Hardy 13 - Plague of Secrets, A

by John Lescroart

  The guy, God knew, was due.

  21

  If Hardy thought it had been madness in and around the courtroom for the morning session, in fact it had been as a mild and peaceful meadow compared to the riotous frenzy that greeted him as he got off the elevator on the third floor after his talk with Glitsky.

  Evidently, Kathy West was going to be staying around at least for the afternoon session and clearly this was making some big waves out in the real world. The mayor didn’t come down and sit around in open court very often, and her presence had become just what Hardy didn’t need right now—the biggest news story of the day, perhaps the biggest nationwide.

  The entire hallway was stuffed with humanity—lots of the press variety—and Hardy was trying to elbow his way through. Should he be even one minute tardy, he would face Judge Braun’s wrath and possibly a contempt fine. Hardy didn’t know whether it was police paranoia, Braun’s need for control, or one of the mayor’s staff trying to protect the boss, but someone had ordered a makeshift metal detector station outside the courtroom door, and what had at first appeared to be an amorphous mob was in fact a restricted and organized line waiting to get in.

  Very, very slowly.

  At near the head of the line he made out the figures of his two partners—Gina Roake and Wes Farrell—unexpectedly coming down for the show. As if he needed it, here was a true litmus test for how quickly the news of the mayor’s attendance had spread throughout the city. But he didn’t think he could push his way through enough to get to them in any event. The crowd didn’t strike him as one that would be tolerant of cuts.

  Hardy might not have been a fan of the architecture of the Hall of Justice, but he knew his way around the building. Hewing to the back wall of the wide and echoing hallway, he inched his way along against the current and eventually found that the door to Department 24 was open. Court wasn’t yet in session there, and he walked up through the deserted courtroom and into the back corridor that connected all the departments on this floor. Unchallenged by bailiffs, all of whom were doing crowd control in Department 25, he approached the door through which they would later bring his client.

  As he came abreast of the judge’s chambers, he stopped. The door to Braun’s chamber was open about halfway and Paul Stier and Jerry Glass were coming out of it, still in amiable conversation with Braun. When they saw Hardy, both their progress and the discussion came to an abrupt and awkward halt.

  “Gentlemen. Your Honor,” Hardy said, and held his ground, actually more shocked than angry, waiting for the explanation that would have to be forthcoming. One of the most sacrosanct rules in jurisprudence was that attorneys with active cases before a judge were not to have any ex parte interaction with that judge.

  Any.

  And it went both ways. A judge should not allow or entertain the possibility of such interaction.

  What Hardy had just witnessed was an apparently flagrant violation of that rule—enough that he might on those grounds alone immediately move for a mistrial and, later, the judge’s recusal of herself from the case.

  Glass came around Stier and stepped right into the breach with what Hardy considered a pathetically cavalier approach, an offhand wave, a light tone. “Counselor. This is not what you think it is.”

  This was unworthy of a response, since obviously it was what it was. Hardy, in no way tempted to be forgiving or friendly, looked around the two men and into the room. “Your Honor?” he asked with a hint of demand in his voice.

  Braun came forward, embarrassed but clearly determined to brass her way through. “Mr. Glass is right. Nothing untoward occurred here, Mr. Hardy. These gentlemen happened to pass my doorway and I heard them talking about the mayor’s appearance in the gallery and we exchanged a few casual words about it, that’s all. Much as you and I are doing right now.”

  “With respect, Your Honor. You and I are talking right now in the presence of my opponent, and overtly or not, we are discussing the case before your court. As a matter of fact, before we go on, and if we are to go on, I’d like to request that the court recorder be present.”

  “That’s ridiculous,” Glass blurted out.

  Hardy ignored him, focused on Braun. “Your Honor?” he said again.

  After an excruciating five seconds, the judge’s eyes having squinted down in concentration, she nodded and with a touch of ostentation checked her watch. “Court’s back in session in six minutes,” she said. “I’ll see you gentlemen out there.”

  And with that she closed her door.

  In the courtroom Maya had yet to be brought in. Hardy greeted Kathy and Harlen cordially through the press around them and thanked them for their show of support. He said hello to Joel. Then, excusing himself, he caught Gina Roake’s eye back a few rows and motioned both her and Farrell up to the bar rail.

  When they got there, he said, “I’m going to believe you both came down here to take notes on how a master does an opening statement.”

  “What else could it have been?” Roake asked with a straight face, then gave a little wave over at the mayor and Harlen. The bonds among all of them had of course become a bit strained over the years and all of these individuals evolved into new relationships, new jobs, even—it sometimes seemed—new selves. But seven or eight years before, when the city was in turmoil over the resignation of District Attorney Sharron Pratt and the grand jury indictment for murder of her chief assistant, the then-mayor had appointed a new district attorney. Clarence Jackman had come on board from the private sector to restore some semblance of order—getting the department back on budget, prosecuting crimes, litigating the city’s business problems. Jackman had gathered around him a kitchen cabinet that met most Tuesdays at Lou the Greek’s. That group had included, among a few others, Hardy, Roake, their now-deceased partner David Freeman, Kathy West, who was a city supervisor back then, Glitsky, the Chronicle columnist Jeff Elliot, and Jackman’s secretary, Glitsky’s future wife Treya.

  “Although,” Gina continued, “it is always nice to see Kathy. She’s looking particularly perky today, don’t you think?”

  “I do, but enough about Kathy,” Hardy said. “I need a little advice. I’ve got a question for you guys.”

  Farrell was ready for him. “Berlin,” he said.

  “Good answer,” Hardy replied. “Wrong question, though. The real question is what do you do if you see your judge schmoozing with your opposite number?”

  “Yeah, Berlin would be wrong for that one,” Farrell conceded. “You’re talking ex parte? When did it happen?”

  “Just now. Five minutes ago. Braun and Stier and Jerry Glass, back in her chambers.”

  “What were they talking about?” Roake asked. “Not that it should matter too much.”

  “That’s my point,” Hardy said. “I think at the least I’ve got to have her memorialize what went on.”

  Farrell asked, “Doesn’t she already hate you?”

  “I believe that’s accurate. So in that case, how could it hurt?”

  “It could always hurt,” Roake said. “Your judge hates you, she can fuck you in myriad subtle and unreviewable ways, as I know you’re aware. You really don’t want her hating you more than she does.”

  “Yeah, but this happened. If she doesn’t memorialize it, it goes away.”

  “All I’m saying,” Roake went on, “is compare it to what happens if she does. Could be a lot worse, and you wouldn’t even know it. And more to the point, Diz, what do you get for pissing her off? They’re going to make up some kind of bullshit explanation no matter what they were doing, and no court of appeal will ever give you a reversal. You get nothing for your trouble, so anything you could lose is not worth it.”

  “Maybe,” Farrell put in, “you could ask her if she wants to recuse herself.”

  “That would just piss her off too.”

  Farrell made a face. “Okay, then, how about going to Thomasino?” Oscar Thomasino was the presiding judge of the Superior Court and, more importantly for
these purposes, a reasonably warm acquaintance of Hardy and both his partners.

  “I thought of that,” Hardy said. “But I didn’t hear anything they said, and Braun will just say it was a casual conversation that had nothing to do with the case. And guess what? That, too, will piss her off. Knowing that I get out of bed every morning probably pisses her off, now that I think about it.”

  “Maybe you should have challenged,” Farrell said.

  “Thank you,” Hardy replied with heavy irony. “If only. Maybe I’ll whip into my time machine and go back and do it when I could.”

  “Do you really want her out, Diz?” Roake asked.

  Hardy turned to her, his voice barely a whisper. “Nothing would make me happier. But one ex parte communication seems a little thin, as grounds go, to get rid of her. Especially if they weren’t, in fact, talking about the case.”

  “It might be smarter,” Gina said, “to let her keep on knowing that you’ve got something on her.”

  “I like that,” Farrell said. “Better to have her think she owes you.”

  “And I’m guessing,” Roake added, “that you want to decide right away.”

  “Actually, I think I’ve decided. But the last thing is I don’t want her thinking I’m a wimp and she’s frightened me off.”

  Farrell grinned at that. “I think she already knows you better than that.”

  “So I just keep this in my pocket? That flies for both of you? No memorializing? No recusing?”

  His partners silently conferred with each other, glances back and forth, consensus.

  As soon as she ascended to the bench and got the courtroom under control, Braun called the attorneys up to her bench for a sidebar. “Mr. Hardy,” she began, “we’re on the record now. Is there anything you’d like to bring up before the court?”

  Calling him right away on what he’d seen. If he was going to make trouble for her, it would start now. And she’d have it in her mind while he was delivering his opening statement.

  Hardy, his blood rushing with what had somewhat surprisingly turned into rage-tinged frustration, tried to slow his breathing. He finally came out with it. “Nothing, Your Honor.”

  Hardy saw Braun’s eyes narrow. If he looked, he was sure he could have seen the wheels spinning in Stier’s head as he tried to figure out what trick the legendary Dismas Hardy was pulling now.

  Braun could see no reason not to accept the Trojan horse, and actually looked as though she felt a moment of relief, if not gratitude, that Hardy had decided to let her off the hook. “Mr. Stier?” she asked.

  Just at that moment a camera clicked loudly in the gallery, followed immediately by a cell phone going off, and Braun looked up and exploded, rapping her gavel several times in quick succession. “That’s all I’m going to tolerate of cameras and other disturbances! I granted permission for a number of news cameras to be in this courtroom. At the slightest further disruption that permission will be revoked. I want no more pictures taken. I want all cell phones turned off.” Here she looked over the front of her podium. “As a matter of fact, now that I think about it, for the remainder of this trial, after today—bailiffs, please note—I will not be allowing cameras into the courtroom.”

  At the mild rumble of protest that arose in the gallery at this edict, she banged her gavel again. “I am this close,” she said, “to expelling people with cameras right now. But in the interests of keeping things moving I’ll hold off on that order, unless someone abuses it.” She glared through her glasses for another ten seconds or so, scanning the gallery right to left, left to right, for signs of disobedience.

  Finding none, she returned to the prosecuting attorney, standing next to Hardy in front of her. “Mr. Stier?”

  “Yes, Your Honor.”

  “I believe before that interruption that the court was asking if the People are ready to begin?”

  The Big Ugly for an instant took on an expression that somewhat explained the nickname. Nervous, and with a light sheen of perspiration on his high forehead, Stier cleared his throat and threw a quick glance at Hardy, then came back up to the judge.

  He finally decided that while he couldn’t figure out what Hardy was doing, if Hardy wanted something, any smart prosecutor wanted the opposite. “Your Honor,” he began, “I call your attention to a meeting that took place just minutes ago at the door to your chambers, where you and I exchanged a few pleasantries relating to the mayor’s appearance in the courtroom today, but outside of the presence of Mr. Hardy.”

  Hardy couldn’t believe his ears. But he wasn’t inclined to interrupt.

  Braun looked for all the world as though she was going to have a stroke right there on the bench. “Go on,” she said. “What do you think is so important that it needs to be memorialized at this point in the proceeding?”

  Oblivious, Stier kept digging his grave. “I believe that in the interests of precluding a defense appeal on grounds of this technically ex parte communication between you and myself, it is in the interest of justice that that discussion be memorialized and entered into the record. Then, if Mr. Hardy’s got any objections, he can raise them now.”

  Hardy stood with the muscles in his jaw locked against breaking into a victory grin. This was the kind of moment that his old mentor, David Freeman, had lived for. You plan and you plan and then you strategize and plan some more and then something completely unexpected happens and you’re back in the ball game in a way you had never imagined possible. Sometimes you just had to love the majestic insanity of the law.

  Stier had just overstrategized himself into a truly dumb move and Judge Braun, never subtle, was letting him know it by her body language and withering expression. “Very well, Counselor,” she clipped out through lips tight enough that it didn’t appear she was moving her mouth at all. “By all means, let’s memorialize that conversation. Court reporter and attorneys in chambers. Ten-minute recess.”

  Finally Hardy stood to deliver his opening statement. He had the option of either delivering it now or waiting until the prosecution closed its case in chief. But like most experienced defense attorneys, he didn’t want to give the jury too much time to live with the version of the crime they’d just heard described in the prosecution’s opening statement.

  Even with many murder trials under his belt Hardy expected that he would be struck by opening-day jitters—the familiar hollowness in his stomach, the deadness in his legs—when he first stood to address the jury. Especially with the large and captivated crowd in the courtroom, the sudden sense that something of major import was transpiring here. When he rose to come around his table and face the panel, though, he found himself possessed of an almost unnatural calm, even a confidence.

  The easy camaraderie between Braun and Stier had just suffered a serious blow and while the prosecutor was probably still reeling from it, Hardy could use this small but real advantage to push the envelope a bit—maybe throw in a little argument, which was forbidden in opening statements—and, while Stier’s attention was focused elsewhere, perhaps escape without too much interruption in the form of objections from the prosecution table.

  He began in an amiable fashion, wearing an easy smile and making eye contact with every juror he could before he started. “Good afternoon. This morning Mr. Stier related to you an extravagant scenario of motivation and coincidence that he hopes will convince you that Maya Townshend is guilty of two counts of first-degree murder.” Much in the same way that Stier always referred to Maya as “Defendant” to dehumanize her to the jury, Hardy would strive at every opportunity to refer to her by her given name, underscoring her humanity and personhood. “Unfortunately for the People’s case, but fortunately for Maya and for justice, what he left out of his story were the gaps and holes and inconsistencies in the so-called chain of evidence upon which the prosecution relies. The prosecution cannot and will not prove that Maya killed Dylan Vogler or that she killed Levon Preslee, because she didn’t.

  “Did Maya know Dylan and Levon when she was
in college? Absolutely she did. Did she do some things she’s ashamed of now, as Mr. Stier alleges? Yes. Will there be evidence, such as direct eyewitness testimony, to prove these things? Again, the answer is yes.”

  Hardy, always conscious that he had a tendency to go too fast and gloss over elements of syllogisms that might be crucial to jury members, had trained himself to slow down, timing his restrained pacing from one end of the jury box to the other, getting back to his table ostensibly to consult notes or take a drink of water, sometimes just to touch it to keep him in his rhythm, center him for another lap.

  Now he touched the wood of his table, gave a quick confident nod to his client, and turned back to the jury. “So the prosecution can prove that Maya Townshend”—he walked over to her, putting his hands on her shoulders—“small-business owner, wife, and mother of two young children, made mistakes when she was in college.

  “We know that she was a student at the University of San Francisco because there are records supporting her attendance there. She appears four times in four years in the school’s yearbook, and several times in the university’s newspaper, the Foghorn. Similarly, we will learn from her classmates at the time that she associated regularly with both Dylan Vogler and with Levon Preslee, and we will hear from other eyewitnesses that these young students were not exactly members of the choir. These are facts supported by both documentary and eyewitness testimony.”

  Hardy didn’t dare glance back at Stier. He was well into argument here and so far he was getting away with it. The prosecutor, still licking his wounds, hadn’t engaged yet. He was no doubt listening, but he wasn’t hearing.

  “But that’s not what she’s accused of. She’s accused of murder. And for that accusation the prosecution has no evidence. The district attorney tells you that it has evidence to support the charges it has brought against her, evidence that directly ties her—and this is important—that ties her, and no one else, to these crimes. That is simply not so.