Hardy 03 - Hard Evidence

by John Lescroart

  He wasn’t even going to go and request the evidence files from the D.A. What he planned to do was meet Andy upstairs right away and discuss his choice for another attorney. He stood in the hallway with Jane, head throbbing.

  ‘Hardy! Dismas, excuse me.’ It was Jeff Elliot, smiling his smile. ‘Remember me?’

  Jeff leaned on one crutch and Hardy introduced him to Jane. ‘The judge’s daughter? I’d love a minute with you if you could.’

  ‘Watch this guy.’ It was Hardy’s escape line.

  ‘Where are you going?’ Jeff asked.

  He stopped, half-turned. ‘After a brief career,’ he said, ‘I’m retiring from defense work.’

  ‘Don’t do that,’ Jeff said. ‘You were great in there.’

  ‘Thank you. Now if you’ll all excuse me…’

  Elizabeth Pullios emerged from the courtroom. She was accompanied by a young male assistant D.A. whom Hardy didn’t know. Pullios touched her assistant’s arm, stopping him, and walked over to Hardy’s group. ‘Locke won’t release any files to you until Braun rules on my motion,’ she said to him. ‘There’s no way you can do this.’

  Hardy smiled. ‘I like your red tie,’ he said, ‘it kind of matches your eyes.’

  She stared at him. ‘You know, I almost hope I’m overruled,’ she said.

  ‘Why is that?’ Hardy asked.

  ‘If you’re doing the defense, it makes the case a slam dunk.’

  42

  Hardy didn’t go directly upstairs to see Andy Fowler. Instead, he left Jane and Jeff Elliot, then carried his pounding head out to the parking lot under the freeway. It was cold, but the chill suited him.

  Pullios thought his involvement would make it a slam dunk, did she? It was tempting to find out.

  He forced himself to consider Andy Fowler in a new light. He could help him for a day — some mixture of appeasing Jane, doing a favor for a man who’d done him a few. But this was not to be confused with actually defending him for murder.

  He kept telling himself he wasn’t a defense lawyer. There was a different attitude, an orientation he didn’t have. He’d been a cop. He didn’t believe many people got arrested when they hadn’t done something. May Shinn had been an exception.

  But to think it could happen twice with the same victim stretched things pretty thin. Hardy hadn’t seen the new evidence they’d gathered on Andy, but it must be pretty damning. Even if every judge, D.A. and police officer in the City and County hated Andy, Chris Locke would never allow Pullios to go for another indictment on Owen Nash if he wasn’t convinced he was going to get a conviction…

  Still, there was the decidedly unusual if not unprecedented nature of the investigation. Whatever had gone on since May Shinn’s release seemed to have circumvented the police department.

  Glitsky would have told Hardy if they had found anything implicating Andy, as a matter of personal interest if nothing else. And they didn’t replace an experienced homicide investigator like Abe Glitsky with another guy from the homicide team without any notice.

  Abe was still in charge of the police investigation and he hadn’t found anything, yet somehow there had been enough new evidence for a grand jury. Well, where had it come from? What had they — whoever ‘they’ were —found, or invented?

  The traffic throbbed on the overpass above him. He put his seat back and groaned as his sore ribs tried to find a way to come to rest. He closed his eyes for a minute.

  What the hell else was he doing, anyway?

  The events of last night, if he was listening, ought to be telling him something.

  Okay, he’d gotten fired. Sure, no one else wanted his services. Yes, he’d really screwed up on Frannie. He’d also taken some pretty shabby advantage of Celine, in the steam room.

  Celine.

  If his own curiosity and the lack of evidence were two strikes for taking up Andy’s defense, then Celine — by herself- was two strikes against it. If he stayed involved, he would have to see her, see her a lot, and now from the wrong side of the case. He would be the man defending her father’s killer. Alleged killer, Dismas, remember that.

  Would the distinction matter to her? Probably not. He tried to imagine her behind him in the gallery as he tried to present his case for the defense. How effective could he be with that going on?

  But then there was Pullios. And there was Locke and Drysdale. There was the setup that had gotten him fired, set in motion his own personal tailspin. The injustice of that, the score to be settled. If he got Andy off, it would show them, and wouldn’t that be sweet?

  Hardy thought he just might beat Pullios. He’d gotten under her skin somehow — there was no other explanation for her challenge today. He could hammer there, let more of her anger, or whatever it was, come out, let the jury see it. Make them see it. And if she lost her cool, what about her arguments?

  He could beat her.

  He was smiling to himself, and it hurt. But so what? What else was new? You pushed through the pain and you got healed. That’s how it worked.

  Fowler sat across the table from him in Visitor’s Room A. ‘I’ve more or less reached the conclusion you’re my best shot, Diz.’

  ‘When did you decide that?’

  ‘I think when I saw that line of vultures sitting in the jury box. I’ve seen ’em all work, Diz, and none of them approach David Freeman.‘

  ‘Neither do I. I couldn’t even get you bail, remember.’

  Fowler tried to smile. ‘I don’t think Abe Lincoln could have gotten me bail. But you handled Pullios just fine. Plus you got in here last night, and with Jane. That was impressive.’

  ‘That was luck.’

  ‘Better lucky than smart. Besides, people make their own luck.’

  Hardy touched his bandage gingerly. ‘Lucky people do tend to say that, don’t they? I don’t believe it.’

  ‘You think I’m lucky?’

  ‘I’d say you’ve had a good run.’

  The face clouded. ‘I’m sixty-two, my reputation is shattered, the woman I love won’t see me—’

  ‘Let’s talk about the woman you love.’

  ‘Does that mean you’re with me?’

  Hardy shook his head. ‘I don’t know, Andy. I don’t know what they’ve got. I don’t know how Braun’s going to rule on my involvement.’

  Fowler waved that off. ‘File a brief before you even see what Pullios has. Your oral argument was persuasive as it was. I am entitled to the counsel I want and regardless of what Locke may say, I don’t see a conflict. I don’t think Braun will either. You weren’t state’s counsel for May, right?’

  Every time that came up, Hardy liked it better. ‘Absolutely not.’

  Then forget that. Write your brief. Let’s talk defense.‘

  * * * * *

  But before they did, Andy wanted to talk money, an issue Hardy, most unlawyerlike, had never once considered. After chiding him for that, Andy offered a $25,000 retainer against a $150-an-hour billing rate for preparation, and $1,500 a day for trial, which, he explained, would represent a cut in the hourly rate, since ten hours on a trial day would be a rock-bottom minimum.

  Hardy listened to the figures. He supposed he would get used to them, and when Andy had finished, said they sounded all right to him. So much for being unemployable, he thought, feeling better.

  Andy hadn’t seen any of the file they’d gathered on him and didn’t know who’d put it together. He assumed they’d gone over his life with a fine-tooth comb, but he had little or no idea about what exactly they might have found to tie him to Owen Nash. He had never met the man, he said.

  Hardy, in fact, wasn’t sure of that. What he was sure of was that if Andy Fowler felt about May the way his actions — never mind his words — indicated, he had a solid motive for killing Owen Nash. Still, there were facts to establish and he might as well start here.

  ‘And I take it, then, you’ve never been on the Eloise?’

  ‘That’s the same thing as asking if I killed him, isn’t it
?’

  Hardy said that maybe it was. He waited.

  ‘What’s the point of talking about that, Diz? We’ve pleaded not guilty. Every defendant in the world tells his lawyer he didn’t do it, but let’s not muddy the waters, okay? The issue is whether they’ve got evidence tying me to that boat. I say they can’t have. There isn’t any.’

  ‘How about my peace of mind, Andy? How about if it’s important to me that my cause is just?’ Hardy grinned, realizing he sounded pompous, but it was important to him.

  ‘Your cause, Counselor, is getting me off.’

  ‘So humor me,’ Hardy said. ‘Tell me one time. Did you kill Owen Nash or not?’

  Fowler shook his head. ‘Not,’ he said.

  * * * * *

  ‘Hardy on defense,’ Glitsky said. ‘How can you do that?’

  ‘Pullios says I can’t.’

  They were at Lou’s, where the lunch special was hot-and-sour lamb riblets with couscous. Hardy was filling in Abe on the Pullios theory of his conflict of interest.

  ‘She may be right, Diz, although she is not my favorite person this week.’

  Abe understood that whatever investigation had taken place, it had been behind his back. Simple courtesy would have dictated that he be kept informed of any developments. But Pullios had gone around him, and Glitsky was angry. He crunched the end of a rib bone and chewed pensively. ‘You think maybe he did it?’

  Hardy sipped some water. He’d stopped eating because eating hurt. ‘I’d like to see what they’ve got.’

  ‘He didn’t deny it?’

  Hardy wagged a hand back and forth. ‘Oh, he denied it. Sort of.’

  ‘Sort of? Do me a favor,’ Abe said, ‘if you find out he did it, don’t get him off.’

  Hardy moved his hot-and-sour around. It was also greasy and congealed. ‘You know why dogs lick their balls, Abe?’

  ‘Why?’

  ‘Because they can.’

  Abe shook his head. ‘You want to identify with the dogs, you go right ahead.’

  ‘I’m just saying it’s the professional approach.’ Hardy tried to shrug, but again, it hurt. ‘For your own peace of mind, and mine, I won’t stay with it if the file convicts him. Which is what worries me. They must have something. This isn’t just an administrative vendetta — they’re trying Andy Fowler for murder and he says he never met the man, never went near the boat, hadn’t seen May in four or five months.’

  Glitsky sucked a lamb bone. ‘That’s about what I found. But obviously, somebody found something else.’

  Hardy put his hands to his face, moved them to the sides, rubbed at his temples. He knew that if Andy Fowler had told him he’d killed Owen Nash, he couldn’t have let himself take the case, even to beat Pullios and Locke, even if the investigation hadn’t been strictly kosher.

  But, as Glitsky said, they must have found something important that pointed to Andy’s guilt.

  Which didn’t mean he was guilty. He said he wasn’t. Which didn’t mean he wasn’t. Okay, Hardy, that’s why there are trials, and juries.

  * * * * *

  He’d gone from Lou’s back to his car, then decided that, headache or no he had more business downtown. He got to the Chronicle building at about one and stretched out on a cracked black leather couch beside Jeff Elliot’s desk, where he was left alone for almost two hours. Elliot shook him awake.

  ‘What happened to you?’ he asked.

  ‘You owe me,’ Hardy said. He described to Jeff how he had come to lose his job, the misunderstanding with Judge Fowler and Jane, every other real and imagined consequence he could invent relating to Jeffs story on May Shinn’s bail, leading up to last night’s drunk and the beating he took.

  Basically, Hardy conveyed to Jeff that his article had ruined everything in his life for the last three or four months.

  ‘Okay,’ Elliot said, ‘so I owe you. I’m sorry about your problems, but the article never mentioned your name.’

  That wasn’t worth a rebuttal. Hardy turned straightforward. ‘I may need some investigative help down the line.’

  Jeff leaned over his desk, talking softly. ‘I work here. I can’t do anything like that.’

  ‘If I can leak to you, why can’t you leak to me? Plus, what you find for me, you’ve got the stories. There’s something here. Maybe I can point you at something you might miss, help out both of us.’

  ‘I’d have to protect my sources,’ Jeff said.

  ‘Naturally.’

  Jeff was mulling it over but Hardy could tell he had him. It was, he thought, a nice turnaround — usually the Deep Throat went to the reporter. Now he would — if he needed it — have himself a personal investigator with the ideal cover. He loved the idea of Pullios leaking to Jeff, who would in turn keep him on the inside track.

  * * * * *

  ‘So did you have a nice talk with Jane?’ Hardy asked.

  ‘Do you know she knew Owen Nash?’

  Hardy was sitting on the couch beside Jeffs desk, drinking tepid coffee from a styrofoam cup. He tried to keep his voice calm. ‘What?’

  ‘Jane, the judge’s daughter.’ The reporter kept typing away. ‘Your ex-wife, right?’

  ‘She knew Owen Nash?’

  ‘Yeah. Just a sec.’ He finished whatever he was working on, then spun a quarter-turn in his chair. ‘Are you all right?’

  Hardy was sitting back on the couch, his hand to his head. ‘How did she know Owen Nash?’

  ‘In Hong Kong, last year. She was over there on some buying thing. Just social stuff, a cocktail party for Americans abroad. But small world, huh?’

  He remembered Jane’s trip to Hong Kong. It was before he and Frannie had gotten together, or, more precisely, it was during the time he and Frannie had connected.

  When Jane had left for Hong Kong she and Hardy had been — more or less — together, trying it out again after the divorce and eight years of true separation where they had not so much as run into one another in the relatively small town that was San Francisco.

  While she was over there, while Dismas and Frannie were falling in love, Jane had confessed to Hardy that she had had her own small infidelity. Hardy knew a lot about Jane and a few things about Owen Nash. Jane was right around May’s age. Both she and Nash liked excitement. Both were given to spontaneous action.

  But Hong Kong was a crowded place. There was no reason to think that because Jane had met up with Owen Nash that she’d slept with him. But there was also no reason to think she couldn’t have.

  And if she did…

  * * * * *

  Driving home, another truly perverse thought occurred to him. His friend Abe Glitsky was unhappy with Elizabeth Pullios for building a homicide case outside the framework of the police department. Abe had even mentioned considering bringing obstruction-of-justice charges against the district attorney’s office, and wouldn’t that be a wonder to behold. Of course, it would never happen, but it indicated Abe’s state of mind.

  Now, Hardy thought, wouldn’t it be sweet if Abe discredited Pullios’s investigation by pursuing one of his own — teach her and her boss the D.A. a lesson in interdepartmental protocol… which would mean that Abe, in effect, would be doing police work for the defense. Smiling still hurt.

  * * * * *

  He sat with his arm around Frannie on the top deck of the ferry to Jack London Square in Oakland. There were still another two weeks of daylight savings time and the sun hadn’t yet set. The Bay was calm and as they approached Alameda it seemed to grow warmer. Though only twelve miles separated the cities, it wasn’t unknown to find twenty degrees of difference between the temperatures in Oakland and San Francisco.

  This was a Wednesday, and headache or not, date night was a sacred tradition. He pulled her in closer to him. ‘You can hang in there?’ he said. ‘It might be a while.’

  ‘I can handle a while — even a long time. Just keep me included, will you? We’re on the same side.’

  ‘Promise,’ he said.

  ‘And whi
le you’re making promises, I need one more.’

  He nodded.

  ‘This baby is getting itself born in four months, and trial or no trial, I want you there with me, just like with Rebecca.’

  ‘Hopefully not just like Rebecca.’ Rebecca had been thirty hours of grueling labor.

  ‘You know what I mean.’ His wife was leaning into him. She looked up. God, she was beautiful. Hardy and Frannie had come together when she’d been about five months pregnant with Rebecca — five months like now. Hardy thought it had to be the most attractive time in a woman’s life.

  After this morning, the agonies had been put aside for both of them. They were moving forward. They’d gotten through a bad time. That’s what ‘for better or worse’ meant, didn’t it — that you had some worse?

  He kissed her. ‘I know what you mean,’ he said.

  ‘So you promise?’

  ‘Promise.’

  43

  They were back home by nine-thirty and Hardy began working on his conflict-of-interest brief in his office, typing it himself. Without a law library at hand, he had to make do in a couple of places, but he had several rows of lawbooks and periodicals on his shelves, and anyway, the gist of his argument was the one he had presented orally in court.

  The closest thing to a precedent against him had been in a case where an assistant district attorney had been in the midst of trying a case against a Hell’s Angel when he’d been hired away from the district attorney’s office by the firm representing the defendant. There, the judge had prohibited the representation.

  And Hardy agreed that there, clearly, a conflict existed. He was sure that Pullios would try to draw a parallel to this case, but Hardy was certain that the differences here far outweighed the similarities: he had not been the counsel of record for May Shinn. Andy Fowler hadn’t been the defendant. All they had was the same victim, and the evidence against May Shinn in that earlier case was part of the public record. Hardy believed he knew nothing — officially — that a concerned layman couldn’t have discovered.