by The Hearing
Okay, now he had himself back under control. He was in his TV room. It wasn’t some loaded mnemonic weapon. It was four walls, a window, door and closet, some inexpensive, durable new furniture. In three steps, he was back at the VCR, where he inserted the tape and turned on the television.
Frannie reached Hardy before he’d left the office. She’d heard of a great new restaurant that they needed to try and she’d been able to get last-minute reservations. So instead of the Shamrock, for their date could he meet her at the Redwood Room in the Clift Hotel?
Since this was less than a dozen blocks from where he worked, he told her he thought it might be possible. “No promises, but a pretty good chance.”
“Well, I shall arrive in ribbons and curls at seven sharp,” she said in her most cultured high-British tones. “If you’re not there to meet me, someone else will ask for my company and I expect I’ll have to go off with another escort.”
“I expect you would,” he replied drily.
“It’s the great curse of a certain superficial charm, the swarms of men.”
“I can only imagine.”
“Though one’s heart is set on one’s husband.”
“Of course. He shall then redouble his efforts to be prompt.”
“In that event, sir, I shall reward those efforts.”
“One’s heart soars at the possibilities. Until then, then?”
“Until then. Ciao.”
Smiling, he put the receiver in its cradle.
He hadn’t moved a muscle when the phone rang again. He snatched it back up—“Dismas Hardy”—and Glitsky was on the line, speaking without preamble. “What are you doing?”
“Just a moment, let me check. I seem to be talking on the telephone.”
“Are you going to be there for a while?”
“I’m meeting Frannie in an hour and a half.”
“That’s enough time.”
“For what?”
“To see the Burgess tape.”
Hardy sat forward, his hands suddenly tight around the receiver. “What about it?”
“I brought it home. Just watched it through for the first time. Compared it to the initial incident reports. I thought you’d like to take a look at what I’ve got.”
This was highly unusual. Hardy and Glitsky might be friends, but the police did not make evidence available to defense attorneys. That role—called discovery—was the exclusive providence of the District Attorney. But Hardy wasn’t about to look a gift horse in the mouth. “The video of the confession?” he said. “You could probably talk me into it.”
There was an emptiness in the line, then Glitsky cleared his throat. “I also wanted to apologize.”
“All right. If that was it, it’s accepted. You should know that I’ve got a few questions of my own.”
Glitsky responded with a long silence. Then: “I can be there in a half hour.”
The confession was near the end of the sixth hour of tape. Cole was speaking in a voice thick with fatigue. The camera was on him the whole time—one continuous shot of an exhausted man sitting at a table in a small room, patiently reciting his part without any animation.
It took seven minutes to watch it once. They immediately rewound and were midway through the second viewing when Hardy stopped the picture. “Here,” he said, “right here.” He pressed play again.
On the screen, Cole was answering an interrogator’s question about the actual moment of the shooting. “I don’t know, I’m maybe ten feet behind her. She’s just turned into the alley.”
The interrogator asked what he did next.
“She just got in the shadow, so it was real dark.”
“Go on.”
“What do you want me to say?”
“Just what happened. Tell us in your own words what happened.”
“Okay.” A long hesitation. “I shot her?”
“Is that a question? I don’t know if you shot her. You tell me. Did you shoot her?”
Cole’s confused eyes flicked somewhere out of the camera’s line of vision, then came back. “Yeah, I did. I shot her then. When she got in the shadow.”
“And what did you do then?”
“Well . . . she fell and I, I remember I walked over to her. She was this shape on the pavement, so I crossed over to her. And then the purse and the necklace and so on.”
“What about the gun?”
“The gun? Oh yeah. I put it down on the street for a minute. The necklace . . . I needed two hands. Then the cop car hit me with the light and I remembered I had to get the gun.”
“And then?”
“Then I started running.”
The two men were watching, maintaining an uneasy silence on either end of the couch. Hardy hit the remote and the screen went black. He spoke into the air in front of them. “Close contact wound. The gun was right up against her head, right. And she didn’t fall hard. She was wearing hosiery that would have ripped or run or something. Somebody did her right next to her, then caught her and laid her down.”
“Not somebody,” Glitsky answered. “Burgess.”
Hardy threw him a skeptical look. “Maybe. Maybe not. But Cole was ten feet behind her, and as drunk as we know he was, how did he put one shot perfectly into the exact base of her skull in the dark with a gun just three inches long?” Hardy thought he’d serve his client better by being straight with Glitsky than by keeping the letter of the attorney-client privilege. “He told me he didn’t remember shooting the gun, but thought he must have.”
“Thought he must have.” Glitsky dipped into his own well of skepticism. “There’s a phrase. Did he mention why?”
“They ran GSR”—gunshot residue analysis—“and he had it on his hands.”
“I’m not surprised,” Glitsky said drily. “He fired the gun, that’s why.” A pause. “Probably twice, in fact.”
“Probably twice. Talk about a phrase.” Hardy looked him a question.
Abe gave it up. “You’ll find out anyway. One of the arresting officers, Medrano, says in his report that the gun went off when they were chasing him.”
“Went off?”
“Yeah.”
“Well, Abe, while we’re talking fascinating turns of phrase. The gun ‘went off’? That’s a funny way to put it, don’t you think?”
No response.
Hardy continued. “You’re a street cop in a dark alley with one body already down. You’re on foot after a fleeing suspect, the adrenaline’s off the charts and you’re on full alert, right? You’re telling me you hear a gunshot but you’re sure the gun just went off ? It wasn’t a shot at your own self. But you’re positive? Enough that you don’t shoot back. I don’t think so.”
“It’s a stretch,” Glitsky said.
“It’s more than that, Abe.” Hardy was fiddling with the remote again. “Now on top of that, we’ve got this—this is the part I really don’t like.”
Cole was back up on the screen: “I, I remember I walked over to her. She was this shape on the pavement, so I crossed over to her.”
Hardy stopped the tape, gave Glitsky his full face. “Notice he says ‘I remember.’ What I think is that right here suddenly Cole came back to what he really remembered. Not what Ridley Banks wanted him to say. Did you hear? He says he crossed over to her. Does that sound like something you’d say if you’d just shot somebody point-blank from behind? And while we’re on that, how does a drunk junkie get close enough to Elaine Wager in a dark alley to press a gun to the back of her head? If it was a street mugging, he grabs her purse and runs.”
The lieutenant nodded ambiguously. Hardy could hear Glitsky’s heavy, nearly labored breathing and suddenly he needed to stand up. Walking over to his dartboard, he pulled the three customs from it, walked to the tape line on the floor and threw them back where they’d been. Sliding a haunch back onto his desk, he looked across at his friend. “Somebody hit her.”
Abe’s eyes met Hardy’s. “Cole Burgess.”
“Really?”
<
br /> Glitsky raised his eyes, let out a long breath. “The confession’s bad, that’s all. Ridley got a little too enthusiastic sweating him. It was my fault. I gave him the message.”
Hardy’s mind raced over the variables in the situation. It was ugly from any angle. If Pratt hadn’t already formally charged Cole with special circumstances murder—and it wouldn’t surprise him to learn that she’d rushed the paperwork through—she’d at least gone public with her position. More, she’d made it the centerpiece of her new campaign. In the city’s reality, there was no chance that she would be flexible.
This meant that the progress of Cole’s prosecution was no longer in Abe’s jurisdiction. The police had done their job, arresting a guilty suspect. If now the department hesitated even slightly after Cole had already confessed, there would be no end to the political ramifications.
Hardy wanted to offer some solace, but the pickings were slim. As the head of homicide, Glitsky had overreacted, leading his troops into unsafe and even forbidden territory. As a result, a man was looking at the death penalty and some of the evidence might be tainted. And nobody could afford to question it in public.
Glitsky got up. He walked over to the window and stood looking down into the darkened street.
“You all right, Abe?”
“The confession can’t be part of it.”
“It might be more than that.”
Glitsky knew what Hardy was implying, but he shook his head no. “Don’t kid yourself, Diz. It’s Burgess all right. And now I’ve jeopardized taking him down.” When he spoke again, it was all but to himself. “I’m too close. I can’t be in this.”
“What do you mean?” Hardy asked.
Glitsky turned to him. “I mean why Elaine? That’s what I keep thinking about? Why Elaine?” Hardy couldn’t remember ever seeing Abe so distraught, so downright human. Even while his wife was dying, he had kept his public facade in place. And now he was in visible pain.
His wife’s theory on the nature of Glitsky’s true involvement with Elaine Wager teased at Hardy. “I didn’t realize you two were that close.”
Glitsky’s head went down. He parted the blinds with his fingers, let them go. When he raised his head again, he was biting at his lip. He stared ahead into nothing. “All right,” he said at last.
And told him.
Frannie wore a basic black cocktail dress. Pearls. Spaghetti straps over her lovely shoulders, which were often lightly freckled during the summer, but now—midwinter—the color of cream. Her bright red hair was severely pulled back, held with a thick gold ribbon. She was waiting at the bar, one knee crossed over the other, a lot of fine leg showing.
The enormous, high-ceilinged Redwood Room, paneled with an entire tree’s worth of wood—hence its name—is one of the more elegant and festive locations in a city that is packed with them. Standing in the room’s doorway, catching sight of his beautiful wife, listening to the first-rate piano music, Hardy could almost for a moment forget the case that, now that he’d seen the “confession,” promised to dominate his life for at least the near future.
He fancied that this was the way San Francisco used to be. Or, if not that, surely how it liked to remember itself. Hardy wore jeans and corduroys with his sweatshirts around the house, but he gloried in the fact that he lived among people who sometimes dressed for dinner, who lived a bit on the large side of life, celebrating the good things in it. Thank God.
But it wasn’t just the physical confidence on display wherever he looked. This room was an oasis in the vast desert of cultural vulgarity. It fairly buzzed with energy and optimism, sure, but that was because there wasn’t one television set to assault your peace and insult your intelligence. No advertising posters desecrated the walls. He loved the place. He loved his wife for thinking to meet here, for the reservations she’d made to wherever the great new place might turn out to be.
Unconsciously, he straightened his tie, checked himself in the mirror, thinking that it was just plain neat to be a part of this, San Francisco at the turn of the new millennium. He crossed to his wife, kissed her and got kissed back, pulled a seat at the bar, gave a last expansive glance around at the glorious room. “This is the way the world should be, you know that?”
The new place was called Charles Nob Hill.
Hardy gave it a ten.
They sat at a table for two in an alcove of their own. The waiter won their hearts by having the same name, Vincent, as their son. Young, knowledgeable, not too funny, he had mastered the art of appearing when needed, and otherwise being invisible. The restaurant’s walls were soft to the touch, upholstered. With the candlelight and muted golden color scheme, a burnished glow filled the room. Hardy had eaten foie gras on port-poached figs, then slices of rare duck breast over some ambrosial vegetables, Frannie her raw oysters and salmon. Now they were holding hands over the table, splitting a decadent chocolate torte while they savored the last sips of their excellent Pinot Noir.
“I still can’t get over it,” Frannie said. “Or why he didn’t tell us.”
“He never even told her, Frannie.”
She was shaking her head. “But I really don’t understand that. How could he not tell his own daughter?”
“Maybe he thought it wouldn’t help her to know.” Hardy sipped his wine. “He didn’t know himself until a few years ago. He didn’t want to intrude.”
But his wife had no doubt. “She would have wanted to know. She would have dealt with it somehow. And Abe and Loretta Wager? The senator?”
“There’s that, too. The political side. Not exactly Abe’s long suit, I think you’d agree.”
“Although he now seems to be in it up to his neck.”
Hardy nodded. “At least that far. Maybe even over his head.”
“Where he can’t breathe.”
“I hope not.”
They fiddled with the dessert crumbs. Frannie sighed. “So what is he going to do now?”
“Follow up. Try to get Pratt not to use the confession. And that isn’t going to happen.”
“Then what?”
“I don’t know. Resign, maybe.”
“Abe won’t resign. The job’s his life.”
“He talked about it. It would be a stand against Pratt.”
“I don’t see that. What I see is that she’d love the brutal cops manhandling the poor but guilty suspect. She’d play it both ways.” Suddenly, she put down her fork and stared across the table at her husband. “Dismas, she might even prosecute him.”
“He’ll be okay, Fran. He’s a survivor.”
But she was shaking her head again. “I’m not worried about him surviving. It’s how he’s going to live. He’s not exactly Mr. Cheerful on his best day. Now, without a job, without something to do . . .” Her voice faded away. “And I suppose if Pratt goes ahead, you will too.”
He nodded. “I already called Dorothy and Jeff. At least I’ve got to do the arraignment.”
“And when is that?”
“That would be tomorrow morning.” He made a face. “I can’t let Pratt hang this kid on bad evidence.”
“And of course that means your claim will have to be that somebody else killed Elaine?”
“Looks like.”
“So you and Abe . . .” She gathered herself, drank off the last drops in her wineglass. “Well, maybe you both can try taking care of each other.”
But he shook his head, making light of her worries. “It won’t come to that. Abe and I—”
“Don’t!” She pointed a finger at him. “Please don’t say you’re bulletproof.”
“I never would,” he replied. “That’s David Freeman, not me. I am merely methodical and fabulously competent.”
“Those are useful traits. Now why don’t you use them to make Vincent materialize so we can go home and get to bed.”
10
CityTalk
By Jeffrey Elliot
In a highly publicized talk before the Commonwealth Club yesterday afternoon, Distric
t Attorney Sharron Pratt put on a new hat and, like the others she’s tried on in her bedeviled administration, this one doesn’t fit her too well either.
Yesterday’s reincarnation of our most chameleonlike elected official featured herself as the tough-talkin’, straight-shootin’, crime-stoppin’ Avenger of Evil in our fair city. And about time, too. With a new election coming up this fall and her poll numbers at an all-time low, Ms. Pratt needed something to perk up her fuzzy-headed liberal image and lackluster conviction rate.
Although she has gone to bat big-time for the interests of her political cronies and contributors, especially in the ongoing Gironde matter—at this rate we may never have a finished airport—this district attorney has declined to prosecute any number of lower-profile offenses, including prostitution, recreational drug use, vagrancy, trespassing, vandalism (especially graffiti-tagging, which she terms a “creative expression of underprivileged youth”) and many others, up to and including murder if it appears the death might have been motivated by the proper political position. If it’s not Ms. Pratt’s kind of law, she’s not going to prosecute anyone for breaking it.
Nevertheless, yesterday’s talk marked a breakthrough, as it seemed to acknowledge for the first time that at least part of her job as the city’s chief prosecutor is to put criminals behind bars. Actually, in a flurry of hyperbole, she took things rather farther than that, actually going so far as ask for the death penalty for the young man who is accused—though note, not yet convicted—of killing former assistant district attorney Elaine Wager.
The man’s name is Cole Burgess. He is my brother-in-law. He is twenty-seven years old, a college graduate, a homeless person and a heroin addict. Though he has confessed to the crime, he does not remember committing it. He expects to plead not guilty, and a jury will have to convict him, then sentence him to death. To do so, it will have to ignore the man’s blood-alcohol level as well as the fact that he was suffering from heroin withdrawal. The jury will need to overlook that, except for drugs, Cole Burgess has little criminal history, much less a history of violence. He is no worse than two dozen other murderers where Ms. Pratt has declined to ask for special circumstances, much less death.
