Майкл Коннелли - The Law of Innocence

“So, now your work begins,” she said. “Remember as you go, opening statements are basically all talk. Not evidence. Ms. Berg spoke to you for ninety minutes but she did not give you any evidence. It was just talk. The defense wants to get to the evidence — or in the state’s case, the lack of evidence. We want to prove to you that the state has made a terrible mistake and charged the wrong man — an innocent man — with this crime.”

Maggie raised her hand and pointed to me at the defense table.

“That man is innocent,” Maggie McFierce said. “And there is really nothing else to say. We don’t have to prove his innocence in order for you to return a verdict of not guilty. But I promise you we will.”

She paused to underline the emphatic statement and looked down at the notes on her legal pad.

“You are going to hear two stories in this trial,” she continued. “The prosecution’s story and our story. The prosecution will point the finger at the defendant. We will show that a man whose name the state will never mention and doesn’t want you to even know is responsible for the death of Sam Scales. Only one of these stories can be true. We ask for your patience and diligence and hope that you will keep an open mind and wait for the defense’s case. Again, only one story can be true, and you will choose it. Pay careful attention to the facts. But be aware that facts can be twisted. We will show that as we go. You all were given notebooks. Keep tabs on who is twisting the facts and who is not. Write it down so that when you go into the deliberations at the end of this trial, you know the facts and you know who told the truth and who didn’t.”

Maggie paused to take a drink from her glass of water. It was a trial attorney’s trick. Always take a prop like a glass of water to the lectern when giving an opening statement or closing argument. Taking a drink of water allows one to underline an important statement or to collect thoughts before proceeding.

After putting the glass down, she moved toward her closing.

“A trial is a search for truth,” she said. “And in this trial you are the truth seekers. You must be unbiased and undaunted. You must question everything. Question everything every witness says from the stand. Question their words, question their motives. Question the prosecutor, question the defense. Question the evidence. If you do that, you will find the truth. And that is, that the wrong man sits now at the defense table while there is a killer out there still. Thank you.”

She took her glass and her pad and returned to the defense table. I turned to her as she sat down and I nodded.

“Great start,” I whispered.

“Thank you,” she whispered back.

“Better than I could ever do.”

She squinted like she wasn’t sure what she had just heard was true.

But I meant it. It was true.

The prosecution is always tasked with establishing the timeline, presenting the evidence with a clear starting and ending point. It is linear storytelling and is sometimes long and laborious, but required. In order to get to the body found in the trunk of my Lincoln, Dana Berg had to tell the jury how it came to be that my car was stopped and the trunk opened. That meant she had to start with Officer Roy Milton.

Milton was called to the witness stand directly after the lunch break and Berg quickly set up through testimony where he was and what he was doing when he noticed my car had no rear plate and pulled me over. She then used Milton to introduce the videos from his car and body cam, and the jury had a visceral you-are-there experience in the finding of Sam Scales in the trunk of my Lincoln.

I carefully watched the jurors during the playing of the body cam. Some were clearly repulsed when the Lincoln’s trunk came open and the body was revealed. Some leaned into it, fascinated, it seemed, by the discovery of the murder.

As the testimony proceeded, Maggie tracked what Milton was saying against a transcript of his testimony from the discovery hearing back in December. Any contradiction could be brought up and called out during cross-examination. But Milton stuck close to the previous story, in some cases using the same wording — a sign that prior to trial he had been coached by Berg not to stray from what was already on the record.

Milton’s sole purpose as a witness was to get the videos into evidence and in front of the jury. They were a powerful start to the case for the state. But then it was my turn to take on Milton in cross-examination. I had waited two months for this and my measured and polite questioning during the hearing in December would be a thing of the past. I adjusted the microphone on the lectern and went right at him with the first question. My goal was to rattle him in any way I could for as long as I could. I knew that if I succeeded, I would be rattling Dana Berg as well.

“Officer Milton, good afternoon,” I began. “Can you please tell the jury who it was that told you to follow and then conduct a traffic stop of the Lincoln Town Car I was driving on the night of October twenty-eighth?”

“Uh, no, I can’t,” Milton said. “Because that didn’t happen.”

“You are telling this jury that you received no prior notice or instruction to pull me over on a traffic stop after I left the Redwood Bar?”

“That is correct. I saw your car and noticed it had no plate and—”

“Yes, we heard what you told Ms. Berg. But what you are telling me and this jury now is that you received no direction to pull me over. Is that correct?”

“Correct.”

“Did you receive a radio call telling you to stop me?”

“No, I did not.”

“Did you receive a message on your car’s computer terminal?”

“No, I did not.”

“Did you receive a call or a text message on your personal cell phone?”

“No, I did not.”

Berg stood and objected, saying that I was repeatedly asking the same question.

“The question has been asked and answered, Your Honor,” she said.

Warfield agreed.

“It’s time to move on, Mr. Haller,” she said.

“Yes, Your Honor,” I said. “So, Officer Milton, if I were to produce a witness at this trial who alerted you to the fact that I was leaving the bar, then that person would be lying, correct?”

“Yes, that would be a lie.”

I looked up at the judge and asked if the attorneys could approach the bench. She waved us up. I got there first and waited for Berg and McPherson to join.

“Judge,” I said. “I’d like to set up my own playback of the videos from the patrol car and Officer Milton’s body cam.”

Berg raised her hands palms up in a what-gives? gesture.

“We just watched the videos,” she said. “Are we trying to bore the jury to death?”

“Mr. Haller, explain,” Warfield said.

“My tech guy has put them side by side on one screen and time-coordinated them,” I said. “The jury will see them simultaneously and be able to see what happens inside the car at the same moment as things are happening on the street.”

“Your Honor, the People object,” Berg said. “We have no way of knowing whether these have been edited or altered by this so-called tech guy. You can’t allow this.”

“Judge, we don’t know if the prosecution edited or altered what they played for the jury,” I said. “I will provide a copy to the prosecution and they can examine it all they want. If they find that it was altered, I’ll turn in my bar ticket. But what’s really happening here is that the prosecution knows just where I’m going with this, knows that it is indeed probative, and she simply doesn’t want the jury to see it. This is a search for truth, Judge, and the defense has the right to put this before the jury.”