“You got it in,” she whispered. “No matter what happens now, the jury knows he was an informant.”
I nodded. That was the big finish. That was the hit on the house.
48
Judge warfield was upset and Dana Berg was livid. Neither bought my explanation for the discovery violation. That was when Maggie McFierce stepped up, willing to take the fall so the defense — my defense — could move on unscathed.
“Judge, this is my fault,” she said. “I dropped the ball on this.”
Warfield looked at her suspiciously.
“Do tell, Ms. McPherson.”
“As you know, Mr. Haller lost his co-counsel and I agreed to step in. It was late in the game and I have been playing catch-up, familiarizing myself with the evidence, the defense theory, and the prosecution’s case. Things have fallen through the cracks. As Mr. Haller has explained, the origin of the police report in question is unknown. It was slipped—”
“I don’t believe that for a second,” Berg cut in. “And if that is what you’re going to spin, you should never come back to the office and they should never take you.”
“Ms. Berg, let her finish,” Warfield said. “And don’t make it personal when you have the opportunity to respond. Continue, Ms. McPherson.”
“As I was saying,” Maggie said. “The origin of this document was unknown and, frankly, questionable. It had to be confirmed and we had an investigator on it. He confirmed it and it was moved into the case presentation file at the beginning of the week. I have been in court all week and organizing the defense presentation at night. There was a miscommunication between Mr. Haller and myself. It didn’t help that he is incarcerated and not available to me at a moment’s notice. It was my understanding that we were not going to introduce the arrest report until later in the week and that would give me time to turn copies over to the state and the court today. All of that changed this morning when we learned from our investigator that Detective Rountree from the Ventura County Sheriff’s Department was in town today and could testify.”
There was a slight pause as we waited for the judge to react to the explanation. But Berg reacted first.
“This is such bullshit,” she said. “They planned it this way from the start so my detective would be blindsided in front of the jury.”
“He wouldn’t have been blindsided if his investigation was as thorough as he claimed,” I said.
“Hold it right there,” Warfield said. “We’re not going to turn this into a boxing match. And Ms. Berg, I would check that language unless you want to be the only one who leaves here with sanctions.”
“Your Honor, you can’t be serious,” Berg erupted. “You’re giving them a pass on this?”
The outrage was clear in her voice.
“What would you have me do, Ms. Berg?” the judge asked. “The document is clearly of importance to this case. What’s your solution? Withhold it from the jury because of the defense’s misdeeds, intentional or not? That is not going to happen. Not in my courtroom. This is a search for truth, and there is no way on God’s green earth that I am keeping the document or the defense’s investigation of it from the jury. Look at yourself, Ms. Berg — this is evidence that should have been brought forward by the state. And if I find out that this is something the D.A.’s Office did have and deep-sixed, then we will really see some sanctions.”
Berg seemed to shrink two sizes in her seat under the judge’s withering comeback. She dropped off the offensive and immediately moved to her own defense.
“I can assure you, Judge, that neither I nor the D.A.’s Office knew a thing about this until it was brought up in court by the defense,” she said.
“That is good to hear,” Warfield said. “And let the court remind you that there have been multiple violations of discovery by the People resulting in no sanctions and just one instruction to the jury. I am willing to make an instruction in this matter but would be concerned that it would accentuate the cause of the defense in bringing this document forward.”
The judge was saying she was willing to tell the jury that the defense broke the rules, but that admonishment might serve to simply underline the importance of the arrest report.
“That won’t be necessary,” Berg said. “But, Your Honor, once again, rules have been intentionally broken and the defense should not simply be allowed to walk away. There should be consequences.”
Warfield looked at Berg for a long moment before speaking.
“Again, what would you have me do, Ms. Berg?” she asked. “You want counsel cited for contempt? You want them fined? What is the appropriate financial penalty for this?”
“No, Your Honor,” Berg said. “I think the penalty should be the witness. Counsel mentioned that the Ventura County detective was in town and would testify. I request that the court disallow his testimony as—”
“The defense objects to that,” Maggie said. “At minimum, we need Detective Rountree to authenticate the report. He also needs to explain what happened with the FBI. He has driven down all the way from—”
“Thank you, Ms. McPherson,” Warfield cut in. “But I think Ms. Berg has come up with an equitable solution to this trespass on the rules of discovery. The report comes in as a defense exhibit but not the witness.”
“Your Honor,” Maggie pressed. “How do we explain to the jury the significance of what happened?”
“You’re a smart lawyer,” Warfield said. “You’ll find a way.”
The answer left Maggie speechless.
“I think we are finished here,” Warfield said. “Let’s go back out and, Mr. Haller, you can continue your examination of the detective.”
“Your Honor,” I said, “I think I am finished with the detective and ready to move on.”
“Very well,” Warfield said. “Ms. Berg can cross-examine if she wishes. Court will resume in ten minutes.”
We filed out of chambers and headed to the courtroom, Berg sullenly following Maggie, me, and Deputy Chan, a required part of the procession since I was in custody.
“I hope you can live with yourself after this,” Berg said to Maggie’s back.
Maggie turned to her without breaking stride.
“I just hope you can,” she said.
When court resumed, Berg had a handful of questions for Drucker but she stayed away from the Ventura County arrest and did little more than some clarification work on the detective’s previous answers. In the meantime, Maggie went out into the hallway to tell Detective Rountree that he had driven a long way from Ventura for nothing, and to prep Art Schultz and bring him in when Drucker finally stepped down.
By prior agreement, Schultz was to be Maggie’s witness. I wanted her to play it like a prosecutor and use Schultz to bring out the details of the crime that I believed were at the heart of the case.
Schultz was a Trojan horse. He had been added to our witness list as a retired biologist with the Environmental Protection Agency who would discuss the material found beneath the victim’s fingernails. This was to make him appear inconsequential. The hope was that Berg’s investigators wouldn’t bother or would be stretched too thin with other case priorities to speak to him in advance of his testimony. That had worked and now he was going to take the stand, where Maggie would use him to plant the tent pole that would hold up the defense theory and case.
Schultz looked like he had retired early, possibly to move into a career as an expert witness on all things EPA-related. He was early to mid fifties, trim and fit, with a deep tan. He wore steel-rimmed glasses and a wedding band.
“Good morning, Mr. Schultz,” Maggie began. “Can we begin with you telling the jury who you are and what you do for a living?”