Grant of Immunity, page 20
Fields looked at Reynolds. “What’s your offer of proof? Exactly what will Sean Collins testify to?”
“Two areas, Judge,” Reynolds said, crisply. “First, Mr. Collins was interviewed by Detective William Fitzgerald shortly after the murder took place nineteen years ago. Mr. Collins will describe persons who were friends of his mother and will identify the defendant as being one of the friends.”
“That does appear to be appropriate testimony,” Fields said. “Ms. Jordan, shouldn’t the People be allowed to present that testimony to the jury?”
Jordan shook her head. “No, Your Honor. Ms. Reynolds has not been accurate in her offer of proof. For one thing, Sean Collins was five years old at the time of the murder. He did not identify Judge Hart. In fact, he was unable to describe anyone.”
Reynolds’s reddened and pointed at Jordan. “Judge, whether she likes it or not, the People have a right to call Sean Collins as a witness. It’s—”
“For what purpose?” Jordan interrupted. “Even the victim’s son believes my client is innocent. Why else would he agree to serve as a member of the defense team?” She pointed back at Reynolds. “It’s she who’s trying to confuse the jury. If Mr. Collins remembers nothing, what possible purpose can she have to put him on the witness stand—other than to intimidate and embarrass Mr. Collins?”
Reynolds glared at Jordan. “I resent that. I’m seeking the truth. It’s the defense that’s trying to conceal and hide evidence. Judge, you’ve got to see through this. It’s for the jury to decide whether or not what Collins has to say is significant. Sarah Collins, the victim in this case, was stabbed fifty times and sexually assaulted.”
“Objection!” Jordan shouted.
“Sustained. Ms. Reynolds, stick to the law. Both of you, sit down.”
Judge Fields considered. The situation presented a real problem. At stake were issues involving fundamental rights. It was well settled that an attorney should not be both a witness and an advocate. But it did appear that the People had a right to call Sean Collins, if he were actually a witness to important events that occurred long ago. The fact that he now represented the defendant couldn’t change that. Fields looked at Reynolds. “What was the other reason you wanted to call Mr. Collins as a witness?”
Reynolds stood. “Mr. Collins recently had a conversation with Daniel Hart. I’m certain that the defendant confessed the murder to him.”
Jordan jumped up. “Objection! Outrageous. Totally false!”
“That’s why he must testify, Judge!” Reynolds shouted. “In the interests of justice. To find out the truth.”
Jordan flushed. “Mr. Collins’s conversation with Judge Hart occurred a month ago, at the approximate time that Mr. Collins became co-counsel. Any conversation would be protected by the attorney-client privilege.”
“That’s nonsense, Judge, and Ms. Jordan knows it. Notice that she said the conversation occurred at the approximate time that Mr. Collins became co-counsel. I suggest that it happened before he became co-counsel. I’m prepared to prove that the statement is not privileged, and I ask the court to order Mr. Collins to testify, and to disqualify himself from being an attorney on this case.”
Fields took a breath and considered. Perhaps Ms. Reynolds was correct. She was clearly an articulate and intelligent lawyer. On the other hand, this issue involved fundamental and constitutional rights—there was no room for error—his ruling had to be correct. “In order to rule on these two important issues,” he said slowly, “I’ll need to make an under-oath inquiry of Mr. Collins.”
“Your Honor,” Jordan said. “I object. I don’t believe it’s appropriate to question Mr. Collins.”
“Your objection is overruled. These issues must be determined before a jury is impaneled. If you believe any question violates the attorney-client privilege, you may object and argue your point.” Fields looked to his clerk. “Swear the witness.”
Reynolds smiled.
Collins stood and raised his right hand. He had a look of cold determination. The clerk also stood, “Mr. Collins, in the cause now pending, do you swear to tell the truth, the whole truth, and nothing but the truth?”
“I do.”
Collins walked to the witness box and sat down. “Ms. Reynolds,” Fields said, “I’d you like to ask first about events nineteen years ago. Once the court has ruled on that evidence, we can go to the attorney-client privilege issues.”
Reynolds remained standing and looked at the witness. “Mr. Collins, how well do you remember your mother’s murder?”
“I’ll never forget that night.”
“Do you remember a subsequent interview with Detective Fitzgerald?” Reynolds indicated Fitzgerald, who was sitting next to her at the counsel table. The detective was looking intently at Collins.
“I remember the day he came to interview me,” Collins said.
“You told Detective Fitzgerald about two people you knew, correct?”
“Actually, I have no memory of what I told Detective Fitzgerald.”
Reynolds held up a document. “Would it refresh your memory if you saw the police report?”
“I’ve read it. It doesn’t help. I don’t remember what I said. It was a long time ago.”
Reynolds pointed to Hart. “Do you recall ever seeing Daniel Hart prior to your assignment in the Van Nuys Courthouse?”
“No.”
“Think back,” Reynolds said. “Back to when you were a child. Surely you remember seeing Mr. Hart?”
Collins shook his head. “I’ve gone over this again and again in my memory. I just don’t remember ever seeing Judge Hart before.”
“What about Sergeant Babbage?” Judge Fields inquired. “Do you recall ever seeing him prior to your assignment here as a PD?”
Again Collins shook his head. “I’m sorry, Your Honor. I don’t recall ever having seen either of them before. I wish I did.”
“Can you honestly say that you haven’t seen them before?” Fields asked.
“Your Honor,” Collins said. “I was too young. I can’t remember one way or the other.”
Fields looked at Reynolds. “Ms. Reynolds, it doesn’t appear that there is anything that Mr. Collins can testify about.”
She shook her head. “I don’t agree, Judge. I’ll need him in order to establish the past recollection recorded exception to the hearsay rule, so that the police report can be read to the jury. Plus, I’ll need him to establish the time of the murder.”
Jordan stood. “Your Honor, as I said before, we would be willing to stipulate and agree that the police report can be read to the jury. We also would be willing to stipulate and agree to anything that Mr. Collins could testify to regarding that evening.”
Reynolds frowned. “The People will not stipulate, will not agree, Judge. Under the law, you can’t force us.”
“We’ll discuss that in a moment, Ms. Reynolds,” Fields said, then looked at Jordan. “Do you need to cross-examine Mr. Collins on anything said so far, or can we go to the issue of attorney-client privilege?”
“I have no questions, Your Honor. We can go to the next issue.”
“Very well,” Fields said. “Ms. Reynolds, move on to the attorney-client issue.”
“Judge,” Reynolds said, “I haven’t finished on the first issue yet. I have another argument I want to present.”
“I’ll hear your argument later. Move on.”
Reynolds looked down for a moment, and then looked up again. “Mr. Collins, I would like you to remember back to last month, on November seventeenth, when you attempted to interview Sergeant Babbage at his residence. Do you recall that?”
“Yes,” Collins said.
“You told Sergeant Babbage that you’d interviewed Mr. Hart, did you not?”
“I did say that to Mr. Babbage, yes.”
“Were you telling the truth?”
“Yes.”
“Then as of November seventeenth, you had interviewed Mr. Hart, correct?”
Jordan stood. “Objection, attorney-client privilege.”
“Overruled,” said Judge Fields. “I’ll permit it, subject to a motion to strike.”
Fields looked at Collins. “You may answer the question,” Fields said.
Collins shifted position in his seat. “Yes.”
“What did he tell you?”
“Objection,” said Amanda Jordan.
“Sustained,” said Judge Fields.
“But, Judge,” Reynolds said, “Sean Collins did not become counsel until after his visit to Sergeant Babbage.”
“You haven’t established that yet, Ms. Reynolds,” Fields said. “Objection sustained.”
“When were you retained as counsel, Mr. Collins?” Reynolds asked.
“Objection,” Jordan said.
“Overruled,” said Fields.
“The same day that I saw Mr. Babbage,” said Collins.
“Before or after?”
Collins hesitated. He looked to Jordan, who did not object. Collins said, “After.”
Reynolds smiled. “So at the time you interviewed Mr. Hart, you had not been retained as his counsel.”
“Correct.”
“All right,” Reynolds said. “Tell the court what Mr. Hart said to you.”
“Objection. Attorney-client privilege,” Ms. Jordan said.
“Sustained,” said Fields.
Reynolds stood, hands on hips. “Judge, that ruling is just plain wrong. I’ve clearly established that the defendant was not represented by Mr. Collins.”
“Ms. Reynolds,” Fields said, ignoring her rudeness, “I believe if you review the evidence code, you’ll see that the privilege extends to times before representation. If it were otherwise, persons accused of crimes would lose the privilege whenever they went to a lawyer, asking for advice.”
Reynolds looked down at her notes, a puzzled look on her face. “Wait a minute,” she said, then looked to Collins. “Who arranged your meeting with Hart?”
“What do you mean?”
“Did Mr. Hart request that you meet with him before the visit?”
Collins frowned. “No, I dropped in on him, unannounced.”
Reynolds smiled. “So he didn’t call you for the purpose of getting legal advice, did he?”
“No, he did not.”
“I thought so,” Reynolds said. “What did he tell you?”
“Objection,” Jordan said.
“Sustained,” Fields said.
“But, Your Honor,” Reynolds said, anger in her voice, “the defendant wasn’t asking for advice. There’s no possible way that privilege could apply.”
Fields was impressed with Reynolds’s tenacity. And her point. If Hart didn’t go to Collins for advice, maybe the privilege didn’t apply. He decided no. It was a difference without a distinction. “Objection sustained,” he ruled.
Reynolds exploded. “That makes no sense—you must reconsider,” she demanded. “The defendant obviously confessed to Mr. Collins, and then had second thoughts. That’s why he hired him as a lawyer. This is a transparent attempt to suppress testimony by hiding behind this so-called privilege.”
Jordan stood. “Your Honor, I resent this accusation.”
“Careful—both of you,” Fields said. “I won’t tolerate bickering. Ms. Reynolds, I’m sustaining the objection. Mr. Collins was retained as counsel within two days of the interview. I find that the privilege applies. As to the issue of Mr. Collins’s testimony, I will preclude you from calling him. The parties will agree to stipulate to the reading of the report regarding Mr. Collins’s interview when he was five years old.”
“Judge, I already said we will not stipulate.”
“That’s your choice, Ms. Reynolds,” Fields said. “But regardless of what you decide, Mr. Collins will not testify.”
Reynolds fumed. “In that case, the People ask for a stay so that we can take a writ to appeal your ludicrous ruling.”
Fields was outraged by her insolence, but he controlled himself, maintaining a calm demeanor. “Your request for a stay is denied.” He looked at the clock.
“Court’s in recess.”
47
Fitzgerald
Monday, December 18, 8:30 a.m.
As the newly selected jury filed into the courtroom, Fitz thought about last week. After two and a half days of jury questioning, a jury of six women and six men was sworn. Reynolds told Fitz she was satisfied with the result. Fitz saw no pattern to Jordan’s peremptory challenges, but Sean assured Fitz that the lawyer knew what she was doing. Fitz was still very troubled about the case. He was certain that Babbage was lying, and was frustrated that all his efforts to delay charging Hart until the case was sufficiently investigated had failed.
For the first time in his career, Fitz felt uncomfortable sitting on the prosecution side of the counsel table. Logically, he told himself, he must work with facts, not emotions. Fitz cared deeply about Sean, and if Sean had determined that Daniel Hart was innocent, then damn it, that meant something.
Reynolds’s opening statement was first. She wore a just-above-the-knee linen skirt and matching jacket, with a silk blouse open at the neck, revealing the top of her lace bra. Smiling at the male jurors in the front row, she began, introducing herself as the representative of the People of the State of California. Then she became serious, looking intently at the jurors.
“On the fourth of July, nineteen years ago,” she began, “that man”—she pointed at Hart, who looked up at her, unblinking—“killed Sarah Collins, a twenty-two-year-old mother of two.”
Most of the jurors leaned forward, and the room was so quiet that Fitz could almost hear the jurors breathing. “You will hear the testimony of Jake Babbage, an eyewitness who saw the defendant put the point of a knife against Sarah Collins’s neck and draw blood. Who saw Sarah Collins forced to perform degrading sexual acts on the defendant. And who saw the terrible result of the defendant’s rage.
“You’ll hear from Deputy Medical Examiner Doctor Ethan Crowlich that Sarah Collins was stabbed more than fifty times. Stabbed all over her body. But the most chilling detail is that forty-seven of the stab wounds were not fatal … were less than an inch deep … occurred before Sarah’s death … and therefore caused her excruciating pain.” Reynolds looked at Hart and shook her head in disgust. Fitz looked at Sean. The color had drained from his face, and his hands grasped the edge of the table in front of him—he was visibly shaken.
“All this occurred while Jake Babbage was bound to a tree with duct tape, unable to move, unable to free himself, no matter how much he struggled. He will tell you that the defendant crept up behind him, knocked him out, and then bound him with duct tape. When he regained consciousness, he was forced to watch as his girlfriend was humiliated … forced to hear her screams. He passed out again. When he came to, the defendant was gone, but the horrible result was there for him to see. Sarah Collins dead. Mutilated by the defendant, Daniel Hart.”
Reynolds eyes filled. “This is a horrible case, and I’m sorry that you’ll have to endure seeing it and hearing about it.” Her eyes narrowed and she shook her head slowly. “The defendant tortured and killed Sarah Collins. He must be held accountable—justice demands it.”
In the dead silence of the courtroom, Reynolds walked back to the counsel table, sat down, and wiped a tear from her eye.
Fitz was impressed. He’d watched the jury as she spoke. Looking at their faces, he could see they were horrified. It was as if they had endured the torture, the outrage. Reynolds might be a bitch, he thought, but she had just demonstrated that she was a brilliant trial attorney.
Amanda Jordan rose slowly. She walked to a point directly in front of the jury and looked at them, solemnly. Several jurors looked back, arms folded. Two men in the back row avoided eye contact. “The evidence will show,” she said, “not only that Judge Daniel Hart is innocent of these charges but that the true murderer”—she paused, cast a scornful look at Reynolds, and then turned back to the jury—“is the very man who accuses him: Jake Babbage.”
Reynolds was on her feet in an instant. “Objection. Counsel knows she cannot argue during her opening statement!”
“Overruled,” Judge Fields said.
“Jake Babbage is a liar. A liar who waited nineteen years to accuse my client of the horrible crime he himself committed. The evidence will show that not one single shred of Jake Babbage’s story”—Jordan said the word as if it were a lethal poison—“nor any part of Babbage’s claim, can be verified or corroborated.
“The obvious question, the question that cries out for an answer is: why? And why now? The testimony at this trial will reveal the answer with clarity. You will find out, why Babbage—a rogue cop—accused my client, a respected and honored judge, of this vicious crime. I’m confident that you will agree, after hearing all the evidence, that the only possible conclusion is that Judge Daniel Hart is innocent of these charges.”
Jordan walked back to the counsel table and sat.
Fitz now understood why Sean had joined the defense team. Jordan was one hell of a lawyer and had done a masterful opening statement.
48
Fitzgerald
1:30 p.m.
Fitzgerald was to be the prosecution’s first witness. During her trial preparation, Reynolds had asked him detailed questions about his friendship with Sean. Now that Sean had switched to the defense, Reynolds wanted to use Fitz to pressure Sean. She said that she wanted Fitz’s testimony to flow smoothly and to show the defense that he believed in his case—very important because of Fitz’s relationship with Sean.
Fitz walked to the front of the witness stand and was sworn by the clerk. He sat in the witness box, then stated and spelled his name for the record. How many times had he testified during his career? One hundred? Five hundred? More? It was a blur. He was surprised to realize that he was actually nervous. He glanced down from the witness box at Sean, sitting next to Daniel Hart and Amanda Jordan. Sean looked back at him and nodded, as if to say, “Do what you must.” Hart was staring straight ahead, but Fitz could see that his eyes were moist and his shoulders rounded. He looked as if he would rather be any place other than here.
