Hard Evidence (35 page)

There was a scattered show of hands, eight in the jury box. Hardy swiveled to look back at the gallery. There were about ten more. In the two months he’d spent preparing for trial most of his ‘creative’ ideas had gone out the window. If a change of venue would have a better chance of getting Andy a fair trial he would have gone for it. But he’d hired a consultant who had taken a poll and discovered that only between twenty-three and thirty percent of adults in San Francisco had ever heard of this case. At first it had shocked him. He knew people read less and less, were too busy for most current events, but still…

‘Do any of you whose hands are up feel you know the issues in this case?’ A few hands went down.

‘You’re going to be hearing evidence that may or may not corroborate what you think you already know. Would any of those remaining have any problem accepting those new arguments or evidence?’ This was getting weaker than what Hardy had hoped for. Only four people, and none in the jury box, had their hands up. ‘All right, then, I think we can proceed.’

Chomorro then began the general winnowing process. Did anyone in the panel know the defendant? Had anyone known the victim? The prosecutor or defense attorney? Chomorro read the list of proposed witnesses and asked if anyone knew any of them.

The tedious procedure continued. Were any of the panel themselves or any members of their families peace officers or lawyers? Ditto, victims of violent crime? What about nonviolent crime? Had anyone been arrested?

Five of the twenty jurors raised their hands during this period of questioning, a large percentage. Chomorro followed up individually with each one and ended by dismissing all five. Five new prospective jurors took their seats.

When the general questions had finished, Chomorro began taking the panel one at a time. This was where, before June of ‘91, Hardy could have narrowed things down considerably, but now he was at the mercy of Chomorro’s questions.

Seat number one was a heavy-set woman of about forty. She gave her name as Monica Sellers. She had been married for seventeen years to the same man and had three children. For the past three years — after the children were old enough — she’d been employed as a part-time bookkeeper for a temp agency that worked out of the Mission district. Before that she’d been a housewife.

‘Now, Mrs Sellers — by the way, do you prefer Mrs or Ms?’

She laughed nervously. ‘Oh Mrs, definitely. I’m Mrs Sellers.’

‘All right Mrs Sellers, let me ask you this question, then. And would the rest of the panel please pay attention? I will be instructing you in certain matters of law, and one of the words you’re going to hear a lot in the next few weeks is going to be “evidence.” There are two basic kinds of evidence — direct evidence, for example, when an eyewitness sees something and swears to it. If you believe that witness, then his or her statement would be direct evidence. Circumstantial evidence might be, for example, a fingerprint —’

Hardy jumped up. ‘Objection, Your Honor.’

Chomorro, interrupted in his monologue, frowned from the bench. ‘Objection to what, Mr Hardy? I was about to say that a fingerprint on an object can be circumstantial evidence that the object had been touched by the person who had left fingerprints on it. Do you mean to object to that?’

‘No, Your Honor. Sorry.’ He sat down, and Fowler whispered that he ought to reel it in a little if he didn’t want the jury to start turning against him.

Chomorro turned back to the panel. The classic analogy related to direct versus circumstantial evidence is something we call the cherry-pie analogy.‘ Chomorro appeared a bit embarrassed by the homespun nature of his words. ’If you walk into your kitchen and see your child eating cherry pie, then you have direct evidence that he was eating the pie. If, on the other hand, you come in and see a half-empty pie plate and your child’s face and clothes covered with cherry pie filling, then you have circumstantial evidence that he’s eaten the pie. I need hardly add that both types of evidence can be pretty convincing.‘

The jury nodded appreciatively, and Chomorro, more relaxed at the positive reaction, continued. ‘Let’s take another example, since this evidence is central to what a trial is all about. How about lipstick on a cigarette, which can also be evidence? Mr Smith sees Mrs Jones smoking a certain type of cigarette and leaving a certain colored lipstick stain. Then let’s say he walks to another room in her house and sees a similar cigarette butt lying in an ashtray in another room. That second cigarette butt is
circumstantial
evidence that Mrs Jones has been in that room. She may have been in that room, but it is not a fact proved by direct evidence. I trust that’s clear.’

‘This is good,’ Fowler whispered. Hardy nodded, agreeing, and glanced at Pullios. Her mouth was set tightly. She looked straight ahead.

‘However,’ Chomorro went on, ‘that said, if I tell you as a matter of law that an abundance of circumstantial evidence, under certain conditions, can be sufficient to establish guilt beyond a reasonable doubt, would you have a problem with that?’

Mrs Sellers looked thoughtful. ‘No, I don’t think so.’

Pullios looked to be suppressing a smile. Hardy put an ‘X’ through seat number one (he didn’t want to run through his challenges, but there was no option here) as Chomorro nodded to Mrs Sellers. ‘Would any of you have a problem?’

First one, then two other prospective jurors, wanted some clarification. Chomorro took them one at a time, getting names, marital status, occupations — beginning to fill in the blanks. They were all men, two in their fifties, one, a black man of about thirty. Finally they all agreed they could accept Chomorro’s instructions although there might have to be a lot of circumstantial evidence.

Which brought Chomorro to a pedantic discussion of quality versus quantity of evidence. A small amount of direct evidence might outweigh an abundance of circumstantial evidence, or vice versa.

Seat number two was Shane Pollett, cabinetmaker, a relic of the sixties with graying long hair and a tie-dyed t-shirt, a medium-length beard, an expression of amused tolerance. He was forty-four years old, in his second marriage, second family, three young kids. Two already grown up.

Hardy was beginning to understand Chomorro’s technique. He would move quickly through the panel, asking a technical question or making a legal point or two to each member, opening it up to the rest. If his goal was to keep things moving along, it would work. For Hardy’s purposes, it wasn’t nearly enough.

‘Mr Pollett, let me ask you this.’

‘Sure,’ Pollett said.

Clearly, the informality, irreverence, rankled Cho-morro, but he forced a smile. ‘If the state didn’t have someone come in and say, “This happened, I saw it,” would you accept that there’d be another way they could prove something happened? To use my example?’

‘Sure, why not?’

Hardy leaned over and whispered to Fowler. ‘Why do I like this guy?’

Fowler shrugged. ‘Wrong answer for us but the right tone. Gives one pause. Keep your eyes open.’

*     *     *     *     *

Jane brought sandwiches into the room they’d been assigned on the second floor of the Hall. It was a little after one o’clock on the first day, and seven jurors were already empaneled — Chomorro wanted a jury in two days, max, and by God, they were going to have one.

‘How are we doing?’ she asked.

‘Knocking ’em dead,‘ her father answered brightly. He pulled a submarine and a soda from the bag Jane had brought in. ’No chips?‘

Jane smacked her forehead. ‘Sorry, I forgot the chips.’

Hardy pulled the bag toward him. He realized the banter was in the ‘brave-front’ department, but his patience was worn thin. ‘Let’s chat some more about chips, chips are real important right now.’ He started unwrapping his own sandwich. ‘Okay, I’ve got it four to three, slightly toward us.’

‘Is there anybody you hate?’ Jane asked, her face serious.

‘Anybody I hate, I challenge, but there’s damn little to go on.’

‘I know,’ Fowler said, ‘to call this a
voir dire
is a little misleading. I don’t think Leo knows that much what he’s doing.’

‘What’s he leaving out?’ Jane asked.

‘It’s not so much that,’ Fowler said.

Hardy spoke up. ‘He’s not getting anybody to open up. Who are these people? What do they think about? What movies do they like? Hobbies? Anything. When he gets done we’re not going to know anybody better than we do now. You look at what they’re wearing, if they got a nice face, if they don’t stare at us like they hate your father, that’s about it. That and his so-called explanations of law.’

‘He does favor the leading question,’ Fowler admitted. ‘But he’s a politician, what do you expect?’

‘He’s what I expect, all right, but I’m let down on so many other expectations, why couldn’t we get lucky here? He’s going awful light on the burden of proof, don’t you think?’

‘Well, we knew that going in.’

Hardy chewed a moment. ‘There must be a rebuttal to consciousness of guilt.’

‘Not that I know of,’ Fowler said. ‘You can’t prove a negative.’

‘If he’d only make a nod toward due process. I gave him twenty questions on the investigation, the indictment, the grand-jury process, all of that.’

‘What was that?’ Jane asked.

‘Jesus, everything,’ Hardy said. ‘Everything these people should know and probably won’t — that an indictment is essentially a minimum showing of cause for trial, that no defense people can be present during the grand-jury proceedings, that basically it’s the prosecutor’s ballgame. These prospective jurors out there are intimidated enough. Then you tell them that another jury, a
grand
jury no less, thinks your father killed Owen Nash, what are they supposed to think?’ Hardy turned to his client. ‘He’s got to bring up some of that. Put it in context.’

Fowler shook his head. ‘He won’t, you can bet on it. He’s telling us it’s not relevant.’ Fowler smiled grimly. ‘What a judge thinks has a way of making it into the courtroom. Believe me, I know. Your due-process argument might make the appeal, but you’re going to have to get clever and lucky to get it introduced here.’

Jane tapped her bottle of soda on the table a few times. ‘Gosh, you guys are heartening to talk to,’ she said.

*     *     *     *     *

Chomorro finished his questioning and asked if either side would like to exercise a challenge. Hardy decidedly did not want to dismiss the first person interviewed — it would not enamor him to the jury — but since Mrs Sellers had come down so strongly for believing in the accumulation of circumstantial evidence, he had no choice. He could tell it both surprised and hurt her as if she’d failed a test. He looked at the eleven faces to his left, most of them fixed solemnly on Mrs Sellers as she walked back through the swinging door that separated the gallery from the courtroom. The clerk called a name to fill the vacancy.

By 4:25 they had empaneled a jury and two alternates. There were seven men and five women, four blacks — two men and two women — and, despite Hardy’s initial misgivings, one Oriental — a fifty-five-year-old bespeckled Vietnamese shopkeeper named Nguyen Minh Ro. Fowler had crossed him off on their schematic almost as soon as he’d started talking, but then Ro, not perfectly understanding the laws of his new country, had asked the very question that Hardy had wanted to get in — just how was it that Mr Fowler was to be considered innocent when the grand jury had already said he was guilty? Hardy could have kissed the man. He still might have dismissed him, but there was something in his body language toward Chomorro as the indictment process sunk in that looked promising for the defense. Surprisingly, Pullios didn’t challenge, and he was in.

They could break it down demographically any number of ways — seven men, five women; seven whites, five non-whites. They did have a fortunate break with their hope for scientific/engineering types — three of the jury worked to some degree with computers. Additionally, one middle-aged black woman, Mercedes Taylor, was an architect.

There were no secretaries. They had kept Pollett, the cabinetmaker. Three computer jocks, an architect, two salesmen, one housewife, two small-business people (including Ro), a construction person and a high-school teacher.

Chomorro had put on reading glasses as the day progressed, his affability fading along, apparently, with his eyesight. By the time he began questioning the alternates at four o’clock, he was as clipped as a drill sergeant, asking them if they’d heard anything in the questioning and instructions to the other jurors that they felt ought to disqualify them. No? Okay, then. He finished them both in under twenty minutes.

49

‘I don’t blame her. Why should she want to help you?’

The ‘she’ Peter Struler was referring to was May Shinn. He sat on his ‘Molly’s’ desk, facing her in her chair, his legs on either side of her. Pullios had pushed herself back nearly to the wall and looked up at him.

‘I thought the letter made that very clear,’ she said. ‘She’s got about a half dozen civil suits going. Freeman knows her civil jury will more likely pay off on an upstanding citizen who helped the authorities solve the murder of which she was wrongly accused. Besides, all the witnesses will be cops and D.A.s. We could do her some good. She might be suing us but it’s the City that pays off.

Struler shook his head. ‘I’d just bring her in.’

‘On what?’

Straight-faced, Struler replied. ‘How about a DWO, something like that?’

Pullios knew her law, and she’d never heard of a DWO. ‘Okay, I’ll bite. What’s a DWO?’

Struler grinned. ‘You know, Driving While Oriental. Gets ’em every time.‘

There was no training this guy. ‘Is it just me, or do I get the feeling your political correctness is slipping again?’

‘Who gives,’ he said, enunciating clearly, ‘a big steaming pile of shit?’ He put his feet up on the chair’s arms. Outside the window behind Molly it was pitch black, though it wasn’t far into the dinner hour. Her door was closed. ‘So hit her with a subpoena.’

‘I know, but the minute I do that, she goes on the official witness list.’

‘Yeah, well excuse me, but aren’t those the rules?’

She graced him with a ‘get-serious’ expression, and he asked if Hardy had interviewed her.

‘She said he hadn’t.’

‘So why’d she talk to you?’

Pullios smiled. ‘I asked Freeman to clear it for me to apologize personally for what I’d put her through.’

Struler shook his head in admiration. ‘You are a cruel and terrible woman.’

‘Thank you, sir. It got her to talk to me about Fowler and the gun, but she said she wouldn’t be a witness against him.’

‘Hey, she’s not married to him. It’s not like she has a choice.’

‘I want to keep her on my side as long as I can, though. The nice letter, all that.’

‘You need what she’s got?’

Pullios nodded. ‘It’s absolutely essential.’

‘Okay,’ Struler said, ‘here’s what I suggest you do. Wait until the last possible moment so there’s no notice to Hardy, then send somebody out — some D.A. investigator like my own self — and slap her with a submeister.’

‘What’s that?’

Struler shook his head. ‘Come on, Molls,’ he said, ‘get hip.
Saturday Night Live’
? Submeister, sub-a-rama, Mr Sub, subster.‘ At her continued blank stare, he finally relented. ’You lawyers ought to get out more, I swear to God. A subpoena, Molly. Hit her with a subpoena.‘

*     *     *     *     *

Hardy plugged in the Christmas lights he’d strung up around his front porch over the weekend. Rebecca, walking now, clapped her hands, stopping to point and yelling what sounded like ‘why why why’ at the top of her lungs. Hardy picked her up and held her closer to them.

‘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 light in his office and walked through his 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 letdown 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 them. 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.’