The Law of Innocence

by Michael Connelly

  “So, now your work begins,” she said. “Remember as you go, opening statements are basically all talk. Not evidence. Ms. Berg spoke to you for ninety minutes but she did not give you any evidence. It was just talk. The defense wants to get to the evidence—or in the state’s case, the lack of evidence. We want to prove to you that the state has made a terrible mistake and charged the wrong man—an innocent man—with this crime.”

  Maggie raised her hand and pointed to me at the defense table.

  “That man is innocent,” Maggie McFierce said. “And there is really nothing else to say. We don’t have to prove his innocence in order for you to return a verdict of not guilty. But I promise you we will.”

  She paused to underline the emphatic statement and looked down at the notes on her legal pad.

  “You are going to hear two stories in this trial,” she continued. “The prosecution’s story and our story. The prosecution will point the finger at the defendant. We will show that a man whose name the state will never mention and doesn’t want you to even know is responsible for the death of Sam Scales. Only one of these stories can be true. We ask for your patience and diligence and hope that you will keep an open mind and wait for the defense’s case. Again, only one story can be true, and you will choose it. Pay careful attention to the facts. But be aware that facts can be twisted. We will show that as we go. You all were given notebooks. Keep tabs on who is twisting the facts and who is not. Write it down so that when you go into the deliberations at the end of this trial, you know the facts and you know who told the truth and who didn’t.”

  Maggie paused to take a drink from her glass of water. It was a trial attorney’s trick. Always take a prop like a glass of water to the lectern when giving an opening statement or closing argument. Taking a drink of water allows one to underline an important statement or to collect thoughts before proceeding.

  After putting the glass down, she moved toward her closing.

  “A trial is a search for truth,” she said. “And in this trial you are the truth seekers. You must be unbiased and undaunted. You must question everything. Question everything every witness says from the stand. Question their words, question their motives. Question the prosecutor, question the defense. Question the evidence. If you do that, you will find the truth. And that is, that the wrong man sits now at the defense table while there is a killer out there still. Thank you.”

  She took her glass and her pad and returned to the defense table. I turned to her as she sat down and I nodded.

  “Great start,” I whispered.

  “Thank you,” she whispered back.

  “Better than I could ever do.”

  She squinted like she wasn’t sure what she had just heard was true.

  But I meant it. It was true.

  40

  The prosecution is always tasked with establishing the timeline, presenting the evidence with a clear starting and ending point. It is linear storytelling and is sometimes long and laborious, but required. In order to get to the body found in the trunk of my Lincoln, Dana Berg had to tell the jury how it came to be that my car was stopped and the trunk opened. That meant she had to start with Officer Roy Milton.

  Milton was called to the witness stand directly after the lunch break and Berg quickly set up through testimony where he was and what he was doing when he noticed my car had no rear plate and pulled me over. She then used Milton to introduce the videos from his car and body cam, and the jury had a visceral you-are-there experience in the finding of Sam Scales in the trunk of my Lincoln.

  I carefully watched the jurors during the playing of the body cam. Some were clearly repulsed when the Lincoln’s trunk came open and the body was revealed. Some leaned into it, fascinated, it seemed, by the discovery of the murder.

  As the testimony proceeded, Maggie tracked what Milton was saying against a transcript of his testimony from the discovery hearing back in December. Any contradiction could be brought up and called out during cross-examination. But Milton stuck close to the previous story, in some cases using the same wording—a sign that prior to trial he had been coached by Berg not to stray from what was already on the record.

  Milton’s sole purpose as a witness was to get the videos into evidence and in front of the jury. They were a powerful start to the case for the state. But then it was my turn to take on Milton in cross-examination. I had waited two months for this and my measured and polite questioning during the hearing in December would be a thing of the past. I adjusted the microphone on the lectern and went right at him with the first question. My goal was to rattle him in any way I could for as long as I could. I knew that if I succeeded, I would be rattling Dana Berg as well.

  “Officer Milton, good afternoon,” I began. “Can you please tell the jury who it was that told you to follow and then conduct a traffic stop of the Lincoln Town Car I was driving on the night of October twenty-eighth?”

  “Uh, no, I can’t,” Milton said. “Because that didn’t happen.”

  “You are telling this jury that you received no prior notice or instruction to pull me over on a traffic stop after I left the Redwood Bar?”

  “That is correct. I saw your car and noticed it had no plate and—”

  “Yes, we heard what you told Ms. Berg. But what you are telling me and this jury now is that you received no direction to pull me over. Is that correct?”

  “Correct.”

  “Did you receive a radio call telling you to stop me?”

  “No, I did not.”

  “Did you receive a message on your car’s computer terminal?”

  “No, I did not.”

  “Did you receive a call or a text message on your personal cell phone?”

  “No, I did not.”

  Berg stood and objected, saying that I was repeatedly asking the same question.

  “The question has been asked and answered, Your Honor,” she said.

  Warfield agreed.

  “It’s time to move on, Mr. Haller,” she said.

  “Yes, Your Honor,” I said. “So, Officer Milton, if I were to produce a witness at this trial who alerted you to the fact that I was leaving the bar, then that person would be lying, correct?”

  “Yes, that would be a lie.”

  I looked up at the judge and asked if the attorneys could approach the bench. She waved us up. I got there first and waited for Berg and McPherson to join.

  “Judge,” I said. “I’d like to set up my own playback of the videos from the patrol car and Officer Milton’s body cam.”

  Berg raised her hands palms up in a what-gives? gesture.

  “We just watched the videos,” she said. “Are we trying to bore the jury to death?”

  “Mr. Haller, explain,” Warfield said.

  “My tech guy has put them side by side on one screen and time-coordinated them,” I said. “The jury will see them simultaneously and be able to see what happens inside the car at the same moment as things are happening on the street.”

  “Your Honor, the People object,” Berg said. “We have no way of knowing whether these have been edited or altered by this so-called tech guy. You can’t allow this.”

  “Judge, we don’t know if the prosecution edited or altered what they played for the jury,” I said. “I will provide a copy to the prosecution and they can examine it all they want. If they find that it was altered, I’ll turn in my bar ticket. But what’s really happening here is that the prosecution knows just where I’m going with this, knows that it is indeed probative, and she simply doesn’t want the jury to see it. This is a search for truth, Judge, and the defense has the right to put this before the jury.”

  “I have no idea what he’s talking about, Judge,” Berg said. “The People still object based on lack of foundation. If he wants to play it during the defense phase, he can bring in his tech guy and try to establish foundation. But this is the state’s case right now and he should not be allowed to hijack it.”

  “Your Honor,” Maggie said. “
The prosecution has already laid the foundation by playing the videos to the jury. To allow the prosecution to play what it wants to show to the jury but prevent the defense from doing so would be a wholly unacceptable injury to the defense.”

  There was a pause while the judge considered the intensity of Maggie’s unexpected argument. It gave me pause as well.

  “We’re going to take the afternoon break early and I’ll come back with my ruling,” Warfield said. “Get your equipment set up, Mr. Haller, in case I allow it. Now step back.”

  I returned to the defense table, pleased with our arguments, especially the strong hint from Maggie that preventing the defense from playing its video might be a reversible error.

  The judge adjourned court for a fifteen-minute break. Maggie and I never left the defense table. I stayed because my only choice would be to go back into the courtside lockup. She did because she was connecting her laptop to the courtroom’s audio-visual system. If we got the judge’s okay, we would put the simultaneous videos on the big screen mounted on the wall over the clerk’s station and across from the jury box.

  While Maggie worked, I checked the courtroom and saw Hayley and Maddie Bosch holding fast, still in the same seats. I nodded and smiled and they did the same.

  When the judge retook the bench, she immediately ruled that I could play the simultaneous videos. While Dana Berg offered another objection, I turned to Maggie.

  “We all set?” I asked.

  “Good to go,” she said.

  “Okay, and where are the time codes?”

  “Hold on.”

  She opened her briefcase and looked through a stack of documents before pulling out a page that had the video time codes I needed in order to cross-examine Milton. I stood up and went to the lectern with the document and a remote control for the playback. The judge overruled Berg’s objection and I began.

  I explained to Milton that I would show him videos from both his car and his body cam running side by side in synchronized time. I began the playback at a point before Milton followed me and while I was still in the Redwood. The view from the patrol car’s camera was through the windshield, looking west down Second Street to the intersection of Broadway and two blocks beyond to the tunnel. On the south side of Second the red neon sign that said REDWOOD was visible half a block up. The view from Milton’s body cam was low because he was apparently sitting slumped in his car. The screen showed his car’s steering wheel and dashboard. His left arm and hand were visible, the arm propped on the sill of the open driver’s-side window and his hand draped over the top of the steering wheel.

  I asked Milton to describe for the jury what he was seeing on the screen and he grudgingly obliged.

  “Not much, if you ask me,” he said. “On the left is the car cam and that is looking west down Second Street. Then on the right is my body cam and I’m just sitting in the car.”

  The body cam was picking up the intermittent sound of the police radio in the patrol car. I let it play and checked my list of time codes. I then looked back up at the screen.

  “Now, do you see the entrance of the Redwood up on the left side of Second Street?” I asked.

  “Yes, I see it,” Milton said.

  The door to the bar opened and out stepped two figures. It was too dark to identify them in the red glow of the neon. They spoke on the sidewalk for a few seconds and then one walked west in the direction of the tunnel, and the other went east, moving toward the camera.

  This was followed by a low-level buzzing sound that clearly came from a cell phone. I used the remote to stop the playback.

  “Officer Milton, was that you getting an email or a text on your cell phone?” I asked.

  “Sounded like it,” Milton said matter-of-factly.

  “Do you recall what the message was?”

  “No, I don’t. In the course of a night I could get fifty messages. I don’t remember them all the next day, let alone three months later.”

  I pushed the play button and the videos continued. Soon the figure walking east on Second Street stepped into the illumination from a streetlight. It was clearly me.

  As I became recognizable in the light, the angle on the body cam changed as Milton apparently straightened up in his seat.

  “Officer Milton, you seem to have gone on alert here,” I said. “Can you tell the jury what you’re doing?”

  “Not really doing anything,” Milton said. “I saw somebody on the street and was eyeballing him. It turned out to be you. You can read into that whatever you want but it didn’t mean anything to me.”

  “Your car is running at this point, correct?”

  “Yes, that’s standard.”

  “Was that message on your phone an alert that I was leaving the Redwood?”

  Milton scoffed.

  “No, it wasn’t,” he said. “I had no idea who you were, what you were doing, or where you were going.”

  “Really?” I said. “Then maybe you can explain this next sequence.”

  I hit the play button and we watched. I checked the jury and saw all eyes on the screen. One witness into the trial and I had them riding with me. I could feel it.

  On the screen I had turned the corner and then disappeared off camera as I headed to the parking lot to get into my Lincoln. Seconds ticked by with nothing happening but I didn’t want to fast-forward. I wanted the jurors to know exactly what was going on here.

  Then the Lincoln appeared in the patrol car cam as I drove into the left-turn lane on Broadway at Second. The car held there as I waited for the traffic signal to change.

  On the body-cam video, Milton’s right arm came up and pulled the transmission lever from park to drive. The move registered on the digital dashboard as a D appeared on the screen. I froze it there and looked at Milton. He still didn’t look concerned.

  “Officer Milton,” I said. “On direct examination you told the jury that you did not decide to pursue my car until you saw that it was missing the rear plate. Can you see the rear bumper from this angle?”

  Milton looked up at the big screen and acted like he was bored.

  “No, you can’t.”

  “But it is clear from your own body cam that you just put your patrol car into drive. Why did you do that if you had not seen the rear bumper of my car?”

  Milton was silent for a long moment as he contemplated an answer.

  “I, uh, guess it was just cop instincts,” he finally said. “So that I would be ready to move if I needed to move.”

  “Officer Milton,” I said. “Do you want to change any of your earlier testimony to better reflect the facts as they are seen and heard on the video?”

  Berg sprang up from her spot to object to my badgering the witness. The judge overruled her, saying, “I want to hear his answer for myself.”

  Milton declined the opportunity to change his testimony.

  “So, then,” I said. “It is your sworn testimony that you were not there specifically to wait and target me. Do I have that correct?”

  “That’s right,” Milton said.

  Now there was a defiant tone in his voice. That was what I wanted the jury to hear. The how-dare-you-question-me tone of the police state that at least some of them knew so well. A tone that I believed would trigger their suspicions that something here was not right.

  “And you do not wish to change or correct your earlier testimony?” I asked.

  “No,” Milton said emphatically. “I do not.”

  I paused for a moment to underline that answer and snuck a glance at the jury before looking down at my notes. I was sure Berg and Milton thought I was bluffing—that I was engaging in theatrics in implying that I had a witness in the wings who would further blow Milton and his story out of the water. But I didn’t care about them. I was more concerned with what the jury thought. By implying as much, I had created an unspoken bargain with the jury. A promise. I would have to deliver on it or be held accountable.

  “Let’s jump forward,” I said.

&n
bsp; I advanced the video to the point where Milton popped the trunk and discovered the body. I knew it was a risky move to show the body to the jury again. Any murder victim shown in repose after a violent end will draw sympathy from a juror and may kick-start instinctive needs for justice and revenge—all of which could be directed at me, the accused. But I thought the risk-reward balance would be in my favor here.

  During her playback of the videos, Berg had kept the sound on a low setting. I did not. I set the audio at a level that could be clearly heard. When the trunk came up and the body was seen, there was Milton’s very clear “Oh shit,” followed by a stifled laugh that carried the unmistakable tone of gloating in it.

  I stopped the playback.

  “Officer Milton, why did you laugh when you found the body?” I asked.

  “I didn’t laugh,” Milton said.

  “What was that, then? A guffaw?”

  “I was surprised by what was in the trunk. It was an expression of surprise.”

  I knew he had prepped for this with Berg.

  “An expression of surprise?” I said. “Are you sure you weren’t gloating about the predicament you knew I would now be in?”

  “No, that wasn’t the case at all,” Milton insisted. “I felt like a semi-boring night just got interesting. After twenty-two years, I was going to make my first arrest for homicide.”

  “Move to strike as nonresponsive,” I said to the judge.

  “You asked the question, he answered,” she responded. “Overruled. Continue, Mr. Haller.”

  “Let’s listen again,” I said.

  I replayed the moment on the video, turning the sound up louder. The gloating laugh was unmistakable, no matter how Milton tried to couch it.

  “Officer Milton, are you telling the jury that you did not laugh when you opened the trunk and discovered the body?” I asked.

  “I’m saying I might’ve been a little giddy, but not gloating,” Milton said. “It was a nervous laugh, that’s all.”