The Oath

by John Lescroart

  He was still pissed off.

  Hardy's call to Farrell's part-time secretary had luckily caught her at her desk and she'd told him her boss was scheduled to be in court all day. She wasn't sure if it was muni, superior, or federal, but she'd guess muni, which meant the Hall of Justice. So Hardy's hunch was lunch at the Greek's, and it turned out he was right. Wes had scored a back booth, invisible from the front door. He shared it with a large, nearly full pitcher of beer and a couple of guys who, in jeans and work shirts, were not dressed to impress any judge Hardy had ever heard of.

  Sliding in next to Farrell, Hardy asked how he was doing. "So good I ought to be twins." Wes introduced everybody around the table. It turned out that his two companions—Jason and Jake—were father and son, which Hardy had guessed as soon as he'd sat down. The boy, Jake, maybe twenty years old, was Farrell's client. They were celebrating (hence the beer) because Jake's arresting officer hadn't shown up at his preliminary hearing this morning. Since he was the state's chief witness, the prosecution had dismissed all charges. Hardy had better manners than to ask what those had been.

  So, they both insisted, Wes was a hero.

  "He's always been one of mine," Hardy agreed. "In fact, that's why I'm here now." He turned to Wes. "Something important's come up. Can I steal you away for a few minutes? You guys mind?"

  Just so long as he left the beer, everything was cool.

  They worked their way to the side door—less crowd to get through—and out into the alley where now, just past noon, cans of garbage basked, baked, and from the smell, ripened in warm sunshine. Farrell blinked in the brightness, took a deep breath, and frowned. "I think somebody must have died near here. What's up?"

  Hardy was ready, reaching for his inside coat pocket as they walked up toward Bryant and some good air. "I've got a list of names here and I was curious if any of them looked familiar to you."

  Farrell took the piece of paper, glanced down at it. "What's this about?"

  "Your favorite hospital."

  A quick look up, then back at the list. Hardy saw his eyes narrow. He stopped and came up again. "Okay. I give up."

  "Anybody you know?"

  "One of 'em. Marjorie Loring."

  "She's one of your clients with the Parnassus lawsuit you're filing, isn't she?"

  "Not exactly. Her kids are. She's dead herself."

  "I know. So's everybody else on that list. Did they do a postmortem on her?"

  They'd stopped in some shade in front of the bail bondsman's office at the entrance to Lou's. Farrell squinted into some middle distance, trying to remember. Then he shook his head. "They always do. But they probably didn't spend much time on it. They knew what she died of."

  "And what was that?"

  "The big C. She was another one of those 'whoops' cases, as in, 'Whoops, we should have really got around to looking at that a little bit sooner.'"

  "But when she died? Was it before her kids expected her to go?"

  "They didn't know how long it would be exactly." But he pursed his lips, a muscle worked in his jawline. Hardy let him dredge it up. "Although it was, yeah, pretty quick if I recall. One of those, 'You've got maybe three months, unless it turns out to be three days.'"

  "Three days?"

  "No, no, figure of speech, one of my few flaws. I exaggerate. I think it was like a week, two weeks, something like that."

  "And it was supposed to be three months?"

  Farrell shook his head. "But you know how that works, Diz. It was three months outside, maybe as much as six. The reality turned out to be less. It happens all the time. It might even have been a blessing."

  Hardy could accept that on its face. But not if somebody hurried the process along. "Do you think Mrs. Loring's family would agree to ask for an exhumation?"

  Even with the preamble, the question shocked him. "What for?"

  "A full autopsy."

  "Why? You think somebody killed her?"

  "I think it's possible."

  Suddenly Farrell's gaze focused down tightly. A few years older than Hardy, a little softer in the middle, Wes usually affected an air of casual befuddlement. Some might even have read this as incompetence, but Hardy knew he was nobody's fool. A couple of years before, he'd electrified the city's legal community with his defense of another lawyer, a personal friend accused of murdering his wife. The case was considered unwinnable even by such an eminence as David Freeman. But Farrell had gotten his client off with a clean acquittal. Now he was giving Hardy his complete attention. "What about the other ten people on your list? Same thing?"

  Hardy didn't want to exaggerate. "Let's say there are similar questions. I want to talk to my client before we go any further, of course, but after I do ." He let it hang.

  Farrell backed into the last wedge of shade. "Last time we talked you didn't have a client," he said.

  "I've got one now. You know Eric Kensing?"

  "And you want to call him before I talk to the Lorings because ?"

  "Because for some of these names," Hardy indicated the list, "he was on duty in the hospital when they died. Before we exhume Mrs. Loring and find out she didn't die of cancer, I'd be happier knowing Dr. Kensing wasn't on the floor taking her pulse at the time."

  Farrell admitted that that would be bad luck. "So they haven't arrested him yet, I gather?"

  "At least not as of a half hour ago, but things could change even as we speak."

  Farrell narrowed his eyes. "You're talking Abe?"

  Hardy nodded, spoke curtly. "He seems a little fixated."

  "Abe's not dumb."

  "No, he's not, but he took Kensing's statement last night, then left. No arrest. I guess what I'm trying to do is buy my client some time. Abe might get carried away in his enthusiasm. If Kensing gets arrested or indicted, he's never going to work again. And I've got friends who think he's a hero."

  Wes chuckled, jerked a thumb toward Lou's. "Those two yahoos at the booth in there think I'm a hero. That doesn't mean anything." Then, "Did your boy do it?"

  "Early on, he said not." Hardy left it at that.

  Farrell's eyes shifted from side to side. This turn in the conversation—the objective fact of the guilt or innocence of a client—threatened to breach a largely unspoken rule among defense attorneys. But suddenly Hardy knew why Farrell had brought it up. The friend of his, for whom he'd won such a stunning acquittal, in whose innocence Wes had believed with his whole heart, turned out to have been guilty after all. "If you want to be sure," he said, "you'd damn well better find somebody else who did it."

  Hardy cracked a tiny smile. "Okay, then, that's who I'm looking for. But my first line of defense is to find out if these Portola patients who are dying before they should are any part of this Markham thing."

  "How do you propose to do that?" Farrell's expression reflected his deep skepticism. "Certainly Marjorie Loring couldn't " He stopped, softened his look. "Maybe I just don't get it," he offered. "Let's pretend her kids let us dig her up in the first place, which is a wild assumption, by the way. So Strout agrees to do an autopsy, also not a sure thing. So then they find, say, that potassium killed her. How in the world does that help your client?"

  "Well, right off, if he wasn't there "

  Farrell waved that off. "Okay. He wasn't there when Lincoln was shot, either. But it doesn't mean squat about Markham. And then what if it wasn't potassium?"

  Hardy had admitted these problems to himself, and had gotten to a marginally satisfying answer. "If some other patient at Portola, unconnected to Markham, is another murder—especially if Kensing wasn't around when it happened—it might make somebody like Glitsky think he's missing something. He might want to fill in more blanks before they arrest Kensing. At this point, it's mostly delay, frankly, but I'm out of other great ideas."

  "Well, delay's always a fine tactic, if it works." Farrell, clearly, still wasn't convinced. "But if your man thought these were questionable deaths, why didn't he ask for full autopsies originally?"

  "I
asked him the same question."

  "That's 'cause you're a smart fellow. And what'd he say?"

  "Basically, that all the deaths were expected anyway, and from expected reasons. It wasn't like these were people in the prime of health who suddenly died. They were dying people who died. Just a little early. The hospital ran postmortems. Sure enough, they were all dead." Hardy shrugged. "Essentially he put it down to just a general degradation in care at Portola." He moved closer and whispered conspiratorially, "But listen up, Wes. The point is that if anybody at Portola killed Marjorie Loring, you win no matter what."

  "And that's because ?" He stopped because he suddenly understood. He could bring a slam dunk lawsuit on behalf of Marjorie Loring's children. There would be no need to prove general negligence or some other malpractice issue. He could begin billing immediately again. If Marjorie Loring didn't die of natural causes, but was a homicide committed in the hospital, Wes stood to make a pile in a very short time by doing comparatively very little. "I'll talk to her kids," he said. "See what we can do."

  * * *

  Treya looked up from her desk to the wall clock. She broke a genuine smile and rose from the chair. "Dismas Hardy, Esquire, three o'clock, right on the button. Clarence is expecting you, he'll be right with you, but he's got someone in with him for just another minute. Are you coming from upstairs?" she asked. Meaning Glitsky's detail.

  "No."

  "So you haven't talked to Abe?"

  "Not yet. Frannie told me he called last night, but I got home late."

  "He really wants to talk to you."

  "And I him, of course. Maybe you could make us an appointment?"

  "Isn't he coming down for this one? I know Clarence asked him."

  This didn't strike Hardy as good news, but he covered his reaction with a smile. "Good. Maybe we can chat afterwards."

  He sat and waited, aware of his nerves and his still-smoldering anger. He'd spent countless hours here in the DA's office—from back when he'd been a young assistant DA himself through his recent trials as a defense attorney. In well over ninety percent of those hours, there'd been conflict between himself and the person on the other side of that door. Since Jackman's appointment as DA, that had changed. Now in a few minutes, he knew he was about to go back where he belonged, on the defense side. It was perhaps going to be a subtle shift, and hopefully cordial, but a real one nonetheless.

  Jackman's door opened. Marlene Ash was inside. Now that he thought of it, he should have expected that Jackman would have asked her, too. She was, after all, going to prosecute Parnassus and, in all likelihood, his client.

  "Diz, how you doin'?" Jackman boomed. "Come on in, come on in. Sorry we're running a little late."

  He came through the door, smiling and smiling. "If you and Marlene aren't finished," he began, giving them every chance, "I don't mean to rush you. I'm sure Treya and I can find some way to pass a few more pleasant minutes."

  Jackman smiled back at him. Everybody was still friends. "Marlene thought she might want to stay a while, if you don't mind. There were a couple of things she wanted to run by you. Did Treya tell you I've asked Abe to stop by? And here he is."

  Glitsky and Hardy sat on either end of the couch—neither words nor eye contact between them. Marlene still sat in her chair, Jackman pulled another one up. A nice little circle of friends around the coffee table.

  Hardy got right down to it. "I understand that in the wake of Mr. Markham becoming a potential murder victim, you've decided to convene a grand jury. I hear that they are investigating not just Markham's death, but the whole Parnassus business situation. In fact, I think it was even my idea, originally, before anybody died. I just wanted you all to know that I really don't expect any huge public display to recognize my contribution here, although a tasteful bust in the lobby downstairs or a small commemorative plaque in the corner at Lou's might be nice."

  Glitsky's scar was an unbroken line through his lips. "The man could talk the ears off a water jug."

  Sitting back, Hardy extended an arm out along the top of the couch, affecting a relaxed pose that he didn't feel. "As my friend Abe points out, I'm a believer in communicating." He directed a pointed glance at Glitsky, then came forward on the couch. "I understand what some of you would like to happen next. I talked to Dr. Kensing about an hour ago. He told me that his wife now claims he admitted killing Markham." Hardy finally faced Abe. "I figure that's what you must have called me about, to give me a heads-up that you were bringing him in."

  Glitsky said nothing.

  Hardy continued. "But of course, since you interviewed my client despite my explicit request that you not do so, perhaps you were prepared to dispense with a courtesy call, too."

  A muscle worked in Glitsky's jaw. The scar stood out in clear relief.

  He went on. "I think the only reason he's not already in jail is because you decided to wait until Clarence was ready to sign the warrant." The expressions around the room told Hardy that he'd pegged it exactly. "But that's not why I'm here," he said. "I'm here to keep my client out of jail."

  Glitsky snorted. "Good luck."

  "I'm not going to need luck. If all you've got is the wife's story, you don't have any case that'll fly in front of a jury. You must know that."

  Marlene took this moment to get on the boards. "According to Abe, we've got plenty to go with, Dismas. If the man's killed five people, he shouldn't be on the streets."

  "Marlene, please. Let's not insult each other's intelligence. Dr. Kensing had no motive in the world to harm the family."

  "That you know," Glitsky said.

  Again, Hardy turned directly to face him. "Am I to assume that means that you have discovered one?"

  Jackman cleared his throat and answered for Glitsky. "We assume, Diz, that the murders of Markham and his family are related. I think you would agree with that as a working hypothesis, wouldn't you? But that's really not germane. Dr. Kensing has plenty of motive for Markham. Plus means and opportunity."

  "But no evidence, Clarence. No real evidence. It's mostly some motive."

  "Don't shit a shitter, Diz," Marlene said. "First, we don't have some motive, we've got a ton of motive and nobody else has any. Second, we know when Markham was killed and Dr. Kensing was right there. Moreover," she went on calmly, "Markham got killed by drugs administered through an IV, and your client is not exactly a janitor. He's got access. So we've got motive, means, and opportunity and not the slightest doubt about these facts."

  Hardy repeated his mantra. "But no physical evidence. No direct evidence. Nobody saw him do it and no physical evidence shows he did it. You can prove that maybe he did it, but maybe he didn't, and that, I need hardly remind you, is reasonable doubt."

  "His wife says he admitted it," Glitsky growled. "That's evidence. Kensing told her he pumped him full of shit a day before the autopsy, before anybody knew he was murdered. Oh, you didn't catch that detail yet?" Glitsky cleared his throat. "I called you last night. I thought maybe we could talk about that. Maybe you didn't get the message."

  "I told you not to interview my client," Hardy shot back. "Maybe you didn't get my message." Hardy fought to control his temper. This wasn't the way to get what he wanted. He turned to Ash. "So his wife, who hates him, says he killed her lover. That's it? You'll never convict on that."

  But Ash remained calm. "I believe, with the rest of the evidence, that in fact I might, Dismas."

  "'Might' is not particularly strong, Marlene."

  "You want to help us do better, is that it?" Glitsky's tone was glacial.

  "As a matter of fact, I have a suggestion that might have that effect," Hardy said. "I won't pretend that Dr. Kensing isn't my main concern. I know you're about to arrest him. Hell, maybe you've already got your warrant." Hardy waited, but no one admitted that. Which meant maybe it wasn't too late. He sucked in a breath. It was party time. "I'm going to do a little preamble," he began.

  "Surprise!"

  Hardy ignored Glitsky, made his pitch
directly to Jackman. "Look. Let's say you bring in Kensing and charge him with murder. Abe could arrest him today. I'll even grant you that the wife's statement would almost certainly get you an indictment if you put her before the grand jury. In either case, you'd have to give me discovery, of course."

  Discovery included everything about the prosecution—physical evidence, exhibits, testimony, police reports, and so on. The defense had the absolute right to the prosecution's case. This was Law 1A, but Hardy didn't think it was a bad idea to remind everybody that one way or the other he was going to see all the evidence they had anyway. It was automatic.