Charlie Gross has a rap sheet showing three felony convictions in the last ten years. That’s the good news.
The bad news is that Walter Henoch has another first name. It is “Agent,” as in FBI. Henoch was in fact wired, and unless we can catch his secretary making typographical errors in the transcription of the tape, every word emanating from our client’s mouth during his meetings with Henoch is, as they say, gospel.
Harry and I both knew as soon as we saw the typed witness statements that it was highly likely that one of the two witnesses was wired for sound. We figured it was Henoch, because his signed statement reads like a screenplay, with everything but stage direction. We were hoping that at worst we might be dealing with a snitch, a member in good standing with the local Nazi club who was rolled by authorities and agreed to wear a wire. An FBI agent is another matter.
“It’s bad,” says Harry, “but there may still be some wiggle room.”
“What do you mean?”
“Well, I’ve been thinking about it all night. I almost called you last evening, but I figured I would let you sleep.”
“Thanks.”
“Don’t mention it,” he says.
“So what’s your point?”
“The disclosure by Tuchio in the sealed envelope delivered late yesterday. Why do you think he waited so long?”
“I don’t know. Tell me.”
“Tuchio has to know we’re going to raise hell with the judge,” says Harry.
“You bet. First thing Monday morning,” I tell him.
“So why didn’t he lay it on us earlier?” says Harry. “We guessed there was a wire. He had to know there was an agent.”
“What are you getting at?”
“I don’t think Tuchio knew until very late in the game, maybe as late as yesterday, whether the FBI would cooperate.”
These are the kinds of tea leaves most people might try to read. Harry, it seems, can smell them.
“Think about it,” he says. “You’re the FBI. You got your man burrowed deep in the bowels of some hate group. He’s taken a lot of risks, and you’ve taken a lot of time and effort to get him there. Suddenly a local prosecutor, with a dead body in a hotel room, discovers some of the affiliations of his principal suspect.”
“Carl and the Aryan Posse,” I say.
Harry nods. “It wouldn’t be hard for a diligent prosecutor to find out that, say, a local state-federal task force had penetrated the group.”
“Go on.”
“Tuchio was throwing the dice. Can you imagine the smile on his face when he found out how lucky he was, that of all the people in the local chapter of the Third Reich, Walter Henoch had selected our boy Carl to take under his wing in the bar that day?”
“True enough,” I say.
If Tuchio was having any second thoughts about his rush to judgment in charging Arnsberg, Carl’s chat with Henoch and his enthusiasm for kidnapping and target-shooting at the victim would have eased his conscience.
“Hell,” says Harry, “I’m surprised after reading Henoch’s statement that Tuchio didn’t file a motion to skip the trial, go right to execution, and ask for an order shortening time.”
“But you’re thinking the FBI was not hot to trot?”
He’s shaking his head. “Murder isn’t a federal rap,” says Harry, “even if it takes place in the Presidential Suite of a five-star hotel. Their job is protecting their agent and making sure their investigation stays on track. So here they sit, the FBI and Tuchio, eyeball to eyeball. The feds have a tape and a transcript of three men talking, two possible witnesses. You can be sure they tried to feed Charlie Gross to Tuchio. They would have offered him the transcript of the tape and Gross’s testimony.”
“But the transcript wouldn’t come in,” I say.
“Right,” says Harry. “Because Gross couldn’t lay a foundation for it. He couldn’t testify as to the wire, because he wasn’t wearing it and he didn’t know about it. So if that became the deal, the best Tuchio could do was try to have Gross memorize what was in the transcript, vomit it up in court, and hope we didn’t find out about it. Or he could rely on Gross’s memory of the conversation in the bar. Of course, Gross was probably drunk that night, and being a three-time loser, you have to figure he’s likely to have the IQ of a paper clip.”
“Plus the felony convictions. We could impeach him,” I say.
“So from every angle you have to admit that this would not be a good deal for Tuchio. He would have gone from the elation of an FBI agent in his hand, the knowledge that he could break our back, to the realization that he was going to have to sit through two months of memory courses with Quasimodo and then pray that Gross could get through it all without having to untie strings from each of his toes while he was on the stand. Bust his balloon,” says Harry. “But let’s not feel too sorry for him. After all, somewhere along the way he managed to pull the chestnut out of the fire. He’s back up to an FBI agent. That’s why we got the disclosure so late, yesterday afternoon,” he says.
I look at Harry. “It would take a while to get through all the little rabbit warrens back at Justice in D.C. Of course, when you have a few thousand people jumping up and down out in front of the courthouse, it doesn’t take a lot to imagine them lighting torches to burn a city or two if the jury were to deliver a result they don’t like.”
“Yeah, I’d bet that’s the kind of optimistic thinking Tuchio would have laid on them,” says Harry. “With that thought you’re bound to be able to stick your foghorn in somebody’s ear in Washington.”
“The question is, what exactly did the Justice Department tell Tuchio? How much rope did they give him? How firmly does he have Henoch in hand?”
18
Monday morning Harry and I hook up at the same corner where we’d parted company Friday afternoon, two blocks from the courthouse. We may be dressed in Armani and wearing cordovan loafers, but inside is that age-old feeling you had in the fifth grade on the way to school when you knew your homework wasn’t done. We are no closer to spinning a defense than we were a month ago.
Outside on the street in front of the courthouse, the crescendo has quieted considerably. The helmeted riot squad is now down to a handful, bracing themselves against their scuffed acrylic shields like farmers leaning on hoes while they talk.
The mob carnival, what’s left of it, is not even a shadow of the beast from the first day. There are a few signs, one small group, maybe twelve or fifteen, walking in a circle chanting some mumbled mantra-St. Apathy’s Order of Indifferent Monks. A few teenagers in baggy pants, their belts down at knee level, are laughing and cavorting, gangsta wannabes, jumping from the steps trying to get on camera. In front of them with their backs to the kids, a line of reporters like victims at a firing squad stand erect, talking into an opposing line of cameras.
It is difficult to sustain the fighting morale of a fevered following when the bone over which you’re snarling turns into cerebral, scientific evidence. Still, Harry and I know that the armies of Hannibal and the Carthaginians will be back, and in full war paint, just as soon as they hear that a jury is about to boot the ball through somebody’s goalpost.
Tuchio brings on the medical examiner, Dr. Dwight James. The courtroom is filled to overflowing. Judge Quinn warns family members and friends of the victim that they may wish to leave the room, for there will be lurid descriptions and graphic images.
Here things get much worse, for the reason that the M.E. brings along his own set of photos, pictures from the autopsy he performed on Scarborough at the morgue.
While Harry and I fought tooth and nail to keep most of these out, at some point the judge threw up his hands and admonished us once more that after all there was a crime and it involved a dead body.