He knew there were gaps a good defense lawyer could probably drive a golf cart through, but he’d just have to deal with it when and if the time came.
Della walked up behind him and asked, “Labels?”
“Here you go,” Kaye said, handing them to her. “I’ve got to be in court in a little while. Any idea how long it will take? Can I wait?”
“I’m good, Detective, but I’m no miracle worker. I don’t know how long this will take. Might not even be today. How ‘bout I call you when I’m done?”
“It takes a long as it takes, I guess,” Kaye said. “Thanks, Della.”
Kaye didn’t pretend to understand the science of questioned documents examination. There were conflicting theories of density versus residual static electricity and it was far from settled science.
He only cared that it worked, and that Della Robinson was the Grand Mistress of finding things that had been written down by someone that didn’t want anyone else to see them.
***
At 9:40 a.m. Kaye found Kayla Okafor waiting in the hallway outside Judge Gardner’s courtroom.
The look of astonishment on her face when she saw him was hard to mistake.
“What?” Kaye asked. “You didn’t think I’d show? Maybe be on the way to Mexico?”
“I knew you’d be here,” she said. “I’ve just never seen you in a suit before.”
“Court is court. Appearance counts.”
“That it does. Is Captain Thompson with you?”
“No, but I saw him drive in. He should be here in a minute.”
As if on cue, Thompson stepped off the elevator and headed their way.
“Good morning,” the Captain said. “Wow, Detective, nice suit. Didn’t know you owned clothes like that.”
“Thanks,” Kaye said, not rising to the bait.
“Do you have the phone?” Okafor asked Thompson.
He patted the outside of his suit jacket as he asked, “Are Sloan and Leale going to be here?”
“I don’t know,” she said. “They’re not my witnesses, so I didn’t call them. Feinmann might have, but I don’t know. There’s no disclosure in these situations. Let’s go in and talk strategy for a minute, and then I need to get five minutes with the judge before we start.”
The three entered the empty courtroom and Okafor headed for the Respondents table.
To Kaye the courtroom looked like a chapel, the altar replaced by the judge’s bench and the rose window replaced by a large County seal. Rows of wooden benches that could have been pews filled the back of the room and a wooden railing divided the space in half. The illusion simply replaced a black-cassocked priest with a black-robed judge.
“Okay,” Okafor said after sitting down. “Detective, I forwarded the outline you sent me to Judge Gardner on Friday so she could review it over the weekend. My plan is this: Captain, I’ll call you first to testify about your possession of Kaye’s phone for the last ten days.” She turned to Kaye. “Then I’ll put you on the stand, Detective. You know the drill. Just answer my questions honestly and hope Gardner doesn’t shut us down.”
Kaye nodded.
“I’ll be right back,” Okafor said, then stood and headed for the door.
The courtroom gradually filled up with spectators, several of whom Kaye recognized as local print and broadcast media reporters. Okafor returned just before Megan Sullivan and Howard Feinmann entered the courtroom and took seats at the Petitioners table. Behind them were Detectives Sloan and Leale, who sat behind them on the other side of the railing.
At exactly 10:00 a.m. the bailiff entered and intoned, “All rise,” and announced that court was in session, the Honorable Kathleen Gardner presiding. Gardner entered and told everybody to sit down.
Kaye had been before Gardner on other occasions and knew her to be an astute, but pragmatic, jurist.
“Good morning,” Gardner began. “We’re here this morning on the matter of Megan Sullivan versus Benjamin Kaye on a request by the Petitioner for the issuance of a Restraining Order against the Respondent based on allegations of stalking and harassment.” Gardner looked up. “Is Detective Kaye present?”
The question was purely rhetorical, for the record. Gardner knew Kaye by sight.
“He is, Your Honor,’ Okafor said as she stood up. “Deputy District Attorney Okafor of counsel for Detective Kaye.”
“Thank you, Ms. Okafor.” Gardner turned her gaze to the other table. “I see that Ms. Sullivan is also present, with counsel. Good morning, Mr. Feinmann.”
Feinmann stood and straightened his tie before saying, “Good morning, Your Honor. And let me say how unfavorably impressed, and chagrined, I am that the District Attorney’s Office is now providing defense services to LAPD officers in civil matters.” He sat back down.
Gardner surveyed the room, then looked down at the bench momentarily before looking up. “Mr. Feinmann, your client’s allegations against Detective Kaye and the purported supporting evidence are well summed up in your motion and amended request for this hearing, which I have reviewed carefully. I have also reviewed Respondent’s written response, and I believe the reason for Ms. Okafor’s presence will become clear as we proceed. Additionally, Ms. Okafor has waived her right to cross examine your client, so unless you have new information that was not in your hearing request I’m going to excuse Ms. Sullivan from taking the stand and going over everything again, and go straight to the Respondent. I trust that meets with your approval.”
Feinmann stood again and said, “No objections, Your Honor. Ms. Sullivan’s petition speaks for itself.” When he sat back down, Kaye saw him smile at Sullivan as if he’d just scored some kind of victory.
“Ms. Okafor, call your first witness, please,” Gardner said.
“I have a motion first, Your Honor, if I may.”
“Make your motion, Counselor.”
“I move that Detectives Sloan and Leale,” she pointed, “be sequestered if they intend to testify.”
“Your Honor,” Feinmann said as he stood up. “I do not plan on calling either of them. They are here of their own volition.” He smiled. “Probably to arrest Mr. Kaye at the conclusion of this hearing.”
Gardner glared at Feinmann, then looked at Okafor. “Motion denied, Ms. Okafor.”
“Thank you, Your Honor,” Okafor said, then called Captain Thompson, who went forward and was sworn in.
The Captain’s testimony was basic and straightforward. He confirmed that he had been in sole possession of Kaye’s old phone, the one Sullivan claimed was the originating number for the harassing and inappropriate calls and texts, for over a week and that the phone had remained powered off.
“Do you have that cellular telephone on your person now, Captain?” Okafor asked.
“I do,” Thompson replied, reaching into his inside suit pocket and retrieving it.
“Is it turned on?” Okafor asked.
“It is not.”
“Turn it on, please, and let the court know when it has service.”
Thompson powered on the phone and watched the screen. A moment later he said, “Four bars, Counselor.”
Thompson had barely finished speaking when the phone in his hand began to ding and chime rapidly.
“What’s all the noise, Captain?” Okafor asked.
“It looks like there are a lot of missed calls and texts coming in,” Thompson replied.
“You mean like the phone has been turned off for a long time?” Okafor asked.
“Yes, ma’am.”
Okafor advanced, took the phone from Thompson and stepped in front of the bench.
“Your Honor, we can probably save some time by having you look at this.” She held the phone out to Gardner. “If you check the call and text histories you will see that there are only two outgoing communications to Ms. Sullivan during the time she is alleging that my client was stalking and harassing her, and all the unread texts and missed calls are from the time Captain Thompson testified that the phone was turned off.”
Gardner spent a moment studying the phone, then looked at Feinmann.
“Counselor, would you like to see this?”
Feinmann was on his feet in a split second. “Not necessary, Your Honor. But I do have some questions for the Captain.”
“Ms. Okafor, have you any more questions for Captain Thompson?”
“Not at this time, Your Honor.”
“He’s all yours, Mr. Feinmann,” Gardner said.
Feinmann smoothed his tie and approached the playing field in front of the witness stand and the bench. “Captain,” he led off, “how long have you known Detective Kaye?”
“Five, almost six, years.”
“Would you, as his commanding officer, say he’s a good cop?”
“Maybe the best detective I’ve ever met,” Thompson replied.
“Then why do you write him up so much?” Feinmann asked.
Thompson was taken aback by the question and it took him a moment to formulate an answer.
“Kaye is a great detective,” Thompson said. “Sometimes his methods are, shall we say, a bit unorthodox is all.”
“Unorthodox,” Feinmann repeated. “Are they unorthodox enough that you’ve had occasion, several occasions, in fact, to suspend Detective Kaye?”
“Yes, sir,” Thompson said. “But –”
“Your Honor,” Feinmann interrupted, “please instruct Captain Thompson to simply answer the question. We’re not interested in his ‘but’.”
Grunts and stifled laughter came from the spectators and Gardner glared at them before turning to Thompson. “You heard the man. Just answer the question.”
Thompson nodded. “Yes, I have suspended Detective Kaye on more than one occasion.”
“Are you and Detective Kaye friends?” Feinmann asked.
“No.”
“But you’re both LAPD, right?”
“Yes.”
“So you’ve got each other’s backs, right?” Feinmann asked. “You know, brother officer and all that boys in blue stuff?”
“We take care of our own,” Thompson said.
“Good to know,” Feinmann said. “Captain, are you aware that text conversations and outgoing calls can be deleted from a phone’s histories?”
“Yes,” Thompson replied.
“And that there is no real way to track a phone or know when that phone is turned off and on except through provider records?”
“Yes,” Thompson said.
Feinmann turned and went back to his table and grabbed a sheet of paper out of his briefcase. With a smirk toward Okafor he approached the bench and held it up toward Gardner.
“Since we’re apparently all about saving time here today, Your Honor, I would offer this telephone service provider record for your examination. You can see that it is for the number assigned to Detective Kaye’s allegedly former phone. Please take note of the highlighted lines, which indicate that the phone registered with a tower well after Captain Thompson testified he had possession of the phone and that it was always turned off. The phone was turned on for several minutes, during which time someone, anyone, could have scrubbed the histories of that phone.” He handed the paper to Gardner, who studied it intently for a moment.
Feinmann turned back to Thompson. “Captain, do you know what a SIM card is?”
“It’s what makes a phone a phone,” Thompson replied.
“They’re unique, right?”
“I would imagine they’d have to be.”
“But did you know they can be removed from one phone and put into another one? Like a car engine can be swapped?”
“I’ve seen it done, yes,” Thompson said.
“You’ve seen it done?” Feinmann said incredulously. “Maybe with Detective Kaye’s phone?”
Before Thompson could answer Okafor was on her feet. “Objection!”
“Withdrawn,” Feinmann said, then looked at Okafor. “I have no further questions for this witness.”
Gardner examined the sheet of provider data and held them out toward Okafor.
“You might want to take a look at these, Counselor.”
Okafor advanced, took the sheet and scanned it.
“Redirect, Your Honor?” she asked.
“I think that would be a good idea, Ms. Okafor,” Gardner said.
“Thank you.” She turned to Thompson.
“Captain, did you turn the phone on when it was in your custody? Specifically at,” she glanced at the pages and read off the date and time.
“I didn’t,” Thompson said sheepishly. “But Detective Kaye did. It was in my office. I was present, and he needed to retrieve some of his contact information. That’s all. I had forgotten about that.”
“Did you or Detective Kaye at any time remove the SIM card from that phone while it was in your possession?”
“No, ma’am.”
“Thank you, Captain.”
“Re-cross, Mr. Feinmann?” Gardner asked.
“No, Your Honor.”
“Call your next witness, Ms. Okafor.”
“I call Detective Kaye to the stand.”
***
Kaye went forward and was sworn in before taking his seat in the witness box.
Okafor’s first few questions were procedural: Name, occupation, how long he’d been at the LAPD, and basic groundwork. Then she got down to business.
“Detective Kaye, did you make the phone calls and send the texts, some of which, I must admit, are quite salacious, to Ms. Sullivan as she alleges in her petition?”
“I did not,” Kaye replied.
“Then how do you explain the volumes of records Ms. Sullivan submitted to this court in support of her petition, which shows both calls and texts originating from your number?”
“I can’t,” Kaye said. “All I can say is that I get calls all the time that don’t really come from the number that shows up on my caller ID. Usually it’s people trying to sell me something or a scam of some sort.”
“Are you referring to ‘spoofing’?” Okafor asked.
“I believe that’s what it’s called.”
“Have you ever met Megan Sullivan?”
“Not formally, no.”
“Have you ever called or texted Megan Sullivan?”
“I’ve never texted her,” Kaye replied. “I have called her phone twice, spoken to her once, and the second time left her a voice mail. She did not return my call.”
“Why did you call her?” Okafor asked.
Kaye explained the circumstances on the day of Avi Geller and Nicole Ingram’s murders and why he’d called Sullivan.
“So, your call was official business?” Okafor asked, turning around and glancing at Sullivan.
“Yes. I wanted access to the property and house, and hoped Ms. Sullivan could let me in.”
“Did she?”
“No.”
“Why not?”
“She was an hour away, and I couldn’t wait.”
“Did you enter the premises without her?”
“I did not,” Kaye said. “I didn’t have a warrant, and didn’t believe a valid exception existed.”
“What was Ms. Sullivan’s reaction when you called her?” Okafor asked.
“She was concerned about the house,” Kaye answered, “and wanted me to wait in case she needed to make a police report.”
“Why didn’t you wait, Detective?”
“I needed to talk to the wife of one of the homicide victims as soon as possible.”
“Did you tell her that?”
“Not specifically, no,” Kaye replied. “I told her to check the house, and if there was a problem, call it in and an officer would respond.”
“Did she?” Okafor asked. “File a report, I mean.”
“She did,” Kaye said, then explained that Patrol Officer Devon had responded to take a vandalism report.
“Tell the court what happened the next morning, insofar as it relates to Ms. Sullivan.”
Kaye told the story about being called in to Cap
tain Thompson’s office because Sullivan had called a friend, whose husband was a high-ranking LAPD officer, and complained about him. The husband had called Thompson’s boss, and Thompson had come to him. “You know what they say about the effluent flowing downhill,” he concluded.
“Did Captain Thompson take disciplinary action against you?” Okafor asked.
“No. I explained the situation and he agreed with how I handled it under the circumstances.”
“If I may,” Howard Feinmann said, again smoothing his tie as he stood up. “Your Honor, this is all well and good, but I fail to see the relevance of this testimony in the matter before the court and ask that Ms. Okafor be directed to stick to the question at hand.”
“Your Honor,” Okafor spoke up first, “Ms. Sullivan is claiming improper, indeed illegal, acts by Detective Kaye vis-à-vis their interactions. I’m simply establishing some context as to how and why, out of four million residents of Los Angeles, their paths crossed in the first place.”
Gardner thought for a moment, then said, “Sit down, Howard,” then turned to Okafor and said, “You may continue.”
“Thank you, Your Honor,” Okafor said, then turned to Kaye. “Detective, would you explain to the court the circumstances of your second call to Ms. Sullivan?”
Kaye went through it, from his first visit to SecureLife and their initial refusal to surrender any data from the relevant security logs, why, and how he ended up obtaining it.
“Why would Ms. Sullivan do that?” Okafor asked when he was finished.
“I can only speculate,” Kaye said. “But it did make me wonder.”
“Isn’t it true that it was right about then that you found out Ms. Sullivan had filed a formal complaint against you with the LAPD?”
“Yes.”
“But isn’t today the only time you’ve ever laid eyes on Megan Sullivan, other than her photograph on the For Sale sign in front of the house in question?”
“No,” Kaye replied. “I conducted surveillance on her at one point, with prior notification to Captain Thompson and with his approval, in relation to the Geller investigation.”
“So, one other time before today. Is that correct?”
“Yes, ma’am.”
“On official business?’
“Yes, ma’am.”
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