Table of Contents 16 страница

“Yes, I see it,” Milton said.

The door to the bar opened and out stepped two figures. It was too dark to identify them in the red glow of the neon. They spoke on the sidewalk for a few seconds and then one walked west in the direction of the tunnel, and the other went east, moving toward the camera.

This was followed by a low-level buzzing sound that clearly came from a cell phone. I used the remote to stop the playback.

“Officer Milton, was that you getting an email or a text on your cell phone?” I asked.

“Sounded like it,” Milton said matter-of-factly.

“Do you recall what the message was?”

“No, I don’t. In the course of a night I could get fifty messages. I don’t remember them all the next day, let alone three months later.”

I pushed the play button and the videos continued. Soon the figure walking east on Second Street stepped into the illumination from a streetlight. It was clearly me.

As I became recognizable in the light, the angle on the body cam changed as Milton apparently straightened up in his seat.

“Officer Milton, you seem to have gone on alert here,” I said. “Can you tell the jury what you’re doing?”

“Not really doing anything,” Milton said. “I saw somebody on the street and was eyeballing him. It turned out to be you. You can read into that whatever you want but it didn’t mean anything to me.”

“Your car is running at this point, correct?”

“Yes, that’s standard.”

“Was that message on your phone an alert that I was leaving the Redwood?”

Milton scoffed.

“No, it wasn’t,” he said. “I had no idea who you were, what you were doing, or where you were going.”

“Really?” I said. “Then maybe you can explain this next sequence.”

I hit the play button and we watched. I checked the jury and saw all eyes on the screen. One witness into the trial and I had them riding with me. I could feel it.

On the screen I had turned the corner and then disappeared off camera as I headed to the parking lot to get into my Lincoln. Seconds ticked by with nothing happening but I didn’t want to fast-forward. I wanted the jurors to know exactly what was going on here.

Then the Lincoln appeared in the patrol car cam as I drove into the left-turn lane on Broadway at Second. The car held there as I waited for the traffic signal to change.

On the body-cam video, Milton’s right arm came up and pulled the transmission lever from park to drive. The move registered on the digital dashboard as a D appeared on the screen. I froze it there and looked at Milton. He still didn’t look concerned.

“Officer Milton,” I said. “On direct examination you told the jury that you did not decide to pursue my car until you saw that it was missing the rear plate. Can you see the rear bumper from this angle?”

Milton looked up at the big screen and acted like he was bored.

“No, you can’t.”

“But it is clear from your own body cam that you just put your patrol car into drive. Why did you do that if you had not seen the rear bumper of my car?”

Milton was silent for a long moment as he contemplated an answer.

“I, uh, guess it was just cop instincts,” he finally said. “So that I would be ready to move if I needed to move.”

“Officer Milton,” I said. “Do you want to change any of your earlier testimony to better reflect the facts as they are seen and heard on the video?”

Berg sprang up from her spot to object to my badgering the witness. The judge overruled her, saying, “I want to hear his answer for myself.”

Milton declined the opportunity to change his testimony.

“So, then,” I said. “It is your sworn testimony that you were not there specifically to wait and target me. Do I have that correct?”

“That’s right,” Milton said.

Now there was a defiant tone in his voice. That was what I wanted the jury to hear. The how-dare-you-question-me tone of the police state that at least some of them knew so well. A tone that I believed would trigger their suspicions that something here was not right.

“And you do not wish to change or correct your earlier testimony?” I asked.

“No,” Milton said emphatically. “I do not.”

I paused for a moment to underline that answer and snuck a glance at the jury before looking down at my notes. I was sure Berg and Milton thought I was bluffing—that I was engaging in theatrics in implying that I had a witness in the wings who would further blow Milton and his story out of the water. But I didn’t care about them. I was more concerned with what the jury thought. By implying as much, I had created an unspoken bargain with the jury. A promise. I would have to deliver on it or be held accountable.

“Let’s jump forward,” I said.

I advanced the video to the point where Milton popped the trunk and discovered the body. I knew it was a risky move to show the body to the jury again. Any murder victim shown in repose after a violent end will draw sympathy from a juror and may kick-start instinctive needs for justice and revenge—all of which could be directed at me, the accused. But I thought the risk-reward balance would be in my favor here.

During her playback of the videos, Berg had kept the sound on a low setting. I did not. I set the audio at a level that could be clearly heard. When the trunk came up and the body was seen, there was Milton’s very clear “Oh shit,” followed by a stifled laugh that carried the unmistakable tone of gloating in it.

I stopped the playback.

“Officer Milton, why did you laugh when you found the body?” I asked.

“I didn’t laugh,” Milton said.

“What was that, then? A guffaw?”

“I was surprised by what was in the trunk. It was an expression of surprise.”

I knew he had prepped for this with Berg.

“An expression of surprise?” I said. “Are you sure you weren’t gloating about the predicament you knew I would now be in?”

“No, that wasn’t the case at all,” Milton insisted. “I felt like a semi-boring night just got interesting. After twenty-two years, I was going to make my first arrest for homicide.”

“Move to strike as nonresponsive,” I said to the judge.

“You asked the question, he answered,” she responded. “Overruled. Continue, Mr. Haller.”

“Let’s listen again,” I said.

I replayed the moment on the video, turning the sound up louder. The gloating laugh was unmistakable, no matter how Milton tried to couch it.

“Officer Milton, are you telling the jury that you did not laugh when you opened the trunk and discovered the body?” I asked.

“I’m saying I might’ve been a little giddy, but not gloating,” Milton said. “It was a nervous laugh, that’s all.”

“Did you know who I was?”

“Yes, I had your ID. You told me you were a lawyer.”

“But did you know of me before you pulled me over?”

“No, I did not. I don’t pay much attention to lawyers and all of that.”

I felt that I had gotten all I could out of the moment. I had thrown at least some suspicion on the prosecution’s very first witness. I decided to leave it at that. No matter what came next, I felt we had opened the trial with a strong showing of contesting the state’s evidence.

“No further questions,” I said. “But I reserve the right to recall Officer Milton to the witness stand during the defense phase of the trial.”

I returned to the defense table. Berg took the lectern and tried to mitigate the damage on redirect, but there wasn’t much that could be done with the video evidence I had presented. She walked Milton through his story again, but he could not express a good and believable reason for his dropping the car into drive before he could have seen the rear bumper of my car. And the buzzing of the cell phone just prior to that had cemented in place the possibility that he had been told to pull me over.

I leaned into Maggie to whisper.

“Do we have the subpoena ready on his cell?” I asked.

“All set,” she said. “I’ll take it to the judge as soon as we adjourn.”

We were going to ask the judge to allow us to subpoena the call and text records from Milton’s personal cell phone. We had planned to follow his testimony and the playing of videos with the subpoena so as not to show our hand to Milton or Berg. My guess was that if we got the cell records, there would be no call or text that matched up with the buzzing sound heard on the video we had just played for the jury. This was because I was pretty sure that Milton would have used a throwaway phone for work like this. Either way it would be a win when I brought him back to testify during the defense phase. If there was no record of a text to his registered cell, he would have to explain to the jury where the buzzing sound came from. And when I asked if he had a burner with him that night, his denial would ring false to the jury, who had clearly heard that unexplained buzzing sound.

Overall, I felt the Milton cross-examination had been a score for the defense, and Berg apparently already needed to regroup. With a half hour still to go in the court day, she asked Warfield to adjourn early so she could review evidence with her next witness, Detective Kent Drucker. She had anticipated that the defense’s opening statement and cross-examination of Milton would both last longer than they had.

Warfield reluctantly agreed but warned both sides that they should expect full days of court and should plan accordingly with their witnesses.

Immediately after adjournment, Maggie went to the clerk with the subpoena for Milton’s cell records. I waved goodbye to the rest of my team and my loved ones and was taken into the courtside holding tank. I changed from my suit into blues in preparation for being driven back to Twin Towers in a sheriff’s patrol car. While I waited in the cell to be escorted down the security elevator to the prisoner loading garage, Dana Berg came into the holding area and looked at me through the bars.

“Way to go, Haller,” she said. “Score one for the defense.”

“The first of many,” I said.

“We’ll see about that.”

“What do you want, Dana? You come to tell me you see the light and are dropping the charges?”

“You wish. I just wanted to come back and say, well played. That’s all.”

“Yeah, well, it wasn’t a play. It might be a game to you but it’s life or death to me.”

“Then that’s why you should savor today’s win. There won’t be any more.”

Having delivered her message, she turned from the bars and disappeared, heading back to the courtroom.

“Hey, Dana!” I called.

I waited and a few seconds later she was back at the bars.

“What?”

“The Hollywood Bowl chef.”

“What about her?”

“I wanted her on the jury. I switched the tags on my chart during the break because I knew you’d send your bow-tie guy over to steal a look.”

I could see the surprise momentarily move across her face. Then it was gone. I nodded.

“That was a play,” I said. “But today? That was the real thing.”

Friday, February 21

Possibly it was in reaction to the Milton testimony the day before, but Dana Berg came to court Friday morning with a plan not just to even the score in the jury’s ledger but to tip the scales permanently to the state’s side. She had choreographed a day that would stack the blocks of evidence and motive against me so high that the jurors would be able to see nothing else and would go into the weekend with my guilt permeating their brains. It was a good strategy and I needed to do something about it.

Kent Drucker was the lead detective on the case. That made him lead storyteller as well. Berg used him to take the jury through the investigation at a leisurely pace. I could and did object on occasion but it all amounted to a buzzing of gnats. I could not disrupt the flow of one-sided, unchallenged information to the jury until I could cross-examine the witness. And it was Berg’s goal to prevent that from happening until after the weekend.

The morning session was largely just nuts and bolts. She walked Drucker through the initial phase of the investigation, from his callout at his home out in Diamond Bar to the full crime scene investigation. She did the smart thing and owned all the mistakes that had been made, revealing through Drucker that the victim’s wallet had somehow gone missing from either the crime scene or coroner’s office.

“And did you ever recover the wallet?” Berg asked.

“Not yet,” Drucker said. “It’s just … gone.”

“Was there an investigation into the theft?”

“There’s an ongoing investigation.”

“And did losing the wallet hamper the homicide investigation?”

“To some extent, yes.”

“How so?”

“Well, we were able to identify the victim pretty quickly from fingerprints, so that was not an issue. But the victim’s criminal history indicated that he changed IDs frequently and adopted a new name, address, bank account, et cetera with each new scam that he perpetrated. My thinking was that the wallet contained the documentation of whatever identity he was using at the time of the murder. That was gone and it would have been useful to have that from the start.”

“Did you eventually find that identity?”

“We did, yes.”

“How?”

“We learned it through discovery in this case. The defense team had that information and we eventually figured it out when they put the name of the victim’s landlord on their witness list.”

“The defense team? Why would they have it ahead of the police?”

I objected, telling the judge that the question asked for speculation. But the judge wanted to hear the answer and overruled. It emboldened Drucker, with long experience testifying in murder trials, to go a step too far.

“I’m not clear on how the defense got ahead of us,” he said. “The defendant exercised his rights and stopped talking to us after his arrest.”

“Objection!” I bellowed. “The witness has just disparaged my Fifth Amendment right to remain silent and not be compelled to testify against myself.”

“Approach the bench,” the judge said angrily, glaring at Berg as she walked to the sidebar.

Maggie joined me at the bench. I could tell she was as angry as I was at Drucker’s cheap shot.

“Mr. Haller, you have made your objection,” Warfield said. “Are you requesting a mistrial?”

Berg interrupted to say, “Your Honor, I hardly think that—” “Be quiet, Ms. Berg,” Warfield snapped. “You’ve been a prosecutor for long enough to know that you must instruct your witnesses never to comment on a defendant’s right to remain silent after arrest. I consider this prosecutorial misconduct and will take it under advisement to be dealt with at a later time. For now, I would like to hear from Mr. Haller.”

“I’d like an instruction,” I said. “In the strongest terms possible. I have a—”

“I’m capable of fashioning a suitable instruction, Mr. Haller,” Warfield said. “But I want to make certain that you are waiving any request for further remedy.”

“I am not moving for a mistrial, Your Honor,” I said. “I am on trial for a crime I didn’t commit. I am here for exoneration, not just acquittal. Even if the court were to grant motions for mistrial and to dismiss with prejudice based on prosecutorial misconduct, there would forever be a cloud of suspicion over me. I want my trial and I will be satisfied with a strongly worded jury instruction.”

“Very well,” Warfield said. “Your motion is granted and I will instruct the jury. You can all step back now.”

Once we were all seated, the judge turned to face the jury.

“Members of the jury, Detective Drucker just now unfairly commented on Mr. Haller’s constitutional right to remain silent,” she said. “A bell once rung cannot be unheard, but I instruct you to disregard the comment and not to infer from it any evidence of guilt. The Fifth Amendment to the United States Constitution grants to any person accused of a crime the right to remain silent and not to be compelled to incriminate himself. This right is as old as this country. There are good reasons for it that are too numerous to review with you now. Suffice it to say that in this case, as you have heard, Mr. Haller is a criminal defense lawyer and he has a firm grasp on why an accused would not want to submit to an interrogation by his accusers. He was well within his rights to decline to speak following his arrest. Detective Drucker, on the other hand, ought to know better than to even mention the assertion of a constitutional right to remain silent. So, because it is so fundamental and important to our justice system, I repeat: Disregard the comment on Mr. Haller’s post-arrest invocation of his right to remain silent, and do not infer from it any evidence of guilt.”

The judge then turned slightly to focus on Drucker. His face was already red from humiliation.

“Now, Detective Drucker,” she said. “Do you need time to review with Ms. Berg how to testify without unconstitutional, unfair, and unprofessional comment?”

“No, Judge,” Drucker mumbled, staring straight ahead.

“Look at me when I address you,” Warfield said.

Drucker turned his whole body in the witness stand to look up at her. The judge’s penetrating glare held his for what he must have considered an eternity. Then she turned the lasers on Berg.

“You may resume your inquiry, Ms. Berg,” she said.

Resuming her position at the lectern, Berg asked: “Detective, do you know whether the defendant knew Sam Scales?”

“Over a period of years, Michael Haller appeared as counsel of record in almost every criminal case brought against Sam Scales. He had a long-term relationship with the victim and most likely knew his routines and practices.”

“Objection!” I said indignantly. “Again, Your Honor, speculation.”

The judge pinned the witness with her scowl.

“Detective Drucker,” she said. “You will confine your testimony to what you know from personal observation and experience. Do I make myself clear?”

“Yes, Judge,” the twice-chastened detective said.

“Continue, Ms. Berg,” Warfield said.

Berg was trying to turn an investigative failure on the part of the police into suspicion of the defense and the defendant. I knew I might be hanging a lantern on the suspicion the prosecution was throwing at me, but a few stern warnings from the judge to the prosecution were an unexpected victory, and they blended well with my strategy of exposing the investigation and prosecution as sloppy and unfair.

It was good to get these little victories in the midst of a long stretch of pro-prosecution testimony. You take them where you can get them. I soon returned to writing notes on my legal pad to remind myself to hit these strategy buttons harder during cross-examination—whenever that would finally be.

Berg continued to question Drucker right up until the lunch break and by then had only covered the first night’s investigation. There was more to come in the afternoon session and it was becoming increasingly clear that I would not get my shots at the detective until after the weekend. I checked the jury as they were filing out of the box to leave for lunch. I saw a lot of stretching of arms and signs of lethargy. The chef even yawned. It was okay for them to grow tired of the prosecution’s case, just as long as they hadn’t already made a decision about me.

I took lunch in the courtside holding tank with Maggie and Cisco. The judge had allowed them to bring food in to me during the lunch-break working sessions. Friday’s meal came from Little Jewel and I devoured the shrimp po’boy like a man who has just been rescued from a life raft found floating in the middle of the Pacific. We talked about the case, though I had my mouth full most of the time.

“We need to knock this train off its tracks,” I said. “She’s going to run the clock out in the afternoon session, and then those jurors go home for the weekend with my guilt in their heads.”

“It’s a filibuster,” Maggie said. “That’s what we call it in the D.A.’s Office. Keep the witness away from the defense for as long as possible.”

I knew that in the afternoon session Berg would probably move on to the part of the investigation that supported the charges against me. She would also start hitting on motive, and by the end of the day, her case would be practically complete. It would then be more than forty-eight hours before I got the chance to fight back in cross-examination.

Realistically, the afternoon session would last three hours. The lunch recess ended at 1:30 and no judge in the building would keep a jury past 4:30 on a Friday afternoon. I needed to cut a big chunk out of that three hours and somehow knock Berg’s case delivery into next week. It wouldn’t matter how much time she monopolized on Monday. I’d step up with cross-examination the minute it was over. It was the weekend I couldn’t give her—two full days with only one side of the story in a juror’s mind was an eternity.

I looked down at what was left of my sandwich. The fried shrimp was delicately wrapped in a homemade rémoulade.

“Mickey, no,” Maggie said. I looked up at her.

“What?”

“I know what you’re thinking. The judge will never buy it. She was a defense attorney and she knows all the tricks.”

“Well, if I throw up on the defense table, she’ll buy it.”

“Come on. Food poisoning—that’s really bush league.”

“Then, fine, you come up with a way to delay Death Row Dana and knock her off her game.”

“Look, almost all her questions are leading. Start objecting. And every time Drucker gives an opinion, call him on it.”

“Then I look like a nitpicker to the jury.”

“Then I’ll do it.”

“Same thing—we’re a team.”

“Better looking like a nitpicker than like a murderer.”

I nodded. I knew objections would delay things but they would not be enough. They would slow Berg down but not stop her. I needed something more. I looked at Cisco.

“Okay, listen, your assignment once we get back out there is to watch the jury,” I said. “Keep your eyes on them. They were already looking tired this morning and now they just ate lunch. Anybody starts nodding off, text Maggie and we’ll put it in front of the judge. That’ll buy us some time.”

“On it,” Cisco said.

“Meantime, did you check their social media since yesterday?” I asked.

“I’ll have to check with Lorna,” Cisco said. “She was watching all of that stuff so I was freed up for whatever you needed.”

Part of his backgrounding job on the jurors was to continue to gather intel on them. Through his work in the garage, he had been able to pick up names through car registrations and other means. He then parlayed that into monitoring their social-media accounts wherever possible for any references to the trial.

“Okay, call her before we start the afternoon session,” I said. “Tell her to check. See if anybody’s bragging about being on the jury, saying anything the court should know about. If there’s something there, we can bring it up, maybe get a juror-misconduct hearing going. That would knock Berg’s plan back till Monday.”

“What if it’s one of our keepers?” Maggie asked.

She was talking about the seven jurors I had down as green on my sympathies chart. Possibly sacrificing one of them for a two-hour delay was a tough trade-off.

“We’ll see when we get there,” I said. “If we even get there.”

The discussion ended when Deputy Chan came to the holding-room door and said it was time to move me back into the courtroom to start the afternoon session.

Once court resumed, I started things off with an objection to Berg’s ongoing use of leading questions in the examination of Detective Drucker. As I had anticipated, this brought a fierce response from Berg, who called the complaint unfounded. The judge saw merit in her argument.

“Defense counsel knows that to object well after the fact is not a sustainable objection,” Warfield said.

“If it please the court,” I said. “My objection is to alert the court that this is happening as a matter of course. It is not unfounded and I thought a directive from the bench could put an end to it. However, the defense is more than fine making contemporaneous objections as we proceed.”

“Please do so, Mr. Haller.”

“Thank you, Your Honor.”

The dispute had taken ten minutes off the clock and knocked Berg a bit off her game as she returned Drucker to the witness stand and continued to question him. Not wanting to give me the satisfaction of a sustainable objection to the form of her questions, she took extra care and time with them. This was what I wanted and I hoped the slower pace might have the added bonus of fatiguing the freshly fed jury. If one dropped into slumber, I would be able to chew up more time by asking the judge for a directive to the jury.

But all of those efforts proved moot when, an hour into the afternoon session, Berg handed me all I needed to run the clock out myself. She had moved Drucker’s testimony into an area exploring who Sam Scales was and what he might have been up to at the time of his murder. Drucker recounted how he had learned that Scales had been using the alias Walter Lennon and had found applications for credit cards and subsequent billing statements under the name and address last used by Scales. Berg then moved to enter the documents as prosecution exhibits.

I leaned toward Maggie and whispered.

“Did we get this stuff?” I asked.

“I don’t know,” Maggie said. “I don’t think so.”

Berg walked copies to us after dropping duplicates off with the court clerk. I placed the pages on the table between Maggie and me and we quickly studied them. A murder case generates a tremendous number of documents and sometimes keeping track of it all is a full-time job. This case was no different. Plus, Maggie had come into the case, replacing Jennifer, only two weeks earlier. Neither of us had command of all of the paperwork. That had been more Jennifer’s job than mine because I wanted to keep a minimal number of documents with me in the jail.

But I was pretty sure I had never seen these papers before.

“You have the discovery report there?” I asked.

Maggie went into her briefcase and pulled out a file. She located a printout with a one-line description of all documents received from the District Attorney’s Office as part of discovery. She ran her finger down the column and then checked a second page.

“No, they’re not here,” she said.

I immediately stood up.

“OBJECTION!” I said with a fervor I rarely used in a courtroom.

Berg stopped in mid-question to Drucker. The judge startled as if the steel door to the holding cell had been slammed with great force.

“What is your objection, Mr. Haller?” she asked.

“Judge, once again the prosecution has willfully violated the rules of discovery,” I said. “The efforts to keep the defense from evidence to which it rightfully should have access has just been staggering in—”

“Let me stop you right there,” the judge said quickly. “Let’s not get into this in front of the jury.”

Warfield then told the jurors that court was adjourning for a short afternoon break. She asked them to be back in the assembly room in ten minutes.

We waited as the jurors slowly made their way out of the box and to the courtroom’s exit. My anger grew with each second of silence. Warfield waited for the door to close behind the last juror before finally addressing the situation.

“Okay, Mr. Haller,” she said. “Now speak.”

I moved to the lectern. I had hoped to manufacture a delay tactic that would push the most damaging part of Drucker’s testimony into Monday, when I would be able to address and mitigate it in a timely manner. I didn’t care whether the delay was legit, but I had just been handed a discovery violation that was as righteous as anything I could have imagined. I teed it up and swung hard.

“Judge, this is just incredible,” I began. “After all the issues we’ve already had in discovery, they just go and do it again. I have never seen these documents, they are not on any supplemental discovery lists, they are a complete surprise. And now they’re exhibits? They want the jury to see them but they never let me see them, and I’m the one being tried for murder here. I mean, come on, Judge. How can this keep happening again and again? And with no sanctions, no deterrent.”

“Ms. Berg, Mr. Haller says he hasn’t received this in discovery. What is your response?” Warfield said.

I had been aware the entire time I was speaking that Berg was leafing through a thick white binder that had the word DISCOVERY ON its spine. She was moving through it a second time, this time back to front, when the judge called her to answer. She stood and addressed the court from her table.

“Your Honor, I can’t explain it,” she said. “It was supposed to be in a discovery package delivered two weeks ago. I have someone checking the emails to defense counsel but this is the master list I’m looking at here and I don’t see the documents in question on it. All I can say is that it was an oversight, Judge. A mistake. And I can assure the court that it was not intentional.”

I shook my head as though I was being offered a deal on an ice-cube farm in Siberia. I was not impressed.

⇐ Предыдущая 20 21 22 23 242526 27 28 29 Следующая ⇒