While Drucker found the relevant pages in the murder book, I quickly set up two portable easels in front of the empty jury box and on them placed the 24 x 18 blowup shots Lorna had gotten made that morning. Each was a photograph of Sam Scales lying on his side in the trunk of my Lincoln. The second shot was a little tighter than the first.
“Did you find the photos, Detective Drucker?”
“Yes, I have them here.”
“Do your photos thirty-seven and thirty-nine correspond with the blowups I have put up for the court to see?”
“Do they correspond? I’m not—”
“Do they match, Detective? Are they identical?”
Drucker made a display of looking down at his photos and then at the two shots I had put up on the easels.
“They appear to be the same,” he finally said.
“Perfect,” I said. “Can you tell us for the record what the two photos depict?”
“They’re both shots of the victim in this case in the trunk of your car. One of the photos is zoomed closer in than the other.”
“Thank you, Detective. The victim is lying on his right side, correct?”
“That is correct.”
“Okay, and can I now draw your attention to the victim’s left hip, which is up toward the camera. Do you see the left rear pocket of the victim’s pants?”
“I see it.”
“Do you see the rectangular-shaped distension of the pocket?”
Drucker hesitated as he realized where this was going.
“Do you see it, Detective Drucker?”
“I see some sort of pattern there. I don’t know what it is.”
“You don’t think that is indicative of a wallet in that back pocket, Detective?”
“I couldn’t know for sure without looking in that pocket. All I do know is that there was no wallet turned in to me by forensics or the Medical Examiner’s Office.”
Berg stood and objected to the line of questioning.
“Your Honor, counsel is trying to create suspicion about the investigation of this case based on a pattern he sees in the victim’s clothing. There is no wallet in that pocket because no wallet was recovered from the victim or the crime scene. The defense is using this issue, this ghost wallet, to distract the court and feed the media a conspiracy theory he hopes will get out to the jury pool. Once again the People object, first of all, to the hearing itself, and, second, to this being discussed in open court.”
She sat down angrily and the judge turned her eyes to me.
“Your Honor, that was a nice speech, but the fact remains that anybody with two eyes can see that the victim had a wallet in his back pocket. Now that wallet is gone and not only does it cast doubt on the investigation of this murder, but it puts the defense at a steep disadvantage because it is prohibited from examining the evidence that was in the wallet. Having said all of that, if the court will indulge me for five more minutes with this witness, I believe it will become abundantly clear that something was terribly wrong with this investigation.”
Warfield took her time before responding and this told me she was riding with me on this, not with the prosecution.
“You may continue with the witness, Mr. Haller.”
“Thank you, Judge. My colleague Ms. Aronson is now going to put the body-cam video for Officer Milton on the big screen. What we will show is the early moments of the tape, when Officer Milton uses the remote car key to pop the trunk.”
The video started to play on the flat-screen on the wall opposite the jury box. The angle was from the side of the rear end of the Lincoln. Milton’s hand came up into the screen as he used his thumb to pop the trunk. The lid came up, revealing the body of Sam Scales. The camera started moving as Milton reacted.
“Okay, stop it right there,” I said. “Can you back it up to the point where the trunk just comes open?”
Jennifer did so and froze the image. Milton had taken a safe side angle to the car as he opened the trunk, presumably because he did not know who or what was in it. This gave a two-second side view of the body, an angle the forensic photographer had not taken. It just happened to be captured by Milton’s body cam.
“Detective Drucker,” I said. “Can I draw your attention to the victim’s rear left pocket again? Does what you see from this angle change your opinion as to whether the victim had a wallet in his pocket at the time the body was discovered?”
All eyes were on the video screen except mine. I even saw one of the journalists slide down her gallery bench to get a better angle on the screen. The camera angle on the video clearly showed the back pocket of the victim’s pants to be slightly open because of an object inside it. It was a dark object but there was a line of lighter color running lengthwise in the middle of it.
To me, it was clearly a wallet with the edge of a currency bill poking out of it. To Drucker, it was still nothing.
“No,” he testified. “I can’t tell for sure what that is.”
I had him.
“What do you mean by ‘what that is,’ Detective?”
“I mean I can’t tell. It could be anything.”
“But you are now acknowledging that there is something in his pocket, correct?”
Drucker realized he had walked into a defense trap.
“Well, I can’t say for sure,” he said. “It could just be the lining of the pocket.”
“Really?” I said, full of disbelief. “You are now saying that is the lining of the pocket?”
“I’m saying I don’t know for sure.”
“Detective, can you go back to the property report you have in the murder book, and I’ll ask my last question.”
The room waited silently until Drucker had it in front of him.
“Okay, sir,” I said. “The property report lists where each item recovered came from, correct?”
“Yes, correct.”
Drucker seemed relieved to get an easy one. But I didn’t let it last long.
“Okay, then,” I said. “What does the report say was removed from the left rear pocket of the victim’s pants?”
“Nothing,” Drucker said. “Nothing is listed.”
“No further questions,” I said.
19
Like a good prosecutor, Dana Berg was thinking of the trial down the road. Her cross-examination of Detective Drucker was not so much about winning the day as it was about winning the trial. She had to make sure that what went on the record today would not turn a juror against Drucker or the prosecution at trial. The smartest move she made was to ask for a ten-minute recess after I finished my direct. That gave her the space to huddle with Drucker and get a handle on what was transpiring here.
When court reconvened, Drucker had a completely different view of the photographs and video I had showed him.
I was not surprised.
“Detective Drucker, did you get a chance to review all of the crime scene photos of the victim during the break?” she asked.
“Yes, I did,” Drucker said.
“And did you draw any new conclusions about what you saw?”
“I looked at all of the photos we have of the body in the trunk and I now believe that there most likely was a wallet in the rear pocket of the pants at the time the body was in the trunk.”
I had to smile. Berg was going to make it seem as though the prosecution team had made this discovery and brought it to light.
“And yet your own property report says no wallet. How do you explain that?”
“Well, obviously, the wallet was taken at some point.”
“Taken? You mean taken and misplaced?”
“Possibly.”
“Could it have been stolen?”
“Possibly.”
“When was the clothing that was on the body searched?”
“We didn’t touch it while it was in the trunk. We waited for the coroner’s people to arrive and then the body was removed from the trunk. We grabbed his prints with the reader and then the body was wrapped in plastic. A
fter that, it was taken to the coroner’s office for autopsy.”
“So, can you say at what point the clothing was removed and examined and the property inventoried?”
“That all falls under the coroner’s duties. The body was prepped for autopsy the following day and I got a call from an investigator over there that I could swing by and pick up the property.”
“And did you?”
“Not right away. The autopsy was scheduled for the following morning. I waited to pick up the property then.”
“It wasn’t urgent?”
“Not really. The coroner’s investigator shot me an email with the property list. I noted that there was no wallet, and the other property didn’t appear to be germane to the investigation.”
“You got that email when?”
Drucker looked up innocently at the judge.
“Can I refer to my records?” he asked.
“You may,” Warfield said.
Drucker flipped through pages in the murder book and then stopped to read.
“I have the email here,” he said. “Got it at four twenty the afternoon after the callout.”
“So, doing the math,” Berg said. “The first you knew that there was no wallet was about seventeen hours after you were called to the murder scene to begin the investigation. Correct?”
“Correct.”
“And during that time, you did not have custody of the victim’s clothing or personal belongings, correct?”
“Correct. Anything could have happened to the wallet in that time.”
“It could have been stolen or misplaced?”
“Correct.”
“Did you take the wallet, Detective Drucker?”
“No, I never even saw it.”
“Did you intentionally hold it back from the discovery package I asked you to put together for the defense?”
“I did not.”
“No further questions, Your Honor.”
I had to give Berg credit. She had skillfully pulled Drucker from the credibility scrap heap and would live to fight another day with him at trial. He was dismissed from the witness stand and I told the judge I had no other witnesses and was ready to argue. Berg also said she was ready to go.
My opening salvo was short and to the point.
“Your Honor, we have a situation here where the state has mishandled a key piece of evidence, hidden their malfeasance from the defense, and now it is the defense that is left damaged by their failure. Whether or not their actions were intentional, my right to a fair trial has been more than infringed on—it’s been trampled. I knew the victim. I knew his history and I knew his MO. He changed aliases the way some people change their shoes. The loss of this wallet, which contained the current identification of Sam Scales at the time of his death, has prevented my team from adequately being able to investigate the victim’s activities and therefore learn of potential threats and killers.
“That is my argument if you buy their explanation of the wallet being innocently misplaced or stolen by someone skulking around the halls of the coroner’s office. Personally, I don’t believe any of it. This was an intentional effort to subvert a fair trial. This was the prosecution and police getting together and—”
Berg jumped up and objected to my casting aspersions on the actions and motives of the prosecution.
“This is argument,” I said. “I can say whatever I want.”
“To a degree,” Warfield said. “I’m not going to let you stray from what is on the record. I think you have made your argument. Do you wish to add anything else?”
Berg had effectively knocked me off the rails and the judge wasn’t going to let me get back on.
“No, Your Honor,” I said. “Submitted.”
“Ms. Berg,” the judge said. “I hope you will be as succinct.”
Berg went to the lectern and began.
“Your Honor, the histrionics of defense counsel aside, there is no evidence that exists or was submitted here that indicates some great conspiracy to prevent a fair trial in the case and, most important of all, no evidence or indication of a plan to hold back or subvert the discovery process. Yes, the victim’s wallet went missing, but it was defense counsel himself who brought this to light only this morning. To come here and cry foul play and conspiracy, counsel is simply grandstanding for the media, and the state asks the court to dismiss the motion.”
I stood to respond but the judge did not allow it.
“I think I have heard enough, Mr. Haller. I know what you will say and then I know what Ms. Berg will say in return. So, let’s save the time, shall we?”
I got the message and sat down.
“The court finds the information revealed today to be very troubling,” Warfield continued. “The state concedes that there was a wallet in the victim’s pocket but it now cannot produce that wallet for examination by the defense. Whether the wallet disappeared through negligence or something more sinister, the situation still leaves the defense in a reduced position. As Mr. Haller has suggested, the wallet could have contained an alternate ID used by the victim. That in turn could lead to evidence supporting Mr. Haller’s position.”
Warfield paused there and appeared to be studying her notes for a moment before continuing.
“At this time, the court doesn’t know what the remedy is but is going to take forty-eight hours to consider it. And it will give the state those same forty-eight hours to either find the wallet or determine exactly what happened to it. I am continuing this hearing until Wednesday at one o’clock, and my suggestion to the prosecution is to not come back empty-handed. We are adjourned.”
Warfield then turned in her chair and stood up. She moved down the three steps from the bench quickly and gracefully, her robe flowing behind her as she reached the door leading to her chambers and disappeared.
“Good work,” Jennifer whispered in my ear.
“Maybe,” I whispered back. “We’ll see in a couple days. Did you get that subpoena printed?”
“Got it.”
“Let me go see if I can get her while she’s feeling it for the defense.”
While Jennifer opened her briefcase to get the document, Berg stopped by the defense table on her exit.
“You really think I had something to do with that? That I even knew about it?”
I looked up at her for a moment, then answered.
“I don’t know, Dana. All I do know is that from day one you’ve been trying to tilt the board so all the pieces roll to your side. So, give me a reason not to believe it. Go find the wallet.”
She frowned and walked away without a response.
“Here,” Jennifer said.
I took the subpoena and got up.
“I’m going to go,” she said. “Let me know if there’s a problem.”
“Will do. Let’s talk tomorrow morning. And thanks for jumping on this today.”
“No problem. You’ll get it to Cisco?”
“Yeah, but I think I’m going to go with him, see if I can rattle the cage a little bit.”
“Good luck with that. The FBI doesn’t usually rattle.”
I walked over to Warfield’s clerk and asked him to call the judge before she settled in to chambers and see if I could come back to get a subpoena signed. He reluctantly made the call and I could see the slight surprise on his face when the judge apparently told him to send me in.
The clerk opened a half door in his corral and buzzed me through the door to chambers. It led me into a hallway that was an extension of the clerk’s domain, with file cabinets on one side and a large printer and worktable on the other. I passed through to another hallway, this one lined with doors to individual judge’s chambers.
Warfield’s was one down to the left and her door was open. She was behind her desk and had hung her black robe on a coatrack.
“You have a subpoena for me?” she said.
“Yes, Judge,” I said. “A subpoena for records.”
I handed the document Jennifer had
prepared across the desk. I remained standing while the judge studied it.
“This is federal,” she said.
“It’s for the FBI but it’s a state subpoena,” I explained.
“I can see that, but you know you’re spinning your wheels. The FBI won’t respond to a state subpoena. You have to go through the U.S. Attorney’s Office, Mr. Haller.”
“Some would say that going through the U.S. A’s Office would be spinning wheels, Judge.”
She kept her eyes on the subpoena and read out loud: “‘All documents related to interactions with Samuel Scales or aliases…’”
Now she dropped the paper on her desk, leaned back, and looked up at me.
“You know where this will go, right?” she said. “The circular file.”
“It may,” I said.
“You’re just fishing? Trying to get a reaction?”
“I’m working on a hunch. It would have helped if I had had the wallet and a name to work with. Do you have a problem with my fishing, Judge?”
I was speaking to the former defense attorney in her. I knew she had been in the same position: needing a break and backing a long shot to get it.
“I don’t have anything against what you’re doing,” Warfield said. “But it’s a little late in the game for it. You have trial in a month.”
“I’ll be ready, Judge,” I said.
She leaned forward, grabbed a pen from a fancy silver holder on the desk, and signed the subpoena. She handed it back to me.
“Thank you, Judge,” I said.
I walked to the door and she caught me before I could slip through.
“I cleared two weeks for jury selection and trial,” she said to my back.
I turned around to look at her.
“If you try to fuck me by running it up to game time and then asking for a delay, my answer’s going to be no.”
I nodded that I understood.
“Thank you, Your Honor,” I said.
I walked through the door with my long-shot subpoena.
20
Back in the courtroom the clerk told me I’d had a visitor who had been waiting in the gallery but the deputy had shooed him out because the courtroom was dark for the rest of the day.
The Law of Innocence Page 12
