The Fifth Witness Part 20

It wasn't until the fourth day of jury selection that yet one more Freeman fastball came whistling at my head. We were nearing completion of the panel and it was one of those rare times when both prosecution and defense were happy with the jury's makeup, but for different reasons. The panel was well stocked with working-cla.s.s men and women. Home owners who came from two-income households. Few had college diplomas and none had advanced degrees. Real salt-of-the-earth people and this was a perfect composition for me. I was going for people who lived close to the edge in the tough economy, who felt the threat of foreclosure at all times, and would have a hard time looking at a banker as a sympathetic victim.

On the other hand, the prosecution asked detailed financial questions of each prospective juror and was looking for hard workers who wouldn't see someone who stopped paying her mortgage as a victim, either. The result, until the morning of the fourth day, was a panel full of jurors neither side objected to and who we each thought we could mold into our own soldiers of justice.

The fastball came when Judge Perry called for the midmorning break. Freeman immediately stood up and asked the judge if counsel could meet in chambers during the break to discuss an evidentiary issue that had just come up. She asked if Detective Kurlen could join the meeting. Perry granted the request and doubled the break time to a half hour. I then followed Freeman, who followed the court reporter and the judge into chambers. Kurlen came in last and I noticed that he was carrying a large manila envelope with red evidence tape on it. It was bulky and appeared to have something heavy inside. The paper envelope was the real giveaway, though. Biological evidence was always wrapped in paper. Plastic evidence bags trapped air and humidity and could damage biologicals. So I knew going in that Freeman was about to drop another DNA bomb on me.

"Here we go again," I said under my breath as I entered the chambers.

The judge moved behind his desk and sat down, his back to a window that looked south toward the hills over Sherman Oaks. Freeman and I took side-by-side seats opposite the desk. Kurlen pulled a chair over from a nearby table and the court reporter sat on a stool to the judge's right. Her steno machine was on a tripod in front of her.

"We're on the record here," the judge said. "Ms. Freeman?"

"Judge, I wanted to meet with you and counsel for the defense as soon as possible because I am antic.i.p.ating that once again Mr. Haller will howl at the moon when he hears what I have to say and what I have to show."

"Then let's get on with it," Perry said.

Freeman nodded to Kurlen and he started peeling back the tape on the evidence envelope. I said nothing. I noticed that he had a rubber glove on his right hand.

"The prosecution has come into possession of the murder weapon," Freeman stated matter-of-factly, "and plans to introduce it as evidence as well as make it available to the defense for examination."

Kurlen opened the envelope, reached in and brought out a hammer. It was a claw hammer with a brushed steel head and a circular striking surface. It had a polished redwood handle tipped in black rubber at the end. I saw a notch at twelve o'clock on the strike face and knew it likely corresponded with the skull impressions cataloged during the autopsy.

I stood up angrily and walked away from the desk.

"Oh, come on," I said in full outrage. "Are you kidding me?"

I looked at the wall of shelved codebooks Perry had at the far side of the room, put my hands on my hips in indignation and then turned back to the desk.

"Judge, excuse my language, but this is bulls.h.i.+t. She can't do this again. To spring this-what, four days into jury selection and a day before opening statements? We have most of the box already picked, we are possibly going to start tomorrow and she's suddenly laying the supposed murder weapon murder weapon on me?" on me?"

The judge leaned back in his seat as if distancing himself from the hammer Kurlen was holding.

"You better have a good and convincing story, Ms. Freeman," he said.

"I do, Judge. I could not bring this forward until this morning and I am more than willing to explain why if-"

"You allowed this!" I said, interrupting and pointing a finger at the judge.

"Excuse me, Mr. Haller, but don't you dare point your finger at me," he said with restraint.

"I'm sorry, Judge, but this is your fault. You let her get away with the bulls.h.i.+t DNA story and after that there's no reason for her not to-"

"Excuse me, sir, but you had better proceed cautiously. You are about five seconds away from seeing the inside of my holding cell. You do not point your finger or address a superior court judge as you have. Do you understand me?" sir, but you had better proceed cautiously. You are about five seconds away from seeing the inside of my holding cell. You do not point your finger or address a superior court judge as you have. Do you understand me?"

I turned back to the codebooks and took a deep breath. I knew I had to get something out of this. I had to come out of this room with the judge owing me something.

"I understand," I finally said.

"Good," Perry said. "Now come back over here and take a seat. Let's hear what Ms. Freeman and Detective Kurlen have to say and it better be good."

Reluctantly, I returned like a chastised child and dropped into my seat.

"Ms. Freeman, let's hear it."

"Yes, Your Honor. The weapon was turned in to us late Monday afternoon. A land-"

"Great!" I said. "I knew it. So you wait until four days into jury selection before you decide to-"

"Mr. Haller!" the judge barked. "I have lost all patience with you. Do not interrupt again. Continue, Ms. Freeman. Please."

"Of course, Your Honor. As I said, we received this at the LAPD's Van Nuys Division late Monday afternoon. I think it would be best if Detective Kurlen runs you through the chain of custody."

Perry gestured to the detective to begin.

"What happened was that a landscaper working in a yard on d.i.c.kens Street near Kester Avenue found it that morning, lodged in a hedge near the front of his client's house. This is in the street that runs behind WestLand National. The house is approximately two blocks from the rear of the bank. The landscaper who found the hammer is from Gardenia and had no idea about the murder. But thinking the tool belonged to his client, he left it on the porch for him. The home owner, a man named Donald Meyers, didn't see it until he came home from work about five o'clock that afternoon. He was confused because he knew it was not his hammer. However, he then remembered reading articles about the Bondurant murder, at least one of which indicated the murder weapon might be a hammer and that it had not been found yet. He called his landscaper and got his story, then he called the police."

"Well, you've told us how you got it," Perry said. "You haven't explained why we're hearing about it three days later."

Freeman nodded. She was ready for this and took over the narrative.

"Judge, we obviously had to confirm what we had and the chain of custody. We immediately turned it over to the Scientific Investigation Division for processing and only received the lab reports yesterday evening after court."

"And what do those reports conclude?"

"The only fingerprints on the weapon belonged to-"

"Wait a minute," I said, risking the judge's ire again. "Can we just refer to it as the hammer? Calling it 'the weapon' on the record is a bit presumptuous at this point."

"Fine," Freeman said before the judge could respond. "The hammer. The only fingerprints on the hammer the hammer belonged to Mr. Meyers and his landscaper, Antonio Ladera. However, two things tie it solidly into the case. A small spot of blood found on the neck of the hammer has been conclusively matched through DNA testing to Mitch.e.l.l Bondurant. We rushed this test with an outside vendor because of the protest counsel made over the precautions taken with the other test. The hammer was also turned over to the medical examiner's office for comparison to the wound patterns on the victim. Again, we have a match. Mr. Haller, you can refer to it as the hammer or the tool or whatever you want. But I'm calling it the murder weapon. And I have copies of the lab reports to turn over to you at this time." belonged to Mr. Meyers and his landscaper, Antonio Ladera. However, two things tie it solidly into the case. A small spot of blood found on the neck of the hammer has been conclusively matched through DNA testing to Mitch.e.l.l Bondurant. We rushed this test with an outside vendor because of the protest counsel made over the precautions taken with the other test. The hammer was also turned over to the medical examiner's office for comparison to the wound patterns on the victim. Again, we have a match. Mr. Haller, you can refer to it as the hammer or the tool or whatever you want. But I'm calling it the murder weapon. And I have copies of the lab reports to turn over to you at this time."

She reached into the manila envelope, removed two paper-clipped doc.u.ments and handed them to me with a satisfied smile on her face.

"Well, that's nice of you," I said in full sarcasm. "Thank you very much."

"Oh, and there's also this."

She reached into the envelope again and withdrew two eight-by-ten photos, giving one to the judge and one to me. It was a photo of a workbench with tools hung on a pegboard on the wall behind it. I knew it was the workbench from Lisa Trammel's garage. I had been there.

"This is from Lisa Trammel's garage. It was taken on the day of the murder during the search of the premises under the authority of a court-ordered search warrant. You will notice that one tool is missing from the pegboard's hooks. The open s.p.a.ce created by this corresponds to the dimensions of a claw hammer."

"This is crazy."

"SID has identified the recovered hammer as a Craftsman model manufactured by Sears. This particular hammer is not sold separately. It comes only in the two-hundred-thirty-nine-piece Carpenter's Tool Package. From this photograph we have identified more than a hundred other tools from that package. But no hammer. It's not there because Lisa Trammel threw it into the bushes after leaving the scene of the crime."

My mind was racing. Even with a defense based on the theory that the defendant was set up, there was a law of diminis.h.i.+ng returns. Explaining away the blood drop on the shoe was one thing. Explaining away your client's owners.h.i.+p of and connection to the murder weapon was not just a second thing. There was an exponential increase in the odds against setup as each piece of evidence is revealed. For the second time in three weeks the defense had been handed a devastating blow and I was left almost speechless. The judge turned to me. It was time to respond but I had no comeback that was worthy.

"This is very compelling evidence, Mr. Haller," he prompted. "You have anything to say?"

I had nothing but I picked myself up off the mat before he reached the ten count.

"Your Honor, this so-called evidence that just sort of conveniently dropped from heaven should have been announced to the court and the defense the moment it was brought forward. Not three days later, not even a day later. If only to allow the defense to properly inspect the evidence, conduct its own tests and observe those of the prosecution. It was supposedly in the bushes undiscovered for what, three months at this point? And yet-voila!-we have DNA to match to the victim. This whole thing stinks of a setup. And it's too d.a.m.n late, Your Honor. The train has left the station. We might have opening statements as early as tomorrow. The prosecution has had all week to think about how to drop the hammer into hers. What am I supposed to do at this point?"

"Were you planning to give your statement at the beginning or reserve until the defense phase?" the judge asked.

"I was planning on giving it tomorrow." I lied. "I already have it written. But this is also information I could have used while picking the jurors we already have in the box. Judge, this whole thing-look, all I know is that five weeks ago the prosecution was desperate. Ms. Freeman came to my my office to offer my client a deal. Whether she'll admit it or not, she was running scared and she gave me everything I asked for. And then suddenly, we have the DNA on the shoe. Now, lo and behold, the hammer turns up and, of course, n.o.body's talking about a disposition anymore. The coincidence of all of this puts it all to doubt. But the malfeasance in how it was handled should alone lead you to refuse to allow it into evidence." office to offer my client a deal. Whether she'll admit it or not, she was running scared and she gave me everything I asked for. And then suddenly, we have the DNA on the shoe. Now, lo and behold, the hammer turns up and, of course, n.o.body's talking about a disposition anymore. The coincidence of all of this puts it all to doubt. But the malfeasance in how it was handled should alone lead you to refuse to allow it into evidence."

"Your Honor," Freeman said as soon as I was finished. "May I respond to Mr. Haller's allegation of mal-"

"No need to, Ms. Freeman. As I already said, this is compelling evidence. It comes in at an inopportune time but it is clearly evidence the jury should consider. I will allow it but I will also once again allow the defense extra time to prepare for it. We're going to go back out there now and finish picking a jury. Then I am going to give them a long weekend and bring them back Monday for opening statements and the start of the trial. That gives you three extra days to prepare your opener, Mr. Haller. That should be enough time. Meanwhile, your staff, including that young go-getter you hired out of my alma mater, can work on a.s.sembling whatever experts and testing you'll need on the hammer."

I shook my head. It wasn't good enough. I was going down fast here.

"Your Honor, I move that the trial be stayed while I take this matter up on appeal."

"You can take it up on appeal, Mr. Haller. That's your right. But it's not going to stop the trial. We go on Monday."

He gave me a little nod that I took as a threat. I take him up on appeal and he won't forget it during trial.

"Do we have anything else to discuss?" Perry asked.

"I'm good," Freeman said.

"Mr. Haller?"

I shook my head as my voice deserted me.

"Then let's go out there and finish picking a jury."

Lisa Trammel was pensively waiting for me at the defense table.

"What happened?" she asked in an urgent whisper.

"What happened was that we just got our a.s.ses handed to us again. This time it's over."

"What do you mean?"

"I mean they found the f.u.c.king hammer you threw in the bushes after you killed Mitch.e.l.l Bondurant."

"That's crazy. I-"

"No, you're crazy. They can tie it directly to Bondurant and they can tie it to you. It's right off your f.u.c.king workbench. I don't know how you could've been so stupid but that's beside the point. It actually makes keeping the b.l.o.o.d.y shoes seem like a smart choice in comparison. Now I have to figure out a way to get a deal out of Freeman when she has absolutely no need to make a deal. She's got a slam-bang case so why cut a deal?"

Lisa reached over with one hand and grabbed the left side of my jacket collar. She pulled me closer. Now she whispered through clenched teeth.

"You listen to yourself. How could I have been so stupid? That's the question and the answer is I wasn't. You know if anything I'm not stupid. I've told you from day one, this is a setup. They wanted to get rid of me and this is what they did. But I didn't do this. You've had it right all along. Louis Opparizio. He needed to get rid of Mitch.e.l.l Bondurant and he used me as the fall guy. Bondurant sent him your letter. That started everything. I didn't-"

She faltered as the tears started to flood her eyes. I put my hand over hers as if to calm her and detached it from my collar. I was aware that the jury was filing into the box and didn't want them to see any attorney-client discord.

"I didn't do this," she said. "You hear me? I don't want any deal. I won't say I did something I didn't do. If that's your best shot then I want a new attorney."

I looked away from her to the bench. Judge Perry was watching us.

"Ready to proceed, Mr. Haller?"

I looked at my client and then back at the judge.

"Yes, Your Honor. Ready to proceed."

Twenty.

It was like being in the losing locker room but we had yet to play the game. It was Sunday afternoon, eighteen hours before opening statements to the jury, and I huddled with my crew, already conceding defeat. It was the bitter end before the trial had even begun.

"I don't understand," Aronson said into the void of silence that had enveloped my office. "You said we needed a hypothesis of innocence. An alternate theory. We have that with Opparizio. We have it in spades. Where is the problem?"

I looked over at Cisco Wojciechowski. It was just the three of us. I was in shorts and a T-s.h.i.+rt. Cisco was in his riding clothes, an army-green tank top over black jeans. And Aronson was dressed for a day in court. She hadn't gotten the memo about it being Sunday.

"The problem is, we're not going to get Opparizio into the trial," I said.

"He withdrew the motion to quash," Aronson protested.

"That doesn't matter. The trial is about the state's evidence against Trammel. It's not about who else might have committed the crime. Might'ves don't count. I can put Opparizio on the stand as the expert on Trammel's foreclosure and the foreclosure epidemic. But I'm not going to get near him as an alternate suspect. The judge won't let me unless I can prove relevance. So we've come all this way and we still don't have relevancy. We still don't have that one thing that pulls Opparizio all the way in."

Aronson was determined not to give up.

"The Fourteenth Amendment guarantees Trammel a 'meaningful opportunity to present a complete defense.' An alternate theory is part of a complete defense."

So she could quote the Const.i.tution. She was book smart but experience poor.

"California versus Hall, nineteen eighty-six. Look it up." nineteen eighty-six. Look it up."

I pointed to her laptop, which was open on the corner of my desk. She leaned over and started typing.

"Do you know the citation?"

"Try forty-one."

She typed it in, got the ruling on her screen and started scanning. I looked over at Cisco, who had no idea what I was doing.

"Read it out loud," I said. "The pertinent parts."

"Uh...'Evidence that another person had motive or opportunity to commit the charged crime, or had some remote connection to the victim or crime scene, is insufficient to raise the requisite reasonable doubt... Evidence of alternate party culpability is relevant and admissible only if it links the alternate party to the actual perpetration of the crime...' Okay, we're screwed."