by The Hearing
And all the while, the seriousness of the crime itself leant a gravity to the case. This was murder in the commission of a robbery, a capital case. The headlines had screamed it anew just yesterday morning; the anchors chimed it throughout the day. The D.A., as she’d promised, was going to ask for death.
Now, surveying the scene in front of him, Hardy felt that they had worked like galley slaves for the past week and done all they could. They were not unprepared, but he remained a long way from confident. The probable cause standard of proof in a preliminary hearing, after all, was nowhere near the reasonable doubt standard of a jury trial. All the prosecution had to do was demonstrate enough to bring a “strong suspicion to a reasonable mind” that a crime had been committed and that the defendant had committed it.
During all the time in the past week that he’d spent organizing the efforts of the rest of the people in this room, he’d been unable to completely shake the fear that his strategy—bringing out all his guns at the prelim rather than saving them for the trial—was misguided. What, he kept asking himself, was the hurry?
And indeed, one of the clichés lawyers spouted to their clients about why it was always better to delay—“look, if we put this off long enough, you never know, the cop who arrested you might die and won’t be able to testify against you”—had already come to pass. If Hardy waited longer, maybe Torrey would die, Pratt would be voted out of office, someone else with a guilty conscience or a slight case of schizophrenia could come forward and admit to the crime. Anything could happen.
But he was committed now, and finally satisfied that his decision was the right one. Jury trials brought with them their own insecurities, and they were of a subtly different nature. With a panel of citizens in front of you, the proceeding inevitably became slightly less intellectually rigorous. This was not to say that both sides didn’t need to cover their factual bases, but a human element always came into play, and thus there was an opportunity to play to emotion, to feelings.
A jury of twelve was going to hear a horrific litany of Cole’s uncontested actions that night—ripping off the earrings, breaking Elaine’s finger to get the ring, and so on. They would know that he’d fled from the police. He’d fired the gun—perhaps once, possibly twice. They would likely witness the videotape of the confession despite Hardy’s motion. After all that, try as he might, and no matter how brilliant a defense he was able to mount, Hardy could not believe that any jury would acquit. It could simply never happen in the real world.
So in a true sense, the prelim was Hardy’s best chance. Judge Hill was a crotchety old fart, sure enough, but he was careful and conservative. Perhaps the judge’s brain was not one that ascended to the exalted heights of “decent legal mind” as Hardy’s own apparently did, but the Cadaver had a reputation for intelligence nevertheless. He was also an experienced jurist. He would be fair-minded, although after Hardy’s intemperate outburst at the arraignment, there might be a hump to get over at the outset. Ironically, though, Hardy thought it even possible that the judge would cut him more slack in the courtroom precisely because he was angry with him—he wouldn’t want it to seem that his personal pique affected his judgments.
In fact, he would have to give Hardy tremendous latitude. A preliminary judge would admit evidence that a trial judge would exclude as confusing or irrelevant or too time-consuming. In the name of making “a complete record,” Hardy could ask Judge Hill for almost anything and the court would at least hear it before, inevitably, holding his client over for trial. Indeed, Hardy was virtually compelled to advance every single fact and theory in support of his client, no matter how tenuous. He wasn’t going to open himself up to an appeal based on incompetent counsel that the Ninth Circuit would uphold in ten years.
The burden of proof was on the prosecution to show, affirmatively, that Cole Burgess had “probably” committed the murder. Hardy’s team had uncovered some alternatives with motives and perhaps means and opportunity that he might be able to argue with a straight face. The police hadn’t investigated thoroughly enough. Too many questions remained unanswered. There were too many other possible suspects. The waters were too mud-died by politics and self-interest.
Yet Hardy knew that, even so, the judge was going to hold Cole to answer. Using the “reasonable man” standard, even if Hill might be persuaded that a trial jury might not in good conscience reach a verdict of guilty beyond a reasonable doubt, he would still order Cole to stand trial. These charges would never be dismissed.
Hardy more than halfway still believed that Cole had killed Elaine. If he himself were the judge in this hearing and knew everything he now knew, he would still have to say that Cole had “probably” done it.
The conclusion was all but foregone, but in a death penalty case, Hardy had nothing to lose. And this was the moment for the battle to be joined.
One of the surprising and wonderful things about San Francisco is that summer is not a real season in the normal meaning of the word. In any given year, there were perhaps sixty days that would classify as belonging to summer by virtue of general balminess, but these would almost never occur consecutively. Four days doth not a season make.
But the necessary corollary to the lack of seasonal continuity was the fact that a random summer day or two could occur at almost any time, willy-nilly, during any month. This morning, as Hardy mounted the steps outside the Hall of Justice, it was such a day.
The smell of roasting coffee hung in the air and he stood a moment outside in the unnaturally warm sun. A small shift in the soft breeze brought an overlay of sweet decay—the city’s wholesale flower mart around the corner, he realized. A news truck pulled up and double-parked across the street. The cars behind it honked their displeasure, then pulled around in a near unanimous flow of obscenities. Hardy lingered, knowing that once he passed inside these doors, all of this, the vibrant life of the city, would cease to exist.
He had given some last-minute instructions to David Freeman, then had driven on down alone before the rest of his “team.” He wanted to have a few minutes with Cole before the circus began. To reassure him. To settle himself.
Then he was passing through the metal detectors and on his way across the lobby. At this time of the morning, there was no one else around. Here on the opposite wall were the names of policemen who’d given their lives in the line of duty, and he stopped a moment, wondering if Ridley Banks was going to be there before long. He ascended to the second floor by the internal stairs rather than the elevator.
It wasn’t usual, but Hardy had asked for and been given permission to “dress out” his client for the hearing. To that end, Jody Burgess had gone shopping and bought Cole several pairs of slacks, some nice shirts, a couple of sports coats. In the holding cell behind Department 20, he was wearing one of the new outfits now, and Hardy was again—continually—surprised at how well the boy cleaned up. From a tactical standpoint, this was to the good, of course, although it would have meant even more if they were in front of a jury. Still, Hardy believed that there was value in a presentable appearance in the courtroom, even at a hearing. The orange inmate jumpsuits were all too familiar in the Hall of Justice, and all too associated with guilt.
A bailiff admitted Hardy behind the bars of the holding cell and lawyer and client got through the amenities. Cole’s eyes were clear now, his skin didn’t exactly glow, but it looked healthy. And though he would never be mistaken for Demosthenes, his speech had continued to improve as well—the slur was all but gone, the rambling quality to his earlier answers a thing of the past.
To all outward appearances, Cole was an earnest young man of adequate means and a decent education. If anything, Hardy thought, he projected an ingenuous naïveté, a sincere human innocence. He was sorry for everything that had happened. He was getting himself back on track. He’d do everything he could to help.
“I don’t really know if there’s anything more you can do right now, Cole,” Hardy told him. “Just don’t change your story from
now on. That would be the best thing. Beyond that, try to react appropriately to what you hear in there, and some of it’s going to be awful, I warn you. But don’t overreact. And don’t act.” Hardy put a hand on his shoulder. “How are the push-ups coming along?”
“Twenty-five.” A trace of pride. “Four times a day. Thirty sit-ups, too. Four sets.”
“And the pills?”
This wasn’t as happy a topic, but Cole kept his head up. “Getting there, slow but steady, though that’s not exactly been my style.”
“Styles come and go,” Hardy said. “Check out your clothes. A couple of weeks ago they weren’t your style either. Now you look like you were born in them.”
“That’s outside,” Cole said. “Inside’s another thing.”
“So what’s inside?” Hardy asked.
A look of quiet desperation. “The feeling that I’m not going to beat it. It’s just got too good a grip. And that’s not just a style.”
“You’re right,” Hardy said. “That’s not a style. It’s a choice.” He flashed him the hard grin and squeezed Cole’s shoulder. “You know what Patton said, don’t you? ‘You’re not beaten until you admit it. Hence, don’t.’ ”
Hardy saw it in Cole’s eyes—the remark had hit home. He indicated the courtroom through the adjoining door. Noises had begun to leak through as the time for the session drew nearer. He gave the boy a last pat on the shoulder. “Keep your chin up, Cole. See you out there.”
He had to walk around Torrey at the prosecution table, and this time there was no repartee. The chief assistant was talking to one of his own acolytes, a young woman, and pointedly ignored Hardy as he crossed the courtroom in front of him.
At the defense table, Freeman had arranged some folders and a couple of yellow legal pads in preparation for the first shots. On the other side of the bar rail, the gallery was filled to overflowing, and the crowd buzzed expectantly. Missing, though, was the almost palpable sense of anger and polarity that had marked the arraignment. Hardy attributed this partly to the passage of time, but mostly to David Freeman and Clarence Jackman, who between them had somehow gotten the word out to the various interested communities that this was not a racial crime, nor necessarily as clear a case as it had first appeared.
Hardy hadn’t even made it over to Freeman when a bailiff intercepted him. “Mr. Hardy, the judge would like a word with you.”
“Right now?”
“Yes, sir. This way, please.”
Hardy was truly stunned. This was a peremptory summons and couldn’t possibly bode well. In a capital case such as this one, every meeting between the judge and any of the attorneys had to be on the record, with a court reporter present. Hardy hesitated. Freeman, from the defense table, looked up with concern and started to come around, but Hardy held him back with a hand. “Will Mr. Torrey be joining us?”
“I don’t know, sir. The judge asked for you.”
There was nothing to do but follow him—back behind the bench, down the hallway in front of Cole’s holding cell, where his client sat dejectedly, elbows on his knees, head down. The bailiff knocked once and did not wait for an answer, but pushed open the door to Judge Hill’s chambers. A firm hand on Hardy’s back all but pushed him inside.
The Cadaver sat in an upholstered armchair reading the Chronicle. There was another chair next to him, but Hill rather pointedly did not ask Hardy to sit. Instead, the bailiff informed his honor that Mr. Hardy was here, and the judge nodded, finished his article in a leisurely fashion, then finally closed the newspaper. Out of his judicial robes, Hill appeared far more formidable than he did on the bench—any notion of caricature was displaced here. In his tailored suit, impeccably groomed, he could have been an ancient titan of business. The ascetic and angular face, which when perched over his robes suggested a disembodied skull on the bench, here was very much alive. The pale blue eyes seemed to float in little pools of malice. Tiny capillaries coursed the parchment skin of his cheeks. His mouth was a harsh line.
He took another minute before he spoke, and when he did, his voice had a rehearsed quality, although the delivery itself was dry, uninflected. He did not address Hardy by name but, looking up with a challenging dismissive-ness, simply began. “I’ve called you in here before this proceeding begins because I want to tell you something personally, outside of the context of this hearing.”
Hardy noticed that the court reporter was indeed taking this down.
“Yes, your honor.”
“Please don’t say another word. This is a one-way communication. I wanted to make it explicitly clear to you that any outburst such as your display at the arraignment on this matter won’t be tolerated in my courtroom. Any such outburst will get you fined, and if it’s serious enough I’ll put you in jail for contempt. If you think I’m kidding, we can find out real quick. I have not invited the prosecutor here since I did not think it necessary to admonish you in front of him. This is the very last latitude I will give you.”
“Yes, sir,” Hardy said.
Hill nodded, an expectation confirmed. “Here’s a word about precision, Mr. Hardy. I told you not to speak to me again and you just did. Further, I don’t know how long you’ve been practicing law, but a judge is ‘your honor,’ not ‘sir.’ I’ll see you in the courtroom.”
Hardy, his blood running hot, started to say “Yes, your honor” but caught himself in time. The bailiff nudged him out of his shock, and he turned and left the judge’s chambers.
“You look like you just saw a ghost,” Freeman said. Hardy’s legs would not hold him as he got to the
defense table, so he sank into his chair and reached for the beaded pitcher to pour himself a glass of water. His hands were shaking in a palsy of rage.
Freeman reached over and covered one of Hardy’s hands with his own gnarled one. “Diz?” With his other hand, he poured a glassful and slid it over. “Talk to me. What happened?”
Still unable to speak, Hardy’s breath was ragged and came in deep through his nose. A muscle worked in his jaw. His eyes rested on a fixed point somewhere in front of him. Eventually, he saw the glass of water and drew it nearer, but did not pick it up.
“Hear ye, hear ye! The Superior Court, state of California, in and for the county of San Francisco, is now in session, Judge Timothy Hill presiding. All rise.”
Pratt had come in and joined Torrey and his young assistant at the prosecution table. Hardy glanced across at her—an elegant, statuesque carriage in a dark blue business suit—and thought he detected an almost gloating confidence. For an instant he wondered if she’d fixed things with Hill somehow, put the bug in his ear to reprimand him so humiliatingly. No more than ten minutes had passed since he’d reentered the courtroom, and he still felt physically sick with spent adrenaline. And certainly he felt totally inadequate to muster any kind of rational argument.
In normal circumstances, he might have called for an immediate recess citing the call of nature, but here he knew he didn’t dare. His relationship with the judge was bad enough already. If Hardy did anything to antagonize Hill any further, he risked being charged with contempt, and any hope of making headway would be dashed before he’d begun.
Watching the Cadaver take the bench, he wondered anew about his benighted, misguided strategy, marveling at how badly he’d misjudged the situation: reasoning that Hill’s anger would be a “little hump” to get over in the first minutes. Now it loomed as an impenetrable, unscalable escarpment. And he had based all on this “reasonable man,” this fair-minded jurist. Now where would be all the judicial leeway he’d expected on so many critical issues? What were the odds of even getting past the videotape of the confession?
But there was nothing to be done at this point. They were here, committed.
At his side, Cole nudged him and whispered, “Patton.” His client was obviously reading his thoughts, which meant that he was telegraphing them. A bad sign to go with his bad feeling, but the advice was well taken. He forced himself to summon some of th
e general’s fortitude or control, to direct his anger and despair into something constructive.
Hill got himself settled, rearranging his robes. He greeted his clerk with a familiar if stilted geniality, then asked him to call the case. Hardy listened with half an ear as the Cadaver arranged some paper in front of him, swept his eyes around his courtroom. When they got to Hardy, there was not the slightest sign of animus—no momentary squint or pursing of his lips. It was as though their exchange had never taken place. And then the clerk had finished and the judge was talking. “Mr. Hardy, Mr. Freeman. Good morning. Ms. Pratt, Mr. Torrey. Are the People ready to proceed?”
Torrey stood up. “We are, your honor, but if it please the court, sidebar?”
Hill frowned deeply, shook his head in apparent disgust, and sighed. “All right,” he said at last. He motioned with one hand. “Counsel will approach.”
Hardy’s legs held him as he stood—a blessing. He and Torrey got to the bench at the same time and looked up at the judge, who was still scowling. “What is it, Mr. Torrey?”
“Your honor, with all respect, you just had a private meeting with Mr. Hardy.”
Hill’s face held a terrible blandness. He waited and waited a little more. “Was that a question?”
“Yes, your honor.”
“I’m afraid I didn’t hear one. Maybe you could try again.”
Torrey, aware that he’d already committed a tactical error, cleared his throat. “Well, your honor, as you know, in a capital case such as this one, all communication between the parties has to be on the record.”
“You don’t say, counselor.” Hill was breathing fire, a controlled burn. “As a matter of fact, I was aware of that.” Another wait. “I’m still waiting for a question.”
