Hard Evidence

by John Lescroart

  In this case, though, there would have been little fear that Andy Fowler would not show up—the withholding of bail was a clear signal that there would be no professional courtesies. Andy Fowler was out of the club.

  At least they weren’t making him wait all morning— he was the first line called after the judge sat down. The bailiff escorted him in wearing the yellow jumpsuit.

  His protestations that jail wouldn’t kill him might have been valid, but the stay overnight hadn’t done him any visible good. His skin looked gray, his lion’s mane of hair hung heavy and wet-looking. He stood at attention, alone at the podium in front of the bench.

  Hardy glanced at the jury box. None of the men were rising to stand by their client as, once again, the formula was carried out, the indictment for murder read out in full.

  “I presume, Mr. Fowler . . .” So the honorific wouldn’t be used, either. Andy wasn’t going to be called “judge.” If Marian Braun was any barometer, Hardy decided, Andy was in for some very rough weather. Braun asked if he had an attorney present.

  “I do, Your Honor.” He half turned. “Dismas Hardy.”

  A murmur ran through the courtroom. Hardy barely heard it, standing and moving by Jane. But he hadn’t reached the aisle before Elizabeth Pullios was on her feet. “Your Honor, I object. Mr. Hardy was a member of the prosecution on this case. Aside from that obvious conflict, he has had access to material that falls under the attorney-client privilege. He cannot represent the defendant here.”

  Hardy found himself talking. “If the court pleases . . .” He got ignored.

  Braun pulled her glasses down to the end of her nose, then took them off completely. “Write me a motion on that, Counselor, and have it on my desk by tomorrow morning.” She scribbled something in front of her and raised her eyes. “Mr. Hardy, would you care to join us on this side of the bar?”

  Hardy came up the aisle and through the gate. “Your Honor, I’d like to request a short recess. I’d like a few words with the judge here.”

  “I am the only judge in this courtroom, Mr. Hardy. Clear?”

  “Yes, Your Honor.”

  “We’ve barely begun and I’ve got an exceptionally full docket today, so let’s forgo the recesses and try to keep things moving. Is that all right with everybody?” Clearly it was going to have to be all right. “Mr. Hardy,” Braun was saying, “you might save Ms. Pullios a long night if you feel there’s a conflict with you representing the defendant.”

  Hardy wasn’t inclined to save Pullios a long night— it was a small bonus. “No, Your Honor, I don’t have a conflict.”

  Pullios got up again. “Mr. Hardy assembled the files on this case.”

  “That wasn’t this case, Your Honor. Ms. Pullios perhaps has them confused because it’s the same victim. Mr. Fowler wasn’t the defendant.”

  “I don’t have anything confused, Your Honor. Mr. Hardy was all over that file.”

  “If it please the court,” Hardy said, enjoying this, “as Ms. Pullios knows full well, she was the People’s attorney of record the last time a defendant was before the court for killing Owen Nash. I was specifically denied an official role.”

  Braun’s gavel came down. “All right, all right. I’ll read your motion, Ms. Pullios. Tomorrow morning.” She put her glasses back on, seemed to be deciding something.

  “Good work,” Fowler whispered. “What happened to your head?”

  Braun continued. “Meanwhile, let’s keep to the business at hand, shall we? You’ve got a plea, Mr. Fowler?”

  Hardy would have preferred to leave Andy to his permanent representation at this time—one of the suits in the jury box—but after the run-in with Pullios, thought it would be better to go ahead.

  “Your Honor, before entering a plea, the defense would like some time, say two weeks, to review the file in this case.”

  Pullios started to object again, but Braun tapped her gavel, shaking her head. “I don’t think you’ll need two weeks to decide what to plead. We’ll continue this arraignment and take defendant’s plea next week.”

  “Thank you, Your Honor. Now on the matter of bail . . .”

  “Yes, bail. The state has requested no bail in this case.”

  Hardy asked permission to approach the bench. Braun waved both counsel forward.

  “Your Honor,” Hardy said, “isn’t no bail a little unusual?”

  “This is an unusual case, Mr. Hardy.”

  “Granted, Judge, but the last time the state brought a person to trial here for killing Owen Nash, we had a risk-of-flight defendant and even she was given bail. There’s no risk of flight here. The judge isn’t going anywhere.”

  Pullios started to argue, but Braun responded quietly. “Mr. Fowler has given us an ample indication of the contempt in which he holds the judicial process. I have no faith that he will appear once, or if, he is released.”

  “Judge, please, you know that’s ridiculous—”

  Braun sucked in a breath. “You’d better brush up on your etiquette, Mr. Hardy. If I hear again that my judgments are ridiculous you’ll spend some ridiculous nights in jail for contempt.”

  Hardy studied the floor a moment. “I apologize, Your Honor. But I would respectfully ask you to reconsider.”

  Walking back to where Fowler stood, Hardy shook his head. “Then plead now,” Fowler whispered. “Not guilty.”

  Hardy met Fowler’s eyes, feeling embarrassed but having to say it. “I don’t know you’re not guilty, Andy—”

  “Enter the plea,” Fowler snapped. “Does your conscience also require you waste the week?”

  It was a good point, and Hardy made the plea. The judge canceled the continuance and took Hardy’s plea of not guilty. The case was set for Calendar the next Monday, October 18, at 9:30 a.m., in the same department.

  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 the 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. who 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 unlawerlike, 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 Jeff’s 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.”