Hardy 03 - Hard Evidence

by John Lescroart

  ‘That would have come up long ago.’

  ‘Nope. His prints weren’t in the right databank. We run a print we find on the gun through known criminals and nothing comes up, what are we supposed to do, check every fingerprint file in the universe?’ Glitsky shrugged. ‘It hurts me to say it, but these things sometimes slip through the cracks.’

  Hardy swore.

  Glitsky nodded again. ‘Probably some combination of both.’

  ‘Abe, I forced myself to play devil’s advocate, but the truth is, I can’t believe he did it. That, he wouldn’t lie about —’

  After a moment’s baleful stare, Glitsky rubbed a finger into his ear as though he’d heard something wrong. ‘Excuse me,’ he said, ‘I thought I heard you say a perp wouldn’t lie to you?’

  This is not any old perp, Abe. This is my ex-father-in-law. I know him.‘ Or at least he thought he did. ’A Superior Court judge, for Christ’s sake.‘

  Abe reached over and grabbed the rest of Hardy’s burger. ‘I can tell you’re not going to eat this… You said you’ve got a polygraph for today, right. That’ll tell you. Maybe. And maybe not.’ Abe smiled his awful smile.

  * * * * *

  The polygraph technician — Ron Reynolds, a tall, thin man in a gray suit, white shirt, blue-and-black tie — was waiting for him in the second-floor visitor’s lounge of his office near the Civic Center.

  After introductions they got right down to business.

  ‘Are you going to stipulate for admissibility?’ Reynolds asked.

  ‘I’m not doing it for admissibility. I’m doing it for me.’

  This wasn’t the first time Reynolds had heard an attorney say that. Occasionally, though not so very often, they wanted to believe their clients.

  Hardy went on. ‘Also, though, I thought the fact my client was willing to take the test might have a positive effect on the jury.’

  ‘If you can get that admitted, which I doubt.’

  ‘Well, I can try.’ Hardy took out a pad of notes and they started to go over them. He had twenty-odd ‘yes’ and ’no‘ questions Fowler could answer that related to Owen Nash and May Shinn. Reynolds had ten-or-so more for what he called calibration.

  ‘You’ll go over all of these with him before the test? No surprises, right.’

  ‘Sure. Are you planning on being there?’

  ‘Outside. Close by.’

  Reynolds thought that was the right answer. ‘It’s better without interruptions,’ he said.

  * * * * *

  But before he had Andy Fowler take the test, Hardy needed some answers of his own.

  They were again in Visitors Room A. The guard was still holding the judge by the arm when Hardy, who’d been pacing by the table, started. ‘You want to tell me how your fingerprints got on the inside of the murder weapon, on the clip?’

  Fowler stopped dead. The guard didn’t move, either.

  Hardy stared at his client for a moment, then recovered. He pointedly thanked the guard and waited until he withdrew and closed the door behind him.

  Andy had recovered. ‘Are you kidding?’

  ‘Don’t give me that, Andy.’

  ‘My fingerprints?’

  Hardy was angry. Every day brought him more into the case, more committed to getting Andy off, but that was mostly because he kept telling himself that the judge was innocent. He’d told himself that he would only stay with Andy’s defense if he had a reasonable certainty that he wasn’t guilty. Of course, no one but the murderer, Andy or not, would ever be one-hundred-percent sure of what had happened on the Eloise, but Hardy wasn’t a hired gun. He wouldn’t have gone on, he wouldn’t go on, if he knew Andy had done it.

  Fowler swore softly behind him, and Hardy turned around.

  ‘I loaded the gun for her, Diz. This is unbelievable. It was months ago. It never even occurred to me, Diz, I swear to God.’

  ‘You loaded the gun for her?’

  He nodded. ‘She was afraid to touch the thing. One of her earlier — someone had given it to her and she’d never even loaded it. It was in the headboard of her bed. I told her there was no point in keeping a gun for protection if it wasn’t loaded so I loaded it.’

  ‘It wasn’t on the headboard of her bed, Andy. It was on the Eloise.’

  ‘She told me she didn’t want it in the house. She hated it. I couldn’t take it, I couldn’t take a gun registered to another person.’

  ‘Because you were a judge and didn’t want to break any laws?’

  Fowler tried to smile. ‘Before my little problem with the Shinn trial, that’s how I was, Diz.’

  Hardy slammed the table between them. ‘Goddamn it, Andy! That wasn’t a “little problem” at the Shinn trial. That’s the whole reason we’re here.’

  ‘I understand that, Diz.’ Said quietly.

  ‘Well, then, how do you expect me to sell a jury on the idea that you were such a paragon of virtue that you wouldn’t take May’s gun to your house when six months later… ?’ He checked himself; yelling at his client wasn’t going to do either of them any good. He turned away.

  ‘It’s a good point, Dismas, but it happens to be the truth.’

  ‘So maybe when May started seeing Nash he didn’t have your scruples and let her store the gun on his boat?’ Hardy was back at the window. Andy Fowler had an answer for everything, all right, but it was easier to listen without having to see what he was doing with his face.

  He felt for a moment like he was in Gone With the Wind. He’d think about it tomorrow. For today, at least he had an explanation for this latest revelation — tomorrow he’d decide if he could believe it.

  * * * * *

  They’d gone over the polygraph questions one at a time. Fowler advised Hardy to try and get Pullios to stipulate to the admissibility of the results of the test. He told him that if, before either of them knew how it came out, Hardy offered to permit her to use the results, no matter what they were, she might agree to let them be entered as evidence.

  Of course, she might not. Andy’s suggestion did have the effect of moving Hardy back toward thinking his client might be telling the truth, but of course Andy would know that. Circles within circles.

  In any event, Hardy didn’t hold out much hope Pullios would go for it. Sticking with polygraph inadmissibility was the smarter course from her perspective — she’d figure her case didn’t need it, and a good showing on the polygraph by Fowler could only hurt her.

  Unlike defense attorneys who only had a duty to their clients, the job of prosecutor included not just presenting state’s evidence, but ensuring that the defendant got a fair trial. The defendant was a citizen of the state, one of the people the prosecutor was sworn to help protect.

  Except Hardy knew Pullios, and this nicety was, he believed, lost on her.

  Which led him to his bold, unorthodox strategy —

  ‘How’s jail treating you?’

  Fowler shrugged. ‘It’s like a good hotel, only bad. Why?’

  ‘I don’t want you mistreated. This bail situation is intolerable.’

  ‘I am a little surprised at Marian.’

  Fowler was a little surprised at Marian! At Judge Marian Bruan. Hardy couldn’t get over Andy’s seemingly ingrained sangfroid. Like Marie Antoinette apologizing to her executioner for stepping on his toe; Fowler too was unfailingly polite, refined, even self-effacing. It wore well in the world, but here in jail, in his prison garb, it was somehow at once incongruous and pitiable.

  It was going to be next to impossible to choose a jury resembling this man’s peers.

  ‘Well, Marian notwithstanding, Judge…’

  ‘Better get out of that habit, Diz. Not judge, Mister Fowler. Remember, Marian made the point.’

  Hardy pressed on. ‘Marian notwithstanding, Andy. I think if you can live with your situation for a while we can use it to our advantage.’

  Hardy’s theory involved doing away with many of the time-honored traditions of the Superior Court, but he didn’t think he or
Fowler could make any new enemies if they tried — all the available ones were taken.

  His primary defense, of course, would be that the prosecution had failed to prove their case beyond a reasonable doubt. The evidence did not prove that Andy Fowler had killed Owen Nash. There was probably motive, or purported motive, but motive alone should not be enough to convict. So he had a defense, a passive defense. He wasn’t sure it would be enough.

  Pullios, he was certain, was going to use all of the physical evidence she had, but she would probably build her case around a ‘consciousness of guilt’ theory by which a defendant’s actions, such as flight, resisting arrest, lying to interrogators and so on, were admissible evidence showing the defendant to be ‘conscious of guilt’ — even with little other evidence, those actions could as a matter of law be sufficient to establish guilt beyond a reasonable doubt.

  There might not be a smoking gun here, Hardy knew, but Fowler’s unethical behavior while on the bench rang, sang and went siss-boom-bang with consciousness of guilt.

  So he needed something else if he wanted to get Andy out of jail, and the court had steered him in the right direction. Beginning with Pullios as she proceeded backward from suspect to investigation, on through Marian Braun’s decision to deny bail, this case, he could argue, had been riddled with demonstrable prejudice against Andy Fowler. Hardy, thinking it likely they couldn’t get a fair trial on account of prosecutorial and judicial prejudice in San Francisco, had at first considered trying for a change in venue but then the other thought — the strategy — occurred to him.

  In San Francisco it was likely they would get a judge hostile to Andy, possibly even to himself. They would, in fact, further antagonize both the judge and Pullios by demanding a trial immediately, as was their right. (In the Shinn matter, Pullios had wanted to proceed to trial quickly and had gotten hurt by it — now that she was slowly building what she thought was a strong case she’d be opposed to rushing it through.)

  Hardy would argue that so long as his innocent client was being held without bail, it was unreasonable to ask him to suffer any delay. He was innocent until proven guilty and he was rotting in jail.

  Hardy figured this approach could prevail in more ways than one. First, the presiding judge might reconsider bail. If that didn’t happen, then scheduling an immediate trial would, he hoped, maybe disconcert Pullios — he’d seen how the swirling events with May Shinn had led even Pullios to slip on some details such as checking the phone records. She also could get testy, personal, which could hurt her credibility in front of a jury. He hoped. At least if he could keep her covering her fronts he figured he would cut down on her efficiency. Her effectiveness.

  Finally, in the event they went to trial with Andy still in jail, with a hostile judge, and Pullios got the conviction, Hardy could make the argument on appeal that there had been a de facto conspiracy against Fowler to obstruct justice and due process, from investigation to incarceration to trial.

  Fowler heard out Hardy’s argument. ‘I’m not too thrilled with the idea of setting a mistrial in motion to win on appeal.’

  ‘It’s a last resort, Andy, granted. But we’d be foolish not to think of it now. It would cut Pullios’s prep time by two-thirds.’

  ‘And ours.’

  Hardy nodded. ‘True, but the evidence isn’t going to do it, Andy. It’s who slings it better and I believe she’ll feel rushed. I know her.’

  ‘How about you?’

  Hardy let himself grin. ‘I thrive under pressure.’

  ‘It gives us less time to find out who really killed him.’

  Hardy had been sitting on the hard wooden chair. His ribs, black and blue and yellow under his shirt, stabbed at him as he shifted now. Grimacing, he stared across the table.

  ‘Are you all right?’ Fowler asked him.

  ‘Yeah. You know what? That’s the first thing I’ve heard you say that really sounds like you’re not guilty.’

  46

  EX-JUDGE ANDREW FOWLER’S

  POLYGRAPH RESULTS

  ‘INCONCLUSIVE’ IN OWEN NASH

  MURDER CASE

  By Jeffrey Elliot

  Chronicle Staff Writer

  Former Superior Court Judge Andrew B. Fowler yesterday was not cleared in a polygraph test. The results of so-called lie detector tests are not admissible as evidence in California courts, but Fowler’s failure to clear himself was characterized by the district attorney’s office yesterday as a blow to the defense.

  Fowler’s attorney, former prosecutor Dismas Hardy, put the results in a more positive light. ‘The test did not say that Judge Fowler was not telling the truth. The judge volunteered to take the test. Would he have done that if he were guilty?’

  Ron Reynolds, a University of San Francisco psychology professor trained in polygraphy, and the man who administered the test, agreed with Hardy. ‘The reason polygraphs are inadmissible in the first place is because they can have a wide degree of variability, of accuracy, according to the subject’s mood, his familiarity with the testing procedure, his understanding of the questions. Judge Fowler seemed to be extremely uncomfortable with the entire process — we could not even get a good calibration on him in four passes.’

  Hardy added: ‘There was no indication whatsoever that Judge Fowler was not telling the truth.’

  Mr Drysdale replied: ‘There was also no indication whatsoever that the judge was not lying.’

  In a related development, the Chronicle learned from a reliable courthouse source yesterday that Judge Fowler’s fingerprints have been found on the loading chamber of the murder weapon, a .25-caliber Beretta semi-automatic handgun registered to May Shinn, who had been the lover of both Owen Nash and former Judge Fowler.

  The case will be scheduled for trial on Monday morning.

  * * * * *

  Hardy had to learn to hold his comments in front of the jailhouse guards, even though they might be known to the prosecution. He knew who the ‘reliable courthouse source’ must have been about the fingerprints. His good statements to the press notwithstanding, the polygraph was a blow. It was all well and good to tell Jeff Elliot that there had been nothing that showed Andy was lying, but the test, from Hardy’s perspective, had brought up his old doubts about Andy’s innocence. On the other hand, he reminded himself, Andy’s nervousness could have been real — after all, everything about his predicament in jail was strange and scary. And what about Andy’s position that his best shot at proving he didn’t kill Nash was to find out who did? But outside of Glitsky and maybe Jeff, who owed him, where did he go for finding that out? And even with them, a few tenuous leads, some serendipitous snooping by Jeff… none of these were too hopeful.

  He stood in front of his desk and threw darts, round after round. There were household noises — Frannie was doing some vacuuming, Rebecca got hungry and cried, Garth Brooks serenaded a CD’s worth from the living room. The sun got higher.

  He was due in Master Calendar in two days. Based on the presumption that his client was innocent and being held without bail, he planned to push for an immediate trial. He would not waive time, and this would anger Pullios and whatever judge they got. They would not challenge the judge, whoever it might be. The newspapers were already leaning toward Fowler’s guilt, and Hardy thought it would be easier to find a heterosexual on Castro Street than to find a prospective jury member in this city who didn’t already have an opinion on Andy Fowler and Owen Nash.

  Risks. Too many?

  Leaving out the biggest — if Andy had in fact done it —Hardy’s doubts came and went. He just didn’t know. Not yet, anyway.

  * * * * *

  Personally Hardy’s own blackness had lifted — it was gone, vanished like a virulent flu that had done its damage and moved on.

  He could think of no better place to be than where he was now — defending Andy Fowler. Since he had discovered Owen Nash’s hand last June, this case had been central to his life — his marriage, his career, his view of himself. He would, by Go
d, see it through — if he had to wring it from some collective necks, he would get to the truth.

  47

  Superior Court Judge Marian Braun gavelled the room to order. Hardy had been sitting in the jury box to Braun’s right. Twenty minutes before, Elizabeth Pullios had come in with her entourage — the same assistant D.A. she’d had last time and what looked to be a law student/clerk. She sat at the prosecution table, busily conferring, ignoring Hardy completely.

  They had called six of the earlier ‘lines,’ and the various defendants had been paraded before the bench. Two of them had been assigned to courtrooms, three were continued, and defense attorneys assigned, one was pled out then and there and ordered to pay a fine.

  Hardy tried not to look at the gallery. Celine was there, dressed in black, sitting next to Ken Farris in the second row. He hadn’t seen her since the day at the steam room in Hardbodies! He noticed Jeff Elliot sitting among what Hardy assumed to be a group of other reporters. Jane, of course, was in the front row, opposite Celine. Art Drysdale came through the main doors and stood, arms folded, against the back wall.

  He and Andy had discussed it yesterday — Sunday — and decided what he would wear in court. Andy didn’t own a suit that cost less than $700, so Hardy had asked Jane, the I. Magnin buyer, to hit a few lower-price racks and find something in Andy’s size with a little more of a common feel. He wanted Andy to look good — if a jury thought you looked like a criminal you were starting off on the wrong foot — but not too good. Andy Fowler, ex-judge, was going to have a problem with the jury empathizing with him in any event.

  As the bailiff was reading in the charge again, Hardy got up from the jury box and met Andy at the podium, fifteen feet in front of where Marian Braun sat. He heard activity behind him. Turning, he saw that the door was open and a larger knot of reporters was pushing in.