Hard Evidence

by John Lescroart

  She walked over to her turret and looked down on the street, the people going into the deli, that cute little cable car. She tried to conjure up some image of the way she’d felt, or remembered feeling, with Owen, the unity the two of them had discovered.

  But it wasn’t there anymore. She’d had a family that had never loved her, that had been too afraid of life to try living it. Two barren marriages, liaisons without meaning. Day after day, going through motions, hoping for someone she could admire, who could admire her. Then thinking she’d found it and having it all smashed.

  And now all those papers. She supposed she owed it to David to keep at them. What did she owe Andy Fowler?

  “Who was that?”

  Dorothy woke up happy every morning. The mattress on the floor was lifted onto a sturdy platform with a modern pine headboard. There was floral wallpaper along one wall with some Degas and Monet prints dry-mounted and covered with glass. Einstein still counseled them about mediocre minds. New drapes, a large bright throw rug, a rattan loveseat, end table, coffee table, three modern lamps. It was a different place.

  Jeff was even walking better, able to cross from the bar to his bed without his crutches. He didn’t believe it would last forever but he’d take it while it was here. Maybe the Prednisone for his eyes had done something for his legs. There was no predicting these symptoms, so when a little good came along you didn’t question it. He pushed himself back onto the bed.

  “That was Hardy, the attorney I told you about. For the defense this time.”

  Gloriously immodest, she lifted her naked body against a reading pillow and pulled him back against her, pulling the blankets over them, rubbing her hands up and down his chest. “And what does Mr. Hardy want?”

  “Fowler’s taking a polygraph today. He wanted me to know.”

  “Why?”

  He leaned his head against her. “If he passes it, it’s news. It’s not evidence, but it’s news. And he figures it helps him.”

  “What if he doesn’t pass it?”

  “That’s news, too. Either way it’s good for me. But Hardy must think he’s going to do okay or he wouldn’t have told me.”

  “It seems a little risky . . .”

  “Hardy’s got to take some risk. They both win if Fowler is innocent.”

  “Do you think he is?”

  “Innocent you mean?”

  She nodded.

  “Nope.”

  The gun.

  Pullios and Struler, clever devils.

  Hardy knew it would be unwise to file his 995 Penal Code motion for dismissal before he’d gone over every word of the file carefully. Most of it, as he’d noticed last night, was stuff he’d seen before, and the temptation was to skim it.

  The discovery process tried to eliminate surprises in the courtroom; the Perry Mason, last-minute, rabbit-from-the-hat conclusions were really the stuff of fiction. Long before anybody went to trial, attorneys for the prosecution had to disclose everything they had in terms of evidence, proposed witnesses, expert testimony. In theory, the point was not to sandbag your opponent (although if you could, it was a nice bonus) but to lay out the evidence and its relevance before a jury.

  If Glitsky or somebody else should chance upon some relevant evidence during the trial, then Hardy could introduce it at that time, but that would be a rare event. Most of the time, the parties knew the cards against them—the skill was in how they were played.

  Which didn’t mean that Pullios, having given Hardy everything she was supposed to, then had to sit him down and show him how to use it.

  So Hardy was being thorough. There was no surprise in the gun being presented as an exhibit—it was, after all, the murder weapon.

  What he did not expect was that Andy Fowler’s fingerprints were on the clip.

  So much for his motion for judicial review of the evidence. With this latest, Hardy realized there was at least enough evidence against Andy Fowler to warrant a trial.

  “How could that happen? How could no one have seen that before. That puts him on the boat, and if he was on the boat, no jury in the world will believe he didn’t kill him.”

  Hardy had caught Glitsky on the phone at his desk before he started driving downtown and now they were eating hamburgers far from the Hall of Justice. Glitsky understandably didn’t want to be seen being buddy-buddy with a defense attorney. Friends or no friends, a new reality had kicked in.

  Glitsky chewed ice, which he did every chance he got. It drove Hardy crazy. “Not necessarily.”

  “What do you mean, not necessarily? The gun was on the boat and Fowler’s fingerprints were on the gun.”

  “They could have been on the gun before it got to the boat.”

  “Well, that’s damn sure going to be my argument, but it doesn’t exactly strengthen my case. How could he not tell me about that? How could he not know?”

  Glitsky had a bite of burger. “He lied.”

  “Thanks.”

  Abe swallowed, took a drink of Coke, chewed ice. “You’re welcome.”

  “How did we miss them last time, the prints?”

  Abe rubbed his face. “Two ways, maybe. One, nobody looked at the clip. Shinn’s prints were on the barrel, she was the suspect, end of search. Two”—Abe held up two fingers—“they got a print they couldn’t match. Then, once they knew they were looking for Fowler, they ran it against his.”

  “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 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 Visitor’s 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 in 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 Braun. 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 its 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?”