That was it—no hearing, no evidence. The declaration itself caused the judge to be removed forever from the case. And challenges were reported to the judicial council. Obviously, a judge with too many challenges acquired the unfavorable attention of that supervisory body.
But the move had its price.
First, the courts hated challenges. They not only dinged one of their colleagues, however deservedly, but screwed up the scheduling for everyone else, because another judge had to take the case, and someone had to take their cases, and so on. And even if the judges personally despised the object of the challenge, they despised more the hubris of a mere lawyer who dared to suggest that one of their own tribe might not be fair.
So if Hardy exercised a challenge, he would likely immediately find himself in the courtroom of the most antidefense judge that the presiding judge could find available, and that judge would have an additional motive to make Hardy’s life as miserable as he or she possibly could. Hardy knew he challenged at his peril.
So Hardy elected to roll the dice with Braun. Call him superstitious or crazy—he’d also pulled Braun for his last murder trial, nearly four years before. She hadn’t liked him any better then, nor he her. And that trial had never been given over to the jury because a key prosecution witness had changed his testimony at the eleventh hour. Nevertheless, Hardy’s client had walked out a free woman, Braun or no Braun. He’d already proven that he could win in her courtroom, and if he could do it once, he could pull it off again.
Now, as he sat in Department 25 on the third floor of the Hall of Justice, waiting for his client’s appearance in the courtroom, Hardy found himself marveling anew at the thought that they were about to begin a full-blown murder trial. He felt vaguely responsible and not-so-vaguely incompetent that things had come to this point. Surely a better lawyer could have closed the case after the PX—the preliminary hearing—which they’d had a little over four months ago, within two weeks of Maya’s arrest.
At the end of that fiasco, Maya had been held to answer. In Superior Court he’d filed the pro forma 995, which called for the dismissal of the two first-degree murder charges against Maya on the grounds that the prosecution had failed to present even probable cause to suggest she’d committed these crimes.
Hardy had even permitted himself a flicker of optimism. There might have been technically enough evidence to justify a trial, but surely the court had to see the same weaknesses in the evidence that he himself saw. That was why Hardy had demanded, as Maya had a right to do, that the prelim take place within ten court days of her arrest. He had felt that on the evidence, he might win, and in any event, the case wasn’t going to get any better for the defense. But now, here he was in Braun’s court.
He’d been wrong.
The other, political, reason that he’d pressed for the speedy PX was that Maya’s arrest had set off a news frenzy in the city that Hardy thought could only get worse over time, and in this he was right. The secret grand jury investigation that Jerry Glass was conducting on the U.S.-attorney front, along with the public threats of forfeiture of the properties of one of the town’s major development and political families, had by now neatly dovetailed into a narrative that had captured the public’s imagination, as Hardy had suspected it would.
Knowing that the body politic of San Francisco in general, and probable members of jury pools specifically, tended to have little sympathy and lots of hostility and envy for the two aligned, and—in the public eye, generally malignant—classes of developers and politicians, Hardy had wanted to hurry up with a jury trial before every single person in San Francisco had been so exposed to innuendo, insinuation, and the venom of the press that they had all long since made up their minds. Juries didn’t always return verdicts based on the facts; sometimes they voted their prejudices. So, given the dearth of evidence for the actual murders, he’d believed back in October that a quick defense was his best chance to free his client and cut short the debate about the kinds of people the Townshends and other developers and power brokers must be.
And now, in late February, here they were, with Braun presiding, about to begin exactly what he’d strategized and labored to avoid and yet called down upon himself. He had demanded a speedy trial, and now he was going to get it.
Even moving as quickly as he could, he couldn’t avoid the collateral damage that continued to wreak its havoc on the extended Fisk/ Townshend/West families—Harlen’s, Maya’s, and the mayor, Kathy West’s. It appeared that the U.S. attorney’s power to subpoena—particularly financial records—in capable hands like those of Jerry Glass could be a blunt weapon indeed.
By the time the preliminary hearing had begun, Glass had barely had time to look into the Bay Beans West bookkeeping, much less Joel Townshend’s wider business affairs, and how, if at all, they might relate to one another. But since the marijuana connection with Dylan Vogler was intimately connected with BBW, and this was needed by the State to establish a purported motive for Maya to have killed him, Glass and his conduit Debra Schiff had obviously been supplying the prosecution with whatever they could in terms of questionable financial dealings between the coffee shop and the Townshend household.
This hadn’t hurt anyone too badly during the preliminary hearing—although the money laundering possibility had apparently been part of the court’s decision that a jury should weigh the evidence and reach its own conclusions in Maya’s case—but over the past months, and especially in the past couple of weeks, Glass’s investigators and accountants had finally unearthed what appeared to be a treasure trove of sophisticated financial relationships and arrangements that now appeared to implicate Townshend, Harlen, Kathy West, and some other large players in at the very least questionable, if not to say unethical or illegal, conduct.
Potential kickbacks, preferential treatment, undocumented meetings about matters of public interest in violation of the city’s Sunshine Ordinance.
Very little, if any, of this had been proven yet, except that Glass had succeeded in crippling BBW, and the government was preliminarily close to attaching the entire building as the probable proceeds from a drug operation, although the place itself was still open day to day. Because Maya had a Fifth Amendment right not to answer any questions in the forfeiture proceeding while her criminal case was pending, any final decision was on hold for now, but the questions alone raised a spectre of criminality over Maya and everything she touched.
The BBW accounts were incredibly sloppy. As just one example, Maya had cut Vogler a check from her own personal checking account for $6,000 for emergency repairs from water damage in July and another personal check for a half month’s pay, $3,750, last March. There was no record he had ever given her back the money. There was at least $30,000 worth of checks from Vogler to Maya over the past two years with no explanation at all in their records. The only question seemed to be what precise illegality was being funded by the operation.
Maya told Hardy she’d been busy with the kids’ school and on vacation and hadn’t been able to make it into the store to sign the business checks, but she’d also neglected to reimburse herself from the company account during the many visits when she’d had a chance to do so. She had no idea what the checks from Vogler to her represented. She had left it to Vogler to keep the books. In the current climate this explanation was widely discredited.
The victory for Glass and the accompanying widely perceived truth that the Townshends were in fact in the drug business had then in turn played a huge role in people’s perception of the Townshends, and public opinion shifted away from presumption of innocence. Suddenly, if you did business with Joel Townshend, or Harlen Fisk, or Kathy West—in fact, if you did business with the city—you were going to get cheated. That’s just the way “these people” did things.
Just this morning Hardy had read the Chronicle’s editorial and letters page, and it was fully one-third choked with vitriol—Supervisor Fisk and the mayor should quit or, failing that, they should be impeached. The dr
umbeat was picking up; even in Hardy’s office it was water-fountain talk.
And though none of this had anything to do with Maya’s guilt for the crimes of murder of which she was accused, Hardy knew that it was going to have a lot to do with Paul, aka Paulie, aka “The Big Ugly,” Stier—the assistant DA who’d pulled the case—and how he played the evidence. From an untutored perspective the entire courtroom drama could unfold as a large multi-tentacled conspiracy fueled by drugs and moral turpitude in high places.
Hardy glanced over at his opponent.
Despite his flamboyant nicknames Stier was in his mid-thirties, earnest, and, from Hardy’s dealings with him so far, possessed of little personality or sense of humor. The nicknames remained worrisome, though.
It was a truism in the courtroom that what you didn’t know would hurt you, and Hardy hadn’t been able to pick up much in the way of gossip or dirt on The Big Ugly, which probably meant he kept his personality—and his possible clever moves and dirty tricks—well hidden until he needed them, when they could inflict the most damage. Of course, it was also possible that the nicknames were sarcastic—that Stier was what he appeared to be, a hard-charging, fair-minded, good-looking working attorney. Certainly, he didn’t look dangerous now, leaning back over the bar rail chatting amicably with Jerry Glass. They were simply two clean-cut, hardworking, self-righteous, ambitious guys doing the people’s hard work—one for the country’s government, and one for the state’s.
Hardy felt a twist in his stomach.
There, also, in the front row, was Debra Schiff, who, Hardy knew, had started to see Glass socially, if not intimately. Leaning around further, Hardy briefly caught the eye of Darrel Bracco, who gave him a quick ambiguous look and then looked away—clearly all along Bracco had not been as gung-ho as Schiff about Maya’s guilt and the wisdom of her arrest, but in the maelstrom that had developed, his doubts, if any, had surely been laid to rest. Still, though, to Dismas the look somehow felt heartening.
Or maybe it was pity.
At a signal from the bailiff Hardy got up and walked through the door at the back of the courtroom leading to the corridor and the judge’s chambers. There, out of the sight of the jury, the bailiff took off Maya’s handcuffs, and Hardy entered with his client, followed by the bailiff, and they took their places at counsel’s table.
In what Hardy thought was a show of judicial nastiness if not downright personal affront to him, Braun had considered denying Maya the privilege of “dressing out,” or wearing normal street clothes when she appeared in the courtroom. For the duration of the trial, she opined, his client would sit next to Hardy at his table in her yellow jumpsuit.
Hardy, insane with rage, had had to file a fifteen-page brief before he could convince Braun that a variety of federal and state cases held squarely that his client had an absolute right to appear in front of the jury in civilian clothes. Dressed as a convict, she would present to the jury an image that was at odds with that of a citizen who was presumed innocent. She must be already guilty of something, went the not-so-subtle psychology of it. She wouldn’t be in jail, wearing that outfit, brought into the courtroom in handcuffs, if she hadn’t done anything at all, if she weren’t a danger to the community. Braun’s position was ridiculous and had been repudiated by courts for a good fifty years. Even so, she had conceded this absolutely undebatable point grudgingly and with bad grace.
The gallery noise behind them abated slightly. Maya gave Hardy a lost look and then scanned around behind her, nodding at her husband in the first row on “her” side of the gallery, or maybe it was that she was relieved not to see her children, who had been living with Fisk’s family all the while she’d been incarcerated.
The whole thing was awful, Hardy thought. Simply awful.
And what made it worse, all but intolerable from his perspective, was that in spite of the lack of evidence he’d finally come to lose almost all of his belief that she was not actually guilty of both murders.
Certainly, he knew, she had done something she was unwilling, under pain of life in prison, to reveal.
Also, while her family and her outside world appeared to be imploding around her, as the weeks had passed, she seemed to have grown more and more acquiescent, and less concerned with her defense, as though she deserved whatever happened to her. She still professed a desire to be found innocent, but mostly because she thought the children needed her. She didn’t want them to have to live with the fact that their mother was in jail, convicted of murder. For herself, though, it didn’t seem that critical an issue.
Hardy stood and pulled out her chair as all the parties rose while another bailiff brought in the jury from their room farther back along the same corridor Hardy and Maya had just used to enter the courtroom. When all the jurors were seated, she sat and Hardy pushed her forward until she was comfortably up at the table. As he’d coached her, she cast a look over to the newly empaneled jury and nodded a few times, making as much eye contact as seemed natural.
It was, from his perspective, a decent jury. Nine men and three women. Five whites, four African-Americans, three Asians. All between forty and seventy, and Hardy guessed from various nuances that seven or eight of them had at least tried marijuana. Nine of them held full-time jobs. Two of the men and one woman were retired and had been moderately successful in business. Hardy was surprised that Stier hadn’t peremptorily dismissed any of these, but maybe he hadn’t factored the antidevelopment prejudice adequately into his jury-selection strategy.
Although sometimes, Hardy knew, you just got lucky.
The way things had been going, though, Hardy didn’t think that was it in this case.
But before Hardy had a chance to sit again, behind them the gallery energy shifted, and both Hardy and Maya turned around to see what had caused it.
“Well, look at this,” Hardy said, a small grin toying with the sides of his mouth as Kathy West, the mayor of San Francisco herself, came walking down the center aisle toward them, accompanied by her nephew Harlen Fisk and a small procession of both of their staff members. Beyond them flowed a steady stream of reporters, courtroom groupies, and the simply curious, such that by the time Kathy and Harlen got up to the front row and began moving in beside Joel, the gallery was standing room only and the buzz in the room was constant and formidable.
The bailiff, obviously at a loss as to what he should do, especially after Kathy West shook his hand, allowed the mayor to further ignore the rules and reach across the bar rail to shake hands with both Hardy and her niece, while Harlen pulled Hardy a little closer and whispered, “This is Kathy’s spur of the moment inspiration. Maybe put our friend Stier over there a bit off his feed for his opening statement.”
“Couldn’t hurt,” Hardy said. The grandstanding, coming as it did after weeks of inactivity and silence from Maya’s extended family, was in fact far from unwelcome. A smile creased Hardy’s features and he glanced over in time to catch Stier, Glass, and Schiff in what were to him sweet expressions of disbelief and shock.
But the energy had no time to gather momentum as the door by the judge’s bench opened and the bailiff up there at the far end of the room intoned, “All rise. Department Twenty-five of the Superior Court of California is now in session, Judge Marian Braun presiding.”
And Braun swept in and up to her chair behind the bench, glanced out at the crowd, then glared as she became aware of her visitors. After a second’s hesitation she lifted and slammed her gavel and said, “Attorneys, my chambers, immediately!”
The judge, in her black robe, was standing waiting for both of them as they came in. She didn’t even ask the court recorder, Ann Baxter—sitting on the couch with her magic machine—if she was ready to take down every word that was said, as was required in a murder trial, before she started in. “Mr. Hardy. Because of our long history together, I thought I’d made clear that there wouldn’t be any showboating in or around my courtroom. And now I come in here on the first actual day of trial and who do I see out
in the first row but the mayor and one of our city supervisors, and if you think—”
“Your Honor,” Hardy said.
But she raised a hand. “I’m not finished talking yet, and I don’t want you interrupting me. Ever. Here or in the courtroom. Clear?”
It was unprofessional and might even be counterproductive in the short run for his client, but if Braun was going to insult him and act like a tyrant whose malice toward him might provide grounds for an eventual appeal, Hardy was going to be happy to help her along. So, knowing that decorum demanded that he respond aloud to her—otherwise the court recorder couldn’t put his answer in the record—he nodded with an exaggerated solemnity.
And waited.
It didn’t take Braun long. Her eyes went nearly shut as she squinted across at him. “I asked you a question, Mr. Hardy. I asked if it was clear that you were not to interrupt me.”
“Yes, Your Honor. Of course. I’m sorry. I wasn’t sure you’d finished and I didn’t want to interrupt.” Straight-faced.
She pointed a finger at him, schoolmarmish, her voice a hoarse and controlled rasp. “I’d like to know what you mean to accomplish by having the mayor and Supervisor Fisk sitting out there. This is exactly the kind of circus environment that I’ve cautioned you that I want to avoid, and here it is before we’ve even begun.”
Hardy stood at attention.
“Well? Are you going to answer me? Or not?”
Hardy canted his head slightly, leaning forward. “I’m sorry, Your Honor. I didn’t hear a question and didn’t know you required a response.”
“What are they doing out there?”
A Plague of Secrets Page 17