“How did you know that the traffic you encountered would be the same that Mr. Elliot encountered?”
“I didn’t.”
“Traffic in Los Angeles can be a very unpredictable thing, can it not?”
“Yes.”
“Is that why you drove the route several times?”
“One reason, yes.”
“Okay, Detective Kinder, you testified that you drove the route a total of five times and got to the Malibu house each time before your so-called murder window closed, right?”
“Correct.”
“In regard to these five driving tests, what was the earliest time you got to the house in Malibu?”
Kinder looked at his notes.
“That would have been the first time, when I got there at eleven forty-two.”
“And what was the worst time?”
“The worst?”
“What was the longest drive time you recorded during your five trips?”
Kinder checked his notes again.
“The latest I got there was eleven fifty-one.”
“Okay, so your best time was still in the last third of the window the medical examiner set for the time of these murders, and your worst time would have left Mr. Elliot less than ten minutes to sneak into his house and murder two people. Correct?”
“Yes, but it could have been done.”
“Could have? You don’t sound very confident, Detective.”
“I am very confident that the defendant had the time to commit these murders.”
“But only if the murders took place at least forty-two minutes after the killing window opened, correct?”
“If you want to look at it that way.”
“It’s not how I am looking at it, Detective. I’m working with what the medical examiner has given us. So, in summary for the jury, you are saying that Mr. Elliot left his studio at ten forty and got all the way out to Malibu, snuck into his house, surprised his wife and her lover in the upstairs bedroom and killed them both, all before that window slammed shut at noon. Do I have all of that right?”
“Essentially. Yes.”
I shook my head as if it was a lot to swallow.
“Okay, Detective, let’s move on. Please tell the jury how many times you began the driving route to Malibu but broke it off when you knew that you weren’t going to make it before that window closed at noon.”
“That never happened.”
But there had been a slight hesitation in Kinder’s response. I was sure the jury picked up on it.
“Yes or no, Detective, if I were to produce records and even video that showed you started at the Archway gate at ten forty in the morning seven times and not five, then those records would be false?”
Kinder’s eyes flicked to Golantz and then back to me.
“What you’re suggesting happened didn’t happen,” he said.
“And you’re not answering the question, Detective. Once again, yes or no: If I introduced records that showed you conducted your driving study at least seven times but have only testified to five times, would those records be false?”
“No, but I didn’t—”
“Thank you, Detective. I only asked for a yes or no response.”
Golantz stood and asked the judge to allow the witness to fully answer the question but Stanton told him he could take it up on redirect. But now I hesitated. Knowing that Golantz would go after Kinder’s explanation on redirect, I had the opportunity to get it now and possibly still control it and turn the admission to my advantage. It was a gamble because at the moment, I felt I had dinged him pretty good, and if I went with him until court adjourned for the day, then the jurors would go home with police suspicion percolating in their brains. That was never a bad thing.
I decided to risk it and try to control it.
“Detective, tell us how many of these test drives you broke off before reaching the house in Malibu.”
“There were two.”
“Which ones?”
“The second time and the last time—the seventh.”
I nodded.
“And you stopped these because you knew you would never make it to the house in Malibu within the murder window, correct?”
“No, that’s very incorrect.”
“Then, what was the reason you stopped the test drives?”
“One time, I was called back to the office to conduct an interview of somebody waiting there, and the other time, I was listening to the radio and I heard a deputy call for backup. I diverted to back him up.”
“Why didn’t you document these in your report on your driving time investigation?”
“I didn’t think they were germane, because they were incomplete tests.”
“So these incompletes were not documented anywhere in that thick file of yours?”
“No, they were not.”
“And so we have only your word about what caused you to stop them before reaching the Elliot house in Malibu, correct?”
“That would be correct.”
I nodded and decided I had flogged him enough on this front. I knew Golantz could rehabilitate Kinder on redirect, maybe even come up with documentation of the calls that pulled Kinder off the Malibu route. But I hoped that I had raised at least a question of trust in the minds of the jurors. I took my small victory and moved on.
I next hammered Kinder on the fact that there was no murder weapon recovered and that his six-month investigation of Walter Elliot had never linked him to a gun of any sort. I hit this from several angles so that Kinder had to repeatedly acknowledge that a key part of the investigation and prosecution was never located, even though if Elliot was the killer, he’d had little time to hide the weapon.
Finally, in frustration, Kinder said, “Well, it’s a big ocean out there, Mr. Haller.”
It was an opening I was waiting for.
“A big ocean, Detective? Are you suggesting that Mr. Elliot had a boat and dumped the gun out in the middle of the Pacific?”
“No, nothing like that.”
“Then, like what?”
“I am just saying the gun could have ended up in the water and the currents took it away before our divers got out there.”
“It could have ended up out there? You want to take Mr. Elliot’s life and livelihood away from him on a ‘could have,’ Detective Kinder?”
“No, that’s not what I am saying.”
“What you are saying is that you don’t have a gun, you can’t connect a gun to Mr. Elliot, but you have never wavered in believing he is your man, correct?”
“We had a gunshot residue examination that came back positive. In my mind that connected Mr. Elliot to a gun.”
“What gun was that?”
“We don’t have it.”
“Uh-huh, and can you sit there and say to a scientific certainty that Mr. Elliot fired a gun on the day his wife and Johan Rilz were murdered?”
“Well, not to a scientific certainty, but the test—”
“Thank you, Detective Kinder. I think that answers the question. Let’s move on.”
I flipped the page on my notepad and studied the next set of questions I had written the night before.
“Detective Kinder, in the course of your investigation, did you determine when Johan Rilz and Mitzi Elliot became acquainted?”
“I determined that she hired him for his interior decorating services in the fall of two thousand five. If she was acquainted with him before that, I do not know.”
“And when did they become lovers?”
“That was impossible for us to determine. I do know that Mr. Rilz’s appointment book showed regular appointments with Mrs. Elliot at one home or the other. The frequency increased about six months before her death.”
“Was he paid for each one of those appointments?”
“Mr. Rilz kept very incomplete books. It was hard to determine if he was paid for specific appointments. But in general, the payments to Mr. Rilz from Mrs. Elliot increased when the frequency
of the appointments increased.”
I nodded like this answer fit with a larger picture I was seeing.
“Okay, and you have also testified that you learned that the murders occurred just thirty-two days after the prenuptial agreement between Walter and Mitzi Elliot vested, thereby giving Mrs. Elliot a full shot at the couple’s financial holdings in the event of a divorce.”
“That’s right.”
“And that is your motive for these killings.”
“In part, yes. I call it an aggravating factor.”
“Do you see any inconsistency in your theory of the crime, Detective Kinder?”
“No, I do not.”
“Was it not obvious to you from the financial records and the appointment frequency that there was some sort of romantic or at least a sexual relationship going on between Mr. Rilz and Mrs. Elliot?”
“I wouldn’t say it was obvious.”
“You wouldn’t?”
I said it with surprise. I had him in a little corner. If he said the affair was obvious, he would be giving me the answer he knew I wanted. If he said it was not obvious, then he came off as a fool because everyone else in the courtroom thought it was obvious.
“In retrospect it might look obvious but at the time I think it was hidden.”
“Then how did Walter Elliot find out about it?”
“I don’t know.”
“Doesn’t the fact that you were unable to find a murder weapon indicate that Walter Elliot planned these murders?”
“Not necessarily.”
“Then it’s easy to hide a weapon from the entire Sheriff’s Department?”
“No, but like I told you, it could have simply been thrown into the ocean off the back deck and the currents took over from there. That wouldn’t take a lot of planning.”
Kinder knew what I wanted and where I was trying to go. I couldn’t get him there so I decided to use a shove.
“Detective, didn’t it ever occur to you that if Walter Elliot knew about his wife’s affair, it would have made better sense just to divorce her before the prenuptial agreement vested?”
“There was no indication of when he learned of the affair. And your question does not take into account things like emotions and rage. It was possible that the money had nothing to do with it as a motivating factor. It could have just been betrayal and rage, pure and simple.”
I hadn’t gotten what I wanted. I was annoyed with myself and chalked it up to rust. I was prepared for the cross but it was the first time I had gone head-to-head with a seasoned and cagey witness in a year. I decided to back off here and to hit Kinder with the punch he wouldn’t see coming.
Forty-five
I asked the judge for a moment and then went to the defense table. I bent down to my client’s ear.
“Just nod like I am telling you something really important,” I whispered.
Elliot did as instructed and then I picked up a file and went back to the lectern. I opened the file and then looked at the witness stand.
“Detective Kinder, at what point in your investigation did you determine that Johan Rilz was the primary target of this double murder?”
Kinder opened his mouth to respond immediately, then closed it and sat back and thought for a moment. It was just the kind of body language I was hoping the jury would pick up on.
“At no point did I ever determine that,” Kinder finally responded.
“At no point was Johan Rilz front and center in your investigation?”
“Well, he was the victim of a homicide. That made him front and center the whole time in my book.”
Kinder seemed pretty proud of that answer but I didn’t give him much time to savor it.
“Then his being front and center explains why you went to Germany to investigate his background, correct?”
“I did not go to Germany.”
“What about France? His passport indicates he lived there before coming to the United States.”
“I didn’t go there.”
“Then, who on your team did?”
“No one. We didn’t believe it was necessary.”
“Why wasn’t it necessary?”
“We had asked Interpol for a background check on Johan Rilz and it came back clean.”
“What is Interpol?”
“It stands for International Criminal Police Organization. It’s an organization that links the police in more than a hundred countries and facilitates cross-border cooperation. It has several offices throughout Europe and enjoys total access and cooperation from its host countries.”
“That’s nice but it means you didn’t go directly to the police in Berlin, where Rilz was from?”
“No, we did not.”
“Did you directly check with police in Paris, where Rilz lived five years ago?”
“No, we relied on our Interpol contacts for background on Mr. Rilz.”
“The Interpol background pretty much was a check of a criminal arrest record, correct?”
“That was included, yes.”
“What else was included?”
“I’m not sure what else. I don’t work for Interpol.”
“If Mr. Rilz had worked for the police in Paris as a confidential informant on a drug case, would Interpol have given you this information?”
Kinder’s eyes widened for a split second before he answered. It was clear he wasn’t expecting the question, but I couldn’t get a read on whether he knew where I was heading or if it was all new to him.
“I don’t know whether they would have given us that information or not.”
“Law enforcement agencies usually don’t give out the names of their confidential informants willy-nilly, do they?”
“No, they don’t.”
“Why is that?”
“Because it might put the informants in danger.”
“So being an informant in a criminal case can be dangerous?”
“On occasion, yes.”
“Detective, have you ever investigated the murder of a confidential informant?”
Golantz stood up before Kinder could answer and asked the judge for a sidebar conference. The judge signaled us up. I grabbed the file off the lectern and followed Golantz up. The court reporter moved next to the bench with her steno machine. The judge rolled his chair over and we huddled.
“Mr. Golantz?” the judge prompted.
“Judge, I would like to know where this is going, because I’m feeling like I’m being sandbagged here. There has been nothing in any of the defense’s discovery that even hints at what Mr. Haller is asking the witness about.”
The judge swiveled in his chair and looked at me.
“Mr. Haller?”
“Judge, if anybody is being sandbagged, it’s my client. This was a sloppy investigation that—”
“Save it for the jury, Mr. Haller. Whaddaya got?”
I opened the file and put a computer printout down in front of the judge, which positioned it upside down to Golantz.
“What I’ve got is a story that ran in Le Parisien four and a half years ago. It names Johan Rilz as a witness for the prosecution in a major drug case. He was used by the Direction de la Police Judiciaire to make buys and get inside knowledge of the drug ring. He was a CI, Your Honor, and these guys over here never even looked at him. It was tunnel vision from the—”
“Mr. Haller, again, save your argument for the jury. This printout is in French. Do you have the translation?”
“Sorry, Your Honor.”
I took the second of three sheets out of the file and put it down on top of the first, again in the direction of the judge. Golantz was twisting his head awkwardly as he tried to read it.
“How do we know this is the same Johan Rilz?” Golantz said. “It’s a common name over there.”
“Maybe in Germany, but not in France.”
“So how do we know it’s him?” the judge asked this time. “This is a translated newspaper article. This isn’t any kind of official document.”
I pulled the last sheet from the file and put it down.
“This is a photocopy of a page from Rilz’s passport. I got it from the state’s own discovery. It shows that Rilz left France for the United States in March, two thousand three. One month after this story was published. Plus, you’ve got the age. The article has his age right and it says he was making drug buys for the cops out of his business as an interior decorator. It obviously is him, Your Honor. He betrayed a lot of people over there and put them in jail, then he comes here and starts over.”
Golantz started shaking his head in a desperate sort of way.
“It’s still no good,” he said. “This is a violation of the rules of discovery and is inadmissible. You can’t sit on this and then sucker punch the state with it.”
The judge swiveled his view to me and this time gave me the squint as well.
“Your Honor, if anybody sat on anything, it was the state. This is stuff the prosecution should’ve come up with and given to me. In fact, I think the witness did know about this and he sat on it.”
“That is a serious accusation, Mr. Haller,” the judge intoned. “Do you have evidence of that?”
“Judge, the reason I know about this at all is by accident. On Sunday I was reviewing my investigator’s prep work and noticed that he had run all the names associated with this case through the Lexis-Nexis search engine. He had used the computer and account I inherited with Jerry Vincent’s law practice. I checked the account and noticed that the default setting was for English-language search only. Having looked at the photocopy of Rilz’s passport in the discovery file and knowing of his background in Europe, I did the search again, this time including French and German languages. I came up with this French newspaper article in about two minutes, and I find it hard to believe that I found something that easily that the entire Sheriff’s Department, the prosecution, and Interpol didn’t know about. So Judge, I don’t know if that is evidence of anything but the defense is certainly feeling like the party that’s been damaged here.”
I couldn’t believe it. The judge swiveled to Golantz and gave him the squint. The first time ever. I shifted to my right so that a good part of the jury had an angle on it.
“What about that, Mr. Golantz?” the judge asked.
The Crossing Page 61