The Hearing

by John Lescroart

  'Yes, your honor. The People seek the death penalty.'

  Hill nodded, keeping it moving, snapped, 'Mr Hardy, how does your client plead?'

  He and Cole hadn't really formally gotten around to this, but he nudged his client and the young man looked up, very much aware. He didn't hesitate at all. 'Not guilty, your honor.'

  An immediate and angry buzz filled the room. Hill seemed to have been expecting it. Certainly, he made no attempt to gavel things to silence. But the electricity created an opportunity, and Hardy took it to turn around and check out the gallery again.

  Jeff Elliot, whose column in the Chronicle had already significantly raised the level of dialogue around this case, had gotten his wheelchair up to the front, and sat at the end of the first row, next to Dorothy. Significantly, Hardy thought, Jody Burgess was a couple of seats away, not right next to her daughter, the intervening spots filled with reporters.

  To Hardy's left, the prosecution side of the courtroom, particularly, continued its foment. Three-fourths of the gallery on that side were people of color. Hardy was again struck by the thick, nearly palpable sense of outrage he felt from Elaine's friends and colleagues. And beyond that contingent, at least a dozen young people – Hardy thought they must be students from Elaine's classes – were turning and squirming in their seats, reacting with an obvious disgust and fury.

  In the front row, Hardy recognized a couple of assistant DAs and the homicide inspector Ridley Banks. There was Clarence Jackman, famous lawyer from Elaine's firm, sitting next to a striking dark woman who was staring at Hardy with a smoldering malevolence. Next to her, a very handsome, early middle-age white man sat back in his seat, a statue, hands folded in his lap. Who was he, Hardy wondered?

  Glitsky hadn't made it down from the fourth floor.

  Finally, suddenly, Judge Hill had let it go on long enough. Perfunctorily, he tapped his gavel several times and waited for the noise to subside, then spoke to Torrey. 'The People seek to deny bail?'

  'Of course, your honor. This is a capital case. There can be no bail.'

  Hardy spoke up again. 'Your honor, if it please the court-'

  The Cadaver was losing patience with these interruptions. This was supposed to be, after all, a simple administrative procedure. He snapped out a response. 'There is no bail in a capital case, Mr Hardy.'

  'Yes, your honor, I'm aware of that. But again, there is no way this should be a capital case, or even a special circumstances case.' Hardy took a deep breath, then forged ahead. 'This charge is a clear case of politics with Mr Burgess as the pawn. Women get raped and murdered and this DA doesn't allege specials; policemen get killed, no specials. Now, in an election year, all of a sudden we get not just specials but a request for death. They want my client to die, your honor, so Ms Pratt can make a last shoddy attempt to hold on to her office. And it stinks.'

  'Your honor, please!' Torrey was out of his chair, his voice at full volume, and it served as a prod to the gallery, which responded with another outburst, the anger welling all around.

  But this time, perhaps sensing a rising tide, Hill decided he'd better take control, and slapped his gavel hard three times in rapid succession. 'There will be order in this court or I'll have the gallery cleared.' He barely paused, brought his gaze back to Hardy, spoke sternly. 'Now, counselor, if you want to object to the specials, write your motion, but for the moment, there they are. And bail is denied.'

  But Hardy's blood was up now, and he found himself unable to let it go. 'In that case, your honor, before we go any further in this game of political football, I'll also be making a motion about the so-called confession that the prosecution unethically keeps putting in the newspapers.'

  This really set off the crowd, with several identifiable explosions – 'Hey, he confessed!' 'The guy did it!' – punctuating the general uproar.

  The gavel banged away. But Hill's real ire had become directed at Hardy. 'I'm warning you, counselor. This is not the appropriate time or place. Take it up at the prelim.'

  But it was as though Hardy didn't hear him. He'd had enough for today already, and his patience was at an end. He raised his own voice over the hubbub. 'Your honor, Mr Burgess was held for hours before he was charged, he also was not adequately apprised of his right to counsel-'

  'That's a black lie!' Ridley Banks was up in the first row. 'We Mirandized him as soon as-'

  'He was drunk and barely coherent, your honor! The tape of his interrogation shows it clearly. There's no way this tape will ever be played for a jury. The prosecution has no right to try and prejudice prospective jurors by even calling it a confession.'

  Now in the gallery, things were truly getting out of hand. Everyone seemed to be talking, yelling, swearing. Hardy caught a strong whiff of sweat, and couldn't say if it was Cole and his fear or the collective scent of the mob coalescing behind him.

  'Sit down, everybody!' The Cadaver had finally come to life, bellowing. 'Down in the gallery.' He slammed His gavel again and again. 'Bailiffs!' The three men in uniform appeared from their various posts around the wall and began moving up to the bar rail.

  Ten minutes later, the arraignment was over. Hill called a stop to the bailiff's slow charge as they reached the bar rail. He really didn't want to have to try and remove nearly a hundred people by force. Not only would that be a bad precedent for his fellow judges, he sure as hell didn't want the word to get out that Judge Hill couldn't control his courtroom by force of will alone.

  The spectators in the room settled back down. Hill denied bail again and this time nobody argued with him. When Hardy didn't waive time for the preliminary hearing, the judge asked him a second time to make sure he'd heard it correctly. Then he set the hearing for ten o'clock, Wednesday, February 17, in this same courtroom.

  He ordered Cole back to the jail and called a recess.

  He stood without so much as a glance at anyone in the courtroom or gallery, and left the bench in a swirl of black robe.

  Hardy realized that he had been lucky to escape without a contempt citation. And he really hadn't accomplished anything substantive for his client, though he'd certainly succeeded in getting the judge and half the courtroom mad at him. So as the disgruntled masses filed out behind him, he stalled for time, gathering his papers at the defense table. He knew he had a gauntlet to run on the other side of the bar rail and out in the hallway, but he felt oddly satisfied. He'd served notice – no one was railroading his client without a fight.

  He felt a light touch on the back of his shoulder, and turned to face the DA. 'Mr Hardy.'

  He straightened up and nodded, set his jaw. 'Ms Pratt.'

  Hardy and Pratt had a history. A year before, he had gotten her a public reprimand from the bench for her office's cavalier abuse of the grand jury. She, in turn, had nearly filed criminal charges against Hardy for insurance fraud, and had directed her own investigators to explore Hardy's possible criminal involvement in the murder case he was defending. There was no love lost between them.

  And now she had another crack at him. 'That was a fairly unprofessional and tawdry display.'

  'Maybe it was.' Hardy's lips turned upward, but no one would have called it a smile. 'But I prefer that to self-righteous hypocrisy. Are you really such a political hack that you'd kill somebody for a few votes?'

  Pratt turned red at the frontal assault. 'Making false accusations about my motives will get you in trouble with the bar, Mr Hardy.'

  Hardy nodded again. 'I couldn't agree more, which is why I don't make them false. And while we're enjoying such a full and frank exchange of ideas, I'd be interested to hear about your decision to ask for special circumstances, much less death.'

  'She doesn't have to explain anything to you, Hardy.' This was Torrey. Hardy had been 'Diz' before the arraignment had begun, but now the gloves had come off. 'You go play your cheap defense tricks and when we get to it, we'll see what a jury thinks of them.'

  'What a neat idea,' Hardy said. 'That was kind of my plan, anyway. See what
a jury thinks. If it ever gets to that, which I doubt.'

  'Oh, it'll get there. That's what happens when you get a confession. The presumption of guilt goes way up.'

  'It does? That's funny,' Hardy said. 'I'd always heard it was presumption of innocence.'

  'Your man isn't innocent.'

  'Well, there you go. I guess we're back to that jury thing again, aren't we?'

  Torrey wore an expression of great disdain. 'You knew Elaine, didn't you?'

  'Yes I did.' Hardy answered without irony. 'I thought she was great. And the idea that you'd want to kill somebody in her name, that makes me gag.'

  Torrey shook his head in disgust. 'I just don't see how you can live with yourself.'

  'It's easy,' Hardy replied. 'I've got a really good personality.'

  'Let's go, Gabe.' Sharron Pratt all but pulled him by the arm. 'Oh, and Mr Hardy? If I were you, I'd go easy on accusing me of playing politics with a man's life.'

  'So what would you like me to call it?'

  She ignored that. 'If you keep it up,' she said, 'I'm not going to be disposed to drop it when this is over. And you're going to be very sorry.'

  Hardy took that in soberly, then nodded thoughtfully. 'You know, that's sounds an awful lot like a threat. Are you threatening me?'

  She glared at him levelly. 'You take it any way you want.'

  'All right,' he said. 'I'll take it as a threat. And as such I'll be passing it along to the Bar Ethics Committee. Since we started here talking about ethics, that'll bring us around full circle.'

  Torrey couldn't resist a parting remark. 'You wouldn't know an ethic if it bit you on the ass.'

  For a long moment, Hardy gave him a flat stare. 'Whoa. Clever. I've got to remember that one.' He turned to gather the rest of his papers.

  Hardy decided he'd just as soon forgo the excitement in the hallway outside. He was all too familiar with the back way out – it was the way he'd come in – but his client Cole had just had bail denied. Even when this was expected, and it had been, it was never an easy moment.

  He caught Cole just outside the holding cell behind the courtroom. The bailiffs were busy transporting other defendants up and down from the jail, and there was another defendant and his attorney waiting in the cell itself, so they'd handcuffed Cole to the elevator bars until they could get to him, which would be when it was.

  Hardy stood next to him. 'We'll keep trying on the bail,' he said. 'It still could happen.'

  'So what do I do between now and the preliminary hearing?'

  'We'll have to talk a lot. Maybe see if you can remember something.'

  But Cole didn't seem to hear him. 'No,' he said, as though to himself.

  'No what?' Hardy asked. 'You're not going to remember anything new?'

  'Not that. I mean…' He rolled his eyes back and forth. 'I mean remembering something… that's not what I'm thinking about.'

  Hardy knew what Cole was thinking about – his next hit. 'That's what you ought to be thinking about, Cole. Maybe you can use the time to clean up.'

  A shake of the head. 'No. I don't think…' He stopped.

  This was foreign soil to Hardy. He'd of course been around for much of the beginning of the drug culture in the late sixties, early seventies, but as a Marine in Vietnam, and then a cop before law school, he had grown increasingly uncomfortable with the idea of illegal substances. He'd found his excitement without resort to chemicals, and then, later – when he felt the need to escape from the pain of his failed marriage and the death of his son – he gravitated to what the Irish called the good man's weakness, drink.

  But even that had never controlled him. He chose to drink, sometimes copiously, then chose when to stop.

  This boy, he knew, was in a completely different world.

  'Do you want to get out of it?' he asked.

  Cole shrugged. 'If I do, there's a program for it.' A mirthless laugh. 'There's a program for everything, isn't there?'

  'It does seem like it.' It surprised Hardy – this first moment of connection he'd felt with his client – but he felt the same way. Here in San Francisco, tolerance and understanding for every human frailty or aberration had been politicized, funded, institutionalized. Someone was being paid to help you with whatever ailed you in San Francisco, and if nothing ailed you, someone was being paid to find something that did. 'Is there anything I can do?' Hardy asked.

  Cole turned his head. 'What do you mean?'

  'I mean, if you decide to move the process along, get you counseling, like that.'

  'Probably not.' Cole let out a breath. 'If it's going to happen, it falls to me.' He tapped his heart. 'In here.'

  Hardy knew that this was true, but it was still good to hear Cole say it, to acknowledge that his fate was to some extent his own responsibility. Maybe he wasn't completely lost after all.

  'So what happens next,' he asked, 'in the law world?'

  'Next I file a few motions. The stuff I was talking about in there.' He pointed at the courtroom door. 'The procedural problems, these special circumstances.'

  'Will that really work?'

  'In what sense?'

  'I mean, if they didn't read me my rights-'

  Hardy narrowed his eyes. 'At the hospital the other day, you told me you didn't remember if they did. You thought not. Now you're saying if.'

  He corrected himself. 'No. They told me I wasn't arrested for the murder so I didn't need a lawyer yet. They were just questioning me because I was in the alley and I ran.'

  'So you do remember that?'

  'That was after they'd kept me for hours. I kind of woke up halfway through things.'

  Hardy wasn't thrilled with the constant shifts Cole's story took, but he saw no advantage in fighting about that now. 'Well, if that's really what they said, then you might have pulled yourself a break. We could get it tossed.'

  'I'll tell you one other thing, though. About those special circumstances.' He shuddered involuntarily. 'I sure as hell didn't kill that girl because she was black.'

  The world was suddenly still. Hardy sharpened his tone. 'Then why did you kill her?'

  'What?'

  He snapped it out harshly, under his breath. 'Why did you kill her, if it wasn't because she was black?'

  After he'd seen Glitsky's videotape and reasoned things out for himself, Hardy had come to accept at least the possibility that Cole hadn't been the agent of Elaine's death. So he'd decided to stay with the case. But now here – apparently – was a second confession. Unsolicited, uncoerced.

  Cole's face registered confusion at the rapid change in Hardy's demeanor. From protector to inquisitor in the blink of an eye. He twitched. 'Hey, come on, what? All I said was it wouldn't have been because she was black.'

  'Wouldn't have been? Or wasn't?'

  If there was a difference, Cole didn't seem to understand what it was. He strained to come up with something. 'I'm saying black, white, brown. Who cares? It wouldn't have been a race thing is what I mean. I don't even think like that.'

  Hardy leaned in close, and this time the sweat was his client's. 'You just admitted again that you killed her. Don't you understand that?'

  A deer in headlights, Cole was shaking his head. 'I don't know. I didn't. I said that?'

  'You don't know if you killed her?'

  Finally, a rise. 'I don't remember killing her. I told you that. I don't think I killed her, but I might have… if I shot the gun.'

  'You might have! Cole, listen to me. You just said you didn't shoot the girl because she was black. Those were your exact words.'

  But he was shaking his head from side to side, side to side. 'See? No. That's not what I meant.'

  'OK, tell me.'

  He sighed deeply, did something with his hands that caused the cuffs to rattle against the bars. Hunching his head down into his shoulders, he cleared his throat, spoke in a voice barely above a whisper. 'Look. If I was ever going to kill somebody, which I wouldn't, it wouldn't be because they were black, OK? So if I killed this
girl-'

  'Elaine.'

  'Yeah, Elaine. If I killed her – which I don't remember, so it's possible maybe I didn't, too – that wouldn't have been the reason.'

  'But if you don't remember killing her, why did you admit that you had?'

  Cole rolled his eyes. 'Didn't we already go through this? I told you. I was coming down so hard-'

  Hardy reached over, put a hand on his shoulder briefly. 'Stop, just stop.'

  But he couldn't do that. 'You know, man-'

  'Cole, call me Dismas, would you? Or Diz.'

  'OK. But I also don't remember not killing her, I just don't. I don't remember the gun, how I got the gun…' The voice trailed off.

  'Did you find it by the body? On the street, maybe?'

  'It seems like.'

  'Before or after you saw her?'

  He closed his eyes, trying to bring it back. 'I don't know. It seems like before, because after… I mean, there was no time after, right? I'm leaning over her and the cops came.'

  'And you remember that?'

  Cole grimaced, the effort to recall out of his reach. He shook his head hopelessly. 'Not really.'

  Hardy leaned back again. He had lived much of his adult life as a bartender and had great respect for the effects of alcohol, but the kind of total blackout that Cole seemed to be describing was far beyond that. 'Cole,' he asked gently, 'what do you remember after you picked up your bottle of whiskey?'

  The young man raised his eyes. They had become glassy. 'I don't know, man. I just don't know.'

  12

  Taking the back steps, Hardy made it unmolested up to the fourth floor, down the long hallway, into the homicide detail. Four inspectors looked up from their paperwork, but none of them ventured any kind of greeting. Glitsky's still-pristine white door was closed again, but this time there was light behind the shade. 'Somebody in with the lieutenant?' Hardy asked the room.

  A mute chorus of shrugs, so he knocked.

  'It's open.'

  He turned the knob and stuck his head in. 'Actually,' he said, 'it was closed.'