The Law of Innocence

by Michael Connelly

  But all of those efforts proved moot when, an hour into the afternoon session, Berg handed me all I needed to run the clock out myself. She had moved Drucker’s testimony into an area exploring who Sam Scales was and what he might have been up to at the time of his murder. Drucker recounted how he had learned that Scales had been using the alias Walter Lennon and had found applications for credit cards and subsequent billing statements under the name and address last used by Scales. Berg then moved to enter the documents as prosecution exhibits.

  I leaned toward Maggie and whispered.

  “Did we get this stuff?” I asked.

  “I don’t know,” Maggie said. “I don’t think so.”

  Berg walked copies to us after dropping duplicates off with the court clerk. I placed the pages on the table between Maggie and me and we quickly studied them. A murder case generates a tremendous number of documents and sometimes keeping track of it all is a full-time job. This case was no different. Plus, Maggie had come into the case, replacing Jennifer, only two weeks earlier. Neither of us had command of all of the paperwork. That had been more Jennifer’s job than mine because I wanted to keep a minimal number of documents with me in the jail.

  But I was pretty sure I had never seen these papers before.

  “You have the discovery report there?” I asked.

  Maggie went into her briefcase and pulled out a file. She located a printout with a one-line description of all documents received from the District Attorney’s Office as part of discovery. She ran her finger down the column and then checked a second page.

  “No, they’re not here,” she said.

  I immediately stood up.

  “OBJECTION!” I said with a fervor I rarely used in a courtroom.

  Berg stopped in mid-question to Drucker. The judge startled as if the steel door to the holding cell had been slammed with great force.

  “What is your objection, Mr. Haller?” she asked.

  “Judge, once again the prosecution has willfully violated the rules of discovery,” I said. “The efforts to keep the defense from evidence to which it rightfully should have access has just been staggering in—”

  “Let me stop you right there,” the judge said quickly. “Let’s not get into this in front of the jury.”

  Warfield then told the jurors that court was adjourning for a short afternoon break. She asked them to be back in the assembly room in ten minutes.

  We waited as the jurors slowly made their way out of the box and to the courtroom’s exit. My anger grew with each second of silence. Warfield waited for the door to close behind the last juror before finally addressing the situation.

  “Okay, Mr. Haller,” she said. “Now speak.”

  I moved to the lectern. I had hoped to manufacture a delay tactic that would push the most damaging part of Drucker’s testimony into Monday, when I would be able to address and mitigate it in a timely manner. I didn’t care whether the delay was legit, but I had just been handed a discovery violation that was as righteous as anything I could have imagined. I teed it up and swung hard.

  “Judge, this is just incredible,” I began. “After all the issues we’ve already had in discovery, they just go and do it again. I have never seen these documents, they are not on any supplemental discovery lists, they are a complete surprise. And now they’re exhibits? They want the jury to see them but they never let me see them, and I’m the one being tried for murder here. I mean, come on, Judge. How can this keep happening again and again? And with no sanctions, no deterrent.”

  “Ms. Berg, Mr. Haller says he hasn’t received this in discovery. What is your response?” Warfield said.

  I had been aware the entire time I was speaking that Berg was leafing through a thick white binder that had the word DISCOVERY on its spine. She was moving through it a second time, this time back to front, when the judge called her to answer. She stood and addressed the court from her table.

  “Your Honor, I can’t explain it,” she said. “It was supposed to be in a discovery package delivered two weeks ago. I have someone checking the emails to defense counsel but this is the master list I’m looking at here and I don’t see the documents in question on it. All I can say is that it was an oversight, Judge. A mistake. And I can assure the court that it was not intentional.”

  I shook my head as though I was being offered a deal on an ice-cube farm in Siberia. I was not impressed.

  “Judge, oops is not a legal excuse,” I said. “I am unable to evaluate the authenticity, relevance, or materiality of these exhibits, nor am I prepared to confront and cross-examine this witness about them. I have been severely prejudiced in my ability to prepare and present my defense. The state’s lack of respect for my rights has to be corrected. Respect to the system, respect to the court, respect to the rules we all have to learn and must play by.”

  The judge pursed her lips as she realized the discovery violation was confirmed and had to be dealt with.

  “All right, Mr. Haller, taking counsel at her word, the violation appears to be a mistake,” she said. “The issue now, however, is how to proceed, and that depends on what this evidence means to the People’s case and the ability of the accused to confront the testimony and evidence against him. Ms. Berg, what is the relevance and materiality of this evidence and testimony? To what issue does it relate?”

  “These are documents relating to Sam Scales alias Walter Lennon’s finances and bank accounts,” Berg said. “They are relevant to the defendant’s motive for killing him. They are crucial to the People’s case for special circumstances.”

  “Mr. Haller,” Warfield said. “Would you please look at the documents provided to you and tell me how long you will need to review and investigate them?”

  “Judge, I can tell you right now that I will need at least the weekend, possibly more, because the banks are closed over the weekend and my ability to investigate will be limited. But that is only one of the issues. These documents and the testimony related to them ought to be excluded from evidence. The prosecution, in its zeal to—”

  “We’re losing the day, Mr. Haller,” the judge said. “Please get to the point.”

  “Exactly,” Berg chimed in. “Judge, it is clear that counsel is engaged in tactics to delay the testimony of my witness. He would like nothing better than—”

  “Your Honor,” I cut in loudly. “Am I missing something? I’m the victim here, and the prosecution is now trying to blame me for her malfeasance, intentional or otherwise.”

  “It was a mistake!” Berg yelled. “A mistake, Judge, and he’s trying to make it look like the end of the world. He—”

  “All right, all right!” the judge yelled. “Everyone just settle down and be quiet.”

  In California, judges don’t use gavels—it’s supposed to be the kinder, gentler justice system—or surely the hammer would have just come down hard. In the silence that followed the judge’s outburst, I saw her eyes rise above the lawyers in front of her to the clock on the rear wall of the courtroom.

  “It’s now after three o’clock,” she said. “Tempers are running hot. In fact, you both are bringing far more heat than illumination to this proceeding. I’m going to bring the jury back in and send them home for the weekend.”

  Berg hung her head in defeat as Warfield continued.

  “We’ll take this matter up Monday morning,” she said. “Mr. Haller, I want a submission from you to my clerk on remedies by Monday, eight a.m. You will copy Ms. Berg by email with a draft of your submission by Sunday evening. Ms. Berg, you too will file your submission as to why this evidence should not be excluded or why other proposed sanctions would be inappropriate. As I have repeatedly said in this courtroom, I take the rules of discovery very seriously. There are no honest mistakes when it comes to discovery. It is the backbone of case preparation, and the rules must be rigorously and jealously adhered to. Any infraction, whether intentional or not, must be seriously dealt with as a violation of the accused’s fundamental right to due pr
ocess. Now let’s bring the jury back in here so they can get an early start on the weekend.”

  I moved back to the defense table and sat down. I whispered to Maggie.

  “Talk about falling in shit and coming up smelling like a rose,” I said.

  “Glad now that I didn’t let you claim food poisoning?” she said.

  “Uh, that falls under attorney-client privilege, not to be mentioned ever again.”

  “My lips are sealed. I’ll write the motion and get it in. What about sanctions?”

  “I feel like we just got them. Her putting this over till Monday is a home run for us.”

  “So, no sanctions?”

  “I didn’t say that. You never miss an opportunity for sanctions against the state. That’s just too rare to pass up. But I don’t want a mistrial, and if what the Iceberg says is true about the evidence being crucial to her case for special circumstances, the judge won’t exclude it. Let’s think about it some—we have the weekend. I’ll take the printouts and read it all over tomorrow, maybe get some ideas. Can you come to Twin Towers on Sunday to meet?”

  “I’ll be there. Maybe meet Hayley for lunch first.”

  “Good. Sounds like a plan.”

  The door to the assembly room opened and the jurors began filing down the two rows of seats in the box. It was the end of day two of prosecution’s case and by my count I was still ahead.

  42

  Sunday, February 23

  They didn’t start moving me to one of the attorney conference rooms until almost three o’clock. The runner who took me down was wearing a mask that matched the green of his uniform. That told me that the face covering had been officially distributed by the Sheriff’s Department, a sign that the coming wave was a real threat.

  When he walked me through the door of the interview room Maggie was already there and waiting. And she, too, wore a mask.

  “Are you kidding me?” I said. “This thing is real? It’s coming?”

  She didn’t say anything as the deputy led me to a seat and removed the handcuffs. He then recited the rules.

  “No touching,” he said. “No electronic devices. The camera’s on. No audio, but we’ll be watching. If you get up from the chair, we’re coming in. Understood?”

  “Yes,” I said.

  “Understood,” Maggie said.

  He left the room then and locked the door behind him. I looked up at the camera mounted in the corner of the ceiling. Despite the scandal and internal investigation that I had tipped off, it was still in place and we were expected to take it on faith that no one was listening to our conversation.

  “How are you, Mickey?” Maggie asked.

  “I’m worried,” I said. “Everybody’s wearing masks but me.”

  “Don’t you have TV in the module? CNN? People are dying in China from this virus. They think it is probably here.”

  “They changed shifts in the bubble, and the new people in there with the remotes only give us ESPN and Fox News.”

  “Fox has its head in the sand. They’re just protecting the president, who still says everything’s going to be fine.”

  “Well, if he said it, it must be true.”

  “Oh, yeah, sure.”

  I saw that she had some documents spread out on the table in front of her.

  “How long have you been here?” I asked.

  “Don’t worry about it,” she said. “I got work done.”

  “Did you see Hayley today?”

  “Yes, we ate lunch at Moreton Fig. It was nice.”

  “Love that place. Miss it. Miss being with her.”

  “You’re going to get out of here, Mickey. We have a strong case.”

  I just nodded to that. I wished that I could see her whole face so I could read her better. Was she just giving me a pep talk, or did she really believe what she was saying?

  “You know, I don’t have it, whatever it is,” I said. “The virus. You don’t need to wear the mask.”

  “You might not know if you have it,” she said. “Anyway, it’s not you I’m worried about. It’s the air recirculation in this place. They’re saying the jails and prisons are going to be vulnerable. At least you’re not on those buses going back and forth from court anymore.”

  I nodded again, studying her. The mask accentuated her dark, intense eyes. Those eyes had been what first pulled me toward her twenty-five years ago.

  “Which way do you think Hayley’s going to go?” I asked. “Prosecution or defense?”

  “Hard to say,” she said. “I don’t know, actually. She’ll make her own decision. She did say she’s not going to classes this week. She wants to watch the trial full-time.”

  “She shouldn’t. She’ll fall too far behind.”

  “I know. But there’s too much at stake for her. I couldn’t talk her out of it.”

  “Hardheaded. I know where she gets that.”

  “Me too.”

  I thought I detected a smile behind the mask.

  “Maybe she’ll go into criminal defense and we could have a family law firm,” I said. “Haller, Haller, and McFierce, Attorneys-at-Law.”

  “Funny,” she said. “Maybe.”

  “Do you really think they’re going to take you back after this? You’ve betrayed the tribe, crossed to the dark side, all of that. I’m not sure they let you do that on a temporary basis.”

  “Who knows? And who’s to say that I want to go back? I see Dana in that courtroom and I really ask myself, do I want that anymore? I don’t know. Once they moved me out of Major Crimes to make room for the young hard chargers like her, I knew my career…it wasn’t exactly over but it had…plateaued. It wasn’t important anymore.”

  “Oh, come on. Environmental protection? What you do is still important.”

  “If I have to go after one more dry cleaner for dumping chemicals down the storm sewer, I think I’ll just kill myself.”

  “Don’t kill yourself. Come partner with me.”

  “Funny.”

  “I mean it.”

  “That’s okay.”

  I took that as a hit. Her quick no reminded me of what had gotten between us and ended things, despite our daughter inextricably binding us together for life.

  “You always thought I was dirty because of what I do,” I said. “Like it rubbed off on me somehow. I’m not dirty, Mags.”

  “Well, you know the saying,” she said. “Lie down with dogs…”

  “Then what are you doing here?”

  “I told you. No matter what I think about what you do, I know you and I know you didn’t do this. You couldn’t have. And, besides, Hayley came to me. She asked me to help you. No, she told me. She said you needed me.”

  I hadn’t known any of that. That stuff about Hayley was new and it cut me to the bone.

  “Wow,” I said. “Hayley never said anything to me.”

  “The truth is, she didn’t have to tell me,” Maggie said. “I wanted to do it, Mickey. I mean that.”

  A silence followed that. I nodded my thanks. When I looked up, Maggie was pulling the elastic straps off her ears and removing the mask.

  “Should we get down to business?” she said. “They only gave us an hour.”

  “Sure,” I said. “Anything back yet on Milton’s phone?”

  “They’re stringing that out but I’ll go to the judge if I have to.”

  “Good. I want to burn that guy’s ass.”

  “We will.”

  “Sanctions?”

  She wore no lipstick and I guessed that she had wanted to keep the makeup off her mask. Seeing her face now, I got that pang in my chest. She had been the only one who ever did that to me. Mask or no mask, makeup or no makeup, she was beautiful to me.

  “I say we go big or go home,” she said. “We tell the judge to put bail back on the table.”

  I snapped out of my reverie.

  “As a sanction?” I said. “I doubt Warfield would go for that. The trial will be over by the end of this week. She won’t let m
e out just to possibly yank me back in if there’s a guilty verdict. And then I don’t think I want to put up a bond for what might amount to just four or five days of freedom.”

  “I know,” Maggie said. “The judge won’t go for it and it’s a losing argument, but that’s just it. It’s an argument and we start the week with it and Dana has to expend all her Monday-morning energy on it.”

  “Takes some of the wind out of her sails,” I said.

  “Exactly. It’s a big distraction from her trial plan.”

  I nodded. I liked it.

  “Smart,” I said. “Let’s do it.”

  “Okay,” Maggie said. “I’ll write it up and get it to all parties before six. Tomorrow I’ll handle the argument too.”

  I had to smile. I admired how Maggie was justifying her McFierce reputation on both sides of the aisle and for my benefit.

  “Perfect,” I said. “What do we ask for when Warfield shuts us down?”

  “Nothing,” she said. “We just bank it.”

  “Okay.”

  She seemed pleased that I did not push back on her plan.

  “So, where are we on everything else?” I asked.

  “Opparizio,” Maggie said. “He knows something is up and left town yesterday. By car. Cisco had his guys on him.”

  “Don’t tell me he left the state. Vegas?”

  “No, he probably thought he’d be tracked there easy. He drove to Arizona. Scottsdale. He checked into a resort out there called the Phoenician. Cisco will go out tomorrow and hit him with the subpoena.”

  “What if he knows that he doesn’t need to respond to a subpoena from another state? It’s probably the reason he left.”

  “Something tells me he doesn’t and he left town because he was feeling the heat. He’s gotta know there’s a trial in the murder he’s responsible for. Best to get out of town till it’s over. Anyway, Cisco said they’ll video the whole thing, make it an airtight service looking totally legit. The question is, what day do you want him here?”

  We had to think about that. We had Dana Berg’s witness list and from that could extrapolate how long her case might take to put before the jury. We had already delayed things Friday with Drucker, but before that, the prosecutor had been stringing out his testimony in an attempt to run it up to the weekend. Berg would likely shift strategy now and move more quickly with him, trying to build momentum. She then had a deputy coroner on her wit list, the lead crime scene investigator, and then a few ancillary witnesses to follow.