Steve Martini - Shadow of Power

“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.”

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.”

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.