‘Because of the physical evidence?’
‘To some extent. There were fingerprints on the murder weapon, a lack of an alibi, an apparent motive.’
Hardy had decided he might be able to introduce all of this testimony if he avoided having Glitsky draw any conclusions and if he kept May Shinn’s name out of it. So far, he was talking about the formal police investigation into the murder of Owen Nash — relevant testimony.
‘And based on that evidence, those suspicions, did you make an arrest?’
‘No, not right then. There wasn’t enough to justify it.’
‘But eventually you did make an arrest. Did you find more evidence?’
‘No more physical evidence, but I came to the conclusion that the suspect was about to flee.’
Hardy turned to the jury. ‘In other words, your suspect was exhibiting consciousness-of-guilt, and you felt justified making an arrest because of that.’
‘That’s correct.’
Hardy turned back to Glitsky. ‘Sergeant, this person with fingerprints on the gun, no alibi, no apparent motive, the one acting so guilty — was that suspect Andy Fowler?’
‘No, it was not.’
Hardy nodded and turned to Pullios. He had gotten through it without an objection. ‘Your witness.’
* * * * *
‘Sergeant Glitsky, when you did make the initial arrest in his case, the one Mr Hardy has just referred to, were you coerced in any way by any member of your department or by the district attorney’s staff?’
Hardy couldn’t believe it — Pullios was inadvertently introducing the very argument he had been trying to avoid because of Chomorro’s decision.
‘No. At that time it was a fairly standard investigation. Although we do try to move quickly.’ He looked at the jury. The trail of a homicide gets cold in a hurry.‘
‘Before making your arrest, did you wait for the complete fingerprint analysis on the murder weapon, People’s Exhibit One?’
‘Yes.’
‘And didn’t Mr Fowler’s prints turn up?’
‘Well, at the time, they were unidentified.’
‘You don’t deny that Mr Fowler’s fingerprints were on the gun, do you?’
‘No.’
‘But before you knew whose they were, you arrested another person? You told Mr Hardy your suspect had an “apparent” motive and alibi. Did you get an opportunity — before the arrest — to check that alibi?’
‘No, but —’
‘And isn’t it true that, in fact, your suspect had two eyewitnesses to where she was on the day of the murder —eyewitnesses you failed to locate?’
‘I wouldn’t characterize it as —’
‘Please just answer the question, Sergeant. It’s very straightforward.’
Glitsky looked down for the first time. Hardy thought it wasn’t a good sign. ‘Yes, that’s true. I didn’t locate them.’
Pullios walked back to her table, took a sip of water and read some notes, shifting gears. ‘Now, Sergeant,’ she began again, ‘how many homicides were you handling at this time, back in June?’
Hardy stood up, objecting. ‘The sergeant’s caseload isn’t relevant here.’
‘On the contrary,’ Pullios said, ‘Mr Hardy went to some lengths to establish Sergeant Glitsky’s professional routine under normal conditions. If these were not normal conditions, if the sergeant was under unusual stress, for example, the rigor of his investigations might suffer for it.’
Glitsky’s lips were tight. ‘The suspect was leaving the country,’ he said.
Chomorro tapped his gavel. ‘Please confine yourself to answering the questions, Sergeant. Ms Pullios, I’m going to sustain Mr Hardy here. No one is questioning the sergeant’s handling of his case.’
But, of course, Pullios had done just that: trying to discredit a prosecution witness who consorted with the defense.
As soon as Glitsky stepped down, Chomorro asked to see counsel in his chambers and called a ten-minute recess.
He stood in front of his desk. ‘Now look,’ he began as soon as Pullios and Hardy were inside, ‘I’ve warned you both about opening this can of worms and I’m not going to have it. This isn’t a conspiracy case on either side. Mr Hardy, that was some pretty nice navigating through some difficult shoals, but we’re not going on in this direction. I notice you’ve got Lieutenant Batiste up soon. Do I take it he’s going to say Sergeant Glitsky is a good cop who always follows established procedures?’
‘More or less.’
Chomorro shook his head. ‘Well, he’s not going to. I’ve also got some real concerns about how you intend to handle Art Drysdale. I think it’s all getting pretty irrelevant here.’ He held up a hand. ‘I’m not trying to cramp your style, Mr Hardy, but unless you’ve got something a little more substantive I think you might reconsider your direction. I know you’ll have the defendant up there half the day. I’ll let you summarize your procedure questions in the closing argument — up to a point. But I’m not inclined to let this thing degenerate into character assassinations of everyone in this building. Clear?’
‘Yes, Your Honor. But in that case, I do have a request. I’d like to add a witness.’
‘At this point?’ Pullios asked.
‘You’ve just asked me to cut out half of my witnesses. It doesn’t seem unreasonable to take another tack. It’s a small point anyway.’
‘Judge—’
Chomorro cut Pullios off. ‘Who is it?’
‘Celine Nash, the victim’s daughter.’
‘You’re calling her for the defense?
Hardy shrugged. ‘I’m calling her to get at the truth, Your Honor. The substance of her testimony will be access to the Eloise, Nash’s habits on board.’
‘How is that relevant to Andy Fowler?’ Pullios asked.
‘Come on, Elizabeth, I don’t want to give everything away. I’ll get to it when she’s on the stand.’ That wasn’t strictly true, but it was a small enough point, and Chomorro, having taken away, ought to give him one back.
‘All right,’ the judge said. ‘All right, Elizabeth?’
Pullios thought about it, then nodded. ‘Okay,’ she said, ‘why not?’
* * * * *
Testimony before lunch was taken up by Ron Reynolds, the polygraph expert. Hardy kept him on the stand longer than he thought really necessary, since the only important point he had to make was that Andy had volunteered to take the lie detector test. If Andy Fowler had been guilty, or even acting with a consciousness-of-guilt, he would not have done that, was Hardy’s point.
Of course, polygraph evidence of this sort was only admissible by stipulation. But Pullios had agreed to the testimony, provided she could make the point that Fowler hadn’t actually passed the test. Hardy didn’t need Reynolds’s point, but Pullios couldn’t do much with hers, either, and Hardy needed Reynolds to take up most of the rest of the morning on the stand — he had to take the good with the bad.
So he ran Reynolds around with how the polygraph worked in general, why people did well or poorly on it, margin for error and so on. On cross, Pullios, as expected, leaned on the fact that Fowler, with his vast experience, would conceivably know how to beat the test and therefore could have volunteered to take it knowing he could throw off the results.
But for Hardy, it accomplished his ultimate goal. He did not want to call Celine Nash before lunch. Suddenly, after the recess in Chomorro’s office, the course of the trial lay clearly charted before him. He would take Celine, the witness, baiting the trap, after lunch. Afterward, Fowler would testify on his own behalf, then perhaps Hardy would get to his closing argument.
Tomorrow, Chomorro would give the jury their instructions and leave it in their hands.
But today, after she testified, Celine would remain in the courtroom, as she had every day, until that day’s business was done. He was counting on the fact that she would not risk altering her routine, not when she was so close to winning.
* * * * *
; ‘Celine Nash.’
She reacted almost as though she’d been hit, turning in her seat abruptly to look around her. Recovering her composure, she stood in the gallery and walked up through the railing, looking questioningly at Hardy.
She settled herself into the witness box. She wore charcoal pinstripes over a magenta silk blouse, the effect of which was, somehow, both severe and demure. Her hair was pulled back, accenting the chiseled face, the aristocratic lines. Hardy steeled himself and moved to his spot as she was being sworn in.
‘Ms Nash, I’ve just a few questions, if you feel up to them.’
She nodded, wary, looking to the jury, then to Pullios. When she came back to Hardy she seemed to relax, getting into the role. ‘Go ahead, Mr Hardy, I’m fine.’
‘Thank you. You and your father, Owen Nash, were very close, were you not?’
‘Yes, we were.’
‘And you spoke often, saw each other often?’
‘Yes. At least once a week, often more.’
‘Going sailing, having dinner, that type of thing?’
‘Yes.’
‘Now in the last few weeks of your father’s life, did this pattern continue?’
‘Well, yes. I know I talked to him the week —’ she lowered her eyes — ‘the week he died, for example. It had been normal.’
‘And did you talk about any particular subject most of the time?’
‘No, not really. We talked about a lot of things. We were very close, like old friends.’
‘I see. You talked about a lot of things — business associates, sports, gossip, personal matters?’
‘Pretty much, yes…’
‘Now, during these last weeks, did he ever mention the name of Andy Fowler, either to you or in your presence?’
She considered. ‘No, not that I remember.’
Hardy walked back to the defense table and picked up some papers. ‘I have here,’ he said, ‘a copy of the transcript of your testimony before the grand jury in which you said that your father had told you he was planning on going out on the Eloise with May Shinn on the day he was killed. Do you remember that testimony?’
‘Yes, of course.’
‘And yet we know that May Shinn did not go out with your father that day.’
It wasn’t a question, and Chomorro took the opportunity to lean down from the bench. ‘I trust you’re going somewhere here, Mr Hardy.’
He really wasn’t. He was telling Celine he hadn’t forgotten about that testimony. He apologized to the judge and went back to his table, replacing the transcript.
Turning, he started over in a mellower tone. ‘Ms Nash, your father took a great deal of pride in his boat, did he not?’
Easier ground. ‘He loved it,’ she said, sitting back. ‘It was like a home to him. His real home.’
‘You were familiar with it, then? You spent a lot of time on board?’ Casual.
‘Well, yes. But not so much recently… He was taking May out on it a good deal.’
‘Do you know, did you father tell you, if May Shinn had a key to the Eloise?’
Pullios stood up. ‘Your Honor, I know we’re on boats here, but this is a little too much fishing for my taste.’
‘Mr Hardy, do you have a point?’
‘Your Honor, sometime between Wednesday night, June twenty-fourth, and the next afternoon the person who killed Owen Nash brought the murder weapon back onto the Eloise. That person would need a key.’
‘Your Honor! This is outrageous. How does this unsubstantiated claim relate to this proceeding, to Mr Fowler, to anything? No evidence has been entered, even hinted at, on this point.’
Hardy knew this would be the response, but he had to get the message to Celine that he knew. He kept calm.
Her face, he noticed, had gone pale, although at the moment no one else was looking at her. He was at the center of the storm.
‘Mr Hardy,’ Chomorro said, ‘we’ve heard Sergeant Glitsky testify that he found the gun on Thursday aboard the Eloise. Do you have a witness with a different version of events?’
‘No, Your Honor, not yet.’
‘Well, this is neither the time nor the place to find it. Is there anything relevant you’d like to ask Ms Nash? Otherwise…’
He leaned over toward Celine as Hardy said no. ‘The court apologizes, Ms Nash. If Ms Pullios has no objection… ?’
‘No, pass the witness,’ Pullios said.
When Hardy sat down, Fowler whispered to him. ‘What the hell was all that about? If that’s the best we got, then let me up there.’
* * * * *
Celine was cool, but he’d always known that. She walked by his table without a glance at him. He turned to watch her go back to her seat on the aisle. Thank God, he thought. As he’d assumed, she wasn’t leaving.
Finally Andy Fowler took the stand, and Hardy led him through the testimony they had rehearsed fifty times. He did look good up there, Hardy thought. Self-assured, confident, speaking clearly, giving the jury his attention and respect.
They went through it all from the beginning, taking the good with the bad. There were a few rough moments, such as when Hardy asked him, as they had decided he would, just why it was he had hired Emmet Turkel.
‘I didn’t hire him to find out about Owen Nash,’ Fowler said. ‘I don’t deny that was what he found, but I just wanted to know why May would not see me anymore. I thought she might even be in some trouble. I just wanted to know, and she had made it clear she didn’t want to talk to me about it.’
They went over how the fingerprints came to be on the clip of the gun, the tortuous and unlikely route that May’s proceeding had traveled to wind up in Andy’s courtroom.
‘And once it was there,’ Fowler said, ‘I felt it was too late. It was a mistake, a terrible mistake, but it wasn’t something I had contrived. It just happened — it fell in my lap.’
He admitted the lies to his colleagues, portraying himself — accurately, Hardy thought — as a man torn between his private needs and his professional position. ‘I should have asked her to marry me months before and taken whatever came from that,’ he said. ‘But I never thought about losing her until she was gone. And then, again, it was too late.’ Flat out.
As to his weekend in the Sierras, what could he say? He had gone up to clear his head, with the express purpose of seeing no one. He had succeeded only too well. He wished he hadn’t. ‘It would have saved the state’ — he took in the jurors — ‘and the jury much time, trouble and expense.’
In all, it took less than two hours of relaxed if meticulous testimony. Fowler remained composed, saying what needed to be said.
* * * * *
Pullios was obliged to charge not like a bull but like a terrier, holding onto his trouser leg, hoping to pull him off balance. Watching her work, Hardy was struck once again by her passion. Here was no act — every ounce of her dripped with the conviction that Andy Fowler lied with every breath he drew and had cold-bloodedly murdered Owen Nash.
‘Would you say, Mr Fowler, that you are an avid camper?’
The judge smiled. ‘No, not particularly.’
‘How many times, roughly, have you been camping in, say, the past year?’
‘Just the once, I’m sure of that.’
‘How about in the past couple of years?’
‘No.’
‘No what?’
‘No, I’ve only gone that once in the last few years. I’m a pretty busy man. Or have been…’
‘And yet last June, out of the blue, you suddenly decided to take a weekend off and go backpacking in the high Sierras?’
‘That’s right.’
‘Would you mind telling us where you ate on Friday night? Friday night was the night you left town, wasn’t it?’
‘Yes. It was one of those spots up Highway Fifty above Placerville. I don’t remember the exact name.’
‘Do you recall what town it was near?’
Fowler shook his head. ‘No, I’m really not too familiar w
ith the area.’
‘Do you remember what you ate?’
His frown grew pronounced. ‘I believe I ate a steak.’ He tried some levity. ‘But since I’m under oath I won’t swear to it.’
She kept at it. Was it dark when he had finished dinner? Where had he spent the night exactly? When did he hit the trailhead? What was his destination? How had he found it? What did he bring with him to eat on Saturday night?
It was getting to him. ‘You know,’ he said, ‘I didn’t give a great deal of thought to that weekend until after I was charged with this crime. It was simply a weekend away, not one to remember.’
‘Yes,’ Pullios said, turning to the jury, ‘we can see that.’
She moved along, as Hardy feared she would, to the stipulation about Fowler knowing not only that the gun was on the boat but exactly where it had been kept.
‘And this was after you had broken up, you found this out?’
‘Yes.’
‘When May Shinn wasn’t talking to you to the extent that you had to hire a private investigator to find out why she wouldn’t see you?’
‘Well, she talked to me that once.’
‘Why did she do that?’
‘I don’t really know. I called and she happened to answer the phone. Usually it was set to her machine. But she picked up, so we talked.’
‘And just casually talking, she happened to mention that her Beretta was in the desk at the side of Owen Nash’s bed on board the Eloise?’
‘No, it wasn’t quite like that.’
‘Would you tell us, please, what it was quite like?’
Hardy looked at the clock. She had at least another hour today and she was, to his regret, hammering at the evidence they did have, avoiding for the moment the entire consciousness-of-guilt issue, although he knew that too would come. Also, and perhaps worse, Andy seemed to be losing it a little, beginning to come across peevish.
‘Let’s talk about Mr Turkel again. You’ve testified that you were curious about why Ms Shinn was breaking up with you?’
‘That’s right.’
‘And so you hired Mr Turkel?’
Short questions, little tugs on the trousers. But they were doing the job.
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