It was a cold and clear Monday morning, the fifty-first anniversary of Pearl Harbor. Out in the hallway in front of Department 27 Hardy turned from the group that had gathered around Ken Farris and Celine Nash. He pretended to lean down and tie his shoe, wanting to hear what she was saying. Her husky voice cut through the hubbub.
‘I’m here, and I’m going to be here every day to remind the jury that Owen Nash was a real person, not just a statistic, not a quote super-rich financier unquote but my father, a living and breathing person whom I loved and whom I mourn every day.’
Jane was next to him. ‘Chomorro,’ she said. ‘Isn’t that the worst?’
Hardy hadn’t spoken to his ex-wife since finding out she’d slept once – ‘only one night’ – with Owen Nash. ‘Hi, Jane.’ He stood up. He hadn’t seen any reason to burden her with his strategy of the antagonistic bench. In that light, he considered Chomorro was one of the best judges who could have come up.
‘Are we going to challenge him?’
Hardy thought he’d move along down the hallway away from Celine and Farris. He saw Jeff Elliot having a few words with Pullios over to his right. They had about fifteen minutes before Chomorro would call the court to order.
‘Chomorro? No.’
‘You’re kidding.’
Hardy thought he might as well practice for the newspapers. ‘Why would I want to challenge him, Jane? This is his first murder trial. Your dad wouldn’t go to him to recuse himself on the May Shinn matter because Andy thought Chomorro couldn’t keep it confidential. No, your dad and I have discussed it. Chomorro’s ideal because he’s got so much to prove – he’s going to lean over backward to give a fair trial to someone who had perceived him as an enemy. It’s a chance for him to make his good name – in that context he’s probably the best judge we could have drawn.’
Except for the last line, Hardy didn’t believe a word of it, but he was pleased to discover that it flowed smoothly off his tongue.
They were inside Department 27, Fowler’s old courtroom. Hardy turned around and checked the gallery -Jane, Farris, Jeff Elliot. Glitsky made it a point to come down. Hardy was glad to see him; he’d looked into one of the May Shinn phone calls with no results. Abe wasn’t to be pushed, but for the time being he was the only investigator Hardy had, and even if he was technically working for the prosecution, Hardy was glad something about the manner in which this case had been brought to trial gnawed at him. At the least, it was good to have him involved. He went to Celine. He couldn’t define exactly what he saw in her eyes, but they held his for a moment. He wondered what he could say to her when, inevitably, they spoke again. That he was sorry? That he’d been floundering and confused and hadn’t meant to lead her on, if that’s what he’d done?
In her expression he read nothing, and in that nothing saw anger, betrayal, disgust. He looked away as the bailiff announced that Department 27 of the Superior Court of the City and County of San Francisco was now in session, Judge Leo Chomorro presiding.
Chomorro looked young, fit and feisty. His wasn’t the physique of lean good health seen in advertisements. He gave more an impression of heavy solidity – a lack of fat on a heavy frame, like an old-fashioned fullback. His face had a light olive cast. His eyes were dark with brows that nearly met. The razor-styled hair was short without a trace of gray.
When he had gotten settled at the bench, the clerk of the court raised her voice: ‘Calling criminal case number 921072979, section 187, felony murder. The State of California versus Andrew Bryan Fowler.’
Because of the passage of Proposition 115, after June of 1991 lawyers in California for both the prosecution and the defense were no longer permitted to conduct voir dire on prospective jurors. Now the judge did it. This didn’t mean that lawyers had no say anymore in who eventually got on a jury – they still got their peremptory and other challenges – but the judge ran the show now. He or she asked the questions and gave instructions to prospective jurors, and people like Hardy and Pullios had to make do as best they could on some combination of information, instinct and luck.
Hardy had asked Chomorro if he could at least ask pertinent questions during the process, and the judge had denied the request. Hardy then submitted a list of questions that he hoped Chomorro would ask, but he entertained little to no hope that the judge would go along.
The jury-selection process could take hours or it could take weeks. Under the new and improved rules it tended to go faster than it had in the past – indeed, that had been the intention of Proposition 115. Andy Fowler’s jury would consist of twelve jurors and two alternates, and Chomorro had told both Hardy and Pullios that he would be very disappointed if they didn’t have a panel sworn in by the end of the first day.
The predicted mob materialized in the gallery. In the past two months, besides preparing his defense, Hardy had given no fewer than a dozen interviews on the case -television, magazines, newspapers. Now, with the impending trial coming up on center stage, the first four rows of the gallery behind Pullios filled with the media.
On the other side, he’d already seen Jane. He knew Celine would be in, and probably Farris.
Since there was no telling how long jury selection would take, Pullios had arranged to have a couple of her witnesses be on hand in the event it moved swiftly. Hardy thought he recognized the two guards from the Marina sitting together. John Strout could be summoned from the coroner’s office in a matter of minutes. The waiting was nearly over.
Fowler, after his million-dollar bail had finally been granted, had resumed a semblance of a normal life. He went into his office every day, maybe had lunch with some senior partners, maybe even played a little golf and tennis. Hardy would meet him either at the Embarcadero Center or at the Olympic Club and they would hash out their strategy, the affirmative defense that they were beginning to have some confidence in.
It shouldn’t have surprised Hardy, but somehow it did, that Fowler was turning into a real help in his own defense. He still acted removed from the process – as though it involved someone else entirely – but that was his personal style, and once he’d been released from jail, on his own refined turf, it wasn’t so grating. Andy had a copy of all of Hardy’s files – witnesses, interrogations, the evidence list, newspaper articles – and he took notes almost daily with ideas that might either weaken the prosecution’s case or help to locate ‘X.’ In fact, his insistence that there was an ‘X’ did a lot to keep Hardy’s confidence up about Andy’s innocence.
Nothing had panned out with Hardy’s other ‘investigators.’ Glitsky still professed an interest in helping him out, but he had other active cases and so far every road he’d followed on Owen Nash had led to a dead end. All of May’s other clients had had solid alibis and no particular motive, anyway. All had been cooperative, just so long as Abe wouldn’t disclose the liaison with May Shinn to their wives/friends/business associates.
Jeff Elliot had kept in touch, but there hadn’t been anything close to a scoop since Fowler’s polygraph, and even that hadn’t been much from Jeffs perspective. He was one of the people to whom Hardy had given his new telephone number, and last week he’d called with renewed interest now that the case was getting hot again, but he’d had nothing new to contribute.
So if it wasn’t Andy Fowler – and Hardy had to believe it wasn’t, except for the sweaty moments in the middle of the night when he still questioned – whoever had killed Owen Nash looked like they were going to get away with it.
Eighty people were called for the first jury pool.
There were as many theories of jury composition as there were attorneys. Hardy and Fowler had spent hours discussing the relative merits of various professions and ‘types’ of people, ever aware that they might, when the crunch came, wind up empaneling an individual who went against type and killed them.
For example, every once in a while a secretary, who for some reason tended to be pro-prosecution, would show herself to have a soft heart and come up for the defense. On the other hand a long-haired musician (a typical pro-defense juror) could turn out to have a heavy-metal, neo-Nazi edge and lean to convict.
In spite of these possibilities the two men had come up with a general idea of who they wanted on the jury and who they didn’t. Whether Chomorro would ask the questions to identify the traits or professions they were looking for remained a mystery.
As it transpired, Hardy’s original idea to provoke some judicial prejudice had borne, and continued to bear, some sour fruit – witness Chomorro’s denials about voir dire.
There was still, though, enough early prejudicial activity to use in an appeal if it came to that, but first, as Fowler had convinced him, there was a trial to be won. If you overconcentrated on your backup position you could find yourself needing it. In fact, after all the preparation and discussion, it might after all come down, as it so often did, to old gut instinct.
There was, however, one rather unique wrinkle involved in choosing this particular jury. In the mind of the public, judges were generally held in high esteem, and Andy Fowler had been a judge. Would people who might be opposed to authority figures – defense jurors usually -find in Fowler a rebel they admired? Would the law-and-order types, normally pro-prosecution, view him as one of their own who’d just made a mistake, or would he be vulnerable to the wrath of the betrayed?
In the end they decided that their ideal juror would be a sensitive blue-collar white male with a good background and education. Either that, Fowler said, or Mr Ed the talking horse.
They also thought they might have decent luck with an educated older black or Oriental woman. An Hispanic woman, they reasoned, might take too many cues from Chomorro, and most of those cues would favor Pullios. They agreed that an older Caucasian woman would be disastrous – how could Fowler throw away everything he had on paid sex with a Japanese prostitute? But a younger, liberated white woman, so long as she wasn’t a secretary, might be all right – there was romance and drama in what Fowler had done for love. Gay men and women would probably be good for the defense – outsiders siding with an authority figure now on the outside and looked down on by the ‘respectables.’ But, of course, Pullios would no doubt challenge any she presumed were gay, without giving that as the reason.
If they got the chance they would try to keep any scientists or engineers – men or women – should they appear in the pool. Hardy was certain by now that the thrust of Pullios’s offense would be consciousness of guilt, and therefore people who tended to believe in evidence as opposed to theory – scientists as opposed to philosophers – would better serve the defense needs. Of course, scientists as a rule tended to be conservative, and thus pro-prosecution, but what the hell, you couldn’t have everything. Nobody, no group, was altogether desirable or predictable.
Both Hardy and his client found this stereotyping odious. Especially in San Francisco, it went against the social and personal grain. It was a cliché to say so, but two of Hardy’s best friends were, in fact, the ‘mulatto’ Abe Glitsky and Pico Morales, who was not of northern European ancestry. But they also felt they had to develop some criteria. They were looking, they hoped, at professions, affiliations, attitudes – if they ignored race and gender they weren’t doing themselves any favors.
‘I hate this,’ Fowler whispered. ‘I hated it before from behind the bench. I still do.’
Each side had twenty peremptory challenges, where they could dismiss a prospective juror with no reason given. Hardy and Fowler had decided to use a diagram of the twelve jury seats in the pool, and to cross out those they wanted to challenge. With their legal pad in front of and between them this was a relatively subtle approach, chosen so they wouldn’t have to confer and risk antagonizing the jurors who remained. People didn’t like to feel they were being judged, even if they weren’t challenged personally.
The jurors were sworn in, and Chomorro started talking to them, or rather reading to them. ‘Andrew Bryan Fowler has been charged with murder in the first degree in an indictment returned by the grand jury for the State of California.’
Fowler, Hardy noticed, did not hang his head or show any outward signs of guilt or embarrassment while the indictment – again – was read in full.
Judges addressing juries, or prospective jurors, could be friendly and avuncular or tight and businesslike. Hardy thought Chomorro – relatively new to the process -struck a tone of studied affability. It was as though an effort to appear friendly to jurors had appeared on the job description. If he kept it up, it might be good for Andy, whose breezy geniality was, Hardy felt, genuine.
‘I’m going to ask a series of questions to all of you.’ He addressed himself both to the panel of twelve on the courtroom side of the rail and to the sixty or so other prospective jurors waiting in the gallery. ‘If you answer yes to any of them I ask those of you up here’ – he gestured to the jury box – ‘to raise your hand. Those of you in the gallery pool, please listen carefully, and if you are called up here and would have answered yes to any of these questions, inform us immediately.’
Among the questions Hardy had submitted for Chomorro to ask, the most important was the most obvious: based on anything they had read or seen in the media, had any of the prospective jurors already formed an opinion about the innocence or guilt of the defendant?
Chomorro did ask that question, a fairly routine one he would have asked anyway. There was a lot of looking around, but no one put his hand up. Chomorro didn’t let it go. ‘Let me rephrase that, or ask a related question. And you prospective jurors in the gallery, you may raise your hands directly here. How many of you have read about this case, or know about it from television or the radio?’
There was a scattered show of hands, eight in the jury box. Hardy swiveled to look back at the gallery. There were about ten more. In the two months he’d spent preparing for trial most of his ‘creative’ ideas had gone out the window. If a change of venue would have a better chance of getting Andy a fair trial he would have gone for it. But he’d hired a consultant who had taken a poll and discovered that only between twenty-three and thirty percent of adults in San Francisco had ever heard of this case. At first it had shocked him. He knew people read less and less, were too busy for most current events, but still…
‘Do any of you whose hands are up feel you know the issues in this case?’ A few hands went down.
‘You’re going to be hearing evidence that may or may not corroborate what you think you already know. Would any of those remaining have any problem accepting those new arguments or evidence?’ This was getting weaker than what Hardy had hoped for. Only four people, and none in the jury box, had their hands up. ‘All right, then, I think we can proceed.’
Chomorro then began the general winnowing process. Did anyone in the panel know the defendant? Had anyone known the victim? The prosecutor or defense attorney? Chomorro read the list of proposed witnesses and asked if anyone knew any of them.
The tedious procedure continued. Were any of the panel themselves or any members of their families peace officers or lawyers? Ditto, victims of violent crime? What about nonviolent crime? Had anyone been arrested?
Five of the twenty jurors raised their hands during this period of questioning, a large percentage. Chomorro followed up individually with each one and ended by dismissing all five. Five new prospective jurors took their seats.
When the general questions had finished, Chomorro began taking the panel one at a time. This was where, before June of ‘91, Hardy could have narrowed things down considerably, but now he was at the mercy of Chomorro’s questions.
Seat number one was a heavy-set woman of about forty. She gave her name as Monica Sellers. She had been married for seventeen years to the same man and had three children. For the past three years – after the children were old enough – she’d been employed as a part-time bookkeeper for a temp agency that worked out of the Mission district. Before that she’d been a housewife.
‘Now, Mrs Sellers – by the way, do you prefer Mrs or Ms?’
She laughed nervously. ‘Oh Mrs, definitely. I’m Mrs Sellers.’
‘All right Mrs Sellers, let me ask you this question, then. And would the rest of the panel please pay attention? I will be instructing you in certain matters of law, and one of the words you’re going to hear a lot in the next few weeks is going to be “evidence.” There are two basic kinds of evidence – direct evidence, for example, when an eyewitness sees something and swears to it. If you believe that witness, then his or her statement would be direct evidence. Circumstantial evidence might be, for example, a fingerprint -’
Hardy jumped up. ‘Objection, Your Honor.’
Chomorro, interrupted in his monologue, frowned from the bench. ‘Objection to what, Mr Hardy? I was about to say that a fingerprint on an object can be circumstantial evidence that the object had been touched by the person who had left fingerprints on it. Do you mean to object to that?’
‘No, Your Honor. Sorry.’ He sat down, and Fowler whispered that he ought to reel it in a little if he didn’t want the jury to start turning against him.
Chomorro turned back to the panel. The classic analogy related to direct versus circumstantial evidence is something we call the cherry-pie analogy.‘ Chomorro appeared a bit embarrassed by the homespun nature of his words. ’If you walk into your kitchen and see your child eating cherry pie, then you have direct evidence that he was eating the pie. If, on the other hand, you come in and see a half-empty pie plate and your child’s face and clothes covered with cherry pie filling, then you have circumstantial evidence that he’s eaten the pie. I need hardly add that both types of evidence can be pretty convincing.‘
The jury nodded appreciatively, and Chomorro, more relaxed at the positive reaction, continued. ‘Let’s take another example, since this evidence is central to what a trial is all about. How about lipstick on a cigarette, which can also be evidence? Mr Smith sees Mrs Jones smoking a certain type of cigarette and leaving a certain colored lipstick stain. Then let’s say he walks to another room in her house and sees a similar cigarette butt lying in an ashtray in another room. That second cigarette butt is circumstantial evidence that Mrs Jones has been in that room. She may have been in that room, but it is not a fact proved by direct evidence. I trust that’s clear.’
‘This is good,’ Fowler whispered. Hardy nodded, agreeing, and glanced at Pullios. Her mouth was set tightly. She looked straight ahead.
‘However,’ Chomorro went on, ‘that said, if I tell you as a matter of law that an abundance of circumstantial evidence, under certain conditions, can be sufficient to establish guilt beyond a reasonable doubt, would you have a problem with that?’
Mrs Sellers looked thoughtful. ‘No, I don’t think so.’
Pullios looked to be suppressing a smile. Hardy put an ‘X’ through seat number one (he didn’t want to run through his challenges, but there was no option here) as Chomorro nodded to Mrs Sellers. ‘Would any of you have a problem?’
First one, then two other prospective jurors, wanted some clarification. Chomorro took them one at a time, getting names, marital status, occupations – beginning to fill in the blanks. They were all men, two in their fifties, one, a black man of about thirty. Finally they all agreed they could accept Chomorro’s instructions although there might have to be a lot of circumstantial evidence.
Which brought Chomorro to a pedantic discussion of quality versus quantity of evidence. A small amount of direct evidence might outweigh an abundance of circumstantial evidence, or vice versa.
Seat number two was Shane Pollett, cabinetmaker, a relic of the sixties with graying long hair and a tie-dyed t-shirt, a medium-length beard, an expression of amused tolerance. He was forty-four years old, in his second marriage, second family, three young kids. Two already grown up.
Hardy was beginning to understand Chomorro’s technique. He would move quickly through the panel, asking a technical question or making a legal point or two to each member, opening it up to the rest. If his goal was to keep things moving along, it would work. For Hardy’s purposes, it wasn’t nearly enough.
‘Mr Pollett, let me ask you this.’
‘Sure,’ Pollett said.
Clearly, the informality, irreverence, rankled Cho-morro, but he forced a smile. ‘If the state didn’t have someone come in and say, “This happened, I saw it,” would you accept that there’d be another way they could prove something happened? To use my example?’
‘Sure, why not?’
Hardy leaned over and whispered to Fowler. ‘Why do I like this guy?’
Fowler shrugged. ‘Wrong answer for us but the right tone. Gives one pause. Keep your eyes open.’
Jane brought sandwiches into the room they’d been assigned on the second floor of the Hall. It was a little after one o’clock on the first day, and seven jurors were already empaneled – Chomorro wanted a jury in two days, max, and by God, they were going to have one.
‘How are we doing?’ she asked.
‘Knocking ’em dead,‘ her father answered brightly. He pulled a submarine and a soda from the bag Jane had brought in. ’No chips?‘
Jane smacked her forehead. ‘Sorry, I forgot the chips.’
Hardy pulled the bag toward him. He realized the banter was in the ‘brave-front’ department, but his patience was worn thin. ‘Let’s chat some more about chips, chips are real important right now.’ He started unwrapping his own sandwich. ‘Okay, I’ve got it four to three, slightly toward us.’
‘Is there anybody you hate?’ Jane asked, her face serious.
‘Anybody I hate, I challenge, but there’s damn little to go on.’
‘I know,’ Fowler said, ‘to call this a voir dire is a little misleading. I don’t think Leo knows that much what he’s doing.’
‘What’s he leaving out?’ Jane asked.
‘It’s not so much that,’ Fowler said.
Hardy spoke up. ‘He’s not getting anybody to open up. Who are these people? What do they think about? What movies do they like? Hobbies? Anything. When he gets done we’re not going to know anybody better than we do now. You look at what they’re wearing, if they got a nice face, if they don’t stare at us like they hate your father, that’s about it. That and his so-called explanations of law.’
‘He does favor the leading question,’ Fowler admitted. ‘But he’s a politician, what do you expect?’
‘He’s what I expect, all right, but I’m let down on so many other expectations, why couldn’t we get lucky here? He’s going awful light on the burden of proof, don’t you think?’
‘Well, we knew that going in.’
Hardy chewed a moment. ‘There must be a rebuttal to consciousness of guilt.’
‘Not that I know of,’ Fowler said. ‘You can’t prove a negative.’
‘If he’d only make a nod toward due process. I gave him twenty questions on the investigation, the indictment, the grand-jury process, all of that.’
‘What was that?’ Jane asked.
‘Jesus, everything,’ Hardy said. ‘Everything these people should know and probably won’t – that an indictment is essentially a minimum showing of cause for trial, that no defense people can be present during the grand-jury proceedings, that basically it’s the prosecutor’s ballgame. These prospective jurors out there are intimidated enough. Then you tell them that another jury, a grand jury no less, thinks your father killed Owen Nash, what are they supposed to think?’ Hardy turned to his client. ‘He’s got to bring up some of that. Put it in context.’
Fowler shook his head. ‘He won’t, you can bet on it. He’s telling us it’s not relevant.’ Fowler smiled grimly. ‘What a judge thinks has a way of making it into the courtroom. Believe me, I know. Your due-process argument might make the appeal, but you’re going to have to get clever and lucky to get it introduced here.’
Jane tapped her bottle of soda on the table a few times. ‘Gosh, you guys are heartening to talk to,’ she said.
Chomorro finished his questioning and asked if either side would like to exercise a challenge. Hardy decidedly did not want to dismiss the first person interviewed – it would not enamor him to the jury – but since Mrs Sellers had come down so strongly for believing in the accumulation of circumstantial evidence, he had no choice. He could tell it both surprised and hurt her as if she’d failed a test. He looked at the eleven faces to his left, most of them fixed solemnly on Mrs Sellers as she walked back through the swinging door that separated the gallery from the courtroom. The clerk called a name to fill the vacancy.
By 4:25 they had empaneled a jury and two alternates. There were seven men and five women, four blacks – two men and two women – and, despite Hardy’s initial misgivings, one Oriental – a fifty-five-year-old bespeckled Vietnamese shopkeeper named Nguyen Minh Ro. Fowler had crossed him off on their schematic almost as soon as he’d started talking, but then Ro, not perfectly understanding the laws of his new country, had asked the very question that Hardy had wanted to get in – just how was it that Mr Fowler was to be considered innocent when the grand jury had already said he was guilty? Hardy could have kissed the man. He still might have dismissed him, but there was something in his body language toward Chomorro as the indictment process sunk in that looked promising for the defense. Surprisingly, Pullios didn’t challenge, and he was in.
They could break it down demographically any number of ways – seven men, five women; seven whites, five non-whites. They did have a fortunate break with their hope for scientific/engineering types – three of the jury worked to some degree with computers. Additionally, one middle-aged black woman, Mercedes Taylor, was an architect.
There were no secretaries. They had kept Pollett, the cabinetmaker. Three computer jocks, an architect, two salesmen, one housewife, two small-business people (including Ro), a construction person and a high-school teacher.
Chomorro had put on reading glasses as the day progressed, his affability fading along, apparently, with his eyesight. By the time he began questioning the alternates at four o’clock, he was as clipped as a drill sergeant, asking them if they’d heard anything in the questioning and instructions to the other jurors that they felt ought to disqualify them. No? Okay, then. He finished them both in under twenty minutes.
‘I don’t blame her. Why should she want to help you?’
The ‘she’ Peter Struler was referring to was May Shinn. He sat on his ‘Molly’s’ desk, facing her in her chair, his legs on either side of her. Pullios had pushed herself back nearly to the wall and looked up at him.
‘I thought the letter made that very clear,’ she said. ‘She’s got about a half dozen civil suits going. Freeman knows her civil jury will more likely pay off on an upstanding citizen who helped the authorities solve the murder of which she was wrongly accused. Besides, all the witnesses will be cops and D.A.s. We could do her some good. She might be suing us but it’s the City that pays off.
Struler shook his head. ‘I’d just bring her in.’
‘On what?’
Straight-faced, Struler replied. ‘How about a DWO, something like that?’
Pullios knew her law, and she’d never heard of a DWO. ‘Okay, I’ll bite. What’s a DWO?’
Struler grinned. ‘You know, Driving While Oriental. Gets ’em every time.‘
There was no training this guy. ‘Is it just me, or do I get the feeling your political correctness is slipping again?’
‘Who gives,’ he said, enunciating clearly, ‘a big steaming pile of shit?’ He put his feet up on the chair’s arms. Outside the window behind Molly it was pitch black, though it wasn’t far into the dinner hour. Her door was closed. ‘So hit her with a subpoena.’
‘I know, but the minute I do that, she goes on the official witness list.’
‘Yeah, well excuse me, but aren’t those the rules?’
She graced him with a ‘get-serious’ expression, and he asked if Hardy had interviewed her.
‘She said he hadn’t.’
‘So why’d she talk to you?’
Pullios smiled. ‘I asked Freeman to clear it for me to apologize personally for what I’d put her through.’
Struler shook his head in admiration. ‘You are a cruel and terrible woman.’
‘Thank you, sir. It got her to talk to me about Fowler and the gun, but she said she wouldn’t be a witness against him.’
‘Hey, she’s not married to him. It’s not like she has a choice.’
‘I want to keep her on my side as long as I can, though. The nice letter, all that.’
‘You need what she’s got?’
Pullios nodded. ‘It’s absolutely essential.’
‘Okay,’ Struler said, ‘here’s what I suggest you do. Wait until the last possible moment so there’s no notice to Hardy, then send somebody out – some D.A. investigator like my own self – and slap her with a submeister.’
‘What’s that?’
Struler shook his head. ‘Come on, Molls,’ he said, ‘get hip. Saturday Night Live’? Submeister, sub-a-rama, Mr Sub, subster.‘ At her continued blank stare, he finally relented. ’You lawyers ought to get out more, I swear to God. A subpoena, Molly. Hit her with a subpoena.‘
Hardy plugged in the Christmas lights he’d strung up around his front porch over the weekend. Rebecca, walking now, clapped her hands, stopping to point and yelling what sounded like ‘why why why’ at the top of her lungs. Hardy picked her up and held her closer to them.
‘Light light light,’ he said.
The Beck shook her head, laughing.
‘Is she the greatest kid in the world?’ Frannie said.
‘The universe,’ Hardy said.
‘Why,’ Rebecca said. Some of the lights had started blinking. She pointed to them. ‘Why why.’
‘I think she’s going to be a philosopher,’ Hardy said, ‘like her father.’
‘Like her uncle Moses, maybe, not exactly like her father.’
Frannie, now in her eighth month of pregnancy, had her arm around Hardy’s waist. The problems that had led up to Hardy’s mugging in October were behind them. He was working a lot of hours but he was at least sharing it with her – plus they were laughing together, teasing each other, enjoying the Beck.
The car pulled up and double-parked in front of their house. ‘Who’s that?’ Frannie asked.
Hardy knew immediately. He kissed his wife on the cheek and handed the baby to her. ‘I’ll be right back.’
He’d been expecting this somehow. He walked down the few steps, then onto the path that bisected his lawn to the gate at the fence. Apprehensive, he met her there.
She was wearing a heavy coat against the chill, a cowl-like head covering pulled down around her ears. Her hands were deep in her pockets. Vapor from her breath hung in the still air a moment before it dissipated.
‘You shouldn’t be here, Celine.’
She seemed unsteady, as if she’d been drinking, but he was close enough to have smelled that and didn’t. ‘I had to talk to you, you’ve changed your phone number.’
‘You were in court all day, Celine. I’ll be there tomorrow.’
‘I didn’t know what I wanted to say then.’
He let out a breath. He had it coming. ‘Okay.’
‘I, I…’ she began, then stopped.
‘It’s all right,’ Hardy heard the door to his house close. Frannie and Rebecca had gone inside.
‘I just wanted you to know that I understand. I don’t want you to hate me, to think that I hate you.’
Hardy nodded. ‘That’s good to hear. I certainly don’t hate you -’
‘You were acting like it.’
‘No, I was trying to ignore you. That’s different. It’s something I have to do.’
‘Yes, of course, but I’ll still be there every day. You have to know that.’
‘All right. But I don’t think you ought to come by here. The last time -’
‘I know. That was a mistake.’
He recalled her panicked retreat the last time she’d come up to his gate. ‘My life is here,’ he said. ‘I forgot that for a moment. I’m sorry…’
‘No, it wasn’t that, it wasn’t even you… you just suddenly reminded me so much of my father…’ She gripped the gate, steadying herself. ‘I didn’t mean to say it like that, but your wife, your baby… what I couldn’t have.’
Hardy had his hands in his pockets. The vapor from their breathing merged in the air between them. She seemed to gather herself then, regain control. ‘Your client, the judge. You obviously don’t think he did it.’
‘No. I don’t.’
‘Then who did?’
‘I don’t know. We’re looking, but so far there isn’t much -’
‘Much?’
‘To be very honest, nothing.’
‘Poor Daddy,’ she whispered.
There wasn’t anything more to say. She glanced at his house behind him, nodded, turned and walked quickly to her car.
He had taken to following a routine every night. First, he was not drinking at all during the week, from Sunday through Thursday night. He would finish dinner and help Frannie with the dishes. They would talk about each other’s day. He would bounce things off her.
Then he would take a cup of coffee and go into his office for a couple of hours of what he called creative leisure – toss some darts, read over some testimony he thought he already knew by heart, play devil’s advocate with every position he could think of. Sometimes he’d call Abe just to keep the needle in. He tried not to work on the weekends, or on Wednesday nights, although he’d told Frannie that they’d have to suspend date night during the duration of the trial and, of course, for however many weekends the trial took, weekends as such would not exist.
His paper load now included six full binders, four filled legal pads and a dozen cassette tapes. It was amazing, he thought, that as many times as you went through it there was always something you’d missed. He remembered papers he’d done in college, proofing and proofing and rereading and then handing in what he thought was perfect work only to get it back with a typo or something screwed up in the first line.
But tonight the choreography was complete – the dance began in earnest tomorrow. He arranged his books, binders, pads and tapes neatly on his desk and turned out the light in his office and walked through his house.
He looked in at Rebecca, pulling up a blanket around her. The bedroom was bathed in blue light from the fish tank. In the kitchen, pots and pans hung neatly from overhead hooks; his black pan glistened on the top of the gas stove.
Moving forward through the dining room he caught a whiff of lemon oil from the polished table, then -unmistakable, seductive, mnemonic – the scent of Christmas tree and woodsmoke.
Frannie sat in the recliner next to the fire, feet up and hands folded over her belly. The only other light in the room came from the tree, blinking reds and greens and blues. Nat King Cole was singing quietly in German -‘Oh Tannenbaum.’ Hardy took it all in for a moment.
‘Are you ready?’ she asked.
‘As I’ll ever be.’
Frannie patted the side of the chair, and Hardy crossed the room and sat on the floor next to her. She idly ran her hand over his head, through his hair. ‘Have you thought about after this trial?’
‘Not much. I thought we’d have this next baby, get back to real life.’
‘Are you going to be happy with real life?’
‘I’m happy with this life, Frannie.’
The fire crackled. He knew what she meant. He was in trial time – everything assumed an importance that was out of proportion to day-to-day prosaic reality. She was worried about a recurrence of the letdown he’d gone through over the summer.
‘How far did it go with her?’ she asked.
He looked up at her. Her hand still rested on his head. Her face was untroubled and unlined, beautiful in the firelight. ‘I don’t want any details,’ she said, ‘and I appreciate you dealing with it yourself. I know what infatuation is and I don’t think we need to get each other involved in them. But I need to know how far it went.’
Hardy stared at the fire, suddenly aware that the music had stopped.
‘It’s funny, I thought it was Jane.’
‘No.’ He could embroider and skate around it but he knew what she’d asked. ‘It stopped in time. It didn’t happen.’
She let out a long breath. ‘I don’t know everything you need, Dismas, but if you can try to tell me, I’ll try to give it to you.’
‘You already do, Fran.’
‘I’m just telling you – whatever it takes – we stick it through together, okay? But you have to want me -’
‘I do want you. Hey, that’s why I’m here.’
‘All right,’ she said, ‘because that’s why I’m here.’
‘Good morning.’
Pullios looked nice – friendly, approachable, the girl next door. She wore low brown pumps and a tawny suit the cut of which minimized her curves. Shoulder-length brown hair framed a face nearly devoid of makeup. She smiled at one and all, pleasant, but on serious business.
‘I want to begin by thanking you all for your patience yesterday. It was a long day for all of us, and I’m sure we’ll have more in the days to come, but let me assure you that your presence on this jury is one of the most important duties that can be undertaken by citizens in our society, and your time and attention here is well appreciated.’
Hardy gave some thought to an objection right away -Pullios had no business massaging the jury; that was, if anyone’s, the judge’s role. But he knew you had to walk a fine line with objections. The jury also had to feel good about him, and if he objected to Pullios saying they were appreciated, it would no doubt be misunderstood.
‘Although, like a lot of important jobs,’ she continued, ‘the pay could be better.’
A nice chuckle. Even Chomorro smiled. What a nice person this prosecutor was. She walked back to her desk, moved a yellow pad, then turned back to the jury.
‘I’m going to tell you a lot about what we know about the defendant, Andrew Fowler, and the man he murdered, Owen Nash. I make the point that I’m going to tell you a lot because you are undoubtedly going to hear that…’
Fowler had poked him. Early or not, Hardy had to get on the boards sometime.
‘Objection, Your Honor.’
To his surprise, Chomorro nodded. ‘Sustained.’ He looked down at Pullios. ‘Just make your case, Counselor. This is your opening statement. Don’t editorialize.’
‘I’m sorry, excuse me, Your Honor.’ Gracious and unflustered, this one. She moved on. ‘Early in the morning of Saturday, June twentieth of last summer – a windy, blustery day – the victim in this case, Mr Owen Nash, boarded his sailboat the Eloise and prepared to take what would be his last sail. The prosecution will prove to you, ladies and gentlemen, prove beyond a reasonable doubt, that with him on the Eloise that morning was the person who would murder him – the defendant Andrew Fowler.
‘A former colleague of the defendant, a fellow member of the Olympic Club, will tell you that Mr Fowler had talked of making an appointment to see Mr Nash to solicit political contributions from him. This was the pretense for their getting together.
‘The evidence will corroborate that Mr Nash and his killer sailed under the Golden Gate Bridge and headed south down the coast. We have an expert in tides and currents who will tell you with a good deal of precision exactly where Owen Nash fell into the sea after being shot two times with a.25-caliber pistol. The coroner will explain that the first bullet struck Mr Nash just above and to the right of his penis, the second bullet went through his heart. An expert in bloodstains will describe how this second bullet sent Mr Nash over the rail of his boat and into the ocean, at first glance a very convenient circumstance for his killer.
‘We will show you that Mr Fowler is an experienced boatsman in his own right, that he could easily have kept the Eloise at sea until the evening, when he could have guided it back into the Marina, even in high seas. A meteorologist will describe the weather on that evening -there were high winds, and small craft warnings were out.
In this weather it is no surprise that there was no one at the Marina when Mr Fowler returned.
‘He tied up the boat, leaving it unlocked, and was not seen by another human being until he arrived at work, right here in this building, on the following Monday morning.’
Here was another objection, but this time Hardy merely made a note of it. Counsel wasn’t supposed to argue evidence in their opening statements.
Pullios didn’t use notes but she returned again to her desk, playing down any appearance as a superwoman. After checking her props, she turned and continued.
‘Rather than predict what the defense will contend relating to evidence in this case’ – here a nod to Chomorro, a smile to the jury – ‘I will tell you right now that the prosecution has found no one who can point to Mr Fowler and say, “That was the man I saw on the Eloise on June twentieth with Owen Nash.” No one saw Mr Fowler on the Eloise besides Owen Nash, and he’s dead.
‘ “Well,” you’re asking, “then why are we here?” We are here,’ she answered herself, ‘first, because Mr Fowler’s pattern of behavior over the course of several months cannot be explained other than by acknowledging his consciousness of his own guilt. Duplicity, deception, abandonment of the high ethical standards -’
‘Objection, Your Honor.’
Chomorro nodded. Two for two, Hardy thought, not too bad.
‘Sustained. Let’s stick to the evidence, Ms Pullios.’
She apologized again to the judge and jury. But it clearly didn’t rattle her. ‘The prosecution will demonstrate that Mr Fowler knew the precise location of the murder weapon on board the Eloise and that he had a compelling reason to kill Mr Nash – the oldest and most lethal motive in the world – jealousy. Mr Nash had superseded him in the affections of the woman he loved, for whom he subsequently risked – and this is a fact, not a conjecture – risked his entire career and reputation as a judge and a man of honor.
‘We will show that the defendant first identified and then tracked down his rival with the help of a private investigator, that he concocted a plan for the two of them to meet, that he painstakingly arranged an alibi for the weekend of this meeting. All these facts speak to Mr Fowler’s consciousness of guilt.
‘But all this is not to say there is no direct evidence. There is a murder weapon, for example. And on the murder weapon – not on the outside, but on the clip which holds the bullets for the gun – are the fingerprints of the defendant, Andrew Fowler.’
A stir in the courtroom. Hardy had known this would be a bad point but there wasn’t anything he could do about it. Andy’s story was all he had to tell.
Pullios pushed on; they were captivated. ‘Now, this, of course, is not direct evidence that Mr Fowler was on the Eloise with Mr Nash. Nor, obviously, is the fact that he wasn’t seen anywhere else. Nor, by itself, is the discussion with his colleague about meeting Mr Nash for political reasons. Neither, finally, is his jealousy, his hiring of a private investigator, his attempts to hide or cover up all of his activities relating to his lover, May Shinn, or his rival, Owen Nash. But the people of the State of California contend that, taken together, the evidence in this case can lead to no other conclusion – beyond a reasonable doubt, Andrew Fowler did with malice aforethought, sometime in the morning of June twentieth, 1992, shoot and kill Owen Nash.’
Hardy thought she was finished and took a drink of water, preparing to stand and begin his opening statement, but she turned back at her desk.
‘I would like to make two final but important points. One, circumstantial evidence can be sufficient to satisfy the burden of proof. Judge Chomorro mentioned this to you yesterday, and it is a crucial point here. Circumstantial evidence is still evidence, and the evidence in this case inescapably convicts the defendant.’
Hardy knew he could object but figured he’d run out his string with the jury. Any further objections would look like he was trying to keep something hidden from them. He let her go on uninterrupted.
‘Secondly, why is there little direct evidence? Does it make any sense that a man could commit a murder and leave nothing behind by which he can be identified? Well, let’s consider that Mr Fowler has spent the better part of the last thirty years as a judge in this very Superior Court of San Francisco. During that time, he has heard hundreds if not thousands of criminal cases. Is it any wonder that a man with this experience would leave little or no physical trace of his presence?
‘Ask yourselves this – if your job is evaluating evidence, if you are intimately familiar with how the legal system works in all its detail, if you know every test and every procedure someone will use to catch you, don’t you think you could avoid leaving anything incriminating behind? ’I think I could. I think Andrew Fowler could. And did. The evidence will speak for itself.‘
‘You’ll have to bear with me,’ Hardy began. ‘I’m in a bit of a bind.’ His legs were so weak with nerves he didn’t trust himself to stand, either at attention or at ease, in front of the jury, so he leaned back against his table, hoping his legs would improve as he got going. ‘The charge against my client is murder, the most serious of crimes, yet the prosecution theory here is so bizarre that I hardly know how to discuss it without losing my temper or insulting your intelligence, or both.’
A sea of blank faces. Were these the same folks who had smiled, frowned, chuckled and gasped on cue as Elizabeth Pullios stood before them? But there was nothing to do for it. Here he was, and he had better get it together and press on.
‘Stripped of all the rhetoric and polite verbiage, listen to the nonsense the prosecution presents. Here is their truly astounding theory – because there is no evidence, the defendant must be guilty.’ Hardy paused to let that sink in. ‘We’ve just heard that there’s no evidence in this case because Mr Fowler was too smart to leave any. Well, I’m going to tell you something. By that standard, everyone in this courtroom – all of you jury members, me, the judge, the gallery out there – unless we’re all ready to admit we weren’t smart enough to think of a way not to get caught, if Ms Pullios’s version of justice were the law of the land, all of us could be found equally guilty of the murder of Owen Nash.’
The jury woke up. The gallery came to life and Pullios was on her feet objecting. Good. Let them see both sides could interrupt. She was sustained. Hardy had unfairly characterized her statement and was arguing to the jurors. He told the judge he was very sorry. The jury was instructed to disregard what he’d said, and he was sure they would try and, he hoped, fail. His sea legs came in.
‘All right,’ he said, ‘let me tell you, as the judge instructs me, what the defense has to prove, and then what the defense will prove. The first is simple – the defense doesn’t have to prove anything. The burden of proof rests on the prosecution and during the course of this trial, with all the direct and circumstantial evidence you will be asked to evaluate, it will be up to the prosecution to prove that Andy Fowler is guilty.’ Pullios objected again, Hardy was arguing the law, not stating the facts. She was sustained. Hardy didn’t care. ‘When you’ve heard and seen everything the prosecution has, the inescapable conclusion will be that the state has not met its burden of proof. It cannot provide evidence to prove that Andy Fowler killed Owen Nash. And, ladies and gentleman, fancy theories of guilty consciences notwithstanding, evidence is what a jury trial is all about. Until you twelve people deliberate, knowing all the evidence, and basing your judgment on it, return with a guilty verdict, it is presumed that Andy Fowler just plain didn’t do it. That’s the law and I’m sure you all understand it.’
Again – she was alienating jurors and didn’t seem aware of it – Pullios objected. This time Chomorro overruled her with a pointed comment about the latitude she had been allowed in her opening. Hardy kept his face impassive and went back to his work.
‘But – my second point – the defense plans to go beyond that. A lot of you are probably sitting in the jury box here, wondering how an eminent jurist like -’
‘Objection.’
‘Sustained. Mr Hardy, Mr Fowler is the defendant in a murder trial. He is not an eminent jurist.’
‘All right, Your Honor.’ Hardy walked to his table and took a drink of water. The jury was waiting for him when he turned back to them. ‘I’m sure all of you believe, to a greater or lesser extent, in our criminal justice system. It’s why you’re all here doing your civic duty. As Ms Pullios said, you are doing an important job, giving up important other work, to be part of this process. We very much appreciate it.’
Hardy had swiveled half away from the jury and nodded to Pullios. Back to the box.
‘It is one thing to say you believe in the presumption of innocence. It is quite another to come here, as you are now, sit in a jury box and look at a man – a man who used to be a judge – sitting at the defense table accused of committing the most serious crime a man can commit, murder in the first degree, and not believe there isn’t some powerful, compelling, overwhelming reason why that person is there. His very presence seems to be an argument for his guilt.’
The judge rapped his gavel. ‘Mr Hardy, we’ve gone over this in voir dire.’
Hardy stopped, consciously slowing himself down. Not exactly given to theatrics, he suddenly found it completely natural to point at Andy Fowler. ‘That man,’ he said, lowering his voice, ‘has been a member of the legal community in this city for more than half his life -’
Pullios popped back in. ‘Objection, Your Honor.’
‘No, I’ll overrule that, Counselor. That’s a fact.’
Hardy thanked the judge. ‘That man,’ Hardy repeated, still pointing, ‘will be the first to admit he made a grievous error of judgment. From that one mistake he was drawn to others, perhaps more serious, until at last he had sacrificed his good name, his standing in the community, the respect of his peers.’
He found himself standing very close to the rail separating the jurors from the courtroom.
‘Now who are Andy Fowler’s peers? They are the professional prosecutors, the policemen, the other judges in this building. They are the very people who have brought this murder indictment against him.’
‘Your Honor!’ Pullios was on her feet. ‘Mr Hardy is impugning the entire grand-jury process.’
Chomorro seemed to agree, but also seemed uncertain. ‘Is there relevance to some evidence here, Counselor?’
‘Your Honor, the defense will present direct and incontrovertible evidence – eyewitness testimony from members of the district attorney’s own staff and from the San Francisco police department – that there was nothing approaching an impartial investigation leading to the indictment of Mr Fowler. The district attorney’s office concocted a theory out of whole cloth and proceeded to fill in whatever blanks they needed to get an indictment.’
There – Hardy had gotten it out, and Chomorro could overrule him if he wanted to.
Pullios took over. ‘Do we call this the paranoid defense, Your Honor? Someone was out to get Mr Fowler, so we got together and accused him of murder?’
‘Mr Hardy?’
‘It speaks to the interpretation of evidence.’
‘Interpretation of evidence is in the hands of the jury.’
Hardy nodded. ‘My point exactly, Your Honor.’
But Pullios wasn’t ready to quit. ‘The evidence must speak for itself, Your Honor.’
Chomorro banged his gavel. ‘All right, all right. Hold on a minute here.’
The courtroom hung in silence. By its absence, Hardy for the first time noticed the ticking of the court reporter’s keys. Finally Chomorro spoke up. ‘I’ll overrule Ms Pullios’s objection. You may proceed, Mr Hardy.’
Hardy took a deep breath and let it out slowly. He didn’t want to betray that he was sighing in relief. He’d also blanked on where he was going. He walked to his table and checked his outline.
‘You’ve already heard the term “consciousness of guilt” in the people’s opening statement. And I don’t dispute that there are certain actions that would seem to admit guilt. These would include such behavior as flight to avoid prosecution, resisting arrest and so on. But we’re on very slippery ground here when we’re using consciousness of guilt – a very general legal area – as a catchall for a specific crime.’
Hardy went on to describe an example of a situation where someone had resisted arrest and fled from arresting officers. If there had been a murder on that block, would that person’s actions in any way prove he had been involved in the murder? Of course not. Perhaps the person had stolen a car. Maybe he had an outstanding arrest warrant for jaywalking. Maybe he was a member of a minority group in a neighborhood where minorities were routinely harassed. ‘The point,’ Hardy said, ‘is that our person here can be guilty of something, and can act in what we would recognize as a guilty manner. But his actions don’t automatically make him guilty of, or a suspect in, any specific crime.’
He thought he’d nailed that point. ‘Now we have already admitted that Andy Fowler felt guilty. We’ll go a step further – he acted in a guilty manner. The prosecution is telling you that they will prove beyond a reasonable doubt that Mr Fowler’s behavior allows for no other explanation for this behavior except that he committed murder. We don’t believe they can do this. We don’t believe that you will let them. Because it isn’t true.’
He took another three or four seconds to look up and down the jury box. Then he thanked them and sat down.
Fowler told his daughter that Chomorro had obviously talked to some of his lawyer friends at lunch. Which was why he had called the conference in his chambers before they began with the testimony of Coroner John Strout in the afternoon.
‘What’s it about?’ Jane asked her father.
She was beside him at the defense table, which was allowed when court wasn’t in session. Behind them in the gallery the crowd was gathering again after the lunch recess.
‘Chomorro’s going over some rules,’ he said. ‘This is his first murder trial, remember. He doesn’t want to foul it up and have it declared a mistrial.’
‘How could he do that?’
Fowler patted his daughter’s hand. ‘See? All these years I guess I’ve made it look easy. You’re not supposed to argue law during opening statements, for example. You can say what you’re going to be showing, but you’re not supposed to explain it, which – you may have noticed -Ms Pullios did. Also, all this objecting and interrupting. It’s already getting to be a little personal in what’s supposed to be an impartial process.’
‘Didn’t Dismas want that?’
Fowler nodded. ‘Yes, he did. And to that extent he’s doing fine, but Chomorro – I’d bet anything – has got some ringers back there.’ He motioned to the gallery. ‘A couple of clerks taking notes. A trial’s supposed to be about evidence, not personalities. If it gets too bitter it jeopardizes the trial.’
‘Do we want that?’
‘No, Jane. I don’t want a mistrial. I want a fair trial. Dismas wants one, too, although he also wants to fight, which is good up to a certain point. But if I’m going to have any life after this we’ve got to win fairly, so everybody knows I’m innocent. Even Diz.’
‘Daddy, he doesn’t think you did it. He wouldn’t be defending you.’
Fowler wasn’t so sure. Hardy’s own uncertainties hadn’t been lost on him. ‘I’ve known him a long time, Jane, longer than you have, remember. He’s willing enough to pretend to believe – even to himself – that I’m innocent. But I wonder if it isn’t more a case of his feeling the evidence doesn’t prove I did it and -’
‘Well, that’s the same thing.’
Fowler shook his head. ‘No, it isn’t, Jane. It’s not even close.’
Hardy had read Dr John Strout’s grand-jury testimony twenty times. He’d memorized the autopsy report. He’d paid another doctor, a friend of Pico’s named Walter Beckman, to spend a night talking about medical issues, and he’d come to the conclusion that Strout’s testimony couldn’t damage Andy Fowler. The coroner had to be called to establish the fact of the death, the means of death, but essentially his testimony would be neutral, a foundation for what followed.
Which, he soon discovered, was selling Pullios short, and he should have known better.
Strout, tall and lanky, pushed back the witness chair so he could fit his long legs into the space. He appeared to be the most relaxed person in the courtroom, which was to be expected. He had given testimony perhaps an average of once a week for the past twelve years. He sat straight, his elbows on the arms of the chair.
Pullios and Hardy had both been instructed not to come close to witnesses when they were interrogating them, so Pullios stood where she had delivered her opening statement, about in the center of a circle that encompassed Hardy, the jury, Strout and Chomorro.
After leading the doctor through his qualifications, which were not in dispute, she asked him to describe the wounds he had discovered in Owen Nash’s body.
‘Well,’ he drawled, ‘there were two wounds, both created by.25-ACP-caliber slugs. The lower wound, not in itself fatal, entered the body in the pubic area -’
‘Excuse me, Dr Strout,’ Pullios said. ‘Distasteful as this is, would you please be more precise as to the location of this first wound?’
The drawl became more pronounced. ‘Well, if we don’t want to get into Latin, Counselor, the pubic area is relatively precise. It’s the area covered by pubic hair above the genitals.’
‘In other words, within an inch or so of the penis?’
Hardy saw where she was going. If a man were eliminating his sexual rival…
‘Objection. Leading the witness.’
Pullios quickly said she’d rephrase. ‘Can you tell us the location of this first wound in relation to Mr Nash’s penis?’
‘It entered just about at the base of the penis, slightly high and to the right.’
Some of the men on the jury seemed to wince.
‘Any more about this wound?’
Strout went into some detail about the bullet’s passage through Nash’s body, nicking the ilium, depositing some chips of bone in the greatest gluteal muscle before exiting through it. He went on, at Pullios’s careful prodding, to make the point that this wound had in all probability been the first one.
‘And why do you say that, doctor?’
Strout recrossed his legs. ‘Well, the second shot was fatal, almost immediately. It went right through the heart, struck a rib and ricocheted up into the left lung. Now, unless Mr Nash stood a while on his feet after he was dead, we can assume he fell within about a second of being shot. And if he was on the ground, the bullet through his pubic area would have been lodged in the deck, not on the side under the railing, which was, I believe, where it was found.’
Hardy objected, citing relevance, but he knew the testimony was relevant to what Pullios was doing, which was planting in every juror’s mind a vivid picture of the actions of a jealous and jilted suitor. First he would shoot his victim in the crotch. Then he would aim for the heart, killing him after he’d maimed him as a man.
Chomorro overruled Hardy, but Pullios didn’t pursue it. She graciously thanked Dr Strout and told him she had no further questions.
So the dike was already leaking where he’d foreseen no damage. He had to try and put his finger in.
‘Dr Strout,’ he began. These.25-caliber bullets that produced the wounds in Owen Nash. For the jury, can you describe their impact as opposed to different sized slugs?‘
Strout, no less relaxed than he’d been with Pullios, sat back in the chair. He looked directly at the jury and answered in his pleasant twang. ‘Well, they’re in the lower-end range according to size for handguns. The smallest is a.22 and it’s slightly larger – the diameter is slightly larger than that.’
‘Thank you. Now was there anything you could determine from your autopsy about the load in the bullet itself? The amount of powder in the casing?’
Strout got thoughtful. This was the kind of question he liked. ‘Judging from the fact that the second bullet didn’t make an exit wound, it could not have been a particularly heavy load.’
‘About average, you’d say?’
‘Yes, about average.’
‘So, Dr Strout, what we’ve got here is a small bullet with about an average powder load hitting a full-grown man. Would the impact of that bullet necessarily throw the man backward, even if it hit him squarely in the chest?’
‘Objection, Your Honor. That’s not Dr Strout’s area of expertise.’
‘What’s the point, Mr Hardy?’
‘Ms Pullios went to some length to bring out Dr Strout’s belief that the first shot was to Mr Nash’s pubic area.’
Chomorro chewed on it a second, then overruled Pullios.
‘Dr Strout. Is it possible that a man, even if hit in the heart by a bullet of this size, with this sort of charge behind it, could remain standing for half a second, particularly if he were moving toward the gun when the bullet was fired?’
‘Yes, I’d say so.’
‘And would that be enough time for his assailant to get off another shot with an automatic such as the murder weapon?’
‘Half a second? I’d say it’s possible.’
‘That’s all. Thank you, Doctor.’
‘What bothers me is I didn’t even see it coming.’
‘You did fine,’ Fowler said. ‘I doubt it’s relevant anyway. Who cares where the first shot went?’
They were taking a ten-minute recess, still sitting at the defense table. Hardy explained what he thought was the connection and Fowler doodled on a pad for a moment. Then he said, ‘Look, Diz. It doesn’t tie directly to me, therefore it’s not relevant. It’s speculation, conjecture, call it what you will, but keep me right in the center of this picture or we are in trouble.’
‘You were in the center of that, Andy.’
Fowler, showing displeasure for one of the first times, shook his head. ‘No,’ he said, ‘the murderer was.’
After Strout, they heard from a ballistics specialist who identified the murder weapon as a Beretta model 950, a single-action semiautomatic that held eight rounds of.25 ACP. The gun, registered to May Shinn, was introduced as Peoples Exhibit 1, and Hardy could tell the jury was surprised by the size of it – it was very small, with a barrel only two and one-half inches long.
The bullet that had passed through Nash’s body had been found imbedded in the side paneling of the boat behind the wheel. There was a fifteen-minute slide show on the similarities of the striations on the recovered slugs with others fired from the same gun. When the lights came up, so did a few heads that had been nodding. Pullios was explaining the obvious – how this testimony conclusively proved that Exhibit 1, May Shinn’s gun, was the murder weapon.
Big deal, Hardy thought, and chose not to cross-examine.
The fingerprint specialist was a young black woman named Anita Wells. She testified that there were two sets of identifiable fingerprints on the gun – those of May Shinn, the registered owner, and of the defendant, Andy Fowler.
Hardy had badly wanted to get the May Shinn fiasco introduced into the record, and he knew Pullios had no choice but to let him if she wanted to get Fowler’s prints in, which she had to do. It was, he was sure, why she had called Wells on day one.
When Pullios had finished a cursory interrogation. Hardy went to the center of the courtroom. ‘Ms Wells,’ he asked, ‘have you had occasion to test People’s Exhibit One for fingerprints more than once?’
Wells looked up at the judge, then at Pullios. She nodded, and the judge told her to speak up, answer with words. ‘Yes,’ she said.
‘And when did you first see this gun?’
The witness thought a minute. ‘Around the beginning of July.’
‘And at that time, when you tested it for fingerprints, can you tell the jury what you found?’
Pullios stood up and objected. ‘Asked and answered, Your Honor.’
Hardy shook his head. ‘I’ll rephrase it. The first time you looked, did you identify the defendant’s fingerprints?’
Wells swallowed. ‘No.’
‘Did you identify any fingerprints at that time?’
‘Yes. May Shinn’s.’
‘May Shinn. The registered owner of the gun. And where were Ms Shinn’s prints?’
‘There were several clear impressions, on the barrel and the grip.’
‘All right. Now after you identified Ms Shinn’s fingerprints, what did you do?’
‘Well, first I verified the comparison – they were what I was looking for.’
‘So, in other words, you went looking for May Shinn’s fingerprints? Isn’t that true?’
‘Yes.’
‘And after the case against Ms Shinn got thrown out, you went looking for Andy Fowler’s fingerprints, and you found them, isn’t that true?’
Pullios objected, but Hardy didn’t want to let this one go. ‘Your Honor, when the case against Mr Fowler gets dropped, does the prosecution plan to go looking for other prints at that time? The defendant’s fingerprints on this gun are critical to the case against him. The jury can’t know too much about how they were identified.’
Pullios wasn’t quitting either. ‘Ms Wells has already testified that they were on the gun.’
That’s true, Mr Hardy. We’re talking about Mr Fowler’s fingerprints, not May Shinn’s. You are arguing evidence that hasn’t been presented in this case. Try not to confuse the jury by referring to what is not properly before it.‘
Hardy felt this was a big loss. He stood a moment, gathering his forces.
‘You still with us, Mr Hardy?’ Chomorro asked.
Hardy had anticipated Chomorro’s antagonism from the bench, but now, at its first appearance, he realized how powerful its influence could be. If Chomorro was allowed to patronize him, the jury would pick up on it and his credibility would suffer. Andy Fowler had been right – this wasn’t an appealable issue. It had been bad strategy.
‘Of course, Your Honor,’ Hardy said mildly. ‘I was waiting for your ruling.’
Chomorro’s face tightened slightly. ‘I thought I’d made that clear. The objection is sustained.’
This time Hardy simply nodded. He spread his hands to the jury and smiled at them. ‘Sorry, my mistake.’ But the message was clear – he was a reasonable man, waiting to make sure he understood the judge’s ruling. There was no antagonism between himself and Chomorro. He went back to Anita Wells. ‘Can you tell us how long a fingerprint can last?’
‘I don’t understand.’
‘I mean does it go away after a while by itself? Does it evaporate?’
‘No, fingerprints are oil-based. They last until they’re wiped away.’
‘So Mr Fowler’s fingerprints on the clip inside the gun might not have been placed there at any time near to when the gun was found or fired?’
‘That’s true.’
‘Did you find anything indicating it might not be true?’
‘No.’
‘So Mr Fowler’s fingerprints might have been on the gun for as long as a year?’
Pullios stood up. ‘Asked and answered, Your Honor.’
‘I’ll withdraw it,’ Hardy said. ‘No further questions.’
‘It’s early, but I’d put us ahead on points.’ They had their coats off, their ties loosened. From Fowler’s law office high up in Embarcadero One, the city glittered out the window, Christmas lights starting to appear below.
Hardy was not so sure. ‘I wanted to get Shinn in.’ He had wanted to call May as a defense witness from the beginning, but Fowler wouldn’t hear of it. What could she possibly say that could make a difference, he had argued. Fowler hadn’t seen her, after all, in the four months before the murder. To say nothing of the fact that she had turned down Hardy’s several requests for interviews. She remembered him from Visitors Room A, thank you.
The prosecution, they both figured, wouldn’t go near her. She would be understandably hostile to the San Francisco district attorney’s office. So, strangely enough, the other central figure in this case would apparently play no active role in it. Hardy did not like that at all.
Andy had poured himself a neat Scotch from a tumbler on the sideboard and now took a drink of it. He stood and carried the glass over to the window.
Hardy watched his back a minute. ‘You haven’t seen her, Andy?’
May Shinn was still the issue, the looming specter, an unmentionable apparition. The chronology could not have been simpler: a year ago Andy Fowler had been in love with May Shinn; in mid-February she had dumped him for Owen Nash; in July he had sacrificed his career for her; in October he had been arrested for murdering her lover; and in the two months that Hardy had been seeing Fowler every day, he had never, to Hardy’s knowledge, made any effort to contact her.
Fowler’s shoulders sagged. ‘No. What would be the point?’
‘It just seems you might have.’
Fowler gave it a moment, then nodded. ‘I suppose it does.’ He returned to the chair behind his desk and sat heavily into it. ‘What do you want me to say?’
‘I don’t know. Maybe she could help us. There’s no doubt she can hurt us.’
‘How?’
Hardy shrugged. ‘Maybe she knows something. God knows we’ve tried everybody else, and we’ve got nothing resembling a lead for “X”.’
Fowler sipped and stared. ‘No, Diz, I don’t think so.’
Suddenly a frightening thought occurred – Andy was still carrying a torch. Hardy had kept the secret of Shinn’s other clients to himself (excluding Glitsky), but he was coming around to thinking it might do Andy some good to know the truth, to face the truth. If nothing else, it might break him out of his reluctance to use what May might have.
‘You know,’ he said, ‘there were other men…’
Fowler pushed his glass, a quarter turn at a time, in a circle on his desk. ‘What?’
Hardy spent five minutes explaining to Andy – checking the phone records, proving that May had lied to him. Fowler stared into space behind Hardy’s head. ‘Why are you telling me all this now?’
‘Because your life is at stake here, Andy, and I think maybe you’re somehow planning on getting found not guilty, putting this trial behind you and doing nothing to jeopardize what you still think is your relationship with this woman. And if that’s the case, you ought to know what that relationship really was.’
He took a moment. ‘I know what it was. That’s become clear to me. Before you told me this.’
‘Well?’ Hardy asked.
‘Well what?’
‘Maybe you could talk to her, maybe she knows something.’ He paused, waiting for Andy. ‘About “X”, if nothing else.’
The ex-judge, suddenly looking old and tired, leaned his head back against the chair and blew at the ceiling. ‘Don’t you think she would have mentioned that in her own defense last summer?’
‘She never got the chance.’
‘She got plenty of chance. She doesn’t know.’
‘You think.’ He had to drive it home. ‘But you thought she had cut off her other clients for you, remember? She wasn’t supposed to be sleeping with anyone else.’
Fowler pushed his fingers into his eyes. ‘There must be some aphorism here about old fools and young women.’ He pulled his hands away from his face. ‘Okay, okay, do what you’ve got to do.’
When Hardy got home at eleven the house was asleep.
There was a Redi Delivery Service box on his front porch when he walked up and he opened it in his office – the dailies. Only death-penalty defendants, who got them free, and people as rich as Andy Fowler, who could afford them, got daily transcripts. One hundred eighty-eight typed pages of today’s transcripts that he ought to review before tomorrow. Maybe someone had said something at the trial today he hadn’t heard, or listened to carefully enough.
He saw Frannie’s note by the telephone. Elizabeth Pullios had called with the message that the prosecution was adding May Shinn to their witness list ‘re Fowler knowledge gun on boat.’
Shinn again. What did that woman really know?
Was this only the second day? He couldn’t imagine ever getting to sleep. He’d already tried twice, once a little after midnight, then again around two. Now the clock by his bed read 3:15 and he’d just had a rush of adrenaline, remembering how he’d been so unsuspecting of Strout’s testimony and then there had been a snake in it.
He recognized in a flash what had awakened him -Tom and José. He’d noted their presence both in the courtroom and on the witness list and, as he’d done with Strout, had reviewed and reviewed and finally reached the conclusion that neither of the Marina guards had anything damaging to say about Andy Fowler.
What had jolted him awake was the realization that he was wrong again – he had to be wrong. Pullios wouldn’t call them to pass the time of day. There must be something there and he hadn’t seen it.
Wearily, he threw back the covers and padded barefoot to his office.
‘We talked to her last night,’ Pullios said. ‘I think she’s tired of all this.’
‘It does get that way.’
It was nine o’clock, and Hardy was leaning over the prosecution table, talking with his opposing counsel about May Shinn. ‘You want to tell me about her testimony?’
There had been an element of courtesy in Pullios’s phoning him to let him know they were calling Shinn as a witness. It made him nervous.
‘You know Peter Struler? He’s been handling this. He’s interviewing her today. Of course you can review the transcript.’
Hardy said he planned to. ‘But you saw May last night? How’d you get her to agree to talk to you?’
‘You know, she’s very bitter about all this – all the litigation, the way she’s been treated. I thought we might make some gesture. Well, Sergeant Struler did.’
Hardy waited.
‘You know we’ve been holding all of her clothes, personal items, knickknacks, things like that, from the Eloise. The sergeant thought we could cut through the red tape and at least get that stuff back to her. None of it is evidence here, strictly speaking.’
‘What is evidence here?’ Hardy said.
‘Well, her testimony will be.’ Pullios smiled sweetly. ‘Did your client tell you how he found out that the gun was on board, exactly where she kept it?’
Andy Fowler still appeared as exhausted as he had in the office the previous night. ‘Well, there’s the missing link if she does it,’ he said.
Hardy kicked the wastebasket; it crashed against the wall, then fell on its side. ‘You knew she knew this! All along you knew it!’
Jane had come to the courthouse with her father and had accompanied them into their conference room. ‘Dismas, for God’s sake…’
A guard opened the door and asked if everything was all right in there. Hardy told him it was and good-bye.
Fowler, seemingly unmoved, shook his head. ‘She wasn’t testifying, remember? Why do you think I didn’t want to call her ourselves?’
‘Well, now she is. How could you not tell me this?’
Fowler said nothing, then, ‘Maybe I can talk to her now.’
‘Last night you couldn’t, though, right? Nice timing on the change of heart. Goddamn it, I’ve at least got to have the facts, Andy. I can’t defend you without them. Jesus, you know that.’
‘I honestly didn’t think it would come up, Diz.’
Hardy put both hands on the table and leaned over. ‘Well, it’s come up. How about that? Is there anything else you want to tell me that you don’t think is going to come up?’
Jane cut in. ‘Dismas, come on.’
He turned on her, trying to keep his voice under control. ‘You know what this is, Jane? Your dad’s right -it’s the missing link. There was no way they had first-degree murder unless he knew the gun was on board. Without that there’s no way they could prove he’d premeditated it.’
He’d only had two hours of sleep. His stomach was churning and his head buzzing with four cups of espresso. He had planned this argument as his ace in the hole, ready to unleash it during his closing argument. It was, in fact, a crucial point in his finally coming around to a belief in Andy’s innocence.
He had even asked Andy directly, early on,‘Did you know the gun was on the boat?’ Just like that. Couldn’t have been clearer. And he had looked right at him, figuring it wouldn’t come out, and lied just like he had lied about not ‘knowing’ Owen Nash. No wonder he hadn’t wanted May on the stand.
‘I’ll tell you something, Andy,’ he said, ‘I’m tempted to withdraw.’
‘Dismas, you can’t!’
‘Yes, I can, Jane. You’d be surprised.’
Fowler wagged his head back and forth. ‘Nothing’s changed, Diz. I still didn’t do it, if it helps you to hear it again. I never claimed my behavior with or about May was entirely rational, let alone sensible. But -’
‘Jane,’ Hardy said, ‘could you leave us alone a minute?’
‘It’s okay, honey, go ahead,’ Fowler told her.
The door slammed after her but it barely registered.
‘Listen up, here, Andy,’ Hardy said. ‘I’m not stupid. Yes, May has had you off-center and that may explain a lot. But you’re also acting like nothing’s changed, above it all, still the judge, even though you happen to be on trial for your life. You’re still trying to save face, as though nothing you did or didn’t do could matter because you’re the Judge and a fine fellow and you want people to still see you that way. Forget it, Andy. That’s all over. You’re on trial for murder here. Trying to save some image so you won’t look foolish or bad or whatever to me or anyone else is a total waste and dangerous. If there’s anything else you want to tell me, tell me now. It doesn’t matter a damn what I think of you, what anybody thinks of you. I know that goes cross-grain to the way you’ve lived your life, but it’s true. The only thing that matters about you now is that you didn’t kill Owen Nash.’
Fowler’s eyes were bloodshot. ‘I didn’t,’ he whispered.
‘I don’t think you did,’ Hardy said. ‘That’s the only reason I’m still here.’
Hardy had been ready to stipulate that Owen Nash had been shot on the Eloise sometime during the afternoon of Saturday, June 20, as well as to several other timing and forensic issues. Pullios wanted to talk to everybody on the witness stand and would stipulate to nothing. Fowler thought it was because she had few enough facts to work with, and without a parade of prosecution witnesses her case would appear to have less factual support.
So they had to sit and listen to José relate how the Eloise had already been out when he’d come on around seven o’clock or so on Saturday morning, and had been back in at its slip the following morning. Hardy had a point or two on cross. He wanted to make sure that when José and Tom had boarded the boat on Wednesday, neither of them had tampered with it. José told him he hadn’t boarded the Eloise or seen anyone else near it. Tom then testified that the Marina had been nearly empty all that day – the weather had been terrible, and he hadn’t seen anything of Nash’s boat. It hadn’t yet gotten back in by the time he got off for the night.
When Pullios had finished with Tom, Hardy stood up. He didn’t want the jury to become somehow lulled by unquestioned testimony, to his disadvantage, even if it appeared unimportant.
‘Mr Waddell,’ he said. ‘Did you check the Eloise on Sunday when it was at its slip?’
‘What do you mean, check it?’
‘Go aboard, see if it was secured, anything like that.’
‘No, I didn’t.’
‘When was the first time you went aboard the Eloise.’
‘That was with you on the following Wednesday night.’
‘I remember. And was the cabin to the boat locked when you went aboard?’
‘No, sir.’
‘In other words, anyone could have gone aboard the Eloise between Sunday and Wednesday night -’
‘Objection. Calls for a conclusion from the witness.’
‘Sustained.’
Hardy took a beat. He didn’t really need it. He thought he’d made his point and excused the witness.
He half-expected Pullios to do something on redirect, but she let Tom go. Hardy would take it – he had read over everything both Tom and José had told either him or Glitsky and had found nothing that looked like it could bite him. And there hadn’t been. It gave him some hope.
Emmet Turkel combed back his forelock of sandy hair and smiled at Pullios. A character with a gap-toothed grin, the private investigator from New York had an old-fashioned Brooklyn accent. He had obviously spent many hours on the witness stand. Just as obviously, he admired the looks of the prosecuting attorney. The jury noticed and seemed to be enjoying it.
It was early afternoon, and Turkel and Pullios had chatted about the former’s professional relationship with the defendant, covering the same ground as his tape.
Andy Fowler had hired him by telephone on February 20. Turkel had some other business to clear up, but he made it out to San Francisco by the next Wednesday, February 26, met with the judge at ‘some fancy pizzeria -hey, what you folks out here put on a pizza!’
It had taken him, Turkel said, only a few days to find out why May Shinn had ended her professional relationship with Andy Fowler. When Pullios asked him why that had been, he answered it was because she had gotten herself a new sugar daddy.
Hardy had objected and been sustained, but the damage was done. None of Turkel’s testimony, covering Fowler’s relationship with May, his efforts to hide his activities, and his character in general, put the defendant in anything like a positive light.
Still, Hardy had at least known what was going to be coming. Turkel didn’t present anything in the first two hours that he hadn’t prefigured in his taped interview with Peter Struler months earlier. No surprise, but definitely no help.
Pullios had introduced the March 2 page from Fowler’s desk calendar showing Owen Nash’s name and had it marked as Exhibit 7. Turkel said that had been the day he had informed Fowler of the results of his investigation.
Pullios asked him if Mr Fowler had given Mr Turkel any indication of what he was going to do with the information.
‘No, not then,’ Turkel said.
‘Did he at any time?’
‘Nah, not really, he was just kidding like, you know?’
‘I don’t know, Mr Turkel. I’ll repeat the question – did Mr Fowler say anything about Mr Nash at any time to you after you’d told him he was Ms Shinn’s current… paramour?’
‘Yeah, well, we talked again sometime around April, May – I called him, just keeping up contact, you know, and I ask him does he still have his problem with this guy Nash, did he want I come out and clear it up for him?’
‘Clear it up?’
‘Yeah, you know.’
‘You asked Mr Fowler if he wanted you to kill Mr Nash?’
‘Well, you might take it that way, but -’
‘Can you tell us Mr Fowler’s exact words, please?’
‘But I’m telling you, we was kidding. You know, people kid all the time.’
‘Nevertheless, Mr Turkel, if you could tell the jury what was said.’
Turkel glanced at Fowler and shrugged theatrically. Chomorro slammed his gavel and told him to refrain from the gestures and answer the question.
Turkel sighed. ‘I said “Hey, I’m doin’ nothin‘ the next couple weeks, I could use a vacation, fly out there, do this guy.” The judge said, “No thanks, if I want the man disposed of, I’ll do it myself.” ’
‘That’s clear enough,’ said Moses McGuire. ‘No jury would buy that -’
‘You never know what juries are going to think,’ Hardy told him.
‘Yeah, but Turkel was right. People talk like that all the time, it never means anything.’
‘Except when it does.’
It was Wednesday night. Not exactly date night, but Frannie had invited her brother over. When Hardy got home at seven-thirty she poured him a beer, told him she was giving him a special dispensation on his no-alcohol-during-the-week policy and guided him to his chair in the living room. He would be a better lawyer if he could recharge for a while. Moses would be around in a minute or two. They were having a fancy leg-of-lamb dinner and he was going to sit and eat it.
His plan had been to keep reading, reading, reading -the dailies would be in later tonight, probably also May Shinn’s transcript. He wanted to go over every word Turkel had said – Chomorro had called it a day after Pullios finished with the private investigator and Hardy would start cross-examining him tomorrow.
Suddenly he realized enough was enough. Frannie was right, he was too beat to think. He finished his beer and lit the fire, turned on the Christmas-tree lights and listened to John Fahey play some seasonal guitar.
And now Moses was here. Frannie was humming, bustling around between the kitchen and dining room, setting a fancy table. He was having another beer. The claustrophobic feeling that had enveloped him for the past two days was letting up. So was the fatigue.
The real problem,‘ he said, ’is that Turkel’s in it, period. It’s not so much his testimony, although that’s bad enough, but the fact that Andy hired him at all.‘
‘What’s the matter with that? He wanted to find out what had happened, why May dumped him.’
‘So he hires a private eye? Would you hire a private eye?’
Moses shrugged. ‘He was a working judge. Maybe he didn’t have the time personally. I don’t know… what did he tell you?’
‘That’s what he told me. But what am I supposed to sell to the jury? I mean, we’ve all had relationships end, right? Do we go three thousand miles for a private eye to keep chasing it?’
Frannie was in the archway between the living and dining rooms. ‘I would chase you to the very ends of the earth,’ she said. ‘Meanwhile, dinner is served.’
She’d gone all out. The soup was a rich consommé with tapioca and sour cream. The lamb, stuck with garlic and rubbed with rosemary and lemon juice, was served with potatoes and a spinach dish with nutmeg and balsamic vinegar. She even had a half glass of the outstanding Oregon Pinot Noir. They talked about Christmases past, Moses’s memories of his and Frannie’s parents, Hardy’s memories of his. The trial wasn’t there.
After Moses left, Hardy and Frannie cleaned the table and did the dishes together, catching up on each other, trying out names for the new baby, getting back to some teasing.
‘Would you think I was a terrible human being if I didn’t work tonight?’ Hardy asked.
Frannie’s eyes were bright. ‘I don’t think I could forgive that.’ She put her arms around him.
‘How about if I got up early?’
‘How early?’
‘Real early.’
Frannie gave a good imitation of thinking about it. ‘So what would you do instead? Of working, I mean.’
‘Maybe go to bed, get a little sleep.’
‘Which one?’
Real early turned out to be four o’clock, but he woke up refreshed, the growing sense of panic he’d been feeling somehow dissipated. He got into some running clothes -long sweats and a thermal windbreaker – and chugged his four-mile course.
By quarter after five he had showered and dressed and was at his desk with yesterday’s dailies and the transcript of May Shinn’s tape with the D.A.‘s office.
It was every bit as bad as he’d feared.
Q: You had stopped seeing Mr Fowler by this time, isn’t that right?
A: Yes, I think it was early in March. He just caught me at home. Normally I screen my calls but I was expecting Owen so I picked it up.
Q: And what did Fowler say?
A: He said he was worried about me.
Q: Why?
A: He said he’d heard I was seeing Owen. I guess he’d heard bad things about him or thought he had. He said he wanted to make sure I was all right.
Q: What did you tell him?
A: I mostly tried to say he was being silly. Look, I didn’t want to hurt him. Then he said if Owen ever hurt me in any way I should come to him, I could always come to him. So, you know, I was trying to keep it light, I told him, if anything, Owen made me feel safer than he ever had. At least Owen had taken the gun.
Q: Which gun, Ms Shinn?
A: The gun. I never liked to keep it around and I’d asked Andy to take it home with him -I hated it in the house. But he wouldn’t do it, being a judge…
Q: Then what?
A: I told him we put the gun on board the Eloise in the desk right next to the bed in case there was an emergency and I needed it, but at least it wasn’t at home anymore. It made me feel safer.
Q: And what did the judge – did Mr Fowler – say to that?
A: Nothing, really. Then he asked me why I had stopped seeing him. It was really hard, but I told him… I was in love with Owen.
Q: How did he react to that?
A: He said he thought I’d been in love with him. I told him I liked him, that he had been very important to me. He asked what if Owen weren’t in the picture anymore, did I think I could see him again?
Q: And what did you say?
A: I said I was sorry but I just didn’t think so. Owen had changed me, or I had changed myself. I just wasn’t the same anymore, I was a different person. He said if Owen wasn’t there maybe I would be – the way I was, feel toward him the way I had. I thought Owen was always going to be there…
Q: It’s all right, Ms Shinn, it’s okay, take your time.
A: I said I didn’t know.
Q: Didn’t know what, May?
A: What I’d do if Owen wasn’t there. I couldn’t think about that. I believed him, Owen I mean. He wasn’t going to leave me. Then Andy… the judge… said what if something happened to Owen. What would I do then?
Q: And what did you say to that?
A: I think I said I didn’t know, I didn’t even want to think about something like that.
Hardy ran into Glitsky under the list of fallen policemen in the lobby of the Hall of Justice. It was 9:20. Court went into session in ten minutes and Andy Fowler had not yet arrived. Jane was calling his home, as she already had done twice since nine o’clock; there had been no answer either time.
Hardy told Abe a little about May Shinn’s damaging testimony.
‘Maybe Fowler just decided to cut and run.’
‘He wouldn’t do that. He put up a million dollars’ bail, Abe. He surrendered his passport.’
Glitsky, more knowledgeable in such matters, smiled. ‘You want a new passport? Give me ten minutes. Cost you fifty bucks.’
‘He wouldn’t do it.’
‘A million dollars doesn’t stand up against a life in the slammer. And for a man like Fowler… you know how long a judge’s life is going to be once he gets there? That’s the good news – he won’t suffer very long. The bad news is he’ll suffer real hard.’
‘He’s not going there, Abe.’
‘Right. I forgot.’
Jane came up, shaking her head no.
‘You know,’ Hardy said, ‘your dad is making me old before my time.’
‘He’ll get here.’
‘So will Christmas, Jane.’
Glitsky looked at his watch. ‘Contempt time starts in about three minutes.’
‘Yes, Mr Hardy?’
‘Your Honor, Mr Fowler called from a gas station about twenty minutes ago. He has car trouble. He was taking a cab from where he was – it shouldn’t be more than a half hour.’
Chomorro spent a minute rearranging things on the bench. He tried not to betray how angry he was and was not entirely successful. ‘Ms Pullios?’ he asked.
‘What’s our choice, Your Honor?’
The judge tried to smile at the jury. Hardy knew this was another prosecution bonanza. Guilty and late. Thought he was still a big shot…
‘Well, ladies and gentlemen, why don’t you all go out and have yourselves another cup of coffee.’ The smile vanished. ‘Mr Hardy, if Mr Fowler is not here at ten-o-one, I’m going to cancel his bail and put him back in custody – is that understood?’
‘Yes, Your Honor.’
To say nothing, Hardy thought, of his own contempt if it turned out that Andy had left the country or taken off- it wasn’t recommended procedure for attorneys to lie to the court, as he had just done. But what was his option?
He got up from the defense table and went back through the swinging door to the gallery, where Jane was sitting next to Glitsky, who had stayed around to view the proceedings.
‘What if he doesn’t show?’ Abe said.
‘Thanks, Abe, the thought never occurred to me.’ He looked at his ex-wife. ‘Any ideas?’
‘About what?’ Pullios had left the prosecution table and was standing at the end of the aisle, from where she just happened to overhear.
Hardy turned quickly around. ‘Lunch,’ he said. ‘We’re trying to decide between Chinese and Italian.’
How much had she heard? Whatever, she gave no sign. ‘It’s going to be a long day,’ she said. ‘Chinese, you eat it and a half hour later you’re hungry again. I’d do Italian.’ Her eyes left Hardy and went to Glitsky. ‘Hello, Abe. I almost didn’t recognize you at the defense side.’
The sergeant nodded tightly. ‘The other side was filled up,’ he said.
Pullios decided against whatever she was going to say, then moved crisply back through the gallery.
‘Bitch,’ Jane said.
Hardy said nothing. He crossed one leg over the other, looked at his watch and waited.
‘Your car broke down – the clutch went out. You called me from out on Lombard and took a cab.’
It was 9:58. Andy Fowler strolled up the center aisle as though he had the world by the tail. He shook Hardy’s hand and kissed his daughter on the cheek. Hardy thought he’d give him the short version and fill it in later.
‘My car is out in the parking lot. How about if I had a flat and they fixed it?’
Hardy sometimes wondered if the reason he hated to lie was because once you started it got so hard to remember exactly what you’d said. Had he told Chomorro it was the clutch? Or was it just car trouble? He knew to keep it simple. He probably kept it simple. ‘All right, it was flat. Jesus Christ, Andy, where the hell were you?’
Fowler had an embarrassed look. ‘May’s,’ he said quietly. ‘I finally went to see May.’
Before Hardy could react, the clerk was calling the court to order. The jury, by and large, hadn’t left the box. It was precisely ten o’clock.
Hardy didn’t hope to get much out of Turkel. The private investigator was wearing a turtleneck and a lime-green sports jacket. After he was sworn in he again made himself comfortable in the witness chair, making eye contact with the jury.
Hardy let him perform awhile, wasting time pretending to read his notes at his desk, then went to the center of the courtroom. ‘Mr Turkel,’ he began, ‘when Mr Fowler first called you, back in February, how did he sound?’
‘Objection. Conclusion.’
‘Sustained.’
Hardy tried again. ‘Can you recall any of the conversation you had, exactly?’
Turkel still had eyes for Pullios, but she seemed to have antagonized him somewhat by pushing yesterday – the private investigator hated rinky-dink testimony – especially being forced to give it by the rules of the court. He was now giving Hardy his full attention.
‘Well, the judge said, ’Hi, Em,‘ asked if I was busy and I said ’Yeah, a little,‘ like I always do.’ He smiled at the jury. ‘Trade secret.’
Pullios spoke up. ‘Your Honor…’
Chomorro leaned over. ‘Just answer the questions.’
‘Sure, Your Honor, just like I did yesterday.’ Chomorro, not getting it, nodded. ‘That’s right.’
Hardy thought he did get it… a prosecution witness deciding he might be able to do something for the defense. Cover your ass two ways to Sunday. ‘Go on,’ he said.
‘All right, then the judge said -’
Chomorro interrupted. ‘Mr Turkel, please refer to Mr Fowler either as Mr Fowler or as the defendant.’
Reasonable, Turkel agreed. ‘Sure your Honor. Sorry again.’
‘Let’s start again, shall we?’ Hardy said. ‘How long have you known the defendant?’
‘Your Honor? Relevance?’
Now Hardy looked to the jury. ‘Your Honor, I’d like to have Mr Turkel be able to get in a word of testimony at some point during this cross-examination. His relationship with the defendant is relevant if we’re to understand the context of the actual words used in their discussions together.’
This, of course, directly related to the testimony yesterday about Andy saying he’d in effect kill Nash. But Hardy was beginning to think if he could get Pullios running she might trip on her own feet. Chomorro overruled her and Turkel got to answer.
‘About four years, I’ve known Mr Fowler about four years.’
‘In what capacity?’
‘Mostly professional. Referrals, like that. But we get along okay. We played golf together a coupla times.’ Turkel looked at the jury again, explaining. ‘He saw me wear this nice green coat in court one time, figured I’d won the Masters.’
This time Chomorro said nothing. Good. Hardy turned around. Fowler was smiling, some of the jury would notice that.
‘All right, so the… defendant was rather more than a professional acquaintance but less than a friend?’
‘Objection, Your Honor, leading the witness.’
‘You’re allowed to do that on cross, Ms Pullios. Overruled.’
Hardy took a breath and held it. Here was an eccentric on the stand, clearly liked by the jury, and for some reason he was being thoroughly harassed by the D.A. ‘One moment, Your Honor.’
Hardy went back to his table and pretended to read more notes. There really wasn’t any testimony of Turkel’s he believed could help his case. The bare facts were pretty damning – Andy had hired him to find out why May had left him, then Turkel had found out and told him about Owen Nash. And you didn’t simply get information for the hell of it. Once you had it, at least the temptation was to do something with it… not, he thought, too much of a stretch for someone to believe that what Andy had done was to identify his enemy, and why would he do that if he wasn’t planning on acting against him…
Still, at this moment, Turkel on the stand somehow had made Hardy feel – and perhaps the jury as well – that Andy was a good guy and that the powers arrayed against him were nitpickers and bureaucrats and maybe worse. Leave it at that. He turned around and spoke from the defense desk.
‘I have no further questions of this witness.’
As it turned out they went for Chinese. Andy said he was buying – which he always did. Hardy, Jane and her father caught a cab outside the Hall and got to Grant Street, the center of Chinatown, in about eight minutes. All the way up, Hardy sat silently. He didn’t know how long he could keep this up. The effusive, charming Andy Fowler, his client, was wearing him down.
‘I had to see her,’ he was saying. ‘I was certain she’d see me, tell me why she would want to testify against me.’
‘What did she say?’
The answers were all there. ‘You know how they get you,’ he said in the voice of reason. ‘She lost sight of what the prosecution, the D.A.’s office – what they were doing.‘
‘What were they doing?’ Jane said.
‘They had held back a lot of her valuables from the Eloise and they put things to her so that the point seemed to be that coming down to be a witness was essentially a formality so that she could get her things back. They’ve been inundating her with paper. I just didn’t want her to be taken in, misled. She told me she did not have anything to say against me – she, of course, knew I hadn’t killed Owen Nash, so what could be the problem? But now she’d promised them…’He shook his head. ‘So I explained to her the appearance of the connection about me knowing the gun was on the boat…’
The cab arrived at the restaurant and they got into a booth with a curtain. The dim sum began to arrive – pork bao, shark’s fin soup, pot stickers. Hardy tasted none of it. Finally he had to say something. ‘You realize, Andy, that if Pullios finds out you tried to influence May’s testimony, all of this will come out, making you look even worse than you do now.’
Andy seemed unfazed. ‘May and I had a good talk. She understands now. Why should it come out?’
‘A better question is why do you think you can keep it locked up?’
Fowler spooned up some soup and said to his daughter, ‘This man is too pessimistic,’ and then to Hardy, ‘Listen, Diz, she’s a good woman, I don’t care about her background. I know her… she is not out to get me. To the contrary, she is very upset with the prosecution people.’ He continued popping morsels of food. ‘This is an eye-opener for me, you know. When I was on the bench I liked to believe that we not only had an efficient crew out there but that there were certain established rules. We differed on the propriety of what I considered entrapment, which didn’t make me a prosecutor’s favorite, but by and large there was a community of the legal system. I’m finding the generally accepted rules don’t apply, at least not in this case. They’ve misled May about the gist of her testimony, and they were pretty slipshod, too.’
Hardy asked what they had done.
‘You’d think that since they were trading it for her cooperation they would check the inventory and make sure she got everything back. But evidently someone with the police had stolen the most important thing to her. So even without my intervention she’s not inclined to help them anymore.’
‘She’s already talked, Andy. I read the transcript this morning.’
Fowler shrugged. ‘She won’t say the same thing on the stand -’
‘She’ll perjure herself to help you?’
Fowler took a sip of tea. ‘She’ll say she was coerced at the interview, which in effect she was, and that under oath she just can’t remember -’
Hardy cradled his forehead in the palm of his hand. ‘Lord help me.’
‘What did they steal?’ Jane kept to the essentials.
‘Her favorite coat,’ Fowler said. Tightening his face… ‘Nash had given it to her. She said it was like a work of art, full-length goosedown. He got it in Japan for her. Remarkable design, colors…’
Hardy had to get back to business. ‘So what’s she going to say when they call her?’
‘Diz, relax, it’s completely understandable. Think about it. They’ve got to know she’s potentially a hostile witness anyway. She’s suing the City, for God’s sake. They won’t pursue it.’
Hardy wasn’t at all certain of that, but there was no arguing now – the deed had been done. If Fowler’s scenario transpired – an enormous if – then possibly he’d helped his case. But at what risk!
‘So what now? If you’re going to start seeing her again, do me a favor and at least wait until after the trial.’
‘We didn’t even discuss that.’
‘How did she behave with you?’ Hardy asked.
Fowler looked unhappy. ‘Well, to tell you the truth, it wasn’t very heartening, but, well, it was still good to see her, even if it seemed like the old feelings were gone for her. As though the whole experience had just worn her down. Everything, she said, had gone wrong for her, so it shouldn’t have been a great surprise that they’d stolen her coat, lied to her… She gave me the impression that… that she thought going on at all with her life was a waste of time. The whole question of her testimony didn’t seem to matter much, but if I thought it would be a help she’d try.’
‘Maybe she’s looking for something again,’ Jane said. ‘Maybe when this is all over…’
The judge nodded. ‘I suppose that’s what I’ve got to hope for. And that’s why I was late,’ he said, turning to Hardy. ‘I just couldn’t leave her that way, feeling so down. I… we just talked. I tried to convince her, especially if her money comes through, that there is a future.’
Hardy reached behind him and pulled the curtain, signaling for the check. ‘We’d better get back,’ he said.
Hardy thought the afternoon would have made a root canal look like a walk in the park.
In furtherance of her consciousness-of-guilt theory, Pullios called a succession of witnesses – including two Superior Court judges, several community leaders, a city supervisor and Fowler’s own clerk – and all of them testified that Andy Fowler had told them after the May Shinn trial had been canceled but before his own indictment that the first he had heard of Owen Nash, other than reading about him in the newspapers from time to time, was after his death. He had told one and all that he had no idea that Nash had been seeing May Shinn.
The only one Hardy saw fit to cross-examine was a Pat Shields, the silver-haired president of the Olympic Club, who had intimated that Andy Fowler and Owen Nash, as fellow members of the club, must have known each other.
Hardy had whispered to Fowler at the defense table. ‘Please tell me you really never knew Owen Nash.’
Fowler said he hadn’t, and Hardy, hoping at last he wasn’t being lied to, stood up.
‘Mr Shields,’ he said, ‘how long has Mr Fowler been a member of the Olympic Club?’
‘I’d say forever. Certainly longer than myself. He’s second generation.’
‘And Mr Nash?’
‘We’d been recruiting him for years. Quietly, of course, but… in any event, he joined about a year ago.’
‘So he was in the club for how long?’
‘A few months.’
‘A few months. He died in June and he joined in, when, November or December?’
‘Yes, I believe so. Around there.’
‘And did he come into the club every day?’
‘Well, we have two locations, you know, downtown and the golf course, so I couldn’t speak for both. But as to downtown, I’d say no, perhaps once a month.’
‘Six times?’
Shields lifted his shoulders. ‘Let’s say between five and ten. I didn’t count.’ He smiled affably. ‘It’s not like we keep tabs on members.’
Hardy turned friendly. ‘Of course not. The times Mr Nash came in downtown, did he come in for lunch or dinner, or to work out, or what?’
‘Mostly I’d say lunch, although that’s just an impression.’
‘All right. Well, let me ask you this. Did you ever see Mr Nash having lunch with Mr Fowler?’
‘No.’
‘Do you recall ever seeing Mr Nash and Mr Fowler in the club having lunch at the same time?’
‘No, not specifically.’
‘Not specifically? Do you mean you might have and you don’t remember? You just have an impression?’
‘No… I mean I didn’t see them together or at the same time.’ He glanced at the jury, showing signs of nerves. ‘It was just a figure of speech.’
‘Of course. How about sports? Squash, golf? To your knowledge, did Mr Nash play either of these with Mr Fowler?’
‘Not to my knowledge, no.’
‘Well, isn’t it a fact, Mr Shields, that the prosecution here asked you to check your reservations cards for both the golf course out by the ocean and the courts at the downtown location – tennis and squash – to see if Mr Nash and Mr Fowler had reserved time together?’
Shields frowned. Apparently this smacked of keeping tabs on the members. Even if one of them was on trial for murder, members were presumed to be gentlemen and were not to be checked up on. ‘Yes, that’s true.’
‘And did you do that?’
He nodded. ‘Yes. Yes, I did that.’
‘And did you find any record that Mr Nash had ever played any of these sports with Mr Fowler? Or even in an approximate time span?’
‘No…’
‘In fact, Mr Shields, isn’t it true that you have no indication whatever that Mr Nash and Mr Fowler knew each other or spent time in each other’s company in any way at all?’
‘Yes, I suppose that’s true.’
Hardy said he had no further questions.
Of course, it still didn’t prove Fowler had not lied to Shields about when he had known Owen Nash. Or if he had known Owen Nash at all. In fact, Hardy thought, here he had danced around with this man for the better part of a half hour and hadn’t really challenged his essential testimony in a substantive way. What was there to challenge? Like the other afternoon’s witnesses, Shields was a good man who no doubt was telling the truth. Fowler was a man charged with murder who was known to have lied in the past. Hardy could throw up smoke, but he doubted he could obscure that fact from the jury.
Glitsky came up through the gallery, pushed open the swinging door and strode into the courtroom proper. He was a well-known and respected police officer and his entrance, in itself, was not unusual. That he came to the defense table was, though not unprecedented, very much out of the ordinary.
Pullios was standing in what had become counsel’s spot in front of the bench. She was beginning to question Gary Smythe, Andy Fowler’s golf partner, fellow Olympic Club member and stockbroker. They certainly had done their homework – witnesses were coming out of the woodwork.
Glitsky leaned over, putting a hand on Hardy’s arm. Looking up at him, he thought he’d never seen the sergeant so drawn. There was a pallor underneath the pigment of his skin. His eyes seemed to have trouble focusing, and Hardy was reminded of cases of shell-shock he had witnessed in Vietnam. ‘Get a recess,’ he whispered. ‘We’ve got to talk, now.’
Abe Glitsky wasn’t given to histrionics. If he said ‘now’ he had good reason. Hardy nodded. ‘Excuse me,’ he said, interrupting Pullios, who had been in the middle of a question. She turned to face him, her expression unpleasant.
‘Yes, Mr Hardy?’ Chomorro said.
‘Your Honor, an emergency has come up. I wonder if the court would grant a short recess.’
‘Your Honor,’ Pullios fumed, ‘I’ve just begun with this witness.’
‘Ten minutes, Your Honor.’
Pullios gave Glitsky a questioning look.
Chomorro checked the wall clock. ‘If I give you ten minutes now we won’t have time on direct here.’ He took in the jury and gave them a weary smile. ‘How about if we call it a day today and pick up with Mr Smythe tomorrow?’
‘No,’ Glitsky said sotto voce to Hardy. ‘Don’t let them do that.’
Hardy stood. ‘That won’t be necessary, Your Honor. A couple of minutes will do.’
Which annoyed Chomorro. ‘Well, which is it, Mr Hardy? Do you want a recess or not?’ He directed himself to Glitsky. ‘What’s this about, Sergeant? Care to share it with the court?’
Glitsky was clearly torn. It was ingrained that cops didn’t work with the defense, even if there was a personal connection, such as he and Hardy. It got to be too much. He shrugged at Hardy, as much to say he tried. Then, to Chomorro and Pullios, ‘With counsel?’
The judge motioned them all forward and they clustered in front of the raised bench. Glitsky still looked pale. ‘This is unofficial, Your Honor, and I apologize for interrupting, but I’ve just come down from homicide.’
‘Yes?’
Glitsky took a breath. ‘It seems May Shinn is dead.’
‘Jesus Christ!’ from Hardy. Pullios hung as if poleaxed. ‘What?’
‘And we got two neighbors – independently – who read the papers, watched some TV.’ Glitsky turned to Hardy. ‘Both of them say they saw your man there this morning.’
‘Fowler?’ Pullios nearly yelled.
Glitsky turned back to her and nodded. The same.‘
At that moment Peter Struler pushed open the outer doors and started up the aisle, almost running. ‘I think this might make it official,’ Glitsky said.
NASH MISTRESS FOUND DEAD
Homicide Not Ruled Out
In Apparent Suicide
by Jeffrey Elliot
Chronicle Staff Writer
May Shinn, who for a short time last summer was the prime suspect in the murder of Owen Nash, was found dead in her apartment this afternoon, apparently a suicide victim. The body was discovered by Special Investigator Sergeant Peter Struler, who had had an earlier appointment with Ms Shinn following a statement she had given yesterday in the murder trial of former Superior Court Judge Andrew Fowler.
In spite of the appearance of suicide, spokespersons for both the police department and the district attorney’s office refuse to rule out homicide as the cause of death. Following the discovery that Mr Fowler had visited Ms Shinn in her apartment this morning, jurors in his trial have been sequestered and Mr Fowler himself has been placed into custody. Mr Fowler had been late to court this morning and had initially told the court he’d had car trouble.
As this paper goes to press the exact time of Ms Shinn’s death has not been determined. Her body was discovered slumped over a makeshift altar in her apartment, dressed in the ceremonial white robes of the Japanese ritual suicide known as seppuku, or more commonly, hara-kiri. Most other essential forms of that ritual were carried out as well, according to police sources (see box on back page). The altar had been strewn with papers from litigation Ms Shinn had been involved in related to charges brought against her by the grand jury and the district attorney’s office last summer.
Ms Shinn’s attorney, David Freeman, said he was ‘terribly shocked and saddened’ by the death of his client. ‘May Shinn has become another victim of the lack of due process in our courts,’ Freeman said. ‘Her illegal, premature arrest following the death of the man she loved put her into a downward spiral of depression from which there was no escape. One can only hope she has now found some peace…’
As Jeff Elliot was typing the last words into his computer, Dismas Hardy was drinking what must have been his twentieth cup of coffee. He sat, no place to go, on a yellow bench in the windowless visitor’s room at the morgue.
Strout was still inside, personally doing the autopsy on May Shinn. Locke himself had put in an appearance, as had Drysdale, Pullios and, of course, Struler. Glitsky had come in around eight-thirty and stayed to keep him company for a while. Hardy was not responsive.
He was still reliving the scene in Chomorro’s chambers after Struler had come in with the official word.
They were in Andy Fowler’s old office but all vestiges of Andy’s old WASP effects had been decorated away. The gray Berber wall-to-wall had been lifted and hardwood shined up beneath it. Inca or Aztec rugs lay under stuffed furniture in bold Latin designs. Photographs of Reagan, Bush, Quayle, George Deukmejian and Pete Wilson shaking hands with Leo Chomorro covered the back wall. The desk was heavy and black and, unlike Andy’s, nearly bare on its surface. Chomorro sat behind it, elbows on it, hands together.
Pullios leaned, arms crossed, against the bookshelves. Struler straddled a fold-up chair, and Glitsky stood by the doorway. Drysdale sat in one of the chairs next to Hardy, who tried to appear calm.
Chomorro addressed himself to Hardy.
‘Do you mean to tell me that you knew Fowler had been to Shinn’s this morning when you told me he had car trouble?
‘No, judge, not then. He told me at lunch -’
‘And how long were you planning to withhold this information?’
‘I don’t know.’ It was the truth.
‘You don’t know. Your client is suborning, threatening, possibly killing a prosecution witness -’
‘We don’t know that, Your Honor. There’s no hint of that -’
‘Not yet,’ Pullios said.
‘In any event, you thought you could keep this to yourself? At the very least, Mr Hardy, I’m going to have to report this to the State Bar.’
‘He did not threaten her,’ Hardy said, ‘and Struler here says she killed herself-’
‘It appeared she killed herself,’ Struler said quickly.
‘Fowler didn’t kill her.’
Pullios looked at him. ‘Like he didn’t kill Nash, right?’
Hardy kept his voice flat. ‘That’s right, Bets. How about, as a change of pace, we wait for the coroner’s report? Get a fact or two and find out what we’re dealing with before the accusations start.’
Chomorro broke it up. ‘Regardless of what Mr Fowler did or didn’t do, you’ve got a defendant going to visit a prosecution witness. At the very least, her testimony’s going to be no good.’
‘She’s not giving any testimony,’ Pullios said. ‘She’s dead.’
Chomorro shook his head. ‘I don’t know. I’m inclined to think we’ve got a mistrial here. Maybe we ought to start over fresh.’
‘I’d agree to that,’ Hardy said quickly. He could barely admit it to himself, but the thought still wouldn’t go away… had Andy killed May?
But a mistrial wasn’t to Pullios’s liking – she thought she had the thing won now. Hardy couldn’t say he blamed her.
‘I’m sorry, Judge, I don’t agree.’ She went on to argue that May Shinn was only one witness and that her testimony hadn’t, in the event, been suborned. ‘If Mr Hardy will stipulate to the fact that the defendant had known the gun was on board -’
‘Not a chance,’ he said.
‘I’m sure you discussed it in his daughter’s presence,’ Pullios said. ‘I’ll call her.’
‘She’d never testify against her father.’
Chomorro’s black eyes glared. ‘She’d better or I’ll hold her in contempt and put her in jail until she does…“
And so it had gone. Hardy couldn’t have Jane get on the stand for any reason – by some incredible stretch she might mention having known – biblically – Owen Nash. What was worse? The jury knowing about Andy’s pre-awareness that May’s gun was on board, or another reason he might have had to want Nash dead?
In the end, Chomorro had decided on his strategy to keep Fowler in custody at least until it had been determined that May Shinn had or had not killed herself. The jury, which up to now had been allowed to return to their homes under the stricture that they not discuss the case with anyone, were to be sequestered in a hotel until that question was settled so that this development would not prejudice them against the defendant.
Glitsky finally saw fit to interject a thought – Fowler’s clothes should be tested for fibers, hairs, semen and blood. He was a homicide cop – if there had been a killing he didn’t want the evidence to get thrown away this time. Pullios told him that was a good idea and he told her he knew it was. Investigating murders was what he did when people let him.
The door to the visitor’s room opened. It was after ten-thirty and Hardy looked up, half-expecting to see Strout coming in to tell him that May had in fact been murdered, that the knife wounds were inconsistent with what could be self-inflicted. Instead, he looked into the basset face of David Freeman, who asked politely if he could sit down.
‘Ah, Mr Hardy. Just came to pay my respects,’ he said. In the past months Hardy had had two interviews with Freeman in his office regarding the testimony he was going to give for the prosecution. Nominally adversarial, the two men both had maverick streaks, which they recognized in each other and which Hardy felt formed a bond of sorts that, at this point, was still unacknowledged. ‘Strout still in with her?’ Freeman asked.
Hardy nodded, considered a moment, then decided to speak his mind. ‘You know,’ he said, ‘I wish you’d taken this case when Andy first asked you.’
Freeman shook his head. ‘I don’t think you’ve lost it. It’s not over until the jury comes in.’
Hardy raised his eyes. ‘That’s what they say.’
‘Particularly if Andy didn’t kill May. I think they’re reaching if they think he did.’
‘He was there at May’s this morning.’ Hardy was testing.
Freeman shrugged. ‘I was there two days ago. Does the jury know it? Do they need to know it?’
Hardy grabbed the nugget. At this point he’d take anything from any source. ‘Why do you think they’re reaching? I mean beyond wanting a conviction.’
In their previous four hours of discussions, Hardy thought he had adequately covered the trial ground with Freeman, but he was beginning to realize that Freeman tended to answer only what he had been asked, and Hardy had stuck to Fowler’s actions as they related to the consciousness-of-guilt theory. He had all but ignored May Shinn the person, thinking she had fallen out of the loop. Now he was no longer sure of that.
‘Because May was depressed, she was suicidal. I spent over an hour last night trying to talk her out of killing herself.’
‘Why was she so depressed?’
‘I think that’s obvious, don’t you?’
‘Not just a coat.’
‘Coat? Oh, that? No, that just might have been the last straw, just another reminder that she couldn’t hope for anything anymore. That’s why she first called me, I guess – upset over it being stolen. But the depression itself -that’s been going on since the summer. She was in love with Owen Nash. Believed she was. After he died she lost what she’d put her hopes in. What had kept her going. Then to be put on trial for his murder…“
Hardy shook his head, still testing. ‘I don’t know what she told you, but she didn’t love Owen Nash.’ Or so Farris had said.
‘No. No, you’re wrong there. Why do you say that?’
‘Same as with Fowler. You don’t take money from someone you love, not for sex anyway.’
‘She didn’t take money from Nash, she never did.’
That stopped Hardy cold. ‘What?’
‘She never took money from him.’
‘What about the will?’
‘What about it? The will was a will. I think it started out as more of a gesture, but when Owen died… I mean, wouldn’t you pursue two million dollars?’
Hardy’s head was beginning to throb again. He reached for the cup of now cold coffee on the table next to him. Why had he always assumed that Owen was paying May Shinn? Had it been Ken Farris who’d told him that early on? Had Farris been lying?
‘No,’ Freeman was going on. ‘May did love Owen Nash. There’s no doubt about that. And I’ve come to believe he told her he loved her, too. He was wearing her ring when he was found. She was a lovable woman.’
Clearly true. Look what she’d done to Andy Fowler. May obviously had more substance than he’d given her credit for. But she certainly had deceived Andy Fowler, and he reminded Freeman of this.
Freeman nodded as if this were old news. ‘That was before Owen Nash. Before Nash she did whatever was expedient. She told me this. Certain clients, you can become like a confessor to them. Psychologist, devil’s advocate. A dependency develops.’
Hardy, remembering Celine, didn’t need a reminder of that.
‘In May’s case she and I actually became pretty close. We were doing a lot of work together.’ At Hardy’s glance, Freeman went on, ‘And no, we weren’t sleeping together. Anyway, something very real seems to have happened with May and Owen, who were both pretty cynical to begin with. They changed each other, for the better.’
‘What does that mean?’
‘May dropped her old lovers – Andy Fowler, for example. Could be she might have been able to scam Owen along like she’d done with men before, but she wanted to clear the slate.’
‘And Nash?’
‘I gather it was pretty much the same, except of course he had a wider circle and more responsibilities. It might have taken longer to put into effect – this decision to go public with their intended marriage, for example.’
Hardy remembered that Farris had said that Owen had ‘changed’ in the last months of his life. Was that the explanation?
‘You really think they were going to get married?’
‘I do, yes, and I’m not too easily conned.’
Hardy had never seriously considered that. And why, more than anything, was that? Because Ken Farris had told him May and Owen were definitely breaking up. It brought him up short, wondering what else he’d overlooked or ignored.
His good friend, and very competent investigator, Abe Glitsky, had supposedly checked the alibi of Ken Farris, but now the thought occurred that in this one area, Pullios may have been right. Abe might have been so burned by the false arrest of May that his heart wasn’t into pursuing the leads in this case as he otherwise might have. He had, after all, not followed up the unidentified fingerprint on the murder weapon – while Struler had done so. He hadn’t discovered the private eye, Emmet Turkel. Hardy found himself wondering if Abe had actually flown to Taos or only made a few phone calls.
Owen Nash’s death had left Ken Farris in sole charge of a $150 million empire, unencumbered now by a controlling eccentric. Might not that be worth killing for?
‘Something ring a bell?’ Freeman asked mildly.
‘Maybe.’
They heard footsteps and were both standing by the time Strout opened the door. ‘Y’all want to come in?’ he said.
The body lay covered on a gurney in the chilled room. Strout led the way and pulled back the sheet from over her face. It struck Hardy how young she had been. Her face, without makeup or expression, was one of a young girl, sleeping.
Freeman moved closer to the gurney, traced a finger along the line of May’s jaw, lifted the sheet further and looked down at her body, grimacing. Strout and Hardy backed away.
‘Where are her clothes?’ Hardy asked.
‘Bagged and gone. They’re checking for fabrics, hairs, stains, SOP. A waste of time.’
‘Why?’
‘Because there is no doubt this woman killed herself.’
Hardy felt the fatigue leave in a rush. The clock up over the freezers said it was past eleven, and suddenly his client had at least been proclaimed innocent of committing this murder – because, in fact, it wasn’t a murder.
Somehow he felt the case had turned. Fowler hadn’t killed May. It made no rational difference in this case about Nash, and yet it seemed to matter a great deal. In everything Andy Fowler had done, Hardy saw evidence of confusion, concern for his reputation, a misdirected vision that he could somehow plug eleven holes with ten fingers.
But what he didn’t see – suddenly and with clarity -was a murderer. Andy did impulsive things and then made up foolish stories to cover up how foolish he had been; he was a man out of his depth with his emotions.
What Andy had not done was plan the cold-blooded killing of another man. Somebody else had done that -someone cold, efficient and organized, with neither remorse nor emotion. In fact, the murderer of Owen Nash was close to the polar opposite of Andy Fowler.
Jeff Elliot knew that in the old days, six months ago, before he met Dorothy, he would have been waiting at the morgue until the results came in on the postmortem so he could have a chance to make the morning edition. But tonight he had written his piece, proofed and filed it and headed home.
Other stories around the Hall of Justice were getting attention now – one concerned a cat the D.A.s had bought to control the influx of mice that had started to show up in the building in the wake of the construction for the new jail. The cat had been named Arnold Mousenegger and had already gotten several graphs in the Chronicle, a ‘quote of the day’ from Chris Locke (‘Arnold is a budgetary godsend. We couldn’t afford to exterminate the whole building.’) and an appearance on Channel 5. Hot stuff.
And Owen Nash was still as dead as he’d ever been. Andy Fowler was in jail and wasn’t about to get out to kill anybody else tonight. The trial proceeded at its own pace.
Jeff’s work would keep until the morning.
Dorothy had been asleep but got up to greet him when he opened the door. She poured them both glasses of domestic white wine while, sitting on the bed, he took his clothes off. The telephone rang and without thinking he picked it up.
‘Jeff, this is Dismas Hardy and I’m doing you a favor.’
‘You still awake? Don’t you have a trial in the morning?’
‘Good lawyers never sleep, and I wanted you to be the first to know, on the record, that Strout has ruled May Shinn a suicide. Andy Fowler did not kill her. Nobody killed her. She killed herself.’
‘Department of redundancy department,’ Jeff said. ‘Suicide means she killed herself.’
Hardy thanked him sincerely for the lesson in grammar. Dorothy came over and placed the wineglass on the table next to the phone. She sat next to him and rubbed his shoulders.
‘Is this solid?’Jeff asked.
‘Horse’s mouth, the horse being Strout. I’m still at the morgue. I thought you’d like to know.’
Jeff hesitated a moment – it meant he wasn’t going to sleep for a few more hours. ‘I’ve already filed the first edition.’
‘Hey,’ Hardy said, ‘it’s not even midnight. Don’t you guys just stop the presses, rip out the front page?’
‘Maybe if Arnold Mousenegger had four confirmed kills in one day.’
Everybody knew about Arnold. ‘By the way,’ Hardy asked, ‘you still willing to dig a little if I can find a likely hole?’
‘By the way, huh?’
‘It just occurred to me.’
‘I’m sure it did. But yeah, I guess so. What is it?’
‘I’m not sure yet. I’ll let you know.’
When Jeff hung up, he took a sip of his wine and kissed Dorothy. ‘Sorry,’ he said, ‘when news breaks…’
She kissed him back. ‘When you win the Pulitzer,’ she said, ‘I’ll forgive you for this.’
‘Dismas, you’ve got to get some sleep.’ Frannie looked very pregnant, standing in his office doorway. ‘What time is it?’
Hardy stretched, afraid to check his watch. ‘Time is for wimps,’ he said.
She came behind his desk and put her arms around him, leaning into his back. ‘How will you be able to think tomorrow?’
‘Tomorrow’s Friday,’ he said.
‘Good. Actually today is Friday. Does that mean anything?’
‘It means tomorrow I can catch up on some sleep. Tonight I’ve got to catch up on these dailies’ – he held up a thick pile of typed pages – ’two days’ worth. I took last night off, remember?‘ He rested his head back against her. ’Remember?‘
She messed his hair. ‘I remember very well. But still…’
‘Andy Fowler didn’t kill May,’ he said. ‘She killed herself, just like it looked.’
Frannie straightened up. ‘Well, that’s good, I guess.’
‘It’s good, though why the idiot went to May’s house -’
She shushed him. ‘Don’t get going,’ she said. ‘Do your reading, come to bed. Now.’
‘A few more pages. Promise.’
The first thing he had to do in the morning was call Ken Farris and get some answers. If he didn’t like the answers he would call Jeff Elliot back, maybe even hire his own Emmet Turkel and do a number on a weekend in Taos last June.
He also had to remember the questions. They kept flitting in and out, and he found himself making a list while he tried to read the dailies from two days before, which now seemed like two months. With all that had happened since they’d testified, he barely remembered Tom Waddell and José Ochorio, much less what they’d said or why it might be relevant.
The yellow pad with his notes said: ‘Nash paying May? Records?’ On another line, the words: ‘Specifics of O.N. changes? How was he different?’ Then: ‘Breaking up? Why ring?’
The notion that May had been honest throughout put a very different light on everything that had happened. Hardy started another pad, intending to begin with the assumption that May and Owen had, in fact, loved each other. He would go through his first file folders – the ones he’d copied so long ago – over the weekend and review every word she’d said.
He wrote a few words on the May pad, then jumped to the dailies. He had to turn back to see who was talking, Tom or José. He reminded himself – Tom was the afternoon guy, the kid he’d met that first day. He grabbed the early folder, opening it to Glitsky’s interrogations of them both, intending to start over, get a fresh grip on the facts. Again.
He hadn’t slept in twenty hours. Now he was reading about José seeing May Shinn leaving the boat on Thursday, but José was the morning guy, so he couldn’t have seen May on Thursday morning, it must have been Wednesday, which made no sense because May said she’d gone to the boat on Thursday, so Hardy – quick – went back to the pad with the May questions.
He looked back. Oh, it must have been Tom, after all, who’d said it. One of the folders was open to Tom.
Frannie was right – you couldn’t work if you couldn’t think, and Hardy’s brain had just shifted to OFF. Enough. He couldn’t keep it all straight.
What seemed like only seconds later, he was in bed, the telephone was ringing in his ear and it had gotten light.
‘Wake you up?’ Glitsky asked brightly.
Hardy looked at the clock: 6:10. ‘No,’ he said, ‘I was just sorting my socks. I like to get it done before the weekend.’
‘This is what time real working people get up,’ Glitsky said. ‘Besides, I thought you might have hung around downtown to find out what Strout decided.’
‘Strout decided May Shinn killed herself.’ He started to tell Abe about last night, a little of his talk with Freeman. Frannie came in with a cup of hot coffee, and Hardy, still talking, swung himself up to sit on the side of the bed. ‘So Freeman says they were really planning to get married,’ he concluded. ‘How does that grab you?’
Glitsky was silent a long moment. ‘Nash was wearing the ring, wasn’t he?’
‘Right there on his finger.’
‘And he wasn’t wearing it the last time Farris saw him?’
‘If Farris wasn’t lying.’ Hardy went on to describe a few of the inconsistencies he’d come across in the last twelve hours. ‘So what do you think?’
‘It’s something to think about,’ Abe said, ‘especially if you’re convinced Farris lied.’
Hardy, fully awake, sipped his coffee. ‘This whole business has made me be not positive of anything, Abe. First, I’m not positive May was in love with Owen or vice-versa. The difference is, now I’m willing to consider it, and once I do that, it opens this other can of worms.’
‘Preconceptions are my favorite.’
‘Yeah, they’re a good time.’ Hardy was still on his earlier problem. ‘I guess the only thing I’m positive of is that, if May didn’t lie, then I’ve got myself a passel of rethinking to do over the weekend.’
‘Well, you know,’ Abe said, ‘I’m busy, but I’m here.’
It was an offer Hardy knew didn’t come easy. But Abe had his own reasons, too. As had happened with Hardy months before, when Pullios took his case away, it rankled.
Hardy thought a minute. It had to be something Abe -the police – had access to and he didn’t. ‘You could find out who took the coat,’ he said. ‘I mean, maybe they took something else. One of your guys…’
No response.
‘Hey, Abe, you there?’
‘Sure. I thought you were talking to Frannie.’
‘No, Abe, I was talking to you.’
‘You were talking to me about a coat?’
Hardy caught up to where Abe must be, then ran it down to him. Abe could check over the inventory on the Eloise, find if a member of the department had taken May’s coat, apply a little pressure, find out if some evidence had been misplaced.
‘Diz,’ Abe said, ‘our guys don’t steal from crime scenes. I mean, if they do, we’ve got to go to Internal Affairs. But they don’t.’
Hardy drank more coffee. ‘It’s someplace to look. See if something jumps out at you. Maybe, although of course I’d never suggest you do this, you could have an off-the-record chat with the guys who were there.’
‘Taking the inventory of what was on the Eloise?’
‘Right.’
‘I could never do that.’
‘I know,’ Hardy said. ‘And as I said, I’d never ask.’
Hardy had tried Farris at his home and gotten his answering machine. At his office he got another answering machine and left a message, hearing a couple of beeps as he did so. There was a concept, he thought. Recording the answering machine recording. Department of redundancy department indeed.
He felt like a receptionist. As soon as he’d finished leaving his message at Owen Industries for Farris to call him at home and leave a number where he could be reached, his telephone rang again.
‘Grand Central Station,’ he said, picking it up.
‘What are we going to do about clothes?’ It was Jane. She told Hardy that they’d taken her father’s suit for the lab tests, and what was he going to wear to court today? Hardy told her to swing by her father’s house, get him a decent change and meet him downtown at eight-fifteen, enough time to change and try to determine where they would try to go today with what he figured would be by now the most hostile jury in the history of jurisprudence, angry at having been locked up themselves. Since Jeff Elliot’s article had made the morning edition, like the rest of the world, Jane knew for certain now that her father hadn’t killed May.
This time, when he hung up, Frannie poked her head in his office. ‘In keeping with your popularity this morning,’ she said, ‘your daughter would appreciate a short audience.’
Hardy glanced at the pile on his desk – the two days’ worth of dailies, the binders and notepads, the cassettes. He raised his eyes back to his wife. She was smiling but did not appear particularly amused.
The Beck appeared on her still wobbly legs next to Frannie. Seeing Hardy, she lit up like the Christmas tree, held out her hands, yelled ‘da da da’ and started to run toward him, tripping on her own feet and pitching headlong into the front of his desk.
Hardy was up and around before Frannie could get to her. He picked her up, holding her against him, rubbing the red spot on her forehead where the bump would come up, kissing her. He hugged and rocked her. ‘It’s okay, Beck. It’s okay, honey. Daddy’s here. Everything’s all right.’
He took the dailies with him. He’d have to find the time to review them, maybe during lunch, maybe while Andy was getting dressed. He and Jane had delivered the new suit upstairs, leaving it at the guard’s desk with instructions for delivery, then he’d asked her if she could leave him to his reading until nine-fifteen, half a precious hour later.
He got settled in their little conference room, took the binders from his huge lawyer’s briefcase and spread them out, intending to start where he’d left off last night, or with where he thought he’d been – Tom’s testimony about May coming to the Eloise on Thursday.
But he couldn’t find it.
After the first pass through every word Tom had said to him, Glitsky or the court, Hardy rubbed his hands over his eyes and wondered if he had finally lost his mind. Maybe he wasn’t cut out for this kind of pressure. He ought to buy a boat and move to Mexico, start a fishing fleet.
Not by bread alone, he thought. No, sleep, too. Sleep ought to come into the picture. He wondered if Pullios was sleeping. Should he hire someone to call her every hour around the clock, level out the field?
He forced himself back. All right, it wasn’t in Tom’s testimony, where it should have been. How about José‘s?
Finally he found it at the end of Glitsky’s initial interview with José. But that was wrong. It had to be wrong. Hardy reread the transcript, José answering when Glitsky asked if he remembered exactly what May had been doing when he’d seen her:
A: I don’t know. She was out there, on the street. Walking back to her car, maybe, I don’t know. I see her going away.
Q: And you’re sure it was May?
A: Si. It was her.
Q: Are you certain what day it was? It could be very important.
[Pause.]
A: I think it was Thursday. Oh sure. It must have been. I remember, I got the note from Tom he’d locked the boat, which was Wednesday, right? So I go check it. It’s still locked. Thursday, I’m sure, si, Thursday.
Had May mentioned going back to the Eloise twice on Thursday? For some reason, because Tom and José had both seen May on Thursday, Hardy had been assuming it was the same sighting. But it couldn’t have been. José was there in the morning and that’s when he saw her. Later that same afternoon, Tom said that he saw her there again.
Hardy pulled another legal pad and wrote a heading on the top. ‘Questions for Freeman.’ Someone who had talked to May more frequently might be able to supply answers. Under his heading he wrote: ‘Number of visits -Thursday?’
It didn’t even matter, or rather he couldn’t figure why it might matter, but he was starting to believe that nothing here was irrelevant.
Hardy, walking next to Jane, got to the courtroom as Celine was coming up. As she had taken to doing, she looked right through him. Maybe that was the best way she could handle it. He thought probably it was best for him too. If they were going to be seeing each other on a daily basis it would be easier, better, if she avoided communication. But here they were, face to face. He reached for her arm and stopped her.
She froze.
Hardy backed off a step and apologized. ‘I just wondered if you’d heard from Ken Farris lately.’
She tried to gain control. ‘I spoke to him last night. I asked him about the Shinn woman’s claim, now that she was dead.’ At Hardy’s uncomprehending stare, she quickly, with annoyance, added, ‘The two million dollars.’
Hardy had never had any indication that Celine gave a damn about the money. He was interested in Farris, wanted to locate him. ‘So he was home? He wasn’t out of town?’
‘I think I just said that.’
‘That’s right, you did.’ She didn’t want to talk to him and he wouldn’t force it. He was, after all, defending the man on trial for her father’s murder. ‘If you talk to him again would you tell him I’d like a word with him?’
She looked him over, glanced at Jane, came back to him. ‘Certainly,’ she said. ‘Now if you’ll excuse me.’
Jane, almost protectively, took Hardy’s arm, holding him as they watched her walk away.
As she opened the courtroom doors, Celine turned back to look again, seeing Hardy, Jane’s arm through his. From her perspective he realized that this attractive woman who had been at his side since the trial started was at least a new girlfriend. Celine knew it wasn’t his wife, whom she’d seen twice at their house.
More reason for her to be hostile, he thought. Celine must believe he had lied to her, that he had decided to stop seeing her not because he was married but because he had found someone new.
When Fowler was led in, Jane squeezed Hardy’s arm. ‘Oh my God.’
He was wearing the clothes Jane had brought, but he looked more like a bum wearing a borrowed suit. Everything seemed to hang wrong. The tie wasn’t tightened and his top button was undone. The pants, beltless, fell over his shoes. His hair didn’t look like it had been washed or combed. His eyes were red-rimmed.
He patted his daughter’s hand after the guard led him to the table. Smiling weakly, he told her and Hardy that he was all right, he would be fine. May’s death had hit him hard, that was all.
Jane did her best to get him fixed up before they brought the jury in – tie, top button, hair. When the disgruntled jury started to file in, she went back to the gallery, and everybody waited for the judge.
Chomorro’s first order of business was to apologize to the jury for the need to sequester them. ‘At the end of the day yesterday we had an extraordinary set of circumstances develop and I determined that, having put all of you through as much of this as we’ve already done, we would try our best to keep those efforts from being wasted in a mistrial. In brief I will tell you that a central prosecution witness in this case – May Shinn – committed suicide yesterday.’
This was not news to anyone in the gallery so there wasn’t the expected buzz, but Hardy could see the effect it had on the jury. Each of them – some more obviously than others – scanned the defense table.
‘At the time there was considerable media conjecture, as you might imagine, as to how this development related to the case we are hearing now, and my purpose in having you sequestered was to keep you from that exposure. I apologize for the need to have done that, but in my view it was essential to keep this trial on track.
‘That stricture has now been eased and I will be letting you go to your homes for the weekend. However, let me admonish each and every one of you again, do not discuss this case or the evidence you are considering with anyone while we are still in this proceeding.’ Chomorro took a sip from a glass of water. ‘You are probably going to be unable to avoid hearing opinions about the defendant’s relationship with Ms Shinn. You may also hear that Mr Fowler visited Ms Shinn yesterday morning. I must make it clear to you, however, that these two events – Mr Fowler’s visit and Ms Shinn’s death – are causally unrelated and, for the purpose of this trial, not relevant.
‘The coroner has issued an unequivocal verdict of death by suicide for Ms Shinn. The police department has already determined from their investigations that there is no evidence linking Mr Fowler to Ms Shinn’s death. In light of that I instruct you to disregard any rumors or opinions you might come across that purport to establish that link – there is no factual basis for it.’
Chomorro stopped again. Hardy patted the back of Fowler’s hand and got a wan smile in return.
The judge took another sip of water. ‘Now, moving along, counsel for both parties here have stipulated to the facts Ms Shinn was to present in her testimony.’ Chomorro stopped reading and made eye contact with the jury. ‘You may want to take notes, as the facts you are about to hear may possibly not make the impression they would if you heard them recited by a witness on the stand.’ He adjusted his glasses and again looked down at the desk in front of him. ‘One, you are to take as an established fact that Ms Shinn spoke to Mr Fowler in March and told him that she had removed the murder weapon, People’s Exhibit One, from her apartment and kept it stored in the desk next to Mr Nash’s bed aboard the Eloise.’
From the reaction, the jury understood the significance of this fact. Even without ornamentation, it was a compelling point, but Hardy had decided there was nothing he could do about it. Those points were on the board; Hardy put them behind him. He had fought for the phrasing of the rest of the stipulation and sat forward in his chair waiting for it.
‘Two,’ Chomorro continued, ‘it is also a fact that, during that same conversation, Mr Fowler asked Ms Shinn if she would consider reestablishing their relationship – Fowler’s and Shinn’s – if she stopped seeing Mr Nash.’
Hardy let out the breath he’d been holding. That was better than ‘if something happened to Mr Nash.’
Chomorro kept reading. ‘Ms Shinn answered that she did not know and could not say. She did say she loved Owen Nash and that Mr Fowler had been someone she felt very close to.’
Hardy winced inwardly at the emphasis.
Pullios, speaking in a relaxed tone, was nonetheless teeing off on Gary Smythe. Fowler’s broker and sometimes golf partner was clearly reluctant to give what he thought was testimony damaging to his friend. Ironically, this worked in Pullios’s favor. If he were openly excoriating Fowler the jury might have reason to think there was a grudge against Andy, something personal he was paying back and enjoying. But to the contrary, every word was wrung out of him, which provided strong credibility to what he said.
Pullios was enjoying herself, as well she might, Hardy thought, after the events that had begun with Andy showing up late in the courtroom, May’s death, the sequestering of the jury, Chomorro’s admonition to the jury this morning and finally the stipulations about May’s testimony.
Freeman may have told him the previous night that he thought he still could win it, and with the new questions he had for Farris and the Marina guards Hardy was the most convinced he’d been of Fowler’s innocence, but right now he knew he was losing the jury while Pullios had the floor.
‘Mr Smythe, I show you here the May sixteenth page from the desk calendar of the defendant, showing the initials “O.N.” and the word “Eloise.” She entered the page into evidence as People’s Exhibit 18, then went back to the witness. ’On or about May sixteenth, did you have a discussion with Mr Fowler about Mr Nash?‘
‘Yes.’ Smythe didn’t like it.
‘Tell us the substance of that discussion.’
‘Well, it wasn’t much…’
Chomorro leaned over from the bench. ‘Try not to characterize what it was, Mr Smythe. Just tell us what was said.’
Smythe nodded, was silent for a minute, then tried again. ‘Judge Fowler and I have been active in fund-raising for a long time. I mentioned to him I had received an invitation to a charity event that Owen Nash was sponsoring aboard his boat and he asked me if I could get him an invitation. We could double-team him.’
‘And how did you respond?’
‘I thought it was a good idea.’
‘And you got him an invitation?’
‘Yes.’
‘So did both of you go?’
‘No. As it turned out, neither of us did. I became sick and Andy decided not to.’
‘Did he say why he so decided, after going out of his way to get the invitation?’
Smythe looked at Fowler, then down at his lap. ‘He was having a hard time back then, he didn’t feel like going out.’
‘A hard time? Personally?’
Hardy got up, objecting, and was sustained.
‘So what happened to your fund-raising plans with Mr Nash?’
‘You have to understand, these things go on continuously. They’re fluid in their timing. But I was a little disappointed that neither Andy – Judge Fowler – that neither of us had taken advantage of such an opportunity, and I said as much to Andy.’ He paused, looking again at his friend at the defense table. ‘Andy said he had other reasons to talk with Owen Nash anyway and he promised he’d get to him within a month.’
Pullios hung on him for a beat, then turned to the jury. ‘He promised he’d get to him within a month,’ she repeated. Then, to Hardy, ‘Your witness.’
‘Mr Smythe,’ Hardy said. ‘To your knowledge, did Mr Fowler ever meet Mr Nash face to face?’
‘No.’
‘Did Mr Fowler ever tell you he had made an appointment with Mr Nash to discuss anything, aboard the Eloise or anywhere else?’
‘No, he did not.’
‘Did you have occasion to talk to Mr Fowler between May sixteenth and June twentieth, the day Owen Nash died?’
‘Oh, yes. We talked almost every day.’
‘You talked almost every day. Do you recall if Mr Nash’s name came up between May sixteenth and June twentieth?’
‘Well, the one discussion I told Ms Pullios about.’
‘And after that?’
‘No.’
‘No, you don’t recall, or no, it didn’t come up?’
‘I don’t recall it coming up.’
‘If he had made an appointment with Mr Nash, don’t you think he would have told you -?’
‘Objection!’ Pullios said. ‘Speculation.’
It was sustained as Hardy had known it would be, but that was okay with him.
He continued. ‘I’d like to clarify this. On May sixteenth Mr Fowler – despite having an invitation – did not go to the Eloise?’
‘That’s true.’
‘At no time during the following month did he mention either making an appointment with Owen Nash or going to the Eloise?’
‘Right.’
‘So if I may summarize the facts elicited in your testimony, Mr Smythe, to your personal knowledge, Mr Fowler never met Mr Nash and never boarded the Eloise.’
‘That’s correct. Not to my knowledge.’
‘Is it a fact, Mr Smythe, that Mr Fowler promised, as you said, that he would “get to” Owen Nash within a month of May sixteenth?’
Smythe frowned. ‘Yes, he did say that.’
‘So the fact is that he told you he was going to do it. It is not a fact that he actually did it? In fact, you are aware of no evidence at all that he did do it. Isn’t that true?’
‘Yes, that’s correct.’
Pullios had narrowed down her witness list to David Freeman and Maury Carter, the bail bondsman. After lunch she was obviously going to close things up for the prosecution with the character issue, leaving the jury with the impression that Andy’s consciousness of his guilt over the murder was the only possible explanation for his actions. Chomorro had made it clear he was going to allow all the testimony in this vein.
Hardy looked forward to having Freeman on the stand. Although his testimony would get into evidence the bare facts of Andy’s unethical behavior, as a lifetime defense lawyer he would be instinctively opposed to Pullios. Hardy had, of course, talked with him several times during the two months he had been preparing for the trial and in those discussions Freeman had seemed genuinely distressed by his upcoming role as a prosecution witness.
But facts were facts – Andy Fowler had hired him to defend May Shinn. Freeman had told Andy flat out, in Fowler’s own chambers, that in his opinion he had no option but to recuse himself from the case now that it had turned up in his courtroom. He had arranged with Maury Carter for the bail.
In Freeman’s long career, he had told Hardy, he had never seen a judge do anything like what Andy Fowler had done. Of course, he wasn’t going to put it like that on the stand, but Fowler’s actions had been so incredible to Freeman that they beggared description.
However, last night he had also indicated to Hardy that Hardy hadn’t lost the case yet. And that had been before they’d been certain May had killed herself, when things had looked even worse. Was he perhaps planning some emphasis in his testimony to make it less damning than it seemed on the face of it?
Chomorro decided that Andy Fowler could be readmitted to bail, and now the subdued ex-judge and his daughter made clear they did not want to be with his attorney and went off to lunch by themselves. Which at the moment suited Hardy just fine.
‘Did you get a chronology of May for the whole week?’ Hardy asked Freeman.
‘Of course.’
Hardy and Freeman were talking in the hallway. It would not do for the two of them to spend an hour lunching at Lou’s just before Freeman went on the stand for Pullios, so Hardy took advantage of what camouflage there might be out in the open halls.
‘Do you remember her going to the Eloise?’
Freeman looked like he had slept in the clothes he had worn at the morgue the previous night. ‘Yes. Not a smart move.’
‘Why did she tell you she did it?’
‘They’re not going to ask me about this, you know. Pullios is going to want to know about Judge Fowler hiring me, not about May Shinn.’
Hardy didn’t want to push, but neither did he intend to back down. ‘It’s for me, not Pullios. I want to know about May Shinn,’ he said.
‘All right, but I’m not sure why it matters when, if or why May Shinn went to the Eloise. I’ll tell you what she told me, okay?’ His eyes searched the hallway, perhaps looking for members of the prosecution team, then he came back to Hardy. ‘She read about herself, linked to Nash, in the Chronicle on Thursday morning – the first day it was speculated that the mystery hand might be Nash’s. She was afraid that they’d try to find something to tie her to him – a very justified fear, as it turned out. She knew her gun was on the Eloise and she decided she’d come down and remove it before the investigation heated up. But when she went there it was the middle of the day and she realized she’d be recognized, even worse, somehow be connected to what had happened. So she would come back later when it was dark or when no one was around, but by that time the police had closed it off.’
Hardy stood with his arms folded, filtering, thinking. ‘How did she know she could get aboard? Did she have a key?’
‘Good.’ It was as though Freeman had been through all of this before, was checking Hardy on his thought processes. ‘No. She did not have a key. That was one of the other things that stopped her. Aside from the recognition factor.’
‘We’re assuming everything she said was true, now, isn’t that right?’
‘I believed her. Two things. One, it wasn’t unknown for Nash to forget to lock up. And two, if he’d been killed on board – which in fact he had been – perhaps the killer didn’t have a key or forgot to lock up. May thought that was likely.’
More than that, Hardy thought, it was true. The Eloise had not been locked on Wednesday night when he had gotten to it. ‘All right,’ Hardy said, ‘so here is my question. Did May tell you she also came down early Thursday morning?’
‘No. Why would she have done that?’
‘Same reasons.’
‘Well, then why would she have come back?’
‘I don’t know.’
Freeman paced away a step or two. He recalled something else. ‘How early? That whole week she was a wreck. Once she finally got to sleep, she sometimes slept until noon.’
Hardy shook his head. ‘No, it was way before then. Right about when the morning guard was coming on. Say seven-thirty.’
‘He said he saw somebody?’
‘More than that, he said he saw May.’
‘On the Eloise?’
‘No. Walking away.’
‘Close up? Positive ID?’
‘Neither.’ Hardy, saying it, realized what it meant.
Freeman said, ‘Well, to answer your original question, May told me she went down to the Eloise one time, Thursday afternoon, to see if she could get the gun.’
A thought occurred to Hardy. ‘Maybe she knew Fowler’s prints were on it and she was going down to protect him.’
Freeman shook his head impatiently. ‘She wasn’t protecting Fowler. He didn’t matter to her anymore, much as it might pain him to hear it… I wouldn’t bring up that particular point on cross… You got something here, don’t you?’
‘If I do, I don’t know what it is. Yesterday, when I hadn’t believed May, everything seemed tight. Today’ -Hardy lifted his shoulders – ‘I don’t know. The board tilted and I’ve got a new angle and now some of the pieces don’t fit. I’m trying to decide which angle’s the right one.’
The right one is the one that gets your client off.‘
‘That May wasn’t lying?’
But to Freeman, that had already been asked and answered. He moved closer to Hardy. ‘In any event, I hope you’ve written your eleven-eighteen?’
He was referring to Section 1118.1 of the California Penal Code, a motion for directed verdict of acquittal, by which the judge directed the jury to return a verdict to acquit. True, this section was almost automatically invoked by defense attorneys after the prosecution rested in every trial, but especially in cases such as this one in which the evidence might be deemed insufficient to sustain a conviction. Just as automatically, the motion was nearly always denied, but Freeman was making it clear that in this case he believed it had a chance.
Hardy said he was filing the motion but didn’t hold out much hope for it.
Neither did Freeman, it seemed. ‘Chomorro doesn’t have the experience. This is his first big trial, he’s got to leave it for the jury.’ Having said that, he raised his hands palms up. ‘But the law is a wonderful thing, and you just never know.’
Hardy had another twenty minutes before court reconvened. He went upstairs to the fourth floor, found Glitsky alone in the Homicide room chewing on his damned ice and hunched over his desk reading. He looked up now. ‘You were wrong,’ he said.
Hardy pulled a chair up against his desk. ‘I’m listening.’
‘There was no coat.’ Glitsky shoved the paper he was reading at Hardy. ‘Check it out. Anybody comes in while you’re looking, be smart, right? This sheet here,’ he said, putting a finger on it, ‘is the inventory – down to the rubberbands in the desk, Diz, it’s complete – of the master suite on the Eloise. This other one is the list Struler got from May, all of her stuff. What she wanted returned to her in exchange for testifying.’
‘Why didn’t they just subpoena her?’
Glitsky chewed some ice, swallowed. ‘I guess they thought this would make her more agreeable.’ He shook his head. ‘But guess what?’
Hardy was scanning the list. ‘Yeah?’ he said absently.
‘Hey, you know this happens all the time. You get somebody suing the City and thinks they can get an extra fur coat or something out of the deal. Put it on the list, say we stole it, it was there. But’ – he hit the sheet again -‘surprise. It wasn’t there. It’s why we make our Day One inventories.’
This was going backward again. Hardy wasn’t going to entertain it. ‘May didn’t lie, Abe, that’s where we’re at.’ He understood Glitsky being upset with May Shinn. She had, after all, named him personally in her suit for false arrest. And hadn’t she lied to him about not going to Japan? Hadn’t that been what moved him to arrest her?
‘Okay, all of the above,’ Hardy said, ‘but she thought this coat was there. She called David Freeman about it, mentioned it to Fowler when he came by. She jumped all over Struler.’
‘Wouldn’t you?’
‘Wouldn’t I what?’
‘If you had a scam like this, wouldn’t you play it up?’
Hardy couldn’t agree. He was going to run with the idea of May telling the truth until he got to a wall. This might not make sense in the face of it, but it wasn’t yet a wall. Still, Glitsky was on his side and he wanted to keep him there. ‘Maybe,’ he conceded, ‘but either way this helps -’
‘It doesn’t help me. Everywhere I look there’s more of nothing. You find anything about Farris?’
‘No. I got a call in. Speaking of which…’He grabbed Glitsky’s telephone and pushed some buttons. ‘Lunch break,’ he told Frannie. ‘Any calls?’ When he hung up he shook his head.‘Nothing.’
‘He out of town or what?’
Hardy shrugged. ‘Probably just busy. Plus I’m not on his side anymore, remember? I’m defending Nash’s killer. Now if you wanted -’
‘No way. I’ve already done him up and down. If you get a line on some physical evidence I’ll see what I can do, but… Now you’ve got Shinn telling the truth and Farris lying for no apparent reason, neither of which I think I buy. I know Farris didn’t kill Nash. He was in Taos. You’re barking up the wrong tree.’
Hardy didn’t argue – he knew better than to push any further. ‘All right, maybe he’ll call me back. If something pops, though, I’m going to call you.’
Glitsky finished chewing his ice, loudly. ‘That knowledge gives meaning to my life,’ he said.
‘Can I have these?’ Hardy asked, gathering the inventories.
‘Not only can you have them,’ Glitsky replied, ‘you must have them. I had to wait all morning for the office to empty out so I could make you some copies.’
Hardy tapped his palm against Glitsky’s cheek. ‘You’re such a sweet guy,’ he said. ‘Don’t ever change.’
Glitsky growled. ‘I wasn’t planning to.’
Fowler and Jane were sitting at the defense table when Hardy entered the courtroom at one-twenty. Celine was already at her spot on the aisle in the second bench. He found himself slowing down coming abreast of her, then forced himself along through the swinging doors.
Fowler didn’t look much better. Hardy pulled up his chair and placed a hand on his back. ‘You holding up?’ Jane, on the other side of her father, gave Hardy a worried look. He forced a show of enthusiasm. ‘We’ve got a couple of interesting developments.’
‘I’m a fool, Diz, been one all along.’ Physically, Andy’s eyes looked better. The redness had gone down, the black bagginess under them had receded. But the expression in them – or rather the lack of it – was almost more unsettling. ‘She never cared a damn at all, did she?’
Why beat around about it? ‘No,’ Hardy said. ‘No, I guess she didn’t, Andy.’ Jane frosted him from across her father but he ignored it. ‘Now how about you stop having to suffer for what she’s done to you? She’s gone. Didn’t you tell Jane once you just had to treat it as though it was a friend that died? Well, now that’s what it is.’
‘She lied to me.’
Hardy was getting tired of the explanation – to himself as well – that May lied as the answer for everything. ‘Did she? Or did you lie to yourself?’
Jane fairly hissed at him. ‘Dismas!’
‘You know, Andy,’ he pressed on, ‘maybe you just needed more, that was all. She gave you what you were paying for, which was a fantasy. And you’re a guy, Judge, who can make things happen, maybe even make your fantasy come true. You weren’t like the other guys, the lesser types whose lives passed through your hands every day -’
‘Dismas, stop it.’
Jane said it loud enough this time that several jury members looked their way. Hardy saw the reaction and gave a controlled nod in that direction. He lowered his voice. ‘The fantasy’s over, Judge. You’re reduced to being a mortal. I can’t say I blame you for crying over it, but at least it’s a real place to start.’
Fowler’s eyes had gotten something back in them -anger or hatred or both. Either, Hardy thought, was better than nothing.
‘You’re a big help, Dismas, thanks a lot.’ At least Jane had modulated her voice.
Fowler straightened up. ‘Don’t tell me I don’t want her back. You don’t know…’
Hardy nodded. ‘You’re right, Andy, I don’t know. What I do know is that you never had a chance to get her back because you never had her in the first place.’
‘What do you suppose this is doing, Dismas?’ Jane asked.
‘It’s all right, hon,’ Fowler told her.
Hardy kept at it. ‘Damn straight, it’s all right. You ask what it’s doing, Jane? I don’t know. Maybe I’m getting a little tired of wading through all of this while the ol’ judge here sails on overhead.‘ He spoke to his client. ’Andy, I’m sorry, but you’re not some tragic hero. I can’t just sit here and watch you waste away over some fairy tale you’ve concocted that’s pretty well destroyed everything you’ve worked for.‘ Hardy softened his voice, put his hand on Fowler’s back. ’The woman’s dead, Andy. She’s not coming back. It’s time to wake up and this is your wake-up call.‘
David Freeman, famed defense counsel, was the centerpiece of the prosecution’s case, and Elizabeth Pullios knew it. Thus far they had established beyond any doubt, reasonable or otherwise, that Andy Fowler had been devastated by May, had hired a private investigator to find out why she had stopped seeing him, had found out it was because she had fallen in love with Owen Nash, or acted like she did, and had kept a surveillance on the movements of Nash for the next several months, until the man’s murder. To nearly everyone he knew – except for Gary Smythe -he had told less than the truth, had indeed lied, about Owen Nash. He knew the location of the gun on the boat and his fingerprints were on it. He was an expert sailor in his own right and could easily have taken the Eloise in and tied it up after dark, even in rough water.
All that established, however, Hardy still thought the jury would have a difficult time bringing in a murder verdict, especially after Fowler testified for himself (assuming Hardy could move him to do so). So far everything the judge had done – a couple of white lies, a more or less natural curiosity to understand more about why a lover, as perceived by him, had tired of him, a plausible explanation of how fingerprints came to be on the murder weapon – could be explained, Hardy hoped, by the overriding fact that he had merely wanted to keep an illicit and embarrassing relationship secret.
Up to now, Hardy believed, none of this showed sufficient consciousness-of-guilt to prove anything to secure a conviction. When David Freeman took the stand, however, all that would change. In spite of Freeman’s private support, it was going to get ugly, Hardy thought. He was prepared to object to every question if need be, and if the jury didn’t like him for it, so be it. The bare facts of Freeman’s testimony would be damning enough – he at least wanted to try to contain any interpretation of them.
Pullios, playing affable and deferential, began to walk Freeman gently through some establishing testimony, then commenced zeroing in on the events of the previous June.
‘Mr Freeman, do you know the defendant?’
‘Yes.’
‘For how long?’
‘I’ve known the judge for many years.’ He didn’t so much as glance at Hardy.
‘Would you say you were friends?’
‘We’ve had a courteous professional relationship. We don’t see each other socially. Sort of like me and you.’
He smiled. She smiled. The jury seemed to like it.
‘Last June, did your relationship change?’
‘Yes.’
‘How?’
‘The judge hired me.’
Chomorro: ‘Mr Freeman, we’re all aware that the defendant was a judge in this court. For accuracy’s sake, please refer to Mr Fowler either by his name or as the defendant.’
Freeman said it was a habit, he was sorry.
‘And what did Mr Fowler hire you to do?’
‘To defend May Shinn, who had been charged with killing Owen Nash -’
Chomorro’s gavel came down with a crash. Hardy suppressed a smile. Nice, Dave, he thought.
‘Mr Freeman, restrict your answers to the questions asked.’
‘I’m sorry, Your Honor, I thought that was what was asked.’
But there it was in the record. Pullios could not very well object since she had asked the question. There was nothing to do but press on. ‘Mr Fowler hired you to defend May Shinn, who, as you say, was charged with murder?’
That’s right.‘
‘Were you surprised by his request?’
‘Not at first.’
This was a wrinkle Hardy had not expected. In his deposition Freeman had said he was stunned by it. Now he was not surprised ‘at first.’
Pullios went with it. ‘Why not “at first”?’
‘Sometimes the court will want to check out a couple of defense firms before giving a criminal assignment. See if they might be overloaded, that type of thing.’
‘But that wasn’t the case here?’
‘No.’
‘What was the case here?’
‘Well, the judge – excuse me, the defendant – wanted to hire me as a private person.’
‘To defend Ms Shinn?’
‘Yes.’
‘And was that unusual?’
‘I’d say, yes, it was.’
‘Was there anything else unusual about the arrangements?’
Hardy stood at his table. ‘Objection. Overbroad.’
‘Sustained.’
Pullios tried again. ‘Was Ms Shinn to know about this arrangement?’
Hardy was up again. Conclusion from the witness and hearsay. Pullios might be getting it out, but it was going to be pulling teeth. She smiled tightly. ‘Can you describe to us the conversation you had with the defendant regarding her defense?’
‘Up to a point, yes.’ Freeman said. He spoke directly to the jury. ‘After I accepted the job, of course Mr Fowler became my client and our conversations were privileged.’
Freeman wasn’t giving up a thing. Hardy had been planning on drawing him out on cross, going into the false arrest of May Shinn, all of that. But it seemed Freeman was doing his work for him.
Pullios, however, could read the signs, too – this one said ‘Ambush Ahead.“ Freeman was, in prosecutor’s lingo, going sideways. Witnesses did it all the time. Pullios had seen it before. She got a little less friendly.
‘Mr Freeman, is it a fact that Mr Fowler asked you to keep your relationship with him a secret from Ms Shinn?’
‘Yes.’
‘Is it a fact that bail of five hundred thousand dollars was set for Ms Shinn?’
The facts continued to come out: that Fowler had put up his apartment building as collateral; that Ms Shinn was indicted by the grand jury for murder, putting the case in Superior Court; that Shinn’s trial was assigned to Fowler’s courtroom…
Now Pullios was on a roll and there wasn’t much to do about it. ‘Now, Mr Freeman, knowing as you did the relationship between the defendant and Ms Shinn, what was your reaction to the assignment of Ms Shinn’s trial to Mr Fowler’s courtroom?’
Freeman thought about his answer for a moment. ‘Well, I had mixed feelings. I thought it would be good for my client if the trial went on in Mr Fowler’s court, but I thought there was no chance that would happen.’
An answer Pullios wanted. ‘You expected Mr Fowler to recuse himself?’
Hardy objected, citing relevance. ‘Who cares what Mr Freeman expected?’
Chomorro thought, I do, and said, ‘Overruled.’
Pullios repeated the question, asking whether Freeman expected Fowler to recuse himself.
‘Of course.’
‘But he did not?’
Freeman gave it a second, but there was really no avoiding it. ‘No, he did not.’
Hardy thought he could make a few points.
‘Mr Freeman, Ms Shinn was charged with killing Owen Nash, the same individual the defendant is now charged with killing?’
‘That’s right.’
‘Before you had agreed to defend Ms Shinn on that charge, and hence before you had established an attorney-client relationship with Mr Fowler, did the defendant tell you why he wanted you to defend Ms Shinn?’
‘He wanted an attorney he knew would present a strong defense.’
‘Did he say Ms Shinn would need a strong defense?’
‘Yes.’
‘In your opinion, Mr Freeman, did Mr Fowler think Ms Shinn was guilty?’
‘Objection!’
Hardy rephrased it. ‘Did Mr Fowler tell you he thought Ms Shinn was guilty of murdering Owen Nash?’
‘Yes, he did. He thought so.’
‘You have won acquittals in several murder cases, have you not, Mr Freeman?’
‘Objection, Your Honor. This isn’t relevant here.’
Hardy was matter-of-fact. ‘Your Honor, the prosecution went over Mr Freeman’s credentials at the beginning of his testimony. I want the jury to be aware of Mr Freeman’s reputation not just as a defense attorney but as an excellent defense attorney.’
‘All right,’ Chomorro, as he often did later in the day, was getting surly. ‘But let’s move it along.’ He had the recorder reread the question, and Freeman answered that yes, he had won several acquittals.
‘In fact, wasn’t it through your efforts that the charges against Ms Shinn were dropped?’
‘Yes. Largely.’
‘Now let’s see if we can get this straight. Mr Fowler, knowing your reputation, hired you to represent Ms Shinn, who was subsequently cleared of the murder charge through your efforts?’
‘Yes, true.’
‘And that reopened the investigation, leading to Mr Fowler’s own arrest for the same crime?’
‘Objection,’ Pullios said. ‘Calls for a conclusion.’
‘What’s your question, Mr Hardy?’
Hardy thought he had made his point by inference, at least. Would a man who was guilty of murder hire an attorney whose past record of successes made it likely he could get the case reopened? The most reasonable explanation for hiring Freeman was that, in fact, Fowler did believe May had been guilty. And, of course, if he thought that, then he wasn’t.
‘I’ll leave it, Your Honor,’ he said. Turning back to Freeman, Hardy asked if, at the time he had been hired, he thought there was any chance that May Shinn’s trial would go to Fowler’s courtroom.
‘No, none at all. If I had thought there was at that time, I would not have taken it. But there wasn’t.’
‘Why not?’
‘Well, she was in Department Twenty-two. There were seven trial judges available and I was sure that if Andy got the case he’d recuse himself.’
Pullios was up like a shot, but these were relevant facts and Hardy was able to get Freeman to tell most of the story – how judges were picked for trials, the circuitous route May’s proceedings took before it came before Fowler. It could not have been foreseen…
Finally, Hardy came to the end of it. ‘On the day charges were dropped against Ms Shinn, how many days had she already been on trial? I mean, for example, had you picked a jury? Had the prosecution begun its case?’
‘No. None of that.’
‘Were you aware of any other developments in that case on that day?’
‘Yes. Judge Fowler resigned.’
‘Do you mean he recused himself from the case?’
‘I mean he resigned as a judge, he quit the bench.’
‘And this was how long after the trial had come to his courtroom?’
‘One day.’
Hardy turned to the jury. ‘One day,’ he repeated.
Pullios did not have any redirect on Freeman, and neither did she call Maury Carter, the bail bondsman, since facts relating to the bail had been substantially nailed down in Freeman’s testimony. Instead, after Hardy had finished with Freeman, the prosecution rested.
Hardy had to feel better. Freeman’s testimony, which he had feared would be disastrous, had not been anything of the sort, it seemed. The jury knew the worst of what Andy had done, but at least, Hardy felt, they had gotten it in the least damaging light possible.
During the recess Hardy argued his 1118.1 motion in Chomorro’s chambers. The judge, to his surprise, seemed to be giving him his full attention and proved it by telling counsel he was going to take the weekend to consider the motion. He would render his decision on the motion for a directed verdict of acquittal on Monday. Meanwhile, however, Hardy should be prepared to begin calling his defense witnesses.
His client had not said a word to him the entire afternoon. When the judge came out and adjourned court for the week, he only muttered, ‘See you Monday,’ and went back to join his daughter.
Hardy gathered his papers.
At ten past five it was already dark as he went out toward the parking lot. A storm was coming in and a wind had risen, steady and cold, Alaska written all over it.
Hardy put down his heavy briefcase and stood by the entrance to the morgue, looking through a hole in the plywood into the construction site where the new jail was slowly rising. A steady trickle of workers getting off passed behind him, and he envied their snatches of conversation, of laughter, plans for the night, for the weekend. He turned up his suit collar against the wind, feeling alone and desolate.
‘Hey, Hardy! Dismas! Is that you? Knocking off early? Glad I caught up with you.’ It was Ken Farris, walking against the tide flowing from the building. ‘I got your messages but couldn’t get away, thought I’d try to catch you after court. You adjourned already? Is it over?’
What Farris had said was true – he normally could have expected to find Hardy in the courtroom at this time, but his arrival just now struck Hardy as a little convenient. He could just have called back. Hardy said as much.
‘Ah, you know the office. You get to the end of the week, any excuse to get out early. This is on my way home anyway. So how’s it going? What can I do for you? This about May Shinn?’
Hardy looked at him levelly. ‘I guess it’s about a lot if you’ve got some time. You feel like a drink?’
Farris seemed to rein himself in. ‘Sure,’ he said. ‘Something wrong?’
‘Well, let’s say all’s not right.’
They walked back through the Hall and crossed the street. Lou’s, crowded and noisy, was hung with yards of red and green tinsel, lit by Christmas bulbs. With all the seats taken, they stood at the bar. Hardy called for a Bass Ale, Farris ordered a Beefeater martini extra dry. Lou, behind the bar, caught Hardy’s eye. ‘He new?’
Hardy introduced them, and Lou said, dryly, that all their martinis were extra dry – no vermouth. Farris said he’d take whatever Lou poured, which was the right answer – he got some ice, several ounces of gin, a couple of olives.
‘Hell of a place,’ he said, taking it in. He clinked the glass against Hardy’s. ‘Okay, what’s happening?’
‘The prosecution’s rested. I start calling my defense witnesses on Monday.’
‘You’re not asking me to be a witness for Andy Fowler, are you?’
‘No. Why do you ask? You think he killed Owen?’
Farris sipped his gin. ‘Tell you the truth, I wouldn’t be surprised if he killed May too. I don’t care what they say.’
‘No. May killed herself. If they had found anything that connected to Fowler he’d have been long since charged with it. And they were looking.’ But Hardy didn’t like it, because if Farris still genuinely entertained the thought, maybe the jury did, too, in spite of Chomorro’s instructions. He’d better not forget that. ‘About May… when we first talked, you told me Owen had been paying her?’
‘Right. He paid all of them. So?’
‘Do you know for a fact that he was paying her? Did he specifically tell you he was?’ Farris appeared to be giving it thought. Hardy continued, ‘You told me Nash had changed the last few months. I was wondering, might that have been one of the changes.’
Farris seemed somewhere inside himself. Finally he said, scarcely loud enough to be heard over the din, ‘Owen went with call girls, prostitutes, call them what you will. It was just his nature. It was who he was. And that’s who, what, May was.’
‘Well, maybe not,’ Hardy said, ‘that’s what I’m getting at.’
Which seemed to anger Farris. ‘Goddamn it, that’s never been in dispute.’
Hardy sipped his ale. ‘It’s in dispute now. May’s lawyer – you’ve met him, Freeman – he says the two of them actually loved each other.’
Farris was shaking his head. ‘That’s got to be bullshit.’
‘Why?’
‘Because he just didn’t, that’s why. This is Owen Nash we’re talking about. He wasn’t going to marry some whore. Why are you digging all this up?’
‘Because I don’t believe Andy Fowler killed anybody. Why is it so upsetting to you if Owen loved May Shinn?’
‘Because I knew Owen and that wasn’t him!’
Hardy stepped back, taking a beat. Both men went to their drinks. Hardy leaned forward again. ‘Listen, Ken, you’ve just spent six months contesting the validity of the will. It’s no wonder you’re committed to your position. I’m just asking if you’ve got any proof Owen was paying her – his own admission to you, canceled checks, whatever. You’re the one who’d told me he’d changed with her. Was a for-hire deal with a whore going to change him? Wasn’t he wearing her ring when he was shot?’
‘We don’t know that. Someone could have put it on him.’
‘Why?’
‘I don’t know.’
Hardy kept at it. ‘It doesn’t make any sense. He put it on himself. He was planning on telling you sometime, possibly soon. I think he had decided to marry the woman, just as he had said.’
Ken Farris was down to an olive. ‘Jesus,’ he said, ‘I just…’ He shook his head.
‘You just assumed, didn’t you?’
‘Why wouldn’t he have told me? He told me everything.’
‘Maybe he didn’t know. Maybe it snuck up on him. But it’s all pretty consistent if you put it together – we’ve got the change in behavior, the settling down, leaving her number with you for emergencies, the will, the ring. If you buy the premise, then May wasn’t lying about anything. Which is why I called you. I needed to verify that.’
Lou, unasked, had slid another round under their elbows. Farris didn’t seem to notice. He picked up the new drink and knocked off a third of it. ‘There were no checks,’ he said finally. ‘Of course, cash… You know, I don’t think we ever talked about whether he paid her – it never came up.’ A retreat? A cover?
The bad news, Hardy thought, was that Farris maybe, probably hadn’t been lying… maybe he’d honestly believed an untruth and passed it along as a fact, which wasn’t nearly the same thing, and it left a hole where there had at least been the chance of another suspect besides Hardy’s client.
Large drops of rain fell in sheets, splattering on his windshield. He found a parking place half a block down the street from his house and turned off the engine, thinking he would wait for a break in the storm. Could this be the beginning of the end of the drought? Now in its seventh year, and Hardy knew a lot of people in San Francisco who believed it would never end, that this was the new California of the greenhouse effect, the precursor of a future world of ozone depletion, skin cancers, AIDS and acid rain.
This cleansing Pacific downpour soothed him somehow. He sat back in his seat, eyes closed, listening to the steady tattoo of the drops on the roof.
There was still an unanswered question with May -the coat – maybe it would lead somewhere. And then on Monday Chomorro might decide to grant his 1118.1 motion and that would be the end of the trial, and he felt sure, the end of his relationship with both his ex-wife and her father. He wasn’t sure how he felt about that.
Whatever, if he got Andy off on the murder charge, which is what he’d been hired to do, he’d take whatever fallout developed.
But he also knew the trial coming to an early end was a very long shot. And it still nagged that the truth, if there was a truth, continued to elude him. He could get Andy off, he could flap his arms and fly to the moon if he wanted, but until he found out who did put two bullets into Owen Nash, he knew he wouldn’t feel he’d accomplished what he’d really set out to do.
If nothing else, he would still have to live with the fact that he was only ninety-seven-percent certain that Nash’s killer had not been the man he had labored to set free.
It had rained hard all night, awakening Hardy and Frannie several times with peals of thunder, a sound almost unknown in San Francisco. Sometime in the middle of the night Hardy got up to Rebecca’s cries and brought her to sleep between them in their bed.
Up alone at dawn, he put on his running shoes, shorts and a t-shirt, and headed out around the park in the rain. After a shower he made himself a breakfast of hash, eggs, toast and coffee, and ate reading the paper, occasionally looking up into the gray clouds through the kitchen skylight.
Jeff Elliot was not featured on the front page or anywhere else. The day-to-day workings of the trial were not exactly grist for the media mill. He knew Jeff would be around when the jury retired to deliberate, maybe sit in for the closing arguments, but that the mundane world of the courtroom was no match for the exploits of Arnold Mousenegger. Journalistic priorities. Mice over men.
After breakfast he leaned over to kiss his wife and baby. He wore jeans and work boots, his old Greek sailor’s hat over a heavy white fisherman’s sweater. He hoped that this day, of all days, José decided to get to work on time.
It was still steadily pouring as Hardy turned into the Marina parking lot on a day possibly much like the one on which Owen Nash had gone out for the last time. There were only two other cars in the lot; Hardy got within fifty feet of the guard station, opened his car door, grabbed his smaller briefcase and sprinted.
José, at the desk beyond the counter, put down his issue of Sports Illustrated and stood up. He recognized Hardy right away.
‘I bet you’re getting a little bored with this, but I’ve got a couple of questions for you,’ Hardy said. He took off his hat and put it on the counter next to the briefcase.
José seemed to be an easygoing guy. It was a miserable morning with no one else around. He was happy with the interruption.
‘I was going over your statement yesterday, José.’ Hardy snapped open the briefcase and was getting out some of the paper. ‘And there’s something I didn’t understand.’
José nodded, leaning over the counter, looking at the inch-thick pile of type. He grinned. ‘I say all that?’
‘Well, between your interview with Sergeant Glitsky and your trial testimony -’
‘My girlfriend, she say I’m too quiet, I never talk. I should show her these.’
‘I could make you a copy if you want,’ Hardy said. ‘Meanwhile, let me ask you, see here, when you were first talking to Sergeant Glitsky…’ Hardy opened the transcript to the page he had highlighted and turned it around for José to see. ‘At the end of the interview you said you’d seen May Shinn here at the Marina on Thursday morning.’
Jose was frowning, looking at the page. ‘Si,’ he said uncertainly. ‘Tom and me, we talk about that after we see she kill herself, right?’
‘What did you talk about?’
‘Well, you know after the trial, we talk about that day.’
‘The Thursday?’
‘Si. Only I see her in the morning, you know?’
‘I know, José. That’s what I’m trying to figure out.’ He pointed down to the transcript. ‘You see this part? Where you say she was going away from you?’
‘Si.’
‘So how could you be sure it was May?’
‘Well, I see her a lot. Tambien, that thing she wear on her head, and that coat. Nobody else with a coat like that one.’
Hardy tried to keep his voice flat. ‘What was the thing she was wearing on her head?’
‘I don’t know how you call it. Like a fur hat.’
‘And the coat?’
‘Well, you know, the coat like some,’ he searched for the word, ‘like some painting. Muchos colores.’
‘Okay, José, let me ask you this, and I’ve got all day if you want to think about it – did you at any time see May’s face?’
‘No. I don’t have to think. She was, like, way down there.’ He gestured down the street. ‘She don’t have a car, I think. Least I never see her drive a car. She always before come down with Seňor Nash.’
‘She never came down alone, maybe a little early to wait for him, let herself aboard?’
He shook his head. ‘No. Not that I remember. Maybe Tom, he know something else.’
‘Maybe.’ Hardy, trying different combinations, had to look back down at the questions he had prepared. This time he did not want to leave anything out. ‘José, do you remember what time you got into work that morning, that Thursday?’
José straightened up nervously. ‘The shift begin at six-thirty.’
Hardy gave him a conspiratorial look. ‘I know that, José. But I’m talking about that specific day. I won’t tell a soul, I promise.’ He was hoping he wouldn’t have to make José himself tell the world on the stand, but he wasn’t promising that.
José shrugged. ‘I think a little late. Tom talk to me about it that day, I remember. Somebody come by the day before, asking about it, too. So I stop after that.’
Hardy smiled at him. ‘You were safe,’ he said, ‘that was me. But that day…?’
José grinned back. ‘Pretty bad,’ he said. ‘Maybe eight, eight-thirty.’ The rain pounded at the glass all around them. ‘But I really stop being tarde back then, you know? This morning, even, no one going out, I’m here.’
He was close to Green’s, a place he favored for lunch for their breads and coffees and the sculpted wood and the view of the water. He had never been there this early in the morning, and they weren’t yet open for business, but they took pity on him standing out in the rain and let him sit at the bar and have a cup of coffee.
Okay, it wasn’t certain that it hadn’t been May. Remember that. Keeping up about the trial on her own, May could have realized the implications of José‘s testimony – she’d been seen in her coat – and then gotten rid of it, trying to scam with Struler to cover where it had gone.
He didn’t think so.
What he thought, was at least beginning to consider, to realize it had been perking for a while, was that someone else – the person who had really killed Owen Nash – had returned to the Eloise on Thursday morning. Maybe she -it had to be a she now, even in May’s coat José wasn’t going to mistake Andy Fowler for May Shinn – maybe she had left something incriminating on the boat, and seeing the Eloise in the morning paper, realized she’d have to work fast. Helped by José‘s tardiness, she had gone aboard, taken out whatever it was, stolen May’s coat so that in case she was seen (which she was), identification would be confusing.
But wait… she couldn’t have gotten aboard. Tom had locked up the boat in Hardy’s presence the night before, and José had rechecked it on his shift the next day.
Unless, of course, the person had a key to the Eloise. Or how about if she wasn’t going to remove something from the boat but was going to put something back in? For the twentieth time, Hardy tried to picture that drawer in the rolltop desk – the drawer where Abe had discovered the murder weapon, the same drawer he’d looked in on Wednesday night and seen nothing.
Maybe, as they were so fond of saying about baseball, it was a game of inches.
‘This is ridiculous.’
Abe hadn’t been thrilled to get his call before nine on a Saturday morning, but Hardy sweetly reminded him of his own call at six the day before. Besides, Glitsky was a cop first, and he was dressed and going out for another interview anyway. He might grumble, but Hardy knew that the murder of Owen Nash would get Abe’s attention until it was solved. As it was, Abe made it down to the Marina in less than a half hour and he, Hardy and José walked together in the steady rain out to where the Eloise still rested at her slip.
‘I know it is.’ Hardy agreed, but the implications of his what-ifs were staggering. He wouldn’t have to consider them – in fact he couldn’t – if he didn’t get this fact nailed down.
The police tape had been removed, and José unlocked the door and stepped aside so Glitsky could lead the way down.
The generators were off. It was dark inside. The rain thrummed above as the three of them stood a minute, letting their eyes adjust.
‘Looks about the same,’ Hardy said.
Glitsky wasn’t here to take inventory. ‘All right, what?’
Hardy went forward through the galley, the short hall, the master suite. The police might have removed May’s belongings but the room seemed eerily the same – the exercycle, desks, as though someone still lived aboard. Glitsky pulled back one of the curtains to let in a little more light, and Hardy walked to the rolltop desk. He opened the drawer.
‘Okay, humor me, would you? Take your time, close your eyes and visualize it. Show me exactly where you found the gun.’
Glitsky came around the bed and looked in at the open drawer. He took a small knife out of his pocket – ‘This is about the same length, right?’ – and placed it on top of the maps that were still in the drawer, back maybe three inches from the front.
Hardy nodded. ‘Did you jerk the drawer open?’ Which would have caused the gun to slip forward or backward on the maps.
Glitsky was patient. ‘No. I was my usual wonderful methodical self. You want to tell me what this is about?’
Hardy looked down again at the knife in the drawer, doing his own visualizing, making sure. He picked up the knife and gave it back to Glitsky. ‘The gun wasn’t there Wednesday night, Abe. I looked in this drawer.’
A new onslaught of rain raked the boat. In the room, it sounded like they were inside a tin drum. Hardy stood there in his hat and pea coat; Glitsky and José wore slickers. All the men had their hands in their pockets. The boat bumped the slip.
Glitsky thought on it. ‘So May came and brought the gun back Thursday morning.’
‘Making her the stupidest person in America.’
‘Maybe not. Maybe she saw her name in the paper and didn’t want it in her house.’
‘The gun hadn’t been in her house. It was here, remember. Besides, she didn’t have a key.’
‘You know, that’s probably worth double-checking at her apartment.’ Abe wrote himself a note. ‘Let me get this straight. You’re saying the shooter took the gun off this boat on Saturday. So who’s going to bring the gun back?’
‘Someone who wants to, and almost did, frame May.’
Glitsky looked around another minute. ‘You’d swear on this, about the gun?’
Hardy nodded. ‘It wasn’t here, Abe. Somebody came by here Thursday morning, unlocked the boat and put it in this drawer. Then they took May’s fancy coat from the closet along with a babushka or something like that, locked up and waltzed away.’
‘Why?’
‘Because they hated May.’ Hardy felt like he was on a roll. ‘Owen dumped somebody for May. So this person, the perp, killed Owen out of jealousy, then when they saw May linked to the Eloise, figured this was a good chance to get her too.’
Glitsky sucked at his teeth. ‘What time was this, when this person came back?’
Hardy glanced at José, making a little face. ‘It must have been pretty early.’
‘Then it doesn’t really let off your man Fowler, does it?’
‘Well, I was thinking it couldn’t very well have been a man at all. José here recognized the coat -’
The guard piped in, ‘It was a woman, sir. There’s no doubt of that.’
‘It was a woman wearing the coat, okay. It could have been a man who let himself onto the boat. It could have been two separate incidents.’
‘Andy didn’t have a key.’
‘You can’t prove a negative.’
Hardy was getting frustrated that Glitsky didn’t see this. ‘Abe, the coat was aboard here.’
‘How do we know that, Diz?’
‘May said it was here,’ he said. ‘Our perp took it, which was why it wasn’t in your inventory.’
Glitsky patiently answered. ‘I’m not saying it didn’t happen your way, Diz. I’m saying it also very well could have happened at least one other way. May could have worn the coat down here, seen Andy – hell, if he was framing her he could’ve invited her down for just that reason, so she’d be seen in her unique coat. After she realized what was happening she dumped the coat, then saw her chance to get it back by hassling us.’
‘That just didn’t happen, Abe.’
‘So prove it.’
‘It was a woman, Abe -’
Glitsky was not convinced. ‘I’d make pretty sure what your client was doing that morning before I brought it up to the jury. Besides, the only woman alive related to this case is Celine Nash. Aside from having no motive, she was in Santa Cruz. I checked.’
Hardy stood his ground. ‘I still think it was a woman.’
Glitsky shrugged. ‘Well, neither of us think May did it, so who…?’
Hardy’s mind was wrestling with the incomprehensible -Jane, his ex-wife, Andy Fowler’s daughter. She hadn’t told him the whole truth about her relationship with Owen Nash. It was understandable, why should she have, a one-time thing, he’d told himself. But what if…? All right, what if. Get tough, face the possible, however impossible. Jane had continued seeing Nash, he had dumped her for May Shinn… he had totally worked her, and she had killed him and either confided in her father or, somehow, he had found out on his own. No wonder he was acting genial, passive. Cover for his daughter… Would he have done everything he’d done with that motivation? Sure, he would have hated Nash. And this torch he was supposedly carrying for Shinn -didn’t it make more sense that he’d be angry at her for dropping him? There would be a sweetness in making her pay for his daughter’s crime. As pay she certainly had.
He parked in front of Jane’s house – once it had belonged to both of them – on Jackson in Pacific Heights. He had heard on the radio coming over that more than two inches of rain had already fallen since midnight. Going up the steps, he knocked at the custom door with its molded glass inlay. He saw a man’s form appear through the door. ‘Perfect,’ he thought, thinking he was about to meet Chuck Chuck Bo-Buck or whoever else was the man of the month.
The door opened and he was looking at his client.
‘Andy, we’ve got to talk,’ he said.
‘You are such a bastard.’ Jane was crying, her legs curled up under her on her bed.
‘Jane, I’m trying to save your father’s life here. It’s not been the best time I’ve ever had either.’
Hardy felt terrible seeing his ex-wife in tears. He could be glib – or pretend to be – about the men in her life after him, but he wasn’t blind to the fact that she was looking for the right one, that what she wanted was a man steady and strong who would love her and stay true and she wasn’t finding him. He supposed, perhaps wrongly, that he’d at least come the closest to that ideal, but something – their own history? – had made the commitment impossible.
He could see her every day and not think about it, but now, confronted by it, it was very hard.
‘How can you even think that, Dismas? What kind of person do you really think I am? I told you it was nothing. It was just a night.’
Andy was waiting in the living room. Hardy would get to him if he had to, but first he had to know about Jane and Owen Nash. ‘Just one night? And you never saw him again?’
‘That’s right. It happens. What do you want me to say?’
‘I don’t want you to say anything if that’s the truth.’
She hit the bed with a balled-up fist. ‘I told you it’s the truth. I saw Owen Nash one day, one night. One.’
‘Okay, okay, Jane.’
‘What are you saying? I killed him?’ Reading his expression, she brought her hand to her mouth. ‘Oh, my God, you really think that.’ She jumped up, sniffling, and went to her bureau, opening a wide black book and turning the pages. She turned to him, holding the book open for him to see. ‘June eighteenth to twenty-second. The I. Magnin Summer Fashions Exposition. All day every day I’m giving seminars and hosting teas. Check on it.’
Hardy looked down, hating this. ‘I believe you, Jane, I said I believed you.’
She pulled the bureau chair out and sat back down, crying again, silently, wiping at her eyes with a Kleenex. Hardy got up off the bed and left the room.
He told Andy they had to get together the next day to go over his testimony. They made an appointment for noon, and then Hardy left him to comfort his daughter.
He had written Frannie a note saying he would probably be gone all day and she had left one for him – she was at her late ex-husband’s mother’s, Rebecca’s grandmother’s, house, and would be back by six. She hoped to see him then.
He went to his office and threw darts for twenty minutes, now and then glancing at the window to watch the rain drop out of the gray.
This was the time he was supposed to be gearing up for his defense, for the legal battle between him and Pullios on the interpretation of the evidence that Andy Fowler had allegedly killed Owen Nash. But Hardy felt that somehow the essence was being lost. It reminded him of his high-school debates where he would argue both sides of something, sometimes three or four times, in the same afternoon. As though there was no correct answer.
Oh, and he knew it was the fashion, had been since he had gone to college – don’t make value judgments. Relativity was king. There was no absolute truth. But, like it or not, he had grown up to believe that there was truth, that right differed fundamentally from wrong.
And what he was supposed to do on Monday was continue the debate. He knew that. He would call Abe Glitsky and Art Drysdale, and possibly José, as witnesses, and wind up with Andy testifying on his own behalf. He had been preparing his summation almost since the trial had begun.
The problem was that now, so far as he could sort it out, little of what really had happened had found its way into this trial, the supposed crucible of truth.
On the one hand he didn’t want to divert his attention away from his defense of Andy – he knew he should be sitting at his desk, outlining, writing key phrases and arguments to win over the jury. But the other side of him felt that now that he was satisfied that he knew what had happened he should pursue that truth singlemindedly. Only that pursuit could take Andy Fowler’s fate out of the hands of the jury, remove it from debate.
The only thing that would ultimately clear his client was an alternate explanation of events. But the time he spent on that took away from his formal defense at trial.
He threw darts.
The inventories were no help. They listed sweatbands taken from the drawers in the desks next to the bed, some weight-lifting gloves, leg warmers. Switching back to his formal trial preparation, Hardy pulled his legal pad in front of him. Should he call José as a witness and introduce everything he had found this morning? He wrote it down, looked at it and realized that nothing he had found out proved that Andy had not been on the boat Thursday morning. Prove a negative…
What about the significance and believability of the gun in the drawer? He could call Pullios and Chomorro right now and say that he, personally, had discovered a crucial bit of evidence that would demand a retrial because he could not be a witness for his own client. He would testify that the gun had not been in the drawer on Wednesday night. But proving it to a new jury would, again, be difficult. It was still possible, he had to admit, that the gun had slid forward or backward with every opening of the drawer. He could simply have overlooked it – missed it in his haste. And even if he did establish the gun’s absence, did that necessarily mean the prosecution would have the burden of proving that Andy Fowler had somehow acquired a key to the Eloise? Playing Glitsky, he came up with five reasons in five minutes why they wouldn’t.
He got up and fed his fish. He knew what he knew -the gun had been brought back to the Eloise on Thursday morning by the jealous woman who had killed her past lover, Owen Nash. She had done it to get it out of her own possession and to shift the blame to May, and on both counts the strategy had worked.
He had to hit and hit again the fact that the burden of proof was always on the prosecution. They had to prove Fowler had killed Nash – it wasn’t Hardy’s job to prove he hadn’t. What he had to do was keep the jury clear on that point. Pullios had to prove Andy’s guilt. Even if the jury thought Andy was guilty of something to some degree, he had to make the point to the jury that they weren’t to determine whether or not Andy was innocent, but rather whether the prosecution, by the evidence presented, had proved him guilty. And if not, then -although he might not be innocent – he was legally not guilty.
Innocent did not mean exactly the same thing as not guilty. It was, in this case, a crucial distinction.
Back at his desk, he pushed some buttons, then exchanged a few words with Ken Farris about the terrible weather. ‘You still at it?’ Farris asked.
‘No rest for the weary,’ Hardy said. ‘A point occurs to me, if you don’t mind helping the defense.’
‘I can go half a yard,’ Farris said, ‘though I’d prefer not to think of it as assisting the defense.’ He paused briefly. ‘Dismas, let me ask you something -I get a feeling this is more than just a job for you. You don’t think Fowler did it, do you? You wouldn’t do this as an exercise in the law.’
Hardy had been through it all before. ‘Fowler didn’t do it,’ he said. ‘I’m also trying to find out who did.’
A pause, then, ‘Why do they keep putting us through this? Getting the wrong people?’
Hardy knew it was a long story – Nash’s fame, Pullios’s ambition, Fowler’s duplicity. Suspicion and prejudice and all of the above. But Farris had asked it rhetorically and Hardy passed it by. ‘Did Owen give the key to the Eloise to any of his girlfriends?’ he asked.
‘I doubt it. The Eloise was his baby, you know. He’d have people aboard, but not without him.’
‘Did he have any other long-standing girlfriends, mistresses, whatever – besides May?’ He had to, Hardy was thinking.
‘A few weeks, once in a while a month, that was about it. He paid them off, they went their way.’
‘Do you remember him talking about any of them being bitter, angry, rejected, anything at all like that?’
‘No. I’m sorry, but there just wasn’t that much made of it, or, I should say, them. They came and went like the seasons.’ He laughed dryly. ‘No, scratch that, more like the courses of a meal. That was the big difference with May – she was around awhile.’
‘And no one else was?’
‘No. Except Celine, of course.’
Hardy sat riveted to his chair. He felt the blood draining out of his face. The rain beat on his window. Darkness was settling in. ‘Did Celine have a key to the Eloise?’ he asked, keeping his voice calm.
‘Hey, I was kidding about that. Really, a bad joke.’
‘Does she have a key?’
‘Well, I think she does, she used to. But she didn’t -’
‘I know that.’ Hardy forced himself to slow down, to speak calmly. ‘Just another something to think about. Keeping track of these keys, that’s all. But do me a favor, would you?’
‘Sure.’
‘She’s mad enough at me about all this, defending the man on trial for her father’s murder. Would you try not to mention this key business to her if you see her?’
‘Yeah, okay, no problem.’
When he hung up, he didn’t move for several minutes.
The house wasn’t there, nor was his office, nor the rain, nor the darkness outside.
The night Celine had come by for the first time she had quickly left after seeing him in his green jogging suit, the same kind Owen Nash had been wearing on the day he had been shot. Was seeing him like seeing her father’s ghost? She’d reacted, at least for a moment, as though she had… ‘You just suddenly reminded me so much of my father…’
So rethink that visit. How could he have reminded her of her father, with that intensity, if she hadn’t seen him in the same outfit, if she hadn’t been with him on that last day? Of course, she might have seen him other times in his jogging clothes… except that wasn’t very likely. They didn’t live together, they didn’t jog together.
Strout… he had mentioned in the case of May Shinn – though Hardy knew it was true anyway – that standard operating procedure at the morgue was to bag the victim’s clothes. Celine had seen Nash at the coroner’s… but he’d been naked.
Certainly the jogging suit was a better explanation of her extreme reaction than just seeing him in domestic bliss with wife and child. If he hadn’t been so convinced she was in love with him, would he have ever believed her explanation for her reaction? Dismas, the lady-killer. He shook his head in disgust.
But why?
Money? Greed? Well, it was true she stood to benefit with May gone, more than anyone except perhaps Ken Farris, but since she already had more than she needed he’d quickly discounted that potential motive, not to mention that he never considered her a suspect anyway.
He wasn’t happy with it. The more you got, the more you wanted? Money, the alleged root of all evil? Including murder? What about her reaction to May’s death – ‘At least she won’t get the money.’ Greed – one of the seven deadly sins. And greed didn’t presuppose poverty or exclude the wealthy. There had to be more.
It was rocking him. He was aware, sitting back now in his chair, that his stomach had tightened. He consciously unclenched his fists. He knew he was right, but wasn’t sure why. One thing was sure, as the killer she had acted plausibly, smartly – played on his male ego, let him think she was fixed on him in his role as her father’s avenger while May was a suspect. How better to keep him from suspecting her than to fabricate and build their own illicit relationship, to use his libido, as insurance? He was such a fool.
But Glitsky had looked into this. Celine had been in Santa Cruz, she couldn’t have been out on the Eloise.
Hardy thought he had read and reread each of the binders on his desk, but he hadn’t – Abe’s reports following up on alibis for Ken and Celine sat there within their tabs. He had listened to Abe telling him about the two weight lifters who lived with one of their mothers, about Celine spending the weekend remodeling their Victorian house. Now he read Abe’s synopsis of the telephone interview he had conducted.
The telephone rang on his desk and he grabbed at it.
‘Mr Hardy. This is Judge Chomorro.’
And I’m the Queen of Spain, Hardy thought.
But it was the judge’s voice, no mistake. What was he doing calling Hardy at home over the weekend during a trial? This being his first murder trial, Hardy wasn’t certain what to make of it – was a call from a judge to a defense attorney a relatively common practice or another example of Chomorro’s own inexperience? There was nothing to do but hear him out.
He said hello and listened while the judge told him that he had called to give him fair and decent warning that he had decided to deny Hardy’s 1118.1 motion, that the evidence was going to the jury for their verdict. Pullios had also been informed.
‘By the way,’ Chomorro said, ‘again in the interests of total fairness for the defense’ – or covering your ass in an appeal, Hardy thought – ‘I want you to be prepared for the prosecution to object to your argument on the investigation procedure leading to the indictment of Mr Fowler.’ He paused a moment. ‘And I am of a mind to sustain those objections.’
Hardy tried to get out an objection now. ‘I understand we’d covered that in pretrial, Your Honor.’
‘Well, I’ve given it a lot of thought since then, especially since yesterday, going over your eleven-eighteen, and I fail to see any direct relevance to the evidence that’s been presented. Ms Pullios may have moved too quickly on Ms Shinn, but there was ample evidence to indict Mr Fowler in the first place, and certainly enough for a jury to decide to convict. We’ll leave it up to them.’
‘Your Honor, you realize that was the main thrust of my defense.’
‘Frankly, that’s one of the reasons for this courtesy call. I wanted to give you some time to prepare. Talk to your client – he can tell you there was nothing technically improper about his indictment. A trial is supposed to weigh evidence. If you want to impugn the system, you’re of course free to appeal, as I presume you will if you lose.’
Hardy could imagine Drysdale or Locke or both of them having had a chat with Chomorro the previous night or this morning, reminding him ‘a trial is supposed to weigh evidence.’ Right out of the textbook.
Here was the reason for Chomorro’s unorthodox call. He’d talked to somebody and been told that his ruling on the law regarding Hardy’s defense would – perhaps -provide grounds for a prosecutorial appeal. No, Chomorro wasn’t going to screw up his first murder trial. It was a straightforward procedure. Evidence was presented and the jury decided. That was how he was going to play it.
No way he felt he could ask Glitsky. It was a fishing expedition, and Hardy knew it, and Abe had his own work to do. He wouldn’t run off on what he’d consider a hunch of Hardy’s to double-check his own work. Hardy couldn’t blame him.
Frannie called at six-thirty, an half hour late. He hadn’t noticed and swore at himself. ‘How are you? he asked. ’How’s the Beck?‘
Her voice seemed small and far away. He told her he was still working and she said that she’d known that. Erin, Rebecca’s grandmother, had invited her to stay for dinner, maybe even overnight if the rain didn’t let up. He’d be at it until the wee hours anyway. She didn’t think he’d mind. Did he?
He didn’t mind, he said. How could he? This had been his doing and he was going to have to fix it.
He told her he loved her, would miss her but understood. He was getting to the end of it.
Jeff Elliot owed him one. He was an investigative reporter, and if there was something to discover in Santa Cruz, Hardy hoped he was the guy to find it. He only had to sell him on the idea.
‘In this weather? Are you kidding me?’
‘It’s probably going to be beautiful there tomorrow.’
‘Hardy, read the papers, will you? This is supposed to go on all weekend.’
‘Jeff, it’ll be an adventure. Take your girlfriend, go down there and have a little vacation, on me. What’s a little rain among lovers?’
He got himself a large can of Foster’s Lager and a handful of nuts and walked through the long and suddenly lonely house. Wind howled between the buildings, the rain fell without letup, the worst storm in years.
He turned on the Christmas-tree lights, planted his beer and nuts on the reading table next to his reclining chair and put a match under the kindling in the fire.
Sam Cooke played in his mind – Saturday night and I ain’t got nobody. Forget that. He had brought up his binders and was going to go through them again.
His own notes. He’d taken so many notes he thought his wrist was going to fall off. Every time he had spoken to Pullios, Drysdale, Glitsky, Farris, Celine (while it had still been strictly professional), he had jotted down at least the gist of the conversations if they concerned this case. Random thoughts, theories of Moses and Frannie, of Pico and his old officemates.
At a little after ten-thirty he got up for another beer, after which he was going to hang it up for the night and get some sleep. He had just gotten to the time Ken Farris had come downtown, ostensibly to verify Owen’s handwriting on the will. Hardy remembered that they had gotten into how the system worked too slowly – Farris knew May had been on the Eloise... Celine had told him. Hardy had dutifully noted it, then written ‘hearsay’ in the margin and had, if not forgotten it, at least dropped it from his active consideration.
Celine had also told Hardy that May had planned to go out on the Eloise with Owen. They’d been walking back from their first meeting; he remembered it, now, distinctly.
May, however, had denied it, and May, it turned out, was telling the truth.
So Celine had lied… except he still couldn’t prove it. Opening the refrigerator, he stopped. He slammed the door closed and nearly ran back up through the house to his binders.
It took only a minute. It had been when Pullios had him question Celine in front of the grand jury, trying for the indictment on May Shinn. Celine had testified that on Tuesday morning, June 16, she had called her father at his office, wanting to make sure he hadn’t made any plans for that weekend that included her. He had said no, that he and May were going out alone on the Eloise.
Okay, Celine’s version was in the record. But it was still hearsay. It was also a lie, but how to prove -?
Farris’s office.
Where there was a beep every twenty seconds and everything was on tape?
Hardy slept fitfully, waking before dawn.
Rain continued to fall, but more gently now, in a thick drizzle. He showered and dressed and sat drinking coffee, staring at the clock on the wall, wondering what would be a reasonable time to call Ken Farris again. Reasonable or not, he wanted to call him before he had time to leave the house.
He went back to the binders and read over the testimony, wanting to make sure – although he knew it – that it hadn’t been fatigue. He had asked Celine when she had called her father.
‘Sometime in the morning. It was the Tuesday, I believe.’
‘The sixteenth?’
‘If that was the Tuesday, yes. He was at his office down in South San Francisco…’
He held out until seven-fifteen, about the longest ninety minutes of his life. Farris didn’t appear to appreciate his restraint.
‘What the hell, Hardy? What time is it?’
He told him, apologizing, explaining, keeping him on the line. ‘I’ve got a real lead,’ he concluded. ‘I don’t want to put you through all this again, give you another suspect to worry about, but I think I’ve found a place to finally get some physical evidence.’ He told him his conjecture about the tapes. ‘Please tell me you’ve still got them.’
‘We should,’ he said, ‘we keep them for six months.’
‘So you’ve still got the ones for June?’
‘I don’t know. Is that six months? I’m not really awake yet, you know.’
‘What I’d like to do is review the last two weeks of June, all the calls Nash made or took at his office.’
Farris sounded like he yawned. At least he was waking up. ‘That’s all? How about a full-scale audit while you’re at it?’
Hardy could take a little abuse if he was going to get what he wanted. He waited.
‘Shit, why not? You looking for anything in particular?’
‘Something, yeah, but I’d rather not say exactly what just now.’
‘I mention it because we keep logs. You won’t have to listen to all the tapes if you know who you want.’ He went on, sounding more like himself now. ‘I know all this taping seems like excessive security, but we’re in a high-tech field. There really is espionage. People have claimed oral contracts with me or Owen on some things. We like to protect ourselves.’
‘You don’t have to justify a thing to me. Where do you keep the logs?’
‘They’re in South City at the plant. We’ve got a vault.’ Farris sighed. ‘I don’t imagine this is going to wait until, say, business hours tomorrow morning, is it?’
Dorothy took the exit and headed the car up the hill away from the ocean. The wipers clickety-clacked on the flat windshield of the old VW bug. The windows on both sides were down an inch to act as defrosters. Both she and Jeff wore parkas for warmth. The heater didn’t work. The drive to Santa Cruz down Highway 1 from San Francisco had taken them a little over an hour, and they probably should have been in sour moods. Dorothy rolled down her window further and put her hand out, catching raindrops.
‘I don’t think I’ll ever hate the rain again.’
‘Maybe we should move to Oregon.’
‘Tierra del Fuego,’ she said. ‘It rains all the time there, I hear.’ They had used yesterday’s storm as an excuse to stay inside for the whole day, nothing to do but curl up, stay warm, enjoy each other. When Hardy had called they were ready to go outside. Not dying for it, but it had some appeal. ‘I’ve got to meet this friend of yours, Hardy. What a great idea!’
‘Well, he’s not exactly a friend. He’s a source.’
‘If you remember, I was a source for your bail story.’
‘You’re prettier than he is. A little bit, anyway.’ She slapped him. The car swerved and she straightened it. They were driving through a heavily wooded pine section back up behind the UC campus. A brown slick of water ran down the center of the street. There was a house about every two hundred yards.
‘I think that was our street you just passed,’ Jeff said. ‘Plus you said you’d have an idea by now.’
She pulled the car over and stopped, looking behind her at the street sign. She started making a U-turn. ‘I do have an idea,’ she said, ‘although I don’t know why I have to think of everything.’
Jeff put his hand on her leg. ‘I think of some things.’ She smiled, looked down, and covered his hand with her own, driving now with one hand. She squeezed it. ‘Yes, you do.’
The idea was to get them talking.
Len and Karl weren’t home – they were down at the gym, pumping iron together. They did it every morning, Karl’s mother explained. They were religious about it. Both were very disciplined boys, very structured. Len was currently runner-up Mr Northern California and Karl was going down to Santa Monica right after New Year’s for the Gold’s Gym prelims.
The three of them, Jeff, Dorothy, Mrs Franck, sat in the kitchen nook – brand new hardwood floors, a custom oak table, curved glass in the windows. They were drinking herb tea and Mrs Franck had cut up some fiber bars into cookielike things. The old Victorian house was large, newly painted, immaculate. Everywhere there were new rugs, framed prints on the walls, antiques.
‘But look at me, chattering on. You didn’t come here to talk about my sons – I call them both my sons. Len’s my son-in-law really, but he’s like a son. They were legally married last summer, you know.’
‘I think that’s wonderful,’ Dorothy said. Mrs Franck beamed. ‘I’m so glad. A lot of people don’t understand, you know. They see two men… and you know. I admit I had a difficult time accepting it at first. But if you could see them – and then offering to take me in -I mean they’re just wonderful boys, and they do love one another. And then having all this…’
Looking around, Jeff took the opening. ‘Somebody must be doing very well already.’
Mrs Franck beamed. ‘I know,’ she said. ‘This place now. It’s a dream come true.’
‘It is beautiful,’ Dorothy said.
‘I don’t think even Celine did it justice,’ Jeff said, almost as an aside to Dorothy. ‘I’m glad we came down.’
‘Are you really going to feature it in the Chronicle?’ Jeff nodded. ‘It’s why we’re here. Celine told me I couldn’t do a complete feature on restored Victorians if I didn’t see this place. But I still think she sold it short – I don’t think there’s one in San Francisco that’s this nice.’
‘Well, if the boys come home, don’t even breathe a bad word about Celine. They won’t hear of it.’
‘You’re all pretty close, huh?’ Jeff had his notepad out. Mrs Franck nodded. ‘She must be the most generous person God ever put on this earth.’
‘She was a help, was she?’
Karl’s mother rolled her eyes to the heavens. ‘You can’t imagine! Anything we needed. You should have seen the place before, and now…’ She gestured to take it all in. ‘So, is Celine like a sponsor, or what?’ Jeff asked.
‘You know, that’s the funny thing. I think she just took a liking to Karl. He had been up in the city, trying to work out some things – they have a coach up there who’s really marvelous – and he met her at her club. She’s in fine shape herself, you know.’
‘And what happened?’
‘Well, you have to know Karl. But he is the sweetest man. Everyone loves him. The two of them – he and Celine – just got to be friends. I think he was a little lonely for Len, up there all alone in the city like he was. He needed someone to talk to, and you know he’s so faithful – he didn’t want to lead on any other men – so I guess he and Celine just clicked and he started telling her about his dreams, you know, his life, his career, this house he and Len wanted to fix up.’ Mrs Franck lowered her voice and leaned toward them across the table. ‘Celine’s very rich, you know. Her father was Owen Nash.’
Jeff and Dorothy both nodded.
‘It’s a terrible shame about her father, isn’t it, that poor man. Has that judge been found guilty yet?’
Jeff told her the trial was still going on.
‘Well, it’s just so awful, the whole thing. Especially for Celine.’ She sighed. ‘And on top of everything else.’
Dorothy spoke up. ‘Are other things hard for her too?’
‘Oh, you know, even the rich. Sometimes I think it’s almost harder for them.’
‘Why?’Jeff asked.
‘Oh, you know. All the people after their money. You never know if anyone’s sincere. I think that’s why she cares so much about Karl. I mean, before he even knew about the money, that she had money… well, he’s just always been there for her. He’d do anything for her. We all would. I think she just needs some friends she can count on, who don’t pester her. She needs a place to stay where it’s not a hotel, where she’s not Celine Nash, just a normal person.’
That’s nice,‘ Dorothy said, ’everybody needs that.‘
Mrs Franck nodded. ‘We just let her come and go. She’s got her own room – well, I guess you’ll see it when we go on up – Karl fixed it up for her especially. Lord knows, one thing this house has is enough rooms. But that’s Karl. He says this house is her house. She’s welcome even if we’re not here.’
‘Is that often?’ Jeff asked.
‘Oh, you know, with the boys competing, sometimes she’ll come down on a Thursday or Friday and we’ll all be going off for the weekend someplace – Long Beach or Las Vegas. We come back Sunday or Monday and she’ll have a dinner or something waiting for us. She’s really so great.’
The Monterey Bay Club had a listing of all the sanctioned weight-lifting events of 1992. On June 20-21, Saturday and Sunday, the Mr California regionals had been held in San Diego at the Mission Bay Inn.
Dorothy sat in a booth at the Pelican’s Nest just off the Santa Cruz boardwalk, sipping a Bloody Mary, checking the shine on her new diamond. The rain had picked up again, slanting sheets of water across the bay. Jeff was coming back from the pay telephones. He walked easily with the crutches, barely seeming to need them when he was hot on a lead like this one.
He slid into the booth and kissed her. ‘Karl Franck and his mother checked in with Len Hoeffner on Friday evening, June nineteenth. Both were listed as entrants in the pageant.’
‘So Celine wasn’t here?’
‘She might have been. She might have come down on Friday night to see them off. I’m sure there are plane records somewhere, but I don’t think Hardy’s going to need them.’
‘And she was back by Sunday.’ It wasn’t a question.
Jeff nodded. ‘And so far as the Francks knew or assumed, she was there all weekend. They weren’t even lying, as far as they knew, when they said so. She probably had a nice meal waiting for them when they got home and a story about a relaxed weekend doing nothing.’
‘Except for killing her father.’
Jeff stared out the window at the rain. ‘Except, maybe, for that.’
Hardy had gone down to pick up Frannie and Rebecca. He took them out to breakfast and then swung by their house again for another day’s clothes and baby supplies before dropping them back at her former mother-in-law’s. He probably wasn’t going to be back home all day anyway and he had some nagging notion that things could get dangerous. Maybe that was ridiculous, but he’d play it safe anyway. He’d feel more comfortable if his wife and child were out of harm’s way.
The other thing he had done was call Andy Fowler, still at Jane’s, and cancel their noon appointment to go over his trial testimony. He told him about Chomorro’s decision not to allow his line of questioning on the ‘backward’ collection of evidence.
Fowler had been low-key. ‘Listen, Diz, when you get me on the stand I’ll simply tell the truth. I did not kill Owen Nash and they haven’t proved I did. Their burden, remember. I think it’s a good idea to take the day off, get a little rest.’…Take the day off. Sure.
Now he was closing the Owen Industries security logbook. It hadn’t taken much time. He had reviewed the calls to and from Nash’s office for the two weeks prior to his death. There was one call to Celine, though it was on Monday, not Tuesday, hardly by itself a critical flaw in Celine’s testimony.
He was sitting at Ken’s desk at his office – the one so much like his own – at Owen Industries in South San Francisco. Farris had come down with his security supervisor – Gary Simpson – at eleven-thirty, then left the two men to find whatever it was Hardy was looking for.
Simpson sat, legs crossed and bored, across the desk from him. ‘Okay,’ Hardy said, ‘we’ve got one hit. You mind if we give it a listen.’
Simpson shrugged and stood up, stretching theatrically. He was a tall man in jeans and a flannel shirt. That’s what I’m here for.‘ He motioned with his head. ’Back this way.‘
They walked, Hardy following, down the red-tiled hallways and around a couple of corners. The door marked ‘Security’ was over-sized, double-locked with deadbolts. Simpson’s office was to the right inside, and there was a small anteroom with two waiting chairs, an end table and a coffee table, and, in contrast to the rest of the building, no plants anywhere. These rooms were much colder than the others. Simpson gestured for Hardy to follow him back.
Behind his desk was a walk-in vault, and Hardy waited while Simpson unlocked and opened the desk, pushed a series of buttons inside a drawer, then did the same thing on a panel next to the door to the vault.
‘High-tech,’ Hardy said.
Simpson half turned. ‘Well, we’re in the business. We ought to keep up on state of the art.’
The door opened inward. Hardy had envisioned a bunch of drawers filled with tapes, but again was confronted with an array of buttons and lights – more state of the art. Simpson sat at a console featuring innumerable LEDs and three computer terminals.
‘What’s your number, there, on the left column, for the call you want?’
Hardy, still carrying the thin logbook, opened to the page. He read out the six-digit number and Simpson entered it on the board. There was a brief wait, then a click.
‘You’re lucky,’ Simpson said. This date gets automatically erased in two days.‘
‘You want to override it so it doesn’t do that?’
‘Sure, no sweat.’ He pushed a few buttons. ‘Okay,’ he said, ‘you ready?’
Hardy was surprised at the sound of Owen Nash’s voice -somehow less authoritarian than Hardy had imagined -raspy but consciously softened, Hardy thought, as though he were speaking to a child.
‘I know you’re unhappy with me,’ he said, ‘but don’t hang up, please.’
A longish pause. The digital sound reproduction was superb – Hardy could hear Celine’s breathing become more rapid.
‘All right,’ she said evenly, ‘I won’t hang up.’
‘We have to see each other,’ Nash said. ‘We need to talk about this.’
‘No. I don’t want to see you about this. I want you back -’
‘It’s happening, Celine. It’s going to happen.’
A breathy silence.
‘It can’t, Daddy, it just can’t. What about me?’
‘You’ll be fine, honey. I still love you.’
‘You don’t.’
Now it was Owen’s turn to take a beat. ‘I’ll always love you, honey. We just can’t go on… the way we have. I’ve changed. It’s different -’
‘Because of her.’
‘No, not just her. Because of me. Maybe she’s made me see it, but the change is mine, it’s my decision -’
‘I won’t let you make it.’
‘Celine…’
‘I won’t, Daddy, she can’t do this, she can’t have you -’
‘It’s not her,’ he repeated, ‘it’s me. And I have made the decision.’
‘I’ll change your mind. I know I can.’ Suddenly there was a deeper, insinuating tone. It was unusual enough that Simpson turned around to look at Hardy. ‘You know I can.’
Nash did not answer immediately. When he did, his voice was a whisper, as though wrung from the depths of him. ‘No, you can’t anymore, Celine. That’s done. That’s over. It’s come terribly close to ruining both of our lives. It can’t go on -’
A strident laugh. ‘I suppose you won’t see me, your own daughter.’
‘I’ll always see you, Celine. Whenever you want. Just not, not that way…’
‘I want one chance, Daddy.’
‘Hon -’
Almost screaming now, somehow without raising her voice. Then the throbbing voice again. ‘Please. Please, Daddy, I just need to see you.’
‘It won’t -’ Nash began.
‘If it doesn’t, I’ll leave it. I promise.’
Resigned. ‘When?’
‘Whenever you want. Wherever you want.’
A final pause, then Nash’s voice, thick. ‘I’ll call you.’
Jeff Elliot’s call was on Hardy’s answering machine at his office at home. Celine may have been in Santa Cruz at some point during the weekend, but neither Len nor Karl nor his mother could verify she’d been there on Saturday, since regardless of what they had told or implied to Glitsky, they hadn’t been home themselves.
The assistant district attorney in charge of sexual crimes was a woman named Alyson Skrwlewski. Hardy had barely known her, though he guessed that by now she’d have heard of him.
‘I just have a quick general question if you don’t mind.’
She considered a moment. Like most of the D.A.‘s staff, she wasn’t disposed to do any favors that would hurt a prosecution case. And even if she was inclined to be helpful, the situation – Hardy calling her this way on a Sunday afternoon – made her uncomfortable. ’Let’s hear the question first,‘ she said, ’then I’ll tell you whether I can answer it.‘
‘I guess I want to know is what are the most common manifestations of father-daughter incest?’
‘Well, I guess that’s general enough. I can talk about that. What do you want to know?’
‘Everything I can, but specifically, when the victim grows up, is she likely to do anything differently than other women who haven’t had that experience?’
‘Not when, if she grows up, you mean. Suicide would be high on the list.’ Hardy let her think. ‘Her relationships are going to stink, probably. She’ll be an enabler, maybe let her husband abuse her own daughter. That’s if she wants a husband.’
‘They don’t marry often?’
‘Oh, no, not that so much. I mean, this is almost too general. Every case is different. It’s just such an all-encompassing, terrible situation – they might marry five times, finding the so-called right mix of somebody who abuses them and babies them. It sucks.’
Hardy agreed, but she wasn’t telling him anything that might help him. ‘What about backgrounds?’
‘What about them?’
‘Anything you might expect to see more than in someone else?’
‘You mean with the victim, or the father?’
‘Both, I guess.’
‘Well, there’s some evidence that if the father didn’t interact immediately, normally, with the victim in the first years of her life, he’s more likely to be sexually attracted to her. If he never changed a diaper, never burped her, and so forth, the incest taboo doesn’t kick in.’ She sounded apologetic. ‘Hey, that’s a fairly new theory and pretty unprovable. With the women, at least there’s more data.’
‘What do they do?’
‘Well, a surprising number of them try to burn down their houses. No one really seems to know why, besides some obvious symbolic stuff, but arson is often in the profile.’
Hardy felt the hairs rise on his arms.
Skrwlewski continued. ‘And then, of course, there’s the prostitution, but everyone knows that.’
They all go into prostitution?‘
‘No, no. Not so much go into that life – although, of course, many do – but more have some isolated experiences. Their self-image is so low, they don’t feel attractive, you know. Yet they know men want them, daddy did, and they can take out their hostility by making them pay. It all gets pretty twisted around.’
‘Sounds like it.’
‘I guess some people don’t react as badly. But you’ll almost always get the manipulation, using sex for something else, the love substitute.’
Hardy’s stomach was a knot. He sat at his desk with his arms folded across his chest. Outside his window, the wind had died down and there were a few breaks in the clouds.
He had all the proof he needed for himself. But there was the same problem that had dogged the murder of Owen Nash from the outset – the lack of physical evidence.
Celine’s conversation with her father, provocative and revealing as it had been, never named a date, didn’t so much as mention the Eloise. It also hadn’t mentioned May, but Celine could argue with absolute credibility that she had simply been mistaken as to the day when she’d talked with her father about him meeting May on the boat. She had the one talk with him at his office, then another one later in the week – he said he’d call her, didn’t he? – and she’d gotten the two mixed up.
The Santa Cruz people being away didn’t necessarily mean she hadn’t been there. It meant her alibi was weaker – almost undoubtedly false – but by itself it still didn’t put her on the Eloise on Saturday.
Other hints came back to him. He remembered Celine telling him she’d only been a member of Hardbodies! for six months – in other words, from about the time she’d stopped working out on the Eloise when Owen had started seeing May regularly. Surely the headbands on the boat -never claimed by May – had been Celine’s. So had the lifting gloves, one pair of which she’d no doubt worn when she had fired May’s Beretta.
As with Andy Fowler and May Shinn before him, there was no apparent physical link tying Celine Nash to the murder of her father.
He had been right, though he took little satisfaction from it – Owen Nash had been killed by a jealous woman. But the woman had been his own daughter. And if he had been sexually abusing his own daughter since – he supposed – their trip around the world together when she’d been six years old, or even earlier, he certainly deserved whatever punishment she could give him. He knew she had done it, and now he knew why. More accurately, he knew she had done it because he knew why.
He thought of his own adopted baby girl, then tried to imagine the immense physical and psychological damage Owen Hash’s abuse had visited on his own daughter, and suddenly he found he had lost any desire to see Celine punished – she had been punished enough, hadn’t she? She’d never get out from under the private stigma, never away from the pain.
Deep down, he didn’t even blame her.
But, though punishment might not be his motive, he still had to prove it to clear Andy Fowler, and Celine was nobody to underestimate. Earlier in the morning he had sent Frannie and Rebecca away, deriding himself for considering that Celine might be dangerous. Now he was glad that he had.
She had shot and killed her father. She hadn’t blinked at, and had in fact done her best to bring about, the false accusation of May Shinn. From the gallery she had daily watched the slow skewering of Andy Fowler, his once-distinguished career in ruins. She had clearly been prepared to take Hardy’s marriage down with her to get him off her scent.
Hardy still had Andy Fowler to defend.
The trial would have to go on. Pullios couldn’t let it go now and without a smoking gun, Hardy’s accusations of Celine at this stage would come across as rank courtroom shenanigans – it might at last get him the long-promised contempt citation from Chomorro.
‘The key is my only hope, Abe. She’s got to have the key.’ Glitsky had listened patiently, for him. He interrupted only about every ten seconds, tired of Hardy’s meddling, not liking to hear that Celine’s alibi – the one he had provided – was suspect.
‘Now it’s Celine?’ he asked at last. ‘Too bad Nash didn’t have a dog. After Celine’s trial we could indict the dog.’
‘Come on, Abe, I’ve run it all down for you. We need a warrant. If she’s got the key, if it’s at her house…’
Glitsky stopped him. ‘Big deal.’
‘It proves she could have gone to the Eloise on Thursday morning.’
‘Proves she could have. Please, this one time, give me a break, Diz. It doesn’t prove anything. It’s just another theory. You know that’s how they’re going to see it.’
‘That’s why we need the physical evidence. The key. With my testimony -’
‘If anybody believes you.’
‘Why wouldn’t they?’
‘Because, my friend, it is in your own best interests to make up something like this. Like the gun not having been there when you looked on Wednesday night.’
‘It wasn’t there, Abe.’
‘I’m not saying it was. The issue here, as always, is proof. And I’m telling you how it’s going to look. Can you think of any judge in the city who would issue a search warrant on this?’
Hardy was silent.
‘Okay, how about in all of America?’
‘All right, all right, I understand, Abe. But I’m telling you, Celine did it. I’m telling you why. What am I supposed to do about that? There’s no way Andy Fowler’s going down for this.’
‘I hate to tell you this, ol’ buddy, but you want my opinion – he is unless you get him off.‘
Coming in a little after nine, the size of the crowd in the gallery was daunting. Hardy wondered if someone had leaked the news that his witnesses might not be appearing, that they’d be moving right along to Andy’s testimony, then closing arguments and jury instructions. The verdict might even come in today, and the media wanted to be there.
His witnesses had been subpoenaed, though, and they were on hand: Glitsky in a coat and tie; Glitsky’s lieutenant, Frank Batiste; Ron Reynolds, his polygraph expert; Art Drysdale sitting next to Chris Locke himself. Hardy wasn’t too surprised to see David Freeman, down for the show. Celine was sitting in her usual spot by the aisle.
Abe, he realized, had been right. His job had never varied. He had to convince the jury that the evidence did not warrant a conviction. He had come up with an idea to get to Celine if he had to – he might have to prove that she was guilty in order to get Andy off- but he didn’t want to confuse the two issues.
Andy, in a dark blue suit, entered with Jane. Still hurt and angry at Hardy for the grilling he’d given her on Saturday about her relationship with Owen Nash, she didn’t come through the rail as she usually did.
Fowler, however, seemed to have forgotten Hardy’s outburst at him on Friday about his stance, the transparency of his attachment to May – and sat down calmly at the defense table.
From his vantage now, certain that his client had not killed anyone, Hardy was more equable about the judge’s attitude and appearance, much of which was, he decided, a brave front. This was an innocent man. He could seem to remain above it all if he wanted, if it made him feel better.
Hardy was also beginning to understand a little of what was behind Andy’s apparent sangfroid. The man had, after all, spent thirty years on the bench, and it was in his blood to believe in the jury system – there would not be a miscarriage of justice here, he didn’t kill Owen Nash, the jury would come up with the right decision. If he didn’t believe that, what had he been doing presiding over the system for three decades?
If Hardy wanted the jury to believe that Andy was more of a regular Joe, it was because he thought it would make him appear more sympathetic. Now he was realizing that the jury’s empathy with Andy wasn’t the issue either. In reality, there was only one issue: did the evidence prove he had killed Owen Nash?
The judge entered and everyone stood. Hardy went to the center of the courtroom and nodded at the members of the jury, then at the judge. Chomorro had given fair enough notice. ‘The defense calls Inspector Sergeant Abraham Glitsky.’
He turned to watch Abe come forward, catching a raised eye from Pullios at the prosecution table. Well, object all day, Betsy, he thought to himself. This is relevant and I’m going to bring it up.
Glitsky was sworn in, and Hardy, after establishing Abe’s credentials as an experienced homicide investigator, began.
‘For the jury’s benefit, Sergeant, would you tell us how an inspector such as yourself gets assigned to a homicide investigation?’
Glitsky sat comfortably in the witness chair, having been there many times. Forthcoming, competent, with nothing to hide, he looked directly from Hardy to the jury. ‘It’s more or less random,’ he said. There are twelve inspectors and typically we each handle between three and six cases, rotating them as they come in. If it gets a little unbalanced, Lieutenant Batiste might shuffle one or two around.‘
‘All right. Now in this random manner, did you happen to get the Owen Nash homicide?’
‘Yes, I did.’
‘In that capacity, what was your role in collecting evidence?’
Glitsky gave it a minute’s thought. ‘I am in charge of coordinating all the physical evidence that we eventually turn over to the district attorney’s office if the matter is going to be charged. I also check on the alibis of suspects, potential motives. We look into paper records, bank accounts, telephone logs, anything we feel relates to the homicide. In this case I also supervised the forensics team that went aboard the Eloise, Mr Nash’s boat.’
Glitsky and Hardy had been over all this many times.
‘Did you go aboard the Eloise yourself?’
‘Yes, I did.’
‘And what did you find there?’
Glitsky went over the inventory – the bloodstains, the slug in the baseboard, the exercise equipment, the murder weapon.
‘When you got to the Eloise, was it locked up?’
‘Yes, the attendant there had to open the cabin for us.’
‘This was Thursday afternoon, June twenty-fifth, is that right?’
‘Right.’
‘Now, Sergeant, as your investigation proceeded, did it eventually center on one suspect?’
‘Yes, it did.’
‘Because of the physical evidence?’
‘To some extent. There were fingerprints on the murder weapon, a lack of an alibi, an apparent motive.’
Hardy had decided he might be able to introduce all of this testimony if he avoided having Glitsky draw any conclusions and if he kept May Shinn’s name out of it. So far, he was talking about the formal police investigation into the murder of Owen Nash – relevant testimony.
‘And based on that evidence, those suspicions, did you make an arrest?’
‘No, not right then. There wasn’t enough to justify it.’
‘But eventually you did make an arrest. Did you find more evidence?’
‘No more physical evidence, but I came to the conclusion that the suspect was about to flee.’
Hardy turned to the jury. ‘In other words, your suspect was exhibiting consciousness-of-guilt, and you felt justified making an arrest because of that.’
‘That’s correct.’
Hardy turned back to Glitsky. ‘Sergeant, this person with fingerprints on the gun, no alibi, no apparent motive, the one acting so guilty – was that suspect Andy Fowler?’
‘No, it was not.’
Hardy nodded and turned to Pullios. He had gotten through it without an objection. ‘Your witness.’
‘Sergeant Glitsky, when you did make the initial arrest in his case, the one Mr Hardy has just referred to, were you coerced in any way by any member of your department or by the district attorney’s staff?’
Hardy couldn’t believe it – Pullios was inadvertently introducing the very argument he had been trying to avoid because of Chomorro’s decision.
‘No. At that time it was a fairly standard investigation. Although we do try to move quickly.’ He looked at the jury. The trail of a homicide gets cold in a hurry.‘
‘Before making your arrest, did you wait for the complete fingerprint analysis on the murder weapon, People’s Exhibit One?’
‘Yes.’
‘And didn’t Mr Fowler’s prints turn up?’
‘Well, at the time, they were unidentified.’
‘You don’t deny that Mr Fowler’s fingerprints were on the gun, do you?’
‘No.’
‘But before you knew whose they were, you arrested another person? You told Mr Hardy your suspect had an “apparent” motive and alibi. Did you get an opportunity – before the arrest – to check that alibi?’
‘No, but -’
‘And isn’t it true that, in fact, your suspect had two eyewitnesses to where she was on the day of the murder -eyewitnesses you failed to locate?’
‘I wouldn’t characterize it as -’
‘Please just answer the question, Sergeant. It’s very straightforward.’
Glitsky looked down for the first time. Hardy thought it wasn’t a good sign. ‘Yes, that’s true. I didn’t locate them.’
Pullios walked back to her table, took a sip of water and read some notes, shifting gears. ‘Now, Sergeant,’ she began again, ‘how many homicides were you handling at this time, back in June?’
Hardy stood up, objecting. ‘The sergeant’s caseload isn’t relevant here.’
‘On the contrary,’ Pullios said, ‘Mr Hardy went to some lengths to establish Sergeant Glitsky’s professional routine under normal conditions. If these were not normal conditions, if the sergeant was under unusual stress, for example, the rigor of his investigations might suffer for it.’
Glitsky’s lips were tight. ‘The suspect was leaving the country,’ he said.
Chomorro tapped his gavel. ‘Please confine yourself to answering the questions, Sergeant. Ms Pullios, I’m going to sustain Mr Hardy here. No one is questioning the sergeant’s handling of his case.’
But, of course, Pullios had done just that: trying to discredit a prosecution witness who consorted with the defense.
As soon as Glitsky stepped down, Chomorro asked to see counsel in his chambers and called a ten-minute recess.
He stood in front of his desk. ‘Now look,’ he began as soon as Pullios and Hardy were inside, ‘I’ve warned you both about opening this can of worms and I’m not going to have it. This isn’t a conspiracy case on either side. Mr Hardy, that was some pretty nice navigating through some difficult shoals, but we’re not going on in this direction. I notice you’ve got Lieutenant Batiste up soon. Do I take it he’s going to say Sergeant Glitsky is a good cop who always follows established procedures?’
‘More or less.’
Chomorro shook his head. ‘Well, he’s not going to. I’ve also got some real concerns about how you intend to handle Art Drysdale. I think it’s all getting pretty irrelevant here.’ He held up a hand. ‘I’m not trying to cramp your style, Mr Hardy, but unless you’ve got something a little more substantive I think you might reconsider your direction. I know you’ll have the defendant up there half the day. I’ll let you summarize your procedure questions in the closing argument – up to a point. But I’m not inclined to let this thing degenerate into character assassinations of everyone in this building. Clear?’
‘Yes, Your Honor. But in that case, I do have a request. I’d like to add a witness.’
‘At this point?’ Pullios asked.
‘You’ve just asked me to cut out half of my witnesses. It doesn’t seem unreasonable to take another tack. It’s a small point anyway.’
‘Judge-’
Chomorro cut Pullios off. ‘Who is it?’
‘Celine Nash, the victim’s daughter.’
‘You’re calling her for the defense?
Hardy shrugged. ‘I’m calling her to get at the truth, Your Honor. The substance of her testimony will be access to the Eloise, Nash’s habits on board.’
‘How is that relevant to Andy Fowler?’ Pullios asked.
‘Come on, Elizabeth, I don’t want to give everything away. I’ll get to it when she’s on the stand.’ That wasn’t strictly true, but it was a small enough point, and Chomorro, having taken away, ought to give him one back.
‘All right,’ the judge said. ‘All right, Elizabeth?’
Pullios thought about it, then nodded. ‘Okay,’ she said, ‘why not?’
Testimony before lunch was taken up by Ron Reynolds, the polygraph expert. Hardy kept him on the stand longer than he thought really necessary, since the only important point he had to make was that Andy had volunteered to take the lie detector test. If Andy Fowler had been guilty, or even acting with a consciousness-of-guilt, he would not have done that, was Hardy’s point.
Of course, polygraph evidence of this sort was only admissible by stipulation. But Pullios had agreed to the testimony, provided she could make the point that Fowler hadn’t actually passed the test. Hardy didn’t need Reynolds’s point, but Pullios couldn’t do much with hers, either, and Hardy needed Reynolds to take up most of the rest of the morning on the stand – he had to take the good with the bad.
So he ran Reynolds around with how the polygraph worked in general, why people did well or poorly on it, margin for error and so on. On cross, Pullios, as expected, leaned on the fact that Fowler, with his vast experience, would conceivably know how to beat the test and therefore could have volunteered to take it knowing he could throw off the results.
But for Hardy, it accomplished his ultimate goal. He did not want to call Celine Nash before lunch. Suddenly, after the recess in Chomorro’s office, the course of the trial lay clearly charted before him. He would take Celine, the witness, baiting the trap, after lunch. Afterward, Fowler would testify on his own behalf, then perhaps Hardy would get to his closing argument.
Tomorrow, Chomorro would give the jury their instructions and leave it in their hands.
But today, after she testified, Celine would remain in the courtroom, as she had every day, until that day’s business was done. He was counting on the fact that she would not risk altering her routine, not when she was so close to winning.
‘Celine Nash.’
She reacted almost as though she’d been hit, turning in her seat abruptly to look around her. Recovering her composure, she stood in the gallery and walked up through the railing, looking questioningly at Hardy.
She settled herself into the witness box. She wore charcoal pinstripes over a magenta silk blouse, the effect of which was, somehow, both severe and demure. Her hair was pulled back, accenting the chiseled face, the aristocratic lines. Hardy steeled himself and moved to his spot as she was being sworn in.
‘Ms Nash, I’ve just a few questions, if you feel up to them.’
She nodded, wary, looking to the jury, then to Pullios. When she came back to Hardy she seemed to relax, getting into the role. ‘Go ahead, Mr Hardy, I’m fine.’
‘Thank you. You and your father, Owen Nash, were very close, were you not?’
‘Yes, we were.’
‘And you spoke often, saw each other often?’
‘Yes. At least once a week, often more.’
‘Going sailing, having dinner, that type of thing?’
‘Yes.’
‘Now in the last few weeks of your father’s life, did this pattern continue?’
‘Well, yes. I know I talked to him the week -’ she lowered her eyes – ‘the week he died, for example. It had been normal.’
‘And did you talk about any particular subject most of the time?’
‘No, not really. We talked about a lot of things. We were very close, like old friends.’
‘I see. You talked about a lot of things – business associates, sports, gossip, personal matters?’
‘Pretty much, yes…’
‘Now, during these last weeks, did he ever mention the name of Andy Fowler, either to you or in your presence?’
She considered. ‘No, not that I remember.’
Hardy walked back to the defense table and picked up some papers. ‘I have here,’ he said, ‘a copy of the transcript of your testimony before the grand jury in which you said that your father had told you he was planning on going out on the Eloise with May Shinn on the day he was killed. Do you remember that testimony?’
‘Yes, of course.’
‘And yet we know that May Shinn did not go out with your father that day.’
It wasn’t a question, and Chomorro took the opportunity to lean down from the bench. ‘I trust you’re going somewhere here, Mr Hardy.’
He really wasn’t. He was telling Celine he hadn’t forgotten about that testimony. He apologized to the judge and went back to his table, replacing the transcript.
Turning, he started over in a mellower tone. ‘Ms Nash, your father took a great deal of pride in his boat, did he not?’
Easier ground. ‘He loved it,’ she said, sitting back. ‘It was like a home to him. His real home.’
‘You were familiar with it, then? You spent a lot of time on board?’ Casual.
‘Well, yes. But not so much recently… He was taking May out on it a good deal.’
‘Do you know, did you father tell you, if May Shinn had a key to the Eloise?’
Pullios stood up. ‘Your Honor, I know we’re on boats here, but this is a little too much fishing for my taste.’
‘Mr Hardy, do you have a point?’
‘Your Honor, sometime between Wednesday night, June twenty-fourth, and the next afternoon the person who killed Owen Nash brought the murder weapon back onto the Eloise. That person would need a key.’
‘Your Honor! This is outrageous. How does this unsubstantiated claim relate to this proceeding, to Mr Fowler, to anything? No evidence has been entered, even hinted at, on this point.’
Hardy knew this would be the response, but he had to get the message to Celine that he knew. He kept calm.
Her face, he noticed, had gone pale, although at the moment no one else was looking at her. He was at the center of the storm.
‘Mr Hardy,’ Chomorro said, ‘we’ve heard Sergeant Glitsky testify that he found the gun on Thursday aboard the Eloise. Do you have a witness with a different version of events?’
‘No, Your Honor, not yet.’
‘Well, this is neither the time nor the place to find it. Is there anything relevant you’d like to ask Ms Nash? Otherwise…’
He leaned over toward Celine as Hardy said no. ‘The court apologizes, Ms Nash. If Ms Pullios has no objection…?’
‘No, pass the witness,’ Pullios said.
When Hardy sat down, Fowler whispered to him. ‘What the hell was all that about? If that’s the best we got, then let me up there.’
Celine was cool, but he’d always known that. She walked by his table without a glance at him. He turned to watch her go back to her seat on the aisle. Thank God, he thought. As he’d assumed, she wasn’t leaving.
Finally Andy Fowler took the stand, and Hardy led him through the testimony they had rehearsed fifty times. He did look good up there, Hardy thought. Self-assured, confident, speaking clearly, giving the jury his attention and respect.
They went through it all from the beginning, taking the good with the bad. There were a few rough moments, such as when Hardy asked him, as they had decided he would, just why it was he had hired Emmet Turkel.
‘I didn’t hire him to find out about Owen Nash,’ Fowler said. ‘I don’t deny that was what he found, but I just wanted to know why May would not see me anymore. I thought she might even be in some trouble. I just wanted to know, and she had made it clear she didn’t want to talk to me about it.’
They went over how the fingerprints came to be on the clip of the gun, the tortuous and unlikely route that May’s proceeding had traveled to wind up in Andy’s courtroom.
‘And once it was there,’ Fowler said, ‘I felt it was too late. It was a mistake, a terrible mistake, but it wasn’t something I had contrived. It just happened – it fell in my lap.’
He admitted the lies to his colleagues, portraying himself – accurately, Hardy thought – as a man torn between his private needs and his professional position. ‘I should have asked her to marry me months before and taken whatever came from that,’ he said. ‘But I never thought about losing her until she was gone. And then, again, it was too late.’ Flat out.
As to his weekend in the Sierras, what could he say? He had gone up to clear his head, with the express purpose of seeing no one. He had succeeded only too well. He wished he hadn’t. ‘It would have saved the state’ – he took in the jurors – ‘and the jury much time, trouble and expense.’
In all, it took less than two hours of relaxed if meticulous testimony. Fowler remained composed, saying what needed to be said.
Pullios was obliged to charge not like a bull but like a terrier, holding onto his trouser leg, hoping to pull him off balance. Watching her work, Hardy was struck once again by her passion. Here was no act – every ounce of her dripped with the conviction that Andy Fowler lied with every breath he drew and had cold-bloodedly murdered Owen Nash.
‘Would you say, Mr Fowler, that you are an avid camper?’
The judge smiled. ‘No, not particularly.’
‘How many times, roughly, have you been camping in, say, the past year?’
‘Just the once, I’m sure of that.’
‘How about in the past couple of years?’
‘No.’
‘No what?’
‘No, I’ve only gone that once in the last few years. I’m a pretty busy man. Or have been…’
‘And yet last June, out of the blue, you suddenly decided to take a weekend off and go backpacking in the high Sierras?’
‘That’s right.’
‘Would you mind telling us where you ate on Friday night? Friday night was the night you left town, wasn’t it?’
‘Yes. It was one of those spots up Highway Fifty above Placerville. I don’t remember the exact name.’
‘Do you recall what town it was near?’
Fowler shook his head. ‘No, I’m really not too familiar with the area.’
‘Do you remember what you ate?’
His frown grew pronounced. ‘I believe I ate a steak.’ He tried some levity. ‘But since I’m under oath I won’t swear to it.’
She kept at it. Was it dark when he had finished dinner? Where had he spent the night exactly? When did he hit the trailhead? What was his destination? How had he found it? What did he bring with him to eat on Saturday night?
It was getting to him. ‘You know,’ he said, ‘I didn’t give a great deal of thought to that weekend until after I was charged with this crime. It was simply a weekend away, not one to remember.’
‘Yes,’ Pullios said, turning to the jury, ‘we can see that.’
She moved along, as Hardy feared she would, to the stipulation about Fowler knowing not only that the gun was on the boat but exactly where it had been kept.
‘And this was after you had broken up, you found this out?’
‘Yes.’
‘When May Shinn wasn’t talking to you to the extent that you had to hire a private investigator to find out why she wouldn’t see you?’
‘Well, she talked to me that once.’
‘Why did she do that?’
‘I don’t really know. I called and she happened to answer the phone. Usually it was set to her machine. But she picked up, so we talked.’
‘And just casually talking, she happened to mention that her Beretta was in the desk at the side of Owen Nash’s bed on board the Eloise?’
‘No, it wasn’t quite like that.’
‘Would you tell us, please, what it was quite like?’
Hardy looked at the clock. She had at least another hour today and she was, to his regret, hammering at the evidence they did have, avoiding for the moment the entire consciousness-of-guilt issue, although he knew that too would come. Also, and perhaps worse, Andy seemed to be losing it a little, beginning to come across peevish.
‘Let’s talk about Mr Turkel again. You’ve testified that you were curious about why Ms Shinn was breaking up with you?’
‘That’s right.’
‘And so you hired Mr Turkel?’
Short questions, little tugs on the trousers. But they were doing the job.
Fowler nodded wearily. ‘Yes, I hired Mr Turkel.’
‘How much did he charge you?’
‘I think it was about a hundred and thirty-five dollars a day, plus expenses.“
Pullios brought in the jury again. ‘One hundred thirty-five dollars a day. And did you pay for his plane fare out here?’
‘Yes.’
‘And back?’
She brought out that he had spent over $1,500 to obtain detailed information on Owen Nash and May Shinn. ‘And now, having spent all this money, what did you intend to do with this information?’
‘Why, nothing. I just wanted to know, as I’ve explained.’
‘You paid fifteen hundred dollars to find out something about which you intended to do nothing?’
That’s right.‘
Hardy was nervous. Confidence eroding, his client, now into his third hour on the stand, eyes shifting from Pullios to Hardy to the judge, was coming across, body language and all, like a pathological liar.
Pullios saw that, of course, and it led her naturally into all the real lies – to his friends, associates, to anyone who would listen.
And then, finally, the litany of his admitted transgressions designed to show Andy’s consciousness-of-guilt. How long have you been on the bench? Did you swear a sacred oath never to subvert the judicial process? Have you ever previously recused yourself from a case? Oh? Several times? Were the grounds as strong as they were here? Had he ever even heard of another judge putting up bail for a defendant? On and on and on.
Hardy took a page of notes, then gave up on it. Pullios wasn’t twisting the facts – she was using them very effectively to create a character and a circumstance that made murder not only seem consistent but inevitable.
At a quarter to five she finished at last and turned Fowler back to Hardy for redirect. He only had one area to which he wanted to return, where he thought he might be able to repair some of the damage.
‘Mr Fowler, was your conduct regarding the May Shinn matter investigated by the Ethics Committee of the Bar Association of California?’
‘Objection.’ Pullios was sounding a little weary. Chomorro knew the end was in sight and cut Hardy a little slack. ‘Overruled.’
Hardy repeated the question and Fowler, on the stand, nodded. ‘Yes, it was.’
‘And you were, in fact, disbarred for what Ms Pullios has been calling your egregious misconduct?’
Hardy knew that Andy had been reprimanded, but not otherwise disciplined on the Shinn trial issue. And even after Andy was indicted for murder, the Bar Association wasn’t going to disbar – or do anything – to a fellow attorney until he had been convicted. ‘No, I was not.’
‘Are you, in fact, as we sit here now, a member in good standing of the state bar?’
‘I am.’
‘All right, thank you.’
Fowler had wanted to talk. Jane wanted to argue. Fran-nie, he was sure, wanted him to come home. Jeff Elliot had arrived in the gallery and wanted an interview.
But Celine had been leaving the courtroom and there wasn’t time for any of that. He had stuffed his papers into his briefcase earlier and now, making excuses, pushed his way through the gallery and out into the hallway. She was fifty feet ahead of him as she left the building through the back door by the morgue.
A cold night had fallen. The air still felt damp from the storm, although it had stopped raining. Hardy jogged to keep close. He too was parked in the back lot and got to his car about when Celine reached hers. He left the lot three cars behind her and followed her uptown across Market to Van Ness, then north to Lombard, always keeping at least one vehicle between them. He had to run only two red lights.
On Lombard, as she turned west, he ventured closer in the lane next to her. She drove a little over the speed limit but not recklessly. For a moment as they approached the Golden Gate Bridge turnoff, he felt a moment of panic -he was wrong and she was going to Sausalito or somewhere, maybe to visit Ken Farris.
But she took the turnoff, avoiding the bridge, and swung out through the swaying eucalyptus of the Presidio. He had never been to her house. He didn’t know where she lived. But he was certain she was going home.
He might have guessed. Her house was less than three blocks from her late father’s palace in the Seacliff section, really not so far from his own house in distance, although light years away in other respects. Celine’s place, however, was not a palace – it didn’t appear much bigger than Hardy’s.
She turned into the driveway and he pulled up to the curb across the street and killed his lights.
This, he knew, was a long shot, but it had come to him last night as the only possibility left to break the evidence deadlock. If Celine still had her key to the Eloise, it would be over. It was the only explanation of the missing gun, how it had come back into the drawer after he had seen it empty on Wednesday night. What he had to do was get it, find it on her, in her possession.
Ring the bell, knock her down, tie her up and search the house – but he couldn’t do that. He had to wait. She could be flushing it down the toilet, throwing it into the garbage. But he didn’t think she’d do anything like that. She’d want it out of the house, away from the area entirely. If she had it, her nature would make her get rid of it dramatically. He hoped. So he waited.
A light went on in the upstairs window, her shadow moving across it. Even in the cold, he realized his palms were sweating. What was he doing this for? He should have somehow cajoled or forced Abe to come along. But here he was. He waited.
The light went out, then another one downstairs. He heard a door slam, then a car door open and close, and he turned on his own ignition.
With his lights off, he swung a U-turn and followed her back the way she had come on the El Camino del Mar. But she only drove for about three minutes before pulling into the darkened parking lot at Phelan Beach.
The night was eerily still after the rain. Eucalyptus leaves scratched and clacked overhead; a foghorn bellowed from far away.
Hardy had let her get into the trees before he parked by the entrance and started to jog, again, through the light forest.
She had driven to the front of the lot, turned off her engine, doused her lights. The Golden Gate Bridge loomed spectacularly overhead in the clear night air. The door opened and she got out and, without turning or hesitating, started for the beach.
A three-quarter moon reflected off the water, casting a light shadow as she walked unhurriedly across the sand. Hardy got to the edge of the beach and pulled off his shoes. She was halfway to the water when he broke into a run toward her.
She heard. As he closed the distance, she turned.
‘Celine.’
It was almost as if she had been expecting him. This was no generalized fear – she knew who he was, and seeing him she nodded as if to herself, then whirled with her right hand in the air.
Hardy lunged for her wrist, caught it and closed his other hand around hers. God, he’d forgotten how strong she was! She pulled against him, kicking at his legs, his groin.
He held her, never relaxing his grip on her hands, forcing himself to kick back, catching her at the side of the knee, sending her twisting down, falling on top of her.
Still struggling, she bit into his arm near the shoulder. Spinning around, he forced his weight down on top of her. Her legs came up, trying to knee him, throwing sand over them both, into faces and eyes.
He rolled over onto her hand, holding it clenched tight beneath him, and began to pry at the fingers. With her other hand she reached up, digging her nails into his scalp. He felt the skin tear down into his neck.
She was getting weaker. The vise grip of her hand slowly opened enough for him to feel what she held there, to grab it and roll away.
He didn’t know if that would end it so he kept rolling until he got a little distance, maybe six feet, then came to his knees facing her, panting from the exertion. Celine still lay there in her tailored charcoal suit, now torn to rags.
Gasping for breath, he didn’t take his eyes from her. He looked down at the key in his hand – attached to a little ring and a small block of wood. He knew without being able to see it that the wood would have written on it, either burned or indelibly marked, the word ‘Eloise’.
Gradually he became aware of the lapping of the water against the beach. Celine turned onto her side and curled up in a fetal position. Her sobbing ignored him… it was totally private, and chilling. A keening for all she had lost, for all she never had.
Owen Nash grinned into the wind as he brought the boom around. His cigar was out, half-consumed in his mouth. They had been out on the water for two hours and it was going to be all right. He had told Celine he was going to marry May. She would see, she’d eventually accept it. And now she could be free of him and the thing they’d begun so long ago that had bound them in guilt and lust for so long he couldn’t remember when it hadn’t been there.
They had not talked much yet but he had always been able to control her, and now it was just a matter of waiting for the right moment.
The door to the cabin opened and she came out, wind whipping that fine wet hair. He had started telling her as they were going through the Gate, together fighting the current and the wind. Afterward – okay, it shook her when she saw he meant it – she said she needed to be alone. Even with the rough seas, she wanted to go below and do some aerobics, let it all settle. Get loose. She had apparently taken a shower, and stood now in the doorway to the cabin wrapped in a turkish robe.
Barefoot, she came up another step onto the deck. The robe swung open and he caught a glimpse of the front of her, breasts and belly, her shaved pubis. She did not pull the robe closed, but came toward him unsteadily in the rocking boat, her eyes glazed, he presumed, from the exertion.
Coming around the wheel, she pressed herself up against him, opening the robe. ‘Come below, Daddy.’
He had to fight for his breath, for the control he swore he would have. ‘Honey, I’ve told you…’
Her hand went down to him, caressing. ‘I know what you’ve said. I don’t care if you have her, but you’ve got to keep me. You’ve got to keep us.’
She found him under the green jogging pants, and against his will, he began to respond. As he always did. Suddenly the boat heeled and pushed him up against her, both of them against the wheel. ‘Come below,’ she whispered, holding him.
But this could not go on – he would never let it happen again – he had promised himself and he had promised May. He had found something real for the first time since his marriage to Eloise. It was his last chance, and his selfish, beautiful daughter was not going to take it from him, as she’d taken Eloise years before, because of his weakness for her flesh.
Hating himself, and hating her for what they’d both become, he pushed back against her. ‘No! No!’ He shoved her hard. ‘I said it’s over, Celine! Goddammit, over, leave me alone.’
She went down on the slippery deck, the robe spilling open around her. And then he saw it in her eyes: the hate he knew had to be there -you didn’t live this way without hate.
Glazed but dry-eyed, she stared at him as if he were an alien force, then she gathered herself up, wrapped the robe around her and went below without a word.
He had lost the wind, goddammit. His cigar was gone, too.
The drizzle increased – visibility was about a hundred yards. He squinted through the mist, checked his compass, making sure he was on a south or southwest heading. He didn’t want to beach her. He listened for the telltale sound of breakers.
She’d be all right, he thought again. It was the kind of thing that would take some time. He ought to have factored that in instead of just laying it on her. She’d get used to the idea eventually. He was sure.
She emerged again a couple of minutes later, still in the robe, but more under control now. There – see? – he was right.
She’d work it out. You couldn’t expect a woman not to try some histrionics.
He was surprised to see her wearing her lifting gloves – she must have wanted to work off some of it. He thought it was getting to be time to head the Eloise back in.
‘Daddy.’
He wasn’t cruel. He didn’t want to hurt her. If she were ready to talk again, he’d talk. Gently. He understood her. He came around the wheel and started walking toward her.
She took the gun from the pocket of the terry robe and leveled it at him. He stopped, tried to smile, as he might with an errant child, reaching out one hand. ‘Honey…’
She lowered her aim and fired. He felt a punch, then a pain deep in his groin. His legs went dead and he dropped to his knees, looking up at her with a surprised expression, at the tiny muzzle of May’s tiny gun. ‘My God, Celine, you’ve killed your father…’
She shook her head. ‘Not yet, Daddy.’ He saw the muzzle come up and settle on his heart.
FOWLER DIDN’T DO IT
Not-Guilty Verdict Returned in Nash Murder Trial
by Jeffrey Elliot
Chronicle Staff Writer
Former Superior Court Judge Andrew B. Fowler yesterday was found not guilty of the murder of financier Owen Nash. The jury deliberated less than two full days in returning the verdict in favor of the former judge, who had been a fixture on the San Francisco bench for over three decades.
The trial marked a personal victory both for Fowler and for his attorney, Dismas Hardy, an ex-prosecutor for whom this trial marked a defense debut. Hardy insisted that he had never doubted his client’s innocence, that Judge Fowler had himself been a victim of infighting within the city’s judiciary.
‘There was never any physical evidence tying the judge to the crime,’ Hardy said. ‘Of course that doesn’t mean the jury might not have found him guilty. But this verdict is a wonderful vindication of the system.’
‘We weren’t happy from the beginning,’ said jury foreman Shane Pollett. ‘They’d already arrested someone else on pretty much the same evidence. It wasn’t that Fowler hadn’t done some bad things, but nobody proved he’d killed Nash. The prosecution had to prove Fowler killed Nash, and they didn’t do it.’
This verdict marks the second defeat for the district attorney’s office surrounding the death of Owen Nash. Last summer the office charged Nash’s mistress, May Shinn, of the murder, but subsequently was forced to drop the charge when her alibi was corroborated by two witnesses.
District Attorney Christopher Locke denied there was any ‘witch-hunt’ of Judge Fowler. The evidence,‘ he said, ’and we looked at it very closely for several months, strongly implicated the judge. But the jury has spoken. That’s how it works. That’s the end of it.‘
Asked if he was going to pursue another investigation into the death of Owen Nash, Locke said that that was up to the police department. ‘If they bring us another suspect and new evidence, of course we’ll move on it immediately.’ There are, however, no new suspects at this time.
Judge Fowler plans to spend the next few weeks in Hawaii and then resume his position as a partner in the firm of Strand, Worke & Luzinski.
Hardy sat across from Jeff Elliot’s desk in the Chronicle Building. ‘What do you mean Celine didn’t do it? What about everything I found out in Santa Cruz?’
‘Speaking of which, I trust you had a good time,’ Hardy said. ‘You should have, for four hundred dollars. What costs four hundred dollars in Santa Cruz?’
Elliot said, straight-faced, ‘I think we rode the Roller Coaster a hundred and forty times each. But listen, getting back to this thing, my story -’
Hardy stopped him. ‘All you found out was she might not have been there, right?’
Elliot nodded.
‘You got anything anywhere that puts her on the boat?’
‘No.’
‘Ask yourself why this sounds familiar.’ Hardy hated to take Jeff’s story away, but he wasn’t in the prosecution business anymore. ‘Look, Jeff, you can try to get some police action on this, but they won’t thank you for it. I’ve tried, I know. Owen Nash gives everybody downtown a bad headache. You got any reason why you think Celine might have done it, other than I told you she might have?’
Jeff shrugged. ‘Somebody lies about their alibi -’
‘Everybody has lied about their alibi in this case. Or looked like they have.’ He put a hand on Jeffs shoulder. ‘You’re welcome to it, Jeff, but it’s a dry well. It’s just another maybe.’
Elliot turned to his computer, squinted at something, came back to Hardy. ‘What made you change your mind? I got the impression you honestly thought she’d done it.’
Hardy crossed a leg over another one. ‘That was before my client was cleared, Jeff. If I’d needed to find out who killed Nash to get Fowler off, I suppose I would have kept on it. But now… Andy didn’t do it. That was my main interest.’
‘You’re not curious?’
Hardy got cryptic. ‘No. I know everything I need to.’
‘Keeping life simple, right?’
Hardy nodded. ‘Something like that.’
On December 21, Hardy stood holding Rebecca in one arm and a package in the other at the Clement Street post office. With the Christmas rush, he had waited for almost twenty minutes by the time he got to the window.
The clerk took the package, a box about two-by-three inches. ‘No way,’ he said.
‘No way what?’ Hardy asked.
‘Christmas, man. There’s no way.’ The clerk looked at the address. ‘I were you, I’d just deliver it. It’s only half a mile, if that. Be there in fifteen minutes. Nice houses up there. I love it when it’s lit up.’
‘It’s not a Christmas present,’ Hardy said, ‘it doesn’t have to get there any time.’
‘Probably won’t make it till New Year.’
‘That’s okay. It doesn’t matter.’
The clerk shook the box. ‘It’s not fragile, is it? Sounds like keys or something.’
‘That’s what it is,’ Hardy said. ‘Somebody lost some keys.’
He read about it on the day his son, Vincent, was born. He was still in St. Mary’s hospital, on the top of the world. He had spent the night coaching Frannie, breathing and yelling and pushing with her until nearly dawn when the head had come through and then, five minutes later, the doctor told them they had a boy.
Frannie had pulled Hardy into the bed with her and the doctor lay the baby between them. The two of them looked in wonder at the life they’d produced. Vincent cuddled into both of them.
That afternoon Uncle Moses brought Rebecca by. He also brought the day’s newspaper. After Moses had gone, Frannie had gone to sleep with Rebecca on the bed. Hardy started reading the Chronicle. On page 3, Jeff Elliot had written a brief story outlining the stabbing death of Celine Nash, ‘the daughter of the late financier Owen Nash,’ at a rough trade hotel in the Tenderloin District. There were no suspects yet in connection with the slaying and it was presumed that the victim, who had a past history of occasional prostitution, had simply gotten unlucky with a John.
Hardy closed the paper. Out the window of the hospital room, the day was fading into an overcast dusk.
A while later, they brought Vincent in for feeding. Hardy gave Frannie a distracted smile, then looked back out at the falling night.
‘Are you all right?’ Frannie was nursing the baby, studying him. ‘What is it?’
Hardy shook himself away from his thoughts. He got up from his chair and came over to her bed. Lifting the sleeping Beck onto him, squeezing in next to Frannie, he said, ‘Nothing. Just the world out there, I guess.’
‘You know what,’ she said. ‘That’s not the world. The world is on this bed right now.’
Frannie laced her fingers in his hand. Hardy felt his daughter stir against him and his son made some contented sounds. He tried to blink the room back into focus, but it didn’t work, so he brought his hand up to his eyes.