Steve Martini - Shadow of Power

Herman is busy checking the boxes, seven of them stacked against the wall near his end of the defense table. These transfer cases with lids on them contain the materials delivered early this morning, documents and other evidence we may need during trial.

I lay my briefcase on the table. Herman lifts his head out of one of the boxes and turns to look.

“You come in through that mess outside?” he asks.

I nod.

“People got nothin’ better to do,” Herman mumbles to himself, his head going back halfway into one of the boxes. “You see all that crap back at the office? Damn truckload. That stuff have to come over here, too?”

“I won’t know until Harry goes through it all.”

“Yeah, Harry’s up to his ass,” he says.

Harry is back at the office pawing through boxes of printed data from Scarborough’s computers. Tuchio dumped all of it on us this morning at eight o’clock, when a small van backed up to the sidewalk out in front of our office and unloaded boxes of documents. How long the D.A. has had these is uncertain, but Tuchio can prove that it was all printed within the last forty-eight hours. Of that he made sure.

It’s all part of the game of modern litigation. Try your case while your opponent pushes a mountain of paper over on top of you.

“Excuse me, Counselor.”

I turn. Tuchio is behind me, smiling, his radiance. He approaches from across the divide, the space that separates the two counsel tables. This morning he is decked out in his best power suit, blue pinstripes and a club tie, starched cuffs with gold links. Marching behind him as if in lockstep is his female deputy and the detective Brant Detrick.

Detrick I know. Tuchio makes a short introduction, and we shake hands. Herman comes over. I introduce him.

Then Tuchio presents his assistant. “I’d like you to meet Deputy District Attorney Janice Harmen.”

“District attorney?” I say. “Have I missed something? We aren’t on appeal yet, are we?”

Tuchio laughs just a little. “Ms. Harmen is on loan. She’ll be with my office for the duration.”

She shakes my hand with a firm grip, no limp fingertips. Brown eyes, smooth coffee-colored complexion, her hair long to the shoulders with a slight wave. As she lets go of my hand, she looks me dead in the eye. The message is clear: woman on the rise. She intends to make her bones on my client.

“So how are you doing?” Tuchio stays and talks. His assistants return to their table. There’s something almost longing in the way Tuchio approaches you, as if he were actually earnest about making a new friend.

“Frankly, I’d be doing a lot better if my partner wasn’t back at the office picking through piles of paper we should have had two weeks ago,” I tell him.

“Oh, that. Yes, I know. I do apologize for the lateness. But there was nothing I could do. I got the stuff myself only late yesterday afternoon.”

“Is that right?”

“Absolutely,” he says. He looks almost hurt that I should question this, then glances over his shoulder. “Janice.” In the hum of the courtroom, a reporter is leaning over the railing talking to the deputy DA. “Janice.” This time he says it louder. He gets her attention. “Can you get me a copy of that certificate? You know, the one from IT.”

She nods and breaks away from the reporter, turns around and goes fishing in one of the sample cases under their table. These cases are commonly used by lawyers to carry heavy legal volumes and books.

“We got the materials to you as soon as we could,” says Tuchio. “Our IT guys tell me there was hell to pay lifting the documents from Scarborough’s hard disks. To begin with, there was a ton of material. I suppose you could figure that, the man being a writer. But some of it was old, archived on his computers but using software that’s been off the market for ages. I’m no computer buff, but-”

Before he can finish, Janice is at his shoulder with a piece of paper. He takes it, looks at it briefly, then hands it to me.

It is an affidavit prepared by the police department’s forensics lab and signed by one of their techs, showing the date they started working on Scarborough’s computer hard drives. According to the affidavit, they started more than a month ago, only to run into endless problems.

Tuchio tells me that Scarborough used three different word-processing programs over the years. Something called WordStar, Word-Perfect, and finally Word.

“That made it hard enough,” says Tuchio. “Some of the older versions of these programs aren’t supported any longer. Nobody sells them. I assume nobody uses them anymore either.” He leans over and looks at the affidavit with me. “See, right here.” He points to the paragraph where his technicians verify this.

“I assume your people have heard of ASCII?” I ask him. That’s the thing about trying cases-you tend to learn a little bit about a lot of things, sometimes just enough to get you in trouble. ASCII is a common machine language usually readable from PC computers. Most documents, if they’re the product of an obsolete program, can still be converted into ASCII and from this printed into text.

“I don’t know what that is,” says Tuchio. “You obviously know more about this than I do. But whatever it is, that wasn’t the biggest problem.”

“So what was?”

“Scarborough must have been at least a little paranoid,” he says.

“Why do you say that?”

“Because everything in his computers was hidden behind a zillion passwords, and according to our technicians, he knew how to make them, the passwords, letters and numbers,” says Tuchio, “nothing simple. Our IT people had to run software day and night for almost two weeks trying to crack ’em. They’d unlock one, only to run into another. Well, there it is,” he says. “Now you have everything that we have.” He smiles and then starts to turn to leave.

“Are you sure your people got everything that was on the hard drives?” I ask.

“Um…” He turns back, thinks for a moment, then offers a slight shrug. “Why do you ask?”

“I just want to be certain.”

“Can any of us ever be sure of anything? They tell me that they were very thorough. But if you think we may have missed something, you’re free to have your experts examine the drives. We can make arrangements. Do you want them?”

“Let me look at the materials first, and then I’ll let you know. In the meantime you will preserve the drives?”

“Of course.” He shakes my hand one more time. “Good luck,” he says. “You can keep that.” He smiles and taps the affidavit in my hand, then turns and heads back to his counsel table. Tuchio knows that at this moment he has knocked me off balance. I make a mental note to send him a letter confirming our conversation regarding the computer drives, with a copy to the court.

With the affidavit showing that the prosecutor did everything in his power to produce the materials from Scarborough’s computers, any complaint by our side to the court asking for time to review the documents would be fruitless. With the jury impaneled and mobs in the street, the judge will tell me to read this mountain of paper while the state puts on its own case.

The prosecutor has done one better. He’s gone out of his way to plant a small seed of confusion in our case, hoping, no doubt, that we will be distracted, waste time, perhaps chase this thing down some dead-ended rabbit hole. He has posed a question with no answer: Why would Scarborough, who wrote books to be published so that the whole world could read them, bother to conceal everything he wrote behind an infinite array of passwords?

Every seat is now filled. The overflow is sent back outside the courtroom to stand in line and wait for those with weak kidneys to start giving up their seats.