At 8 a.m. on Wednesday, February 17, Dismas Hardy stood at the head of the huge oval table in the Solarium and looked with satisfaction at his assembled team of investigators and associates. Three weeks ago, no one could have predicted this assemblage. Certainly, on the day of Cole's arraignment only two weeks ago, several people in the room would have counted themselves among Hardy's opponents. At that time, only he and David Freeman had been in Cole's corner, and even they were reluctant at best.
Now he still had Freeman, who would continue on as Keenan counsel if the death penalty case did in fact get to full trial, which Hardy desperately hoped it would not. But there was also Treya and Abe, the three musketeers, Jeff Elliot in his wheelchair. The team had also acquired another defense attorney, who simply wanted to be part of it. This was David's friend Gina Roake, who seemed to have her own slightly inarticulated bone to pick with Torrey and perhaps Dash Logan. The case had touched a lot of nerves in this room and around the city, and now they were within hours of the opening gavel.
The hearing was beginning with a high enough profile, and would have kept it because of Elaine's notoriety alone. Pratt's political posturing, which had led to Elliot's much-criticized reprimand and highly-applauded resignation, had raised the stakes. But the events of the last two days had brought things to a fever pitch.
On Monday morning, Inspector Sergeant Ridley Banks, the primary officer in the case, the man whose interrogation of Cole Burgess had led to his confession, was declared a missing person. The authorities suspected foul play, but no body had turned up – Ridley was still missing. As the last person known to have spoken to Banks, Hardy came forward with the information that the inspector had told him he was going on an interview related to both Cole Burgess and Cullen Alsop.
At this news, Gabe Torrey effectively withdrew the olive branch he'd extended to Hardy on the McNeil matter by calling a press conference covered by every print and television journalist in the city, and publicly accusing him of lying. There was no proof of this alleged phone call. This was one of the sleaziest defense tricks he'd ever seen. Hardy was stooping to new depths, obviously trying to use a missing, perhaps dead, man's voice to infer that the police had doubts about the man who'd confessed to the crime. There were no such doubts.
At the same time, Torrey chose to ratchet things up significantly by floating his own reason why the former chief of homicide had prematurely delivered prosecution evidence to the defense – and lost his job for his efforts. It wasn't really because he had any doubts about the guilt of Cole Burgess. No, Glitsky's defection and the subsequent betrayal of his fellow officers was merely a self-serving effort to avoid prosecution for police brutality himself. Torrey had several witnesses who would testify that the lieutenant had illegally manhandled the defendant on the night of his arrest.
In the meanwhile, the sidebars and other human interest stories kept up the heat. As promised, John Strout declared the death of Cullen Alsop an accident/suicide. An overdose on the day of an inmate's release was nowhere near unknown in the city. The police crime scene investigation unit found no evidence that supported any other finding.
And all the while, the seriousness of the crime itself lent a gravity to the case. This was murder in the commission of a robbery, a capital case. The headlines had screamed it anew just yesterday morning; the anchors chimed it throughout the day. The DA, as she'd promised, was going to ask for death.
Now, surveying the scene in front of him, Hardy felt that they had worked like galley slaves for the past week and done all that they could. They were not unprepared, but he remained a long way from confident. The probable cause standard of proof in a preliminary hearing, after all, was nowhere near the reasonable doubt standard of a jury trial. All the prosecution had to do was demonstrate enough to bring a 'strong suspicion to a reasonable mind' that a crime had been committed and that the defendant had committed it.
During all the time in the past week that he'd spent organizing the efforts of the rest of the people in this room, he'd been unable to completely shake the fear that his strategy – bringing out all his guns at the prelim rather than saving them for the trial – was misguided. What, he kept asking himself, was the hurry?
And indeed, one of the cliches lawyers spouted to their clients about why it was always better to delay – 'Look, if we put this off long enough, you never know, the cop who arrested you might die and won't be able to testify against you' – had already come to pass. If Hardy waited longer, maybe Torrey would die, Pratt would be voted out of office, someone else with a guilty conscience or a slight case of schizophrenia could come forward and admit to the crime. Anything could happen.
But he was committed now, and finally satisfied that his decision was the right one. Jury trials brought with them their own insecurities, and they were of a subtly different nature. With a panel of citizens in front of you, the proceeding inevitably became slightly less intellectually rigorous. This was not to say that both sides didn't need to cover their factual bases, but a human element always came into play, and thus there was an opportunity to play to emotion, to feelings.
A jury of twelve was going to hear an horrific litany of Cole's uncontested actions that night – ripping off the earrings, breaking Elaine's finger to get the ring, and so on. They would know that he'd fled from the police. He'd fired the gun – perhaps once, possibly twice. They would likely witness the videotape of the confession despite Hardy's motion. After all that, try as he might, and no matter how brilliant a defense he was able to mount, Hardy could not believe that any jury would acquit. It could simply never happen in the real world.
So in a true sense, the prelim was Hardy's best chance. Judge Hill was a crotchety old fart, sure enough, but he was careful and conservative. Perhaps the judge's brain was not one that ascended to the exalted heights of 'decent legal mind' as Hardy's own apparently did, but the Cadaver had a reputation for intelligence nevertheless. He was also an experienced jurist. He would be fair-minded, although after Hardy's intemperate outburst at the arraignment, there might be a hump to get over at the outset. Ironically, though, Hardy thought it even possible that the judge would cut him more slack in the courtroom precisely because he was angry with him – he wouldn't want it to seem that his personal pique affected his judgments.
In fact, he would have to give Hardy tremendous latitude. A preliminary judge would admit evidence that a trial judge would exclude as confusing or irrelevant or too time-consuming. In the name of making 'a complete record', Hardy could ask Judge Hill for almost anything and the court would at least hear it before, inevitably, holding his client over for trial. Indeed, Hardy was virtually compelled to advance every single fact and theory in support of his client, no matter how tenuous. He wasn't going to open himself up to an appeal based on incompetent counsel that the 9th Circuit would uphold in ten years.
The burden of proof was on the prosecution to show, affirmatively, that Cole Burgess had 'probably' committed the murder. Hardy's team had uncovered some alternatives with motives and perhaps means and opportunity that he might be able to argue with a straight face. The police hadn't investigated thoroughly enough. Too many questions remained unanswered. There were too many other possible suspects. The waters were too muddied by politics and self-interest.
Yet Hardy knew that, even so, the judge was going to hold Cole to answer. Using the 'reasonable man' standard, even if Hill might be persuaded that a trial jury might not in good conscience reach a verdict of guilty beyond a reasonable doubt, he would still order Cole to stand trial. These charges would never be dismissed.
Hardy more than halfway still believed that Cole had killed Elaine. If he himself were the judge in this hearing and knew everything he now knew, he would still have to say that Cole had 'probably' done it.
The conclusion was all but foregone, but in a death penalty case, Hardy had nothing to lose. And this was the moment for the battle to be joined.
One of the surprising and wonderful things about San Francisco is that summer is not a real season in the normal meaning of the word. In any given year, there were perhaps sixty days that would classify as belonging to summer by virtue of general balminess, but these would almost never occur consecutively. Four days doth not a season make.
But the necessary corollary to the lack of seasonal continuity was the fact that a random summer day or two could occur at almost any time, willy-nilly, during any month. This morning, as Hardy mounted the steps outside the Hall of Justice, it was such a day.
The smell of roasting coffee hung in the air and he stood a moment outside in the unnaturally warm sun. A small shift in the soft breeze brought an overlay of sweet, decay – the city's wholesale flower mart around the corner, he realized. A news truck pulled up and double-parked across the street. The cars behind it honked their displeasure, then pulled around in a near-unanimous flow of obscenities. Hardy lingered, knowing that once he passed inside these doors, all of this, the vibrant life of the city, would cease to exist.
He had given some last-minute instructions to David Freeman, then had driven on down alone before the rest of his 'team'. He wanted to have a few minutes with Cole before the circus began. To reassure him. To settle himself.
Then he was passing through the metal detectors and on his way across the lobby. At this time of the morning, there was no one else around. Here on the opposite wall were the names of policemen who'd given their lives in the line of duty and he stopped a moment, wondering if Ridley Banks was going to be there before long. He ascended to the second floor by the internal stairs rather than the elevator.
It wasn't usual, but Hardy had asked for and been given permission to 'dress out' his client for the hearing. To that end, Jody Burgess had gone shopping and bought Cole several pairs of slacks, some nice shirts, a couple of sports coats. In the holding cell behind Department 20, he was wearing one of the new outfits now, and Hardy was again – continually – surprised at how well the boy cleaned up. From a tactical standpoint, this was to the good, of course, although it would have meant even more if they were in front of a jury. Still, Hardy believed that there was value in a presentable appearance in the courtroom, even at a hearing. The orange inmate jumpsuits were all too familiar in the Hall of Justice, and all too associated with guilt. A bailiff admitted Hardy behind the bars of the holding cell and lawyer and client got through the amenities. Cole's eyes were clear now, his skin didn't exactly glow, but it looked healthy. And though he would never be mistaken for Demosthenes, his speech had continued to improve as well – the slur was all but gone, the rambling quality to his earlier answers a thing of the past.
To all outward appearances, Cole was an earnest young man of adequate means and a decent education. If anything, Hardy thought, he projected an ingenuous naivety, a sincere human innocence. He was sorry for everything that had happened. He was getting himself back on track. He'd do everything he could to help.
'I don't really know if there's anything more you can do right now, Cole,' Hardy told him. 'Just don't change your story from now on. That would be the best thing. Beyond that, try to react appropriately to what you hear in there, and some of it's going to be awful, I warn you. But don't overreact. And don't act.' Hardy put a hand on his shoulder. 'How are the push-ups coming along?'
'Twenty-five.' A trace of pride. 'Four times a day. Thirty sit-ups, too. Four sets.'
'And the pills?'
This wasn't as happy a topic, but Cole kept his head up. 'Getting there, slow but steady, though that's not exactly been my style.'
'Styles come and go,' Hardy said. 'Check out your clothes. A couple of weeks ago they weren't your style either. Now you look like you were born in them.'
'That's outside,' Cole said. 'Inside's another thing.'
'So what's inside?' Hardy asked.
A look of quiet desperation. 'The feeling that I'm not going to beat it. It's just got too good a grip. And that's not just a style.'
'You're right,' Hardy said. 'That's not a style. It's a choice.' He flashed him the hard grin and squeezed Cole's shoulder. 'You know what Patton said, don't you? "You're not beaten until you admit it. Hence, don't."'
Hardy saw it in Cole's eyes – the remark had hit home. He indicated the courtroom through the adjoining door. Noises had begun to leak through as the time for the session drew nearer. He gave the boy a last pat on the shoulder. 'Keep your chin up, Cole. See you out there.'
He had to walk around Torrey at the prosecution table, and this time there was no repartee. The Chief Assistant was talking to one of his own acolytes, a young woman, and pointedly ignored Hardy as he crossed the courtroom in front of him.
At the defense table, Freeman had arranged some folders and a couple of yellow legal pads in preparation for the first shots. On the other side of the bar rail, the gallery was filled to overflowing, and the crowd buzzed expectantly. Missing, though, was the almost palpable sense of anger and polarity that had marked the arraignment. Hardy attributed this partly to the passage of time, but mostly to David Freeman and Clarence Jackman, who between them had somehow gotten the word out to the various interested communities that this was not a racial crime, nor necessarily as clear a case as it had first appeared.
Hardy hadn't even made it over to Freeman when a bailiff intercepted him. 'Mr Hardy, the judge would like a word with you.'
'Right now?'
'Yes, sir. This way, please.'
Hardy was truly stunned. This was a peremptory summons and couldn't possibly bode well. In a capital case such as this one, every meeting between the judge and any of the attorneys had to be on the record, with a court reporter present. Hardy hesitated. Freeman, from the defense table, looked up with concern, and started to come around, but Hardy held him back with a hand. 'Will Mr Torrey be joining us?'
'I don't know, sir. The judge asked for you.'
There was nothing to do but follow him – back behind the bench, down the hallway in front of Cole's holding cell, where his client sat dejectedly, elbows on his knees, head down. The bailiff knocked once and did not wait for an answer, but pushed open the door to Judge Hill's chambers. A firm hand on Hardy's back all but pushed him inside.
The Cadaver sat in an upholstered armchair reading the Chronicle. There was another chair next to him, but Hill rather pointedly did not ask Hardy to sit. Instead, the bailiff informed his honor that Mr Hardy was here, and the judge nodded, finished his article in a leisurely fashion, then finally closed the newspaper. Out of his judicial robes, Hill appeared far more formidable than he did on the bench – any notion of caricature was displaced here. In his tailored suit, impeccably groomed, he could have been an ancient titan of business. The ascetic and angular face, which when perched over his robes suggested a disembodied skull on the bench, here was very much alive. The pale blue eyes seemed to float in little pools of malice. Tiny capillaries coursed the parchment skin of his cheeks. His mouth was a harsh line. He took another minute before he spoke, and when he did, his voice had a rehearsed quality, although the delivery itself was dry, uninflected. He did not address Hardy by name but, looking up with a challenging dismissiveness, simply began. 'I've called you in here before this proceeding begins because I want to tell you something personally, outside of the context of this hearing.'
Hardy noticed that the court reporter was indeed taking this down.
'Yes, your honor.'
'Please don't say another word. This is a one-way communication. I wanted to make it explicitly clear to you that any outburst such as your display at the arraignment on this matter won't be tolerated in my courtroom. Any such outburst will get you fined, and if it's serious enough I'll put you in jail for contempt. If you think I'm kidding, we can find out real quick. I have not invited the prosecutor here since I did not think it necessary to admonish you in front of him. This is the very last latitude I will give you.'
'Yes, sir,' Hardy said.
Hill nodded, an expectation confirmed. 'Here's a word about precision, Mr Hardy. I told you not to speak to me again and you just did. Further, I don't know how long you've been practicing law, but a judge is "your honor", not "sir". I'll see you in the courtroom.'
Hardy, his blood running hot, started to say 'Yes, your honor' but caught himself in time. The bailiff nudged him out of his shock, and he turned and left the judge's chambers.
'You look like you just saw a ghost,' Freeman said.
Hardy's legs would not hold him as he got to the defense table, so he sank into his chair and reached for the beaded pitcher to pour himself a glass of water. His hands were shaking in a palsy of rage.
Freeman reached over and covered one of Hardy's hands with his own gnarled one. 'Diz?' With his other hand, he poured a glassful and slid it over. 'Talk to me. What happened?'
Still unable to speak, Hardy's breath was ragged and came in deep through his nose. A muscle worked in his jaw. His eyes rested on a fixed point somewhere in front of him. Eventually, he saw the glass of water and drew it nearer, but did not pick it up.
'Hear ye, hear ye! The Superior Court, State of California, in and for the County of San Francisco, is now in session, Judge Timothy Hill presiding. All rise.'
Pratt had come in and joined Torrey and his young assistant at the prosecution table. Hardy glanced across at her – an elegant, statuesque carriage in a dark blue business suit – and thought he detected an almost gloating confidence. For an instant he wondered if she'd fixed things with Hill somehow, put the bug in his ear to reprimand him so humiliatingly. No more than ten minutes had passed since he'd re-entered the courtroom, and he still felt physically sick with spent adrenaline. And certainly he felt totally inadequate to muster any kind of rational argument.
In normal circumstances, he might have called for an immediate recess citing the call of nature, but here he knew he didn't dare. His relationship with the judge was bad enough already. If Hardy did anything to antagonize Hill any further, he risked being charged with contempt, and any hope of making headway would be dashed before he'd begun.
Watching the Cadaver take the bench, he wondered anew about his benighted, misguided strategy, marveling at how badly he'd misjudged the situation: reasoning that Hill's anger would be a 'little hump' to get over in the first minutes of the trial. Now it loomed as an impenetrable, unscalable escarpment. And he had based all on this 'reasonable man', this fair-minded jurist. Now where would be all the judicial leeway he'd expected on so many critical issues? What were the odds of even getting past the videotape of the confession?
But there was nothing to be done at this point. They were here, committed.
At his side, Cole nudged him and whispered, 'Patton.' His client was obviously reading his thoughts, which meant that he was telegraphing them. A bad sign to go with his bad feeling, but the advice was well taken. He forced himself to summon some of the general's fortitude or control, to direct his anger and despair into something constructive.
Hill got himself settled, rearranging his robes. He greeted his clerk with a familiar if stilted geniality, then asked him to call the case. Hardy listened with half an ear as the Cadaver arranged some paper in front of him, swept his eyes around his courtroom. When they got to Hardy, there was not the slightest sign of animus – no momentary squint or pursing of his lips. It was as though their exchange had never taken place. And then the clerk had finished and the judge was talking. 'Mr Hardy, Mr Freeman. Good morning. Ms Pratt, Mr Torrey. Are the people ready to proceed?'
Torrey stood up. 'We are, your honor, but if it please the court, sidebar?'
Hill frowned deeply, shook his head in apparent disgust, and sighed. 'All right,' he said at last. He motioned with one hand. 'Counsel will approach.'
Hardy's legs held him as he stood – a blessing. He and Torrey got to the bench at the same time and looked up at the judge, who was still scowling. 'What is it, Mr Torrey?'
'Your honor, with all respect, you just had a private meeting with Mr Hardy.'
Hill's face held a terrible blandness. He waited and waited a little more. 'Was that a question?'
'Yes, your honor.'
'I'm afraid I didn't hear one. Maybe you could try again.'
Torrey, aware that he'd already committed a tactical error, cleared his throat. 'Well, your honor, as you know, in a capital case such as this one, all communication between the parties has to be on the record.'
'You don't say, counselor.' Hill was breathing fire, a controlled burn. 'As a matter of fact, I was aware of that.' Another wait. 'I'm still waiting for a question.'
Hardy suddenly became aware of unrest in the gallery behind him. Hill looked out, then back down to Hardy and Torrey. As he'd shown at the arraignment, this judge seemed comfortable allowing some limited reaction among the spectators. In Hardy's experience, this was unique. At very little volume, the low, white-noise hum added a kind of subliminal tension to the tone in the room. He wondered if Hill had some reason for allowing it.
Torrey finally found his question. 'Very well, your honor. The people would like to inquire. What was the purpose of your meeting with defense counsel?'
'It was a personal issue, Mr Torrey. This case had not yet been called. We did not discuss it in any manner.' Hill shifted his eyes. 'Is that completely accurate, Mr Hardy?'
'Yes, your honor.'
The judge wanted unassailable clarity on this point. 'Mr Hardy, did you say even one word about this case in my chambers?'
'No, your honor.'
'Did I?'
Again, Hardy said that he did not.
'Does this satisfy you, Mr Torrey?'
The prosecutor swallowed, clearly feeling that if he could get out of this without any further damage, it would be a victory. 'Perfectly, your honor.'
Hill nodded brusquely. 'Then if you'd be so good as to call your first witness.'
Another of the many ways that a preliminary hearing differed from a trial was that there were no opening statements from either side. The prosecution simply began by calling witnesses, whom the defense could cross-examine, and introducing evidence, as they would at trial. When the DA was finished, the defense could then present its own witnesses and evidence.
Torrey took his chastised self back to the prosecution table. Hardy returned to his chair, thinking that at least the judge was equally intolerant of both sides. All things considered, this was terrific news.
Earlier in the week, Freeman had bet two hundred dollars that he could predict every witness in the order that Torrey would call them throughout the day and – perhaps foolishly, given it was David – Hardy had taken the bet. Now the old man leaned across Cole and whispered, 'Strout.'
Two seconds later, Torrey stood on the other side of the room. 'The People call John Strout.'
The coroner rose from one of the wooden theatre seats on the prosecution side of the room and made his long-boned way up the now frankly talkative center aisle, through the bar rail, to the witness chair. Strout appeared as a witness in a courtroom no less than once a fortnight and as he took the oath, he projected his usual relaxed confidence.
As Torrey stood to begin his questioning, Hill lifted his gavel and touched it down lightly. The decibel level dropped a few points, Torrey greeted Strout, and the hearing had begun.
'Dr Strout, for the benefit of the court, can you tell us briefly your occupation, as well as the training and experience that qualify you for that position?' Strout quickly qualified as an expert and gave the preliminary information about the case. In about ten questions, Torrey got to the point. 'Doctor, what killed Elaine Wager?'
Strout leaned back in the witness chair and crossed his legs. 'She was shot once in the back of the head at point blank range with a twenty-five caliber bullet. Death was instantaneous.'
'And the manner of death?'
'Death at the hands of another – homicide.'
As Hardy listened to the uncontested testimony, his spirits continued in their downward spiral. The prosecution, after all, only had to prove two things and it was already halfway there in less than five minutes. But, he thought with relief, that's over now. Homicide has been established. The second half, as Yogi Berra would say, was ninety per cent of it. But if he thought that things couldn't get more depressing from here, he was mistaken.
Torrey: 'Now, you carefully examined the deceased body in your forensics laboratory, did you not?'
'I did a complete autopsy, yes, sir.'
'And during this autopsy, did you discover any other injuries to the body?'
'I did.'
'Would you please describe them for the court?'
Strout, in his element, turned slightly and spoke directly to the judge, describing in homespun terms the gash on Elaine's neck, the broken ring finger, the damage to her earlobes where the pierced earrings had been pulled out. By the time he'd finished the short recitation, the susurrus in the gallery had ceased. Torrey introduced the eight-by-ten color photographs of Elaine that documented all of this testimony and Judge Hill spent several minutes examining them minutely, leaving Strout on the stand while he did so.
When he finally got the pictures back and entered as People's Exhibits, Torrey told Strout he had one more question. 'These injuries, Doctor, were they administered before or after the decedent's death?'
Strout replied, 'From a medical standpoint, it's impossible to say with certainty in the cases of the neck and ear injuries. Certainly near to the time of death, say within an hour. The finger, however, was broken after the decedent's heart had stopped pumping blood.'
'In other words, after she was dead?' In his laconic drawl, Strout granted that death usually went along with when the heart stopped and stayed that way. A ripple of amusement – tension breaking in the gallery – greeted this reply. Torrey let it die out, then passed the witness.
Hardy stood up. 'Dr Strout,' he began, 'the injuries you described earlier, including the gunshot wound, the pictures we've seen – was that the extent of damage to the decedent's body?'
The witness considered for several seconds. 'Yes, sir,' he answered with finality.
'Were there any other broken bones, physical marks, bruises, abrasions?'
'No.'
'Did you examine her extremities, Doctor?'
'Yes, of course.'
'And were there any scratches or scrapes on her knees, or elbows, or on her hands?'
'No.'
'Aside from the bullet wound, was the same true of her head?'
Another wait while Strout considered carefully. 'Yes.'
'Doctor, was there any abrasion, no matter how slight that, in your expert opinion, would be consistent with her dropping dead – instantaneously, as you said – and falling directly with gravity onto unyielding concrete or asphalt?'
'No, there was none.'
Hardy thought he'd nailed down his point succinctly enough. The Cadaver had listened intently, even had taken a few notes. He'd have to let the information – and inferences to be drawn from it – hang fire for a while, but when the time came, it might be persuasive.
In the gallery, the noise bubbled up again. Hardy didn't know if the Cadaver used it for the same purpose, but suddenly the waxing and waning of the background sound struck Hardy as a kind of barometer. While he was asking his questions of Strout, the room had been almost completely silent. Which told him he must have been getting somewhere, making people think. Even if the majority of them, like Cole, were ignorant of where he intended to go, what his questions meant. But he knew.
And the gallery would remember them, waiting for an answer, for closure. So, Hardy believed, would the judge. He bowed his head slightly to Strout. 'Thank you, Doctor. No more questions.'
By the time Hardy was back at his table – six steps -Hill had directed Torrey to call his next witness. As he sat down, Cole whispered, 'What was that all about?' and Torrey stood and asked Steven Petrie to come forward. Hardy looked around Cole to Freeman. The old man pointed to the yellow legal pad on the desk in front of him. In block letters, he'd written 'Petrie'. He smiled helpfully.
'What?' Cole asked again.
Hardy patted his arm, whispered to him, 'It's like a movie, Cole. You pick it up as it goes along.'
Petrie, the officer who'd been first on the scene, was in uniform today. Blond and crew cut, he had a runner's body and a military air, and seemed nearly as uncomfortable as Strout had been composed. He gave his name, his rank, his duties and time on the force. Torrey was up, standing in front of him. 'Officer Petrie, would you please describe your actions on or about twelve thirty a.m. on the morning of Monday, February first, of this year?'
Hardy conceded that this was a good way to loosen up the stiff cop. Petrie seemed to sag in relief- he wasn't going to be answering a barrage of questions, at least not right away. He glanced up at the judge, then back to Torrey, and began his recital in a normal voice.
The details were familiar enough to Hardy, but he knew that a straightforward chronology of events would be helpful to the judge. Eventually, also – he hoped – it would serve him. But for now, he sat forward, listening for factual error, taking notes.
Petrie told it clearly. He and his partner, Daniel Medrano, were cruising downtown on their regular beat when they saw some suspicious movement at the head of Maiden Lane, at Grant. As they pulled closer, they brought their squad car's spotlight to bear, and saw a man squatting over a fallen figure. He turned and began to run. Petrie's partner Medrano got out and gave chase while Petrie first called for backup, then got out to see to the fallen figure, a young African-American woman, who appeared to be dead.
He took under a minute satisfying himself that he could do nothing to help the victim, but he called the paramedics anyway. By the time he finished, Medrano was returning with the suspect, whom he'd apprehended at the Union Square end of Maiden Lane. Medrano told him that, in the dark, the suspect had run into a fire hydrant and fallen down.
Shot out of a cannon, Hardy was on his feet with an objection. He heard Freeman call his name hoarsely, but he was already up, committed. 'Hearsay, your honor.'
Hill's eyes narrowed with displeasure. 'Absolutely,' he replied. 'And as such permitted in a preliminary hearing when offered through an experienced officer, as you no doubt remember from your days in law school. Mr Torrey, please continue.' But another thought struck him. 'Oh, and Mr Hardy, try to refrain from frivolous objections like this as we go along here, would you? We've got a lot of ground to cover. Thank you. All right, Mr Torrey, you may proceed.'
Hardy sat down heavily and Freeman reached around Cole to pat his arm. 'I tried to tell you,' he said. It wasn't any solace.
Torrey brought Petrie back to where he'd been and he continued. 'So Dan – Officer Medrano – came back down Maiden Lane with the suspect. He also had a gun that he said the suspect had dropped when he fell.'
More hearsay, though Hardy didn't doubt its truth.
'Let's stop there for a moment, Officer Petrie. Do you recognize the suspect that you and your partner arrested that night in the courtroom today?'
'Yes.'
'Would you point him out to the court, please?'
Petrie raised a hand, pointed a finger. 'In the middle of the defense table over there.'
Torrey had the record reflect that Petrie had identified the defendant, Cole Burgess. 'Now, this gun…' He introduced the murder weapon into evidence, and evidently the size of it made an impression on the gallery. It truly was a tiny weapon – no more than two and a half inches long, perhaps half an inch wide. Petrie identified it as the gun from the scene. 'All right,' Torrey said, 'you've arrested the suspect and recovered a gun. What did you do next?'
'I should say he was already handcuffed. Dan had handcuffed him after he caught him.'
'OK, thank you.'
'Then we brought him over to the squad car and patted him down. His pockets, his coat. He was wearing an old jacket.'
'And did you find anything on his person?'
'Yes, sir. Several items.'
'Would you describe them, please?'
Petrie identified them – the necklace, diamond ring, pair of earrings, a wallet belonging to the deceased containing her identification as well as eighty-five dollars in bills and a dollar sixteen in coins.
Prosaic as this was, no one in the courtroom was unaware of the significance of this testimony. This made it murder in the commission of a robbery. It's what made it a capital crime for which Cole Burgess could be put to death.
If there had been a jury present, this would have been the opportunity for Torrey to play to it, to underscore the importance of this testimony. But there was nothing for him to do in that regard now, no theatrical business to attend to, so he had to press on ahead.
'Officer Petrie,' he said, 'was the defendant intoxicated when you arrested him?'
Hardy stood. 'Objection, your honor. Calls for a conclusion. Officer Petrie is not an expert witness.'
But Torrey was ready with an argument. 'Your honor, a layman can offer an opinion in this area and every policeman on the street is intimately familiar with apparent intoxication.'
Hill nodded in agreement. 'Objection is overruled.' Hardy wanted to keep going, but he'd been warned. The judge had made his ruling. Besides, it was the correct one. There was nothing to do but sit back down and listen to Petrie's answer.
'I smelled liquor on his breath, but he was conversant and coordinated.'
Torrey smiled, obviously pleased at how well his witness had taken to his coaching. 'Conversant and coordinated,' he repeated. 'Thank you, officer. No further questions.'
If Hardy had been prosecuting, he would have had a lot more, so he was surprised – his rhythm off – as he stood to begin his cross. 'Officer Petrie,' he began, 'you smelled liquor on Cole Burgess's breath, is that correct?'
'Yes, it is.'
'Was this a strong odor?'
'I could smell it, yes.'
'Did you give him a Breathalyzer test?'
'No.'
'No.' Hardy paced a few steps to his left, deep in thought. 'Officer Petrie, in your years as a police officer, have you ever pulled over a car for a driving violation?'
Petrie reacted with a bit of impatience. 'Yeah,' he said. 'Of course.'
'Of course,' Hardy repeated. 'And on any of those occasions, if you wanted to know if someone was drunk, what was your procedure?'
'Usually we ask the person to get out of the car and administer some field sobriety tests. Saying the alphabet backwards, or standing on one foot with their eyes closed, like that.'
'So basically walking and talking, right? And other basic tests of coordination?'
'Yes.'
'Now you saw my client staggering when he walked, isn't that right? When he came back with your partner?'
'Well, yeah, but he had fallen down.'
That's right, officer. He not only couldn't walk when you saw him, but he was too uncoordinated to escape, right? He plain fell down when he tried to run, isn't that correct?'
'Well, he ran into something.'
'And fell down, didn't he?'
A reluctant nod. 'OK. Yes.' Petrie tried to sneak a glance over Hardy's shoulder, pick up a cue from Torrey.
Hardy took a step toward the witness box and to his right, hopefully blocking the line of sight. 'Now, how about his speech?'
'I don't know,' Petrie said grudgingly. 'It varied.'
'Did he speak at all, officer,' Hardy asked, 'or was he too incoherent to say much?'
'He was pretty incoherent.'
'And passed out in the back of the patrol car?'
'Yeah.' Petrie squirmed. 'He did that.'
Hardy backed away a step, took a beat, then came back to the officer. 'People who act as you've described here might be drunk, correct?'
'Yes.'
'Another alternative would be if they were injured, is that right?'
'Yes.'
'And in fact, Mr Burgess was bleeding slightly from a head injury, correct?'
'Yes, sir.'
'Well, since you've testified that there were paramedics at the scene and your policy and procedure is to have injured prisoners evaluated by paramedics, isn't it true that the reason you didn't show Mr Burgess to the paramedics was because you could tell that the only thing wrong with him was that he was drunk? Falling down, incoherently drunk?'
Petrie was stuck. 'He was.'
Hardy nodded, satisfied. 'No further questions.'
During the recess, Freeman left for the bathroom. Cole pushed back from the defense table. He was not cuffed in the courtroom, and had crossed his arms over his chest, rested an ankle on his knee. 'I can't believe you didn't ask him anything about the shot,' he said.
Hardy wasn't much in the mood for criticism at the moment. 'Like what? He's not our witness.'
'Why not?'
Hardy, pretending to read from some notes in front of him, finally gave that up and turned to face Cole. 'Because I talked to him early in the week. He says he didn't hear any shot. And we need that shot as much as they don't need it.'
'Why didn't Torrey bring it up, then?'
Hardy had wondered about this too. Certainly, it was an important point. If Cole had only fired the gun once, and not when he fell during the pursuit in the alley, then the only handy explanation for the gunpowder residue on his hands was that he'd fired the gun before the police arrived. Presumably to kill Elaine. Petrie's report of the incident never mentioned a shot, although Medrano's did. So Hardy had put Medrano on his own witness list. He assumed that when Torrey had seen this, he chose Petrie for the prosecution version of the story. Then, in the flush of having demonstrated his special circumstance – robbery – he'd decided he had gotten enough out of him. He didn't need what the officer didn't hear. Hardy hoped this would prove to be a critical omission, but he downplayed it to his client. 'I don't know, Cole,' he said. 'My honest feeling is that he just plain forgot.'
Freeman guessed right again on the next witness – the crime scene lab technician. Lennard Faro was a small man in his early thirties with a thin mustache and thick, pomaded black hair. He wore a blue blazer over a tangerine shirt. A tiny gold cross earring dangled from his left ear. He verified that the slug ballistics confirmed that the bullet that had killed Elaine Wager had been fired from the weapon Cole had had in his possession. Faro had tested the defendant for gunshot residue, then analyzed the results. Now Torrey had come to the nub of it. 'And therefore, based on the results of this test, it was your conclusion that the defendant had on his hands residue that could only have come from a discharged firearm.'
It was a no-brainer. Faro had no doubt at all. 'Yes, sir.' And Hardy got the witness.
'Mr Faro,' he began, 'did you find any fingerprints on the gun?'
'No, sir.'
'Is this unusual?'
The lab tech shrugged. 'It's common enough, sir. The surface of the gun had been treated with Armor-All, the car upholstery cleaner? So it didn't hold fingerprints.'
'I see. And when you say this is common enough, roughly how frequently do you see it?'
This was an unexpected direction, and the young man paused to reflect before he answered. 'Every few months, I'd say.'
'Every few months? So it's not an everyday finding?'
'No, not at all. I didn't mean common like every day.'
'That's all right. I'm just trying to get a sense of when you would see this Armor-All used on a weapon to avoid fingerprints. It seems like an esoteric bit of knowledge.'
Faro had no reply. Hardy realized he hadn't asked a question. Torrey was objecting behind him. 'Relevance. What's the point here, your honor?'
'That's a good question, counselor. Mr Hardy?'
It was not a pleasant moment. The Armor-All was one of dozens of details that possibly meant something, but it didn't prove a damn thing either way. Cole was more likely to be ignorant of its usefulness in avoiding fingerprints than, say, a member of law enforcement or a hard-core criminal, but it certainly was possible that he knew all about it, and had put it to good use.
Hardy apologized, took another tack. 'Mr Faro, how many bullets were in the gun when you examined it?'
'Well, it's a five-shot revolver. There were three live rounds and two spent casings.'
'Two casings?'
That's right.'
Hardy looked at the judge, turned in a half circle, came back to the witness. 'Now, Mr Faro, did you take the GSR swabs from Mr Burgess yourself?'
'Yes I did.'
'And you've testified you found gunpowder residue on the swabs, is that so?'
'Yes.'
'Did you find a lot of it?'
'No. Very little.'
'Very little,' Hardy repeated. 'If a person fires a gun more than once, Mr Faro, does he leave increasing amounts of residue with each shot?'
'Yes, of course.'
'Of course. And yet Mr Burgess had very little?'
'Yes.'
'Are you able to say that this residue came from one or more than one discharge?'
'No.'
'In fact, you can get GSR on your hands from picking up a recently discharged firearm, isn't that true?'
'Yes.'
Hardy wasn't going to get any more out of that well, so he decided to move on. 'And when did you swab the defendant's hands, Mr Faro? Wasn't it in the middle of the night?'
'Yes, sir. The defendant was handcuffed and brought to the homicide detail for questioning. I was at the crime scene, and came down when we were done there.'
'Do you know what time you administered the test?'
'Yes, sir. I noted the time when I started. It was four thirty-seven in the morning.'
'And during all that time that you were at the crime scene, was Mr Burgess handcuffed in an interrogation room in the Hall of Justice?'
Faro nodded. 'That's what the officers told me, yes, sir. They didn't want to let him wash his hands. That's pretty standard,' he offered helpfully.
'I'm just curious, Mr Faro. Why didn't you administer the test in the field?'
'I guess they wanted to get him downtown fast. I don't really know.'
Hardy paced a little, in thought. 'All right, Mr Faro, so you got here to the Hall of Justice after Mr Burgess had been in custody for at least three hours. Would you describe his condition at the time you took the swabs?'
'Your honor, objection. Calls for a conclusion.'
But Hardy was ready for this one. 'Not at all, your honor. I'll let you draw the conclusions. I'm only asking Mr Faro what he saw.'
The Cadaver gave him one. 'Very well. Overruled.' 'Mr Faro?' This wasn't the tech's usual area of expertise or testimony, and he shifted in the chair with a degree of discomfort. 'Let me be more specific,' Hardy offered. 'Was Mr Burgess asleep?'
'No, sir. He was in a chair.'
'Was he sitting up straight, or slumped down?'
Torrey again. 'Your honor, defendant's posture can hardly be relevant.'
But again Hill overruled him, adding harshly, 'I'm allowing this line of questioning, Mr Torrey.' The message was clear – object again at your peril.
Faro answered the question. 'He was way down, slumped as you say.'
'Did you talk to Mr Burgess at all?'
'Yes I did. I told him what I'd be doing with his hands.'
'And how did he respond?'
He considered a moment. 'Incoherently. He was pretty out of it. I finally just pinned his arms down and took the swabs.'
'Was his speech clear, or slurred?'
'Slurred. It was more like mumbling.'
'Mr Faro, did you smell alcohol on his breath?'
'Whew!' The witness finally showed some personality. 'It was a brewery in there.'
'A brewery,' Hardy repeated, delighted with the phrase. That would be "yes", wouldn't it? You smelled alcohol, is that right?'
'Yes.'
'And was this a good three hours after he'd been brought downtown?'
'Yes, sir, at least.'
'One last question, Mr Faro. Did you see any video equipment set up in the interrogation room when you were there administering your tests?'
'No, sir.' And another sentence slipping out. 'When I passed the monitor next door, they hadn't turned the camera on yet.'
'Thank you, Mr Faro. Mr Torrey, your witness.'
The prosecutor honed in on Hardy's most salient point. 'On the matter of the gunpowder residue, can it be wiped or washed off?'
'Washed, yes. Wiping, eventually, over time. Which is why we try to get to it pretty quickly.'
'But in this case, as you've testified, you didn't get to it very quickly. In three hours, might someone lose a great deal of residue if they wipe their hands enough on their clothing, for example?'
'Yes.'
'But not all of it?'
'No. Not necessarily.'
'So is it entirely possible that the defendant could have fired the gun more than once and still had only little or trace amounts of gunpowder residue?'
'Yes. Completely.'
As soon as the witness stepped down, Hardy asked for a sidebar, and all the attorneys came forward to the bench. 'Your honor,' he began, 'I'd like to make my motion to exclude my client's statement – his so-called confession -right now. It's clear he was drunk when he was arrested and equally clear that Officer Petrie was coached to say otherwise. Let's get this issue resolved right now.'
This tactic didn't stand a chance and Hardy knew it. The prosecution could call their witnesses in any order and any coaching they were going to do was already done. But it might serve to disrupt the orchestration of the prosecution's case. At least making the motion would annoy Torrey and Pratt. And if the judge made them change the witness order, who knew? As a bonus, he might even win his bet with Freeman.
'Give me a break.' Pratt, all scorn, addressed Hardy but was looking at the judge. 'It was almost five o'clock in the morning, your honor. He was punch drunk, maybe, with fatigue.'
But David Freeman wasn't only there for his good looks. He took a half-step toward the bench. 'Your honor,' he said. 'Three hours?' He took in the whole circle of them. 'They come upon Mr Burgess on the scene, apprehend him there with the victim's jewelry and an apparent murder weapon, and three hours later they haven't even asked him a question? On the face of it, the confession is fatally flawed. The police overstepped.' He was raising his voice. 'They don't give him his phone call-'
'He called his mother,' Torrey interrupted. 'He waived an attorney. We've got that on the videotape.'
'Bullshit!'
Hill, shocked at the language, couldn't find any response other than to point his finger. 'Hey!'
'It's on the tape, David,' the prosecutor shot back. 'Deal with it.'
Freeman implored the judge. 'Where are we, your honor? In Turkey? In Iraq?'
'Jesus.' Pratt did a little pirouette of disgust. 'Your honor, no one has fought police misconduct more than I have. This was a murderer they needed to interrogate. He signed his Miranda notice. There was no overreaching here.'
Finally, Hill caught up with it all. He slammed his gavel for order, since by now the whole room behind him had degenerated into chaos. When things had settled, the Cadaver turned a terrible face to both Hardy and Freeman. 'I've said I will rule on these issues when the People seek to introduce the evidence. I've heard nothing to change my opinion,' he said in clipped tones. 'Mr Freeman,' he continued. 'I don't allow profanity in my courtroom. Now I'm calling a five-minute recess and I want everybody calmed down by the time we reconvene. This is a court of law and not a goddamned circus act.'