The Brass Verdict (33 page)

“Was that Detective Bosch you were with?” Lorna asked.

“Yeah, I saw him out there.”

“What was he doing?”

“He said he likes to come over here for lunch, sit in those big, comfortable chairs and just think.”

“That’s a coincidence that we were here too.”

Julie Favreau shook her head.

“There are no coincidences,” she said.

Thirty-eight

A
fter lunch Golantz began to present his case. He went with what I called the “square one” presentation. He started at the very beginning — the 911 call that brought the double murder to public light — and proceeded in linear fashion from there. The first witness was an emergency operator with the county’s communications center. She was used to introduce the tape recordings of Walter Elliot’s calls for help. I had sought in a pretrial motion to thwart the playing of the two tapes, arguing that printed transcripts would be clearer and more useful to the jurors but the judge had ruled in the prosecution’s favor. He ordered Golantz to provide transcripts so jurors could read along with the audio when the tapes were played in court.

I had tried to halt the playing of the tapes because I knew they were prejudicial to my client. Elliot had calmly spoken to the dispatcher in the first call, reporting that his wife and another person had been murdered. In that calm demeanor was room for an interpretation of calculated coldness that I didn’t want the jury to make. The second tape was worse from a defense standpoint. Elliot sounded annoyed and also indicated he knew and disliked the man who had been killed with his wife.

Tape 1 — 13:05 — 05/02/07

Dispatcher: Nine-one-one. Do you have an emergency?

Walter Elliot: I … well, they look dead. I don’t think anybody can help them.

Dispatcher: Excuse me, sir. Who am I talking to?

Walter Elliot: This is Walter Elliot. This is my house.

Dispatcher: Yes, sir. And you say somebody is dead?

Walter Elliot: I found my wife. She’s shot. And there’s a man here. He’s shot, too.

Dispatcher: Hold on a moment, sir. Let me type this in and get help going to you.

— break —

Dispatcher: Okay, Mr. Elliot, I have paramedics and deputies on their way.

Walter Elliot: It’s too late for them. The paramedics, I mean.

Dispatcher: I have to send them, sir. You said they are shot? Are you in danger?

Walter Elliot: I don’t know. I just got here. I didn’t do this thing. Are you recording this?

Dispatcher: Yes, sir. Everything is recorded. Are you in the house right now?

Walter Elliot: I’m in the bedroom. I didn’t do it.

Dispatcher: Is there anybody else in the house besides you and the two people who are shot?

Walter Elliot: I don’t think so.

Dispatcher: Okay, I want you to step outside so the deputies will see you when they pull up. Stand out where they can see you.

Walter Elliot: Okay, I’m going out.

— end —

The second tape involved a different dispatcher but I allowed Golantz to play it. I had lost the big argument about whether the tapes could be played at all. I saw no sense in wasting the court’s time by making the prosecutor bring in the second dispatcher to establish and introduce the second tape.

This one was made from Elliot’s cell phone. He was outside, and the slight sound of the ocean’s waves could be heard in the background.

Tape 2 — 13:24 — 05/02/07

Dispatcher: Nine-one-one, what is your emergency?

Walter Elliot: Yeah, I called before. Where is everybody?

Dispatcher: You called nine-one-one?

Walter Elliot: Yeah, my wife’s shot. So’s the German. Where is everybody?

Dispatcher: Is this the call in Malibu on Crescent Cove Road?

Walter Elliot: Yeah, that’s me. I called at least fifteen minutes ago and nobody’s here.

Dispatcher: Sir, my screen shows our alpha unit has an ETA of less than one minute. Hang up the phone and stand out front so they will see you when they arrive. Will you do that, sir?

Walter Elliot: I’m already standing out here.

Dispatcher: Then wait right there, sir.

Walter Elliot: If you say so. Good-bye.

— end —

Elliot not only sounded annoyed in the second call by the delay but said the word “German” with almost a sneer in his voice. Whether or not guilt could be extrapolated from his verbal tones didn’t matter. The tapes helped set the prosecution’s theme of Walter Elliot’s being arrogant and believing he was above the law. It was a good start for Golantz.

I passed on questioning the dispatcher because I knew there was nothing to be gained for the defense. Next up for the prosecution was sheriff’s deputy Brendan Murray, who was driving the alpha car that first responded to the 911 call. In a half hour of testimony, in minute detail Golantz led the deputy through his arrival and discovery of the bodies. He paid special attention to Murray’s recollections of Elliot’s behavior, demeanor and statements. According to Murray, the defendant showed no emotions when leading them up the stairs to the bedroom where his wife lay shot to death and naked on the bed. He calmly stepped over the legs of the dead man in the doorway and pointed to the body on the bed.

“He said, ‘That’s my wife. I’m pretty sure she’s dead,’ ” Murray testified.

According to Murray, Elliot also said at least three times that he had not killed the two people in the bedroom.

“Well, was that unusual?” Golantz asked.

“Well, we’re not trained to get involved in murder investigations,” Murray said. “We’re not supposed to. So I never asked Mr. Elliot if he did it. He just kept telling us he didn’t.”

I had no questions for Murray either. He was on my witness list and I would be able to recall him during the defense phase if I needed to. But I wanted to wait for the prosecution’s next witness, Christopher Harber, who was Murray’s partner and a rookie in the Sheriff’s Department. I thought that if either of the deputies was to make a mistake that might help the defense, it would be the rookie.

Harber’s testimony was shorter than Murray’s and he was used primarily to confirm his partner’s testimony. He heard the same things Murray heard. He saw the same things as well.

“Just a few questions, Your Honor,” I said when Stanton inquired about cross-examination.

While Golantz had been conducting his direct examination from the lectern, I remained at the defense table for the cross. This was a ploy. I wanted the jury, the witness and the prosecutor to think I was just going through the motions and asking a few questions on cross. The truth was I was about to plant what would be a key point in the defense’s case.

“Now, Deputy Harber, you are a rookie, correct?”

“That is correct.”

“Have you ever testified in court before?”

“Not in a murder case.”

“Well, don’t be nervous. Despite what Mr. Golantz may have told you, I don’t bite.”

There was a polite murmur of laughter in the courtroom. Harber’s face turned a little pink. He was a big man with sandy hair cut military-short, the way they like it in the Sheriff’s Department.

“Now, when you and your partner arrived at the Elliot house, you said you saw my client standing out front in the turnaround. Is that correct?”

“That is correct.”

“Okay, what was he doing?”

“Just standing there. He had been told to wait there for us.”

“Okay, now, what did you know about the situation when the alpha car pulled in there?”

“We only knew what dispatch had told us. That a man named Walter Elliot had called from the house and said that two people were dead inside. They had been shot.”

“Had you ever had a call like that before?”

“No.”

“Were you scared, nervous, jacked-up, what?”

“I would say that the adrenaline was flowing, but we were pretty calm.”

“Did you draw your weapon when you got out of your car?”

“Yes, I did.”

“Did you point it at Mr. Elliot?”

“No, I carried it at my side.”

“Did your partner draw his weapon?”

“I believe so.”

“Did he point it at Mr. Elliot?”

Harber hesitated. I always liked it when witnesses for the prosecution hesitated.

“I don’t recall. I wasn’t really looking at him. I was looking at the defendant.”

I nodded like that made sense to me.

“You had to be safe, correct? You didn’t know this guy. You just knew that there supposedly were two dead people inside.”

“That’s right.”

“So it would be correct to say you approached Mr. Elliot cautiously?”

“That’s right.”

“When did you put your weapon away?”

“That was after we had searched and secured the premises.”

“You mean after you went inside and confirmed the deaths and that there was no one else inside?”

“Correct.”

“Okay, so when you were doing this, Mr. Elliot was with you the whole time?”

“Yes, we needed to keep him with us so he could show us where the bodies were.”

“Now was he under arrest?”

“No, he was not. He volunteered to show us.”

“But you handcuffed him, didn’t you?”

Harber’s second hesitation followed the question. He was in uncharted water and probably remembering the lines he’d rehearsed with Golantz or his young second chair.

“He had voluntarily agreed to be handcuffed. We explained to him that we were not arresting him but that we had a volatile situation inside the house and that it would be best for his safety and ours if we could handcuff him until we secured the premises.”

“And he agreed.”

“Yes, he agreed.”

In my peripheral vision I saw Elliot shake his head. I hoped the jury saw it too.

“Were his hands cuffed behind his back or in the front?”

“In the back, according to procedure. We are not allowed to handcuff a subject in the front.”

“A subject? What does that mean?”

“A subject can be anybody involved in an investigation.”

“Someone who is arrested?”

“Including that, yes. But Mr. Elliot was not under arrest.”

“I know you are new on the job, but how often have you handcuffed someone who was not under arrest?”

“It’s happened on occasion. But I don’t recall the number of times.”

I nodded but I hoped it was clear that I wasn’t nodding because I believed him.

“Now, your partner testified and you have testified that Mr. Elliot on three occasions told you both that he was not responsible for the killings in that house. Right?”

“Right.”

“You heard those statements?”

“Yes, I did.”

“Was that when you were outside or inside or where?”

“That was inside, when we were up in the bedroom.”

“So that means that he made these supposedly uninvited protestations of his innocence while he was handcuffed with his arms behind his back and you and your partner had your weapons drawn and ready, is that correct?”

The third hesitation.

“Yes, I believe that would be so.”

“And you are saying he was not under arrest at this time?”

“He was not under arrest.”

“Okay, so what happened after Mr. Elliot led you inside and up to the bodies and you and your partner determined that there was no one else in the house?”

“We took Mr. Elliot back outside, we sealed the house and we called detective services for a homicide call-out.”

“Was that all according to sheriff’s procedure, too?”

“Yes, it was.”

“Good. Now, Deputy Harber, did you take the handcuffs off of Mr. Elliot then, since he was not under arrest?”

“No, sir, we didn’t. We placed Mr. Elliot in the back of the car, and it is against procedure to place a subject in a sheriff’s car without handcuffs.”

“Again, there’s that word ‘subject.’ Are you sure Mr. Elliot wasn’t under arrest?”

“I am sure. We did not arrest him.”

“Okay, how long was he in the backseat of that car?”

“Approximately one half hour while we waited for the homicide team.”

“And what happened when the team arrived?”

“When the investigators arrived, they looked in the house first. Then they came out and took custody of Mr. Elliot. I mean, took him out of the car.”

There was a slip I dove into.

“He was in custody at that time?”

“No, I made a mistake there. He voluntarily agreed to wait in the car and then they arrived and took him out.”

“You are saying he voluntarily agreed to be handcuffed in the back of a patrol car?”

“Yes.”

“If he had wanted to, could he have opened the door and gotten out?”

“I don’t think so. The back doors have security locks. You can’t open them from inside.”

“But he was in there voluntarily.”

“Yes, he was.”

Even Harber didn’t look like he believed what he was saying. His face had turned a deeper shade of pink.

“Deputy Harber, when did the handcuffs finally come off of Mr. Elliot?”

“When the detectives removed him from the car, they took the cuffs off and gave them back to my partner.”

“Okay.”

I nodded like I was finished and flipped up a few pages on my pad to check for questions I missed. I kept my eyes down on the pad when I spoke.

“Oh, Deputy? One last thing. The first call to nine-one-one went out at one-oh-five according to the dispatch log. Mr. Elliot had to call again nineteen minutes later to make sure he hadn’t been forgotten about, and then you and your partner finally arrived four minutes after that. A total of twenty-three minutes to respond.”

I now looked up at Harber.

“Deputy, why did it take so long to respond to what must’ve been a priority call?”

“The Malibu district is our largest geographically. We had to come all the way over the mountain from another call.”

“Wasn’t there another patrol car that was closer and also available?”

“My partner and I were in the alpha car. It’s a rover. We handle the priority calls and we accepted this one when it came in from dispatch.”

“Okay, Deputy, I have nothing further.”

On redirect Golantz followed the misdirection I’d set up. He asked Harber several questions that revolved around whether Elliot had been under arrest or not. The prosecutor sought to diffuse this idea, as it would play into the defense’s tunnel-vision theory. That was what I wanted him to think I was doing and it had worked. Golantz spent another fifteen minutes eliciting testimony from Harber that underlined that the man he and his partner had handcuffed outside the scene of a double murder was not under arrest. It defied common sense but the prosecution was sticking with it.