“From Trina Rafferty. She said that both she and Gloria worked for Marco as snitches.”
“Did Trina Rafferty say whether Marco asked her to plant the gun in Mr. Moya’s hotel room?”
Before Fulgoni could answer, Forsythe objected angrily, calling the whole line of questioning hearsay. The judge sustained it without allowing argument from me. I asked for a sidebar, and the judge reluctantly signaled us up to the bench. I got right into it.
“Your Honor, the defense finds itself between a rock and a hard place. The court has sustained the objection against hearsay testimony from the witness. That leaves me no alternative but to at least try to get the testimony directly from Agent Marco. As you know, Marco was on the original witness list submitted nearly four weeks ago to the court. However, we have been unable to make service of a subpoena to Agent Marco or the DEA in general.”
Leggoe shrugged.
“And what is the remedy you want from the court? To allow hearsay evidence? That’s not going to happen, Mr. Haller.”
I started nodding before she was finished.
“I know that, Judge. But I was thinking that a direct order to appear from you and carrying the blessing of the prosecution could go a long way toward getting Agent Marco into this courtroom.”
Leggoe looked at Forsythe and raised her eyebrows. The ball was now Forsythe’s.
“Your Honor, I am happy to give my blessing,” he said. “Whether it works or not, all Agent Marco will do is show up and deny these outlandish accusations. It will be a highly decorated agent’s word against the word of a whore and I’ll—”
“Mr. Forsythe!” the judge broke in, her voice well above a whisper. “You will show a little more decorum and respect in my courtroom.”
“I apologize, Your Honor,” Forsythe said quickly. “Prostitute. What I meant to say is that this will come down to the agent’s word against the prostitute’s, and the state has no worries when it comes to that.”
Prosecutorial arrogance is a deadly sin when it comes to a criminal court trial. It was the first time I had really seen it in Forsythe and I knew that he might end up eating those words before the case was over.
“Very well, let’s proceed,” the judge said, “I will adjourn for the day fifteen minutes early so that we can fashion the order to appear.”
We returned to our positions and I looked at Fulgoni, waiting for me on the witness stand. He had so far come off as cool, calm, and collected. I was about to change that and take him in a direction we had not discussed or rehearsed in the days building up to the trial.
“Mr. Fulgoni,” I began, “how much of this gun-planting theory did Gloria Dayton confirm for you?”
“None,” Fulgoni said. “I subpoenaed her for a deposition but she was murdered before I ever spoke to her.”
I nodded and looked down at my notes.
“And how long have you been practicing law?”
The abrupt change in direction surprised young Sly.
“Uh, two and a half years next month.”
“And have you been involved in a trial before?”
“You mean in court?”
I almost laughed out loud. If Fulgoni had not been my own witness, I would have destroyed him with that answer. As it was, I needed to damn near leave him for dead before I was finished with my direct.
“Yes, in court,” I said drily.
“None so far. But I know lawyers who say the object is to stay out of the courtroom and to take care of business before it comes to that.”
“Viewing it from where I stand now, that’s not bad advice, Mr. Fulgoni. Can you tell the jury how you, just two years out of law school and never in a courtroom before, landed Hector Moya as a client?”
Fulgoni nodded.
“He was a referral.”
“From whom?”
“My father, actually.”
“And how did that come about?”
Fulgoni gave me a look that I interpreted as a warning that I was crossing into a territory that he had deemed off-limits when we had last discussed his testimony. I gave him a look back that said too fucking bad. I have you under oath. I own you.
I had to prompt him to answer.
“Please tell the jury how your father came to refer Mr. Moya to you.”
“Uh, well, my father is incarcerated in the same federal prison where Hector is. They know each other, and my father referred him to me.”
“Okay, so you took on the case two years out of law school and filed the habeas petition, hoping to have Mr. Moya’s life sentence vacated, correct?”
“Yes.”
“Because the firearm that got him that life sentence was planted.”
“Yes.”
“And you believed it was planted by Gloria Dayton, correct?”
“Correct.”
“Based on what Trina Rafferty told you.”
“Correct.”
“And before filing this habeas petition, did you study the transcript from Mr. Moya’s trial in 2006?”
“Most of it, yes.”
“Did you read the transcript of the sentencing hearing when the judge sent him to life in prison?”
“I did, yes.”
I asked the judge to allow me to approach the witness with a document I entered as the second defense exhibit, the transcript of Hector Moya’s sentencing on November 4, 2006.
The judge approved and I came forward to hand the document to Fulgoni. It was already folded back to a page with highlighted material I wanted him to read to the jury.
“What is that you have there, Mr. Fulgoni?”
“It’s the transcript from the sentencing hearing in federal court. It’s the judge’s comments.”
“Is that what you read when you were preparing to file the habeas on Mr. Moya’s behalf?”
“Yes.”
“Okay. What is the judge’s name?”
“The Honorable Lisa Bass.”
“Can you please read to the jury the quotes from Judge Bass that I have highlighted on the page?”
Fulgoni leaned forward and began reading.
“‘Mr. Moya, the presentencing report on you is abysmal. You have conducted a life full of crime, attaining a high rank in the murderous Sinaloa Cartel. You are a cold and violent man and you have lost all aspects of humanity. You sell death. You are death. And it is my good fortune to be able to sentence you to life in prison today. I wish I could do more. To be honest, I wish you were eligible for the death penalty because I would have used it.’”
He stopped there. The judge’s comments continued but I figured that the jury had a good enough taste of them.
“Okay, so you read that sentencing transcript sometime last year as you prepared the habeas petition on Mr. Moya’s behalf, correct?”
“Yes.”
“Therefore, you knew when you prepared the subpoena for Gloria Dayton what kind of history Mr. Moya had, correct?”
“Yes.”
“So then, Mr. Fulgoni, did it ever cross your mind as a young, inexperienced attorney that it might be dangerous to subpoena Gloria Dayton to a deposition in which you would undoubtedly ask her about planting the gun in Hector Moya’s hotel room?”
“Danger from whom?”
“Let me ask the questions, Mr. Fulgoni. That’s how it works in a real trial.”
There was a slight murmur of laughter from the direction of the jury but I acted as though I hadn’t heard it.
“Didn’t you, Mr. Fulgoni, understand that, by issuing a subpoena and naming Gloria Dayton as the person who planted a gun in Hector Moya’s hotel room, you were placing her in great danger?”
“That’s why I did it under seal. It was not public information. Nobody knew.”
“What about your client? Didn’t he know?”
“I didn’t tell him.”
“Did you tell your father, who lived in the same prison with Moya?”
“But it doesn’t make sense. He wouldn’t have killed her.”
�
��Who wouldn’t?”
“Hector Moya.”
“Mr. Fulgoni, you need to answer the questions I ask you. That way we don’t have confusion. Did you or did you not tell your father that you had identified as Gloria Dayton the woman who you believed planted the gun in Mr. Moya’s room?”
“Yes, I told my father.”
“And did you ever ask him if he had told Mr. Moya before Gloria Dayton’s death?”
“I did, yeah, but it didn’t matter. She was Moya’s ticket out. He would not have killed her.”
I nodded and looked down at my notes for a moment before continuing.
“Then why did you ask your father if he had given her name to Mr. Moya?”
“Because I didn’t understand at first. I thought maybe it was possible that he had acted out of vengeance or something like that.”
“Do you think that now?”
“No, because I understand. He needed her alive in order to win the habeas. We needed her.”
I hoped the alternative to the scenario I had just explored was obvious to the jurors. At the moment, I was being subtle about it. I wanted them to come to the understanding on their own, and then I would reinforce it with further testimony. When people think they have discovered or earned a certain knowledge on their own, they are more apt to hold on to it.
I glanced at Mallory Gladwell in the jury box and saw her writing in one of the notebooks each juror is given. It looked to me like my alpha juror had gotten the subtlety.
I looked back at Fulgoni. It would have been the perfect moment to finish, but I had Fulgoni on the stand and under oath. I decided not to miss any chance of hammering home the basic theory of the defense.
“Mr. Fulgoni, I am trying to get a fix on the timing of your habeas petition involving Hector Moya. You filed the case and subpoenaed Gloria Dayton in early November, correct?”
“Yes.”
“She was then murdered on the night of November eleventh going into the twelfth, right?”
“I don’t know the exact dates.”
“It’s okay, I do. By the morning of November twelfth Gloria was dead, and yet it was another five months before anything happened on the habeas, correct?”
“Like I said, I don’t know the dates. I think that is right.”
“Why did you wait until April of this year to get things going on the case and to subpoena DEA Agent James Marco among others? What caused the delay until then, Mr. Fulgoni?”
Fulgoni shook his head like he didn’t know the answer.
“I was just . . . strategizing the case. Sometimes the law moves slowly, you know?”
“Was it because you realized that if Hector Moya actually needed Gloria Dayton alive, there might be someone else out there who needed her dead?”
“No, I don’t think that’s—”
“Were you afraid, Mr. Fulgoni, that you had opened a can of worms with your habeas petition and that you yourself might be in danger?”
“No, I was never afraid.”
“Were you ever threatened by someone in law enforcement to stall or shut the Moya case down?”
“No, never.”
“How did Agent Marco react to being subpoenaed in April?”
“I don’t actually know. I wasn’t there.”
“Has he ever fulfilled the subpoena and sat for a deposition with you?”
“Uh, no, not yet.”
“Has he personally threatened you if you continue the habeas case?”
“No, he has not.”
I stared at Fulgoni for a long moment. He now looked like a scared little boy who would lie his way out of anything if he could.
Now was the time. I looked up at the judge and said I had no further questions.
32
Forsythe kept Fulgoni on the stand for a full ninety minutes of hardball cross-examination. If I had made the young lawyer look foolish at times, then the prosecutor made him look downright incompetent. Forsythe clearly had a mission to accomplish with his cross and that was the total destruction of Fulgoni’s credibility. I had used young Sly to get several salient points on the record. Forsythe’s only hope of undermining those points with the jury was to undermine their source. He had to leave it so the jurors would dismiss Fulgoni’s testimony in its entirety.
He came close to mission accomplished by the end of the ninety minutes. Fulgoni looked wrung out. His clothes seemed somehow wilted, his posture was slumped, and he was answering questions monosyllabically, agreeing to almost anything the prosecutor suggested in the form of a question. It was the Stockholm syndrome—he was trying to please his captor.
I tried to intervene and help where I could with objections. But Forsythe deftly kept his questioning inside the lines, and one after the other the objections went down overruled.
Finally, at four fifteen, it was over. Fulgoni was excused and he left the witness stand like a man who never wanted to set foot in a courtroom again, despite being a lawyer. I stepped back to the rail and whispered to Cisco in the first row, telling him to make sure young Sly didn’t leave. I still needed to talk to him.
The judge sent the jury home and adjourned court for the day. She invited Forsythe and me back to her chambers to work on the order to appear that would hopefully bring James Marco to court. I told Lorna that drawing up the order would not take too long and she should go down and get her car out of the underground parking garage where she left it every morning.
I caught up to Forsythe in the hallway behind the courtroom that led to the judge’s chambers.
“Nice job on Fulgoni,” I said. “At least now he has some courtroom experience.”
Forsythe turned and waited for me.
“Me? You were the one who started it—and he was your witness.”
“A sacrifice to the gods. It had to be done.”
“I don’t know what you’re hoping to get out of this Moya angle but it’s not going to fly, Mick.”
“We’ll see.”
“And what’s with all the names on the new list? I’ve got kids I’d like to spend time with tonight.”
“Give it to Lankford. He has the time. I think he ate his kids.”
Forsythe was laughing as we entered the chambers. The judge was already at her desk, turned to the computer terminal on the side.
“Gentlemen, let’s get this done so we can beat some traffic.”
Fifteen minutes later I left through the courtroom. The judge had issued the order to appear. The sheriff’s department would be charged with delivering it to the DEA’s office the next morning. It ordered the DEA to show cause as to why Agent James Marco should not appear in court by ten a.m. Wednesday. That meant either Marco or a lawyer for the DEA would need to show up. If that didn’t work, then Judge Leggoe would issue a bench warrant for Marco’s arrest and things would really get interesting.
I found Cisco and young Sly sharing a bench in the hallway. One of Moya’s men was on his own bench across the hall. The other had trailed Lorna as she went down to get the car.
I walked over to Cisco and Fulgoni and told young Sly that I knew it had been a rough day but that I greatly appreciated the help he had given my client’s case. I told him I was still looking forward to working with him on the habeas case in federal court.
“I was right about you, Haller,” he said.
“Yeah, when was that?” I asked.
“When I said you were an asshole.”
He stood up to leave.
“I nailed it.”
Cisco and I watched him stride to the elevator bank. The good thing about working late into the day in the courthouse was that the elevator crowds thinned out and the wait wasn’t so bad. Fulgoni caught a ride quickly and was gone.
“Nice guy,” Cisco said.
“You should meet his father,” I said. “Even nicer.”
“I shouldn’t speak ill, though. A guy like that, I’ll probably end up working for him someday,” Cisco said.
“You’re probably right.”
&nbs
p; I handed him my copy of the judge’s order. Cisco unfolded the document and looked it over.
“Somebody up there at Roybal will probably use this to wipe his ass with.”
“Probably, but it’s all part of the game. Just in case, we need to be ready for Marco on Wednesday.”
“Right.”
We stood up and started heading toward the elevators. Moya’s man followed.
“You going to the loft?” I asked Cisco.
Team Haller had been meeting regularly at the loft after court each afternoon. We recounted the occurrences of the day as well as talked and brainstormed about the next one. It was a way of sharing successes and failures. Today I thought we had been more successful than not. It would be a good meeting.
“I’ll be there,” Cisco said. “I just have one stop to make first.”
“Okay, then.”
Outside the courthouse, I walked over to Spring Street and saw Lorna’s Lexus parked at the curb in front of two Lincoln Town Cars that were also waiting for lawyers from the courthouse. I walked down the sidewalk and past the Lincolns and almost opened the back door of Lorna’s car but decided not to embarrass her. I got in the front.
“I guess this makes me the Lexus Lawyer now,” I said. “Maybe the movie guys will make a sequel.”
She didn’t smile.
“Are we going to the loft?” she asked.
“If you don’t mind. I want to make sure we’re all set for tomorrow.”
“Of course.”
She abruptly pulled away from the curb without checking the traffic lane and got blasted by a motorist she’d cut off. I waited a few moments, deciding whether I should wade in. I had been married to her once briefly. I knew her moods and that the quiet, clipped dialogue version could boil over if left simmering on the stove too long.
“So what’s up? You’re upset.”
“No I’m not.”
“Yes you are. Tell me.”
“Why did you make Sylvester Jr. wait for you after court today?”
I squinted, trying to see the connection between making Junior wait and her being upset.
“I don’t know, I guess because I wanted to thank him for testifying. It was a rough day for him.”
“And whose fault was that?”
Now I realized why she was flatlining me. She felt sorry for young Sly.
The Gods of Guilt Page 25
