“Timely,” Jennifer said, meaning it was anything but.
She started reading. I didn’t bother. Berg seemed to hesitate, as if expecting a retort from me. I just looked up and smiled.
“Good morning, Dana,” I said. “How was your weekend?”
“Better than yours, I’m sure,” she said.
“I think that would be a given,” I said.
She smirked and returned to the prosecution table.
“No surprise, she’s objecting to everything,” Jennifer said. “Including bail reduction.”
“Par for the course,” I said. “Like I said, don’t worry about bail today. We’ll—”
I was silenced by the booming voice of Morris Chan, the courtroom deputy, announcing the arrival of Judge Warfield. We were instructed to remain seated and come to order.
I believed I got lucky when we drew Warfield on the case. She was a tough law-and-order jurist but she was also a former member of the defense bar. Oftentimes defense lawyers who become judges seem to go out of their way to show impartiality by favoring the prosecution. That was not what I had heard about Warfield. While I had never had a case before her, I had listened to the conversations of some of the other defense pros at the Redwood and Four Green Fields in the past, and the picture I got was of a judge who threw her pitches right down the middle. In addition, she was African American and that made her an underdog. Coming up, she had had to be better than the other lawyers. That demanded a mindset I liked. She knew full well the disadvantages I faced in trying to defend myself. My guess was that she would include that knowledge in her decisions.
“We’re on the record in California versus Haller and we have a series of defense motions to consider,” the judge said. “Mr. Haller, will you be offering argument or will it be your co-counsel, Ms. Aronson?”
I stood to reply.
“May it please the court,” I began, “we would like to tag-team a little bit today. I would like to start with the motion to suppress.”
“Very well,” Warfield said. “Proceed.”
Here is where it got tricky. I had filed what was technically a motion in limine to exclude evidence that had been unconstitutionally obtained. I was challenging the traffic stop that led to the discovery of the body of Sam Scales in the trunk of my car. If I won the motion, the case against me would probably be DOA. But it was a long shot to believe that a judge, even as impartial as I had heard Warfield to be, would throw such a wrench into the state’s case. And that was what I was counting on, because I didn’t want that to happen either. With any other client, I would want that ruling. But this was my own case. I did not want to win on a technicality. I needed to be exonerated. The trick here was to have a full-blown hearing on the constitutionality of the traffic stop that put me in jail. But I only wanted it in order to get Officer Milton on the stand so that I could draw out his story and lock it down under oath. Because I believed I was set up and that the setup had to have included Milton in some way, whether knowingly or not.
Carrying the printout of the motion, I walked to the lectern between the prosecution and defense tables. On the way, I casually checked the gallery and saw at least two people I recognized as journalists covering the hearing. They were the conduit I would use to get my defense out into the world.
I also saw my daughter, Hayley, in the back row. I assumed she was cutting class at USC Law but I couldn’t be too upset. I had forbidden her to visit me in jail. I didn’t want her ever to see me in jail scrubs and had gone so far as to leave her off my approved visitors list. So court was where she could see and support me, and that was not lost on me. I also knew that she was leaving the make-believe world of law school and getting a real education in the law by being here.
I threw her a nod and a smile, but seeing her now reminded me how ill-fitting my suit was. It looked borrowed and announced that I was a convict to all courtroom observers. I might as well have been wearing the scrubs. I tried to shake off these thoughts when I got to the lectern and I turned my attention to the judge.
“Your Honor,” I said. “As the motion before the court states, the defense contends that I was set up and framed in this case. And that setup came into play with the illegal and unconstitutional stop by the police on the night I was arrested. I have re—”
“Set up by whom, Mr. Haller?” the judge asked.
I was thrown by the question. As valid as it might have been, it was unexpected from the judge, especially before I finished my argument.
“Judge, that is irrelevant at this hearing,” I said. “This is about the traffic stop and whether it was constitutional. It—”
“But you are saying you were framed. Do you know who framed you?”
“Again, Your Honor, that is irrelevant. In February it will be very relevant when we go to trial, but I don’t see why I have to reveal my case to the prosecution while challenging the validity of the traffic stop.”
“Then continue.”
“Thank you, Your Honor, I will. The—”
“Is that a shot?”
“Excuse me?”
“What you just said, is that a shot at me, Mr. Haller?”
I shook my head, confused. I couldn’t even remember what I had said.
“Uh, no, not a shot, Judge,” I said. “I don’t remember what I said but it was in no way intended to—”
“Very well, let’s move on,” the judge said.
I remained confused. The judge appeared to be sensitive to anything she construed as a questioning of her skill or authority. But it was good to register this early in the process.
“Okay, well, I apologize if anything I said sounded disrespectful,” I said. “As I was saying, I’ve filed a motion to suppress, challenging the probable cause to stop and the probable cause supporting a warrantless search of the trunk of the vehicle I was driving. An evidentiary hearing is required on the issues raised, with the attendance of the officer who stopped me and searched my vehicle. I would like to schedule a time for that hearing. But before we can do that, I have other matters that need to be addressed. My investigator has been trying for five weeks, Your Honor, to talk to the officer who stopped me—Officer Roy Milton—and has been unsuccessful despite numerous requests to him and the police department. I know we will be discussing our discovery motion later but, same thing, no cooperation from the D.A.’s Office in regard to the arrest. This is a continuation of the prosecution’s effort since day one to prevent a fair trial from occurring.”
Berg stood up but Warfield held up a hand to prevent her from speaking.
“Let me stop you right there, Mr. Haller,” the judge said. “That is a very serious accusation you just made. You’d better back that up right now.”
I composed my thoughts before proceeding.
“Your Honor,” I finally began. “The prosecution clearly does not want me to question Officer Milton, and you can see this all the way back in the decision to go to a grand jury for an indictment and have him testify in secret instead of holding a preliminary hearing where I would be able to question him.”
In the California courts, a felony charge can advance to trial only after a preliminary hearing in which evidence of probable cause for the arrest is presented to a judge and the defendant is ordered to trial. An alternative to the preliminary hearing is for the prosecution to present the case to a grand jury and ask for an indictment on the charge. That was what Berg had done in this case. The difference between the two procedures is that a preliminary hearing is held in open court, where the defense is allowed to question any witness who testifies in front of the judge, while a grand jury operates in secret.