He says, “No.”
I ask him whether the police or the prosecutor have offered him anything in return for his testimony.
Again, his answer is no. To listen to him, Gross is just your average, ordinary citizen willing to take a bullet in order to tell the truth.
“Have they offered to put you in any witness-protection program following your testimony here?”
“You mean the police? No,” he says.
“Or any other level of government, including the federal government?” I ask.
He doesn’t answer. Instead his eyes make a beeline for Tuchio’s table.
“Bench conference,” says Tuchio.
Before we even get to the side of the bench, it’s clear what has happened. The feds have rolled Gross up in their investigation and eaten him like an enchilada. They won’t need any pending criminal charges to cut a deal and gain cooperation. And because there were no charges pending, Gross wouldn’t even have a lawyer. For the man who extended a friendly hand and invited the feds to join the Posse party, a few months in the club for Agent Henoch and a peek at his badge would turn Gross into jelly.
As soon as the rest of the Aryan world found out, they would chain Gross, tasseled loafers and all, to the back of one of their choppers and drag him between here and Alamogordo a few hundred times, just to make sure he had no additional handwritten notes on other body parts.
At the side of the bench, a smiling Tuchio explains to the judge that while the federal government has not in fact made any formal offer of protection to Gross, they have discussed the possibility of such an offer in the future.
Of course they have, just as soon as they squeeze every seed and all the pulp out of him. In the meantime they’ll have him tucked into a cave complex somewhere on the other side of the moon, reminding him every few seconds of just how dangerous the world is. No wonder he’s dried out and off drugs. In such an environment, there would be no need for a prosecutor or the cops to suggest anything by way of invention regarding Gross’s testimony. The thought of being turned into an asphalt sled tends to make the mind not only cooperative but highly creative. A few newspaper clippings about the case, the evidence at hand, and rumors of what’s to come and Gross could fill in the blanks. After all, you always want to keep the people who are keeping you alive happy.
Tuchio tells the court that any additional questioning along this line will compel the witness to disclose the existence of Agent Henoch and the government’s undercover investigation. Quinn agrees. This is out of bounds, and I find myself back in front of the witness exploring other areas of discussion.
These quickly dry up. Under questioning, Gross admits that he is one of the founding members of the Posse, but as he said earlier, this is all behind him.
He concedes that Carl was not formally a member of the Aryan Posse. But then, as if to take this back with the other hand, he adds that the defendant was called on several occasions and invited to attend Posse events.
“Whenever he was invited, he always seemed to show up at these events. And he enjoyed himself,” says Gross.
If I go any further along this line, I will invite Tuchio on redirect to get into these outings and to explore whether perhaps the Posse was into late-night cross burnings and hooded gatherings. Tuchio would then tell the jury that this would explain the nature of the rage visited on Scarborough’s body.
So I turn to the only thing left that is available, Gross’s invention on the stand.
“Mr. Gross, let me ask you a question. Haven’t you ever heard people use the phrase ‘I’ll hammer him’ or ‘I’ll hammer them’ as a figure of speech, something someone might say in a kind of macho way?”
“No.”
“Seriously? You’ve never heard it used like that?”
He shakes his head.
“You have to answer out loud,” says the judge.
“No. I already told him.”
“Come on, Mr. Gross, surely you’ve been around enough bars that you’ve heard people use that term before?”
“I don’t think so,” he says. “Not till I heard your client say it.”
“Have you ever watched a baseball game, Mr. Gross?”
“Yeah.”
“Have you ever heard an announcer say after a home run, ‘He really hammered that ball’?”
“I don’t know. If I heard it, I don’t remember it,” he says. Gross isn’t going to give an inch on this.
“Well, let me ask you then, have you ever heard anyone say, ‘I’m gonna nail him’?”
“Oh, I’ve heard that,” he says.
“Well then, let me ask you, when you heard that ‘I’m gonna nail him,’ did you really think that the person who said it was actually going to go out and get a nail and nail it or drive it into the person he was talking about?”
“Probably not,” he says. “But I never heard anybody say ‘I’m gonna hammer ’im’ before I heard him say it.”
“Your Honor, may the record reflect that the witness is referring to the defendant?” says Tuchio.
“So ordered,” says the judge.
“Since you watch baseball-You do, don’t you?”
“Sometimes,” he says. “Not very often.”
“I suppose it is pretty hard to balance that forty-inch screen on your motorcycle when you’re out there riding with the Aryan Posse, isn’t it?”
“Objection,” says Tuchio.
“It’s a fair question, Your Honor.”
Quinn smiles. “Overruled. You can answer the question.”
“I’ve never done that,” says Gross.
“When you were a kid, when you were growing up, I assume you watched baseball then, maybe even played it a little?”
“Then I did, yeah.”
“Good. Then you must remember a player-because he was big-time, very famous, well known, a major home-run hitter. In fact, he held the record for most career home runs for many years. A player named Hank Aaron?”
“Yeah.”
“Well then, you must remember his nickname?”
“No.”
“You don’t remember Hammerin’ Hank Aaron?”
He looks at me. “Yeah, but he was hittin’ baseballs, not heads,” he says.
“Move to strike, Your Honor.”
“Strike the witness’s last statement,” says Quinn. “The jury will disregard it.”
“Your Honor, we have no further use for this witness.” I turn and start back toward my chair.
“Mr. Tuchio, any redirect?” says the judge.
“No, Your Honor.”
“The witness is excused,” says Quinn. “Then we can either think about a break, or perhaps if it’s short, you can call your next witness.”
“Your Honor, the people have no further witnesses. The state rests its case.”
With Tuchio’s words my knees nearly buckle under me as I’m heading toward the table. The look on Harry’s face matches my own-thinly veiled terror. Wednesday, not even the end of the day, a week early, and Tuchio wraps his case. Quinn will expect my opening statement to the jury in the morning, outlining our evidence, our theory, and what we intend to prove. Without some way to talk about the shadowed leather and the missing letter, we have no case.
In the judge’s chambers, we argue tooth and nail, asking Quinn, begging him for time.
“Mr. Madriani.” Quinn is holding up both hands, palms out. “I warned everyone at the beginning of trial, no delays, no continuances.”
We make an offer of proof, I tell him about the letter and what we know, the information from Trisha Scott and Bonguard, Scarborough’s agent.
Quinn remembers seeing the videotape of Bonguard’s appearance on Leno. He has vague recollections regarding the mention of some historic letter, but nothing more.
Tuchio is sitting on the couch against the wall, relaxed, taking the whole thing in, watching Harry and me bleed all over the judge’s desk. If he is surprised by any of the information regarding the missing Jefferson Letter, you wouldn’t know it by looking at him. He doesn’t even look up when I mention the name Arthur Ginnis, though Quinn does a double take.