'No, there was none.'
Hardy thought he'd nailed down his point succinctly enough. The Cadaver had listened intently, even had taken a few notes. He'd have to let the information – and inferences to be drawn from it – hang fire for a while, but when the time came, it might be persuasive.
In the gallery, the noise bubbled up again. Hardy didn't know if the Cadaver used it for the same purpose, but suddenly the waxing and waning of the background sound struck Hardy as a kind of barometer. While he was asking his questions of Strout, the room had been almost completely silent. Which told him he must have been getting somewhere, making people think. Even if the majority of them, like Cole, were ignorant of where he intended to go, what his questions meant. But he knew.
And the gallery would remember them, waiting for an answer, for closure. So, Hardy believed, would the judge. He bowed his head slightly to Strout. 'Thank you, Doctor. No more questions.'
By the time Hardy was back at his table – six steps -Hill had directed Torrey to call his next witness. As he sat down, Cole whispered, 'What was that all about?' and Torrey stood and asked Steven Petrie to come forward. Hardy looked around Cole to Freeman. The old man pointed to the yellow legal pad on the desk in front of him. In block letters, he'd written 'Petrie'. He smiled helpfully.
'What?' Cole asked again.
Hardy patted his arm, whispered to him, 'It's like a movie, Cole. You pick it up as it goes along.'
Petrie, the officer who'd been first on the scene, was in uniform today. Blond and crew cut, he had a runner's body and a military air, and seemed nearly as uncomfortable as Strout had been composed. He gave his name, his rank, his duties and time on the force. Torrey was up, standing in front of him. 'Officer Petrie, would you please describe your actions on or about twelve thirty a.m. on the morning of Monday, February first, of this year?'
Hardy conceded that this was a good way to loosen up the stiff cop. Petrie seemed to sag in relief- he wasn't going to be answering a barrage of questions, at least not right away. He glanced up at the judge, then back to Torrey, and began his recital in a normal voice.
The details were familiar enough to Hardy, but he knew that a straightforward chronology of events would be helpful to the judge. Eventually, also – he hoped – it would serve him. But for now, he sat forward, listening for factual error, taking notes.
Petrie told it clearly. He and his partner, Daniel Medrano, were cruising downtown on their regular beat when they saw some suspicious movement at the head of Maiden Lane, at Grant. As they pulled closer, they brought their squad car's spotlight to bear, and saw a man squatting over a fallen figure. He turned and began to run. Petrie's partner Medrano got out and gave chase while Petrie first called for backup, then got out to see to the fallen figure, a young African-American woman, who appeared to be dead.
He took under a minute satisfying himself that he could do nothing to help the victim, but he called the paramedics anyway. By the time he finished, Medrano was returning with the suspect, whom he'd apprehended at the Union Square end of Maiden Lane. Medrano told him that, in the dark, the suspect had run into a fire hydrant and fallen down.
Shot out of a cannon, Hardy was on his feet with an objection. He heard Freeman call his name hoarsely, but he was already up, committed. 'Hearsay, your honor.'
Hill's eyes narrowed with displeasure. 'Absolutely,' he replied. 'And as such permitted in a preliminary hearing when offered through an experienced officer, as you no doubt remember from your days in law school. Mr Torrey, please continue.' But another thought struck him. 'Oh, and Mr Hardy, try to refrain from frivolous objections like this as we go along here, would you? We've got a lot of ground to cover. Thank you. All right, Mr Torrey, you may proceed.'
Hardy sat down heavily and Freeman reached around Cole to pat his arm. 'I tried to tell you,' he said. It wasn't any solace.
Torrey brought Petrie back to where he'd been and he continued. 'So Dan – Officer Medrano – came back down Maiden Lane with the suspect. He also had a gun that he said the suspect had dropped when he fell.'
More hearsay, though Hardy didn't doubt its truth.
'Let's stop there for a moment, Officer Petrie. Do you recognize the suspect that you and your partner arrested that night in the courtroom today?'
'Yes.'
'Would you point him out to the court, please?'
Petrie raised a hand, pointed a finger. 'In the middle of the defense table over there.'
Torrey had the record reflect that Petrie had identified the defendant, Cole Burgess. 'Now, this gun…' He introduced the murder weapon into evidence, and evidently the size of it made an impression on the gallery. It truly was a tiny weapon – no more than two and a half inches long, perhaps half an inch wide. Petrie identified it as the gun from the scene. 'All right,' Torrey said, 'you've arrested the suspect and recovered a gun. What did you do next?'
'I should say he was already handcuffed. Dan had handcuffed him after he caught him.'
'OK, thank you.'
'Then we brought him over to the squad car and patted him down. His pockets, his coat. He was wearing an old jacket.'
'And did you find anything on his person?'
'Yes, sir. Several items.'
'Would you describe them, please?'
Petrie identified them – the necklace, diamond ring, pair of earrings, a wallet belonging to the deceased containing her identification as well as eighty-five dollars in bills and a dollar sixteen in coins.
Prosaic as this was, no one in the courtroom was unaware of the significance of this testimony. This made it murder in the commission of a robbery. It's what made it a capital crime for which Cole Burgess could be put to death.
If there had been a jury present, this would have been the opportunity for Torrey to play to it, to underscore the importance of this testimony. But there was nothing for him to do in that regard now, no theatrical business to attend to, so he had to press on ahead.
'Officer Petrie,' he said, 'was the defendant intoxicated when you arrested him?'
Hardy stood. 'Objection, your honor. Calls for a conclusion. Officer Petrie is not an expert witness.'
But Torrey was ready with an argument. 'Your honor, a layman can offer an opinion in this area and every policeman on the street is intimately familiar with apparent intoxication.'
Hill nodded in agreement. 'Objection is overruled.' Hardy wanted to keep going, but he'd been warned. The judge had made his ruling. Besides, it was the correct one. There was nothing to do but sit back down and listen to Petrie's answer.
'I smelled liquor on his breath, but he was conversant and coordinated.'
Torrey smiled, obviously pleased at how well his witness had taken to his coaching. 'Conversant and coordinated,' he repeated. 'Thank you, officer. No further questions.'
If Hardy had been prosecuting, he would have had a lot more, so he was surprised – his rhythm off – as he stood to begin his cross. 'Officer Petrie,' he began, 'you smelled liquor on Cole Burgess's breath, is that correct?'
'Yes, it is.'
'Was this a strong odor?'
'I could smell it, yes.'
'Did you give him a Breathalyzer test?'
'No.'
'No.' Hardy paced a few steps to his left, deep in thought. 'Officer Petrie, in your years as a police officer, have you ever pulled over a car for a driving violation?'
Petrie reacted with a bit of impatience. 'Yeah,' he said. 'Of course.'
'Of course,' Hardy repeated. 'And on any of those occasions, if you wanted to know if someone was drunk, what was your procedure?'
'Usually we ask the person to get out of the car and administer some field sobriety tests. Saying the alphabet backwards, or standing on one foot with their eyes closed, like that.'
'So basically walking and talking, right? And other basic tests of coordination?'
'Yes.'
'Now you saw my client staggering when he walked, isn't that right? When he came back with your partner
?'
'Well, yeah, but he had fallen down.'
That's right, officer. He not only couldn't walk when you saw him, but he was too uncoordinated to escape, right? He plain fell down when he tried to run, isn't that correct?'
'Well, he ran into something.'
'And fell down, didn't he?'
A reluctant nod. 'OK. Yes.' Petrie tried to sneak a glance over Hardy's shoulder, pick up a cue from Torrey.
Hardy took a step toward the witness box and to his right, hopefully blocking the line of sight. 'Now, how about his speech?'
'I don't know,' Petrie said grudgingly. 'It varied.'
'Did he speak at all, officer,' Hardy asked, 'or was he too incoherent to say much?'
'He was pretty incoherent.'
'And passed out in the back of the patrol car?'
'Yeah.' Petrie squirmed. 'He did that.'
Hardy backed away a step, took a beat, then came back to the officer. 'People who act as you've described here might be drunk, correct?'
'Yes.'
'Another alternative would be if they were injured, is that right?'
'Yes.'
'And in fact, Mr Burgess was bleeding slightly from a head injury, correct?'
'Yes, sir.'
'Well, since you've testified that there were paramedics at the scene and your policy and procedure is to have injured prisoners evaluated by paramedics, isn't it true that the reason you didn't show Mr Burgess to the paramedics was because you could tell that the only thing wrong with him was that he was drunk? Falling down, incoherently drunk?'
Petrie was stuck. 'He was.'
Hardy nodded, satisfied. 'No further questions.'
During the recess, Freeman left for the bathroom. Cole pushed back from the defense table. He was not cuffed in the courtroom, and had crossed his arms over his chest, rested an ankle on his knee. 'I can't believe you didn't ask him anything about the shot,' he said.
Hardy wasn't much in the mood for criticism at the moment. 'Like what? He's not our witness.'
'Why not?'
Hardy, pretending to read from some notes in front of him, finally gave that up and turned to face Cole. 'Because I talked to him early in the week. He says he didn't hear any shot. And we need that shot as much as they don't need it.'
'Why didn't Torrey bring it up, then?'
Hardy had wondered about this too. Certainly, it was an important point. If Cole had only fired the gun once, and not when he fell during the pursuit in the alley, then the only handy explanation for the gunpowder residue on his hands was that he'd fired the gun before the police arrived. Presumably to kill Elaine. Petrie's report of the incident never mentioned a shot, although Medrano's did. So Hardy had put Medrano on his own witness list. He assumed that when Torrey had seen this, he chose Petrie for the prosecution version of the story. Then, in the flush of having demonstrated his special circumstance – robbery – he'd decided he had gotten enough out of him. He didn't need what the officer didn't hear. Hardy hoped this would prove to be a critical omission, but he downplayed it to his client. 'I don't know, Cole,' he said. 'My honest feeling is that he just plain forgot.'
Freeman guessed right again on the next witness – the crime scene lab technician. Lennard Faro was a small man in his early thirties with a thin mustache and thick, pomaded black hair. He wore a blue blazer over a tangerine shirt. A tiny gold cross earring dangled from his left ear. He verified that the slug ballistics confirmed that the bullet that had killed Elaine Wager had been fired from the weapon Cole had had in his possession. Faro had tested the defendant for gunshot residue, then analyzed the results. Now Torrey had come to the nub of it. 'And therefore, based on the results of this test, it was your conclusion that the defendant had on his hands residue that could only have come from a discharged firearm.'
It was a no-brainer. Faro had no doubt at all. 'Yes, sir.' And Hardy got the witness.
'Mr Faro,' he began, 'did you find any fingerprints on the gun?'
'No, sir.'
'Is this unusual?'
The lab tech shrugged. 'It's common enough, sir. The surface of the gun had been treated with Armor-All, the car upholstery cleaner? So it didn't hold fingerprints.'
'I see. And when you say this is common enough, roughly how frequently do you see it?'
This was an unexpected direction, and the young man paused to reflect before he answered. 'Every few months, I'd say.'
'Every few months? So it's not an everyday finding?'
'No, not at all. I didn't mean common like every day.'
'That's all right. I'm just trying to get a sense of when you would see this Armor-All used on a weapon to avoid fingerprints. It seems like an esoteric bit of knowledge.'
Faro had no reply. Hardy realized he hadn't asked a question. Torrey was objecting behind him. 'Relevance. What's the point here, your honor?'
'That's a good question, counselor. Mr Hardy?'
It was not a pleasant moment. The Armor-All was one of dozens of details that possibly meant something, but it didn't prove a damn thing either way. Cole was more likely to be ignorant of its usefulness in avoiding fingerprints than, say, a member of law enforcement or a hard-core criminal, but it certainly was possible that he knew all about it, and had put it to good use.
Hardy apologized, took another tack. 'Mr Faro, how many bullets were in the gun when you examined it?'
'Well, it's a five-shot revolver. There were three live rounds and two spent casings.'
'Two casings?'
That's right.'
Hardy looked at the judge, turned in a half circle, came back to the witness. 'Now, Mr Faro, did you take the GSR swabs from Mr Burgess yourself?'
'Yes I did.'
'And you've testified you found gunpowder residue on the swabs, is that so?'
'Yes.'
'Did you find a lot of it?'
'No. Very little.'
'Very little,' Hardy repeated. 'If a person fires a gun more than once, Mr Faro, does he leave increasing amounts of residue with each shot?'
'Yes, of course.'
'Of course. And yet Mr Burgess had very little?'
'Yes.'
'Are you able to say that this residue came from one or more than one discharge?'
'No.'
'In fact, you can get GSR on your hands from picking up a recently discharged firearm, isn't that true?'
'Yes.'
Hardy wasn't going to get any more out of that well, so he decided to move on. 'And when did you swab the defendant's hands, Mr Faro? Wasn't it in the middle of the night?'
'Yes, sir. The defendant was handcuffed and brought to the homicide detail for questioning. I was at the crime scene, and came down when we were done there.'
'Do you know what time you administered the test?'
'Yes, sir. I noted the time when I started. It was four thirty-seven in the morning.'
'And during all that time that you were at the crime scene, was Mr Burgess handcuffed in an interrogation room in the Hall of Justice?'
Faro nodded. 'That's what the officers told me, yes, sir. They didn't want to let him wash his hands. That's pretty standard,' he offered helpfully.
'I'm just curious, Mr Faro. Why didn't you administer the test in the field?'
'I guess they wanted to get him downtown fast. I don't really know.'
Hardy paced a little, in thought. 'All right, Mr Faro, so you got here to the Hall of Justice after Mr Burgess had been in custody for at least three hours. Would you describe his condition at the time you took the swabs?'
'Your honor, objection. Calls for a conclusion.'
But Hardy was ready for this one. 'Not at all, your honor. I'll let you draw the conclusions. I'm only asking Mr Faro what he saw.'
The Cadaver gave him one. 'Very well. Overruled.' 'Mr Faro?' This wasn't the tech's usual area of expertise or testimony, and he shifted in the chair with a degree of discomfort. 'Let me be more specific,' Hardy offered. 'Was Mr Burgess asleep?'
'No
, sir. He was in a chair.'
'Was he sitting up straight, or slumped down?'
Torrey again. 'Your honor, defendant's posture can hardly be relevant.'
But again Hill overruled him, adding harshly, 'I'm allowing this line of questioning, Mr Torrey.' The message was clear – object again at your peril.
Faro answered the question. 'He was way down, slumped as you say.'
'Did you talk to Mr Burgess at all?'
'Yes I did. I told him what I'd be doing with his hands.'
'And how did he respond?'
He considered a moment. 'Incoherently. He was pretty out of it. I finally just pinned his arms down and took the swabs.'
'Was his speech clear, or slurred?'
'Slurred. It was more like mumbling.'
'Mr Faro, did you smell alcohol on his breath?'
'Whew!' The witness finally showed some personality. 'It was a brewery in there.'
'A brewery,' Hardy repeated, delighted with the phrase. That would be "yes", wouldn't it? You smelled alcohol, is that right?'
'Yes.'
'And was this a good three hours after he'd been brought downtown?'
'Yes, sir, at least.'
'One last question, Mr Faro. Did you see any video equipment set up in the interrogation room when you were there administering your tests?'
'No, sir.' And another sentence slipping out. 'When I passed the monitor next door, they hadn't turned the camera on yet.'
'Thank you, Mr Faro. Mr Torrey, your witness.'
The prosecutor honed in on Hardy's most salient point. 'On the matter of the gunpowder residue, can it be wiped or washed off?'
'Washed, yes. Wiping, eventually, over time. Which is why we try to get to it pretty quickly.'
'But in this case, as you've testified, you didn't get to it very quickly. In three hours, might someone lose a great deal of residue if they wipe their hands enough on their clothing, for example?'
'Yes.'
'But not all of it?'
'No. Not necessarily.'
'So is it entirely possible that the defendant could have fired the gun more than once and still had only little or trace amounts of gunpowder residue?'
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