Warfield looked at her for a long moment before replying. It is always a risky move to tell a judge you are appealing a ruling from the bench when you still have a whole trial before the same judge ahead of you. Judges are supposed to be impartial, but when you announce you are going to a higher court to complain that your lower court judge was in error, well, there are ways for that jurist to even the score down the line. A perfect example is what Judge Hagan did to me at my first appearance on this case. I had reversed him twice on appeal. He paid me back by slapping me with a $5 million bail. He all but winked and smiled at me when he did it. Berg was walking a similar line with Warfield now, and it looked like the judge was giving her a few seconds to reconsider.
But Berg waited her out.
“Ms. Berg, I’ll now give you a choice,” Warfield finally said. “I won’t stay the ruling on the six-eight-six motion without staying the ruling on Mr. Haller’s bail revocation. So if you want a stay while you appeal, then Mr. Haller remains free under the current bail arrangement until you get a ruling from the appellate court.”
The two women locked eyes for a tense five seconds before the prosecutor responded.
“Thank you, Your Honor,” Berg said coldly. “The People withdraw the request for a stay.”
“Very well,” Warfield responded with just as much ice. “Then I think we are adjourned here.”
As the judge stood up, the deputies in the room moved toward me. I was going back to Twin Towers.
33
Friday, January 24
I was placed back in K-10, the high-power module at Twin Towers where they housed inmates on keep-away status. The only problem I had with this was that I wanted to be kept away from the jailers more than from the jailed. The investigation that had followed the eavesdropping scandal had put the mark on me and I knew the potential that the jail deputies would get back at me physically had increased exponentially.
Bishop was long gone and I needed new protection. In a way, I held auditions. I spoke to a handful of men in the module the morning after my arrival, attempting to learn whom I might be able to trust, who might have greater enmity for the hacks than I did. I settled on a guy named Carew, who was physically impressive and being held on a murder charge. I didn’t know the details of the case and didn’t ask for them. But I learned that he had private counsel and I knew that a murder defense cost serious money. I offered him four hundred a week to watch my back and settled the negotiation at five hundred delivered weekly to his attorney.
The days in the jail fell into the same routine as the earlier stint, with my team coming in to conference most afternoons at three. It seemed that our nets had already been cast and we were in the stage where we were looking through the catch and devising our strategy. My energy and outlook remained high. I was confident in the case. I just wanted to get to it.
The only break from the routine came three days after my re-arrest when I was taken to the visitors’ center and sat down in front of my first ex-wife, Maggie McPherson. Her coming to see me embarrassed me and made my heart swell at once.
“Is anything wrong?” I said. “Is Hayley all right?”
“Everything’s fine out here,” she said. “I just wanted to see you. How are you, Mickey?”
I was ashamed of my situation and my jailhouse blues. I could imagine how I must appear to her, especially after her taking exception to the way I had looked outside jail.
“All things considered, I’m okay,” I said. “The trial’s soon and this will all be over.”
“Are you ready?” she asked.
“More than ready. I think we’re going to win this thing.”
“Good. I don’t want our daughter to lose her father.”
“She won’t. She’s what keeps me going.”
Maggie nodded and said nothing more on it. I read the reason for her visit as her checking on my health and state of mind.
“It means a lot to me that you came here,” I said.
“Of course,” she said. “And if you need anything, call me—collect.”
“I will. Thanks.”
The visit only lasted fifteen minutes but I came away from it feeling stronger. With family, as splintered as it was, behind me, I felt like I couldn’t lose.
34
Wednesday, February 5
The silk suit felt good against my skin. It eased the itch from the prison rash I had developed over most of my body. I sat quietly next to Jennifer Aronson at the defense table and savored the moment of pseudofreedom and relief. I had been taken to court for a hearing requested by the prosecution, which was seeking sanctions for alleged foul play on the part of the defense. But no matter what the cause, I was happy to be pulled out of Twin Towers for any reason for any amount of time.
Over the years I’d had many incarcerated clients who exhibited and complained about prison rash. Visits to the jail clinic didn’t cure it or explain it. Its origin was unknown. It had been suggested that the industrial detergent used on the jail bedding and laundry caused it, or that there was something in the material used in the thin mattresses in the cells. Others said it was an allergic reaction to confinement. Still others called it the manifestation of guilt. All I knew was that I didn’t get it the first time around at Twin Towers and then I got it bad the second. The difference was that in between stays, I had been the root cause of another damaging internal investigation of the jail system. This made me think that the jail deputies were behind it—that the rash that kept me itching and awake at night was a form of payback. They had spiked my food or my laundry or my cell in some way.
I kept this belief to myself to avoid being considered paranoid. My physical decline and weight loss was continuing and I wanted no one to add concerns about mental acuity to the question of whether I could adequately defend myself. Maybe it was the suit or maybe it was the courtroom. All I knew was that my preoccupation with the malady went away as soon as I left the jail and was put on the bus.
On the way over, the bus had passed two painted murals depicting Kobe Bryant. The famed Lakers basketball star had been killed with his daughter and others in a helicopter crash only ten days earlier and already the street memorials were up in solemn testimony to his transcending mastery of his sport to reach iconic status, in a city where the climb to that level was already so crowded.
I heard the soft thud of the courtroom door closing and turned to see that Kendall Roberts had entered. She gave a secretive wave as she came down the center aisle. I smiled. She moved down the first row and sat directly behind the defense table.
“Hey, Mickey.”
“Kendall, you didn’t have to come all the way down. This probably is going to be a pretty quick hearing.”
“It’s still better than the fifteen minutes they give you at the jail.”
“Well, thanks.”
“Also, I wanted to—”
She stopped when she saw Chan, the courtroom deputy, moving toward us to order me to stop communicating with people in the gallery. I held my hand up to signal that I was halting the violation. I turned forward and leaned toward Jennifer.
“Do you mind telling Kendall that I’ll call her later when I can get to the phone in the module?”
“Not at all.”
Jennifer got up to whisper to Kendall and I went back to staring straight ahead and feeling the tension leak out of my muscles and spine. You never stopped looking over your shoulder in Twin Towers. I savored these moments when I didn’t have to worry.
Jennifer returned to her seat. I finally came out of my reverie and got to work.
“So,” I said. “What’s the update on Opparizio?”
I had gotten the word during a team meeting Monday that the Indians had finally located him when they followed Jeannie Ferrigno to a rendezvous at a hotel in Beverly Hills. They dropped her and stayed with Opparizio, tailing him to a house in Brentwood that was held in an impenetrable blind trust.
“Same,” Jennifer said. “They’re ready to go with the s
ubpoena when you give the word.”
“Okay, let’s wait till next week. But if it looks like he might be getting ready to split town, we need to serve him. He can’t get away.”
“We know, but I’ll remind Cisco.”
“We also serve the girlfriend then and his two other associates holding shares in BioGreen. And all of it on camera so we can show the judge if they don’t show up.”
“Got it.”
I glanced over at the prosecution table. Berg was by herself today. No bow-tie backup. She was looking at a handwritten document and I guessed that she was rehearsing her argument. She sensed my gaze.
“Hypocrite,” she said.
“Excuse me?” I said.
“You heard me. You talk about tilting the board all the time and the prosecution not playing fair, and then you pull a stunt like this.”
“Like what?”
“I’m sure you know what this is about. Like I said and you heard, you’re a hypocrite, Haller. And a murderer.”
I looked at her for a long moment and I could see it in her eyes. She was a true believer. She had me down as a killer. It’s one thing when the cops think it—most of them can’t see the difference between a defense lawyer and a defendant. But in the world of trial lawyers, I had for the most part encountered respect from both sides of the aisle. That Berg believed I was capable of putting a man in a trunk and shooting him three times was a reminder of what I was facing at the trial ahead: a true believer who wanted to put me away forever.
“You’re so wrong,” I said. “You’re so blinded by the lies you’ve been told by—”
“Save it for the jury, Haller,” she said.
The verbal confrontation ended with Deputy Chan announcing that court was coming to order. Judge Warfield stepped through the door at the back of the courtroom and took the bench. She quickly got down to business on California versus Haller and invited Berg to explain her request for sanctions against the defense. The prosecutor took the document she had been studying to the lectern with her.
“Your Honor, the defense in this case has repeatedly accused the People of playing unfair with discovery, and yet it is the defense that has engaged in deception all along,” Berg began.
“Ms. Berg,” the judge cut in. “I don’t need the preamble. Get to the point. If there is a discovery violation, please get to it.”
“Yes, Your Honor. On Monday, the latest witness lists were due from each side. And to our surprise, the defense actually put new names on their witness list. One name that stood out to us was Rose Marie Dietrich, whom the defense listed as the landlord of the victim in this case, Sam Scales.”
“Was this a witness the prosecution was not familiar with?”
“No, Your Honor, we were not familiar with her. I dispatched investigators to locate and talk to her and we learned that the reason she was not known to us is that Sam Scales used a false identity when he rented an apartment from her.”
“I’m not seeing the problem here as far as the defense goes, Ms. Berg.”
“Your Honor, the problem is in what Rose Marie Dietrich told us. She said that Mr. Haller and two of his investigators spoke with her three weeks ago about Sam Scales, who was using the name Walter Lennon when he rented the apartment. Additionally, she allowed Mr. Haller and his crew to look through the victim’s belongings, which were stored in the garage of the property. Unaware that Mr. Scales had been murdered in October, Dietrich and her husband boxed his belongings when he seemed to disappear without paying rent for December. They stored his property in the garage.”
“This is all very interesting, but where is the infraction the People are seeking sanctions for?”
“Judge, the point is that the defense had access to several boxes of belongings, including documents and mail, and yet three weeks later, nothing has come to the People in discovery. They didn’t put Rose Marie Dietrich’s name on their witness list until this week in order to ensure that when the prosecution got to Ms. Dietrich, it would have no access to the property.”
“Why would that be, Ms. Berg?”
“Because they were turned over to the Salvation Army after the defendant and his crew visited Ms. Dietrich. It is quite obvious that the defense had a strategy to keep whatever information was in the victim’s belongings from the People, Your Honor.”
“That is a lot of supposition. Do you have anything that backs that up?”
“We have a sworn statement from Rose Marie Dietrich that states unequivocally that she was told by the defendant that she could donate the property.”
“Then let me take a look at that.”
Berg dropped off a copy of the statement with me after handing one to the clerk for the judge. There was silence for a minute or so as Jennifer and I huddled together to read the witness statement at the same time as the judge.
“Okay, the court has read the document,” Warfield said. “I’d like to hear from Mr. Haller on this matter next.”
I got up and went to the lectern as Berg abandoned it. I had decided on the bus ride over to go full-on sarcastic with my response as opposed to full-on outraged.
“Good morning, Judge,” I said good-naturedly. “I would like to begin by saying that normally I would welcome any opportunity to leave the spare accommodations afforded me at the Twin Towers Correctional Facility, courtesy of Ms. Berg, to be in court, but this time I am baffled by the reason I’m here and the logic of her argument. It seems to me, Your Honor, that she should be seeking sanctions against her own team of investigators, not the defense.”
“Mr. Haller,” Warfield said in a tired tone. “As I said to Ms. Berg, let’s stay on point. Please respond directly to the discovery issue that the prosecution has raised.”
“Thank you, Judge. My response is to say there has been no discovery violation. I have no documents to turn over and I have hidden nothing from the prosecution. Yes, we went to the address in question and looked through the contents of the boxes stored there. I took nothing from those boxes, and I guarantee that Ms. Berg’s investigators asked Rose Marie Dietrich what we took. Unhappy with the response they got to that question, Ms. Berg chose not to include the answer in this piece of paper she claims is a statement of fact. It’s got some facts listed here, Judge, but not all of them.”
“Judge?” Berg said, rising from her seat.
“Your Honor, I’m not finished,” I said quickly.
“Ms. Berg, you had your turn,” Warfield said. “Let counsel finish and then you will get a chance to respond.”
Berg sat back down and started writing furiously on her legal pad.
“In closing, Your Honor,” I said. “There is no subterfuge here. The court recalls that three weeks ago in a teleconference hearing that Ms. Berg was party to, I asked permission to leave the county and state. I assume the court reporter has a record of that hearing, and it will reveal that the prosecution asked specifically whom I was going to see at High Desert State Prison in Nevada. And I said I was going to visit the former cellmate of the victim in this case. If Ms. Berg or any of the many investigators at her disposal had bothered to follow up and talk to that man in Nevada, they would have gotten the same address and alias for Sam Scales that I got, and in fact could have beaten me to the location we’re talking about here. Your Honor, again I say that this is nothing but sour grapes. The discovery obligations of the defense require that I turn over to Ms. Berg a witness list and copies of anything I intend to offer into evidence. I have done that. I am not required to share with Ms. Berg my interviews, observations, or other work product. She knows that. But since day one, the prosecution’s investigation has been lazy, sloppy, and shoddy. I am confident that I will prove that at trial, but the sad thing is, there shouldn’t be a trial. The prosecution has—”
“Okay, let me stop you right there, Mr. Haller,” the judge said. “I believe you have more than made your point. You can return to your seat now.”
“Thank you, Your Honor,” I said.
Usuall
y when a judge tells you to sit down it means that all that needs to be said has been said and a decision has been made.
The judge swiveled in her chair and focused on Berg.
“Ms. Berg, do you recall the teleconference referred to by counsel?” she asked.
“Yes, Your Honor,” Berg said.
There was no emotion in her tone. She had taken the same cue I had when Warfield told me to sit down.
“It appears to me that the state had every opportunity to follow and find this location and the victim’s belongings,” Warfield said. “The court tends to agree with Mr. Haller that this is about work product and a missed opportunity, not about any gamesmanship on the part of the defense. Certainly nothing I would consider a violation of discovery.”
Berg stood but did not move to the lectern, a sign that her protest was going to be half-hearted, no matter what she had scribbled on her legal pad.
“He waited three weeks to put her on the witness list,” she said. “He was hiding her importance. There should have been a written report about the interview and the search of the property. That is exactly what the spirit and intention of discovery is.”
I started to rise to object but the judge made a signal with her hand, gesturing me back into my chair.
“Ms. Berg,” the judge intoned, the first note of annoyance in her voice. “If you are suggesting that Mr. Haller is under an obligation to document his investigation with reports of his moves and interviews just like a law enforcement agency and then immediately decide whether he will call Ms. Dietrich as a witness, then you must take me for a fool.”
“No, Your Honor,” Berg said quickly. “Not at all.”
“Very well, then. We’re done here. The motion for sanctions is denied.”
The judge looked over at the calendar that hung on the wall over the clerk’s corral.
“We are thirteen days from jury selection,” she said. “I am setting a hearing for next Thursday at ten a.m. for final motions. I want to handle everything on that day. That means, get your paperwork in with enough time for the court to consider it. I want no surprises. I will see you all then.”
The Law of Innocence Page 21
