“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.