Hardy 10 - Second Chair, The

by John Lescroart

  Brandt rushed her with the follow-up. "So your testimony now is that what you meant to say was that you couldn't positively identify the person as Andrew? Is that right? That you weren't sure enough to swear to it."

  "Sí," she said. "I could not swear to it that it was him."

  "Ah." Brandt rewarded her with a beaming smile. "Thank you, Mrs. Salarco." He whirled to Hardy. "Redirect."

  He wanted to take a short recess, perhaps confer with Wu and give Anna a few minutes to collect herself and perhaps realize what she'd said. But he didn't think he could afford to wait. "Mrs. Salarco," he began. "Is there a streetlight in front of your house?"

  "Yes."

  "Was it on— that is, lit up— when you saw the man come from the downstairs apartment, turn, and look up at you?"

  "Yes."

  "And could you see the man's face?"

  "Yes."

  "And was it Andrew's face?"

  She stopped, looked for a long time at the defense table, then finally shook her head. "No," she said. "Was not that boy."

  * * * * *

  During the lunch recess, Hardy stood out in the back lobby making phone calls, to Glitsky, to his wife, to the office. As he was finishing up the last one, he noticed Wu and Brandt sitting on a bench next to the walkway that led up to the cabins. From his vantage, they appeared to be arguing, but there was something about their body language that set Hardy's alarms jangling. Since there wasn't a jury that might be influenced by seeing the opposing attorneys schmoozing during lunch, their tête-à-tête wasn't the breach in trial decorum it might otherwise have been. But still, especially given the Norths' presence just up the hill in the cabins having lunch with their son, Hardy did not think it presented a picture that would be particularly comforting to the clients.

  He put away his cellphone, walked out the back door, and started to approach them. When he got close, he noticed the silent signal pass from Brandt to Wu, and they both shut up and put on different faces. Hardy gave them both a polite hello.

  "Any word from Glitsky?" Wu asked him.

  "He's not answering, so I'm assuming he's too busy. I left a message that we want to know the second he's got anything firm. Meanwhile, I'm going up to have a word with Andrew and his folks. If I'm not interrupting anything here, you want to come along?"

  Coming from her boss, this wasn't really a request. Wu hesitated, then stood up and fell in next to him as he continued walking. "He's not going to call Juan Salarco," she said.

  Hardy nodded, believing that the decision was the proper one. Though Juan's testimony might have undercut his wife's credibility somewhat, in the end his identification of Andrew in the lineup was already on the record, and the differences in the stories and interpretations of the husband and wife were what juries were for. Further, once he got on the stand, Hardy or Wu would have a chance to cross-examine him and perhaps expose other weaknesses that they could later exploit at the trial. "So that's it for witnesses then?"

  "It looks like."

  "Then it's over. We get the ruling when we go back in." Hardy took a few more steps, then asked, "What were you two arguing about? It wasn't that he isn't calling Salarco."

  "No, it's that he won't call Jackman."

  "Why should he? As his honor was kind enough to point out, if they get anything, Jackman will call him. Mr. Brandt is just playing it out."

  "A game, right."

  "Well, in some ways it is a game, Wu. You know that."

  "Not for Andrew," she said.

  "No, though it was when you started with him, wasn't it?"

  Her shoulders fell with the truth of that. "It's just that keeping track of when it's a game and when it's not"— she broke a weary smile—"it can wear a girl out." They hadn't yet reached the gate that enclosed the cabins, and Wu stopped walking. "But this is just so clearly wrong, don't you think? Andrew didn't kill anybody."

  "No. I don't believe he did either."

  "That's what I asked Jason, whether or not he believed it. He said that wasn't the point. He didn't want to go there."

  "He's right. His job right now is to present the petitioner's argument."

  "Even if he knows it's wrong?"

  "Even then. And in this case, he doesn't know he's wrong. He's just a lot more likely to be wrong than he used to be."

  "And so Andrew winds up screwed again?"

  "You don't want to be screwed, don't get in the system. But for the time being, that's what it looks like. But it won't last much longer, I don't think."

  Wu bit her lip, shook her head. "This is all my fault, you know that? Every bit of it. If I hadn't been so arrogant and stupid, Johnson might be listening to all this new information with an open mind, instead of being so blind . . . I mean, what if Andrew had succeeding in killing himself? That would have been completely my fault. And now, every extra minute that he spends in jail . . ."

  Hardy stopped her. "You thought you were doing what was best for your client. That's the job."

  "But he wasn't guilty."

  "You didn't know that. You thought he was."

  "I always thought they were. They always have been before."

  "Okay, so maybe you won't think that anymore. It's not all about strategy and leverage. Sometimes— not often, I grant you, but sometimes— it's about the truth."

  * * * * *

  The small visitors' room was too small for all of them, so Bailiff Nelson had accompanied Andrew, Hardy, Wu and the Norths back down the hill to the courtroom, where they now sat. "But this makes no sense at all," Linda North said. "We know that Mr. Mooney and Laura were both killed by this Executioner, don't we?" She looked around at them all, wide-eyed. "Don't we all know that? Is it just me?"

  Hardy nodded. "No, it's not just you, and yes, we know it. But we don't have proof."

  "What more proof would we need?" Hal asked.

  "Physical evidence," Hardy said. "We know that they've matched the slugs that killed at least three of the Executioner's victims. I'm asking the police to take another pass at Mooney's place, try to find the slugs. Either they'll do it or I'll find some investigators and pay them to."

  "But what if nobody finds them?" Linda asked.

  "Then maybe they'll find this Executioner and he'll confess to killing Mooney. Or maybe Juan Salarco could withdraw his ID. Any of those would be good."

  "But what if," Linda went on, "what if we don't get any of them? Are you saying they won't let Andrew go?"

  "They still might, yes," Hardy said. "But they might not."

  "And in the meanwhile," Andrew said in his damaged voice, "what happens to me?"

  "I'll be here," his mother said to him. "I'll be here every day."

  "We'll both be here," Hal added.

  Hardy put a hand on the young man's arm, gave what he hoped was a reassuring squeeze. "I've got to ask you to sit tight awhile longer. You think you can do that? This is going to work out. I promise you. We're almost done."

  Hal couldn't let it go. "But the judge must know now, doesn't he? I mean, the coincidence is so great it really couldn't be anything else."

  "In fact," Hardy said, "it could be something else. Somebody else besides the Executioner could have had a motive to kill Mooney, or Laura, though I wouldn't bet on it. But Andrew's guilt or innocence isn't what this hearing is about anyway."

  "And meanwhile he sits in jail," his mother said.

  "Really, though," Hardy said, "not for too much longer."

  "This is just a fucking travesty," Hal said.

  Hardy met his angry gaze with one of his own. "I couldn't agree with you more."

  * * * * *

  Nelson's bulk appeared at the table beside them. "Mr. Hardy, Ms. Wu, his honor would like to see both of you in chambers."

  They exchanged a worried glance, excused themselves and walked back out through the bullpen. Nelson knocked on the judge's door, got a "Yes?" and pushed it open.

  This time, they had room to enter and even to sit on two of the three chairs that had b
een placed in front of Johnson's desk, where the judge sat without his robes, in shirt and tie. Much to Hardy's surprise, he looked up from the document he was perusing and greeted them more or less genially. "I've asked Mr. Brandt to join us as well, and I'd prefer to say nothing until he arrives." He went back to his document, occasionally taking a note or striking a phrase.

  Brandt didn't keep them waiting long, and as soon as he'd come in and sat, Johnson adjusted his glasses and began to speak. "I want to thank you all for coming by. You'll notice that I have not asked the court recorder to join us. This is because I'd like this meeting to be off the record. Does anyone have an objection to that?"

  No one did.

  "As all of you I'm sure realize, this has been an acrimonious case from the outset. I've spent the last hour and a half here at my desk thinking about what we've seen and heard about this minor Andrew Bartlett, his attempted suicide, and so on. It's led me to wonder if perhaps some of the earlier defense motions and strategies presented in this case might have antagonized the court to a degree that is incompatible with the interests of justice. The fact of the matter is that I've been very angry and remain very angry at what I've taken to be deliberate manipulation of the court."

  "Your honor . . . !"

  "That's all right, Ms. Wu. I'm not accusing you of anything now. I'm pretty well over it." He took off his glasses and laid them on the desk in front of him. "Mr. Hardy, your representation in the courtroom this morning was, as you pointed out, compelling and highly relevant. However, as I tried to make clear about half a dozen times, I wasn't going to allow this hearing and the reason for it to become bogged down in the question of Mr. Bartlett's innocence or guilt. But now we've heard from all the defense witnesses, and Mr. Brandt, I understand you won't be calling anyone?"

  "That's correct, your honor."

  "All right, then, for all practical purposes, we're finished with the seven-oh-seven. All that remains is for me to render my decision, which I've prepared and plan to deliver at the proper time. For my own peace of mind and, frankly, to preserve the integrity of the court, I wanted to share that tentative decision with all of you now, before we go out on the record."

  He replaced his glasses then and opened the document that was on the desk in front of him. "The court finds that the minor was seventeen years old at the time of the alleged offense and that the offense falls within Welfare and Institutions Code 707(b). The court finds as follows: the minor is not a fit and proper subject to be dealt with under the juvenile court law."

  He looked up, noted Hardy's and Wu's looks of frustration and defeat, went back to his text. "The court finds that the minor is not amenable to the care, treatment and training programs available through the juvenile court based on the degree of criminal sophistication exhibited by the minor for the following reasons: the minor eluded a vigorous anti-weapons campaign at his school for several months before the alleged incident, and carried a loaded gun concealed on his person . . ."

  For the next several minutes, Johnson didn't look up as he read from the notes in his folder, finding that Andrew "is amenable to the care, treatment and training programs available through the juvenile court" for the second, third, and fourth criteria, and giving his reasons. So Wu had won three out of four, Hardy was thinking, not that it mattered one whit for their client.

  "As to the fifth criterion," Johnson finally intoned, "the court finds that the minor is not amenable . . . the minor is an unfit subject to be treated in the juvenile justice system. The matter is referred to the district attorney for prosecution under the general law. The matter shall be set for arraignment in the adult court."

  When he finished, he took a breath and removed his eyeglasses. "That's where we are," he said. "I wanted all of you to understand my position on the law, my reasoning and my ruling. That will be the ruling of the court."

  Now he looked to each of the three lawyers in turn. "However, in view of Mr. Hardy's representation, and in the interest of justice and simple fairness, I'm not going to issue this ruling today. I'm going to take the matter under submission for one week, during which time you, Mr. Brandt, will discuss the matter with the district attorney and determine if he chooses to pursue the matter further, and to what degree. In the meanwhile, since Mr. Bartlett remains a minor until I formally declare him to be an adult, I intend to release him from his detention into the care of his parents until next week when I deliver my ruling."

  Brandt, having won the hearing on its merits only to have the victory snatched from him, raised a hand and spoke. "Your honor, with respect, you can still issue your ruling today. The DA will be reviewing the case as a matter of course and will—"

  But Johnson stopped him. "You're forgetting the special circumstances, Counselor. The minute I declare Mr. Bartlett an adult, he remains in confinement, and that doesn't seem right to me. There's no bail by statute in a special circumstances case. If I say he's an adult today, he goes downtown today. And it's my feeling that he's already been locked up too long. If he's innocent, one day is too long."

  "Thank you, your honor," Wu said.

  But he turned on her, too. "There's nothing to thank me for, Counselor." He tapped the document on his desk. "This will be my ruling. It goes into effect when I deliver it, one week from today. Meanwhile, your client doesn't leave the jurisdiction. He's under his parents' care and guidance the entire time. There will be a number of strict conditions. Is that clear?"

  "Yes, your honor. Of course."

  "Of course." Johnson was clearly sick of the whole thing. He looked at his watch and stood up. "If there are any more comments, I'd prefer not to hear them. My decision is my decision and it's final. Now I'd like to go out and put it on the record."

  33

  Jason Brandt wasn't as disappointed as he'd let on with Johnson's decision on Andrew Bartlett. In fact, as he listened to Dismas Hardy's representation to the court that morning, he'd realized that if even most of what his opposite number in the courtroom was saying proved to be true, he could be prosecuting an innocent man. And since it was all verifiable, why would Hardy lie? Then when the judge had ordered him to confer with the DA on the further disposition of the case, it removed any onus from him. He'd won the 707 hearing on its merits and that was the task he'd been assigned.

  Now that was over.

  Johnson had made his decision and anything he and Amy Wu might do outside of the courtroom would be irrelevant to the case. Technically, he should possibly wait to see her until the ruling next Wednesday, but there was just no way he was going to do that, not now. He'd take the risk, and if one of his bosses didn't like his timing, he had an answer that he knew would fly— they hadn't started until after the ruling. They would not be adversaries in the courtroom again.

  But after they'd adjourned at the YGC, he'd had no opportunity to talk with her in the courtroom, set up a time they could get together. She, Hardy, Andrew and the Norths had been celebrating quietly around the defense table, and he had caught her eye for an instant— a message or a promise— then left by the back way. He'd called Jackman's office and Treya told him she could squeeze him in at a little after four o'clock, which meant he couldn't waste a moment, so he didn't.

  When Brandt came in, Jackman stood, came around his desk and shook his hand, which Brandt took as a sign of enhanced recognition and even of approval. They sat on either end of the low settee in front of the coffee table. Jackman asked him what was so important and Brandt gave it to him in under five minutes.

  "We can check this out pretty quick," the DA said in his quiet tone. He stood again and went over to the door. "Treya," he said, "is there a chance you could get me in touch with your husband right away?"

  "I'll give it a try."

  "Just transfer him to my line." Jackman came back into the office, went back to his desk, and the telephone rang once before he picked it up. "Abe. We've had a question come up here. There's a young man in my office, Jason Brandt, who's been prosecuting the Andrew Bartlett case up at
the YGC. Mike Mooney and . . . Right. That's right, it's Hardy's case, too . . . You are? Well, the judge has postponed his ruling until he knows more. I'm thinking you might be able to tell Mr. Brandt what you've got and he can report back to me . . . Right, on Mooney, too, but all of it. Thanks."

  Jackman hung up. "You know where you're going?"

  "Yes, sir."

  "Then go."

  * * * * *

  In the improvised computer room next to his office, a harried and exhausted Glitsky was bringing Brandt up to date between taking the reports of his people in the field and answering the questions of his workers. The clock on the wall read 4:40.

  "I know. Hardy has already left me three messages about the slugs at Mooney's, but I've got other priorities at the moment. We don't have any of those slugs. We didn't find any the first time. I don't think it's likely we'll find them next time we look either."

  "But do you think, personally, that Mooney was one of the Executioner's victims?"

  Glitsky's lips pursed. "You don't?"

  "I don't know."

  "Well, start knowing. I'm not saying we can prove it yet, but it's a dead lock as far as I'm concerned."

  "And Bartlett?"

  "I don't know from Bartlett," Glitsky said. "Wrong guy, wrong place, wrong time."

  Phones were ringing all over the office, and somebody from outside in the reception area called in, "Chief, your line."

  Glitsky picked up the receiver, then pulled a pad over and wrote, furiously taking notes. "How many times?" he said. "What's the name? Anybody see him? Enough for a composite? Do they video the visitors down there?" Glitsky's mouth went tight. "Yeah, that sounds right. Okay. Keep checking."

  He hung up, raised his voice. "Everybody listen up," and the other noises in the room stopped. "That was Darrel Bracco down at Corcoran. Lucas has got a son, Ray Welding, visited him in prison forty times in the last three years. No address, no listing. Bracco's requested the phone calls from the pay phone at his father's block and they're going to fax it up direct. Sarah," he turned to Evans, "you pick three people. I want every four one five, four oh eight, five one one, six five oh"— all the telephone area codes for the Bay Area—"every one reversed for names and addresses. This might be the guy."