“That’s true, Mr. Hardy. We’re talking about Mr. Fowler’s fingerprints, not May Shinn’s. You are arguing evidence that hasn’t been presented in this case. Try not to confuse the jury by referring to what is not properly before it.”
Hardy felt this was a big loss. He stood a moment, gathering his forces.
“You still with us, Mr. Hardy?” Chomorro asked.
Hardy had anticipated Chomorro’s antagonism from the bench, but now, at its first appearance, he realized how powerful its influence could be. If Chomorro was allowed to patronize him, the jury would pick up on it and his credibility would suffer. Andy Fowler had been right—this wasn’t an appealable issue. It had been bad strategy.
“Of course, Your Honor,” Hardy said mildly. “I was waiting for your ruling.”
Chomorro’s face tightened slightly. “I thought I’d made that clear. The objection is sustained.”
This time Hardy simply nodded. He spread his hands to the jury and smiled at them. “Sorry, my mistake.” But the message was clear—he was a reasonable man, waiting to make sure he understood the judge’s ruling. There was no antagonism between himself and Chomorro. He went back to Anita Wells. “Can you tell us how long a fingerprint can last?”
“I don’t understand.”
“I mean does it go away after a while by itself? Does it evaporate?”
“No, fingerprints are oil-based. They last until they’re wiped away.”
“So Mr. Fowler’s fingerprints on the clip inside the gun might not have been placed there at any time near to when the gun was found or fired?”
“That’s true.”
“Did you find anything indicating it might not be true?”
“No.”
“So Mr. Fowler’s fingerprints might have been on the gun for as long as a year?”
Pullios stood up. “Asked and answered, Your Honor.”
“I’ll withdraw it,” Hardy said. “No further questions.”
“It’s early, but I’d put us ahead on points.” They had their coats off, their ties loosened. From Fowler’s law office high up in Embarcadero One, the city glittered out the window. Christmas lights starting to appear below.
Hardy was not so sure. “I wanted to get Shinn in.” He had wanted to call May as a defense witness from the beginning, but Fowler wouldn’t hear of it. What could she possibly say that could make a difference, he had argued. Fowler hadn’t seen her, after all, in the four months before the murder. To say nothing of the fact that she had turned down Hardy’s several requests for interviews. She remembered him from Visitor’s Room A, thank you.
The prosecution, they both figured, wouldn’t go near her. She would be understandably hostile to the San Francisco district attorney’s office. So, strangely enough, the other central figure in this case would apparently play no active role in it. Hardy did not like that at all.
Andy had poured himself a neat Scotch from a tumbler on the sideboard and now took a drink of it. He stood and carried the glass over to the window.
Hardy watched his back a minute. “You haven’t seen her, Andy?”
May Shinn was still the issue, the looming specter, an unmentionable apparition. The chronology could not have been simpler: a year ago Andy Fowler had been in love with May Shinn; in mid-February she had dumped him for Owen Nash; in July he had sacrificed his career for her; in October he had been arrested for murdering her lover; and in the two months that Hardy had been seeing Fowler every day, he had never, to Hardy’s knowledge, made any effort to contact her.
Fowler’s shoulders sagged. “No. What would be the point?”
“It just seems you might have.”
Fowler gave it a moment, then nodded. “I suppose it does.” He returned to the chair behind his desk and sat heavily into it. “What do you want me to say?”
“I don’t know. Maybe she could help us. There’s no doubt she can hurt us.”
“How?”
Hardy shrugged. “Maybe she knows something. God knows we’ve tried everybody else, and we’ve got nothing resembling a lead for ‘X.’ ”
Fowler sipped and stared. “No, Diz, I don’t think so.”
Suddenly a frightening thought occurred—Andy was still carrying a torch. Hardy had kept the secret of Shinn’s other clients to himself (excluding Glitsky), but he was coming around to thinking it might do Andy some good to know the truth, to face the truth. If nothing else, it might break him out of his reluctance to use what May might have.
“You know,” he said, “there were other men . . .”
Fowler pushed his glass, a quarter turn at a time, in a circle on his desk. “What?”
Hardy spent five minutes explaining to Andy— checking the phone records, proving that May had lied to him. Fowler stared into space behind Hardy’s head. “Why are you telling me all this now?”
“Because your life is at stake here, Andy, and I think maybe you’re somehow planning on getting found not guilty, putting this trial behind you and doing nothing to jeopardize what you still think is your relationship with this woman. And if that’s the case, you ought to know what that relationship really was.”
He took a moment. “I know what it was. That’s become clear to me. Before you told me this.”
“Well?” Hardy asked.
“Well what?”
“Maybe you could talk to her, maybe she knows something.” He paused, waiting for Andy. “About ‘X,’ if nothing else.”
The ex-judge, suddenly looking old and tired, leaned his head back against the chair and blew at the ceiling. “Don’t you think she would have mentioned that in her own defense last summer?”
“She never got the chance.”
“She got plenty of chance. She doesn’t know.”
“You think.” He had to drive it home. “But you thought she had cut off her other clients for you, remember? She wasn’t supposed to be sleeping with anyone else.”
Fowler pushed his fingers into his eyes. “There must be some aphorism here about old fools and young women.” He pulled his hands away from his face. “Okay, okay, do what you’ve got to do.”
When Hardy got home at eleven the house was asleep. There was a Redi Delivery Service box on his front porch when he walked up and he opened it in his office—the dailies. Only death-penalty defendants, who got them free, and people as rich as Andy Fowler, who could afford them, got daily transcripts. One hundred eighty-eight typed pages of today’s transcripts that he ought to review before tomorrow. Maybe someone had said something at the trial today he hadn’t heard, or listened to carefully enough.
He saw Frannie’s note by the telephone. Elizabeth Pullios had called with the message that the prosecution was adding May Shinn to their witness list “re Fowler knowledge gun on boat.”
Shinn again. What did that woman really know?
Was this only the second day? He couldn’t imagine ever getting to sleep. He’d already tried twice, once a little after midnight, then again around two. Now the clock by his bed read 3:15 and he’d just had a rush of adrenaline, remembering how he’d been so unsuspecting of Strout’s testimony and then there had been a snake in it.
He recognized in a flash what had awakened him— Tom and José. He’d noted their presence both in the courtroom and on the witness list and, as he’d done with Strout, had reviewed and reviewed and finally reached the conclusion that neither of the Marina guards had anything damaging to say about Andy Fowler.
What had jolted him awake was the realization that he was wrong again—he had to be wrong. Pullios wouldn’t call them to pass the time of day. There must be something there and he hadn’t seen it.
Wearily, he threw back the covers and padded barefoot to his office.
52
“We talked to her last night,” Pullios said. “I think she’s tired of all this.”
“It does get that way.”
It was nine o’clock, and Hardy was leaning over the prosecution table, talking with his opposing counsel about May
Shinn. “You want to tell me about her testimony?”
There had been an element of courtesy in Pullios’s phoning him to let him know they were calling Shinn as a witness. It made him nervous.
“You know Peter Struler? He’s been handling this. He’s interviewing her today. Of course, you can review the transcript.”
Hardy said he planned to. “But you saw May last night? How’d you get her to agree to talk to you?”
“You know, she’s very bitter about all this—all the litigation, the way she’s been treated. I thought we might make some gesture. Well, Sergeant Struler did.”
Hardy waited.
“You know we’ve been holding all of her clothes, personal items, knickknacks, things like that, from the Eloise. The sergeant thought we could cut through the red tape and at least get that stuff back to her. None of it is evidence here, strictly speaking.”
“What is evidence here?” Hardy said.
“Well, her testimony will be.” Pullios smiled sweetly. “Did your client tell you how he found out that the gun was on board, exactly where she kept it?”
Andy Fowler still appeared as exhausted as he had in the office the previous night. “Well, there’s the missing link if she does it,” he said.
Hardy kicked the wastebasket; it crashed against the wall, then fell on its side. “You knew she knew this! All along you knew it!”
Jane had come to the courthouse with her father and had accompanied them into their conference room. “Dismas, for God’s sake . . .”
A guard opened the door and asked if everything was all right in there. Hardy told him it was and goodbye.
Fowler, seemingly unmoved, shook his head. “She wasn’t testifying, remember? Why do you think I didn’t want to call her ourselves?”
“Well, now she is. How could you not tell me this?”
Fowler said nothing, then, “Maybe I can talk to her now.”
“Last night you couldn’t, though, right? Nice timing on the change of heart. She’s talking today.” Hardy looked around for something else to kick. “Goddamn it, I’ve at least got to have the facts, Andy. I can’t defend you without them. Jesus, you know that.”
“I honestly didn’t think it would come up, Diz.”
Hardy put both hands on the table and leaned over. “Well, it’s come up. How about that? Is there anything else you want to tell me that you don’t think is going to come up?”
Jane cut in, “Dismas, come on.”
He turned on her, trying to keep his voice under control. “You know what this is, Jane? Your dad’s right—it’s the missing link. There was no way they had first-degree murder unless he knew the gun was on board. Without that there’s no way they could prove he’d premeditated it.”
He’d only had two hours of sleep. His stomach was churning and his head buzzing with four cups of espresso. He had planned this argument as his ace in the hole, ready to unleash it during his closing argument. It was, in fact, a crucial point in his finally coming around to a belief in Andy’s innocence.
He had even asked Andy directly, early on, “Did you know the gun was on the boat?” Just like that. Couldn’t have been clearer. And he had looked right at him, figuring it wouldn’t come out, and lied just like he had lied about not “knowing” Owen Nash. No wonder he hadn’t wanted May on the stand.
“I’ll tell you something, Andy,” he said, “I’m tempted to withdraw.”
“Dismas, you can’t!”
“Yes, I can, Jane. You’d be surprised.”
Fowler wagged his head back and forth. “Nothing’s changed, Diz. I still didn’t do it, if it helps you to hear it again. I never claimed my behavior with or about May was entirely rational, let alone sensible. But—”
“Jane,” Hardy said, “could you leave us alone a minute?”
“It’s okay, honey, go ahead,” Fowler told her.
The door slammed after her but it barely registered.
“Listen up, here, Andy,” Hardy said. “I’m not stupid. Yes, May has had you off-center and that may explain a lot. But you’re also acting like nothing’s changed, above it all, still the judge, even though you happen to be on trial for your life. You’re still trying to save face, as though nothing you did or didn’t do could matter because you’re the Judge and a fine fellow and you want people to still see you that way. Forget it, Andy. That’s all over. You’re on trial for murder here. Trying to save some image so you won’t look foolish or bad or whatever to me or anyone else is a total waste and dangerous. If there’s anything else you want to tell me, tell me now. It doesn’t matter a damn what I think of you, what anybody thinks of you. I know that goes cross-grain to the way you’ve lived your life, but it’s true. The only thing that matters about you now is that you didn’t kill Owen Nash.”
Fowler’s eyes were bloodshot. “I didn’t,” he whispered.
“I don’t think you did,” Hardy said. “That’s the only reason I’m still here.”
Hardy had been ready to stipulate that Owen Nash had been shot on the Eloise sometime during the afternoon of Saturday, June 20, as well as to several other timing and forensic issues. Pullios wanted to talk to everybody on the witness stand and would stipulate to nothing. Fowler thought it was because she had few enough facts to work with, and without a parade of prosecution witnesses her case would appear to have less factual support.
So they had to sit and listen to José relate how the Eloise had already been out when he’d come on around seven o’clock or so on Saturday morning, and had been back in at its slip the following morning. Hardy had a point or two on cross. He wanted to make sure that when José and Tom had boarded the boat on Wednesday, neither of them had tampered with it. José told him he hadn’t boarded the Eloise or seen anyone else near it. Tom then testified that the Marina had been nearly empty all that day—the weather had been terrible, and he hadn’t seen anything of Nash’s boat. It hadn’t yet gotten back in by the time he got off for the night.
When Pullios had finished with Tom, Hardy stood up. He didn’t want the jury to become somehow lulled by unquestioned testimony, to his disadvantage, even if it appeared unimportant.
“Mr. Waddell,” he said. “Did you check the Eloise on Sunday when it was at its slip?”
“What do you mean, check it?”
“Go aboard, see if it was secured, anything like that.”
“No, I didn’t.”
“When was the first time you went aboard the Eloise?”
“That was with you on the following Wednesday night.”
“I remember. And was the cabin to the boat locked when you went aboard?”
“No, sir.”
“In other words, anyone could have gone aboard the Eloise between Sunday and Wednesday night—”
“Objection. Calls for a conclusion from the witness.”
“Sustained.”
Hardy took a beat. He didn’t really need it. He thought he’d made his point and excused the witness.
He half-expected Pullios to do something on redirect, but she let Tom go. Hardy would take it—he had read over everything both Tom and José had told either him or Glitsky and had found nothing that looked like it could bite him. And there hadn’t been. It gave him some hope.
Emmet Turkel combed back his forelock of sandy hair and smiled at Pullios. A character with a gap-toothed grin, the private investigator from New York had an old-fashioned Brooklyn accent. He had obviously spent many hours on the witness stand. Just as obviously, he admired the looks of the prosecuting attorney. The jury noticed and seemed to be enjoying it.
It was early afternoon, and Turkel and Pullios had chatted about the former’s professional relationship with the defendant, covering the same ground as his tape.
Andy Fowler had hired him by telephone on February 20. Turkel had some other business to clear up, but he made it out to San Francisco by the next Wednesday, February 26, met with the judge at “some fancy pizzeria—hey, what you folks out here put on a pizza!”
/> It had taken him, Turkel said, only a few days to find out why May Shinn had ended her professional relationship with Andy Fowler. When Pullios asked him why that had been, he answered it was because she had gotten herself a new sugar daddy.
Hardy had objected and been sustained but damage was done. None of Turkel’s testimony, covering Fowler’s relationship with May, his efforts to hide his activities, and his character in general, put the defendant in anything like a positive light.
Still, Hardy had at least known what was going to be coming. Turkel didn’t present anything in the first two hours that he hadn’t prefigured in his taped interview with Peter Struler months earlier. No surprise, but definitely no help.
Pullios had introduced the March 2 page from Fowler’s desk calendar showing Owen Nash’s name and had it marked as Exhibit 7. Turkel said that had been the day he had informed Fowler of the results of his investigation. Pullios asked him if Mr. Fowler had given Mr. Turkel any indication of what he was going to do with the information.
“No, not then,” Turkel said.
“Did he at any time?”
“Nah, not really, he was just kidding like, you know?”
“I don’t know, Mr. Turkel. I’ll repeat my question— did Mr. Fowler say anything about Mr. Nash at any time to you after you’d told him he was Ms. Shinn’s current . . . paramour?”
“Yeah, well, we talked again sometime around April, May—I called him, just keeping up contact, you know, and I ask him does he still have his problem with this guy Nash, and he want I come out and clear it up for him?”
“Clear it up?”
“Yeah, you know.”
“You asked Mr. Fowler if he wanted you to kill Mr. Nash?”
“Well, you might take it that way, but—”
“Can you tell us Mr. Fowler’s exact words, please?”
“But I’m telling you, we was kidding. You know, people kid all the time.”
“Nevertheless, Mr. Turkel, if you could tell the jury what was said.”
Hard Evidence Page 42
