The Rose Conspiracy (23 page)

“So,” the younger judge said, “are you saying that if the trial judge had not, in the first place, permitted you to have this expert document examiner of yours, Dr. Coglin, examine the notepad and reconstruct this note that Langley wrote from the indentations on the notepad—if the judge had ruled otherwise, then you wouldn't have known what the note said, and you wouldn't be here arguing for a wider distribution of this note, is that correct?”

“Yes, that's correct,” Blackstone said, “and then again, if all the inkwells of all the Founding Fathers had run dry in 1776, then maybe they wouldn't have signed the Declaration of Independence either. Speculation on ‘what might have been' litters the books on the shelves of a thousand libraries, Your Honor. But one thing here is
not
speculation—my client
is charged with murder, and the government will be seeking the death penalty if Vinnie Archmont is convicted. Those two things are certain. But if I cannot have my experts analyze the wording in that note, then there is a chance that the wrong person may be marched down to the death chamber.”

When Blackstone studied the faces of the judges, he saw that he had made no points with the older judge and the younger judge was blank-faced. In the middle, Judge Lowry had a look on her face, but it was one J.D. Blackstone simply could not interpret.

And that did not give him any optimism as the light on the podium turned red and he abdicated it to Henry Hartz, who strode up to it, leaning on his cane, with a self-assured smile on his face.

CHAPTER 31

H
enry Hartz was a good trial lawyer. But he was an equally effective appellate advocate.

As he laid out all the reasons why the judges should refuse to overturn the trial judge's decision—why the note was not required by the criminal law to be disclosed to those other than J.D. Blackstone himself—one thing was becoming increasingly clear. Blackstone knew that unless someone walked through the crack in the door he had created during his argument, then his efforts to get the note analyzed by his own uncle or perhaps other scholars would be doomed.

“In support,” Hartz argued, “of the severe limitations that the law places on what prosecutors are required to provide to defense attorneys, I need only point to the case of
United States v. Haire,
a 2004 decision from this circuit. There, this Court made clear that all the government needs to do is comply with Rule 16 and the Jencks Act. And that is exactly what we have done in this case.

“The law requires nothing more,” Hartz continued. “And as has been suggested today by at least one of Your Honors, the District Court Judge probably gave Mr. Blackstone even more than he was required to receive, at that. The trial court and our office, I think, have been more than generous toward Mr. Blackstone's client in providing information. He is entitled to nothing more.”

The two male judges asked Hartz a few questions about the record from the court below, but in Blackstone's estimation, the questions were inconsequential.

But then something happened. Judge Lowry spoke up.

“One question, Mr. Hartz,” she said. “The note itself—as has been noted in argument here already, the note has been viewed by all three of us up here at the bench.”

Then she continued. “My colleague in this panel,” and with that she nodded to the older judge next to her, “has indicated he can't decipher that note's meaning. And defense counsel, Professor Blackstone, has conceded that he can't interpret the note fully either. So where do you stand on all of that?”

Henry Hartz smiled, but his confident expression was hiding a frantic interior calculation he was going through before he answered. A tallying of the risk of winning and losing, of arguments advanced, of where he stood at that moment in the minds of the judges, and how likely his answer was to add or detract from what he had already determined was a position of strength.

“I'm not sure of your meaning, Your Honor,” he replied.

“Well,” Judge Lowry said, “just this—that everybody seems to be admitting they can't construe or explain what this little note jotted down by Secretary Langley means. So, how do you view that note? Can you explain it to us?”

Hartz continued smiling. Blackstone couldn't see his face from his position at the defense counsel's table, but he was reading his body language. As Hartz leaned on his cane at the podium, Blackstone noted that he was lifting his left foot ever so slightly and tapping it nervously on the floor.

“Your Honor,” Hartz said, “I have no position on that, really.”

“You've read the note, correct?” the younger judge shot out.

“Yes, of course,” Hartz replied.

“So then, do you have some kind of theory on what the words in the note mean?” Judge Lowry asked.

After clearing his throat quietly, Henry Hartz answered. “Not really, no.”

“So the words in that note are as much of a mystery to you as to everyone else it seems,” Judge Lowry added.

“It appears so,” Hartz replied.

While the federal prosecutor knew something down deep in his gut,
he had not had the chance to fully assess the extent of the damage to his case.

Not yet.

When J.D. Blackstone walked up to the podium for rebuttal, he was betting on who would grill him first. As usual, he was right.

“Counsel,” the older judge asked. “The government prosecutor, in his argument, cited in support of his position the case of
United States v. Haire.
”

“Yes, Your Honor, he did.”

“And that case is still good law, right? Hasn't been overturned or modified by any subsequent precedent?”

“No, not at all,” Blackstone said with a smile. “As a matter of fact, I think that case is excellent law.”

“Good, just checking,” the older judge said with a smile and leaned back in his black high-backed judicial chair.

“Counsel,” the younger judge asked, “it appears, as Judge Lowry has suggested here, that this note may well present a kind of mystery. Maybe a historical mystery of sorts if it relates to the Booth diary. But as one of the older judges of this circuit, now retired, used to tell me, ‘Mysteries are always intriguing, but only rarely relevant.' Mr. Blackstone, other than your speculations about motive, where is the relevance?”

“Right there, implicit in your statement, Judge,” Blackstone replied, “is the recognition that a note containing a mysterious code, written just prior to the author's murder and purporting to describe something from the most notorious diary in American history, may or may not be relevant to a charge of murder.”

“Well,” the younger judge said trying to connect the dots, “alright. But what's your point?”

“I think,” Judge Lowry said, interjecting, “that this is Mr. Blackstone's point: None of us knows
how
to interpret this note. Am I correct?”

“Exactly, Your Honor,” Blackstone said. “Now Henry Hartz said that the
Haire
case only requires the prosecution to comply with Rule 16 and the Jencks Act.”

“And you do concede that the government here, has in fact, complied with those two legal rules, right?” Judge Lowry said.

“I do admit that,” Blackstone replied. “But Mr. Hartz missed something.”

At the government's table, Henry Hartz's face took on a subtle scowl.

“He didn't mention,” Blackstone continued, “something else that was addressed in the
Haire
case. The Court reminded all of us of the familiar rule that the government is required—always required—to provide so-called
Brady
material to the defense. As the court put it, the government has to disclose ‘information that is favorable to the accused and that is material—to guilt or innocence.' We all know that rule. But here is my question—how can we know whether the note contains evidence ‘favorable' to Vinnie Archmont's innocence? Don't we have to
first
understand the words in the note and what they mean, before we can determine that?”

There was a silence on the bench for a few seconds.

“What if the government had a note in its evidence file written in German?” the younger judge asked. “Wouldn't it be the primary right of the
government
to get a German translator to decipher the note—rather than the defense?”

“I would agree,” Blackstone shot back. “But what happens if the government refuses to hire a translator and interpret the note? Which is basically the case here. In the government's brief, they concede that they have not hired an expert to interpret the note and don't plan on using the note as part of their case against Vinnie Archmont. All right, so then what? It then has to be up to the defense to do exactly that. There is a lethal injection chamber on death row that is begging someone, somewhere, to figure out this last note that Horace Langley wrote before he died…so we don't execute the wrong person.”

Then Blackstone leaned forward on the podium as he noteced the yellow warning light flicker into red to signal the end of his rebuttal time.

“Untie my hands,” Blackstone pleaded. “Let me get an interpretation of this note from my experts. And simply impose a gag order on my experts not to further disclose the contents to anyone else until a further order of the trial judge.”

Judge Lowry was going to ask one final question, but noticed the red light on the podium and thought better of it.

“Case is submitted,” she announced. “Thank you, gentlemen.”

The members of the press scurried out into the hallway and waited there to catch come comments from the lawyers as they left the courtroom.

Hartz, Detective Victor Cheski, and the Assistant U.S. Attorney filed out quickly.

As Blackstone collected his materials from the defense table, he had mixed emotions.

On the one hand, he felt good about the way that oral argument had gone.

But on the other hand, something was bothering him.

It was about Vinnie. The fact that she had showed up unannounced like that for the oral argument, so breaking with her attitude about the case thus far, was startling. He couldn't put his finger on it. But he wondered whether he was being played somehow as a sucker. Did she have another lawyer in the wings ready to take over? Or was this just another part of her pattern of manipulation that he had accused her of before? Always keeping something back—something hidden from him. Playing hide-and-seek games with him. Making herself unavailable for days on end—and then showing up suddenly in the Court of Appeals building.

He looked out into the courtroom, but she had already left. There it was again. The elusive Vinnie.

Blackstone breezed out of the courtroom and into the hallway, where he answered a few questions from reporters and then quickly squeezed his way into an elevator.

When he made his way to his car, Blackstone tossed his file and briefcase onto the front seat next to him.

But then he noticed something.

There was a white envelope sticking out a little from his file. It had his name on it. He recognized Vinnie's handwriting. He pulled it out and opened it.

There was a note inside. It read,

Sorry I didn't tell you I was coming. I wasn't planning on it, but something inside told me you needed to see me there. To let you know I was behind you. To let you know how very much I really appreciate everything you are doing for me. And, also, I just wanted to see you, dear. Truthfully. Sorry I couldn't stay, but that would be just too stressful. Besides, I know you did great. I LUV U

—Vinnie.

Suddenly, Blackstone felt foolish for having overanalyzed her appearance in court that day. The note certainly could dispel his doubts about her motives.

While he drove back to the office he would call her and set up another dinner date with her.

CHAPTER 32