Hard Evidence (42 page)

Hardy let out the breath he’d been holding. That was better than ‘if something happened to Mr Nash.’

Chomorro kept reading. ‘Ms Shinn answered that she did not know and could not say. She did say she loved Owen Nash and that Mr Fowler
had been
someone she felt very close to.’

Hardy winced inwardly at the emphasis.

*     *     *     *     *

Pullios, speaking in a relaxed tone, was nonetheless teeing off on Gary Smythe. Fowler’s broker and sometimes golf partner was clearly reluctant to give what he thought was testimony damaging to his friend. Ironically, this worked in Pullios’s favor. If he were openly excoriating Fowler the jury might have reason to think there was a grudge against Andy, something personal he was paying back and enjoying. But to the contrary, every word was wrung out of him, which provided strong credibility to what he said.

Pullios was enjoying herself, as well she might, Hardy thought, after the events that had begun with Andy showing up late in the courtroom, May’s death, the sequestering of the jury, Chomorro’s admonition to the jury this morning and finally the stipulations about May’s testimony.

Freeman may have told him the previous night that he thought he still could win it, and with the new questions he had for Farris and the Marina guards Hardy was the most convinced he’d been of Fowler’s innocence, but right now he knew he was losing the jury while Pullios had the floor.

‘Mr Smythe, I show you here the May sixteenth page from the desk calendar of the defendant, showing the initials “O.N.” and the word “
Eloise
.” She entered the page into evidence as People’s Exhibit 18, then went back to the witness. ’On or about May sixteenth, did you have a discussion with Mr Fowler about Mr Nash?‘

‘Yes.’ Smythe didn’t like it.

‘Tell us the substance of that discussion.’

‘Well, it wasn’t much…’

Chomorro leaned over from the bench. ‘Try not to characterize what it was, Mr Smythe. Just tell us what was said.’

Smythe nodded, was silent for a minute, then tried again. ‘Judge Fowler and I have been active in fund-raising for a long time. I mentioned to him I had received an invitation to a charity event that Owen Nash was sponsoring aboard his boat and he asked me if I could get him an invitation. We could double-team him.’

‘And how did you respond?’

‘I thought it was a good idea.’

‘And you got him an invitation?’

‘Yes.’

‘So did both of you go?’

‘No. As it turned out, neither of us did. I became sick and Andy decided not to.’

‘Did he say why he so decided, after going out of his way to get the invitation?’

Smythe looked at Fowler, then down at his lap. ‘He was having a hard time back then, he didn’t feel like going out.’

‘A hard time? Personally?’

Hardy got up, objecting, and was sustained.

‘So what happened to your fund-raising plans with Mr Nash?’

‘You have to understand, these things go on continuously. They’re fluid in their timing. But I was a little disappointed that neither Andy — Judge Fowler — that neither of us had taken advantage of such an opportunity, and I said as much to Andy.’ He paused, looking again at his friend at the defense table. ‘Andy said he had other reasons to talk with Owen Nash anyway and he promised he’d get to him within a month.’

Pullios hung on him for a beat, then turned to the jury. ‘He promised he’d get to him within a month,’ she repeated. Then, to Hardy, ‘Your witness.’

*     *     *     *     *

‘Mr Smythe,’ Hardy said. ‘To your knowledge, did Mr Fowler ever meet Mr Nash face to face?’

‘No.’

‘Did Mr Fowler ever tell you he had made an appointment with Mr Nash to discuss anything, aboard the
Eloise
or anywhere else?’

‘No, he did not.’

‘Did you have occasion to talk to Mr Fowler between May sixteenth and June twentieth, the day Owen Nash died?’

‘Oh, yes. We talked almost every day.’

‘You talked almost every day. Do you recall if Mr Nash’s name came up between May sixteenth and June twentieth?’

‘Well, the one discussion I told Ms Pullios about.’

‘And after that?’

‘No.’

‘No, you don’t recall, or no, it didn’t come up?’

‘I don’t recall it coming up.’

‘If he had made an appointment with Mr Nash, don’t you think he would have told you —?’

‘Objection!’ Pullios said. ‘Speculation.’

It was sustained as Hardy had known it would be, but that was okay with him.

He continued. ‘I’d like to clarify this. On May sixteenth Mr Fowler — despite having an invitation — did
not
go to the
Eloise
?’

‘That’s true.’

‘At no time during the following month did he mention either making an appointment with Owen Nash or going to the
Eloise
?’

‘Right.’

‘So if I may summarize the
facts
elicited in your testimony, Mr Smythe, to your personal knowledge, Mr Fowler never met Mr Nash and never boarded the
Eloise
.’

‘That’s correct. Not to my knowledge.’

‘Is it a
fact
, Mr Smythe, that Mr Fowler promised, as you said, that he would “get to” Owen Nash within a month of May sixteenth?’

Smythe frowned. ‘Yes, he did say that.’

‘So
the fact
is that he told you he was going to do it. It is not a fact that he actually did it? In fact, you are aware of no evidence at all that he did do it. Isn’t that true?’

‘Yes, that’s correct.’

*     *     *     *     *

Pullios had narrowed down her witness list to David Freeman and Maury Carter, the bail bondsman. After lunch she was obviously going to close things up for the prosecution with the character issue, leaving the jury with the impression that Andy’s consciousness of his guilt over the murder was the only possible explanation for his actions. Chomorro had made it clear he was going to allow all the testimony in this vein.

Hardy looked forward to having Freeman on the stand. Although his testimony would get into evidence the bare facts of Andy’s unethical behavior, as a lifetime defense lawyer he would be instinctively opposed to Pullios. Hardy had, of course, talked with him several times during the two months he had been preparing for the trial and in those discussions Freeman had seemed genuinely distressed by his upcoming role as a prosecution witness.

But facts were facts — Andy Fowler had hired him to defend May Shinn. Freeman had told Andy flat out, in Fowler’s own chambers, that in his opinion he had no option but to recuse himself from the case now that it had turned up in his courtroom. He had arranged with Maury Carter for the bail.

In Freeman’s long career, he had told Hardy, he had never seen a judge do anything like what Andy Fowler had done. Of course, he wasn’t going to put it like that on the stand, but Fowler’s actions had been so incredible to Freeman that they beggared description.

However, last night he had also indicated to Hardy that Hardy hadn’t lost the case yet. And that had been before they’d been certain May had killed herself, when things had looked even worse. Was he perhaps planning some emphasis in his testimony to make it less damning than it seemed on the face of it?

*     *     *     *     *

Chomorro decided that Andy Fowler could be readmitted to bail, and now the subdued ex-judge and his daughter made clear they did not want to be with his attorney and went off to lunch by themselves. Which at the moment suited Hardy just fine.

57

‘Did you get a chronology of May for the whole week?’ Hardy asked Freeman.

‘Of course.’

Hardy and Freeman were talking in the hallway. It would not do for the two of them to spend an hour lunching at Lou’s just before Freeman went on the stand for Pullios, so Hardy took advantage of what camouflage there might be out in the open halls.

‘Do you remember her going to the
Eloise
?’

Freeman looked like he had slept in the clothes he had worn at the morgue the previous night. ‘Yes. Not a smart move.’

‘Why did she tell you she did it?’

‘They’re not going to ask me about this, you know. Pullios is going to want to know about Judge Fowler hiring me, not about May Shinn.’

Hardy didn’t want to push, but neither did he intend to back down. ‘It’s for me, not Pullios. I want to know about May Shinn,’ he said.

‘All right, but I’m not sure why it matters when, if or why May Shinn went to the
Eloise
. I’ll tell you what she told me, okay?’ His eyes searched the hallway, perhaps looking for members of the prosecution team, then he came back to Hardy. ‘She read about herself, linked to Nash, in the
Chronicle
on Thursday morning — the first day it was speculated that the mystery hand might be Nash’s. She was afraid that they’d try to find something to tie her to him — a very justified fear, as it turned out. She knew her gun was on the
Eloise
and she decided she’d come down and remove it before the investigation heated up. But when she went there it was the middle of the day and she realized she’d be recognized, even worse, somehow be connected to what had happened. So she would come back later when it was dark or when no one was around, but by that time the police had closed it off.’

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 them — 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.