“Let’s hope so.”
I straightened up in my seat and looked at the judge.
“I have nothing further, Your Honor.”
By prior agreement, Forsythe and I were to submit written arguments on the motion following the witness testimony. Pretty much knowing from the prelim how Whitten would testify, my document was already finished. I submitted it to Leggoe and gave copies to the court clerk and Forsythe. The prosecutor said he would have his response by the following afternoon, and Leggoe said she planned to rule promptly and well before the start of the trial. Her mention of her ruling not interrupting the trial schedule was a strong indication that my motion was going to be a loser. With its rulings in recent years, the U.S. Supreme Court had made new law when it came to Miranda cases, giving the police wider leeway on when and where suspects must be informed of their constitutional rights. I suspected that Judge Leggoe would go along to get along.
The judge adjourned the hearing and the two court deputies came to the defense table to take La Cosse back to the lockup. I asked for the chance to confer with my client for a few minutes, but they told me I would have to do it in the courtroom’s holding cell. I nodded to Andre and told him I’d be back to see him shortly.
The deputies took him away and I stood up and started repacking my briefcase, gathering the files and notebooks I had spread out on the table before the hearing. Forsythe came over to sympathize. He seemed like a decent guy and up till now had not—as far as I knew—played games with discovery or anything else.
“Must be hard,” he said.
“What’s that?” I responded.
“Just banging away at these things, knowing the success rate is what, one in fifty?”
“Maybe one in a hundred. But when you hit that one? Man, that’s a sweet day.”
Forsythe nodded. I knew he wanted to do more than commiserate on the defense attorney’s lot in life.
“So,” he finally said. “Any chance we might end this before the trial?”
He was talking about a disposition. He had sent up a balloon back in January and then another in February. I didn’t respond to the first one—which was an offer to accept a second-degree conviction, meaning La Cosse would be out in fifteen years. My ignoring the offer brought an improvement when Forsythe came around again in February. This time the DA was willing to call it a heat-of-passion case and let La Cosse plead to manslaughter. But La Cosse would still do at least ten years in the pen. As was my duty, I took the deal to him, and he turned it down flat. Ten years might as well be a hundred if you are doing time for a crime you didn’t commit, he said. He had a passion in his voice when he said it. It tipped me toward his corner, toward thoughts that maybe he was indeed innocent.
I looked at Forsythe and shook my head.
“Andre’s not getting cold feet,” I said. “He still says he didn’t do it and still wants to see if you can prove he did.”
“So no deal, then.”
“No deal.”
“Then, I guess I’ll see you at jury selection, May sixth.”
That was the date Leggoe had set for the start of the trial. She was giving us four days max to pick a jury and a day for lastminute motions and opening statements. The real show would start the following week, when the prosecution began its case.
“Oh, you might see me before that. You never know.”
I snapped my briefcase closed and headed toward the steel door to the holding cell. The court deputy escorted me back and I found La Cosse waiting alone in the cell.
“We’ll be moving him back in fifteen,” the deputy said.
“Okay, thanks,” I said.
“Knock when you’re ready to come out.”
I waited until the deputy went back through the courtroom door before turning and looking at my client through the bars.
“Andre, I’m worried. It doesn’t look like you’re eating.”
“I’m not eating. How could anyone eat when they’re in here for something they didn’t do? Besides, the food is fucking horrible. I just want to go home.”
I nodded.
“I know, I know.”
“You are going to win this, aren’t you?”
“I’m going to give it my best shot. But just so you know, the DA is still floating a deal out there if you want me to pursue it.”
La Cosse emphatically shook his head.
“I don’t even want to hear what it is. No deal.”
“That’s what I thought. So we go to trial.”
“What if we win the motion to suppress?”
I shrugged.
“Don’t get your hopes up on that. I told you, it’s a long shot. You have to expect that we are going to go to trial.”
La Cosse lowered his head until his forehead was against one of the bars that separated us. He looked like he was going to cry.
“Look, I know I’m not a good guy,” he said. “I did a lot of bad things in my life. But I didn’t do this. I didn’t.”
“And I’m going to do my best to prove it, Andre. You can count on that.”
He drew his head up to look at me eye to eye and nodded.
“That’s what Giselle said. That she could count on you.”
“She said that? Count on me for what?”
“You know, like if anything happened to her, she knew she could count on you to not let it go by.”
I paused for a moment. In the past five months La Cosse and I had had limited communication. He was in jail and I was working a full caseload. We spoke when together for court hearings and during occasional phone calls from the pink module, where he was housed at Men’s Central. Even so, I thought I had gotten everything I needed from him in order to defend him at trial. But what he had just said was new information, and it gave me pause because it was about Gloria Dayton, who still remained an enigma to me.
“Why did she tell you that?”
La Cosse shook his head slightly, as though he didn’t understand the urgency I had put into my voice.
“I don’t know. We were just talking once and she mentioned you. You know, like if anything happens to me, then Mickey Mantle will go to bat for me.”
“When did she say that?”
“I don’t remember. She just said it. She said to make sure to let you know.”
With my one free hand I gripped one of the bars and moved closer to my client.
“You told me you came to me because she said I was a good lawyer. You didn’t tell me any of this other stuff.”
“I had just been arrested for murder and was scared shitless. I wanted you to take my case.”
I held myself back from reaching through the bars and grabbing him by the collar of his jumpsuit.
“Andre, listen to me. I want you to tell me exactly what she said. Use her words.”
“She just said that if something happened to her, I had to promise to tell you. And then something did happen and I got arrested. So I called you.”
“How close was this conversation to when she was murdered?”
“I can’t remember exactly.”
“Days? Weeks? Months? Come on, Andre. It could be important.”
“I don’t know. A week, maybe longer. I can’t remember because being in this place, all the noise and the lights on all the time and the animals, it wears you down and you start losing your mind. I can’t remember things, I don’t even remember what my mother looks like anymore.”
“Okay, calm down. You think about this on the bus ride and when you’re back in your own cell. I want you to remember exactly when this conversation took place. Okay?”
“I’ll try but I don’t know.”
“Okay, you try. I have to go now. I’ll be seeing you before the trial. There’s still a lot of prep work to be done.”
“Okay. And I’m sorry.”
“For what?”
“For getting you upset about Giselle. I can tell you are.”
“Don’t worry about it. Just make sure you eat the food they give you toni
ght. I want you to look strong for the trial. You promise me?”
La Cosse reluctantly nodded.
“I promise.”
I headed back to the steel door.
12
I walked back through the courtroom with my head down, oblivious of the hearing that Judge Leggoe had started following ours. I moved toward the rear exit, pondering the story La Cosse had just told me, that he had reached out to me following his arrest because Gloria Dayton had wanted me to know if something happened to her, not necessarily because she thought I should be his attorney. There was a significant difference in the stories and it helped ease the burden I’d carried for months in regard to Gloria. But did she want me to get this message so I would avenge her, or was it to warn me about some unseen danger? The questions put a new complexion on how I viewed things about Gloria and even myself. I now realized that Gloria might have known or at least feared that she was in danger.
The moment I stepped out of the courtroom and into the crowded hallway I was confronted by Fernando Valenzuela—the bondsman, not the former baseball pitcher. Val and I went way back and once shared a working relationship that was financially beneficial to both parties. But things turned sour years ago and we drifted apart. When I needed a bondsman these days, I usually went to Bill Deen or Bob Edmundson. Val was a distant third on that list.
Valenzuela handed me a folded document.
“Mick, this is for you.”
“What is it?”
I took the document and started to unfold it one handed, waving it to get it open.
“It’s a subpoena. You’ve been served.”
“What are you talking about? You’re running process now?”
“One of my many skills, Mick. Guy’s gotta make a living. Hold it up for me.”
“Fuck that.”
I knew the routine. He wanted to take a photo of me with the document to prove service. Service had been made but I wasn’t going to pose for pictures. I held the paper behind my back. Valenzuela took a photo with his phone anyway.
“Doesn’t matter,” he said.
“This is totally unnecessary, Val,” I said.
He put his phone away and I looked at the paper. I immediately saw the styling of the case; Hector Arrande Moya vs Arthur Rollins, warden, FCI Victorville. It was a 2241 filing. This was a permutation of a habeas petition that was known by lawyers as a “true habeas,” because rather than being a last-ditch effort grasping at legal straws like ineffective counsel, it was a declaration that startlingly new evidence was now available that proved innocence. Moya had something new up his sleeve and somehow it involved me, meaning it must involve my late client Gloria Dayton. She was the only link between Moya and me. The basic cause of action in a 2241 filing was the claim that the petitioner—in this case, Moya—was being unlawfully detained in prison, and thus the civil action directed against the warden. There would be something more in the full filing, the claim of new evidence designed to get a federal judge’s attention.
“Okay, Mick, so no hard feelings?”
I looked over the paper at Valenzuela. He had his phone out again and took my photo. I had forgotten he was even there. I could’ve gotten mad but I was too intrigued now.
“No, no hard feelings, Val. If I knew you were a process server, I would have been using you myself.”
Now Valenzuela was intrigued.
“Anytime, man. You’ve got my number. Money’s tight in the bond market right now, so I’m just picking up the slack. Know what I mean?”
“Yeah, but you tell your employer on this that lawyer to lawyer, a subpoena is not the way to . . .”
I paused when I read the name of the lawyer issuing the subpoena.
“Sylvester Fulgoni?”
“That’s right, the firm that puts the F-U in litigation.”
Valenzuela laughed, proud of his clever response. But I was thinking of something else. Sylvester Fulgoni was indeed a onetime ball buster when it came to practicing law. But what was unusual about being subpoenaed by him to give a deposition was that I knew he had been disbarred and was serving time in federal prison for tax evasion. Fulgoni had built a successful practice primarily suing law enforcement agencies over color-of-law cases—cops using the protection of the badge to get away with assault, extortion, and other abuses, sometimes even murder. He had won millions in settlements and jury verdicts and taken his fair share in fees. Only he hadn’t bothered to pay taxes on most of it and eventually the governments he so often sued took notice.
Fulgoni claimed he was the target of a vindictive prosecution designed to stop his championing of victims of law enforcement and government abuse, but the fact was he hadn’t paid or even filed his taxes for four successive years. You get twelve taxpayers in the box and the verdict always comes out against you. Fulgoni appealed the guilty verdict for nearly six years but eventually time ran out and he went to prison. That was only a year ago and I now had a sneaking suspicion that the prison he’d ended up in was the Federal Correctional Institution at Victorville, which also happened to be home to Hector Arrande Moya.
“Is Sly already out?” I asked. “He couldn’t have gotten his bar ticket back already.”
“No, it’s his son, Sly Jr. He’s on the case.”
I had never heard of a Sylvester Fulgoni Jr. and I didn’t recall Sylvester Sr. being much older than me.
“He must be a baby lawyer, then.”
“I wouldn’t know. I never met the man. I deal with the office manager there and I gotta go, Mick. I’ve got more goodies to deliver.”
Valenzuela patted the satchel he had slung over his shoulder and turned to head down the courthouse hallway.
“Any more on this case?” I asked, holding up the subpoena.
Valenzuela frowned.
“Come on, Mick, you know I can’t be—”
“I send out a lot of subpoenas, you know, Val. I mean, whoever gets my business stands to make some pretty good coin month to month. But it’s gotta be somebody I trust, you know what I mean? Somebody who’s with me and not against me.”
Valenzuela knew exactly what I meant. He shook his head and then his eyes lit when he came up with a way out of the corner I had put him in. He signaled me over with his finger.
“Say, Mick, maybe you can help me out,” he said.
I stepped over to him.
“Sure,” I said. “What do you need?”
He opened his satchel and started looking through the papers in it.
“I gotta go over to the DEA to see this agent over there named James Marco. You have any idea where the DEA is in the Roybal Building?”
“The DEA? Well, it depends if he’s on one of the task forces or not. They have them spread around that building and other places in town.”
Valenzuela nodded.
“Yeah, he’s part of something called Interagency Cartel Enforcement Team. I think they call it ICE-T or something like that.”
I thought about that, the intrigue of the subpoena and everything else building inside of me.
“Sorry, I don’t know where they’re at in there. Anything else I can help you with?”
Valenzuela went back to looking through his bag.
“Yeah, one other. After the DEA, I gotta go see a lady named Kendall Roberts—that’s with a K and two l’s—and she lives on Vista Del Monte in Sherman Oaks. You know where that is by any chance?”
“Not offhand, no.”
“Well, I guess I’ll have to fire up the old GPS then. I’ll see you, Mick.”
“Yeah, Val. I’ll call you with my next batch of paper.”
I watched him go off down the hall and then walked over to one of the benches that lined the hallway. Finding a small open space to sit down, I opened my bag so I could write down the names Valenzuela had just given me. I then pulled my cell and called Cisco. I gave him the names James Marco and Kendall Roberts and told him to find out whatever he could on them. I mentioned that Marco was supposedly law enforcement and possibly
with the Drug Enforcement Agency. Cisco groaned. All people in law enforcement take measures to protect themselves by eliminating as many digital trails and as much public information as possible. But DEA agents take it to a whole new level.
“I might as well be running down a CIA agent,” Cisco complained.
“Just see what you come up with,” I said. “Start with the Interagency Cartel Enforcement Team—ICE-T. You never know, we might get lucky.”
I left the courthouse after that and spotted the Lincoln parked on Spring. I jumped in the back and was about to tell Earl to head to Starbucks when I realized it wasn’t Earl behind the wheel, because I was in the wrong Lincoln.
“Oh, sorry, wrong car,” I said.
I jumped out and called Earl on the cell. He said he was parked on Broadway because a parking cop had chased him off the curb on Spring. I waited five minutes for his arrival and used the time to call Lorna to check on things. She told me nothing worth mentioning was happening and I told her about the subpoena from Fulgoni and that it was scheduled for the following Tuesday morning at his office in Century City. She said she’d put it on the calendar and seemed to share my annoyance with Fulgoni’s using Val to drop paper on me. Traditionally, it is not necessary for one lawyer to subpoena another. Usually a phone call and professional courtesy accomplishes the same thing.
“What a jerk!” Lorna said. “But how is Val doing?”
“I guess all right. I told him I’d throw him some of our paper.”
“And did you mean it? You have Cisco.”
“Maybe. We’ll see. Cisco hates process serving, thinks it’s beneath him.”
“But he does it and it doesn’t cost you anything extra.”
“That’s true.”
I ended the call as Earl pulled up in the right Lincoln. We drove over to the Starbucks on Central so I could use the Wi-Fi.
Once I was set up online, I went to the PACER site and plugged in the case number I took off the subpoena. The filing by Sylvester Fulgoni Jr. was indeed a true habeas motion seeking to vacate the conviction of Hector Arrande Moya. It cited gross government misconduct in the actions of DEA Agent James Marco. The filing alleged that prior to Moya’s arrest by the LAPD, Marco used a confidential informant to enter the premises of Moya’s hotel room and plant a firearm under the mattress. Marco then used the informant to orchestrate the arrest of Moya by the LAPD and the finding of the weapon by the arresting officers. The firearm allowed prosecutors to add an enhancement charge against Moya, making him eligible upon conviction for a life sentence in federal prison. He was indeed sentenced to life following his conviction.