The Best Defense

by A. W. Gray

  Kathleen Fratemo had set Sharon’s motion and brief aside and dug into her belongings for a stack of papers of her own. She handed Sharon a copy and stood with the original tucked under her arm. “Just in case,” Kathleen murmured.

  Sharon blinked in surprise as she read. Fratemo, a step ahead as always, had prepared her own brief on these very issues. Criminy, Sharon thought, she was hauling ass for the library in Dallas yesterday afternoon, the admissibility problem occurring to her even as the California proceeding aired on television. Sharon pictured a bleary-eyed Kathleen Fratemo, marshalling the D.A.’s typists into action even as she called in her reservation for the red-eye into L.A. Sharon glanced sideways at Milton Breyer. What a woman will do for her man, Sharon thought. Kathleen made no move to pass the original of her brief up to the judge. Rudin scratched his forehead.

  “How long do you wish to take with this, Miss Hays?” Rudin asked. “It’s nearing lunchtime.”

  A remark of Russell Black’s came to Sharon, one he’d made as they searched the Crowley Courts Building in search of a judge to set bond for one of their clients. Our doors are open to all, rich or poor, black or white, but just don’t pester us durin’ lunchtime. “I don’t have any witnesses to present, sir,” Sharon said, “only argument. But I do plan to put Agent Moretta on voir dire, here and now. Fifteen minutes, max. My motion and brief pretty well speak for themselves. As for the state of Texas’s rebuttal, I have no idea. Miss Fraterno’s just now handed me her brief on the issue, and I…” She threw a slightly puzzled glance in Fraterno’s direction. She should have presented her rebuttal brief to the judge at the same time she handed over Sharon’s copy, but Fraterno had made no move to do so.

  Fraterno stepped quickly forward, front and center. “It’s only a partial, anticipatory brief, Your Honor. We had no way of knowing for certain if this issue would come up at all. Before we decide what rebuttal to offer, if any, we have to learn what the defense has to say.”

  Sharon blinked in irritation. What Fraterno was saying was baloney, of course—so often had Kathleen and Sharon worked together as prosecutors, and opposed each other since Sharon had become a defense lawyer, that their thoughts moved along identical channels, and Kathleen had known damned well what the defense’s arguments were going to be—but the strategy was a long way from dumb. If Fraterno committed herself at this point, she’d be stuck with her commitment. Without prestating its intent, however, the state If Texas could sit back and adjust their strategy after hearing what Sharon had to say. Sharon testily rattled the pages in her hand, and then stuffed them away in her satchel. She looked to her right. Fratemo remained eyes front, keeping her gaze riveted on the judge.

  Rudin brought out his pocket watch and wound the stem. If he keeps fooling with that thing, Sharon thought, the spring is going to break. She pictured the watch coming apart, gears and springs flying in all directions on national television, and nearly laughed out loud. Rudin said, “The court can live with that. Proceed, Miss Hays. After the defense’s presentation we’ll break for lunch. Back to your places, ladies and gentlemen.”

  Both sides returned to their respective comers. Judge Rudin addressed the courtroom at large. “Ladies and gentlemen, the defense is challenging the admissibility of Agent Maretta’s testimony, particularly in connection with a pistol found at the residence. The court has agreed to hear argument from Miss Hays, and then will determine whether to admit the gun.” He looked at the defense table. “You may proceed now.”

  Sharon couldn’t believe her ears. Rudin had just acted as a sideline commentator for the benefit of the television audience. With a jury in the courtroom, the panel would have to be escorted out before any mention of the murder weapon, but Rudin ad ensured that everyone in the country knew that the FBI had found the gun. “Everyone in the country” included all potential jurors, of course, which made official suppression of the murder weapon almost a moot point. Sharon picked up her pen and made a note that if Darla went to trial, she wanted to question each prospective juror as to their knowledge of the murder weapon, pressing so hard with the pen that her knuckles were white. She tossed the pen away and looked to the front. Rudin was glaring at her.

  “I said, proceed, Miss Hays,” Rudin snapped. “The court has granted you leeway. Please don’t abuse the privilege.”

  Leeway? Sharon thought. Freaking leeway? Arguing the admissibility of a murder weapon had now become a privilege? She got up and walked to the podium, breathing through her nose. Right here, right now, she had to put Milton Breyer, Kathleen Fratemo, and this joke of a judge as far out of her mind as possible.

  Darla’s future depended on it. If Sharon let her anger get in the way, she could be throwing her client to the wolves.

  Sharon began in a friendly tone. “Agent Moretta, I believe you testified in answer to Mr. Breyer’s questions that you had been an FBI agent for fifteen years, is that correct?” She was acutely conscious of the camera, which had swiveled toward the defense table. Keep your chin up, Darla, Sharon thought, the nation is watching you.

  Moretta kept his expression mild. “Since 1981. Yes.”

  “For a little more background, did you join the Bureau directly from college?”

  “Georgia State. Yes.” Moretta’s accent retained the barest hint of the South, tempered by stop-offs at various locations throughout his career. The FBI moved their people a lot, Sharon knew.

  “Good. And did your preliminary training include the customary ninety-day indoctrination at the FBI Academy in Quantico, Virginia?”

  Moretta’s gaze flickered with uncertainty. He wasn’t sure where this was going. “It did,” he finally said.

  “And did your training there include classes in probable cause, dealing specifically with arrest or search and seizure?”

  Moretta’s expression firmed. He was getting it. “Yes.”

  “And in your various…Strike that. In how many different FBI offices have you worked, Agent Moretta?”

  This brought a pause as Moretta frowned his way, mentally, through his career. “Five. Six, if you count a one-year temporary in Puerto Rico.”

  “Five is quite enough, Agent. It would be fair to say, wouldn’t it, that you’re not a greenhorn.”

  Moretta looked at her.

  Sharon crossed her forearms on the podium. “That you’ve been around long enough to be familiar with procedure.”

  ”I suppose you could say that. Other agents have been around longer than I.”

  “And many for shorter stints?” Sharon was prepared for this guy to dodge and feint, and he wasn’t disappointing her.

  “Yes, some.” Moretta’s tone showed the barest hint of resignation.

  “Would it be fair to say that at least more than half the agents in the FBI have less service than you?”

  “I guess it would.”

  “Fine,” Sharon said. “During your time in service, Agent Moretta, how many warrants have you served?”

  “Search warrants?”

  Sharon lifted, and then dropped her shoulders.

  “Search … arrest … appearance …”

  “Oh, I couldn’t possibly remember all of them,” Maretta said.

  “Is it more than a hundred?”

  Breyer popped up at the prosecution table. “Objection. The witness has stated that—”

  “I’ll withdraw the question,” Sharon said. Breyer sat down. She flipped over a page in her legal pad and pretended to read. “Agent Moretta, you have served warrants before, haven’t you?”

  “I have.”

  “Then you are familiar with the difference between a probable cause warrant and one issued after an indictment or as the result of a court order, aren’t you?”

  “I am.” Moretta grasped his left hand in his right and squeezed his left hand fingers together.

  “For the record,” Sharon said, “please explain the dif
ference.” She glanced toward the bench, where Rudin was giving his undivided attention.

  Moretta looked at his lap. “Probable cause, that’s where we’re the ones asking for a warrant.”

  “We being the FBI?”

  “Yes. The other warrants we’re merely serving at the request of the court or the grand jury.”

  “Some other party’s origination,” Sharon said.

  “That’s right.”

  “So when you want to, say, search someone’s home, you need a warrant signed by a magistrate to do so.”

  “That would be a fair assessment,” Moretta said.

  “When you go to the magistrate, then, the magistrate knows nothing of the circumstances other than what you tell him in your affidavit, is that right?”

  “In most cases. Yes.”

  “And in issuing this warrant, is this magistrate dependent on the truth of what you tell him?”

  Moretta put on a show of being puzzled. “I’m not…”

  “Let me restate the question.” Sharon allowed just a tad of sarcasm to creep into her voice. “In asking for a search warrant, you swear out an affidavit, don’t you?”

  “That’s the procedure.” Moretta was all at once a bit snappish.

  “Telling the circumstances causing you to need the warrant,” Sharon went on. “In front of a notary. Right hand raised, left hand on the Bible—”

  “Objection.” Breyer’s voice cracked in indignation. “Your … Honor …”

  “That will do, Miss Hays.” Rudin frowned at Sharon, then folded his hands.

  “I apologize to the court,” Sharon said, then returned her attention to the witness. “But wouldn’t it be fair to state, Agent Moretta, that if the magistrate has incomplete facts, or possibly the facts contained in the affidavit are false, then the magistrate might sign an improper warrant?”

  Breyer popped up so quickly that Sharon wondered if Kathleen Fratemo had pinched him. Breyer stood at attention, arms at his sides. “We have to inquire where this is going. Surely Miss Hays isn’t questioning the integrity of the Bureau here.”

  I sure am, buster, Sharon thought, as you damned well know. She said in a businesslike tone, “I’m not sure that’s an objection, Your Honor, since Mr. Breyer didn’t so state, but I’ll point out to the court that I haven’t accused anyone of anything. I’m merely placing procedure on the record, and establishing that the request for the search warrant in this case was originated by the FBI.”

  A flood of uncertainty crossed Rudin’s features, replaced at once by a politician’s smile. “I’ll allow it, Mr. Breyer. But be careful, Miss Hays.”

  Which is a typical jurist’s response, Sharon thought, when the judge doesn’t know what the fuck is going on. She looked at the witness. “Was this warrant originated at the FBI’s request, Agent Moretta?”

  “It was.” Moretta’s tone was more emphatic than necessary.

  “The FBI’s alone?”

  Moretta seemed hesitant. He looked toward the prosecution table.

  With the witness off guard, Sharon changed directions in midstream. “More specifically, Agent,” Sharon said, “prior to swearing out the affidavit, were you at any time in contact with any representative of Dallas County, Texas?”

  Moretta’s gaze flickered. “I’m not…”

  Sharon bore down. “Didn’t you find a gun during your search, Agent Moretta? A thirty-eight-caliber police special?” Since Rudin had already let the nation in on the fruits of the FBI search with his sidebar speech, Sharon saw no point in being coy.

  “Yes. There was that.”

  “Mmm-hmm. And didn’t you take the gun directly to the FBI lab in downtown L.A. for comparison with some bullet fragments? And didn’t your lab fax those results to Dallas County, all causing the arrest warrant for Darla Cowan to be issued?” Sharon pointed at Darla, whose posture remained erect even though she was pale as a ghost. Sharon smiled at the witness. “I’ve asked you a question, Agent Moretta.” Visible in the comer of her eye, Breyer started to come to his feet. Kathleen Fraterno stopped him with a hand on his arm. She looked resigned.

  “It … seems they did,” Moretta admitted.

  “Thank you. Didn’t the bullet fragments the L.A. lab used for comparison come from Dallas County, Texas?”

  Moretta gave a tiny shrug. “They furnished them, yes.”

  Sharon’s eyes flashed fire. “So I’ll ask you again, Agent Moretta.” She pulled a copy of the search warrant from her notes and waved the copy toward the witness stand. “Before you swore out the affidavit in connection with your search warrant, had you been in contact with any representatives of Dallas County, Texas?”

  Moretta paused for a beat of five, waiting for the prosecution to object.

  Sharon couldn’t resist. She said, “And did they possibly tell you”—she suddenly spoke through her nose in a high, mimicking falsetto—“‘Be sure and get your story straight before you take it to the magistrate, buddy.’”

  “Objection.” Fratemo took over once more, coming to her feet so quickly that the soles of her shoes nearly left the floor. “Your Honor, this is so out of line.”

  “That it is, Miss Hays,” Rudin snapped. “And I’ll tell you that your status as a visitor here has already allowed you more latitude than I normally permit. One more time, Counsel, and I’ll hold you in contempt.”

  Sharon pictured herself sharing a cell with Darla in the innards of the jail. She said in a subdued tone, “Yes, sir,” then turned to the witness. “Did you talk to Dallas County before you swore to the affidavit, Agent Moretta?”

  “I may have.”

  “You may have or you did? Which is it?”

  Moretta’s gaze was suddenly riveted on the back of the courtroom. “I did.”

  “And in taking the warrant in for signature, did you make the magistrate aware that you had done so?”

  “I don’t recall.”

  “Oh? Well, if you don’t recall that, do you recall if you told the magistrate that Miss Cowan was under investigation on federal charges, or more specifically, interstate flight to avoid prosecution, in violation of federal codes?”

  Moretta turned his hands palms up. “I’m sure I must have.”

  “Because if you hadn’t, the magistrate wouldn’t have issued the warrant, would he?”

  “Objection.” Fraterno’s voice wasn’t nearly as forceful as before. “The witness cannot testify as to what the magistrate would or wouldn’t have done.” Rudin brought out his Old Reliable, the watch.

  “Sustained.”

  Sharon didn’t miss a beat. “Agent Moretta, mustn’t one allege violation of the federal code when asking for a federal warrant?”

  Moretta’s face went suddenly deadpan. “Those are the rules.”

  “So there will be no question,” Sharon said, “I’ll refer to the affidavit itself.” She flipped through her copy of the search warrant and read off, “‘The subject has crossed state lines in an effort to avoid the jurisdiction of a Texas court.’” She put the warrant away. “Are those your words, Agent Moretta?”

  “I suppose they are.”

  “Thank you. During your search, conducted under this warrant, what did you take from the house other than the pistol?”

  Moretta licked his lips, for once at a loss for words. “Did you find any airline tickets?” Sharon asked. “Or possibly, a matchbook from Planet Hollywood’s Dallas location?”

  Moretta’s voice dropped an octave. “No, I didn’t.”

  “In fact, did you take anything from Miss Cowan’s residence as evidence that she’d been traveling interstate?”

  “No.” Resolutely, in a monotone.

  “Well, did the pistol reveal any evidence that Miss Cowan had been flitting about the country? Was it loaded with bullets marked ‘Made in Texas; anything of that nature?”


  “No.” Moretta was stoic now, accepting his punishment, too old a hand to expect the prosecution to bail him out. Kathleen Fraterno sat mute with her hands folded in her lap. Milton Breyer rubbed his forehead.

  Sharon paused and looked down, thinking. Was she through with this guy? Something occurred to her. She lifted her face to regard the witness. “One more question, Agent. Once the lab’s comparison of the bullet fragments was complete, you faxed the results to Dallas County, didn’t you?”

  “Yes, ma’am.”

  Sharon’s forehead wrinkled in a frown of concentration. “And where else did you send a copy of the information?”

  Moretta pinched his chin. “I beg your pardon?”

  “Sir, your affidavit states that you suspected Miss Cowan of a violation of federal law, but you faxed the results to a state authority. Did you also furnish the results to a United States attorney in some jurisdiction?”

  “I don’t recall that I did,” Moretta said softly.

  “How about another FBI office, possibly one in Texas?”

  “I don’t think so.”

  “You don’t think so.” Sharon bent over the podium and fixed the federal man with an accusatory glare.

  “You weren’t really conducting a federal investigation at all, Agent Moretta. Were you?” She turned the question into a statement as she shifted her gaze to the bench. “Our objection stands as made, Your Honor. Agent Moretta conducted his search under federal guise when in reality he was acting on behalf of the state of Texas. He had no valid Texas warrant, much less a warrant from California, and we submit that any fruits of the search, or any reference whatsoever to the warrant itself, are inadmissible, both in this hearing and at trial, as a matter of law.” Sharon nodded for emphasis and resumed her seat. She whispered to Darla, “Let them chew on that for a while.”

  Judge Rudin put his pocket watch away and swiveled his chair to half face the audience, half face the camera. “We’re going to break for lunch now, ladies and gentlemen, after which the state of Texas may present any rebuttal to Miss Hays’s argument it wishes before I make a ruling. Let’s all return at one-thirty, shall we?” He smiled toward the jury box, where the minicam was, and for just an instant Sharon expected the judge to say something like, “This is Dandy Drake Rudin, signing off for now.” Or “Peace” perhaps, with his right hand lifted Dave Garroway fashion. Instead, however, Rudin climbed down from the bench and retreated to chambers with his robe swirling about his calves. The cameraman switched off his machine and bent to make some adjustments. Hubbub of conversations drifted through the courtroom. Spectators rose from their seats with a rustle of cloth and a whisper of nylon.