I had been aware the entire time I was speaking that Berg was leafing through a thick white binder that had the word DISCOVERY ON its spine. She was moving through it a second time, this time back to front, when the judge called her to answer. She stood and addressed the court from her table.
“Your Honor, I can’t explain it,” she said. “It was supposed to be in a discovery package delivered two weeks ago. I have someone checking the emails to defense counsel but this is the master list I’m looking at here and I don’t see the documents in question on it. All I can say is that it was an oversight, Judge. A mistake. And I can assure the court that it was not intentional.”
I shook my head as though I was being offered a deal on an ice-cube farm in Siberia. I was not impressed.
“Judge, oops is not a legal excuse,” I said. “I am unable to evaluate the authenticity, relevance, or materiality of these exhibits, nor am I prepared to confront and cross-examine this witness about them. I have been severely prejudiced in my ability to prepare and present my defense. The state’s lack of respect for my rights has to be corrected. Respect to the system, respect to the court, respect to the rules we all have to learn and must play by.”
The judge pursed her lips as she realized the discovery violation was confirmed and had to be dealt with.
“All right, Mr. Haller, taking counsel at her word, the violation appears to be a mistake,” she said. “The issue now, however, is how to proceed, and that depends on what this evidence means to the People’s case and the ability of the accused to confront the testimony and evidence against him. Ms. Berg, what is the relevance and materiality of this evidence and testimony? To what issue does it relate?”
“These are documents relating to Sam Scales alias Walter Lennon’s finances and bank accounts,” Berg said. “They are relevant to the defendant’s motive for killing him. They are crucial to the People’s case for special circumstances.”
“Mr. Haller,” Warfield said. “Would you please look at the documents provided to you and tell me how long you will need to review and investigate them?”
“Judge, I can tell you right now that I will need at least the weekend, possibly more, because the banks are closed over the weekend and my ability to investigate will be limited. But that is only one of the issues. These documents and the testimony related to them ought to be excluded from evidence. The prosecution, in its zeal to—”
“We’re losing the day, Mr. Haller,” the judge said. “Please get to the point.”
“Exactly,” Berg chimed in. “Judge, it is clear that counsel is engaged in tactics to delay the testimony of my witness. He would like nothing better than—”
“Your Honor,” I cut in loudly. “Am I missing something? I’m the victim here, and the prosecution is now trying to blame me for her malfeasance, intentional or otherwise.”
“It was a mistake!” Berg yelled. “A mistake, Judge, and he’s trying to make it look like the end of the world. He—”
“All right, all right!” the judge yelled. “Everyone just settle down and be quiet.”
In California, judges don’t use gavels — it’s supposed to be the kinder, gentler justice system — or surely the hammer would have just come down hard. In the silence that followed the judge’s outburst, I saw her eyes rise above the lawyers in front of her to the clock on the rear wall of the courtroom.
“It’s now after three o’clock,” she said. “Tempers are running hot. In fact, you both are bringing far more heat than illumination to this proceeding. I’m going to bring the jury back in and send them home for the weekend.”
Berg hung her head in defeat as Warfield continued.
“We’ll take this matter up Monday morning,” she said. “Mr. Haller, I want a submission from you to my clerk on remedies by Monday, eight a.m. You will copy Ms. Berg by email with a draft of your submission by Sunday evening. Ms. Berg, you too will file your submission as to why this evidence should not be excluded or why other proposed sanctions would be inappropriate. As I have repeatedly said in this courtroom, I take the rules of discovery very seriously. There are no honest mistakes when it comes to discovery. It is the backbone of case preparation, and the rules must be rigorously and jealously adhered to. Any infraction, whether intentional or not, must be seriously dealt with as a violation of the accused’s fundamental right to due process. Now let’s bring the jury back in here so they can get an early start on the weekend.”
I moved back to the defense table and sat down. I whispered to Maggie.
“Talk about falling in shit and coming up smelling like a rose,” I said.
“Glad now that I didn’t let you claim food poisoning?” she said.
“Uh, that falls under attorney-client privilege, not to be mentioned ever again.”
“My lips are sealed. I’ll write the motion and get it in. What about sanctions?”
“I feel like we just got them. Her putting this over till Monday is a home run for us.”
“So, no sanctions?”
“I didn’t say that. You never miss an opportunity for sanctions against the state. That’s just too rare to pass up. But I don’t want a mistrial, and if what the Iceberg says is true about the evidence being crucial to her case for special circumstances, the judge won’t exclude it. Let’s think about it some — we have the weekend. I’ll take the printouts and read it all over tomorrow, maybe get some ideas. Can you come to Twin Towers on Sunday to meet?”
“I’ll be there. Maybe meet Hayley for lunch first.”
“Good. Sounds like a plan.”
The door to the assembly room opened and the jurors began filing down the two rows of seats in the box. It was the end of day two of prosecution’s case and by my count I was still ahead.
42
Sunday, February 23
They didn’t start moving me to one of the attorney conference rooms until almost three o’clock. The runner who took me down was wearing a mask that matched the green of his uniform. That told me that the face covering had been officially distributed by the Sheriff’s Department, a sign that the coming wave was a real threat.
When he walked me through the door of the interview room Maggie was already there and waiting. And she, too, wore a mask.
“Are you kidding me?” I said. “This thing is real? It’s coming?”
She didn’t say anything as the deputy led me to a seat and removed the handcuffs. He then recited the rules.
“No touching,” he said. “No electronic devices. The camera’s on. No audio, but we’ll be watching. If you get up from the chair, we’re coming in. Understood?”
“Yes,” I said.
“Understood,” Maggie said.
He left the room then and locked the door behind him. I looked up at the camera mounted in the corner of the ceiling. Despite the scandal and internal investigation that I had tipped off, it was still in place and we were expected to take it on faith that no one was listening to our conversation.
“How are you, Mickey?” Maggie asked.
“I’m worried,” I said. “Everybody’s wearing masks but me.”
“Don’t you have TV in the module? CNN? People are dying in China from this virus. They think it is probably here.”
“They changed shifts in the bubble, and the new people in there with the remotes only give us ESPN and Fox News.”
“Fox has its head in the sand. They’re just protecting the president, who still says everything’s going to be fine.”
“Well, if he said it, it must be true.”
“Oh, yeah, sure.”