Hard Evidence

by John Lescroart

  And then, according to plan, Leo got what he’d wished for. On his way out of office, his mentor the Governor had rewarded him for his sixteen years of loyal service by appointing him to a judgeship in San Francisco. Except that now he was here, he found the job had all the glamor of a stockyard, except the cattle were human.

  Before Leo Chomorro had arrived eighteen months before, Calendar judges in the City and County of San Francisco were rotated every six months. The work was so dull that no one could be expected to keep at it longer than that. But Leo’s budgetary philosophy when he’d been with the Governor, combined with his lack of belief in personal friendships, had created for himself a cloud of political resentment, and San Francisco’s judges wasted no time putting him in his place—which was Calendar, where he had remained and remained.

  It was ironic. Leo was a judge who believed there was justice in the world. Or should be. He had believed that if you worked hard and did a good job, people came to value you. You got promoted. You moved up.

  Ha.

  Today, Tuesday, July 7, Leo Chomorro sat sweating under his robes in Department 22, overseeing work he wouldn’t have assigned to his clerk. The Calendar was a necessary evil in all larger jurisdictions—there had to be some mechanism to decide which suspects went to what courtroom, whether or not cases were ready for trial, all of the administrative work that went along with keeping eight courtrooms and their staffs reasonably efficient so the criminal justice system could keep grinding along.

  It was the kind of work for which Leo was suited by experience and temperament. He thought he’d never get out of it, and it was driving him mad.

  “Okay, Trial Calendar line six, what have we got here?”

  This morning was never going to end. The bailiff brought in Line Six—all the cases were given line numbers off the huge computer printout that had to be processed every Monday. Except Monday had been a holiday. So the list was longer.

  He forced himself to look up. Line Six was a guy about Leo’s age and, like Leo, a Hispanic, although Leo couldn’t have cared less about his race. Line Six shuffled behind the bailiff to the podium in front of the bench. Mr. Zapata was represented by the public defender, Ms. Rogan. Chomorro looked down at the list for the next available judge. Fowler, Department 27. He intoned the name and department.

  “Excuse me, Your Honor.” Leo looked up. Any interruption, any change in the deadly routine was welcome. It was the summer clerk who’d been quietly monitoring proceedings at the D.A.’s table all morning. “May I approach the bench?”

  The boy reminded Leo of himself when he’d been a student. Dark, serious, intent, fighting down his nerves, he whispered, “Mr. Drysdale would like to ask you to reconsider your assignment of Mr. Zapata to a different department.”

  Leo Chomorro cast his eyes around the courtroom. He and Art Drysdale went over the Calendar on disposition of cases every Friday night, and he’d mentioned nothing about Zapata at that time. Well, maybe something new had come up, but Art wasn’t in the courtroom.

  “Where is Mr. Drysdale?”

  “He’s in his office, Your Honor. He asked if you’d grant a recess.”

  “When did he do that if he’s not here?”

  “That’s all he’s asked me to say, Your Honor, if you could grant a recess and call him.”

  Leo frowned. He wanted to keep things moving but felt empathy for the kid, and Drysdale made up the Calendar with him every week. In a world full of no friends, Art was as close to one as he had. He looked up at the defendant.

  “Mr. Zapata, sit down. We’ll take a ten-minute recess.”

  “It’s pretty unusual, Art. It’s circumvention.”

  “I know it is.” Drysdale wasn’t going to sugarcoat anything. This was Locke’s call, and he was delivering a message, that was all. He was sitting back, comfortable in the leather chair in front of Chomorro’s desk. “We don’t want Zapata going to Fowler’s department. He threw out the last one.”

  “I know. I read about that. Zapata’s another sting case?”

  Art nodded. “I just plain missed him on Friday or I would have mentioned it then.”

  Chomorro was moving things on his desk. “I’ve already assigned it, Art. Rogan might make a stink.” He’d called out Department 27—Fowler’s courtroom. If the defense attorney he’d appointed was on top of things, she’d know Fowler’s position on these kinds of cases. From Rogan’s perspective, Fowler was a winner for her client—he’d throw out the case. Any other judge probably would not.

  Art leaned forward. “We’re ready to lose one like that. What we don’t want is Fowler getting any more of these—start another landslide and screw up this program.”

  Chomorro shuffled more paper. His life was shuffling paper. He didn’t believe he could do what Art was suggesting. It was at the very least close to unethical. The D.A. or the defendant could challenge one judge, on any case. A judge could be recused from a case because of conflicts of interest, because he or she knew the defendant, for no reason at all, but such a public challenge always involved a political fight that both sides lost. Usually such problems were settled privately in the chambers of the Master Calendar department—certain cases just never happened to be assigned to certain judges. But here, Mr. Zapata’s case had been publicly assigned for trial. “I don’t think I can do it, Art.”

  Drysdale wasn’t surprised. He nodded, then leaned forward, forearms on knees, and settled in. “Leo, Your Honor, how long have you been on Calendar here?”

  It took Chomorro a minute, a subtle shift in posture like Art’s own. His mouth creased up. “Year and a half, maybe.”

  “Any talk of getting off?”

  Chomorro shrugged. “Somebody’s got to retire soon, die. I’m the low man.”

  Art leaned back. “The job used to rotate, Leo. You know that?”

  Again, a tight smile. “I’d heard that rumor.”

  “But if somebody carries a grudge around, maybe a little superior attitude, doesn’t make any friends, do any favors . . .” Art held up a hand. “I’m not talking illegal, I’m talking little things, amenities. Things could change, that’s all I’m saying. Chris Locke is pals with some of your colleagues, so is Rigby. They both like this program,the one that got Zapata. And no one—not even Fowler—is denying these guys are stealing. They’ve still got to be found guilty by a jury. They get a fair trial. We’re not circumventing justice here, maybe just fine-tuning the bureaucracy.”

  Chomorro did not for a moment buy Drysdale’s argument that they weren’t circumventing justice. Of course they were. But Chomorro was not a newcomer to politics, deals. He knew a deal when he heard one, and—assuming you were going to play—it wasn’t smart to leave things up in the air. “Labor Day,” he said. “I’m off Calendar by Labor Day.”

  Art Drysdale stood up, reached his hand over the desk. “Done,” he said.

  “Line Six.” Mr. Zapata was back up at the podium. “I’m sorry, there was a scheduling conflict, my mistake. The trial will be in Department,” he looked down again, making sure, “Twenty-four, Judge Thomasino.”

  Leo watched Line Six being led out in his yellow jumpsuit. Time was standing still. It wasn’t yet noon and he’d just had a recess. His blood was rushing. Well, it was done. It was possible that Ms. Rogan would never understand the significance of the change of department. Art would make sure he would be forewarned on any other Zapatas, and the whole thing would never have to come up again. Still . . .

  He shook himself, chilled in the hot room.

  “On the arraignment calendar, line one thirty-seven,” the clerk intoned. “Penal code section one-eight-seven, murder.”

  Suddenly the chill was gone. Something about murder cases got your attention, even when you were already familiar with them. This was the one he and Elizabeth Pullios had discussed after the indictment on Thursday— Owen Nash. They were dragging their feet over in Muni and the D.A. wasn’t going to stand for it. On Friday, Art Drysdale told Chomorro it would hit th
is morning, and they were going to move ahead if not with haste then with dispatch. Send a little message to the junior circuit.

  Line 137, May Shintaka, had surrendered on the grand-jury indictment and bailed again. She was in the gallery. Chomorro had noticed her earlier this morning, the one flower in a field of weeds. This was Line 137? He raised his eyebrows, then looked back down. Now she stood, unbowed, at the podium. Next to her was David Freeman, about the best defense attorney in the city. The defendant and her rumpled attorney were a study in contrasts. Leo theorized that Freeman’s sloppy dress was a conscious ploy to appeal to juries as a common man, one of them, regular folks.

  But regular folks didn’t make half a million or so a year.

  “Mr. Freeman,” he said, “how are you doing today?”

  Freeman nodded. “Fine, thank you, Your Honor.”

  During his recess with Art, Elizabeth Pullios had come into the courtroom and sat at the prosecution table with her second chair, one of the new men. He nodded to them.

  “Is the prosecution ready to proceed?”

  “I object, Your Honor.” Freeman, wasting no time.

  “We are, Your Honor.” Simultaneously, from Pullios.

  “Grounds?”

  Freeman’s voice rose. “As Your Honor knows, Municipal Court continued proceedings on this matter until after Labor Day.”

  “Well, you’re in Superior Court now, Mr. Freeman. What’s the point?”

  “There is no evidence to support—” Freeman stopped, started again. “The preliminary hearing would have revealed insufficient evidence to proceed to trial, Your Honor.”

  “Evidently the grand jury doesn’t agree with you. They issued an indictment.”

  “Your Honor.” Pullios was standing. “The people—”

  Chomorro brought down his gavel. “Excuse me, Ms. Pullios. I understand the people’s position here. Mr. Freeman, we’re not going to debate the evidence at this time. That’s for a jury to decide. Perhaps a request for a shorter continuance in Municipal Court could have avoided this problem.”

  “Your Honor, my client should not be subjected to the expense of a trial on this charge. I’m going to move for remand back to Municipal Court.”

  Chomorro smiled. Freeman was pulling out the stops early. “I’m afraid that option is foreclosed, Mr. Freeman.”

  Defense counsel didn’t seem to take a breath. “This hurry-up show trial is clearly motivated by state’s counsel enjoying the publicity of this high profile—”

  “Your Honor, I object!”

  Chomorro nodded to Pullios. “I think I would, too.”

  Freeman kept right on. “—to say nothing of the blatant racial and class discrimination evidenced by—”

  “Mr. Freeman! Enough. I remind you that this court operates under the grand-jury system. I will not tolerate these outbursts. The prosecution says it is ready for trial. If their evidence is weak it seems to me that should be to your advantage. All right, then.”

  Chomorro didn’t even have to look down to see where the next trial was going. “It sounds like there will be extensive motion work in this case. I’m sending the whole matter—arraignment, motions, pretrial and trial— to Department Twenty-seven, Judge Fowler. Forthwith. You can fight it out down there.” He brought his gavel down again, allowed himself a small smile. “Goodbye, Counsel. Now.”

  It wasn’t a long walk down the hallway, so there wasn’t much time for Hardy to tell Pullios about his relationship with Fowler.

  “It doesn’t matter,” she said. “Have you discussed the case with him outside the office?”

  “No, no place, in fact.”

  “Then I wouldn’t worry about it.” It was another opportunity to remind him of their respective positions, so she took it. “Besides, you’re not attorney of record here. I am. You’re assisting me.”

  “I think if Freeman even gets a whiff of it, though, he’ll move to dismiss.”

  “Freeman moves to dismiss if the bailiff has a runny nose. So what?”

  “So I’m a little worried about it.”

  She stopped and faced him. “Dismas, look. He’s not your father-in-law anymore, is he?”

  “No.”

  “So essentially it boils down to the fact that you’ve met the judge socially. Well, I’ve met the judge socially and we get along like pickles and milk. I wouldn’t be surprised if Freeman’s met him socially. Hell, they’re both in the rich men’s club, they probably play poker together. Maybe they trade stock tips. It’s irrelevant. Judge Fowler and you are not related, legally or otherwise. It’s not an issue.”

  Pullios, Hardy thought, was good on things that weren’t issues. She was good on everything. It got to you.

  Pullios got to the doors of Department 27 and held one of them open for Hardy. “Age before beauty,” she said.

  The orbits had aligned themselves.

  Friday had been a busy day, a couple of prelims, some plea bargaining, a lunch with four of the office gang, nobody even thinking about homicides.

  Frannie and Hardy had made love twice over the long Fourth of July weekend. The first time, Friday night, intense and silent, then the closeness, body to body, lying there, talking until after midnight.

  Saturday was the picnic with Moses, his current girlfriend, Susan, all the Glitskys, and Pico with Angela and their kids. And Rebecca was healthy again, finally—her jolly gurgling wonderful little self. Baseball, beer and barbecue. America’s birthday party on another miracle of a warm day.

  Then Sunday morning they went out for brunch and shared the best paella in the city. Afterward, back home, Frannie telling Hardy it was okay, Rebecca might remember that her parents had laughed and wrestled a lot when she’d been a baby, but it probably wouldn’t damage her psyche.

  On Monday, the sixth, back on his own center again, Hardy and Frannie had spent the morning stenciling some pastel horses and dolphins onto the wall in Rebecca’s room. In the afternoon he did a little work in his office, asking if Abe could get hold of May Shinn’s phone records for the day Owen Nash had been killed. He realized that if she had made a call on that day, their case was in trouble, and as far as he knew, no one had checked those records. He asked Abe if they could pinpoint flurries of gas or water use, electricity, anything that might indicate somebody had been home, and Abe had told him no, those utilities weren’t monitored that way.

  Celine wasn’t clouding things. Hardy knew that Pullios in a hurry was not the imperial wizard of detail, and after his oversights on Thursday with the grand jury, he was simply double-checking himself.

  30

  Jeff Elliot hissed at him from the gallery side of the rail in Department 27. He must have also been in 22 for Calendar, though Hardy, his mind on other things, hadn’t seen him. In fact, come to think of it, Hardy hadn’t seen Jeff for a few days, and now he didn’t look so good—his face was puffy and he was wearing dark glasses, even here inside the courtroom. Still, he was smiling, his usual high-energy self. And why not? His story was back in the fast lane.

  Jeff was motioning him back toward the rail. He nudged Pullios. “That’s Elliot back there,” he said. “The reporter. You wanted to meet him.”

  “Oh,” she said. “Good.” She was putting down some papers, starting to turn, Hardy waiting, when the bailiff called out, “Hear ye, hear ye! Department Twenty-seven of the Superior Court of the City and County of San Francisco is now in session, Judge Andrew Fowler presiding. All please rise.”

  The judge appeared in his robes from chambers. Elliot would have to wait.

  Seeing Andy, Hardy felt a twinge of guilt—he hadn’t followed up worth a damn on seeing how the judge was doing, whatever it was that had been bothering him. He should have called and set up a squash date. Something.

  He hadn’t heard from his ex-wife, Jane, either. Maybe the crisis—if there had been one—had passed. Certainly, up on the bench, Andy looked as he always did, magisterial and commanding. He gave Hardy a friendly nod. His eyes rested on the defens
e table for a moment—May Shinn was looking directly at him, meeting his gaze. She was one tough lady, although antagonizing a judge wasn’t recommended defense strategy. Freeman was busy emptying his briefcase. He seemed to miss the exchange of glances.

  Fowler broke first, his eyes drifting back to Pullios, then Hardy again. He arranged some work in front of him while the bailiff read the indictment again—Section 187, murder.

  The gallery had filled up already. It was so unlikely as to be impossible that the trial would begin today. Normally the earliest trial date would be sixty calendar days from the arraignment. But setting that date would be up to Fowler. It was his courtroom.

  Nevertheless a murder trial, especially this one, was news. After the indictment on Thursday, Hardy had heard that Locke had gotten calls from Newsweek, Time, all the big ones—they couldn’t escape it.

  Fowler welcomed counsel to his courtroom. He barely got a word in before Freeman predictably requested his continuance. The district attorney was using this as a publicity vehicle, there was racial discrimination. Hardy heard it with half an ear.

  Fowler listened to most of it, nodded sympathetically, then touched his gavel to its block. “We’ll set a date now, Mr. Freeman, and before that, if there is good cause for continuance, you can make a motion.” He smiled. That was the end of that story. The trial would begin about when the Municipal Court would have held the preliminary hearing. This was a good sign.

  The judge adjusted his robes and addressed the courtroom. “Mr. Freeman,” he said, “did you have the opportunity to exercise a challenge in Department Twenty-two?” Defense counsel had a one-time right to challenge the judge to whom the trial had been assigned, on no grounds whatever. If Freeman didn’t like Andy Fowler for any reason on earth, he just had to say so and they would go back to Calendar for another department.