Майкл Коннелли - The Law of Innocence

“Ms. Berg,” the judge cut in. “I don’t need the preamble. Get to the point. If there is a discovery violation, please get to it.”

“Yes, Your Honor. On Monday, the latest witness lists were due from each side. And to our surprise, the defense actually put new names on their witness list. One name that stood out to us was Rose Marie Dietrich, whom the defense listed as the landlord of the victim in this case, Sam Scales.”

“Was this a witness the prosecution was not familiar with?”

“No, Your Honor, we were not familiar with her. I dispatched investigators to locate and talk to her and we learned that the reason she was not known to us is that Sam Scales used a false identity when he rented an apartment from her.”

“I’m not seeing the problem here as far as the defense goes, Ms. Berg.”

“Your Honor, the problem is in what Rose Marie Dietrich told us. She said that Mr. Haller and two of his investigators spoke with her three weeks ago about Sam Scales, who was using the name Walter Lennon when he rented the apartment. Additionally, she allowed Mr. Haller and his crew to look through the victim’s belongings, which were stored in the garage of the property. Unaware that Mr. Scales had been murdered in October, Dietrich and her husband boxed his belongings when he seemed to disappear without paying rent for December. They stored his property in the garage.”

“This is all very interesting, but where is the infraction the People are seeking sanctions for?”

“Judge, the point is that the defense had access to several boxes of belongings, including documents and mail, and yet three weeks later, nothing has come to the People in discovery. They didn’t put Rose Marie Dietrich’s name on their witness list until this week in order to ensure that when the prosecution got to Ms. Dietrich, it would have no access to the property.”

“Why would that be, Ms. Berg?”

“Because they were turned over to the Salvation Army after the defendant and his crew visited Ms. Dietrich. It is quite obvious that the defense had a strategy to keep whatever information was in the victim’s belongings from the People, Your Honor.”

“That is a lot of supposition. Do you have anything that backs that up?”

“We have a sworn statement from Rose Marie Dietrich that states unequivocally that she was told by the defendant that she could donate the property.”

“Then let me take a look at that.”

Berg dropped off a copy of the statement with me after handing one to the clerk for the judge. There was silence for a minute or so as Jennifer and I huddled together to read the witness statement at the same time as the judge.

“Okay, the court has read the document,” Warfield said. “I’d like to hear from Mr. Haller on this matter next.”

I got up and went to the lectern as Berg abandoned it. I had decided on the bus ride over to go full-on sarcastic with my response as opposed to full-on outraged.

“Good morning, Judge,” I said good-naturedly. “I would like to begin by saying that normally I would welcome any opportunity to leave the spare accommodations afforded me at the Twin Towers Correctional Facility, courtesy of Ms. Berg, to be in court, but this time I am baffled by the reason I’m here and the logic of her argument. It seems to me, Your Honor, that she should be seeking sanctions against her own team of investigators, not the defense.”

“Mr. Haller,” Warfield said in a tired tone. “As I said to Ms. Berg, let’s stay on point. Please respond directly to the discovery issue that the prosecution has raised.”

“Thank you, Judge. My response is to say there has been no discovery violation. I have no documents to turn over and I have hidden nothing from the prosecution. Yes, we went to the address in question and looked through the contents of the boxes stored there. I took nothing from those boxes, and I guarantee that Ms. Berg’s investigators asked Rose Marie Dietrich what we took. Unhappy with the response they got to that question, Ms. Berg chose not to include the answer in this piece of paper she claims is a statement of fact. It’s got some facts listed here, Judge, but not all of them.”

“Judge?” Berg said, rising from her seat.

“Your Honor, I’m not finished,” I said quickly.

“Ms. Berg, you had your turn,” Warfield said. “Let counsel finish and then you will get a chance to respond.”

Berg sat back down and started writing furiously on her legal pad.

“In closing, Your Honor,” I said. “There is no subterfuge here. The court recalls that three weeks ago in a teleconference hearing that Ms. Berg was party to, I asked permission to leave the county and state. I assume the court reporter has a record of that hearing, and it will reveal that the prosecution asked specifically whom I was going to see at High Desert State Prison in Nevada. And I said I was going to visit the former cellmate of the victim in this case. If Ms. Berg or any of the many investigators at her disposal had bothered to follow up and talk to that man in Nevada, they would have gotten the same address and alias for Sam Scales that I got, and in fact could have beaten me to the location we’re talking about here. Your Honor, again I say that this is nothing but sour grapes. The discovery obligations of the defense require that I turn over to Ms. Berg a witness list and copies of anything I intend to offer into evidence. I have done that. I am not required to share with Ms. Berg my interviews, observations, or other work product. She knows that. But since day one, the prosecution’s investigation has been lazy, sloppy, and shoddy. I am confident that I will prove that at trial, but the sad thing is, there shouldn’t be a trial. The prosecution has—”

“Okay, let me stop you right there, Mr. Haller,” the judge said. “I believe you have more than made your point. You can return to your seat now.”

“Thank you, Your Honor,” I said.

Usually when a judge tells you to sit down it means that all that needs to be said has been said and a decision has been made.

The judge swiveled in her chair and focused on Berg.

“Ms. Berg, do you recall the teleconference referred to by counsel?” she asked.

“Yes, Your Honor,” Berg said.

There was no emotion in her tone. She had taken the same cue I had when Warfield told me to sit down.

“It appears to me that the state had every opportunity to follow and find this location and the victim’s belongings,” Warfield said. “The court tends to agree with Mr. Haller that this is about work product and a missed opportunity, not about any gamesmanship on the part of the defense. Certainly nothing I would consider a violation of discovery.”

Berg stood but did not move to the lectern, a sign that her protest was going to be half-hearted, no matter what she had scribbled on her legal pad.

“He waited three weeks to put her on the witness list,” she said. “He was hiding her importance. There should have been a written report about the interview and the search of the property. That is exactly what the spirit and intention of discovery is.”

I started to rise to object but the judge made a signal with her hand, gesturing me back into my chair.

“Ms. Berg,” the judge intoned, the first note of annoyance in her voice. “If you are suggesting that Mr. Haller is under an obligation to document his investigation with reports of his moves and interviews just like a law enforcement agency and then immediately decide whether he will call Ms. Dietrich as a witness, then you must take me for a fool.”

“No, Your Honor,” Berg said quickly. “Not at all.”

“Very well, then. We’re done here. The motion for sanctions is denied.”

The judge looked over at the calendar that hung on the wall over the clerk’s corral.