Path to Justice

by Jim Dutton

  “No. It seems like Felicia dropped off the face of the earth. She was pretty tight with a couple of waitresses here. One, was Roxanne Drexler, a good looking brunette, who comes on duty for dinner, about six.”

  “Thanks, if I can come back later, I will.”

  Next stop for Pato was the aunt’s house. He might as well still go with the attorney identity. Getting a forged California State Bar card was easy. Cost only $100 and people never seemed to question it. Felicia’s aunt, Rosa Salas-Huerta, answered the door. “You must be Señora Huerta. Felicia has told me about you. I’m a friend of hers. I used to work with her at Terry’s Steakhouse while I was going to law school. My name is Lorenzo. Here’s my California State Bar card. It’s a pleasure to meet you.”

  “The pleasure is mine. I don’t often have attractive young men knocking on my door.”

  “Ah, Señora. You’re too modest. I bet there were many young men knocking on your door not so long ago. One of our old co-workers, Roxanne Drexler, who is a good friend of Felicia’s, is having a baby shower. No one seems able to find Felicia. Because I’m an attorney, I got the pleasant assignment to try to find her and invite her to the shower.”

  “I remember Felicia talking about Roxanne. She came over once for a home-cooked meal. She raved about my homemade tamales. I liked that muchacha. Pregnant already?”

  “She met a great guy. A marine. They got married a few months ago. Roxanne was upset that she couldn’t track down Felicia for the wedding. Roxanne promised that Felicia would come to her baby shower.”

  “I don’t know where she is exactly. She’s involved with something. She can’t tell anyone where she is. She was shot at by an evil man on a motorcycle a few months ago when she came to see me.”

  “Oh no! Is she all right?”

  “Thank God she wasn’t hit. A state agent covered her up and his female partner was shot. I was so afraid.”

  “I can’t imagine anyone wanting to hurt Felicia. She’s such a kind, compassionate person.”

  “She is. I received a call from her, saying how much she missed me. She was coming home by bus. Two days later, she was walking up to my house and was shot at.” Rosa put her head in her hands and began to cry.

  “Now, now Señora. I’m sure Felicia is going to be all right. Let me know if she comes home. Here’s my cellphone number. When things are okay again, maybe you can invite me over for your famous tamales. I love home-cooking.”

  “I’ll do that. Good-bye Lorenzo.”

  Pato hummed a little tune to himself as he walked away. That went well. Two day bus trip. He’d concentrate on the Midwest.

  CHAPTER TWENTY-SEVEN

  It was only fitting to receive the defense motions right before Halloween, thought Nick as he looked at the three foot pile in front of his desk. The hearings on the motions were scheduled for the Tuesday after Thanksgiving.

  In all complex cases the defense files motions based on statutes and case law in an attempt to get the trial court to dismiss part, or all of the case and, at the very least, to limit the evidence the prosecution is allowed to present to the jury.

  Nick and Josh had to file their responses two weeks before Thanksgiving which allowed the defense to file any rebuttal briefs the Monday before Thanksgiving. Nick divided up the 22 motions between Josh and himself. Only four of the motions seemed to have real substance. The most compelling was the sufficiency of the evidence to support the conspiracy to murder Felicia and the aggravated assault counts against the three drug chiefs, Lopez, Encinas, and Sanchez. Nick kept that motion for himself. Another was the alleged Fourth Amendment violation concerning the Otay Mesa warehouse property by reason of the satellite photographs taken by the Department of Defense. Nick gave that to Josh because he could better handle high tech arguments. A third motion concerned the use of a drug-sniffing dog to search the vehicle containing black tar heroin and marijuana driven by the college boy outside of Missoula. Nick gave Josh that one—he was there overseeing the operation. The cardinal rule in case responsibility—once your fingerprints are on a part of a case, it’s yours. The last motion was better suited for a motion in limine—a motion brought the day of, or the day before trial regarding the inclusion or exclusion of certain evidence. The defense was contending that Felicia’s testimony about getting beat up by Luis should be excluded because it would unduly inflame the jurors that Luis had engaged in domestic violence, which they alleged had no bearing on whether the defendants conspired to have her murdered in the motorcycle drive-by. The defense also claimed it constituted improper character evidence—bad acts to show bad character. Nick decided to keep this motion. It was closely tied to the murder conspiracy count in that Luis’ prior beatings showed a pattern of violence towards Felicia. Also, although Nick tried to keep his emotions out of the case, it was personal between him and Luis. He firmly believed that Luis ordered the shooting of Felicia that had almost killed Ana.

  Nick went over to his family home around six o’clock on Halloween night. He didn’t want to miss the family tradition of trailing after his kids while they trick-or-treated around the neighborhood. He knew his daughter Gabriella, in junior high, was too old to have her parents hanging around on Halloween night. She was off with friends. He also knew it would probably be the last year of doing this with his son Jake. He was now an upperclassman in grammar school, fourth grade. Jake dressed up as Roger Federer. Nick admired the choice. Not much effort for the costume, a world class athlete, and a good guy. Jake had on tennis shorts, a multi-colored tennis shirt, the stylized Federer RF ball cap and a knock off watch that Nick loaned him that was supposed to represent the fancy brand hawked by Roger. For neighbors who couldn’t pick up on the subtleties of Jake’s costume, he also carried a Wilson tennis racket. Jake had initially balked at that, wanting to have both hands free for all the candy.

  Nick and Judy walked around with a group of parents. They stayed in the middle of the street and talked about their kids while Jake and his mob went door to door. Nick thought how much he enjoyed the family time. He ached when he thought how many family events he had missed over the last year, in fact, how many over all the years because of his work.

  They went back to the house where Jake laid his candy out in a row, separated by type. Hundreds of pieces of candy wound around the living room floor like a multi-colored snake. Jake counted all the pieces, category by category. Gabriella rushed in, glowing, with a small bag of candy at her side. She had barely bothered to dress up. She wore black, had a liberal painting of black eyeliner, and had found a witch’s cap. She looked great. Nick asked her what she’d had done and if she had a good time. She brushed him off with, “Fine,” and “Nothing special, just with friends.” Nick didn’t relish the future years of cryptic teenage responses.

  Jake began to nod off. It was clear that it was time for Nick to go. He was reluctant to leave. Nick wanted to soak up as much of his family as he could before going home to his tropical fish. Judy gently pushed him towards the door with, “I have an early shift tomorrow. I enjoyed spending the evening with you. It was like old times.”

  “It was. I can’t tell you how much I enjoyed it. I miss these family times so much.” He gave Judy a peck on the cheek. She smiled with sad eyes. Nick read her face to say, It’s too bad it’s all over with us. Nick wasn’t so sure.

  The next morning, Ana walked into Nick’s Office. He was staring blankly into space. She noticed there were a few more photos of his kids on the bookshelf. “Wake up Nick! Time to come back to earth. There are earthlings that need instruction. Do you still want me to fly to Kansas and make sure Felicia is willing to come out for the trial?”

  “Sorry, just thinking. Yeah, I do want you to fly there. But not until it’s a lot closer to when we need her to testify. I don’t want you to go there, convince her, and then give her time to change her mind.”

  “Okay. Did you do anything for Halloween other than give a
way your tropical fish as tricks?”

  “Not a bad idea. Wish I’d thought of it. They’re taking up too much of my time. I have to feed them pinches of flakes twice a day and clean their tank every three months, whether it needs it or not. Such responsibility.”

  “Missing the responsibility of your kids? I see a couple of new pictures on the book case.”

  “Nothing gets by you. Yeah, I’m missing my kids. I saw them last night and trailed Jake around as he trick-or-treated. It was nice.”

  “Did you go back to Judy’s house after going around the neighborhood?

  “Yes. Jake counted his candy and spread them out in a long line on the living room floor.”

  “How wonderful Nick. And you didn’t even bring me a Snickers bar, my favorite. By the way, I had a so-so Halloween. My neighbor dragged me to a party and I pretended to have a good time while wanting to be with you. Thanks for asking.” Ana turned and headed for the door.

  “Wait Ana. I’ve been preoccupied. I….”

  The door slammed. Nick thought, In the doghouse without even trying.

  Thanksgiving didn’t go as well for Nick as Halloween. He took his kids out for brunch. There was an outdoor restaurant in Del Mar that Nick liked. It allowed dogs—Gabriella and Jake got to pat a couple. They then walked along the beach. They hunted for sand dollars and sea glass. They scooped up a few, perfectly intact sand dollars. Nick took one home to put in his fish tank. Nick found two pieces of rubbed smooth, green sea glass, which he promised to make into earrings for Gabriella when she was old enough to pierce her ears. She thought it was now, but her mother and Nick had other ideas. Nick had wanted to go over to their home so they could all have Thanksgiving dinner together. Judy’s Mom was coming and her brother. Judy nixed the idea. She had said, “We need to see what it’s like really being apart, even on traditional family occasions.” Nick hadn’t fought it. He dropped the kids off at home in the early afternoon and went to the office. There was work to do with the motions hearing the following Tuesday.

  Nick got back to his apartment about nine. He went straight to the liquor cabinet, above the broom closet. He brought a bottle of Jack to the table with a six ounce glass. He settled into his lounge chair and drank to the mournful blues song, St. James Infirmary, and songs by Duke Ellington. Nick drifted off to his favorite song by Duke, I ain’t got Nothing but the Blues.

  On Monday afternoon, Judge Orsini emailed his tentative rulings on all the motions to the attorneys, with the instruction to carefully consider which motions the parties wanted to argue the next day. A judge will issue a tentative ruling before a motion hearing to assist the attorneys in focusing on the issues the trial court deems important. Nick and Josh had prevailed on most of the insignificant motions. The ones they lost were no big deal and not worth arguing over the next day. They also did well on the four key motions. Only part of one key ruling went against them. Judge Orsini found there wasn’t sufficient evidence to proceed to trial on the murder conspiracy count against the cartel’s head, Encinas. That left Sanchez, the cartel enforcement lieutenant, and Luis, the lieutenant for drug distribution, still in as named co-conspirators. Nick knew that motion would be contested by both sides and the defense would contest the three other significant motions.

  The next morning, Josh and Nick parked their car a block from the federal courthouse. Each had a luggage roller with a box full of files secured with bungee cord straps. They flashed their prosecutor ID cards and were waved through the metal detector. They entered Judge Orsini’s courtroom to set up 15 minutes before the hearing was scheduled. The files of the 22 motions were labeled and set out in order on their counsel table. Nick wanted to schmooze with the head bailiff, the court clerk and the court reporter before the hearing. He talked to each in turn, asked how they were doing, and what Nick and Josh could do to make the hearing easier for them. Over the years Nick had learned how important it was to keep in good graces with the key personnel of a courtroom—on several cases he had received helpful tips.

  The platoon of defense attorneys strolled in with their matching boxes of materials. Fortunately, Josh had thinned the ranks of defendants with accepted plea offers by the less culpable defendants. The case was down to a much more manageable six defendants which included the three cartel leaders. Nick was hopeful that they could cull a couple of more defendants prior to trial. A trial with three or four defendants is manageable.

  Judge Orsini took the bench at the second the court clock went to 9:30. It served as a reminder to Nick to never be late in Judge Orsini’s courtroom. “Good morning gentlemen. If you don’t mind me calling you that.”

  Nick said, “It’s a pleasure to be addressed as such. We don’t hear that often enough in the practice of law.’

  Judge Orsini replied, “That’s because counsels don’t often deserve that reference. In my courtroom, you will all act as gentlemen. Now, a few house cleaning matters before we bring in the defendants. I’m going to hear each motion as it’s listed in my tentative ruling—in my humble estimation, from the least significant to the most significant. First, I want to know from both sides which motions you choose to argue. Mr. Drummond, we’ll start with you.”

  “Just the last, number 22, the motion to set aside the murder conspiracy count. We reserve argument as to any other motions the defense chooses to argue in court. AUSA Sterling and I have each prepared 11 of the motions, and will split the oral advocacy along those lines.”

  “Thank you Mr. Drummond. Defense?”

  “Good morning Your Honor. Lars Flanigan for defendant Mateo Gomez-Encinas. Marc Lipman, counsel for Luis Hernandez-Lopez, and I’ll be arguing in turn for all six defendants, depending on which motion is being argued. The defendants would like to be heard on motion numbers 6, 9, 11, 15, and the last four motions, 19 through 22.”

  “To all counsel, I appreciate you narrowing down the number of motions to be argued. I was afraid we might be here all morning, and into the afternoon. It looks like we can be out of here in time for an early lunch. They’re your motions Mr. Flanigan and Mr. Lipman. You may start as soon as the defendants are brought in.”

  The six defendants shuffled into the courtroom from the private back hallway. Everyone was chained together, with both ankle chains and handcuffs. Encinas managed to keep his patrician air like he was strolling through a slightly distasteful alley. Luis had a smirk on his face; sending the message that these circumstances wouldn’t last long. Sanchez had an impenetrable scowl. His scar, down the length of the right side of his face, seemed more pronounced. Armed bailiffs led them and the three others into the courtroom. The six defendants were unhooked from each other and had their handcuffs removed. Their ankle shackles remained. They sat by their respective counsel. A couple of extra tables had been set up near the jury box to accommodate all the defendants and their counsel. The extra bailiffs spaced themselves nearby.

  Nick leaned over to Josh and whispered, “Don’t you think they look good in jailhouse orange, sandals, and ankle cuffs. The height of fashion.”

  Flanigan and Lipman argued motions 6, 9, 11, and 15, two apiece. By the luck of the draw, all four responses had been prepared by Josh. After hearing the first defense argument, which presented nothing that wasn’t already in their moving papers, Nick whispered to Josh, “Keep it brief, Orsini isn’t coming off of his tentative ruling in our favor. I’ve been watching him tap his pencil during the argument. It means he’s heard enough.”

  Josh followed Nick’s advice. He kept it brief for each of the initial four arguments and essentially submitted on the People’s filed responses.

  For each of the four motions, in turn, Judge Orsini said, “I have read the pleadings filed by all the parties and stand by my tentative ruling. Motion denied.”

  The first significant motion, number 19, was the defense motion to exclude all the drugs and other evidence seized at the Otay Mesa ranch. The defense argument was that
the DoD satellite photos of the ranch violated the Fourth Amendment right against unreasonable government searches.

  Lars Flanigan began the argument with an angry tone. “The satellite photos of the Otay Mesa ranch by the Department of Defense were an unwarranted and outrageous violation of the defendants’ constitutional rights to be protected against unreasonable and invasive government actions. No person is safe from the intrusive eyes of the government. Whether it’s NSA collecting random data against all our citizens or the Department of Defense spying on our homes from satellites, miles above, undetectable by the naked eye. By a phone call, without cause, Prosecutor Drummond summoned the unlimited resources behind the Department of Defense satellite system to focus on one small farmhouse in Otay Mesa. There’s nothing the defendants or any homeowner can do to protect their privacy from such intrusion. In these high tech times, with innovations in technology changing on a day to day basis, the courts need to step in and apply the brakes to the government’s runaway technology train that is crushing all of our privacy rights. The legislature can’t or won’t keep up. Without the satellite photos, there wouldn’t have been sufficient cause to support the search warrant of the Otay Ranch property. Under the Constitution, this court must exclude the evidence!”

  “Thank you Mr. Flanigan. Prosecution?”

  Josh stood up immediately, and looked Judge Orsini directly in the eye. “Thank you, Your Honor. Mr. Flanigan’s anger is misplaced. Technology has grown at a rapid pace, mainly for the good. The capabilities and benefits of our satellites aren’t in dispute—communication, national security, and assistance with weather and disaster analysis. The fact that we have flying objects in our airspace that are capable of looking earthward, whether from miles above the ground or from 200 feet above the ground, is well-known. Google Earth takes pictures from above of all our properties to help others locate them and provide directions. There isn’t a protected cone of privacy above land or any building. Only when technology is used by the government to detect items or persons within a building, that aren’t detectable from outside the premises, does the Fourth Amendment come into play. The applicable marijuana grow cases find a Fourth Amendment violation where police direct overflights of property, using heat-seeking, infrared devices to ferret out marijuana grows inside buildings that otherwise couldn’t be detected. That isn’t the situation here. The satellite photos show individuals outside a building, unloading duffle bags from an oil tanker truck. This could have been detected by a helicopter flying over the property. No special devices were used to detect anything inside the buildings. No Fourth Amendment rights are implicated here. The defense motion must be denied.”