Майкл Коннелли - The Law of Innocence

“Counsel’s argument is preposterous,” Jennifer protested. “Not only is there no special circumstance that could be applied in this case, but the defense motion was filed last week, and if the state was considering a valid special circumstance allegation, it would have added it by now. The state is blowing smoke, hoping to stop the court from providing Mr. Haller’s right to bail.”

Warfield’s eyes moved from Jennifer to Berg.

“Defense counsel makes a good argument,” the judge said. “What is the special-circumstance allegation the state is supposedly considering?”

“Your Honor, the investigation of this crime is ongoing and we are developing evidence of a financial motive,” Berg said. “And as the court well knows, murder for financial gain is a special-circumstance crime.”

Jennifer angrily spread her hands wide.

“Your Honor,” she said, “is the District Attorney’s Office really asking for bail to be set on the basis of what evidence might be found down the line? This is incredible.”

“Incredible or not, this court is not going to consider what may lie in the future while making rulings in the present,” Warfield said. “Do both sides submit?”

“Submitted,” Jennifer said.

“One moment, Your Honor,” Berg said.

I watched her lean down to confer with her second, a young attorney who wore bow ties. I had a pretty good idea what they were talking about.

Warfield quickly grew impatient.

“Ms. Berg, you asked for time to prepare for this hearing and I gave it. There should be no need for a sidebar with your colleague. Are you ready to submit?”

Berg straightened up and looked at the judge.

“No, Your Honor,” she said. “The state believes that the court should be made aware that there is an ongoing investigation of the defendant relating to a plan to flee the country to Mexico, should he be released on bail.”

Jennifer stood up.

“Your Honor,” she protested. “More unfounded allegations? Is the state so desperate to keep this man in jail that it trumps up an investigation into—”

“Your Honor,” I said, as I stood up. “If I may address this allegation?”

“In a moment, Mr. Haller,” Warfield said. “Ms. Berg, this better be good. Tell me more about this alleged plan to flee the country.”

“Judge, all I know is that a confidential informant in the jail where Mr. Haller is being housed revealed to investigators that the defendant has openly spoken about a plan to cross the border and flee, if he can make bail. The plan includes circumventing an electronic monitor should the court order that as part of a bail reduction, and co-counsel is fully aware of this. The defendant has gone so far as to invite her down to go fishing.”

“What do you say about that, Mr. Haller?” Warfield asked.

“Your Honor, the prosecution’s claim is false on multiple levels, starting with the alleged confidential informant,” I said. “There is no CI. There are only the jail deputies listening in on privileged conversations and then feeding what they hear to the prosecution as intel.”

“That’s a serious allegation, Mr. Haller,” Warfield said. “Do you care to enlighten us with your knowledge?”

The judge gestured toward the lectern and I stepped over.

“Judge Warfield, thank you for the opportunity to bring this matter before the court,” I began. “I have been incarcerated at Twin Towers for six weeks. I elected to go pro se and defend myself with the help of my co-counsel, Ms. Aronson. This meant meetings with my team in the jail as well as calls from the community phones in the K-10 module. These meetings and calls are not supposed to be monitored in any way by law enforcement or anyone else. The privilege is supposed to be sacrosanct.”

“I hope you are going to get to a point soon, Mr. Haller,” the judge interjected.

“Arriving there now, Your Honor,” I responded. “As I said, the privilege is sacrosanct. But I became suspicious that that was not the case at Twin Towers and that somehow what was said in my meetings and phone calls with co-counsel and my investigator was getting back to the D.A.’s Office and Ms. Berg. And so, Your Honor, I set up a little test to either prove or disprove my theory. On a phone call with my co-counsel, I announced that I was having a call with counsel under privilege and stated that the call should not be monitored. But it was. And I spun a story that just came out of Ms. Berg’s mouth almost verbatim.”

Berg stood to speak and I gestured with my hand as if to say your turn. I wanted her to respond because I would then hang her with her own words.

“Your Honor,” Berg began. “Talk about incredible. The defendant’s plan to flee is revealed in court, and his response is to say, ‘Yes, but I was just kidding. I was just testing to see if anyone was listening.’ That’s a confirmation, Your Honor, and reason alone not to reduce bail in this matter but to raise it.”

“Does this mean that counsel for the People acknowledges listening to the privileged call?” I asked.

“It means no such thing,” Berg shot back.

“Excuse me!” the judge boomed. “I’m the judge here and I’ll ask the questions, if you don’t mind.”

She paused and stared down hard, first at me and then at Berg.

“When exactly was this call, Mr. Haller?” she asked.

“About five forty p.m. Thursday,” I responded.

Warfield shifted her focus to Berg.

“I would like to hear this phone call,” she said. “Is that possible, Ms. Berg?”

“No, Your Honor,” Berg said. “Privileged calls are destroyed by the monitors because they are privileged.”

“Destroyed after they are listened to?” the judge pressed.

“No, Your Honor,” Berg said. “Privileged calls are privileged. They are not listened to once they are established as protected conversation with counsel or others under the rules of privilege. The calls are then destroyed. That is why it is not possible to confirm or refute counsel’s outlandish allegation, and he knows it.”

“That’s wrong, Your Honor,” I said.

Warfield swung her eyes back to me and squinted them down to slots.

“What are you saying, Mr. Haller?” she asked.

“I’m saying we were running a test,” I said. “Ms. Aronson recorded the call and that recording is available to the court right now.”

The air momentarily went out of the room while Berg recalculated.

“Your Honor, I am going to object to any playing of a tape,” she said. “There is no way to validate its legitimacy.”

“I disagree, Judge,” I said. “The tape begins with the jail system’s collect call announcement, and more importantly, you will hear the exact words and story Ms. Berg just revealed to the court. Now, if I were to make a phony tape, how would I know exactly what she was going to say in court?”

Warfield registered that for a few moments before responding.

“Let’s hear the tape,” she said.

“Your Honor,” Berg said, panic creeping into her voice, “the People ob—”

“Objection overruled,” Warfield said. “I said, let’s hear the tape.”

Jennifer came forward with her cell phone, placed it on the lectern, and bent the stem microphone down to it before pushing the play button on the recording app.

Without my instruction Jennifer had been smart enough to record the call from the start, including the electronic voice saying she was receiving a collect call from the L.A. County jail. After the call was over, she had also added her own tag, announcing that the call had been a test to see if L.A. County authorities were violating my privilege rights.

The call was convincing. I wanted to see Berg’s reaction but could not pull my eyes away from the judge. Her face seemed to grow darker as she heard the parts of the conversation that Berg had said came from an informant.