As usual, because of my custody status, Deputy Chan came into chambers with us and positioned himself by the door.
“Judge,” I said while we were still choosing seats and sitting down. “Can I ask that Deputy Chan be posted outside the door? Nothing personal with him, but what we are going to discuss here is pretty sensitive.”
The judge stared at me for a long moment. I knew she didn’t have to be reminded of the investigation that was instigated by this court into illegal eavesdropping and intel-gathering activities by Chan’s department. But before she could speak, Berg objected to my request.
“It’s a safety issue, Your Honor,” she said. “Mr. Haller might be in his finest suit but he is still in custody and charged with murder. I don’t think there should be any time that he is not under the supervision and control of the Sheriff’s Department. I personally am not comfortable with the deputy outside the room.”
I shook my head.
“She still thinks I want to escape,” I said. “I’m two days away from notching a not-guilty on this case and she thinks I’m planning to flee. Shows how clueless she is.”
The judge held up her hand to stop me from going on.
“Mr. Haller, you should know by now that personal attacks will get you nowhere in my court,” she said. “And that includes my chambers. Deputy Chan has been assigned to my courtroom for four years. I trust him completely. He stays, and what you say here will not be leaked or distributed other than through the official record.”
She nodded to the court reporter, who was at her usual spot in the corner with her stool and steno machine.
“Now,” Warfield continued. “What are we doing here?”
I nodded to Maggie.
“Judge,” she said, “I just wrote and sent an order to your clerk for your signature. It’s a petition for a writ of habeas corpus ad testificandum, ordering one of the FBI agents just named in court to appear and give testimony.”
“Hold on,” Warfield said.
She picked up her desk phone, called her clerk, and told him to download and print three copies of Maggie’s order and bring them to chambers. She then hung up and told Maggie to continue.
“Judge, we want you to order FBI agent Dawn Ruth to appear in court to give testimony,” Maggie said.
“Didn’t I sign a subpoena for the FBI a month ago?” the judge asked.
“And they ignored it as the federal government can and is wont to do,” Maggie said. “Standard operating procedure at the fed. That’s why we want you to issue the writ. It will be difficult for the U.S. Attorney and Agent Ruth to ignore you, especially if the writ should go to warrant.”
This last part was a hint. Should the judge issue the writ, she could give it some teeth. The U.S. Attorney could ignore it or tell Agent Ruth not to respond to it. But if failure to comply resulted in an arrest warrant, then Agent Ruth and the U.S. Attorney would be vulnerable to being taken into custody as soon as they strayed outside the federal building and onto territory where Judge Warfield held jurisdiction. It would be a bold move, but Maggie and I had guessed that Warfield was the kind of judge who would be up for it.
“The People object,” Berg said. “This is all part of a carefully orchestrated attempt to distract the jury from the evidence. This is Haller’s specialty, Your Honor. He does it in every case, every trial. It’s not going to work here, because it’s a con. Call it the ‘bleeding the beast’ con. But it has nothing—nothing—to do with the evidence.”
“This is not a distraction, Judge,” I said, cutting in before anyone else could speak. “Agents Rick Aiello and Dawn Ruth were just named by a witness in front of the jury. Agent Ruth was in the courtroom before that, keeping tabs on this case. Every one of those jurors—”
“Wait just a second, Mr. Haller,” Warfield said. “You know Agent Ruth by sight?”
“Yes,” I said. “She and Aiello confronted me at my house when my team started digging into this. They are the agents who went to Ventura County to take Sam Scales off the hands of the Sheriff’s Department up there.”
That was just an educated guess on my part, but it seemed logical, since I was sure the leaked arrest report had come from Ruth. I pressed on.
“We now have Ruth’s and Aiello’s names on the record and out in front of the jury,” I said. “They are expecting to hear from at least one of them, and the defense is entitled to their testimony.”
“They also have the name Louis Opparizio,” Berg said. “Are we going to see him?”
I turned to look at Berg. She had a smirk on her face. It was a slip. She obviously would have known that Opparizio was on our witness list and that Warfield had signed a defense subpoena for him. But to already know that Opparizio was dead was a major tell. It meant that the prosecution had been tracking Opparizio to a greater extent than I had thought. It also meant that Berg had been lying in wait and was ready to make a move to prevent his appearance or to neutralize him if he was allowed to testify. Her slip of the tongue had allowed me a glimpse behind the curtain.
All of this apparently passed by Maggie in the heat of the moment and she pressed on with her argument.
“Your Honor,” she said, “it is your obligation to ensure that the defendant has a fair trial. That can’t happen here without the testimony of the FBI. This is the whole case. The only alternative is to dismiss the charge.”
“Yeah, right,” Berg said sarcastically. “That’s not happening. Judge, you can’t do this. This is a giant distraction. They just want to put the FBI out there to draw the jury away from the truth. You can’t—”
“You don’t speak for the court, Ms. Berg,” Warfield said. “Let me ask the obvious question here. The agents were referenced in testimony regarding a three-year-old fraud case in Nevada. Where is the relevancy to this case?”
“They told Schultz that this was happening all over the country,” Maggie said.
“The defense will show through the agent’s testimony and other evidence that the Nevada case is more than relevant to the murder of Sam Scales,” I added. “We will show that Sam Scales was involved in a copycat scheme at BioGreen at the Port of Los Angeles.”
“But Detective Drucker testified that he could not confirm that Sam Scales even worked there,” Warfield said.
“That’s exactly why we need Agent Ruth to testify,” I said. “She can confirm it, because she’s the one who sent him in there as an informant. He was working for them and that’s what got him killed.”
I noticed that Maggie had turned in her seat and was looking at me. I knew I was revealing more than I should, and promising more than I could deliver. But I instinctively felt that this was the key moment of the case. I needed to get Agent Ruth on the stand and was willing at this point to say anything to get her there.
“Your Honor,” Maggie said. “It’s a third-party-culpability case and getting Agent Ruth to testify is how we get there.”
Berg shook her head.
“You can’t be seriously considering this,” she said. “This is as thin as a spider’s web. You can see right through it. There is nothing here but conjecture. No evidence, no testimony that remotely links whatever is going on at BioGreen with the murder of Sam Scales in his garage!”
She punctuated her objection with a finger pointed at me.
There was a pause while Warfield considered all arguments, and then she ruled.
“Thank you for your arguments,” she said. “I’m going to sign the writ ordering Agent Ruth to appear at ten o’clock tomorrow morning. This time I will transmit it to the U.S. Attorney and I will remind him that he has to leave the building at the end of the day, and when he does, he’s on my turf. Additionally, I will tell him that this case has garnered a lot of media attention and I can guarantee that the reporters in the courtroom tomorrow will hear my thoughts on the FBI and the U.S. Attorney if they do not comply.”
“Thank you, Your Honor,” Maggie said.
“Judge, the People still object to this,” Berg
said.
“Your objection was overruled,” Warfield said. “Do you have something else?”
“Yes, a running objection,” Berg said. “With all due respect, since the start of this trial, the court has continuously ruled in a way that has been prejudicial to the People.”
That brought a stunned silence to the room. Berg was accusing the judge of shucking her impartiality and favoring the defense with her rulings. As a jurist who came out of the defense bar, Warfield would be particularly sensitive to such a charge. Berg was baiting Warfield into an outburst that might prove the objection.
But the judge seemed to compose herself before responding.
“Your running objection is noted but overruled,” she said calmly. “If counsel’s statement is intended to try to inflame or intimidate the court, be assured that you have failed in the effort and that the court will continue to make rulings impartially and independently based on the law and applied to the case.”
Warfield paused there to see if Berg had another comeback, but the prosecutor remained silent.
“Now, is there any other business to discuss?” Warfield asked. “I would like to get this order out and then have some lunch.”
“Your Honor,” Maggie said, “we have lost our main witness for today and—”
“And who was that?” Warfield asked.
“Louis Opparizio,” Maggie said.
“Was the subpoena delivered?” Warfield asked.
“Yes, it was,” Maggie said.
“Then why isn’t he here?” Warfield asked.
“He was murdered,” Maggie said. “His body was found yesterday.”
“What?” the judge yelped.
“Yes,” Maggie said. “In Arizona.”
“And does this have anything to do with this case?” Warfield asked.
“We think so, Your Honor,” Maggie said.
“Which is why you need the FBI to come in and testify,” Warfield said.
“Yes, Your Honor,” Maggie said. “And other than Opparizio, we had only one other witness scheduled for today—Detective Rountree, whom you disallowed.”
“Are you saying you have no other witnesses to your case?” Warfield asked.
“We have only one: Mr. Haller,” Maggie said. “And we don’t want him to testify until after we possibly hear from the FBI and Agent Ruth. He would be our last witness.”
Warfield looked pained. She clearly didn’t want to lose the afternoon.
“I seem to recall more names on your witness list,” she said.
“That is true but the course of the trial has dictated changes to our strategy,” I said. “We’ve dropped some witnesses just this morning. We had a toxicology expert good to go today but Detective Drucker and the deputy medical examiner already covered the same ground. We had the landlord on subpoena but Detective Drucker covered her information as well.”
“I seem to recall you had a bartender on your list,” Warfield said.
I hesitated. We had described Moira Benson on the witness list as someone who would testify to my not drinking at the NG celebration and being totally sober when I left it. But that had been a disguise to hide the real value of her testimony. What she had actually been going to tell the jury was that she had gotten a phone call at the Redwood on the night of the party, and an anonymous caller had asked whether I had left yet. At the time, I had paid the tab and was moving toward the door, slowed by handshakes and thank-yous from the well-wishers who had gotten their nightly alcohol intake on me. She told the caller I was heading to the door. Under the defense theory, that call resulted in a text to Milton, alerting him that I was leaving. But now, with the cell records we had received, we couldn’t complete the one-two punch the defense had hoped for. It didn’t mean it didn’t happen that way. The cell records could have been doctored, or Milton could have gotten a text on a burner. But we couldn’t move the supposition from theory to fact and I couldn’t put the bartender on the stand.
“Her testimony is also unneeded based on recent records we acquired,” I said.
The judge thought for a moment and decided not to inquire any further about the bartender.
“So, all you have left is the FBI, which we don’t know about, and Mr. Haller,” she said.
“And it would really change our strategy if he had to testify before we heard from Agent Ruth,” Maggie said.
“If we hear from Agent Ruth,” Warfield said.
“Judge, this is ridiculous,” Berg said. “They had no strategy. This whole thing about Ruth came up today.”
“Counsel is wrong,” Maggie said. “The FBI has been on our radar from the start. And we always planned to end with Mr. Haller’s forceful denial of the charge. We would like to keep it that way.”
“Very well,” Warfield said. “I’m going to let the jury go for the day. Hopefully tomorrow we will hear from the FBI and then the defendant. Either way, you would all be advised to use the time we are not in session this afternoon to work on closing arguments. You may be giving them tomorrow afternoon.”
“Judge, we will be introducing evidence in rebuttal,” Berg said. “And possibly a witness, depending on tomorrow’s testimony.”
“That will be your prerogative,” Warfield said.
I noticed that Berg had stopped addressing Warfield as Your Honor. I wondered if the judge noticed too.
“I think we are done here,” Warfield said. “I will see everyone back in court at one o’clock, when I will dismiss the jury.”
Moving back to the courtroom through the hallway outside the judge’s chambers, I walked up behind Berg, who was leading the way this time.
“You knew Opparizio was dead before we went in there,” I said. “If it was all just a choreographed attempt to distract the jury, why were you so on top of him?”
“Because I can see you coming from a mile away, Haller,” Berg responded. “And we were ready for Opparizio, dead or alive. You obviously were not.”
She kept walking at speed and I slowed down so Maggie could catch up.
“What was that about?” she asked.
“Nothing,” I said. “Just more bullshit. So, what do you think our chances are with the writ?”
“Getting an agent on the stand?” Maggie said. “Somewhere between zero and zero. I think this is going to come down to you up there and winning the jury over. So be ready and be at your best.”
We walked in silence after that. I knew that whatever the risks were that lay ahead, they were all on me.
50
With the jury sent home and the courtroom dark, Maggie McPherson and I were allowed to work in the attorney-client room in courtside holding until it was time for my private shuttle back to Twin Towers.
We got a lot done. Rather than focus, as the judge had suggested, on a closing argument, we worked on questions for the final two witnesses—Special Agent Dawn Ruth and me. And this was most critical with Agent Ruth because it was the questions that would most likely contain the information we wanted to get to the jury. We anticipated that if we were lucky enough to get Ruth on the stand, she would at best be a reluctant witness. We wouldn’t ask, Was Sam Scales an FBI informant? We would ask, How long was Sam Scales an FBI informant? That way, the jurors would get the information we needed them to hear, whether or not the actual questions were answered.
It was agreed that I would question Ruth—if she responded to the judge’s writ—and Maggie would, of course, question me. She convinced me during the work session that I had to testify. Once past that hurdle, I embraced the idea and started thinking about the questions and answers we were composing together.
I stayed in my suit as we worked, not wanting to spend that time with Maggie in prisoner’s garb. It was a little thing, and she probably didn’t even care, but I did. Besides our daughter, she had always been the most important woman in my life, and I cared what she thought of me.
I knew there was a camera on us the whole time and touching was forbidden, but at one point I couldn’t help m
yself. I reached across the table and put my hand on hers as she was trying to write down one of the questions she would ask me the next day.
“Maggie, thank you,” I said. “No matter what happens, you were here for me and it has meant more than you’ll ever know.”
“Well,” she said. “Let’s get the NG—as you like to call it—and everything will be all right.”
I withdrew my hand but it was too late. A voice came from the speaker box next to the camera and told me not to touch her again. I acted like I didn’t even hear it.
“Still thinking about going back to the D.A.’s Office after this?” I asked. “Now that you’ve seen behind the curtain of high-stakes defense work?”
I was smiling good-naturedly, wanting to take a small break.
“I don’t know,” she said. “I’m sure the bosses are getting a steady diet of complaints about me from Dana. The well may be poisoned—especially when we win. Maybe I could get used to sticking it to the man.”
She said it with full sarcasm. But she smiled and I smiled back.
At 4 p.m. I got a fifteen-minute heads-up from Deputy Chan that I was being moved to the shuttle and I had to lose the suit. Maggie said she was going to go.
“When you get out of here, call Cisco,” I told her. “Get a copy of the video with the room-service guy in Arizona and bring it to court tomorrow. We might need it.”
“Good idea,” she said.
Twenty minutes later I was in the back of a cruiser being driven to Twin Towers by Deputy Pressley. He took the normal route from the courthouse, crossing the 101 freeway on Main Street and dropping down Cesar Chavez Avenue to Vignes Street.
But at Vignes, instead of turning left toward Bauchet Street and the jail, he turned right.
“Pressley, what’s up?” I said. “Where are we going?”
He didn’t answer.
“Pressley,” I repeated. “What’s going on?”
“Just calm down,” Pressley said. “You’ll find out soon enough.”
But his answer didn’t calm me. Instead, high concern gripped me. The stories about sheriff’s deputies committing or orchestrating atrocities in the jails had permeated the local justice system. Nothing was unimaginable. But fact or fiction, the stories all took place inside the jail, where the situations were controlled and unseen by outside witnesses. Pressley was taking me away from the jail and we were driving behind the Union Station railway complex, bouncing over tracks and entering a maintenance yard where the workers had punched out at five sharp.
The Law of Innocence Page 34