I pointed to my client as I spoke, and I asked the question with a reserved astonishment in my voice.
“Well, no,” she said.
“Then who was he representing when he supposedly moved you into this apartment?”
“Hector Moya.”
“Why did Mr. Fulgoni move you into an apartment?”
Forsythe objected, arguing that Fulgoni and the Moya case were not relevant. I, of course, took the opposite view of this in my response, citing once again the alternate defense theory I was presenting. The judge overruled and I asked the question again.
“Same thing,” Trina answered. “He wanted me to say Gloria Dayton told me that Agent Marco asked her to plant a gun in Hector’s hotel room.”
“And you’re saying that never happened, that Mr. Fulgoni made it up.”
“That’s correct.”
“Didn’t you testify a few minutes ago that you never heard of an Agent Marco, and now you say Mr. Fulgoni was feeding you testimony regarding him?”
“I didn’t say I never heard of him. I said I never met him and I never snitched for him. There’s a difference, you know.”
I nodded, properly chastised by the witness.
“Ms. Rafferty, have you received a phone call or a visit within the last twenty-four hours from a law enforcement officer?”
“No, not that I know of.”
“Has anyone attempted to coerce you into testifying the way you have today?”
“No, I’m just telling the truth.”
I had gotten it out to the jury as best I could, even if it was in the form of denials. My hope was that they would instinctively know that Trina Rafferty was the liar, that she had been pressured by someone to lie. I decided it was too risky to continue and ended the questioning.
On my way back to my seat, I whispered to Lankford as I went by.
“Where’s your hat?”
I kept moving along the rail until I got to Cisco. I leaned over to whisper to him as well.
“Have you seen Whitten?”
He shook his head.
“Not yet. What do you want me to do with Trina?”
I glanced back at the front of the courtroom. Forsythe had no re-cross, so the judge was dismissing Rafferty from the witness stand. Cisco had picked her up that morning at her apartment building and taken her the three blocks to court.
“Take her back. See if she’ll say anything.”
“You want me to be nice?”
I hesitated but only for a moment. I understood the threat and pressure people like Marco and Lankford could bring to bear. If the jury picked up on that, then her flip on the stand might be more valuable than if she had testified truthfully.
“Yeah, be nice.”
Over Cisco’s shoulder I saw Detective Whitten enter the courtroom and take a seat in the back row. He was right on time.
36
As the lead investigator on the Gloria Dayton murder, Detective Mark Whitten had attended most of the trial, often sitting along the rail next to Lankford. However, I had not noticed during the course of the proceedings the two acting much like prosecution teammates. Whitten seemed to keep to himself, almost aloof when it came to Forsythe, Lankford, and everyone else associated with the trial. During trial breaks I had seen him walking by himself back to the PAB. Once I had even seen him in Pete’s eating lunch by himself.
I called Whitten as my next witness. He had already testified for a day and a half during the prosecution phase of the trial. He had primarily been used by Forsythe to introduce evidence such as the video of the La Cosse interview. In a way, he was the narrator of the prosecution’s story, and as such, his testimony had been the longest by far of any witness in the case.
At the time, I had limited my cross-examination to aspects of the video, repeating many of the questions I hit Whitten with during the unsuccessful motion-to-suppress hearing. I wanted the jury to hear him deny that La Cosse had been a suspect the moment Whitten and his partner knocked on Andre’s door. I knew no one would believe that and hoped it would plant a seed of mistrust in the official investigation that would blossom during the defense phase.
I had reserved the right to recall him as a witness, and now was that time. I didn’t need to get a lot from him, but what I was going for was vitally important. It would be the fulcrum on which the case would pivot to the defense’s side of the equation. Whitten, who was in his midforties with twenty years on the job, was an experienced witness. He had a calm demeanor and spoke in a matter-of-fact tone. He was skilled at not revealing the hostility that almost all cops carry for the defense. That was reserved for times when the jury was not present.
After a few preliminary questions that would serve to remind the jury of his role in the case, I moved on to the areas I needed to explore. Defense work is about building foundations for the evidence and angles you want to introduce. That’s what I needed Whitten for now.
“Detective, when you testified last week, you spoke at length about the crime scene and what was found there, correct?”
“That’s right, I did.”
“And you had an inventory of that crime scene and what was found there, correct?”
“Yes.”
“And these were the victim’s belongings and property, right?”
“Yes.”
“Can you refer to that inventory list now?”
With the judge’s permission, Lankford brought the so-called murder book to Whitten. If he had been called by the prosecution, he would have normally taken the witness stand with the thick compendium of all investigative records tucked under his arm. Not bringing it with him to the stand when I called him was a little glimmer of that hostility he was so skilled at hiding.
Working off a copy of the list I had received in discovery, I continued.
“Okay, referring to the inventory list, I see no cell phone. Is that correct?”
“We did not recover a cell phone from the crime scene. That is correct.”
“Now, Mr. La Cosse explained to you, did he not, that he’d been on a call with the victim earlier that evening and that that conversation was the reason he went to her place in person?”
“Yes, that is what he told us.”
“But you found no phone in the apartment, right?”
“Right.”
“Did you or your partner try to find an explanation for this discrepancy?”
“We assumed that the killer took her phones as a means of hiding his trail.”
“You say ‘phones.’ There was more than one phone?”
“Yes, we determined that the victim and the defendant used a variety of throwaway phones to conduct their business. The victim also had a cell phone for private use.”
“Can you tell the jury what a throwaway phone is?”
“These are inexpensive phones that come with a limited number of minutes of call time. When you burn up the minutes, you throw the phone away or in some cases you can reload them with new minutes for a fee.”
“These were used because call records would be difficult to obtain by investigators if the phone was thrown away and you didn’t know where to start looking.”
“Exactly.”
“And this is how Mr. La Cosse and Ms. Dayton communicated in the course of their business, correct?”
“Yes.”
“But you found none of these phones in the apartment after the murder, correct?”
“Correct.”
“Now, you mentioned that the victim also had a cell phone for private use. What did you mean by that?”
“This was an iPhone that she owned and that she used for calls unrelated to her escort business.”
“And this iPhone was also missing after the murder?”
“Yes, we never found it.”
“And whoever killed her, you think he took it.”
“Yes.”
“What was the theory behind that?”
“We believed it was an indication that the killer knew her and that they might have com
municated by cell phone or his name and number might be in a contact list on the phone. So the killer took all of the phones as a precaution against being tracked in that way.”
“And the phones have never been found?”
“They have not.”
“So, did this cause you to go to the phone company and order the call records from these phones?”
“We ordered records for the iPhone because we found some bills in the apartment and knew the number. As far as the throwaways went, there was no way to order records when we didn’t have the phones or the numbers. There was nowhere to start.”
I nodded like I was learning all of this for the first time and coming to a deeper understanding of the difficulties Whitten faced on the case.
“Okay, so going back to the iPhone. You ordered records and you had some records you’d found. You studied these records for clues, correct?”
“We did.”
“Did you find any calls to or from Mr. La Cosse on that iPhone?”
“No, we didn’t.”
“Did you find any calls that were significant or of note in those records?”
“No, we didn’t.”
I paused there and made a face as I looked down at my notes. I wanted the jury to think I was troubled by the detective’s last answer.
“Now, these records that you ordered, they contained all incoming and outgoing calls on that phone, correct?”
“Yes.”
“Even local calls?”
“Yes, we were able to obtain local records.”
“And you studied these?”
“Yes.”
“And did you find any calls, either coming in or going out, that were significant to your investigation?”
Forsythe objected, saying I was repeating my questions. The judge told me to move along. I asked Whitten to find in the murder book the three-page printout of calls on Gloria’s iPhone.
“Are those your initials on the bottom right corner of this document’s front page?”
“Yes.”
“And you wrote the date of November twenty-sixth there, correct?”
“Yes, I did.”
“Why is that?”
“That would be the date that I received the document from the phone company.”
“That would have been fourteen days after the murder. Why did it take so long?”
“I had to secure a search warrant for the records. That took some time and then it took the phone company some time to put it all together.”
“So by the time you got these records, Andre La Cosse had already been arrested and charged with the murder, correct?”
“That’s correct.”
“You believed that you had the killer in jail, correct?”
“Yes, correct.”
“So then, what good were these phone records?”
“The investigation always continues after an arrest. In this case, all leads were followed and we continued all valid avenues of investigation. The report on the phone records was one of them.”
“Well then, did you find any numbers on this list that were connected to Mr. La Cosse?”
“No.”
“None?”
“None.”
“Then did any of the numbers listed here — there must be about two hundred — have investigative value to you?”
“No, sir, they didn’t.”
“And, by the way, how are the numbers ordered here?”
“By frequency of calls. The numbers she called the most often are at the top and then they go down in descending frequency from there.”
I turned to the last page and told Whitten to do so as well.
“So on the last page here, these are numbers she called just once?”
“Correct.”
“For how long a period?”
“The search warrant asked for records going back six months.”
I nodded.
“Detective, let me draw your attention to the ninth number down on the third page. Can you read that out to the jury?”
I heard rustling as Forsythe decided I might be doing more than wasting the court’s time and turned the pages of his copy of the document.
“Area code two-one-three, six-two-one, sixty-seven hundred,” Whitten read.
“And when was that number dialed on Gloria Dayton’s iPhone?”
Whitten squinted as he read.
“At six forty-seven p.m. on November fifth.”
Forsythe now understood where I was going with this and stood up and objected.
“Relevancy, Your Honor,” he said with an urgent tone in his voice. “We’ve allowed defense counsel great latitude, but where does it end? He is going far off the reservation here, stringing out the details of one three-minute phone call. It has nothing to do with the case at hand or the charges against his client.”
I smiled and shook my head.
“Your Honor, Mr. Forsythe knows exactly where this is headed, and he does not want the jury to go there because he knows the house of cards that is the prosecution’s case is in great peril.”
The judge made a motion with her hands, bringing her fingers together.
“Connect it, Mr. Haller. Soon.”
“Right away, Your Honor.”
I looked back at my notes, got my bearings again, and pressed on. Forsythe’s objection was nothing more than an attempt to break my rhythm. He knew it didn’t stand a chance on its merits.
“So Detective Whitten, this call went out at six forty-seven on the evening of November fifth, just seven days before Ms. Dayton’s murder, correct?”
“Yes.”
“How long did the call last?”
Whitten checked the document.
“It says two minutes, fifty-seven seconds.”
“Thank you. Did you check that number out when you got this list? Did you call it?”
“I don’t recall if I did or not.”
“Do you have a cell phone, Detective?”
“Yes, but I don’t have it on me.”
I reached into my pocket and pulled my own phone. I asked the judge to allow me to give it to Whitten.
Forsythe objected, calling what I was about to do a stunt and accusing me of grandstanding.
I argued that what Forsythe called a stunt was merely a demonstration, not unlike the demonstration a week earlier when he asked the deputy medical examiner to demonstrate on Lankford how the victim’s hyoid bone was crushed during her strangulation. I added that having the detective make the call to the number in question was the easiest and quickest way to ascertain who Gloria Dayton had called at 6:47 p.m. on November 5.
The judge allowed me to proceed. I walked up and handed my phone to Whitten after turning on its speaker. I asked him to call 213-621-6700. He did so and placed the phone down on the flat railing that ran in front of the witness stand.
The call was answered by a woman’s voice after one ring.
“DEA, Los Angeles Division, how can I help you?”
I nodded and stepped forward, picking up the phone.
“Sorry, wrong number,” I said before disconnecting.
I stepped back to the lectern, savoring the pure silence that had followed the voice of the woman who had said DEA. I stole a quick glance at Mallory Gladwell, my alpha juror, and saw an expression that soothed my soul. Her mouth was slightly opened in what I took to be an Oh My God moment.
I looked back at Whitten as I pulled a photograph I’d had ready from beneath my legal pad. I asked permission to approach the witness with the defense’s first exhibit.
The judge allowed it, and I gave Whitten the eight-by-ten shot that Fernando Valenzuela had taken of Gloria Dayton when he served her with the subpoena in the Moya case.
“Detective, you have in your hand a photo that has been marked as defense exhibit one. It is a photo of the victim in this case in the moment she was served with a subpoena in a civil matter styled as Moya versus Rollins. Can I draw your attention to the time and date stamp on the ph
otograph, and will you read that out to the jury?”
“It says six oh-six p.m., November fifth, twenty twelve.”
“Thank you, Detective. And so, is it correct to conclude from that photo and the victim’s phone records that exactly forty-one minutes after Gloria Dayton was served with the subpoena in the Moya case, she called the DEA’s Los Angeles Division on her personal cell phone?”
Whitten hesitated as he looked for a way out of his predicament.
“It is impossible for me to know if she made the call,” he finally said. “She could have loaned her phone to someone else.”
I loved it when cops dissembled on the stand. When they tried not to give the obvious answer and made themselves look bad in the process.
“So then it would be your opinion that forty-one minutes after being served as a witness in a case involving an incarcerated drug dealer, someone other than Ms. Dayton used her phone to call the DEA?”
“No, I’m not saying that. I don’t have an opinion on it. I said that we don’t know who was in possession of her phone at that moment. Therefore, I can’t sit here and say with certainty that it was she who made the call.”
I shook my head in a feigned show of frustration. The truth was I was elated by Whitten’s response.
“Okay, Detective, then let’s move on. Did you ever investigate this call or Gloria Dayton’s connection to the DEA?”
“No, I did not.”
“Did you ever inquire as to whether she had been an informant for the DEA?”
“No, I did not.”
I could tell Whitten was about to blow his cool. He wasn’t getting any protection from Forsythe, who, without valid objection in hand, was hunkering down in his seat, waiting for the damage to end.
“Why not, Detective? Doesn’t this strike you as one of those ‘valid avenues of investigation’ you spoke of earlier?”
“First of all, I knew nothing about the subpoena at that time. And second, informants don’t call the main number of the DEA. That would be like walking through the front door with a sign on your back. I had no reason to be suspicious about one quick call to the DEA.”
“I’m confused now, Detective. So are you now saying you were aware of the call and just not suspicious of it? Or, as I think you just said a few minutes ago, you didn’t even recall checking out that number or the call. Which is it?”
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