“Carry on, but make it quick.”
I refocused on Schafer.
“Have you had occasion to have breakfast at Danny’s, Ms. Schafer?”
“No, not breakfast.”
“But you do know that it is popular at breakfast, correct?”
“I really wouldn’t know.”
It wasn’t the answer I wanted but it was helpful. It was the first time Schafer was being clearly evasive, purposely avoiding the obvious confession. Jurors who picked up on this would begin to see someone who wasn’t being an impartial witness, but a woman who refused to stray from the prosecution’s line.
“Then let me ask you this. What other businesses on this block are open before nine o’clock in the morning?”
“Mostly there are stores that wouldn’t be open. You can see the signs in the picture.”
“Then what do you think accounts for the fact that every metered space in this photo is taken? Would it be customers of the deli?”
Freeman objected again, saying the witness was hardly qualified to answer the question. The judge agreed and sustained the objection, telling me to move on.
“On the Monday morning at eight fifty-five when you claim you saw Ms. Trammel from four lanes away, do you recall how many cars were parked in front of the deli and along the curb?”
“No, I don’t.”
“You testified just a few moments ago, and I can have it read back to you if you wish, that you had a clear view of Lisa Trammel. Is it your testimony that there were no vehicles in the parking lane?”
“There may have been some cars there but I saw her clearly.”
“What about the traffic lanes, they were clear, too?”
“Yes. I could see her.”
“You said you were running late because westbound traffic was moving very slowly because of an accident, correct?”
“Yes.”
“An accident in the eastbound lanes, right?”
“Yes.”
“So how far was traffic backed up in the eastbound lanes if the westbound lanes were backed up enough to make you ten minutes late for work?”
“I don’t really recall.”
Perfect answer. For me. A dissembling witness always scores points for the D.
“Isn’t it true, Ms. Schafer, that you had to look across two lanes of backed-up traffic, plus a full parking lane, in order to see the defendant on the sidewalk?”
“All I know is that I saw her. She was there.”
“And she was even carrying a big shopping bag, you say, correct?”
“That’s right.”
“What kind of shopping bag?”
“The kind with handles, the kind you get in a department store.”
“What color was it?”
“It was red.”
“And could you tell if it was full or empty?”
“I couldn’t tell.”
“And she carried this down at her side or in front of her?”
“Down at her side. With one hand.”
“You seem to have a good sense of this bag. Were you looking at the bag or the face of the woman who was carrying it?”
“I had time to look at both.”
I shook my head as I looked at my notes.
“Ms. Schafer, do you know how tall Ms. Trammel is?”
I turned to my client and signaled her to stand up. I probably should have asked the judge’s permission first but I was on a roll and didn’t want to hit any speed bumps. Perry said nothing.
“I have no idea,” Schafer said.
“Would it surprise you to know she is only five foot three?”
I nodded to Lisa and she sat back down.
“No, I don’t think that would surprise me.”
“Five foot three and you still picked her out across four lanes packed with cars.”
Freeman objected as I knew she would. Perry sustained the objection but I didn’t need an answer for the point to be made. I checked my watch and saw it was two minutes before noon. I fired my final torpedo.
“Ms. Schafer, can you look at the photograph and point to where you see the defendant on the sidewalk?”
All eyes moved to the photo blowup. Because of the line of cars in the parking lane, the pedestrians on the sidewalk were unidentifiable in the image. Freeman leapt to her feet and objected, claiming the defense was trying to sandbag the witness and the court. Perry called us to a sidebar. When we got there, he had stern words for me.
“Mr. Haller, yes or no, is the defendant in the photo?”
“No, Your Honor.”
“Then you’re engaged in attempting to trick the witness. That will not happen in my courtroom. Take your photo down.”
“Judge, I’m not trying to trick anyone. She could simply say that the defendant is not in the photo. But she clearly can’t see the pedestrians on the other side of the traffic and I am trying to make that clear to—”
“I don’t care what you’re trying to do. Take your photo down and if you try another move like that you’re going to find yourself in a contempt hearing at the close of business. Understood?”
“Yes, sir.”
“Your Honor,” Freeman said. “The jury should be told that the defendant is not in the photo.”
“I agree. Go back.”
On my way back to the lectern I took the display boards off the easel.
“Ladies and gentlemen,” the judge said. “Let it be noted that the defendant was not in the photo that defense counsel put on display.”
The jury instruction was fine with me. I still made my point. The fact that the jurors had to be told that Lisa was not in the photo underlined how hard it would have been to see and identify someone on the sidewalk.
The judge told me to continue my cross-examination and I leaned to the microphone.
“No further questions.”
I sat down and put the photo boards on the floor under the table. They had served me well. I took the hit from the judge but it was worth it. It’s always worth it if you make your point.
Twenty-three
Lisa Trammel was ecstatic about my cross-examination of Margo Schafer. Even Herb Dahl couldn’t hold back from congratulating me as the trial was recessed for lunch. I counseled them not to get overly excited. It was early in the trial and eyewitnesses like Schafer were usually the easiest to handle and damage on the stand. There were still tough witnesses and tougher days ahead. They could count on that.
“I don’t care,” Lisa said. “You were marvelous and that lying bitch got just what she deserved.”
The invective was dripping with hate and it made me pause for a moment before responding.
“The prosecutor is still going to have a chance to rehabilitate her on redirect after lunch.”
“And then you can destroy her again on re-cross.”
“Well… I don’t know about destroying anybody. That’s not what—”
“Can you join us for lunch, Mickey?”
She punctuated the request by swinging her arm around Dahl, clearly showing what I had been assuming, that they were together in more than just business.
“There is nothing good around here,” she continued. “We’re going down to Ventura Boulevard to find a place. We might even try Danny’s Deli.”
“Thank you but no. I need to get back to the office and meet with my crew. They’re not here because they can’t be. They’re working and I need to check in.”
Lisa gave me a look that told me she didn’t believe me. It didn’t much matter to me. I represented her in court. It didn’t mean I had to eat with her and the man I was still sure was scheming to rip her off, no matter the romantic entanglement—if it even was romantic. I headed out on my own and walked back to my office in the Victory Building.
Lorna had already gone to the competing and far better Jerry’s Famous Deli in Studio City and picked up turkey and coleslaw sandwiches. I ate at my desk while telling Cisco and Bullocks what had happened that morning in court. Despite my reserve with my client, I
felt pretty good about my cross with Schafer. I thanked Bullocks for the display board, which I believed had impressed the jury. Nothing like a visual aid to help throw doubt on a supposed eyewitness.
When I finished recounting the trial testimony I asked them what they had been working on. Cisco said he was still reviewing the police investigation, looking for errors and assumptions made by the detectives that could be turned against Kurlen during cross-examination.
“Good, I need all the ammo I can get,” I said. “Bullocks, anything from your end?”
“I pretty much spent the morning with the foreclosure file. I want to be bulletproof when it’s my turn.”
“Okay, good, but you’ve got some time there. My guess is the defense won’t start until next week. Freeman looks like she’s trying to keep a certain rhythm and momentum going, but she’s got a lot of witnesses on her list and it doesn’t look like a lot of smoke.”
Often prosecutors and defense attorneys pad their witness lists to keep the other side guessing as to who would actually get called and who was important in terms of testimony. It didn’t appear to me that Freeman had engaged in this sort of subterfuge. Her list was lean and every name on it had something to bring to the case.
I dipped my sandwich into some Thousand Island dressing that had dripped onto the paper wrapper. Aronson pointed to one of the display boards I had brought back with me from court. It was the ground-level shot I had tried to fool Margo Schafer with.
“Wasn’t that risky? What if Freeman hadn’t objected?”
“I knew she would. And if she didn’t the judge would have. They don’t like you trying to trick witnesses like that.”
“Yeah, but then the jury knows you’re lying.”
“I wasn’t lying. I asked the witness a question. Could she point out where Lisa was in the photo? I didn’t say Lisa was in the photo. If she had been given the opportunity to answer, the answer would have been no. That’s all.”
Aronson frowned.
“Remember what I said, Bullocks. Don’t grow a conscience. We’re playing hardball here. I played Freeman and she’s trying to play me. Maybe she already has played me in some way and I don’t even know it. I took a risk and got a little hand-slap from the judge. But every person on that jury was looking at that photo while we were at sidebar and every one of them was thinking how hard it would have been for Margo Schafer to see what she claimed she saw. That’s how it works. It’s cold and calculating. Sometimes you win a point but most times you don’t.”
“I know,” she said dismissively. “It doesn’t mean I have to like it.”
“No, you don’t.”
Twenty-four
Freeman surprised me after lunch by not calling Margo Schafer back to the stand to try to repair the damage I had inflicted on cross. My guess was that she had something else planned for later that would help salvage the Schafer testimony. Instead, she called LAPD Sergeant David Covington, who was the first officer to respond to WestLand National after the 911 call from Riki Sanchez was logged.
Covington was a seasoned veteran and a solid witness for the prosecution. In the precise if not droll delivery of someone who has seen more dead bodies and testified about them more times than he can remember, he described arriving on scene and determining that the victim was dead by means of foul play. He then described closing access to the entire garage, corralling Riki Sanchez and other possible witnesses, and cordoning off the second-floor area where the body was located.
Through Covington the crime scene photographs were introduced and displayed in all their bloody glory on the two overhead flat screens. These more than any testimony from Covington established the crime of murder, a requirement for conviction.
I’d had marginal success during a pretrial skirmish involving the crime scene photos. I had objected to their introduction, particularly the prosecution’s plan to display three-by-three blowups on easels in front of the jury box. I had argued that that they were prejudicial to my client. Photos of real victims of murder are always shocking and provoke strong emotions. It is human nature to want to harshly punish those responsible. Photos can easily turn a jury against the accused, regardless of what evidence connects the accused to the crime. Perry tried to split the baby. He limited the number of photos the prosecution could introduce to four and told Freeman she had to use the overhead screens, thus limiting the size of the photos. I had won a few points but knew that the judge’s order would not limit the visceral response of the jurors. It was still a victory for the prosecution.
Freeman chose the four photos that showed the most blood and the pitiful angle at which Bondurant had dropped face-first onto the concrete floor of the garage.
On cross-examination I zeroed in on one photo and tried to get the jury thinking about something other than avenging the dead. The best way to do that is to plant questions. If they are left with questions but no answers then I have done my job on cross.
With the judge’s permission, I used the projection remote to eliminate three of the photos on the screens, leaving only one remaining.
“Sergeant Covington, I want to draw your attention to the photo I’ve left on display. I believe it is marked People’s Exhibit Three. Can you tell me what that is in the foreground of the photo?”
“Yes, that is an open briefcase.”
“Okay, and is that how you found it when you arrived at the scene?”
“Yes, it is.”
“It was sitting there open like that?”
“Yes.”
“Okay, and did you make any inquiry of any witness or anyone else to determine if someone had opened it after the victim was discovered?”
“I asked the woman who had called nine-one-one if she had opened it and she said she had not. That was the extent of my inquiry on it. I left it for the detectives.”
“Okay, and you’ve testified here that you have been working patrol for your entire career of twenty-two years, correct?”
“Yes, that’s correct.”
“You have responded to a lot of nine-one-one calls?”
“Yes.”
“What did seeing that open briefcase mean to you?”
“Nothing really. It was just part of the crime scene.”
“Did your experience cause you to think there may have been a robbery involved in this murder?”
“Not really. I’m not a detective.”
“If robbery was not a motive in this crime, why would the killer take the time to open the victim’s briefcase?”
Freeman objected before Covington could answer. She said that the question was beyond the witness’s scope of expertise and experience.
“Sergeant Covington has spent his entire career working patrol. He is not a detective. He has never investigated a robbery.”
The judge nodded.
“I tend to agree with Ms. Freeman, Mr. Haller.”
“Your Honor, Sergeant Covington may not have ever been a detective but I think it is safe to say he has responded to robbery calls and conducted preliminary investigations. I think he can certainly answer a question about his initial impressions of the crime scene.”
“I’m still going to sustain the objection. Ask your next question.”
Defeated on that point, I looked down at the notes I had previously worked up for Covington. I felt confident that I had firmly planted the question about robbery and the motive for the murder in the jurors’ minds, but I didn’t want to leave it at that. I decided to try a bluff.
“Sergeant, after you arrived in response to the nine-one-one call and surveyed the crime scene, did you call for investigators and medical examiners and crime scene experts?”
“Yes, I contacted the com center, confirming that we had a homicide and requesting the usual response of investigators from Van Nuys Division.”
“And you maintained control of the crime scene until those people arrived?”
“Yes, that is how it works. I transferred custody of the scene to the investigators. Detect
ive Kurlen to be exact.”
“Okay, and at any time during this process, did you discuss with Kurlen or any other law enforcement officer the possibility that the murder had come out of a robbery attempt?”
“No, I did not.”
“Are you sure, Sergeant?”
“Quite sure.”
I wrote something on my legal pad. It was a meaningless scribble done for the jury.
“I have no further questions.”
Covington was excused and one of the paramedics who had responded to the nine-one-one call testified about confirming that the victim was dead at the scene. He was on and off the stand in five minutes, as Freeman was interested only in confirming death and I had nothing to gain from cross-examination.
Next up was the victim’s brother, Nathan Bondurant. He was used to confirm identification of the victim, another requirement for conviction. Freeman also used him much as she did the crime scene photos, to stir emotions in the jury. He tearfully described being taken by detectives to the medical examiner’s office where he identified his younger brother’s body. Freeman asked him when he had last seen his brother alive and his answer brought another torrent of tears as he described attending a Lakers basketball game together just a week before the murder.
It’s a rule of thumb to leave a crying man alone. There usually isn’t anything to be gained from cross-examining a victim’s loved one, but Freeman had opened a door and I decided to step through it. The risk I ran was that jurors might view me as cruel if I went too far in questioning the bereaved family member.
“Mr. Bondurant, I am sorry for your family’s loss. I have only a few quick questions. You mentioned that you and your brother went to the Lakers game a week before this horrible crime occurred. What did you talk about during that outing?”
“Uh, we talked about a lot of things. It would be hard to remember everything right now.”
“Only sports and Lakers?”
“No, of course not. We were brothers. We talked about a lot of things. He asked about my kids. I asked if he was seeing anyone. Things like that.”
“Was he seeing anyone?”
“No, not at the time. He said he was too busy with work.”
The Fifth Witness: A Novel Page 20
