Breitman nodded.
"Mr. Royce?"
"I would agree with Mr. Haller's assessment of the prejudice, not his so-called desire to be fair. He simply wants her off the jury and one of those churchgoing alternates on it."
I smiled and shook my head.
"I won't dignify that with a response. You don't want to kick her off, that's fine with me."
"But it's not counsel's choice," the judge said.
She opened the door and invited the juror back in.
"Ms. Tucci, thank you for your honesty. You can go back to the jury room and gather your things. You are dismissed and can report back to the juror assembly room to check with them."
Tucci hesitated.
"Does that mean--?"
"Yes, unfortunately, you are dismissed. That headline gives you knowledge of the case you should not have. For you to know that Mr. Jessup was previously tried for these crimes is prejudicial. Therefore, I cannot keep you on the jury. You may go now."
"I'm sorry, Judge."
"Yes, so am I."
Tucci left the chambers with her shoulders slumped and with the hesitant walk of someone who has been accused of a crime. After the door closed, the judge looked at us.
"If nothing else, this will send the right message to the rest of the jury. We're now down to five alternates and we haven't even started. But we now clearly see how the media can impact our trial. I have not read this story but I will. And if I see anyone in this room quoted in it I am going to be very disappointed. There are usually consequences for those who disappoint me."
"Judge," Royce said. "I read the story this morning and no one here is quoted by name but it does attribute information to a source close to the prosecution. I was planning to bring this to your attention."
I shook my head.
"And that's the oldest defense trick in the book. Cut a deal with a reporter to hide behind the story. A source close to the prosecution? He's sitting four feet across the aisle from me. That was probably close enough for the reporter."
"Your Honor!" Royce blurted. "I had nothing to--"
"We're holding up the trial," Breitman said, cutting him off. "Let's get back to court."
We trudged back. As we went back into the courtroom I scanned the gallery and saw Salters, the reporter, in the second row. I quickly looked away, hoping my brief eye contact had not revealed anything. I had been her source. My goal was to manipulate the story--the scene setter, as the reporter had called it--into being something that gave the defense false confidence. I hadn't intended it as a means of changing the makeup of the jury.
Back on the bench, the judge wrote something on a pad and then turned and addressed the jury, once again warning the panelists about reading the newspaper or watching television news programs. She then turned to her clerk.
"Audrey, the candy bowl, please."
The clerk then took the bowl of individually wrapped sourballs off the counter in front of her desk, dumped the candy into a drawer, and took the bowl to the judge. The judge tore a page from her notebook, tore it again into six pieces and wrote on each piece.
"I have written the numbers one through six on pieces of paper and I will now randomly select an alternate to take juror number ten's seat on the panel."
She folded the pieces of paper and dropped them into the bowl. She then swirled the bowl in her hand and raised it over her head. With her other hand she withdrew one piece of paper, unfolded it and read it out loud.
"Alternate number six," Breitman said. "Would you please move with any belongings you might have to seat number ten in the jury box. Thank you."
I could do nothing but sit and watch. The new juror number ten was a thirty-six-year-old film and television extra named Philip Kirns. Being an extra probably meant that he was an actor who had not yet been successful. He took jobs as a background extra to make ends meet. That meant that every day, he went to work and stood around and watched those who had made it. This put him on the bitter side of the gulf between the haves and have-nots. And this would make him partial to the defense--the underdog facing off against the Man. I had him down as a red juror and now I was stuck with him.
Maggie whispered into my ear at the prosecution table as we watched Kirns take his new seat.
"I hope you didn't have anything to do with that story, Haller. Because I think we just lost a vote."
I raised my hands in a not me gesture but it didn't look like she was buying it.
The judge turned her chair fully toward the jury.
"Finally, I believe we are ready to start," she said. "We begin with the opening statements from the attorneys. These statements are not to be taken as evidence. These statements are merely an opportunity for the prosecution and defense to tell the jury what they expect the evidence will show. It is an outline of what you can expect to see and hear during the trial. And it is incumbent upon counsel to then present evidence and testimony that you will later weigh during deliberations. We start with the prosecution statement. Mr. Haller?"
I stood up and went to the lectern that was positioned between the prosecution table and the jury box. I took no legal pad, 3 x 5 cards or anything else with me. I believed that it was important first to sell myself to the jury, then my case. To do that I could not look away from them. I needed to be direct, open and honest the whole time. Besides, my statement was going to be brief and to the point. I didn't need notes.
I started by introducing myself and then Maggie. I next pointed to Harry Bosch who was seated against the rail behind the prosecution table and introduced him as the case investigator. Then I got down to business.
"We are here today about one thing. To speak for someone who can no longer speak for herself. Twelve-year-old Melissa Landy was abducted from her front yard in nineteen eighty-six. Her body was found just a few hours later, discarded in a Dumpster like a bag of trash. She had been strangled. The man accused of this horrible crime sits there at the defense table."
I pointed the finger of accusation at Jessup, just as I had seen prosecutor after prosecutor point it at my clients over the years. It felt falsely righteous of me to point a finger at anyone, even a murderer. But that didn't stop me. Not only did I point at Jessup but I pointed again and again as I summarized the case, telling the jury of the witnesses I would call and what they would say and show. I moved along quickly, making sure to mention the eyewitness who identified Melissa's abductor and the finding of the victim's hair in Jessup's tow truck. I then brought it around to a big finish.
"Jason Jessup took the life of Melissa Landy," I said. "He grabbed her in the front yard and took her away from her family and this world forever. He put his hand around this beautiful little girl's throat and choked the life out of her. He robbed her of her past and of her future. He robbed her of everything. And the state will prove this to you beyond a reasonable doubt."
I nodded once to underline the promise and then returned to my seat. The judge had told us the day before to be brief in our openers, but even she seemed surprised by my brevity. It took her a moment to realize I was finished. She then told Royce he was up.
As I expected he would, Royce deferred to the second half, meaning he reserved his opening statement until the start of the defense's case. That put the judge's focus back on me.
"Very well, then. Mr. Haller, call your first witness."
I went back to the lectern, this time carrying notes and printouts. I had spent most of the previous week before jury selection preparing the questions I would ask my witnesses. As a defense attorney I am used to cross-examining the state's witnesses and picking at the testimony brought forward by the prosecutor. It's a task quite different from direct examination and building the foundation for the introduction of evidence and exhibits. I fully acknowledge that it is easier to knock something down than to build it in the first place. But in this case I would be the builder and I came prepared.
"The People call William Johnson."
I turned to the back of th
e courtroom. As I had gone to the lectern Bosch had left the courtroom to retrieve Johnson from a witness waiting room. He now returned with the man in tow. Johnson was small and thin with a dark mahogany complexion. He was fifty-nine but his pure white hair made him look older. Bosch walked him through the gate and then pointed him in the direction of the witness stand. He was quickly sworn in by the court clerk.
I had to admit to myself that I was nervous. I felt what Maggie had tried to describe to me on more than one occasion when we were married. She always called it the burden of proof. Not the legal burden. But the psychic burden of knowing that you stood as representative of all the people. I had always dismissed her explanations as self-serving. The prosecutor was always the overdog. The Man. There was no burden in that, at least nothing compared to the burden of the defense attorney, who stands all alone and holds someone's freedom in his hands. I never understood what she was trying to tell me.
Until now.
Now I got it. I felt it. I was about to question my first witness in front of the jury and I was as nervous as I had been at my first trial out of law school.
"Good morning, Mr. Johnson," I said. "How are you, sir?"
"I am good, yes."
"That's good. Can you tell me, sir, what you do for a living?"
"Yes, sir. I am head of operations for the El Rey Theatre on Wilshire Boulevard."
" 'Head of operations,' what does that mean?"
"I make sure everything works right and runs--from the stage lights to the toilets, it's all part of my job. Mind you, I have electricians work on the lights and plumbers work on the toilets."
His answer was greeted with polite smiles and modest laughter. He spoke with a slight Caribbean accent but his words were clear and understandable.
"How long have you worked at the El Rey, Mr. Johnson?"
"For going on thirty-six years now. I started in nineteen seventy-four."
"Wow, that's an achievement. Congratulations. Have you been head of operations for all that time?"
"No, I worked my way up. I started as a janitor."
"I would like to draw your attention back to nineteen eighty-six. You were working there then, correct?"
"Yes, sir. I was a janitor back then."
"Okay, and do you remember the date of February sixteenth of that year in particular?"
"Yes, I do."
"It was a Sunday."
"Yes, I remember."
"Can you tell the court why?"
"That was the day I found the body of a little girl in the trash bin out back of the El Rey. That was a terrible day."
I checked the jury. All eyes were on my witness. So far so good.
"I can imagine that being a terrible day, Mr. Johnson. Now, can you tell us what it was that brought you to discover the body of the little girl?"
"We were working on a project in the theater. We were putting new drywall into the ladies' room on account of a leak. So I took a wheelbarrow full of the stuff we had demoed--the old wall and some rotting wood and such--and wheeled it out to put in the Dumpster. I opened the top and there this poor little girl was."
"She was on top of the debris already in the trash bin?"
"That's right."
"Was she covered at all with any trash or debris?"
"No, sir, not at all."
"As if whoever threw her in there had been in a hurry and didn't have time to cover--"
"Objection!"
Royce had jumped to his feet. I knew he would object. But I had almost gotten the whole sentence--and its suggestion--to the jury.
"Mr. Haller is leading the witness and asking for conclusions for which he would have no expertise," Royce said.
I withdrew the question before the judge could sustain the objection. There was no sense in having the judge side with the defense in front of the jury.
"Mr. Johnson, was that the first trip you had made to the trash bin that day?"
"No, sir. I had been out there two times before."
"Before the trip during which you found the body, when had you last been to the trash bin?"
"About ninety minutes before."
"Did you see a body on top of the trash in the bin that time?"
"No, there was no body there."
"So it had to have been placed in that bin in the ninety minutes prior to you finding it, correct?"
"Yes, that's right."
"Okay, Mr. Johnson, if I could draw your attention to the screen."
The courtroom was equipped with two large flat-screen monitors mounted high on the wall opposite the jury box. One screen was slightly angled toward the gallery to allow courtroom observers to see the digital presentations as well. Maggie controlled what appeared on the screens through a PowerPoint program on her laptop computer. She had constructed the presentation over the last two weeks and weekends as we choreographed the prosecution's case. All of the old photos from the case files had been scanned and loaded into the program. She now put up the trial's first photo exhibit. A shot of the trash bin Melissa Landy's body had been found in.
"Does that look like the trash bin in which you found the little girl's body, Mr. Johnson?"
"That's it."
"What makes you so sure, sir?"
"The address--fifty-five fifteen--spray-painted on the side like that. I did that. That's the address. And I can tell that's the back of the El Rey. I've worked there a long time."
"Okay, and is this what you saw when you raised the top and looked inside?"
Maggie moved to the next photo. The courtroom was already quiet but it seemed to me that it grew absolutely silent when the photo of Melissa Landy's body in the trash bin went up on the screens. Under the existing rules of evidence as carved by a recent ruling by the Ninth District, I had to find ways of bringing old evidence and exhibits to the present jury. I could not rely on investigative records. I had to find people who were bridges to the past and Johnson was the first bridge.
Johnson didn't answer my question at first. He just stared like everyone else in the courtroom. Then, unexpectedly, a tear rolled down his dark cheek. It was perfect. If I had been at the defense table I would have viewed it with cynicism. But I knew Johnson's response was heartfelt and it was why I had made him my first witness.
"That's her," he finally said. "That's what I saw."
I nodded as Johnson blessed himself.
"And what did you do when you saw her?"
"We didn't have no cell phones back then, you see. So I ran back inside and I called nine-one-one on the stage phone."
"And the police came quickly?"
"They came real quick, like they were already looking for her."
"One final question, Mr. Johnson. Could you see that trash bin from Wilshire Boulevard?"
Johnson shook his head emphatically.
"No, it was behind the theater and you could only see it if you drove back there and down the little alley."
I hesitated here. I had more to bring out from this witness. Information not presented in the first trial but gathered by Bosch during his reinvestigation. It was information that Royce might not be aware of. I could just ask the question that would draw it out or I could roll the dice and see if the defense opened a door on cross-examination. The information would be the same either way, but it would have greater weight if the jury believed the defense had tried to hide it.
"Thank you, Mr. Johnson," I finally said. "I have no further questions."
The witness was turned over to Royce, who went to the lectern as I sat down.
"Just a few questions," he said. "Did you see who put the victim's body in the bin?"
"No, I did not," Johnson said.
"So when you called nine-one-one you had no idea who did it, is that correct?"
"Correct."
"Before that day, had you ever seen the defendant before?"
"No, I don't think so."
"Thank you."
And that was it. Royce had performed a typical cross of a witne
ss who had little value to the defense. Johnson couldn't identify the murderer, so Royce got that on the record. But he should have just let Johnson pass. By asking if Johnson had ever seen Jessup before the murder, he opened a door. I stood back up so I could go through it.
"Redirect, Mr. Haller?" the judge asked.
"Briefly, Your Honor. Mr. Johnson, back during this period that we're talking about, did you often work on Sundays?"
"No, it was my day off usually. But if we had some special projects I would be told to come in."
Royce objected on the grounds that I was opening up a line of questioning that was outside the scope of his cross-examination. I promised the judge that it was within the scope and that it would become apparent soon. She indulged me and overruled the objection. I went back to Mr. Johnson. I had hoped Royce would object because in a few moments it would look like he had been trying to stop me from getting to information damaging to Jessup.
"You mentioned that the trash bin where you found the body was at the end of an alley. Is there no parking lot behind the El Rey Theatre?"
"There is a parking lot but it does not belong to the El Rey Theatre. We have the alley that gives us access to the back doors and the bins."
"Who does the parking lot belong to?"
"A company that has lots all over the city. It's called City Park."
"Is there a wall or a fence separating this parking lot from the alley?"
Royce stood again.
"Your Honor, this is going on and on and it has nothing to do with what I asked Mr. Johnson."
"Your Honor," I said. "I will get there in two more questions."
"You may answer, Mr. Johnson," Breitman said.
"There is a fence," Johnson said.
"So," I said, "from the El Rey's alley and the location of its trash bin, you can see into the adjoining parking lot, and anyone in the adjoining parking lot could see the trash bin, correct?"
"Yes."
"And prior to the day you discovered the body, did you have occasion to be at work on a Sunday and to notice that the parking lot behind the theater was being used?"
The Reversal Page 20