The Hearing

by John Lescroart

  'Then he'd be a complete fool to try anything with me, wouldn't he? The first thing I'll do is tell him everybody knows where I went. I even logged it in.'

  'And that will protect you?'

  'Well,' he said, 'you know, protection, the whole concept. There's really no such…' He stopped, his eyes suddenly filled with a kind of panic.

  'What?'

  'Nothing. I think maybe my yeanling didn't agree with me.' He took a heavy breath.

  'Abe? Are you all right?'

  'Yeah,' he said automatically. 'Just a little…' Another breath. His hand went to his chest. 'I think I'd better sit down.'

  In the courtroom, Judge Hill was about to rule on the admissibility of the confession. Hardy had been arguing that they should watch all six hours of interrogation on videotape. He wanted to get to the coercion issue now, before trial.

  Torrey objected. 'Your honor, the movies are full of wonderful performances by people who are apparently drunk or high on drugs. We can watch Mr Burgess on tape all day long and still never get to anything approaching proof that he was in fact under the influence of anything. He was never tested for drunkenness. Perhaps, as you say, he was in the early stages of heroin withdrawal-'

  Hardy chimed in. 'And as such, your honor, would have said anything, he would have done anything-'

  Hill used his gavel. 'Don't interrupt the bench again, counselor. I've read your arguments in motion form. Just because defendant perhaps had motivation to lie does not demonstrate that he did in fact lie. If you have nothing new to add, I'm standing on my ruling. You can take it up again if this hearing results in a trial.'

  The bad blood between Hardy and Hill was so thick that Freeman felt compelled to intervene. 'Your honor, if I may approach.'

  Hill sighed in frustration. This argument had already been going on for more than a half-hour. He'd made his ruling. And suddenly now the old lion was coming out of his cave. 'All right, Mr Freeman.'

  David stood up slowly. As protocol demanded, all four attorneys made thek way to the front. 'Your honor,' Freeman began, 'as you know, we have prepared a brief outlining internal inconsistencies within the alleged confession itself.'

  'As you say, counselor, I know that. I have read it.'

  'Then, your honor, with all respect, we'd like to object further to the confession on foundational grounds. Who can say if this is a complete, unaltered copy of the tape unless Inspector Banks will testify?'

  'Your honor!' Pratt and Torrey, in unison.

  Hill held up a peremptory hand and glared at them. 'Mr Freeman, the defense has just been arguing for the better part of an hour that the court should sit through six hours of the defendant's videotaped testimony on the coercion issue. Now you're saying we shouldn't see any of it? Am I getting this right?'

  Freeman's calm was unnerving. 'Even if it weren't so fatally flawed,' he said, 'the officer who took the confession isn't available to swear to the tape's authenticity and completeness.'

  The prosecution fumed and sputtered. Other officers, including several homicide inspectors, had been around and even in and out of the interrogation room. They could say the tape was accurate. The tape looked full and complete. It was self-authenticating. A technician could say the tape was unedited. Behind them bubbled a cauldron of static. For a second, it seemed that everyone in the courtroom was speaking at once. Then Hill's gavel – bam, bam -cracked through it all like a gunshot and created an equally deafening silence. Hill had had enough. He glowered at all the attorneys, out over them to the crowd beyond the rail. He spoke brusquely. 'The court will take a half-hour recess to consider these and other matters.'

  Without another word, he stood and left the room.

  'Diz!' Jeff Elliot was wheeling himself furiously up the hallway.

  Hardy had his hand on the door to the restroom and stopped. 'What?'

  'Did you hear that siren before that last argument?'

  'I didn't hear anything.'

  'I did. I went out and checked. It was Abe.'

  'What was Abe?' Though of course he knew. Uttering an oath of despair, he broke for the lobby at a run.

  33

  Glitsky wasn't on anybody's witness list. He wasn't part of the hearing. He wasn't a member of Hardy's immediate family. So Hill would not excuse Hardy for the afternoon.

  Aside from that, the session picked up more or less where it left off. After a series of suitable disclaimers, most notably that he was not ruling on the claim of police coercion, and that he most specifically was not ruling the tape inadmissible if the case went to trial, Hill announced that they would not in fact be viewing the videotape. Freeman's argument had merit, he said, and he didn't want to get into an open-ended discussion on the form and content of the tape. And if he didn't admit the tape for lack of foundation, he wouldn't have to deal with the coercion/intoxication issue either. He had plenty of other evidence to hold Burgess over for trial.

  Torrey and Pratt kept at it for ten minutes, and finally settled for the court's unspoken but unmistakably clear intention to hold the defendant to answer without the tape. All in all, Hardy wasn't sure that Freeman had done their client a service by getting the judge to leave out the tape. Now, from the hearing's point of view, nothing in the record contradicted or even mitigated the force of the circumstantial evidence. And they didn't have the tape issue for appeal. Hill had come to his decision to keep things moving along here. Up to now, the evidence presented was plenty to send Cole to trial.

  But Hardy was finding it difficult to keep his mind on the hearing, and he had to trust Freeman's instincts. He knew nothing about Glitsky, not even where they'd taken him. He didn't know where he'd gone for lunch, whom he'd met. He didn't know where Treya was, although he assumed she had gone with him in the ambulance.

  Jeff Elliot was going to find out about Abe. He'd know soon enough. He had to put it out of his mind.

  There was no time. The prosecution had rested. Hill's latest mistreatment had him in high dudgeon, a whiteout of a rage. He didn't trust himself to speak. But right now he had to begin the presentation of his affirmative defense. Right now he had to call his first witness.

  He was looking at the notes in front of him and heard himself croak out the first name he read: Sergeant Billie Oh, who'd supervised the crime scene unit in Maiden Lane. As she came up through the bar rail and took the oath, Hardy couldn't muster his thoughts to remember what he'd intended to ask her.

  He was still seated at his table. Everyone was waiting. 'Mr Hardy?' The Cadaver appeared all out of patience himself – if he'd had any to begin with.

  'Sorry, your honor.' He was on his feet, moving toward the bench, the witness. Words were coming out of his mouth. 'Sergeant Oh. Can you describe for the court, please, the position of Elaine Wager's body when you came upon the scene of her death.'

  The prosecution immediately and vociferously objected. The defense could only present evidence that went to an affirmative defense or contradicted the prosecution case. This was not a deposition, they argued. How could this possibly show that the defendant was not guilty?

  Hill had cut Hardy as deeply as he was going to, however. The confession was out, the defendant was going to trial, and Hill wasn't inclined to risk any assignment of error. Hardy could do his damnedest within any reasonable or unreasonable limits. It wouldn't matter. Hill overruled all the objections. Ms Oh was a precise and careful witness, and briefly recounted her facts and impressions without inflection or comment. This was what she saw; this was how it was. When she'd finished, Hardy had recovered enough of his bearings at least to be able to begin. 'Was Ms Wager wearing hosiery, Sergeant?'

  'Yes, she was. Black nylons.'

  'And what was the condition of these nylons?'

  Oh thought for a moment. 'They were in good condition. Damp where they touched the pavement as the body lay there and of course in the crotch where she'd lost her urine.'

  'Was there any damage to the fabric itself?'

  'No.'

  'N
o runs in the nylon? No threads coming loose?'

  'No.'

  'They were in very good condition?'

  'Yes.'

  'Sergeant Oh,' Hardy continued, 'did it occur to you that the victim fell heavily after she was shot?'

  'As opposed to what?'

  'To being, for example, let down easily by her assailant?'

  'Objection. Calls for a conclusion.'

  'Sustained. Another line, please, Mr Hardy.'

  He was wracking his brain for anything else. He certainly hadn't gotten any rhythm established with Sergeant Oh, and now couldn't remember why, in fact, he'd wanted to call her at all. He believed that whoever had shot Elaine had laid her down, and that this once had seemed incompatible with the rough treatment she'd received when Cole had taken her jewelry. But now that distinction seemed tenuous at best, frivolous at worst.

  He walked back to his table, consulted his notes, hoped David would come to his rescue with some suggestion, anything. But the old man simply shrugged. Win some lose some.

  Hardy turned around. 'Thank you, Sergeant.' To Torrey's table. 'Your witness.'

  The prosecutor stood up and walked to the witness box, taking his time, but Hardy didn't have the sense he was stalling. Certainly, as soon as he stopped walking, he asked his question. 'Sergeant Oh, from the position of Ms Wager's body, as well as the state of her hosiery, would you rule out the possibility that her assailant had forced her to kneel down before he executed her in cold blood?'

  'No, sir, I couldn't.' Then she volunteered her first sentence. 'That was the impression I had from the beginning.'

  He had to remain in court, but he wasn't doing his client any good with inept questioning of his own witnesses. With the myriad of details he'd been trying to absorb over the past week, to say nothing of his immediate concern over Glitsky, he'd overlooked at least one other very much more obvious and ominous interpretation of the facts.

  At the beginning of it all, Glitsky had put the bug in his ear about Elaine's killer breaking her fall and he'd come to accept it as the truth. And Torrey had just killed him on it. He had to be more careful, but he wasn't sure that he had it in him.

  Again he stood. Again he called a witness. 'Daniel Medrano.' This time he wondered if he should pass the questioning off to Freeman, but before he'd made any conscious decision, he was moving toward the witness box.

  'Officer Medrano, you and your partner were the first unit on the scene, were you not?'

  The policeman could have been Stalin's twin – the square and swarthy face, the heavy black mustache. He appeared nervous on the stand, possibly because of his inclusion as a defense witness. Hardy knew from his earlier interview with him that this was the most notorious crime he had worked in his years as a cop. But there was no help for that.

  'Yes, we were.'

  'Can you tell the court exactly what you saw?'

  'Sure. My partner, Officer Petrie, and I were cruising downtown and we came upon a figure hunched over another one in Maiden Lane. We hit him with our searchlight, and a man turned and began to run. I was on the passenger side and got out, identified myself as a police officer, and took off in pursuit.'

  'Go on.'

  'He had maybe ten yards on me, but it was pretty dark, and he ran into a fire hydrant and went sprawling and I was able to apprehend him and put on handcuffs.'

  'And do you recognize the man you caught that night in this courtroom?'

  'Yes. The defendant Cole Burgess, over there.'

  'All right. Now, Officer Medrano, in the course of this chase, did you hear anything unusual?'

  'Yes, sir.'

  'Would you please tell the court what that was?'

  'Well…' This was the part Medrano hated. It disagreed with his partner's report (although not his testimony, since Torrey had neglected to ask him about it), but to his credit he delivered it straight. 'There was a gunshot about when the suspect went down. Then I heard the gun clatter on the street, and I eventually saw it and brought it back with me.'

  'Are you saying the defendant shot at you?'

  'No, I don't think so. He didn't stop or turn. He was just running and hit the hydrant and went sailing and the gun went off, like, when he hit the ground.'

  'Are you certain it was a gunshot, and not a car backfiring or something like that?'

  'It was a gunshot. I saw the flash. I even heard the ricochet. It was a gunshot,' he repeated.

  'All right, Officer Medrano. Thank you.'

  For some reason that Hardy couldn't fathom, Pratt rose this time for the prosecution's cross-examination.

  'A couple of small clarifications, officer,' she began gently, with a welcoming smile. 'You and your partner, Officer Petrie, discussed this gunshot, didn't you?'

  'He didn't hear it. He was in the-'

  Pratt held up a hand, stopping him. 'You discussed it?'

  'Yes.'

  'And he said he didn't hear it?'

  'Yes.'

  Thank you.' Another smile. 'Now. When you came upon the defendant hovering over the body in the alley, did you see him reach to pick up anything in the street?'

  Medrano was back visualizing the moment. 'No.'

  'You don't remember him reaching down into the gutter and picking up any object. Say, the gun, for example?'

  'No.'

  'So he must have been holding the gun already, isn't that so?'

  'He must have. Then he just stood up and started running.'

  Hardy spoke up. 'Objection. Speculation. Calls for a conclusion.'

  The Cadaver sustained him, struck the answer. Pratt went sailing right along. 'Did the defendant run well?'

  A genial grunt. Medrano was back testifying for the right side, and he was much more comfortable. 'Way better than me.'

  'In fact, Officer Medrano, was the defendant pulling away from you when he ran into the fire hydrant?'

  'Yes. He was fast.'

  'He wasn't staggering or lurching or anything like that then?'

  'No. The guy was a bullet.'

  'A bullet. Thank you, officer. No further questions.'

  Jeff Elliot had been working without any merit raise for the past three years, and he decided this was as good a time as any to demand one. He and his editor were already discussing things, and he thought he might be back at work as early as next week. In the meantime, though, the Examiner had delighted and surprised him by making him an offer to bring 'City Talk' to them. The Democrat notwithstanding, the Examiner was the Chronicle's afternoon competitor, and Jeff thought a guest column or two in it would dramatically enhance his negotiations with the Chronicle.

  Besides, Hardy and Freeman had handed him the column at lunch. Now, mid-afternoon on Wednesday, he was in the reporter's lounge on the third floor of the Hall of Justice, typing on a manual from the notes he'd taken a couple of hours before. The Examiner was paying him a full week's wages for the one column. He was smiling as he wrote.

  CityTalk

  By Jeffrey Elliot

  In the interests of full disclosure, I hereby reveal that lawyer Dismas Hardy is a personal acquaintance of mine, even a friend. Currently he is defending my brother-in-law, Cole Burgess, in a preliminary hearing in Department 20 of Municipal Court. Cole is charged with the murder of Elaine Wager. The prosecution is being handled by the district attorney herself, Sharron Pratt, and by her chief assistant and majordomo, Gabriel Torrey. Mr Hardy is one of the sources of some of the information contained in this column.

  When he is not personally trying murder cases, Mr Torrey's day-to-day work involves overseeing the flow of civil and criminal cases brought through the District Attorney's office before the courts. In this role, he is in a unique position to assign cases to the courts' calendars, to settle disputes without reference to the courts, and to either dismiss criminal cases outright (for any number of reasons, including lack of evidence, police misconduct, inability to locate witnesses, etc.), or to negotiate plea bargains. His word is law to every DA in the office, except Sharro
n Pratt.

  This reporter has learned of at least two cases where a criminal case has been brought by Ms Pratt's office against an individual who was also being sued in a civil matter. In both cases, Mr Torrey offered to broker a deal whereby the District Attorney would drop the criminal charges in exchange for a large dollar settlement in the civil matter. The attorney handling the civil matters in both cases is Dash Logan, one of the city's more colorful and controversial figures.

  (Regular readers of this column in the Chronicle might remember the story of Mr Logan's brief arrest last year after a short car chase that ensued after his car ran a red light, narrowly missing two pedestrians in front of the Virgin Records building on Market. The District Attorney declined to press charges related to this incident for two reasons: the brakes in Mr Logan's car appeared to have been tampered with -he apparently could not have stopped if he wanted to. And the blood-alcohol report was mislaid.)

  Today's column will describe the first of these cases. Tomorrow's will deal with the second case, and a set of circumstances startlingly similar to the first.

  Rich McNeil is a 62-year-old vice president of Terranew Industries here in town. He owns a six-story apartment building on the…

  The open hallway outside the courtroom. Hardy double-timing to the phones. He had to find out. A young Asian man, vaguely familiar, tapping him on the shoulder. 'Paul Thieu,' he said, extending a hand. 'Homicide.'

  It had been an excruciating fifteen minutes since Hill had adjourned court for the day. Hardy had felt the heat in his face, and knew that his blood pressure was off the charts, the endless minutiae made unbearable by his haste to get away. But he had had to stay around to give his client encouragement, instruct his troops. Freeman, Jody, Jeff Elliot.

  He'd finally closed his briefcase, made excuses. He really had to go. Now.

  And now this. He steeled himself to ask, 'Have you heard from Glitsky?'

  A nod. 'I know where he is. They took him back to St Mary's, even though it was farther away. They wanted him to have the same doctor.'