The judge pushed. “It’s that one lie, isn’t it, not knowing Nash? I told you about that. I didn’t think you or anyone else needed to know. I didn’t think it would come out.”
“Well, it’s out now, and it’s not need-to-know anymore. I’ve got to know everything, and I’ll decide what to hold back. You want me to defend you—I do that or I do nothing.”
“And you need a polygraph for that?”
“To tear a page from the Pullios notebook, ‘One lie speaks to the defendant’s character, Your Honor.’ ”
“You think I’ll agree to take a polygraph?”
Hardy drummed his fingers a moment, looked around at the walls, the barred window. “You know, Andy, I’m afraid this isn’t a request.”
“Diz, they’re inadmissible!” Fowler repeated. He took a beat, slowing down. “You know why they’re inadmissible? Because they don’t work. They don’t prove a damn thing.”
Hardy nodded. “I know that.” In a courtroom, at least, they were certainly suspect.
Fowler stared at him. “Then why?”
Hardy found himself biting back the words—out loud they would sound priggish, self-righteous. Because the reason was that he wanted something that would let him, for his own conscience’s sake, continue defending Andy, something that, if it didn’t clear him, at least left open the probability that in spite of his untruths and peccadillos, he wasn’t guilty.
For many legal professionals this would be irrelevant. The issue wasn’t the fact, it was whether the fact could be proved. But Hardy used to be a cop, then a prosecutor. His mind-set was getting the bad guy and he wanted no part of defending a guilty man, even an old friend like Andy Fowler.
“I’ve got my reasons,” he said at last, “and you either accept them or get yourself a new lawyer, Andy.”
Fowler’s gaze was firm, composed. “I didn’t kill him, Diz.”
Hardy spread his hands. “Then it ought to be no problem, right?”
Finally the judge nodded. “All right, Dismas. I don’t like it, but all right.”
44
Glitsky was wearing green khakis, hiking boots, a leather flight jacket. He stood about six-foot-two-and-a-half and weighed in at a little over 210 pounds. His black hair was short, almost Marine cut. When he was younger, partially to hide the top of his scar, he sported a Fu Manchu but he’d been clean shaven now for six years.
Elizabeth Pullios had worked with him on at least fourteen cases since she’d become a homicide prosecutor three years earlier. Their relationship had been mostly cordial and open. They were on the same side. It shouldn’t, therefore, have filled her with any foreboding when Abe’s substantial form appeared in her doorway. But it did.
He didn’t say anything. She’d been reviewing testimony for a case she was taking to trial in two months, memorizing as she liked to do. And then he was there. She had no idea for how long.
“Hi, Abe,” she said. She closed the binder and flashed him some teeth. “What’s up?”
Glitsky was leaning against the door, hands in his jacket pocket. As though changing his mind about whatever it was, he shrugged himself off the jamb and stepped inside. Jamie Jackson, her office mate, had gone home an hour ago. Glitsky closed the door behind him. He didn’t sit down, and Pullios pushed her chair back slightly to get a better angle.
“How long you been a D.A.?” Abe asked.
Pullios still tried to smile, the charm that worked so well. “You’re upset with me and I can’t say I blame you.”
Glitsky really wasn’t much of a smiler. He’d seen too many cons and too much phoniness introduced by the glad hand and the ivory grin. Smiling set his teeth on edge. “About, what? Six, seven years?” He was a trained interrogator, and what you did was you zeroed in, you ignored the smoke until you got the answer to your question. “Since you got here?”
Pullios nodded. “About that, Abe. Just over seven.”
“You know how long I been a cop?” It wasn’t a question. “We’ve worked together a long time and I don’t think you know anything about me at all.”
She was still staring up at him. He was wearing the face he used on suspects. It was a look.
“I did four years at San Jose State on a football scholarship. Tight end. Actually, it was before they called it ‘tight end.’ It was just plain old ‘end’ back then. But I wasn’t just a dumb jock, mostly because I was smart enough to realize I was a step too slow for the pros, so I kind of studied and pulled a three-point-four grade-point average. My counselor told me I could get into law school with that.”
Now his mouth stretched, a caricature of a smile that stretched the wide scar that ran through his upper and lower lips. “Imagine that,” he went on, “law school.”
“Abe . . .”
He didn’t acknowledge her. “But I was recruited into the Academy—yeah, they did that then—after I graduated, and I thought it looked like more fun, more action than the law, you know? I was twenty-three then. I’m forty-one now. Eighteen years, and the last seven I’ve been on homicides.”
He stopped. Somewhere in another office a phone was ringing. Outside the window, an orange and pink dusk was settling.
Pullios had to struggle for breath, for control. “There were a lot of reasons, Abe,” she said. He didn’t reply, just loomed there like a malevolent statue, hands in his jacket pockets, feet planted flat. She swirled in her chair to get out from under his gaze. “The way the Shinn matter went down, the false arrest.” She cathedraled her hands in front of her mouth, staring out to the Bay Bridge. “I know Hardy’s your friend. I guess I just thought it wouldn’t have your full attention.”
“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 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. Nearing 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 point
ed 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 concession 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 ensure 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 board 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 on 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 around 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.
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