Hardy 03 - Hard Evidence

by John Lescroart

  ‘My work gets my full attention.’

  ‘Come on, Abe, you know what I mean. It would all be warmed over.’ She kept at it. ‘And nobody took you off it you know. If you’d found anything, we would have used it. Peter Struler just happened to find it.’

  ‘He just happened to go search Fowler’s office? A lot of times, I’ll do that — spice up a slow day and go and toss some judge’s chambers.’

  ‘Well, I had a theory and mentioned it to him.’

  ‘Even a dumb jock like me could figure that out, Elizabeth. Traditionally, though, theories get told to the investigating officer, which happened in this case to be me.’

  ‘I know that, Abe.’ Contrite. She stood up. ‘It was a mistake, Abe. I’m sorry.’

  ‘Yeah, well, sorry is a big help. Look at the evidence Struler got, and then why don’t you explain to my bosses how it was that I didn’t find any of it. Like by the time I hit Fowler’s office, after clearing it with my lieutenant because I thought it might be a touch sensitive, why there wasn’t anything left to find.’

  ‘It wasn’t only in his office.’

  Glitsky’s voice went real low. Almost a whisper. ‘You know, Elizabeth, I don’t care if it was in the Amazon rain forest. We’ve got a homicide team upstairs that works on homicides. We get you your evidence, without which you don’t have a job anymore. You got a new protocol, fine, you go for it, but it’s a two-way street.’

  ‘I understand that. Look, Abe, I’ve apologized. It won’t happen again. I’m really sorry.’

  Glitsky nodded. Sometimes you let them have the last word, let them think it’s all settled and forgotten.

  * * * * *

  ‘Just tell me you didn’t sleep with him.’

  ‘That’s none of your business.’

  ‘It’s my business.’ Hardy lowered his voice into the telephone. ‘Especially if it was last September. And you know it.’ He was in his office. Halfway through the file, he remembered Jane.

  He imagined her in her kitchen at her house — their old house — on Jackson Street, sitting on the stool, maybe a glass of white wine nearby. Hearing forty, twice divorced and suffering through the apparent decline in her market value that came as such a shock, Jane was still very attractive. Also intelligent, self-reliant, why was it men didn’t see it? If they were her age they wanted a relationship and went — as Hardy had (and she had pointed it out to him) — for the younger women, the tighter, the firmer, the more fun. They could dream again with the young ones, pretend they were younger, too. Build a new life halfway through their old one. The older men knew you’d been around. You didn’t have to play games. Everybody had sex. It was an itch to be scratched. Dinner, cognac, orgasm. Thanks a lot. You’re a great kid. Or the young guys who dug the experience of an older woman, but never a thought of settling down with one…

  Hardy had heard and read about all the stages. Jane had to be lonely as hell most of the time. Even with Chuck Chuck Bo-Buck, the latest.

  But not, he hoped, please not with Owen Nash.

  ‘Jane.’

  ‘It wasn’t anything,’ she said. ‘It was one night.’

  Her voice sounded dead.

  * * * * *

  He had filled twenty pages of yellow legal pad. It was nearly midnight and he rubbed his eyes, the swelling around them having turned a faint purple now, the throbbing continuous but bearable. He had been letting his mind go, jumping from issue to issue and following the flow, tearing out sticking tabs and placing them on pages by subject: Venue. Bail. Evidence. Theory. Jury.

  He thought he had to take another shot at getting Andy out on bail. Even if they set it for a million dollars, he couldn’t let him stay in the clink. He knew he could ask the Court of Appeal to force Braun to set some reasonable bail and eventually they would do it. Drysdale would know that, too. Maybe he could talk to him and get some concessions without the procedural hassles.

  After that, the first thing he would do would be to make a motion for judicial review of the evidence, which, now that he’d reviewed most of the file, still struck him as very light. Everything was circumstantial.

  Perhaps bolstered by Andy’s unsupported alibi, his lies (or one lie told many times) and the enormity of the risk he’d taken in defense of May, the evidence still didn’t put him on the boat. Without that, Hardy didn’t see how anyone could vote to convict.

  Juries had been known to do almost anything, but he thought an impartial judge, if he could find one, would throw this thing out as a turkey.

  Pullios and her personal grand jury notwithstanding, the system at least tacitly contemplated abuse of the indictment procedure, and so authorized a judicial review of the indictment to insure there was sufficient evidence to go to trial. It was not, after all, in the system’s own self-interest to bring a case to trial where there was no evidence. Hardy thought maybe he could get Andy off there. It at least was worth a try.

  If that didn’t work, he thought he would try to get out of San Francisco. His own file, from the time of the original Chronicle blurb when he and Pico had found Owen Nash’s hand, contained over sixty-five articles from both local and national publications on the case. Nash, Shinn, himself, Freeman, Fowler. And it was the kind of story people tended to read and remember, or stop what they were doing to listen to on the radio or watch on television.

  At least he was coming to the theory he would use in defense. You needed a defense theory. He’d done enough prosecuting to know that those defense lawyers who just refuted his evidence, who debated his conclusions, got themselves beaten. What you needed was your own affirmative defense. Come out fighting, the voice of outrage at unfair accusation.

  It had come to him today, and he thought it had some real legs. It also appealed to him because it gave things a personal edge — Pullios had done her job backward. The way it was supposed to work (he would argue) was that evidence is fairly gathered from all quarters by the police investigating the crime. When that evidence reaches some critical mass an indictment is sought and an arrest warrant is issued. None of that had happened in Fowler’s case.

  Hardy thought he could make a case to the jury that someone, Locke or Pullios or whoever, had fastened on Andy Fowler out of personal animus, out of anger at his professional lapses. It was a political vendetta based on his conduct on the bench but not because the evidence pointed at him.

  Hardy had never before called Glitsky as a witness for the prosecution on any of his cases, but now he wrote his name under a new tab… the investigating officer of record as a witness for the defense. That ought to jolt old Betsy.

  And he knew there was a further step he had to take, if he believed the judge was innocent. For that he was ready to use Jeff Elliot and Abe Glitsky and anyone else. Someone had killed Owen Nash. But juries were imperfect. They could make a mistake and convict Andy. Hardy’s best hope of getting Andy off was to find out who had done it.

  A tall order that, since evidently it hadn’t been any of the suspects so far- Shinn, Farris, Mr Silicon Valley. But there was an ‘X’ out there. Jane? Impossible. A one-night stand, she’d said. She’d said… No. He knew Jane, she couldn’t kill anybody. Besides, why would she have told Jeff Elliot she’d met Nash that once if she’d seen him since and it was an affair? Why open that door? Unless she figured it would come out anyway and she wanted to look like she had nothing to hide. No, ridiculous. Jane had no motive.

  Farris? He was numero uno with Nash gone, or in a position to be the power behind the new man in charge, all his show of grief notwithstanding.

  He sat back in his chair and stretched. Enough already, picking at straws. Abe hadn’t even looked yet at May’s other clients — the three men Hardy had discovered through the phone records. There was a whole universe of potential suspects. One of them, someone, had to have made a mistake but he wasn’t likely to discover it practicing this sort of armchair reverie. He had to get someone moving on it.

  He lifted the last dart from his desk and pegged it at his bo
ard where it stuck four inches below the bull’s-eye.

  Jane… had Andy known about Jane and Owen? Could that have been reason, another reason, for Andy to have killed Nash?… It might have been the last straw, Andy broken up over Nash — the ‘famous son of a bitch’ —stealing his May, and then he’s almost over that, maybe, when five months later he finds out the guy had also fucked his daughter and boom, over the edge… ?

  You’re playing devil’s advocate, Hardy. Andy didn’t do it, the polygraph he’d managed to schedule for the next morning, technically flawed as it might be, should eliminate any last doubts… not that he had many left — Andy resenting, sure, but also quickly agreeing to take the test was in his favor. Wasn’t it?

  He had read nearly everything in the file. He thought he was being fairly objective and still had no idea what new evidence Pullios had found to convince her to proceed. Certainly, on the evidence presented in the transcripts he’d been reviewing, she hadn’t put it in before the grand jury. Pullios could have talked herself blue in the face, sweet and convincing as she could be, about what an immoral man Andy was, what a lousy judge, how he didn’t have an alibi, the fact that he’d written Owen Nash’s name in his calendar, he was involved with May Shinn, he’d thrown away his career and reputation, had been secretive and unethical — but, so what? What did all that prove about making him a murderer?

  There had to be something else or the case wouldn’t have gotten this far — but winning an indictment wasn’t winning a jury trial. He was getting tired now but thought he’d take another pass at the stuff he thought he was already familiar with. The paper load had grown in one day to three binders and a couple of legal pads.

  He scanned Glitsky’s interviews with the two guards at the Marina — not much there. From his own notes he reviewed the previous May Shinn grand-jury testimony of Strout, Abe, Celine and the rest. So there wouldn’t be any surprises, he reviewed the physical-evidence list the prosecution was planning to enter as exhibits. It was, with the additions from Fowler’s calendars and the deletion of the two-million-dollar handwritten will, pretty much as he expected, and there still wasn’t much — the autopsy photos of Owen Nash, the gun, the phone records establishing Andy’s relationship with May, papers on the bail situation.

  He closed the binders. Time to sleep on it.

  45

  There were stacks of papers on May’s kitchen table.

  Under David Freeman’s guidance she had been, it seemed, suing most of the western world for what it had done to her — there were lawsuits against the officer who had arrested her, his superiors, the district attorney’s office and the City and County of San Francisco. Freeman was citing a smorgasbord of offenses ranging from false arrest through various civil-rights violations, defamation of character, libel and slander.

  Separately, they had been negotiating for the return of the many personal items — clothes, makeup and so forth —that she’d kept stowed aboard the Eloise. Four months after the murder, the boat was still sealed and winter was coming on. There were special things Owen had given her. She and David had made up a list, and David thought she ought to have all of it back — shoes, rain slickers, her beautiful down coat, a Siberian babushka, glass and jade pieces she’d kept in his rolltop, some exercise stuff. She had to laugh at the last one — she hadn’t done a thing with her body since June.

  By far, most of the legal work had involved the will. At first she hadn’t cared about the money, or thought she hadn’t. But gradually practicality and principle merged. Why should the estate, which didn’t need it, get it. Or his daughter who had so much anyway? She —May — was the one who had loved him and he had wanted her to have it.

  She stood holding her cup of tea, looking down at the stacks of papers, wearing a black-and-red silk kimono cinched at the waist. The mid-October day had come up clear and sunny.

  The peace she’d found, or thought she’d found, with Owen, had been shattered by her time in jail, the craziness surrounding her arrest. David Freeman, a dear man, had seen the hopelessness start to rise in her again and wisely had proceeded to involve her with these distractions, the lawsuits.

  And for a time it had kept away the nothingness. She had been busy, the way an ant was busy — going round piling up little things until they made a bigger thing. You don’t stop because the busyness was the end in itself. Now there was something new, a written request, not a subpoena, that she appear as a state’s witness against Andy Fowler.

  She walked over to her turret and looked down on the street, the people going into the deli, that cute little cable car. She tried to conjure up some image of the way she’d felt, or remembered feeling, with Owen, the unity the two of them had discovered.

  But it wasn’t there anymore. She’d had a family that had never loved her, that had been too afraid of life to try living it. Two barren marriages, liaisons without meaning. Day after day, going through motions, hoping for someone she could admire, who could admire her. Then thinking she’d found it and having it all smashed.

  And now all those papers. She supposed she owed it to David to keep at them. What did she owe Andy Fowler?

  * * * * *

  ‘Who was that?’

  Dorothy woke up happy every morning. The mattress on the floor was lifted onto a sturdy platform with a modern pine headboard. There was floral wallpaper along one wall with some Degas and Monet prints dry-mounted and covered with glass. Einstein still counseled them about mediocre minds. New drapes, a large bright throw rug, a rattan loveseat, end table, coffee table, three modern lamps. It was a different place.

  Jeff was even walking better, able to cross from the bar to his bed without his crutches. He didn’t believe it would last forever but he’d take it while it was here. Maybe the Prednisone for his eyes had done something for his legs. There was no predicting these symptoms, so when a little good came along you didn’t question it. He pushed himself back onto the bed.

  ‘That was Hardy, the attorney I told you about. For the defense this time.’

  Gloriously immodest, she lifted her naked body against a reading pillow and pulled him back against her, pulling the blankets over them, rubbing her hands up and down his chest. ‘And what does Mr Hardy want?’

  ‘Fowler’s taking a polygraph today. He wanted me to know.’

  ‘Why?’

  He leaned his head against her. ‘If he passes it, it’s news. It’s not evidence, but it’s news. And he figures it helps him.’

  ‘What if he doesn’t pass it?’

  That’s news, too. Either way it’s good for me. But Hardy must think he’s going to do okay or he wouldn’t have told me.‘

  ‘It seems a little risky…’

  ‘Hardy’s got to take some risk. They both win if Fowler is innocent.’

  ‘Do you think he is?’

  ‘Innocent you mean?’

  She nodded.

  ‘Nope.’

  * * * * *

  The gun.

  Pullios and Struler, clever devils.

  Hardy knew it would be unwise to file his 995 Penal Code motion for dismissal before he’d gone over every word of the file carefully. Most of it, as he’d noticed last night, was stuff he’d seen before, and the temptation was to skim it.

  The discovery process tried to eliminate surprises in the courtroom; the Perry Mason, last-minute, rabbit-from-the-hat conclusions were really the stuff of fiction. Long before anybody went to trial, attorneys for the prosecution had to disclose everything they had in terms of evidence, proposed witnesses, expert testimony. In theory, the point was not to sandbag your opponent (although if you could, it was a nice bonus) but to lay out the evidence and its relevance before a jury.

  If Glitsky or somebody else should chance upon some relevant evidence during the trial, then Hardy could introduce it at that time, but that would be a rare event. Most of the time, the parties knew the cards against them — the skill was in how they were played.

  Which didn’t mean that Pullios, hav
ing given Hardy everything she was supposed to, then had to sit him down and show him how to use it.

  So Hardy was being thorough. There was no surprise in the gun being presented as an exhibit — it was, after all, the murder weapon.

  What he did not expect was that Andy Fowler’s fingerprints were on the clip.

  So much for his motion for judicial review of the evidence. With the latest, Hardy realized there was at least enough evidence against Andy Fowler to warrant a trial.

  * * * * *

  ‘How could that happen? How could no one have seen that before? That puts him on the boat, and if he was on the boat, no jury in the world will believe he didn’t kill him.’

  Hardy had caught Glitsky on the phone at his desk before he started driving downtown and now they were eating hamburgers far from the Hall of Justice. Glitsky understandably didn’t want to be seen being buddy-buddy with a defense attorney. Friends or no friends, a new reality had kicked in.

  Glitsky chewed ice, which he did every chance he got. It drove Hardy crazy. ‘Not necessarily.’

  ‘What do you mean, not necessarily? The gun was on the boat and Fowler’s fingerprints were on the gun.’

  ‘They could have been on the gun before it got to the boat.’

  ‘Well, that’s damn sure going to be my argument, but it doesn’t exactly strengthen my case. How could he not tell me about that? How could he not know?’

  Glitsky had a bite of burger. ‘He lied.’

  ‘Thanks.’

  Abe swallowed, took a drink of Coke, chewed ice. ‘You’re welcome.’

  ‘How did we miss them last time, the prints?’

  Abe rubbed his face. Two ways, maybe. One, nobody looked at the clip. Shinn’s prints were on the barrel, she was the suspect, end of search. Two‘ — Abe held up two fingers — ’they got a print they couldn’t match. Then, once they knew they were looking for Fowler, they ran it against his.‘