“Three months!” says Quinn.
“Yes. About ninety days.” For some reason this seems to sound better to Tuchio.
“And you disclosed the existence of the agent when?” says the judge.
Tuchio coughs a little, covers it with the back of his hand, and says, “Friday, Your Honor.”
“Last Friday?”
Tuchio nods.
Quinn nearly blows a fuse. “There are cases on point,” says the judge.
“Not with regard to collateral crimes, Your Honor. We’ve checked the cases.” Tuchio wants to split legal hairs with the judge, who looks as if he’d like to lean across the desk and smack him.
“I see,” says Quinn. “So you want to make a new law and have me reversed on appeal in order to do it, is that it?”
“No, Your Honor. That’s not what I’m saying.”
“Lemme get this straight,” says Quinn. “You have a law-enforcement officer, part of the government-albeit the federal government, not somebody playing under your own tent-and he’s in the middle of your case.”
“By sheer circumstance, Your Honor. The D.A.’s office had no idea.” Janice Harmen tries to draw some of the heat off of Tuchio.
“I appreciate that,” says the judge. “But just so I understand, you have statements made by the defendant, statements against penal interest made in the presence of this agent. You want to bring those statements before the jury to show the defendant’s state of mind prior to the commission of the crime.”
Tuchio is nodding.
“And you failed to disclose the fact that the witness is a federal agent until three days ago?” says the judge.
“That’s it,” says Tuchio.
“Not in my courtroom,” says Quinn. “What do you have to say to this, Mr. Madriani?”
Why should I interrupt Tuchio’s train wreck? I’m about to tell Quinn that I second his motion, that he shouldn’t sully his courtroom, but Tuchio cuts in before I can say anything.
“First of all, Your Honor, all the defendant’s statements were made prior to the commission of the crime. There is no question of Miranda here, no need to caution the defendant, because there was no focus of suspicion. The crime had not yet been committed.”
Quinn looks at him, that death stare again. “Tell me something I don’t know,” he says. “What I’m concerned about, Mr. Tuchio, is the fact that the witness carries the mantle of government on his shoulders, a material fact withheld from the defense in the preparation of their case.”
Tuchio finally tells the judge that while the witness Walter Henoch’s name appeared on the prosecution witness list, and while his statement was disclosed, the consent of the federal government for the witness to actually testify, to appear at trial, had been granted only four days earlier, on Thursday afternoon, the day before the prosecutors delivered the disclosure to our office.
Both Justice and the FBI, seated on the couch, confirm this. They tell the judge that the witness was part of an active, ongoing undercover investigation and that disclosure was hampered by serious concerns for the personal safety of their agent.
Harry was right. It’s an eleventh-hour deal.
This takes some of the edge off the judge. Though Quinn is still not completely mollified, his sense of indignation goes back in the box.
“I can appreciate that,” says the judge. “Still, there are questions of fundamental fairness that have to be discussed.” He turns to me. “Did you have any idea that you were dealing with an agent of the government?”
“We had no formal notice of any kind until Friday,” I tell him. This is not exactly responsive to the question he asked. Harry and I had guessed that there was too much polish to Henoch’s typed statement, so that there was little doubt that somebody was wearing a wire, but as to the FBI we were blind.
“Well then, I guess we’re down to the question, what do you want to do about it?” He puts this to me.
“I would move to suppress the witness’s statement, Your Honor, and request an opportunity to prepare points and authorities.”
Out of the corner of my eye, I can see that Tuchio is jumping up and down arguing that suppression is an overkill, given that the witness and his statement were disclosed.
As Tuchio argues, my gaze wanders the room. It doesn’t require clairvoyance to pick out the man in the middle, the one with the occasional pained expression like a sudden attack of gas whenever the prosecutor turns a new argument, the guy with his head in a vise.
Welcome to the wonderful world of bureaucracy. You can bet that the FBI agent seated on the couch has never found himself in this position before-locked up in chambers in some judge’s courtroom, pulling for the defense in a criminal case.
He sits there quietly watching as his superiors in Washington, who want to make sure they aren’t caught off base, without political cover in the event of a riot following the trial, flush his investigation by outing his undercover agent. And that’s if the Aryan Posse doesn’t kill Henoch before he can testify.
“Your Honor, I have an alternative.” Tuchio finally gets to his punch line. He wants to confer with the FBI and the Justice Department for a moment. They huddle at the couch, murmuring. I can see the agent’s face. At first he seems not to understand what Tuchio is proposing. When he finally gets it, he has another attack, only this one is major, and overt. The agent is sitting there shaking his head, trying to argue with the attorney sitting next to him. It takes a few seconds, but the lawyer from Washington has the final word. He silences him.
Tuchio turns back to the judge. “Your Honor, I would propose that the witness be allowed to testify but that there be no statement or disclosure to the jury that the witness is an agent of the government or involved in any way with law enforcement. It makes perfect sense,” says Tuchio. “It conforms to our earliest disclosure of the witness and his statement.” Then he gets piggy. “In return,” he says, “we would ask that the defense refrain from mentioning or disclosing to the jury the prior convictions of our other witness, Charles Gross.” He sort of slips this in sideways, as if his proffered concession on the agent weren’t being forced.
“That’s not going to happen,” I tell the judge. “Unless-”
“I don’t think so, either,” says Quinn.
“Fine,” says Tuchio, “forget the second part. Gross’s prior record can come in.”
“Unless what?” The judge is looking at me.
The prosecutor’s offer is a bad deal for us any way you cut it. Under Tuchio’s proposal the state has two corroborating witnesses. With Henoch’s testimony, every t crossed and i dotted, and with Gross on the stand later to confirm as much of it as he can remember, it won’t matter that Henoch’s badge is covered up and that Gross’s prior record is out on the table in front of the jury. The details of Henoch’s testimony and the confidence with which he delivers it will kill us. Jurors can smell credibility, and Henoch-or whatever his real name is-will reek of it.
“I have a different proposal, Your Honor. The prosecution presents their testimony through a single witness, Mr. Gross. In return, the defense would refrain from disclosing the witness’s prior convictions.” Then I add the sweetener. “The undercover agent, Walter Henoch-who I assume is already under subpoena?” I look to Tuchio.
“He is.”
“Mr. Henoch will refuse to testify and accordingly will be jailed for contempt.”
At first Tuchio shakes his head and laughs. It takes a second or two before he turns and looks at the FBI agent, a simpering expression on his face like, Why in the hell would we jail one of our own?
But by then the FBI agent is already burrowed deep in the ear of his compatriot from Washington, talking fast enough that you might swear he was going to chew right through to the ear on the other side.