Hard Evidence

by John Lescroart

  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 than 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.”

  Hardy had another twenty minutes before court reconvened. He went upstairs to the fourth floor, found Glitsky alone in the Homicide room chewing on his damned ice and hunched over his desk reading. He looked up now. “You were wrong,” he said.

  Hardy pulled a chair up against his desk. “I’m listening.”

  “There was no coat.” Glitsky shoved the paper he was reading at Hardy. “Check it out. Anybody comes in while you’re looking, be smart, right? This sheet here,” he said, putting a finger on it, “is the inventory—down to the rubberbands in the desk, Diz, it’s complete—of the master suite on the Eloise. This other one is the list Struler got from May, all of her stuff. What she wanted returned to her in exchange for testifying.”

  “Why didn’t they just subpoena her?”

  Glitsky chewed some ice, swallowed. “I guess they thought this would make her more agreeable.” He shook his head. “But guess what?”

  Hardy was scanning the list. “Yeah?” he said absently.

  “Hey, you know this happens all the time. You get somebody suing the City and thinks they can get an extra fur coat or something out of the deal. Put it on the list, say we stole it, it was there. But”—he hit the sheet again—“surprise. It wasn’t there. It’s why we make our Day One inventories.”

  This was going backward again. Hardy wasn’t going to entertain it. “May didn’t lie, Abe, that’s where we’re at.” He understood Glitsky being upset with May Shinn. She had, after all, named him personally in her suit for false arrest. And hadn’t she lied to him about not going to Japan? Hadn’t that been what moved him to arrest her?

  “Okay, all of the above,” Hardy said, “but she thought this coat was there. She called David Freeman about it, mentioned it to Fowler when he came by. She jumped all over Struler.”

  “Wouldn’t you?”

  “Wouldn’t I what?”

  “If you had a scam like this, wouldn’t you play it up?”

  Hardy couldn’t agree. He was going to run with the idea of May telling the truth until he got to a wall. This might not make sense in the face of it, but it wasn’t yet a wall. Still, Glitsky was on his side and he wanted to keep him there. “Maybe,” he conceded, “but either way this helps—”

  “It doesn’t help me. Everywhere I look there’s more of nothing. You find anything about Farris?”

  “No. I got a call in. Speaking of which . . .” He grabbed Glitsky’s telephone and pushed some buttons. “Lunch break,” he told Frannie. “Any calls?” When he hung up he shook his head. “Nothing.”

  “He out of town or what?”

  Hardy shrugged. “Probably just busy. Plus I’m not on his side anymore, remember? I’m defending Nash’s killer. Now if you wanted—”

  “No way. I’ve already done him up and down. If you get a line on some physical evidence I’ll see what I can do, but . . . Now you’ve got Shinn telling the truth and Farris lying for no apparent reason, neither of which I think I buy. I know Farris didn’t kill Nash. He was in Taos. You’re barking up the wrong tree.”

  Hardy didn’t argue—he knew better than to push any further. “All right, maybe he’ll call me back. If something pops, though, I’m going to call you.”

  Glitsky finished chewing his ice, loudly. “That knowledge gives meaning to my life,” he said.

  “Can I have these?” Hardy asked, gathering the inventories.

  “Not only can you have them,” Glitsky replied, “you must have them. I had to wait all morning for the office to empty out so I could make you some copies.”

  Hardy tapped his palm against Glitsky’s cheek. “You’re such a sweet guy,” he said. “Don’t ever change.”

  Glitsky growled. “I wasn’t planning to.”

  Fowler and Jane were sitting at the defense table when Hardy entered the courtroom at one-twenty. Celine was already at her spot on the aisle in the second bench. He found himself slowing down coming abreast of her, then forced himself along through the swinging doors.

  Fowler didn’t look much better. Hardy pulled up his chair and placed a hand on his back. “You holding up?” Jane, on the other side of her father, gave Hardy a worried look. He forced a show of enthusiasm. “We’ve got a couple of interesting developments.”

  “I’m a fool, Diz, been one all along.” Physically, Andy’s eyes looked better. The redness had gone down, the black bagginess under them had receded. But the expression in t
hem—or rather the lack of it—was almost more unsettling. “She never cared a damn at all, did she?”

  Why beat around about it? “No,” Hardy said. “No, I guess she didn’t, Andy.” Jane frosted him from across her father but he ignored it. “Now how about you stop having to suffer for what she’s done to you? She’s gone. Didn’t you tell Jane once you just had to treat it as though it was a friend that died? Well, now that’s what it is.”

  “She lied to me.”

  Hardy was getting tired of the explanation—to himself as well—that May lied as the answer for everything. “Did she? Or did you lie to yourself?”

  Jane fairly hissed at him. “Dismas!”

  “You know, Andy,” he pressed on, “maybe you just needed more, that was all. She gave you what you were paying for, which was a fantasy. And you’re a guy, Judge, who can make things happen, maybe even make your fantasy come true. You weren’t like the other guys, the lesser types whose lives passed through your hands every day—”

  “Dismas, stop it.”

  Jane said it loud enough this time that several jury members looked their way. Hardy saw the reaction and gave a controlled nod in that direction. He lowered his voice. “The fantasy’s over, Judge. You’re reduced to being a mortal. I can’t say I blame you for crying over it, but at least it’s a real place to start.”

  Fowler’s eyes had gotten something back in them— anger or hatred or both. Either, Hardy thought, was better than nothing.

  “You’re a big help, Dismas. Thanks a lot.” At least Jane had modulated her voice.

  Fowler straightened up. “Don’t tell me I don’t want her back. You don’t know . . .”

  Hardy nodded. “You’re right, Andy, I don’t know. What I do know is that you never had a chance to get her back because you never had her in the first place.”

  “What do you suppose this is doing, Dismas?” Jane asked.

  “It’s all right, hon,” Fowler told her.

  Hardy kept at it. “Damn straight, it’s all right. You ask what it’s doing, Jane? I don’t know. Maybe I’m getting a little tired of wading through all of this while the ol’ judge here sails on overhead.” He spoke to his client. “Andy, I’m sorry, but you’re not some tragic hero. I can’t just sit here and watch you waste away over some fairy tale you’ve concocted that’s pretty well destroyed everything you’ve worked for.” Hardy softened his voice, put his hand on Fowler’s back. “The woman’s dead, Andy. She’s not coming back. It’s time to wake up and this is your wake-up call.”

  David Freeman, famed defense counsel, was the centerpiece of the prosecution’s case, and Elizabeth Pullios knew it. Thus far they had established beyond any doubt, reasonable or otherwise, that Andy Fowler had been devastated by May, had hired a private investigator to find out why she had stopped seeing him, had found out it was because she had fallen in love with Owen Nash, or acted like she did, and had kept a surveillance on the movements of Nash for the next several months, until the man’s murder.

  To nearly everyone he knew—except for Gary Smythe—he had told less than the truth, had indeed lied, about Owen Nash. He knew the location of the gun on the boat and his fingerprints were on it. He was an expert sailor in his own right and could easily have taken the Eloise in and tied it up after dark, even in rough water.

  All that established, however, Hardy still thought the jury would have a difficult time bringing in a murder verdict, especially after Fowler testified for himself (assuming Hardy could move him to do so). So far everything the judge had done—a couple of white lies, a more or less natural curiosity to understand more about why a lover, as perceived by him, had tired of him, a plausible explanation of how fingerprints came to be on the murder weapon—could be explained, Hardy hoped, by the overriding fact that he had merely wanted to keep an illicit and embarrassing relationship secret.

  Up to now, Hardy believed, none of this showed sufficient consciousness of guilt to prove anything to secure a conviction. When David Freeman took the stand, however, all that would change. In spite of Freeman’s private support, it was going to get ugly, Hardy thought. He was prepared to object to every question if need be, and if the jury didn’t like him for it, so be it. The bare facts of Freeman’s testimony would be damning enough—he at least wanted to try to contain any interpretation of them.

  Pullios, playing affable and deferential, began to walk Freeman gently through some establishing testimony, then commenced zeroing in on the events of the previous June.

  “Mr. Freeman, do you know the defendant?”

  “Yes.”

  “For how long?”

  “I’ve known the judge for many years.” He didn’t so much as glance at Hardy.

  “Would you say you were friends?”

  “We’ve had a courteous professional relationship. We don’t see each other socially. Sort of like me and you.”

  He smiled. She smiled. The jury seemed to like it. “Last June, did your relationship change?”

  “Yes.”

  “How?”

  “The judge hired me.”

  Chomorro: “Mr. Freeman, we’re all aware that the defendant was a judge in this court. For accuracy’s sake, please refer to Mr. Fowler either by his name or as the defendant.”

  Freeman said it was a habit, he was sorry.

  “And what did Mr. Fowler hire you to do?”

  “To defend May Shinn, who had been charged with killing Owen Nash—”

  Chomorro’s gavel came down with a crash. Hardy suppressed a smile. Nice, Dave, he thought.

  “Mr. Freeman, restrict your answers to the questions asked.”

  “I’m sorry, Your Honor. I thought that was what was asked.”

  But there it was in the record. Pullios could not very well object since she had asked the question. There was nothing to do but press on. “Mr. Fowler hired you to defend May Shinn, who, as you say, was charged with murder?”

  “That’s right.”

  “Were you surprised by his request?”

  “Not at first.”

  This was a wrinkle Hardy had not expected. In his deposition Freeman had said he was stunned by it. Now he was not surprised “at first.”

  Pullios went with it. “Why not ‘at first’?”

  “Sometimes the court will want to check out a couple of defense firms before giving a criminal assignment. See if they might be overloaded, that type of thing.”

  “But that wasn’t the case here?”

  “No.”

  “What was the case here?”

  “Well, the judge—excuse me, the defendant—wanted to hire me as a private person.”

  “To defend Ms. Shinn?”

  “Yes.”

  “And was that unusual?”

  “I’d say, yes, it was.”

  “Was there anything else unusual about the arrangements?”

  Hardy stood at his table. “Objection. Overbroad.” “Sustained.”

  Pullios tried again. “Was Ms. Shinn to know about this arrangement?”

  Hardy was up again. Conclusion from the witness and hearsay. Pullios might be getting it out, but it was going to be pulling teeth. She smiled tightly. “Can you describe to us the conversation you had with the defendant regarding her defense?”

  “Up to a point, yes,” Freeman said. He spoke directly to the jury. “After I accepted the job, of course Mr. Fowler became my client and our conversations were privileged.”

  Freeman wasn’t giving up a thing. Hardy had been planning on drawing him out on cross, going into the false arrest of May Shinn, all of that. But it seemed Freeman was doing his work for him.

  Pullios, however, could read the signs, too—this one said “Ambush Ahead.” Freeman was, in prosecutor’s lingo, going sideways. Witnesses did it all the time. Pullios had seen it before. She got a little less friendly.

  “Mr. Freeman, is it a fact that Mr. Fowler asked you to keep your relationship with him a secret from Ms. Shinn?”

  “Yes.”

&
nbsp; “Is it a fact that bail of five hundred thousand dollars was set for Ms. Shinn?”

  The facts continued to come out: that Fowler had put up his apartment building as collateral; that Ms. Shinn was indicted by the grand jury for murder, putting the case in Superior Court; that Shinn’s trial was assigned to Fowler’s courtroom . . .

  Now Pullios was on a roll and there wasn’t much to do about it. “Now, Mr. Freeman, knowing as you did the relationship between the defendant and Ms. Shinn, what was your reaction to the assignment of Ms. Shinn’s trial to Mr. Fowler’s courtroom?”

  Freeman thought about his answer for a moment. “Well, I had mixed feelings. I thought it would be good for my client if the trial went on in Mr. Fowler’s court, but I thought there was no chance that would happen.”

  An answer Pullios wanted. “You expected Mr. Fowler to recuse himself?”

  Hardy objected, citing relevance. “Who cares what Mr. Freeman expected?”

  Chomorro thought, I do, and said, “Overruled.”

  Pullios repeated the question, asking whether Freeman expected Fowler to recuse himself.

  “Of course.”

  “But he did not?”

  Freeman gave it a second, but there was really no avoiding it. “No, he did not.”

  Hardy thought he could make a few points.

  “Mr. Freeman, Ms. Shinn was charged with killing Owen Nash, the same individual the defendant is now charged with killing?”

  “That’s right.”

  “Before you had agreed to defend Ms. Shinn on that charge, and hence before you had established an attorney-client relationship with Mr. Fowler, did the defendant tell you why he wanted you to defend Ms. Shinn?”