The Fifth Witness Part 19

"What's Kurlen doing here?"

"Oh... he might be needed."

That was a lot of help.

"Last week when you made the offer, that was because you had found the letter, wasn't it? You thought your case was in real trouble."

She looked up at me and smiled, not giving anything away.

"What changed? Why'd you pull the offer back?"

Again she didn't answer.

"You think he's going to take the Fifth, don't you?"

The shrug again.

"I would," I said. "But him...?"

"We'll know soon enough," she said, dismissively.

I went back to the table and sat down. Trammel whispered to me that she still wasn't clear on what was going on.

"We want Opparizio to testify at trial. He doesn't want to but the only way the judge will let him out of the subpoena is if he says he'll invoke his Fifth Amendment protection against self-incrimination. If he does that, we're dead. He's our straw man. We need to get him on the stand."

"Do you think he will take the Fifth?"

"I'm betting no. Too much at stake with the media here. He's putting the finis.h.i.+ng touches on a big merger and knows if he takes the nickel the media will be all over him. I think he's just smart enough to think he can talk his way out of it on the stand. That's what I'm counting on. Him thinking he's smarter than everybody else."

"What if-"

She was cut off by the return of the judge to the bench. He quickly went back on record and Zimmer asked to address the court.

"Your Honor, I would like the record to reflect that against the advice of counsel my client has instructed me to withdraw the motion to quash."

The judge nodded and pursed his lips. He looked at Opparizio.

"So your client will testify in front of the jury?" he asked.

"Yes, Your Honor," Zimmer said. "He has made that decision."

"You sure about this, Mr. Opparizio? You have a lot of experience sitting with you at that table."

"Yes, Your Honor," Opparizio said. "I'm sure."

"Then motion withdrawn. Any other business before the court before we begin jury selection tomorrow morning?"

Perry looked past the tables to Freeman. It was a tell. He knew there was further business to discuss. Freeman stood up, file in hand.

"Yes, Your Honor, may I approach?"

"Please do, Ms. Freeman."

Freeman stepped forward but then waited for the Opparizio team to finish packing and move off the prosecution's table. The judge waited patiently. Finally, she took her place at the table, remaining standing.

"Let me guess," Perry said. "You want to talk about Mr. Haller's updated witness list."

"Yes, Judge, I do. I also have an evidentiary issue to bring up. Which would you like to hear first?"

Evidentiary issue. I suddenly knew why Kurlen was in the courtroom.

"Let's go with the witness list first," the judge said. "I saw that one coming."

"Yes, Your Honor. Mr. Haller has put his co-counsel down on the witness list and I think, first of all, he needs to choose between having Ms. Aronson as second chair and having her as a witness. But second, and more important, Ms. Aronson has already handled the preliminary hearing for the defense as well as other duties, and so the state objects to this sudden move to make her a witness in the trial."

Freeman sat down and the judge looked over at me.

"Sort of late in the game, isn't it, Mr. Haller?"

I stood.

"Yes, Your Honor, except for the fact that it is no game and it's my client's freedom at stake here. The defense would ask the court for wide lat.i.tude in this regard. Ms. Aronson was intimately involved in the defense against the foreclosure proceedings against my client and the defense has come to the conclusion that she will be needed to explain to jurors what the background was and what was happening at the time of the murder of Mr. Bondurant."

"And is it your plan to have her do double duty, both witness and defense counsel? That's not going to happen in my courtroom, sir."

"Your Honor, I a.s.sumed when I put Ms. Aronson's name on the final list that we would have this discussion with Ms. Freeman. The defense is open to the court's decision in regard to this."

Perry looked at Freeman to see if she had further argument. She held still.

"Very well then," he said. "You just lost your second chair, Mr. Haller. I will allow Ms. Aronson to remain on the witness list but tomorrow when we start picking the jury, you're on your own. Ms. Aronson stays clear of my courtroom until she comes in to testify."

"Thank you, Your Honor," I said. "Will she be able to join me as second chair after her testimony is concluded?"

"I don't see that as a problem." Perry asked, "Ms. Freeman, you had a second issue for the court?"

Freeman stood back up. I sat down and leaned forward with my pen, ready to take notes. The movement caused a searing pain to cross my torso and I almost groaned out loud.

"Your Honor, the state wants to head off an objection and protest I am sure will come from counsel. Late yesterday, we received a return on DNA a.n.a.lysis of a very small blood trace found on a shoe belonging to the defendant and seized during the search of her house and garage on the day of the murder."

I felt an invisible punch in my stomach that made my rib pain disappear quickly. I instinctively knew this was going to be a game changer.

"The a.n.a.lysis matches the blood from the shoe to the victim, Mitch.e.l.l Bondurant. Before counsel protests, I must inform the court that a.n.a.lysis of the blood was delayed because of the backup in the lab and because the sample being worked with was rather minute. The difficulty was accentuated by the need to preserve a portion of the sample for the defense."

I flipped my pen up into the air. It bounced onto the table and then clattered to the floor. I stood up.

"Your Honor, this is just outrageous. On the eve of jury selection? To pull this now? And boy oh boy, that was sure nice of them to leave some for the defense. We'll just run out and get it a.n.a.lyzed before jury selection starts tomorrow. You know, this is just-"

"Point well taken, Counsel," the judge interrupted. "It troubles me as well. Ms. Freeman, you've had this evidence since the inception of the case. How can it be that it conveniently lands the day before jury selection?"

"Your Honor," Freeman said, "I have a full understanding of the burden this places on the defense and the court. But it is what it is. I was informed of the findings at eight o'clock this morning when I received the report from the lab. This is the first opportunity I've had to bring it before the court. As to the reason for its coming in now, well, there are a few. I am sure the court is aware of the backup for DNA a.n.a.lysis at the lab at Cal State. There are thousands of cases. While homicide investigations certainly get a priority it is not to the exclusion of all other cases. We elected not to go to a private lab that could have turned it around faster because of the concern over the size of the sample. We knew if anything went wrong with an outside vendor then we would have completely lost the opportunity to test the blood-and hold a portion for the defense."

I shook my head in frustration while waiting for the chance to speak again. This was indeed a game changer. It had been a completely circ.u.mstantial case. Now it was a case involving direct evidence connecting the defendant to the crime.

"Mr. Haller?" the judge said. "You want to respond?"

"I sure do, Judge. I think this goes beyond being sandbagged and I don't for a moment believe the timing here is happenstance. I would ask that the court tell the prosecution that it is too late to spring this now. I move that this so-called evidence be excluded from the trial."

"What about delaying the trial?" the judge said. "What if you were given the time to get the a.n.a.lysis done and get up to speed on this?"

"Get up to speed? Judge, this isn't just about getting our own a.n.a.lysis done. This is about changing the entire defense strategy. The prosecution is seeking to change this from a circ.u.mstantial case to a science-based case on the eve of trial. I don't only need time to do DNA testing. After two months, I now need to rethink the entire case. This is devastating, Your Honor, and it should not be allowed under the basic idea of fair play."

Freeman wanted a comeback but the judge didn't allow it. I took that as a good sign until I saw him looking at the calendar hanging on the wall behind the clerk's corral. That told me he was only willing to ameliorate the situation with time. He was going to allow the DNA into evidence and would just give me extra time to prepare for it.

I sat back down in defeat. Lisa Trammel leaned toward me and desperately whispered, "Mickey, this can't be. It's a setup. There's no way his blood could be on those shoes. You have to believe me."

I put my hand up to cut her off. I didn't have to believe a word out of her mouth and that was all beside the point. The reality was that the case was s.h.i.+fting. No wonder Freeman had all her confidence back.

Suddenly I realized something. I quickly stood back up. Too quickly. Pain shot down my torso into my groin and I bent over the defense table.

"Your... Honor?"

"Are you all right, Mr. Haller?"

I slowly straightened up.

"Yes, Your Honor, but I need to add something to the record, if I may."

"Go ahead."

"Your Honor, the defense questions the veracity of the prosecution's claim of learning about this DNA result only this morning. Three weeks ago Ms. Freeman offered my client a very attractive disposition, giving Ms. Trammel twenty-four hours to think it over. Then-"

"Your Honor?" Freeman said.

"Don't interrupt," the judge commanded. "Continue, Mr. Haller."

I had no qualms about breaking my agreement with Freeman not to reveal the disposition negotiations. The gloves were off at this point.

"Thank you, Your Honor. So we get the offer on a Thursday night and then on Friday morning Ms. Freeman mysteriously yanks it right back off the table without explanation. Well, I think we now have that explanation, Judge. She knew back then-three weeks ago-about this supposed DNA evidence but decided to sit on it in order to surprise the defense with it on the eve of trial. And I-"

"Thank you, Mr. Haller. What about that, Ms. Freeman?"

I could see the skin around the judge's eyes had drawn tight. He was upset. What I had just revealed had the ring of truth to it.

"Your Honor," Freeman said indignantly. "Nothing could be further from the truth. I have with me in the gallery here Detective Kurlen who will be happy to testify under oath that the DNA report was delivered over the weekend to his office and opened by him shortly after his arrival at seven thirty this morning. He then called me and I brought it to court. The district attorney's office has not sat on anything and I resent the aspersion directed at me personally by counsel."

The judge glanced out to the rows of seats and spotted Kurlen, then looked back at Freeman.

"Why did you withdraw the offer a day after making it?" he asked.

The million-dollar question. Freeman seemed unsettled that the judge would carry the inquiry any further.

"Judge, that decision involved internal issues perhaps better not aired in court."

"I want to understand this, Counsel. If you want this evidence then you better allay my concerns, internal issues or not."

Freeman nodded.

"Yes, Your Honor. As you know, there is an interim district attorney since Mr. Williams joined the U.S. Attorney General's Office in Was.h.i.+ngton. This has resulted in a situation where we don't always have clear lines of communication and direction. Suffice it to say that on that Thursday I had a supervisor's approval for the offer I made to Mr. Haller. But on Friday morning I learned from a higher authority in the office that the offer was not approved internally and so I withdrew it."

It was a load of c.r.a.p but she had delivered it well and I had nothing that contradicted it. But when she told me the offer was gone that Friday I knew by the tone of her voice that she had something new, something else, and her decision had nothing to do with internal communication and direction.

The judge made his ruling.

"I am going to put back jury selection ten court days. This should give the defense time to have DNA testing of the evidence completed if it chooses to do so. It also allows ample time to consider what strategic change will come with this information. I will hold the state responsible for being totally cooperative in this matter and in getting the biological material to the defense without delay. All parties will be prepared to begin jury selection two weeks from today. Court is adjourned."

The judge quickly left the bench. I looked down at the empty page on my legal pad. I had just been eviscerated.

Slowly I started packing my briefcase.

"What do we do?" Aronson asked.

"I don't know yet," I said.

"Run the test," Lisa Trammel said urgently. "They've got it wrong. It can't be his blood on my shoes. This is unreal."

I looked at her. Her brown eyes fervent and believable.

"Don't worry. I'll figure something out."

The optimism tasted sour in my mouth. I glanced over at Freeman. She was looking through files in her briefcase. I sauntered over and she gave me a dismissive look. She wasn't interested in hearing my tale of woe.

"You look like things just went exactly the way you wanted them to go," I said.

She showed nothing. She closed her case and headed toward the gate. Before pus.h.i.+ng through she looked back at me.

"You want to play hardball, Haller?" she said. "Then you have to be ready to catch."

Nineteen.

The next two weeks went by quickly but not without progress. The defense rethought and retooled. I had an independent lab confirm the state's DNA findings-at a rush cost of four grand-and then a.s.similated the devastating evidence into a view of the case that allowed for the science to be correct as well as my client's innocence to be possible, if not probable. The cla.s.sic setup defense. It would be an additional and natural dimension to the straw-man gambit. I began to believe it could work and my confidence began to rebuild. By the time delayed jury selection finally started, I had some momentum going and rolled it into the effort, actively looking for the jurors who might lend themselves to believing the new story I was going to spin for them.