The Crossing

54

As soon as the courtroom was back in session and Cornell returned to the witness stand, Haller moved in for the kill.

“Were the bathrooms in that house checked, Detective Cornell?” he asked. “The sink traps, I mean, or the toilets to see if the killer had flushed a condom?”

“No,” Cornell said, a tone of annoyance in his voice. “First of all, that’s TV. If somebody flushes a condom, that thing is gone. But there was no need. The suspect’s semen was all over the crime scene and the victim. We weren’t looking for a condom.”

“I stand corrected, then,” Haller said. “This semen that you said was all over the place, what did you do with it?”

“It was collected by forensics and then submitted to the Sheriff’s Department’s lab for analysis. From there it was submitted to the California Department of Justice for comparison to the state’s DNA data bank.”

“And that’s how it was matched up with Mr. Foster, correct?”

“That is correct.”

“So you just mentioned analysis. What kind of analysis are we talking about?”

“DNA is extracted from the submitted material. They analyze proteins, blood groupings, chromosome characteristics, several different factors. All of these characteristics or markers are what is put into the data bank.”

Haller picked up a file and for the first time stood up and went to the lectern between the prosecution and defense tables. The teeth of the bear trap had just clamped on Cornell’s leg, only he didn’t know it yet.

“Detective Cornell,” Haller said, “did your lab’s analysis include checking the DNA material you submitted from this case for CTE?”

Cornell grinned like he was putting up with this annoying little tilt at a windmill from Haller.

“No,” he said.

“Do you know what CTE is, Detective?” Haller asked.

“Condom Trace Evidence.”

“So why didn’t the lab check for CTE?”

“Checking for CTE is not part of the standard protocol for DNA analysis. It’s an extra. If you want that, then it needs to be submitted to an outside lab.”

“And you didn’t want it?”

“As I said before, there was no indication at the crime scene, the autopsy, or anywhere else that a condom was used in the commission of this murder.”

“But how would you know that if you didn’t look for a condom or ask the lab to check the DNA for it?”

Cornell looked at Landreth and then at the judge and raised his hands palms up.

“I can’t answer that,” he said. “That doesn’t make sense.”

“It does to me,” Haller said.

Moving faster than Landreth could object, Sackville admonished Haller not to editorialize.

“Ask questions, Mr. Haller,” he said.

“Yes, Your Honor,” Haller said. “Detective Cornell, you are aware that this court ordered the state to share some of that collected DNA with the defense for its own analysis, are you not?”

“Yes,” Cornell said.

Haller then made a motion asking the judge to allow him to submit the defense’s DNA analysis report as an exhibit and to allow Cornell to read from it. This set off a protracted argument from Landreth, who attacked the report on two levels. In the first, he accused Haller of a discovery violation because the lab report he wished to introduce had not previously been turned over to the prosecution. In the second attack, Landreth objected to Haller’s wish to have Cornell read from a lab report for which there had been no foundation established.

“He waltzes in here with this lab report we’ve never even heard of,” Landreth said sarcastically. “Added to that, we don’t know what lab even did it, what technician performed this analysis. Mr. Haller has laid no foundation whatsoever. As far as we know, he may have picked this report up at Walmart on his way into court this morning.”

Landreth sat down proudly after assuming that he had hit it out of the park. What he didn’t realize was that it is hard to round the bases when you’re dragging a bear trap clamped to your ankle.

Haller stood and returned to the lectern. He first turned and looked at Landreth.

“Walmart?” he said. “Really?”

He then looked at the judge and proceeded to tear Landreth’s objections to shreds.

“First, Your Honor, I would like to submit to the court a copy of an e-mail that shows that two days ago the lab report being questioned by Mr. Landreth was sent by me to Ellen Tasker, who at that time — as far as the defense knew — was the prosecutor assigned to this case.”

Haller held a printout of the e-mail up over his head, waving it like a flag. Landreth objected but Sackville said he wanted to see the document. Haller walked to the bench and handed it over. As the judge read the e-mail, Haller continued his argument.

“The lab report was in the hands of the District Attorney’s Office and the defense is not liable for that office’s communication issues, Your Honor.”

Landreth stood to object but Sackville cut him off.

“You had your objection on that, Mr. Landreth,” he said. “We’re moving on to foundation. Mr. Haller?”

“Your Honor, this is not a trial,” Haller said. “This is a challenge to the findings of the court in a preliminary hearing. In that hearing the court allowed the state to offer hearsay testimony through Detective Cornell, who introduced its DNA report without establishing foundation through lab personnel. The defense simply wishes to have the equal opportunity.”

It was true. Under the state’s constitution, hearsay evidence was allowed into a preliminary hearing as a means of speeding the process. The prosecution could introduce hearsay evidence through its investigators, allowing them to summarize witness statements and avoiding the lengthy process of calling individual witnesses to testify.

The judge quickly made a ruling.

“Mr. Haller, you may proceed,” Sackville said. “We can always hit rewind if I don’t like where we’re going.”

Haller stepped up and gave copies of the lab report to Landreth, Cornell, and the judge, then returned to the lectern. After leading Cornell through several questions designed to identify the report and the independent lab that analyzed the DNA material, he asked Cornell to read a highlighted section of the summary regarding CTE. Cornell read the section with the same annoyed tone that had inflected most of his testimony.

“Test analysis of submitted genetic material contained condom trace evidence including particulate lycopodium and amorphous silica. Cited combination of CTE materials is found in condoms manufactured by Lessius Latex Products of Dallas, Texas, and distributed in its branded line called Rainbow Pride.”

Haller paused after the reading for several seconds before proceeding.

“So, Detective Cornell, you previously testified you did not look for a condom at the crime scene because no condom took part in this crime. How do you explain the findings of this report?”

“I don’t,” Cornell said. “It’s not our report. It’s your report.”

“Are you suggesting that this report is phony, that the findings are false?”

“I’m just saying it is not our report and so I am unfamiliar with it.”

Cornell was losing his swagger. His tone was now more harried than annoyed.

“This case is still under investigation by a task force looking at all of the murders with some possible association with Officers Ellis and Long, correct?”

“Yes, but as I testified earlier, we have found no evidence connecting them to Alexandra Parks. Your client’s DNA is the connection. He remains the suspect.”

“Thank you for reminding the court, Detective Cornell. But as part of that joint investigation, have you looked at evidence, reports, and photos from all of these cases, or have you not bothered with that because you are so sure about Mr. Foster being your man?”

“We have reviewed all the evidence of all the cases.”

“A moment, Your Honor.”

Haller walked back to the defense table and reached under the table for a bag. He took it back to the lectern and then removed from it a large clear plastic container half filled with individually wrapped and different-colored condoms. As he placed it at the front of the lectern, Landreth stood and objected.

“Your Honor, what does counsel think he is doing?” he asked. “The state objects to this grandstanding and prejudicial display.”

“Mr. Haller,” the judge said sternly. “What is this demonstration?”

From his file Haller produced another document.

“Your Honor, this affidavit offers the sworn statement of a person named Andre Masters, who was a close friend of the murder victim James Allen. He states that this container of Rainbow Pride condoms was recovered from Mr. Allen’s belongings after his murder. These are belongings the investigators of the murder did not collect. This is the same brand of condoms from which the CTE found in and on Alexandra Parks came. This is direct linkage between these two murders and it directly supports the defense theory that Da’Quan Foster was set up for this murder by Officers Ellis and Long.”

Haller’s response was punctuated by objections from Landreth but Sackville had not stopped Haller from finishing his explanation. After a pause, the judge responded.

“Let me take a look at that affidavit.”

Haller walked a copy up to the bench and then gave one to Landreth. For the next few minutes the judge and prosecutor silently reviewed the statement. Bosch had found Masters and recovered the container of condoms a few days earlier when he finally returned to Haven House and paid the manager fifty dollars for Masters’s cell-phone number.

“Your Honor,” Landreth said. “The strange origin of this statement and the purported chain of custody of this, this, this condom container aside, the only evidence you have here is unreliable. Additionally, we once again have a discovery violation. The state was not provided with this affidavit until this very moment. Therefore, the state objects to its inclusion as an exhibit and moves that it be disallowed in the questioning of Detective Cornell. Smoke and mirrors, Your Honor.”

As Landreth sat down, Haller countered.

“Your Honor, two things very quickly. First, I have here another copy of an e-mail, this one to the prosecutor previously assigned to this case. This affidavit from Mr. Masters was sent to her as well, meaning there was no discovery violation on the part of the defense. And second, Your Honor, the defense offers three exhibits from the LAPD murder book from the James Allen investigation. These are LAPD crime scene photographs that clearly depict the container of condoms in the victim’s motel room on the day his murder was discovered. It is a match to what you see right here.”

Haller walked the e-mail and photos up to the judge and then went back to the lectern. Bosch saw him wink at Maddie in the first row as he returned.

The judge took his time with the documents and the photos in front of him. The courtroom was so quiet Bosch could hear the air conditioner kick on above the ceiling.

Finally, the judge stacked the affidavits and photos together and leaned toward his microphone to speak.

“The court finds this evidence and the testimony brought by the defense compelling and exculpatory, while the state’s own witness is unconvincing. The court hereby finds upon review of new evidence that the cause of the preliminary hearing is set aside. The charges against the defendant are dismissed. The state is free to reinstate the charges when and if it can meet the threshold of probable cause. Mr. Foster, you are free to go. You should be sure to thank your attorney for his thoroughness and zeal. Court is now adjourned.”

And just like that it was over. The silence in the courtroom held as the judge stepped down from the bench and left through the door to his chambers. Then a burst of surprised conversation broke out throughout the room. Haller turned to Bosch first to shake hands.

“You did it,” Bosch said.

“No, you did it,” Haller said. “We make a good team.”

Haller then turned toward his client and put an arm over his shoulder as he hugged and congratulated him. Bosch was left odd man out at the table and so he turned to look back at his daughter. She was beaming.

“Yay, Dad!”

He smiled and nodded, uneasy with the victory. He had to admit he was happy, and it was the first time he had ever felt that way after hearing charges of murder being dismissed. It would take some getting used to.