Salter’s tone was brusque. ‘Mr Hardy, that’s why we have cross-examinations – you know, the part where you ask questions. I’m sorry, Mr Soma, proceed.’
Soma asked about the upstairs speaker’s gender again.
‘It was a man.’
Hardy was up again. ‘Objection. The witness couldn’t possibly be sure it was a man, Your Honor.’
Blue’s insistence upon her career as a model got shaky. She shot back at Hardy, across the courtroom. ‘I know men’s voices, sugar.’
This brought a little titter to the gallery, quickly squelched by a look from Salter, who then took off his glasses and tapped them on his podium. ‘Blue,’ he said, ‘please don’t talk to the attorneys out there on your own. Let’s have counsel approach the bench.’ He waved them forward.
Hardy got up with Freeman. Drysdale walked forward with them and met Soma at the podium.
Salter leaned down. ‘Mr Hardy, I’ve already ruled on your repeated objections. Let’s move along.’
‘I guess I’m asking you to reconsider, Your Honor. Blue may well have heard voices and they may just as well have come from Sal’s apartment, but she can’t state that as fact.’
Freeman, true to form, stuck in his two cents. ‘As a matter of law, judge, he’s right. Ask Art, he’ll tell you.’
The judge glared down at him. ‘I don’t need him to tell me, David, or you either.’
In a murder case the specter of a verdict being overturned on appeal due to judicial error hangs like a scimitar over the neck of every trial judge. Salter put the ear ends of his eyeglasses into his mouth and considered carefully.
By repeating the objection over and over, Hardy had bullied him into second-guessing himself. ‘On reflection, I believe Mr Hardy has a point. I’m going to sustain his objection, and reverse my decision on the previous objection.’
Soma threw his hands wide. ‘But, Your Honor…’
The judge stopped the histrionics with a pointed finger. Drysdale helped, laying a soft hand on his partner’s sleeve. Salter’s first ruling had been right, but having already changed his mind once, he was never going to change it back. Hardy had stolen one. Salter put his glasses back on. ‘All right, gentlemen, thank you.’
When the attorneys had all returned where they belonged, the judge turned to the jury. ‘You will disregard Blue’s statement that she heard voices from Mr Russo’s apartment, or the gender of those voices. Back to you, Mr Soma.’
The prosecutor went back to his table for a sip of water, trying to buy himself the time to think of another tack. He took a deep breath, threw a look at the ceiling, then turned back to the witness.
‘Blue,’ he said, ‘have you ever seen the defendant before?’
‘Yes, sir,’ she said.
‘Would you please tell us where?’
‘Oh, lots of times. He come by the apartment, be out in the alley with his dad, like that. Lately he be there all the time.’
‘And did you ever talk to him?’
‘Couple of times. Say hi, like that. Nothing really to speak of.’
Soma was about to ask another question, perhaps in this same vein, but Drysdale had a small coughing fit and raised his hand, asking the judge if they could have a couple of minutes recess, which was granted.
When, after five minutes, court was called back to order, Soma announced that he was through with this witness.
She’d given him nothing.
But she was going to give Hardy quite a bit. He knew why Drysdale had had his coughing fit. Soma, flustered by the reversal on Salter’s objection ruling and floundering while he thought up another line of questioning, had asked a question for which he didn’t know the answer, and it had opened a door for the defense. The coughing fit had tried to slam that door shut, but it hadn’t come in time.
‘Blue.’ Hardy wasn’t going to go formal on this woman, get hung up over nomenclature and make her mad. He smiled at her. ‘During the many times you saw Graham with Sal, did you ever see them fight?’
‘No. Nothing like fighting.’
‘What do you mean, nothing like fighting?’
‘Well, they was always laughing, more, you know. Most the time. Sometimes they just be sitting on the back of his truck, talking. Mostly that’s when I see ’em. Just talkin‘, laughin’. Sometimes in the lobby, the halls like.‘
‘So you would say they acted as though they liked each other, is that right?’
‘Objection! Conclusion.’ Soma knew he had brought this on himself. By degrees his vocal register was going up. His objection was sustained, but Hardy didn’t care.
He smiled at the witness again. ‘Blue, during the time you lived below Sal, did you ever hear any other bumps, things falling over, stuff like that?’
‘Sure, sometimes, maybe he bump into some lamp, something like that.’
‘Did you ever go to his apartment?’
She showed her teeth. ‘Not on business.’ Another ripple of laughter. ‘Couple of times, he told me he had some good salmon, I could come and get it. I love that salmon.’
‘Me too,’ Hardy said. ‘And during those times you went to his apartment, did you notice if Sal was a good housekeeper? If the place was clean and uncluttered?’
‘Lord, no,’ she said. ‘There was magazines and boxes and stuff everywhere.’
‘Any of which he might have tripped over as he was walking around, isn’t that true?’
Soma objected again, got sustained again. But Hardy felt he was making his point to the jury and pressed on. ‘All right, Blue, now I’d like you to try to remember the day Sal died and you heard this noise upstairs, like something falling. Do you remember that?’
‘I said I did.’
‘That’s right, you did. Then you told Inspector Lanier that sometime later you heard the door upstairs closing, isn’t that right?’
‘That’s right.’
‘Now, to the best of your recollection, how much time passed between this bump you heard and the door closing?’ Hardy wanted to establish a temporal distance between the two events. The longer the lag between the bump and the door closing, the less likely there was any causal relation between the two. Therefore, a struggle became a less likely scenario.
Blue sat back in the witness stand, pulling her hands off the rail. Methodically, she began cracking her knuckles one at time. Her eyes were far away. ‘I hear the bump. I hear him kind of moaning, “No, no, no.” Pretty good amount of time, I ’spect.‘
Hardy pounced on this. ‘While you were hearing these noises upstairs, you were having a modeling session? Is that what you’re saying?’
‘That’s right. That’s why I don’t go up there, see what’s the matter, when I hear this bump and him saying, “No.” ’
‘All right, Blue. Now, this “pretty good amount of time” you’ve just referred to, could it have been more than a half hour?’
‘Could have been.’ She paused, obviously nervous that she’d get caught in a lie. So she decided to come clean. ‘I fell a little asleep.’ She leaned forward now, looked at the judge, down into her lap.
Hardy played the card he’d picked up from Sarah. It had not been on any of the transcripts, but Lanier had mentioned to Sarah his feeling about the smell emanating from Blue’s place. ‘Blue, did you smoke marijuana this day? Is that why you fell asleep?’
Cornered, Blue’s eyes were all over the room. ‘It wasn’t that long,’ she said ambiguously.
‘You mean that you were asleep?’
‘And afterwards, after he was gone, I went up, but nobody answered.’
‘You didn’t try the door?’
‘No.’
‘Do you clearly remember that the sound of the door closing was after you woke up from your doze?’
‘Yes.’
‘And was the scraping or bumping before?’
‘Yes, sir. It was.’
‘So it might have been as long as an hour between the scraping and bumping and the entirely separate sound of
the door closing, is that right?’
Another objection, this one overruled. In Salter’s view this last point wasn’t speculation. Blue could make a reasonable estimate of how long she’d been asleep. She told Hardy he was right: the sounds weren’t really all that close together.
‘Thank you, Blue. That’s all my questions.’
Soma got up on redirect and tried to repair some of the damage. ‘Blue, I’ve got here a transcript of your interview with Inspector Lanier. It says, and I quote, “I hear the door open, then the ceiling creaks, somebody else there.”’
‘That’s right.’
‘Good. Now, continuing with the transcript, you told Inspector Lanier – well, maybe you can read what it says here. Would you do that?’
Blue took the paper and read the highlighted text. ‘ “And then some other noises.” ’
Soma patiently nodded, leading her through it. ‘In other words, Blue, aren’t you saying here that the noises occurred after this someone arrived upstairs?’
Her face took on a pained expression. ‘No, I don’t mean that.’
‘But didn’t you say “then some other noises”?’
Blue was shaking her head. ‘But I don’t mean then like meaning after. I mean then like next thing I thought.’
This was bad news for the young attorney, who hadn’t given much thought to the woman’s syntax. She’d said then, which to him meant after. In this context that’s all the word meant to him. To someone with a little less education than Soma, however, the word could be almost endlessly fluid.
As Hardy had discovered when he’d talked to Blue, preparing for his cross.
But Soma couldn’t leave it. It struck him as unfair. He had the right meaning and he was, somehow, wrong. He turned to the jury, including them, his voice getting that familiar stridency. ‘But then means after, Blue. Isn’t that the meaning of the word?’
Hardy could have objected that he was badgering the witness, but Soma was shooting himself in the foot anyway and Hardy thought he’d let him do it. Blue pulled herself up. ‘Sometime it might. But that’s just not what I meant.’
During one of the afternoon recesses a uniformed police officer stuck a note in front of Hardy. Glitsky wanted to know where he could meet Hardy in moderate privacy after he got off today. Hardy thought a moment, then scribbled his reply and sent the officer on his way.
Glitsky had saved Hardy’s bacon.
By authorizing Sarah to look into George and Debra’s possible connection to Sal’s murder, he’d relieved Hardy of any obligation to tell Leland that his money was being used to investigate his own family. It was a police matter now.
Hardy and Glitsky hadn’t said a lot of words the previous night about their ongoing feud. It was behind them, leaving its slightly bitter residue. Instead, they mostly talked about the lieutenant’s long interview with Sarah Evans, which had led him to reconsider his earlier decision to drop the investigation.
The rest of Hardy’s afternoon was taken up by four witnesses, various other residents of Sal’s building, people who’d seen Graham in the vicinity. Hardy asked each of them the same questions: had they ever witnessed anything like a fight between Sal and Graham? Did they see or hear a struggle of any kind in or around Sal’s apartment on May 9?
They all said no to everything.
The breeze was stiff out of the west, bending the cypresses in the Park as the lieutenant headed west along Lincoln. A fitful sunlight struggled through the intermittent cloud cover and, when it could, cast long shadows. Traffic was heavy until he turned on Masonic, winding his way back up to Edgewood.
He parked and got out of his car. There was no sign of any wind up here, though in the sky some angels had raked the cirrus into neat rows. He crossed the street and walked up to the address Hardy had given him.
Hardy was leaning against his car, his arms crossed over his chest. ‘You said private. I thought you’d like it here.’
The lieutenant threw another look all around. ‘What is this place?’
‘Graham Russo lives here.’
Glitsky nodded. ‘I wish I did.’ Then, ‘Evans and I had another talk today. We didn’t do this right.’
‘I know that.’
‘You know about Tosca and this guy Ising?’
‘Graham’s mentioned them both.’
‘You didn’t hire an investigator? Find out what they’ve been up to?’
Hardy told a fib of omission. ‘Money’s tight, Abe. I’m barely breaking even.’ He shrugged. ‘I can’t worry about who did it. It’s my job to get my client off.’
‘What I hear, you might be doing that.’
Again, a shrug. ‘It could happen, though we got a bad jury for it. So what are we doing up here, me and you?’
‘This time of day there’s lots of eyes at the Hall.’ Glitsky looked around the quiet street as though checking for spies. He took his time answering. ‘I wanted to let you know we’re going to keep looking. Evans wants to go and question the brother and sister directly, but that gets squirrely. We’d have to give them a reason, and then what?’
‘I’ve had the same problem.’
‘And these possible money angles.’ Glitsky shook his head. ‘Contrary to popular belief I don’t want to ace the wrong guy.’
‘Time’s running out, Abe. It might be too late already.’
‘I know,’ Glitsky said. ‘But for the record.’
There was only a slim chance it would do much good in the time he had left. Still, it was a grand gesture for a professional cop and administrator. ‘For the record,’ Hardy said, ‘I appreciate it.’
Frannie was asleep by nine.
Hardy tossed until eleven, then got up and turned on the news. After yesterday’s human-interest bombshell with Sarah and the fallout from her testimony, the trial was back to hot copy. Hardy learned that evidently he’d done well with Blue today; the newscaster reported that one of the prosecution’s major witnesses had failed to establish that any struggle had taken place in the apartment between Sal Russo and his son.
‘But tomorrow is Alison Li, the bank teller who-’ Hardy hit the remote and decided to give sleep another try.
31
This wasn’t possible, Hardy was telling himself. Could it be that his own stupidity was going to cost him the case? It looked that way right now. The four attorneys were in Salter’s chambers talking about the admissibility of the videotapes. Freeman might believe that the defense didn’t need them, that the entire money/bank issue was beside the point, but to Hardy they were the equivalent of a smoking gun for the defense. If the videotapes were admitted after Soma had gone to great lengths to prove that Graham had, for whatever reason, come to the bank on Friday, Hardy had proof that he hadn’t. It would devastate the prosecution’s argument.
But now it was looking as though it wasn’t going to happen. Drysdale and Soma hadn’t questioned the tape’s admissibility in any of the pretrial hearings, but now, with Alison Li coming up next, they’d requested this hearing in chambers, charging that Hardy couldn’t lay any foundation for the tape – what it was, where it came from, how it was relevant. It should be ruled inadmissible.
‘Judge’ – Hardy was on his feet in front of Salter’s desk – ‘I got this tape months ago. It was in my discovery that I shared with the prosecution. Mr Soma and Mr Drysdale have had every opportunity to review it. It clearly shows that my client didn’t go into the bank on Friday, which is one of the cornerstones of their case.’
If Hardy wasn’t so hot himself, he might have been concerned by his partner, David Freeman’s, posture. The old man was in a corner of the room, seated, arms crossed, keeping out of it. A bad sign in itself.
Drysdale, too, had recovered from his explosion of the other afternoon. He was low-affect here, and he did most of the talking.
Soma stood next to him, barely concealing his smugness. Drysale was talking: ‘We have no problem with the original tape, Judge. Our problem is with Mr Hardy’s copy.’
‘All right, so let’s use the original,’ Hardy said, giving up a point far too quickly. The greatest enemy in any trial was surprise, and Hardy had just opened himself up for another one.
‘We were told the original’s been erased.’ Soma couldn’t keep the note of triumph out of his voice.
Hardy had no idea how long Soma had known this, or for how long he’d been planning his ambush, but he was obviously enjoying the hell out of it now.
Hardy turned to him. ‘It has not been erased.’ But even as he said it, he knew it had to be true. Soma wouldn’t have any reason to bluff. ‘I asked the bank to save it.’
He had figured he had the copy. He’d even copied the copy to give to Soma and Drysdale. The efficient and personable Ms Reygosa, the manager, had assured Hardy that the bank would keep the original as backup.
With his infuriating calm, Drysdale was back at Salter. ‘Naturally, we wanted to review the original for accuracy after we’d seen Mr Hardy’s copy, Your Honor. Evidently the bank misinterpreted Mr Hardy’s request and thought that once the tape had been copied, they would be free to reuse it.’
Hardy pressed his fingers against his temples. This could not be happening. It was completely his incompetence. He couldn’t believe it, and there was no one to blame but himself. ‘Your Honor, I have the copy and it has remained unedited and in my possession-’
Soma cut him off, shaking his head in disagreement. ‘The copy could have come from Blockbuster, Your Honor. There’s no date or time on it. It could be anything.’
‘I’ll get Ms Reygosa to testify it is a complete and accurate copy of the original that’s been erased, Your Honor. That’s sufficient foundation.’
‘Alas, Mr Hardy’ – Soma’s dramatic reading made Hardy want to punch him – ‘Ms Reygosa didn’t make the copy. The copy was made by one Juan Xavier Gonzalez, who has returned to his native Honduras after somebody took a hard look at his immigration status.’
The Mercy Rule Page 38