No Legal Grounds (17 page)

Max didn’t answer. He kept his head on the pillow. “Time to get ready for church,” Sam said.
His son shook his head slightly.
“How you feeling, bud?”
A shrug.
“I know you’re still thinking about Buzz. We all are.” He saw Max squirm under the covers. He still hadn’t turned his

head.
“But the thing is, Max, sometimes really sad things happen like
this, and that’s the time you really have to let God help you.” Sam
was talking to himself now too. “Church is where your friends are,
the people who know you and care about you.”
“I don’t feel like going,” Max said.
“I know you don’t. But it’s when you don’t feel like it that going’s
the best thing for you.”
“I just don’t . . .” His voice trailed off.
Sam thought about leaving it at that. Let him stay home and mourn
by himself. But it didn’t seem right. This was one of those defining
moments when a kid had to look into the wrong end of the telescope
toward grown-up status. A tiny glimpse, but also a preparation. “Come on, Max my man. Don’t let whoever did this get you
down.”
“God did it.”
The answer startled him. “No.”
“He let it. He could’ve stopped it. He could’ve brought Buzz
back to life. God can do anything but he didn’t, so he killed Buzz,
didn’t he? What’s the difference?”
Sam cleared his throat, silently praying for the right words.
“Hey, what do they call the guy who comes in when the game is on
the line?”
Max rolled over so his face was up. “You mean the closer?” “Yeah. All I know, Max, is that God is the closer. And he can’t
be beat. We can only beat ourselves. If we hang back because we’re
afraid, we lose. Let’s not let that happen. Let’s go for it.” For a long time Max was silent, concentrating. “I’m just so sad,”
he finally said.
“I know.”
“I’m afraid if I go to youth group I might cry or something. I
don’t want to be a baby.”
“That’s one thing you’re not, Max. You want to come to church
with Mom and me this time?”
He nodded as if relieved.
“Then hop in the shower and let’s go.”
Sam went downstairs and found Linda staring out the kitchen
window, coffee mug in hand.
“It shouldn’t be like this,” she said.
“How about some eggs?”
“Did you hear what I said?”
“Don’t worry, Max is getting — ”
“This is not
right.
”
“I know.” Sam put his arm around her shoulder. She tightened. “I’m worn out from praying,” Linda said. “Just so tired.”

Monday morning, Sam had to wait in the DA’s reception area for Cam Bellamy to come back from court. He had a file under his arm and seemed distracted, and not exactly pleased to see Sam.

Without waiting for an answer he motioned Sam to follow him inside. Cam stopped just outside his office and grabbed a Styrofoam cup from the coffee station. He didn’t offer any to Sam.

Cam pushed the spout on the coffee urn, and only a small drizzle issued. “Hey, can we get some coffee made?” he said to no one in particular. Then to Sam: “Not yet.”

“When?”
“Sam, I’ve got a full load, so just — ”
“I have new information.”
Cam tossed the near-empty cup into a trash can. “Come on.”

Sam followed the deputy DA into his office, where he threw his file on the desk.
“What new information?” Cam said wearily.
“He poisoned our dog.”
Cam looked at him. “What?”
“Three days ago.”
“You sure it was him?”
“Who else would it be?”
“Can you prove it?”
“You can. Get a search warrant. I can tell you where he lives. Gerald Case found the address.”
“I need probable cause for a warrant.”
“You can always find a way to get it.”
“You watch too many TV shows.”
“Then use this.” Sam took his palm-size tape recorder out of his coat pocket and placed it on Cam’s desk. He pressed the play button.
“Let’s cut out the pretend stuff, all right? You went too far when you broke into my house with that flower stunt.”
“Stunt? I’m afraid I don’t follow.”
“You follow.”
“But breaking into your house? That’s a crime, isn’t it?”
“You should know all about crimes, Nicky. Crimes involving baseball bats.”
“Sammy, you’re talking funny for an old friend.”
“Funny or not, you entered my house. Why?”
“You’ve got to get off that, Sam. I would never do anything like that to you.”
“Forget the act. You have a criminal record. I know all about it. I know all about your mother too.”
“Better tread lightly, Sammy. You could hurt a guy’s feelings.”
“I wonder if Mom knows what you’ve been up to down here. Maybe I ought to — ”
“You best not mention my mother again.”
“Oh, Mommy wouldn’t like that news?”
“You’re not too good at threats, Sammy.”
“No, I guess you’re the master, huh? That’s what you want to be. You didn’t make it in life, so you want to tear down those who have. Well, it’s over for you, Nicky. You can’t win. I know all about you and Mom and I will seriously — ”
“I told you to shut up about her. You better, you hear?”
“Or what, Nicky?”
“I will take you apart, bit by bit. You and your family.”
Sam clicked off the tape.
“It’s not admissible in court,” Cam said.
“You suggested I do it.”
“Yes, but for — ”
“I can swear to the words in an affidavit. Won’t that give you probable cause for a warrant?”
After a long moment, Cam said, “All right, Sam. But I hope for your sake, and mine, we find something at this guy’s place.”
“How long will it take?”
“Give me twenty-four hours.”
Twenty-four hours.
He could wait that long.
He hoped.

For litigators, the paper game had one object: to bury the other side in motions, interrogatories, formal and informal letters, and attachments galore. The heavier the paper, the better.

Cohen was a game player supreme. Sam knew that going in, and knew it was all part of the Harper case. Truth be told, Lew was right about it. When you did a cost-benefit analysis of the matter, the balance of the scales did not weigh in the favor of keeping the case open, of even getting to trial.

But Sam couldn’t look at the law that way. Not anymore. So he’d meet Cohen on the playing field and deflect every move. Get him to bend, or get him in front of a jury. Nothing else would be acceptable.

The big issue would be Sarah Harper’s future earnings. The California legislature had capped noneconomic damages — pain and suffering, basically — at $250,000. But there was no cap on future earnings. The key would be proving what her worth would have been.

Sam thought this would actually be the strongest aspect of his case. He had a videographer putting together a highlight DVD based on the Harpers’ home videos of Sarah. They showed her skating circles around other kids at age four, and on from there.

Interspersed with this footage were a number of television sports commentators talking about her gold-medal chances, her natural prettiness, and her
spark.
That was a word that kept coming up regarding Sarah.

It was the same word that had once described American gymnast Mary Lou Retton, who became such a sensation at the 1984 Olympic Games in Los Angeles. She’d gone on to earn a ton in endorsements.

Now, with Nicky finally in legal trouble, Sam could get back to concentrating on his client. The concentrating kept him from thinking too hard about Heather, who was still resistant to communication. So Sam communicated more and more with God about his daughter.

“What are you doing home?” Sam said. Max had come in quietly through the front door. He was supposed to be at baseball practice, which was held two blocks away at the public park.

“I forgot my bat,” Max said.
“Last week you forgot your mitt.”
Max shrugged but didn’t move.
“Why do you keep forgetting things?” Sam folded his arms. He

had a suspicion but wanted Max to say it.
His son only looked at the floor and shrugged again. “Because you don’t want to go to practice, right?”
“No.”
“Max, be up front with me.”
“I am.”
“Look, I know you weren’t jazzed about playing fall ball.

And we talked about that. But you decided to, and you made a commitment — ”
“I’m going, okay? Lemme get my stupid bat!”
“Hey, don’t raise your voice.”
“Forget about it!” He turned toward the stairs.
“Wait just a minute — ”
But Max was already running up to his room.
“Max!”
His son didn’t stop. The surprise of that hit Sam in the chest. Max never ignored him. He’d always been pretty compliant. Now, suddenly, a parade of horribles kick-started in Sam’s imagination. Max ending up like Heather. Max in total rebellion.
He knew his son was still recovering from Buzz’s death. But Sam couldn’t let Max use that as an excuse to give up on doing the right things.
When he got to Max’s door Sam saw his son sitting on his bed, his bat on his lap, his head down.
“Hey, kid, it’s — ”
Max’s head jerked up. “Don’t come in here.”
“Max — ”
“Don’t!”
“Take it easy — ”
Max jumped up. His face was flushed. He held the bat like a club. Then he burst forward.
Sam caught him at the door.
“I gotta go!” Max tried to break free.
“Let’s talk about this — ”
“Let go!”
Sam did let go. He let go so he wouldn’t do or say something he’d regret, and keep regretting, as he had with Heather. He stood still in the doorway of Max’s room, listening to his son’s feet pound down the stairs.
He stood, lost.
And then angry. Not at Max, but at Nicky Oberlin. He had done this. He had come into his home just as a robber might have, and shot the place up.
If revenge is the Lord’s, let it be now. And swift. And terrible.

An evidentiary hearing in the matter of
People of the State of California versus Nicholas Oberlin
took place on a Tuesday morning in the courtroom of Judge Napoleon Andrews.

It was, in fact, the very same courtroom where one Robert Blake was tried on charges of murdering his wife, Bonnie Lee Bakley, in 2005. Blake was acquitted and walked out of that courtroom a free man.

Sam hoped Nicky Oberlin would not be taking the same walk. Nap Andrews had a good reputation, Cam said, and though he wasn’t known as a law-and-order jurist, he would give them a fair hearing. Sam didn’t hide a bit of disappointment at that. He wanted a judge who would skip a trial and lock Nicky up and throw away the key, a hanging judge. Old West justice.

If Oberlin had only tried to shake Sam’s tree, Sam wouldn’t have minded if the law meandered along in its sometimes lethargic way. But now it was different. Oberlin was going after his family. He’d hurt Max. Frightened Linda. That’s why the Red Queen’s edict — sentence first, verdict later — would have been just fine with Sam.

Except that it wouldn’t be. If the law was good only when it was in your favor, it wouldn’t really be the law. So Sam sat quietly in his theater-style seat — the design of the courtroom in the new building was a little bit Hollywood — and clenched his jaw.

“Good morning,” Judge Andrews said. “We are here for a 1538.5 hearing in
People versus Oberlin
.”
Sam grabbed the chair’s arms like a boxing fan just before the first round: 1538.5 was the penal code section that governed motions to suppress evidence. It was the biggest potential bomb in a defense lawyer’s pretrial arsenal. If a judge granted the motion, and the key evidence was held inadmissible, an entire case would be thrown out. Kaput. Finished.
A nagging thought bit at Sam’s mind. What if Nicky Oberlin really did get out of this? What then? But he calmed himself — slightly — by remembering Cam’s assurance that suppression was rarely granted anymore. The US Supremes had trimmed the judicial fat off the Fourth Amendment. Police evidence almost always made it through.
As the lawyers stated their appearances for the record, Sam gave the defense lawyer a once-over. His name was Blaine Jastrow, and he was a sixtieth-floor man. Expensive suit, hundred-dollar haircut, nails that would have sparkled under the right light. Lawyers on sixtieth floors were high above their street-level brethren in reputation, power, and fees.
This was Nicky Oberlin’s mouthpiece, and no doubt Mama had paid for this one. He wondered where Mama was. Could she be among the spectators?
Judge Andrews said, “Mr. Jastrow, you’re challenging the search warrant.”
“Yes, Your Honor. The photographs found in Mr. Oberlin’s apartment must be suppressed. The items are not described in the warrant and were not in plain view. Further, the warrant was not supported by probable cause.”
Cam had prepared Sam for this, assuring him that Andrews wouldn’t go so far as to suppress the evidence. There were precious few times Andrews had failed to bind over a defendant for trial. This wouldn’t be one of them.
“You have the burden of proof,” Andrews said. “The warrant is valid on its face. It authorized a search for toxic materials, and related items thereof. You’re not contesting that, correct?”
Blaine Jastrow said, “Not the face, Your Honor. We will be contesting the execution of the search and, in the alternative, the sufficiency of the affidavit.”
“Call your witness, then.”
“Call Officer Paul Helmuth.”
A uniformed LAPD officer stood up in the back row, walked down to the rail and through the gate. He was of the overweight variety of policeman. These days, Sam thought, there were either puffy cops or hard bodies. Didn’t seem to be any in between anymore.
The officer was sworn in and took the witness chair. Blaine Jastrow placed a yellow legal pad on the podium and asked, “Officer Helmuth, you served the search warrant on my client’s apartment, is that correct?”
“Yes.”
“Did you have a partner with you?”
“Yes.”
Sam saw Jastrow roll his eyes. The officer was playing games. Police are trained to only answer the question given, but these questions were foundational only, and it would have sped things along for Officer Helmuth to just name his partner.
“Your partner’s name?” Jastrow asked.
“Officer Jane Perkins.”
“All right. You had the warrant in hand. Directing your attention to the face of the warrant, please read the description of the items.”
Helmuth looked down with obvious consternation. “Paul Helmuth, being sworn, says that on the basis of the information contained within the Search Warrant and Affidavit and the incorporated Statement of Probable Cause, he/she has probable cause to believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the locations set forth below. Wherefore, affiant requests that this Search Warrant be issued.”
“So you swore under penalty of perjury to the Statement of Probable Cause?”
“Of course. It’s required by law.”
“And what is the material described in the warrant?”
“Toxic materials that may have been used in the perpetration of a crime, including, but not limited to, poisons and pest-control material.”
“Is that it?”
“Yes.”
“All right. What did you do next?”
“I complied with the knock-notice requirement.”
“That’s for the judge to determine. I asked what you
did
.”
With a sigh, Helmuth said, “I knocked on the door. Then I gave notice. I mean, I said, ‘Los Angeles Police. Open the door, please.’ ”
“And what happened then?”
“Nothing. I knocked again, louder. I announced again. No answer. So I tried the door and it was locked.”
“How long between the time of your first knock and your trying the door?”
“I don’t know — ”
“Your best estimate.”
Helmuth looked up a moment. “Maybe thirty seconds.”
“After you tried the door and found it locked, what did you do?”
“I was about to knock again, but the door opened. The defendant opened the door.”
Blaine Jastrow jotted a note on his yellow legal pad. “Did Mr. Oberlin offer any resistance to you?”
“Not at that point.”
“Ah, so your assertion is that there was resistance at
some
point?”
“Verbally.”
“Nothing physical?”
“No.”
“After my client opened the door, he let you in, did he not?”
“After I told him we had a search warrant, yes.”
“Because my client has the same right to privacy as any other citizen, right?”
Judge Andrews cleared his throat. “Why don’t you move on there, Mr. Jastrow.”
That was right, Sam knew. Jastrow was just needling Helmuth. There was no jury here to sway. Sam glanced over at Nicky, who was smiling at all this.
Jastrow said, “You informed my client what you were looking for, correct?”
“Yes.”
“Asked him if he had any of the materials mentioned in the warrant?”
“Yes.”
“He denied it, isn’t that right?”
“Yes.”
“Then you started to search the apartment?”
“Yes.”
“And did not find any such material, correct?”
Helmuth hesitated. “Right.”
Stepping from the podium, Jastrow faced the officer like a fighter in his corner just before the bell sounds. “At what point, Officer Helmuth, did you or your partner start poking your nose into my client’s drawers?”
A few of the spectators in court laughed. Sam was sure Jastrow fully intended the double entendre. Even Judge Andrews smiled.
The witness did not. “We were looking for receipts that might be directly related to the items we were searching for.”
“Excuse me, Officer Helmuth, but where in the warrant is the word
receipts
?”
“It’s not.”
“That’s what I thought.”
Helmuth glared.
“You went fishing in other places too.”
“We searched any place that might have papers like that.”
“Including the chest of drawers in my client’s bedroom?”
“Yes.”
“People usually keep receipts there, don’t they?”
Cam Bellamy said, “Objection.”
“Sustained,” Judge Andrews said.
Without a flinch, Jastrow said, “You looked in the chest of drawers and that’s where you found the photographs that you seized, right?”
“Yes.”
“Photographs. Of whom?”
“People.”
“What people?”
“I didn’t know.”
“So that obviously caused you to think there was a connection between some pictures of people you didn’t know and the materials for which you were authorized to search?”
This was the heart of it, Sam knew. Jastrow was trying to show that the photos had nothing to do with the warrant and shouldn’t have been confiscated.
And if the judge agreed, the case would be over. Nicky Oberlin would walk out of court free as the proverbial bird.
Helmuth looked like a cornered, though well-fed, ferret. “In my training and experience, these photographs were evidence of intent. There was — ”
“Let me ask you this — ”
Cam Bellamy objected. “The witness didn’t finish his answer, Your Honor.”
“Sustained. The witness may finish his answer.”
“I was just going to explain that there was nothing else in the top drawer. No clothing. The photographs were laid out in sequence. There were four different subjects in the ten photographs. From left to right, it was a man, a woman, and two minors, a female and a male. There was also a handgun in the drawer.”
“Which you seized.”
“Yes. Now about the pictures — ”
“Did you ask Mr. Oberlin if it was registered?”
“Yes.”
“Did he produce registration?”
“Yes.”
“Yet you seized the weapon?”
Helmuth shrugged. “Yeah. Yes.”
Jastrow jotted another note, then said, “That’s all I have at this time, Your Honor.”
“Very well,” Judge Andrews said. “Mr. Bellamy?”