by The Hearing
“So Mr. Alsop was in jail for six days before he informed you that he’d struck a deal with the district attorney with regard to this information about the murder weapon. Is that right?”
“Yes.”
“And during those six days, did you have an opportunity to meet with him?”
Westbrook looked into his lap and consulted some notes he’d brought with him. “I met with him twice, once here in the Hall of Justice, and then again the next day, in the afternoon, at the jail.”
“And were these long discussions?”
“The first one, here at court, wasn’t too long. We talked about his plea, his parole situation, logistics.”
“And how about the second one, at the jail? Was that longer?”
Again, the young man consulted his notes. “Yes. We talked for a little under an hour.”
“And during that discussion, did the name of the defendant in this case, Cole Burgess, come up?”
“Yes, it did. The two men were acquaintances. Cullen heard he’d been arrested for murder and wanted to know if I knew anything about it.”
“And what did you tell him?”
“Only what I’d read. That it didn’t look too good for him.”
“Did he mention a gun at all?”
“No.”
“And yet, Mr. Westbrook, just four days later, you met Mr. Alsop again after his plea bargaining arrangement with the district attorney’s office. At that time, did you mention this oversight to him? That he hadn’t mentioned the gun to you before?”
“Yes, I did.”
“And what was his response?”
“He said that he thought it might be incriminating if he told me he’d ever had the gun. He didn’t want to get involved with a murder charge.”
“But obviously, sometime in the intervening four days, he decided that it would be all right to disclose this information after all, is that true?”
“Well, apparently that was what he decided.”
“But he never discussed this legal matter with you, his own attorney?”
“No, he did not.”
Hardy walked back to his table and got himself a sip of water. This wasn’t going anywhere. He had been hoping something would occur to Westbrook on the stand that would shake things up a little, but he’d gotten to here and the well was dry. Hardy caught Freeman’s eye, and after only the slightest hesitation, David nodded. Hardy turned back to the bench. “Your honor, my associate has a question or two for this witness if it please the court.”
Hill didn’t like it, but then again, he didn’t like anything. “Mr. Hardy, you know the rules—one witness, one lawyer. And this is your witness.”
“Yes, your honor. And if you wish I’ll have Mr. Freeman write his questions out for me to ask Mr. Westbrook, but in the interests of time . . .”
Exasperation was Hill’s middle name. “Once, Mr. Hardy,” he said wearily. “Just once, only once, as in never again once. Mr. Freeman, you may proceed.”
Freeman stood at the defense table. He spoke with an exaggerated calm. “Mr. Westbrook. You’ve just testified that Mr. Alsop never discussed this rather significant legal matter with you, is that right?”
“Yes, sir.”
And suddenly Freeman’s head came up and he exploded. “WELL WHY NOT?” He came around the table, charging. “Did you ever ask your client who he talked to about this urgent matter? Weren’t you concerned that he just decided on his own to subject himself to the possibility of being charged with murder?”
“Objection!” The attack had come out of nowhere and caught Torrey flat-footed, so it took him a moment to respond, and now he stammered out, “Hearsay and speculation.”
But Freeman was on his horse, galloping. His voice still boomed. “Everything about Cullen Alsop’s deal with the district attorney, his release from jail and his death is supremely relevant.”
The courtroom hung in silence. Freeman had his hands on his hips facing the judge. He was completely out of line and totally confident, and Hill bought it. “Objection overruled,” he said.
Freeman bobbed his head curtly, thanked the judge, then turned and pointed to the naive, sweet, stunned Westbrook. “You met your client after he made his deal, did you not?”
“Yes, sir, I did.”
Freeman moved up close to the witness box and pressed his attack. “Why didn’t you ask him about it?”
“I don’t know.”
“You don’t? I think you do, sir.” The words flew out staccato fashion. “You knew that this deal stunk, didn’t you? That it would come back and bite him. Didn’t you?”
Flustered, unsure of exactly what the question meant, Westbrook stammered, “Well . . .”
Torrey was up, yelling “Objection!”
As though he’d proved an important point, Freeman spread his arms in triumph. “Yes,” he said. “And now it has. No further questions.”
“I don’t know what you did just then, David,” Hardy said, “but it sure was fun to watch.”
The court was in a recess after Westbrook stepped down. They hadn’t left their table, although Cole had gone back with the bailiff to use the bathroom, so they were alone. Freeman didn’t show any sign of glee over his performance. He lowered his voice. “We need a fact here pretty soon or we’re dead. If I were Hill, capital case or not, I would have called it already and our boy’s going to trial.”
Hardy turned around and surveyed the courtroom behind him. No Glitsky or Treya. No Logan, either. He thought he’d recognize Visser if he saw him, and didn’t. The musketeers were out on their errands. He drew little circles on the legal pad in front of him. He thought he knew so much about this case, but for the life of him he couldn’t figure a way to get his vital information in front of Hill. “We’ve got to start talking about these tenuous connections and hope the judge stays interested.”
Freeman shook his head, disagreeing. “Nope. We need facts,” he repeated. “Now.”
Hardy stopped scribbling. “Is Ridley Banks part of this yet, his connection to Cullen? Both of them either dead or missing. Those are facts.”
Unconvinced, the old man clucked. “Slim pickin’s,” he said.
But until Glitsky or someone else hit some pay dirt, it was all they had.
Jan Falk was obviously a surprise both to the prosecution and to the judge. After he’d been sworn in and had described his position as an undercover narcotics officer, Hill stopped Hardy and beckoned him up to the bench. “Mr. Hardy, as far as I can tell, your last witness brought nothing of any substance to this party. Now I have been granting you extraordinary latitude up until now, and will continue to do so because of the gravity of this case, but I’m not going to tolerate any more fishing expeditions. If you’ve got something to get out of this witness, it had better become damn clear what it is in a short period of time, or I’ll dismiss him. Am I making myself clear?”
Hardy swallowed, although his mouth was sand. “Yes, your honor.”
Treya opened the top left-hand drawer in her old cubicle at Rand & Jackman. It seemed so long since she’d worked there. Her face fell. “I know, I know, I know I didn’t lose it. I’m just so tired, my brain’s not working.”
Glitsky put a hand on her shoulder. “Didn’t you get much sleep?”
She turned in the chair and laid a gentle palm against his face. “Stop.”
He kissed her, then straightened up and sat against the edge of her desk. “All right,” he said. “Let’s go back to where you were when she gave it to you.”
“I was in her office.”
“Where we’ve been looking at files all this time?”
“Yes.” Treya got up abruptly. Glitsky followed her across the hall into the now-familiar room, where she went and stood by a low file cabinet. “This was where I was. She was carrying her leather shoulder briefcase and came in and . . .” She closed her eyes, trying to bring it back.
Glitsky, content to watch the subtle changes in her face, let her be.
“I was holding—that’s it—I had a stack of files I was holding and she threw the briefcase on the desk and took out a manila folder and handed it to me while we were talking. Her meeting. She had to run.”
“So it was with your other files?”
She nodded. “But I was going home, too. It was almost dinnertime.” She took a breath, closed her eyes. “And first thing next morning I heard about her, and then everything else . . .”
“You never filed it.”
They crossed back to her cubicle, and she sat again, thinking. Suddenly she spun the seat and slid the chair across the small space to a horizontal bank of metal file cabinets. Opening the bottom tray, she sighed with relief. “Here we go.” Reaching down, she pulled out a loose bundle of folders, perhaps twenty of them. She opened the top folder, sighed again and handed it to Abe. “This is the one after she got back from Logan’s. It looks like a business ledger, a check register,” she said.
Glitsky was flipping through the Xeroxed pages, twenty or thirty of them. At one of the pages, he stopped, a puzzled look on his face. “It’s missing some entries here,” he said, flipping to the following page. “A couple more here. What do you think that’s all about?”
She took the pages and studied them. “I’m not sure. Voided checks, maybe,” she said. “What do you think?”
“I think it’s funny,” Abe said. “A little bit funny.”
36
Jan Falk’s testimony had only the most tenuous relationship to Cole Burgess, but by the time Hardy was done with him, after three o’clock in the afternoon, he felt certain that he’d forged another link in the chain that bound all these disparate elements to the murder of Elaine Wager.
Over a near constant clamor of relevance objections from both Pratt and Torrey, Judge Hill let Hardy make his case. The Cadaver spouted a constant flow of overruling rationalizations, and all of them taken together assumed the force of a mantra.
“Mr. Torrey, this is a capital case. I’m going to let it all in and sort it out at the end.”
“Mr. Torrey, this will go a lot faster if you just let Mr. Hardy do what he has to do.”
“Yes, I realize that defense counsel is arguing his evidence, but you’re the one asking for the death penalty, and if you get it, Mr. Torrey, every single layer of appellate court in this country is going to review it. They’re going to want a complete record of all the issues and I intend to give it to them.”
“Ms. Pratt, if as you say this line of questioning is irrelevant, how could it possibly hurt your case to hear it?”
“I know my job, Mr. Torrey. I will throw out what doesn’t belong here. You’ll have to trust me on that. But I’ve told you I’m allowing extreme latitude here, especially after this morning’s revelations in Ms. Wager’s letter to Lieutenant Glitsky.”
Hardy knew that no judge had ever been reversed for giving the defense what it wanted. He couldn’t say whether it was Jeff Elliot’s Examiner article, or the judge’s time-tested views of the integrity of the D.A.’s office, or Elaine’s letter, but whatever had caused it, suddenly the Cadaver appeared compelled by the argument that events surrounding Cullen Alsop’s overdose were somehow key to Cole’s guilt or innocence.
Hardy had introduced no physical evidence—the judge had simply allowed hearsay and argument. Falk had put Gene Visser with Cullen Alsop at Jupiter on the day of his release from jail and subsequent overdose. He’d disclosed information familiar to narcotics inspectors that substantial quantities of cocaine and heroin seized in arrests of dealers were finding their way back onto the street again. He opined that perhaps the evidence lockup room under the Hall of Justice was not as secure as was generally imagined. A recent internal narcotics department audit had revealed, for example, that in the past twelve months, there was a discrepancy of nearly eighteen ounces between the amounts of opiates and cocaine logged into evidence and stored downstairs and the amount actually on hand in the case lockers.
More specifically, though, Falk had testified that Banks was going to interview Visser on the day of his own disappearance. With the inspector still on the stand, Hardy argued that since two critical witnesses in this case had died or disappeared within the past week, more investigation was called for. The burden of proof, always on the prosecution, demanded some explanation for these unusual events.
In spite of all the objections, the prosecution didn’t even bother to cross-examine Falk. What were they going to ask? If he’d made up any of this stuff? They knew he hadn’t. He was Hardy’s witness and they were evidently happy to see the end of him.
Hill stood up and announced that he would be leaving the bench for fifteen minutes, the last recess of the day. Cole went for a pit stop with the bailiff and Hardy and Freeman started talking about whether they had enough to make a motion to bifurcate the hearing—put it on hold until some of these outstanding issues had been investigated and/or resolved.
But Abe and Treya had come into the courtroom during the last half hour, and Glitsky, finally having pushed through the gallery and inside the bar rail, listened for a minute, caught their gist and interrupted. “I don’t think we want to do that.”
As Hardy called lab technician Nikki Waller to the stand, suddenly he had the sense that the momentum had truly shifted—the lone fact that Freeman had so desired had finally appeared. The stocky, pretty young woman came confidently forward out of the gallery and took the stand with a kind of bright effervescence. Enthusiasm was rare enough in the courtroom, and Hardy found himself smiling at her, grateful for the attitude and also—mostly—for the information she possessed. He walked her through her introduction and credentials, then got directly to the point.
“Ms. Waller, did you have occasion recently to examine for fingerprints some of the contents of the room where Cullen Alsop died?”
“Yes, I did, just today.”
“Hadn’t you already done something like that?”
“Yes.” She briefly explained the computer problem, concluding, “I didn’t have a print good enough to compare to prints already in the system by computer, so not too surprisingly, I didn’t find anything to match.”
“Although there were a lot of fingerprints in the room, isn’t that so?”
“Oh yeah.” She almost giggled. “There was no shortage there. They were everywhere.”
“And then what happened this morning to make you look again?”
“Well, Inspector Thieu from homicide came to the lab and asked that I check the fingerprints again against a specific individual, whose prints were on file.”
“And did you do that?”
“Yes, I did.”
“Ms. Waller, what was the object on which you found the fingerprint?”
She wrinkled her face fetchingly. “Actually, it was a piece of Scotch tape—the inside sticky part—which was used to close the Baggie that had held the heroin.”
“And was it usable?”
“It was blurry, but usable.”
“And did you get a match this time?”
“Yes, sir, I did.”
Hardy straightened up and inhaled deeply. “Would you please tell the court the name of the person whose fingerprint was on the tape that enclosed the bag of heroin?”
Nikki Waller looked helpfully up at the Cadaver. “Eugene Visser.”
On the stand, Visser was the picture of blue-collar cooperation. “Of course I can explain it. This was the junkie in the bathroom, right?”
Hardy shrugged. “You’re telling the court, Mr. Visser. Not me.”
“Well.” Visser sat back, no sign of tension anywhere. “First you gotta understand that Jupiter is a party place. I mean, I heard what your last witness was talking about—Falk?—and you know, I’ve seen him in there, too. In the bathroom.”
“We’re not talking about Inspector Falk right now, Mr. Visser. We’re talking about how your thumbprint came to be on a bag of pure heroin that was a vehicle for a young man’s death.”
“Okay, sure,” Visser said.
“The short answer, then, is I picked it up.”
“You picked it up?”
“I’m in the bathroom, I’m standing at the urinal, it’s the middle of the afternoon. I’m hearing some noise next to me in the stall, but you know how that is, you don’t exactly go sticking your head over the top and asking how things are going.” A nervous titter rolled through the gallery. “Anyway, next thing I know, I hear this person swear, like he dropped something, and a Baggie of white powder shows up at my feet.”
“At your feet?”
“Yeah. I don’t know. He must have kicked it grabbing for it or something. But like I was telling you, this isn’t the first time I’d seen something like that at Jupiter. I mean, this is an adult place. There’s a lot of law enforcement types, like myself. So I figure, the kid in the stall, maybe he’s undercover—like your friend Falk, maybe, huh?—and he’s trying to entrap me.” The gallery found this amusing, too. “So I leaned over, picked up the Baggie, closed it back up with the tape. By this time, the kid’s out of the stall, coming around, frantic. Going all like ‘Where’s my stuff? Where’s my stuff?’ So I hand it back to him.”
“You handed it to him?”
Visser smiled. “All taped up. Which, now, take my word for it, I wish I hadn’t.”
Another ripple of laughter, and Visser acknowledged it almost as though he was doing stand-up. He began to rise out of the witness chair, but Hardy held up a hand and stopped him. “Mr. Visser, excuse me. We’re not quite done here. Inspector Falk has testified that you went into the bathroom after Mr. Alsop and both of you stayed in there for quite a while, perhaps as long as ten minutes. Would you care to explain that to the court?”
Shaking his head at all this silliness, Visser plopped back down and gave Hardy a long and serious look. “You don’t have to believe me, but I talked to him.”
“You talked to him? Cullen Alsop? What about?”
He threw a look to the judge, then back to Hardy. “No, forget it. Never mind. You’d just laugh.”
“I’m not laughing, Mr. Visser, I assure you. Please answer the question.”
