“Mr. Haller?” the judge prompted. “Ask your next question.”
I looked at Fulgoni and thought about which way to go, now that I had Marco’s name before the jury.
“Mr. Haller!” the judge prompted again.
“Yes, Your Honor,” I said quickly. “Mr. Fulgoni, where did you get the name James Marco as Gloria Dayton’s supposed DEA handler?”
“From Trina Rafferty. She said that both she and Gloria worked for Marco as snitches.”
“Did Trina Rafferty say whether Marco asked her to plant the gun in Mr. Moya’s hotel room?”
Before Fulgoni could answer, Forsythe objected angrily, calling the whole line of questioning hearsay. The judge sustained it without allowing argument from me. I asked for a sidebar, and the judge reluctantly signaled us up to the bench. I got right into it.
“Your Honor, the defense finds itself between a rock and a hard place. The court has sustained the objection against hearsay testimony from the witness. That leaves me no alternative but to at least try to get the testimony directly from Agent Marco. As you know, Marco was on the original witness list submitted nearly four weeks ago to the court. However, we have been unable to make service of a subpoena to Agent Marco or the DEA in general.”
Leggoe shrugged.
“And what is the remedy you want from the court? To allow hearsay evidence? That’s not going to happen, Mr. Haller.”
I started nodding before she was finished.
“I know that, Judge. But I was thinking that a direct order to appear from you and carrying the blessing of the prosecution could go a long way toward getting Agent Marco into this courtroom.”
Leggoe looked at Forsythe and raised her eyebrows. The ball was now Forsythe’s.
“Your Honor, I am happy to give my blessing,” he said. “Whether it works or not, all Agent Marco will do is show up and deny these outlandish accusations. It will be a highly decorated agent’s word against the word of a whore and I’ll—”
“Mr. Forsythe!” the judge broke in, her voice well above a whisper. “You will show a little more decorum and respect in my courtroom.”
“I apologize, Your Honor,” Forsythe said quickly. “Prostitute. What I meant to say is that this will come down to the agent’s word against the prostitute’s, and the state has no worries when it comes to that.”
Prosecutorial arrogance is a deadly sin when it comes to a criminal court trial. It was the first time I had really seen it in Forsythe and I knew that he might end up eating those words before the case was over.
“Very well, let’s proceed,” the judge said, “I will adjourn for the day fifteen minutes early so that we can fashion the order to appear.”
We returned to our positions and I looked at Fulgoni, waiting for me on the witness stand. He had so far come off as cool, calm, and collected. I was about to change that and take him in a direction we had not discussed or rehearsed in the days building up to the trial.
“Mr. Fulgoni,” I began, “how much of this gun-planting theory did Gloria Dayton confirm for you?”
“None,” Fulgoni said. “I subpoenaed her for a deposition but she was murdered before I ever spoke to her.”
I nodded and looked down at my notes.
“And how long have you been practicing law?”
The abrupt change in direction surprised young Sly.
“Uh, two and a half years next month.”
“And have you been involved in a trial before?”
“You mean in court?”
I almost laughed out loud. If Fulgoni had not been my own witness, I would have destroyed him with that answer. As it was, I needed to damn near leave him for dead before I was finished with my direct.
“Yes, in court,” I said drily.
“None so far. But I know lawyers who say the object is to stay out of the courtroom and to take care of business before it comes to that.”
“Viewing it from where I stand now, that’s not bad advice, Mr. Fulgoni. Can you tell the jury how you, just two years out of law school and never in a courtroom before, landed Hector Moya as a client?”
Fulgoni nodded.
“He was a referral.”
“From whom?”
“My father, actually.”
“And how did that come about?”
Fulgoni gave me a look that I interpreted as a warning that I was crossing into a territory that he had deemed off-limits when we had last discussed his testimony. I gave him a look back that said too fucking bad. I have you under oath. I own you.
I had to prompt him to answer.
“Please tell the jury how your father came to refer Mr. Moya to you.”
“Uh, well, my father is incarcerated in the same federal prison where Hector is. They know each other, and my father referred him to me.”
“Okay, so you took on the case two years out of law school and filed the habeas petition, hoping to have Mr. Moya’s life sentence vacated, correct?”
“Yes.”
“Because the firearm that got him that life sentence was planted.”
“Yes.”
“And you believed it was planted by Gloria Dayton, correct?”
“Correct.”
“Based on what Trina Rafferty told you.”
“Correct.”
“And before filing this habeas petition, did you study the transcript from Mr. Moya’s trial in 2006?”
“Most of it, yes.”
“Did you read the transcript of the sentencing hearing when the judge sent him to life in prison?”
“I did, yes.”
I asked the judge to allow me to approach the witness with a document I entered as the second defense exhibit, the transcript of Hector Moya’s sentencing on November 4, 2006.
The judge approved and I came forward to hand the document to Fulgoni. It was already folded back to a page with highlighted material I wanted him to read to the jury.
“What is that you have there, Mr. Fulgoni?”
“It’s the transcript from the sentencing hearing in federal court. It’s the judge’s comments.”
“Is that what you read when you were preparing to file the habeas on Mr. Moya’s behalf?”
“Yes.”
“Okay. What is the judge’s name?”
“The Honorable Lisa Bass.”
“Can you please read to the jury the quotes from Judge Bass that I have highlighted on the page?”
Fulgoni leaned forward and began reading.
“‘Mr. Moya, the presentencing report on you is abysmal. You have conducted a life full of crime, attaining a high rank in the murderous Sinaloa Cartel. You are a cold and violent man and you have lost all aspects of humanity. You sell death. You are death. And it is my good fortune to be able to sentence you to life in prison today. I wish I could do more. To be honest, I wish you were eligible for the death penalty because I would have used it.’”
He stopped there. The judge’s comments continued but I figured that the jury had a good enough taste of them.
“Okay, so you read that sentencing transcript sometime last year as you prepared the habeas petition on Mr. Moya’s behalf, correct?”
“Yes.”
“Therefore, you knew when you prepared the subpoena for Gloria Dayton what kind of history Mr. Moya had, correct?”
“Yes.”
“So then, Mr. Fulgoni, did it ever cross your mind as a young, inexperienced attorney that it might be dangerous to subpoena Gloria Dayton to a deposition in which you would undoubtedly ask her about planting the gun in Hector Moya’s hotel room?”
“Danger from whom?”
“Let me ask the questions, Mr. Fulgoni. That’s how it works in a real trial.”
There was a slight murmur of laughter from the direction of the jury but I acted as though I hadn’t heard it.
“Didn’t you, Mr. Fulgoni, understand that, by issuing a subpoena and naming Gloria Dayton as the person who planted a gun in Hector Moya’s hotel room, you were placing her in great danger?”