Hardy did take Frannie and Rebecca to Hawaii, where they stayed for two weeks.
In San Francisco the Owen Nash case fell out of the headlines. During August and September there was no outward sign of activity, although Peter Struler (not Abe Glitsky) kept himself very busy on the case that Elizabeth Pullios didn’t want to close; the police department, and Abe, had moved along to other, more pressing crimes.
Now it had been over three months since Hardy had been fired, and Struler and Pullios had put together their case. When they did finally move, they moved very quickly.
The sealed indictment was passed down by the grand jury on the morning of Tuesday, October 13. Superior Court Judge Marian Braun read the indictment and decreed that there would be no bail on the bench warrant. In an unusual move, the warrant itself was hand-delivered by the district attorney himself, Christopher Locke, accompanied by assistant D.A. Elizabeth Pullios and Police Chief Dan Rigby, to Lieutenant Frank Batiste of the Homicide Division at 11:45 A.M. Reading it, Batiste sucked in a breath.
Had this case gone to the grand jury in the normal way, after an investigation by an assigned police officer, service of the warrant would have been assigned to that officer, in this case Inspector Sergeant Abraham Glitsky. But Glitsky, along with the rest of Homicide, was unaware of Peter Struler’s work on behalf of the D.A.‘s office. So the service was assigned to Marcel Lanier, who was lounging around the office waiting for something to happen.
Judge Fowler had weathered a cyclone of vitriol and criticism, gossip and embarrassment, but, like all storms, this one had passed. The reprimand he received from the Ethics Committee, due to his long and distinguished career stopped far short of having teeth, and the Bar Association told him that had the May Shinn trial gone on, it would have seriously considered suspension or even disbarment. But in the end, three months later, he was back in the business of the law with a spacious corner office at Embarcadero One – a partner in the firm of Strand, Worke & Luzinski.
When Wanda buzzed him and told him Officer Marcel Lanier was waiting to see him he said of course, he knew Marcel, send him on in. Fowler hadn’t been completely ostracized at the Hall – a lot of the attorneys and staff saw his side of things, the human side. His colleagues on the bench were less understanding but he’d expected that. There was nothing he could do about it.
To the cops, the Shinn fiasco had been the district attorney’s screwup, not Fowler’s; it hadn’t gone down as a loss for the police department, except for the false arrest, but the grand-jury indictment had de facto corroborated Glitsky’s judgment anyway, so even that wasn’t an issue.
Fowler came around his desk and extended his hand to Lanier. ‘How are you doing, Marcel? Social call? How can I help you?’
Lanier remained standing. ‘No… not a social call, Judge.’
‘Andy, please.’
‘Judge.’ He took the warrant out of his coat pocket, ‘I don’t know how to say this, but I’ve got a warrant here for your arrest.’
‘For my arrest?’
That’s right, sir.‘
Andy tried to smile. Marcel Lanier wasn’t smiling. ‘Is this some kind of joke?’
‘No, sir. The grand jury issued an indictment against you this morning on the murder of Owen Nash.’
Fowler found he needed to put his weight back against the corner of his desk. ‘The grand jury,’ he repeated. He had gone pale, poleaxed. ‘Owen Nash?’
Lanier stood mute.
Wanda was buzzing again, and Fowler punched the intercom button. ‘It’s your daughter, Judge. Lunch.’
‘Just hold her a second -’
But Jane had already opened the door. ‘Hi, Dad. Oops, sorry. Wanda didn’t say you had a meeting.’ Seeing him so pale, she stopped. ‘Dad? What’s going on?’
‘Jane, hon, why don’t you wait outside a minute?’
‘Are you all right? What’s happening?’
‘I’m fine. Scoot, now. Go.’
The door closed behind her reluctant retreat. ‘This is ridiculous, Marcel. It’s Locke, isn’t it? Payback time.’
‘All I know, sir, is I’ve got to bring you in.’
‘Sure, I know, I understand, of course. It’s not you. What in the world do they think they have?’
‘Sir, I have to tell you that you have the right to remain silent, and anything you do say…’
‘Marcel, please,’ Fowler said, holding up a hand. ‘You have my word I won’t plead Miranda.’
‘It’s got to be pure harassment. Locke swore a thousand times he’d crucify me. Now he thinks he’s got the chance.’
The crumbs of a hero sandwich littered David Freeman’s desk. The last few bites had been interrupted by Andy Fowler’s telephone call from the Hall of Justice. Fowler hadn’t spoken to him since he’d refused to challenge his department that day last July in the May Shinn matter, but now, in trouble himself, he had called again.
What Fowler was saying made little sense to Freeman. Christopher Locke might in fact hate Fowler’s guts, but he wasn’t going to take another hit being wrong on a high-profile murder like Owen Nash. They must have found some real evidence. And Freeman knew Fowler had more motive to kill Owen Nash than had ever been even imputed to May Shinn.
‘Listen, Andy, I’m not sure I can take this one.’
‘What do you mean you’re not sure? What would be the problem?’
‘Well, two come to mind. I’m not saying no just yet, Andy, but I’m going to have to consider it. Number one, I’m still representing May Shinn in some civil work. I’d want to avoid the appearance of any conflict there.’
‘I can’t see how that would apply, David. May and I are totally separate.’
‘Yes. Well, the other one is our collusion…’
‘Collusion?’
‘That’s what it was, Andy, so damn close to conspiracy I still get nightmares. And I believe you know it.’
‘There was absolutely nothing illegal about that relationship and you know it.’
‘Well, be that as it may, I’m having a little trouble envisioning the two of us together at a defense table and getting anything like reasonable treatment from the bench.’
‘So we’ll file for change of venue.’
Freeman leaned back in his chair and took another bite of his sandwich. Again, he didn’t agree with Andy. Change of venue was called for when you didn’t think you could get a fair trial in a certain locality because of pretrial media coverage or other excessive public awareness of the purported facts in a case. But it presumed that the prejudice you’d encounter would be on the jury.
What Fowler was ignoring, and what Freeman knew to be true, was that there wasn’t a judge in the state, perhaps in the country, who didn’t know what he’d done, and wouldn’t be prejudiced against him for it. He was this year’s legal Benedict Arnold.
Any judge of Freeman’s acquaintance, and he knew most of them, would be far tougher on one of their own – on an Andy Fowler – than they would on other miscreants, all other things being equal. Andy Fowler had, in their official view, befouled their collective cave, and David Freeman understood that. It would be this side of a miracle if Fowler could get a fair trial anywhere, and with Freeman, his colluder, beside him, the chances became more remote.
‘Venue is an issue all right, Andy. But I’ll really have to give this some consideration.’
‘Meanwhile, David, what do you recommend?’ Freeman was surprised to hear the note of anger in the judge’s voice. There was nothing personal here, and Fowler must know that.
‘I could recommend an interim counsel, Andy. Several, in fact. What did they set bail at?’
Fowler clipped it. ‘There’s no bail on the bench warrant. They want to be sure I’m here for the arraignment. Look, David, my two minutes are about up and I need some representation here.’
‘I’ll see what I can do.’
Freeman put down the receiver and popped the last bite of his sandwich. There must be something in the San Francisco air, he thought. Dry salami, mortadella, sourdough bread. Any food that sat and fermented picked up something from it, some essence, that enhanced its flavor.
He put his feet up, chewing. He figured Fowler’s bail would be at least a million, if he got it at all. He could guarantee offhand that three judges out of the six on Superior Court would let the judge rot in jail just to express their displeasure. And it would all be impartial, impersonal, within the bounds of their prerogatives.
Institutionalized pettiness. Perfectly legal. The law was a many-splendored thing.
Jane Fowler walked into the Little Shamrock and back to the dart boards, where Dismas Hardy was playing for money. She let him finish his round, let him turn and see her. They hadn’t spoken in three months, since she’d yelled at him about forcing her father to retire. He hadn’t returned her phone calls – four of them altogether, one about every three weeks.
After seeing her father led from his office wearing handcuffs – that was the drill – she didn’t care what he thought about it, she was going to see him, so she’d driven out to his house. Frannie, obviously pregnant again, had about six other infants and a few other women in their house. Had they opened a daycare center or what? No, this was their playgroup – other new mothers supporting each other. There was a pang. This hadn’t been a feature in Jane’s life during the months she and Hardy had been new parents.
Frannie had been, as always, polite, and had told her where she could find Dismas, who always left the house on Tuesday afternoons. She explained that Dismas was good around one infant or perhaps even two. But when the number got to four plus their mothers, he reached his critical mass and tended to want to disappear. He was undoubtedly playing darts at the Little Shamrock. She should try there.
Seeing Jane, Hardy lit up briefly, then frowned. ‘What’s the matter?’ he asked. She told him in about twenty seconds. Hardy’s dart opponent had finished his turn. ‘Hardy,’ he said.
He told Jane to give him a minute, went to the chalk line and threw three darts – a twenty, a seventeen and a double six. The other man swore and took out his wallet. Hardy was already pulling the flights from his darts, putting the shafts back in his leather case.
‘Double or nothing?’ the other man asked.
Hardy shook his head. ‘Can’t do it.’ He pocketed the man’s bill and led Jane up to the bar.
‘What do you want me to do, Jane?’
‘I want you to see him, I want you to help him.’
‘How?’
She didn’t know. Hardy had been unemployed for three months. He had put on thirteen pounds. Under the guise of improving his dart game and preparing to play in some big tournaments, he was drinking about six Guinnesses every day between one, when the Shamrock opened, and about five, when he went home. The latest Guinness arrived.
‘Daddy needs you,’ Jane said. ‘It’s ridiculous. He wouldn’t kill anybody, Dismas, you know that.’
Hardy said nothing. He didn’t know that, nobody knew that.
‘Come on,’ she said.
‘What am I supposed to do?’
‘You’ll think of something. You’re the lawyer.’
‘So’s he, so are all his friends.’ Hardy shook his head. He’d think of something; he liked that. ‘I’m sure he’s already got a lawyer.’
‘But he needs somebody he can count on, not just somebody he’s paying.’
‘I’m not a lawyer anymore, and even if I were, I’m not a defense lawyer. I’ve never defended anybody in my life.’
‘Look, I’m only asking you to see him. He’s done you favors, more than one. You owe him.’
In a way, maybe so. He still felt bad – justified but bad nonetheless – about Andy’s early retirement, guilty that he’d forced it so quickly when the whole thing had proved unnecessary. Since their meeting at the fern bar, Hardy and Andy hadn’t spoken. ‘I didn’t leak it, Jane.’
Jane narrowed her eyes. ‘But you were the only one who knew about him and May. It had to be you.’
Hardy shook his head. ‘From the phone records. I didn’t know anything about the bail. The Chronicle guy, the reporter, he’s the one that found the bail story.’
‘Daddy thought it was you.’
‘Well, it wasn’t. And if he did, why would he want to see me now?’
‘He didn’t exactly say he did. I’m saying it. I think it would be good for him, for both of you.’
Hardy sighed. Jane wasn’t going to go away. Besides, he wasn’t doing anything else. How could it hurt?
Hardy followed Jane in his own car.
It was a warm October day, Indian summer in San Francisco. The top was down and there was plenty of time to ponder. He found it nearly impossible to imagine that they had arrested Andy Fowler for the murder of Owen Nash. He knew that Locke personally disliked the man and that Pullios was capable of carrying a grudge of impressive proportions, but all that aside, you needed evidence to indict a man, a former judge, for murder, even more to convict. Hardy hadn’t heard about any new evidence turning up, and he was sure he would have.
He still saw Glitsky once a week or so, talked to him every few days. By the time he and Frannie had gotten back from Hawaii, the Nash case had faded from the newspapers, but Glitsky had come by the house, filling Hardy in.
Apparently Ken Farris had made an honest mistake about the last time he had seen Nash. In fact, it had been on Thursday. People made mistakes. He had flown to Taos on Friday, ate out in restaurants in Taos on both Friday and Saturday nights, flown back Monday morning.
Austin Brucker, Mr Silicon Valley, had vacated the presidency of the company Owen Nash had set him up in and started a new venture of his own – something to do with ceramic fibers – down in San José. With a staff of five engineers he’d been in his shop all day every day for the months of April, May and June, and according to all sources, would remain there until next Groundhog Day at the earliest.
Glitsky, being thorough, had even looked into Celine. Her fingerprints had been all over the Eloise, which was to be expected – she said that she had often gone sailing with her father. The friends she had visited in Santa Cruz were an unlikely trio of two gay bodybuilders and one of their mothers, all of whom verified that Celine had spent the weekend with them, helping with the remodeling of their old Victorian house.
The one surprise was that Celine’s fingerprints had shown up in the arrest database. If you had never been arrested, your fingerprints might be on file with the Department of Motor Vehicles, but by far the most accessible record to the police, and thus the first place they looked, was the database of people who had been arrested.
‘Celine was arrested?’
‘Twice. Shoplifting when she was twenty, reduced to reckless trespass, dismissed. And prostitution.’
‘Prostitution?’
‘I know, like she needed the money, right. Anyway, it was fifteen years ago. I questioned her on it. It’s not what you would call one of her favorite memories. She says it was a misunderstanding. She also says it was just after her first marriage ended, and she was having a bad time.’
‘Which was it, a bad time or a misunderstanding?’
‘I know, that was a little iffy. Either way, it never got charged. When your father’s Owen Nash…’
‘Money keeps talking, doesn’t it,’ Hardy had said, and Glitsky said he believed it did.
So with Farris, Brucker and Celine accounted for, only one righteous suspect was left, and that was Andy Fowler. But – and what had plagued this case from every angle since it began – Glitsky could find no evidence linking him to Owen Nash, or to the Eloise.
Andy had been out of town, hiking in the Sierras, though apparently he had seen no one. But he hadn’t known Owen Nash – there was no record of their having met. While Hardy was in Hawaii, it had come out that Andy Fowler had had a long-term relationship with May Shinn but that it had ended about the time she met Nash.
‘I don’t think that was a coincidence, Abe.’
‘No. I don’t either. So what? Fowler swears he never heard of Nash until he read about him in the papers.’
‘Do you believe that?’
‘There’s nothing to contradict it. Nothing to put him on the boat. What’s the motive? Eliminate a rival, get her back. Oldest one in the world. You’ve got to understand, Diz. People do think Fowler might have done it. Locke wants his ass in a big way. But if he did do it, he did it right. There’s no way Locke or Rigby or anybody else is going to make a move until we’ve got more than we had with Shinn, which we sure as hell do not.’
‘So is he – Fowler – seeing Shinn again?’
‘No sign of it, and believe me, people are looking. She seems to be lying low, trying to collect her money, suing me and the City and County. Freeman’s bill must be approaching the national debt.’
Those had been Glitsky’s facts.
To satisfy his own curiosity, Hardy had done some checking himself. He had the telephone records. Andy Fowler might have convinced himself that before Owen Nash came along he had May Shinn all to himself, but her telephone records included three other numbers, called with about the same regularity as those to Andy Fowler.
Hardy tried all three numbers. One was to a switchboard of the main office of the Timberline Group, a timber-lobby consulting firm with an address on Bay Street. Hardy thought it unlikely that May Shinn was doing a lot of lumber work.
When a woman answered at the second number, Hardy, feeling a little foolish, pretended to be taking a demographic survey for the Neilson ratings. The woman said that she and her husband, who worked out of the house (he was in software), were both in their mid-fifties. She didn’t want to be too specific, but their income was in the low six figures. He let it go.
The third number was to the private office of an affable millionaire in the garment district.
So…
It seemed May had three other clients before Owen Nash came along. Four including Andy Fowler. And, from the phone record, she’d dropped them all around the beginning of February. Did Nash pay her more, or had she, as she contended, truly fallen in love with Nash?
Of course, he knew nothing that tied any of these men to Owen Nash. Not yet. Hardy spent a day wondering if he should mention them to Glitsky, then decided against it. He had promised Andy he wouldn’t bring up the phone records if he didn’t have to. The originals were there in the file downtown if anybody wanted to look at them.
It wasn’t Hardy’s job anymore, but it didn’t take immense reserves of gray matter to realize this discovery would open things up again. If the motive they had all ascribed to Fowler, killing a rival, applied, then it applied as well to May’s other three clients/lovers. But then, the D.A.‘s office wasn’t arrayed in a vendetta against any of these guys, as it was against Fowler.
Still, Andy must have made a mistake. Some evidence must have turned up, but where did they get it? Hardy was sure Glitsky would have called him with anything at all, so it hadn’t been him. And if Glitsky didn’t have it, who did? He was the investigating officer. It didn’t make sense.
Hardy hadn’t set foot in the Hall of Justice since the day after he was fired, when he went in to pick up his personal effects, his dart board, the paperweight.
Now, coming up the front steps with Jane, he found it hard to believe that he’d been talked into returning. The false accusations, the unnamed informer, the politics of the lifers – the gut reaction still kicked in.
He and Jane rode in the crowded elevator up to Booking. He didn’t have much of an idea what he was going to do. It was late in the afternoon, and he thought at least he’d get the lay of the land. At the desk, the sergeant looked up and nodded.
‘Hey, Hardy, taking the day off?’
It took him a minute – Hardy was in casual clothes. The sergeant thought he was still working there.
‘Where you been, on vacation or something?’
‘Or something. Listen, you got Andy Fowler processed yet?’
‘Yeah, I think so, I’ll check. Can you believe that? The judge?’ He got up from his chair and disappeared for two minutes, during which Hardy devoutly hoped no one would recognize him. When he came out again he pointed to his right and told Hardy he could go on in, they’d be bringing the judge down.
He and Jane were admitted, then ushered into Interview Room A, the same room where he had first seen May Shinn.
Jane sat comfortably. ‘How’d we get in here?’
‘I think under false pretenses. Now listen, when your father gets in here, be cool in front of the guard. Don’t jump up and yell or anything. Since they think I’m working here, let’s let them think you’re my assistant, okay?’
But it wasn’t so easy. Her father just didn’t look the same in a yellow jumpsuit. Four hours before, in his pinstripes, Andy’s handcuffs had been the ultimate indignity. Now Jane realized she hadn’t known the half of it.
The judge played the game, entered cooperatively, nodded at both of them and sat down across the table. Hardy thanked the guard and told him to wait outside. As soon as the door closed, her father said, ‘Good. How did this happen?’
Dismas inclined his head a fraction, his hand to his mouth. ‘I cheated. How are you doing, Andy?’
‘Badly. How about you?’
‘All right.’
The two men tried not to look at each other. Jane wasn’t going to let this go bad. Or worse. ‘Dismas didn’t leak your story, Daddy. About you and… May.’
Her father didn’t look beaten. In fact, he looked ready to fight. ‘You didn’t?’ Directly at Dismas.
‘I said I wouldn’t, I didn’t.’ He shrugged. ‘I figured you had other things on your mind. So did I. I got fired over it, for example.’
‘I heard about that.’ More waiting. Jane realized she was squeezing her fingernails into her palms. She didn’t understand this silence – the two men who’d been closest to her jockeying for something.
‘I guess I just got a little tired explaining how I didn’t do whatever it was somebody thought I did. It gets old.’
‘I’d imagine it would.’ Her father was inside himself, settling something. ‘Sorry, Diz, I just assumed…’
Jane’s ex-husband had his hands folded on the table. He opened them. ‘I lived through it. What are you doing here?’
‘Somebody thinks I killed Owen Nash.’
‘I know that. But who’s representing you? You ought to be out of here already.’
A tight smile. ‘You’d think so, wouldn’t you? One of Locke’s little object lessons. No bail until the arraignment.’ He paused. ‘At least.’
‘That Locke, he’s a swell guy.’
Fowler kept on. ‘I called David Freeman. He thought it might not be wise for him to represent me because of May. He intimated he’d put out the word. Meanwhile, it appears that I’m to stay locked up.’ Another tight smile. ‘Lousy pun.’
‘Daddy, they can’t do that.’
‘They can, honey. How many times have I had a defense lawyer tell me his client had to get out of jail, wouldn’t survive one night there, it was life and death. And I told them it would have to wait until the morning. Judicial process…’
‘We can’t let this happen, you can’t stay here. Dismas can do something.’
Hardy nodded. ‘I could try, Andy.’
‘Why would you want to do that? What would you try?’
‘I don’t know, I got me and Jane in here to see you, didn’t I? I could try walking you downstairs and out the door.’
Her father pulled at the jumpsuit. ‘Don’t you think the outfit’s a little conspicuous?’
‘Goddamn it,’ Jane said. ‘Will you two cut it out.’
‘You’re right, I’ll have to think of something else.’
The judge got serious. ‘You’d really do something? Why?’
Hardy shrugged. ‘At least until one of Freeman’s wonders shows up. At least you’d be represented. I could pass it off after you decided who you wanted.’ Hardy straightened in his chair. ‘Not to mention, I wouldn’t mind getting in the face of a few of these people here -they seem to have pissed me off.’
‘Can you get him out tonight, Dismas? On bail or something?’ Jane looked at her father. ‘You cannot stay here overnight.’
Fowler reached out and patted her hand. ‘It’s all right, honey. I spent a night in jail once before – voluntarily, I admit – and it wasn’t so bad. I wanted to see what we were putting people through. I’ll survive, I promise you. Besides, I might as well get used to it. It could be longer than that if bail is denied.’
‘They couldn’t do that!’
Her father and Hardy shared a glance. The guard outside the door gave a knock.
‘I’ll call Freeman, keep him on it,’ Hardy said. ‘And I’ll be there tomorrow… You sure you want me representing you, even temporarily?’
Andy appeared, for really the first time, to consider it. ‘Maybe more than that.’
‘Why, Andy?’
The judge looked around the tiny room, then at his daughter, as though looking for verification of something.
He knew he’d written Hardy off too easily before, when he thought he had betrayed his trust. There had been a mistake. He knew Hardy and he hadn’t blown any whistle on Andy Fowler. Hardy didn’t betray trusts and he didn’t give up. ‘The devil you know?’ he said, smiling.
He left Jane at the fourth floor. Getting out of the elevator, he walked down the hallway and turned into Homicide. If Glitsky was in maybe they could stop in at Lou’s for old times’ sake. But he wasn’t around. Hardy leaned over his desk and was writing him a note when he heard some heels on the tiles and looked up.
Pullios stopped in the door.
‘Hi, Bets,’ Hardy said. ‘Getting any… exciting cases?’
Her smile was glacial. ‘How are you, Dismas?’
‘Great,’ he said. ‘I’m writing my memoirs.’
She didn’t react. Her eyes searched the back of the open room. ‘Anybody seen Lanier?’ she asked. One of the guys said he thought he was downstairs having some coffee with a witness. She came back to Hardy. ‘Well, take care of yourself.’
She started to turn and Hardy spoke. ‘I hear Judge Fowler’s been arrested.’
She stopped. ‘My, news travels fast.’
‘Tribal drums. We’re kind of family.’
‘Oh, yes, that’s right.’
‘You really think he killed Owen Nash?’
‘The grand jury thought there was enough evidence to issue the indictment.’
Hardy folded his arms, leaning back against Glitsky’s desk. ‘I have it on good authority that if the D.A. wanted, the grand jury would indict a ham sandwich.’
Pullios nodded. ‘Well, it’s been nice talking to you.’
Hardy caught up with her out in the hallway. He turned conversational. ‘I guess there’s some new evidence, huh?’
Pullios stopped. ‘Are you representing Fowler?’
‘I’m merely a curious citizen who wonders what you’ve got new since Shinn?’
‘Quite a bit. I’m sure it’ll be in the newspaper.’
She started walking again.
Hardy found himself planted to the floor with roots of rage. It just came up over him. His stomach turned over and he heard his blood pulsing in his ears.
Don’t do it, he told himself. Don’t say any more. Don’t chase her through the halls. Nothing to be gained.
He watched her elegant figure disappear around the corner of the elevator lobby. Where had the air gone? Feeling as though he’d stopped breathing, he sucked a strained lungful. He needed a drink.
Or four. Or five.
On top of the three Guinnesses he had had before Jane had arrived at the Shamrock. He had the first couple of Irish whiskeys at Lou’s, but then the guys started showing up. Guys that knew him, that wanted to know what he was doing, how he was getting along.
Yeah, he was busy, working on stuff, was looking into opening a second bar maybe, even a restaurant. No, he didn’t want to go into private practice, wind up defending a bunch of scum.
Leaving Lou’s, he remembered that he had forgotten to call David Freeman. He’d call him from the next place. And Frannie too. He couldn’t forget to call Frannie. She would worry. She’d been worried for a couple of months now – worried about him, about them, their future, their baby, the pregnancy. Everything. Their wavelengths had ceased to coincide somehow. It worried him too, made him doubt himself. Sometimes he thought it was making him sick. Drinking seemed to cure it.
Entertaining the possibility that he should cut down on his intake, and forgetting his own oft-uttered advice that beer on whiskey was mighty risky, he stopped at a place down Seventh Street and ordered a Rainier Ale. The bar didn’t have a pay phone.
He brought the bottle of green death over to a small table next to the door and stared up at the television screen broadcasting the evening news. The financier, the judge and the prostitute again. He moved to the other side of the table, where he didn’t have to look at the damned set. White noise.
They’d enjoyed the vacation. The two weeks had been good for them. They’d come back refreshed, reinvigo-rated, reconnected. They’d purposely put off discussing his career plans – there would be plenty of time for that. Instead, they talked about babies and childbirth, about whether Moses and Susan were an item, about food and their past lives – Eddie and Jane. And if they should move to a bigger house before or after the next child came along.
Hardy had run daily on the beach. A couple of days of rum drinks, then he’d surprised himself by going on the wagon for the rest of the trip. He was tan and lean and liked it.
Then, the first week home, catching up with Abe about Owen Nash and May Shinn and Andy Fowler. Cleaning out some tanks at the Steinhart with Pico. Pouring a few shifts at the Shamrock to keep his hand in.
At first it was a nagging unease, a touch of insomnia. He hadn’t wanted to admit how much he’d invested, how great had been the risk, when he’d given up bartending right after Christmas to go back to the law. But now, in the long and formless days stretching before him, he was starting to come to the numbing realization that he’d failed in one of the fundamental decisions of his life.
He’d been fired. His services were not wanted. It wasn’t that the people he worked for were so honorable or talented or better at their jobs than he was, at least he didn’t think so, but the fact that he’d been judged by those people and found unacceptably wanting. Never mind their standards. He was out, they were in.
It got to him. He found himself internalizing the rejection. More, he couldn’t seem to get it out of him. Who was he at forty, anyway? A castoff, a reject. He had told Frannie what the hell, he didn’t want to be underfoot all day, he’d go out and interview a few places, get some work, try to get some feeling back that he was doing something worthwhile – that maybe he was worthwhile.
People were nice. Men and women – lawyers and office managers – in business suits like he was wearing. But they didn’t hire him. They’d call him back, it was just a slow time. Maybe he could try the public defenders.
He thought he was a logical man, and logic was telling him that in terms of the marketplace, he was worthless.
Well, shit, he wasn’t going to accept that. He’d lived a pretty good life, thank you, and it damn sure wasn’t over yet. The hell with the rest of you.
Then he made his big mistake.
Frannie was a rock at home, telling him not to push it, time would take care of it. Something would come up. She loved him.
But once you started thinking people didn’t want you, it was easy to start believing nobody wanted you for anything. You were just a burden, a drag, plain and simple, not able to carry your own weight.
He thought he could feel Frannie pulling away. She swore it wasn’t true, she wasn’t. She was with him. But he found he couldn’t talk with her anymore. He could tell it was making her lose confidence in him, and that was too much to ask her to carry. She needed him to be strong, especially now, building a family. So he resolved to put on a happy face. Lots of laughs, long silences between.
He idly thought of finding someone he could talk to where he wasn’t constantly reminded of his situation. Of course, he wasn’t going to, but wouldn’t it be nice to be around someone who thought you were okay, not aware of any of the baggage?
He’d taken to stopping by the Shamrock after his interviews and having a round or two. It was more time that he didn’t have to face her. He stopped working out.
He’d been home from Hawaii a month now, six weeks. He told himself enough was enough, it was time to beat this thing, not let the bastards get him down. The first step, he told himself, was physical – get back in shape, stop drinking, tighten up.
He stood behind Celine Nash as she pumped up and down on the Stairmaster. Her hair was fixed back with a hot pink headband. A patch of darker pink showed where she was sweating between her shoulder blades. Her ass was a phenomenal pumping machine. Up and down, step step step. Sweat was pouring off her. He thought about turning around and walking out.
It was okay, he told himself. He was here to work out and he’d chosen Hardbodies! because he’d already been in the place and it had the machines he was looking for.
He hadn’t seen her since she’d stopped in front of his house before the vacation, when she’d realized she couldn’t be in his life. Well, he wasn’t putting her back into his life now. Enough time had gone by since then. He wasn’t starting anything by showing up here.
He climbed onto the machine next to hers. ‘Yo,’ he said.
They were sitting together in the steam room. He was on a towel, leaning back against the cedar wall, in gym shorts and a t-shirt. She’d gone to the locker room after her workout, gotten rid of her leggings and changed into a one-piece black bathing suit.
The talking wound down. She was doing all right, she said, keeping busy. He wished he was. Well, at least he was exercising. That was doing something. Yes.
The temperature was near a hundred and twenty. The room was tiny, cramped, perhaps five by seven feet, with a furnace near the floor, which was covered with rocks. Celine got up and poured more water from a pitcher over the rocks and a cloud of steam lifted and hovered. She went to sit down on the wood where she’d been, then jumped and said, ‘Ouch.’
‘Here.’ Hardy moved enough towel out from under him to give her room. He could feel his heart pounding through his t-shirt. Their legs were together.
She leaned back next to him and took his hand, putting it high on her thigh.
‘Celine…’
‘Shh…’ Her shoulder came up against him. ‘I’ve been coming here for six months and have never seen another soul in this room.’
She lifted the elastic on her nylon suit and guided his hand under it. ‘Feel me,’ she said. She was shaved bare, the skin smooth as though it had been oiled, already wet where she was moving him.
‘Oh, God,’ she said. ‘Oh dear God.’
One hand held him in place against her and the other lifted his shirt, found the band of his shorts and reached under them for him.
Silk and oil. Honey and salt.
That proved he had been right. He was no better than anyone else, and worse than most. He tried to tell himself, once, that he hadn’t been technically unfaithful. There had been no penetration, therefore he hadn’t really made love to her. Feeble. Beneath contempt. More honest if he had.
Now he had proved that the world’s assessment of him was valid. He wouldn’t hire himself to do anything. He could barely look at himself in the mirror.
He started practicing darts, putting away gallons of Guinness. Avoiding Frannie, avoiding himself. Putting on weight.
Thank God, Celine hadn’t tried to follow up. That, at least, seemed to be over.
But he resided in a deep cave, in total darkness.
It was ten-thirty. There were four bottles of Rainier Ale on the table now, a rocks glass with mostly water in the bottom, a faint taste of Irish to it. He blinked, wondering where he had been and tried to focus on the clock over the bar. No use. He stood uncertainly.
Jesus.
Outside, the night had turned cold and the street came up at him, forcing him against the outer stucco of the building for support. Seventh Street stretched empty for what seemed like miles, shining as though it were wet. Was his car parked up at the Hall of Justice? Even if it was, how could he get it home?
He tried moving along but everything suddenly seemed to hurt, to throb – his shoulder where he’d been wounded in Vietnam, the foot he’d hurt last year in Acapulco.
There were noises behind him, laughter, then a skipping, leather on concrete. It finally registered, coming toward him.
He straightened up, turned around, saw an arm, something, a blur that hit him in the forehead, knocked him to one side. He heard another dull thud – was that him? – and his head cracked back against the stucco and he went down.
There were images. The gagging jolt of smelling salts. A light behind his eyes. Something sticky under his hand. The cold concrete.
‘Let’s take him down.’
‘Wait a minute. Is this him?’
Hardy forced his eyes open. The flashlight hit him again and he winced. Shadows emerged, recognizable. Cops.
A lucky break. One of them had found his wallet, less cash, in the curb. Hardy had never given his badge back to Locke. If he wanted it he could come and ask for it.
‘Are you Dismas Hardy?’ one of them asked.
He supposed he nodded, grunted – something.
‘He as drunk as he smells?’
Another whiff of the salts. Hardy brought his hand up to his face, felt a crust. He looked down. His white sweater was matted dark.
‘I’m Hardy,’ he said.
They got him up. Pain, nausea. ‘Watch out, guys.’ He staggered a step or two away and vomited bile and beer. He leaned against the building. ‘Sorry.’
They stood back a couple of yards. He caught his breath, spat a few times, tried to see what time it was but his watch was gone.
If they could do it, he told them, he’d rather go home than the hospital. He didn’t think anything was broken. He might have a concussion; his head felt like an anvil attached to his neck by some two-pound test. And someone kept swinging the smith’s hammer.
They put him in the rear seat.
He rested his head back. Lights passing overhead, the freeway overpass. He closed his eyes. Nothing to see.
It was almost midnight, and Moses had been there for a half hour. To her brother, Frannie looked particularly vulnerable. She was now five months pregnant and showing it. Her arms looked thin, he thought. Her face was too hollow. Maybe it was the contrast with the fullness of her belly and breasts. There were circles under her eyes. She sat forward on the low living-room couch, her elbows on her knees, her hands crossed under the bulge of her stomach.
Moses was telling her that the best thing to do was wait. He’d turn up. Moses had had his own lost weekends, or nights.
‘This isn’t a lost weekend, Mose.’ She hesitated. ‘He’s with Jane. I know he’s with Jane.’
Moses shook his head. ‘There’s no way, Frannie.’
‘She came here today asking for him.’
‘Jane did?’ He mulled that. ‘What did she want?’
‘She wanted Dismas. She always wants Dismas. He’s gone back to her before.’
‘Frannie. Come on. He wasn’t with you then. He wasn’t with anybody. It probably had to do with her father being arrested. He and Diz were friends, right?’
‘Are, I think.’
‘Well?’
Why hadn’t she thought of that? These raging hormones were making her crazy.
‘He probably went down to get him out, help get him out, whatever they do down there. Lost track of the time.’
‘Diz never loses track of the time. What if he got Jane’s father out, and then they all went out somewhere to celebrate, and then her father left them together…?’
‘What if he was snatched by invading space creatures and dissected alive in the name of intergalactic research?’
‘I don’t want to kid about it.’
‘I don’t want to play “what if.” He’s probably just hung up. It happens.’
They sat for a long moment. ‘It’s just he’s been so unhappy lately, like he’s lost.’
Moses cricked his back, got up slowly and crossed over to the mantel. He rearranged the herd of elephants, something he did differently with every visit. ‘You know, Frannie, I just don’t think anybody’s ever prepared us, guys like me and Diz, for how tough real life is.’ He tried to make a semi-joke of it, but he was serious, and she knew it.
‘Life with me isn’t tough, Moses.’
‘I’m not saying with you. I’m saying, you know, life in general.’
She got up and moved some elephants back the way they’d been. ‘You’re just getting old, brother.’
Moses grabbed her gently and pulled at her hair. He was older than Hardy. He had raised his sister from the time she was eight. Of the ten things he cared about most in the world, he liked to say that eight of them were Frannie. The other two were closely guarded secrets.
Facing the bay window, Moses saw the police car pull up in front. ‘Here he is, anyway,’ he said. ‘See? He must’ve been doing something with the cops.’
There was fog everywhere – in his head, out the bedroom window.
‘I don’t deserve this.’ Frannie had been up awhile, had taken a shower and gotten dressed. She sat across the room, by the door to the nursery, in her rocking chair. ‘I am very sad that this happened, but it wouldn’t have if you’d come home.’
‘Frannie…’
She stopped him, pressing on. She wasn’t crying but her cheeks were wet. ‘I know this is a hard time for you, although I’m not sure why. And you don’t have to try and tell me. But I don’t deserve you treating me this way. Not calling, letting me sit and worry all night. I won’t have it in my life.’
Hardy had a walnut-sized lump over his hairline. His left ear was raw and there was a gash in the scalp above it. They must have kicked him when he was down – his ribs jabbed at him. His headache was mammoth, his tongue bitten in several places. He still tasted blood.
‘I’m sorry -’
‘Of course you’re sorry. So am I. Who wouldn’t be sorry? What do you want, Dismas? What do you want? If you don’t want me, I’m out of here, babies and all. I mean it.’
He didn’t doubt her. Frannie wasn’t a poker player and this wasn’t a bluff.
‘I do want you,’ he said. He saw her take a breath. A miracle, he thought, she still wanted him. She was as mad as he’d ever seen her, but at least it wasn’t over between them. ‘I know I’ve been a shit. I can’t tell you the things -’
She held up a hand. ‘No litany. I just don’t want to live miserable. I don’t want that for any of us. This family doesn’t deserve it. Including you.’
Hardy held his head in his hands. ‘So why do I feel like that’s exactly what I do deserve?’
‘I don’t know. You’ve somehow let those idiots make you feel they’re better than you are, which is ridiculous. What’s so hot about them? What have they done? Why does it matter what they think of you?’
‘Okay, but what if they’re right? They might be right -’
‘Damn it, Dismas. They’re not right. You’re not a loser. Why? Because I’m smart and I wouldn’t have married a loser. Don’t let them do this to you – to me. If you do they will have won.’
Why couldn’t she see it? He’d been going around proving it for a couple of months. ‘You have to admit, Frannie, I’m not exactly on a winning streak.’
Her eyes flashed now. ‘Thanks a lot. What am I? What’s this house and the Beck?’ She gestured down to her stomach. ‘What’s this new guy, anyway? Doesn’t this count as winning something?’
‘I don’t mean that.’
‘Well, then,’ she slammed a tiny fist hard into her leg and raised her voice. ‘Goddamn it! Don’t say it then.’ She stood up, turned into the nursery. The rocking chair creaked on the hardwood. After a while he heard her talking to Rebecca. ‘It’s okay, it’s not you, sweetie. Back to sleep, now.’
Hardy, sore and nauseous, forced himself out of bed, hurting everywhere. He stood by the nursery door, stopped the creaking rocker with his foot.
She turned around. ‘Look,’ she said, ‘whatever it is, just put it behind you. You can’t undo it. Let’s just move on, okay? We’ve got a good life here. But you’ve got to respect me. And you’ve got to respect you. End of sermon.’
She crossed the room to him, touched his arm lightly. ‘Go take another shower,’ she said. ‘A hot one. I’ll make breakfast.’
Hardy sat on the mega-hard bench in the gallery of Department 22, Marian Braun’s courtroom. Elizabeth Pullios in her power red-and-blue never gave him a glance from the prosecution table. Hardy recognized several well-dressed lawyers hanging around, probably sent over by David Freeman for Fowler to choose among – he guessed one of them would wind up representing Andy.
Jane came and slid in beside him. ‘What happened to you?’
Hardy was wearing a three-piece suit, white shirt, one of his best conservative ties. He’d gotten his shoes shined downstairs. He looked proper except for the bandage across the top of his forehead, the swelling around his eye.
He told her it was a long story, Jane’s favorite kind, but didn’t get to go into it because the judge was coming in and they all rose.
Braun had had chambers next to Andy Fowler for something like a decade. That she had been the presiding judge for the Superior Court – and so the recipient of the grand jury’s indictment – had been a matter of timing. Since Leo Chomorro had moved up to fill Andy Fowler’s seat upon his retirement, the duties of presiding judge were again being rotated. What was ominous was that Braun, who had known Andy well and might be considered to be one of his few allies, had accepted D.A. Chris Locke’s recommendation and decreed that there would be no bail.
In the normal course of events, for a typical defendant, bail would not be set before arraignment in a murder case because the court wanted to guarantee at least one appearance, at the arraignment, of the accused.
In this case, though, there would have been little fear that Andy Fowler would not show up – the withholding of bail was a clear signal that there would be no professional courtesies. Andy Fowler was out of the club.
At least they weren’t making him wait all morning – he was the first line called after the judge sat down. The bailiff escorted him in wearing the yellow jumpsuit.
His protestations that jail wouldn’t kill him might have been valid, but the stay overnight hadn’t done him any visible good. His skin looked gray, his lion’s mane of hair hung heavy and wet-looking. He stood at attention, alone at the podium in front of the bench.
Hardy glanced at the jury box. None of the men was rising to stand by their client as, once again, the formula was carried out, the indictment for murder read out in full.
‘I presume, Mr Fowler…’ So the honorific wouldn’t be used, either. Andy wasn’t going to be called “judge.” If Marian Braun was any barometer, Hardy decided, Andy was in for some very rough weather. Braun asked if he had an attorney present.
‘I do, Your Honor.’ He half turned. ‘Dismas Hardy.’
A murmur ran through the courtroom. Hardy barely heard it, standing and moving by Jane. But he hadn’t reached the aisle before Elizabeth Pullios was on her feet. ‘Your Honor, I object. Mr Hardy was a member of the prosecution on this case. Aside from that obvious conflict, he has had access to material that falls under the attorney-client privilege. He cannot represent the defendant here.’
Hardy found himself talking. ‘If the court pleases…“ He got ignored.
Braun pulled her glasses down to the end of her nose, then took them off completely. ‘Write me a motion on that, Counselor, and have it on my desk by tomorrow morning.’ She scribbled something in front of her and raised her eyes. ‘Mr Hardy, would you care to join us on this side of the bar?’
Hardy came up the aisle and through the gate. ‘Your Honor, I’d like to request a short recess. I’d like a few words with the judge here.’
‘I am the only judge in this courtroom, Mr Hardy. Clear?’
‘Yes, Your Honor.’
‘We’ve barely begun and I’ve got an exceptionally full docket today, so let’s forgo the recesses and try to keep things moving. Is that all right with everybody?’ Clearly it was going to have to be all right. ‘Mr Hardy,’ Braun was saying, ‘you might save Ms Pullios a long night if you feel there’s a conflict with you representing the defendant.’
Hardy wasn’t inclined to save Pullios a long night – it was a small bonus. ‘No, Your Honor, I don’t have a conflict.’
Pullios got up again. ‘Mr Hardy assembled the files on this case.’
‘That wasn’t this case, Your Honor. Ms Pullios perhaps has them confused because it’s the same victim. Mr Fowler wasn’t the defendant.’
‘I don’t have anything confused, Your Honor. Mr Hardy was all over that file.’
‘If it please the court,’ Hardy said, enjoying this, ‘as Ms Pullios knows full well, she was the People’s attorney of record the last time a defendant was before the court for killing Owen Nash. I was specifically denied an official role.’
Braun’s gavel came down. ‘All right, all right. I’ll read your motion, Ms Pullios. Tomorrow morning.’ She put her glasses back on, seemed to be deciding something.
‘Good work,’ Fowler whispered. ‘What happened to your head?’
Braun continued. ‘Meanwhile, let’s keep to the business at hand, shall we? You’ve got a plea, Mr Fowler?’
Hardy would have preferred to leave Andy to his permanent representation at this time – one of the suits in the jury box – but after the run-in with Pullios, thought it would be better to go ahead.
‘Your Honor, before entering a plea, the defense would like some time, say two weeks, to review the file in this case.’
Pullios started to object again, but Braun tapped her gavel, shaking her head. ‘I don’t think you’ll need two weeks to decide what to plead. We’ll continue this arrangement and take defendant’s plea next week.’
‘Thank you, Your Honor. Now on the matter of bail…’
‘Yes, bail. The state has requested no bail in this case.’
Hardy asked permission to approach the bench. Braun waved both counsel forward.
‘Your Honor,’ Hardy said, ‘isn’t no bail a little unusual?’
‘This is an unusual case, Mr Hardy.’
‘Granted, Judge, but the last time the state brought a person to trial here for killing Owen Nash, we had a risk-of-flight defendant and even she was given bail. There’s no risk of flight here. The judge isn’t going anywhere.’
Pullios started to argue, but Braun responded quietly. ‘Mr Fowler has given us an ample indication of the contempt in which he holds the judicial process. I have no faith that he will appear once, or if, he is released.’
‘Judge, please, you know that’s ridiculous -’
Braun sucked in a breath. ‘You’d better brush up on your etiquette, Mr Hardy. If I hear again that my judgments are ridiculous you’ll spend some ridiculous nights in jail for contempt.’
Hardy studied the floor a moment. ‘I apologize, Your Honor. But I would respectfully ask you to reconsider.’
Walking back to where Fowler stood, Hardy shook his head. ‘Then plead now,’ Fowler whispered. ‘Not guilty.’
Hardy met Fowler’s eyes, feeling embarrassed but having to say it. ‘I don’t know you’re not guilty, Andy -’
‘Enter the plea,’ Fowler snapped. ‘Does your conscience also require you waste the week?’
It was a good point, and Hardy made the plea. The judge canceled the continuance and took Hardy’s plea of not guilty. The case was set for Calendar the next Monday, October 18, at 9:30 A.M., in the same department.
He wasn’t even going to go and request the evidence files from the D.A. What he planned to do was meet Andy upstairs right away and discuss his choice for another attorney. He stood in the hallway with Jane, head throbbing.
‘Hardy! Dismas, excuse me.’ It was Jeff Elliot, smiling his smile. ‘Remember me?’
Jeff leaned on one crutch and Hardy introduced him to Jane. ‘The judge’s daughter? I’d love a minute with you if you could.’
‘Watch this guy.’ It was Hardy’s escape line.
‘Where are you going?’ Jeff asked.
He stopped, half-turned. ‘After a brief career,’ he said, ‘I’m retiring from defense work.’
‘Don’t do that,’ Jeff said. ‘You were great in there.’
‘Thank you. Now if you’ll all excuse me…’
Elizabeth Pullios emerged from the courtroom. She was accompanied by a young male assistant D.A. whom Hardy didn’t know. Pullios touched her assistant’s arm, stopping him, and walked over to Hardy’s group. ‘Locke won’t release any files to you until Braun rules on my motion,’ she said to him. ‘There’s no way you can do this.’
Hardy smiled. ‘I like your red tie,’ he said, ‘it kind of matches your eyes.’
She stared at him. ‘You know, I almost hope I’m overruled,’ she said.
‘Why is that?’ Hardy asked.
‘If you’re doing the defense, it makes the case a slam dunk.’
Hardy didn’t go directly upstairs to see Andy Fowler. Instead, he left Jane and Jeff Elliot, then carried his pounding head out to the parking lot under the freeway. It was cold, but the chill suited him.
Pullios thought his involvement would make it a slam dunk, did she? It was tempting to find out.
He forced himself to consider Andy Fowler in a new light. He could help him for a day – some mixture of appeasing Jane, doing a favor for a man who’d done him a few. But this was not to be confused with actually defending him for murder.
He kept telling himself he wasn’t a defense lawyer. There was a different attitude, an orientation he didn’t have. He’d been a cop. He didn’t believe many people got arrested when they hadn’t done something. May Shinn had been an exception.
But to think it could happen twice with the same victim stretched things pretty thin. Hardy hadn’t seen the new evidence they’d gathered on Andy, but it must be pretty damning. Even if every judge, D.A. and police officer in the City and County hated Andy, Chris Locke would never allow Pullios to go for another indictment on Owen Nash if he wasn’t convinced he was going to get a conviction…
Still, there was the decidedly unusual if not unprecedented nature of the investigation. Whatever had gone on since May Shinn’s release seemed to have circumvented the police department.
Glitsky would have told Hardy if they had found anything implicating Andy, as a matter of personal interest if nothing else. And they didn’t replace an experienced homicide investigator like Abe Glitsky with another guy from the homicide team without any notice.
Abe was still in charge of the police investigation and he hadn’t found anything, yet somehow there had been enough new evidence for a grand jury. Well, where had it come from? What had they – whoever ‘they’ were -found, or invented?
The traffic throbbed on the overpass above him. He put his seat back and groaned as his sore ribs tried to find a way to come to rest. He closed his eyes for a minute.
What the hell else was he doing, anyway?
The events of last night, if he was listening, ought to be telling him something.
Okay, he’d gotten fired. Sure, no one else wanted his services. Yes, he’d really screwed up on Frannie. He’d also taken some pretty shabby advantage of Celine, in the steam room.
Celine.
If his own curiosity and the lack of evidence were two strikes for taking up Andy’s defense, then Celine – by herself- was two strikes against it. If he stayed involved, he would have to see her, see her a lot, and now from the wrong side of the case. He would be the man defending her father’s killer. Alleged killer, Dismas, remember that.
Would the distinction matter to her? Probably not. He tried to imagine her behind him in the gallery as he tried to present his case for the defense. How effective could he be with that going on?
But then there was Pullios. And there was Locke and Drysdale. There was the setup that had gotten him fired, set in motion his own personal tailspin. The injustice of that, the score to be settled. If he got Andy off, it would show them, and wouldn’t that be sweet?
Hardy thought he just might beat Pullios. He’d gotten under her skin somehow – there was no other explanation for her challenge today. He could hammer there, let more of her anger, or whatever it was, come out, let the jury see it. Make them see it. And if she lost her cool, what about her arguments?
He could beat her.
He was smiling to himself, and it hurt. But so what? What else was new? You pushed through the pain and you got healed. That’s how it worked.
Fowler sat across the table from him in Visitor’s Room A. ‘I’ve more or less reached the conclusion you’re my best shot, Diz.’
‘When did you decide that?’
‘I think when I saw that line of vultures sitting in the jury box. I’ve seen ’em all work, Diz, and none of them approach David Freeman.‘
‘Neither do I. I couldn’t even get you bail, remember.’
Fowler tried to smile. ‘I don’t think Abe Lincoln could have gotten me bail. But you handled Pullios just fine. Plus you got in here last night, and with Jane. That was impressive.’
‘That was luck.’
‘Better lucky than smart. Besides, people make their own luck.’
Hardy touched his bandage gingerly. ‘Lucky people do tend to say that, don’t they? I don’t believe it.’
‘You think I’m lucky?’
‘I’d say you’ve had a good run.’
The face clouded. ‘I’m sixty-two, my reputation is shattered, the woman I love won’t see me -’
‘Let’s talk about the woman you love.’
‘Does that mean you’re with me?’
Hardy shook his head. ‘I don’t know, Andy. I don’t know what they’ve got. I don’t know how Braun’s going to rule on my involvement.’
Fowler waved that off. ‘File a brief before you even see what Pullios has. Your oral argument was persuasive as it was. I am entitled to the counsel I want and regardless of what Locke may say, I don’t see a conflict. I don’t think Braun will either. You weren’t state’s counsel for May, right?’
Every time that came up, Hardy liked it better. ‘Absolutely not.’
Then forget that. Write your brief. Let’s talk defense.‘
But before they did, Andy wanted to talk money, an issue Hardy, most unlawyerlike, had never once considered. After chiding him for that, Andy offered a $25,000 retainer against a $150-an-hour billing rate for preparation, and $1,500 a day for trial, which, he explained, would represent a cut in the hourly rate, since ten hours on a trial day would be a rock-bottom minimum.
Hardy listened to the figures. He supposed he would get used to them, and when Andy had finished, said they sounded all right to him. So much for being unemployable, he thought, feeling better.
Andy hadn’t seen any of the file they’d gathered on him and didn’t know who’d put it together. He assumed they’d gone over his life with a fine-tooth comb, but he had little or no idea about what exactly they might have found to tie him to Owen Nash. He had never met the man, he said.
Hardy, in fact, wasn’t sure of that. What he was sure of was that if Andy Fowler felt about May the way his actions – never mind his words – indicated, he had a solid motive for killing Owen Nash. Still, there were facts to establish and he might as well start here.
‘And I take it, then, you’ve never been on the Eloise?’
‘That’s the same thing as asking if I killed him, isn’t it?’
Hardy said that maybe it was. He waited.
‘What’s the point of talking about that, Diz? We’ve pleaded not guilty. Every defendant in the world tells his lawyer he didn’t do it, but let’s not muddy the waters, okay? The issue is whether they’ve got evidence tying me to that boat. I say they can’t have. There isn’t any.’
‘How about my peace of mind, Andy? How about if it’s important to me that my cause is just?’ Hardy grinned, realizing he sounded pompous, but it was important to him.
‘Your cause, Counselor, is getting me off.’
‘So humor me,’ Hardy said. ‘Tell me one time. Did you kill Owen Nash or not?’
Fowler shook his head. ‘Not,’ he said.
‘Hardy on defense,’ Glitsky said. ‘How can you do that?’
‘Pullios says I can’t.’
They were at Lou’s, where the lunch special was hot-and-sour lamb riblets with couscous. Hardy was filling in Abe on the Pullios theory of his conflict of interest.
‘She may be right, Diz, although she is not my favorite person this week.’
Abe understood that whatever investigation had taken place, it had been behind his back. Simple courtesy would have dictated that he be kept informed of any developments. But Pullios had gone around him, and Glitsky was angry. He crunched the end of a rib bone and chewed pensively. ‘You think maybe he did it?’
Hardy sipped some water. He’d stopped eating because eating hurt. ‘I’d like to see what they’ve got.’
‘He didn’t deny it?’
Hardy wagged a hand back and forth. ‘Oh, he denied it. Sort of.’
‘Sort of? Do me a favor,’ Abe said, ‘if you find out he did it, don’t get him off.’
Hardy moved his hot-and-sour around. It was also greasy and congealed. ‘You know why dogs lick their balls, Abe?’
‘Why?’
‘Because they can.’
Abe shook his head. ‘You want to identify with the dogs, you go right ahead.’
‘I’m just saying it’s the professional approach.’ Hardy tried to shrug, but again, it hurt. ‘For your own peace of mind, and mine, I won’t stay with it if the file convicts him. Which is what worries me. They must have something. This isn’t just an administrative vendetta – they’re trying Andy Fowler for murder and he says he never met the man, never went near the boat, hadn’t seen May in four or five months.’
Glitsky sucked a lamb bone. ‘That’s about what I found. But obviously, somebody found something else.’
Hardy put his hands to his face, moved them to the sides, rubbed at his temples. He knew that if Andy Fowler had told him he’d killed Owen Nash, he couldn’t have let himself take the case, even to beat Pullios and Locke, even if the investigation hadn’t been strictly kosher.
But, as Glitsky said, they must have found something important that pointed to Andy’s guilt.
Which didn’t mean he was guilty. He said he wasn’t. Which didn’t mean he wasn’t. Okay, Hardy, that’s why there are trials, and juries.
He’d gone from Lou’s back to his car, then decided that, headache or no he had more business downtown. He got to the Chronicle building at about one and stretched out on a cracked black leather couch beside Jeff Elliot’s desk, where he was left alone for almost two hours. Elliot shook him awake.
‘What happened to you?’ he asked.
‘You owe me,’ Hardy said. He described to Jeff how he had come to lose his job, the misunderstanding with Judge Fowler and Jane, every other real and imagined consequence he could invent relating to Jeffs story on May Shinn’s bail, leading up to last night’s drunk and the beating he took.
Basically, Hardy conveyed to Jeff that his article had ruined everything in his life for the last three or four months.
‘Okay,’ Elliot said, ‘so I owe you. I’m sorry about your problems, but the article never mentioned your name.’
That wasn’t worth a rebuttal. Hardy turned straightforward. ‘I may need some investigative help down the line.’
Jeff leaned over his desk, talking softly. ‘I work here. I can’t do anything like that.’
‘If I can leak to you, why can’t you leak to me? Plus, what you find for me, you’ve got the stories. There’s something here. Maybe I can point you at something you might miss, help out both of us.’
‘I’d have to protect my sources,’ Jeff said.
‘Naturally.’
Jeff was mulling it over but Hardy could tell he had him. It was, he thought, a nice turnaround – usually the Deep Throat went to the reporter. Now he would – if he needed it – have himself a personal investigator with the ideal cover. He loved the idea of Pullios leaking to Jeff, who would in turn keep him on the inside track.
‘So did you have a nice talk with Jane?’ Hardy asked.
‘Do you know she knew Owen Nash?’
Hardy was sitting on the couch beside Jeffs desk, drinking tepid coffee from a styrofoam cup. He tried to keep his voice calm. ‘What?’
‘Jane, the judge’s daughter.’ The reporter kept typing away. ‘Your ex-wife, right?’
‘She knew Owen Nash?’
‘Yeah. Just a sec.’ He finished whatever he was working on, then spun a quarter-turn in his chair. ‘Are you all right?’
Hardy was sitting back on the couch, his hand to his head. ‘How did she know Owen Nash?’
‘In Hong Kong, last year. She was over there on some buying thing. Just social stuff, a cocktail party for Americans abroad. But small world, huh?’
He remembered Jane’s trip to Hong Kong. It was before he and Frannie had gotten together, or, more precisely, it was during the time he and Frannie had connected.
When Jane had left for Hong Kong she and Hardy had been – more or less – together, trying it out again after the divorce and eight years of true separation where they had not so much as run into one another in the relatively small town that was San Francisco.
While she was over there, while Dismas and Frannie were falling in love, Jane had confessed to Hardy that she had had her own small infidelity. Hardy knew a lot about Jane and a few things about Owen Nash. Jane was right around May’s age. Both she and Nash liked excitement. Both were given to spontaneous action.
But Hong Kong was a crowded place. There was no reason to think that because Jane had met up with Owen Nash that she’d slept with him. But there was also no reason to think she couldn’t have.
And if she did…
Driving home, another truly perverse thought occurred to him. His friend Abe Glitsky was unhappy with Elizabeth Pullios for building a homicide case outside the framework of the police department. Abe had even mentioned considering bringing obstruction-of-justice charges against the district attorney’s office, and wouldn’t that be a wonder to behold. Of course, it would never happen, but it indicated Abe’s state of mind.
Now, Hardy thought, wouldn’t it be sweet if Abe discredited Pullios’s investigation by pursuing one of his own – teach her and her boss the D.A. a lesson in interdepartmental protocol… which would mean that Abe, in effect, would be doing police work for the defense. Smiling still hurt.
He sat with his arm around Frannie on the top deck of the ferry to Jack London Square in Oakland. There were still another two weeks of daylight savings time and the sun hadn’t yet set. The Bay was calm and as they approached Alameda it seemed to grow warmer. Though only twelve miles separated the cities, it wasn’t unknown to find twenty degrees of difference between the temperatures in Oakland and San Francisco.
This was a Wednesday, and headache or not, date night was a sacred tradition. He pulled her in closer to him. ‘You can hang in there?’ he said. ‘It might be a while.’
‘I can handle a while – even a long time. Just keep me included, will you? We’re on the same side.’
‘Promise,’ he said.
‘And while you’re making promises, I need one more.’
He nodded.
‘This baby is getting itself born in four months, and trial or no trial, I want you there with me, just like with Rebecca.’
‘Hopefully not just like Rebecca.’ Rebecca had been thirty hours of grueling labor.
‘You know what I mean.’ His wife was leaning into him. She looked up. God, she was beautiful. Hardy and Frannie had come together when she’d been about five months pregnant with Rebecca – five months like now. Hardy thought it had to be the most attractive time in a woman’s life.
After this morning, the agonies had been put aside for both of them. They were moving forward. They’d gotten through a bad time. That’s what ‘for better or worse’ meant, didn’t it – that you had some worse?
He kissed her. ‘I know what you mean,’ he said.
‘So you promise?’
‘Promise.’
They were back home by nine-thirty and Hardy began working on his conflict-of-interest brief in his office, typing it himself. Without a law library at hand, he had to make do in a couple of places, but he had several rows of lawbooks and periodicals on his shelves, and anyway, the gist of his argument was the one he had presented orally in court.
The closest thing to a precedent against him had been in a case where an assistant district attorney had been in the midst of trying a case against a Hell’s Angel when he’d been hired away from the district attorney’s office by the firm representing the defendant. There, the judge had prohibited the representation.
And Hardy agreed that there, clearly, a conflict existed. He was sure that Pullios would try to draw a parallel to this case, but Hardy was certain that the differences here far outweighed the similarities: he had not been the counsel of record for May Shinn. Andy Fowler hadn’t been the defendant. All they had was the same victim, and the evidence against May Shinn in that earlier case was part of the public record. Hardy believed he knew nothing – officially – that a concerned layman couldn’t have discovered.
Of course, he knew about the phone records, but that wasn’t official. Also, he didn’t know whether anyone in the D.A.‘s office knew about the phone records.
He finished at one A.M. and called an all-night messenger service. The brief would be at Judge Braun’s office when she arrived at her office in the morning.
There was nothing to do but wait for Braun to read both briefs and make her decision.
He slept in until nine-thirty and went for his first run in weeks, the four-mile circle. His ribs were unhappy with that decision but he ran through the stitch in both sides. If he was going to do this, he would be in shape for it.
Frannie went to visit her mother-in-law down in the Sunset, and Hardy got out his black cast-iron pan and turned the heat up to high under it.
Now he cut up half an onion, threw in a couple of cloves of garlic, diced a small potato, opened the refrigerator and found two leftover porkchops and cut them up. He was humming some Dire Straits and stirring when the telephone rang.
It was Marian Braun’s clerk saying the judge had ruled in his favor.
He would have to play it very close. He surely didn’t want Abe to think that he’d been obstructing justice himself. Abe’s fuse was getting justifiably short around that issue.
Hardy leaned across Glitsky’s desk. ‘You’ve still got them,’ he said, ‘and by “you” I mean the prosecution. They’re still in the file.’
‘What do you know about them?’ The phone records.
‘Almost nothing.’ Not true. ‘I checked Fowler’s calls to Shinn, but I just wonder if there might have been others, if she had other clients who might have had a motive.’
Glitsky took a minute. ‘Diz, the state’s got a defendant. It’s not like I’m bored in my job. This city’s got more murders than Cabot Cove, and I’m on five of them right now. The Nash homicide, from our perspective, is a closed case.’
Hardy shuffled through some papers on Glitsky’s desk. ‘Well, you do what you want, but I’m going to clear Fowler, and this case is going back to open status. And if Fowler’s not guilty, then someone else is, right? If you found something, it might be interesting to let Pullios know where it came from. We’re talking justice here, Abe.’
‘Also lots of “ifs,” Diz. Plus lots of legwork.’
‘Isn’t that what you do, Abe? Legwork?’
‘It’d have to be on my spare time.’
‘Whatever,’ Hardy said. ‘I’ve just got a feeling I’m going to find a few stones unturned here. Locke wants to get Fowler. That message comes down, people might start thinking they see things that aren’t there.’
‘There aren’t any trails, Diz. I’ve looked.’
‘What if I find you some? What if these phone calls turn into something?’
‘What if, what if.’
‘It’s up to you,’ Hardy said.
It was one-thirty, and Hardy had read most of the file. He was in Visitor’s Room B, the mirror image of A. Fowler entered, upbeat. As soon as the guard had gone back outside, he stuck out his hand. ‘Congratulations,’ he said. ‘Welcome, Counselor.’
Hardy ignored the hand and cut to it. ‘Andy, I can’t represent you if you lie to me.’
‘What are you talking about?’
‘I’m talking about this file, which I’m about two-thirds of the way through.’
The euphoria of his first win faded almost as soon as he’d picked up his copy of the file from reception in the D.A.‘s office. He had taken it downstairs. Sitting on a bench in the hallway, he was immediately caught up in the grand-jury testimony of a prosecution witness named Emmet Turkel, whose name jumped out at him because he’d never heard it before.
This is Peter Struler, Badge Number 1134, Investigator for the District Attorney of San Francisco. The date is July 13, 1992 at 2:40 in the P.M. No case number is assigned. I am interviewing a gentleman who identifies himself as Emmet Turkel, a resident of the state of New York, with a business address at 340 W. 28th Street in Manhattan.
Q: Mr Turkel, what is your occupation?
A: I am a private investigator.
Q: In your capacity as a private investigator, have you had occasion to work for a man named Andrew Bryan Fowler?
A: Yes. Mr Fowler is a judge in San Francisco.
Q: And he retained you?
A: Correct.
Q: To do what?
A: Well, the judge was upset because a woman he knew, May Shinn, had stopped seeing him. He wanted to know why.
Q: Hadn’t she told him why?
A: Well, yes, I suppose what I mean to say is that she’d told him why, that she was seeing someone else. The judge wanted to know who it was.
Q: The person she was seeing now?
A: Yes.
Q: She didn’t tell him who it was?
A: No. She said she was seeing someone else and that they – she and Fowler – had to break up. That was his word, break up. I make that point because the relationship wasn’t exactly typical.
Q: In what way?
A: I mean, you don’t say you’re breaking up with someone if you’re being paid by them.
Q: And the judge was paying Ms Shinn?
A: That’s my understanding, yes.
Q: For sex?
A: Sex, companionship, whatever. She was his mistress.
Q: And what did you discover?
A: I discovered the man was Owen Nash.
Q: And what did you do with that discovery?
A: I reported it to my client, Judge Fowler.
Q: And when was this?
A: Oh, middle of March, thereabouts. I could give you the exact date.
Q: That’s all right. Maybe later. I have one more question. Did you find it unusual that someone from California would come to you here in New York and offer you a job out there?
A: Not really. It happens when you want to keep things closed up. I knew the judge from work I’d done for other clients over the years. I’d testified in his courtroom a couple of times, like that. So he knew to look me up. And then he didn’t want anybody in town – in San Francisco – even a P.I., to know about his relationship with Shinn. I guess he figured it would look bad. So he came to me.
Fowler crossed his hands in front of him on the table. His face was serious. ‘How did they find Turkel?’
‘I don’t know, Andy, but that’s not the issue. If I’m representing you, you’ve got to tell me everything. How do you explain this?’
Behind Turkel’s deposition testimony in the notebook were a couple of xeroxed pages from Fowler’s desk calendar. On the page for March 2, the name Owen Nash was written, circled, underlined. On May 16, a note read: O.N. – tonight. The Eloise.
‘I thought you didn’t know Owen Nash.’ Hardy’s tone was more a prosecutor’s. So be it. If Fowler was guilty and lying on top of it, he wanted nothing to do with it.
‘I said I’d never met him, Diz. I knew who he was.’
Hardy stood up, walked to the window, looked out at the high clouds and shook his head. ‘Not true, Andy. You said you only found out it had been Owen seeing May after he turned up dead.’
The judge didn’t seem too shaken. ‘Did I? I don’t remember.’
Hardy sat back down across the table. ‘Andy, look. You’ve got to remember. Did you tell anyone else you didn’t know Nash, hadn’t met Nash, whatever it was?’
‘I don’t know. Probably while they were questioning me about the bond. I’d have to say yes.’
‘Jesus,’ Hardy said. He was flipping through the binder. There were tabbed sections with other names he hadn’t looked at yet. He was starting to get the feeling most of them would be impugning the judge’s character. They were going to sling mud, and Andy had given them the shovel.
‘I never thought they’d dig up Turkel, Diz. And when you tell a lie, you’d better stick with it. It doesn’t look good, I know, but it doesn’t mean -’
Hardy waved him off. ‘So why’d you tell the lie in the first place?’
Fowler held up his palms. ‘For the same reason I went to New York for Turkel, Diz. It looked terrible. Embarrassing. I knew damn well how it would look if it came out.’
‘And that’s so important, isn’t it? How it looks?’
But Andy Fowler hadn’t been a judge most of his life for nothing. His jaw hardened. ‘You don’t give it all up at once, Diz. You conserve what you’ve still got.’
‘So what do you still have, Andy? You tell me.’
‘I’ve got nothing putting me on the boat. Why would I volunteer something that would tie me to Owen Nash?’
‘How about because you had to lie to evade it? Innocent people don’t lie -’
‘Don’t give me that, Diz. Of course they do. Innocent people lie all the time, and you know it.’
Hardy knew he was right. ‘All right, Andy, but you’ll agree it gives the appearance of guilt, and appearance is going to matter to the jury.’
Fowler nodded. ‘It was one consistent lie. The fact that I told it several times is explainable. I wanted to hide an embarrassing truth, but, as I tried to say, it doesn’t mean I killed anybody.’
‘Andy, we’re not talking embarrassment here anymore.’
‘I know, I’ve accepted that.’ The judge stared out the window, looked back to the closed door. ‘They do like to bring down the mighty, don’t they?’
‘That’s not the issue either, Andy.’
Fowler pointed a finger. ‘Don’t kid yourself, Diz. That’s the issue.’
‘Let’s get back to the facts, Andy. So where did these notes come from?’
Fowler pulled the binder over in front of him. ‘That’s my calendar, my desk at the office here.’ He thought a moment. ‘The day I retired, when the story about May’s bail came out. I stayed away from the office to let things blow over. Remember?’
Hardy remembered.
‘They must have moved awfully fast. I went in and cleaned out my stuff the next week. Somebody must have had an idea back then I’d killed Nash.’
‘Pullios,’ Hardy said. ‘Sounds like her. Get a theory and find the evidence to back it up. Somebody ought to tell her she’s doing it backward.’ Hardy pulled the binder back in front of him, getting an idea. ‘This means they went into your office without your permission, maybe without a warrant?’
Fowler shook his head. This was familiar ground for him. ‘Don’t get your hopes up, Diz. It’s probably admissible. In California employers own their offices. In my case, the City and County had a right to enter my room in the Hall of Justice at any time. That’s why I had my own desk brought in. It’s my personal property. If I lock it, they need a warrant to get inside. But anything on top of it is fair game.’ He brightened up. ‘It’s not a disaster, Diz. We can make the point I didn’t take anything with me, I had nothing to hide.’
Hardy knew the prosecution could counter that the judge was so arrogant he thought no one would dare look in his office, though it was technically public property. But he didn’t say that. ‘So, assuming it’s admitted what does it mean, Andy? “ O.N. – tonight. The Eloise”?’
‘A guy at the club,’ he began.
‘What club?’
‘The Olympic. One of the guys said he was invited to this fundraiser on Nash’s Eloise, this was back around March or April sometime, I think.’
Hardy checked. ‘May sixteenth.’ Just about a month before the murder.
The proximity didn’t faze Fowler. ‘Okay, May. Anyway, I thought I might go along, see the famous son of a bitch.’ He shook his head. ‘I decided against it.’
‘Why?’
‘I’m not sure. A mix of things, I suppose. I thought May might be there and I didn’t think I could handle seeing her with him.’
Hardy went back to the window. Under the fluorescent glare at the table his head had started to throb again. He stood there a minute, then turned back. ‘Andy, this might offend you, but I want you to take a polygraph.’
The judge pursed his lips. The request clearly annoyed him. ‘Polygraphs don’t work, Diz. They’re inadmissible.’
‘I know that.’
The silence built. Hardy stood by the window. Fowler leaned back in his chair. ‘I told you I didn’t kill him.’
‘I know you did.’
‘And you don’t believe me?’
Hardy let his silence talk.
The judge pushed. ‘It’s that one lie, isn’t it, not knowing Nash? I told you about that. I didn’t think you or anyone else needed to know. I didn’t think it would come out.’
‘Well, it’s out now, and it’s not need-to-know anymore. I’ve got to know everything, and I’ll decide what to hold back. You want me to defend you – I do that or I do nothing.’
‘And you need a polygraph for that?’
‘To tear a page from the Pullios notebook, “One lie speaks to the defendant’s character, Your Honor.” ’
‘You think I’ll agree to take a polygraph?’
Hardy drummed his fingers a moment, looked around at the walls, the barred window. ‘You know, Andy, I’m afraid this isn’t a request.’
‘Diz, they’re inadmissible!’ Fowler repeated. He took a beat, slowing down. ‘You know why they’re inadmissible? Because they don’t work. They don’t prove a damn thing.’
Hardy nodded. ‘I know that.’ In a courtroom, at least, they were certainly suspect.
Fowler stared at him. ‘Then why?’
Hardy found himself biting back the words – out loud they would sound priggish, self-righteous. Because the reason was that he wanted something that would let him, for his own conscience’s sake, continue defending Andy, something that, if it didn’t clear him, at least left open the probability that in spite of his untruths and peccadillos, he wasn’t guilty.
For many legal professionals this would be irrelevant. The issue wasn’t the fact, it was whether the fact could be proven. But Hardy used to be a cop, then a prosecutor. His mind-set was getting the bad guy and he wanted no part of defending a guilty man, even an old friend like Andy Fowler.
‘I’ve got my reasons,’ he said at last, ‘and you either accept them or get yourself a new lawyer, Andy.’
Fowler’s gaze was firm, composed. ‘I didn’t kill him, Diz.’
Hardy spread his hands. ‘Then it ought to be no problem, right?’
Finally the judge nodded. ‘All right, Dismas. I don’t like it, but all right.’
Glitsky was wearing green khakis, hiking boots, a leather flight jacket. He stood about six-foot-two-and-a-half and weighed in at a little over 210 pounds. His black hair was short, almost Marine cut. When he was younger, partially to hide the top of his scar, he sported a Fu Manchu but he’d been clean shaven now for six years.
Elizabeth Pullios had worked with him on at least fourteen cases since she’d become a homicide prosecutor three years earlier. Their relationship had been mostly cordial and open. They were on the same side. It shouldn’t, therefore, have filled her with any foreboding when Abe’s substantial form appeared in her doorway. But it did.
He didn’t say anything. She’d been reviewing testimony for a case she was taking to trial in two months, memorizing as she liked to do. And then he was there. She had no idea for how long.
‘Hi, Abe,’ she said. She closed the binder and flashed him some teeth. ‘What’s up?’
Glitsky was leaning against the door, hands in his jacket pocket. As though changing his mind about whatever it was, he shrugged himself off the jamb and inside. Jamie Jackson, her office mate, had gone home an hour ago. Glitsky closed the door behind him. He didn’t sit down, and Pullios pushed her chair back slightly to get a better angle.
‘How long you been a D.A.?’ Abe asked.
Pullios still tried to smile, the charm that worked so well. ‘You’re upset with me and I can’t say I blame you.’
Glitsky really wasn’t much of a smiler. He’d seen too many cons and too much phoniness introduced by the glad hand and the ivory grin. Smiling set his teeth on edge. ‘About, what? Six, seven years?’ He was a trained interrogator, and what you did was you zeroed in, you ignored the smoke until you got the answer to your question. ‘Since you got here?’
Pullios nodded. ‘About that, Abe. Just over seven.’
‘You know how long I been a cop?’ It wasn’t a question. ‘We’ve worked together a long time and I don’t think you know anything about me at all.’
She was still staring up at him. He was wearing the face he used on suspects. It was a look.
‘I did four years at San José State on a football scholarship. Tight end. Actually, it was before they called it “tight end.” It was just plain old “end” back then. But I wasn’t just a dumb jock, mostly because I was smart enough to realize I was a step too slow for the pros, so I kind of studied and pulled a three-point-four grade-point average. My counselor told me I could get into law school with that.’
Now his mouth stretched, a caricature of a smile that stretched the wide scar that ran through his upper and lower lips. ‘Imagine that,’ he went on, ‘law school.’
‘Abe…’
He didn’t acknowledge her. ‘But I was recruited into the Academy – yeah, they did that then – after I graduated, and I thought it looked like more fun, more action than the law, you know? I was twenty-three then. I’m forty-one now. Eighteen years, and the last seven I’ve been on homicides.’
He stopped. Somewhere in another office a phone was ringing. Outside the window, an orange and pink dusk was settling.
Pullios had to struggle for breath, for control. ‘There were a lot of reasons, Abe,’ she said. He didn’t reply, just loomed there like a malevolent statue, hands in his jacket pockets, feet planted flat. She swirled in her chair to get out from under his gaze. ‘The way the Shinn matter went down, the false arrest.’ She cathedraled her hands in front of her mouth, staring out to the Bay Bridge. ‘I know Hardy’s your friend. I guess I just thought it wouldn’t have your full attention.’
‘My work gets my full attention.’
‘Come on, Abe, you know what I mean. It would all be warmed over.’ She kept at it. ‘And nobody took you off it you know. If you’d found anything, we would have used it. Peter Struler just happened to find it.’
‘He just happened to go search Fowler’s office? A lot of times, I’ll do that – spice up a slow day and go and toss some judge’s chambers.’
‘Well, I had a theory and mentioned it to him.’
‘Even a dumb jock like me could figure that out, Elizabeth. Traditionally, though, theories get told to the investigating officer, which happened in this case to be me.’
‘I know that, Abe.’ Contrite. She stood up. ‘It was a mistake, Abe. I’m sorry.’
‘Yeah, well, sorry is a big help. Look at the evidence Struler got, and then why don’t you explain to my bosses how it was that I didn’t find any of it. Like by the time I hit Fowler’s office, after clearing it with my lieutenant because I thought it might be a touch sensitive, why there wasn’t anything left to find.’
‘It wasn’t only in his office.’
Glitsky’s voice went real low. Almost a whisper. ‘You know, Elizabeth, I don’t care if it was in the Amazon rain forest. We’ve got a homicide team upstairs that works on homicides. We get you your evidence, without which you don’t have a job anymore. You got a new protocol, fine, you go for it, but it’s a two-way street.’
‘I understand that. Look, Abe, I’ve apologized. It won’t happen again. I’m really sorry.’
Glitsky nodded. Sometimes you let them have the last word, let them think it’s all settled and forgotten.
‘Just tell me you didn’t sleep with him.’
‘That’s none of your business.’
‘It’s my business.’ Hardy lowered his voice into the telephone. ‘Especially if it was last September. And you know it.’ He was in his office. Halfway through the file, he remembered Jane.
He imagined her in her kitchen at her house – their old house – on Jackson Street, sitting on the stool, maybe a glass of white wine nearby. Hearing forty, twice divorced and suffering through the apparent decline in her market value that came as such a shock, Jane was still very attractive. Also intelligent, self-reliant, why was it men didn’t see it? If they were her age they wanted a relationship and went – as Hardy had (and she had pointed it out to him) – for the younger women, the tighter, the firmer, the more fun. They could dream again with the young ones, pretend they were younger, too. Build a new life halfway through their old one. The older men knew you’d been around. You didn’t have to play games. Everybody had sex. It was an itch to be scratched. Dinner, cognac, orgasm. Thanks a lot. You’re a great kid. Or the young guys who dug the experience of an older woman, but never a thought of settling down with one…
Hardy had heard and read about all the stages. Jane had to be lonely as hell most of the time. Even with Chuck Chuck Bo-Buck, the latest.
But not, he hoped, please not with Owen Nash.
‘Jane.’
‘It wasn’t anything,’ she said. ‘It was one night.’
Her voice sounded dead.
He had filled twenty pages of yellow legal pad. It was nearly midnight and he rubbed his eyes, the swelling around them having turned a faint purple now, the throbbing continuous but bearable. He had been letting his mind go, jumping from issue to issue and following the flow, tearing out sticking tabs and placing them on pages by subject: Venue. Bail. Evidence. Theory. Jury.
He thought he had to take another shot at getting Andy out on bail. Even if they set it for a million dollars, he couldn’t let him stay in the clink. He knew he could ask the Court of Appeal to force Braun to set some reasonable bail and eventually they would do it. Drysdale would know that, too. Maybe he could talk to him and get some concessions without the procedural hassles.
After that, the first thing he would do would be to make a motion for judicial review of the evidence, which, now that he’d reviewed most of the file, still struck him as very light. Everything was circumstantial.
Perhaps bolstered by Andy’s unsupported alibi, his lies (or one lie told many times) and the enormity of the risk he’d taken in defense of May, the evidence still didn’t put him on the boat. Without that, Hardy didn’t see how anyone could vote to convict.
Juries had been known to do almost anything, but he thought an impartial judge, if he could find one, would throw this thing out as a turkey.
Pullios and her personal grand jury notwithstanding, the system at least tacitly contemplated abuse of the indictment procedure, and so authorized a judicial review of the indictment to insure there was sufficient evidence to go to trial. It was not, after all, in the system’s own self-interest to bring a case to trial where there was no evidence. Hardy thought maybe he could get Andy off there. It at least was worth a try.
If that didn’t work, he thought he would try to get out of San Francisco. His own file, from the time of the original Chronicle blurb when he and Pico had found Owen Nash’s hand, contained over sixty-five articles from both local and national publications on the case. Nash, Shinn, himself, Freeman, Fowler. And it was the kind of story people tended to read and remember, or stop what they were doing to listen to on the radio or watch on television.
At least he was coming to the theory he would use in defense. You needed a defense theory. He’d done enough prosecuting to know that those defense lawyers who just refuted his evidence, who debated his conclusions, got themselves beaten. What you needed was your own affirmative defense. Come out fighting, the voice of outrage at unfair accusation.
It had come to him today, and he thought it had some real legs. It also appealed to him because it gave things a personal edge – Pullios had done her job backward. The way it was supposed to work (he would argue) was that evidence is fairly gathered from all quarters by the police investigating the crime. When that evidence reaches some critical mass an indictment is sought and an arrest warrant is issued. None of that had happened in Fowler’s case.
Hardy thought he could make a case to the jury that someone, Locke or Pullios or whoever, had fastened on Andy Fowler out of personal animus, out of anger at his professional lapses. It was a political vendetta based on his conduct on the bench but not because the evidence pointed at him.
Hardy had never before called Glitsky as a witness for the prosecution on any of his cases, but now he wrote his name under a new tab… the investigating officer of record as a witness for the defense. That ought to jolt old Betsy.
And he knew there was a further step he had to take, if he believed the judge was innocent. For that he was ready to use Jeff Elliot and Abe Glitsky and anyone else. Someone had killed Owen Nash. But juries were imperfect. They could make a mistake and convict Andy. Hardy’s best hope of getting Andy off was to find out who had done it.
A tall order that, since evidently it hadn’t been any of the suspects so far- Shinn, Farris, Mr Silicon Valley. But there was an ‘X’ out there. Jane? Impossible. A one-night stand, she’d said. She’d said… No. He knew Jane, she couldn’t kill anybody. Besides, why would she have told Jeff Elliot she’d met Nash that once if she’d seen him since and it was an affair? Why open that door? Unless she figured it would come out anyway and she wanted to look like she had nothing to hide. No, ridiculous. Jane had no motive.
Farris? He was numero uno with Nash gone, or in a position to be the power behind the new man in charge, all his show of grief notwithstanding.
He sat back in his chair and stretched. Enough already, picking at straws. Abe hadn’t even looked yet at May’s other clients – the three men Hardy had discovered through the phone records. There was a whole universe of potential suspects. One of them, someone, had to have made a mistake but he wasn’t likely to discover it practicing this sort of armchair reverie. He had to get someone moving on it.
He lifted the last dart from his desk and pegged it at his board where it stuck four inches below the bull’s-eye.
Jane… had Andy known about Jane and Owen? Could that have been reason, another reason, for Andy to have killed Nash?… It might have been the last straw, Andy broken up over Nash – the ‘famous son of a bitch’ -stealing his May, and then he’s almost over that, maybe, when five months later he finds out the guy had also fucked his daughter and boom, over the edge…?
You’re playing devil’s advocate, Hardy. Andy didn’t do it, the polygraph he’d managed to schedule for the next morning, technically flawed as it might be, should eliminate any last doubts… not that he had many left – Andy resenting, sure, but also quickly agreeing to take the test was in his favor. Wasn’t it?
He had read nearly everything in the file. He thought he was being fairly objective and still had no idea what new evidence Pullios had found to convince her to proceed. Certainly, on the evidence presented in the transcripts he’d been reviewing, she hadn’t put it in before the grand jury. Pullios could have talked herself blue in the face, sweet and convincing as she could be, about what an immoral man Andy was, what a lousy judge, how he didn’t have an alibi, the fact that he’d written Owen Nash’s name in his calendar, he was involved with May Shinn, he’d thrown away his career and reputation, had been secretive and unethical – but, so what? What did all that prove about making him a murderer?
There had to be something else or the case wouldn’t have gotten this far – but winning an indictment wasn’t winning a jury trial. He was getting tired now but thought he’d take another pass at the stuff he thought he was already familiar with. The paper load had grown in one day to three binders and a couple of legal pads.
He scanned Glitsky’s interviews with the two guards at the Marina – not much there. From his own notes he reviewed the previous May Shinn grand-jury testimony of Strout, Abe, Celine and the rest. So there wouldn’t be any surprises, he reviewed the physical-evidence list the prosecution was planning to enter as exhibits. It was, with the additions from Fowler’s calendars and the deletion of the two-million-dollar handwritten will, pretty much as he expected, and there still wasn’t much – the autopsy photos of Owen Nash, the gun, the phone records establishing Andy’s relationship with May, papers on the bail situation.
He closed the binders. Time to sleep on it.
There were stacks of papers on May’s kitchen table.
Under David Freeman’s guidance she had been, it seemed, suing most of the western world for what it had done to her – there were lawsuits against the officer who had arrested her, his superiors, the district attorney’s office and the City and County of San Francisco. Freeman was citing a smorgasbord of offenses ranging from false arrest through various civil-rights violations, defamation of character, libel and slander.
Separately, they had been negotiating for the return of the many personal items – clothes, makeup and so forth -that she’d kept stowed aboard the Eloise. Four months after the murder, the boat was still sealed and winter was coming on. There were special things Owen had given her. She and David had made up a list, and David thought she ought to have all of it back – shoes, rain slickers, her beautiful down coat, a Siberian babushka, glass and jade pieces she’d kept in his rolltop, some exercise stuff. She had to laugh at the last one – she hadn’t done a thing with her body since June.
By far, most of the legal work had involved the will. At first she hadn’t cared about the money, or thought she hadn’t. But gradually practicality and principle merged. Why should the estate, which didn’t need it, get it. Or his daughter who had so much anyway? She -May – was the one who had loved him and he had wanted her to have it.
She stood holding her cup of tea, looking down at the stacks of papers, wearing a black-and-red silk kimono cinched at the waist. The mid-October day had come up clear and sunny.
The peace she’d found, or thought she’d found, with Owen, had been shattered by her time in jail, the craziness surrounding her arrest. David Freeman, a dear man, had seen the hopelessness start to rise in her again and wisely had proceeded to involve her with these distractions, the lawsuits.
And for a time it had kept away the nothingness. She had been busy, the way an ant was busy – going round piling up little things until they made a bigger thing. You don’t stop because the busyness was the end in itself. Now there was something new, a written request, not a subpoena, that she appear as a state’s witness against Andy Fowler.
She walked over to her turret and looked down on the street, the people going into the deli, that cute little cable car. She tried to conjure up some image of the way she’d felt, or remembered feeling, with Owen, the unity the two of them had discovered.
But it wasn’t there anymore. She’d had a family that had never loved her, that had been too afraid of life to try living it. Two barren marriages, liaisons without meaning. Day after day, going through motions, hoping for someone she could admire, who could admire her. Then thinking she’d found it and having it all smashed.
And now all those papers. She supposed she owed it to David to keep at them. What did she owe Andy Fowler?
‘Who was that?’
Dorothy woke up happy every morning. The mattress on the floor was lifted onto a sturdy platform with a modern pine headboard. There was floral wallpaper along one wall with some Degas and Monet prints dry-mounted and covered with glass. Einstein still counseled them about mediocre minds. New drapes, a large bright throw rug, a rattan loveseat, end table, coffee table, three modern lamps. It was a different place.
Jeff was even walking better, able to cross from the bar to his bed without his crutches. He didn’t believe it would last forever but he’d take it while it was here. Maybe the Prednisone for his eyes had done something for his legs. There was no predicting these symptoms, so when a little good came along you didn’t question it. He pushed himself back onto the bed.
‘That was Hardy, the attorney I told you about. For the defense this time.’
Gloriously immodest, she lifted her naked body against a reading pillow and pulled him back against her, pulling the blankets over them, rubbing her hands up and down his chest. ‘And what does Mr Hardy want?’
‘Fowler’s taking a polygraph today. He wanted me to know.’
‘Why?’
He leaned his head against her. ‘If he passes it, it’s news. It’s not evidence, but it’s news. And he figures it helps him.’
‘What if he doesn’t pass it?’
That’s news, too. Either way it’s good for me. But Hardy must think he’s going to do okay or he wouldn’t have told me.‘
‘It seems a little risky…’
‘Hardy’s got to take some risk. They both win if Fowler is innocent.’
‘Do you think he is?’
‘Innocent you mean?’
She nodded.
‘Nope.’
The gun.
Pullios and Struler, clever devils.
Hardy knew it would be unwise to file his 995 Penal Code motion for dismissal before he’d gone over every word of the file carefully. Most of it, as he’d noticed last night, was stuff he’d seen before, and the temptation was to skim it.
The discovery process tried to eliminate surprises in the courtroom; the Perry Mason, last-minute, rabbit-from-the-hat conclusions were really the stuff of fiction. Long before anybody went to trial, attorneys for the prosecution had to disclose everything they had in terms of evidence, proposed witnesses, expert testimony. In theory, the point was not to sandbag your opponent (although if you could, it was a nice bonus) but to lay out the evidence and its relevance before a jury.
If Glitsky or somebody else should chance upon some relevant evidence during the trial, then Hardy could introduce it at that time, but that would be a rare event. Most of the time, the parties knew the cards against them – the skill was in how they were played.
Which didn’t mean that Pullios, having given Hardy everything she was supposed to, then had to sit him down and show him how to use it.
So Hardy was being thorough. There was no surprise in the gun being presented as an exhibit – it was, after all, the murder weapon.
What he did not expect was that Andy Fowler’s fingerprints were on the clip.
So much for his motion for judicial review of the evidence. With the latest, Hardy realized there was at least enough evidence against Andy Fowler to warrant a trial.
‘How could that happen? How could no one have seen that before? That puts him on the boat, and if he was on the boat, no jury in the world will believe he didn’t kill him.’
Hardy had caught Glitsky on the phone at his desk before he started driving downtown and now they were eating hamburgers far from the Hall of Justice. Glitsky understandably didn’t want to be seen being buddy-buddy with a defense attorney. Friends or no friends, a new reality had kicked in.
Glitsky chewed ice, which he did every chance he got. It drove Hardy crazy. ‘Not necessarily.’
‘What do you mean, not necessarily? The gun was on the boat and Fowler’s fingerprints were on the gun.’
‘They could have been on the gun before it got to the boat.’
‘Well, that’s damn sure going to be my argument, but it doesn’t exactly strengthen my case. How could he not tell me about that? How could he not know?’
Glitsky had a bite of burger. ‘He lied.’
‘Thanks.’
Abe swallowed, took a drink of Coke, chewed ice. ‘You’re welcome.’
‘How did we miss them last time, the prints?’
Abe rubbed his face. Two ways, maybe. One, nobody looked at the clip. Shinn’s prints were on the barrel, she was the suspect, end of search. Two‘ – Abe held up two fingers – ’they got a print they couldn’t match. Then, once they knew they were looking for Fowler, they ran it against his.‘
‘That would have come up long ago.’
‘Nope. His prints weren’t in the right databank. We run a print we find on the gun through known criminals and nothing comes up, what are we supposed to do, check every fingerprint file in the universe?’ Glitsky shrugged. ‘It hurts me to say it, but these things sometimes slip through the cracks.’
Hardy swore.
Glitsky nodded again. ‘Probably some combination of both.’
‘Abe, I forced myself to play devil’s advocate, but the truth is, I can’t believe he did it. That, he wouldn’t lie about -’
After a moment’s baleful stare, Glitsky rubbed a finger into his ear as though he’d heard something wrong. ‘Excuse me,’ he said, ‘I thought I heard you say a perp wouldn’t lie to you?’
This is not any old perp, Abe. This is my ex-father-in-law. I know him.‘ Or at least he thought he did. ’A Superior Court judge, for Christ’s sake.‘
Abe reached over and grabbed the rest of Hardy’s burger. ‘I can tell you’re not going to eat this… You said you’ve got a polygraph for today, right. That’ll tell you. Maybe. And maybe not.’ Abe smiled his awful smile.
The polygraph technician – Ron Reynolds, a tall, thin man in a gray suit, white shirt, blue-and-black tie – was waiting for him in the second-floor visitor’s lounge of his office near the Civic Center.
After introductions they got right down to business.
‘Are you going to stipulate for admissibility?’ Reynolds asked.
‘I’m not doing it for admissibility. I’m doing it for me.’
This wasn’t the first time Reynolds had heard an attorney say that. Occasionally, though not so very often, they wanted to believe their clients.
Hardy went on. ‘Also, though, I thought the fact my client was willing to take the test might have a positive effect on the jury.’
‘If you can get that admitted, which I doubt.’
‘Well, I can try.’ Hardy took out a pad of notes and they started to go over them. He had twenty-odd ‘yes’ and ’no‘ questions Fowler could answer that related to Owen Nash and May Shinn. Reynolds had ten-or-so more for what he called calibration.
‘You’ll go over all of these with him before the test? No surprises, right.’
‘Sure. Are you planning on being there?’
‘Outside. Close by.’
Reynolds thought that was the right answer. ‘It’s better without interruptions,’ he said.
But before he had Andy Fowler take the test, Hardy needed some answers of his own.
They were again in Visitors Room A. The guard was still holding the judge by the arm when Hardy, who’d been pacing by the table, started. ‘You want to tell me how your fingerprints got on the inside of the murder weapon, on the clip?’
Fowler stopped dead. The guard didn’t move, either.
Hardy stared at his client for a moment, then recovered. He pointedly thanked the guard and waited until he withdrew and closed the door behind him.
Andy had recovered. ‘Are you kidding?’
‘Don’t give me that, Andy.’
‘My fingerprints?’
Hardy was angry. Every day brought him more into the case, more committed to getting Andy off, but that was mostly because he kept telling himself that the judge was innocent. He’d told himself that he would only stay with Andy’s defense if he had a reasonable certainty that he wasn’t guilty. Of course, no one but the murderer, Andy or not, would ever be one-hundred-percent sure of what had happened on the Eloise, but Hardy wasn’t a hired gun. He wouldn’t have gone on, he wouldn’t go on, if he knew Andy had done it.
Fowler swore softly behind him, and Hardy turned around.
‘I loaded the gun for her, Diz. This is unbelievable. It was months ago. It never even occurred to me, Diz, I swear to God.’
‘You loaded the gun for her?’
He nodded. ‘She was afraid to touch the thing. One of her earlier – someone had given it to her and she’d never even loaded it. It was in the headboard of her bed. I told her there was no point in keeping a gun for protection if it wasn’t loaded so I loaded it.’
‘It wasn’t on the headboard of her bed, Andy. It was on the Eloise.’
‘She told me she didn’t want it in the house. She hated it. I couldn’t take it, I couldn’t take a gun registered to another person.’
‘Because you were a judge and didn’t want to break any laws?’
Fowler tried to smile. ‘Before my little problem with the Shinn trial, that’s how I was, Diz.’
Hardy slammed the table between them. ‘Goddamn it, Andy! That wasn’t a “little problem” at the Shinn trial. That’s the whole reason we’re here.’
‘I understand that, Diz.’ Said quietly.
‘Well, then, how do you expect me to sell a jury on the idea that you were such a paragon of virtue that you wouldn’t take May’s gun to your house when six months later…?’ He checked himself; yelling at his client wasn’t going to do either of them any good. He turned away.
‘It’s a good point, Dismas, but it happens to be the truth.’
‘So maybe when May started seeing Nash he didn’t have your scruples and let her store the gun on his boat?’ Hardy was back at the window. Andy Fowler had an answer for everything, all right, but it was easier to listen without having to see what he was doing with his face.
He felt for a moment like he was in Gone With the Wind. He’d think about it tomorrow. For today, at least he had an explanation for this latest revelation – tomorrow he’d decide if he could believe it.
They’d gone over the polygraph questions one at a time. Fowler advised Hardy to try and get Pullios to stipulate to the admissibility of the results of the test. He told him that if, before either of them knew how it came out, Hardy offered to permit her to use the results, no matter what they were, she might agree to let them be entered as evidence.
Of course, she might not. Andy’s suggestion did have the effect of moving Hardy back toward thinking his client might be telling the truth, but of course Andy would know that. Circles within circles.
In any event, Hardy didn’t hold out much hope Pullios would go for it. Sticking with polygraph inadmissibility was the smarter course from her perspective – she’d figure her case didn’t need it, and a good showing on the polygraph by Fowler could only hurt her.
Unlike defense attorneys who only had a duty to their clients, the job of prosecutor included not just presenting state’s evidence, but ensuring that the defendant got a fair trial. The defendant was a citizen of the state, one of the people the prosecutor was sworn to help protect.
Except Hardy knew Pullios, and this nicety was, he believed, lost on her.
Which led him to his bold, unorthodox strategy -
‘How’s jail treating you?’
Fowler shrugged. ‘It’s like a good hotel, only bad. Why?’
‘I don’t want you mistreated. This bail situation is intolerable.’
‘I am a little surprised at Marian.’
Fowler was a little surprised at Marian! At Judge Marian Bruan. Hardy couldn’t get over Andy’s seemingly ingrained sangfroid. Like Marie Antoinette apologizing to her executioner for stepping on his toe; Fowler too was unfailingly polite, refined, even self-effacing. It wore well in the world, but here in jail, in his prison garb, it was somehow at once incongruous and pitiable.
It was going to be next to impossible to choose a jury resembling this man’s peers.
‘Well, Marian notwithstanding, Judge…’
‘Better get out of that habit, Diz. Not judge, Mister Fowler. Remember, Marian made the point.’
Hardy pressed on. ‘Marian notwithstanding, Andy. I think if you can live with your situation for a while we can use it to our advantage.’
Hardy’s theory involved doing away with many of the time-honored traditions of the Superior Court, but he didn’t think he or Fowler could make any new enemies if they tried – all the available ones were taken.
His primary defense, of course, would be that the prosecution had failed to prove their case beyond a reasonable doubt. The evidence did not prove that Andy Fowler had killed Owen Nash. There was probably motive, or purported motive, but motive alone should not be enough to convict. So he had a defense, a passive defense. He wasn’t sure it would be enough.
Pullios, he was certain, was going to use all of the physical evidence she had, but she would probably build her case around a ‘consciousness of guilt’ theory by which a defendant’s actions, such as flight, resisting arrest, lying to interrogators and so on, were admissible evidence showing the defendant to be ‘conscious of guilt’ – even with little other evidence, those actions could as a matter of law be sufficient to establish guilt beyond a reasonable doubt.
There might not be a smoking gun here, Hardy knew, but Fowler’s unethical behavior while on the bench rang, sang and went siss-boom-bang with consciousness of guilt.
So he needed something else if he wanted to get Andy out of jail, and the court had steered him in the right direction. Beginning with Pullios as she proceeded backward from suspect to investigation, on through Marian Braun’s decision to deny bail, this case, he could argue, had been riddled with demonstrable prejudice against Andy Fowler. Hardy, thinking it likely they couldn’t get a fair trial on account of prosecutorial and judicial prejudice in San Francisco, had at first considered trying for a change in venue but then the other thought – the strategy – occurred to him.
In San Francisco it was likely they would get a judge hostile to Andy, possibly even to himself. They would, in fact, further antagonize both the judge and Pullios by demanding a trial immediately, as was their right. (In the Shinn matter, Pullios had wanted to proceed to trial quickly and had gotten hurt by it – now that she was slowly building what she thought was a strong case she’d be opposed to rushing it through.)
Hardy would argue that so long as his innocent client was being held without bail, it was unreasonable to ask him to suffer any delay. He was innocent until proven guilty and he was rotting in jail.
Hardy figured this approach could prevail in more ways than one. First, the presiding judge might reconsider bail. If that didn’t happen, then scheduling an immediate trial would, he hoped, maybe disconcert Pullios – he’d seen how the swirling events with May Shinn had led even Pullios to slip on some details such as checking the phone records. She also could get testy, personal, which could hurt her credibility in front of a jury. He hoped. At least if he could keep her covering her fronts he figured he would cut down on her efficiency. Her effectiveness.
Finally, in the event they went to trial with Andy still in jail, with a hostile judge, and Pullios got the conviction, Hardy could make the argument on appeal that there had been a de facto conspiracy against Fowler to obstruct justice and due process, from investigation to incarceration to trial.
Fowler heard out Hardy’s argument. ‘I’m not too thrilled with the idea of setting a mistrial in motion to win on appeal.’
‘It’s a last resort, Andy, granted. But we’d be foolish not to think of it now. It would cut Pullios’s prep time by two-thirds.’
‘And ours.’
Hardy nodded. ‘True, but the evidence isn’t going to do it, Andy. It’s who slings it better and I believe she’ll feel rushed. I know her.’
‘How about you?’
Hardy let himself grin. ‘I thrive under pressure.’
‘It gives us less time to find out who really killed him.’
Hardy had been sitting on the hard wooden chair. His ribs, black and blue and yellow under his shirt, stabbed at him as he shifted now. Grimacing, he stared across the table.
‘Are you all right?’ Fowler asked him.
‘Yeah. You know what? That’s the first thing I’ve heard you say that really sounds like you’re not guilty.’
EX-JUDGE ANDREW FOWLER’S
POLYGRAPH RESULTS
‘INCONCLUSIVE’ IN OWEN NASH
MURDER CASE
By Jeffrey Elliot
Chronicle Staff Writer
Former Superior Court Judge Andrew B. Fowler yesterday was not cleared in a polygraph test. The results of so-called lie detector tests are not admissible as evidence in California courts, but Fowler’s failure to clear himself was characterized by the district attorney’s office yesterday as a blow to the defense.
Fowler’s attorney, former prosecutor Dismas Hardy, put the results in a more positive light. ‘The test did not say that Judge Fowler was not telling the truth. The judge volunteered to take the test. Would he have done that if he were guilty?’
Ron Reynolds, a University of San Francisco psychology professor trained in polygraphy, and the man who administered the test, agreed with Hardy. ‘The reason polygraphs are inadmissible in the first place is because they can have a wide degree of variability, of accuracy, according to the subject’s mood, his familiarity with the testing procedure, his understanding of the questions. Judge Fowler seemed to be extremely uncomfortable with the entire process – we could not even get a good calibration on him in four passes.’
Hardy added: ‘There was no indication whatsoever that Judge Fowler was not telling the truth.’
Mr Drysdale replied: ‘There was also no indication whatsoever that the judge was not lying.’
In a related development, the Chronicle learned from a reliable courthouse source yesterday that Judge Fowler’s fingerprints have been found on the loading chamber of the murder weapon, a.25-caliber Beretta semi-automatic handgun registered to May Shinn, who had been the lover of both Owen Nash and former Judge Fowler.
The case will be scheduled for trial on Monday morning.
Hardy had to learn to hold his comments in front of the jailhouse guards, even though they might be known to the prosecution. He knew who the ‘reliable courthouse source’ must have been about the fingerprints. His good statements to the press notwithstanding, the polygraph was a blow. It was all well and good to tell Jeff Elliot that there had been nothing that showed Andy was lying, but the test, from Hardy’s perspective, had brought up his old doubts about Andy’s innocence. On the other hand, he reminded himself, Andy’s nervousness could have been real – after all, everything about his predicament in jail was strange and scary. And what about Andy’s position that his best shot at proving he didn’t kill Nash was to find out who did? But outside of Glitsky and maybe Jeff, who owed him, where did he go for finding that out? And even with them, a few tenuous leads, some serendipitous snooping by Jeff… none of these were too hopeful.
He stood in front of his desk and threw darts, round after round. There were household noises – Frannie was doing some vacuuming, Rebecca got hungry and cried, Garth Brooks serenaded a CD’s worth from the living room. The sun got higher.
He was due in Master Calendar in two days. Based on the presumption that his client was innocent and being held without bail, he planned to push for an immediate trial. He would not waive time, and this would anger Pullios and whatever judge they got. They would not challenge the judge, whoever it might be. The newspapers were already leaning toward Fowler’s guilt, and Hardy thought it would be easier to find a heterosexual on Castro Street than to find a prospective jury member in this city who didn’t already have an opinion on Andy Fowler and Owen Nash.
Risks. Too many?
Leaving out the biggest – if Andy had in fact done it -Hardy’s doubts came and went. He just didn’t know. Not yet, anyway.
Personally Hardy’s own blackness had lifted – it was gone, vanished like a virulent flu that had done its damage and moved on.
He could think of no better place to be than where he was now – defending Andy Fowler. Since he had discovered Owen Nash’s hand last June, this case had been central to his life – his marriage, his career, his view of himself. He would, by God, see it through – if he had to wring it from some collective necks, he would get to the truth.
Superior Court Judge Marian Braun gavelled the room to order. Hardy had been sitting in the jury box to Braun’s right. Twenty minutes before, Elizabeth Pullios had come in with her entourage – the same assistant D.A. she’d had last time and what looked to be a law student/clerk. She sat at the prosecution table, busily conferring, ignoring Hardy completely.
They had called six of the earlier ‘lines,’ and the various defendants had been paraded before the bench. Two of them had been assigned to courtrooms, three were continued, and defense attorneys assigned, one was pled out then and there and ordered to pay a fine.
Hardy tried not to look at the gallery. Celine was there, dressed in black, sitting next to Ken Farris in the second row. He hadn’t seen her since the day at the steam room in Hardbodies! He noticed Jeff Elliot sitting among what Hardy assumed to be a group of other reporters. Jane, of course, was in the front row, opposite Celine. Art Drysdale came through the main doors and stood, arms folded, against the back wall.
He and Andy had discussed it yesterday – Sunday – and decided what he would wear in court. Andy didn’t own a suit that cost less than $700, so Hardy had asked Jane, the I. Magnin buyer, to hit a few lower-price racks and find something in Andy’s size with a little more of a common feel. He wanted Andy to look good – if a jury thought you looked like a criminal you were starting off on the wrong foot – but not too good. Andy Fowler, ex-judge, was going to have a problem with the jury empathizing with him in any event.
As the bailiff was reading in the charge again, Hardy got up from the jury box and met Andy at the podium, fifteen feet in front of where Marian Braun sat. He heard activity behind him. Turning, he saw that the door was open and a larger knot of reporters was pushing in.
Braun brought down her gavel. ‘Let’s get seated out there. While I’m at it, I want to tell you all that I will not allow pictures to be taken in this courtroom. I want order. This isn’t going to take long.’
‘Note that,’ Fowler whispered. ‘This is not going to take long.’
Hardy nodded to Fowler, then addressed the court. ‘Your Honor?’
‘Mr Hardy.’
‘On the matter of bail…’
‘Bail has been decided.’
‘Yes, your Honor, but I understood that you would reconsider your position.’
Braun glared down at him. ‘What made you understand that? What could I have said that brought you to that conclusion?’
Hardy had expected hostility, but on a pro forma request such as this one, Braun’s response still took him aback. ‘Your Honor, Mr Fowler is a respected jurist -’
‘Was, Mr Hardy. Presently he is a defendant in a murder trial. It is not unusual to deny bail in such cases. I thought I’d made that perfectly clear. Ms Pullios, was that clear to you?’
‘Yes, Your Honor.’
‘Mr Hardy somehow understood that I would reconsider.’
No answer was called for. The courtroom was quiet. Marian Braun stared at her former colleague. She looked at the computer sheet in front of her.
‘Bail will be set at one million dollars.’