Misdemeanor Trials (26 page)

CHAPTER FIFTY FIVE

CATCHING UP

John rolled into the office with black hair cut to a civilized length with long roots showing a noticeably lighter color, and a tan that was fading.  He was greeted by his fellow Prosecutors as he walked into the office.  He took the elevator and walked over to Tom's cubicle to get new files to catch up on and get ready for the shakeout.  Tom as usual had arrived early and was reading files, most of which were scattered about his office.  “Good morning, Tom,” said John.

“You look good, John,” said Tom.  “You look rested from what looks like a long stretch on a sandy beach.  It's good you're rested, because things have changed here.  I don't have any cases for you.  Guess why? You might like it.  You are immediately assigned to the felony burglary, assault and theft trial team.  You have to be up on the seventh floor as soon as possible.  You can move your stuff here this morning to room 706 because I have a new misdemeanor trial deputy moving into your cubicle this afternoon.  When you get there, report to Ned Drake.  He is your new team leader.  Good luck.”

John told Tom the new assignment was welcomed, and that he had learned a lot from Tom.  He turned and left to go to his cubicle.  His cubicle was just like he left it.  He gathered his pencils, pens, desk lamp, Penal Code, Evidence Code, photos, yellow tablets, and paper clips and put them in boxes.  He requested a wheeled cart from maintenance and piled the boxes on.  He took the elevator up to the seventh floor and found room 706.  It was a real office, not much larger that a closet, but it had a window that looked out over the city and another window that looked on the hallway that passed his door.  There would be no hiding or napping in that office.  There was a file cabinet behind his desk and several cardboard boxes on the floor.  He figured he would look at those later.  He was unloading the cart when Cody stopped at his door.  “Welcome to the seventh floor, John.”

“Thanks,” said John.

“You look good in a tan, John,” she said.  “It must have been a nice trip.  You certainly left in a hurry.  But anyway, welcome back.  If you need any help on the procedures up here, let me know.  You will be meeting a lot of new felony Judges.  They are all as bad as Crawford.  Don't let Ned's barking at you cause you any concern.  He barks at everyone and it doesn't mean a thing.  And finally, you stood me up before you went on your trip.  I took a rain check on drinks that we were going to have before you stood me up.  Let's reschedule.  I would love to hear about what was obviously a vacation.  You'll have to tell me about the black hair.”

“Sure enough,” said John.

“See you,” said Cody and he watched her leave, her cherubic features promising a soft and pleasant experience.  He thought to himself that he would really like to get in touch with that.

A few minutes later Ned, who he had met, but did not know very well, came to his door.  “Good morning, Mr. Trader.” Ned was tall and too thin for his height.  His white shirt was starched and his pants sharply creased.  John thought he was probably in the military at some time, or maybe just brought up well.

“Hi,” replied John.

“You have about thirty felony files in the credenza behind your desk.  Some of the cases have additional files, reports, evidence and so forth in the boxes against the wall.  You don't have anything on the trial calendar until next week, so you should have time to review the cases for next week.  If you have questions, Consuelo is the felony paralegal.  If you have questions, go to her, don't come to me.  Sometimes we need backup for team members in trial, and that may set up a situation where you have to take a hand-off case for trial without any notice.  Team meetings are at seven on Friday mornings unless you are in trial.  Don't be late.” Ned turned and left.

John did not expect a welcome from Ned.  He did not get one.  He unloaded the boxes he had brought from his cubicle in misdemeanor trials, ordered his desk and reached back to the credenza to start reading his first felony caseload.  He became absorbed in the cases and before he realized it was afternoon.  He needed some lunch, but before he could go, his desk phone rang.  It was Tom.

“One more thing, John.  I need you over in Crawford's department.  There is a newbie there and she needs help right away.  Be second chair.  Ned is okay with it,” said Tom.  The conversation ended.  John could hear his stomach growl as he put on his jacket and headed for court.  He had been hungry before and he knew he could be hungry again.

When he arrived in court he looked at Crawford and nodded as he approached the Prosecutor's table.  Crawford nodded in return.  The jury had been impaneled and the Public Defender was Casey.  Casey was aggressive as he began the cross examination of the newbie’s witness, a uniformed police officer.  John slid into the chair next to the Prosecutor and whispered in her ear, “Casey crosses the line a lot.  If I nudge you in the leg, make an objection.”

Without turning from her focus on the trial, she nodded, “Yes”.  John glanced at the open file in front of the newbie.  He could see it was a Driving Under the Influence charge.

Casey was in full cross examination mode.  “Officer Milburn, when you approached the vehicle, did my client say anything?” asked Casey.

John nudged the leg of the newbie.  She immediately stood up and said, “Objection”.

Crawford said, “Sustained.”

Casey then asked, “When you spoke with my client he told you he had medical problems, didn't he?”

Again John nudged the leg of the newbie.  She immediately stood up and said, “Objection”.

Casey then asked, “My client had medical problems, didn't he?”

John nudged the leg of the newbie.  She immediately stood up and said, “Objection.”

Crawford said, “Sustained.” Crawford then looked at Casey and said, “Mr. Casey, the questions you are asking calls for hearsay by the defendant which has not been offered by the party opponent.  Further, questions that require an answer based on statements by the defendant are irrelevant if not offered by the party opponent.  Please move along.”

John looked at the newbie who was intensely focused on the questioning.  He saw a broad grin on her face.  He thought to himself, “She's hooked.”

CHAPTER FIFTY SIX

THE O'REILLY FACTOR

John returned to his office.  “There's an officer waiting for you,” said the receptionist as John walked down the hallway to his new office.  Sitting in the visitors chair was a man somewhere younger than middle aged man with a brown plaid jacket and green slacks.  He had close cropped salt and pepper hair and a pleasant face.  When John walked in he stood up, put out his hand and introduced himself.  “Mr. Trader, my name is Mark O'Reilly.  I'm a detective on the Homicide unit.”

“What can I do for you, Detective O'Reilly?” asked John.

“I am the detective assigned to the murder of a fellow you know as Marty Stolz, and also I was assigned to the Zelaya killing.  In my judgment they are related, especially with the history Zelaya has with dealing with potential witnesses against him.  I heard that you were interested in the outcome of the Marty Stolz case.”

“I am,” replied John.

“The earlier police reports say you were the first person he gave a statement to.  He said he observed Zelaya shoot a small time drug dealer named Chavez.  I thought I would drop in and give you an update.  The receptionist told me you would be back in a few minutes, so I decided to wait.”

“Thanks,” said John.  “I am interested.  I thought Stolz was a standup guy with a compelling history.”

“I thought you might be interested,” said O'Reilly.  “I usually might update a D.A. on a case over the phone, or send an email, but I've heard some good things about you.  You were in the military and came out with a good military record.  Myself? I was a Marine.  I think the service teaches discipline and builds character.  I think the country would be a more cohesive place if every eighteen year old had to spend two years in the Military.  But those days are gone and that's another story.  But back to you.  Scuttlebutt is that you were off work for quite some time on some service to the country.  I hope it turned out well.”

“As well as could be expected,” replied John.

“Zelaya, you probably know, was a dealer who controlled the distribution of drugs in a large area of the city.  I have had several confrontations and investigations of him over the years.  In the past when I have had a decent case against him, the witnesses would recant, or be found dead, or just disappear.  For several years I have had a real strong professional interest in developing some kind of case against him.  When I received the report of Marty Stolz, it appeared his eyewitness testimony would be solid.  The weak part of the case was that I was missing a weapon and a body.  Marty was a credible witness.  He apparently has a good reputation with the D.A.'s office and helped you guys on another case.  I talked to him at length about what he saw, and he seemed to be a pleasant and trustworthy guy.  I spent some hurried time trying to find a body or a weapon or a corroborating witness on the Chavez killing.  I knew I did not have much time.  Even though I tried to protect Marty, there were too many avenues of leaks to Zelaya.  I am not saying there is corruption, there is just too much talk in the police department, the D.A.'s office and the Parole office among each other and with criminals they contact.  Even when I went to a confidential informant to see if I can find out where Zelaya might have been, the news is on the streets right away, and Zelaya knows we are interested in him.  When Stolz was found with a .22 caliber bullet in his forehead, it had the trademark of Zelaya.

“Then I got the call on a Saturday morning that there was a killing on the Ferry.  I was the on-call detective that day, and when I got to the Ferry and saw Zelaya lying in a pool of blood, I must admit, I was a little disappointed.  I wanted to be able to prove a case that would send him away for the rest of his life.  Instant, anonymous death was almost too good for that guy.  I knew his death might cause a turf war among the drug dealers so I had to find the killer.  In talking to the one witness on the Ferry, he said that Zelaya was up on the deck with three guys when the Ferry was just about to pass under the bridge.  Suddenly Zelaya grabbed his neck and fell to the deck.  One of the guys on the other side of the deck came over to Zelaya for a second, went back to the two others, and he said he thought he saw each of them pull out handguns and throw them over the side, and then move rapidly down the stairs.  One of his bodyguards could have been turned by another dealer who was in competition with Zelaya, but that seemed implausible.  The coroner was reasonably certain the wound in Zelaya's neck was made by a bullet, but without any further evidence, he could not be certain.  Whatever the source of the wound, it seemed the impact came from the east, because Zelaya's body indicated he had fallen backwards from the handrail.  In my mind it ruled out the three bodyguards, because they were on the other side of the fantail.  I thought about dragging the bottom of the waterway for the guns in the area under the bridge, but even if we found all three guns, how would we be able to match it with the weapon or, probably, the bullet that killed Zelaya.  The bullet wasn't found and probably passed through the neck of Zelaya and flew into the bay.  It is lying somewhere at the bottom of the bay.  Even if we could make a match of the wound with one of the guns, who among the three of them owned that gun? I knew the chief would not approve any expenditure like dragging the bottom              when the outcome would prove nothing, especially in the death of a low-life drug dealer.  The next week I went to the Winton pier and I saw they had cameras on the pier that pointed to the Ferry docking port.  The Port Authority supplied me with video from the pier that showed Zelaya and his bodyguards climbing on the fantail of the Ferry that Saturday morning before it pushed off.  Now I knew where they got on.  The next video clip was from a camera on the bridge which showed the Ferry as it approached the bridge.  I could see what were now just unidentifiable stick figures.  But I could see who they were.  The three bodyguards were on the west side of the fantail, and Zelaya was leaning on the handrail on the east side of the fantail looking towards the east shoreline.  The next video was from a camera on the other side of the bridge.  It showed Zelaya on the deck and the quick departure of the three bodyguards down the stairs from the deck.  Nothing definitive, but now I knew when and where the killing happened.  The Port Authority Security chief told me that there was another camera that was supported by the National Weather Service right near the bridge.  When I contacted the fellow who had the responsibility for maintaining the camera, he told me the camera supplied only still shots every few minutes.  It was worth my while to visit the camera when he told me it was located on the west bank and was pointed to the east bank, including the skyline and mostly the sky.  After all, it was a weather camera.  I met the fellow at the west end of the bridge and we walked to the room under the bridge that housed the video equipment.  We looked for a shot that was taken around the time of the killing, but the only thing we saw was a still of the bow of the Ferry.  In the next few minutes when the next shot was taken, the Ferry was no longer in the picture.  But while I was there he showed me an access log that indicated a time and the program that logged onto the N.O.A.A. site and downloaded the information on temperature, wind, humidity, and so on.  There were lots of hits that day on the list.  I got a log printout and went back to the office. 

“There was something on the log that was of some interest to me.  Access had been made by a military program for an application to a CheyTac Intervention M-200 rangefinder, giving the temperature, humidity, wind that would be pumped into the rifle's small computer that would give real accuracy for a long range shot.  I went back to the coroner to get his opinion.  He said that it was only wild speculation that Zelaya's wound could have come from a .408 CheyTac bullet, and he would offer no official opinion and confirmed he could not testify to that.

“I spent the next afternoon over on the east bank near the bridge.  It's a rundown area with abandoned buildings.  There was no traffic on the streets of the east bank, and the place was quiet except for the occasional blast of the Ferry or some other barge horn.  I walked into several of the abandoned buildings that had a view of the river, but I didn't find anything of real interest or evidence that was conclusive of anything.

“At this point I am sure I could not get a search warrant.  No D.A. would sign off on a warrant.  There just isn't enough.  But if I could, I am confident I would find something.

“That's about it.  You've gotten a report that is a bit longer and more detailed than will appear in my hastily written report, but I thought you would like to know.  As far as I can see, I am at a dead end to this investigation.  I don't think the chief will allow me any more time on either case, but I have no problem speculating that Zelaya either killed Marty or had him killed.  That's the sad part of this case.” A short but heavy moment of silence followed.  Then O'Reilly stood up from his chair, reached his hand out towards John and said, “It has been nice meeting you, Mr. Trader, but I have to be back at the office.” John shook his hand, but said nothing.  O'Reilly turned to go, and when he reached the doorway, he put his left hand on the door frame, shoulder high, turned his head back towards Trader and said, “Next time, John, be a bit more careful.”