“Positive,” she said.
In the “Passion Pit” two hours later, the attorney and his client sat on either end of the library table that served as the room’s only furnishing. “This is unbelievable,” Catherine said as she put down the paper. “What’s it going to mean?”
“It means we might be able to start over if you want.”
She threw a terrified glance across at him. “You don’t mean from the beginning?”
“Pretty close.”
“I can’t do that, Dismas. I couldn’t live here that long.”
Hardy wasn’t so sure that she was exaggerating. He’d known a lot of people who’d gone to jail—including some who more or less called it home—and most of them went through the original denial of their situation, hating every second of the experience, but then came to accept the surroundings as the reality of their life. Over these eight months, if anything, Catherine had come to hate her incarceration more and more each day. She’d lost the weight because she’d all but stopped eating. Another eight months, or more, preparing and waiting for another trial, might in fact kill her. If she didn’t kill herself first. The year before Hardy had had another client try to do that very thing.
“Well, Catherine, after we find out if any of the jury has seen this, and they have, then if I don’t move for a mistrial—regardless what Braun rules—it’s damn close to malpractice.”
“I’d never sue you for that.”
“No. But an appellate court might find me incompetent.”
She couldn’t argue with that. “I don’t want to stop, though. I think we’re doing okay.”
“That’s heartening.”
“You don’t?”
“Honestly, Catherine, I don’t know. Cuneo has . . .” He stopped.
“What?”
An idea had occurred to him, but he didn’t inadvertently want to give Catherine any false hope. “Nothing. I’m just thinking we’ve still got some rocky ground ahead of us. You testifying, for example.” He explained his problem with her old and brand-new alibi, how the discrepancy would sound to the jurors.
“But I have to testify if I’m going to talk about Cuneo. Isn’t that our whole theory about why he kept coming after me?”
“Yes. Initially, anyway.”
“Would a second trial be any different?”
“Maybe. Slightly. I don’t know. A venue change might make a difference.”
“Are you still mad at me?”
The question took him by surprise—talk about irrelevant—but he nodded. “Yep.”
“I didn’t kill anybody, Dismas. I know you don’t like to talk about that. You’ve told me not to go on about it, but it’s the truth. It really is. And I can’t stay in here too much longer. I’ve got to see the end in sight.”
“Don’t do anything stupid, Catherine.”
“I won’t. But I can’t start all this over again.”
Hardy boosted himself from the table and walked across to the glass-block walls of the jail’s attorney-client visiting room. He couldn’t remember the last time he’d let a trial get so far away from him, and now he wasn’t sure how to proceed. Most defense attorneys spend a great deal of their time trying to get delays for their clients—to put off the eventual day of reckoning and the finality of the sentence. But Catherine didn’t want delay, couldn’t accept it. She wanted resolution. But if he’d tried to deliver on that at the expense of a winnable strategy, a shortchange on the evidence issues, or a blunder in his refusal to press for an obvious mistrial, he stood the very real risk of condemning her to life in prison.
But maybe, he was beginning to think, there was another approach—legal but rarely invoked—that could change everything. If he could get Braun to rule that Cuneo’s statements to the press were a result of deliberate misconduct on the part of the prosecution—i.e., Rosen— she might give him a mistrial for prosecutorial misconduct. In this case, Catherine—having once been placed in jeopardy by the state—would under the theory of double jeopardy walk out of the courtroom a free woman. They couldn’t try her again for the same crimes, even if they were capital murder. But of course, this made it a potentially huge decision for the judge, since it would undo the efforts of the grand jury that had issued the indictments, as well as those of the district attorney and the police department. And there would be an immediate uproar from the conspiracy buffs that somehow the fix was in.
But Catherine cut him off midthought. “Can I ask you something?” she said from behind him.
He turned.
“Is this true, what Cuneo says? That the mayor asked Glitsky to intervene?”
“Yes.”
“Why did she do that?”
“Because she was afraid of your father-in-law’s enemies. She thought it might have been about business somehow. The city’s towing contract.”
“And Glitsky followed that up?”
“ ’Til it ended with nothing.”
“And all the other leads?”
“Every one he could find, yes.”
“How about the political one?”
“You mean with the mayor?”
“No, with the president. You know, the cabinet thing.”
In the endless reams of newsprint leading up to the trial, the nascent potential cabinet appointment naturally got its fifteen minutes of spin and conjecture. But no one—reporters, private investigators or administration officials—had uncovered or revealed anything remotely approaching a connection to Hanover’s murder. Many people, including Hardy’s investigator, had looked, and all had concluded that Hanover hadn’t been involved in anything controversial on the national scene. Beyond that, the nomination process itself had not even formally begun—Hanover’s vetting by the FBI was still at least weeks away when he’d been shot.
Hardy shook his head. “I don’t know if Glitsky has looked at that specifically. Why? Has something occurred to you?”
Hardy was more than willing to take anything she could give him. A little ripple of concern ran through him. Here he was, nearly a year into his defense of this woman, on the third day of her actual trial, and in the past two days she’d given him not one, but two, potentially important facts—the ring and the nomination— which he’d previously given short shrift. It brought him up short.
Were his own personal demons—his concern over Cuneo’s conspiracy theory, allowing the personal element inevitably to creep into his representation of his old girlfriend, the media madness, Abe’s personal and professional issues—were these concerns threatening his ability to conduct a competent defense, blinding him to other critical facts? The basic rule of trial strategy is that you didn’t want to be surprised by anything once you got to the courtroom, and now in two successive days he realized he’d been vulnerable to broadsides twice! Luckily, it had not yet happened in the courtroom, but he’d obviously been so sloppy in his preparation that it would only be a matter of time.
It was unconscionable—he ought to go in to Braun and get a mistrial declared today and then bow out entirely. In waves of self-loathing, he realized that he’d failed Catherine and even failed himself. He was unprepared. She would go down.
But Catherine was still on the nomination. “That’s what they were fighting about, you know. The nomination.”
“I’m sorry,” Hardy said. “Who was fighting?”
“Missy and Paul.”
“When?” Hardy, all but babbling.
“Dismas. That day. Don’t you remember I said they’d been arguing?” Though it didn’t eradicate the disgust Hardy was feeling with himself, he did realize that he’d reread this bit of information, the arguing, while reviewing his binders last night. Though he hadn’t recognized its relevance, if any. And didn’t even now.
But Catherine was going on. “That’s why Missy wasn’t there when I was. She’d left all upset that morning.”
“Why was she upset?”
“Because she didn’t want Paul to go for the nomination.”
“Why
not?”
“I think mostly it was the house. She’d just spent over a year redecorating the place. The thought of moving to Washington, D.C.? I don’t really blame her.”
“Is that what Paul told you?”
“What? That she didn’t want to move? No. He said she was paranoid about the government and their background check, which he thought was ridiculous. She didn’t even want them to start. She thought they’d be prejudiced somehow because she was foreign. She just didn’t want to be involved. It scared her, he said.”
“But Paul wanted it? The nomination.”
“Did he want it? Did Paul Hanover want national recognition for a lifetime of public and private service? Does the pope shit in the woods? Of course he wanted it. Missy would come around, he said. They weren’t going to break up over it. They loved each other. She’d see there wouldn’t be anything to worry about. He told her that morning that he was going ahead anyway, and that’s when they’d fought and she’d walked out.”
“And then come back,” Hardy said, “in time to get shot.”
This sobered Catherine right up. “I know. Great timing, huh?”
In the end, though, Hardy thought with some relief, this at least was an example of a fact to be filed under interesting, even fascinating, but irrelevant. Paul and Missy’s argument on the day of their deaths didn’t lead either one of them to kill the other. Someone else had killed them both. Which left Hardy only with the ring, and the question of Theresa Hanover’s alibi for the night of the fire.
But the bailiff now knocked at the door and announced that it was time to go over to the Hall. Hardy, in a dangerous emotional state in any event, had to bite his tongue to keep from telling the bailiff not to cuff his client, that she didn’t need that indignity.
But he knew that this would have been wasted breath.
The cuffs clicked into place.
24
Marian Braun was a Superior Court judge when Barry Bonds was still playing baseball for Serra High School down in San Mateo. Her chambers reflected that longevity with an unusual sense of homeyness. She’d had built-in wooden bookshelves installed all across the back wall, put down a couple of nice large rugs to cover the institutional linoleum floor, hung several pleasant California landscapes here and there. Drapes under sconces softened the two window areas, and the upholstered furniture for her visitors marked a significant departure from the typical judge’s chamber setting of a few metal chairs in front of an often imposing and distancing desk.
But the comfortable physical setting wasn’t making anybody in the room more relaxed at the moment. To no one’s surprise, Braun had summoned Cuneo and counsel for both sides here as soon as her bailiff told her they were all in the courtroom. At the same time, she’d had the bailiffs bring in a copy of the morning’s Chronicle and told them to instruct the jurors not to speak with each other, even casually, until she came out into open court.
Now Hardy leaned against the bookshelf, hands in his pockets, and Chris Rosen held up the wall next to him. Jan Saunders had pulled in her portable chair from the courtroom and was setting up her machine on the coffee table in front of the couch. Braun, silent as a stone Buddha, sat at her desk sipping coffee and pointedly ignoring everyone’s entrance as she turned the pages of the morning’s paper. She was waiting for Saunders to be ready to record the discussion, and didn’t seem inclined to make small talk to cut the tension until that moment arrived. In fact, to Hardy, the gathering tension seemed to be her point.
Saunders hit a few keys, then cleared her throat—a prearranged signal—and Braun glanced at her, took a sip of coffee, put down her newspaper. She looked first at Rosen, then over to Hardy, then over to Cuneo and finally back to the prosecutor. “Mr. Rosen, do you remember a couple of weeks ago when we were starting with jury selection and I said I didn’t want anybody talking to the press about this case?”
Rosen pried himself off the wall into a respectful stance. “Yes, Your Honor. Of course.”
“Here in the legal world, we call that a gag order. Does that phrase ring a bell?”
“Yes, Your Honor.”
“And since Inspector Cuneo has been in the courtroom, sitting next to you at the prosecution table since the formal start of these proceedings, do you think it’s unreasonable of me to assume that he is part of the prosecutorial team? And that therefore the gag order would apply to him as well?”
“Yes, Your Honor, but . . .”
Braun held up a hand, stopping his reply, and turned to Cuneo. “Inspector,” she began, “what do you have to say for yourself?”
But Rosen rushed to his inspector’s protection before Cuneo could say a word. “I don’t think Inspector Cuneo quite recognized the sensational nature of his comments, Your Honor. Or how they would be taken.”
“Oh? Since when does a gag order mean say whatever you want as long as it’s not sensational? And just by the way . . .” She turned to Cuneo. “Inspector, you didn’t realize that naming the mayor as a coconspirator to obstruct justice in the case before this court would hit the news cycle?”
Cuneo had both hands in his pockets, patting his legs inside them. “Judge,” he said, “I’m sorry if it’s caused a problem, but nobody ever told me not to talk to reporters.”
“No, but I’ll wager that no one ever told you to wear your trousers here to court today either, and yet you did. How long have you been a cop? Two weeks? You were sitting there when I imposed the gag order. Did you figureI was talking to myself? The gag order told you not to talk to reporters about this trial while it was going on.”
“But, Judge . . .”
“How about ‘Your Honor’?”
“Okay, Your Honor. But in this case, there’s reporters all over this trial.”
“Thank you,” Braun said, “I’ve noticed. Which was the point of the order.” She shifted her gaze to the prosecutor, came back to Cuneo, shook her head.
Into the pause, Rosen ventured an excuse. “You didn’t formally call it a gag order at the time, Your Honor, if you recall, and I’m sure Mr. Hardy would agree with me. You said in the interests of fairness, you’d like to see us refrain from discussing the case with the media.”
Braun stared for a second in frank disbelief. “That’s what a gag order is, Mr. Rosen. And in any case, as soon as we go back outside, assuming we proceed with this trial at all, which is not at all certain, I’m issuing a formal gag order and sequestering the jury, which I’d very much hoped to avoid.”
Shifting at her desk, she brought her steely gaze to Hardy. “If we hear what I expect we will hear, Mr. Hardy, I’m assuming you’re going to request a mistrial. Perhaps review your change-of-venue motion.”
Like Rosen, Hardy came to attention when the judge addressed him. “That was my intention, yes, Your Honor. Originally.”
Braun narrowed her eyes, a question.
“But my client is opposed to simply beginning again. She doesn’t want to spend more time in jail.”
Cocking her head, Braun frowned. “Is that some kind of a joke?”
“No, Your Honor.”
“Did you explain to her the prejudicial nature of Inspector Cuneo’s remarks? How they could affect the jury, even if I query each of them individually, which I will do, and they deny they read the papers?”
“I think I did. Yes, Your Honor.”
The judge couldn’t seem to get her mind wrapped around Catherine’s objection. “Does she know what prejudicial means? That, to some perhaps quantifiable degree, these comments make it more likely that she’ll spend the rest of her life, and not just a few more months, in jail?”
“Yes, Your Honor.”
“And yet she still might want to proceed?”
“It depends, Your Honor.”
Before things went much further, Braun wanted to poll the jury, see where they stood. Out in the courtroom, Hardy learned that he was one off on his estimate of the jury’s literacy—not three, but four of them had read the article. One claimed to have read
only the headline. A second said he’d only read a couple of lines. Incredibly, two others admitted that they’d read half of the article before realizing that it was about this case. No one admitted talking to anyone else about it. There were four potentially excludable jurors. And only three alternates.
Now they were back in chambers, Braun talking. “So it’s down to you, Mr. Hardy. What are you asking the court to do?”
“We’re asking for a mistrial, Your Honor, with a finding of deliberate prosecutorial misconduct that will bar any further trial because of double jeopardy.”
Rosen exploded in true wrath. “Get out of here!” Turning to Hardy, “That’s the most outrageous . . .”
“Mr. Rosen!” The judge’s voice cracked in the room. “You will address the court only! Any more of this arguing with opposing counsel and I’ll hold you in contempt.” She pointed a shaking index finger at him. “And don’t think I won’t.” Without waiting for any response from Rosen, she whipsawed back to Hardy. “If memory serves, that provision only applies if the prosecution did this on purpose to cause a mistrial. Is that your contention?”
“Yes, Your Honor.” Hardy knew what she was going to ask next—why would Rosen deliberately screw up the case at this point so he could get a mistrial?—and he rushed ahead to tell her. “Mr. Rosen obviously wasn’t sufficiently prepared. The real story of Inspector Cuneo’s sexual advances to my client, which is going to have a huge impact on the jury, comes out in my cross-examination today. And suddenly his case, weak to begin with . . .”
But Rosen interrupted. “Your Honor, this is absurd. I’ve got eyewitnesses.”
Braun nodded with some impatience. “Which is the main reason why I denied Mr. Hardy’s nine-nine-five. Don’t get me started.” But she wanted to see where Hardy was going with this, and turned back to him. “And so because Mr. Rosen’s case may become potentially more difficult, you contend he’s trying to . . . ?”
“To get me to ask for a mistrial. Yes, Your Honor.”
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