"Are you all right?"
"You always ask that, you know that?"
"I'm sorry. Bad habit. It sounds like you've been crying."
"What if I was? My mother's just been killed. I guess I can cry if I feel like it. Is that okay with you?"
Gina thought that there was no winning with this young woman. Biting her tongue, repressing a sigh that she was certain would be misinterpreted, she summoned her most neutral voice and said, "I'm on my way back to your father's hearing, and I have a question for you."
"I might not know the answer." She said something else that Gina couldn't pick up.
"What was that?"
"Nothing. I was talking to somebody else. What's your question?"
"When you talked to your mother on that last Sunday, did you tell her you weren't going to school?"
"No. Why would I do that?"
"I don't know. I'm just asking. Your father wanted to know too."
"Why do you always say, ‘your father,' like it was this big formal thing? Why don't you just call him my dad?"
"Okay, Kymberly, your dad wanted to know what you'd talked to your mother ... to your mom about. If it wasn't about school."
"Money. To tell her I was going to need money."
"Wasn't she sending you money?"
"Yeah, but that was directly to the dorms. I told her I met some people and we'd decided to rent an apartment instead, so she should just send me the money directly."
"And what did she say to that?"
"What do you think? That she wasn't going to do that."
"Did she say anything else?"
"The usual. Was I taking my pills? I shouldn't leave the dorms. Blah blah blah."
"So that was the whole talk?"
"Pretty much. She had to go out as usual, so she cut it short."
"Did she say where she was going?"
"She said she had an appointment."
"Did she say with who?"
"No. It was just the usual. 'I've got an appointment.' Covers for everything."
"Kymberly," Gina said. "Would you please try to remember if she said anything about who she was meeting. It might have been the last person to see her alive before she was killed. It might even have been her murderer."
Nothing again from the daughter. "She said she had an appointment, that's all. Hey, is my dad there? Can I talk to him?"
"He's in a cell behind the courtroom right now, Kymberly. He left you a message that maybe you can come see him this afternoon during visiting hours. He'd like that."
"Yeah, well," she said. "I don't know. You can tell him I took one of my pills. I'm getting a little tired. I'll see how I feel."
And without another word, Kymberly hung up.
Gina sat at the defense table, waiting for Stuart to be brought in. Judge Toynbee had declared the lunch recess a little early, and now a long afternoon loomed before her. Though it shouldn't have made any difference, she was acutely aware that the rooting section of her lunch mates had all gone back to their regular jobs. The fact that Dismas Hardy was going to try to get in touch with Wyatt Hunt and assign him to get some facts about PII and Bill Blair didn't quite make up for the irrational feeling Gina had that she'd been abandoned. Ridiculous, she knew. She was a big girl. But the show of support in the morning had been unexpected and very nice. She glanced back. Debra Dryden was still waiting in the hallway because Abrams had subpoenaed her and she had to stick around. In spite of Debra's strong and positive feelings for Stuart, to Gina she really didn't feel like much of an ally. And Jedd Conley's appearance this morning had evidently been token as well, since now there was no sign of him.
On the prosecution side, however, the only evacuees were the morning's two witnesses, Strout and Faro. At this very moment, Abrams was talking animatedly with Juhle, Clarence Jackman, and a couple of the uniformed cops who'd been out there all day. Suddenly, a general laugh broke out in the group, no doubt someone with a joke. Guys sure could find a way to laugh just about anytime, she noted. And, in fact, what wasn't for them to laugh at? They sure didn't have to prove much at this hearing; they were a united team; nothing was that serious anyway; it was a man's world.
Gina abruptly turned her back on the gallery, thinking fuck that noise. She wasn't going to let herself get sucked into that negative thinking. She might be alone here, all right, but she was a damned competent lawyer who'd beaten many a man before. And, she told herself, this time she had the truth on her side. Okay, guys, she thought, I'm ready. Bring it on.
31
By its nature, a preliminary hearing tends to be short on narrative thread. There is no real opportunity for or tolerance of argument. In theory, the proceeding marshals and presents the evidence against a defendant in such a way that it speaks for itself. This structure, coupled with the probable-cause standard of proof, allows both sides to play a little fast and loose with witnesses and even, sometimes, with physical evidence, since no formal explanation of the relevance of the various elements of a case is required in advance.
This would probably be good for Gina when it came time to present her own alternative theories of her case—the connection of Caryn Dryden to Kelley Rusnak and to PII, the inadequate police interrogations of alternate suspects with strong motives and into Caryn s financial and personal lives, the rush to judgment on Stuart because he was the spouse—but it made it difficult to know how to deal with a prosecution witness such as Officer George Berriman of the Highway Patrol, a well-groomed, good-looking, friendly man on the sunny side of thirty.
Over Gina's continuing objections on relevance, Berriman's testimony put into the record that Stuart had been upset when he'd been pulled over on the Friday night before Caryn's death and that he'd said he was going up to the mountains for the weekend, because otherwise he might kill his wife, with whom he just had a bad fight. There wasn't anything Gina could do. It was what it was. Not devastating, but very far from helpful. But she thought she could make a small point or at least put in a dig to Abrams.
"Officer Berriman"—she stood again in the center of the courtroom—"in the course of your average working day, do you pull over many people and give them speeding tickets?"
"Sure. That's a big part of the job."
"And you've testified that Mr. Gorman was very upset when you pulled him over, is that right?" Yes.
"Well, let me ask you this, officer. Do you run into a lot of people who are ecstatically happy that you've pulled them over to give them a speeding ticket?"
A ripple of low laughter ran through the gallery behind her as Berriman told her no.
But she barely waited to hear him say it before she all but waved him away with a curt, "No further questions." Without moving, she looked up at the bench.
The judge took the cue. "I think I hear a relevance objection from Ms. Roake. I'll let it in for whatever it's worth, which I have to say isn't much."
Buoyed by Toynbee's rebuke to Abrams, Gina went back to her table fighting to hold back any sign of smugness or confidence, but when she sat next to Stuart, she leaned over and whispered. "We're now three for three, which makes them oh for three."
"Okay, at last you've convinced me," Stuart said. "I'll cut you your check. You're hired."
Before calling his next witness, Abrams introduced as evidence the tape of the 911 call Stuart had placed after discovering Caryn in the hot tub.
Gina of course had obtained a transcript of this with her discovery documents and was familiar with the actual words, but hearing it played back in the courtroom underscored even more dramatically the absence of any sense of grief. Stuart’s voice—calm, rational, detailed, matter-of-fact to a chilling degree—couldn't have sounded less like a panicked husband who'd just come home to discover his wife dead.
Abrams didn't dwell on the tape, but called his next witness, Captain Allen Marsten from the Central Police Station, the first police officer on the scene, who did his own damage dealing as he did with Stuart's attempted CPR on Caryn while she was in a state of full r
igor mortis. His testimony was certainly relevant and gruesomely powerful, with him entering through the open door (in other words, Stuart hadn't started trying to resuscitate his wife until after he had called 911 and then opened the front door), easily persuading Stuart to give up on the artificial respiration, describing the contorted position into which Caryn's body had stiffened.
Particularly effective was the wrap-up, which Gina knew was a preemptive assault on what would be her only argument—that Stuart had been so overcome with emotion after he'd discovered his wife in the hot tub that he had tried to breathe life into her even though it might have been apparently hopeless.
"So, Captain Marsten," Abrams said. "After the defendant stopped with his attempt at artificial respiration, what did he do next?"
"Well, he stood up, pulled a towel over the body, and asked us if we'd like some coffee."
"Coffee?"
"Yes. He said there was a fresh pot he'd made before he discovered his wife. Sergeant Jarrett and I both told him no thanks."
"Was the defendant crying or otherwise visibly upset."
No, sir.
"All right. What did he do then?"
"He told us he could use another cup, and walked into the kitchen."
"Did he look back at his wife's body at all?"
"No, sir. He just went inside and poured himself a cup of joe." Gina stole a glance up at Toynbee just as he allowed himself a piercing gaze at Stuart. Obviously, Marsten's testimony, unadorned as it was, had made an impression on the judge. He was looking at Stuart as though he'd never seen him before.
After this strangely powerful lead-in, Abrams called Devin Juhle to the witness stand. His testimony, based to a large extent on her client's own conversation with him on that first morning, was relevant and potentially damning.
Over an hour and a half, it all came out. It began with Stuart's direct testimony—captured on tape and transcribed—starting with the divorce ultimatum, Stuart's various admissions about the troubles in the relationship, the financial ramifications of Caryn's death, and the couple's marital history, including his interviews with the neighbors who'd told him about the two domestic disturbance calls to the home. It went on with Stuart's suggestion to Juhle about about the Vicodin upstairs and the 105-degree hot tub. Then Bethany Robley and her unwavering identification of Stuart's car on the night of the event, plus the threats to her delivered on Stuart's behalf by his own daughter.
Gina objected that they couldn't tie the alleged threat to Stuart, but...
After that, Abrams backtracked to the warrant Juhle had pulled on the cabin and the havoc wreaked therein, talked about the discrepancies in the timing of the drive from Echo Lake, offered his own scenario of a more plausible late night/early morning drive from San Francisco to Rancho Cordova and back. Then Abrams fast-forwarded Juhle through to some of the details of the arrest, Stuart's apparent armed flight down to a motel in San Mateo, the loaded gun in Stuart's possession when Juhle broke in the door to make the arrest.
In all, it was exactly the kind of narrative, from a highly skilled and experienced witness, that Abrams was prohibited from delivering himself. The prosecutor didn't have to say "consciousness of guilt," a formal legal construct that sometimes could possess the power to convict. His witness's testimony eloquently delivered the message.
This was the way it was supposed to work.
But remembering David's rallying cry that defense work wasn't for wimps, when Abrams turned to her after he'd finished and said, "Your witness," Gina gave Stuart, next to her, a couple of confident pats on his forearm, then briskly rose from her chair and strode to her place in the middle of the courtroom.
After a respectful nod at Toynbee, Gina then directed her attention over to Juhle, who sat relaxed in the witness box. "Inspector Juhle," she began, "your testimony about Stuart's timetable on the morning after the event was based on the discussions you taped that morning with him, isn't that correct?"
In an effort to humanize her client to the court, Gina would always try to refer to Stuart by his name, whereas the prosecution would always call him the defendant, or even simply "defendant," without the "the." These little honorific games might be silly and may or may not have ever made an actual difference in a verdict, but attorneys for both sides tended to feel that they could only ignore them at their own peril.
"... was based on the discussions you taped that morning with him, isn't that correct?" Yes, it is.
"He told you he left his cabin at Echo Lake at around two a.m., isn't that right?"
"He actually said it was a little before two."
"Ah, a little before two, thank you. Now would you please tell the court how you came into possession of the receipt from the gas station in Rancho Cordova indicating that Stuart pumped gas there at four fifteen a.m.?"
"You gave it to me."
"So I did," Gina said. She thought the point would be clear enough to the judge. As Stuart's lawyer, she wasn't about to hand any evidence over to the police if she thought it pointed to his guilt. "And did you have occasion to discuss with Stuart the discrepancy in time that you brought up in your answer to Mr. Abrams?"
"Yes, I did. I asked him if anything had held him up on the drive down from his cabin that could account for the extra time. And he said no."
"Did he elaborate beyond that?"
"Yes. In a later statement, after he was in jail, he said he must have been wrong with his initial guess of when he left."
"In other words, his earlier statement about his timing was an estimate. Not, as you testified earlier, definite?"
"Objection, Your Honor. Calls for conclusion."
It did, and Gina knew it, but she didn't care. Toynbee sustained the objection, but she went right on. She knew that there was precious little she could do about Stuart’s admissions that he and Caryn weren't getting along, or about the kind of money he stood to come into upon her death. And she'd deal with the neighbors and Bethany Robley's testimonies when they were on the stand. But she knew that the entire consciousness of guilt edifice that Abrams and Juhle had so carefully constructed, and that had made Juhle's testimony appear so formidable, was largely built on sand. And she intended to kick the foundations out from under it.
"Inspector Juhle, on the morning of Stuart's eventual arrest, did you have occasion to see him at all?"
"I did. At his house."
"Did you go over there to serve your warrant for his arrest?"
"No. We didn't have the warrant yet."
"You didn't have the warrant yet. This was the day the warrant was issued, was it not?" Yes.
"But you didn't have it yet. Then why did you go over there?"
Juhle shifted in the chair, his first real sign of nerves. "You called me on your client's behalf, and asked me to come over to look at some e-mails he'd apparently received."
"E-mails? What was the nature of these e-mails?"
"They were apparently threats to your client."
"What kind of threats?"
"Death threats."
"From whom?"
"I don't know. Someone who signed himself 'Thou Shalt Not Kill.'"
"How many of these e-mails were there?"
"Three."
"And when did my client receive the last one?"
"On the Friday before . . . before. The Friday before," he said.
"Before the event, you mean?" Gina wasn't going to refer to Caryn's death as a murder since the prosecution had been unable to prove that it was.
Juhle clearly hated this "event" business. "Yes. Before the killing."
"So two days before the event in question, Stuart had received an e-mail threatening him with death? Is that correct?"
"That's what he said. It's what it looked like."
"And what did you do with this information, Inspector?"
"I didn't do anything. I thought it likely that your client had sent it to himself."
"And the other ones as well?" Yes.
"Including the on
e during the week he was wilderness backpacking with a California assemblyman and another friend in the Bitter-root Mountains?"
Juhle shrugged. "He could have had anyone send it to him."
"True," Gina admitted. "But again, Inspector, this was possibly exonerating evidence in this matter, just like the credit card receipt from Rancho Cordova, that Stuart voluntarily shared with you, isn't that right?"
"For what it was worth," Juhle replied, "which wasn't much."
"Move to strike, Your Honor," Gina said. "Nonresponsive."
"Sustained."
"Just yes or no, please, Inspector," Gina added. "Spare us the editorializing."
Abrams was on his feet. "Your Honor . . . !"
"Now hold on, both of you!" Toynbee said. "We're not doing this. You both know how to ask questions and make objections, and you'll do it from now on. Clear?"
Gina bit back her reply—that nothing Stuart had given to Juhle appeared to have any worth to him because the inspector had already made up his mind ahead of the evidence. But she didn't want to get into a pissing contest, not when she had a better way to bring him down. "Inspector, while you were with Stuart on this same morning, the day of his arrest, did you inform him that he was a suspect?"
Juhle broke a tolerant smile. "He already knew that."
"He did. How? Did you tell him?"
"I assumed he'd read the papers. He'd hired a lawyer."
"All right." Again, Gina wasn't going to argue the merits, though they were on her side. She had Juhle without them. "And so, because Stuart was a suspect, you ordered him not to leave the city, to stay in your jurisdiction, isn't that correct?"
The first signs of anger coming off him like tiny sparks, Juhle flicked a look at Abrams before he came back to Gina. "No, that's not correct. We hadn't decided to arrest him yet."
"So Stuart was an unconstrained citizen, free to go where he liked?"
"Technically."
"Not just technically, Inspector. Absolutely. He could have taken a plane to another country and not been disobeying any order of yours, isn't that true?"
Hardy 11 - Suspect, The Page 29