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.
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“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.
When the prosecutor was finished, the judge adjourned for the afternoon break. As soon as the jury had cleared the courtroom, I heard a whispered voice call my name. I turned around and saw Lorna, who pointed her finger toward the back of the courtroom. I turned further to look back, and there were my daughter and her mother, squeezed into the back row of the gallery. My daughter surreptitiously waved to me and I smiled back.
Thirty-nine
I met them in the hallway outside the courtroom, away from the clot of reporters who surrounded the other principals of the trial as they exited. Hayley hugged me and I was overwhelmed that she had come. I saw an empty wooden bench and we sat down.
“How long were you guys in there?” I asked. “I didn’t see you.”
“Unfortunately, not that long,” Maggie said. “Her last period today was PE, so I decided to take the afternoon off, pull her out early, and come on down. We saw most of your cross with the deputy.”
I looked from Maggie to our daughter, who was sitting between us. She had her mother’s looks; dark hair and eyes, skin that held a tan long into the winter.
“What did you think, Hay?”
“Um, I thought it was really interesting. You asked him a lot of questions. He looked like he was getting mad.”
“Don’t worry, he’ll get over it.”
I looked over her head and winked at my ex-wife.
“Mickey?”
I turned around and saw it was McEvoy from the Times. He had come over, his pad and pen ready.
“Not now,” I said.
“I just had a quick—”
“And I just said, not now. Leave me alone.”
McEvoy turned and walked back to one of the groups circling Golantz.
“Who was that?” Hayley asked.
“A newspaper reporter. I’ll talk to him later.”
“Mom said there was a big story about you today.”
“It wasn’t really about me. It was about the case. That’s why I was hoping you could come see some of it.”
I looked at my ex-wife again and nodded my thanks. She had put aside any anger she had toward me and placed our daughter first. No matter what else, I could always count on her for that.
“Do you go back in there?” Hayley asked.
“Yes, this is just a little break so people can get something to drink or use the bathroom. We have one more session and then we’ll go home and start it all over tomorrow.”
She nodded and looked down the hall toward the courtroom door. I followed her eyes and saw that people were starting to go back in.
“Um, Daddy? Did that man in there kill somebody?”
I looked at Maggie and she shrugged as if to say, I didn’t tell her to ask the question.
“Well, honey, we don’t know. He is accused of that, yes. And a lot of people think he did. But nothing has been proven yet and we’re going to use this trial to decide that. That’s what the trial is for. Remember how I explained that to you?”
“I remember.”
“Mick, is this your family?”
I looked over my shoulder and froze when I looked into the eyes of Walter Elliot. He was smiling warmly, expecting an introduction. Little did he know who Maggie McFierce was.
“Uh, hi, Walter. This is my daughter, Hayley, and this is her mom, Maggie McPherson.”
“Hi,” Hayley said shyly.
Maggie nodded and looked uncomfortable.
Walter made the mistake of thrusting his hand out to Maggie. If she could have acted more stiffly, I couldn’t imagine it. She shook his hand once and then quickly pulled away from his grasp. When his hand moved toward Hayley, Maggie literally jumped up, put her arms on our daughter’s shoulders, and pulled her from the bench.
“Hayley, let’s go into the restroom real quick before court starts again.”
She hustled Hayley off toward the restroom. Walter watched them go and then looked at me, his hand still held out and empty. I stood up.
“Sorry, Walter, my ex-wife’s a prosecutor. She works for the DA.”
His eyebrows climbed his forehead.
“Then, I guess I understand why she’s an ex-wife.”
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I nodded just to make him feel better. I told him to go on back into the courtroom and that I would be along shortly.
I walked toward the restrooms and met Maggie and Hayley as they were coming out.
“I think we’re going to head home,” Maggie said.
“Really?”
“She’s got a lot of homework and I think she’s seen enough for today.”
I could’ve argued that last point but I let it go. “Okay,” I said. “Hayley, thanks for coming. It means a lot to me.”
“Okay.”
I bent down and kissed her on the top of her head, then pulled her in close for a hug. It was only at times like this with my daughter that the distance I had opened in my life came closed. I felt connected to something that mattered. I looked up at Maggie.
“Thanks for bringing her.”
She nodded.
“For what it’s worth, you’re doing good in there.”
“It’s worth a lot. Thank you.”
She shrugged and let a small smile slip out. And that was nice, too.
I watched them walk toward the elevator alcove, knowing they weren’t going home to my house and wondering how it was that I had messed up my life so badly.
“Hayley!” I called after them.
My daughter looked back at me.
“See you Wednesday. Pancakes!”
She was smiling as they joined the crowd waiting for an elevator. I noticed that my former wife was smiling, too. I pointed at her as I walked back toward the courtroom.
“And you can come, too.”
She nodded.
“We’ll see,” she said.
An elevator opened and they moved toward it. “We’ll see.” Those two words seemed to cover it all for me.
Forty
In any murder trial, the main witness for the prosecution is always the lead investigator. Because there are no living victims to tell the jury what happened to them, it falls upon the lead to tell the tale of the investigation as well as to speak for the dead. The lead investigator brings the hammer. He puts everything together for the jury, makes it clear and makes it sympathetic. The lead’s job is to sell the case to the jury and, like any exchange or transaction, it is often just as much about the salesman as it is about the goods being sold. The best homicide men are the best salesmen. I’ve seen men as hard as Harry Bosch on the stand shed a tear when they’ve described the last moments a murder victim spent on earth.