Michael Connelly - The Fifth Witness

“No, I am not.”

“You are saying that you are unfamiliar with one of your partners in Wing Nuts, sir?”

“AA-Best invested. I invested. I don’t know all the individuals involved.”

Freeman stood. It was about time. I had been waiting for her to object for at least four questions. I was spinning my wheels waiting.

“Your Honor, is there a point to all of this?” she asked.

“I was beginning to wonder about that myself,” Perry said. “You want to enlighten us, Mr. Haller?”

“Three more questions, Your Honor, and I think the relevance here will be crystal clear to everyone,” I said. “I beg the court’s indulgence for just three more questions.”

I had stared at Opparizio the whole time I’d said it. I was sending the message. Pull the plug now or your secrets will be put out there in the world. LeMure will know. Your stockholders will know. The U.S. Attorney’s Office will know. Everyone will know.

“Very well, Mr. Haller.”

“Thank you, Your Honor.”

I looked down at my notes. Now was the time. If I had Opparizio right, now was the time. I looked back up at him.

“Mr. Opparizio, would it surprise you to learn that Dominic Capelli, the partner you claim not to know, is listed by the New York-”

“Your Honor?”

It was Opparizio. He had cut me off.

“On advice of counsel and pursuant to my Fifth Amendment rights and privileges granted by the Constitution of the United States and the state of California, I respectfully decline to answer this or further questions.”

There.

I stood totally still but that was only on the outside. Energy flooded through me like a scream. I was barely aware of the rumble of whispers that went through the courtroom. Then from behind me a voice firmly addressed the court.

“Your Honor, may I address the court please?”

I turned and saw it was one of Opparizio’s attorneys, Martin Zimmer.

Then I heard Freeman, her voice high and tight, calling an objection and asking for a sidebar.

But I knew a sidebar wasn’t going to do it this time. And so did Perry.

“Mr. Zimmer, you may sit down. We are going to break now for lunch and I expect all parties to be back in court at one o’clock this afternoon. The jury is directed not to discuss the case with one another or to draw any conclusions from the testimony and request of this witness.”

Court broke loudly after that, with the members of the media talking among themselves. As the last juror was going through the door I stepped away from the lectern and leaned down to the defense table to whisper in Aronson’s ear.

“You might want to come back to chambers this time.”

She was about to ask what I meant when Perry made it official.

“I want counsel to join me in chambers. Immediately. Mr. Opparizio, I want you to stay right there. You can consult with your counsel, but don’t leave the courtroom.”

With that the judge got up and headed back.

I followed.

By now I was intimately getting to know the wall hangings and furnishings and everything else in the judge’s chambers. But I expected that this would be my last visit, and probably the most difficult. As we entered, the judge stripped off his robe and threw it haphazardly over the hat rack in the corner rather than carefully put it on a hanger as he had for prior in camera meetings. He then dropped into his seat and loudly exhaled. He leaned far back and looked up at the ceiling. He had a petulant look on his face, as though his concerns over what would be decided here were more about his own reputation as a jurist than about justice for a murder victim.

“Mr. Haller,” he said as though he was releasing a great burden.

“Yes, Your Honor?”

The judge rubbed his face.

“Please tell me that it was not your plan all along, and from the beginning, to force Mr. Opparizio into taking the Fifth in front of the jury.”

“Judge,” I said, “I had no idea he was going to take the Fifth. After the motion to quash hearing we had, I thought there was no way he would. I was pushing him, sure, but I wanted the answers to my questions.”

Freeman shook her head.

“You have something to add, Ms. Freeman?”

“Your Honor, I think defense counsel has treated the court and the justice system with nothing but contempt from the start of this trial. He didn’t even answer your question just now. He didn’t say it wasn’t his plan, Your Honor. He just said he had no idea. Those are two separate things and they underline the fact that defense counsel is sneaky and has tried to sabotage this trial from the start. He has now succeeded. All along Opparizio was a Fifth witness-a straw man he could set up in front of the jury and then knock down when he took the Fifth. That was the plan and if that is not a subverting of the adversarial system, then I don’t know what is.”

I glanced at Aronson. She looked mortified and maybe even swayed by Freeman’s statement.

“Judge,” I said calmly, “I can only say one thing to Ms. Freeman. Prove it. If she’s so sure this was some kind of master plan then she can try to prove it. The truth is, and my young, idealistic colleague here can back me on this, we did not even become aware of Opparizio’s organized crime connections until just recently. My investigator literally stumbled across them while tracking back all of Opparizio’s holdings as listed in his SEC filings. The police and prosecution had the opportunity to do this but either chose to ignore it or came up short of the mark. I think counsel’s upset largely extends from that, not what tactics I employ in court.”

The judge, who was still leaning back and looking at the ceiling, made a waving gesture with his hand. I didn’t know what it meant.

“Judge?”

Perry swung the chair around and leaned forward, addressing all three of us.

“So what do we do about this?”

He looked at me first. I glanced at Aronson to see if she had something to offer but she looked frozen in place. I turned back to the judge.

“I don’t think there is anything that can be done. The witness invoked the Fifth. He’s done testifying. We can’t go on with him selectively using the Fifth whenever or wherever he wants. He invoked, he’s done. Next witness. I have one more and then I’m done, too. I’ll be ready to give my closing tomorrow morning.”

Freeman could no longer take it sitting down. She stood up and started pacing a short pattern near the window.

“This is so unfair and so much a part of Mr. Haller’s plan. He brings out the testimony he wants on direct, then pushes Opparizio into the Fifth, and then the state gets no cross, no redress at all. Is that even remotely fair, Your Honor?”

Perry didn’t answer. He didn’t have to. Everybody in the room knew the situation was unfair to the state. Freeman now had no opportunity to question Opparizio.

“I’m going to strike his entire testimony,” Perry declared. “I’ll tell the jury not to consider it.”

Freeman folded her arms across her chest and shook her head in frustration.

“That’s a helluva big bell to un-ring,” she said. “This is a disaster for the prosecution, Judge. It’s completely unfair.”

I said nothing because Freeman was right. The judge could tell the jurors not to consider anything Opparizio had said but it was too late. The message was delivered and was floating around in all their heads. Just as I had intended.

“Sadly, I see no alternative,” Perry said. “We’ll take lunch now and I’ll be thinking further on the issue. I suggest you three do the same. If you come up with something else before one, I will certainly entertain it.”

No one said anything. It was hard to believe it had come to this. The end of the case in sight. And things falling just as planned.