Unlucky in Law

by Perri O'shaughnessy

  “Is the lot by Dennis the Menace Park and the municipal ball field closed at night?”

  “There are always a few cars there, day or night. I think park personnel leave their cars there overnight. As long as the people aren’t hanging around, we don’t give them a hard time.”

  “Did you observe cars in that lot during your shift during the early morning of April thirteenth?”

  “Yes, sir. Officer Graydon and I were driving by and we saw an old Honda Civic pull out of the lot onto Pearl. We were just turning onto Pearl off El Estero, and we began to follow the vehicle.”

  “When would that be?”

  “After two in the morning of the thirteenth.” He put the time into parlance the jury could understand.

  “Why follow the car?”

  “The left taillight was out.”

  “Do you always pull over cars with missing taillights?”

  “The driver shouldn’t have been in the park lot at that time of night,” Millman said primly. “We check things out, try to keep the place safe.”

  Jaime opened his mouth to continue his methodical line of questions but Millman jumped ahead. “We pulled him over right at the corner of El Estero and stopped behind him. Officer Graydon remained in the police car to call in the plates, and I approached the driver’s door with my flashlight. That was at two-ten A.M.”

  “What happened then?”

  “The driver rolled down his window. I asked for his license and registration. While he was getting it, I shined my flashlight around the interior of the car.”

  Nina made a note, adding an exclamation point. The exact method by which Millman had discovered the bones had not been thoroughly reviewed in Klaus’s files. Paul had tried to interview Millman the week before, but the officer was on a brief paternity leave and hadn’t been available. They might have an illegal search and seizure issue. Unfortunately, the time to raise that issue was before trial.

  “Why, oh, why didn’t we file a 1538.5 motion?” she whispered to Klaus, but he wiggled his fingers at her and kept listening. She pulled out the pretrial motions file and double-checked. Nothing. She had read the preliminary hearing transcript quickly the week before, and hadn’t noticed the potential legal issue. Her chest tightened, as if her heart were hardening itself against an assault.

  Millman was busy covering that potential issue. “Standard procedure requires that we make sure the area within a vehicle where a driver could grab a weapon is clear.”

  “You were not looking for anything but a weapon?” Jaime asked.

  “Oh, no, just making sure it was safe to be standing there. That late at night you don’t want any surprises.”

  “What, if anything, did you see, using the flashlight?”

  Sensing a coming revelation, the jury paid attention. A thought pushed at Nina straight out of evidence class in law school: if you don’t object before trial, you can usually still raise it at trial, but if you don’t raise it then, the issue’s waived, gone forever.

  Except, of course, at the legal malpractice hearing.

  She didn’t have time to get up or to form a complicated thought. She just called out, “Objection!”

  Jaime spun around, and she knew he had thought he was home free. Disappointed, the jury frowned her way.

  Klaus whispered, “What are you doing?”

  “Just one moment, Your Honor,” she said. She put her head close to Klaus’s, saying, “Why didn’t we raise the search issue?”

  “What search issue? The flashlight? He’s entitled to a light.”

  “No! No! There’s a case!”

  “About a flashlight?”

  “Klaus, I’m going to make an objection. For the record. Please don’t stop me…”

  “By all means, make your case,” Klaus said mildly. “No permission is required.”

  She stood. “The defense objects to the introduction of any evidence regarding items found in the car on grounds that the search was conducted in violation of the Fourth Amendment, which makes it an illegal search and seizure.”

  Stuck in a pose in front of the jury, Jaime let out a disbelieving snort. Nina hardly dared to look at Salas, but she nevertheless felt the bullets of disapproval he launched toward her from the bench.

  “Five-minute recess.” Salas admonished the jury not to talk about the trial. They filed out.

  Then he aimed a look at her that told her she had blown whatever goodwill they had started out with. He said, “On the record. You have stopped this trial cold to raise an issue, which, unless I am mistaken”-he looked at the index of old pleadings in front of him-“has never before been raised. Am I correct? Was there a motion filed?”

  Nina looked at Klaus, but Klaus just shrugged, and she thought, He has no idea or else he doesn’t give a damn.

  “There was not,” Jaime said.

  “Was there a 1538.5 motion filed after the preliminary hearing?”

  “No, Your Honor,” Jaime said.

  “How about a motion in limine or any sort of pretrial motion at the time we were hearing motions on issues like these?”

  “None was filed, Your Honor.”

  “I apologize to the Court,” Nina said. “I am relatively new to this case, and need time to confirm Mr. Sandoval’s statements. I regret that this issue apparently was not identified earlier. However, the defense asserts its absolute right to raise it at trial.”

  “All these proceedings I just mentioned,” Salas said, “they’re to prevent just this sort of thing-interruptions at trial, lost jury time, inefficient administration of justice.”

  “Yes, Your Honor,” Nina said. “However, I object to the introduction of any testimony regarding what Officer Millman saw with his flashlight, or any evidence that might have been obtained as a result of the use of the flashlight.”

  “Your authorities? Do you have a brief to present?”

  “I request a continuance of twenty-four hours to prepare and present points and authorities,” Nina said desperately. She couldn’t remember the case about the flashlight, not now.

  “Mr. Sandoval?”

  Jaime returned to his table. Leafing through some paperwork, he said, “The officer has testified that it was late at night. He made a legitimate traffic stop, and it is well established that he had a right to make sure the driver didn’t have weapons within reach as he approached the car. It’s a matter of the safety of our officers.

  “That’s number one. Number two, Your Honor, I object to any continuance. The defense received the police report outlining the traffic stop and use of the flashlight months ago. It is within the Court’s discretion to deny this motion for a continuance in order to conduct this trial in an orderly and efficient fashion…” He went on, but the words rushed by, a background torrent in Nina’s ears now.

  When Jaime finished, Nina opened her mouth and let go of the emotions that batted at her, saying, This will bury Klaus; you are exposing him, the firm, and yourself to ridicule and possibly a malpractice accusation. She spoke to the law. “Your Honor, we should not have waited to raise this. However, if this tainted testimony comes in, there’s no way to block it out of the jurors’ minds later.” Implicit in that sentence was the threat that the verdict wouldn’t stand up on appeal.

  Salas’s face darkened. He loved being on the bench. He exercised good judgment. He abhorred reversals. “You may cross-examine Officer Millman as to this issue, and you may raise it on appeal or do whatever you can with it later. But this Court will not put over the trial a day on a matter that could have been carefully briefed and heard on numerous-numerous-occasions prior to this trial. Is that the extent of your authorities right now? The prohibition in the Constitution against search and seizure? Do you have any California case law to present?”

  “Not without time for research,” Nina said.

  “The motion for a continuance is denied,” Salas said to the recording clerk. “The motion to suppress the testimony and evidence flowing from the flashlight observation is den
ied.”

  A short silence followed. Then Nina said, “I reserve the right to raise the motion again after cross-examination of this officer.” She sat down.

  “Bring the jury back in,” a dour Salas told the bailiff.

  “A large green duffel bag was lying partly on the back seat and partly on the floor,” Officer Millman said. “Looked like it was falling off the seat. It was right behind the driver. Open about four inches.”

  “Did you see anything unusual?”

  “I sure did, a long object about eighteen inches long, with a sort of thick knob on the end. And another knob poking out where the bag wasn’t closed. I call that suspicious.”

  “Why?”

  Everybody in the courtroom waited for Millman to say he thought the objects were bones, that they were bigger than anything Colonel Sanders dished out, but Millman surprised them. “I thought they might be weapons,” he said.

  Bones turned into rifles on that scary, dark night; it was an elegant move on Jaime’s part. He had just buttressed his legal-search argument with struts strong enough to support the cathedral at Chartres. The police had more leeway in the law when they thought they were seeing guns than when they thought they were seeing evidence. Nina didn’t believe for a second that Millman had really thought about weapons upon seeing a bunch of bones spilling out of a duffel bag.

  “What did you do then?”

  “I asked the driver to step out. I called Officer Graydon over. Then I asked the driver what he had on the back seat. He refused to answer, so I opened the rear passenger door behind the driver and pulled the bag out onto the street.”

  The jury leaned forward again. Madeleine Frey threw a quick glance at Nina to see if she would pop up again to deny them their testimony, but Nina had done what she could. She sat there, hoping to express nothing more than a bland nonreaction while Millman said, “The contents fell out on the road. They appeared to be human bones, and pieces of what looked like a man’s blue suit.”

  While a few winced, on the whole this was going to be a tough group-most eyes squinted with interest. A murmur traveled around the courtroom. Millman had the rapt attention of every person there.

  “What did you do then?” Jaime asked.

  “I attempted to question the driver about the bag. He said he wanted a lawyer, even though I hadn’t Mirandized him or arrested him. I told him he was being detained for questioning and I secured his vehicle and the bones, then put him in the police cruiser and took him to the station.”

  “Did the driver say anything on that drive?”

  “No, sir. Not one word then or after, so far as I know. He made no attempt to explain.”

  “What happened then?”

  “Well, Watch Commander said it was okay for him to make a call, so I let the defendant use the pay phone and he called his girlfriend.”

  “About what time was this?”

  “By then-I would say after three A.M. I escorted him into a witness room for questioning, and Detective Banta took custody.”

  Jaime turned his back on Millman to look at Stefan. “And can you tell us the name on the driver’s license you examined that night?”

  “Yes, sir, the name on the license and on the registration was Stefan Wyatt.”

  “And do you recognize the person you took in for questioning early on Sunday morning, April thirteenth, based on the events you have just testified about, here in this courtroom today?”

  “Yes, I recognize the defendant over there. That is the individual I stopped that night.” Millman pointed with his finger.

  “Let the record show Officer Millman has identified the defendant, Stefan Wyatt,” Jaime said. “What, if anything, did you do then in connection with this traffic stop and detention?”

  “I was on shift until eight A.M. that next morning. Officer Graydon and I called the two cemeteries right across the street from where we first saw the driver-the defendant. At about four-thirty A.M., I got a call on the radio to return to El Encinal Cemetery. Officer Graydon and I returned there and we met Jim Martinez, a groundskeeper. He took us over to a grave in the El Estero Street side of the cemetery, not far from the gate to Pearl Street. In spite of the dark, I could see some evidence of a disturbance there.”

  “What sort of evidence?”

  “A messed-up surface,” Millman said. “It didn’t look right.”

  “What happened then?”

  “Jim called in a backhoe operator, who brought floodlights. Oh. I almost forgot. There was a name on the grave. Constantin Zhukovsky. Jim went into the office and called his next of kin on the records and got permission from Alex Zhukovsky, the man’s son, to do the digging.”

  So the potential legal issue that the grave had been searched without authority would go nowhere. Nina crossed off her note and waited. Jaime was covering every bet. His examination was a model of careful preparation. Maybe he would get his way this time, and bring Klaus’s distinguished career to a screeching halt. That ought to please Jaime.

  “At a little after five-thirty in the morning we-or anyway the backhoe operator-started digging.”

  “You were present? Who else was there?”

  “Jim Martinez, the operator, Officer Graydon, and myself. And cups of coffee all around.”

  “What happened then?”

  “We could just see daylight on the horizon. By six-thirty-five A.M. the operator had dug a couple of feet down. He hit something, a woman’s arm, coming out of a trash bag.”

  Well, the moment had arrived. All Nina felt was relief.

  Madeleine Frey, plainly disturbed, retied the bow at her neck. The rest of the jurors chewed on the skin inside their mouths, scratched their heads, or engaged in other activities that expressed disquiet. They had been chosen in part because they were not newshounds, unlike the reporters in back who scribbled furiously.

  Stefan faded into his chair as if he could disappear. He kept his hands on the table as Klaus had instructed, but balled into fists.

  “A woman’s arm was sticking out of the trash bag?” Jaime said, although the words had been quite clear.

  “A small arm I took for a woman’s. Yes.” Millman wasn’t an exaggerator, Nina had decided. When he bowed his head, remembering, he needed to do it.

  “Protruding from a trash bag about four feet down?”

  “That’s right. A couple of bags, big, black dirt-covered trash bags with yellow ties.”

  Jaime put down his papers, screeched back in his chair, and asked, “What happened then?”

  “I called into the station and made contact with Detective Banta. She said she would take over. I stayed and secured the premises until she and other officers from Homicide arrived about half an hour later.”

  “And then?”

  “And then I wrote up my report, went off duty, and went home.”

  “Thank you, Officer Millman. I have nothing further,” Jaime said.

  “We’ll take our lunch recess,” said the judge, with the usual words to the jury. Stefan, looking flushed, was led into the back room where the guard would give him his lunch. Klaus and Nina stood up.

  “The flashlight-I’m going to do a computer search during lunch,” Nina said, feeling unable to avoid the presence of an elephant in the courtroom.

  “You think I made a huge mistake there, don’t you, Miss Reilly?”

  “It’s unheard of not to try to suppress traffic-stop evidence in a traffic case,” she blurted.

  “You think I’m senile?” Klaus said. “You think I didn’t give the matter due consideration?” He wore an expression as proud and sure of itself as an American flag. “Well, I am old but my mind is intact. I didn’t judge it to be necessary.”

  Nina stashed the files in her case. When the courtroom emptied, they left, Klaus in the lead, Nina following behind his erect posture and immaculate suit.

  7

  Wednesday 9/17

  WEDNESDAY MORNING KLAUS CROSS-EXAMINED OFFICER MILLMAN, who diverged not a whit from his testimony. N
ina fed Klaus a list of questions about the flashlight search, and he read them through reading glasses, putting them to the witness as she requested, along with a few of his own thrown in for good measure. For now, he behaved like a lamb, modulated and meek, but Klaus was no lamb. He never broadcasted his strength in advance but saved his power for the attack, or at least he always had in the past. She hoped to see it again during this case when they needed it most.

  Nina had tracked down her flashlight case, which turned out not to be so significant. A flashlight search was legal anywhere an occupant of a vehicle could reach within it. Millman and Jaime must have read the case, too, because Millman practically quoted it line for line. Yes, Stefan could have reached into the back seat of his small car. Yes, Millman had merely flashed the light through the window. No, he did not insert the flashlight inside the vehicle.

  After another brief but heated argument out of the hearing of the jury, Salas ruled that the search came under the Plain View Doctrine. That was that, until the time came for appeal, if Stefan was convicted. They had lost the skirmish, but at least they had belatedly got onto their horses and come out jousting, which protected the issue for appeal, and peripherally, but seriously, might protect the firm from a malpractice claim.

  What a close call. Klaus should have raised the issue long ago, but now they were in the middle of a trial, which was a bad time for self-flagellation.

  At lunch, Klaus placed his napkin neatly in his lap and stuck it to her again, suggesting she take the cross-exam on Kelsey Banta.

  “I’m not prepared, Klaus,” she said patiently. “We should keep with the plan that you handle it.”

  “Of course I am ready and able to do that,” Klaus said. He put a leaf of lettuce into his mouth. He went on eating while Nina chewed on second thoughts.

  “Are you tired?” she asked.

  “No.”

  Why was he doing this to her? To conserve his energy? Because he sensed his powers were fading? Did he believe she might do a better job? She decided he wouldn’t ask if he didn’t need her. “If you really need me, I can do it if you give me your notes right now.”