But this fell on deaf ears. “No.”
“Cole, listen . . .”
“I can’t be here for nine months! Do you hear me?”
It was a violent outburst, and after the morning’s earlier events, it got people’s attention up and down the hall. A bailiff was outside the cell before Hardy had any time to react on his own. “Everything all right here?”
After assuring him that it was, Hardy watched the man move uneasily off, then turned back to Cole. “If you go to trial now, Cole, with the city still pretty inflamed over Elaine’s death, some of the jurors will undoubtedly—”
“I can’t,” Cole interrupted. “I just can’t. My mom says you can get me off.”
“I haven’t even talked to your mother yet, Cole. And I can’t get you off in ten days. If nothing else, I’ll need more time just to decide how I’m going to approach the damn thing.”
“Just say I didn’t do it.”
“Did you do it?”
He shrugged.
Hardy got a little short. “Because you’ve already said you did on tape, in case you don’t remember. That’s going to take some undoing.”
“You can undo it as well now as you can in nine months, don’t you think?”
“No, I don’t.”
The back door to the holding cell gave into the courtroom, and now that door opened and a bailiff appeared. They had called Cole’s case first. “Let’s roll it out, boys. Showtime.”
Hardy gave his client a last look. “We’ll continue this later.” He stepped back and let Cole pass in front of him, out into the courtroom.
At Cole’s appearance through the door, there was an audible rise from the gallery. Hardy, frustrated nearly beyond endurance, nevertheless gave his client a friendly upper-arm squeeze and urged him forward.
As they passed the prosecution table, Gabe Torrey motioned for Hardy to stop, and he let Cole go on over to the other side with the bailiff. He looked again out into the courtroom. More than a decent crowd was on hand, and it seemed restless.
Hardy knew Torrey from half a dozen other dealings, and he didn’t like him. He considered the chief assistant D.A. pompous, petty and political, to say nothing of underprepared and officious. Now he would be talking death penalty and other similar nonsense, and Hardy knew it was going to get ugly, probably sooner rather than later.
Still, they’d never before crossed the line into hostility, and he saw no reason to go there now.
Torrey put out his hand in greeting and Hardy took it. “I just wanted to give you a little heads up, Diz. You probably heard we want to move this one along due to Elaine’s standing in the community. There’s a lot of outrage . . .”
Hardy listened with half an ear. He noticed the gallery again. It really was humming. Cole was turned around at the defense table. His mother was leaning over the rail, trying to talk to him, but he, too, kept his eyes mostly on the prosecution’s side of the gallery, which projected a true sense of menace. This was unique in Hardy’s experience—there were people in this room who hated Cole already, and he felt it.
Torrey had finished the self-serving part and was getting down to his point. “. . . with the confession on tape and all, you know I could get a grand jury indictment in five minutes, so if you’re inclined to ask for a long delay, you should know I’ve scheduled the grand jury for next Tuesday. Unless, of course, you decide not to waive time. Then we’ll do the hearing in two weeks as the law provides.”
With a sick feeling, Hardy realized that Torrey was right. There were two ways by which a case got scheduled for trial. There could be a preliminary hearing to determine if the evidence was sufficient to bring to trial. Or the grand jury could come to the same conclusion and issue an indictment.
Hardy wanted to delay, but his client didn’t, wouldn’t. Torrey was telling him that he would seek an indictment and potentially an even earlier trial date if Hardy tried to stall on the preliminary hearing. Actually, he realized, Torrey might not understand it completely—his strategic grasp of things lawyerly had always seemed weak—but he was doing him a favor by letting him go for a preliminary hearing at all. He could indict at will. If Hardy didn’t waive time, he would get at least another ten days to prepare for the hearing, maybe even get his discovery—the evidence in the case—a little earlier.
But ten days! It was an impossible joke. Still, better than a grand jury indictment.
And maybe in that time, he could at least convince Cole that it would be in his best interests to agree to a delay before they went to trial.
But either way, this thing had just jumped to the fast track, where any number of disasters were more likely to occur, and where the damage from high-speed impact was likely to be that much greater.
Hardy forced a casual smile. “It never crossed my mind to waive time.”
***
“Cole Burgess.” From his bench, Judge Timothy Hill gave it the dramatic reading. The judge was an ancient patrician. Wispy white hair, combed back over his ears, clung close to a bony skull. His skin was parchment stretched over long bones and his robe hung off him like a shroud. The physical look, combined with an utter lack of personality, had earned him the nickname of the Cadaver. But today with the full house, he possessed, if not a youthful exuberance, at least a detectable pulse. “You are charged by a complaint filed herein with a felony, to wit, a violation of Section 187 of the Penal Code in that you did, in the city and county of San Francisco, state of California, on or about the first day of February, willfully, unlawfully and with malice aforethought murder Elaine Wager, a human being.”
Hardy was standing in the center of the courtroom next to Cole.
At the prosecution table, in a highly unusual appearance in an actual courtroom, Sharron Pratt had entered at the last second and taken a seat next to Gabriel Torrey. Judge Hill nodded to his clerk, who began to read out the special circumstances that could make this a death penalty case.
Driving downtown, Hardy had tried to predict what Pratt would produce on this score, but she proved more creative than he was, and he only got one out of two, a killing in the commission of a robbery. The one Hardy hadn’t guessed—because it was so grossly incorrect—was a hate crime, in that Elaine Wager was black and Cole was white. And when he heard it, he had to speak up. “Your honor!”
The words seemed to strike the Cadaver with a physical force. Clearly, he did not expect any objection during the reading of the complaint. Straightening to his full height in his chair, he frowned down into the bull pen. “To what, Mr. . . .” Shuffling some paper. “Mr. . . .”
“Hardy, your honor.” He was willing to risk the judge’s displeasure. This idiocy could not go unquestioned, and Hill might as well get used to it early. “With respect to the second special circumstance, your honor. Regardless of who committed it, there is no race or bigotry issue associated with this crime.”
The chief assistant D.A. was already on his feet. “I’m shocked to hear Mr. Hardy’s characterization of the murder of a black woman by a white man . . .”
“Your honor, that’s absurd. Just because someone of one race kills a person of a different race, we can’t assume race is the motive.”
But Torrey knew his constituency. “Any time a black person is killed in a white neighborhood, race is an issue.”
Hardy came back at him. “Union Square is not a white neighborhood, your honor. It’s downtown.”
The Cadaver scowled down from the bench. “Enough! I know where Union Square is, Mr. Hardy. Have you got a problem with the complaint? File the appropriate motions. Meanwhile”—he looked at the prosecution table—“is this a capital case, Mr. Torrey?”
“Yes, your honor. The People seek the death penalty.”
Hill nodded, keeping it moving, snapped, “Mr. Hardy, how does your client plead?”
He and Cole hadn’t really formally gotten around to this, but he nudged his client and the young man looked up, very much aware. He didn’t hesitate at all. “Not guilty, your
honor.”
An immediate and angry buzz filled the room. Hill seemed to have been expecting it. Certainly, he made no attempt to gavel things to silence. But the electricity created an opportunity, and Hardy took it to turn around and check out the gallery again.
Jeff Elliot, whose column in the Chronicle had already significantly raised the level of dialogue around this case, had gotten his wheelchair up to the front, and sat at the end of the first row, next to Dorothy. Significantly, Hardy thought, Jody Burgess was a couple of seats away, not right next to her daughter, the intervening spots filled with reporters.
To Hardy’s left, the prosecution side of the courtroom, particularly, continued its foment. Three fourths of the gallery on that side were people of color. Hardy was again struck by the thick, nearly palpable sense of outrage he felt from Elaine’s friends and colleagues. And beyond that contingent, at least a dozen young people—Hardy thought they must be students from Elaine’s classes—were turning and squirming in their seats, reacting with an obvious disgust and fury.
In the front row, Hardy recognized a couple of assistant D.A.’s and the homicide inspector Ridley Banks. There was Clarence Jackman, famous lawyer from Elaine’s firm, sitting next to a striking dark woman who was staring at Hardy with a smoldering malevolence. Next to her, a very handsome, early middle-age white man sat back in his seat, a statue, hands folded in his lap. Who was he? Hardy wondered.
Glitsky hadn’t made it down from the fourth floor.
Finally, suddenly, Judge Hill had let it go on long enough. Perfunctorily, he tapped his gavel several times and waited for the noise to subside, then spoke to Torrey. “The People seek to deny bail?”
“Of course, your honor. This is a capital case. There can be no bail.”
Hardy spoke up again. “Your honor, if it please the court . . .”
The Cadaver was losing patience with these interruptions. This was supposed to be, after all, a simple administrative procedure. He snapped out a response. “There is no bail in a capital case, Mr. Hardy.”
“Yes, your honor, I’m aware of that. But again, there is no way this should be a capital case, or even a special circumstances case.” Hardy took a deep breath, then forged ahead. “This charge is a clear case of politics with Mr. Burgess as the pawn. Women get raped and murdered and this D.A. doesn’t allege specials; policemen get killed, no specials. Now, in an election year, all of a sudden we get not just specials but a request for death. They want my client to die, your honor, so Ms. Pratt can make a last shoddy attempt to hold on to her office. And it stinks.”
“Your honor, please!” Torrey was out of his chair, his voice at full volume, and it served as a prod to the gallery, which responded with another outburst, the anger welling all around.
But this time, perhaps sensing a rising tide, Hill decided he’d better take control, and slapped his gavel hard three times in rapid succession. “There will be order in this court or I’ll have the gallery cleared.” He barely paused, brought his gaze back to Hardy, spoke sternly. “Now, counselor, if you want to object to the specials, write your motion, but for the moment, there they are. And bail is denied.”
But Hardy’s blood was up now, and he found himself unable to let it go. “In that case, your honor, before we go any further in this game of political football, I’ll also be making a motion about the so-called confession that the prosecution unethically keeps putting in the newspapers.”
This really set off the crowd, with several identifiable explosions—“Hey, he confessed!” “The guy did it!”—punctuating the general uproar.
The gavel banged away. But Hill’s real ire had become directed at Hardy. “I’m warning you, counselor. This is not the appropriate time or place. Take it up at the prelim.”
But it was as though Hardy didn’t hear him. He’d had enough for today already, and his patience was at an end. He raised his own voice over the hubbub. “Your honor, Mr. Burgess was held for hours before he was charged, he also was not adequately apprised of his right to counsel—”
“That’s a black lie!” Ridley Banks was up in the first row. “We Mirandized him as soon as—”
“He was drunk and barely coherent, your honor! The tape of his interrogation shows it clearly. There’s no way this tape will ever be played for a jury. The prosecution has no right to try and prejudice prospective jurors by even calling it a confession.”
Now, in the gallery, things were truly getting out of hand. Everyone seemed to be talking, yelling, swearing. Hardy caught a strong whiff of sweat, and couldn’t say if it was Cole and his fear or the collective scent of the mob coalescing behind him.
“Sit down, everybody!” The Cadaver had finally come to life, bellowing. “Down in the gallery.” He slammed his gavel again and again. “Bailiffs!” The three men in uniform appeared from their various posts around the wall and began moving up to the bar rail.
Ten minutes later, the arraignment was over. Hill called a stop to the bailiffs’ slow charge as they reached the bar rail. He really didn’t want to have to try to remove nearly a hundred people by force. Not only would that be a bad precedent for his fellow judges, he sure as hell didn’t want the word to get out that Judge Hill couldn’t control his courtroom by force of will alone.
The spectators in the room settled back down. Hill denied bail again and this time nobody argued with him. When Hardy didn’t waive time for the preliminary hearing, the judge asked him a second time to make sure he’d heard it correctly. Then he set the hearing for ten o’clock, Wednesday, February 17, in this same courtroom.
He ordered Cole back to the jail and called a recess. He stood without so much as a glance at anyone in the courtroom or gallery, and left the bench in a swirl of black robe.
Hardy realized that he had been lucky to escape without a contempt citation. And he really hadn’t accomplished anything substantive for his client, though he’d certainly succeeded in getting the judge and half the courtroom mad at him. So as the disgruntled masses filed out behind him, he stalled for time, gathering his papers at the defense table. He knew he had a gauntlet to run on the other side of the bar rail and out in the hallway, but he felt oddly satisfied. He’d served notice—no one was railroading his client without a fight.
He felt a light touch on the back of his shoulder and turned to face the D.A. “Mr. Hardy.”
He straightened up and nodded, set his jaw. “Ms. Pratt.”
Hardy and Pratt had a history. A year before, he had gotten her a public reprimand from the bench for her office’s cavalier abuse of the grand jury. She, in turn, had nearly filed criminal charges against Hardy for insurance fraud, and had directed her own investigators to explore Hardy’s possible criminal involvement in the murder case he was defending. There was no love lost between them.
And now she had another crack at him. “That was a fairly unprofessional and tawdry display.”
“Maybe it was.” Hardy’s lips turned upward, but no one would have called it a smile. “But I prefer that to self-righteous hypocrisy. Are you really such a political hack that you’d kill somebody for a few votes?”
Pratt turned red at the frontal assault. “Making false accusations about my motives will get you in trouble with the bar, Mr. Hardy.”
Hardy nodded again. “I couldn’t agree more, which is why I don’t make them falsely. And while we’re enjoying such a full and frank exchange of ideas, I’d be interested to hear about your decision to ask for special circumstances, much less death.”
“She doesn’t have to explain anything to you, Hardy.” This was Torrey. Hardy had been “Diz” before the arraignment had begun, but now the gloves had come off. “You go play your cheap defense tricks, and when we get to it, we’ll see what a jury thinks of them.”
“What a neat idea,” Hardy said. “That was kind of my plan, anyway. See what a jury thinks. If it ever gets to that, which I doubt.”
“Oh, it’ll get there. That’s what happens when you get a confession. The presumpti
on of guilt goes way up.”
“It does? That’s funny,” Hardy said. “I’d always heard it was presumption of innocence.”
“Your man isn’t innocent.”
“Well, there you go. I guess we’re back to that jury thing again, aren’t we?”
Torrey wore an expression of great disdain. “You knew Elaine, didn’t you?”
“Yes, I did.” Hardy answered without irony. “I thought she was great. And the idea that you’d want to kill somebody in her name, that makes me gag.”
Torrey shook his head in disgust. “I just don’t see how you can live with yourself.”
“It’s easy,” Hardy replied. “I’ve got a really good personality.”
“Let’s go, Gabe.” Sharron Pratt all but pulled him by the arm. “Oh, and Mr. Hardy? If I were you, I’d go easy on accusing me of playing politics with a man’s life.”
“So what would you like me to call it?”
She ignored that. “If you keep it up,” she said, “I’m not going to be disposed to drop it when this is over. And you’re going to be very sorry.”
Hardy took that in, then nodded thoughtfully. “You know, that sounds an awful lot like a threat. Are you threatening me?”
She glared at him levelly. “You take it any way you want.”
“All right,” he said. “I’ll take it as a threat. And as such I’ll be passing it along to the Bar Ethics Committee. Since we started here talking about ethics, that’ll bring us around full circle.”
Torrey couldn’t resist a parting remark. “You wouldn’t know an ethic if it bit you on the ass.”
For a long moment, Hardy gave him a flat stare. “Whoa. Clever. I’ve got to remember that one.” He turned to gather the rest of his papers.
Hardy decided he’d just as soon forgo the excitement in the hallway outside. He was all too familiar with the back way out—it was the way he’d come in—but his client Cole had just had bail denied. Even when this was expected, and it had been, it was never an easy moment.
The Dismas Hardy Novels Page 12