Betrayal dh-12

by John Lescroart

  "So that's your final decision, Maggie?" Cannoe asked again. "You really don't think he did it?"

  "Not exactly that," she said. "I think he might have done it, as I've said all along. I just can't be sure in my heart that it's first-degree murder. If he went there to beat Nolan up and he died by mistake, that's second-degree."

  Cannoe kept his patience. "Except he didn't die from the beating."

  "No. I know that. Things got out of hand."

  Juror #2, Sue Whitson, a woman of Ellersby's age who'd been an early voter for acquittal, now joined the argument. "Maggie, I'd be with you except that in the end, he put the gun up to the man's head and shot him. How do you explain that except to say that at some time, Mr. Scholler decided to kill him? And that's murder one."

  "The point," Cannoe added, "is that you believe Scholler did it, don't you? Never mind all the legal distinctions. He pulled the trigger, right?"

  Ellersby sighed and whispered, "I don't see how he didn't, but I don't know if they proved he did."

  "It's not absolute proof, Maggie," Sue said. "It's proof beyond a reasonable doubt. And they've done that."

  "You admit it yourself," Cannoe said. "You just said you don't see how he didn't do it."

  "I know."

  "Well, then…"

  "Well, then, I just keep coming back to what Mr. Washburn said in his closing statement. That they could have come up with any number of other defenses that seemed to make more sense. Self-defense, for example, or heat of passion, or simply saying no, he didn't do it. But instead they went with the truth, which he admitted was maybe harder to believe…"

  Sue reached out and put a hand on Maggie's arm. She spoke with a surprising gentleness. "Maybe because it wasn't, in fact, true, Maggie. Maybe Washburn's just playing on our gullibility, figuring we'll want to believe that this young man, Evan, who'd had such a terrible time in Iraq, that somehow his injuries there are to blame for the fact that he can't say he didn't kill Nolan. If it wasn't for all the Iraq stuff, would you have any doubt about what really happened? Would his story have made any sense at all? That's what I finally came to see. It just doesn't. I wish it did, but it doesn't."

  "He came to beat him up," Cannoe said, "and wound up staying to kill him. If that's not what you see, Maggie, and you don't think you can ever say otherwise, I'll call for the bailiff and tell him we're hung. You want me to do that?"

  Ellersby looked around the table at all of her intelligent, well-meaning fellow citizens. None of them cold-blooded, none out for vengeance. All of them had given nearly a month out of their lives to see that justice was done, that the system worked. And for her part, she knew that she had been irrationally swayed by the power of Washburn's simple argument in closing that he was too smart and too experienced to ever allow a ridiculous defense like Evan's "I don't remember" to be the centerpiece of his case, except that it was the truth.

  That's why they had gone with that defense, because it was the truth.

  And Maggie Ellersby's mind's eye could picture Evan passed out in his apartment, not from alcohol, but from his brain injury-not in a blackout but in a true state of unconsciousness, knocked out from the beating he'd taken.

  But there was no evidence that that was what had happened. None at all. And what if Washburn, as another one of her colleagues on the jury had pointed out early on, was nothing more than a man who was paid to tell lies on behalf of his clients? That's what all lawyers were, right? She flashed on the O. J. Simpson case, the Dan White "Twinkie Defense" case in San Francisco. If she was the lone holdout, and her vote to acquit wasn't based on any evidence she could name, how would she be able to explain herself to her husband and her friends?

  How could she live with herself?

  "Maggie?" Sue softly queezed her arm again.

  "Do you want me to call the bailiff?" Cannoe asked.

  Ellersby looked up to the ceiling, said a quick prayer for Evan Scholler's soul, and brought her eyes back down to the table. "No," she said. "I think we need to do one more ballot."

  PART FOUR. 2007

  30

  Dismas Hardy's windshield wipers couldn't keep up with the downpour. They thwacked as fast as they could go, but this latest in a series of March squalls reduced his visibility to near zero. He could barely make out the first gate until he was at it. He loved his little two-seater Honda convertible with the top down in the summer and fall, but it wasn't made for this kind of weather. The plastic back window had long since gone opaque and even with the defrost fan blasting, the inside surfaces of the door windows were fogged over too. He pushed the button to lower his driver's window so he could present his identification to the guard and the rain misted in over his face.

  Behind him, someone honked, then honked again. His rearview mirror was useless; he couldn't see his side mirrors, either, through the condensation on the windows. The rain pounded down on the cloth roof. He was inside a drum. Blinded, cocooned, he had to lower his window another few inches so he and the guard could see each other. Opening the window allowed more water in, enough to soak through the fabric of his suit in seconds.

  Another blast from the impatient prick behind him. Hell, Hardy was already wet; he had half a mind to jump out and confront the guy, pull him out of his ride, deck him, dump him into the churning brown stream that ran over the road's gutters.

  Instead, he squinted out to see the guard, flashed his driver's license, and spoke so he could be heard over the rain. "Dismas Hardy, to visit one of your inmates, Evan Scholler."

  The guard, all but invisible through the downpour, spoke loudly, too, from his semienclosed space, "I'll have to see your ID better than that, please, sir. Sorry."

  Seething, Hardy handed it out. Waited. He had time to decide that if the car behind him honked once more, he would go take the driver out, but then his wallet was back at the window and he heard a crisp "Thank you, sir. Ahead to your right after the next gate."

  And he rolled up his window and let the clutch out simultaneously.

  When he'd left the city a couple of hours ago, the sky had been light gray, but it hadn't even been drizzling. So he didn't have an umbrella or a raincoat with him.

  After he found his spot in the parking lot, he turned off the motor and parked to wait out the worst of the squall. Regain some of his composure. Whoever had been behind him-some delivery guy maybe-didn't follow him to this lot. He thought it was probably just as well.

  Composure was an issue. Even before the rain, Hardy's physical reaction to the scheduled visit to the prison had caught him off-guard. It had been a while since he'd had a client in prison, and he was out of practice. He kept having to reach for a breath, his palms were sweaty, an unaccustomed emptiness had hollowed out his lower rib cage. Closing his eyes, he leaned his head back and drew in a long breath through his mouth, which he then exhaled with a certain deliberation. He did it again. And again.

  When at last the drumming of the rain stopped, he opened his eyes. Now, suddenly, it was just a light drizzle. Seizing the moment, he opened the car door and stepped out onto the asphalt.

  HARDY HAD SEEN pictures of Evan Scholler in the newspapers, caught some glimpses of him on the TV news as the trial had gone on, so he thought he'd recognize him on sight. But when the guard first opened the door to the very small room to bring the inmate in, Hardy took a quick glance and decided that this couldn't be his man; the guard must have gotten it wrong and this shackled guy must be going to see another attorney in a different room.

  For one thing, Evan was younger, just thirty-one now; this inmate looked at least forty. Further, in photos and on television, Evan was far better-looking, with a stronger chin, lighter hair, a better complexion, smaller in the gut and bigger across the shoulders. This guy here was big, casually buffed, physically intimidating, especially wearing a flat-affect expression that made his thin mouth look mean, even cruel. At first glance, this guy looked like a stone killer.

  But the guard, checking the slip of paper in his hand
, said, "Dismas Hardy?" A nod. "Here's your mope."

  Evan took the slur without reaction. He stood at attention, but relaxed in the pose, seemingly uninterested in what, if anything, happened next. He looked Hardy up and down as he might a side of beef hanging in a cooler.

  "You can take the shackles off," Hardy said.

  For the obvious reason, guards in prison did not carry guns on their persons, so in any one-on-one encounter such as this delivery, shackles on prisoners tended to be the norm. Hardy knew several attorneys who visited their clients here and most of them were happy to let the shackles stay put. A shackled convict was a controllable convict, and with many of these inmates, you couldn't be too careful.

  The guard hestitated for an instant, then shrugged. "Your call." With practiced precision, he unlocked the handcuffs from the chain that was threaded through the Levi's belt loops encircling Evan's waist. The cuffs still dangled from the waist chain at his sides.

  Now, though, his hands free, Evan rubbed at his wrists.

  The room was four feet wide by about seven feet long. A heavy, solid, industrial gray metal desk squatted against Hardy's right wall and stuck out two-thirds of the way across the space; in a pinch it could serve as a first-line barrier in the event of a surprise attack. Folding chairs sat on either side of it. Hardy had a door with a wire-glass window in it behind him and another door just like that facing him. The guard who'd let him in had cautioned him to stay on his side of the desk, "just to be safe." He'd also pointed out the small button low in the wall in Hardy's side that could be pressed in the event of any trouble.

  Evan's guard said, "I'm right outside the whole time," and then that's where he was, closing the door behind him.

  Hardy said, "You want to sit down?"

  Evan thanked him and sat. He put his free hands on the table, still looking through Hardy, until suddenly he focused. "You got a cigarette?"

  "Sorry, I don't smoke."

  "I didn't either," Evan said. "What a joke."

  "What is?"

  "Not smoking. Watching what you eat. Staying in shape. All that stuff outside. Then you wind up in here." Maybe he felt as though he'd given too much of himself away. As a cop or a soldier or at the prison or somewhere else, Evan had gotten good at the thousand-yard stare, and he reverted into it. After a minute inside himself, he came back to Hardy. "So who are you?" he asked.

  "Dismas Hardy, your new attorney."

  "Don't take this wrong," Evan said, "but it took you long enough."

  "Yeah, well, it was a little complicated."

  A beat. "What's that first name again?"

  "Dismas. The good thief. On Calvary? Next to Jesus?"

  Evan shook his head. "Don't know him. Dismas, I mean. I've heard of Jesus."

  Hardy looked him in the face. If this was humor, it was damn subtle and wouldn't be a bad thing. But he couldn't tell. He could see, however, that his initial impression of the man's age was off-close up he came as advertised, thirty-one. Hard years.

  "What happened to Charlie Bowen?" Evan asked.

  "He went missing last summer. He's the equivalent of dead as far as the Court's concerned. My firm inherited his files, including yours. I got them about four months ago."

  "You a slow reader?"

  Hardy's glance came up at his new client again. The guy wielded words efficiently, short punches inside. First a wave at humor, then a cutting jab. A lot going on behind unyielding eyes. Hardy figured he deserved the rebuke-four months while he decided whether or not to take on the appeal himself must have felt a lot different to him than those same four months inside the prison had to Evan.

  But Hardy was here now, and that's what mattered. Evan's trial had ended nearly two years before. Charlie Bowen obviously hadn't gotten too far with the appeal in the fourteen or so months that he'd worked on it. Nobody else had done anything on it for six months after Bowen disappeared. The four more months that Hardy had taken while he made up his mind after he got the files were the least of Evan's real problems.

  So Hardy ignored the question. It was irrelevant now. He pushed his chair back from the desk, crossed his legs, started in a conversational tone. "I used to be a cop," he said. "Before that I was a Marine and did a tour in Vietnam. Sound familiar?"

  "You enlist?"

  "Marines," Hardy repeated. "They don't draft Marines."

  "How old were you?"

  "Twenty."

  "Yeah, I was twenty when I joined the Guard, still in college."

  "That was pre-nine-eleven?"

  "Pre-everything," Evan said. "Different world. The Guard looked like easy money at the time. A good way to keep in shape. Who knew?"

  "Did you go right into the Police Academy after school?"

  "Pretty much. Couple of months off, maybe. You can only drink so much beer and do nothing else before it gets old."

  "I don't know. I spent ten years doing that. I had a kid who died."

  Hardy wasn't fishing for sympathy. He wanted Evan to know a little bit about who he was, why he might be taking on this case personally. The young man's history struck a chord in him. With his life apparently over, Evan was still seven years younger than Hardy had been when he'd awakened from his own long alcohol-powered slumber after the death of his first son, Michael. Starting over from scratch at thirty-eight, Hardy had resurrected himself and his life in a way he would have been unable to predict-success, wife, kids, even happiness. So he knew it could be done. You didn't want to bet on it, but the slim possibility was there. Maybe this kid-like Hardy an ex-cop, ex-soldier-could get another chance. "So how long," he asked, "did you walk a beat before they recalled you?"

  "Three years, give or take. This isn't in my file?"

  "How's it relate to your case?"

  Perhaps unconsciously, Evan scratched with his right index finger at the surface of the desk. "I don't see how it would."

  "That's why it's not in your file," Hardy said. "Not in Bowen's, anyway."

  "What about Everett Washburn's?"

  "It might be there, I don't know. I haven't talked to him yet. I wanted to meet you first. See what you had to say."

  "Like what?"

  "Like your own testimony at your trial. Was that Washburn's decision, or yours?"

  "I don't remember, exactly. I think we agreed on it together."

  "I don't understand why, when you were on the stand, you didn't take the chance to tell the jury yourself that you didn't kill Nolan. If you didn't."

  The scratching stopped. Evan stared across at Hardy. "Maybe I did do it."

  "Okay. That'd be a good reason. Did you?"

  "You really want to know?"

  "It's why I'm here."

  "Washburn never cared one way or the other. If I actually did it, I mean. Said it didn't matter."

  "That's what makes the world go 'round. I do care if you killed him. Did you?"

  "I don't know," he said.

  THE SECOND OFFICE out of which Everett Washburn practiced law was the lower flat of a Victorian building on Union Street in San Francisco. It was really more of a personal refuge than a business office. Everybody in Redwood City knew Washburn; aside from his managing-partner role in his own firm, he was a fixture at the Broadway Tobacconists down there, and sometimes the constant familiarity, having to be "on" all the time, got to be a little much for the old man. In San Francisco, he kept a secretary who came in for about ten hours every week. Her main job was to keep the plants watered. There were a lot of plants.

  The place he favored most in the flat was all the way in the back. Twelve feet in diameter, octagonal in shape, with windows on four of the walls and bookcases stuffed with leisure reading-no law books-on the other four, the room was intimate and comfortable. It held his rolltop desk and slat-back chair, two small upholstered couches, a love seat, a large, square coffee table of distressed wood, and a couple of wing chairs. All of the furniture sat on a cream-colored Persian rug that had set him back twelve grand five years before.

  "This
is a great room," Dismas Hardy told him as he followed him in and stopped to admire it. "I could live in this room."

  "It has a certain feng shui, I must admit. I do love the place. Have a seat, anywhere you'd like." Washburn plumped himself down in the middle of one of the couches, fixing Hardy with an appraising stare. "I've heard your name come up several times over the past few years, Mr. Hardy, but seeing you, I think we've met before, haven't we?"

  Hardy took one of the wing chairs. "Yes, sir. And it's Diz, please. About five years ago in Redwood City. You put me in touch with an ex-client of yours and she wound up saving one of my associates' lives."

  "Literally?"

  "Well, the information she gave me. It solved a murder case about ten minutes before the guy could do it again."

  Washburn pulled a look of pleased surprise. "I must say I don't hear that kind of story too often. An actual solved murder? My side of things, that never happens."

  "Well, it did once. I probably should have gotten back to you, told you about it."

  "You're telling me now. It's good to hear when a case turns out well. Did I charge you for the referral to my ex-client?"

  "No."

  Washburn clapped his hands together. "So much the better. Although as we all know, no good deed goes unpunished."

  "I know," Hardy said. "I avoid them at every opportunity."

  "And yet you've done me the courtesy to come down here to see me."

  "That's not a good deed. I needed to talk to you and it was either my office or here. It gave me the chance to get out into the air in the middle of the day."

  "Well, regardless, I appreciate your flexibility." And then, suddenly, as though he'd flicked a switch, Washburn shifted into business mode. He came forward to the very edge of the couch with his elbows on his knees, his hands clasped loosely. "You said it was about Evan Scholler."

  "It is. I'm doing the appeal."