I turn back to the jury. Now I must tread carefully. You would think, with the Jefferson Letter and the samples of hair contained in the manila envelope, that this would be a slam dunk. But it is not. Unless this is carefully presented, gingerly handled, the outlining of this evidence, the convenient fashion in which it landed in our office may produce the very result hoped for by Tuchio-skepticism and the feeling among jurors that they are being manipulated, that Carl or someone he knew delivered this to our office.
So I back into it and tread lightly.
“You have already seen and heard evidence by the state’s expert, Mr. Prichert, that investigators and police crime-lab technicians failed to discover that something was missing, taken from the victim’s hotel room in the minutes following Mr. Scarborough’s murder.”
I remind them of the shadowed leather portfolio, shaded in the victim’s blood, and the item missing from the top of it, and I tell them that this is further evidence of a shoddy investigation.
“Moreover,” I tell them, “we will produce evidence explaining to you, showing you, what that mysterious missing item was. Additionally, we will produce evidence that the item in question was not found by police in the possession of the defendant following his arrest, but that it was found elsewhere, during the time that this trial has been ongoing. And, ladies and gentlemen, I will warn you that the contents of this item will shock you.”
Now I have their attention, which for the moment is all I want.
As I turn, Tuchio is smiling at me. He senses the problem we are having with this evidence, and he is enjoying it. As the saying goes, “Beware of Greeks bearing gifts.”
“In addition to the mysterious missing item, you have seen and heard evidence from Mr. Prichert regarding samples of hair found at the murder scene, in the bathroom and between the cushions of the chair in which the victim was seated when he was murdered.
“According to the testimony produced by the state, by the prosecutor, these hair samples, none of which match the defendant’s hair, are simply random strands of hair deposited by former hotel guests or employees.
“But we will produce evidence that this is not so. We will present evidence here in this courtroom, conclusive evidence that at least three of these strands of unidentified human hair found by police evidence experts at the scene, hairs none of which match the defendant’s, that these hairs are directly and conclusively linked to the mysterious missing item taken from the victim’s hotel room in the minutes after he was murdered.”
Harry and I decided last night, near midnight, in the conference room that we had no other choice during our opening statement but to build our case around the Jefferson Letter, to keep veiled its contents, to hang everything from this enigma like a Christmas tree, and to ignore for the moment the manner in which the letter came into our possession.
To tell a jury in so many words in our opening statement that it was slipped under our door in the middle of the night by an unknown messenger is to invite disbelief on a nuclear scale.
We are banking on two things. If we are careful, we can control the order of evidence and testimony as it comes in. We can lay groundwork with the credibility of our witnesses to dull, to an extent, the natural suspicion of how this evidence was acquired.
The second thing we are counting on is the shock effect of the Jefferson Letter itself. While you always want to keep a jury in suspense, the stunning contents of the Jefferson Letter-what it says and what it means-are a dynamic unto themselves. That, and the timing with which this is delivered, is critical.
“Finally,” I tell them, “you will see evidence in the form of a videotape that will explain to you the importance, the significance, of the mysterious item taken from the victim’s room in the moments after he was murdered.”
This is vague, and left vague for a reason.
“When you have heard all the testimony, and seen all the evidence, I believe you will finally understand why Terry Scarborough was killed and that the defendant Carl Arnsberg had nothing to do with this crime. I believe that the evidence will show and that you will come to understand that the murder was committed for other reasons, by another perpetrator, and that the motive for this murder was connected to the mysterious missing item-the item that you will see and hear about, here in this courtroom, because we, the defense, will present it to you in evidence.”
I look them in the eye, slowly, from one end of the jury box to the other, in silence. I am six or seven feet back, just in front of the six alternates seated outside in front of the jury railing.
“I ask you to watch and wait, to keep an open mind, to listen to the testimony, and to look at the evidence. Because I believe that the evidence will show that the killer of Terry Scarborough is not in this room today. He is elsewhere. I ask you to look carefully, because if you do, the evidence will reveal the shadowed figure of this killer as he moved through the hotel room that morning, around the body of Terry Scarborough, to reach out and to snatch the missing item from the top of that leather portfolio. Look carefully, ladies and gentlemen, look very carefully, because if you do, you will see…the shadowed hand of a murderer at work. Thank you.”
25
The problem we are having is with the video, the reason for the fuzzy reference in my opening.
Early in the morning, before our opening statement, the judge entertained argument in chambers as to whether he might allow the restaurant video showing Ginnis and Scarborough huddled over the table talking, along with Teddy Nons’s transcript of their conversation.
Tuchio argued that nothing has changed, that there was no foundation for the video, since we still cannot prove when it was made or who made it.
Harry and I argued that the video should come in for the limited purpose of further verifying that the letter spattered with blood is in fact the same item that Scarborough unfolded on the table as the two men were talking. We now have a video expert prepared to testify that freeze-frames of this video, processed by computer and magnified, show that the letter laid out on the dining table at the restaurant is identical to the first of the four pages in the Jefferson Letter delivered to our office.
The comparison is exact, right down to ink smears in the writing and shadows in the margins showing the edges of the original letter where it was copied. Audio comparison of Scarborough’s voice patterns from the restaurant video have also been matched with known videotaped interviews of the author, so that there is now no question that it is in fact Scarborough who is seated across from Ginnis on the video.
Once the video is in, even for this narrow purpose, Tuchio knows that the game is up. With images of the letter open on the table, and all the furtive looks and glances from Ginnis, even if the jury doesn’t know who he is and can’t hear his words, they can fill in the blanks, ghost killer on the half shell.
Quinn has reserved judgment on whether the video can come into evidence for the limited purpose of further verifying that the copy of the letter was in Scarborough’s possession. It’s a long shot, but he wants to think about it. And Harry and I certainly want to give him the time.
What we did convince the judge to do was to allow us to use the video of the Leno show, the interview with Richard Bonguard, Scarborough’s literary agent, talking about the letter and its presumed importance, even though Bonguard claimed never to have seen the letter himself. Bonguard still has not returned to his office. He is obviously hiding out, waiting until the smoke clears. The foundation for this video can be laid by a production coordinator for the show who will testify as to when and where the video was made and who the participants were.
The fact that everything on the program video is hearsay, since none of the participants are here to be cross-examined, doesn’t seem to bother Quinn. For the moment it allows me to make my opening statement, including vague allusions to a video while at the same time permitting the judge more time to consider whether he will allow us to use the real video, the one with Ginnis in the hot seat.