The Law of Innocence Read online

  “Look, you know that Lorna, Cisco, and I have all said we can defer paychecks till this is over. I really think this is a case priority and you need to reconsider. Besides, what about Hayley? You already missed Thanksgiving with her. You want to miss Christmas too?”

  “Okay, duly noted. Let’s see if there’s time to get to it today. If not, we’ll take it up in the next round. Let’s move on past the motions. Cisco, what’s happening with the review of previous cases?”

  “Me and Lorna are through more than half the files,” Cisco said. “So far nothing stands out. But we’re working on it and making a list of possibles.”

  He was talking about a list of former clients and enemies who might have the motive and wherewithal to pin a murder rap on me.

  “Okay, I need that,” I said. “I can’t just go into court and say I was framed. A third-party-culpability case requires a third party.”

  “We’re on it,” Cisco said. “If it’s there, we’ll find it.”

  “If?” I asked.

  “I didn’t mean it like that, boss,” Cisco said. “I just meant—”

  “Listen,” I said. “I’ve spent the past twenty-five years of my life telling clients that it didn’t matter to me whether they did it, because my job was to defend them, not judge them. Guilty or innocent, you get the same deal and the same effort. But now that I’m on the other side of it, I know that’s bullshit. I need you two and Lorna to believe in me on this.”

  “Of course we do,” Jennifer said.

  “Goes without saying,” Cisco added.

  “Don’t be so quick to answer,” I said. “You must have questions about it. The state’s case is more than persuasive. So if at any point Death Row Dana turns you into a believer, I need you to step up and step out. I don’t want you on the team.”

  “Not going to happen,” Cisco said.

  “Never,” added Jennifer.

  “Good,” I said. “Then let’s go to war. Jennifer, can you go get my suit and bring it in so I can get ready?”

  “Be right back,” she said.

  She got up and hammered on the steel door with one hand while waving to the overhead camera with the other. Soon I heard the sharp metal crack of the door unlocking. A deputy opened it to let her out.

  “So,” I said, once Cisco and I were alone. “What’s the water temp these days down in Baja?”

  “Oh, it’s nice,” Cisco said. “I talked to my guy down there and he said high eighties.”

  “Too warm for me. Tell him to let me know when it gets down to about seventy. That would be perfect for me.”

  “I’ll tell him.”

  I nodded to Cisco and tried not to smile for the overhead camera. Hopefully, this last bit of conversation was intriguing enough to any illegal listeners to send them fishing for a red herring down in Mexico.

  “So, what about our victim?” I said.

  “Still working it,” Cisco said hesitantly. “I’m hoping Jennifer gets more stuff in discovery today so I can run down his movements and how and when he ended up in your trunk.”

  “Sam Scales was a slippery guy. Nailing him down is going to be tough, but I’m going to need that.”

  “Don’t worry. You’ll have it.”

  I nodded. I liked Cisco’s confidence. I hoped it would pay off. I thought for a moment about my former client Sam Scales, the ultimate con man who had even conned me. Now the victim in the biggest con of all, I was set up for a murder that I knew was going to be a hard frame to break.

  “Hey, boss, you okay?” Cisco asked.

  “Yeah, fine,” I said. “Just thinking about things. This is going to be fun.”

  Cisco nodded. He knew it was going to be anything but fun, but he understood the sentiment. Act like a winner and you’ll become a winner.

  The cell door slid open again and Jennifer came back in, carrying my court clothes on two hangers. I usually reserved the pink oxford for appearances before a jury, but that was okay. Just seeing the sharp cut of the suit kicked my mood up to a new level. I started getting ready for battle.

  5

  My suit fit me loosely. I felt like I was swimming in it. The first thing I told Jennifer when they moved me into court and took off the chains was to ask Lorna to go to my house, pick out two of my suits, and take them to a tailor to be altered.

  “That’s going to be kind of hard without you there to be measured,” she said.

  “I don’t care, it’s important,” I said. “I don’t want to look like a guy in a borrowed suit in front of the media. That gets out to the jury pool and sends a message.”

  “Okay, I get it.”

  “Tell her to have them taken in a full size all around.”

  Before she could respond, Dana Berg stepped over to the defense table and put down a set of documents.

  “Our answers to your motions,” she said. “I’m sure it will all come out in oral.”

  “Timely,” Jennifer said, meaning it was anything but.

  She started reading. I didn’t bother. Berg seemed to hesitate, as if expecting a retort from me. I just looked up and smiled.

  “Good morning, Dana,” I said. “How was your weekend?”

  “Better than yours, I’m sure,” she said.

  “I think that would be a given,” I said.

  She smirked and returned to the prosecution table.

  “No surprise, she’s objecting to everything,” Jennifer said. “Including bail reduction.”

  “Par for the course,” I said. “Like I said, don’t worry about bail today. We’ll—”

  I was silenced by the booming voice of Morris Chan, the courtroom deputy, announcing the arrival of Judge Warfield. We were instructed to remain seated and come to order.

  I believed I got lucky when we drew Warfield on the case. She was a tough law-and-order jurist but she was also a former member of the defense bar. Oftentimes defense lawyers who become judges seem to go out of their way to show impartiality by favoring the prosecution. That was not what I had heard about Warfield. While I had never had a case before her, I had listened to the conversations of some of the other defense pros at the Redwood and Four Green Fields in the past, and the picture I got was of a judge who threw her pitches right down the middle. In addition, she was African American and that made her an underdog. Coming up, she had had to be better than the other lawyers. That demanded a mindset I liked. She knew full well the disadvantages I faced in trying to defend myself. My guess was that she would include that knowledge in her decisions.

  “We’re on the record in California versus Haller and we have a series of defense motions to consider,” the judge said. “Mr. Haller, will you be offering argument or will it be your co-counsel, Ms. Aronson?”

  I stood to reply.

  “May it please the court,” I began, “we would like to tag-team a little bit today. I would like to start with the motion to suppress.”

  “Very well,” Warfield said. “Proceed.”

  Here is where it got tricky. I had filed what was technically a motion in limine to exclude evidence that had been unconstitutionally obtained. I was challenging the traffic stop that led to the discovery of the body of Sam Scales in the trunk of my car. If I won the motion, the case against me would probably be DOA. But it was a long shot to believe that a judge, even as impartial as I had heard Warfield to be, would throw such a wrench into the state’s case. And that was what I was counting on, because I didn’t want that to happen either. With any other client, I would want that ruling. But this was my own case. I did not want to win on a technicality. I needed to be exonerated. The trick here was to have a full-blown hearing on the constitutionality of the traffic stop that put me in jail. But I only wanted it in order to get Officer Milton on the stand so that I could draw out his story and lock it down under oath. Because I believed I was set up and that the setup had to have included Milton in some way, whether knowingly or not.

  Carrying the printout of the motion, I walked to the lectern between the pro
secution and defense tables. On the way, I casually checked the gallery and saw at least two people I recognized as journalists covering the hearing. They were the conduit I would use to get my defense out into the world.

  I also saw my daughter, Hayley, in the back row. I assumed she was cutting class at USC Law but I couldn’t be too upset. I had forbidden her to visit me in jail. I didn’t want her ever to see me in jail scrubs and had gone so far as to leave her off my approved visitors list. So court was where she could see and support me, and that was not lost on me. I also knew that she was leaving the make-believe world of law school and getting a real education in the law by being here.

  I threw her a nod and a smile, but seeing her now reminded me how ill-fitting my suit was. It looked borrowed and announced that I was a convict to all courtroom observers. I might as well have been wearing the scrubs. I tried to shake off these thoughts when I got to the lectern and I turned my attention to the judge.

  “Your Honor,” I said. “As the motion before the court states, the defense contends that I was set up and framed in this case. And that setup came into play with the illegal and unconstitutional stop by the police on the night I was arrested. I have re—”

  “Set up by whom, Mr. Haller?” the judge asked.

  I was thrown by the question. As valid as it might have been, it was unexpected from the judge, especially before I finished my argument.

  “Judge, that is irrelevant at this hearing,” I said. “This is about the traffic stop and whether it was constitutional. It—”

  “But you are saying you were framed. Do you know who framed you?”

  “Again, Your Honor, that is irrelevant. In February it will be very relevant when we go to trial, but I don’t see why I have to reveal my case to the prosecution while challenging the validity of the traffic stop.”

  “Then continue.”

  “Thank you, Your Honor, I will. The—”

  “Is that a shot?”

  “Excuse me?”

  “What you just said, is that a shot at me, Mr. Haller?”

  I shook my head, confused. I couldn’t even remember what I had said.

  “Uh, no, not a shot, Judge,” I said. “I don’t remember what I said but it was in no way intended to—”

  “Very well, let’s move on,” the judge said.

  I remained confused. The judge appeared to be sensitive to anything she construed as a questioning of her skill or authority. But it was good to register this early in the process.

  “Okay, well, I apologize if anything I said sounded disrespectful,” I said. “As I was saying, I’ve filed a motion to suppress, challenging the probable cause to stop and the probable cause supporting a warrantless search of the trunk of the vehicle I was driving. An evidentiary hearing is required on the issues raised, with the attendance of the officer who stopped me and searched my vehicle. I would like to schedule a time for that hearing. But before we can do that, I have other matters that need to be addressed. My investigator has been trying for five weeks, Your Honor, to talk to the officer who stopped me—Officer Roy Milton—and has been unsuccessful despite numerous requests to him and the police department. I know we will be discussing our discovery motion later but, same thing, no cooperation from the D.A.’s Office in regard to the arrest. This is a continuation of the prosecution’s effort since day one to prevent a fair trial from occurring.”

  Berg stood up but Warfield held up a hand to prevent her from speaking.

  “Let me stop you right there, Mr. Haller,” the judge said. “That is a very serious accusation you just made. You’d better back that up right now.”

  I composed my thoughts before proceeding.

  “Your Honor,” I finally began. “The prosecution clearly does not want me to question Officer Milton, and you can see this all the way back in the decision to go to a grand jury for an indictment and have him testify in secret instead of holding a preliminary hearing where I would be able to question him.”

  In the California courts, a felony charge can advance to trial only after a preliminary hearing in which evidence of probable cause for the arrest is presented to a judge and the defendant is ordered to trial. An alternative to the preliminary hearing is for the prosecution to present the case to a grand jury and ask for an indictment on the charge. That was what Berg had done in this case. The difference between the two procedures is that a preliminary hearing is held in open court, where the defense is allowed to question any witness who testifies in front of the judge, while a grand jury operates in secret.

  “The grand jury is a perfectly valid option for the prosecution to choose,” Warfield said.

  “And it prevents me from questioning my accusers,” I said. “Officer Milton was clearly wearing a body camera the night of my arrest, in keeping with LAPD regulations, and we have not been given that video. I also noted that there was a video camera in the police car, and we have not been given that video either.”

  “Your Honor?” Dana Berg said. “The state objects to defense’s argument. He is turning a motion to suppress evidence in the case into a request for evidence. I’m confused.”

  “So am I,” Warfield said. “Mr. Haller, I allowed you to defend yourself because you are an experienced lawyer, but you are sounding more and more like an amateur. Please stay on point.”

  “Well, then, I, too, am confused, Your Honor,” I said. “I filed a legally sufficient motion to suppress the fruits of a warrantless search. Ms. Berg bears the burden of demonstrating the justification for the search. Yet I don’t see Officer Milton in the courtroom. So unless the prosecution is about to announce a concession, Ms. Berg is not ready to defend against the motion. Yet Ms. Berg acts as though she is outraged and as though I’m supposed to merely argue and be done with it.

  “Judge, the point is, I request an evidentiary hearing and an opportunity to prepare for that hearing after receiving the discovery I am entitled to. I can’t properly and fully argue the motion to suppress, because the prosecution is violating the rules of discovery. I ask the court to table this for today, order the prosecution to fulfill its discovery obligations, and schedule a full evidentiary hearing on the motion at a time when witnesses, including Officer Milton, may appear.”

  The judge looked at Berg.

  “I know we have a discovery motion in Mr. Haller’s stack,” Warfield said, “but where are we on those items just mentioned? The video from the officer and the car. Those should have been turned over by now.”

  “Judge,” Berg said. “We had technical issues with the transfer of—”

  “Your Honor,” I roared, “they can’t be pulling this technical difficulty excuse! I was arrested five weeks ago today. My freedom is on the line here, and for them to say technical issues have delayed my due process rights is patently unfair. They are trying to keep me from getting to Milton. Plain and simple. They did it when they went to a grand jury instead of a prelim and they are doing it again here. I have not waived my right to a speedy trial and the prosecution is doing anything and everything it can to push me toward a delay.”

  “Ms. Berg?” Warfield said. “Response to that?”

  “Judge,” Berg said. “If the defendant would stop interrupting me before I even finish a sentence, he would have heard that we had—that’s past tense—technical difficulties, but they were cleared up and I have the videos from the officer’s car and body cam to give to the defendant today. Additionally, the state objects to any suggestion that it is dragging its feet or pressuring the defendant in any way to delay this case. We are ready to go, Your Honor. We are not interested in a delay.”

  “Very well,” Warfield said. “Turn the videos over to the defense and we will—”

  “Your Honor, point of order,” I said.

  “What is it, Mr. Haller?” the judge said. “I’m losing my patience.”

  “Counsel just referred to me as the defendant,” I said. “Yes, I am the accused in this case, but when I am arguing before the court, I am counsel fo
r the defense and I request that the court direct Ms. Berg to refer to me properly.”

  “You are talking about semantics, Mr. Haller,” Warfield said. “The court sees no need for such direction to the prosecution. You are the defendant. You are also the defense counsel. Same difference in this case.”

  “Members of a jury might see the difference, Your Honor,” I said.

  Warfield once again held her hand up like a traffic cop before Berg could voice an objection.

  “No argument from the People is needed,” she said. “The defense request is denied. We are going to continue this motion to Thursday morning. Ms. Berg, I will expect you to have Officer Milton here to be questioned about the traffic stop of Mr. Haller. I will be happy to sign a subpoena to that effect if needed. But rest assured that if he does not appear, I’ll be inclined to grant the motion. Is that understood, Ms. Berg?”

  “Yes, Your Honor,” Berg said.

  “Very well, let’s move on to the next motion,” Warfield said. “I have to leave the courthouse at eleven for an outside meeting. Let’s press on.”

  “Your Honor, my co-counsel, Jennifer Aronson, will discuss the motion to compel discovery.”

  Jennifer got up and approached the lectern. I went back to the defense table and we lightly touched arms as we passed each other.

  “Go get ’em,” I whispered.

  6

  The perks I received as a pro se inmate extended to the detention center, where I was afforded space and time for daily meetings with my legal team. I set these meetings Monday through Friday at 3 p.m. whether or not there were issues or strategy to discuss. I needed the connection to the outside, if only for the mental health maintenance.

  The meetings were a hardship for Cisco and Jennifer because they and their belongings were searched coming in and going out, and the rule was that the team had to be in place in the attorney-client room before I was even pulled from the module where I was housed. Everything in the jail moved at an indifferent pace set by the deputies running the show. The last thing afforded an inmate, even a pro se, was punctuality. It was the same reason my wake-ups were at 4 a.m. for a hearing six hours later and only four blocks away. These delays and harassments meant that they usually had to present themselves at the jail’s attorneys’ entrance at 2 p.m. so that I might see them for an hour beginning at 3 p.m.