He hadn’t rebutted any prosecution evidence in his own case in chief. Oh, yes, he’d done his best to discredit witnesses on the issue of whether there had been a struggle, but that had been about the extent of his arguments. He had presented an affirmative defense that was simply an alternative explanation of the same facts that the prosecution had used.
It was going to come down to a matter of what the jury believed. Or whom they believed. In that sense it was good that no one had found any ‘other dudes’ to point at.
And now they were all committed. Hardy’s defense was really the only possible one left. But he couldn’t shake his intense discomfort over the fact that it was, basically, a cynical lie. A lie that served justice, he believed, but still a lie.
Freeman was not being his most endearing self. He appeared to have slept in his suit and certainly hadn’t showered — obvious in the cramped room. He had consumed a healthy, well-rounded breakfast of peanuts and had piled the shells in front of him on Glitsky’s desk. ‘Look, Lieutenant, we can go down to Judge Salter right now and get ourselves a month continuance, and I think we ought to do it and investigate the hell out of this gambling connection.’
Hardy tried to rein his partner in. ‘He’d never do that to the jury, David. Not at this stage. And it’s not about any gambling, anyway.’
Freeman paid no mind, breezing along, jawing at Glitsky, ‘We know that Craig Ising is in cahoots with at least two dozen other gamblers downtown, most of whom used Sal Russo to run their money around—’
‘A long time ago,’ Hardy put in.
‘— some of which might have been the wrapped bills in this case.’
‘There’s no evidence of that,’ Sarah said.
Freeman snapped, ‘None that you’ve found.’
Sarah’s eyes flashed at him. ‘That’s right. None that anybody could have found.’
Glitsky sat up. ‘Hey, hey, nobody has to get accusatory. Getting mad isn’t going to help anything.’
‘I’m not mad.’ Freeman appeared genuinely surprised. He was simply arguing his position, for him a function of drawing breath. How could it offend?
Evans, however, had some color in her cheeks. ‘I interviewed Craig Ising twice, Mr Freeman.’ Actually it had been four times, but Glitsky had only known and approved of the last two of them, so she went with that. ‘I told him we weren’t interested in his gambling, only in Sal. He said to his knowledge no one had used Sal in at least two full years.’
Freeman scoffed at that. ‘He says…’
‘Graham corroborates it,’ Hardy said.
Freeman looked from one of them to the other. ‘Here’s the deal,’ he said. ‘Sal had memory problems. This ring a bell, Pavlovs? He might have stumbled upon this opportunity to deliver a bag of cash and forgot he even did it.’
‘To who? From who?’ Glitsky asked.
‘Abe means whom, David. To whom, from whom.’ Hardy favored Abe with a smile.
Abe looked over. ‘Whom this, Diz.’
Freeman ignored the exchange. ‘That’s your job, Lieutenant. Find that out.’
Like Freeman, Glitsky wasn’t angry. He admired Freeman’s persistence, but he realized that he was fishing and had nothing. ‘Point me to any evidence, any direction, David, and we’re on it. I’m not saying it couldn’t have happened. I’m not even saying it didn’t happen. But I’ve got a suspect on trial for what we’d be asking these people about, if we could find out who they were.’
‘What about the cooperative Mr Ising?’
Hardy had to speak up again. ‘He’s our witness, David. He’s been nothing but a help.’
Freeman waved a hand. ‘That’s old news. What’s he done for us lately?’ Back at Glitsky. ‘Look, you call Ising in, rip him a new asshole over all this gambling, tell him you’re giving him up to vice if he doesn’t give us the name of every one of his cohorts, and then you call all of them downtown and find where their stories don’t coincide. Does he have a sheet?’ Meaning a police record.
Truly amused now, Glitsky rolled his eyes at Sarah, turned to Hardy. ‘Anything else, Diz?’
* * * * *
‘I think you went a bit over the line, David. Suggesting we arrest the entire young generation of the city’s power elite, I don’t know, maybe that didn’t seem reasonable.’
‘Glitsky could do it.’
They sat at their table in the empty courtroom. Freeman had tried another ploy, suggesting on round two that this time Glitsky arrest Dan Tosca and somehow squeeze him for information on the multimillion-dollar fish-poaching trade. But again, as Glitsky and Sarah had pointed out, there wasn’t even any smoke around Tosca. Why should they go looking for a fire?
‘The point is not that he could do it, David, but that he’d have to explain why, and there wouldn’t be any good reasons.’
The old man shook his head. ‘Picky picky picky.’
‘Besides,’ Hardy continued, ‘I thought we’d decided to stay in our tuck.’
‘That was you,’ Freeman said. ‘Me, I’d go to any lengths to keep a verdict away from a jury. If a judge would give me a five-year continuance, I’d take it on general principles.’
‘Spoken like a true defense attorney.’
‘Which, I might remind you, is what I am.’
‘And you’d let your client rot in jail?’
‘Absolutely.’
Hardy had to laugh. ‘Were you born with this great compassion for your fellow man or is it something you’ve developed over the years?’
‘Both. But all right, Glitsky washed. Now we’re back on Plan A. We calling Brandt?’
They’d beaten this decision to death but were pretty clear with what they should do. On the one hand, Barbara Brandt would be a stirring defender of assisted suicide and would put the issue right into the collective faces of the jury. But Freeman had already done just that on redirect with Russ Cutler. Only a moron — and Hardy hoped there were none on the jury — could avoid some sense of the real issue in this case.
On the other hand, Brandt would swear that Graham had killed Sal. She was probably a liar and certainly a loose cannon. Hardy didn’t know what, if anything, Drysdale and Soma had discovered about Brandt’s lie detector test, but the polygraph expert’s name was Les Worrell and he was on their witness list.
Hardy had questioned Worrell and believed that Brandt had in fact passed the test. But he’d also read newspaper and magazine reports opining that Barbara Brandt had been coached in how to pass the test. What Hardy didn’t know was if Worrell had been implicated in that collusion, and he was loath to ask about more things he didn’t know. The whole polygraph issue was inadmissible, but Hardy and Freeman thought they knew a land mine when they saw one.
‘I’m going to let my instincts decide,’ he said finally.
‘Go with what you feel, huh?’ Freeman asked.
‘Right.’
‘Dumbest idea I ever heard.’
Hardy shrugged. ‘You do it all the time.’
‘But I’m the incredible David Freeman.’ It wasn’t clear whether he was kidding or not.
‘I’m going to win them over, David. I’m going to make them see it.’
‘Without Brandt?’
‘Probably, now that I think of it. She can’t tell the jury anything they don’t already know from other sources.’
Freeman seemed to buy this. ‘So? You got a plan?’
Hardy cracked a craggy grin. ‘The outline’s a little vague. A little smile, a little dance, a little seltzer in my pants.’
* * * * *
Drysdale, Soma, and the big boss himself, Dean Powell, were having their own meeting in the state attorneys’ offices on Fremont Street. Though a day or so of the defense’s testimony had gone by before they’d seen it, they were no longer unaware that Hardy was conducting his portion of the trial on a different plane than they had.
They had a big decision to make and weren’t in precise accord about how to proceed. Dean Powell had the floor, which in this case was the head
of the long functional state-issue table in the conference room. His face was set, and under the mane of white hair his color was high. ‘I don’t care about any face-saving strategy, Art, we’re not backing away from the specials.’
‘All I’m saying, Dean’ — Drysdale’s tone was mild — ‘is that we don’t want to let this boy go free. If the jury’s only choice is to convict on robbery murder or acquit, they might just acquit, and then what’s all this been for?’
‘All this has been to bring a murderer to justice.’ Powell wasn’t entertaining other suggestions. ‘That’s what all this has been for. It’s what it’s always been for. Besides, they’re not going to acquit.’
Fearless, Soma waded into it. ‘We just want to drive a stake into the heart of that possibility, Dean. Give them another option to consider. Ask for manslaughter as a possible lesser verdict.’
‘Hardy’s leading them in that direction, Dean,’ Drysdale added. ‘Gil and I just want to cut him off.’
‘God damn it,’ Powell clipped, ‘are you boys listening to me? Am I speaking some foreign language? We have charged our man Russo here with robbery murder. Don’t you think I understand the implications of that? I assure you I do. And I’ll tell you something else: if we back off, if we even appear to back off, we’ll be broadcasting the news to the jury that we didn’t prove the case. And then they will acquit.’
There was that familiar bubble of silence that succeeds the moment when a boss swears at underlings. Drysdale took a breath. ‘How about this, Dean? We don’t argue assisted suicide—’
Powell: ‘Damn straight we don’t.’
‘— but we give it to Salter in our jury instructions?’
The dilemma they faced was a real one. In the same way that Hardy and the defense had gone into their tuck, vowing not to pull out of it until they had presented their entire argument, so, too, the prosecution had avoided muddying the murder waters by never alluding to the possibility that Sal’s death was less than murder. Assisted suicide was still, both technically and in fact, a crime in the state of California. It might not be first-degree murder, but it was at least second, and no way less than a long prison term.
Drysdale was admitting the validity of Powell’s position — that they might open themselves to ridicule (and acquittal) if they switched over and added the assisted-suicide argument at this point. But if they did do that, they would vastly increase the odds that the jury would not set Graham Russo scot free.
Drysdale believed that he could persuade Judge Salter to direct the jury that assisted suicide was still murder. Then, the jury could return with a verdict of first- or second-degree murder and Powell could still claim some sort of victory.
But the attorney general was adamant. He wasn’t doing that. His team wouldn’t play on that field. ‘We picked this fight six months ago, Art. We get him on robbery murder or we let him go—’
Tempers were fraying and Soma cracked under the pressure, slapping his palm loudly on the table. ‘Shit.’
Powell snapped back, the strike of a snake. ‘Don’t you give me that attitude, Mr Soma. You’ll find yourself unemployed in a fucking heartbeat. You hear me? You afraid you didn’t prove the case?’
Soma raised his eyes. ‘We proved the case, sir.’
Powell stared him down. ‘Let’s hope you did. Because I don’t want to hear one word in your closing about assisted suicide except to say it’s no defense to a murder charge. Our boy killed his father for his money. That’s what he did and that’s why he did it. If you’ve got any kind of problem with that at this stage, either of you’ — he paused, glaring — ‘well, that’s just too damn bad. You’re going to have to live with it.’
* * * * *
Sarah’s early-morning meeting with Hardy and Freeman in Glitsky’s office was ancient history as she and her partner decided not to wait for the elevators and took the stairs on their way down to the lobby. On the second-floor landing Sarah glanced into the hallway and saw a pregnant woman, feet spread and planted, sitting on a bench alone outside of Graham’s courtroom. Now, on a hunch, she asked Lanier to wait a minute and walked over.
‘Are you Debra McCoury?’
The woman’s face was blotched and she appeared to be near tears. She nodded. ‘Who are you?’
Sarah sat next to her, introducing herself. ‘I’m the one who arrested your brother. I don’t know if you remember, but we spoke on the phone when I first—’
‘I remember.’ The face closed up.
‘I’ve called since a few times. You’ve been a little hard to get in touch with.’
‘Well, I work.’ And evidently hated the fact.
‘But you’re here now?’
‘And the other day too. I was a witness. I got time off,’ Debra said. ‘Without pay. They said they’re doing the closing arguments today. I wanted to be here.’
From Graham, Sarah had learned quite a lot about Debra.
Like her mother had with Sal, she had married below some perception of her station in life, and it was playing the same kind of havoc with her. Graham felt nothing but sorry for her. She didn’t have be so miserable, to keep herself looking so plain. Certainly, she didn’t have to remain in a relationship with a cheating husband.
But it was the same as the case with George. Sal’s abandonment had brought with it a nearly paralyzing loss of her self-esteem, along with a bitterness that soured everything in her world. Debra believed in her heart that she wasn’t worth loving, that no one would ever truly love her. Sarah thought one look at her revealed her story. And now she was going to have Brendan’s baby and life was going to get more complicated, sadder.
‘So why are you down here?’ Sarah asked. ‘You told me you didn’t like Graham, that he couldn’t be trusted.’
Debra swallowed with some effort. ‘He is my brother.’
‘And what does that mean?’
‘That means I don’t want to see him sent to jail.’
‘Do you think he killed your father?’
The blotches rose on her heavy neck. ‘I don’t know.’
‘But you do think he stole this money?’
‘I don’t know that, either, anymore. I was here and heard that bank person. Nobody seems to know what happened about that. What did you want to see me about?’
In fact, she’d called Debra for the most part because Dismas Hardy had asked her to do so before they had finally left the ‘other dude’ phase of the investigation. Not that she or Hardy had thought Debra would lead to anything substantial.
Still, when she’d made herself unavailable, Sarah had wondered. ‘I was following up on some other questions. You told me about the baseball cards. You also gave me the impression that you knew Sal had more money stashed away somewhere.’
‘Which, it turns out, he did.’
‘True, but that’s not my point. My point is how did you know it?’
‘I don’t know. Maybe I wasn’t sure of it. I guess Graham told me.’
‘But I thought you hadn’t talked to Graham in a couple of years.’ Debra moved her hands over her belly, her face a brown study. There was a glint of moisture in her eyes. ‘You also said Sal kept the baseball cards in his apartment. Had you been there? To his apartment? How did you know he kept them there?’
She was shaking her head. ‘No. I just assumed…’ Suddenly she whirled on Sarah. ‘What are you asking me all of these questions for? I didn’t do anything.’
‘I didn’t say you did.’
‘But you’re—’
‘I’m just asking you to explain how you knew some of the things you told me about.’ Lanier grew tired of waiting in the stairway. He came across the hall and stood in front of the two women. ‘This is my partner, Inspector Lanier,’ Sarah said.
Lanier nodded. ‘Everything all right here?’
Sarah kept up the press. ‘I’m sure you remember where you were on the afternoon that your father was killed. You wouldn’t forget that.’
‘No. I don’t forget it.
It was a Friday, wasn’t it? I was at work.’
‘All day? You didn’t take lunch?’
‘Yes. No. I think so. I don’t remember. Probably.’ Debra’s hands massaged her stomach. ‘Look, I don’t like this. This is making me feel sick.’ Perhaps because of Lanier’s looming presence she made no effort to rise. ‘Sal always had the baseball cards, from when I was a kid,’ she said. ‘I mean, he had to still have them. And the way my mother talked, she always said he had other money. That’s why I thought that.’
‘So why did you tell me Graham was hiding something and couldn’t be trusted?’
Sarah knew the real answer to this question, but she wanted to hear the way Debra got around it. Finally, her eyes spilled over. She dug in her purse for something to wipe the tears away. ‘He’s not bad,’ she said.
‘Who isn’t bad, Debra? Graham?’
But she was shaking her head from side to side, snuffling. ‘I just don’t want them to send him to jail. He didn’t kill Sal for any money. I know that.’
‘How do you know it?’
‘I just know him. He wouldn’t have done that.’ She looked pleadingly at Sarah and Marcel. ‘I don’t care about the money either. Not anymore. I don’t even want my share. I don’t care about it. Brendan wanted—’ She stopped.
‘Your husband? What about your husband?’
‘He’s the one who wanted the money, who was on me to get the money.’ She sobbed once. ‘I didn’t mean to get Graham in trouble. I just want our family back again, the way it was. Anything the way it was. Why can’t it be that way anymore?’
The tears were falling freely now, and Sarah finally touched her shoulder, then stood up and motioned to Marcel that they should go.
34
Two days later Hardy rested the defense case without calling Barbara Brandt, or Graham Russo. Gil Soma spent a moment conferring quietly with Art Drysdale at the prosecution table. They were disappointed, but not surprised, that they wouldn’t get a chance to hack at Graham.
They’d spent a full day in chambers arguing jury instructions. Salter had been very uncomfortable about not giving manslaughter instructions — not giving the jury any choice but murder or acquittal. But neither side wanted manslaughter, and that seemed to be a correct reading of the law, so Salter shrugged his shoulders and wished both sides good luck.
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