Tuchio had better hope not, because if he is, he has just rung the bell for a mistrial, in which case we can all go home, including Carl, at least until Tuchio charges him again.
“No, no, not at all.” Tuchio’s hand is up like a traffic cop’s. “Not at all. I’m not saying that. What I am saying is that there is evidence already in the state’s case that the defendant himself spoke in ways that might lead a reasonable person to conclude that others may have joined him in the commission of the crime. That’s all I’m saying.”
This is the seam, as narrow as it is, that Tuchio wants to crawl through.
You can bet that this sudden parsing of the language off the tripping tongue of Charlie Gross is not something that has sprung from the cortex of Tuchio’s nimble mind as we sit here. He has probably been up all night praying that the letter and the hairs in the envelope are a hoax, while periodically measuring the depth of the crater he’s in if they’re not. He is testing the judge to see if Quinn will go for it, if the court will allow him to argue on close, despite the state’s earlier theory that Carl acted alone, that there may have been two perpetrators, Carl and a blond person whom apparently they have not been able to identify.
He explains to the judge that this could make sense-that is, if he can just pound all the little parts that are sticking out into place, so that they fit into his own case, the goal being the continued march toward the death house for Carl.
“Don’t you see, Your Honor? The defendant’s blond confederate was probably the one who slipped the envelope under their office door,” he says.
This is, of course, more polite than suggesting that we opened the door and that Blondie handed it to us, along with a lengthy explanation of what it was.
But as Quinn says, “All this”-Tuchio’s sudden sighting of a second killer-“is strangely missing not only from your opening statement before the jury but from most of the evidence so far presented by any of your witnesses.”
The prosecutor pounces on a word. “I would agree that it is missing from most of our evidence,” says Tuchio. “But not from all of it.”
What he wants to know is whether the judge will allow him to venture into the realm of multiple killers before the jury in his closing argument.
Harry and I are looking at each other wondering if Tuchio has been smoking something. But given the ways in which he has burned us so far, I’m not willing to take any more bets.
“Fine, you want to argue on that narrow basis, be my guest,” says Quinn.
Tuchio has his answer.
Just before noon, with the jury in a holding pattern, we get the answer regarding the Jefferson Letter. Forensics experts, employees of the police crime lab, together with our own expert, agree. There is no question that this letter, the four pages from the manila envelope, is the item that was resting on the shadowed leather portfolio at the moment Scarborough was killed.
We end up in Quinn’s chambers again. He wants to know if, based on this information, Tuchio wants to reopen his case for the prosecution.
All morning the prosecutor has been closeted with his assistant, Janice Harmen, and Detrick, the lead homicide detective.
The judge seems surprised when Tuchio says no, they’re prepared to go on as is.
Quinn asks me if I’m ready to present my opening statement. I tell him that I’m not prepared to give the jury the full outline of our case until the results from the comparison of hair samples comes back from the lab. This is not expected until later in the afternoon.
The judge excuses the jury and tells me to be ready with my opening statement first thing in the morning.
Just after four o’clock in the afternoon, Harry and I are secluded in the conference room at the office going over notes to make sure that I hit all the high points in my opening, when the news arrives by telephone.
It is Robert Stepro, our expert on hair and blood-spatter evidence. Harry puts him on the speakerphone.
Stepro tells us that when Dewey Prichert, the state’s expert on hair and fiber, opened the tiny plastic bag from the manila envelope at the police crime lab, he extracted and counted five blond hairs. Microscopic examination revealed that all five had been cleanly clipped from their owner’s head, probably with a pair of scissors. All five samples from the baggie belong to the same person.
And then the clincher, based on examination and findings, by both Prichert and Stepro: The characteristics of the five blond hair samples from the baggie are a positive match to the two blond hairs found lying free, under the toe kick in the bathroom of Scarborough’s hotel room. In addition, they match the one bloodstained blond strand of hair lifted from the crevice between the cushions in the chair where Scarborough was murdered.
It is just shy of 9:20 Wednesday morning when I find myself standing in front of the jury box in Plato Quinn’s crowded courtroom. Every seat is filled, and there is a line outside in the hallway that stretches beyond the elevator at the far end of the corridor.
“Ladies and gentlemen of the jury. My name is Paul Madriani. As you already know, my partner, Harry Hinds, and I represent the defendant, Carl Arnsberg.” I point to Harry, who nods and smiles, and then to Carl, who nods and waves one hand.
“You have heard and seen a good deal of evidence to this point in the trial. But you have not heard or seen all the evidence in this case. When all the evidence is before you, you will be instructed by the judge regarding the law that you must apply in evaluating that evidence.
“Among the items of instruction that you will be given by the judge are two fundamental and important rules. First is that the defendant is to be presumed innocent until and unless his guilt is established by the prosecution, by Mr. Tuchio, based on proof beyond a reasonable doubt.
“The second fundamental rule is that the defendant in this case bears no burden of proof. He is not required by law to offer or to produce a single item of evidence establishing his own innocence. To the contrary, his innocence is fixed by law, established by law unless and until the state, the prosecutor”-I point at Tuchio with my arm fully extended-“can overturn the presumption of innocence by carrying his burden, proof beyond a reasonable doubt.
“I could, if I wished, sit down at this moment and rest our case. And I could argue that my client should be freed, acquitted, found not guilty. But I am not going to do that, because we have evidence, considerable evidence-some of you might call it abundant evidence-evidence that you have not seen, that will not only establish reasonable doubt in your minds as to the defendant’s guilt, but evidence that will allow you to see the shadowed hand of the true perpetrator of this crime.”
I move laterally in front of the jury box now, the six alternates seated outside and just in front of it.
“So what is the defendant’s case, his case in his own defense?”
I begin to outline it for them.
I start with the rush to judgment, the fact that there has already been considerable evidence and that there will be more evidence that the police conducted a shoddy investigation. I remind them that they have already heard evidence from Detective Detrick, the lead homicide detective, that from the start the police pursued no suspects other than the defendant. I remind them that the police fell on Carl the moment they found his fingerprints and shoe impressions at the scene, this despite the fact that the defendant, along with other hotel employees, had a business reason for being in or near the vicinity of the victim’s room.
“Objection, that last is argument,” says Tuchio.
“Overruled,” says the judge. “The jury can decide.”