Hardy 10 - Second Chair, The

by John Lescroart

  Johnson pulled himself up to his full height in his chair behind the bench. "As I mentioned to you at the outset, Mr. Hardy, we're not here to consider the criminal charges against Mr. Bartlett. The purpose of this hearing, and it's only purpose, is to determine where Mr. Bartlett gets tried— here or in adult court. Not whether."

  "Of course, your honor, I understand that. Nevertheless, the import of this new information is rather extraordinary and I believe the court will want to have heard it."

  "To save the time that is obviously so important to you?"

  "To prevent a grave injustice, your honor. I'm talking perhaps ten minutes, maybe less."

  Johnson wore his reluctance like a shroud, but finally, shaking his head in disgust, he turned to Brandt. "Does the petitioner have any objection?"

  "Nothing substantive, your honor."

  "All right. I'll see counsel in my chambers." Johnson stood. "Ten minutes." And he left the courtroom by the back door.

  * * * * *

  Johnson, his arms crossed over his chest, stood in his robes in the middle of his room, so that when the three lawyers trooped in behind him, there really wasn't anyplace for them to go. After Brandt closed the door behind them, they stood with their backs to the wall, their faces to the intractable judge. "All right, Mr. Hardy, we're in chambers. As you can probably tell, I'm not in much of a trifling mood, so let's hear what's so important."

  Hardy nodded. "Thank you, your honor. I'll cut to the chase. Andrew Bartlett didn't kill Mike Mooney and I have information which I believe rises to the level of proof, and I think you'll agree."

  But Johnson was already shaking his head no. "I won't agree because I won't hear it."

  "Pardon?"

  "I can't imagine, Mr. Hardy, how I could have made it more clear to you that this seven-oh-seven is not about Mr. Bartlett's guilt or innocence."

  Hardy, striving for equanimity, inclined his head an inch in deference. "Yes, your honor, I understand, but this—"

  "You say you understand, and follow it with a 'but.' That sounds like an argument coming up. Do you hear yourself?"

  "Your honor, forgive me. I'm not trying to be argumentative. I'm trying to present information that you will, I'm sure, find compelling."

  "About your client's guilt or innocence?"

  Hardy knew the wrong answer, and tried to avoid it. "About the circumstances of the crime. Which would make it fall under criteria five."

  "All right, but be careful." Johnson cocked his head. "We're getting a little obscure here, Counselor."

  "I'm talking about the person they're calling the Executioner."

  "What about him?"

  Brandt got on the boards. "Excuse me, but wait a minute. This sounds to me like we're getting back to who committed these murders."

  "It does to me, too," Johnson said. "Mr. Hardy, you're not going to imply, I hope, that some unknown serial killer might be guilty of the crimes for which your client is charged."

  "Your honor, with respect, it's not a question of might. I was in the Hall of Justice last night with Deputy Chief Glitsky. He identified a defendant in a seventeen-year-old case with connections to Allan Boscacci as well as to all the so-called Executioner victims . . ."

  "And you're saying the victims in this case . . ."

  "I'm saying Mike Mooney and Laura Wright were killed by the Executioner, yes."

  "Excuse me," Brandt said again. "Did I miss something? Have they caught him?"

  "No."

  "Has someone confessed?"

  Hardy came back to Johnson. "That's not the point, your honor. Glitsky knows who he is, but hasn't been able to identify him yet by name."

  Johnson barked a note of derision. "So he's known but unidentified, whatever that means. It seems we've gotten to quite a long throw from whether or not Mr. Bartlett is an adult."

  "I'm getting there, your honor."

  "You are? You know, Mr. Hardy, I don't believe you are. Is Mr. Bartlett somehow related to this known but unidentified Executioner?"

  "No."

  "May I ask how you can know that one way or the other if you don't know who the man is?"

  he judge gathered himself for a moment, then pointed an accusatory finger at Hardy. "This is exactly the type of alternative theory hocus-pocus that I warned you against at the outset, and warned you again before we came back here to chambers."

  "But this isn't hocus-pocus, your honor. You can call Deputy Chief Glitsky and—"

  Johnson finally raised his voice. "I don't have to call anyone! If there is strong enough evidence to warrant revisiting the charges against Mr. Bartlett, I'm sure Mr. Brandt will hear about it from the district attorney. Mr. Brandt, have you gotten any calls today on this topic?"

  "No, your honor."

  He turned to Hardy. "Then this court is going to assume, Mr. Hardy, that the current charges are still in effect. If Mr. Bartlett is demonstrably innocent of them, I'm sure that Mr. Jackman will drop them and let Mr. Brandt know as soon as he can. But in the meanwhile, until I hear otherwise, Mr. Bartlett is in the middle of an administrative process to determine where he gets tried. That's all that's happening here. Enough of this!"

  Hardy, in a bit of a fury of his own, took a step forward, moving into the judge's personal space. "To the contrary, your honor, with all respect. There has not been enough of this. If it's your decision to refuse to hear what I've got to say, then when we get outside I'm going to open up by making a representation to the court and getting it on the record."

  Johnson glared at him. "Talk all you want, Mr. Hardy. Sooner or later you'll have to stop and we'll get on with it."

  * * * * *

  "If it please the court." They were all back in the courtroom. Hardy didn't even sit down, but got back to his table, turned and spoke. "Last night, acting on information received from a classmate of Andrew Bartlett, I spoke to a woman named Catherine Bass, who was at one time the wife of Michael Mooney." Because proceedings in juvenile court were kept confidential, Hardy could bring up the bare fact of Mooney's sexuality here if he needed to and still keep it out of the public record. But now he realized with some relief that there was no reason even for that.

  She informed me, and subsequently I have verified it as true, that in 1984, Michael Mooney served on a jury here in San Francisco in the case of People v. Lucas Welding, a murder case. The prosecutor in that case was Allan Boscacci. Other members of that jury included"— Hardy looked down and checked his notes—"Elizabeth Cary, born Elizabeth Reed, Edith Montrose, Philip Wong, and Morris Tollman. All of these people, the jurors I've mentioned and Allan Boscacci, have been murder victims in the past three weeks."

  Next to him, he heard Andrew— his neck brace gone now— whisper to Wu, "Is that true?" Even within the bullpen, he saw the bailiffs exchange glances with each other and then the court recorder. Johnson picked up his gavel, then put it back down. It was the first time that he was hearing all of this in detail, and Hardy hoped that the recitation would make an impression.

  "Upon receiving this information, I immediately called San Francisco's deputy chief of inspectors, Abe Glitsky, and subsequently met him at the Hall of Justice, where he discovered that Lucas Welding, who had been convicted and sentenced to life in prison for the murder of his wife, had recently won a reversal of his conviction based upon DNA evidence that had not been presented at the original trial. He had been ordered released from prison, but during the course of his appeal, he had developed cancer and ultimately died at the infirmary at the Corcoran Penitentiary before he could be released."

  Hardy stopped, wondering if that was enough. It certainly had been plenty for him and Glitsky. He threw a look over to Brandt, but the prosecutor was sitting slumped in his chair, his head down, his hands clasped on his lap. Johnson himself appeared to be waiting for more, and if that door was open, Hardy thought he should walk through it.

  "Deputy Chief Glitsky has assigned several inspectors first to find and protect the other jurors from the Welding
case, and second to identify and locate anyone who might have had a relationship with Welding, and whose rage over Welding's seventeen years of incarceration for a crime he did not commit might have become a motive for the murders of Allan Boscacci and several members of the convicting jury." He paused to let his words reverberate for a moment, then added. "Including," he said, "the murder of Michael Mooney."

  Brandt was sitting up straight now. Johnson was taking some notes at the podium. When he was finished, he looked up. His eyes went first to Brandt, then to the gallery, where Hal and Linda were whispering, then finally back to the defense table. "Thank you, Mr. Hardy. Your representation is noted for the record. Is that the substance of it?"

  "Yes, your honor."

  "All right, then, let's move on. Do you have another witness for this seven-oh-seven proceeding?"

  "Wait a minute." Andrew's voice was still fairly hoarse, but carried in the courtroom. "If you know that somebody else killed Mooney . . ."

  Behind him, Hardy heard the Norths and he turned. Hal was on his feet. "That ought to be the end of this," he was saying. Both bailiffs— Nelson and Cottrell— stood quickly and moved out from their positions on either wall.

  "But this is nuts," Andrew was saying to Wu. "It proves what I've been saying from the beginning." He got to his feet and spoke up to the court in general, back to his mother. "It's what I've been telling you guys all along . . ."

  Johnson gaveled him quiet. A sharp, loud crack. "I'll have order in this courtroom. Mr. North, sit down. Mr. Hardy, Ms. Wu, I'm warning you, get your client under control." Both bailiffs stopped in their tracks for a moment, then Cottrell, with a warning glare at Wu and Hardy, walked out through the bullpen gate and into the gallery.

  Hardy turned and watched Cottrell as he continued back past the Norths and positioned himself by the back door.

  Wu stood up. "But, your honor, surely the import of Mr. Hardy's—"

  Johnson brought down his gavel again. "Ms. Wu. I said that's enough."

  Shaking her head in frustation and anger, Wu shared a look with Hardy, put her hand on Andrew's arm to calm him, and sat back down. Hardy was still on his feet. "Your honor," he said, "it's obvious to everyone in this courtroom that Andrew Bartlett did not kill Mike Mooney."

  Brandt was up across the room. "Your honor, if it please the court. It's not obvious to me. I've got an eyewitness and a great deal of evidence that says he did. And what about the other victim in this case, Laura Wright? Andrew Bartlett's girlfriend? Does defense counsel contend that she was on this Mr. Welding's bad luck jury, too?"

  Hardy spoke to the judge. "Your honor, she was killed because she happened to be there and Mooney's killer did not want to leave a witness."

  Johnson used his gavel again, then waited while the courtroom went to complete silence. Finally, he drew a long breath. "Mr. Hardy, I reject your conclusion that your representation rises to the level of proof in the matter before this court. I'll admit that it does rise to the level of coincidence, and the court does not find that compelling. Also, it doesn't change the essential fact of the gravity of the offense— Mr. Mooney and Ms. Wright were murdered. The district attorney has not withdrawn the charges against Mr. Bartlett, nor has he conveyed the gravemen of your most recent information to the court or to Mr. Brandt. As I've already mentioned several times, this seven-oh-seven is about whether Mr. Bartlett is a juvenile or an adult and that's all it's about."

  "But, your honor—"

  Crack! "Mr. Hardy, your representation is noted for the record. What do you expect me to do, drop the charges?"

  "I don't think that would be unreasonable, your honor, given the enormity of what you're calling the coincidence. Mr. Mooney and Ms. Wright were both killed by someone connected to Lucas Welding, and there's no such connection with Andrew Bartlett."

  "I understand that that's your theory, Mr. Hardy. Now do you have another witness, or is it time that I make a ruling?"

  Hardy bit the inside of his mouth hard. Looking down to his right at Andrew, he whispered, "Hang in there," then came back to the judge and said, "We'd like to call Anna Salarco, your honor."

  "All right." Johnson looked to his left— Cottrell's standard position in the courtroom— and frowned. He turned in the other direction. "Officer Nelson, would you please go out to the hallway and call the witness? Anna Salarco. And while you're out there, if you see Officer Cottrell, would you ask him if he'd care to join us again in the courtroom?"

  * * * * *

  There followed some minutes of confusion. Hardy had told Anna Salarco that they'd call her as a witness as soon as the court was called to session, but then they'd all had the meeting in chambers and Hardy's representation to the court. In the interim, evidently, both of the Salarcos had left the hallway to go to the bathroom. Maybe Bailiff Cottrell had gone looking for them. In any event, Cottrell was still missing from the courtroom when Anna Salarco finally, and nervously, took the witness stand.

  Hardy walked her through the by-now familiar recital, making sure to memorialize for the record the understanding that the Salarcos thought they had with the police regarding their immigration status, which Hardy believed served as a strong incentive for Juan to refuse to change his story. When they'd finished, Anna's testimony was all Hardy could have wished for. Just before her husband had gone downstairs and discovered the bodies, she had clearly seen the man leaving the house after the door had slammed, and could not identify him as Andrew. Hardy thanked her and turned her over to Brandt for cross-examination.

  Much to Hardy's displeasure, Brandt and Anna weren't complete strangers anymore. Wu told him that when the prosecutor had seen her name on the list, he, too, had called the Salarcos, then gone out to visit with them last night himself. This was why Juan was out in the hallway now, waiting for his chance to talk to the court and possibly refute whatever his wife had said first.

  So Brandt advanced to the witness box with a relaxed demeanor. "Mrs. Salarco," he began, "how far is it from your window to the sidewalk in front of your house?"

  "I don't know exactly."

  "Approximately, then."

  She shot a glance at Hardy and he nodded with some confidence. This question was not unexpected. "Thirty feet, maybe forty."

  "Thirty or forty feet, thank you. That's about the distance from where you're sitting to the back of this courtroom, is that right?"

  Hardy turned around to check and saw that Brandt wasn't far off.

  "Something like," Mrs. Salarco said. "Yes."

  "And you and your husband live on the second floor of your building, do you not?"

  "Yes."

  "So you were looking down at the person you saw?"

  "Yes."

  "And he was wearing a cowl?" At her confused expression, he mimicked with his hands, and added, "A sweatshirt with a hood over his head?"

  "Sí. Yes."

  "Did it cover his whole head?"

  Again, she looked at Hardy, and again he nodded. What else could he do? He had to let her tell her story and hope it came out as credible.

  She nodded back at Brandt. "Yes. But not his whole face."

  "Did it cover part of his face, then?"

  She paused. "Yes." Then added. "He looked up."

  God bless her, Hardy thought.

  But Brandt came right back at her. "What do you mean by that, Mrs. Salarco? That he looked up? Do you mean—"

  Hardy stalled to let the witness get composed. "Objection."

  "Sustained."

  Brandt was ready, though. "At any time, did the hood come off the man's head?"

  "No."

  "It covered the top of his head and part of his face?"

  Hardy stood again, objecting.

  "Sustained."

  "All right. Let me ask you this, Mrs. Salarco? Was it dark outside at this time? Nighttime?"

  "Yes, but—"

  "Yes is sufficient, thank you," Brandt said, cutting her off. He must have decided that he'd made enough of his point, and swit
ched gears. "Mrs. Salarco, were you present at the police lineup where your husband identified the person who'd been downstairs at Mr. Mooney's apartment that night?"

  "Yes."

  "Did you take part in that lineup, too?"

  "Yes."

  "And you failed to identify anyone in the lineup as the person you saw that night, is that right?"

  "Yes."

  "You were given a form, and then signed the form, saying you didn't recognize anyone in the lineup, is that right?"

  "Yes."

  "And Mr. Bartlett, sitting at that table over there"— he turned and pointed—"you did not recognize him?"

  "Your honor." Hardy was up again.

  "I'm getting to something here, your honor," Brandt said.

  "All right." Johnson nodded. "Objection overruled, but get to it."

  "Mrs. Salarco, when you did not positively identify anyone in the lineup as the man below your window, did you mean that you didn't know whether it was one of the people in the lineup or not? It might have been or it might not have been. Or did you mean to say that none of those people in the lineup was the man you saw? That is, you could not definitely say that it was Andrew?"

  Her eyes by now filled with fear, Anna Salarco looked to Hardy for support, but there was nothing he could do. She came back to Brandt. "I'm sorry. I don't understand."

  "Your honor," Brandt said. "May I rephrase?"

  "Go ahead."

  Brandt gave her a warm smile and stepped a bit closer to her. "Mrs. Salarco," he said, "we are trying to understand exactly what it is that you want to tell the court. At the lineup, you said you could not identify anyone, is that correct?"

  "Yes."

  "All right. Did you mean that it could not have been Andrew? That it was impossible that it was Andrew down below you thirty or forty feet away, with a hood over his head on a dark night?"

  "No. Maybe not impossible, but—"