“Your Honor,” Forsythe said. “In light of these events and the recovery time the victim will certainly need, the state moves for a mistrial. I really don’t see any alternative. We will not be able to guarantee the integrity of the trial or the jury if the case is continued until the defendant reaches a condition in which he can come back to court—if he ever reaches that condition.”
The judge nodded and looked at me.
“Does that make sense to you, Mr. Haller?”
“No, Your Honor, not at all. But I would like my colleague Ms. Aronson to respond to Mr. Forsythe. She is better prepared than me. I spent the night at the hospital with my client.”
The judge nodded to Jennifer, and she responded with a beautiful and unrehearsed argument against mistrial. With every sentence I grew prouder of the fact that I had picked her for my team. Without a doubt she would someday leave me in the dust. But for now she was working for me and with me, and I could not have done better.
Her argument had three concise points, the first being that to declare a mistrial would be prejudicial to the defendant. She cited the cost of mounting the defense and the continuation of Andre La Cosse’s incarceration; the physical toll it would take; and the simple fact that with the prosecution team having seen most of the defense’s case, it would be allowed with a mistrial to retool and be better prepared for the next trial.
“Your Honor, that is not fair in any perception,” she said. “It is prejudicial.”
In my opinion that argument was good enough on its own to win the day. But Jennifer hammered it down with her next two points. She cited the cost to taxpayers that a new trial would certainly entail. And she concluded that the administration of justice was best served in this case by allowing the trial to continue.
These last two points were particularly genius because they hit the judge where she lived. A judgeship was an elected office, and no jurist wants to be called out by an opponent or a newspaper for wasting taxpayer dollars. And the “administration of justice” was a reference to the discretion the judge had in making this decision. Leggoe’s ultimate goal was the administration of justice in this matter and she had to consider whether cutting and running on the case allowed for it or precluded it.
“Ms. Aronson,” the judge said after Jennifer submitted, “your argument is cogent and persuasive, but your client is in a hospital bed in a critical care unit. Surely you’re not suggesting that we bring the jury to him. I think the court is faced with a dilemma here with only one solution.”
This was the only part that was rehearsed. The best way to get what we wanted was to lead the judge to it, not come out of the gate with it.
“No, Judge,” Jennifer said. “We think you should proceed with the case without the defendant present, after admonishing the jury not to consider the defendant’s absence.”
“That’s impossible,” Forsythe blurted out. “We get a conviction and it will be reversed on appeal in five minutes flat. The defendant has the right to face his accusers.”
“It won’t be reversed if the defendant has knowingly waived his right to appear,” Jennifer said.
“Yeah, that’s great,” Forsythe responded sarcastically, “but last I heard, your client is lying unconscious in a bed and we have a jury sitting out there in the box ready to go.”
I reached into my inside jacket pocket and pulled the waiver I had taken to County/USC the night before. I handed it across the desk to the judge.
“That is a signed waiver of appearance, Judge,” I said.
“Wait a minute, wait a minute,” Forsythe said, the first notes of desperation creeping into his voice. “How can that be? The man’s in a coma. I doubt he could sign anything, let alone knowingly sign it.”
The judge handed the waiver to Forsythe. Lankford leaned over from his chair to look at the signature.
“I was at the hospital all night, Judge. He was in and out of consciousness, which is not the same as being in a coma. Mr. Forsythe is throwing around medical terms he doesn’t know the meaning of. That aside, during my client’s periods of consciousness he expressed to me the strong desire to continue the trial in his absence. He doesn’t want to wait. He doesn’t want to have to go through this again.”
Forsythe shook his head.
“Look, Judge, I don’t want to accuse anyone of anything but this is impossible. There’s just no way that this—”
“Your Honor,” I said evenly, as though it didn’t bother me that Forsythe was calling me a liar. “If it will help with your decision, I have this.”
I pulled my cell phone and opened up the photo app. I went to the camera roll and expanded the shot I had taken in my client’s hospital room. It showed Andre in his bed, propped at a forty-five-degree angle, a bed table positioned across his midsection. His right hand was on the table, holding a pen and signing the waiver. The shot was angled down from Andre’s right side. The angle and the swelling around his eyes made it impossible to tell if his eyes were open or closed.
I handed the phone to the judge.
“I had a feeling Mr. Forsythe would object, so I took this quick shot. Something I learned from my process server. There was also a deputy on the room named Evanston. If necessary, we can wake him up and bring him to court to attest to the signature.”
The judge pointedly handed the phone back to me instead of letting Forsythe look.
“The photo isn’t necessary, Mr. Haller. You’re an officer of the court and I take you at your word.”
“Your Honor?” Forsythe said.
“Yes, Mr. Forsythe?”
“I would like to request a brief delay to allow time for the state to consider and formulate a response to the defense.”
“Mr. Forsythe, this is your motion, and on top of that, you were the one just moments ago reminding the court that there was a jury waiting to proceed.”
“Then, Your Honor, the state requests that the court conduct a thorough examination of the defendant and assure that the waiver Mr. Haller purportedly has was indeed voluntarily and knowingly signed by the defendant.”
I had to head this off before one of Forsythe’s desperate attempts to stop the trial took hold.
“Your Honor, Mr. Forsythe is a desperate man. He obviously will say anything to stop this trial. You have to ask yourself why and I think the answer is that he knows he is going down. We are proving that Mr. La Cosse is innocent in there, and the jury, the gallery, everyone, knows it, including Mr. Forsythe. And so he wants to stop it. He wants a court-sanctioned do-over. Judge, are you really going to allow this? My client is an innocent man and he has been jailed and abused and deprived of everything, including possibly his very life. The administration of justice demands that this trial continue. Right now. Today.”
Forsythe was about to bark back, but the judge held up her hand to stop him. She was set to make the call but was interrupted by a buzzing from the phone on her desk.
“That’s my clerk.”
Meaning that she had to take the call. I winced. I felt that I had her and that she was about to deny the motion for mistrial.
She picked up the phone and listened to something briefly, then hung up.
“James Marco is in the courtroom with an attorney from the DEA,” she said. “He’s ready to testify.”
She let that sink in for a few moments and then continued.
“The motion for a mistrial is denied. Mr. Haller, you will call your next witness in ten minutes.”
“Your Honor, I must strenuously object to this,” Forsythe said.
“Strenuously noted,” Leggoe responded, a harshness in her voice.
“I request that these proceedings be stayed while the state takes the matter up on appeal.”