“This was followed,” says the witness, “by a savage attack involving multiple blows with the murder weapon to the top or crown of the victim’s head, the rear at the base of the skull, as well as the lower right side of the victim’s head around the right ear and just behind it.” The medical examiner will give chapter and verse, the details of all this. “For this reason,” says Detrick, “we conclude that the assailant was right-handed.”
This of course includes 90 percent of the world, including our client. “In addition,” says Detrick, “we believe, based on the patterns of blood-spatter evidence and the various locations where this was found, that at some point in the attack-and most probably from its very inception, including the initial blow to the victim’s head-that the perpetrator used both hands to wield and swing the murder weapon, the hammer.”
I look over, and Harry is staring back at me. Unless Carl has a secret life that includes juggling in a circus act, the cops have just abandoned any notion that he was holding the tray while swinging the hammer. So how did the tablecloth and tray get on top of the blood they found on the table? While I can dream, it is not possible that they could have missed this.
“Based on the evidence at the scene, blood spatter on a small table testified to earlier, we believe-it is my opinion-that the perpetrator then proceeded to put into place what he thought was a carefully contrived cover story by retrieving a tray of food and a tablecloth which we suspect he may have left outside the hotel room’s door, probably on the floor in the hallway.”
This is neat, since every hallway in every hotel has a few trays on the floor outside rooms, and therefore no one walking by would notice.
“Based on the evidence, it is my opinion that these items-the tablecloth, tray, and food-were brought inside the room and carefully laid on a table a few feet from the body of the victim after the crime was committed.”
This is how they explain away the presence of the food, the tray, the tablecloth, and Carl’s explanation of how he came to be in the room. The cops have always had two problems here. Explaining away the blood on top of the table and the absence of blood on top of the tray and tablecloth was only part of it. Even if they could somehow sweep away the blood evidence, how could they possibly explain to the jury how Carl could enter the room, waltz behind Scarborough sitting in the chair, set the table that was off to the side, and then walk back and nail Scarborough from behind with the hammer? Harry and I have scratched our heads over this one for months. We thought it was possible they might argue that Arnsberg did just that-set the table, got behind, and somehow distracted the victim, perhaps with the meal check to be signed. In the chair, while he was writing and looking down, Scarborough would have been a perfect target. But the meal check was still on the tray when the cops found it, unsigned and pristine, with no blood on it. Detrick’s explanation, a story that in one fell swoop takes care of all this, is the kind of result-oriented theory that causes your average cynical and jaded defense lawyer to wonder if just maybe his client isn’t telling the truth after all.
“Based on the evidence,” says Detrick, “at some point we believe that the perpetrator became startled, panicked, and ran, and that during this flight his shoes picked up substantial quantities of blood from the carpet in the area surrounding the chair and the victim. This blood was then transferred to the tile floor in the entry as he exited the carpeted area, resulting in two shoe impressions.” The witness points at the location on the diagram.
“This, coupled with a quantity of blood already accumulating on the tile floor in the entry area, caused the perpetrator to slip and fall, resulting in what appears to be the skid mark here”-Detrick points at the chart-“as well as the finger-and palm prints left on the tile.” He points again to the diagram. “Based on the evidence from the scene, it is my opinion that the raincoat worn by the perpetrator at the time of the crime failed to cover or shield his entire body, so that portions of his clothing made contact with the victim’s blood when he fell.”
This is the final stroke. Tuchio’s witness has tied it all up in one neat package. They will argue that the reason Arnsberg left work and ran home without telling anyone is that he had blood on his clothes, something he hadn’t planned for in the original scheme. Tuchio will tell the jury that Carl simply didn’t think fast enough to come up with the story that he ultimately told the cops, the one he related to Harry and me during our meeting at the jail when he admitted to the slip and fall.
This brings the prosecutor to the final order of business with this witness, Carl’s statement to the police the day they arrested him.
Detrick establishes that they Mirandized the defendant, told him that he was entitled to legal counsel, that a lawyer would be appointed if he couldn’t afford one, that he had the right to remain silent, but that anything he said could be used against him. Then they asked him if he wanted to talk.
Of course, by that time Carl was a veritable motormouth, his jaw jacking with every little detail of what he saw and what he did, right down to the slip and slide in the entry hall, everything out on the table so that the police could understand and give him a lift home as soon as possible.
For their part, the cops were measuring the size of the swastika on the inside of his forearm and wondering how hard it would be to get photos of this, or better yet the real thing stretched out and nailed to the top of the jury railing, where the twelve good citizens could study it, a picture being worth a thousand words and all.
The statement in the form of a transcript, questions and answers, is in essence chapter and verse what Carl told Harry and me at the jail-the tray up on his shoulder as he backed into Scarborough’s room, tented under the tablecloth. This along with vigorous denials each time the interrogators, Detrick and his partner, accused him of killing Scarborough. During their questioning they also got into the issue of the bloody pants and shoes. At one point Detrick asked Arnsberg why he simply didn’t burn them, drop them off a pier into the ocean, or toss them into a Dumpster somewhere, where they could not be found. Carl gave him a simple answer, one so hapless and unvarnished that it might just pass for the truth. Carl told the cops that he couldn’t destroy his clothes, because he couldn’t afford to buy new ones and he needed them for work.
It’s one of those ironic situations that can crop up in a trial. As a rule you never want a client to say squat to the cops anytime, anyplace, about anything. But in this case I’m not at all certain that Tuchio would introduce this statement, as there is virtually nothing in it that is incriminating, unless they can punch holes in it with their later witnesses. It also provides us with the argument that, armed with advanced knowledge of the defendant’s explanation for his conduct, the state then reverse-engineered the theory of its case to account for every detail of Carl’s story. Detrick’s reconstruction is just a little too neat.
The reason Tuchio brings the statement in is that he knows if he doesn’t, he can be sure that I’ll ask Detrick about it on cross-examination, in which case Carl’s words would take on much more credence, the inference being that the prosecution was trying to hide them.
While neither Tuchio nor I can be certain how this will play out in front of the jury, one thing is sure: The D.A. cannot cross-examine the printed statement as he could with Carl if I were to put him on the stand. All in all, it may not be such a bad way for Carl to get his story in front of the jury.