I cleared my throat but the judge stepped in first.
“We handled the issue of third-party guilt in pretrial, Ms. Freeman. I am allowing the defense the leeway to pursue it to a point. But you have to give me something here. Just because you don’t want Mr. Haller to pursue this target letter doesn’t make it irrelevant.”
“I understand that, Judge. But what-”
“Excuse me,” I said. “Do I get a turn here? I’d like the chance to respond to the insinuation that I’m pushing-”
“Let Ms. Freeman finish and then you’ll get a good long tug, Mr. Haller. I promise you that. Ms. Freeman?”
“Thank you, Your Honor. What I’m trying to say is that a federal target letter essentially means almost nothing. It is a notice of a pending investigation. It is not a charge. It’s not even an allegation. It doesn’t mean that they have found something or will find something. It is simply a tool used by the feds to say, ‘Hey, we heard something and we’re going to look into it.’ But in Mr. Haller’s hands in front of the jury, he’s going to spin this into the harbinger of doom and attach it to someone not even on trial here. Lisa Trammel is the one on trial and this whole thing about federal target letters is not even remotely relevant to the material issues. I would ask that you disallow Mr. Haller from making any further inquiry of Detective Kurlen in this regard.”
The judge was leaning back with his hands in front of his chest, the fingers of each hand pressed against each other. He swiveled to face me. Finally, my cue.
“Judge, if I were in Your Honor’s position, I think that I would ask counsel, since she says she thoroughly vetted this letter and its origin, if there is a sitting federal grand jury looking into foreclosure fraud in Southern California. And then I would ask how she has concluded that a federal target letter amounts to ‘almost nothing.’ Because I don’t think the court is getting a very accurate assessment of what the letter means or what its impact is on this case.”
The judge swiveled back to Freeman and broke one of his fingers free to point in her direction.
“What about that, Ms. Freeman? Is there a grand jury?”
“Judge, you are putting me in an awkward position here. Grand juries work in secret and-”
“We’re all friends here, Ms. Freeman,” the judge said sternly. “Is there a grand jury?”
She hesitated and then nodded.
“There is a grand jury, Your Honor, but it has not heard any testimony in regard to Louis Opparizio. As I said, the target letter is nothing more than a notice of a pending investigation. It’s hearsay, Judge, and it doesn’t fit into any exception that would speak to its admissibility in this trial. Though the letter was signed by the U.S. attorney for this district, it was actually authored by a Secret Service agent handling the inquiry. I have the agent waiting downstairs in my office. If the court wishes, I can have him in chambers in ten minutes to tell you exactly what I just did. That this is a lot of smoke and mirrors on Mr. Haller’s part. At the time of Mr. Bondurant’s death there was no active investigation yet and no connection between the two. There was just the letter.”
That was a mistake. By revealing that Vasquez, the Secret Service agent who penned the target letter, was in the building, Freeman had put the judge into a difficult position. That the agent was nearby and easily accessible would make it harder for the judge to dismiss the issue out of hand. I stepped in before the judge could respond.
“Judge Perry? I would suggest that, since counsel says she has the federal agent who wrote the letter right here in the courthouse, she simply put him on the stand to counter anything that I might draw from Detective Kurlen on cross-examination. If Ms. Freeman is so sure the agent will say the target letter he wrote amounts to nothing, then let him tell the jury that. Let him blow me out of the water. I remind the court that we’ve already dipped our toes into these waters. I asked Kurlen about the letter yesterday. To simply go back out there and not mention it again or have you tell the jurors to un-ring the bell and dismiss it from memory… that could be more damaging to our collective cause than a full airing of this issue.”
Perry answered without hesitation.
“I tend to think that you are correct about this, Mr. Haller. I don’t like the idea of leaving the jury all night with this mysterious target letter to ponder and then pulling the rug out from under them this morning.”
“Your Honor,” Freeman said quickly. “May I be heard once more?”
“No, I don’t think that is necessary. We need to stop wasting time in here and get the trial started.”
“But, Your Honor, there is one other exigent issue the court has not even considered.”
The judge looked frustrated.
“And what is that, Ms. Freeman? My patience is drawing thin.”
“Allowing testimony about a target letter directed at the defense’s key witness will likely complicate that witness’s previous decision not to invoke his Fifth Amendment rights during testimony in this case. Louis Opparizio and his legal counsel may well reconsider that decision once this target letter is introduced and discussed publicly. Therefore, Mr. Haller may be building a defense case that ultimately results in his key witness and straw man, if you will, refusing to testify. I want it on record now that if Mr. Haller plays this game he must abide by the consequences. When Opparizio decides next week that it’s in his best interest not to testify and asks for a new hearing on the subpoena, I don’t want defense counsel crying to the court for a do-over. No do-overs, Judge.”
The judge nodded, agreeing with her.
“I guess that would be tantamount to the man who killed his parents asking the court to show mercy on him because he’s an orphan. I’m in agreement, Mr. Haller. You are on notice that if you play it this way you must be prepared to shoulder the consequences.”
“I understand, Judge,” I said. “And I will make sure my client does as well. I only have one point of argument and that is counsel’s labeling of Louis Opparizio as a straw man. He’s no straw man and we’ll prove it.”
“Well,” the judge said, “at least you’ll get a chance to. Now time is wasting. Let’s get back into the courtroom.”
I followed Freeman out, leaving the judge behind while he put on his robe. I expected her to hit me with a verbal assault but I got the opposite.
“Well played, Counselor,” she said.
“Thanks, I think.”
“Who do you think sent you the letter?”
“I wish I knew.”
“Have the feds contacted you? My guess is they’re going to want to find out who’s leaking sensitive and confidential documents to the public.”
“Nobody’s said jack yet. Maybe it was the feds who leaked it. If I get Opparizio on the stand he’s stuck with his testimony. Maybe I’m just an instrument of the federal government here. Ever think of that?”
The suggestion seemed to put a pause in her step. As I passed her I smiled.
As we entered the courtroom I saw Herb Dahl in the front row of the gallery behind the defense table. I suppressed the urge to pull him over the rail and pound his face into the stone floor. Freeman and I took our positions at our respective tables and in a whisper I filled my client in on what had happened in chambers. The judge entered and brought the jury in.
The last piece of the picture was filled in when Detective Kurlen returned to the witness stand. I grabbed my files and legal pad and went back to the lectern. It seemed like a week since my cross-examination had been interrupted but it had been less than a day. I acted as though it had been less than a minute.