Hard Evidence

by John Lescroart

  “Light light light,” he said.

  The Beck shook her head, laughing.

  “Is she the greatest kid in the world?” Frannie said.

  “The universe,” Hardy said.

  “Why,” Rebecca said. Some of the lights had started blinking. She pointed to them. “Why why.”

  “I think she’s going to be a philosopher,” Hardy said, “like her father.”

  “Like her uncle Moses, maybe, not exactly like her father.”

  Frannie, now in her eighth month of pregnancy, had her arm around Hardy’s waist. The problems that had led up to Hardy’s mugging in October were behind them. He was working a lot of hours but he was at least sharing it with her—plus they were laughing together, teasing each other, enjoying the Beck.

  The car pulled up and double-parked in front of their house. “Who’s that?” Frannie asked.

  Hardy knew immediately. He kissed his wife on the cheek and handed the baby to her. “I’ll be right back.”

  He’d been expecting this somehow. He walked down the few steps, then onto the path that bisected his lawn to the gate at the fence. Apprehensive, he met her there.

  She was wearing a heavy coat against the chill, a cowl-like head covering pulled down around her ears. Her hands were deep in her pockets. Vapor from her breath hung in the still air a moment before it dissipated.

  “You shouldn’t be here, Celine.”

  She seemed unsteady, as if she’d been drinking, but he was close enough to have smelled that and didn’t. “I had to talk to you, you’ve changed your phone number.”

  “You were in court all day, Celine. I’ll be there tomorrow.”

  “I didn’t know what I wanted to say then.”

  He let out a breath. He had it coming. “Okay.”

  “I—I . . . ,” she began, then stopped.

  “It’s all right.” Hardy heard the door to his house close. Frannie and Rebecca had gone inside.

  “I just wanted you to know that I understand. I don’t want you to hate me, to think that I hate you.”

  Hardy nodded. “That’s good to hear. I certainly don’t hate you—”

  “You were acting like it.”

  “No, I was trying to ignore you. That’s different. It’s something I have to do.”

  “Yes, of course, but I’ll still be there every day. You have to know that.”

  “All right. But I don’t think you ought to come by here. The last time—”

  “I know. That was a mistake.”

  He recalled her panicked retreat the last time she’d come up to his gate. “My life is here,” he said. “I forgot that for a moment. I’m sorry . . .”

  “No, it wasn’t that, it wasn’t even you . . . you just suddenly reminded me so much of my father . . .” She gripped the gate, steadying herself. “I didn’t mean to say it like that, but your wife, your baby . . . what I couldn’t have.”

  Hardy had his hands in his pockets. The vapor from their breathing merged in the air between them. She seemed to gather herself then, regain control. “Your client, the judge. You obviously don’t think he did it.”

  “No, I don’t.”

  “Then who did?”

  “I don’t know. We’re looking, but so far there isn’t much—”

  “Much?”

  “To be very honest, nothing.”

  “Poor Daddy,” she whispered.

  There wasn’t anything more to say. She glanced at his house behind him, nodded, turned and walked quickly to her car.

  He had taken to following a routine every night. First, he was not drinking at all during the week, from Sunday through Thursday night. He would finish dinner and help Frannie with the dishes. They would talk about each other’s day. He would bounce things off her.

  Then he would take a cup of coffee and go into his office for a couple of hours of what he called creative leisure— toss some darts, read over some testimony he thought he already knew by heart, play devil’s advocate with every position he could think of. Sometimes he’d call Abe just to keep the needle in. He tried not to work on the weekends, or on Wednesday nights, although he’d told Frannie that they’d have to suspend date night during the duration of the trial and, of course, for however many weekends the trial took, weekends as such would not exist.

  His paper load now included six full binders, four filled legal pads and a dozen cassette tapes. It was amazing, he thought, that as many times as you went through it there was always something you’d missed. He remembered papers he’d done in college, proofing and proofing and rereading and then handing in what he thought was perfect work only to get it back with a typo or something screwed up in the first line.

  But tonight the choreography was complete—the dance began in earnest tomorrow. He arranged his books, binders, pads and tapes neatly on his desk and turned out the lights in his office and walked through the house.

  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 let-down 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 details. 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 appreciate
d.”

  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 note of it. Counsel wasn’t supposed to argue evidence in its 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 so 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 hundredsif 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, everyonein 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 gentlemen, 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.”