“Why would that be, Ms. Berg?”
“Because they were turned over to the Salvation Army after the defendant and his crew visited Ms. Dietrich. It is quite obvious that the defense had a strategy to keep whatever information was in the victim’s belongings from the People, Your Honor.”
“That is a lot of supposition. Do you have anything that backs that up?”
“We have a sworn statement from Rose Marie Dietrich that states unequivocally that she was told by the defendant that she could donate the property.”
“Then let me take a look at that.”
Berg dropped off a copy of the statement with me after handing one to the clerk for the judge. There was silence for a minute or so as Jennifer and I huddled together to read the witness statement at the same time as the judge.
“Okay, the court has read the document,” Warfield said. “I’d like to hear from Mr. Haller on this matter next.”
I got up and went to the lectern as Berg abandoned it. I had decided on the bus ride over to go full-on sarcastic with my response as opposed to full-on outraged.
“Good morning, Judge,” I said good-naturedly. “I would like to begin by saying that normally I would welcome any opportunity to leave the spare accommodations afforded me at the Twin Towers Correctional Facility, courtesy of Ms. Berg, to be in court, but this time I am baffled by the reason I’m here and the logic of her argument. It seems to me, Your Honor, that she should be seeking sanctions against her own team of investigators, not the defense.”
“Mr. Haller,” Warfield said in a tired tone. “As I said to Ms. Berg, let’s stay on point. Please respond directly to the discovery issue that the prosecution has raised.”
“Thank you, Judge. My response is to say there has been no discovery violation. I have no documents to turn over and I have hidden nothing from the prosecution. Yes, we went to the address in question and looked through the contents of the boxes stored there. I took nothing from those boxes, and I guarantee that Ms. Berg’s investigators asked Rose Marie Dietrich what we took. Unhappy with the response they got to that question, Ms. Berg chose not to include the answer in this piece of paper she claims is a statement of fact. It’s got some facts listed here, Judge, but not all of them.”
“Judge?” Berg said, rising from her seat.
“Your Honor, I’m not finished,” I said quickly.
“Ms. Berg, you had your turn,” Warfield said. “Let counsel finish and then you will get a chance to respond.”
Berg sat back down and started writing furiously on her legal pad.
“In closing, Your Honor,” I said. “There is no subterfuge here. The court recalls that three weeks ago in a teleconference hearing that Ms. Berg was party to, I asked permission to leave the county and state. I assume the court reporter has a record of that hearing, and it will reveal that the prosecution asked specifically whom I was going to see at High Desert State Prison in Nevada. And I said I was going to visit the former cellmate of the victim in this case. If Ms. Berg or any of the many investigators at her disposal had bothered to follow up and talk to that man in Nevada, they would have gotten the same address and alias for Sam Scales that I got, and in fact could have beaten me to the location we’re talking about here. Your Honor, again I say that this is nothing but sour grapes. The discovery obligations of the defense require that I turn over to Ms. Berg a witness list and copies of anything I intend to offer into evidence. I have done that. I am not required to share with Ms. Berg my interviews, observations, or other work product. She knows that. But since day one, the prosecution’s investigation has been lazy, sloppy, and shoddy. I am confident that I will prove that at trial, but the sad thing is, there shouldn’t be a trial. The prosecution has—”
“Okay, let me stop you right there, Mr. Haller,” the judge said. “I believe you have more than made your point. You can return to your seat now.”
“Thank you, Your Honor,” I said.
Usually when a judge tells you to sit down it means that all that needs to be said has been said and a decision has been made.
The judge swiveled in her chair and focused on Berg.
“Ms. Berg, do you recall the teleconference referred to by counsel?” she asked.
“Yes, Your Honor,” Berg said.
There was no emotion in her tone. She had taken the same cue I had when Warfield told me to sit down.
“It appears to me that the state had every opportunity to follow and find this location and the victim’s belongings,” Warfield said. “The court tends to agree with Mr. Haller that this is about work product and a missed opportunity, not about any gamesmanship on the part of the defense. Certainly nothing I would consider a violation of discovery.”
Berg stood but did not move to the lectern, a sign that her protest was going to be half-hearted, no matter what she had scribbled on her legal pad.
“He waited three weeks to put her on the witness list,” she said. “He was hiding her importance. There should have been a written report about the interview and the search of the property. That is exactly what the spirit and intention of discovery is.”
I started to rise to object but the judge made a signal with her hand, gesturing me back into my chair.
“Ms. Berg,” the judge intoned, the first note of annoyance in her voice. “If you are suggesting that Mr. Haller is under an obligation to document his investigation with reports of his moves and interviews just like a law enforcement agency and then immediately decide whether he will call Ms. Dietrich as a witness, then you must take me for a fool.”
“No, Your Honor,” Berg said quickly. “Not at all.”
“Very well, then. We’re done here. The motion for sanctions is denied.”
The judge looked over at the calendar that hung on the wall over the clerk’s corral.
“We are thirteen days from jury selection,” she said. “I am setting a hearing for next Thursday at ten a.m. for final motions. I want to handle everything on that day. That means, get your paperwork in with enough time for the court to consider it. I want no surprises. I will see you all then.”
The judge adjourned court and I felt the dread of incarceration return before Deputy Chan and his cohorts could even get to me.
35
Upon my second arrest I was placed back in a single-bed cell at Twin Towers. This time I had even graduated to the outside wall of the jail, which gave me a window — only four inches wide and escape-proof, but it had a partial view of the Criminal Courts Building just a few blocks away as the crow flies. It was enough of a view for me to want to stay in the cell with my eyes on the prize rather than congregate in the dayroom with the other keep-aways. And this, even though I had replaced Bishop with Carew.
So I was feeling safe and secure in the module. The problem was that there were no such protections on the jail buses that moved hundreds of inmates to and from court each day. Whom you rode with and whom you were chained to was mostly a matter of chance. Or so it appeared. No matter what measure I took to protect myself in custody, I was always going to be most vulnerable on the bus. I knew this for a fact because I’d had clients attacked on the buses. And I had seen fights break out and attacks staged while riding them myself.
After the hearing on the prosecution’s motion for sanctions, I waited two hours in the courthouse jail before being shuttled onto a bus back to the Towers. I was cuffed fourth on a chain behind three other men and moved onto the bus. We were put into the second-to-last compartment and I was seated against the barred window in the forward-facing bench. The deputy checked us, closed the gate and locked it, and proceeded to fill the next compartment. I leaned forward to look across the man next to me to the prisoner seated on my row against the opposite window. I recognized him but not from the keep-away module. I couldn’t place him. It could have been from court or a potential client meeting in which I didn’t take the case. He was checking me out as I was checking him. And that fired my paranoia. I knew I had to keep a watch on him.