Freeman wanted a comeback but the judge didn’t allow it. I took that as a good sign until I saw him looking at the calendar hanging on the wall behind the clerk’s corral. That told me he was only willing to ameliorate the situation with time. He was going to allow the DNA into evidence and would just give me extra time to prepare for it.
I sat back down in defeat. Lisa Trammel leaned toward me and desperately whispered, “Mickey, this can’t be. It’s a setup. There’s no way his blood could be on those shoes. You have to believe me.”
I put my hand up to cut her off. I didn’t have to believe a word out of her mouth and that was all beside the point. The reality was that the case was shifting. No wonder Freeman had all her confidence back.
Suddenly I realized something. I quickly stood back up. Too quickly. Pain shot down my torso into my groin and I bent over the defense table.
“Your… Honor?”
“Are you all right, Mr. Haller?”
I slowly straightened up.
“Yes, Your Honor, but I need to add something to the record, if I may.”
“Go ahead.”
“Your Honor, the defense questions the veracity of the prosecution’s claim of learning about this DNA result only this morning. Three weeks ago Ms. Freeman offered my client a very attractive disposition, giving Ms. Trammel twenty-four hours to think it over. Then-”
“Your Honor?” Freeman said.
“Don’t interrupt,” the judge commanded. “Continue, Mr. Haller.”
I had no qualms about breaking my agreement with Freeman not to reveal the disposition negotiations. The gloves were off at this point.
“Thank you, Your Honor. So we get the offer on a Thursday night and then on Friday morning Ms. Freeman mysteriously yanks it right back off the table without explanation. Well, I think we now have that explanation, Judge. She knew back then-three weeks ago-about this supposed DNA evidence but decided to sit on it in order to surprise the defense with it on the eve of trial. And I-”
“Thank you, Mr. Haller. What about that, Ms. Freeman?”
I could see the skin around the judge’s eyes had drawn tight. He was upset. What I had just revealed had the ring of truth to it.
“Your Honor,” Freeman said indignantly. “Nothing could be further from the truth. I have with me in the gallery here Detective Kurlen who will be happy to testify under oath that the DNA report was delivered over the weekend to his office and opened by him shortly after his arrival at seven thirty this morning. He then called me and I brought it to court. The district attorney’s office has not sat on anything and I resent the aspersion directed at me personally by counsel.”
The judge glanced out to the rows of seats and spotted Kurlen, then looked back at Freeman.
“Why did you withdraw the offer a day after making it?” he asked.
The million-dollar question. Freeman seemed unsettled that the judge would carry the inquiry any further.
“Judge, that decision involved internal issues perhaps better not aired in court.”
“I want to understand this, Counsel. If you want this evidence then you better allay my concerns, internal issues or not.”
Freeman nodded.
“Yes, Your Honor. As you know, there is an interim district attorney since Mr. Williams joined the U.S. Attorney General’s Office in Washington. This has resulted in a situation where we don’t always have clear lines of communication and direction. Suffice it to say that on that Thursday I had a supervisor’s approval for the offer I made to Mr. Haller. But on Friday morning I learned from a higher authority in the office that the offer was not approved internally and so I withdrew it.”
It was a load of crap but she had delivered it well and I had nothing that contradicted it. But when she told me the offer was gone that Friday I knew by the tone of her voice that she had something new, something else, and her decision had nothing to do with internal communication and direction.
The judge made his ruling.
“I am going to put back jury selection ten court days. This should give the defense time to have DNA testing of the evidence completed if it chooses to do so. It also allows ample time to consider what strategic change will come with this information. I will hold the state responsible for being totally cooperative in this matter and in getting the biological material to the defense without delay. All parties will be prepared to begin jury selection two weeks from today. Court is adjourned.”
The judge quickly left the bench. I looked down at the empty page on my legal pad. I had just been eviscerated.
Slowly I started packing my briefcase.
“What do we do?” Aronson asked.
“I don’t know yet,” I said.
“Run the test,” Lisa Trammel said urgently. “They’ve got it wrong. It can’t be his blood on my shoes. This is unreal.”
I looked at her. Her brown eyes fervent and believable.
“Don’t worry. I’ll figure something out.”
The optimism tasted sour in my mouth. I glanced over at Freeman. She was looking through files in her briefcase. I sauntered over and she gave me a dismissive look. She wasn’t interested in hearing my tale of woe.
“You look like things just went exactly the way you wanted them to go,” I said.
She showed nothing. She closed her case and headed toward the gate. Before pushing through she looked back at me.
“You want to play hardball, Haller?” she said. “Then you have to be ready to catch.”
Nineteen
The next two weeks went by quickly but not without progress. The defense rethought and retooled. I had an independent lab confirm the state’s DNA findings-at a rush cost of four grand-and then assimilated the devastating evidence into a view of the case that allowed for the science to be correct as well as my client’s innocence to be possible, if not probable. The classic setup defense. It would be an additional and natural dimension to the straw-man gambit. I began to believe it could work and my confidence began to rebuild. By the time delayed jury selection finally started, I had some momentum going and rolled it into the effort, actively looking for the jurors who might lend themselves to believing the new story I was going to spin for them.
It wasn’t until the fourth day of jury selection that yet one more Freeman fastball came whistling at my head. We were nearing completion of the panel and it was one of those rare times when both prosecution and defense were happy with the jury’s makeup, but for different reasons. The panel was well stocked with working-class men and women. Home owners who came from two-income households. Few had college diplomas and none had advanced degrees. Real salt-of-the-earth people and this was a perfect composition for me. I was going for people who lived close to the edge in the tough economy, who felt the threat of foreclosure at all times, and would have a hard time looking at a banker as a sympathetic victim.
On the other hand, the prosecution asked detailed financial questions of each prospective juror and was looking for hard workers who wouldn’t see someone who stopped paying her mortgage as a victim, either. The result, until the morning of the fourth day, was a panel full of jurors neither side objected to and who we each thought we could mold into our own soldiers of justice.
The fastball came when Judge Perry called for the midmorning break. Freeman immediately stood up and asked the judge if counsel could meet in chambers during the break to discuss an evidentiary issue that had just come up. She asked if Detective Kurlen could join the meeting. Perry granted the request and doubled the break time to a half hour. I then followed Freeman, who followed the court reporter and the judge into chambers. Kurlen came in last and I noticed that he was carrying a large manila envelope with red evidence tape on it. It was bulky and appeared to have something heavy inside. The paper envelope was the real giveaway, though. Biological evidence was always wrapped in paper. Plastic evidence bags trapped air and humidity and could damage biologicals. So I knew going in that Freeman was about to drop another DNA bomb on me.