The Ophelia Cut

by John Lescroart

  Stier had given his okay, Hardy had sold it in a low-key way to his new friend the judge, and now Winston Paley, in a brown corduroy suit, a yellow shirt, and a purple and red tie a few inches too wide, sat in the front seat of the packed-to-the-rafters courtroom on Hardy’s side.

  The doctor seemed to be in high spirits—and why not, Hardy thought, looking at a minimum of one and possibly two thirty-five-hundred-dollar days—and he was clearly taken with Gina Roake, who had come down from her gallery seat and perched on the bar rail, making small talk with him. This inadvertently, or maybe not, showed off her zaftig profile to best advantage.

  Suddenly, Stier and his associate rose as a unit from their table and crossed over to the defense side, which broke up Roake and Paley’s rhythm enough for Stier to lean in to the expert witness and extend his hand. “Dr. Paley, Paul Stier for the prosecution. I just wanted to say hello and welcome you to San Francisco.”

  Paley beamed, shook the prosecutor’s hand.

  “And this,” Stier went on, stepping back, “is my associate, Lars Gunderson. He had occasion to study some of your testimony during a mock trial in law school at McGeorge and remembers it to this day. He’s a big fan. Says you’re one of his heroes.”

  At this, Paley came up out of his chair and warmly greeted the young man, shaking his hand. “That’s extremely flattering. Thank you.” Then, to all, “It’s so gratifying when one’s work takes on a life of its own.”

  “If you don’t mind”—Stier had his cell phone out, holding it up—“a quick picture, the two of you? Mr. Hardy, no objection?”

  Hardy didn’t know what to make of the obsequious display, but there was nothing objectionable on the face of it—court wasn’t in session; Paley was a defense witness—and Stier had been nothing if not gracious in chambers this morning. “Sure. Go ahead.”

  “I’m afraid,” Stier was going on after taking the shot and checking that it had come out, “that Lars is going to miss most of your testimony today—he’s got a hearing in another courtroom on another matter—but when I told him you were going to be here, he wanted to come by and shake your hand.”

  “Nice to have met you, Doctor,” Gunderson said. He nodded to Hardy and Wu, then opened the gate at the bar rail and excused himself back through the crowded gallery.

  Stier made a polite small bow and retreated to his table.

  “It’s nice to see adversaries who get along so well,” Paley said.

  To which Amy Wu replied, “Oh, yes. Every day’s a lovefest up here.”

  AFTER THE JUDGE was seated and court was called to order, she wasted no time getting down to it. “Counsel have agreed, and I am going to allow the defense to put on a witness out of order at this time. Mr. Hardy?”

  “Thank you, Your Honor. Defense calls Dr. Winston Paley.”

  Paley moved with the confidence and comfort of a man who’d done this kind of thing hundreds of times. Nodding amiably, seemingly to one and all, he made his way through the courtroom’s bullpen and up to the witness chair, where he turned and held up his right hand, ready to be sworn.

  Hardy knew the testimony would be lengthy. The doctor’s credentials alone would take the better part of an hour. If Paley didn’t have such a disarming personality, Hardy would have feared that he’d bore the jury to death. But he had no such concerns. With his raconteur’s touch, Paley was going to elucidate his educational and professional journey almost like high adventure, and perhaps, in a way, it had been. The man’s lifetime of achievement could hardly fail to impress.

  “Doctor, can you tell the jury your current occupation or profession.”

  “Certainly. I am a psychologist working as a consultant in the general field of health care. My specific work is as what’s called a forensic psychologist.”

  “What is that, precisely?”

  “I bring a certain background or specialty into a legal process like this one.”

  “Would you please tell the jury about your academic background?”

  Paley began to lay it all out. After obtaining his bachelor’s degree in psychology with honors from UCLA, he went on to both medical school and graduate school in psychology at USC. While in school, he joined the faculty at UCLA, where he received a public health fellowship. At the same time, he was teaching courses, doing research, and pursuing his Ph.D. in psychology.

  Slacker, Hardy thought. In a mostly passive role—even though he was in theory questioning the witness—Hardy had to resist the urge to wax wise. “And what did you do next, Doctor?” he asked.

  Paley went on, “I was fortunate to be offered several faculty positions, I believe about ten, and eventually decided to work at Harvard, where they had offered me positions in three departments.”

  At this, a small trickle of laughter rippled through the courtroom. Paley took it in good humor, shrugged with a “what can you do?” expression, and went on. “While at Harvard, I received grants to work with the Department of Defense, the Advanced Research Projects Agency, the U.S. Navy and Marines, and several other government agencies. After that, I went to Texas and a tenured faculty position at the University of Houston; I stayed for five years before returning to California, where I took another tenured position at USC and began working part-time as a psychologist for the Los Angeles Police Department. During that time, I started working in what I do now. That is, as a forensic psychologist.”

  Hardy interrupted the flow every few minutes to break things up, although he needn’t have worried. Even with all the detail, Paley wasn’t losing any of his audience, and it was information that Hardy felt the jury needed. Paley’s credibility would have to be unassailable for Hardy to undercut Stier’s eyewitnesses.

  It went on and on. Retired from teaching to form and become president of a medical group of a hundred and fifty thousand patients in Southern California. That group got bought by another, which, naturally, Paley became head of. First court appearance in the seventies. He began to be called as an expert witness who specialized in eyewitness perception and identification.

  Again his credentials were impressive, and again Hardy felt that the jury needed to hear all of them: a large briefcase full of publications, presentations at national and international (Zurich!) congresses on the issue, legal seminars in front of bar associations, over three hundred appearances in superior courts in California and twelve other states, in federal court, in the U.S. Virgin Islands. Paley had addressed the California state bar on eyewitness identification; he’d prepared a judge’s school video on the topic; he’d formulated continuing education courses on how people see and recognize each other; the accuracy of these identifications; discrepancies between actual data and people’s opinions of what they thought they saw.

  Paley went on to explain that this had been a rich field of research for over eighty years in the U.S. and even longer in Europe. There was a huge body of evidence in the fields of identification, perception, and memory. Hundreds of doctoral dissertations. In all, Paley’s opinion was that his field was as close to a hard science as could be found in psychology.

  As the clock ticked toward the lunch break, Hardy took his cue. “Your Honor,” he said, “at this time the defense offers Dr. Winston Paley as an expert in the field of eyewitness identification and perception.”

  Gomez nodded, turned to the prosecution table. “Voir dire, Mr. Stier?”

  “I’ll wait for cross, Judge.”

  “I’ll allow Dr. Paley to testify as an expert in the field. But I think first we’re going to take a break for lunch.” She wielded her gavel for the first time that morning, tapping once. “Court is adjourned until one-thirty.”

  HARDY WAS A bit torn as to whether he should take Winston Paley or Susan Weiss to lunch, but Gina saved the day by volunteering to take their expert witness to Le Central, while he could take his sister-in-law anywhere but Lou’s.

  The phonetic syllable must have been in the air, since they wound up at Lulu’s, a few blocks from the courtroom. Open and airy, especiall
y with the nice weather and after the windowless claustrophobia of Department 24, the restaurant was a perfect choice.

  Even if Susan hadn’t been among the only family he had in the world, Hardy would have liked her. As it was, she had been one of his favorite people over the past twenty years. Soft-spoken, honest to a fault, prodigiously gifted in music, and sensitive to human reverberations far beyond those of which Hardy was even aware, she was the last person he would have picked to be the mate to his fiery, difficult, stubborn, alcoholic brother-in-law.

  Hardy held her chair, seated her, and sat across from her. At sixty or so, Susan retained more than a soupçon of the beauty that she’d passed down to her oldest daughter. Perhaps she could no longer stop traffic, but Hardy found that if he sat across from her one-on-one, he could lose himself for seconds at a time.

  “So?” Shaking out his napkin. “You look like you finally got a little rest.”

  She forced a smile. “After the all-nighter Saturday, if I hadn’t slept last night, I would have died. I was in bed at eight and got eleven hours.”

  “In one night?”

  “I know. A miracle.”

  “I can’t even imagine. You look a little relieved.”

  “You find out your husband is not a killer after all, it helps.”

  Hardy took in a breath, let that pass. “How’s Brittany?”

  “Sick of all this. Sick of being pretty.”

  “Good luck with that.”

  “It’s funny.” Susan broke off a bite of bread, dipped it in a shallow dish of olive oil. “Her big joke used to be that she didn’t want to waste the pretty. Last night she told me she was swearing off makeup.”

  “It might help a little, but I wouldn’t get my hopes up. Is she still seeing Tony?”

  She nodded. “Taking it slow, I believe, in a welcome change of pace.”

  The waitress came, filled their water glasses, took their orders. Hardy came back to it. “I’ve got a few issues with Tony.”

  “Brittany mentioned that. Did you know he used to be a policeman?”

  “That’s what he says.”

  “You don’t believe him?”

  “I don’t know what I believe. Except I don’t like him playing our girls one off the other. I don’t like the aura of mystery he cultivates. I think he’s got some real secrets, and that worries me. He’s told me some things that have turned out not to be true.”

  “Like what?”

  “His name, for example. A meaningful detail, you’d think.”

  Susan closed her eyes and sighed. “You know all you have to do to make a young girl fall in love? Tell her she can’t see somebody.”

  “I hear you,” Hardy said.

  “But, you know,” Susan went on, “leaving that aside for a minute, Tony did tell Brittany something that I thought you might want to know. About this case. It might even be important. Especially now that we know Moses didn’t do it.”

  Hardy gave her a smile that he hoped did not come across as insincere. He listened while she ran down Brittany’s theory of the Asian hit man. Somewhere in the middle of it, much to his surprise, he found himself warming to the idea, if not as a fact, then as an element of strategy. When Susan had finished, he asked, “Does Brittany know anything specific about Jessup’s relationship with Lo? Did they have some kind of falling-out?”

  “Nobody seems to know. The reason we’re having this discussion is that Brittany thought you might be able to find out.”

  “Tony didn’t have any ideas?”

  She shook her head. “Not other than Jon Lo being involved in sex slavery on the one hand and Liam Goodman on the other. This is evidently the way some of the sex traders take care of their problems.” She touched his hand. “Diz?”

  “I’m thinking,” he said. “If there’s one thing this case has been sorely missing, it’s an alternative theory.”

  “It might not even be a theory. Diz, this could be what actually happened.”

  Leaving aside all that pesky evidence that implicated her husband and no one else, Hardy thought. Just then the waitress appeared; he motioned for a refill of his water, waited for her to pour. “So,” he asked Susan, “what do you think about the good Dr. Paley?”

  NO SOONER HAD court reconvened than Hardy decided he had a defensible reason and it was high time to put Stier off his feed—always a plus—by requesting a sidebar. His idea, born at lunch, followed by a call from Glitsky, would give Stier something to think about while his assistant was gone for the day and while Hardy’s expert witness continued to set the stage for the upcoming confrontations with Stier’s eyewitnesses.

  Now the two attorneys were standing by the judge’s bench and Stier was shaking his head in apparent disbelief at Hardy’s disdain for the rules. “Your Honor,” he said, “counsel is supposed to have supplied me with his witness list thirty days before the trial. Adding new witnesses is highly irregular and objectionable.”

  “Your Honor,” Hardy countered before Gomez could reply, “speaking of irregular and objectionable, because of the speed at which the police investigation led to my client’s arrest and hearing, I have been scrambling to catch up to various evidentiary issues that I couldn’t have known about thirty days ago.”

  “And yet you’re the one who refused to waive time to hurry up this trial.”

  “Exactly wrong, Mr. Stier. My client declined to waive time because it was his absolute right to go to trial within sixty days of arraignment and because he did not want to rot in jail for a crime he didn’t commit.”

  “So you’re saying you just found out about these witnesses?”

  “Two of them over lunch, as a matter of fact. And the other—whom I haven’t mentioned yet—over the weekend.”

  “You haven’t mentioned—?”

  “I’ve been trying to—”

  “And what are they going to testify about?”

  The judge leaned down over the bench. “That’s enough of this bickering. Counsel will direct remarks only to the court, not to opposing counsel. Mr. Stier?”

  “Your Honor.” He spread his arms. “Now he’s telling us he’s got yet another witness. What? Will he be allowed to introduce witnesses whenever the mood strikes him?”

  “He’ll be allowed to include witnesses when the court allows him, counsel. And not until.”

  Poker-faced, Hardy was loving this exchange. In his zeal, Stier had managed to anger the judge by appearing to undercut her authority.

  “Of course, Your Honor,” Stier said. “No disrespect intended. Maybe defense counsel could give us the name of his third intended witness, then perhaps mention some of the evidentiary issues they’ll be addressing.”

  With every word, Ugly was digging himself in deeper.

  “Thank you, Mr. Stier,” said Gomez with a cold smile. “I was hoping to ask Mr. Hardy some of those very same questions before ruling on his motion.” Her smile thawing a few degrees, she turned slightly. “Mr. Hardy, please so inform the court.”

  “Thank you, Your Honor. Besides Supervisor Liam Goodman and his political donor Jon Lo, I may call Lieutenant Abraham Glitsky, the former chief of Homicide.”

  In a skilled attorney’s hands, the flexible and ambiguous witness list could become a powerful weapon, and Hardy was using it as such today. Its great advantage was that people named on the list did not have to appear at trial. Of course, they could at any time be called. What made it beautiful was that opposing counsel had to be prepared for either eventuality. Not only could that tremendously increase opposing counsel’s workload, it could also introduce any number of spurious arguments, far-fetched theories, and rock-solid evidence, while providing no clue as to which might be which.

  “Oh, for the love of . . .” Stier threw up his hands again. “Your Honor, if it please the court!”

  This time Gomez snapped. “Enough with the histrionics, Mr. Stier. This is a court of law, not an acting class. Further displays like this will not end well for you. Consider yourself warned.”
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  Stier hung his head. “Apologies, Your Honor. But Lieutenant Glitsky?”

  “Mr. Hardy?”

  Matter-of-fact, Hardy began. “Your Honor, in some ways, this entire case hinges on Lieutenant Glitsky’s role in its earlier handling. Because of a perceived conflict of interest that San Francisco’s chief of police, Vi Lapeer, painted as a conspiracy between Glitsky, the defendant, me, my partner Ms. Roake, and even Wes Farrell, she first obtained a Ramey warrant to arrest the defendant before the evidence warranted prosecution; then she expressed a lack of confidence in the lieutenant’s handling of his inspectors that led to his retirement. Glitsky’s rebuttal of Chief Lapeer’s accusations and actions will highlight the political machinations and the resulting defective evidence that was the proximate cause of the defendant’s arrest.”

  Stier wasn’t going to let it all go without a comment. “Which has absolutely nothing to do, Your Honor, with the evidence we’re relying upon to convict this defendant. It has nothing to do with the blood in the defendant’s car. It has nothing to do with the blood on the defendant’s shoes or his jacket. It has nothing to do with the conveniently missing shillelagh that happens to be the murder weapon. And I’d love to hear that it has nothing to do with the facts that the defendant beat up Rick Jessup in city hall and, later, that Jessup raped his daughter. This is an absolute red herring.”

  Unperturbed, Hardy sailed on. “As to Mr. Goodman and Mr. Lo, I am not sure of their testimony at this time. Mr. Jessup worked for Mr. Goodman; Mr. Lo is one of his major donors; and obviously, there are unexplored relationships that I believe may be relevant to this case, particularly the defendant’s alleged motive. I intend to have my private investigator talk to these witnesses and explore the relationships, and then, if they so warrant, I intend to call them. In this context, it is not impossible that I may ask the court to add both Wes Farrell and Vi Lapeer to the witness list.”

  “Mr. Stier?”

  “Seriously, Your Honor? Seriously? Mr. Hardy doesn’t even try to articulate a connection, however tenuous, between Mr. Lo, Mr. Goodman, and this case. It is, to coin a phrase, the mother of all smokescreens, and the court shouldn’t tolerate it.” The prosecutor’s face glowed a dull red. “With respect, Your Honor, these three witnesses are intended to confuse and mislead the jury. They have no place at this trial.”