Hard Evidence (37 page)

‘Your Honor, the defense will present direct and incontrovertible evidence — eyewitness testimony from members of the district attorney’s own staff and from the San Francisco police department — that there was nothing approaching an impartial investigation leading to the indictment of Mr Fowler. The district attorney’s office concocted a theory out of whole cloth and proceeded to fill in whatever blanks they needed to get an indictment.’

There — Hardy had gotten it out, and Chomorro could overrule him if he wanted to.

Pullios took over. ‘Do we call this the paranoid defense, Your Honor? Someone was out to get Mr Fowler, so we got together and accused him of murder?’

‘Mr Hardy?’

‘It speaks to the interpretation of evidence.’

‘Interpretation of evidence is in the hands of the jury.’

Hardy nodded. ‘My point exactly, Your Honor.’

But Pullios wasn’t ready to quit. ‘The evidence must speak for itself, Your Honor.’

Chomorro banged his gavel. ‘All right, all right. Hold on a minute here.’

The courtroom hung in silence. By its absence, Hardy for the first time noticed the ticking of the court reporter’s keys. Finally Chomorro spoke up. ‘I’ll overrule Ms Pullios’s objection. You may proceed, Mr Hardy.’

Hardy took a deep breath and let it out slowly. He didn’t want to betray that he was sighing in relief. He’d also blanked on where he was going. He walked to his table and checked his outline.

‘You’ve already heard the term “consciousness of guilt” in the people’s opening statement. And I don’t dispute that there are certain actions that would seem to admit guilt. These would include such behavior as flight to avoid prosecution, resisting arrest and so on. But we’re on very slippery ground here when we’re using consciousness of guilt — a very general legal area — as a catchall for a
specific
crime.’

Hardy went on to describe an example of a situation where someone had resisted arrest and fled from arresting officers. If there had been a murder on that block, would that person’s actions in any way
prove
he had been involved in the murder? Of course not. Perhaps the person had stolen a car. Maybe he had an outstanding arrest warrant for jaywalking. Maybe he was a member of a minority group in a neighborhood where minorities were routinely harassed. ‘The point,’ Hardy said, ‘is that our person here can be guilty of
something
, and can act in what we would recognize as a guilty manner. But his actions don’t automatically make him guilty of, or a suspect in, any specific crime.’

He thought he’d nailed that point. ‘Now we have already admitted that Andy Fowler felt guilty. We’ll go a step further — he
acted
in a guilty manner. The prosecution is telling you that they will prove beyond a reasonable doubt that Mr Fowler’s behavior
allows for no other explanation
for this behavior except that he committed murder. We don’t believe they can do this. We don’t believe that you will let them. Because it isn’t true.’

He took another three or four seconds to look up and down the jury box. Then he thanked them and sat down.

51

Fowler told his daughter that Chomorro had obviously talked to some of his lawyer friends at lunch. Which was why he had called the conference in his chambers before they began with the testimony of Coroner John Strout in the afternoon.

‘What’s it about?’ Jane asked her father.

She was beside him at the defense table, which was allowed when court wasn’t in session. Behind them in the gallery the crowd was gathering again after the lunch recess.

‘Chomorro’s going over some rules,’ he said. ‘This is his first murder trial, remember. He doesn’t want to foul it up and have it declared a mistrial.’

‘How could he do that?’

Fowler patted his daughter’s hand. ‘See? All these years I guess I’ve made it look easy. You’re not supposed to argue law during opening statements, for example. You can say what you’re going to be showing, but you’re not supposed to explain it, which — you may have noticed —Ms Pullios did. Also, all this objecting and interrupting. It’s already getting to be a little personal in what’s supposed to be an impartial process.’

‘Didn’t Dismas want that?’

Fowler nodded. ‘Yes, he did. And to that extent he’s doing fine, but Chomorro — I’d bet anything — has got some ringers back there.’ He motioned to the gallery. ‘A couple of clerks taking notes. A trial’s supposed to be about evidence, not personalities. If it gets too bitter it jeopardizes the trial.’

‘Do we want that?’

‘No, Jane. I don’t want a mistrial. I want a fair trial. Dismas wants one, too, although he also wants to fight, which is good up to a certain point. But if I’m going to have any life after this we’ve got to win fairly, so everybody knows I’m innocent. Even Diz.’

‘Daddy, he doesn’t think you did it. He wouldn’t be defending you.’

Fowler wasn’t so sure. Hardy’s own uncertainties hadn’t been lost on him. ‘I’ve known him a long time, Jane, longer than you have, remember. He’s willing enough to pretend to believe — even to himself — that I’m innocent. But I wonder if it isn’t more a case of his feeling the evidence doesn’t prove I did it and —’

‘Well, that’s the same thing.’

Fowler shook his head. ‘No, it isn’t, Jane. It’s not even close.’

*     *     *     *     *

Hardy had read Dr John Strout’s grand-jury testimony twenty times. He’d memorized the autopsy report. He’d paid another doctor, a friend of Pico’s named Walter Beckman, to spend a night talking about medical issues, and he’d come to the conclusion that Strout’s testimony couldn’t damage Andy Fowler. The coroner had to be called to establish the fact of the death, the means of death, but essentially his testimony would be neutral, a foundation for what followed.

Which, he soon discovered, was selling Pullios short, and he should have known better.

Strout, tall and lanky, pushed back the witness chair so he could fit his long legs into the space. He appeared to be the most relaxed person in the courtroom, which was to be expected. He had given testimony perhaps an average of once a week for the past twelve years. He sat straight, his elbows on the arms of the chair.

Pullios and Hardy had both been instructed not to come close to witnesses when they were interrogating them, so Pullios stood where she had delivered her opening statement, about in the center of a circle that encompassed Hardy, the jury, Strout and Chomorro.

After leading the doctor through his qualifications, which were not in dispute, she asked him to describe the wounds he had discovered in Owen Nash’s body.

‘Well,’ he drawled, ‘there were two wounds, both created by .25-ACP-caliber slugs. The lower wound, not in itself fatal, entered the body in the pubic area —’

‘Excuse me, Dr Strout,’ Pullios said. ‘Distasteful as this is, would you please be more precise as to the location of this first wound?’

The drawl became more pronounced. ‘Well, if we don’t want to get into Latin, Counselor, the pubic area is relatively precise. It’s the area covered by pubic hair above the genitals.’

‘In other words, within an inch or so of the penis?’

Hardy saw where she was going. If a man were eliminating his sexual rival…

‘Objection. Leading the witness.’

Pullios quickly said she’d rephrase. ‘Can you tell us the location of this first wound in relation to Mr Nash’s penis?’

‘It entered just about at the base of the penis, slightly high and to the right.’

Some of the men on the jury seemed to wince.

‘Any more about this wound?’

Strout went into some detail about the bullet’s passage through Nash’s body, nicking the ilium, depositing some chips of bone in the greatest gluteal muscle before exiting through it. He went on, at Pullios’s careful prodding, to make the point that this wound had in all probability been the first one.

‘And why do you say that, doctor?’

Strout recrossed his legs. ‘Well, the second shot was fatal, almost immediately. It went right through the heart, struck a rib and ricocheted up into the left lung. Now, unless Mr Nash stood a while on his feet after he was dead, we can assume he fell within about a second of being shot. And if he was on the ground, the bullet through his pubic area would have been lodged in the deck, not on the side under the railing, which was, I believe, where it was found.’

Hardy objected, citing relevance, but he knew the testimony was relevant to what Pullios was doing, which was planting in every juror’s mind a vivid picture of the actions of a jealous and jilted suitor. First he would shoot his victim in the crotch. Then he would aim for the heart, killing him after he’d maimed him as a man.

Chomorro overruled Hardy, but Pullios didn’t pursue it. She graciously thanked Dr Strout and told him she had no further questions.

*     *     *     *     *

So the dike was already leaking where he’d foreseen no damage. He had to try and put his finger in.

‘Dr Strout,’ he began. These .25-caliber bullets that produced the wounds in Owen Nash. For the jury, can you describe their impact as opposed to different sized slugs?‘

Strout, no less relaxed than he’d been with Pullios, sat back in the chair. He looked directly at the jury and answered in his pleasant twang. ‘Well, they’re in the lower-end range according to size for handguns. The smallest is a .22 and it’s slightly larger — the diameter is slightly larger than that.’

‘Thank you. Now was there anything you could determine from your autopsy about the load in the bullet itself? The amount of powder in the casing?’

Strout got thoughtful. This was the kind of question he liked. ‘Judging from the fact that the second bullet didn’t make an exit wound, it could not have been a particularly heavy load.’

‘About average, you’d say?’

‘Yes, about average.’

‘So, Dr Strout, what we’ve got here is a small bullet with about an average powder load hitting a full-grown man. Would the impact of that bullet necessarily throw the man backward, even if it hit him squarely in the chest?’

‘Objection, Your Honor. That’s not Dr Strout’s area of expertise.’

‘What’s the point, Mr Hardy?’

‘Ms Pullios went to some length to bring out Dr Strout’s belief that the first shot was to Mr Nash’s pubic area.’

Chomorro chewed on it a second, then overruled Pullios.

‘Dr Strout. Is it possible that a man, even if hit in the heart by a bullet of this size, with this sort of charge behind it, could remain standing for half a second, particularly if he were moving toward the gun when the bullet was fired?’

‘Yes, I’d say so.’

‘And would that be enough time for his assailant to get off another shot with an automatic such as the murder weapon?’

‘Half a second? I’d say it’s possible.’

‘That’s all. Thank you, Doctor.’

*     *     *     *     *

‘What bothers me is I didn’t even see it coming.’

‘You did fine,’ Fowler said. ‘I doubt it’s relevant anyway. Who cares where the first shot went?’

They were taking a ten-minute recess, still sitting at the defense table. Hardy explained what he thought was the connection and Fowler doodled on a pad for a moment. Then he said, ‘Look, Diz. It doesn’t tie directly to me, therefore it’s not relevant. It’s speculation, conjecture, call it what you will, but keep me right in the center of this picture or we are in trouble.’

‘You were in the center of that, Andy.’

Fowler, showing displeasure for one of the first times, shook his head. ‘No,’ he said, ‘the murderer was.’

*     *     *     *     *

After Strout, they heard from a ballistics specialist who identified the murder weapon as a Beretta model 950, a single-action semiautomatic that held eight rounds of .25 ACP. The gun, registered to May Shinn, was introduced as Peoples Exhibit 1, and Hardy could tell the jury was surprised by the size of it — it was very small, with a barrel only two and one-half inches long.

The bullet that had passed through Nash’s body had been found imbedded in the side paneling of the boat behind the wheel. There was a fifteen-minute slide show on the similarities of the striations on the recovered slugs with others fired from the same gun. When the lights came up, so did a few heads that had been nodding. Pullios was explaining the obvious — how this testimony conclusively proved that Exhibit 1, May Shinn’s gun, was the murder weapon.

Big deal, Hardy thought, and chose not to cross-examine.

The fingerprint specialist was a young black woman named Anita Wells. She testified that there were two sets of identifiable fingerprints on the gun — those of May Shinn, the registered owner, and of the defendant, Andy Fowler.

Hardy had badly wanted to get the May Shinn fiasco introduced into the record, and he knew Pullios had no choice but to let him if she wanted to get Fowler’s prints in, which she had to do. It was, he was sure, why she had called Wells on day one.

When Pullios had finished a cursory interrogation. Hardy went to the center of the courtroom. ‘Ms Wells,’ he asked, ‘have you had occasion to test People’s Exhibit One for fingerprints more than once?’

Wells looked up at the judge, then at Pullios. She nodded, and the judge told her to speak up, answer with words. ‘Yes,’ she said.

‘And when did you first see this gun?’

The witness thought a minute. ‘Around the beginning of July.’

‘And at that time, when you tested it for fingerprints, can you tell the jury what you found?’

Pullios stood up and objected. ‘Asked and answered, Your Honor.’

Hardy shook his head. ‘I’ll rephrase it. The first time you looked, did you identify the defendant’s fingerprints?’

Wells swallowed. ‘No.’

‘Did you identify
any
fingerprints at that time?’

‘Yes. May Shinn’s.’

‘May Shinn. The registered owner of the gun. And where were Ms Shinn’s prints?’

‘There were several clear impressions, on the barrel and the grip.’

‘All right. Now after you identified Ms Shinn’s fingerprints, what did you do?’

‘Well, first I verified the comparison — they were what I was looking for.’

‘So, in other words, you went looking for May Shinn’s fingerprints? Isn’t that true?’

‘Yes.’

‘And after the case against Ms Shinn got thrown out, you went looking for Andy Fowler’s fingerprints, and you found them, isn’t that true?’

Pullios objected, but Hardy didn’t want to let this one go. ‘Your Honor, when the case against Mr Fowler gets dropped, does the prosecution plan to go looking for other prints at that time? The defendant’s fingerprints on this gun are critical to the case against him. The jury can’t know too much about how they were identified.’

Pullios wasn’t quitting either. ‘Ms Wells has already testified that they were on the gun.’

That’s true, Mr Hardy. We’re talking about Mr Fowler’s fingerprints, not May Shinn’s. You are arguing evidence that hasn’t been presented
in this case
. Try not to confuse the jury by referring to what is not properly before it.‘

Hardy felt this was a big loss. He stood a moment, gathering his forces.

‘You still with us, Mr Hardy?’ Chomorro asked.

Hardy had anticipated Chomorro’s antagonism from the bench, but now, at its first appearance, he realized how powerful its influence could be. If Chomorro was allowed to patronize him, the jury would pick up on it and his credibility would suffer. Andy Fowler had been right — this wasn’t an appealable issue. It had been bad strategy.

‘Of course, Your Honor,’ Hardy said mildly. ‘I was waiting for your ruling.’

Chomorro’s face tightened slightly. ‘I thought I’d made that clear. The objection is sustained.’

This time Hardy simply nodded. He spread his hands to the jury and smiled at them. ‘Sorry, my mistake.’ But the message was clear — he was a reasonable man, waiting to make sure he understood the judge’s ruling. There was no antagonism between himself and Chomorro. He went back to Anita Wells. ‘Can you tell us how long a fingerprint can last?’

‘I don’t understand.’

‘I mean does it go away after a while by itself? Does it evaporate?’

‘No, fingerprints are oil-based. They last until they’re wiped away.’

‘So Mr Fowler’s fingerprints on the clip inside the gun might not have been placed there at any time near to when the gun was found or fired?’

‘That’s true.’

‘Did you find anything indicating it might not be true?’

‘No.’

‘So Mr Fowler’s fingerprints might have been on the gun for as long as a year?’

Pullios stood up. ‘Asked and answered, Your Honor.’

‘I’ll withdraw it,’ Hardy said. ‘No further questions.’

*     *     *     *     *

‘It’s early, but I’d put us ahead on points.’ They had their coats off, their ties loosened. From Fowler’s law office high up in Embarcadero One, the city glittered out the window, Christmas lights starting to appear below.

Hardy was not so sure. ‘I wanted to get Shinn in.’ He had wanted to call May as a defense witness from the beginning, but Fowler wouldn’t hear of it. What could she possibly say that could make a difference, he had argued. Fowler hadn’t seen her, after all, in the four months before the murder. To say nothing of the fact that she had turned down Hardy’s several requests for interviews. She remembered him from Visitors Room A, thank you.