“And the waiter with the tray arrives at the door.” This is a hypothetical much more to Detrick’s liking. I can tell, because if he had a mustache at this moment, he’d be twisting the ends. “The victim might open the door, let the waiter in, return to his chair, and find himself in the same situation as in your hypothetical,” he says.
“And the hammer?” I ask. “Where was that, in your version?”
“Under a garment,” he says, “same as yours. Or perhaps on the tray under a napkin.”
“Ah, but then how do you explain the tray outside the door?” I ask. “From the blood spatter, we know the tray wasn’t on the table at the time of the assault.”
“Well, after the door was opened and the victim turned back to his chair, the perpetrator, a waiter in this case, would have had plenty of time. He could have put the tray down on the floor out in the hall, before he ever actually stepped into the room.” He looks at me. Try that hypo on for size.
“So let me get this clear. The door is opened by the victim. Let’s assume he looks through the peephole before he opens it.”
“Sure, he would naturally do that.” Detrick is being as helpful as possible now that he sees me headed down into a pit.
“The victim sees your hypothetical waiter standing just outside in the hall, holding the tray,” I say.
Detrick’s nodding, leaning forward in his chair, body language urging me on. I can tell he wants me to say it, to draw the mental image of how my client did the deed, right in front of the jury.
“Victim turns, goes back to his chair. By then the waiter has placed the tray with the food on the floor in the hall.” I run through it.
“Exactly,” he says.
“I take it your hypothetical waiter is by now holding the hammer, presumably in his right hand?” All the little details.
“I would assume so,” says Detrick.
“Then he steps inside the room.”
He’s nodding.
“He closes the door.”
“Yesss.” He says it like a serpent hissing.
“And so that I understand your version clearly, is it here, inside the entry with the door closed, the victim just a few feet away, that your hypothetical waiter stops, lays down the hammer, and puts on the raincoat?”
This, the raincoat that no one has mentioned since it was pulled from the evidence bag and identified for the jury, falls on Detrick like a lead anvil. A lesson in why you never want to wing it in front of a jury on a theory of how the deed went down. Unless it is carefully thought out and analyzed, more often than not, you will end up choking on the details.
Harry and I had spent four days going over every scenario of the murder that we could conceive. We made cardboard cutouts, each one representing an item of evidence, and played them like game pieces, running them through a printed maze set out on separate pieces of large poster board. Each board represented one of the possible theories of how Scarborough was murdered, like prepping for a final in law school. The instant Detrick opted for the theory of the invited waiter, I knew he was dead. Harry and I had already done it and ended up holding the cardboard cutout that read “Plastic Raincoat.”
The next time some wizened old judge tells you that trying any case is 5 percent theater and 95 percent preparation, you would be wise to believe him-or to find another line of work.
On the stand, Detrick hems and haws. He has stepped in it, but still, what happens next is something you don’t usually expect from an experienced witness. He makes it worse.
I’m halfway back to the counsel table, getting ready to move on to another point, when he says, “It’s entirely possible, in my scenario, that the hypothetical waiter could have been wearing the raincoat when he arrived at the hotel-room door.”
This last desperate surmise allows me to wander through a field of dreams on horseback, dragging Detrick behind me over every sharp, jagged edge that it presents.
It’s one thing to theorize that my client, Carl Arnsberg, wearing a raincoat, slipped into Scarborough’s room in silence using a key when no one was looking. But the picture of a waiter in white livery carrying a tray, arriving at the door, knocking while he’s all decked out in a clear, thin, plastic tarp with sleeves, something large enough to cover a pup tent, is quite another matter.
I make the point verbally in front of the jury. Then I ratchet up the notion of this house of horrors for Detrick by going visual. I have the clerk pull the raincoat and open it in front of the jury. It may say size small on the collar, but you wouldn’t know it from the parachute of plastic now crinkling noisily in front of the jury box.
Even if Scarborough were in the middle of a mind meld, he would have to do a double take on any waiter showing up at his door wearing this, and he wouldn’t have to look into a darkened television screen to see it, or for that matter hear it.
Harry, who is a cerebral vacuum cleaner when it comes to examining evidence, told me a month ago, right after he saw the plastic raincoat, that we could run riot through Tuchio’s case, at least for a day or two. In Harry’s words, “Anyone trying to slip up behind Scarborough wearing that may as well have on a cowbell.”
Mercifully for Detrick, who would like to crawl under his chair, the judge allows only one more question before we break for the day.
“Let’s get back to my original hypothetical,” I tell him. “If the killer was someone Scarborough knew, presumably coming in from outside the hotel, wearing that same plastic raincoat in June in San Diego, where early-summer mornings are often shrouded in fog, sometimes light drizzle, isn’t it probable, isn’t it more likely, that that person wouldn’t draw a second look from anyone, including the victim?”
Detrick has the look of a whipped dog. By now it doesn’t matter what he says. The answer is so obvious that half the jurors probably don’t even hear it. He shifts in his chair, his chin pressed down into his chest, and he mumbles: “I suppose it…”
The court reporter misses it. She makes him say it again.
“I said, I suppose it’s possible.”
14
The next morning on my way to court, I find Harry waiting for me out on the sidewalk a half block from where I park my car. He’s all smiles. From the look on his face, I can tell he’s not standing there waiting to talk about the weather.
“Figured you’d be coming this way,” he says. “I’ve got some things here I think you’re going to want to see.”
He pulls several pages from his briefcase and hands them to me one at a time as we stand out on the street. “I found them about two o’clock this morning, going through the stacks on the conference table.” They’re computer printouts. Harry has been plumbing the depths of Scarborough’s computer memoranda.
The first item is an e-mail, very brief, three quick sentences, no salutation. “Regarding the item of which we spoke last week, I am informed that I will require access to the original. A copy will not do. Please reply.” It is signed T. Scarborough and dated eighteen months ago.
I look at the e-mail address in the “TO” box at the top. It is addressed to Aginnis@scotus.gov.
“What’s this?” I point to the address.
“Supreme Court of the United States,” says Harry. “It’s Arthur Ginnis’s e-mail address at the Court. Next,” he says. Harry hands me another page.
It’s another e-mail missive from Scarborough to Ginnis. “Regarding my message of the 18th, I have received no reply. I assume it is possible to gain access to the original? As I stated previously, a copy does not satisfy the requirements of my third party. Please reply as soon as possible.”