“Objection!” Jennifer yelled.
“Ms. Berg, you know better,” Warfield said. “Leave your sound bites for the reporters, not this court.”
“Yes, Your Honor,” Berg said, her tone falsely contrite.
The judge dismissed Drucker from the witness stand. I knew it was fruitless. The judge would either be canny and object to what the prosecution was doing or let it slide. Warfield asked if there was any further argument and Berg demurred while Jennifer asked to address the court.
“Thank you, Your Honor,” she said. “The court noted earlier that it has wide discretion over bail. The bail schedule is meant to protect the community as well as ensure that defendants accused of crimes are held to answer. To these points, I believe it is clear that Michael Haller is neither a threat to the community nor a threat to flee. He has been free on bond now for six weeks and he hasn’t attempted to flee. He hasn’t threatened the community or anyone associated with this case. In fact, he has sought and received the court’s permission to leave the county and state and yet returned the same night. Your Honor, you do have discretion in the matter and it is in pursuit of a fair trial in this case that I ask that bond be carried over from the original charge and that Mr. Haller be allowed to remain free to defend himself.”
Berg’s comeback was only to remind the judge that rules were rules. She said judicial discretion did not extend to the findings of a grand jury or to the legislature’s decision to make murder for financial gain a no-bail charge.
She then sat down.
I didn’t think we had a winning argument, but the judge built anticipation in the courtroom as she wrote notes before speaking.
“We’ll hear the other motion before I make a decision on this matter,” she said. “We are going to take a ten-minute break first and then we’ll consider Mr. Haller’s six-eight-six motion. Thank you.”
The judge quickly left the bench. And I was left with ten minutes to figure out how to turn things around.
32
It might have been my last chance to walk the halls of the courthouse, even ride the elevator down and step outside to enjoy a few moments of free, fresh air, but I remained at the defense table during the ten-minute break, which actually lasted twenty. I wanted to be alone with my thoughts. I even told Jennifer I didn’t want her next to me when court resumed. She might have been hurt, but she understood my reasoning. It was me against the state, and while I would not be speaking to a jury, I wanted the judge to be reminded of the fact that I was one man standing alone against the power and might of the beast.
I composed myself to be ready at the ten-minute mark and then dealt with the anxiety of waiting in overtime. Finally Warfield came out and retook her position on the bench above everyone.
“Very well, back on the record,” she said. “We have a motion from the defense to compel a speedy trial. Mr. Haller, I see you are now alone at the defense table. You will be arguing this motion?”
I stood up.
“Yes, Your Honor,” I said.
“Very well,” Warfield said. “I hope we can be succinct. Proceed.”
“If it please the court, I will be succinct. What the prosecution has done with its grand jury indictment is attempt to subvert the law and my constitutionally guaranteed right to a speedy trial. It’s a shell game, Your Honor, played by the prosecution not in the furtherance of justice but in the gaming of it. There have been two constants since the very first minutes of this case. One is that I have steadfastly denied these charges and claimed my innocence. The other is my refusal under any circumstances to delay these proceedings for any amount of time.”
I paused for a moment and looked down at the notes I had scribbled on my legal pad. I didn’t need them. I was on a roll. But I wanted the space so the judge could take in my argument in pieces.
“Since day one I have demanded my right to a speedy trial,” I continued. “I have said put up or shut up to the state. I did not commit this crime and I demand my day in court. And as that day has drawn closer and the prosecution knows it’s almost time, they have blinked. They know their case is weak. They know it is full of holes. They know I have innocence and reasonable doubt on my side and they have attempted to thwart my defense at every turn.”
I paused again, this time turning slightly to look back at my daughter and offer a wistful smile. No man should have his daughter see him in this position.
I turned back.
“Judge, every lawyer’s got a bag of tricks — prosecutor, defense attorney, doesn’t matter. There is nothing pure about the law when you get inside a courtroom. It’s a bare-knuckle fight and each side uses whatever it can to bludgeon the other. The constitution guarantees me a speedy trial, but by dropping the original charge and talking a grand jury into a new one, the prosecution is trying to bludgeon me in two ways: stick me in a jail cell so I am handicapped in preparing my defense, and restart the game clock so the state has more time to wield its power and might and shore up their losing case against me.”
This time I kept my eyes on the judge as I paused before the windup.
“Is it legal? Is it within code? Perhaps. I’ll give them that. But is it fair? Is it in the pursuit of justice? Not a chance. You can stick me back in jail, you can delay the search for truth that a trial is supposed to be, but it won’t be the right thing to do and it won’t be fair. The court holds a lot of discretion in this regard and the defense urges you not to restart the clock. Let’s get to the search for the truth now instead of later, instead of at the prosecution’s convenience. Thank you, Your Honor.”
If my words had any impact on Warfield, she didn’t show it. She didn’t write anything down as she had during the earlier motion. She simply swiveled six inches in her high-backed, leather chair so that her gaze shifted from me to the prosecution table.
“Ms. Berg?” she said. “Would the state like to respond?”
“Yes, Your Honor,” Berg said. “I promise to be more succinct than the defense. In fact, Mr. Haller made my argument for me. What we have done with the refiling of the case through grand jury indictment is firmly within the bounds of the law as well as something that happens routinely in this courthouse and courthouses across the country. It is not a do-over or a delay tactic. I am charged with seeking true justice for the victim of this cold-blooded murder. Through the grand jury and the presentation of evidence from the ongoing investigation, we have elected to upgrade the charges in the pursuit of justice.”
In my peripheral vision I saw Berg glance my way as she threw my own words back at me. I did not give her the satisfaction of a look back.
“Your Honor, the case against the defendant is strong and getting stronger as the investigation of this crime continues. That’s what the defendant knows, that is what he is trying to subvert: a search for truth with all the evidence on the table. It is his hope that by hurrying into trial, he can stop the mounting evidence from crushing him. That won’t happen, because the truth is inevitable. Thank you.”
The judge paused before speaking, possibly waiting to see whether I would stand to object or respond to Berg. She even swiveled her chair back toward me as if expecting it. But I held my ground. I had made my points and there was no need to restate them.
“This is a novel situation,” Warfield began. “It has been my experience as a judge — and as a defense attorney in a prior life — that it is the defendant who most often seeks delays, seemingly in an effort to put off the inevitable. But not in this case. And so the arguments today give me pause. Mr. Haller clearly wants this behind him — no matter the outcome. He also wants to be free to build his case.”