“On the record with California versus Jessup again,” the judge said upon taking the bench. “Good morning to all.”
After a chorus of good mornings fired back to her, the judge got right down to business.
“Tomorrow we begin jury selection in this case and then we proceed to trial. Therefore today is the day that we’re going to clean out the garage, so to speak, so that we can finally bring the car in. Any last motions, any pending motions, anything anybody wants to talk about in regard to exhibits or evidence or anything else, now is the time. We have a number of motions pending and I will get to them first. The prosecution’s request to redress the issue of the defendant’s use of makeup to cover certain body tattoos is dismissed. We argued that at length already and I do not see the need to go at it further.”
Bosch checked Jessup. He was at a sharp angle to him, so he could not see the defendant’s face. But he did see Jessup nod his head in approval of the judge’s first ruling of the day.
Breitman then went through a housekeeping list of minor motions from both sides. She seemed to want to accommodate all so neither side emerged as a clear favorite. Bosch saw that McPherson was meticulously keeping notes on each decision on a yellow legal pad.
It was all part of the buildup to the ruling of the day. Since Sarah was to be McPherson’s witness to question during trial, she had handled the oral arguments on the defense motion two days earlier. Though Bosch had not attended that hearing, Haller had told him that Maggie had held forth for nearly an hour in a well-prepared response to the motion to disqualify. She had then backed it with an eighteen-page written response. The prosecution team was confident in the argument but neither member of the team knew Breitman well enough to be confident in how she would rule.
“Now,” the judge said, “we come to the defense motion to disqualify Sarah Ann Gleason as a witness for the prosecution. The question has been argued and submitted by both sides and the court is ready to make a ruling.”
“Your Honor, could I be heard?” Royce said, standing up at the defense table.
“Mr. Royce,” the judge said, “I don’t see the need for further argument. You made the motion and I allowed you to respond to the prosecution’s submission. What more needs to be said?”
“Yes, Your Honor.”
Royce sat back down, leaving whatever he was going to add to his attack on Sarah Gleason a secret.
“The defense’s motion is dismissed,” the judge said immediately. “I will be allowing the defense wide latitude in its examination of the prosecution’s witness as well as in the production of its own witnesses to address Ms. Gleason’s credibility before the jury. But I believe that this witness’s credibility and reliability is indeed something that jurors will need to decide.”
A momentary silence enveloped the courtroom, as if everyone collectively had drawn in a breath. No response followed from either the prosecution or defense table. It was another down-the-middle ruling, Bosch knew, and both sides were probably pleased to have gotten something. Gleason would be allowed to testify, so the prosecution’s case was secured, but the judge was going to let Royce go after her with all he had. It would come down to whether Sarah was strong enough to take it.
“Now, I would like to move on,” the judge said. “Let’s talk about jury selection and scheduling first, and then we’ll get to the exhibits.”
The judge proceeded to outline how she wanted voir dire to proceed. Though each side would be allowed to question prospective jurors, she said she would strictly limit the time for each side. She wanted to start a momentum that would carry into the trial. She also limited each side to only twelve peremptory challenges—juror rejections without cause—and said she wanted to pick six alternates because it was her practice to be quick with the hook on jurors who misbehaved, were chronically late or had the audacity to fall asleep during testimony.
“I like a good supply of alternates because we usually need them,” she said.
The low number of peremptory challenges and the high number of alternates brought objections from both the prosecution and the defense. The judge grudgingly gave each side two more challenges but warned that she would not allow voir dire to get bogged down.
“I want jury selection completed by the end of the day Friday. If you slow me down, then I will slow you down. I will hold the panel and every lawyer in here until Friday night if I have to. I want opening statements first thing Monday. Any objection to that?”
Both sides seemed properly cowed by the judge. She was clearly exerting command of her own courtroom. She next outlined the trial schedule, stating that testimony would begin each morning at nine sharp and continue until five with a ninety-minute lunch and morning and afternoon breaks of fifteen minutes each.
“That leaves a solid six hours a day of testimony,” she said. “Any more and I find the jurors start losing interest. So I keep it to six a day. It will be up to you to be in here and ready to go each morning when I step through the door at nine. Any questions?”
There were none. Breitman then asked each side for estimates on how long their case would take to present. Haller said he would need no more than four days, depending on the length of the cross-examinations of his witnesses. This was already a shot directed at Royce and his plans to attack Sarah Ann Gleason.
For his part, Royce said he needed only two days. The judge then did her own math, adding four and two and coming up with five.
“Well, I’m thinking an hour each for opening statements on Monday morning. I think that means we’ll finish Friday afternoon and go right to closing arguments the following Monday.”
Neither side objected to her math. The point was clear. Keep it moving. Find ways to cut time. Of course a trial was a fluid thing and there were many unknowns. Neither side would be held to what was said at this hearing, but each lawyer knew that there might be consequences from the judge if they didn’t keep a continuous velocity to their presentations.
“Finally, we come to exhibits and electronics,” Breitman said. “I trust that everyone has looked over each other’s lists. Any objections to these?”
Both Haller and Royce stood up. The judge nodded at Royce.
“You first, Mr. Royce.”
“Yes, Judge, the defense has an objection to the prosecution’s plans to project numerous images of Melissa Landy’s body on the courtroom’s overhead screens. This practice is not only barbaric but exploitative and prejudicial.”
The judge swiveled in her seat and looked at Haller, who was still standing.
“Your Honor, it is the prosecution’s duty to produce the body. To show the crime that brings us here. The last thing we want to do is be exploitative or prejudicial. I will grant Mr. Royce that it is a fine line, but we do not plan to step across it.”
Royce came back with one more shot.
“This case is twenty-four years old. In nineteen eighty-six there were no overhead screens, none of this Hollywood stuff. I think it infringes on my client’s right to a fair trial.”
Haller was ready with his own comeback.
“The age of the case has nothing to do with this issue, but the defense is perfectly willing to present these exhibits the way they would’ve—”
McPherson had grabbed his sleeve to interrupt him. He bent down and she whispered in his ear. He then quickly straightened up.
“Excuse me, Your Honor, I misspoke. The prosecution is more than willing to present these exhibits in the manner they would have been presented to the jury in nineteen eighty-six. We would be happy to hand out color photographs to the jurors. But in earlier conversation the court indicated that she did not like this practice.”
“Yes, I find that handing these sorts of photos directly to the jurors to be possibly more exploitative and prejudicial,” Breitman said. “Is that what you wish, Mr. Royce?”
Royce had walked himself into a jam.
“No, Judge, I would agree with the court on this point. The defense was simply trying to limit th
e scope and use of these photographs. Mr. Haller lists more than thirty photographs that he wants to put on the big screen. It seems over-the-top. That is all.”
“Judge Breitman, these are photographs of the body in the place it was found as well as during autopsy. Each one is—”
“Mr. Haller,” the judge intoned, “let me just stop you right there. Crime scene photographs are acceptable, as long as they come with appropriate foundation and testimony. But I see no need to show our jurors this poor girl’s autopsy shots. We’re not going to do that.”
“Yes, Your Honor,” Haller said.
He remained standing while Royce sat down with his partial victory. Breitman spoke while writing something.
“And you have an objection to Mr. Royce’s exhibit list, Mr. Haller?”
“Yes, Your Honor, the defense has a variety of drug paraphernalia alleged to have once been owned by Ms. Gleason on its exhibit list. It also lists photos and videos of Ms. Gleason. The prosecution has not been given the opportunity to examine these materials but we believe they only go to the point that we will be conceding at trial and eliciting in direct examination of this witness. That is that at one time in her life she used drugs on a regular basis. We do not see the need to show photos of her using drugs or the pipes through which she ingested drugs. It’s inflammatory and prejudicial. It is not needed based on the concessions of the prosecution.”
Royce stood back up and was ready to go. The judge gave him the floor.
“Judge, these exhibits are vitally important to the defense case. The prosecution of Mr. Jessup hinges on the testimony of a longtime drug addict who cannot be relied upon to remember the truth, let alone tell it. These exhibits will help the jury understand the depth and breadth of this witness’s use of illegal substances over a lengthy period of time.”
Royce was finished but the judge was silent as she studied the defense exhibit list.
“All right,” she finally said, putting the document aside. “You both make cogent arguments. So what we are going to do is take these exhibits one at a time. When the defense would like to proffer an exhibit, we will discuss it first out of earshot of the jury. I’ll make a decision then.”
The lawyers sat down. Bosch almost shook his head but didn’t want to draw the judge’s attention. Still, it burned him that she had not slapped the defense down on this one. Twenty-four years after seeing her little sister abducted from the front yard, Sarah Ann Gleason was willing to testify about the awful, nightmarish moment that had changed her life forever. And for her sacrifice and efforts, the judge was actually going to entertain the defense’s request to attack her with the glass pipes and accoutrements she had once used to escape what she had been through. It didn’t seem fair to Bosch. It didn’t seem like anything that approached justice.
The hearing ended soon after that and all parties packed their briefcases and moved through the doors of the courtroom en masse. Bosch hung back and then insinuated himself into the group right behind Jessup. He said nothing but Jessup soon enough felt the presence behind him and turned around.
He smirked when he saw it was Bosch.
“Well, Detective Bosch, are you following me?”
“Should I be?”
“Oh, you never know. How’s your investigation going?”
“You’ll find out soon enough.”
“Yes, I can’t—”
“Don’t talk to him!”
It was Royce. He had turned and noticed.
“And don’t you talk to him,” he added, pointing a finger at Bosch. “If you continue to harass him, I’ll complain to the judge.”
Bosch held his hands out in a no-touching gesture.
“We’re cool, Counselor. Just making small talk.”
“There is no such thing when it comes to the police.”
He reached out and put his hand on Jessup’s shoulder and shepherded him away from Bosch.
In the hallway outside they moved directly to the waiting huddle of reporters and cameras. Bosch moved past but looked back in time to see Jessup’s face change. His eyes went from the steely glare of a predator to the wounded look of a victim.
The reporters quickly gathered around him.
PART THREE
—To Seek a True and Just Verdict
Twenty-five
Monday, April 5, 9:00 A.M.
I watched the jury file in and take their assigned seats in the box. I watched them closely, keying on their eyes mostly. Checking for how they looked at the defendant. You can learn a lot from that; a furtive glance or a strong judgmental stare.
Jury selection had gone as scheduled. We went through the first panel of ninety prospective jurors in a day but had sat only eleven after most were eliminated because of their media knowledge of the case. The second panel was just as difficult to choose from and it wasn’t until Friday evening at five-forty that we had our final eighteen.
I had my jury chart in front of me, and my eyes were jumping between the faces in the box and the names on my Post-its, trying to memorize who was who. I already had a good handle on most of them but I wanted the names to become second nature to me. I wanted to be able to look at them and address them as if they were friends and neighbors.
The judge was on the bench and ready to go at nine sharp. She first asked the attorneys if there was any new or unfinished business to address. Upon learning there was not, she called in the jurors.
“Okay, we are all here,” she said. “I want to thank all of the jurors and other parties for being on time. We begin the trial with opening statements from the attorneys. These are not to be construed as evidence but merely—”
The judge stopped, her eyes fixed on the back row of the jury box. A woman had timidly raised her hand. The judge stared for a long moment and then checked her own seating chart before responding.
“Ms. Tucci? Do you have a question?”
I checked my chart. Number ten, Carla Tucci. She was one of the jurors I had not yet committed to memory. A mousy brunette from East Hollywood. She was thirty-two years old, unmarried and she worked as a receptionist at a medical clinic. According to my color-coded chart, I had her down as a juror who could be swayed by stronger personalities on the panel. This was not a bad thing. It just depended on whether those personalities were for a guilty verdict or not.
“I think I saw something I wasn’t supposed to see,” she said in a frightened voice.
Judge Breitman hung her head for a moment and I knew why. She couldn’t get the wheels out of the mud. We were ready to go and now the trial would be delayed before opening statements were even in the record.
“Okay, let’s try to take care of this quickly. I want the jury to stay in place. Everyone else stay in place and Ms. Tucci and the attorneys and I will go quickly back to chambers to find out what this is about.”
As we got up I checked my jury chart. There were six alternates. I had three of them pegged as pro-prosecution, two in the middle and one siding with the defense. If Tucci was ejected for whatever misconduct she was about to reveal, her replacement would be chosen randomly from the alternates. This meant that I had a better-than-even chance of seeing her replaced with a juror who was partial to the prosecution and only a one in six chance of getting a juror who was pro-defense. As I followed the entourage into chambers I decided that I liked my chances and I would do what I could to have Tucci ejected from the panel.
In chambers, the judge didn’t even go behind her desk, perhaps hoping this was only going to be a minor question and delay. We stood in a group in the middle of her office. All except the court reporter, who sat on the edge of a side chair so she could type.
“Okay, on the record,” the judge said. “Ms. Tucci, please tell us what you saw and what is bothering you.”
The juror looked down at the ground and held her hands in front of her.
“I was riding on the Metro this morning and the man sitting across from me was reading the newspaper. He was holding it up and I saw the front
page. I didn’t mean to look but I saw a photo of the man on trial and I saw the headline.”
The judge nodded.
“You are talking about Jason Jessup, correct?”
“Yes.”
“What newspaper?”
“I think it was the Times.”
“What did the headline say, Ms. Tucci?”
“New trial, old evidence for Jessup.”
I hadn’t seen the actual L.A. Times that morning but had read the story online. Citing an unnamed source close to the prosecution, the story said the case against Jason Jessup was expected to be comprised entirely of evidence from the first trial and leaning heavily on the identification provided by the victim’s sister. Kate Salters had the byline on it.
“Did you read the story, Ms. Tucci?” Breitman asked.
“No, Judge, I just saw it for a second and when I saw his picture I looked away. You told us not to read anything about the case. It just kind of popped up in front of me.”
The judge nodded thoughtfully.
“Okay, Ms. Tucci, can you step back into the hallway for a moment?”
The juror stepped out and the judge closed the door.
“The headline tells the story, doesn’t it?” she said.
She looked at Royce and then me, seeing if either of us was going to make a motion or a suggestion. Royce said nothing. My guess was that he had juror number ten pegged the same way that I did. But he might not have considered the leanings of the six alternates.
“I think the damage is done here, Judge,” I said. “She knows there was a previous trial. Anybody with any basic knowledge of the court system knows they don’t retry you if you get a not-guilty. So she’ll know Jessup went down on a guilty before. As much as that prejudices things in the prosecution’s favor, I think to be fair she has to go.”
The Lincoln Lawyer Collection Page 96
