by The Hearing
Hardy suddenly became aware of unrest in the gallery behind him. Hill looked out, then back down to Hardy and Torrey. As he’d shown at the arraignment, this judge seemed comfortable allowing some limited reaction among the spectators. In Hardy’s experience, this was unique. At very little volume, the low, white-noise hum added a kind of subliminal tension to the tone in the room. He wondered if Hill had some reason for allowing it.
Torrey finally found his question. “Very well, your honor. The People would like to inquire. What was the purpose of your meeting with defense counsel?”
“It was a personal issue, Mr. Torrey. This case had not yet been called. We did not discuss it in any manner.” Hill shifted his eyes. “Is that completely accurate, Mr. Hardy?”
“Yes, your honor.”
The judge wanted unassailable clarity on this point. “Mr. Hardy, did you say even one word about this case in my chambers?”
“No, your honor.”
“Did I?”
Again, Hardy said that he did not.
“Does this satisfy you, Mr. Torrey?”
The prosecutor swallowed, clearly feeling that if he could get out of this without any further damage, it would be a victory. “Perfectly, your honor.”
Hill nodded brusquely. “Then if you’d be so good as to call your first witness.”
Another of the many ways that a preliminary hearing differed from a trial was that there were no opening statements from either side. The prosecution simply began by calling witnesses (whom the defense could cross-examine) and introducing evidence, as they would at trial. When the D.A. was finished, the defense could then present its own witnesses and evidence.
Torrey took his chastised self back to the prosecution table. Hardy returned to his chair, thinking that at least the judge was equally intolerant of both sides. All things considered, this was terrific news.
Earlier in the week, Freeman had bet two hundred dollars that he could predict every witness in the order that Torrey would call them throughout the day, and—perhaps foolishly, given it was David—Hardy had taken the bet. Now the old man leaned across Cole and whispered, “Strout.”
Two seconds later, Torrey stood on the other side of the room. “The people call John Strout.”
The coroner rose from one of the wooden theater seats on the prosecution side of the room and made his long-boned way up the now frankly talkative center aisle, through the bar rail, to the witness chair. Strout appeared as a witness in a courtroom no less than once a fortnight, and as he took the oath, he projected his usual relaxed confidence.
As Torrey stood to begin his questioning, Hill lifted his gavel and touched it down lightly. The decibel level dropped a few points, Torrey greeted Strout, and the hearing had begun.
“Dr. Strout, for the benefit of the court, can you tell us briefly your occupation, as well as the training and experience that qualify you for that position?” Strout quickly qualified as an expert and gave the preliminary information about the case. In about ten questions, Torrey got to the point. “Doctor, what killed Elaine Wager?”
Strout leaned back in the witness chair and crossed his legs. “She was shot once in the back of the head at point-blank range with a .25 caliber bullet. Death was instantaneous.”
“And the manner of death?”
“Death at the hands of another—homicide.”
As Hardy listened to the uncontested testimony, his spirits continued in their downward spiral. The prosecution, after all, only had to prove two things and it was already halfway there in less than five minutes. But, he thought with relief, that’s over now. Homicide has been established. The second half, as Yogi Berra would say, was ninety percent of it. But if he thought that things couldn’t get more depressing from here, he was mistaken.
Torrey: “Now, you carefully examined the deceased body in your forensics laboratory, did you not?”
“I did a compete autopsy, yes sir.”
“And during this autopsy, did you discover any other injuries to the body?”
“I did.”
“Would you please describe them for the court?”
Strout, in his element, turned slightly and spoke directly to the judge, describing in homespun terms the gash on Elaine’s neck, the broken ring finger, the damage to her earlobes where the pierced earrings had been pulled out. By the time he’d finished the short recitation, the susurrus in the gallery had ceased. Torrey introduced the eight-by-ten color photographs of Elaine that documented all of this testimony and Judge Hill spent several minutes examining them minutely, leaving Strout on the stand while he did so.
When he finally got the pictures back and entered as People’s Exhibits, Torrey told Strout he had one more question. “These injuries, Doctor, were they administered before or after the decedent’s death?”
Strout replied, “From a medical standpoint, it’s impossible to say with certainty in the cases of the neck and ear injuries. Certainly near to the time of death, say within an hour. The finger, however, was broken after the decedent’s heart had stopped pumping blood.”
“In other words, after she was dead?”
In his laconic drawl, Strout granted that death usually went along with when the heart stopped and stayed that way. A ripple of amusement—tension breaking in the gallery—greeted this reply. Torrey let it die out, then passed the witness.
Hardy stood up. “Dr. Strout,” he began, “the injuries you described earlier, including the gunshot wound, the pictures we’ve seen—was that the extent of damage to the decedent’s body?”
The witness considered for several seconds. “Yes, sir,” he answered with finality.
“Were there any other broken bones, physical marks, bruises, abrasions?”
“No.”
“Did you examine her extremities, Doctor?”
“Yes, of course.”
“And were there any scratches or scrapes on her knees, or elbows, or on her hands?”
“No.”
“Aside from the bullet wound, was the same true of her head?”
Another wait while Strout considered carefully. “Yes.”
“Doctor, was there any abrasion, no matter how slight, that, in your expert opinion, would be consistent with her dropping dead—instantaneously, as you said—and falling directly with gravity onto unyielding concrete or asphalt?”
“No, there was none.”
Hardy thought he’d nailed down his point succinctly enough. The Cadaver had listened intently, even had taken a few notes. He’d have to let the information—and inferences to be drawn from it—hang fire for a while, but when the time came, it might be persuasive.
In the gallery, the noise bubbled up again. Hardy didn’t know if the Cadaver used it for the same purpose, but suddenly the waxing and waning of the background sound struck Hardy as a kind of barometer. While he was asking his questions of Strout, the room had been almost completely silent. Which told him he must have been getting somewhere, making people think. Even if the majority of them, like Cole, were ignorant of where he intended to go, what his questions meant.
But he knew.
And the gallery would remember them, waiting for an answer, for closure. So, Hardy believed, would the judge.
He bowed his head slightly to Strout. “Thank you, Doctor. No more questions.”
By the time Hardy was back at his table—six steps—Hill had directed Torrey to call his next witness. As he sat down, Cole whispered, “What was that all about?” and Torrey stood and asked Steven Petrie to come forward. Hardy looked around Cole to Freeman. The old man pointed to the yellow legal pad on the desk in front of him. In block letters, he’d written “PETRIE.” He smiled helpfully.
“What?” Cole asked again.
Hardy patted his arm, whispered to him. “It’s like a movie, Cole. You pick it up as it goes along.”
Petrie, the officer who’d been first on the scene, was in uniform today. Blond and crew-cut, he had a runner’s body and a military air, and seemed ne
arly as uncomfortable as Strout had been composed. He gave his name, his rank, his duties and time on the force. Torrey was up, standing in front of him. “Officer Petrie, would you please describe your actions on or about twelve-thirty a.m. on the morning of Monday, February first, of this year?”
Hardy conceded that this was a good way to loosen up the stiff cop. Petrie seemed to sag in relief—he wasn’t going to be answering a barrage of questions, at least not right away. He glanced up at the judge, then back to Torrey, and began his recital in a normal voice.
The details were familiar enough to Hardy, but he knew that a straightforward chronology of events would be helpful to the judge. Eventually, also—he hoped—it would serve him. But for now, he sat forward, listening for factual error, taking notes.
Petrie told it clearly. He and his partner, Daniel Medrano, were cruising downtown on their regular beat when they saw some suspicious movement at the head of Maiden Lane, at Grant. As they pulled closer, they brought their squad car’s spotlight to bear, and saw a man squatting over a fallen figure. He turned and began to run. Petrie’s partner Medrano got out and gave chase while Petrie first called for backup, then got out to see to the fallen figure, a young African-American woman, who appeared to be dead.
He took under a minute satisfying himself that he could do nothing to help the victim, but he called the paramedics anyway. By the time he finished, Medrano was returning with the suspect, whom he’d apprehended at the Union Square end of Maiden Lane. Medrano told him that, in the dark, the suspect had run into a fire hydrant and fallen down.
Shot out of a cannon, Hardy was on his feet with an objection. He heard Freeman call his name hoarsely, but he was already up, committed. “Hearsay, your honor.”
Hill’s eyes narrowed with displeasure. “Absolutely,” he replied. “And as such permitted in a preliminary hearing when offered through an experienced officer, as you no doubt remember from your days in law school. Mr. Torrey, please continue.” But another thought struck him. “Oh, and Mr. Hardy, try to refrain from frivolous objections like this as we go along here, would you. We’ve got a lot of ground to cover. Thank you. All right, Mr. Torrey, you may proceed.”
Hardy sat down heavily and Freeman reached around Cole to pat his arm. “I tried to tell you,” he said. It wasn’t any solace.
Torrey brought Petrie back to where he’d been and he continued. “So Dan—Officer Medrano—came back down Maiden Lane with the suspect. He also had a gun that he said the suspect had dropped when he fell.”
More hearsay, though Hardy didn’t doubt its truth.
“Let’s stop there for a moment, Officer Petrie. Do you recognize the suspect that you and your partner arrested that night in the courtroom today?”
“Yes.”
“Would you point him out to the court, please?”
Petrie raised a hand, pointed a finger. “In the middle of the defense table over there.”
Torrey had the record reflect that Petrie had identified the defendant, Cole Burgess. “Now, this gun . . .” He introduced the murder weapon into evidence, and evidently the size of it made an impression on the gallery. It truly was a tiny weapon—no more than two and a half inches long, perhaps half an inch wide. Petrie identified it as the gun from the scene. “All right,” Torrey said, “you’ve arrested the suspect and recovered a gun. What did you do next?”
“I should say he was already handcuffed. Dan had handcuffed him after he caught him.”
“Okay, thank you.”
“Then we brought him over to the squad car and patted him down. His pockets, his coat. He was wearing an old jacket.”
“And did you find anything on his person?”
“Yes, sir. Several items.”
“Would you describe them, please?”
Petrie identified them—the necklace, diamond ring, pair of earrings, a wallet belonging to the deceased containing her identification as well as eighty-five dollars in bills and a dollar sixteen in coins.
Prosaic as this was, no one in the courtroom was unaware of the significance of this testimony. This made it murder in the commission of a robbery. It’s what made it a capital crime for which Cole Burgess could be put to death.
If there had been a jury present, this would have been the opportunity for Torrey to play to it, to underscore the importance of this testimony. But there was nothing for him to do in that regard now, no theatrical business to attend to, so he had to press on ahead.
“Officer Petrie,” he said, “was the defendant intoxicated when you arrested him?”
Hardy stood. “Objection, your honor. Calls for a conclusion. Officer Petrie is not an expert witness.”
But Torrey was ready with an argument. “Your honor, a layman can offer an opinion in this area and every policeman on the street is intimately familiar with apparent intoxication.”
Hill nodded in agreement. “Objection is overruled.”
Hardy wanted to keep going, but he’d been warned. The judge had made his ruling. Besides, it was the correct one. There was nothing to do but sit back down and listen to Petrie’s answer.
“I smelled liquor on his breath, but he was conversant and coordinated.”
Torrey smiled, obviously pleased at how well his witness had taken to his coaching. “Conversant and coordinated,” he repeated. “Thank you, Officer. No further questions.”
If Hardy had been prosecuting, he would have had a lot more, so he was surprised—his rhythm off—as he stood to begin his cross. “Officer Petrie,” he began, “you smelled liquor on Cole Burgess’s breath, is that correct?”
“Yes, it is.”
“Was this a strong odor?”
“I could smell it, yes.”
“Did you give him a Breathalyzer test?”
“No.”
“No.” Hardy paced a few steps to his left, deep in thought. “Officer Petrie, in your years as a police officer, have you ever pulled over a car for a driving violation?”
Petrie reacted with a bit of impatience. “Yeah,” he said. “Of course.”
“Of course,” Hardy repeated. “And on any of those occasions, if you wanted to know if someone was drunk, what was your procedure?”
“Usually we ask the person to get out of the car and administer some field sobriety tests. Saying the alphabet backwards, or standing on one foot with their eyes closed, like that.”
“So basically walking and talking, right? And other basic tests of coordination?”
“Yes.”
“Now you saw my client staggering when he walked, isn’t that right? When he came back with your partner?”
“Well, yeah, but he had fallen down.”
“That’s right, Officer. He not only couldn’t walk when you saw him, but he was too uncoordinated to escape, right? He plain fell down when he tried to run, isn’t that correct?”
“Well, he ran into something.”
“And fell down, didn’t he?”
A reluctant nod. “Okay. Yes.” Petrie tried to sneak a glance over Hardy’s shoulder, pick up a cue from Torrey.
Hardy took a step toward the witness box and to his right, hopefully blocking the line of sight. “Now, how about his speech?”
“I don’t know,” Petrie said grudgingly. “It varied.”
“Did he speak at all, Officer,” Hardy asked, “or was he too incoherent to say much?”
“He was pretty incoherent.”
“And passed out in the back of the patrol car?”
“Yeah.” Petrie squirmed. “He did that.”
Hardy backed away a step, took a beat, then came back to the officer. “People who act as you’ve described here might be drunk, correct?”
“Yes.”
“Another alternative would be if they were injured, is that right?”
“Yes.”
“And in fact, Mr. Burgess was bleeding slightly from a head injury, correct?”
“Yes, sir.”
“Well, since you’ve testified that there were par
amedics at the scene and your policy and procedure is to have injured prisoners evaluated by paramedics, isn’t it true that the reason you didn’t show Mr. Burgess to the paramedics was because you could tell that the only thing wrong with him was that he was drunk? Falling-down, incoherently drunk?”
Petrie was stuck. “He was.”
Hardy nodded, satisfied. “No further questions.”
During the recess, Freeman left for the bathroom. Cole pushed back from the defense table. He was not cuffed in the courtroom, and had crossed his arms over his chest, rested an ankle on his knee. “I can’t believe you didn’t ask him anything about the shot,” he said.
Hardy wasn’t much in the mood for criticism at the moment. “Like what? He’s not our witness.”
“Why not?”
Hardy, pretending to read from some notes in front of him, finally gave that up and turned to face Cole. “Because I talked to him early in the week. He says he didn’t hear any shot. And we need that shot as much as they don’t need it.”
“Why didn’t Torrey bring it up, then?”
Hardy had wondered about this, too. Certainly, it was an important point. If Cole had only fired the gun once, and not when he fell during the pursuit in the alley, then the only handy explanation for the gunpowder residue on his hands was that he’d fired the gun before the police arrived. Presumably to kill Elaine. Petrie’s report of the incident never mentioned a shot, although Medrano’s did. So Hardy had put Medrano on his own witness list. He assumed that when Torrey had seen this, he chose Petrie for the prosecution version of the story. Then, in the flush of having demonstrated his special circumstance—robbery—he’d decided he had gotten enough out of him. He didn’t need what the officer didn’t hear. Hardy hoped this would prove to be a critical omission, but he downplayed it to his client. “I don’t know, Cole,” he said. “My honest feeling is that he just plain forgot.”
Freeman guessed right again on the next witness—the crime scene lab technician. Lennard Faro was a small man in his early thirties with a thin mustache and thick, pomaded black hair. He wore a blue blazer over a tangerine shirt. A tiny gold cross earring dangled from his left ear. He verified that ballistics confirmed that the bullet that had killed Elaine Wager had been fired from the weapon Cole had had in his possession. Faro had tested the defendant for gunshot residue, then analyzed the results. Now Torrey had come to the nub of it. “And therefore, based on the results of this test, it was your conclusion that the defendant had on his hands residue that could only have come from a discharged firearm.”
