But the judge seemed to compose herself before responding.
“Your running objection is noted but overruled,” she said calmly. “If counsel’s statement is intended to try to inflame or intimidate the court, be assured that you have failed in the effort and that the court will continue to make rulings impartially and independently based on the law and applied to the case.”
Warfield paused there to see if Berg had another comeback, but the prosecutor remained silent.
“Now, is there any other business to discuss?” Warfield asked. “I would like to get this order out and then have some lunch.”
“Your Honor,” Maggie said, “we have lost our main witness for today and—”
“And who was that?” Warfield asked.
“Louis Opparizio,” Maggie said.
“Was the subpoena delivered?” Warfield asked.
“Yes, it was,” Maggie said.
“Then why isn’t he here?” Warfield asked.
“He was murdered,” Maggie said. “His body was found yesterday.”
“What?” the judge yelped.
“Yes,” Maggie said. “In Arizona.”
“And does this have anything to do with this case?” Warfield asked.
“We think so, Your Honor,” Maggie said.
“Which is why you need the FBI to come in and testify,” Warfield said.
“Yes, Your Honor,” Maggie said. “And other than Opparizio, we had only one other witness scheduled for today — Detective Rountree, whom you disallowed.”
“Are you saying you have no other witnesses to your case?” Warfield asked.
“We have only one: Mr. Haller,” Maggie said. “And we don’t want him to testify until after we possibly hear from the FBI and Agent Ruth. He would be our last witness.”
Warfield looked pained. She clearly didn’t want to lose the afternoon.
“I seem to recall more names on your witness list,” she said.
“That is true but the course of the trial has dictated changes to our strategy,” I said. “We’ve dropped some witnesses just this morning. We had a toxicology expert good to go today but Detective Drucker and the deputy medical examiner already covered the same ground. We had the landlord on subpoena but Detective Drucker covered her information as well.”
“I seem to recall you had a bartender on your list,” Warfield said.
I hesitated. We had described Moira Benson on the witness list as someone who would testify to my not drinking at the NG celebration and being totally sober when I left it. But that had been a disguise to hide the real value of her testimony. What she had actually been going to tell the jury was that she had gotten a phone call at the Redwood on the night of the party, and an anonymous caller had asked whether I had left yet. At the time, I had paid the tab and was moving toward the door, slowed by handshakes and thank-yous from the well-wishers who had gotten their nightly alcohol intake on me. She told the caller I was heading to the door. Under the defense theory, that call resulted in a text to Milton, alerting him that I was leaving. But now, with the cell records we had received, we couldn’t complete the one-two punch the defense had hoped for. It didn’t mean it didn’t happen that way. The cell records could have been doctored, or Milton could have gotten a text on a burner. But we couldn’t move the supposition from theory to fact and I couldn’t put the bartender on the stand.
“Her testimony is also unneeded based on recent records we acquired,” I said.
The judge thought for a moment and decided not to inquire any further about the bartender.
“So, all you have left is the FBI, which we don’t know about, and Mr. Haller,” she said.
“And it would really change our strategy if he had to testify before we heard from Agent Ruth,” Maggie said.
“If we hear from Agent Ruth,” Warfield said.
“Judge, this is ridiculous,” Berg said. “They had no strategy. This whole thing about Ruth came up today.”
“Counsel is wrong,” Maggie said. “The FBI has been on our radar from the start. And we always planned to end with Mr. Haller’s forceful denial of the charge. We would like to keep it that way.”
“Very well,” Warfield said. “I’m going to let the jury go for the day. Hopefully tomorrow we will hear from the FBI and then the defendant. Either way, you would all be advised to use the time we are not in session this afternoon to work on closing arguments. You may be giving them tomorrow afternoon.”
“Judge, we will be introducing evidence in rebuttal,” Berg said. “And possibly a witness, depending on tomorrow’s testimony.”
“That will be your prerogative,” Warfield said.
I noticed that Berg had stopped addressing Warfield as Your Honor. I wondered if the judge noticed too.
“I think we are done here,” Warfield said. “I will see everyone back in court at one o’clock, when I will dismiss the jury.”
Moving back to the courtroom through the hallway outside the judge’s chambers, I walked up behind Berg, who was leading the way this time.
“You knew Opparizio was dead before we went in there,” I said. “If it was all just a choreographed attempt to distract the jury, why were you so on top of him?”
“Because I can see you coming from a mile away, Haller,” Berg responded. “And we were ready for Opparizio, dead or alive. You obviously were not.”
She kept walking at speed and I slowed down so Maggie could catch up.
“What was that about?” she asked.
“Nothing,” I said. “Just more bullshit. So, what do you think our chances are with the writ?”
“Getting an agent on the stand?” Maggie said. “Somewhere between zero and zero. I think this is going to come down to you up there and winning the jury over. So be ready and be at your best.”
We walked in silence after that. I knew that whatever the risks were that lay ahead, they were all on me.
50
With the jury sent home and the courtroom dark, Maggie McPherson and I were allowed to work in the attorney-client room in courtside holding until it was time for my private shuttle back to Twin Towers.
We got a lot done. Rather than focus, as the judge had suggested, on a closing argument, we worked on questions for the final two witnesses — Special Agent Dawn Ruth and me. And this was most critical with Agent Ruth because it was the questions that would most likely contain the information we wanted to get to the jury. We anticipated that if we were lucky enough to get Ruth on the stand, she would at best be a reluctant witness. We wouldn’t ask, Was Sam Scales an FBI informant? We would ask, How long was Sam Scales an FBI informant? That way, the jurors would get the information we needed them to hear, whether or not the actual questions were answered.
It was agreed that I would question Ruth — if she responded to the judge’s writ — and Maggie would, of course, question me. She convinced me during the work session that I had to testify. Once past that hurdle, I embraced the idea and started thinking about the questions and answers we were composing together.
I stayed in my suit as we worked, not wanting to spend that time with Maggie in prisoner’s garb. It was a little thing, and she probably didn’t even care, but I did. Besides our daughter, she had always been the most important woman in my life, and I cared what she thought of me.
I knew there was a camera on us the whole time and touching was forbidden, but at one point I couldn’t help myself. I reached across the table and put my hand on hers as she was trying to write down one of the questions she would ask me the next day.