Steve Martini - Shadow of Power

Herman looks the prosecutor in the eye. “I don’t understand the question,” says Herman. “So why don’t you just say what you mean? Get it on the table,” says Herman.

“Fine,” says Tuchio. “How do you know that the evidence in that envelope wasn’t put there by one of the lawyers in your own office, or by someone associated with or related to the defendant, Mr. Arnsberg?”

“Because I have known Mr. Madriani and Mr. Hinds for years, and I know that neither of them would ever do such a thing, that’s how I know.”

“But what you’re saying is based on faith,” says Tuchio, “not fact. You believe they wouldn’t do it, but you don’t know that?”

“Are you asking me?”

“Yes.”

“I know it. Maybe you don’t,” says Herman.

The jury laughs.

“I’ll have to ask you to forgive my natural cynicism,” says Tuchio. “It comes from years of prosecuting cases.”

“That’s all right, I forgive you,” says Herman.

A little laughter from the audience and more from the jury box.

Tuchio steps away from the witness. He ponders for a moment, and when he stops, he ends up at the evidence cart. He returns to the witness. He is now holding the clear plastic bag containing the Jefferson Letter. He holds it up, and he asks Herman, “Do you know what this is?”

Herman nods. “Yeah. It’s the pages that Mr. Madriani took out of that envelope on Monday morning.”

“That’s not my question. My question is, do you know what the document is?”

“I know what it’s called,” says Herman.

“Objection, Your Honor.”

“I haven’t asked a question yet,” says Tuchio.

“Ask your question,” says the judge.

“If you know, can you please tell the jury what this document is called?”

“Objection. Exceeds the scope of direct, Your Honor.”

“Sustained,” says Quinn.

One of the rules of the road on cross-examination, a lawyer cannot ask questions that go beyond the bounds of the subject matter raised by his opponent during direct examination of the witness. Since I have not asked Herman or any other witness to tell the jury what the letter is called or to disclose any of its contents, Tuchio cannot simply pull this question out of his hand and play it like a trump card on cross.

He puts the bag with the letter down on a table near the witness. Herman glances at it, the item for which we have laid a quest for months, and Herman still doesn’t know what it says. He has hinted a few times that his curiosity is burning. But Herman says he understands. He is confident there must be good reasons Harry and I are keeping the contents of the letter to ourselves. Still, it would take the spirit of a saint not to feel like the odd man out after all we’ve been through.

Then Tuchio edges into whether Herman feels awkward testifying on behalf of a defendant, a client with the kinds of associations of Carl Arnsberg, “the Aryan Posse,” he says.

“I do my job,” says Herman. “That’s what it means to be professional.”

“But it doesn’t bother you? You never think about that.”

“No.”

This doesn’t work, so Tuchio goes back to basics.

“You say Mr. Madriani and Mr. Hinds wouldn’t be responsible for putting that envelope under the door, but what about Mr. Arnsberg? What about the defendant?”

Herman looks at Carl. “You’re asking me my opinion?”

“Sure.”

“I don’t think he would do it either.”

What else can Herman say?

“To save his life, you don’t think Mr. Arnsberg would have a friend or a relative-let’s leave Mr. Madriani and Mr. Hinds out of it-”

“Thanks for the courtesy,” says Harry.

The jury laughs.

“Not at all,” says Tuchio.

He turns back to the witness. “You don’t think that to save his own life, Mr. Arnsberg would have a friend, someone he knows, slide that envelope and the contents under his lawyers’ door? Is that what you’re telling this jury?”

“If you’re asking me my opinion, my answer is no, I don’t.”

Whether the jury will believe this, who knows? But the fact that Herman would say it, knowing Carl’s native inclinations and his prior associations…And then suddenly, with this thought halfway through the cortex of my brain, I realize where Tuchio is going.

“Would you tell the jury what that opinion is based on? Your considerable opinion of Mr. Arnsberg?”

“Your Honor, I’m going to object. This exceeds the scope of direct. The witness is not here as a character witness. He’s here solely for the purpose of refuting the false implication raised by Mr. Tuchio that the witness refused or declined to testify because he was supposed to have some secret knowledge about that envelope, which he does not.”

“Nah, nah, nah. Bring it up here,” says Quinn.

We end up at the side of the bench.

“Your Honor, this witness was brought in here for a very narrow purpose, and Mr. Tuchio knows it. If he wants to cross-examine the witness as to what he saw in the office that day, the day the envelope was opened, fine, but getting into the defendant’s character is way off base.”

“The witness is on the stand,” says Tuchio. “He’s testified as to what he says he saw when the envelope was opened. He claims he never saw any of it before. Now he says he doesn’t believe that Mr. Arnsberg would have anything to do with slipping it under the door or having friends do it. That’s all fair game,” he says. “And I have the right to test the witness’s credibility, Your Honor.”

“Objection overruled,” says Quinn.

Just like that, we’re back out. Tuchio is one of the craftiest lawyers I’ve ever met. We didn’t deliver the right witness to him this morning, so he baited us, laid inferences that we were compelled to refute so that he could get Herman in here on the stand. I know where he’s going, and there’s nothing I can do about it.

“Where was I? Oh, yes. You stated that you don’t believe that Mr. Arnsberg would have anything to do with putting that envelope under your office door. Is that correct?”

“That’s right.”

“What is that opinion based on? Your considerable opinion of Mr. Arnsberg?”

“You get to know someone. You talk to them. You generally get a feel for them.”

“Intuition?” says Tuchio.

“If you want to call it that.”

“Let me ask you, how well do you know Carl Arnsberg?”

“I don’t know. I’ve known him for some months now.”

“Have you ever gone to his house for dinner?”

Herman looks at him and smiles. “He’s been in jail since I met him. You know that.”

“Of course. Have you ever been to his parents’ house for dinner?”

Tuchio plays the racial divide.

“Can’t say as I have.”

“Have you met his parents?”

“I’ve talked to Carl’s father. I don’t think I’ve ever met his mother.”

“Have you ever met any of Carl’s friends, his associates?” Tuchio smiles as he says this.

You can see where he is taking it, and there are a dozen intersecting avenues once he gets there. Set Herman up and ask him about the Posse, Carl’s buddies. Oh, and by the way, what do you think they might do to you if they got you out on the reserve alone? If that doesn’t get the witness’s juices flowing, Tuchio will trout out the “traitor to your race” theme.

“I don’t think I ever met any of his friends,” says Herman.

“So, during the course of your investigation, your work on this case-You have done work on this case?”

“Some,” says Herman.

“During the course of that work, you never had occasion to interview any of the friends or associates of the defendant?”

By now Herman has seen it and scoped out the terrain.