Hardy stood just outside the door to the women’s restroom and met Gina as she was emerging. She gave him a tense and trembling smile. “Are we having fun yet?” she asked.
He couldn’t dredge up any kind of response. He motioned with his head, and she fell in next to him. They both were intimately familiar with the back rooms of the Hall of Justice, and Hardy, gripping her arm tightly above the elbow, quick-stepped her along to an empty interrogation room down by the elevators. Leading her inside, he turned and closed the door, placing his foot against it so it couldn’t be opened. Whirling on her, he said, “Now what?”
“Now you get me on the stand and I tell my story.”
“Gina . . . Jesus Christ.” He ran his hand through his hair. “This can’t work. This is insane.”
“What is?”
“Please. What are you doing?”
“I’m telling the truth.”
“You can’t—”
“I can. I most certainly can. You’ve lost, Diz. Stier has won with every witness. If Moses goes to jail, you and Abe and I might not be far behind him. Don’t you realize that? Are you willing to risk it? Doesn’t it matter to you?”
“Of course, but—”
“No ‘buts,’ Diz. They’ve shut down every affirmative defense. This is the only chance.”
“But it’s perjury. It’s a lie.”
“It’s not a lie. It’s the truth.”
“You know it’s not. It’s an idea we laughed about last night. It never really happened.”
“I’m telling you that it did.”
He shook his head. “Gina, please. You can’t win this way.”
“You can if it’s the only way. And none of us can afford to lose.”
“We don’t know that. We don’t—”
“We can’t take the chance.”
“This is no chance. The jury won’t believe it.”
“Yes, they will. I’ll make them believe it.”
“And then I’m supposed to argue it in my closing?”
“You do what you’ve got to do. I do the same. You’re the one who always says it: we’re all grown-ups here on this bus.” Gina stood facing him, feet spread, arms crossed. “This is happening, Diz. You’re going to question me, and I’m going to tell my story on the stand.”
“I can’t do that.”
“You have to. I’m swearing to you right now that it’s the literal truth, every word. Let the jury decide.” Gina checked her watch. “We’ve got three minutes. I’m not changing my mind. What’s happened has happened.” She stepped toward him. “Let’s go,” she said with a sudden gentleness. “It’ll be all right.”
HARDY FELT IN many ways that nothing would be all right ever again.
The attorneys, the judge, the court recorder, and the district attorney had returned to the courtroom, and now Gina Roake raised her right hand and swore that the testimony she was about to give was the truth, the whole truth, and nothing but the truth.
Numb, Hardy stood in front of her. He was Moses McGuire’s attorney, sworn to give his client the best defense allowed by the law. And here he was, about to solicit testimony that might convince a jury to acquit.
Even though he knew it was a lie.
She could swear forever that it was the truth, and he would always know it was a lie.
The plain fact was that she had told him, as she would swear in court, that it was true. It was neither his job nor his moral obligation to expose flaws in her testimony but, rather, to solicit it. He could not prove she was lying, he told himself. And even if he could, that was not his job.
He hated the rationalization, knowing that it, too, was false; nevertheless, there was nothing else he could do. As he would have to do for any other client, he was obliged to put on this evidence. “Ms. Roake, what is your relationship with Mr. McGuire?”
“We have been friends for six or seven years.”
“Has that friendship included physical intimacy?”
Gina looked away from Hardy, over to Moses, out to Susan at her place in the gallery. “Yes, it has.”
A low buzz ran through the gallery. Somebody said, “Holy shit.” Susan brought her hands up to her mouth at about the same instant as Moses lowered his head and covered his eyes. Several of the jurors, already alert to the fact that something extraordinary was afoot, exchanged glances, coming forward in their seats. At the defense table, Amy Wu leaned over and whispered something in McGuire’s ear, her hand resting possessively on his forearm.
“Ms. Roake,” Hardy continued, “did you recently come forward to the police with information about this case?”
“Yes.”
“Where were you on Sunday, the first of April of this year, the afternoon of Rick Jessup’s death?”
Gina, dark shadows showing like bruises under her eyes, took in a deep breath. With a series of questions and answers, Hardy had her put her account in front of the jury. “I was at my apartment doing some writing in the late afternoon, four or five o’clock, when Moses—Mr. McGuire—came and knocked at my door. He was very upset. He told me that his daughter had been raped the night before. He was beside himself with rage and helplessness. He didn’t know what to do. He knew who his daughter’s assailant was and where he lived because he’d had occasion to look up the address earlier, when he’d sought out Mr. Jessup and gotten into a physical confrontation with him. Now he thought he wanted to go to Mr. Jessup’s apartment and kill him. I tried to reason with him and got him a little calmed down. After a while, he started crying in his helplessness, and I came and sat next to him, hoping to comfort him.” She let out a breath, took in the jury, and then quickly looked away. “In any event,” she went on, “one thing led to another, and we . . . we became intimate. When we got up several hours later, he took a shower, and then, just as it was getting light outside, he left.”
The courtroom had become dead silent. Susan Weiss stood up, turned her back to the court and her husband, and walked down the center aisle of the gallery and out the door.
Hardy stood without any movement. Finally, he nodded. “Thank you, Ms. Roake.” And to Stier, “Your witness.”
The prosecutor took his time rising from his seat and moving to the center of the courtroom where he would face Gina. Before turning to her, he stood before the jury for a moment with a completely neutral expression, somehow conveying the notion that he was inviting them to share his skepticism and disdain.
But the wind was gone from his sails.
In all the time Hardy had known the Big Ugly, this was the closest he had come to feeling sorry for the man. He seemed confused and disorganized and did himself more harm than good in what followed.
He made the last quarter-turn toward the witness and began. “Ms. Roake, what is your profession?”
“I’m an attorney and a writer.”
“You write fiction, do you not?”
Hardy stood and objected. Somewhat to his surprise, Gomez sustained him.
“All right, let’s talk about the attorney side of your profession. Are you affiliated with a firm?”
“I am a partner with the firm of Freeman Hardy and Roake.”
“And is the Hardy in the name of that firm in this courtroom?”
“Yes. Dismas Hardy is Mr. McGuire’s attorney.”
The courtroom broke into tumult. Gomez wielded her gavel, called for order, and eventually restored it.
“In other words, you are Mr. Hardy’s partner, is that right?”
“Yes.”
“Well, now, Ms. Roake, might we assume that you are on Mr. Hardy’s side, as it were, and want to help him in any way you can gain an acquittal for his client?”
Gina shook her head. “No more than I am on Mr. Farrell’s side. He was also my partner in the same firm, and he is your boss, is he not?”
Hardy caught Gina’s eye and gave her a solemn nod. Stier, in his enthusiasm to take her down, had just made an unforced error, perhaps a costly one.
Clearing his throat, Stie
r took a different tack. “As a lawyer, Ms. Roake, I’m sure you realize that the testimony you’ve just given comes rather at the eleventh hour. Why did you wait so long to bring this apparently crucial evidence to light?”
“For obvious reasons, I was hoping it wouldn’t be necessary, that we wouldn’t have to involve Mr. McGuire’s wife or children, or that Mr. McGuire’s other defense options would prevail. But the judge ruled against almost all of them just this morning, which didn’t leave the jury much if anything to consider in the way of alternatives. If I didn’t speak up, they might convict him, and that would be a travesty.”
“All right.” This was a losing argument, too, and Stier seemed to realize it. “Let’s go to another point,” he said. “Where is your home located?”
“It’s on Pleasant Street on Nob Hill.”
“That’s nowhere near the Marina District, is it?”
“Not really. Maybe two or three miles.”
“Ms. Roake, we have heard three eyewitnesses tell the court that they saw the defendant walking through the Marina District in the late afternoon on Sunday, April first, carrying a clublike instrument. Can you see any way to reconcile your account with theirs?”
“No. They must have seen somebody else. Because he was with me from about two or three o’clock until the next morning. That is my sworn testimony, and it’s the truth.”
Stier, shaking his head, let his shoulders sag in disappointment with Gina and, by extension, with humanity in general. “I’m through with this witness,” he said.
Hardy stood up. “Your Honor,” he said, “the defense rests.”
43
FOR ALL THE heat and bombast of the trial, on Tuesday morning, the closing arguments from both sides were more or less methodical and anticlimactic.
Stier, going first, laid out the evidence that he’d presented—the eyewitnesses, the blood, the shillelagh impressions, the backstory between McGuire and Jessup, the immediate motive on the Sunday of the crime. He barely mentioned Gina Roake’s testimony except to dismiss it as a feeble attempt to mislead the jury in a last-ditch effort in a losing cause.
For his part, Hardy spent the first chunk of his time talking about the blood on McGuire’s boots and jacket and in his car, which simply had to be dealt with. He segued from that into a lengthy riff on Dr. Paley’s identification issues, arguing once again—the third time the jury had heard it—that if officers administering identification procedures knew or thought they knew the “right” answer, they could and would unconsciously cue an eyewitness to guess the one suspect out of six “correctly.”
Clearly, the officers in the case had been under undue pressure from their chief to identify McGuire and only McGuire as the prime suspect. Their urgency and certainty that Moses was guilty had no doubt conveyed itself to the eyewitnesses, fatally tainting their testimony. Hardy spoke about the physical evidence that the prosecution had not provided: there was no sign—no fingerprint anywhere, no DNA evidence, no fabric evidence, no nothing—that Moses had ever set foot in Jessup’s apartment. This was no small thing, especially considering the violent acts that had gone on there that afternoon.
Finally, he came to the trump play: “Ms. Roake came forward on her own, under great duress. She knew that her testimony, especially its eleventh-hour nature, would subject her to torment and even ridicule. Only when events in the courtroom had forced her hand did she reluctantly come forward, knowing that the damage she would do to herself and the defendant’s family would be significant. Still, she was willing to pay that price to prevent the conviction of an innocent man.
“Moses himself, meanwhile, had been the victim of his own guilt.
“But it wasn’t murder he was guilty of. If you are to believe Ms. Roake’s sworn testimony, it was adultery. He had made up his mind that he would rather spend time in prison if that meant sparing his wife the pain of learning about his betrayal, or sparing his daughter additional pain about the rape she’d endured and the inconstant, perhaps even evil, nature of men.
“Rather than a coldly calculated trial strategy, as I’m sure Mr. Stier would have you believe, Ms. Roake’s decision could not have been more agonizing to her and to everyone else it affected, and she will have to live with its consequences for the rest of her life. She has accounted for the whereabouts and activities of Moses McGuire on that Sunday afternoon and evening last April. The plain fact is that if you believe Ms. Roake—and remember, this was testimony given under oath—then the absolute truth is that Moses McGuire did not kill Rick Jessup.”
Hardy considered sitting down, but there were a couple of last arguments he felt the jury needed to hear. “Who did kill him, then?” he asked. “We don’t know. What we do know is that Mr. Jessup was a despicable human being whom any number of people might have wanted to kill. Do you seriously think that Brittany McGuire was his only victim, the only woman he ever assaulted? A man who lures her to a bar with drugs in his pocket, coldly planning this most brutal of crimes? What about his other victims? Could not any of them have killed him? What about their lovers? Their brothers? Their boyfriends? Did none of them have a father who became as angry, as upset, as potentially violent as the prosecution claims Moses McGuire became?
“That reaction is a natural one. Any one of us, any one of you, might have had it. But the prosecution in this case never tried to find any of those other people who had the same understandable, if not justifiable, motive to kill this very bad man.
“But that vigilante, the man who killed Rick Jessup, was not, could not have been, Moses McGuire. Moses McGuire was somewhere else at the time the murder occurred, and now you have heard where that was. Let us remember one last time that there was no physical evidence implicating Mr. McGuire in Mr. Jessup’s apartment.
“Finally, who did those witnesses see walking on the Marina sidewalks, holding something that came to be called a club, the more it got repeated?
“The answer is that they saw a man of average height and average weight in a Giants jacket, jeans, and hiking boots. As you have no doubt noticed sitting here in the same room with him during this trial, Mr. McGuire is of about average height and about average weight. He has brown eyes and brown hair with streaks of gray and no visible distinguishing marks such as tattoos or scars.
“So the eyewitnesses who testified in this trial saw some man who looks like Mr. McGuire, wearing the most popular jacket in the city of San Francisco. We don’t have to know who that man was. We simply have to know that it was not Moses McGuire. And it could not have been. He was not there at that time.
“Remember, it is not up to us, Mr. McGuire’s defense team, to prove that he was not the killer, although we have done precisely that. Rather, it is up to the prosecution to demonstrate beyond any reasonable doubt that among Mr. Jessup’s other victims and their boyfriends and yes, fathers, there was not another man of average height, of average weight, wearing a Giants jacket as common as any garment in the city, with the same motive, who could have—indeed, who must have—committed this crime. They didn’t do that.
“Sadly, because of the politics that have tainted this case at every juncture, they never even tried to do that.
“And that is why, for all of these undeniable reasons, because of all these reasonable doubts, you are obliged by law and your oaths as jurors to find Moses McGuire not guilty. Thank you.”
ABOUT FORTY MINUTES later, Hardy and Glitsky were sitting out in the main room at Sam’s. Hardy had brought his martini over from the bar, and Stephano had just served him a glass of cabernet and a veal chop wrapped in bacon. Glitsky, Mr. Low Cholesterol because of his past heart attack, was having grilled petrale with a side of steamed spinach and iced tea.
“You ought to go wild,” Hardy was saying, “and ask Stephano for a lemon wedge.”
“I don’t need it.”
“Who said need? We’re talking pleasure, flavor, good stuff. Lemon goes great on spinach. It’s great in iced tea. It’s great on petrale. Nothing on your plate h
as any kick to it.”
“I don’t need kick. I’m high on life. Ask anybody.”
“You want, for a buck, I’ll give you a sip of my martini.”
“I don’t want a sip of your martini. How long have we been friends and you keep trying?”
“Friends? We’re friends?”
Glitsky drank some tea. “Better than you and Farrell, I’m guessing.”
“Wes will get over it. What’s he gonna do?”
“I don’t know. Throw you in jail. Have Gomez cite you for contempt or perjury or something.”
Hardy sipped his martini. “Gina’s a very serious woman, I’ll give her that.”
“She or somebody she works with.”
“You’re saying I had something to do with her testimony? You don’t think she’s telling the truth?”
Baleful, Glitsky raised his eyes. “Please.”
“I’m serious.”
After pushing his food around for a second or two, Glitsky put his fork down. “Here’s my concern, and it’s a real one. You think they’re going to let this go, and they’re not. Sher and Brady not only look like fools, you’ve accused them of being sloppy slipshod cops. That’s not going to go away. To say nothing of Vi Lapeer. So they’re going to find something that proves Gina’s lying.”
“Her phone was off that entire afternoon,” Hardy said. “She checked.”
“There! That’s what I’m talking about, that little detail. The bare fact that you know she checked that. Why did she do that? And what about Mose’s phone? Did they have a GPS on that for the day?”
Hardy shook his head. “He didn’t bring it with him that day when he went over to Gina’s. It was at his place all day.”
“You’re sticking with that? Really?”
Hardy popped a bite of veal. “Got to. As far as I know, it’s the truth.”
The Ophelia Cut Page 42
