The Hearing

by John Lescroart

  'Nobody's saying that, Rid.' Glitsky again.

  'No? That's funny. 'Cause it sounds like you're saying I made him lie, then tried to hide it off tape.'

  'No. Only that he should have been cleared by the paramedics and I ordered otherwise.'

  'Uh-uh, no.' Banks wasn't having it. 'You didn't sweat him. I did. It's me on the tape. And it's a righteous confession.'

  'I don't think so,' Glitsky said. 'A good chunk of what he said is just wrong. He said he crossed over to her. After she was shot. He remembered she was this lump on the ground.'

  The lanky coroner figured it was time he got on the boards. Meeting the eyes of the men around the table, he stretched out his arms and cracked his knuckles, inserting his laconic drawl into the silence. 'She was shot with the gun right up against her hair. There wasn't no abrasions on her knees, legs, anywheres. She was laid down gentle as you please.'

  Glitsky, the voice of reason. 'Burgess was drunk as a lord, Ridley. If he'd tried to hold her up and let her down easy, he'd have fallen with her.'

  'Maybe he did,' the inspector replied. 'He fell under her, broke her fall.' He turned to Strout. 'No abrasions then, am I right, John?'

  Strout cast a glance at Glitsky. 'It could have happened.'

  Banks continued. 'I really don't see the problem, Abe. I didn't put a gun to this kid's head and make him talk.'

  'He wasn't in withdrawal? He wasn't just agreeing to what you said?'

  'Maybe. I don't remember exactly, it was a long day. But either way, nobody's gonna prove it. And even if he was, what of it? He could tell the truth and get the interrogation over with. So for once in his life the scumbag made a good decision.'

  'The details are all wrong.'

  'So his brain's fried. He gets things wrong. Big surprise. Let a jury work it out. We got plenty, more than enough to charge him. Isn't that what we do?'

  Glitsky was unwilling to give it up. 'We can't get him this way. That's all I'm saying.'

  Banks shook his head. 'Burgess was there, Abe. He took her stuff, he had the gun, he fired the gun, he fucking said he did it, all right? Jesus. So he changes his story when he starts feeling better? Who wouldn't?'

  Batiste cleared his throat. 'Abe?'

  The lieutenant raised his eyes.

  'It's admirable that you wanted to protect your men when you thought you'd pushed them to excesses, but I don't see evidence that anything went too far here. I'm coming down with Ridley. Going back to Pratt at this point would be pointless. We're going to stand behind the confession. We're going to stand together on it…' He let that hang, the message clear.

  Glitsky, defeated, scanned the faces around the table. 'Well,' he said, 'I want to thank you all for coming.'

  11

  Hardy checked his watch – 8:35. Cole was already supposed to have been delivered. After his experience at the jail three days ago, he was finding himself challenged in the patience arena regarding the jail's employees. But here in the hallway behind the courtrooms on the second floor of the Hall of Justice, he knew that five minutes was a unit of time that had no real meaning. Until somebody was at least fifteen minutes late, they were on time, so he cooled his heels outside the holding cell behind Department 11 and tried to ignore the show, which – given the traffic – was not all that easy.

  The hallway, which ran most of the length of the building behind the courtrooms, hummed with life or, more precisely in Hardy's view, with lowlife. Defendants in their orange jumpsuits went shuffling and clanking along – handcuffs and sometimes chains – escorted by their bailiffs. This was the morning delivery from the jail next door to the courtrooms here, a steady and depressing parade.

  It reminded him of nothing so much as a zoo, the inmates chained and moved from one cage to another by their handlers, who only forgot the dangerous nature of their charges at their own peril. Hardy had been here a hundred times, and it never failed to depress him, because in fact he knew that every one of these defendants was a human being who'd been born with rights, dignity, hope. Even, in most cases, a mother and perhaps a father who had loved them, at least for a while. Now, here, they were reduced to little more than animals – to be caged and controlled.

  Sadly, he realized that this was pretty much the way it had to be if the system was to handle them. Because he didn't fool himself – nearly every inmate passing him had lost their hope, abandoned their dignity, forfeited all but their most basic rights.

  He wished they'd hurry up and deliver Cole. He'd be ready for Prozac himself by the time his client arrived. So he leaned against the cell door, then went inside and sat. He put his briefcase on the concrete bench, intending to take the opportunity to get some paperwork out of the way, keep his attitude up.

  But it wasn't to be.

  He saw the whole thing, since he was just checking the holding cell for Cole's arrival one last time when it began. He heard the bell of the elevator and as the doors cracked open, the sharp command. 'Move it! Move it! Now!' From the tone, something was already going very wrong.

  Looking over, he was watching as something huge filled the elevator door opening. Two bailiffs stood slightly behind and to either side of a gigantic Samoan. The man probably weighed three hundred pounds. The bailiffs had no room to move.

  The man was handcuffed but not shackled. He wore a hairnet. The jumpsuit he'd been issued didn't even come close to covering the enormous flesh of his tattooed torso; the sleeves ended midway between the elbow and the wrist. Hardy didn't know what had been going on in the elevator, but by the time the doors opened, the inmate's face was a mask of rage.

  One of the bailiffs prodded him – it didn't seem to Hardy as though it was the first time – and suddenly, with a true primal scream, the man slammed himself backwards into the bailiff. Then, with surprising agility, he shifted and body-slammed the other guard into the elevator's walls.

  The two guards were both on the floor.

  'Jesus Christ!' Hardy leaped back toward the holding cell, putting distance between himself and the Samoan, who was exploding out of the elevator in his direction.

  But everyone on the floor had heard the scream, and now doors were opening all over the place, alarms going off, bailiffs appearing from courtrooms, judges from their chambers, other inmates – already under escort – starting to get into it.

  A klaxon sounded and voices were yelling, 'Lock it down! Lock it down!'

  The Samoan had obviously been in the hallway before and knew just where he wanted to go. He broke left in a shambling run, taking out another bailiff who was, stupidly, trying to pull his radio and perhaps try to fight it out in a hallway jammed with humanity.

  Stopping the man was going to be a problem.

  The Samoan had reached the end of the hall, bailiffs and other inmates hugging the walls lest they be crushed in the rush. But there was no real way out. The same alarm that sounded the klaxon effectively closed off the corridor, automatically locking the double doors at the end of it. By the time the Samoan realized he couldn't open them and turned again for another run at the hallway, three bailiffs stood in his way, as well as three uniformed officers with their guns drawn.

  Hardy heard another scream, an anguished and rage-driven cry. Other bailiffs and cops were backfilling behind the original five until, in under another minute, a phalanx had formed, effectively sealing off any possibility of escape.

  The Samoan turned back to the locked doors. Turned around again, held his cuffed hands out in front of him. 'Shoot me,' he screamed. 'Please, shoot me.'

  Because of the incident, Cole was even later. He told Hardy that they'd picked him up at the hospital during the night, and this had obviously disturbed his beauty rest. In his orange jumpsuit, with his slack posture and unkempt hair, the boy appeared malnourished and pathetic. But Hardy thought his eyes were clearer than they had been the day before. That wasn't saying much, but it was something, and this morning Hardy would take whatever he could get.

  He was still shaken by what he'd witn
essed. A little more critical mass of inmates and it would have been a riot. Another rush by the Samoan and he would have been shot dead. Instead, he had finally gone terrifyingly quiet. He sat on the floor and let them come and shackle him and take him away, belted down to a gurney.

  Cole sat on the concrete bench. Hardy had already done enough time on the damn thing this morning – he was standing now, leaning back against the door.

  Because the morning's routine had been so violently interrupted, they weren't going to get much time to work out any kind of strategy – but Hardy wanted to get at least a few things straight if he was going to defend this boy. The plea. Bail. Money. Timing issues.

  But again, it wasn't going to be that simple.

  'What's waiving time mean?' Cole asked after Hardy had told him that he was going to have to do just that.

  To Hardy, this was merely a logistical detail. Cole had an absolute right to a speedy trial. In practice, though, defendants very rarely wanted one. The conventional wisdom was that it was always to the defendant's advantage to delay. Delay put off an eventual verdict, and until a verdict was rendered, you were presumed innocent, a small detail but a critical one. Delay also provided the opportunity for key witnesses to get run over by a bus or disappear or forget what they had once clearly remembered, thereby strengthening your case. The victim or the family of the victim might lose emotional fire, the need for revenge or, if the delay was long enough, sometimes even closure. The cop who arrested you might get another job. DA priorities could change and you could get offered a better deal to cop a plea.

  The possibilities varied, but the general rule held true: a continuance is half a dismissal. Delay was a good thing.

  Hardy tried to explain this to Cole. 'The courts are so backed up that no judge wants to assign a preliminary hearing in ten days, so we just say we're OK with putting it off for a few months…'

  'A few months?'

  'Maybe. Longer if we can.'

  Cole was shaking his head. 'And I stay in here? No way. I can't do that.'

  'I hate to break it to you, Cole, but you have to do that. You've got a DA who's talking death penalty to help her get elected, so at the very least we want to put off the trial until after the election, which is next November, nine months. At least.'

  But Cole was still shaking his head, frowning, struggling with it. 'I can't stay in here for nine months,' he said. 'I'd die.'

  'You've got a lot better chance of dying shooting smack for nine months out on the street.'

  But this fell on deaf ears. 'No.'

  'Cole, listen-'

  'I can't be here for nine months! Do you hear me?'

  It was a violent outburst, and after the morning's earlier events, it got people's attention up and down the hall. A bailiff was outside the cell before Hardy had any time to react on his own. 'Everything all right here?'

  After assuring him that it was, Hardy watched the man move uneasily off, then turned back to Cole. 'If you go to trial now, Cole, with the city still pretty inflamed over Elaine's death, some of the jurors will undoubtedly-'

  'I can't,' Cole interrupted. 'I just can't. My mom says you can get me off.'

  'I haven't even talked to your mother yet, Cole. And I can't get you off in ten days. If nothing else, I'll need more time just to decide how I'm going to approach the damn thing.'

  'Just say I didn't do it.'

  'Did you do it?'

  He shrugged.

  Hardy got a little short. 'Because you've already said you did on tape, in case you don't remember. That's going to take some undoing.'

  'You can undo it as well now as you can in nine months, don't you think?'

  'No, I don't.'

  The back door to the holding cell gave into the courtroom, and now that door opened and a bailiff appeared. They had called Cole's case first. 'Let's roll it out, boys. Showtime.'

  Hardy gave his client a last look. 'We'll continue this later.' He stepped back and let Cole pass in front of him, out into the courtroom.

  At Cole's appearance through the door, there was an audible rise from the gallery. Hardy, frustrated nearly beyond endurance, nevertheless gave his client a friendly upper-arm squeeze and urged him forward.

  As they passed the prosecution table, Gabe Torrey motioned for Hardy to stop, and he let Cole go on over to the other side with the bailiff. He looked again out into the courtroom. More than a decent crowd was on hand, and it seemed restless.

  Hardy knew Torrey from half a dozen other dealings, and he didn't like him. He considered the Chief Assistant DA pompous, petty, and political, to say nothing of under-prepared and officious. Now he would be talking death penalty and other similar nonsense, and Hardy knew it was going to get ugly, probably sooner rather than later.

  Still, they'd never before crossed the line into hostility, and he saw no reason to go there now.

  Torrey put out his hand in greeting and Hardy took it. 'I just wanted to give you a little heads up, Diz. You probably heard we want to move this one along due to Elaine's standing in the community. There's a lot of outrage…'

  Hardy listened with half an ear. He noticed the gallery again. It really was humming. Cole was turned around at the defense table. His mother was leaning over the rail, trying to talk to him, but he, too, kept his eyes mostly on the prosecution's side of the gallery, which projected a true sense of menace. This was unique in Hardy's experience – there were people in this room who hated Cole already, and he felt it.

  Torrey had finished the self-serving part and was getting down to his point. '… with the confession on tape and all, you know I could get a grand jury indictment in five minutes, so if you're inclined to ask for a long delay, you should know I've scheduled the grand jury for next Tuesday. Unless, of course, you decide not to waive time. Then we'll do the hearing in two weeks as the law provides.'

  With a sick feeling, Hardy realized that Torrey was right. There were two ways by which a case got scheduled for trial. There could be a preliminary hearing to determine if the evidence was sufficient to bring to trial. Or the grand jury could come to the same conclusion and issue an indictment.

  Hardy wanted to delay, but his client didn't, wouldn't. Torrey was telling him that he would seek an indictment and potentially an even earlier trial date if Hardy tried to stall on the preliminary hearing. Actually, he realized, Torrey might not understand it completely – his strategic grasp of things lawyerly had always seemed weak – but he was doing him a favor by letting him go for a preliminary hearing at all. He could indict at will. If Hardy didn't waive time, he would get at least another ten days to prepare for the hearing, maybe even get his discovery – the evidence in the case – a little earlier.

  But ten days! It was an impossible joke. Still, better than a grand jury indictment.

  And maybe in that time he could at least convince Cole that it would be in his best interests to agree to a delay before they went to trial.

  But either way, this thing had just jumped to the fast track, where any number of disasters were more likely to occur, and where the damage from high-speed impact was likely to be that much greater.

  Hardy forced a casual smile. 'It never crossed my mind to waive time.'

  'Cole Burgess.' From his bench, Judge Timothy Hill gave it the dramatic reading. The judge was an ancient patrician. Wispy white hair, combed back over his ears, clung close to a bony skull. His skin was parchment stretched over long bones and his robe hung off him like a shroud. The physical look, combined with an utter lack of personality, had earned him the nickname of the Cadaver. But today with the full house, he possessed if not a youthful exuberance, at least a detectable pulse. 'You are charged by a complaint filed herein with a felony, to wit, a violation of Section 187 of the Penal Code in that you did, in the City and County of San Francisco, State of California, on or about the first day of February, willfully, unlawfully, and with malice aforethought murder Elaine Wager, a human being.'

  Hardy was standing in the center of the
courtroom next to Cole.

  At the prosecution table, in a highly unusual appearance in an actual courtroom, Sharron Pratt had entered at the last second and taken a seat next to Gabriel Torrey. Judge Hill nodded to his clerk, who began to read out the special circumstances that could make this a death penalty case.

  Driving downtown, Hardy had tried to predict what Pratt would produce on this score, but she proved more creative than he was, and he only got one out of two, a killing in the commission of a robbery. The one Hardy hadn't guessed – because it was so grossly incorrect – was a hate crime, in that Elaine Wager was black and Cole was white. And when he heard it, he had to speak up. 'Your honor!'

  The words seemed to strike the Cadaver with a physical force. Clearly, he did not expect any objection during the reading of the complaint. Straightening to his full height in his chair, he frowned down into the bullpen. To what, Mr…' Shuffling some paper. 'Mr…'

  'Hardy, your honor.' He was willing to risk the judge's displeasure. This idiocy could not go unquestioned, and Hill might as well get used to it early. 'With respect to the second special circumstance, your honor. Regardless of who committed it, there is no race or bigotry issue associated with this crime.'

  The Chief Assistant DA was already on his feet. 'I'm shocked to hear Mr Hardy's characterization of the murder of a black woman by a white man-'

  'Your honor, that's absurd. Just because someone of one race kills a person of a different race, we can't assume race is the motive.'

  But Torrey knew his constituency. 'Any time a black person is killed in a white neighborhood, race is an issue.'

  Hardy came back at him. 'Union Square is not a white neighborhood, your honor. It's downtown.'

  The Cadaver scowled down from the bench. 'Enough! I know where Union Square is, Mr Hardy. Have you got a problem with the complaint? File the appropriate motions. Meanwhile,' he looked at the prosecution table, 'is this a capital case, Mr Torrey?'