he doesn’t exist. Am I right, Your Honor?”
Quinn nods. “That’s correct.”
My turn in the tumbler with Gross on cross-examination reveals just how well Tuchio has trained him. I ask him how many times he has met with the prosecutor, his assistants, or the police to discuss his testimony before appearing here today.
“Quite a few times,” he says.
“How many is quite a few?”
“A lot,” he says. He can’t remember the number of times or the precise duration or location of all these meetings, but they were held at various places, including a hotel downtown where he admits that the state picked up the tab for four nights immediately preceding his testimony here.
I ask him why they put him up in the hotel.
“It was for security.” He smiles and just lays it out there like a land mine waiting for me to step on it.
If I probe further, what he’ll say is that he’s putting his life on the line and that he’s in danger from his former friends in the Posse because of his testimony today, the inference being, why would a man put his life in jeopardy just to come here and lie?
I ask him if he has any criminal charges pending against him in this state or any other state at the federal level or anywhere in the universe, now or at any time since the police started talking to him.