Before Berg could say a word, I spoke.
“I would like to confer with counsel first,” I said. “Could we take the afternoon break and then consider challenges?”
“Very well,” the judge said. “Ten minutes. Step back.”
The lawyers returned to our tables while the judge informed the courtroom of the afternoon break. She sternly said that court would resume in ten minutes sharp. I slid into my seat and huddled with Maggie.
“This is crazy,” I said. “Fifteen minutes to question three jurors? She’s nuts, and this is reversible.”
“Look, you have to calm down, Mick,” Maggie said. “You can’t cross swords with a judge before the trial even starts. That’s suicide.”
“I know, I know. I’ll be calm.”
“Now, what are we going to do? We only have one challenge.”
Before answering, I looked over and saw that Berg was also huddling with her co-counsel—the bow-tie guy. I had an idea. I looked back at Maggie.
“How many challenges do they have left?” I asked.
She looked at a score sheet she was keeping.
“Three,” she said.
“I don’t want to give up ours,” I said. “I want to try something. I want you to go into the hall for the break. Don’t come back until the ten minutes are up.”
“What?”
“Don’t worry about the challenges yet. Just go.”
She tentatively got up and went out through the gate toward the door to the hall. I checked the prosecution table and then turned toward Chan, the courtroom deputy, and signaled him over. I opened my file, revealing the ice-cube tray chart. I quickly switched the Post-its I had used to mark jurors 21 and 17, putting the green light on the schoolteacher.
The deputy stepped over.
“I gotta use the can,” I said. “Can somebody take me back?”
“Stand up,” he said.
I did as instructed. Chan handcuffed me and walked me to the custody door.
“You’ve got about five minutes,” he said.
“I only need two,” I said.
He led me into the secured holding area and into a cell where there was an open toilet. There were two men sitting on a bench in the cell, at this hour most likely waiting to be transported back to Twin Towers after their court appearances. I stood at an angle preventing them from seeing my business and urinated into the toilet while Chan waited in the hallway outside the cell.
I took my time washing my hands in the sink next to the toilet. I wanted to give the bow-tie guy enough time to see that I had left my chart open on the defense table.
“Let’s go, Haller,” Chan said from outside the tank.
“Coming,” I said.
After I returned to my seat at the defense table, I closed the file and looked over at the prosecution table. Berg and her cohort were no longer talking but looking straight ahead and waiting for court to resume.
Soon several members of the jury pool were returning to the courtroom. Maggie came back to the defense table and sat down.
“So, what are we doing?” she asked.
“I’m going to try to get sixty-eight kicked for cause,” I said. “And I’m hoping the state boots the teacher.”
“Why would they do that? He’s perfect for them. I know I’d want him if this was my case.”
I flipped open the file and pointed to the Post-its. Maggie was staring at them, putting the ruse together when the judge returned to the bench and called counsel forward.
At the bench, the prosecution went first.
“Your Honor, the People will use a peremptory challenge to dismiss number seventeen,” Berg said.
I jerked my head back like I had been slapped and then shook it in disappointment. I hoped I wasn’t overacting.
“You’re sure?” Warfield asked.
“Yes, Your Honor,” Berg said.
The judge wrote a note down on a pad.
“Mr. Haller, anything from the defense?” she asked.
“Yes, Your Honor,” I said. “The defense seeks the dismissal of juror sixty-eight for cause.”
“That cause being what?” the judge asked.
“Clear animosity exhibited toward the defense,” I said.
“Because she doesn’t like to be called ma’am?” Warfield asked. “I don’t want to be called that either.”
“That and a generally combative tone, Judge,” I said. “She clearly doesn’t like me, and that is grounds for cause.”
“Your Honor, can I be heard on this?” Berg said.
“You don’t need to be,” Warfield said. “I’m denying the motion to dismiss for cause. My tally shows you have one last peremptory, Mr. Haller. You want to use it?”
I paused for a moment to consider. If I used my last peremptory, I would have nothing left while we sat the replacements for 68 and 17. I didn’t want the Trumper on the jury but it was risky being unable to control the last two slots on the panel. The alternates would be handled separately, with additional peremptory challenges.
“Mr. Haller,” the judge said. “I am waiting.”
I pulled the trigger.
“Yes, Your Honor,” I said. “We thank and excuse juror sixty-eight.”
“And that is using your last challenge?” Warfield asked.
“Yes, Your Honor.”
“Very well, you can step back.”
I knew it would be useless to ask for additional challenges. Berg would oppose it and the judge, with her hard-line adherence to her schedule, would be disinclined to be generous. I returned to my place at the defense table and decided to dwell on the one good thing that had just happened. I had managed to get rid of two potentially problematic jurors with one challenge. I would never know whether leaving my chart open to the potential spying eyes of the prosecution table had played a part in the dismissal of the schoolteacher, but I had to think it did. I listened as the judge thanked and dismissed him along with the widow of the war hero.
For the moment, the chef from the Hollywood Bowl was secure.
The judge quickly referred to a list of numbers randomly selected by a computer and called the next two prospective jurors into the box.
We had little more than an hour to finish.
39
Thursday, February 20
It was time. It was Thursday morning at 10 a.m. and the trial would now move past the preliminaries to opening statements from the lawyers. The jury and alternates had been seated the day before without additional angst from me. My gamble with my last peremptory had paid off in that the final candidates for placement on the jury had not raised any serious flags for the defense. The jury was sworn in and we were good to go.
I felt comfortable with the overall panel. There were no known prosecution bogeys and three members of the jury I actually thought tilted toward the defense side of the scale. In most trials you are lucky if you get even one.
Still, my comfort with the jury was offset by the knot in my stomach. I was fully recovered from the attack on the bus, but the tension of a sleepless night had carried through into the day. I was nervous. I had tried many cases and I knew that anything could happen. It wasn’t a comforting knowledge. I was fully prepared to engage in this battle, but I knew there would be casualties and I could not guarantee that the truth would not be among them. Innocent men were found guilty. I didn’t want to be one of them.
An opening statement is merely a blueprint of the case to come. My strategy was a third-party-culpability defense. That was a legal way of saying somebody else did it and I was either intentionally framed or the police were so incompetent that they bungled the case and framed me in the process. I was fully aware that it would be awkward and possibly off-putting for me to stand in front of the jury and espouse this line of defense. This was why I had assigned the opening statement to Maggie McPherson. I wanted her to point to me and summon all her fierceness when she said I was innocent and that the state did not have a case that would prove guilt beyond a reasonable d
oubt.
At the same time, I didn’t want Maggie saying much beyond that. When it came to opening statements, I was from the Legal Siegel school of law. He always said, save your powder, meaning less is more; don’t reveal your case or its surprises until it’s time to present your evidence. That’s when it mattered. Legal Siegel also said that opening statements were not worth spending much time on because they would soon be forgotten as the prosecution presented its case, followed by the defense.
There was the option of withholding the defense’s opening statement until the start of its case. I had taken that option on occasion in prior trials but I never liked doing it. I always felt it unwise to miss the opportunity to address the jury early on, no matter how briefly. Since we were starting this trial on a Thursday, I knew it would be six or seven days before the defense phase started, and that seemed too long to go without countering the state with my own view of the case.
I passed all this wisdom on to Maggie, though such advice was not remotely necessary for her. She had given and sat through more than her share of opening statements and already knew that less was always more.
However, this wisdom was apparently never part of Dana Berg’s training. She stood before the jury first and delivered an opener that lasted almost ninety minutes. I would have preferred to sleep through it but I had to carefully monitor it and take notes. An opening statement was a promise to the jury of what you will present during your case in chief. It was unwise to promise something and then not deliver it. That was why I took notes. I would keep a scorecard, and as the case progressed I would be sure to point out to the jury where the state had failed to deliver on the goods promised.
Berg started by detailing the night of my arrest and the discovery of Sam Scales in the trunk of my car. This was where she made her first mistake, telling the jury that they would hear from Officer Roy Milton about how a routine traffic stop—started when he saw my car had no license plate—led to the discovery of the murder victim.
I wrote her words down verbatim because I would use them against Officer Milton when he was brought into court to testify. There was nothing routine about the traffic stop or anything else that night.
At an early point in her statement, Berg interjected a note about Sam Scales, describing him as a small-time grifter who never lived a life on the straight and narrow.
“In fact, Mr. Scales knew Mr. Haller because Mr. Haller was the attorney who defended him most often,” Berg said. “But no matter what crimes Mr. Scales contemplated or committed, he did not deserve to be murdered in the trunk of his lawyer’s car. You must remember that no matter what you hear about Sam Scales, he was the victim in this case.”
While Berg went long, she was also pretty straightforward, sticking closely to what she said the evidence in the case would show. There was a lot but it was all window dressing on the key elements of the case—that the victim was found in my trunk and that ballistic evidence would show that the killing took place in my garage.
There were a few times when I could have objected when Berg strayed from statement into argument, but I was mindful of perceptions. I didn’t want the jury to see me as some sort of petty referee or interrupter, so I let the editorializing go. The prosecutor wrapped it up after eighty-five minutes with a summary of her summary, repeating the major points she promised to deliver during the trial and sounding a lot like a closing argument.
“Ladies and gentlemen, the evidence we will present over the next several days will show that Mr. Haller was engaged in a long-running dispute with Sam Scales over money. It will show that he knew that his best and only chance of getting his money was to kill Sam Scales and draw it from his estate. And it will show beyond a reasonable doubt that he did indeed carry out that plan to kill Mr. Scales in the garage of his home. It would have been the perfect murder if not for the sharp eyes of a police officer who noticed a missing license plate on a dark street. I ask that you pay attention to the evidence presented and not be swayed by efforts to distract you from your very important job. Thank you.”
The judge called for a fifteen-minute break before the defense got its turn. I, of course, was going nowhere. I turned to scan the gallery as people got up to use the restrooms or just stretch their legs. I saw that the courtroom had gotten crowded as the case got underway—more media and more observers from both in and out of the courthouse. I saw several attorneys I knew and other courthouse workers. In the front row were my team and family. Cisco and Lorna. Bosch was there and had even brought his daughter, Maddie. She sat next to my daughter. I smiled at them now.
Kendall Roberts was not in the courtroom. After I was taken into custody, she had assessed her situation and decided to call it quits with me a second time. She had moved out of my house and left no forwarding address. I could not say I was left heartbroken. The strain the case had put on our relationship had been clear even before I was jailed for the second time. In fact, I couldn’t blame her for extricating herself from it all. She had tried to tell me in person, coming to court for one of my hearings, but the circumstances didn’t allow it. So she had written me a note and sent it to the jail. And that was the last I had heard from her.
Toward the end of the break, Hayley got up and squeezed down the row until she came to the railing behind the defense table and in front of Cisco. Since I was a custody, I was not allowed to touch her or get close. But Maggie slid her chair all the way back to the rail.
“Thanks for being here, Hay,” I said.
“Of course,” she said. “I wouldn’t miss it for the world. You’re going to win, Dad. And Mom. You’re going to prove what I already know.”
“Thanks, baby,” I said. “How’s Maddie?”
“She’s good,” Hayley said. “I’m glad she made it. It’s really good to see Uncle Harry too.”
“How long can you stay?” Maggie asked.
“I cleared the whole day,” Hayley said. “I’m not going anywhere. I mean, my mom and dad on the same team—what could be better than that?”
“I hope it doesn’t leave you behind in classes,” Maggie said.
“Don’t worry about my classes,” our daughter, the future lawyer, said. “Just worry about this.”
She gestured to the front of the courtroom, meaning the case.
“We’re locked and loaded,” I said. “Confident.”
“That’s good,” Hayley said.
“Do me a favor and keep your eye on the jury,” I said. “If you see anything, let me know during the breaks.”
“Like what?” Hayley asked.
“Like anything,” I said. “A smile, a shake of the head. Somebody falling asleep. I’ll be watching too. But we can use any read we can get.”
“You got it,” she said.
“Thanks for being here,” I said somberly. “I love you.”
“I love you too,” she said. “Both of you.”
She moved back to her seat, and Cisco and Bosch leaned forward to the railing to speak confidentially, even though I had to keep the same separation from them.
“We all set on everything?” I asked.
“We’re good,” Cisco said.
Then he looked at Bosch for agreement and Bosch nodded.
“Good,” Maggie said. “Looking at Dana’s witness list, I’m guessing that the state’s case will go to at least Tuesday. So we should be ready with subpoenas and everything else on Monday, just in case.”
“Done,” Cisco said.
“Good,” Maggie said.
People were returning to their seats. The break was almost over.
“Well, this is it,” I said. “We’re here. I want to thank you guys for everything.”
They both nodded.
“This is what we do,” Cisco said.
I turned back to the table and then leaned toward Maggie, who was already back to studying notes scribbled on a legal pad in front of her.
“You ready?” I asked.
“Of course,” she said. “Quick and dirty.”
The courtroom settled and the judge came back to the bench.
“Mr. Haller,” she said. “Your opening statement.”
I nodded but it was Maggie who stood up and went to the lectern. She carried her legal pad and a glass of water. We had not informed the judge or prosecution who would be making the opening statement for the defense. I picked up a note of surprise on Berg’s face when she turned in her seat toward the lectern, expecting to see me. I hoped it would be the first of many times she would be caught off guard.
“Ladies and gentlemen of the jury, good morning,” Maggie said. “My name is Maggie McPherson and I am co-counsel for the defense on this case. As you have been told by the court, the defendant, Michael Haller, is also representing himself in this trial. More often than not it will be Mr. Haller who stands here to question witnesses and speak to the judge. But for this opening statement we agreed that it would be best for me to speak on his behalf.”
I had a clear view of the entire jury box, and my eyes traveled from one face to another. First the front row and then the back. I saw real interest and attention but I knew this was the group’s first exposure to the defense’s case. I also knew that they might be disappointed by not getting the finer details in Maggie’s speech.
“I am going to be brief here,” she said. “But first let me say congratulations. You are all part of something that is sacred and one of the cornerstones of our democracy. In fact, no institution in modern society is more democratic than a jury. Look at yourselves. You are twelve strangers randomly brought together for one purpose. You will elect a leader and each one of you will have an equal vote. Your duty is so important because you have the power to take away a citizen’s life, liberty, and livelihood. It’s an awesome and urgent responsibility. And once you carry out your charge, you disband and go back to your lives. There is nothing as important as the duty you have agreed to take on in this courtroom.”
When we were married, I had watched Maggie in trial dozens of times and she always riffed in opening statements on the democracy of the jury. There was no change here except that she now stood—for the first time—for the defense. After the preamble, she got down to the case at hand.
The Law of Innocence Page 24
