He shrugged.
“Then I was probably watching Sunday Night Football. I don’t know for sure. Does that make me guilty of something?”
I waited, but nothing more came.
“The way it usually works is that I ask the questions,” I said.
“Sure,” he said. “Ask away.”
“What about two nights ago on Monday? Do you remember where you were that night?”
Marco didn’t answer for a long moment. I think he realized that he might be standing in the middle of a minefield. In the silence, I heard the rear door of the courtroom open and turned to see Lankford returning, one of the courtroom deputies behind him.
“I was on a surveillance,” Marco finally said.
I turned back to the witness stand.
“A surveillance of whom?” I asked.
He shook his head.
“That’s a case. I’m not going to talk about it in open court.”
“Was that surveillance on Salem Street in Glendale?”
Again he shook his head.
“I’m not going to talk about open investigations in court.”
I stared at him for a long time, wondering how far I should push him.
I finally decided to wait and looked up at the judge.
“Your Honor, I have no further questions at this time but I request that the court hold Agent Marco as a witness so that I can recall him later today.”
The judge frowned.
“Why can’t you finish your direct now, Mr. Haller?”
“I need to take testimony from another witness this morning, and from that testimony I will draw the final questions I’ll have for Agent Marco. I appreciate the court’s ongoing indulgence of the defense’s presentation.”
Leggoe asked Forsythe if he had an issue with my plan.
“Judge, the people have grown very weary of defense counsel’s flights of fancy but once more we are willing to take the ride. I know this will be another crash-and-burn and forgive me but I just can’t look away.”
The judge asked Forsythe if he wanted the opportunity to cross-examine Marco before he stepped down. This would be in addition to the opportunity he would have after I brought the DEA agent back to the stand in the afternoon. Without much thought, he opted to wait to conduct one uninterrupted cross-examination. And as a safety measure, he reserved the right to call Marco back to the stand even if I didn’t.
The judge told Marco he could step down but ordered him to return to the court at one p.m. She then told me to call my next witness.
“The defense calls Lee Lankford.”
I turned to look at Lankford. He was slowly starting to stand.
“And, Your Honor, we’re going to need the audio-visual remote for a video demonstration.”
I made sure I requested it before Marco and his attorney got out of the courtroom. I wanted them thinking about the video I planned to play.
42
Lankford walked with a steady but slow pace to the witness stand, his eyes staring at a fixed point on the wall behind it. I watched him closely. He looked like a man who was running equations internally while running on autopilot externally. I thought this was a good sign, that he was realizing his one way out was through me. I decided I would know pretty quickly into his testimony which path he had chosen.
As the DA’s investigator assigned to the case, Lankford had been granted a standard exception that allowed him to remain in court even though he had been listed as a witness by the defense. This meant that going all the way back to jury selection he had been a familiar presence to the jurors as he sat each day against the railing behind Forsythe. But he had never been introduced before the moment I made him stand and be identified during Hensley’s testimony the day before. So I walked him through who he was and what he did, and I included his background as a former Glendale homicide detective, even though that information had been revealed earlier by Marco.
I then moved into matters intrinsic to the defense case. It seemed to me that all the tendrils of the case had led me to this one witness. It all came down to this moment.
“Okay,” I said. “Now let’s talk about this specific case. How did it work? Were you assigned to this prosecution or did you request it?”
Lankford sat with his eyes cast downward. His posture and demeanor indicated he had not heard the question. He remained motionless and said nothing for several seconds. The silence stretched to the point that I felt the judge was on the verge of prompting him when he finally spoke.
“We normally have a rotation when it comes to murder cases.”
I nodded and was formulating a follow-up when Lankford continued.
“But in this case I personally requested the assignment.”
I paused, waiting for Lankford to say more, but he was silent. Still, I interpreted his full answer as a strong indication that we had come to a tacit agreement earlier.
“Why did you request it?”
“I had been assigned previously to a murder case in which the prosecutor was Bill Forsythe and we had worked well together. At least, that was the reason I gave.”
Lankford looked directly at me when he added the last sentence. I believed there was some kind of message in it. There was almost a pleading look in his eyes.
“Are you saying you had an ulterior motive for requesting the case?”
“Yes. I did.”
I could almost feel Forsythe tightening up as he sat at the table next to the lectern.
“What was that motive?”
“I wanted to be on the case so I could monitor it from the inside.”
“Why?”
“Because I was told to.”
“You mean by a supervisor?”
“No, I don’t mean a supervisor.”
“Then by who?”
“James Marco.”
I don’t think in all the thousands of hours I have spent in courtrooms that I had ever had such a moment of clarity. But I knew the moment that Lankford said the name James Marco that my client, if he was to survive his injuries, would be set free. I looked down at the top sheet of my yellow legal pad and composed myself for a moment before continuing.
And in that moment, Forsythe rose in slow motion, as if knowing by reflex that he had to stop this but being unsure of how to do it. He asked for a sidebar and the judge told us to come forward. As we assembled in front of the judge, I actually felt sorry for Forsythe because of the predicament the prosecutor was in.
“Judge,” he said, “I would like to request a fifteen-minute recess so I can confer with my investigator.”
“That’s not going to happen, Mr. Forsythe,” Leggoe responded. “He’s a witness now. Anything else?”
“I’m being sandbagged here, Judge. This—”
“By Mr. Haller or your own investigator?”
Forsythe stood frozen.
“Go back, gentlemen. And Mr. Haller, continue with the witness.”
I went back to the lectern. Forsythe sat down and stared straight ahead, bracing for what was coming.
“You said that Agent Marco told you to monitor this case?” I asked Lankford.
“Yes,” he said.
“Why is that?”
“Because he wanted to know whatever we could find out about Gloria Dayton’s murder investigation.”
“He knew her?”
“He told me she was his informant a long time ago.”
I made a mark on my legal pad, checking off one of the points I had wanted to make through Lankford’s testimony. I glanced over at the jury box. Twelve for twelve, plus two alternates, they were riveted. And so was I. I had chosen Lankford over Marco as the weaker part of the conspiracy. He saw the Sterghos house video and, of course, knew he was the man in the hat. He knew that his only way out was to carefully attempt to pick his way through his testimony without snagging himself on perjury or self-incrimination. It was going to be hard to do.