The Hearing

by John Lescroart

  No doubt Frannie had been mouthing the same truths for the past hour and gradually, getting them from her dad as well, they were beginning to sink in. She was perking up slightly. 'I don't think I'm going to want to commit suicide. Do you?'

  'No. Of course not.'

  'But they made it seem like if you have a boyfriend and he breaks up with you, then that's one of the things to do.'

  She brought a little fist down on her thigh. 'But that would be so stupid. I mean, I never would have thought of that, even if I ever did have a boyfriend to begin with.'

  'You're right,' Frannie said. 'That would be stupid.'

  'But how great that they teach this and give everybody the idea.' Hardy couldn't keep the disgust out of his voice. He pulled his daughter closer. She wrapped her arms around him. 'Bad things happen sometimes, Beck, but not as often as you think. Not even close. You don't have to worry about all of them, or even any of them.'

  'I know,' she said. 'Worrying doesn't do any good, ever. You always say that.'

  'I do, you're right.'

  'Your father's right, Beck. It really doesn't do much good.' Maybe, they hoped, if she heard it enough from people she trusted, she'd start to believe it.

  Suddenly Hardy remembered the talk he'd had with Jeff Elliot yesterday. 'Do you know anybody who's ever been hit by lightning?'

  The Beck didn't know where this was coming from, but she was curious. 'No. That almost never happens.'

  'How about you, Fran? No? Me, neither. Now, you know all these things you're learning about in school? Well, guess what?'

  Vincent was standing at the door, bored beyond words with all of this. 'Are you guys done? Are we having dinner tonight? I'm so starving.'

  Hardy wanted to check his messages before he turned in for the night. He hadn't been at his desk since before he went down to Jupiter to see Dash Logan, and there was enough hanging fire that he knew he wouldn't get to sleep if he didn't.

  His answering machine gave him the time and date of his messages. The first two calls came in within five minutes after he'd left his office for the day, and he clenched his teeth at the perversity of fate. He might even still have been downstairs, sharing a few end-of-the-week bon mots with the lovely Phyllis.

  The first call was from Jon Ingalls, wanting Hardy to know that he'd remained unlucky with witnesses. Jon left his number, telling Hardy to call anytime. What was on tap for tomorrow? He'd be waiting by the phone.

  The next message was from Jeff Elliot: 'I wanted you to be among the first to know that I just resigned. If they want me back, and they will, they'll have to beg and then pay me more for all the trouble they put me through. Also, anent our other recent discussion, something did finally occur to me. That connection you were talking about between Torrey and Dash Logan – I might have one. There's a private investigator named Gene Visser. You might know him. He used to be a cop.'

  Hardy felt a small surge of electricity. At Sam's the other day, Visser's name had come up as the heavy who'd tried to blackmail Rich McNeil.

  Jeff was going on. 'When Torrey started at the DA's, Visser worked for him almost as his own personal investigator. They were pretty tight. I don't know if they still are, but I have seen Visser and Logan together a lot. So if Torrey and Visser still talk… anyway, for whatever it's worth.'

  Hardy thought it might be worth a lot, but he didn't get any time to celebrate. The last call, from Torrey himself, was made at four forty-one – about ten minutes after Hardy had left Logan at Jupiter.

  Torrey's message was that since he and Hardy were getting to prelim on Cole Burgess next week, they were both going to be swamped. So he was just looking through some other prosecutions that were coming up through the office in the next few weeks and happened to notice Hardy's name on one of them as the attorney of record. It seemed to Torrey that this case, People v. McNeil, was one where a judge was likely to try to get the parties to settle so it wouldn't clog up the docket, and certainly neither Torrey nor Hardy needed the extra hours when their plates were so full. If Hardy wanted to settle the case, he could probably save his client both time and aggravation, and Torrey would be happy to consider alternatives. At least the two of them should discuss it, see what they could work out.

  The small surge of electricity had turned to an insistent hum.

  Frannie came into the room as he was hanging up. She came up behind him, put her hands on his shoulders, and dug her thumbs into the muscles along his backbone. His head fell forward as though he'd been clubbed. 'Don't ever stop,' he said.

  She kissed the top of his head, massaging around his neck. 'You know why the camper got a migraine?' she asked.

  'No, and I don't care.' His eyes were closed. He was in heaven.

  'Too tense.' Then, relief and fatigue in equal parts. 'They're both down and out.'

  Hardy straightened up. 'Did you double-check for molesters lurking outside the Beck's window? Maybe we should do nightly drills, the best ways out of the house just in case-'

  She brought a palm up against his head. 'Stop.'

  'She strikes him,' he intoned. 'A clear case of domestic violence, spousal abuse…' He turned back to her, took the hand that rested on his shoulder. 'Sorry. I know, enough. I'll be down in a sec. Two phone calls. Short. Promise.'

  'I'm pouring wine and will start without you. You've been warned.'

  'Fair enough.'

  He called Jon Ingalls back. He appeared, in fact, to have been waiting by the phone. Hardy told him about Glitsky's idea to canvass the restaurants and bars in the area around Maiden Lane. Ingalls was in, whatever it was. He'd be there. What time should they start?

  He didn't expect anything when he called Ridley again, but you never knew. Cops worked strange hours. Friday night bachelor or not, he might be in catching up on paperwork. But no such luck. The machine answered again.

  Ridley's machine was the kind that beeped before the tone. Every beep was a call, and since he'd started trying to reach him, Hardy had been subliminally aware of the increase in the number of calls. Now he sat at his desk and waited, counting through ten, fifteen, twenty.

  When the tone finally came, Hardy left his message and hung up. He scratched at his stubble, his face a brown study. In the two days since Hardy had last talked to him, twenty-eight people had left messages for Ridley Banks, and apparently he hadn't even checked them to clear his machine.

  It was almost eleven o'clock, and bitterly cold.

  Treya climbed the steps up to Glitsky's door, then stood for an eternity on his doorstep. In the dark. Unable to knock.

  Earlier, Treya had been to Raney's basketball game. After that, she and her daughter went out for a pizza. Then they went back home, where Raney got ready for bed. And Treya told her she had to go out. She'd be back in a little while.

  No light showed from within. It was still as death.

  Finally, finally, she tapped on the glass three times with her fingernail, a sound infinitesimally small, tentative, gone. No one could have heard it, but that was all she would do. She'd wait here another little while and-

  Something was moving inside the flat. The landing light came on. The door opened. Abe was barefoot, still wore his jeans, the black sweater.

  'Does your doctor want you awake this late?'

  'I'm bad with authority. You might as well get used to it. It's a little cold.' He backed up to let her enter.

  'Where is everybody? Your boys?' she asked. Then, 'What's that noise?'

  Glitsky listened intently for a minute. 'I don't hear…'

  'There. That.'

  'Oh.' His face softened. 'That's Rita. She snores sometimes. I'm so used to it, I don't even hear it anymore. She's behind that screen.'

  'She sleeps in the living room?'

  Glitsky gestured simply. It was a small place, homey, crowded with furniture. 'Only until we finish the guest wing.'

  She grimaced. 'I'm sorry, Abe. I didn't mean…'

  He touched her arm softly. 'It's OK. Anyway, the boys are
out someplace. They made me swear on my mother's honor that I wouldn't budge. I was to sit and read my book, then go to bed, preferably early.'

  'Which you haven't done.'

  'I know,' he said. 'It's bad of me. That authority thing again. It's lucky I'm a boss. When I have a job, I mean.'

  A long moment. 'So how's your book? The high seas. Good as Hornblower?'

  'I think so. It's amazing how deeply he makes you feel it all.'

  He was staring at her. She looked back at him. The silence settled.

  Glitsky cleared his throat. 'Hardy says I should just ask.'

  'What?'

  'I should just say something, like I never did with Elaine.' He hesitated. 'I can't have anything like that happen with you.'

  She waited.

  'If you don't want to hear…' He took a breath, nearly choked out the words. 'I don't know what to do with this, but I need to have you in my life.'

  Closing her eyes, she nodded. A sigh of what might have been relief. Then she looked at him again, and a smile played at the corners of her mouth. 'I was hoping that was it,' she said.

  Then they were in each other's arms. Under his sweater, beneath the burns where they had shocked him back alive, his ribs ached with the pressure.

  PART THREE

  30

  At 8 a.m. on Wednesday, February 17, Dismas Hardy stood at the head of the huge oval table in the Solarium and looked with satisfaction at his assembled team of investigators and associates. Three weeks ago, no one could have predicted this assemblage. Certainly, on the day of Cole's arraignment only two weeks ago, several people in the room would have counted themselves among Hardy's opponents. At that time, only he and David Freeman had been in Cole's corner, and even they were reluctant at best.

  Now he still had Freeman, who would continue on as Keenan counsel if the death penalty case did in fact get to full trial, which Hardy desperately hoped it would not. But there was also Treya and Abe, the three musketeers, Jeff Elliot in his wheelchair. The team had also acquired another defense attorney, who simply wanted to be part of it. This was David's friend Gina Roake, who seemed to have her own slightly inarticulated bone to pick with Torrey and perhaps Dash Logan. The case had touched a lot of nerves in this room and around the city, and now they were within hours of the opening gavel.

  The hearing was beginning with a high enough profile, and would have kept it because of Elaine's notoriety alone. Pratt's political posturing, which had led to Elliot's much-criticized reprimand and highly-applauded resignation, had raised the stakes. But the events of the last two days had brought things to a fever pitch.

  On Monday morning, Inspector Sergeant Ridley Banks, the primary officer in the case, the man whose interrogation of Cole Burgess had led to his confession, was declared a missing person. The authorities suspected foul play, but no body had turned up – Ridley was still missing. As the last person known to have spoken to Banks, Hardy came forward with the information that the inspector had told him he was going on an interview related to both Cole Burgess and Cullen Alsop.

  At this news, Gabe Torrey effectively withdrew the olive branch he'd extended to Hardy on the McNeil matter by calling a press conference covered by every print and television journalist in the city, and publicly accusing him of lying. There was no proof of this alleged phone call. This was one of the sleaziest defense tricks he'd ever seen. Hardy was stooping to new depths, obviously trying to use a missing, perhaps dead, man's voice to infer that the police had doubts about the man who'd confessed to the crime. There were no such doubts.

  At the same time, Torrey chose to ratchet things up significantly by floating his own reason why the former chief of homicide had prematurely delivered prosecution evidence to the defense – and lost his job for his efforts. It wasn't really because he had any doubts about the guilt of Cole Burgess. No, Glitsky's defection and the subsequent betrayal of his fellow officers was merely a self-serving effort to avoid prosecution for police brutality himself. Torrey had several witnesses who would testify that the lieutenant had illegally manhandled the defendant on the night of his arrest.

  In the meanwhile, the sidebars and other human interest stories kept up the heat. As promised, John Strout declared the death of Cullen Alsop an accident/suicide. An overdose on the day of an inmate's release was nowhere near unknown in the city. The police crime scene investigation unit found no evidence that supported any other finding.

  And all the while, the seriousness of the crime itself lent a gravity to the case. This was murder in the commission of a robbery, a capital case. The headlines had screamed it anew just yesterday morning; the anchors chimed it throughout the day. The DA, as she'd promised, was going to ask for death.

  Now, surveying the scene in front of him, Hardy felt that they had worked like galley slaves for the past week and done all that they could. They were not unprepared, but he remained a long way from confident. The probable cause standard of proof in a preliminary hearing, after all, was nowhere near the reasonable doubt standard of a jury trial. All the prosecution had to do was demonstrate enough to bring a 'strong suspicion to a reasonable mind' that a crime had been committed and that the defendant had committed it.

  During all the time in the past week that he'd spent organizing the efforts of the rest of the people in this room, he'd been unable to completely shake the fear that his strategy – bringing out all his guns at the prelim rather than saving them for the trial – was misguided. What, he kept asking himself, was the hurry?

  And indeed, one of the cliches lawyers spouted to their clients about why it was always better to delay – 'Look, if we put this off long enough, you never know, the cop who arrested you might die and won't be able to testify against you' – had already come to pass. If Hardy waited longer, maybe Torrey would die, Pratt would be voted out of office, someone else with a guilty conscience or a slight case of schizophrenia could come forward and admit to the crime. Anything could happen.

  But he was committed now, and finally satisfied that his decision was the right one. Jury trials brought with them their own insecurities, and they were of a subtly different nature. With a panel of citizens in front of you, the proceeding inevitably became slightly less intellectually rigorous. This was not to say that both sides didn't need to cover their factual bases, but a human element always came into play, and thus there was an opportunity to play to emotion, to feelings.

  A jury of twelve was going to hear an horrific litany of Cole's uncontested actions that night – ripping off the earrings, breaking Elaine's finger to get the ring, and so on. They would know that he'd fled from the police. He'd fired the gun – perhaps once, possibly twice. They would likely witness the videotape of the confession despite Hardy's motion. After all that, try as he might, and no matter how brilliant a defense he was able to mount, Hardy could not believe that any jury would acquit. It could simply never happen in the real world.

  So in a true sense, the prelim was Hardy's best chance. Judge Hill was a crotchety old fart, sure enough, but he was careful and conservative. Perhaps the judge's brain was not one that ascended to the exalted heights of 'decent legal mind' as Hardy's own apparently did, but the Cadaver had a reputation for intelligence nevertheless. He was also an experienced jurist. He would be fair-minded, although after Hardy's intemperate outburst at the arraignment, there might be a hump to get over at the outset. Ironically, though, Hardy thought it even possible that the judge would cut him more slack in the courtroom precisely because he was angry with him – he wouldn't want it to seem that his personal pique affected his judgments.

  In fact, he would have to give Hardy tremendous latitude. A preliminary judge would admit evidence that a trial judge would exclude as confusing or irrelevant or too time-consuming. In the name of making 'a complete record', Hardy could ask Judge Hill for almost anything and the court would at least hear it before, inevitably, holding his client over for trial. Indeed, Hardy was virtually compelled to advance every single fact and theory in
support of his client, no matter how tenuous. He wasn't going to open himself up to an appeal based on incompetent counsel that the 9th Circuit would uphold in ten years.

  The burden of proof was on the prosecution to show, affirmatively, that Cole Burgess had 'probably' committed the murder. Hardy's team had uncovered some alternatives with motives and perhaps means and opportunity that he might be able to argue with a straight face. The police hadn't investigated thoroughly enough. Too many questions remained unanswered. There were too many other possible suspects. The waters were too muddied by politics and self-interest.

  Yet Hardy knew that, even so, the judge was going to hold Cole to answer. Using the 'reasonable man' standard, even if Hill might be persuaded that a trial jury might not in good conscience reach a verdict of guilty beyond a reasonable doubt, he would still order Cole to stand trial. These charges would never be dismissed.

  Hardy more than halfway still believed that Cole had killed Elaine. If he himself were the judge in this hearing and knew everything he now knew, he would still have to say that Cole had 'probably' done it.

  The conclusion was all but foregone, but in a death penalty case, Hardy had nothing to lose. And this was the moment for the battle to be joined.

  One of the surprising and wonderful things about San Francisco is that summer is not a real season in the normal meaning of the word. In any given year, there were perhaps sixty days that would classify as belonging to summer by virtue of general balminess, but these would almost never occur consecutively. Four days doth not a season make.

  But the necessary corollary to the lack of seasonal continuity was the fact that a random summer day or two could occur at almost any time, willy-nilly, during any month. This morning, as Hardy mounted the steps outside the Hall of Justice, it was such a day.