He looked in at Rebecca, pulling up a blanket around her. The bedroom was bathed in blue light from the fish tank. In the kitchen, pots and pans hung neatly from overhead hooks; his black pan glistened on the top of the gas stove.
Moving forward through the dining room he caught a whiff of lemon oil from the polished table, then —unmistakable, seductive, mnemonic — the scent of Christmas tree and woodsmoke.
Frannie sat in the recliner next to the fire, feet up and hands folded over her belly. The only other light in the room came from the tree, blinking reds and greens and blues. Nat King Cole was singing quietly in German —‘Oh Tannenbaum.’ Hardy took it all in for a moment.
‘Are you ready?’ she asked.
‘As I’ll ever be.’
Frannie patted the side of the chair, and Hardy crossed the room and sat on the floor next to her. She idly ran her hand over his head, through his hair. ‘Have you thought about after this trial?’
‘Not much. I thought we’d have this next baby, get back to real life.’
‘Are you going to be happy with real life?’
‘I’m happy with this life, Frannie.’
The fire crackled. He knew what she meant. He was in trial time — everything assumed an importance that was out of proportion to day-to-day prosaic reality. She was worried about a recurrence of the letdown he’d gone through over the summer.
‘How far did it go with her?’ she asked.
He looked up at her. Her hand still rested on his head. Her face was untroubled and unlined, beautiful in the firelight. ‘I don’t want any details,’ she said, ‘and I appreciate you dealing with it yourself. I know what infatuation is and I don’t think we need to get each other involved in them. But I need to know how far it went.’
Hardy stared at the fire, suddenly aware that the music had stopped.
‘It’s funny, I thought it was Jane.’
‘No.’ He could embroider and skate around it but he knew what she’d asked. ‘It stopped in time. It didn’t happen.’
She let out a long breath. ‘I don’t know everything you need, Dismas, but if you can try to tell me, I’ll try to give it to you.’
‘You already do, Fran.’
‘I’m just telling you — whatever it takes — we stick it through together, okay? But you have to want me —’
‘I do want you. Hey, that’s why I’m here.’
‘All right,’ she said, ‘because that’s why I’m here.’
50
‘Good morning.’
Pullios looked nice — friendly, approachable, the girl next door. She wore low brown pumps and a tawny suit the cut of which minimized her curves. Shoulder-length brown hair framed a face nearly devoid of makeup. She smiled at one and all, pleasant, but on serious business.
‘I want to begin by thanking you all for your patience yesterday. It was a long day for all of us, and I’m sure we’ll have more in the days to come, but let me assure you that your presence on this jury is one of the most important duties that can be undertaken by citizens in our society, and your time and attention here is well appreciated.’
Hardy gave some thought to an objection right away —Pullios had no business massaging the jury; that was, if anyone’s, the judge’s role. But he knew you had to walk a fine line with objections. The jury also had to feel good about him, and if he objected to Pullios saying they were appreciated, it would no doubt be misunderstood.
‘Although, like a lot of important jobs,’ she continued, ‘the pay could be better.’
A nice chuckle. Even Chomorro smiled. What a nice person this prosecutor was. She walked back to her desk, moved a yellow pad, then turned back to the jury.
‘I’m going to tell you a lot about what we know about the defendant, Andrew Fowler, and the man he murdered, Owen Nash. I make the point that I’m going to tell you a lot because you are undoubtedly going to hear that…’
Fowler had poked him. Early or not, Hardy had to get on the boards sometime.
‘Objection, Your Honor.’
To his surprise, Chomorro nodded. ‘Sustained.’ He looked down at Pullios. ‘Just make your case, Counselor. This is your opening statement. Don’t editorialize.’
‘I’m sorry, excuse me, Your Honor.’ Gracious and unflustered, this one. She moved on. ‘Early in the morning of Saturday, June twentieth of last summer — a windy, blustery day — the victim in this case, Mr Owen Nash, boarded his sailboat the Eloise and prepared to take what would be his last sail. The prosecution will prove to you, ladies and gentlemen, prove beyond a reasonable doubt, that with him on the Eloise that morning was the person who would murder him — the defendant Andrew Fowler.
‘A former colleague of the defendant, a fellow member of the Olympic Club, will tell you that Mr Fowler had talked of making an appointment to see Mr Nash to solicit political contributions from him. This was the pretense for their getting together.
‘The evidence will corroborate that Mr Nash and his killer sailed under the Golden Gate Bridge and headed south down the coast. We have an expert in tides and currents who will tell you with a good deal of precision exactly where Owen Nash fell into the sea after being shot two times with a .25-caliber pistol. The coroner will explain that the first bullet struck Mr Nash just above and to the right of his penis, the second bullet went through his heart. An expert in bloodstains will describe how this second bullet sent Mr Nash over the rail of his boat and into the ocean, at first glance a very convenient circumstance for his killer.
‘We will show you that Mr Fowler is an experienced boatsman in his own right, that he could easily have kept the Eloise at sea until the evening, when he could have guided it back into the Marina, even in high seas. A meteorologist will describe the weather on that evening —there were high winds, and small craft warnings were out.
In this weather it is no surprise that there was no one at the Marina when Mr Fowler returned.
‘He tied up the boat, leaving it unlocked, and was not seen by another human being until he arrived at work, right here in this building, on the following Monday morning.’
Here was another objection, but this time Hardy merely made a note of it. Counsel wasn’t supposed to argue evidence in their opening statements.
Pullios didn’t use notes but she returned again to her desk, playing down any appearance as a superwoman. After checking her props, she turned and continued.
‘Rather than predict what the defense will contend relating to evidence in this case’ — here a nod to Chomorro, a smile to the jury — ‘I will tell you right now that the prosecution has found no one who can point to Mr Fowler and say, “That was the man I saw on the Eloise on June twentieth with Owen Nash.” No one saw Mr Fowler on the Eloise besides Owen Nash, and he’s dead.
‘ “Well,” you’re asking, “then why are we here?” We are here,’ she answered herself, ‘first, because Mr Fowler’s pattern of behavior over the course of several months cannot be explained other than by acknowledging his consciousness of his own guilt. Duplicity, deception, abandonment of the high ethical standards —’
‘Objection, Your Honor.’
Chomorro nodded. Two for two, Hardy thought, not too bad.
‘Sustained. Let’s stick to the evidence, Ms Pullios.’
She apologized again to the judge and jury. But it clearly didn’t rattle her. ‘The prosecution will demonstrate that Mr Fowler knew the precise location of the murder weapon on board the Eloise and that he had a compelling reason to kill Mr Nash — the oldest and most lethal motive in the world — jealousy. Mr Nash had superseded him in the affections of the woman he loved, for whom he subsequently risked — and this is a fact, not a conjecture — risked his entire career and reputation as a judge and a man of honor.
‘We will show that the defendant first identified and then tracked down his rival with the help of a private investigator, that he concocted a plan for the two of them to meet, that he painstakingly arranged an alibi for the weekend of this meeting.
All these facts speak to Mr Fowler’s consciousness of guilt.
‘But all this is not to say there is no direct evidence. There is a murder weapon, for example. And on the murder weapon — not on the outside, but on the clip which holds the bullets for the gun — are the fingerprints of the defendant, Andrew Fowler.’
A stir in the courtroom. Hardy had known this would be a bad point but there wasn’t anything he could do about it. Andy’s story was all he had to tell.
Pullios pushed on; they were captivated. ‘Now, this, of course, is not direct evidence that Mr Fowler was on the Eloise with Mr Nash. Nor, obviously, is the fact that he wasn’t seen anywhere else. Nor, by itself, is the discussion with his colleague about meeting Mr Nash for political reasons. Neither, finally, is his jealousy, his hiring of a private investigator, his attempts to hide or cover up all of his activities relating to his lover, May Shinn, or his rival, Owen Nash. But the people of the State of California contend that, taken together, the evidence in this case can lead to no other conclusion — beyond a reasonable doubt, Andrew Fowler did with malice aforethought, sometime in the morning of June twentieth, 1992, shoot and kill Owen Nash.’
Hardy thought she was finished and took a drink of water, preparing to stand and begin his opening statement, but she turned back at her desk.
‘I would like to make two final but important points. One, circumstantial evidence can be sufficient to satisfy the burden of proof. Judge Chomorro mentioned this to you yesterday, and it is a crucial point here. Circumstantial evidence is still evidence, and the evidence in this case inescapably convicts the defendant.’
Hardy knew he could object but figured he’d run out his string with the jury. Any further objections would look like he was trying to keep something hidden from them. He let her go on uninterrupted.
‘Secondly, why is there little direct evidence? Does it make any sense that a man could commit a murder and leave nothing behind by which he can be identified? Well, let’s consider that Mr Fowler has spent the better part of the last thirty years as a judge in this very Superior Court of San Francisco. During that time, he has heard hundreds if not thousands of criminal cases. Is it any wonder that a man with this experience would leave little or no physical trace of his presence?
‘Ask yourselves this — if your job is evaluating evidence, if you are intimately familiar with how the legal system works in all its detail, if you know every test and every procedure someone will use to catch you, don’t you think you could avoid leaving anything incriminating behind? ’I think I could. I think Andrew Fowler could. And did. The evidence will speak for itself.‘
* * * * *
‘You’ll have to bear with me,’ Hardy began. ‘I’m in a bit of a bind.’ His legs were so weak with nerves he didn’t trust himself to stand, either at attention or at ease, in front of the jury, so he leaned back against his table, hoping his legs would improve as he got going. ‘The charge against my client is murder, the most serious of crimes, yet the prosecution theory here is so bizarre that I hardly know how to discuss it without losing my temper or insulting your intelligence, or both.’
A sea of blank faces. Were these the same folks who had smiled, frowned, chuckled and gasped on cue as Elizabeth Pullios stood before them? But there was nothing to do for it. Here he was, and he had better get it together and press on.
‘Stripped of all the rhetoric and polite verbiage, listen to the nonsense the prosecution presents. Here is their truly astounding theory — because there is no evidence, the defendant must be guilty.’ Hardy paused to let that sink in. ‘We’ve just heard that there’s no evidence in this case because Mr Fowler was too smart to leave any. Well, I’m going to tell you something. By that standard, everyone in this courtroom — all of you jury members, me, the judge, the gallery out there — unless we’re all ready to admit we weren’t smart enough to think of a way not to get caught, if Ms Pullios’s version of justice were the law of the land, all of us could be found equally guilty of the murder of Owen Nash.’
The jury woke up. The gallery came to life and Pullios was on her feet objecting. Good. Let them see both sides could interrupt. She was sustained. Hardy had unfairly characterized her statement and was arguing to the jurors. He told the judge he was very sorry. The jury was instructed to disregard what he’d said, and he was sure they would try and, he hoped, fail. His sea legs came in.
‘All right,’ he said, ‘let me tell you, as the judge instructs me, what the defense has to prove, and then what the defense will prove. The first is simple — the defense doesn’t have to prove anything. The burden of proof rests on the prosecution and during the course of this trial, with all the direct and circumstantial evidence you will be asked to evaluate, it will be up to the prosecution to prove that Andy Fowler is guilty.’ Pullios objected again, Hardy was arguing the law, not stating the facts. She was sustained. Hardy didn’t care. ‘When you’ve heard and seen everything the prosecution has, the inescapable conclusion will be that the state has not met its burden of proof. It cannot provide evidence to prove that Andy Fowler killed Owen Nash. And, ladies and gentleman, fancy theories of guilty consciences notwithstanding, evidence is what a jury trial is all about. Until you twelve people deliberate, knowing all the evidence, and basing your judgment on it, return with a guilty verdict, it is presumed that Andy Fowler just plain didn’t do it. That’s the law and I’m sure you all understand it.’
Again — she was alienating jurors and didn’t seem aware of it — Pullios objected. This time Chomorro overruled her with a pointed comment about the latitude she had been allowed in her opening. Hardy kept his face impassive and went back to his work.
‘But — my second point — the defense plans to go beyond that. A lot of you are probably sitting in the jury box here, wondering how an eminent jurist like —’
‘Objection.’
‘Sustained. Mr Hardy, Mr Fowler is the defendant in a murder trial. He is not an eminent jurist.’
‘All right, Your Honor.’ Hardy walked to his table and took a drink of water. The jury was waiting for him when he turned back to them. ‘I’m sure all of you believe, to a greater or lesser extent, in our criminal justice system. It’s why you’re all here doing your civic duty. As Ms Pullios said, you are doing an important job, giving up important other work, to be part of this process. We very much appreciate it.’
Hardy had swiveled half away from the jury and nodded to Pullios. Back to the box.
‘It is one thing to say you believe in the presumption of innocence. It is quite another to come here, as you are now, sit in a jury box and look at a man — a man who used to be a judge — sitting at the defense table accused of committing the most serious crime a man can commit, murder in the first degree, and not believe there isn’t some powerful, compelling, overwhelming reason why that person is there. His very presence seems to be an argument for his guilt.’
The judge rapped his gavel. ‘Mr Hardy, we’ve gone over this in voir dire.’
Hardy stopped, consciously slowing himself down. Not exactly given to theatrics, he suddenly found it completely natural to point at Andy Fowler. ‘That man,’ he said, lowering his voice, ‘has been a member of the legal community in this city for more than half his life —’
Pullios popped back in. ‘Objection, Your Honor.’
‘No, I’ll overrule that, Counselor. That’s a fact.’
Hardy thanked the judge. ‘That man,’ Hardy repeated, still pointing, ‘will be the first to admit he made a grievous error of judgment. From that one mistake he was drawn to others, perhaps more serious, until at last he had sacrificed his good name, his standing in the community, the respect of his peers.’
He found himself standing very close to the rail separating the jurors from the courtroom.
‘Now who are Andy Fowler’s peers? They are the professional prosecutors, the policemen, the other judges in this building. They are the very people who have brought this murder indictment against him.’
/> ‘Your Honor!’ Pullios was on her feet. ‘Mr Hardy is impugning the entire grand-jury process.’
Chomorro seemed to agree, but also seemed uncertain. ‘Is there relevance to some evidence here, Counselor?’
‘Your Honor, the defense will present direct and incontrovertible evidence — eyewitness testimony from members of the district attorney’s own staff and from the San Francisco police department — that there was nothing approaching an impartial investigation leading to the indictment of Mr Fowler. The district attorney’s office concocted a theory out of whole cloth and proceeded to fill in whatever blanks they needed to get an indictment.’
There — Hardy had gotten it out, and Chomorro could overrule him if he wanted to.
Pullios took over. ‘Do we call this the paranoid defense, Your Honor? Someone was out to get Mr Fowler, so we got together and accused him of murder?’
‘Mr Hardy?’
‘It speaks to the interpretation of evidence.’
‘Interpretation of evidence is in the hands of the jury.’
Hardy nodded. ‘My point exactly, Your Honor.’
But Pullios wasn’t ready to quit. ‘The evidence must speak for itself, Your Honor.’
Chomorro banged his gavel. ‘All right, all right. Hold on a minute here.’
The courtroom hung in silence. By its absence, Hardy for the first time noticed the ticking of the court reporter’s keys. Finally Chomorro spoke up. ‘I’ll overrule Ms Pullios’s objection. You may proceed, Mr Hardy.’
Hardy took a deep breath and let it out slowly. He didn’t want to betray that he was sighing in relief. He’d also blanked on where he was going. He walked to his table and checked his outline.
‘You’ve already heard the term “consciousness of guilt” in the people’s opening statement. And I don’t dispute that there are certain actions that would seem to admit guilt. These would include such behavior as flight to avoid prosecution, resisting arrest and so on. But we’re on very slippery ground here when we’re using consciousness of guilt — a very general legal area — as a catchall for a specific crime.’
Hardy 03 - Hard Evidence Page 40