It was a provocative move and my guess was that Dana Berg would object to the accusation, and an evidentiary hearing would be quickly scheduled before Warfield. That was exactly what I wanted—a hearing presumed to be about a discovery dispute that would be about something else entirely.
I told Jennifer I wanted the request filed as soon as court opened in the morning and then I disconnected and let her go to work. I had not asked if the assignment intruded on her plans for the evening. I was only interested in protecting my own. Kendall had not gotten to the Musso & Frank Grill since her return from Hawaii. It had been her favorite restaurant and a place where we had shared many a martini and dinner in our first go-round. I was off martinis and all other alcohol now, but I had made a deal with her. Musso & Frank’s on Sunday night in exchange for allowing me to hole up in my home office and work through the weekend. That work had paid off big-time and now I was looking forward to the night out as much as Kendall was. I passed the case baton to Jennifer and told her I would meet her at the Nickel Diner in the morning after she filed. I asked her to tell the whole defense team to come for breakfast so we could update one another on the prior seventy-two hours.
Despite having to witness many martinis being prepared, served, and consumed, I found dinner at Musso’s a welcome distraction from thoughts on the case, if only for a few hours, and it pulled Kendall and me back toward the relationship we had shared for seven years before her departure for Hawaii. What drew me closest to her was her assumption that there would be no interruption in our relationship going forward. The idea that I could be found guilty of murder a month from now and be locked away in prison for the rest of my life had never entered her thinking or her discussion of our renewed life together. It was naive, yes, but also endearing. It made me not want to disappoint her, even as I understood that disappointing her would be the least of my problems if I didn’t win the case.
“You know,” I said, “being innocent is no guarantee of a not-guilty verdict. Anything can happen in trial.”
“You always say that,” she said. “But I know you’re going to win.”
“But before we make any great plans, let’s get the verdict, okay?”
“It doesn’t hurt to plan. As soon as this is over, I want to go somewhere and lie on a beach and forget all about this.”
“That will be nice.”
And I left it at that.
17
Monday, January 13
At breakfast the next morning Jennifer was the last to arrive. By then we had been around the table with team members reporting on their efforts since the last meeting. There had been little advancement, largely because of the weekend. Cisco said that he had had a surveillance team on Jeannie Ferrigno since Friday evening but there had been no sign of Louis Opparizio having contact with her. Meanwhile, Bosch told us that he was working his law enforcement contacts to try to determine why BioGreen was on the FBI’s radar.
Jennifer had not heard the updates and asked a few questions to catch up.
“Is there any confirmation beyond his dirty fingernails that Sam Scales was somehow involved with BioGreen?” she asked.
“Well, not under that name,” Bosch said. “I dummied in a call to check on employment for a car loan and they said they had no record of a Sam Scales working there now or ever.”
“What about the FBI?” Jennifer asked. “Do we know what they’re up to?”
“Not yet,” Bosch said. “I didn’t think we wanted to take a head-on approach to that question, so I’m sort of sniffing around the edges while trying to get a line on Scales.”
“I followed a tanker truck out of there Friday afternoon,” Cisco added. “For the hell of it. Just wanted to see where it went. But he went through a security gate at the port and I had to hold back. About a half hour later, he comes driving out and goes back to the refinery. I think he either picked up or dropped off a load.”
“Are we thinking Sam Scales was driving a truck?” Jennifer said. “What’s the scam in that?”
“Maybe he went straight,” Cisco said.
“No,” I said. “I knew Sam. He was never going to go straight. He was up to something and we still need to find it.”
There was silence for a few moments while I thought about what Bosch had said. I had spent the entirety of my career laboring in state courts and had few interactions with FBI agents or the federal government. Though Bosch had once been married to an FBI agent, I knew he had a history of antagonism when it came to his federal counterparts. The rest of my team were also outsiders when it came to the feds.
“We’ve got trial in a month,” I said. “What do you think about switching to a head-on approach to the bureau instead of sniffing around the edges?”
“We can do that,” Bosch said. “But you have to remember, the feds only respond to threat. Threat of exposure. Whatever they’ve got going down there, they want to keep it quiet and they’ll only take you seriously if they see you as endangering their secrecy or their investigation. That’s what a head-on approach is. You make yourself a threat. That’s how we always did it at the LAPD.”
I nodded and thought about that. Monica, one of the owners of the Nickel, brought over a variety plate of doughnuts to go with the pancakes and eggs we had already eaten. Jennifer, the only one who hadn’t had breakfast yet, reached for the chocolate-frosted entry.
“Anyone want to share this?” she asked.
There were no takers. Jennifer continued.
“I was going to say we should file a Freedom of Information Act request,” she said. “But those take forever. They probably wouldn’t even acknowledge receipt until after your trial.”
I nodded in agreement and then changed my mind.
“We could do that but then back it up with a subpoena requesting files on Scales,” I said.
“The FBI can ignore a subpoena,” Jennifer countered. “They don’t have to answer questions about federal investigations in state court.”
“Doesn’t matter,” I said. “Just delivering the subpoena would be the threat Harry’s talking about. They would be on notice that this is coming up at my trial. It might bring them out of the shadows. Then we see what we can get.”
I looked at Bosch for confirmation. He nodded.
“It could work,” he said.
“Let’s do it,” Jennifer said.
“Jennifer, I know I’m putting everything on your plate,” I said. “But can you add the subpoena and FOIA request?”
“No problem,” she said. “The FOIA’s probably an online request. It’ll be done by the end of the day. I’ll work on the subpoena first. What are the parameters?”
“Sam Scales and any and all aliases,” I said. “Then include Louis Opparizio and BioGreen Industries. Anything else?”
Jennifer received a call on her cell and got up from the table to take it outside. The rest of us continued to talk through the subpoena idea.
“Even if it does bring them out, I’m not sure what you’ll get,” Bosch said. “You know what they say: the FBI doesn’t share. It eats like an elephant and shits like a mouse.”
Lorna laughed. It made me realize that Cisco had been silent through the whole discussion.
“Cisco, what do you think?” I asked.
“I think another way to get information about that place is for me to go down there and ask if they’re hiring,” Cisco said. “Maybe I get inside there and see what’s going on—even if they don’t hire me.”
“Put a hard hat on, and you look the part,” I said with a smile. “But no. If they’re running a con, they’d do a deep dive checking you out, and your name would connect to mine. I think I’d rather have you working with the Indians on Opparizio.”
Cisco called the men on his surveillance team the Indians. Political correctness aside, he likened them to the Indians in the old westerns who watched the wagon trains from the cliffs without the settlers having any clue.
“Well, ready to go if you need it,” Cisco said. “S
urveillance gets a bit boring, you know?”
“Then I’ll tell you what,” I said. “If you are okay leaving your team on Opparizio and Ferrigno, why don’t you spend a couple days on Milton, the cop who pulled me over.”
Cisco nodded.
“I could do that,” he said.
“I still don’t buy his story,” I said. “If he was doing somebody’s bidding, I want to know whose and why.”
“On it,” Cisco said.
“What about me, Mickey?” Lorna said. “What do you need from me?”
I had to think fast about that. Lorna wouldn’t want to be left out of the case.
“Uh, go back into our files on Trammel,” I said. “Pull out anything that has to do with our background work on Opparizio. I don’t remember everything, and I have to be ready to go at him again—if we ever find him.”
Jennifer came back to the table from her call but didn’t sit down. She looked at me and held up her phone.
“We’re on,” she said. “Warfield set a hearing on the motion to compel for one o’clock today. She told Berg to bring her lead investigator too.”
I was surprised.
“That was quick,” I said. “We must’ve struck a nerve.”
“That was Andrew, Warfield’s clerk,” Jennifer said. “We definitely struck a nerve with the prosecution. He said Death Row Dana got mad as hell when he called her.”
“Good,” I said. “That’ll make it interesting. We’re going to put her lead detective on the stand before she does.”
I checked my watch and then looked at Lorna.
“Lorna, how long would it take to get a couple blowups off crime scene photos?” I asked.
“Give them to me now and I’ll put a rush on them,” she said. “You want them mounted on a hard back?”
“If we can,” I said. “More important just to have them for the hearing.”
I pushed my empty plate back and opened my laptop on the table. I pulled up the two crime scene photos I planned to display at the afternoon’s hearing: two different shots of Sam Scales in the trunk of my Lincoln. I sent them to Lorna and warned her that they were graphic. It wasn’t her delicate sensibilities I was trying to protect. It was the photo technician at the FedEx store that I wanted her to warn.
18
It felt good to enter Judge Warfield’s courtroom through the public entrance rather than the steel door from the holding cell. But at the same time, the “free man’s” entrance put me in a heavy confluence of post-lunch returnees to the courthouse, including Dana Berg, who mad-dogged me on the elevator like an OG from lockdown. I ignored it and saved my own enmity for court. I held the door for her but she declined to say thanks.
The media twins were already in their usual spots when we entered.
“I see you alerted the press,” Berg said.
“Not me,” I said. “Maybe they’re just vigilant. Isn’t that what we want in a free society? A vigilant press?”
“Well, you’re barking up the wrong tree this time. They’re going to see you get your ass handed to you by the judge.”
“For the record, Dana, I don’t blame you. I actually like you, because you’re fierce and focused. I wish all our government people were. But you have people working for you who are not doing you any favors.”
We split as we went through the railing. She went left to the prosecution table, while I went right to the defense table. Jennifer was already seated there.
“Anything from Lorna?” I asked.
“She just parked and is on her way,” she said.
“Hope so.”
I opened my briefcase and pulled out a legal pad I had worked on while doing final prep in the first-floor cafeteria. Jennifer leaned over to look at my scribbling.
“You ready?” she asked.
“Yep,” I said.
I turned in my seat and checked the gallery. I had sent a text about the hearing to my daughter, but it was last minute and I was unsure of her Monday-afternoon class schedule. I had not heard back from her and she was not in the courtroom.
Judge Warfield was ten minutes late starting the afternoon session and that gave Lorna enough time to get to the courtroom with the photo exhibits. We were locked and loaded when Deputy Chan called the room to order and Warfield took the bench.
I held my pad in hand and was ready to be called to the lectern—it was my motion, my prerogative to go first. But Berg stood and addressed the court.
“Your Honor, before Mr. Haller is allowed to stand up here and feed his completely unfounded claims to the media that he has invited to the hearing, the state would request that the hearing be moved in camera so as not to taint the jury pool that the defense is trying to reach with these wild and wholly unsubstantiated accusations.”
I was standing before she was finished and the judge cued me.
“Mr. Haller?”
“Thank you, Judge. The defense objects to the motion to move this hearing to chambers. Just because Ms. Berg doesn’t like what she will hear is no reason to cover up what is said and presented. It’s true that these are serious allegations but sunlight is the best disinfectant, Your Honor, and this hearing should remain open to all. Additionally, and for the record, I did not alert the media to this emergency hearing. I don’t know who did. But it never occurred to me, as it apparently has to Ms. Berg, that a vigilant media would be a bad thing.”
I turned and gestured toward the two reporters as I finished. I saw then that Kent Drucker, the lead investigator on the case, had arrived and was sitting in the gallery row behind the prosecution table.
“Are you finished, Mr. Haller?” Warfield asked.
“Yes, Your Honor,” I said. “Submitted.”
“The request for a closed hearing is denied,” Warfield said. “Mr. Haller, do you have any witnesses?”
I paused. In a perfect world a lawyer never asks a question he doesn’t know the answer to. That means a good lawyer never puts a witness on the stand whom he or she cannot control or draw the needed answers from. I knew all of that but still made the call to go against the received wisdom.
“Your Honor, I see Detective Drucker in the courtroom. Let’s start with him as the first witness.”
Drucker went through the gate to the witness stand and was sworn in. He was a seasoned investigator with more than twenty years on the job, half of it working homicides. He wore a nice suit and carried his copy of the murder book with him. If he was surprised I had called on him, he didn’t show it. Since we were not in front of a jury, I skipped the soft introductory questions and got right to the heart of the matter.
“Detective, I see you brought your murder book with you.”
“Yes, sir, I did.”
“Would you mind going to the property report that was filed in regard to the belongings of the victim in this case, Sam Scales.”
Drucker opened the thick binder on the flat surface at the front of the witness box, leafed through it, and quickly found the report. I asked him to read it to the judge and he quickly ticked off items of clothing and shoes, as well as the contents of Scales’s pockets, which amounted to some loose change, a set of keys, a comb, and a money clip containing $180 in twenties.
“Anything else in his pockets?” I asked.
“No, sir,” Drucker responded.
“Cell phone?”
“No, sir.”
“No wallet?”
“No wallet.”
“Was that notable to you?”
“Yes.”
I waited for more and got nothing. Drucker was one of those witnesses who would not give an inch more than what was required.
“Can you tell us why?” I said, not hiding my exasperation.
“It raised a question,” Drucker said. “Missing wallet—could this have been a robbery?”
“But there was a money clip in his pocket, wasn’t there?”
“Yes.”
“Didn’t that undercut the robbery theory and raise the possibility that the wall
et was taken for another reason?”
“It could have, yes.”
“It ‘could have’? I’m asking if it did.”
“Everything was a question. The man was obviously murdered. There were a lot of possibilities as to motive.”
“Without a wallet and ID, how did you identify the victim as Sam Scales?”
“Fingerprints. There was a patrol sergeant on hand with a mobile reader. We got the ID pretty fast and it was more reliable than checking a wallet. People carry fake IDs.”
He had just unknowingly made a point that I intended to make.
“After you identified the victim as Sam Scales, did you do a criminal background check on him?”
“My partner did.”
“What did he find?”
“A long list of frauds, cons, and other crimes that I am sure you are familiar with.”
I ignored the barb and pressed on.
“Isn’t it a fact that in each of those frauds, cons, and other crimes, Sam Scales used a different alias?”
“That is correct.”
Berg sensed that a kill shot might be coming and stood up and objected.
“Your Honor, this is a motion to compel discovery, and counsel is leisurely walking the witness through the entire investigation of the case. Is there a purpose here?”
It wasn’t much of an objection but it did serve to knock me out of my rhythm. The judge admonished me to get to the point of my questioning or move on.
“Detective Drucker, knowing that the victim of this murder used different aliases, wouldn’t it have been important to the investigation to recover his wallet to see what alias he was using at the time of his death?”
Drucker digested the question for a long moment before responding.
“Hard to say,” he said.
I knew with that answer that I would never get what I wanted from Drucker. He was too wary of me to ever break free of the short answers that imparted very little information of value.
“Okay, let’s move on,” I said. “Detective, could you turn to the crime scene photos in your murder book and look at photographs thirty-seven and thirty-nine.”
The Law of Innocence Page 11
