The Fifth Witness: A Novel

by Michael Connelly

  “We’ll see you in court,” Jennifer said.

  The women headed to the side door of the gallery where a Lincoln driven by Cisco was waiting. Their job was done.

  That was then, this was now. I sat in the Honorable Coleman Perry’s courtroom preparing to defend the service and validity of the Opparizio subpoena and the very heart of the defense’s case. My co-counsel, Jennifer Aronson, sat next to me at the defense table and next to her was our client, Lisa Trammel. At the opposing table sat Louis Opparizio and his two attorneys, Martin Zimmer and Landon Cross. Andrea Freeman was in a seat located back against the rail. As the prosecutor of the criminal case out of which this hearing arose, she was an interested party but this wasn’t her cause of action. Additionally, Detective Kurlen was in the courtroom, sitting three rows back in the gallery. His presence was a mystery to me.

  The cause of action was Opparizio’s. He and his legal crew were out to quash the subpoena and prevent his participation in the trial. In strategizing how to do so they had thought it prudent to tip Freeman to the hearing in case the prosecution also saw merit in keeping Opparizio from the jury. Though largely there as a bystander, Freeman could step into the fray whenever she wanted and she knew that whether she joined in or not, the hearing would likely offer her a good look at the defense’s trial strategy.

  It was the first time I saw Opparizio in person. He was a block of a man who somehow appeared as wide as he was tall. The skin on his face had been stretched tight by the scalpel or by years of anger. By the cut of his hair and of his suit, he looked like money. And he seemed to me to be the perfect straw man because he also looked like a man who could kill, or at least give the order to kill.

  Opparizio’s lawyers had asked the judge to hold the hearing in camera—behind closed doors in his chambers—so that the details revealed would not reach the media and therefore possibly taint the jury pool that would assemble the following day. But everybody in the room knew that his lawyers were not being altruistic. A closed hearing guarded against details about Opparizio leaking to the press and informing something much larger than the jury pool. Public opinion.

  I argued vigorously against closing the proceedings. I warned that such a move would cause public suspicion about the subsequent trial and this outweighed any possible taint of the jury pool. Elected to the bench, Perry was ever mindful of public perception. He agreed with me and declared the hearing open to the public. Score a big one for me. My prevailing on that one argument probably saved the entire case for the defense.

  Not a lot of the media was there but there was enough for what I needed. Reporters from the Los Angeles Business Journal and the L.A. Times were in the front row. A freelance video man who sold footage to all the networks was in the empty jury box with his camera. I had tipped him to the hearing and told him to be there. I figured that between the print media and the lone TV camera, there would be enough pressure on Opparizio to force the outcome I was looking for.

  After dispensing with the request to hide behind closed doors, the judge got down to business.

  “Mr. Zimmer, you have filed a motion to quash the subpoena of Louis Opparizio in the matter of California versus Trammel. Why don’t you state your case, sir?”

  Zimmer looked like a lawyer who had been around the block a few times and usually got to carry his enemies home in his briefcase. He stood to respond to the judge.

  “We would love to address the court on this matter, Your Honor. I am going to speak first to the facts of the service of the subpoena itself and then my colleague, Mr. Cross, will discuss the other issue for which we seek relief.”

  Zimmer then proceeded to claim that my office had engaged in mail fraud in laying the trap that resulted in Opparizio being served a subpoena. He said that the glossy brochure that had baited his client was an instrument of fraud and its placement in the U.S. mail constituted a felony that invalidated any action that followed, such as service of the subpoena. He further asked that the defense be penalized by being disallowed from any subsequent effort to subpoena Opparizio to testify.

  I didn’t even have to stand up for this one—which was a good thing because the simple acts of standing and sitting still set off flares of pain across my chest. The judge raised his hand in my direction to hold me in check and then tersely dismissed Zimmer’s argument, calling it novel but ridiculous and without merit.

  “Come on, Mr. Zimmer, this is the big league,” Perry said. “You have anything with some meat on the bone?”

  Properly cowed, Zimmer deferred to his colleague and sat down. Landon Cross stood up next to face the judge.

  “Your Honor,” he said, “Louis Opparizio is a man of means and standing in this community. He has had nothing to do with this crime or this trial and objects to his name and reputation being sullied by his inclusion in it. Let me emphatically repeat, he had nothing to do with this crime, is not a suspect and has no knowledge of it. He has no probative or exculpatory information to provide. He objects to defense counsel’s putting him on the witness stand to conduct a fishing expedition and he objects to counsel’s using him as a deflection from the case at hand. Let Mr. Haller fish for red herrings in a different pond.”

  Cross turned and gestured to Andrea Freeman.

  “I might add, Your Honor, that the prosecution joins me in this motion to quash for the same reasons mentioned.”

  The judge swiveled on his seat and looked at me.

  “Mr. Haller, you want to respond to all of that?”

  I stood up. Slowly. I was holding the foam gavel from my desk, working it with my fingers, which were newly freed from plaster but still stiff.

  “Yes, Your Honor. I would first like to say that Mr. Cross makes a good point about the fishing expedition. Mr. Opparizio’s testimony at trial, if allowed to proceed, would include a fair amount of fishing. Not all of it, mind you, but I would like to drop a line in the water. But this is only, Your Honor, because Mr. Opparizio and his defensive front have made it darn near impossible for the defense to conduct a thorough investigation of the murder of Mitchell Bondurant. Mr. Opparizio and his henchmen have thwarted all—”

  Zimmer was up on his feet objecting loudly.

  “Your Honor! I mean, really! Henchmen? Counsel is clearly engaged in playing to the media in the courtroom at Mr. Opparizio’s expense. I once again urge you to move these proceedings to chambers before we continue.”

  “We’re staying put,” Perry said. “But Mr. Haller, I’m not going to allow you to call this witness just to let you grandstand for the jury. What’s his connection? What’s he got?”

  I nodded like I was ready with an obvious answer.

  “Mr. Opparizio founded and operates a company that acts as a middleman in the foreclosure process. When the victim in this case decided to foreclose on the home of the defendant, he went to Mr. Opparizio to get it done. That, to me, Your Honor, puts Mr. Opparizio on the front line of this case and I would like to ask him about this because the prosecution has stated to the media that the foreclosure is the motive for the murder.”

  Zimmer jumped in before the judge could respond.

  “That is a ridiculous assertion! Mr. Opparizio’s company has a hundred eighty-five employees. It is housed in a three-level office building. To—”

  “Foreclosing on people’s homes is big business,” I interjected.

  “Counsel,” the judge warned.

  “Mr. Opparizio had nothing whatsoever to do with the defendant’s foreclosure other than the fact that it was handled by his company along with about a hundred thousand other such cases this year,” Zimmer said.

  “A hundred thousand cases, Mr. Zimmer?” the judge asked.

  “That’s right, Judge. On average the company has been handling two thousand foreclosures a week for more than two years. This would include the defendant’s foreclosure case. Mr. Opparizio has no specific knowledge of her case. It was one of many and was never on his radar.”

  The judge dropped deep into thought an
d looked like he had heard enough. I had hoped not to have to reveal my ace in the hole, especially in front of the prosecutor. But I had to assume Freeman was already aware of the Bondurant letter and its value.

  I reached down to the file in front of me on the table and flipped it open. There were the letter and four copies, ready to go.

  “Mr. Haller, I’m inclined to—”

  “Your Honor, if the court would indulge me, I would like to be allowed to ask Mr. Opparizio the name of his personal secretary.”

  That gave Perry another pause and he screwed his mouth up in confusion.

  “You want to know who his secretary is?”

  “His personal secretary, yes.”

  “Why would you want to know that, sir?”

  “I am asking the court to indulge me.”

  “Very well. Mr. Opparizio? Mr. Haller would like the name of your personal secretary.”

  Opparizio leaned forward and looked at Zimmer as if needing his approval. Zimmer signaled him to go on and answer the question.

  “Uh, Judge, I actually have two. One is Carmen Esposito and the other is Natalie Lazarra.”

  He then leaned back. The judge looked at me. It was time to play the ace.

  “Judge, I have here copies of a certified letter that was written by Mitchell Bondurant, the murder victim, and sent to Mr. Opparizio. It was received and signed for by his personal secretary Natalie Lazarra. The letter was turned over to me in discovery by the prosecution. I would like Mr. Opparizio to testify in court so that I can question him about it.”

  “Let’s take a look,” Perry said.

  I stepped away from the table and delivered copies of the letter to the judge and then to Zimmer. On my way back I swung by Freeman and offered her a copy.

  “No, thanks. I already have it.”

  I nodded and went back to the table but stayed standing.

  “Your Honor?” Zimmer said. “Can we have a short recess to look this over? We haven’t seen it before.”

  “Fifteen minutes,” Perry said.

  The judge stepped down from the bench and went through the door to his chambers. I waited to see if the Opparizio team would take it out into the hall. When they didn’t move, I didn’t. I wanted them to worry that I might overhear something.

  I huddled with Aronson and Trammel.

  “What are they doing?” Aronson whispered. “They had to have known about the letter already.”

  “I am sure the prosecution gave them a copy,” I said. “Opparizio acts like he’s the smartest guy in the room. Now we’re going to see if he is the smartest guy in the room.”

  “What do you mean?”

  “We’ve got him between a rock and a hard place. He knows he should tell the judge that if I ask about that letter he will take the Fifth and therefore the subpoena should be kicked. But he knows if he takes the Fifth in front of the media here, he’s in trouble. That puts blood in the water.”

  “So what do you think he’ll do?” Trammel asked.

  “Act like the smartest guy.”

  I pushed back from the table and stood up. I nonchalantly started to pace behind the tables. Zimmer looked over his shoulder at me and then leaned in closer to his client. Eventually, I came back to Freeman, still in her chair.

  “When do you wade in?”

  “Oh, I’m thinking I might not have to.”

  “They already had the letter, didn’t they? You gave it to them.”

  She shrugged her shoulders but didn’t answer. I looked past her to Kurlen sitting three rows back.

  “What’s Kurlen doing here?”

  “Oh… he might be needed.”

  That was a lot of help.

  “Last week when you made the offer, that was because you had found the letter, wasn’t it? You thought your case was in real trouble.”

  She looked up at me and smiled, not giving anything away.

  “What changed? Why’d you pull the offer back?”

  Again she didn’t answer.

  “You think he’s going to take the Fifth, don’t you?”

  The shrug again.

  “I would,” I said. “But him…?”

  “We’ll know soon enough,” she said, dismissively.

  I went back to the table and sat down. Trammel whispered to me that she still wasn’t clear on what was going on.

  “We want Opparizio to testify at trial. He doesn’t want to but the only way the judge will let him out of the subpoena is if he says he’ll invoke his Fifth Amendment protection against self-incrimination. If he does that, we’re dead. He’s our straw man. We need to get him on the stand.”

  “Do you think he will take the Fifth?”

  “I’m betting no. Too much at stake with the media here. He’s putting the finishing touches on a big merger and knows if he takes the nickel the media will be all over him. I think he’s just smart enough to think he can talk his way out of it on the stand. That’s what I’m counting on. Him thinking he’s smarter than everybody else.”

  “What if—”

  She was cut off by the return of the judge to the bench. He quickly went back on record and Zimmer asked to address the court.

  “Your Honor, I would like the record to reflect that against the advice of counsel my client has instructed me to withdraw the motion to quash.”

  The judge nodded and pursed his lips. He looked at Opparizio.

  “So your client will testify in front of the jury?” he asked.

  “Yes, Your Honor,” Zimmer said. “He has made that decision.”

  “You sure about this, Mr. Opparizio? You have a lot of experience sitting with you at that table.”

  “Yes, Your Honor,” Opparizio said. “I’m sure.”

  “Then motion withdrawn. Any other business before the court before we begin jury selection tomorrow morning?”

  Perry looked past the tables to Freeman. It was a tell. He knew there was further business to discuss. Freeman stood up, file in hand.

  “Yes, Your Honor, may I approach?”

  “Please do, Ms. Freeman.”

  Freeman stepped forward but then waited for the Opparizio team to finish packing and move off the prosecution’s table. The judge waited patiently. Finally, she took her place at the table, remaining standing.

  “Let me guess,” Perry said. “You want to talk about Mr. Haller’s updated witness list.”

  “Yes, Judge, I do. I also have an evidentiary issue to bring up. Which would you like to hear first?”

  Evidentiary issue. I suddenly knew why Kurlen was in the courtroom.

  “Let’s go with the witness list first,” the judge said. “I saw that one coming.”

  “Yes, Your Honor. Mr. Haller has put his co-counsel down on the witness list and I think, first of all, he needs to choose between having Ms. Aronson as second chair and having her as a witness. But second, and more important, Ms. Aronson has already handled the preliminary hearing for the defense as well as other duties, and so the state objects to this sudden move to make her a witness in the trial.”

  Freeman sat down and the judge looked over at me.

  “Sort of late in the game, isn’t it, Mr. Haller?”

  I stood.

  “Yes, Your Honor, except for the fact that it is no game and it’s my client’s freedom at stake here. The defense would ask the court for wide latitude in this regard. Ms. Aronson was intimately involved in the defense against the foreclosure proceedings against my client and the defense has come to the conclusion that she will be needed to explain to jurors what the background was and what was happening at the time of the murder of Mr. Bondurant.”

  “And is it your plan to have her do double duty, both witness and defense counsel? That’s not going to happen in my courtroom, sir.”

  “Your Honor, I assumed when I put Ms. Aronson’s name on the final list that we would have this discussion with Ms. Freeman. The defense is open to the court’s decision in regard to this.”

  Perry looked at Freeman to s
ee if she had further argument. She held still.

  “Very well then,” he said. “You just lost your second chair, Mr. Haller. I will allow Ms. Aronson to remain on the witness list but tomorrow when we start picking the jury, you’re on your own. Ms. Aronson stays clear of my courtroom until she comes in to testify.”

  “Thank you, Your Honor,” I said. “Will she be able to join me as second chair after her testimony is concluded?”

  “I don’t see that as a problem.” Perry asked, “Ms. Freeman, you had a second issue for the court?”

  Freeman stood back up. I sat down and leaned forward with my pen, ready to take notes. The movement caused a searing pain to cross my torso and I almost groaned out loud.

  “Your Honor, the state wants to head off an objection and protest I am sure will come from counsel. Late yesterday, we received a return on DNA analysis of a very small blood trace found on a shoe belonging to the defendant and seized during the search of her house and garage on the day of the murder.”

  I felt an invisible punch in my stomach that made my rib pain disappear quickly. I instinctively knew this was going to be a game changer.

  “The analysis matches the blood from the shoe to the victim, Mitchell Bondurant. Before counsel protests, I must inform the court that analysis of the blood was delayed because of the backup in the lab and because the sample being worked with was rather minute. The difficulty was accentuated by the need to preserve a portion of the sample for the defense.”

  I flipped my pen up into the air. It bounced onto the table and then clattered to the floor. I stood up.

  “Your Honor, this is just outrageous. On the eve of jury selection? To pull this now? And boy oh boy, that was sure nice of them to leave some for the defense. We’ll just run out and get it analyzed before jury selection starts tomorrow. You know, this is just—”

  “Point well taken, Counsel,” the judge interrupted. “It troubles me as well. Ms. Freeman, you’ve had this evidence since the inception of the case. How can it be that it conveniently lands the day before jury selection?”

  “Your Honor,” Freeman said, “I have a full understanding of the burden this places on the defense and the court. But it is what it is. I was informed of the findings at eight o’clock this morning when I received the report from the lab. This is the first opportunity I’ve had to bring it before the court. As to the reason for its coming in now, well, there are a few. I am sure the court is aware of the backup for DNA analysis at the lab at Cal State. There are thousands of cases. While homicide investigations certainly get a priority it is not to the exclusion of all other cases. We elected not to go to a private lab that could have turned it around faster because of the concern over the size of the sample. We knew if anything went wrong with an outside vendor then we would have completely lost the opportunity to test the blood—and hold a portion for the defense.”