“Your Honor, the indictment by the grand jury precludes a preliminary hearing on the charges, and the state would object to turning this hearing into a determination of probable cause. The legislature is quite clear on that.”
“Yes, I know the rules, Ms. Berg,” Warfield said. “But the legislature also gives a superior court judge in this state the power of discretion. I join Ms. Aronson in being troubled by this move by the prosecution. Are you prepared for the court to use its discretion and rule on bail in this matter without providing further support of probable cause?”
“A moment, Your Honor,” Berg said.
For the first time today, I looked over at the prosecution table. Berg was conferring with her second. It was clear that the judge, a former defense attorney, did not approve of the game Berg was playing to put me back in jail. It was put-up-or-shut-up time, no matter what she had been able to run by the grand jury. I saw the second open one of the files in front of him and take out a document. He handed it to Berg, who then straightened up to address the court.
“May it please the court, the People wish to call a witness in this matter,” she said.
“Who is the witness?” Warfield asked.
“Detective Kent Drucker. He will introduce a document that I am sure the court will see in support of probable cause regarding the special-circumstances allegation.”
“Call your witness.”
I had not seen Drucker earlier, but there he was in the front row of the gallery. He got up and went through the gate. He was sworn in and took the stand. Berg began by eliciting from him the details of the searches conducted of my home and warehouse, as well as the home of Lorna Taylor.
“Let’s talk specifically about the records you searched at the warehouse,” Berg then said. “What exactly were you looking at there?”
“These were nonprivileged files relating to the business of Michael Haller’s law practice,” Drucker said.
“In other words, the billing of clients?”
“Correct.”
“And was there a file relating to Sam Scales?”
“There were several because Haller had represented him in a number of cases over the years.”
“And in searching these files, did you find any documents pertinent to your investigation of his murder?”
“I did.”
Berg then went through the formality with the judge of gaining approval to show the witness a document he had found in my files. I had no idea what it could be until the prosecutor dropped off a copy at the defense table after handing the judge’s copy to her clerk. Jennifer and I leaned toward each other so we could read it at the same time.
It was a copy of a letter apparently sent to Sam Scales in 2016 while he was awaiting sentencing for a fraud conviction.
Dear Sam,
This will be the last correspondence from me and you will have to find yourself a new attorney to handle your sentencing next month—if you do not pay the legal fees agreed to during our meeting of October 11. My agreed-to fee for handling your case was $100,000 plus expenses with a $25,000 retainer. This agreement was made regardless of whether your case went to trial or was handled in disposition. It subsequently was handled by disposition and sentencing is set. The remainder of the fee—$75,000—is now owed.
I have handled several prior cases involving you as a defendant and know that you keep a legal fund so that you can pay your lawyers for the good work they perform for you. Please pay this invoice or consider this the termination point of our professional relationship, with more serious action to follow.
Sincerely,
p.p. Michael Haller
“Lorna wrote this,” I whispered. “I never saw it. Besides, it means nothing.”
Jennifer stood and objected.
“Your Honor, may I voir dire?” she asked.
It was a fancy way of asking if she could question the witness about the origin and relevancy of the document before the judge accepted it as a prosecution exhibit.
“You may,” Warfield said.
“Detective Drucker,” Jennifer began. “This letter is unsigned, true?”
“That is true, but it was in Mr. Haller’s files,” Drucker said.
“Do you know what the ‘p.p.’ before Mr. Haller’s printed name means?”
“It’s Latin for pro per-something.”
“Per procurationem—do you know what it means?”
“That it was sent under his name but he didn’t actually sign it.”
“You said you found this in Mr. Haller’s files. So it was never mailed?”
“We believe it is a copy and the original was sent.”
“Based on what?”
“Based on it being found in a file marked ‘Correspondence.’ Why would he keep a file full of letters he didn’t send? It makes no sense.”
“What evidence do you have that this letter was ever mailed or delivered directly to Mr. Scales?”
“I assume it was mailed or delivered. How else would Mr. Haller expect to get paid?”
“Do you have any evidence that Mr. Scales ever received this letter?”
“Again, no. But that is not what is important about the letter.”
“Then, what is important about the letter?”
“Mr. Haller says he knows that Sam Scales kept a fund to pay his lawyer and he wanted another seventy-five thousand. That is motive to kill.”
“Do you suppose that Mr. Haller knew about the fund because Sam Scales told him?”
“That would make sense.”
“Did Sam Scales reveal to Mr. Haller where he kept that fund and how to access it?”
“I have no idea, but it would be covered under attorney-client privilege.”
“If you can’t show that Mickey Haller knows where Sam Scales kept his money, how can you claim that he killed Sam Scales for his money?”
Berg had had enough and stood.
“I object, Your Honor,” she said. “This isn’t voir dire. Ms. Aronson is conducting a discovery deposition.”
“I can see what she is doing, Ms. Berg,” Warfield said. “And she has made her point. Anything further, Ms. Aronson?”
Jennifer checked me and I gave a slight shake of my head, reminding her that a lawyer should always quit talking when she’s ahead.
“No further questions at this time, Your Honor,” she said. “It is clear from the detective’s testimony as well as the document that it was not signed or written by Mr. Haller and has no relevancy to this hearing.”
“Judge, the relevancy is clear,” Berg countered. “Whether or not it was signed by the defendant, it was sent by his office and it references a meeting he attended. It is clearly relevant because it speaks to the issues and motives surrounding this crime—that the defendant was owed money and knew that Sam Scales, the victim, had the money and wouldn’t part with it. We have further documentation we are ready to present that shows the defendant filed a lien against the victim in furtherance of collecting his money. That lien is now lodged against the estate. If money is found, the defendant is in line to receive it, plus interest. He could not get Sam Scales to pay him in life—he hopes to collect from him in death.”
“Objection!” Jennifer yelled.
“Ms. Berg, you know better,” Warfield said. “Leave your sound bites for the reporters, not this court.”
“Yes, Your Honor,” Berg said, her tone falsely contrite.
The judge dismissed Drucker from the witness stand. I knew it was fruitless. The judge would either be canny and object to what the prosecution was doing or let it slide. Warfield asked if there was any further argument and Berg demurred while Jennifer asked to address the court.
“Thank you, Your Honor,” she said. “The court noted earlier that it has wide discretion over bail. The bail schedule is meant to protect the community as well as ensure that defendants accused of crimes are held to answer. To these points, I believe it is clear that Michael Haller is neither a threat to the community nor a threat to
flee. He has been free on bond now for six weeks and he hasn’t attempted to flee. He hasn’t threatened the community or anyone associated with this case. In fact, he has sought and received the court’s permission to leave the county and state and yet returned the same night. Your Honor, you do have discretion in the matter and it is in pursuit of a fair trial in this case that I ask that bond be carried over from the original charge and that Mr. Haller be allowed to remain free to defend himself.”
Berg’s comeback was only to remind the judge that rules were rules. She said judicial discretion did not extend to the findings of a grand jury or to the legislature’s decision to make murder for financial gain a no-bail charge.
She then sat down.
I didn’t think we had a winning argument, but the judge built anticipation in the courtroom as she wrote notes before speaking.
“We’ll hear the other motion before I make a decision on this matter,” she said. “We are going to take a ten-minute break first and then we’ll consider Mr. Haller’s six-eight-six motion. Thank you.”
The judge quickly left the bench. And I was left with ten minutes to figure out how to turn things around.
32
It might have been my last chance to walk the halls of the courthouse, even ride the elevator down and step outside to enjoy a few moments of free, fresh air, but I remained at the defense table during the ten-minute break, which actually lasted twenty. I wanted to be alone with my thoughts. I even told Jennifer I didn’t want her next to me when court resumed. She might have been hurt, but she understood my reasoning. It was me against the state, and while I would not be speaking to a jury, I wanted the judge to be reminded of the fact that I was one man standing alone against the power and might of the beast.
I composed myself to be ready at the ten-minute mark and then dealt with the anxiety of waiting in overtime. Finally Warfield came out and retook her position on the bench above everyone.
“Very well, back on the record,” she said. “We have a motion from the defense to compel a speedy trial. Mr. Haller, I see you are now alone at the defense table. You will be arguing this motion?”
I stood up.
“Yes, Your Honor,” I said.
“Very well,” Warfield said. “I hope we can be succinct. Proceed.”
“If it please the court, I will be succinct. What the prosecution has done with its grand jury indictment is attempt to subvert the law and my constitutionally guaranteed right to a speedy trial. It’s a shell game, Your Honor, played by the prosecution not in the furtherance of justice but in the gaming of it. There have been two constants since the very first minutes of this case. One is that I have steadfastly denied these charges and claimed my innocence. The other is my refusal under any circumstances to delay these proceedings for any amount of time.”
I paused for a moment and looked down at the notes I had scribbled on my legal pad. I didn’t need them. I was on a roll. But I wanted the space so the judge could take in my argument in pieces.
“Since day one I have demanded my right to a speedy trial,” I continued. “I have said put up or shut up to the state. I did not commit this crime and I demand my day in court. And as that day has drawn closer and the prosecution knows it’s almost time, they have blinked. They know their case is weak. They know it is full of holes. They know I have innocence and reasonable doubt on my side and they have attempted to thwart my defense at every turn.”
I paused again, this time turning slightly to look back at my daughter and offer a wistful smile. No man should have his daughter see him in this position.
I turned back.
“Judge, every lawyer’s got a bag of tricks—prosecutor, defense attorney, doesn’t matter. There is nothing pure about the law when you get inside a courtroom. It’s a bare-knuckle fight and each side uses whatever it can to bludgeon the other. The constitution guarantees me a speedy trial, but by dropping the original charge and talking a grand jury into a new one, the prosecution is trying to bludgeon me in two ways: stick me in a jail cell so I am handicapped in preparing my defense, and restart the game clock so the state has more time to wield its power and might and shore up their losing case against me.”
This time I kept my eyes on the judge as I paused before the windup.
“Is it legal? Is it within code? Perhaps. I’ll give them that. But is it fair? Is it in the pursuit of justice? Not a chance. You can stick me back in jail, you can delay the search for truth that a trial is supposed to be, but it won’t be the right thing to do and it won’t be fair. The court holds a lot of discretion in this regard and the defense urges you not to restart the clock. Let’s get to the search for the truth now instead of later, instead of at the prosecution’s convenience. Thank you, Your Honor.”
If my words had any impact on Warfield, she didn’t show it. She didn’t write anything down as she had during the earlier motion. She simply swiveled six inches in her high-backed, leather chair so that her gaze shifted from me to the prosecution table.
“Ms. Berg?” she said. “Would the state like to respond?”
“Yes, Your Honor,” Berg said. “I promise to be more succinct than the defense. In fact, Mr. Haller made my argument for me. What we have done with the refiling of the case through grand jury indictment is firmly within the bounds of the law as well as something that happens routinely in this courthouse and courthouses across the country. It is not a do-over or a delay tactic. I am charged with seeking true justice for the victim of this cold-blooded murder. Through the grand jury and the presentation of evidence from the ongoing investigation, we have elected to upgrade the charges in the pursuit of justice.”
In my peripheral vision I saw Berg glance my way as she threw my own words back at me. I did not give her the satisfaction of a look back.
“Your Honor, the case against the defendant is strong and getting stronger as the investigation of this crime continues. That’s what the defendant knows, that is what he is trying to subvert: a search for truth with all the evidence on the table. It is his hope that by hurrying into trial, he can stop the mounting evidence from crushing him. That won’t happen, because the truth is inevitable. Thank you.”
The judge paused before speaking, possibly waiting to see whether I would stand to object or respond to Berg. She even swiveled her chair back toward me as if expecting it. But I held my ground. I had made my points and there was no need to restate them.
“This is a novel situation,” Warfield began. “It has been my experience as a judge—and as a defense attorney in a prior life—that it is the defendant who most often seeks delays, seemingly in an effort to put off the inevitable. But not in this case. And so the arguments today give me pause. Mr. Haller clearly wants this behind him—no matter the outcome. He also wants to be free to build his case.”
The judge swiveled toward Berg.
“On the other hand, the state gets only one shot at this,” she said. “There are no do-overs and therefore time to prepare is key. There are new charges in the case and the state bears the responsibility of being able to support those charges to a level far above the probable-cause threshold found by the grand jury. The burden of proof—proving guilt beyond a reasonable doubt—is just as heavy as the burden carried by the defense.”
The judge straightened her seat and leaned forward, clasping her hands together.
“The court is inclined in these matters to split the baby. And I will let the defense choose how that split is made. Mr. Haller, you decide. I will continue your bail with all the existing restrictions but you will waive your right to a speedy trial. Or I will revoke bail but refuse to change the case calendar, leaving the start of trial on this matter set for the eighteenth of February. How do you wish to proceed?”
Before I could stand and respond, Berg did.
“Your Honor,” she said urgently. “May I be heard?”
“No, Ms. Berg,” the judge said. “The court has heard all it needs to hear. Mr. Haller, will you make a choice, or would
you like me to allow Ms. Berg to choose?”
I stood slowly.
“A moment, Your Honor?” I asked.
“Make it fast, Mr. Haller,” Warfield said. “I am in an uncomfortable position that I will not hold for long.”
I turned toward the railing behind the defense table and looked at my daughter. I signaled her closer and she slid forward on her seat, putting her hands on top of the rail. I leaned down and put my hands on top of hers.
“Hayley, I want this over with,” I whispered. “I didn’t do this and I think I can prove it. I want to go in February. You going to be okay with that?”
“Dad, it was so hard when they had you in jail before,” she whispered back. “Are you sure?”
“It’s like what you and your mother and I talked about. I’m free right now, but inside I feel like I’m still locked up as long as this is hanging over me. I need it to be over.”
“I know. But I worry.”
From behind me I heard the judge.
“Mr. Haller,” she said. “We are waiting.”
I kept my eyes on my daughter.
“It’s going to be all right,” I said.
I quickly leaned over the rail and kissed her on the forehead. I then glanced at Kendall and nodded. I could tell by the look of surprise on her face that she expected more, she expected to be consulted. That I had sought my daughter’s approval on this choice rather than hers might doom our relationship. But I did what I felt I had to do.
I turned back to the judge and announced my decision.
“Your Honor, I surrender myself to the court at this time,” I said. “And I will be ready to defend myself on the charges on February eighteenth as scheduled. I am innocent, Judge, and the faster I can get to a jury to prove it, the better.”
The judge nodded, seemingly not surprised but concerned by my decision.
“Very well, Mr. Haller,” she said.
She made it official with rulings from the bench, but not without a final objection from the prosecution.
“Your Honor,” Berg said. “The People ask that your ruling on the trial date be stayed while under review by the Second District Court of Appeal.”
The Law of Innocence Page 20
