Hardy 03 - Hard Evidence

by John Lescroart

  Hardy had never had any indication that Celine gave a damn about the money. He was interested in Farris, wanted to locate him. ‘So he was home? He wasn’t out of town?’

  ‘I think I just said that.’

  ‘That’s right, you did.’ She didn’t want to talk to him and he wouldn’t force it. He was, after all, defending the man on trial for her father’s murder. ‘If you talk to him again would you tell him I’d like a word with him?’

  She looked him over, glanced at Jane, came back to him. ‘Certainly,’ she said. ‘Now if you’ll excuse me.’

  Jane, almost protectively, took Hardy’s arm, holding him as they watched her walk away.

  As she opened the courtroom doors, Celine turned back to look again, seeing Hardy, Jane’s arm through his. From her perspective he realized that this attractive woman who had been at his side since the trial started was at least a new girlfriend. Celine knew it wasn’t his wife, whom she’d seen twice at their house.

  More reason for her to be hostile, he thought. Celine must believe he had lied to her, that he had decided to stop seeing her not because he was married but because he had found someone new.

  * * * * *

  When Fowler was led in, Jane squeezed Hardy’s arm. ‘Oh my God.’

  He was wearing the clothes Jane had brought, but he looked more like a bum wearing a borrowed suit. Everything seemed to hang wrong. The tie wasn’t tightened and his top button was undone. The pants, beltless, fell over his shoes. His hair didn’t look like it had been washed or combed. His eyes were red-rimmed.

  He patted his daughter’s hand after the guard led him to the table. Smiling weakly, he told her and Hardy that he was all right, he would be fine. May’s death had hit him hard, that was all.

  Jane did her best to get him fixed up before they brought the jury in — tie, top button, hair. When the disgruntled jury started to file in, she went back to the gallery, and everybody waited for the judge.

  * * * * *

  Chomorro’s first order of business was to apologize to the jury for the need to sequester them. ‘At the end of the day yesterday we had an extraordinary set of circumstances develop and I determined that, having put all of you through as much of this as we’ve already done, we would try our best to keep those efforts from being wasted in a mistrial. In brief I will tell you that a central prosecution witness in this case — May Shinn — committed suicide yesterday.’

  This was not news to anyone in the gallery so there wasn’t the expected buzz, but Hardy could see the effect it had on the jury. Each of them — some more obviously than others — scanned the defense table.

  ‘At the time there was considerable media conjecture, as you might imagine, as to how this development related to the case we are hearing now, and my purpose in having you sequestered was to keep you from that exposure. I apologize for the need to have done that, but in my view it was essential to keep this trial on track.

  ‘That stricture has now been eased and I will be letting you go to your homes for the weekend. However, let me admonish each and every one of you again, do not discuss this case or the evidence you are considering with anyone while we are still in this proceeding.’ Chomorro took a sip from a glass of water. ‘You are probably going to be unable to avoid hearing opinions about the defendant’s relationship with Ms Shinn. You may also hear that Mr Fowler visited Ms Shinn yesterday morning. I must make it clear to you, however, that these two events — Mr Fowler’s visit and Ms Shinn’s death — are causally unrelated and, for the purpose of this trial, not relevant.

  ‘The coroner has issued an unequivocal verdict of death by suicide for Ms Shinn. The police department has already determined from their investigations that there is no evidence linking Mr Fowler to Ms Shinn’s death. In light of that I instruct you to disregard any rumors or opinions you might come across that purport to establish that link — there is no factual basis for it.’

  Chomorro stopped again. Hardy patted the back of Fowler’s hand and got a wan smile in return.

  The judge took another sip of water. ‘Now, moving along, counsel for both parties here have stipulated to the facts Ms Shinn was to present in her testimony.’ Chomorro stopped reading and made eye contact with the jury. ‘You may want to take notes, as the facts you are about to hear may possibly not make the impression they would if you heard them recited by a witness on the stand.’ He adjusted his glasses and again looked down at the desk in front of him. ‘One, you are to take as an established fact that Ms Shinn spoke to Mr Fowler in March and told him that she had removed the murder weapon, People’s Exhibit One, from her apartment and kept it stored in the desk next to Mr Nash’s bed aboard the Eloise.’

  From the reaction, the jury understood the significance of this fact. Even without ornamentation, it was a compelling point, but Hardy had decided there was nothing he could do about it. Those points were on the board; Hardy put them behind him. He had fought for the phrasing of the rest of the stipulation and sat forward in his chair waiting for it.

  ‘Two,’ Chomorro continued, ‘it is also a fact that, during that same conversation, Mr Fowler asked Ms Shinn if she would consider reestablishing their relationship — Fowler’s and Shinn’s — if she stopped seeing Mr Nash.’

  Hardy let out the breath he’d been holding. That was better than ‘if something happened to Mr Nash.’

  Chomorro kept reading. ‘Ms Shinn answered that she did not know and could not say. She did say she loved Owen Nash and that Mr Fowler had been someone she felt very close to.’

  Hardy winced inwardly at the emphasis.

  * * * * *

  Pullios, speaking in a relaxed tone, was nonetheless teeing off on Gary Smythe. Fowler’s broker and sometimes golf partner was clearly reluctant to give what he thought was testimony damaging to his friend. Ironically, this worked in Pullios’s favor. If he were openly excoriating Fowler the jury might have reason to think there was a grudge against Andy, something personal he was paying back and enjoying. But to the contrary, every word was wrung out of him, which provided strong credibility to what he said.

  Pullios was enjoying herself, as well she might, Hardy thought, after the events that had begun with Andy showing up late in the courtroom, May’s death, the sequestering of the jury, Chomorro’s admonition to the jury this morning and finally the stipulations about May’s testimony.

  Freeman may have told him the previous night that he thought he still could win it, and with the new questions he had for Farris and the Marina guards Hardy was the most convinced he’d been of Fowler’s innocence, but right now he knew he was losing the jury while Pullios had the floor.

  ‘Mr Smythe, I show you here the May sixteenth page from the desk calendar of the defendant, showing the initials “O.N.” and the word “Eloise.” She entered the page into evidence as People’s Exhibit 18, then went back to the witness. ’On or about May sixteenth, did you have a discussion with Mr Fowler about Mr Nash?‘

  ‘Yes.’ Smythe didn’t like it.

  ‘Tell us the substance of that discussion.’

  ‘Well, it wasn’t much…’

  Chomorro leaned over from the bench. ‘Try not to characterize what it was, Mr Smythe. Just tell us what was said.’

  Smythe nodded, was silent for a minute, then tried again. ‘Judge Fowler and I have been active in fund-raising for a long time. I mentioned to him I had received an invitation to a charity event that Owen Nash was sponsoring aboard his boat and he asked me if I could get him an invitation. We could double-team him.’

  ‘And how did you respond?’

  ‘I thought it was a good idea.’

  ‘And you got him an invitation?’

  ‘Yes.’

  ‘So did both of you go?’

  ‘No. As it turned out, neither of us did. I became sick and Andy decided not to.’

  ‘Did he say why he so decided, after going out of his way to get the invitation?’

  Smythe looked at Fowler, then down at his lap. ‘He was
having a hard time back then, he didn’t feel like going out.’

  ‘A hard time? Personally?’

  Hardy got up, objecting, and was sustained.

  ‘So what happened to your fund-raising plans with Mr Nash?’

  ‘You have to understand, these things go on continuously. They’re fluid in their timing. But I was a little disappointed that neither Andy — Judge Fowler — that neither of us had taken advantage of such an opportunity, and I said as much to Andy.’ He paused, looking again at his friend at the defense table. ‘Andy said he had other reasons to talk with Owen Nash anyway and he promised he’d get to him within a month.’

  Pullios hung on him for a beat, then turned to the jury. ‘He promised he’d get to him within a month,’ she repeated. Then, to Hardy, ‘Your witness.’

  * * * * *

  ‘Mr Smythe,’ Hardy said. ‘To your knowledge, did Mr Fowler ever meet Mr Nash face to face?’

  ‘No.’

  ‘Did Mr Fowler ever tell you he had made an appointment with Mr Nash to discuss anything, aboard the Eloise or anywhere else?’

  ‘No, he did not.’

  ‘Did you have occasion to talk to Mr Fowler between May sixteenth and June twentieth, the day Owen Nash died?’

  ‘Oh, yes. We talked almost every day.’

  ‘You talked almost every day. Do you recall if Mr Nash’s name came up between May sixteenth and June twentieth?’

  ‘Well, the one discussion I told Ms Pullios about.’

  ‘And after that?’

  ‘No.’

  ‘No, you don’t recall, or no, it didn’t come up?’

  ‘I don’t recall it coming up.’

  ‘If he had made an appointment with Mr Nash, don’t you think he would have told you —?’

  ‘Objection!’ Pullios said. ‘Speculation.’

  It was sustained as Hardy had known it would be, but that was okay with him.

  He continued. ‘I’d like to clarify this. On May sixteenth Mr Fowler — despite having an invitation — did not go to the Eloise?’

  ‘That’s true.’

  ‘At no time during the following month did he mention either making an appointment with Owen Nash or going to the Eloise?’

  ‘Right.’

  ‘So if I may summarize the facts elicited in your testimony, Mr Smythe, to your personal knowledge, Mr Fowler never met Mr Nash and never boarded the Eloise.’

  ‘That’s correct. Not to my knowledge.’

  ‘Is it a fact, Mr Smythe, that Mr Fowler promised, as you said, that he would “get to” Owen Nash within a month of May sixteenth?’

  Smythe frowned. ‘Yes, he did say that.’

  ‘So the fact is that he told you he was going to do it. It is not a fact that he actually did it? In fact, you are aware of no evidence at all that he did do it. Isn’t that true?’

  ‘Yes, that’s correct.’

  * * * * *

  Pullios had narrowed down her witness list to David Freeman and Maury Carter, the bail bondsman. After lunch she was obviously going to close things up for the prosecution with the character issue, leaving the jury with the impression that Andy’s consciousness of his guilt over the murder was the only possible explanation for his actions. Chomorro had made it clear he was going to allow all the testimony in this vein.

  Hardy looked forward to having Freeman on the stand. Although his testimony would get into evidence the bare facts of Andy’s unethical behavior, as a lifetime defense lawyer he would be instinctively opposed to Pullios. Hardy had, of course, talked with him several times during the two months he had been preparing for the trial and in those discussions Freeman had seemed genuinely distressed by his upcoming role as a prosecution witness.

  But facts were facts — Andy Fowler had hired him to defend May Shinn. Freeman had told Andy flat out, in Fowler’s own chambers, that in his opinion he had no option but to recuse himself from the case now that it had turned up in his courtroom. He had arranged with Maury Carter for the bail.

  In Freeman’s long career, he had told Hardy, he had never seen a judge do anything like what Andy Fowler had done. Of course, he wasn’t going to put it like that on the stand, but Fowler’s actions had been so incredible to Freeman that they beggared description.

  However, last night he had also indicated to Hardy that Hardy hadn’t lost the case yet. And that had been before they’d been certain May had killed herself, when things had looked even worse. Was he perhaps planning some emphasis in his testimony to make it less damning than it seemed on the face of it?

  * * * * *

  Chomorro decided that Andy Fowler could be readmitted to bail, and now the subdued ex-judge and his daughter made clear they did not want to be with his attorney and went off to lunch by themselves. Which at the moment suited Hardy just fine.

  57

  ‘Did you get a chronology of May for the whole week?’ Hardy asked Freeman.

  ‘Of course.’

  Hardy and Freeman were talking in the hallway. It would not do for the two of them to spend an hour lunching at Lou’s just before Freeman went on the stand for Pullios, so Hardy took advantage of what camouflage there might be out in the open halls.

  ‘Do you remember her going to the Eloise?’

  Freeman looked like he had slept in the clothes he had worn at the morgue the previous night. ‘Yes. Not a smart move.’

  ‘Why did she tell you she did it?’

  ‘They’re not going to ask me about this, you know. Pullios is going to want to know about Judge Fowler hiring me, not about May Shinn.’

  Hardy didn’t want to push, but neither did he intend to back down. ‘It’s for me, not Pullios. I want to know about May Shinn,’ he said.

  ‘All right, but I’m not sure why it matters when, if or why May Shinn went to the Eloise. I’ll tell you what she told me, okay?’ His eyes searched the hallway, perhaps looking for members of the prosecution team, then he came back to Hardy. ‘She read about herself, linked to Nash, in the Chronicle on Thursday morning — the first day it was speculated that the mystery hand might be Nash’s. She was afraid that they’d try to find something to tie her to him — a very justified fear, as it turned out. She knew her gun was on the Eloise and she decided she’d come down and remove it before the investigation heated up. But when she went there it was the middle of the day and she realized she’d be recognized, even worse, somehow be connected to what had happened. So she would come back later when it was dark or when no one was around, but by that time the police had closed it off.’

  Hardy stood with his arms folded, filtering, thinking. ‘How did she know she could get aboard? Did she have a key?’

  ‘Good.’ It was as though Freeman had been through all of this before, was checking Hardy on his thought processes. ‘No. She did not have a key. That was one of the other things that stopped her. Aside from the recognition factor.’

  ‘We’re assuming everything she said was true, now, isn’t that right?’

  ‘I believed her. Two things. One, it wasn’t unknown for Nash to forget to lock up. And two, if he’d been killed on board — which in fact he had been — perhaps the killer didn’t have a key or forgot to lock up. May thought that was likely.’

  More than that, Hardy thought, it was true. The Eloise had not been locked on Wednesday night when he had gotten to it. ‘All right,’ Hardy said, ‘so here is my question. Did May tell you she also came down early Thursday morning?’

  ‘No. Why would she have done that?’

  ‘Same reasons.’

  ‘Well, then why would she have come back?’

  ‘I don’t know.’

  Freeman paced away a step or two. He recalled something else. ‘How early? That whole week she was a wreck. Once she finally got to sleep, she sometimes slept until noon.’

  Hardy shook his head. ‘No, it was way before then. Right about when the morning guard was coming on. Say seven-thirty.’

  ‘He said he saw somebody?’

  ‘More t
han that, he said he saw May.’

  ‘On the Eloise?’

  ‘No. Walking away.’

  ‘Close up? Positive ID?’

  ‘Neither.’ Hardy, saying it, realized what it meant.

  Freeman said, ‘Well, to answer your original question, May told me she went down to the Eloise one time, Thursday afternoon, to see if she could get the gun.’

  A thought occurred to Hardy. ‘Maybe she knew Fowler’s prints were on it and she was going down to protect him.’

  Freeman shook his head impatiently. ‘She wasn’t protecting Fowler. He didn’t matter to her anymore, much as it might pain him to hear it… I wouldn’t bring up that particular point on cross… You got something here, don’t you?’

  ‘If I do, I don’t know what it is. Yesterday, when I hadn’t believed May, everything seemed tight. Today’ —Hardy lifted his shoulders — ‘I don’t know. The board tilted and I’ve got a new angle and now some of the pieces don’t fit. I’m trying to decide which angle’s the right one.’

  The right one is the one that gets your client off.‘

  ‘That May wasn’t lying?’

  But to Freeman, that had already been asked and answered. He moved closer to Hardy. ‘In any event, I hope you’ve written your eleven-eighteen?’

  He was referring to Section 1118.1 of the California Penal Code, a motion for directed verdict of acquittal, by which the judge directed the jury to return a verdict to acquit. True, this section was almost automatically invoked by defense attorneys after the prosecution rested in every trial, but especially in cases such as this one in which the evidence might be deemed insufficient to sustain a conviction. Just as automatically, the motion was nearly always denied, but Freeman was making it clear that in this case he believed it had a chance.

  Hardy said he was filing the motion but didn’t hold out much hope for it.

  Neither did Freeman, it seemed. ‘Chomorro doesn’t have the experience. This is his first big trial, he’s got to leave it for the jury.’ Having said that, he raised his hands palms up. ‘But the law is a wonderful thing, and you just never know.’