“Thanks for the tip,” she said. “Talk to you tomorrow.”
After I put the phone away I used the binoculars again to watch my daughter. The coach called the practice at four and the girls were leaving the field. Because Hayley was a transfer, she was treated like a rookie, and she had to gather all the balls and put them in a net bag. During the practice she had been in a goal that faced my position. So I didn’t see her back until she started gathering up the balls. My heart lifted when I saw she still had the number 7 on the back of her green jersey. Her lucky number. My lucky number. Mickey Mantle’s number. She hadn’t changed it and that was at least one connection to me she hadn’t changed. I took that as a sign that not everything between us was lost and that I should continue to keep the faith.
Part 2
MR. LUCKY
TUESDAY, APRIL 2
11
There is never just one case. There are always many. I liken the practice of law to the craft of some of the premier buskers seen working the crowds on the Venice boardwalk. There’s the man who spins plates on sticks, keeping a forest of china spinning with momentum and aloft at the same time. And there’s the man who juggles gas-powered chain saws, spinning them in the air in a precise manner so that he never shakes hands with the business end of the blades.
Aside from the La Cosse case, I kept several plates spinning as the calendar changed from one year to the next. Leonard Watts, the carjacker, got a deal he grudgingly agreed to in order to head off a retrial. Jennifer Aronson handled the negotiations, just as she did with Deirdre Ramsey, who took a plea deal and did not have to testify against her boyfriend in court.
I picked up a high-profile case in late December that was more of the chain saw variety. A former client and lifelong con artist named Sam Scales was popped by the LAPD on a scam that brought new meaning to the words heartless predator. Scales was accused of setting up a phony website and Facebook page in order to solicit donations to cover the burial costs of a child killed in a school massacre in Connecticut. People from far and wide gave liberally and Scales was said by the prosecution to have raked in close to fifty thousand that donors believed was going toward a murdered child’s funeral. The scam worked well until the parents of the dead child got wind of the effort and contacted authorities. Scales had used a variety of false digital fronts to safeguard his identity but eventually — as in all scams — he needed to move the money to a place where he could access it and put it in his pocket.
And that was the Bank of America branch on Sunset Boulevard in Hollywood. When he strolled in and asked for the money in cash, the bank teller saw the flag on the account and stalled while police were called. It was explained to Sam that the bank did not keep that much money in cash on hand because it was in a high-risk location, meaning the chances of a robbery were higher than at other locations. Scales was told that he could wait for the money to be special-ordered and put on the regular three p.m. armored truck delivery, or he could go to a downtown location where that kind of cash was more readily available. Scales, a con artist who didn’t know a con when it was directed at him, elected to special-order the money and return to pick it up. When he came back at three, he was met by two detectives with the LAPD Commercial Crimes Division. The same two detectives who arrested him for the last case I defended him on — a Japanese tsunami aid rip-off.
Everybody wanted a piece of Scales this time — the FBI, the Connecticut State Police, even the Royal Canadian Mounted Police, who jumped in on the case because several of the victims who had given money were from across the border. But the LAPD made the arrest, and that meant the Los Angeles County District Attorney’s Office had the first shot at him. Scales called me as he had in the past and I took on the cause of a man so vilified in the media for his alleged crime that he had to be placed in solitary at Men’s Central for fear he would be harmed by other prisoners.
What made matters worse for Scales was that the outrage was so great that the district attorney himself, Damon Kennedy, the man who had soundly defeated me in the prior year’s election, had announced that he would personally prosecute Scales to the full extent of the law. This of course came after I had signed on as defense counsel, and now the stage was set for Kennedy to once again trounce me on the public stage. I had made inquiries about a disposition — the DA had Scales dead to rights on this one — but Kennedy was having none of that. He knew he had a slam-dunk case and there was no need to deal. He would milk the trial for every last video, print, and digital drop of attention he could wring out of it. No doubt, Sam Scales was going to go down for the full count this time.
The Scales case did not help me personally either. L.A. Weekly ran a cover story on “The Most Hated Man in America,” and the report provided a trip down memory lane of the many cons Scales had been accused of over the past two decades. My name came up often in these vignettes as his longtime defense attorney, and the overall story cast me as an official apologist for my client. The issue landed a week before Christmas and it made for an icy reception from my daughter, who once again believed her father had publicly humiliated her. All parties had previously agreed that I would be allowed to visit on Christmas morning with gifts for both daughter and former wife. But it didn’t go so well. What I had hoped would be the start of a winter thaw in both relationships turned into an ice storm. I ate a TV dinner at home alone that night.
It was now the first week of April, and I was appearing on behalf of Andre La Cosse before the Honorable Nancy Leggoe in Department 120 of the downtown Criminal Courts Building. We were six weeks out from trial on the case and Leggoe was taking testimony in regard to the motion to suppress that I had filed shortly after the preliminary hearing in which La Cosse was held to answer.
La Cosse sat beside me at the defense table. He had been in jail going on five months now and the pallor of his skin was just one indication of the deterioration within. Some people can handle a stint behind bars. Andre wasn’t one of them. As he told me often when we communicated, he was losing his mind in captivity.
Through the exchange of discovery materials that began in December, I had received a copy of the video of Andre La Cosse’s interview with the lead investigator on the Gloria Dayton murder. My motion to suppress claimed that the interview was actually an interrogation and that the police had used trickery and coercion to elicit incriminating statements from my client. Additionally, the motion claimed that the detective who interrogated La Cosse in a small windowless room at West Bureau ran roughshod over his constitutional rights, not properly administering the Miranda warning regarding his right to an attorney until after La Cosse had made the incriminating statements and was placed under arrest.
During the interrogation La Cosse had denied killing Dayton, which was good for our side. But what was bad was that he had given police evidence of motive and opportunity. He admitted that he had been in the victim’s apartment on the night of the murder and that he and Gloria had argued about the money she was supposed to have been paid by the client at the Beverly Wilshire. He even acknowledged that he had grabbed Gloria by the throat.
Of course, this evidence La Cosse had provided against himself was pretty damning, and it served as the core of the DA’s case, as demonstrated in the preliminary hearing. But now I was asking the judge to eliminate the interview from the case and not allow a jury to see it. In addition to the intimidation practices employed by the detective in the room, La Cosse had not been read his rights until after he had mentioned that he had been in Dayton’s apartment in the hours before her death and that there had been an argument.
Motions to suppress are always the longest of long shots but this one was worth a try. If I got the video of the interrogation kicked, the entire case would change. It might even tilt in Andre La Cosse’s direction.
The prosecution, led by Deputy DA William Forsythe, began the hearing with Detective Mark Whitten’s testimony about the circumstances of the interview and then introduced the video recording of the session.
The thirty-two-minute video was shown in its entirety on a screen mounted to the wall opposite the courtroom’s empty jury box. I had already watched it numerous times. I had my video time counts and questions ready when Forsythe finished his direct examination of Whitten and turned the witness and the remote control over to me. Whitten knew what was coming. I had laid into him pretty good when he had testified during the preliminary hearing. This time the assault would take place in front of Judge Leggoe, who was assigned to hear the case after the prelim. There was no jury to play to. No gods of guilt. I remained seated at the defense table, my client in his orange jumpsuit next to me.
“Detective Whitten, good morning,” I said as I pointed the remote at the screen. “I want to go back to the very beginning of the interrogation.”
“Good morning,” Whitten said. “And it was an interview, not an interrogation. As I said before, Mr. La Cosse voluntarily agreed to come to the station to talk with me.”
“Right, I heard that. But let’s take a look at this.”
I started playing the video, and on the screen the door to the interview room opened and La Cosse entered, followed by Whitten, who put his hand on my client’s shoulder to direct him to one of the two chairs on either side of a small table. I stopped the playback as soon as La Cosse was seated.
“So, Detective, what are you doing there with your hand on Mr. La Cosse’s upper arm?”
“I was just directing him to a seat. I wanted to sit down for the interview.”
“You were directing him to that particular chair, though, correct?”
“Not really.”
“You wanted him facing the camera because your plan was to draw a confession from him, correct?”
“No, not correct.”
“Are you telling Judge Leggoe that you did not want him in that particular seat so that he would be in view of the hidden camera that was in that room?”
Whitten took a few moments to compose an answer. Bullshitting a jury is one thing. But it grows increasingly risky to mislead a judge who has been around the block a few times.
“It’s standard policy and practice to place the interview subject in the seat facing the camera. I was following policy.”
“Is it standard policy and practice to videotape interviews with subjects who have come to the police department for a ‘conversation,’ as you put it in your direct testimony?”
“Yes, it is.”
I raised my eyebrows in surprise but then reminded myself that it wasn’t serving my client well to bullshit the judge either. This would include feigning surprise at an answer I knew was coming. I moved on.
“And you insist that you had not classified Mr. La Cosse as a suspect when he came to the police station to talk to you?”
“Absolutely. I had a completely open mind about him.”
“So there was no need to give him the standard rights warning at the top of this so-called conversation?”
Forsythe objected, saying the question was already asked and answered during his direct examination. Forsythe was midthirties and lean. With a ruddy complexion and sandy hair, he looked like a surfer in a suit.
Judge Leggoe overruled the objection and let me go with it. Whitten answered the question.
“I didn’t believe it was necessary,” he said. “He was not a suspect at the time he voluntarily came into the station and then voluntarily entered that room for the interview. I was just going to take a statement from him, and he ended up saying he had been in the victim’s apartment. I was not expecting that.”
He delivered the answer just as I am sure he had rehearsed it with Forsythe. I moved ahead in the video to a point where Whitten excused himself from the room to go get my client a soda that the detective had offered. I froze the image of La Cosse left alone in the room.
“Detective, what would have happened if my client had decided while alone in there that he had to use the restroom and got up to leave?”
“I don’t understand. We would have allowed him to use the restroom. He never asked.”
“But what would have happened if he’d decided on his own to get up from the table at this point here and open that door? Yes or no, did you lock it when you left the room?”
“It’s not a yes or no answer.”
“I think it is.”
Forsythe objected and called my response badgering. The judge told the detective to answer the question the way he saw fit. Whitten composed himself again and fell back on the standard out: policy.
“It is the policy of the department not to allow any citizen unescorted access to work areas of police stations. That door leads directly to the detective bureau, and it would have been against policy for me to allow him to wander through the squad unattended. Yes, I locked the door.”
“Thank you, Detective. So let me see if I have this right so far. Mr. La Cosse was not a suspect in your case but he was locked in this windowless room and was under constant surveillance while in there, correct?”
“I don’t know if I would call it surveillance.”
“Then what would you call it?”
“We roll the camera whenever someone is in one of those rooms. It’s standard—”
“Policy, yes, I know. Let’s move on.”
I fast-forwarded through the video about twenty minutes, to a point where Whitten stood up from his seat and took off his jacket and draped it over the backrest. He then moved his chair in toward the table and stood behind it, leaning forward with his hands on the table.
“So you don’t know anything about her murder, is that what you’re saying?” he said to La Cosse on the screen.
I froze it right there.
“Detective Whitten, why did you take your jacket off at this point in the interrogation?”
“You mean the interview? I took my jacket off because it was getting stuffy in there.”
“But you testified on direct that the camera was hidden in the air-conditioning vent. Wasn’t the air on?”
“I don’t know if it was on or not. I hadn’t checked before we went in there.”
“Aren’t these so-called interview rooms nicknamed ‘hot boxes’ by detectives because they are used to sweat suspects and hopefully induce them to cooperate and confess?”
“I’ve never heard that, no.”
“You’ve never used that phrase yourself to describe this room?”
I pointed to the screen and asked the question with such surprise in my tone that I hoped Whitten would think I had something up my sleeve that he didn’t know about. But it was a bluff and the detective parried it by using a standard witness out.
“I don’t recall ever using the phrase, no.”
“Okay, so you took your jacket off and are now standing over Mr. La Cosse. Was that to intimidate him?”
“No, it was because I felt like standing. We had been sitting at that point for a long time.”
“Do you have hemorrhoids, Detective?”
Forsythe quickly objected again and accused me of trying to embarrass the detective. I told the judge I was simply trying to place on the record testimony that would help the court understand why the detective felt compelled to stand during the interview after only twenty minutes. The judge sustained the objection and told me to proceed without asking the witness questions of such a personal nature.
“Okay, Detective,” I said. “What about Mr. La Cosse? Could he stand up if he wanted to? Could he have stood over you while you were sitting?”
“I would not have objected,” Whitten answered.
I hoped the judge was aware that Whitten’s answers were largely bogus and part of the dance detectives engaged in every day in every police station. They walked a constitutional tightrope, trying to push things as far as they could before having to enlighten the hapless saps who sat across the table from them. I had to make a case that this was a custodial interrogation and that under these circumstances Andre La Cosse did not feel that he was free to leave. If the judge was convinced, then she would
hold that La Cosse was indeed under arrest when he entered that interrogation room and should have been Mirandized. She could then throw the entire video recording out, crippling the DA’s case.
I pointed up to the screen again.
“Let’s talk about what you’re wearing there, Detective.”
I took Whitten through a full description for the record of the shoulder holster and Glock he was wearing, and then moved down to his belt, eliciting descriptions of the handcuffs, extra gun clip, badge, and pepper-spray canister that were attached to it.
“Your displaying of all of these weapons to Mr. La Cosse was for what purpose?”
Whitten shook his head like he was annoyed with me.
“No purpose. It was warm in there and I took off my jacket. I wasn’t displaying anything.”
“So you are telling the court that showing my client your gun and badge and the extra bullets and the pepper spray were not a means of intimidating Mr. La Cosse?”
“That’s exactly what I’m telling the court.”
“How about at this point?”
I moved the video forward another minute to the point that Whitten pulled the chair out from the table and put one foot up on it so he could really loom over the small table and La Cosse, who was shorter and more slightly built.
“I was not intimidating him,” Whitten said. “I was having a conversation with him.”
I checked the notes on my legal pad and made sure I had covered everything I wanted to get on the record. I didn’t think Leggoe would rule my way on this one but I thought I had a shot on appeal. Meantime, I had gotten in another round with Whitten on the witness stand. It better prepared me for trial, when I would really need to go at him.
Before ending the cross-examination I leaned over and conferred with La Cosse as a general courtesy.
“Anything I missed?” I whispered.
“I don’t think so,” La Cosse whispered back. “I think the judge knows what he was doing.”
The Gods of Guilt mh-5 Page 9