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 [email protected].
“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.”
“And it gets more interesting,” says Harry. He hands me a third e-mail. This time it’s a reply from the Court to Scarborough, with Scarborough’s second message appearing below it. But the reply is not from Ginnis. The name on the bottom reads “A. Aranda.”
“I write you on behalf of the Court. I have been asked to inform you that this site is for the conduct of official Court business only. If you have business of a personal nature, please direct it by way of ordinary mail to the following address.” What follows is a street address in Washington, D.C., with a box number after the street name.
“So what do you make of it?” says Harry.
“Looks like Scarborough was trying to do business with Ginnis, used the wrong conveyance, and he got his hand slapped.”
“Ginnis may have slapped his hand,” says Harry, “but he didn’t tell him to go away.”
For a minute or more, Harry and I stand there on the street studying the brief lines on the paper like analysts trying to decipher language in a diplomatic code.
“The word ‘original,’” says Harry. “I’ll give you ten to one that’s Scarborough talk for the J thing, Mr. Jefferson’s infamous letter. Remember what the gal in D.C. told you?”
“Trisha Scott.”
“She said Scarborough only had a copy of the letter. That’s why he needed the original, to authenticate it. It’s dead-on,” says Harry.
“She also said that Ginnis didn’t know anything about the letter.”
“Fortunately for you and me,” says Harry, “we never believe people.” We had already dropped both Trisha Scott’s name as well as the name Arthur Ginnis into the middle of our witness list of possibles to be called, just in case. At the moment Scott’s looking like an odds-on bet for a subpoena. Of course, there’s always the risky unknown, what she might say if you put her on the stand.
“What do you make of this?” says Harry. He’s pointing to language in one of the e-mails. “Scarborough’s asking for the original, and then he says, ‘As I stated previously, a copy does not satisfy the requirements of my third party.’”
Harry gives me a quizzical glance. “Is he trying to publish the letter, or is he trying to sell it?”
I shake my head. We need to move quickly.
“Tell Herman to hire a gumshoe in D.C.,” I say, “somebody he knows or a good referral. Have them find out what’s at this street address.” I point to the D.C. address on the Court’s e-mail reply. “And if it’s a drop box, who rents it. Also ask them to check out the name A. Aranda on a directory of the Court’s employees. I assume there must be one. If not, tell them to do whatever they have to, but find out. Tell them we need the information by tomorrow.
“This next item I don’t want to job out. Ask Herman to get on his traveling clothes and catch the first flight back to D.C. If we end up having to drop a subpoena on Ginnis, first order of business, we’re going to have to know where he is.”
After Detrick was saved by the bell at yesterday evening’s break, you can bet Tuchio spent much of the night with him in the woodshed doing a refresher course on their theory of the case. This morning the detective is looking a little worn and frazzled.
Between the saucer-size eyes and the razor-quick double take Detrick does when I say his name, you might think Tuchio has been feeding him Benzedrine all night.
I don’t even ask Detrick about the detective’s note from the interview in New York with Richard Bonguard, including the early reference to the “J letter” and why the police didn’t follow up on this. This is another instance of their shoddy investigation, rush to judgment. But if asked, Detrick would no doubt simply say it was irrelevant. They already had their man and all the evidence that went with him.
This morning Detrick and I parry over one final point. We know that the killer tried to dispose of the raincoat by throwing it into a Dumpster. So if Carl killed Scarborough, why didn’t he do the same thing with his pants and shoes instead of trying to clean them? After all, he had the better part of twenty-four hours to get rid of them.
Detrick and I go back and forth over this several times, tugging and pushing. At one point he tries to repeat the statement that Carl gave the cops during interrogation, that he kept them because he couldn’t afford to replace them. I cut Detrick off before he can go there.
“Wouldn’t you get rid of them,” I ask him, “if you were the killer?”
“Oh, I would,” he says. “But then in my experience as a homicide detective over the years, I’ve seen a lot of people do a lot of stupid things.”
I could ask him whether in his long experience he has seen people burning their clothes or throwing them in Dumpsters when their only act was the misfortune of stumbling onto a crime scene where they’d picked up traces of blood. But that would be one question too many. Detrick would say, No, of course not, but then those people would have gone to the authorities and reported the crime.
“Thank you. That’s all I have for this witness.”
Tuchio spends twenty minutes on redirect trying to undo some of the damage from yesterday. He has Detrick repeat the state’s theory of the key in the lock, a secretive entry into Scarborough’s hotel room, and then emphasizes that in that case the killer would have been wearing the troublesome raincoat before he entered. It’s this image that Tuchio wants to leave with the jury before we move on.
He excuses Detrick. I let him go, subject to recall in my case in chief.
Tuchio’s next witness is Dewey Prichert, an employee of the police crime lab whose specialty is trace evidence.
Prichert has a kind of sad-sack look to him. If he were a dog, he’d be a basset hound. His sandy-colored hair is disappearing from his forehead faster than a glacier in global warming. The knot on his tie is a little crooked. He wears thick glasses and carries a small plastic pouch sprouting a couple of pens and a tiny metal ruler, all stuffed into the breast pocket of his sport coat. Professor Nerd, pass him on the street and you’d swear he spent his days in a physics lecture hall instead of squatting with tweezers plucking fibers and hair from around lakes of human blood.
The prosecutor moves quickly with Prichert as he has the witness identify specific photographs of blood spatter, close-ups of several small articles that were in the room. Prichert was the crime tech at the scene who lifted the two shoe impressions from the blood in the entry hall and gathered bits of fibers from the floor and multiple strands of human hair, none of which, it seems, matched the hair of the defendant and several of which appear to be idle strands belonging to no one in particular, at least that the police could identify.
“How do you explain that?” asks the prosecutor. “The unidentified strands of hair?”
“Any hotel room is going to be a transient scene,” says Prichert. “We were able to account for several of the darker strands of hair that were found. They belonged to two of the maids who routinely cleaned that room. Others we assume at this point probably belong to previous occupants of the room.”
“So what you’re telling us,” says Tuchio, “is that it’s normal, that you might expect to find unidentified strands of hair in a place like a hotel room?”
“It’s not as bad as an airport terminal, but basically, yes.”
What Tuchio is trying to do here is to close the door on us, to diminish these loose strands of hair as SODDI evidence-“some other dude did it.” He knows that I have an expert on my list of witnesses prepared to jump on the unanswered question of hairs found at the scene.
Tuchio has the witness specify the number and various colors of hairs he collected in the hotel room. You would think the hotel didn’t own a vacuum. According to Prichert, he gathered eighty-seven separate strands, including fourteen hairs from three different animals. For a hotel with a “no pets” policy, if you could fork over the gold brick to pay the daily fare on the Presidential Suite, it seems the room came with a courtesy case of cataracts to blind hotel staff whenever Fifi or Fido emerged from the elevator.
Of the eighty-seven human strands, a good number, fifty-six, were multiple offenders. That is, they were classified as “questioned hair samples,” meaning that their owners were unknown but that microscopic examination revealed they were duplicates and in some cases triplicates coming from the same unknown person.
According to Prichert, this would not be unusual for a hotel room where tenants might spend anywhere from one to several days in close living quarters. He tells the jury that most of the hair samples were collected using a special vacuum with a small micron filter to trap the hair and small fibers. In areas close to the victim’s body where he did not want to disturb other potential evidence, he used tape to lift any hairs or fibers. He explained to the jury that in a suite that size, with deep plush carpets, heavy upholstered furniture, and heavy curtains that hung to the floor, you could easily find a good number of hair samples, most of which have probably been there for a long time.
Tuchio pays particular attention to the thirteen questioned samples of hair found on or near the back of the chair where Scarborough was murdered and six unidentified samples found in the bathroom on the tile floor either near or under the toe kick of the bathroom counter. There were several hair samples on the counter itself and in the sink in the bathroom, but all of these were identified as belonging to the victim. Of the thirteen in the living area, most belonged to the victim himself and were severed by the jagged edge of the hammer’s claws as it punched holes in Scarborough’s head. But five of them on or around the area of the chair where the body was located, one a kind of sandy brown color, three blond, and one that had been subjected to enough different dyes that Prichert could not determine its true color, are unidentified, so-called questioned samples and belonging to persons unknown.
In addition there were two blond hairs, one four inches long and the other much shorter-he can’t remember the precise length-as well as several gray hairs and two brown samples, all of which were collected from the bathroom.
“Let’s start with the five hair samples found closest to the body, the ones you couldn’t identify. Can you tell the jury anything about these hairs?”
“Two of them I might classify as floaters, one blond sample of questioned hair about four inches in length and one shorter brown sample about an inch in length.”
“What do you mean by ‘floaters’?”
Prichert explains to the jury that if you’re looking for trace evidence deposited at the scene of a crime, you don’t usually tear up the carpet and look underneath. In collecting fibers or hair, unless there is some other reason to probe deeper, technicians usually look for surface deposits likely to have occurred during or about the time that the crime was committed, what the witness calls floaters.
“These four strands, the brown and three blond, were not on the surface of the chair,” says Prichert. “They were tucked into crevices formed by the back cushion at the level of the seat on either side at the back of the chair. They were sufficiently shallow that it was difficult to tell how long they might have been there.”
“What about the other eight unidentified strands of hair found on or near the chair?”
“All of those were tucked deep enough into crevices in the upholstery of the chair that I was able to exclude them as not being part of the crime scene. Most of them were balled up and caught up in filaments of dust, indicating that they’d been there too long to be connected to the crime.”
“Would you normally expect to find human hairs in that location, in the cracks of an upholstered chair?”
“It’s very common.”
“Why is that?”
“People sit, hair sheds, sometimes it gets caught in the tight spaces of the upholstery and is pulled out or more likely broken somewhere along the shaft. Repeated body movement in the chair and gravity can cause the loose strands of hair to migrate into crevices, usually between or at the edge of cushioned areas. In this case it was a leather chair. Loose hair would tend to slide easily, and unless it fell on the floor, it would slip into crevices almost immediately.”
“Did you find any unidentified hairs on the body or the clothing of the victim?”
“I found several strands belonging to the victim himself, but no unidentified or questioned samples, no.”
Tuchio turns his attention back to the club chair in which the cops theorize Scarborough was sitting at the time of the attack. He has the witness explain that the cushions on that particular chair were not loose. They could not be removed by a maid in order to dust and vacuum under and around them. Both seat and back cushions were stitched to the fixed upholstery of the chair.
“A maid would have to use a crevice tool to vacuum in the cracks,” says Prichert. “And there was evidence that this had not occurred at any time in the recent past.”
“And what evidence was that?” asks Tuchio.
“There were particles, small tufts of dust at or near the area in the crevices where both strands of hair, the one blond and the single brown hair, were found.”
“And what if anything did you conclude from this?”
“That the area of the chair in question, the crevices along the back cushion at the level of the seat, had not been vacuumed recently.”
I would give Prichert the Good Housekeeping Seal of Approval if he weren’t doing such a good job undermining our evidence.
“So what you’re saying is that those two strands of hair could have been there for some time?”
“Yes.”
“In your opinion could they have been there as long as a week?”
“Yes.”
“Could they have been there for several weeks?”
“It’s a possibility. At some point you would expect them either to migrate deeper into the crevice of the upholstery or to fall victim to a cleaning, in which case they would be removed.”
“If they were there for a long time, would they disintegrate?” asks Tuchio.
“The hair shaft itself will resist deterioration for years. In this case neither of the evidentiary strands of hair included a follicle or any tissue; they were broken at the shaft. So there is no way to determine when the hair shaft itself was parted from its owner. Determining how long they’d been there at that location would at best be a guess.”
“Did you find any evidence of blood on either strand of hair?”
“Yes. Under microscopic examination both strands of hair revealed substantial evidence of dried blood.”
“And what if anything did you conclude from this?”
“That based on the fact that the victim’s blood had run into the crevices at the site where each of these hair strands was located, I concluded that it was not possible to determine whether either strand was deposited on the chair at the time of the commission of the crime or at some point much earlier and was therefore entirely unrelated to the crime.”
“So is it your opinion that the questioned hair samples found on or in the crevices of the subject chair are inconclusive in terms of any evidentiary value?”
“That would be my opinion, yes.”
“Let’s turn to the unidentified hairs in the bathroom. Where did you find these?”
“Almost all of them were vacuumed from under the toe kick at the bottom of the built-in bathroom counter. There is a tight space there where the wood at the bottom of the counter meets the tile floor. Most of the questioned hair samples found in the bathroom were located there. There were, I think, two loose unidentified hair samples that were just under the toe kick. Both of these I collected with tape. The others I vacuumed.
“And the colors of these samples?”
“Oh, it was the United Nations,” says Prichert. “Bathrooms tend to be that way.”
Everybody laughs.
Tuchio is trying to put as much distance as possible between any of the unidentified hair evidence and the victim or his blood. He doesn’t want any ghost perpetrators popping up on our side of the case, a nameless, faceless killer with three hairs on his head.
“Let’s take the two loose samples of hair that you found just under the toe kick in the bathroom. What color were they?”
“Blond.”
“Anything else you can tell us about them?”
The witness goes back to his notes. “One of the samples was four inches, the other was just under two inches. They were broken at the hair shaft-that is, they were not pulled out of the scalp, and under microscopic examination they appeared to be of similar origin. In other words, under the microscope the characteristics of both samples were sufficiently similar that I concluded they were from the same person. In fact, this was the case with most of the hair samples I found in the bathroom.”
Prichert explains that bathrooms are the place where people routinely comb and brush their hair, often causing breakage or shedding. So you would expect multiple hair samples from the same owner at that location. “I found the samples on the floor under the toe kick of the sink and counter area.”
The prosecutor has the witness describe the area of the counter toe kick in the bathroom. Prichert explains that this is a recessed area running along the front of the bathroom counter at floor level, approximately three to four inches high and the same dimension deep. As the term implies, it is where your toes go when you belly up to the counter to brush your teeth.
“So,” says Tuchio, “if you were standing-say, a maid with a mop-while the mop might fit under this area of the toe kick, would the maid be able to see back into this area to clean?”
Tuchio is trying to go to the same place he went with the chair in the living room, ancient hairs. “Objection. Calls for speculation,” I say. “The witness is not an engineer or an optometrist.”
“The observation is something within common knowledge,” says Tuchio.
Quinn weighs the issue in his head. “The witness can answer.”
“Probably not.”
The inference here again is that the hairs in the bathroom could have been there for some time.
Tuchio knows that the road to reasonable doubt is paved with tiny bricks of imponderables, pesky items in the state’s evidence raising questions for which there are no answers. He’s done a good job diminishing the use of this evidence in our case, but he has missed one point, and I will catch it on cross.
Except for the shoe impressions, much of what follows is window dressing on the state’s case. The heavy hitters will come later, the medical examiner who will testify that the killing was a crime of rage, fingerprint experts who’ll tie Carl to the pinkie print on the hammer handle and the four fingerprints on the floor, and the capper-the two witnesses the cops have lined up, Carl’s former friends who, if Tuchio is to be believed, will step forward with shovels to bury him.
Prichert tells the jury that in addition to the massive amounts of blood in the living room and entry he also found traces, in the form of minute streaks of human blood, on the tiles of the bathroom floor. According to the witness, these resembled similar striations of blood found on the exterior of the plastic raincoat. Prichert discovered that when they laid the raincoat on the tiles in the bathroom, the blood streaks on the floor and those on the raincoat lined up.
“Did you form any opinions or conclusions based on these findings?” asks Tuchio.
“Yes. It’s my opinion that at some point after the victim was killed, the perpetrator entered the bathroom, where an attempt was made to remove blood from the exterior of the raincoat by laying it on the floor and wiping it, probably using a bath towel; that the raincoat was then wrapped in this towel; and that together the two items were then discarded where they were later found by police.”
Prichert also notes that according to housekeeping, though they cannot be certain, it appears that two towels were missing from the hotel suite-a large bath towel, later found in the Dumpster with the raincoat, and another, smaller hand towel that police never found.
Next Tuchio pulls three evidence photos from the cart and has the witness identify them. Two of these are close-ups of items spattered with blood, the large sample case that was on the floor next to the chair where the victim was killed, and a legal-size, zippered, leather portfolio that was on a table near the television. The third shot is of the attaché case that was found open, lying on the couch in the living room out of the line of spatter. Prichert identifies the items in the photos. Then Tuchio brings him to the point.
He directs the witness’s attention to one of the photos, a shot of the attaché case.
“Do you see that mark, that little smudge on the leather right next to the lock?”
“I do.”
“Did you have occasion to examine that mark in your laboratory?”
“I did.”
“Can you tell the jury what that mark is?”
“It’s a bloodstain.”
“Human blood?”
“Yes.”
“Did it belong to the victim?”
“Yes.”
“Can you tell the jury whether following your examination of that spot you formed any opinion as to how it got on the attaché case?”
“Looking at the stain under magnification, I observed minuscule, microscopic patterns not unlike brushstrokes in the dried blood at that spot. These strokes were made by the fibers from a fabric, probably cotton. Based on my examination, I concluded that the mark was a transfer stain imparted when a cloth fabric soaked in blood made contact with the leather, and that this contact was probably effected in an attempt to open the lock.”
Tuchio is trying to deal with this, because he knows if he doesn’t, it will fall into my lap. These little smudges of blood, some of them larger than others, were found on the attaché case, the top of the leather portfolio, and the sample case, though on the case they were difficult to make out because, since this was close to Scarborough’s chair, large areas were saturated with blood.
“Let me ask you, with regard to the attaché case, did your examination reveal anything else?”
“Yes. There were similar patterns on the handle where it was touched, on the edge at the top where it was opened, as well as traces of dried blood, again showing evidence of fiber patterns, inside on the bottom of the case.”
“And did you form any conclusions based on these findings?”
“Yes. It appears that someone, probably wearing gloves soaked with blood, opened the case and went through it.”
“Do you know whether they took anything?”
“No.”
Harry and I have had Prichert’s forensics report for months, so I know what’s coming next.
According to the witness, similar evidence of entry and pawing was found in the sample case, but not in the leather portfolio. Prichert says the portfolio was empty and that anyone attempting to open what was essentially a large zippered leather envelope with blood-soaked gloves would of necessity have left stains inside. There were none, either on the outside or the inside.
For Tuchio and the police, this is a puzzle. If anything was taken, it wasn’t found in Carl’s apartment when they turned it upside down during their search. They have also excluded robbery, either as the motive or as a passing frolic after the murder. Scarborough was wearing an expensive Rolex and a two-carat diamond ring, and he had more than three thousand dollars in cash in his wallet when they found his body.
Tuchio quickly passes over all this and gets to the point he wants to make: the gloves. If Carl was wearing gloves when he killed Scarborough, how did his pinkie print get on the hammer along with the other three prints on the floor?
According to the witness, the answer to this question is found back in the bathroom, on the tile floor. There, several fine cotton fiber transfer marks similar to those found on the attaché case were discovered on the bathroom floor. But these were not small dots the size of a fingertip. They were larger, one of them more than three inches in length.
“What, if anything, did you conclude from these transfer marks, the ones on the bathroom floor?” asks Tuchio.
“Based on the evidence, everything I examined, the entire pattern, it would be my opinion that at some point, probably at the same time that the raincoat was wiped down, the perpetrator removed the gloves from his hands, and at that point one or both of the gloves brushed the floor.”
“Do you have any idea what might have happened to these gloves?”
“No.”
The police have never found them.
Having disposed of all the nitty-gritty details they can’t explain, Tuchio moves to the one they can: the shoe impressions left behind in the blood at the entry hall.
The prosecutor has Prichert identify the two dark running shoes already in evidence. These are the Nikes with traces of blood on the soles found in Carl’s apartment the day they arrested him. The bailiff sets up the overhead projector, and within seconds the first transparency is shot up onto the screen. It shows a picture of the right shoe impression lifted from the tiles of the entry floor. Next to it is an impression lifted at the crime lab from the sole of the right shoe belonging to Carl, all the little swirls and marks, jurors leaning over the rail in the box to get a better look.
You don’t need a microscope to see it. Right down to the tiny breaks in some of the ridges where the wear pattern on the sole has eroded them, like the whorls and ridges of a fingerprint, the two images are identical.
If it’s possible, the transparency of the left shoe is even more dramatic. There is a small V-shaped cut near the heel, where Carl obviously ran over something sharp. It isn’t large, but magnified as it is on the screen, all of the cut’s peculiar and jagged edges stand out like a mirror image on the side-by-side impressions.
Two of the female jurors in the box are nodding their heads, another is standing bent over the rail looking closely. Almost all of them are making notes. That it proves a point not in dispute, the fact that Carl was there, can easily get lost in the clarity and definitive nature of the visual evidence. It makes you wonder, when the time comes for a verdict, will they ask themselves, What do I believe-the picture I saw with my lying eyes or the spin of a hired lawyer in the courtroom telling me what it means?