“Mr. Valenzuela, who were you delivering that subpoena for?” I asked.
“I was working for an attorney named Sylvester Fulgoni Jr.,” he responded.
I half expected Valenzuela to add to his answer the improvisation about Fulgoni being the attorney who put the F-U in litigation, but luckily he spared the jury that. Maybe he was finally getting the hang of being a witness.
“And what was the case the subpoena was attached to?”
“It was called Moya versus Rollins. A convicted drug dealer named Hector Moya was trying to—”
Forsythe objected and asked to approach the judge’s bench. He obviously didn’t want the jury hearing any part of what Valenzuela wanted to say. The judge waved us up and turned on the noise-canceling fan.
“Judge, where is this going?” Forsythe asked. “With his very first witness Mr. Haller is trying to hijack this murder case and take us into another, completely unrelated litigation. I’ve held back on my objections, but now . . . we have to stop this.”
I noted his use of we, as though he and the judge shared the responsibility of keeping me in check.
“Your Honor,” I said, “Mr. Forsythe wants to stop this because he knows exactly where I am going with it—and it’s a place that he knows is going to derail his whole case. The case Gloria Dayton was served on is exceedingly germane to this case and this trial, and the entire defense theory is built on it. I am asking you to let me proceed and soon enough you will understand why the state wants to block this.”
“‘Exceedingly,’ Mr. Haller?”
“Yes, Your Honor, exceedingly.”
She gave it a moment’s thought and then nodded.
“Overruled. You may proceed, Mr. Haller, but get there soon.”
We returned to our positions and I asked Valenzuela the question again.
“Like I said, Moya versus Rollins. Rollins is the warden of the prison in Victorville where Hector Moya’s been for, like, seven or eight years. He’s trying to get out on account that the DEA set him up by planting a—”
Forsythe objected again, which seemed to annoy the judge. He asked for a sidebar once more but the judge said no. He had to state his objection in open court.
“As far as I know, Judge, the witness is not an attorney, but he is giving a legal interpretation of a habeas case and about to offer as fact the allegations that are merely contained in a lawsuit. We all know that anybody can say anything in a lawsuit. Just because it is said doesn’t—”
“Okay, Mr. Forsythe,” the judge said. “I think you’ve made your objection clear to the jury.”
Now I wished he had gotten the sidebar. Forsythe had expertly used the objection to undercut Valenzuela’s testimony before he had even given it. He reminded the jury in real time that Moya vs. Rollins was just a lawsuit that contained allegations, not proven facts.
“I’m going to overrule the objection and let the witness finish his answer,” Leggoe said.
In a slightly deflated tone I told Valenzuela to give his answer again and he summarized the main charge of Moya’s habeas petition—that the gun that ended up putting him away for life had been planted by the DEA.
“Thank you,” I said when the answer was finally out and in the record. “What did you do after you served Giselle Dallinger with that subpoena?”
Valenzuela looked confused by the question.
“I, uh . . . I guess I told Mr. Fulgoni that it was done,” he said.
“Okay, and did you ever see Ms. Dallinger again?” I asked.
“No, not at all. That was it.”
“When did you next hear about Ms. Dallinger after November fifth?”
“It would’ve been about a week later, when I heard that she’d gotten murdered.”
“How did you hear that?”
“Mr. Fulgoni told me.”
“And did you learn anything else about her death?”
“Well, yeah, I read the paper and I saw that a guy had been arrested.”
“You’re talking about Andre La Cosse being arrested for her murder?”
“Yeah, it had it in the paper.”
“And how did you react to that news when you read it?”
“Well, it was like I was relieved, because it meant that we didn’t have nothin’ to do with it.”
“What do you—”
Forsythe objected again, citing relevance. I argued that Valenzuela’s reaction to news of the murder and arrest were relevant because the defense’s case was based on the fact that the subpoena that was served on Gloria Dayton was what motivated her murder. Leggoe allowed me to proceed subject to her determining relevancy after the witness’s testimony was completed. This was a win with an asterisk for me. Even if the judge later struck Valenzuela’s answers from the trial record, she wouldn’t be able to strike them from the memories of the twelve jurors.
“Go ahead, Mr. Valenzuela,” I said. “Tell the jury why you were relieved when you heard that Mr. La Cosse had been arrested in the murder.”
“Well, because it meant it had nothing to do with this other thing. You know, the Moya case.”
“Well, why would you have been worried about that in the first place?”
“Because Hector Moya is a cartel guy, and I thought, you know, that—”
“I think I’m going to stop the witness there,” Leggoe said. “Now we are getting into an area beyond the witness’s expertise and knowledge. Ask a different question, Mr. Haller.”
But I had no more questions. For all his unpolished delivery, Valenzuela had been an A-plus witness, and I felt good about how we had come out of the gate. I turned the floor over to Forsythe for cross-examination but he was wise enough to pass. There wasn’t much he could get out of questioning Valenzuela without one of them repeating things that supported the defense theory.
“I have no questions, Your Honor,” he said.
The judge excused Valenzuela and he made his way out of the courtroom. Leggoe told me to call my next witness.
“Your Honor,” I said. “This might be a good time to break for lunch.”
“Really, Mr. Haller,” Leggoe said. “Why is that? The clock says it is twenty minutes to twelve.”
“Uh, Judge, my next witness is not here yet, and if I could have the lunch hour, I am sure I can have him here to start the afternoon session.”
“Very well. The jury is excused until one o’clock.”
I moved back toward the defense table while the jury filed out of the courtroom. Forsythe gave me a look and shook his head as I moved by him.
“You don’t know what you just did, do you?” he whispered.
“What are you talking about?” I asked.
He didn’t answer and I kept moving. At the defense table I started gathering my legal pads and documents together. I knew better than to leave anything on the table during court breaks. The moment the door closed on the last juror, the judge’s voice boomed through the courtroom.
“Mr. Haller.”
I looked up.
“Yes, Your Honor.”
“Mr. Haller, how would you like to join your client for lunch in lockup?”
I smiled, still not aware of any trespass that I had committed.
“Well, I wouldn’t mind the company, but cheese sandwiches aren’t on my list of culinary favorites, Your—”
“Then let me put you on notice, Mr. Haller. You never suggest a lunch break or any break in front of my jury, do you understand that?”
“I do now, Judge.”
“This is my courtroom, Mr. Haller, not yours. And I decide when we break for lunch and when we don’t.”
“Yes, Your Honor. I apologize and it won’t happen again.”
“If it does, there will be consequences.”
The judge then left the bench in a huff, her black robes flowing behind her. I gathered myself and looked over at Forsythe, who had a sneaky smile on his face. He’d obviously worked in Leggoe’s courtroom before and knew her personal rules of decorum. Big deal, I
thought. At least she waited until the jury was gone before she brought out the hammer.
When I got out of the courtroom and into the hallway, I found Cisco pacing near the elevators. He was holding his cell phone to his ear but not talking.
“Where the fuck is Fulgoni?” I demanded.
“I don’t know,” Cisco said. “He said he’d be here. I’m on hold with his office.”
“He’s got one hour. He’d better be here.”
31
Kendall had left before the lunch break to head up to the Valley and her shift at Flex. Lorna and I walked down Spring and then over to Main to a place called Pete’s Café. Along the way I occasionally looked back over my shoulder to make sure we had security with us. Moya’s men were always there.
We’d chosen Pete’s because it was good and fast and it served an excellent BLT, which for some reason I was craving. The only issue I ever had with eating at Pete’s was that it was always full of cops, and this time was no different. Just a couple blocks from the Police Administration Building, the restaurant was a favorite with command staff suits and detectives from the elite Robbery-Homicide Division squads. I exchanged awkward nods and stares with a few guys I recognized from prior trials and cases. We got a table that was cut off from the view of most of the restaurant by a wide support column, and that was fine with me. I was beginning to feel like I had wandered into an enemy encampment when all I wanted was a BLT on whole wheat toast.
Lorna was smart enough to ask me if I wanted her to be quiet while I thought about the case and the day’s after-lunch session. But I told her there was no sense in my strategizing a plan for the afternoon until I knew whether Sly Jr. was going to be in court as he was supposed to be. So after ordering we spent the time studying my calendar and looking for billable hours. The firm was running out of money. Before it was known that there would be no more gold bars coming from Andre La Cosse, I had spent liberally on P&I—trial preparation and investigation. More was going out than was coming in, and that was a problem.
This was one reason that Jennifer Aronson was not in court this morning. I could not afford to take her off the work for the few other paying clients we had. She spent the morning at a bankruptcy hearing regarding the owner-landlord of the loft we used for our team meetings.
At least the credit card I used to pay for lunch went through. I could only imagine the humiliation that would have come from my card being confiscated and cut in half in front of an audience of cops.
The good news was then doubled when I got a text from Cisco on our way back to the courthouse.
He’s here. Good to go.
I shared the news with Lorna that Fulgoni was in the courthouse and was then able to relax the rest of the way back. That is, until Lorna brought up the thing we had steadfastly avoided bringing up for nearly two months.
“Mickey, do you want me to start looking around for a driver?”
I shook my head.
“I don’t want to talk about it right now. Besides, I don’t have a car. What do I want a driver for? Are you saying you no longer want to drive me?”
She had been picking me up each morning and taking me to court. Usually it was Cisco who drove me home, so he could check the house to make sure it was clear.
“No, it’s not that,” Lorna said. “I don’t mind driving you at all. But how long are you going to wait before you try to get back to normal?”
The trial had been a good salve on the internal wounds left by the crash. The attention it required kept my mind from wandering back to that day we had gone up into the Mojave.
“I don’t know,” I said. “Besides, we can’t afford normal. There’s no money for a driver and there’s no money for a car until I get the check from the insurance company.”
The insurance check was held up by the investigation. The California Highway Patrol had classified the crash as a homicide caused by the intentional hit-and-run by the tow truck. The truck was found a day after the accident, parked in a field in Hesperia and burned to a charred hulk. It had been stolen from a tow lot the morning of the crash. The CHP investigators, as far as I knew, had no line on who had been driving the truck when it had rammed into my Lincoln.
As Sylvester Fulgoni Jr. made the long walk from the rear entrance all the way to the witness stand at the front, he swiveled his head back and forth as if seeing the inside of a real courtroom for the first time. When he got to the stand, he started to sit down and the judge had to stop him so he could remain standing while taking the oath to tell the truth, the whole truth, and nothing but the truth.
After the preliminary questions that established who Fulgoni was and what he did, I zeroed in on Hector Moya’s habeas case, asking Fulgoni to go through the steps that led him to subpoena Gloria Dayton to appear for a deposition.
“Well, it started when Mr. Moya told me that the gun that was found by police in his hotel room was not his and that it had been planted,” Fulgoni answered. “Through our investigation we concluded that there was a strong possibility that the gun was already hidden in the room when the police arrived to make the arrest.”
“And what did that tell you?”
“Well, that if the gun was planted as Mr. Moya insisted, then it was planted by somebody who had been in that room before the police arrived.”
“Where did that lead you?”
“We looked at who had been in that room during the four days Mr. Moya was staying there before the bust. And through a process of elimination we narrowed our focus to two women who had been to the room multiple times in those days. They were prostitutes and they used the names Glory Days and Trina Trixxx—that’s spelled with three x’s. Trina Trixxx was easy to find because she was still working under that name in Los Angeles and had a website and all of that. I contacted her and arranged to meet her.”
Fulgoni stopped there, waiting for further direction. I had told him when we discussed his testimony not to take big bites out of the story, to keep his answers short. I also told him not to volunteer anything about paying Trina Trixxx for her cooperation. I didn’t want to drop that piece of information into Bill Forsythe’s lap.
“Will you tell the jury what happened at that meeting?” I asked.
Fulgoni nodded eagerly.
“Well, first she revealed that her real name is Trina Rafferty. She also acknowledged knowing Mr. Moya and being in his room back at that time. She denied ever planting a gun in the room but admitted that her friend Glory Days had told her she did.”
I did my best to feign confusion, raising one hand in an I-don’t-get-it gesture.
“But why would she plant the gun?”
This set off an objection from Bill Forsythe and a five-minute exchange of arguments at sidebar. Eventually I was allowed to proceed with my question. This is one of the few places in a criminal trial where the defense has an advantage. Everything about a trial is stacked against the defense, but the one thing no judge wants is a reversal on appeal due to judge’s error. So the wide majority of jurists, and this included Judge Nancy Leggoe, bend over backwards to allow the defense to proceed as it wishes as long as it stays close to the lines of evidentiary procedure and decorum. Leggoe knew that every time she sustained an objection from Forsythe, she risked being second-guessed and reversed by a higher court. By contrast, rejection of prosecutorial objections rarely carried the same risk. In practice this meant that giving the defense wide latitude in mounting its case was the safest judicial route to take.
Once I was back at the lectern, I again asked Fulgoni why Glory Days would plant a gun in Hector Moya’s hotel room.
“Trina Rafferty told me that both she and Glory Days were working for the DEA and they wanted to put Moya away for—”
Forsythe practically became airborne when he jumped up to object.
“Your Honor! Where is the foundation for that? The state strenuously objects to the witness and defense counsel using this trial to wander aimlessly through this valley of innuendo.”
&nbs
p; The judge was swift in her response.
“I think Mr. Forsythe is correct this time. Mr. Haller, lay the foundation or move on to another topic with the witness.”
So much for the defense advantage. I took a few seconds to pull back and retool the examination. I then led Fulgoni through a series of questions that established the parameters of Moya’s arrest and conviction, paying careful attention to the federal code that allowed prosecutors to enhance the charges and seek a life sentence because he was found in possession of a firearm and two ounces of cocaine—a quantity deemed by federal code to be more than for personal use.
It took me nearly a half hour but eventually I got back to the question of why Glory Days—who we had now established was Gloria Dayton—would plant a gun in Moya’s room. Forsythe objected again, saying the groundwork I had just covered was insufficient, but finally the judge agreed with me and overruled the objection.
“We believed, based on facts brought forward in our investigation, that Gloria Dayton was a DEA informant and that she planted the gun in Mr. Moya’s room on the orders of her DEA handler.”
There. It was on the record. The cornerstone of the defense. I glanced over at Forsythe. He was writing furiously, even angrily, on a legal pad and not looking up. He probably didn’t even want to see how the jury was reacting to this.
“And who was her DEA handler?” I asked.
“An agent named James Marco,” Fulgoni replied.
I looked down and acted like I was checking notes on my own legal pad for a few moments so the jurors could let that name—James Marco—sink in deep.
“Mr. Haller?” the judge prompted. “Ask your next question.”
I looked at Fulgoni and thought about which way to go, now that I had Marco’s name before the jury.
“Mr. Haller!” the judge prompted again.
“Yes, Your Honor,” I said quickly. “Mr. Fulgoni, where did you get the name James Marco as Gloria Dayton’s supposed DEA handler?”