Resurrection Walk

40

I asked for the morning break as soon as Bosch was excused from the witness stand. The judge gave us fifteen minutes. Maggie McFierce grabbed her thin leather briefcase and was out of the courtroom and gone before I could get to her. It didn’t matter, because I was more concerned about Bosch. I met him at the railing.

“Don’t say anything here,” I said. “Let’s go out and grab a conference room.”

We exited the courtroom. The hall was empty. No sign of Maggie. We walked to an attorney meeting room that was one courtroom down, a small space with a table and chairs and four windowless walls. I felt claustrophobic as soon as we walked in.

“Sit down,” I said. “Harry, I don’t know what you’re thinking, but let it go. The cop who wrote that report was full of shit and so are Maggie and Morris. Fuck them.”

“How did she know about UCLA?” Bosch said. “That could not possibly be discovery stuff. She—”

“I’m sorry, man. That’s on me. Last time we had dinner together with Hayley, I mentioned that you were working for me and that I’d gotten you into that trial. It was before she even took the job with the AG. I can’t believe she used it. I’m sorry, Harry.”

Bosch shook his head.

“Well,” he said. “How bad does it hurt us?”

“I don’t know,” I said. “I think the judge could see that you don’t have any kind of problem. The whole thing is bullshit. And what it shows is that their so-called geofencing expert had to resort to character assassination because she could find nothing wrong with your direct testimony about geofencing. That’s not going to be lost on the judge.”

I took out my phone, turned it on, and waited for it to boot up.

“It’s always been the defense lawyers who pulled that kill-the-messenger sort of shit,” Bosch said. “Not the DA, not the AG.”

“It was low,” I said. “And I’m going to make sure she knows it.”

“Don’t bother. It’s over. Have we heard anything from Applied Forensics?”

“Shami’s over there. Last I heard they’re still working on it.”

I opened up a text to Maggie and started typing.

I reread what I had typed and then sent it. I checked my watch. We needed to get back into the courtroom in five minutes.

“Okay, are you good?” I asked.

“I’m fine,” Bosch said. “But I don’t think my saying I don’t get lost while driving is going to be enough to fix the damage.”

“It’s the best I could come up with on the spot. But it’s not just about that. You testified thoroughly and professionally last week. You were in complete command of the cell-tower data and the judge saw and heard that. She won’t make any decision based on what just happened. I think we’re fine. What I need now is for you to go find Frank Silver and bring him in. We’re going to need him to testify if and when we get the results from Shami.”

“What about Sanger?”

“She’s last — after we have the DNA.”

“And MacIsaac?”

“No MacIsaac. I’m not going that route.”

“What? I thought this whole thing was to get the judge to—”

“All of that’s changed. We’ll never get MacIsaac on the stand, so we go without him.”

“How do you know she won’t order him to testify?”

“Because he paid me a visit last night.”

“What?”

“After dinner, when I got home, he was sitting on my porch. He’s working undercover on a national-security thing and they’re not going to let him near the courthouse.”

“Bullshit. They use that national-security crap anytime they don’t want to—”

“I believed him.”

“Why?”

“Because he gave me something. Something I can use against Sanger.”

“What?”

“I can’t say at the moment. I have to figure a few things out and then I’ll tell you.”

Bosch looked at me as though I had just said I didn’t trust him.

“Look, I’ll bring you into the loop as soon as I can. I need to get back to court now, and you need to find Second-Place Silver.”

Bosch nodded.

“Okay,” he said.

He got up and turned to the door.

“And I’m sorry, Harry,” I said. “About what Maggie pulled in there.”

“It’s not on you, Mick,” he said. “I’ll let you know when I have Silver ready to go.”

In the hall, he went one way and I went the other, toward the courtroom. Before I got there, Maggie hit me back with a text.

I decided not to respond. Instead, I called Shami Arslanian.

“Where are we?” I asked.

“We just got results,” she said. “I’m looking at them now.”

I braced myself. This was the case.

“And?” I prompted.

“There was DNA on the swab,” she said. “It’s not Lucinda’s.”

I suddenly, almost involuntarily, moved to one of the marble benches lining the hall and sat down, the phone pressed against my ear. In that moment, I felt that we would win, that Lucinda Sanz would walk free.

“Mickey, are you there?” Arslanian said.

“Uh, yeah,” I said. “I’m just... this is incredible.”

“There is a complication.”

“What’s that?”

“The DNA that’s there comes from two other people. One is unknown. But we already matched the other because it belongs to a former lab tech at Applied Forensics. They always run matching to their own personnel to guard against contamination.”

“What does this mean, Shami?”

“The lab tech it matches has not worked here in four years. It means that at some point when the evidence was brought here, it got mishandled and contaminated with his DNA. Again, we’re talking about touch DNA, which at the time they didn’t have a protocol for.”

I closed my eyes.

“Jesus Christ. Every time I think we’ve grabbed the brass ring, something goes wrong and we’ve got shit.”

“I’m sorry, Mickey. But the important thing is that Lucinda’s DNA is not on the GSR pad. This proves your theory of the crime. Are you saying you won’t be able to use this in court?”

“I don’t know. I really don’t know. But I need you to get back to the courthouse as soon as you can with whatever reports you have there. Get the name of the tech from before and whatever documentation there is about the contamination. You’ll probably have to explain everything in an evidentiary hearing before the judge. I’m going to go ask for that now.”

“Okay, Mickey, I’ll grab an Uber.”

I disconnected and tried to compose myself, channeling the ghost of Legal Siegel. Breathe it in. This is your moment. This is your stage. Want it. Own it. Take it.

I got up off the bench and reentered the courtroom.

41

Over my objection, Judge Coelho held the evidentiary hearing behind closed doors. The Latin term for it was in camera, which sounded like the opposite of a private meeting. I had opposed it because if the judge ruled against the introduction of the DNA findings, I wanted the world to know it and share in my outrage. But my argument for an open hearing fell on deaf ears, and I found myself sitting next to Hayden Morris in front of Coelho and her massive desk in chambers. My client was deemed unnecessary to the hearing and was waiting in the courtside lockup for me to tell her how things shook out.

“Before we begin, we need to inform Mr. Morris of what has transpired over the past five days,” Coelho said. “Last Wednesday, Mr. Haller came to me and informed me that evidence from the earlier adjudicated case had been located. He asked for sealed orders that would allow him to pursue the testing of this evidence.”

“What was the evidence?” Morris asked. “And what tests are we talking about?”

“It gets complicated, Mr. Morris,” the judge said. “I’ll let Mr. Haller explain the details.”

She nodded to me and I took up the story.

“Yes, Your Honor,” I said. “During the initial prosecution of the case five years ago, defense counsel — a lawyer named Frank Silver — asked for a split of evidence so he could conduct independent testing. There were two gunshot-residue pads presumably used to swipe Lucinda Sanz’s hands, arms, and clothing. As you know, GSR was a key piece of the prosecution’s case. The court gave him one of the two pads to have independently tested for gunshot residue.”

“This was before the plea agreement?” Morris asked.

“Exactly,” I said. “The pad was transferred to Applied Forensics, an independent lab out in Van Nuys that still operates today. While that was happening, plea negotiations began, and as we all know, Lucinda Sanz took the plea deal. She went off to prison after pleading nolo, and Silver never bothered going back to Applied Forensics to retrieve the evidence. We learned of this Wednesday, checked it out, and the evidence was still in storage at the lab — largely because Silver never paid the lab’s bill.”

“You’ve got to be kidding me,” Morris said, shaking his head. “This sounds like a setup if I’ve ever heard one. Your Honor, why are we even considering this?”

“Let Mr. Haller continue,” Coelho said.

“Think what you want,” I said. “But I came to the judge Wednesday and asked for orders to have the remaining pad tested for DNA, because if the pad was actually swiped over my client’s hands and clothes, we would find her DNA — her touch DNA — on the pad. I have a forensics expert who backs me up on this. The judge then ordered the U.S. Marshals to swab Sanz and take her DNA sample to Applied Forensics.”

“I don’t care who backs you up,” Morris said. “This is incredibly unusual and the wrong protocol. This should have been handled by either the sheriff’s lab or the state DOJ’s crime lab, not some fly-by-night lab in the Valley.”

He said it in a tone that suggested all of the San Fernando Valley was a haven for fly-by-night businesses and people.

“Mr. Haller asked me to seal the orders,” the judge said. “He wanted the evidence analyzed privately because of his concerns over obstruction from within the government agencies. I agreed. The orders were sealed until there were results. If this goes any further, you will have the opportunity to test the evidence at the lab of your choice, Mr. Morris. Now, Mr. Haller, I assume you called for this session because you have results?”

“Yes, Your Honor,” I said. “The lab results are in. The GSR pad did contain gunshot residue. Two unique DNA profiles were also identified and compared to my client’s profile. There was no match. That pad was never swiped over my client’s body, and this is proof that she was framed for her ex-husband’s murder.”

“It’s proof of nothing,” Morris said. “This is incredible. The court has been manipulated by this... this grand master of smoke. Your Honor, this evidence, if you want to call it that, is clearly not admissible.”

“I believe that is a decision for the court to make, Mr. Morris,” the judge said. “And perhaps you would like to explain how the court has been manipulated. I’m sure Mr. Haller has witnesses and documentation of every step of this process over the past five days. I’m sure his forensics expert, whom we have already heard testimony from, is standing by to render her expert opinion that a pad wiped over a person’s body and clothing would have to pick up that person’s DNA. Where is the manipulation of the court?”

“Your Honor, I’m sorry if I impugned the integrity of the court,” Morris said quickly. “That was not my intention. But this story is too far-fetched. It’s eleventh-hour pyrotechnics by counsel designed to distract the court from the evidence of direct culpability that has always been there.”

“If it is eleventh-hour pyrotechnics, I’m sure the state’s lab will bring it to light,” Coelho said, annoyance in her voice.

“There is also a bit of a complication,” I said.

Coelho turned her annoyance in my direction.

“What complication?” she said.

“As I said, there were two unique DNA profiles found on the GSR pad,” I said. “One remains unidentified. The other has been identified as a lab tech who previously worked at Applied Forensics.”

Morris threw his hands up in exasperation.

“Then the whole thing’s tainted,” he said. “It’s inadmissible. No question.”

“Again, there is a question and it’s for the court to decide,” Coelho said.

“I would argue that it’s not tainted,” I said. “The evidence was submitted for GSR analysis and was handled by the lab tech according to that protocol, not DNA protocol. Not touch-DNA protocol. Five years ago, there were very few labs that even had protocols for touch DNA. But that was not the purpose of Frank Silver’s original submission.”

“Doesn’t matter,” Morris said. “It’s tainted. It doesn’t come in. Inadmissible, Your Honor.”

I looked at the judge. My argument had been directed toward her, not Morris. But I didn’t want her to make a ruling yet.

“Your Honor,” I said, “I would like to make a motion to the court.”

Morris rolled his eyes.

“Here we go,” he said.

“Mr. Morris, I’ve grown weary of your sarcasm,” Coelho said. “What is your motion, Mr. Haller?”

I leaned forward over the edge of her desk, shortening the distance between us and cutting Morris out of my peripheral vision. This was between me and the judge.

“Judge, if we want the truth, if this is truly a search for the truth, the court should issue an order to have the unidentified DNA found on the GSR pad compared to DNA swabbed from Sergeant Sanger.”

“No way!” barked Morris. “That is not happening. And it would prove nothing anyway. So what if Sanger’s DNA is on it? She’s on record as having collected the evidence.”

“It proves the setup,” I said. “That she turned over dirty GSR pads that were never wiped over Sanz’s hands. It’s proof of Sanz’s innocence and proof that Sanger is guilty as sin.”

“Your Honor,” Morris said, “you can’t—”

“I’m going to stop you there, Mr. Morris,” the judge said. “This is what we’re going to do. I’ll take Mr. Haller’s motion as well as the question of admissibility under advisement and will issue my decisions after some research and deliberation.”

I frowned. I wanted her to rule on everything right now. Judges and juries were the same. The longer they took to decide, the more likely the outcome would be adverse to the defense.

“We’re going to take our lunch break now and will reconvene court at one o’clock,” the judge continued. “Mr. Haller, have your next witness ready to go then.”

“Your Honor, I can’t put my next witness on,” I said.

“And why is that?” Coelho asked.

“Because I won’t know whom to put on until I know your rulings on these matters,” I said. “They will dictate my next move.”

Coelho nodded.

“Very well,” she said. “Let’s push the afternoon session until two o’clock, and you will have my rulings on these matters then.”

“Thank you, Judge,” I said.

“Thank you, Your Honor,” Morris said.

“You can leave now, gentlemen,” the judge said. “I have work to do. Would you ask Gian to come back here to get my lunch order? I won’t have time to leave chambers.”

“Yes, Judge,” I said.

Morris and I stood up in unison and I followed him out. Once in the hall, I spoke to his back.

“I don’t know how this is going to shake out,” I said. “But just so I’m ready for anything, have Sergeant Sanger back at the courthouse at two.”

“Not my job, man,” he said. “She’s your witness.”

“And she works for you and takes calls from you. Have her there or I tell the judge I told you I was recalling her and you refused to cooperate. You can explain it to her then.”

“Fine.”

When we got to the door to the courtroom, he looked cautiously over his shoulder at me. But I made no move to pin him against the wall as I had done before. And he made no comment that spurred me to do so. But the moment made me realize something. I reached forward and put my hand on the door, preventing him from opening it.

“What are you doing?” he said. “Are you going to attack me again?”

“You knew, didn’t you?” I said.

“Knew what?”

“About my ex-wife. You brought her in here to stir things up, knock me off my game, because you knew about us.”

“I don’t know what you’re talking about. I had no idea you two had been married.”

“Yes, you did. You knew. Who’s the grand master of smoke now, Morris?”

I took my hand off the door and he opened it and went through without another word to me.

42

Team Sanz had a long working lunch at Drago Centro during which I reported on the in camera hearing and we planned the endgame of the case, which would depend on how the judge ruled. If the lab results were admitted, the strategy was obvious: I’d use Silver and Arslanian to introduce the timeline and evidence and then I’d bring it all home by calling Sanger back to the stand and confronting her with solid evidence that the GSR pads she had turned in had not been wiped over Lucinda Sanz’s hands. But if Coelho ruled the lab results inadmissible, I was left with only Sanger and not a lot to back up any sort of confrontational examination. Agent MacIsaac had given me a tip, but it was nothing more than innuendo. Sanger might be able to bat it away like it was a fly buzzing around her face.

“If you were betting, which way do you think she’ll go?” Bosch asked at one point.

“First of all, I wouldn’t bet,” I said. “It’s too close to call. It’s going to come down to whether she makes the legal call or the moral call. What does the law tell her to do? What does her gut tell her is the right thing to do?”

“Shit,” Cisco said. “Then you’ll have nothing to go after Sanger with. Game over.”

“Maybe not,” I said. “I had a visitor to my house last night, Agent MacIsaac. He was there to let me know that he would never testify in this case and the U.S. attorney was ready to back him on that and even defy a subpoena from a federal judge. But he didn’t come empty-handed. He told me why Roberto Sanz had gone to the Bureau and volunteered to wear a wire. It was about Sanger...”

I gave the intel that MacIsaac had given me and we spent the rest of the meal brainstorming ways of getting it into court. It was clear it would come down to my questioning of Sanger and finding the opportunity to confront her — easier said than done.

After our pasta, we bundled into the Navigator, and Bosch took us back to the courthouse. As we came out of the elevator and approached Coelho’s courtroom, I saw Sergeant Sanger waiting on a bench in the hall. She stared unflinchingly at me as we passed by, as if daring me to challenge her. I knew then that, one way or the other, I would do everything I could to take her down after the judge made her rulings.

I sat at the petitioner’s table and waited for Lucinda to be brought to the courtroom and for the judge to follow. I didn’t unpack my briefcase. I wanted to know which way I was going first. I looked up at the angry eagle, composed myself, and waited.

The questions came fast and furious from Lucinda once she was brought from lockup to the table.

“Mickey, what’s going on?” she asked. “I didn’t know what was happening and I was waiting so long in there.”

“I’m sorry about that, Cindi,” I said. “We’re going to get answers very soon. We went into the judge’s office and I presented evidence that showed that the gunshot-residue test was wrong. Was a setup, actually.”

“Who set me up?”

“Somebody in your ex-husband’s unit. Probably Sanger, since she’s the one who did the test on you.”

“Does that mean she killed Robbie?”

“I don’t know that, Cindi, but put it this way: If I need to convince the judge that it was somebody other than you, I’m going to point at her. She’s smack-dab in the middle of this, and if it wasn’t her, then she knows who it was.”

Lucinda’s face grew dark with anger. She had served five years for somebody else’s crime, and now she might have a name and face to focus that anger and blame on. I understood her.

“But listen,” I said. “There are complications with the evidence we uncovered, and we have to see if the judge is going to let it be part of what she considers. That’s why everything’s been delayed. The judge has been back there in chambers working on it.”

“Okay,” Lucinda said. “I hope she does the right thing.”

“Me too.”

I went quiet and thought about how I would react to each of the judge’s possible rulings. This led me to a plan I thought might help me salvage the case should the ruling not go my way. I quickly fired off a series of texts with instructions to Harry Bosch and Shami Arslanian. Bosch was in the hall watching Frank Silver in case he decided to hightail it before testifying. Arslanian was out there too, waiting to see if she would be called back to the witness stand.

Before Bosch responded to confirm that he understood my plan, the judge emerged from chambers and I had to turn off the phone. Coelho got right down to business.

“All right, back on the record with Sanz versus the State of California,” she said. “Continuing the habeas hearing. Gentlemen, is there any new business to discuss before I make rulings on the motions before the court?”

I half expected Morris to try to continue the arguments he’d made in chambers, though it was pretty clear the judge was past all that and ready to rule. But Morris declined to add anything to the record, and I had nothing to add either. I looked at Lucinda and gave her an encouraging smile, but she didn’t know how important the next few minutes would be.

“Very well,” the judge said. “In regard to the motions brought before the court this morning, let’s start with the State’s contention that the evidence is inadmissible because of contamination and mishandling by the lab that conducted analysis of the gunshot-residue pad submitted by the defense. The fact pattern shows that the contamination by a lab tech occurred several years ago when the evidence was submitted under different circumstances and protocols. The contamination did not occur during the most recent analysis conducted. It also should be noted that the tech’s DNA exemplar was available for comparison, as it is standard practice in certified DNA labs to check findings for contamination by lab personnel.”

I could tell that Morris’s contamination argument was not going to carry the day. The judge was going to shoot it down. I began to get the stirrings of hope and excitement.

“I believe that what is most important here is not whose DNA was found on the evidence but whose wasn’t,” Coelho said. “The petitioner’s DNA was not found on the evidence and that is as troubling to the court as it is exculpatory to the petitioner.”

I looked at Lucinda. It was clear she could not follow the legalese threaded through the judge’s words, but I gave her a half smile of reassurance. So far, this was going our way.

“Something was wrong about this case and the investigation from the very start,” the judge continued. “And it is the court’s hope that a proper investigation of the investigation will follow these proceedings. However, the court is also troubled by the petitioner’s defense in regard to the original charges against her.”

And now I felt it. The other shoe was going to drop. The judge was not going to allow the evidence into her ultimate decision on the petition.

“The foundation of the habeas corpus motion is to bring forth new evidence that proves the unlawful detention of the petitioner,” Coelho said. “I’m sorry to say, this evidence is not new. It has been sitting undisturbed in a lab for five years, and it clearly could have been accessed and tested for the petitioner’s DNA from the very beginning of the prosecution of the case. The claim by the petitioner that touch DNA was unavailable at that time is not correct. There are notable criminal cases involving the use of touch DNA much earlier than this, including the Casey Anthony case in Florida and the JonBenét Ramsey investigation in Colorado. So the court must decide whether this evidence is new or if it was available to be pursued and analyzed five years ago, before the petitioner’s plea of nolo contendere to the crime.”

I couldn’t believe this. I lowered my head, I could not even turn to look at my client.

“The court finds the latter,” Coelho said. “This evidence could have, possibly should have, been pursued by the defense five years ago and is therefore excluded from these proceedings. The petitioner may very well be left with a valid claim of ineffective assistance of counsel regarding the initial pleading of this case, but that is not part of this motion and hearing.”

I shot up out of my seat.

“Your Honor, those cases you mentioned are outliers,” I said. “They were massive investigations that took time and money. This science wasn’t used in more ordinary cases. The original attorney on this was ineffective, yes, but not in this regard. No one was using it then.”

“But someone could have, Mr. Haller,” Coelho said. “And that’s the point.”

“No! You’re not doing this.”

The judge looked at me for a moment, stunned by my outburst.

“Excuse me, Mr. Haller?” she finally said.

“You can’t do this,” I said.

“I just did, Mr. Haller. And you need to—”

“It’s wrong. I object. It is proof of innocence, Judge. You can’t just throw it away because it doesn’t fit with the rule of law.”

The judge paused, then continued in an even tone.

“Mr. Haller, be careful,” she warned. “The ruling has been made. If you think it is in error, then there are remedies you can pursue. But don’t you dare challenge me here. If you have another witness, then call that person to the stand and we will proceed.”

“No, I won’t,” I said. “This is a sham. You killed the re-creation, and now you kill this. My client is innocent and at every turn you have disallowed the evidence that proves it.”

The judge paused for a moment, but her anger toward me did not abate. It seemed to boil up into her eyes. She stared daggers at me.

“Are you quite finished, Mr. Haller?”

“No,” I said. “I object. The evidence is new. It’s not five years old. It was determined in a lab this morning. How can you claim it’s not new and send this woman, the mother of a young boy, back to prison for a crime she didn’t commit?”

“Mr. Haller, I will give you one chance to sit down and close your mouth,” Coelho said. “You are dangerously close to being in contempt of this court.”

“I’m sorry, Your Honor, but I won’t be muzzled,” I said. “I must speak the truth because this court will not. You kicked out the crime re-creation, and that’s okay, I can live with that. But the DNA... the DNA proves that my client was set up for this murder. How can you sit there and say it’s inadmissible? In any other court in this country, it would be proof of—”

“Mr. Haller!” the judge yelled. “I warned you. I find you in contempt of this court. Marshal, take Mr. Haller into custody. This is a federal court, Mr. Haller. Talking back to the court and insulting its rulings might work for you in state court, but not here.”

“You can’t shut me up!” I yelled. “This is wrong and everyone in this place knows it.”

I was pushed forward by Marshal Nate and bent over the table. My arms were roughly pulled behind my back and my wrists cuffed tightly. A hand gripped the back of my collar and I was pulled into a standing position. The marshal then turned me and shoved me toward the door to courtside lockup.

“Perhaps a night in jail will teach you to respect the court,” Coelho called after me.

“Lucinda Sanz is innocent!” I yelled as I was pushed through the door. “You know it, I know it, everybody in the courtroom knows it!”

The last thing I heard before the door was shut was Coelho adjourning court for the day.

It was just what I’d hoped would happen.