“According to the defendant’s own statement, she went to visit her father-in-law later that same afternoon to discuss the finances of her immediate and extended family. We will show you that the defendant came back to Mr. Hanover’s home later in the day. You will hear two witnesses testify that she left Mr. Hanover’s home a few moments before the fire broke out. You will discover that the defendant lied to the police about her actions at this time. She said that she was at home alone during these critical hours. But her own daughter’s diary disproves her story.”
Hardy covered his mouth with his hand, hiding from the jury his displeasure. Heather’s diary was perhaps the biggest issue he’d lost in pretrial. Although Hardy had argued bitterly against its inclusion, there was no question of the importance and relevance of the diary entry. So one way or another, it was going in. And in the normal course of events, that evidence couldn’t have been admitted—it wouldn’t have had a foundation—if Heather as a prosecution witness against her own mother didn’t testify in court that she’d written it. Understandably, this was a scenario that Catherine, in a genuine display of motherly protectiveness, wanted to avoid at all costs. The psychological damage to her daughter could be incalculable. But Rosen needed the evidence, which meant he needed Heather. And no one could stop him from forcing her to testify. The only solution had been for Hardy to cut a deal to allow the diary entry without the foundation. But even without Heather’s testimony, it was a bitter pill, and potentially devastating for his client.
Meanwhile, Rosen was gliding easily over the last of the evidence. “Finally, you will learn that the same type of gasoline used as an accelerant to start the fire in Mr. Hanover’s home exactly matches that found in fibers of rug from the trunk of the defendant’s black Mercedes-Benz C240.” He paused for one last sip of water.
“As I said at the outset, this is a straightforward story, and I’m nearly through with it. On May the twelfth of last year, Paul Hanover himself told the defendant that within days, she and her entire family would be written out of her father-in-law’s will. That they would lose millions of dollars. She decided to kill him to keep that from happening, and to use his own gun that she knew he kept loaded in the headboard of his bed. She bought gasoline to set Paul Hanover’s house on fire to cover her tracks. She had the means. By her own admission, she’d been at the house during the afternoon, and you will hear witnessesplace her there again just before the fire broke out. Opportunity.”
Rosen let out a little air. “We will show you, and prove beyond a reasonable doubt, that Catherine Hanover killed her father-in-law, Paul Hanover, and Missy D’Amiens for money by shooting them both in the head. This is first-degree murder with special circumstances under the law of the State of California, and that is the verdict I will ask for. Thank you very much.”
In a California murder trial, the defense attorney has an option. He can either deliver his opening statement directly after that of the prosecuting attorney, as a sort of instant rebuttal, or he can deliver his statement at the conclusion of the state’s case in full. Hardy was a big fan of the former, believing as he did that the jury made up a great deal of its collective mind—impressions of the players, general believability of the state’s narrative, strength or likely strength of the evidence to be presented—in the very opening stages of a trial.
Hardy’s experience was that by the time the jury members had heard and seen all the state’s evidence, even if the veracity and provenance of every bit of it had been questioned, denied and demeaned by a vigilant defense lawyer, the weight of all of it often just got to be too much to lift. So despite being the defense attorney, Hardy didn’t want to fall into a defensive posture. The last thing he wanted was to be passive, parrying the thrusts of his opponent without striking any blows of his own.
No, a trial was a war, and the goal was to win, not simply to defend. And if you wanted to win, you had to attack.
Hardy knew the book on Rosen was that he never objected during open, believing, as did most lawyers, that it ticked off the jury. So he had a hunch he could mix a little argument into a straight recitation of his facts—in fact, his plan was to find out exactly how much argument his counterpart could tolerate.
So after his own low-key and affably gracious greeting to the jurors, Hardy wasted no time bringing out his own guns. “Well, we’ve all now heard Mr. Rosen’s account of the murders of Paul Hanover and Missy D’Amiens, and I couldn’t help but be struck by his use of the phrase, ‘we will show, and prove to you beyond a reasonable doubt.’ Just hearing him use those words creates a powerful impression, doesn’t it? He’s telling you he’s got evidence to support his theory of Paul and Missy’s deaths that is so persuasive that it will leave you in a state of virtual certainty, beyond a reasonable doubt, that Catherine Hanover killed them both.
“But let me tell you something. He doesn’t have any such thing. He has, in fact, no physical evidence at all that places Catherine at Paul Hanover’s house at or near the time of the murders.” He stopped as though struck nearly mute for a second by the enormity of what he’d just said. “Can that be right? You must be thinking, How can the State of California have arrested and charged Catherine Hanover with this heinous double murder of her father-in-lawand his fiancée if there is simply no physical evidence tying her to the crime?”
A flummoxed look on his face, he turned first to the prosecution table as though he expected an answer to this very reasonable question. When none was forthcoming, he came back to the panel. “That, ladies and gentlemen of the jury, is a very good question. Because the pure fact is that Mr. Rosen does not have so much as a single fingerprint of Catherine Hanover on any part of the murder weapon. He does not have anything tying Catherine Hanover to the gasoline container that Mr. Hanover’s killer used to start the fire at his house. He has, let me repeat this one more time, no physical evidence. Remarkable.”
Hardy took a casual stroll of his own now across to the defense table where Catherine sat. Borrowing from Rosen’s bag of tricks, he, too, raised his arm and pointed a finger at his client. “This woman is innocent, completely innocent of these crimes. She is guilty of nothing at all, in fact, except for drawing the attention and incurring the wrath of the lead investigating officer on this case, Sergeant Dan Cuneo, by resisting his inappropriate sexual advances and reporting them to his superior.”
Out in the gallery, a low roar erupted. This was what all the reporters had come for! Sex and scandal. Salacious accusations and powder-keg secrets.
Hardy took a beat’s quiet pleasure in the sight of Cuneo’s startled fury, of Chris Rosen’s jaw, visibly drooping. Startled and disconcerted, though he must have known that the issue would arise, he simply didn’t seem prepared for the accusation so early in open court. Welcome to the big leagues, Hardy thought. He had drawn first blood.
It got better. Cuneo whispered something to Rosen, who belatedly rose to his feet. “Objection, Your Honor. Argument.”
“The objection is overruled. He’s not arguing, Mr. Rosen. He’s telling his version of events, as you did. That’s what opening statements are for. Go on, Mr. Hardy.”
Hardy nodded respectfully. This was wholly unexpected. Not only had Braun ruled for him, but she’d thrown Rosen a backhanded rebuke in front of the jury. Hardy had to like it, but couldn’t dare show any of it. “Thank you, Your Honor,” he said.
He moved to the center of the courtroom. Again he turned and looked back over at the defense table. “I said a minute ago that there was no physical evidence tying Catherine to this crime. But more than that, there is no convincing evidence of any kind, physical or otherwise, that she is guilty.” The adrenaline was definitely running now, and he was aware of a keen pleasure—almost a thrill—knowing that he was going to let it take him as far as it would.
“The critical prosecution witnesses are inconsistent and contradict one another. My client’s statements have been twisted and taken out of context. The so-called motive has been exaggerated and d
istorted, and the whole foul-smelling mass has been coaxed into the feeble semblance of a case by an overhasty and careless investigation.
“Two people are dead here. And the evidence will show they were shot to death. The prosecution evidence beyond this is simply not clear enough, clean enough, convincing enough to convict Catherine of murder.” He paused for a beat, confident now that he’d be able to slip in a last bit of argument. “At the beginning of your service,” he said to the jury, “you swore an oath. As Catherine sits there now under your gaze,” he said, “you must presume that what I have told you is the truth. You must presume that she is innocent. That is where this trial begins.
“Mr. Rosen would have you believe that she is not innocent. That she plotted and executed this double murder for financial gain. That she is guilty as charged. But no amount of political ambition, no desire to close a high-profile case can make her so. The law of this country presumes the innocence of the accused. It is on that presumption and upon your oath that we will rely.”
He met the eyes of several jurors, every one rapt. Up to now, at least, he had them with him.
17
The only witness before the lunch break was John Strout, an ageless and usually uncontroversial figure at every murder trial that Hardy had ever attended in San Francisco. Prosaic as it might seem, usually one of the first orders of business for the prosecution was to establish that a murder had, in fact, taken place. Or, in this case, two murders.
Hardy had studied the forensics and the autopsy until he’d gone cross-eyed trying to find some wedge to cast doubt on the causes of death or, more specifically, to re-introduce the idea of murder/suicide. It certainly didn’t look good, knowing all the facts as he did; in fact, the possibility was so remote as to be an impossibility. Still, he didn’t see how it could hurt to give the jury a nugget of doubt about that point.
So when Rosen finished his none-too-rigorous direct on what had been the obvious causes of death of the two victims, Hardy stood and walked up to where Dr. Strout sat with consummate ease in the witness box. As some people grow to look like their dogs, Strout the coroner had over time come to resemble a cadaver. Nearly six and a half feet tall, gaunt and sallow, Strout’s many-lined cheeks were covered with a crepe-paper skin that sank into the hollows of his face. A prominent Adam’s apple bobbed with every frequent swallow. But for all that, he somehow managed to retain something of a youthful air—a shock of unruly white hair, pale blue eyes that had seen it all and laughed at a lot of it. When he spoke, a Southern drawl cast much of what he said in a sardonic light. Although here, of course—on the witness stand under oath—he would strive to be nothing but professional.
Hardy had known the man for thirty years and greeted him cordially, then got down to the business at hand. “You’ve testified that both Mr. Hanover and Missy D’Amiens died from gunshot wounds to the head, is that correct?”
“Yes, it is.” Strout was sitting back in his seat, arms resting on the arms of his chair, his long legs crossed in the cramped witness box, an ankle on its opposite knee.
In the kindergarten simplicity of the courtroom, Rosen had presented a drawing, mounted on a portable tripod, of the two victims’ heads, showing the entry and exit wounds of the bullets and their trajectories. Hardy went first to the location of the wound on Missy’s head—verifying that it was in the upper back. “Let me ask you then, Doctor. Could this wound have been self-inflicted?”
Strout’s initial reaction, covered quickly, was a twinkle in those pale eyes. He knew Hardy well, and the question was so stupid on its face that he almost didn’t know how to respond except with sarcasm. But it stirred him from his complacent lethargy. He uncrossed his legs and pulled himself up straight. “In my opinion”—“In ma ’pinion”—“it would have been well nigh impossible to inflict this wound on herself.”
“Im-possible, you say?”
“That’s right.”
“All right. And turning now to Mr. Hanover’s wound. Same question.”
“Could he have shot himself there, over his right ear?”
“Right,” Hardy said.
“Well, no. I don’t rightly think so.”
“But unlike the case with Missy D’Amiens, it might not have been impossible?”
“Well, no. If he’d used his left hand, but even so, the trajectory . . .” He stopped, shook his head with some decision. “I’d have to say no. No.”
“No, Doctor? And why is that?”
“Because he had polio when he’d been younger, and his right arm was useless.”
Hardy nodded at this fascinating discovery, brought in the jury with his eyes. “So he couldn’t have lifted the gun with his right hand to where it needed to be to have fired the shot that killed him? Is that your testimony?”
Strout’s eyes were narrowed down now to slits. He famously did not like his medical opinions challenged, either in or out of court. “That’s my understanding. Correct.”
“Your understanding, Doctor? I take it then that you did not have a chance to examine Mr. Hanover while he was alive, did you?”
“No. Of course not.”
“No. Well, then, in your examination of the body after his death, did you find the muscles in Mr. Hanover’s right arm to be atrophied or useless?”
“No, I did not.”
“No? Why not?”
“Because there was essentially nothing left of the right arm. It had cooked away.”
This macabre recital brought a hum to the gallery that made Braun lift her gavel, but it died away before she could bring it down.
“So, Doctor,” Hardy continued, “there is nothing about your examination that precludes the possibility that Mr. Hanover shot Ms. D’Amiens and then himself. Is that correct?”
A glint of humor showed again in Strout’s eyes. So this was where the apparently stupid questions were leading. He nodded. “That’s right.”
“In other words, according to your personal examination of Mr. Hanover after his death, you found nothing that would rule out the possibility of a self-inflicted wound?”
“Correct.”
“And of course, Mr. Hanover, before he took his own life, could have shot Ms. D’Amiens. Isn’t that true?”
“Yes,” Strout replied.
“Thank you, Doctor,” Hardy said. “No further questions.”
As soon as Braun called the lunch recess, Hardy gave his client a small pat on the hand before she was led away to her holding cell just behind the courtroom for her own jail-time meal. Most days, Hardy would probably be back there with her, going over issues with sandwiches or sometimes with food phoned in by Phyllis from any one of a number of terrific local eateries. But today—and Hardy had told Catherine beforehand—he had a point to make.
So he gathered his notes and binders into a neat pile in front of his place, then got up and pushed his way through the swinging gate to the gallery. Frannie stood waiting for him, and he slung an arm around her shoulders, drew her to him, kissed the top of her head—the picture of a happily married man casually meeting up with his spouse. He then leaned over to say hi to Jeff Elliot, who’d wheeled himself up next to Frannie before the proceedings began. “I love this woman,” he said, “and you can quote me.” Then, sotto voce, he added, “In fact, I wish you would.”
“It’s not exactly news,” Elliot said. “Man loves wife. You know what I mean?” He knew what Hardy was talking about, however, and said, “But I’ll see what I can do.”
The three of them stood chatting in the press of peopleas the courtroom slowly emptied, the jury first. Hardy noticed Cuneo, who’d nearly bolted from the prosecution table, drumming the back of a chair in front of him. His face was a black mask as he tried to keep his cool, or rather not to show his self-evident fury, as the other people in his row (four rows away from Hardy) patiently awaited their turn to file out. There was only the one center aisle in Department 21, so exiting this courtroom was always a bit like leaving an airplane—slow, slow, slow—While the
people in front of you struggled to get their luggage out of the overhead bins, or helped their children or older parents, or just talked and talked and talked, unaware that they needed to keep the goddamn line moving.
And then at last Cuneo was on his way up the aisle, his back to them after a few furtive and angry glances. When Elliot, Hardy and Frannie at last got out into the hallway, there was Cuneo again, in a heated discussion with Rosen. And again, as he saw Hardy, a flash of pure hatred.
“Who’s that?” Even through the milling crowd, breaking up in various permutations as people went to lunch, Frannie noticed the directed glare.
Hardy still had his arm over her shoulder, and turned her away. “Cuneo.”
“That would be Inspector Cuneo to you.” Elliot was wheeling himself along next to them. “He seems a little perturbed.”
Frannie turned for another look back. “I’d say scary.”
“He’s just a cop,” Hardy said dismissively, “and not a particularly good one.” They were waiting with several other citizens for the elevator on the second floor to open. “And speaking of cops, did either of you see Abe around this morning before my brilliant opening?”
“You had a flash of brilliance? When was that?” Elliot asked. “Darn, I must have missed it.”
“Come on, Jeff,” Frannie said. “He was.” She looked up at him, amusement in her eyes. “Or at least, as David used to say, he was ‘fairly competent.’ ”
“You’re both too kind, really,” Hardy said. “But Abe?”
Frannie shook her head no. So did Jeff Elliot. “Haven’t seen him.”
The Motive Page 24
