Майкл Коннелли - The Law of Innocence

The morning session was largely just nuts and bolts. She walked Drucker through the initial phase of the investigation, from his callout at his home out in Diamond Bar to the full crime scene investigation. She did the smart thing and owned all the mistakes that had been made, revealing through Drucker that the victim’s wallet had somehow gone missing from either the crime scene or coroner’s office.

“And did you ever recover the wallet?” Berg asked.

“Not yet,” Drucker said. “It’s just... gone.”

“Was there an investigation into the theft?”

“There’s an ongoing investigation.”

“And did losing the wallet hamper the homicide investigation?”

“To some extent, yes.”

“How so?”

“Well, we were able to identify the victim pretty quickly from fingerprints, so that was not an issue. But the victim’s criminal history indicated that he changed IDs frequently and adopted a new name, address, bank account, et cetera with each new scam that he perpetrated. My thinking was that the wallet contained the documentation of whatever identity he was using at the time of the murder. That was gone and it would have been useful to have that from the start.”

“Did you eventually find that identity?”

“We did, yes.”

“How?”

“We learned it through discovery in this case. The defense team had that information and we eventually figured it out when they put the name of the victim’s landlord on their witness list.”

“The defense team? Why would they have it ahead of the police?”

I objected, telling the judge that the question asked for speculation. But the judge wanted to hear the answer and overruled. It emboldened Drucker, with long experience testifying in murder trials, to go a step too far.

“I’m not clear on how the defense got ahead of us,” he said. “The defendant exercised his rights and stopped talking to us after his arrest.”

“Objection!” I bellowed. “The witness has just disparaged my Fifth Amendment right to remain silent and not be compelled to testify against myself.”

“Approach the bench,” the judge said angrily, glaring at Berg as she walked to the sidebar.

Maggie joined me at the bench. I could tell she was as angry as I was at Drucker’s cheap shot.

“Mr. Haller, you have made your objection,” Warfield said. “Are you requesting a mistrial?”

Berg interrupted to say, “Your Honor, I hardly think that—”

“Be quiet, Ms. Berg,” Warfield snapped. “You’ve been a prosecutor for long enough to know that you must instruct your witnesses never to comment on a defendant’s right to remain silent after arrest. I consider this prosecutorial misconduct and will take it under advisement to be dealt with at a later time. For now, I would like to hear from Mr. Haller.”

“I’d like an instruction,” I said. “In the strongest terms possible. I have a—”

“I’m capable of fashioning a suitable instruction, Mr. Haller,” Warfield said. “But I want to make certain that you are waiving any request for further remedy.”

“I am not moving for a mistrial, Your Honor,” I said. “I am on trial for a crime I didn’t commit. I am here for exoneration, not just acquittal. Even if the court were to grant motions for mistrial and to dismiss with prejudice based on prosecutorial misconduct, there would forever be a cloud of suspicion over me. I want my trial and I will be satisfied with a strongly worded jury instruction.”

“Very well,” Warfield said. “Your motion is granted and I will instruct the jury. You can all step back now.”

Once we were all seated, the judge turned to face the jury.

“Members of the jury, Detective Drucker just now unfairly commented on Mr. Haller’s constitutional right to remain silent,” she said. “A bell once rung cannot be unheard, but I instruct you to disregard the comment and not to infer from it any evidence of guilt. The Fifth Amendment to the United States Constitution grants to any person accused of a crime the right to remain silent and not to be compelled to incriminate himself. This right is as old as this country. There are good reasons for it that are too numerous to review with you now. Suffice it to say that in this case, as you have heard, Mr. Haller is a criminal defense lawyer and he has a firm grasp on why an accused would not want to submit to an interrogation by his accusers. He was well within his rights to decline to speak following his arrest. Detective Drucker, on the other hand, ought to know better than to even mention the assertion of a constitutional right to remain silent. So, because it is so fundamental and important to our justice system, I repeat: Disregard the comment on Mr. Haller’s post-arrest invocation of his right to remain silent, and do not infer from it any evidence of guilt.”

The judge then turned slightly to focus on Drucker. His face was already red from humiliation.

“Now, Detective Drucker,” she said. “Do you need time to review with Ms. Berg how to testify without unconstitutional, unfair, and unprofessional comment?”

“No, Judge,” Drucker mumbled, staring straight ahead.

“Look at me when I address you,” Warfield said.

Drucker turned his whole body in the witness stand to look up at her. The judge’s penetrating glare held his for what he must have considered an eternity. Then she turned the lasers on Berg.

“You may resume your inquiry, Ms. Berg,” she said.

Resuming her position at the lectern, Berg asked: “Detective, do you know whether the defendant knew Sam Scales?”

“Over a period of years, Michael Haller appeared as counsel of record in almost every criminal case brought against Sam Scales. He had a long-term relationship with the victim and most likely knew his routines and practices.”

“Objection!” I said indignantly. “Again, Your Honor, speculation.”

The judge pinned the witness with her scowl.

“Detective Drucker,” she said. “You will confine your testimony to what you know from personal observation and experience. Do I make myself clear?”

“Yes, Judge,” the twice-chastened detective said.

“Continue, Ms. Berg,” Warfield said.

Berg was trying to turn an investigative failure on the part of the police into suspicion of the defense and the defendant. I knew I might be hanging a lantern on the suspicion the prosecution was throwing at me, but a few stern warnings from the judge to the prosecution were an unexpected victory, and they blended well with my strategy of exposing the investigation and prosecution as sloppy and unfair.

It was good to get these little victories in the midst of a long stretch of pro-prosecution testimony. You take them where you can get them. I soon returned to writing notes on my legal pad to remind myself to hit these strategy buttons harder during cross-examination — whenever that would finally be.

Berg continued to question Drucker right up until the lunch break and by then had only covered the first night’s investigation. There was more to come in the afternoon session and it was becoming increasingly clear that I would not get my shots at the detective until after the weekend. I checked the jury as they were filing out of the box to leave for lunch. I saw a lot of stretching of arms and signs of lethargy. The chef even yawned. It was okay for them to grow tired of the prosecution’s case, just as long as they hadn’t already made a decision about me.

I took lunch in the courtside holding tank with Maggie and Cisco. The judge had allowed them to bring food in to me during the lunch-break working sessions. Friday’s meal came from Little Jewel and I devoured the shrimp po’boy like a man who has just been rescued from a life raft found floating in the middle of the Pacific. We talked about the case, though I had my mouth full most of the time.