The Second Chair

by John Lescroart

  Much to Hardy’s displeasure, Brandt and Anna weren’t complete strangers anymore. Wu told him that when the prosecutor had seen her name on the list, he, too, had called the Salarcos, then gone out to visit with them last night himself. This was why Juan was out in the hallway now, waiting for his chance to talk to the court and possibly refute whatever his wife had said first.

  So Brandt advanced to the witness box with a relaxed demeanor. “Mrs. Salarco,” he began, “how far is it from your window to the sidewalk in front of your house?”

  “I don’t know exactly.”

  “Approximately, then.”

  She shot a glance at Hardy and he nodded with some confidence. This question was not unexpected. “Thirty feet, maybe forty.”

  “Thirty or forty feet, thank you. That’s about the distance from where you’re sitting to the back of this courtroom, is that right?”

  Hardy turned around to check and saw that Brandt wasn’t far off.

  “Something like,” Mrs. Salarco said. “Yes.”

  “And you and your husband live on the second floor of your building, do you not?”

  “Yes.”

  “So you were looking down at the person you saw?”

  “Yes.”

  “And he was wearing a cowl?” At her confused expression, he mimicked with his hands, and added, “A sweatshirt with a hood over his head?”

  “Sí. Yes.”

  “Did it cover his whole head?”

  Again, she looked at Hardy, and again he nodded. What else could he do? He had to let her tell her story and hope it came out as credible.

  She nodded back at Brandt. “Yes. But not his whole face.”

  “Did it cover part of his face, then?”

  She paused. “Yes.” Then added. “He looked up.”

  God bless her, Hardy thought.

  But Brandt came right back at her. “What do you mean by that, Mrs. Salarco? That he looked up? Do you mean—”

  Hardy stalled to let the witness get composed. “Objection.”

  “Sustained.”

  Brandt was ready, though. “At any time, did the hood come off the man’s head?”

  “No.”

  “It covered the top of his head and part of his face?”

  Hardy stood again, objecting.

  “Sustained.”

  “All right. Let me ask you this, Mrs. Salarco? Was it dark outside at this time? Nighttime?”

  “Yes, but—”

  “Yes is sufficient, thank you,” Brandt said, cutting her off. He must have decided that he’d made enough of his point, and switched gears. “Mrs. Salarco, were you present at the police lineup where your husband identified the person who’d been downstairs at Mr. Mooney’s apartment that night?”

  “Yes.”

  “Did you take part in that lineup, too?”

  “Yes.”

  “And you failed to identify anyone in the lineup as the person you saw that night, is that right?”

  “Yes.”

  “You were given a form, and then signed the form, saying you didn’t recognize anyone in the lineup, is that right?”

  “Yes.”

  “And Mr. Bartlett, sitting at that table over there”—he turned and pointed—“you did not recognize him?”

  “Your honor.” Hardy was up again.

  “I’m getting to something here, your honor,” Brandt said.

  “All right.” Johnson nodded. “Objection overruled, but get to it.”

  “Mrs. Salarco, when you did not positively identify anyone in the lineup as the man below your window, did you mean that you didn’t know whether it was one of the people in the lineup or not? It might have been or it might not have been. Or did you mean to say that none of those people in the lineup was the man you saw? That is, you could not definitely say that it was Andrew?”

  Her eyes by now filled with fear, Anna Salarco looked to Hardy for support, but there was nothing he could do. She came back to Brandt. “I’m sorry. I don’t understand.”

  “Your honor,” Brandt said. “May I rephrase?”

  “Go ahead.”

  Brandt gave her a warm smile and stepped a bit closer to her. “Mrs. Salarco,” he said, “we are trying to understand exactly what it is that you want to tell the court. At the lineup, you said you could not identify anyone, is that correct?”

  “Yes.”

  “All right. Did you mean that it could not have been Andrew? That it was impossible that it was Andrew down below you thirty or forty feet away, with a hood over his head on a dark night?”

  “No. Maybe not impossible, but—”

  Brandt rushed her with the follow-up. “So your testimony now is that what you meant to say was that you couldn’t positively identify the person as Andrew? Is that right? That you weren’t sure enough to swear to it.”

  “Sí,” she said. “I could not swear to it that it was him.”

  “Ah.” Brandt rewarded her with a beaming smile. “Thank you, Mrs. Salarco.” He whirled to Hardy. “Redirect.”

  He wanted to take a short recess, perhaps confer with Wu and give Anna a few minutes to collect herself and perhaps realize what she’d said. But he didn’t think he could afford to wait. “Mrs. Salarco,” he began. “Is there a streetlight in front of your house?”

  “Yes.”

  “Was it on—that is, lit up—when you saw the man come from the downstairs apartment, turn, and look up at you?”

  “Yes.”

  “And could you see the man’s face?”

  “Yes.”

  “And was it Andrew’s face?”

  She stopped, looked for a long time at the defense table, then finally shook her head. “No,” she said. “Was not that boy.”

  During the lunch recess, Hardy stood out in the back lobby making phone calls, to Glitsky, to his wife, to the office. As he was finishing up the last one, he noticed Wu and Brandt sitting on a bench next to the walkway that led up to the cabins. From his vantage, they appeared to be arguing, but there was something about their body language that set Hardy’s alarms jangling. Since there wasn’t a jury that might be influenced by seeing the opposing attorneys schmoozing during lunch, their tête-à-tête wasn’t the breach in trial decorum it might otherwise have been. But still, especially given the Norths’ presence just up the hill in the cabins having lunch with their son, Hardy did not think it presented a picture that would be particularly comforting to the clients.

  He put away his cellphone, walked out the back door, and started to approach them. When he got close, he noticed the silent signal pass from Brandt to Wu, and they both shut up and put on different faces. Hardy gave them both a polite hello.

  “Any word from Glitsky?” Wu asked him.

  “He’s not answering, so I’m assuming he’s too busy. I left a message that we want to know the second he’s got anything firm. Meanwhile, I’m going up to have a word with Andrew and his folks. If I’m not interrupting anything here, you want to come along?”

  Coming from her boss, this wasn’t really a request. Wu hesitated, then stood up and fell in next to him as he continued walking. “He’s not going to call Juan Salarco,” she said.

  Hardy nodded, believing that the decision was the proper one. Though Juan’s testimony might have undercut his wife’s credibility somewhat, in the end his identification of Andrew in the lineup was already on the record, and the differences in the stories and interpretations of the husband and wife were what juries were for. Further, once he got on the stand, Hardy or Wu would have a chance to cross-examine him and perhaps expose other weaknesses that they could later exploit at the trial. “So that’s it for witnesses then?”

  “It looks like.”

  “Then it’s over. We get the ruling when we go back in.” Hardy took a few more steps, then asked, “What were you two arguing about? It wasn’t that he isn’t calling Salarco.”

  “No, it’s that he won’t call Jackman.”

  “Why should he? As his honor was kind eno
ugh to point out, if they get anything, Jackman will call him. Mr. Brandt is just playing it out.”

  “A game, right.”

  “Well, in some ways it is a game, Wu. You know that.”

  “Not for Andrew,” she said.

  “No, though it was when you started with him, wasn’t it?”

  Her shoulders fell with the truth of that. “It’s just that keeping track of when it’s a game and when it’s not”—she broke a weary smile—“it can wear a girl out.” They hadn’t yet reached the gate that enclosed the cabins, and Wu stopped walking. “But this is just so clearly wrong, don’t you think? Andrew didn’t kill anybody.”

  “No. I don’t believe he did either.”

  “That’s what I asked Jason, whether or not he believed it. He said that wasn’t the point. He didn’t want to go there.”

  “He’s right. His job right now is to present the petitioner’s argument.”

  “Even if he knows it’s wrong?”

  “Even then. And in this case, he doesn’t know he’s wrong. He’s just a lot more likely to be wrong than he used to be.”

  “And so Andrew winds up screwed again?”

  “You don’t want to be screwed, don’t get in the system. But for the time being, that’s what it looks like. But it won’t last much longer, I don’t think.”

  Wu bit her lip, shook her head. “This is all my fault, you know that? Every bit of it. If I hadn’t been so arrogant and stupid, Johnson might be listening to all this new information with an open mind, instead of being so blind . . . I mean, what if Andrew had succeeding in killing himself? That would have been completely my fault. And now, every extra minute that he spends in jail . . .”

  Hardy stopped her. “You thought you were doing what was best for your client. That’s the job.”

  “But he wasn’t guilty.”

  “You didn’t know that. You thought he was.”

  “I always thought they were. They always have been before.”

  “Okay, so maybe you won’t think that anymore. It’s not all about strategy and leverage. Sometimes—not often, I grant you, but sometimes—it’s about the truth.”

  The small visitors’ room was too small for all of them, so Bailiff Nelson had accompanied Andrew, Hardy, Wu and the Norths back down the hill to the courtroom, where they now sat. “But this makes no sense at all,” Linda North said. “We know that Mr. Mooney and Laura were both killed by this Executioner, don’t we?” She looked around at them all, wide-eyed. “Don’t we all know that? Is it just me?”

  Hardy nodded. “No, it’s not just you, and yes, we know it. But we don’t have proof.”

  “What more proof would we need?” Hal asked.

  “Physical evidence,” Hardy said. “We know that they’ve matched the slugs that killed at least three of the Executioner’s victims. I’m asking the police to take another pass at Mooney’s place, try to find the slugs. Either they’ll do it or I’ll find some investigators and pay them to.”

  “But what if nobody finds them?” Linda asked.

  “Then maybe they’ll find this Executioner and he’ll confess to killing Mooney. Or maybe Juan Salarco could withdraw his ID. Any of those would be good.”

  “But what if,” Linda went on, “what if we don’t get any of them? Are you saying they won’t let Andrew go?”

  “They still might, yes,” Hardy said. “But they might not.”

  “And in the meanwhile,” Andrew said in his damaged voice, “what happens to me?”

  “I’ll be here,” his mother said to him. “I’ll be here every day.”

  “We’ll both be here,” Hal added.

  Hardy put a hand on the young man’s arm, gave what he hoped was a reassuring squeeze. “I’ve got to ask you to sit tight awhile longer. You think you can do that? This is going to work out. I promise you. We’re almost done.”

  Hal couldn’t let it go. “But the judge must know now, doesn’t he? I mean, the coincidence is so great it really couldn’t be anything else.”

  “In fact,” Hardy said, “it could be something else. Somebody else besides the Executioner could have had a motive to kill Mooney, or Laura, though I wouldn’t bet on it. But Andrew’s guilt or innocence isn’t what this hearing is about anyway.”

  “And meanwhile he sits in jail,” his mother said.

  “Really, though,” Hardy said, “not for too much longer.”

  “This is just a fucking travesty,” Hal said.

  Hardy met his angry gaze with one of his own. “I couldn’t agree with you more.”

  Nelson’s bulk appeared at the table beside them. “Mr. Hardy, Ms. Wu, his honor would like to see both of you in chambers.”

  They exchanged a worried glance, excused themselves and walked back out through the bullpen. Nelson knocked on the judge’s door, got a “Yes?” and pushed it open.

  This time, they had room to enter and even to sit on two of the three chairs that had been placed in front of Johnson’s desk, where the judge sat without his robes, in shirt and tie. Much to Hardy’s surprise, he looked up from the document he was perusing and greeted them more or less genially. “I’ve asked Mr. Brandt to join us as well, and I’d prefer to say nothing until he arrives.” He went back to his document, occasionally taking a note or striking a phrase.

  Brandt didn’t keep them waiting long, and as soon as he’d come in and sat, Johnson adjusted his glasses and began to speak. “I want to thank you all for coming by. You’ll notice that I have not asked the court recorder to join us. This is because I’d like this meeting to be off the record. Does anyone have an objection to that?”

  No one did.

  “As all of you I’m sure realize, this has been an acrimonious case from the outset. I’ve spent the last hour and a half here at my desk thinking about what we’ve seen and heard about this minor Andrew Bartlett, his attempted suicide, and so on. It’s led me to wonder if perhaps some of the earlier defense motions and strategies presented in this case might have antagonized the court to a degree that is incompatible with the interests of justice. The fact of the matter is that I’ve been very angry and remain very angry at what I’ve taken to be deliberate manipulation of the court.”

  “Your honor . . . !”

  “That’s all right, Ms. Wu. I’m not accusing you of anything now. I’m pretty well over it.” He took off his glasses and laid them on the desk in front of him. “Mr. Hardy, your representation in the courtroom this morning was, as you pointed out, compelling and highly relevant. However, as I tried to make clear about half a dozen times, I wasn’t going to allow this hearing and the reason for it to become bogged down in the question of Mr. Bartlett’s innocence or guilt. But now we’ve heard from all the defense witnesses, and Mr. Brandt, I understand you won’t be calling anyone?”

  “That’s correct, your honor.”

  “All right, then, for all practical purposes, we’re finished with the seven-oh-seven. All that remains is for me to render my decision, which I’ve prepared and plan to deliver at the proper time. For my own peace of mind and, frankly, to preserve the integrity of the court, I wanted to share that tentative decision with all of you now, before we go out on the record.”

  He replaced his glasses then and opened the document that was on the desk in front of him. “The court finds that the minor was seventeen years old at the time of the alleged offense and that the offense falls within Welfare and Institutions Code 707(b). The court finds as follows: the minor is not a fit and proper subject to be dealt with under the juvenile court law.”

  He looked up, noted Hardy’s and Wu’s looks of frustration and defeat, went back to his text. “The court finds that the minor is not amenable to the care, treatment and training programs available through the juvenile court based on the degree of criminal sophistication exhibited by the minor for the following reasons: the minor eluded a vigorous anti-weapons campaign at his school for several months before the alleged incident, and carried a loaded gun concealed on his person . . .�
�

  For the next several minutes, Johnson didn’t look up as he read from the notes in his folder, finding that Andrew “is amenable to the care, treatment and training programs available through the juvenile court” for the second, third, and fourth criteria, and giving his reasons. So Wu had won three out of four, Hardy was thinking, not that it mattered one whit for their client.

  “As to the fifth criterion,” Johnson finally intoned, “the court finds that the minor is not amenable . . . the minor is an unfit subject to be treated in the juvenile justice system. The matter is referred to the district attorney for prosecution under the general law. The matter shall be set for arraignment in the adult court.”

  When he finished, he took a breath and removed his eyeglasses. “That’s where we are,” he said. “I wanted all of you to understand my position on the law, my reasoning and my ruling. That will be the ruling of the court.”

  Now he looked to each of the three lawyers in turn. “However, in view of Mr. Hardy’s representation, and in the interest of justice and simple fairness, I’m not going to issue this ruling today. I’m going to take the matter under submission for one week, during which time you, Mr. Brandt, will discuss the matter with the district attorney and determine if he chooses to pursue the matter further, and to what degree. In the meanwhile, since Mr. Bartlett remains a minor until I formally declare him to be an adult, I intend to release him from his detention into the care of his parents until next week when I deliver my ruling.”

  Brandt, having won the hearing on its merits only to have the victory snatched from him, raised a hand and spoke. “Your honor, with respect, you can still issue your ruling today. The DA will be reviewing the case as a matter of course and will—”