Kevin also brings some case law research he did last night after getting my message. It relates to previous rulings that the courts have made concerning efforts to penetrate WITSEC; that is, to get them to reveal specific information about people in their program.
The agency has been notoriously loath to provide anything, which in most cases makes perfect sense. Their protection efforts depend on total secrecy; it is by definition a matter of life and death.
The crucial difference here is that the death has already occurred. There is obviously a logical problem in protecting someone who has already been murdered, and we need to use that as a wedge to find out what we need to know.
Kevin could find no specific case law directly on point. Just as it makes little sense to try to protect a dead witness, there has been little reason over the years for people to want to learn who those already dead witnesses might be.
We kick around our options, and though it’s obvious that we must go to Judge Gordon, our key decision revolves around timing. The prosecution presumably knows nothing about this, and anytime we know something that they don’t, it is a distinct advantage that is not lightly discarded. Once we go to the judge, then Hawpe will know what we know.
Which is not such a big deal, because we don’t know a hell of a lot.
Kevin and I come to the same conclusion: We need to go to Judge Gordon immediately. If we can get definitive information that Stacy Harriman was in the witness protection program, the impact on our case will be immeasurable. If such dangerous killers were after her that she had to start a new life to escape them, then reasonable doubt about Richard’s guilt can’t help but kick in.
We’ve had two days’ worth of witnesses, but this case really starts tomorrow.
* * * * *
“YOUR HONOR, STACY Harriman was not Stacy Harriman.”
That is how I start the meeting in Judge Gordon’s chambers. Present are only the judge, Hawpe, a stenographer, and myself.
“What does that mean?” he asks. “Who was she?”
“That’s what we need you to find out,” I say, and then lay out chapter and verse of what we have learned about Stacy’s faked background. I leave out the other areas of government intervention, like the phone tap and the FBI’s taking over the highway shooting case. To me that stuff adds credibility to our argument but might take the case on an unnecessary tangent.
I conclude with “I have consulted an expert in the field, and the only reasonable explanation that I can come up with is that she has been in the WITSEC program.”
“And you’re asking me to subpoena the information from the U.S. marshals?”
I nod. “Yes, Your Honor. And to hold a hearing if they refuse to comply.”
“Mr. Hawpe?”
“Your Honor, first I would like to assure you that this is the first I’ve heard of this, so my reaction is an initial one. But I do not believe that the court should become an arm of the defense, to be used to conduct what seems on its face to be a fishing expedition.”
I shake my head in disagreement. “If it is a fishing expedition, all evidence to the contrary, then no harm is done, and only a little of the court’s time is wasted. If, on the other hand, it is true that Stacy Harriman’s life was being protected by the U.S. marshals, then that is of monumental importance to Richard Evans’s defense and to the search for the truth.”
Judge Gordon nods slightly and turns back to Hawpe. “And your objection is merely a desire to be protective of the court’s time?”
Hawpe says, “That and the possible impact of unfounded speculation like this on the jury.”
Judge Gordon makes his decision. “I’ll contact the U.S. Marshals Service immediately and, if necessary, issue a subpoena.”
He goes on to impose a gag order, prohibiting either side from mentioning this to the press. I have no problem with that now, but if we don’t get the information, I’ll press to have it lifted.
Judge Gordon delays the start of the trial for one hour so that he can attend to this. I’m very pleased with his reaction; he completely understands the importance of the issue.
When the trial resumes, Hawpe’s first witness is Lou Mazzola, the night manager of the pier where Richard kept his boat. He was on duty the night that Stacy was murdered, and he testified that he saw Richard and Stacy on the boat as it was leaving.
Mazzola’s sole purpose is to place Stacy on the boat, and I have no desire to refute it, because I know it to be true, and others will say the same thing. Nevertheless, it offends my defense attorney’s sensibility to let him get away without my accomplishing anything.
“Mr. Mazzola, were Mr. Evans and Ms. Harriman alone that night?”
“They had their dog with them.” It’s a fact that Hawpe conveniently forgot to bring out on direct.
“Was that unusual?”
“No, he was with them pretty much every time.”
“What kind of dog was it?”
“A golden retriever. It’s the one I saw on television last month.”
I can’t help but smile; Mazzola has just made an important point for our side, that Reggie turned up alive recently. I can only hope that he still is.
Hawpe doesn’t want to object, because the statement has already been made, and because he doesn’t want a fight over Reggie’s identity. The court has already made a ruling about that at the hearing.
“So you’re certain the dog was with them that night?”
“Absolutely. I kept dog biscuits in my office, and I gave him one every time they were there, including that night.”
“Did you notice anything unusual about their actions that night? For example, were they unfriendly to you, or fighting amongst themselves?”
I know from the transcript of the first trial what his answer will be, and he says that he does not remember anything unusual at all.
“Could you see where the boat was docked from your office?” I ask.
“No. It was pretty far away.”
“So you weren’t watching the boat before they got there?”
“No. I had no reason to.”
“Could somebody have boarded the boat before them, and maybe hidden somewhere that they couldn’t be seen?”
Hawpe objects, but I say it’s a hypothetical, and Judge Gordon lets him answer.
“I guess so,” says Mazzola.
That’s good enough for me.
Hawpe calls two more witnesses, mainly for the purpose of placing Stacy on the boat, alone with Richard out at sea. In both cases, I’m able to demonstrate that they also saw Reggie and did not notice anything strange about Richard and Stacy’s behavior. Also, none of them were on the boat, so they would have had no opportunity to tell if someone was hiding.
I think Hawpe has made a mistake in calling these additional witnesses. Stacy’s presence that night is not in doubt, and the points I am making are damaging him, at least slightly.
After a break in the afternoon session, Judge Gordon suddenly adjourns court for the day and summons Hawpe and me into his chambers for another on the record session.