Hard Evidence (45 page)

The door opened and he was looking at his client.

‘Andy, we’ve got to talk,’ he said.

*     *     *     *     *

‘You are such a bastard.’ Jane was crying, her legs curled up under her on her bed.

‘Jane, I’m trying to save your father’s life here. It’s not been the best time I’ve ever had either.’

Hardy felt terrible seeing his ex-wife in tears. He could be glib — or pretend to be — about the men in her life after him, but he wasn’t blind to the fact that she was looking for the right one, that what she wanted was a man steady and strong who would love her and stay true and she wasn’t finding him. He supposed, perhaps wrongly, that he’d at least come the closest to that ideal, but something — their own history? — had made the commitment impossible.

He could see her every day and not think about it, but now, confronted by it, it was very hard.

‘How can you even
think
that, Dismas? What kind of person do you really think I am? I
told
you it was nothing.
It was just a night
.’

Andy was waiting in the living room. Hardy would get to him if he had to, but first he had to know about Jane and Owen Nash. ‘Just
one
night? And you never saw him again?’

‘That’s
right
. It happens. What do you want me to say?’

‘I don’t want you to say anything if that’s the truth.’

She hit the bed with a balled-up fist. ‘I
told
you it’s the truth. I saw Owen Nash one day, one night. One.’

‘Okay, okay, Jane.’

‘What are you saying? I killed him?’ Reading his expression, she brought her hand to her mouth. ‘Oh, my God, you really think that.’ She jumped up, sniffling, and went to her bureau, opening a wide black book and turning the pages. She turned to him, holding the book open for him to see. ‘June eighteenth to twenty-second. The I. Magnin Summer Fashions Exposition. All day every day I’m giving seminars and hosting teas. Check on it.’

Hardy looked down, hating this. ‘I believe you, Jane, I said I believed you.’

She pulled the bureau chair out and sat back down, crying again, silently, wiping at her eyes with a Kleenex. Hardy got up off the bed and left the room.

60

He told Andy they had to get together the next day to go over his testimony. They made an appointment for noon, and then Hardy left him to comfort his daughter.

He had written Frannie a note saying he would probably be gone all day and she had left one for him — she was at her late ex-husband’s mother’s, Rebecca’s grandmother’s, house, and would be back by six. She hoped to see him then.

He went to his office and threw darts for twenty minutes, now and then glancing at the window to watch the rain drop out of the gray.

This was the time he was supposed to be gearing up for his defense, for the legal battle between him and Pullios on the interpretation of the evidence that Andy Fowler had allegedly killed Owen Nash. But Hardy felt that somehow the essence was being lost. It reminded him of his high-school debates where he would argue both sides of something, sometimes three or four times, in the same afternoon. As though there was no correct answer.

Oh, and he knew it was the fashion, had been since he had gone to college — don’t make value judgments. Relativity was king. There was no absolute truth. But, like it or not, he had grown up to believe that there was truth, that right differed fundamentally from wrong.

And what he was supposed to do on Monday was continue the debate. He knew that. He would call Abe Glitsky and Art Drysdale, and possibly José, as witnesses, and wind up with Andy testifying on his own behalf. He had been preparing his summation almost since the trial had begun.

The problem was that now, so far as he could sort it out, little of what really had happened had found its way into this trial, the supposed crucible of truth.

On the one hand he didn’t want to divert his attention away from his defense of Andy — he knew he should be sitting at his desk, outlining, writing key phrases and arguments to win over the jury. But the other side of him felt that now that he was satisfied that he knew what had happened he should pursue that truth singlemindedly. Only that pursuit could take Andy Fowler’s fate out of the hands of the jury, remove it from debate.

The only thing that would ultimately clear his client was an alternate explanation of events. But the time he spent on that took away from his formal defense at trial.

He threw darts.

*     *     *     *     *

The inventories were no help. They listed sweatbands taken from the drawers in the desks next to the bed, some weight-lifting gloves, leg warmers. Switching back to his formal trial preparation, Hardy pulled his legal pad in front of him. Should he call José as a witness and introduce everything he had found this morning? He wrote it down, looked at it and realized that nothing he had found out proved that Andy had not been on the boat Thursday morning. Prove a negative…

What about the significance and believability of the gun in the drawer? He could call Pullios and Chomorro right now and say that he, personally, had discovered a crucial bit of evidence that would demand a retrial because he could not be a witness for his own client. He would testify that the gun had not been in the drawer on Wednesday night. But proving it to a new jury would, again, be difficult. It was still possible, he had to admit, that the gun had slid forward or backward with every opening of the drawer. He
could
simply have overlooked it — missed it in his haste. And even if he did establish the gun’s absence, did that
necessarily
mean the prosecution would have the burden of proving that Andy Fowler had somehow acquired a key to the
Eloise
? Playing Glitsky, he came up with five reasons in five minutes why they wouldn’t.

He got up and fed his fish. He knew what he knew —the gun had been brought back to the
Eloise
on Thursday morning by the jealous woman who had killed her past lover, Owen Nash. She had done it to get it out of her own possession and to shift the blame to May, and on both counts the strategy had worked.

*     *     *     *     *

He had to hit and hit again the fact that the burden of proof was
always
on the prosecution.
They
had to prove Fowler had killed Nash — it wasn’t Hardy’s job to prove he hadn’t. What he had to do was keep the jury clear on that point. Pullios had to
prove
Andy’s guilt. Even if the jury thought Andy was guilty of something to some degree, he had to make the point to the jury that they weren’t to determine whether or not Andy was
innocent
, but rather whether the prosecution, by the evidence presented, had proved him guilty. And if not, then —although he might not be innocent — he was legally
not guilty
.

Innocent did not mean exactly the same thing as not guilty. It was, in this case, a crucial distinction.

*     *     *     *     *

Back at his desk, he pushed some buttons, then exchanged a few words with Ken Farris about the terrible weather. ‘You still at it?’ Farris asked.

‘No rest for the weary,’ Hardy said. ‘A point occurs to me, if you don’t mind helping the defense.’

‘I can go half a yard,’ Farris said, ‘though I’d prefer not to think of it as assisting the defense.’ He paused briefly. ‘Dismas, let me ask you something —I get a feeling this is more than just a job for you. You don’t think Fowler did it, do you? You wouldn’t do this as an exercise in the law.’

Hardy had been through it all before. ‘Fowler didn’t do it,’ he said. ‘I’m also trying to find out who did.’

A pause, then, ‘Why do they keep putting us through this? Getting the wrong people?’

Hardy knew it was a long story — Nash’s fame, Pullios’s ambition, Fowler’s duplicity. Suspicion and prejudice and all of the above. But Farris had asked it rhetorically and Hardy passed it by. ‘Did Owen give the key to the
Eloise
to any of his girlfriends?’ he asked.

‘I doubt it. The
Eloise
was his baby, you know. He’d have people aboard, but not without him.’

‘Did he have any other long-standing girlfriends, mistresses, whatever — besides May?’ He had to, Hardy was thinking.

‘A few weeks, once in a while a month, that was about it. He paid them off, they went their way.’

‘Do you remember him talking about any of them being bitter, angry, rejected, anything at all like that?’

‘No. I’m sorry, but there just wasn’t that much made of it, or, I should say, them. They came and went like the seasons.’ He laughed dryly. ‘No, scratch that, more like the courses of a meal. That was the big difference with May — she was around awhile.’

‘And no one else was?’

‘No. Except Celine, of course.’

Hardy sat riveted to his chair. He felt the blood draining out of his face. The rain beat on his window. Darkness was settling in. ‘Did Celine have a key to the
Eloise
?’ he asked, keeping his voice calm.

‘Hey, I was kidding about that. Really, a bad joke.’

‘Does she have a key?’

‘Well, I think she does, she used to. But she didn’t —’

‘I know that.’ Hardy forced himself to slow down, to speak calmly. ‘Just another something to think about. Keeping track of these keys, that’s all. But do me a favor, would you?’

‘Sure.’

‘She’s mad enough at me about all this, defending the man on trial for her father’s murder. Would you try not to mention this key business to her if you see her?’

‘Yeah, okay, no problem.’

When he hung up, he didn’t move for several minutes.

The house wasn’t there, nor was his office, nor the rain, nor the darkness outside.

*     *     *     *     *

The night Celine had come by for the first time she had quickly left after seeing him in his green jogging suit, the same kind Owen Nash had been wearing on the day he had been shot. Was seeing him like seeing her father’s ghost? She’d reacted, at least for a moment, as though she had… ‘You just suddenly reminded me so much of my father…’

So rethink that visit. How could he have reminded her of her father, with that intensity, if she hadn’t seen him in the same outfit,
if she hadn’t been with him on that last day
? Of course, she might have seen him other times in his jogging clothes… except that wasn’t very likely. They didn’t live together, they didn’t jog together.

Strout… he had mentioned in the case of May Shinn — though Hardy knew it was true anyway — that standard operating procedure at the morgue was to bag the victim’s clothes. Celine had seen Nash at the coroner’s… but he’d been naked.

Certainly the jogging suit was a better explanation of her extreme reaction than just seeing him in domestic bliss with wife and child. If he hadn’t been so convinced she was in love with him, would he have ever believed her explanation for her reaction? Dismas, the lady-killer. He shook his head in disgust.

*     *     *     *     *

But
why
?

Money? Greed? Well, it was true she stood to benefit with May gone, more than anyone except perhaps Ken Farris, but since she already had more than she needed he’d quickly discounted that potential motive, not to mention that he never considered her a suspect anyway.

He wasn’t happy with it. The more you got, the more you wanted? Money, the alleged root of all evil? Including murder? What about her reaction to May’s death — ‘At least she won’t get the money.’ Greed — one of the seven deadly sins. And greed didn’t presuppose poverty or exclude the wealthy. There had to be more.

*     *     *     *     *

It was rocking him. He was aware, sitting back now in his chair, that his stomach had tightened. He consciously unclenched his fists. He knew he was right, but wasn’t sure why. One thing was sure, as the killer she had acted plausibly, smartly — played on his male ego, let him think she was fixed on him in his role as her father’s avenger while May was a suspect. How better to keep him from suspecting her than to fabricate and build their own illicit relationship, to use his libido, as insurance? He was such a fool.

But Glitsky had looked into this. Celine had been in Santa Cruz, she couldn’t have been out on the
Eloise
.

Hardy thought he had read and reread each of the binders on his desk, but he hadn’t — Abe’s reports following up on alibis for Ken and Celine sat there within their tabs. He had listened to Abe telling him about the two weight lifters who lived with one of their mothers, about Celine spending the weekend remodeling their Victorian house. Now he read Abe’s synopsis of the telephone interview he had conducted.

The telephone rang on his desk and he grabbed at it.

‘Mr Hardy. This is Judge Chomorro.’

And I’m the Queen of Spain, Hardy thought.

But it was the judge’s voice, no mistake. What was he doing calling Hardy at home over the weekend during a trial? This being his first murder trial, Hardy wasn’t certain what to make of it — was a call from a judge to a defense attorney a relatively common practice or another example of Chomorro’s own inexperience? There was nothing to do but hear him out.

He said hello and listened while the judge told him that he had called to give him fair and decent warning that he had decided to deny Hardy’s 1118.1 motion, that the evidence was going to the jury for their verdict. Pullios had also been informed.

‘By the way,’ Chomorro said, ‘again in the interests of total fairness for the defense’ — or covering your ass in an appeal, Hardy thought — ‘I want you to be prepared for the prosecution to object to your argument on the investigation procedure leading to the indictment of Mr Fowler.’ He paused a moment. ‘And I am of a mind to sustain those objections.’

Hardy tried to get out an objection now. ‘I understand we’d covered that in pretrial, Your Honor.’

‘Well, I’ve given it a lot of thought since then, especially since yesterday, going over your eleven-eighteen, and I fail to see any direct relevance to the evidence that’s been presented. Ms Pullios may have moved too quickly on Ms Shinn, but there was ample evidence to indict Mr Fowler in the first place, and certainly enough for a jury to decide to convict. We’ll leave it up to them.’

‘Your Honor, you realize that was the main thrust of my defense.’

‘Frankly, that’s one of the reasons for this courtesy call. I wanted to give you some time to prepare. Talk to your client — he can tell you there was nothing technically improper about his indictment. A trial is supposed to weigh evidence. If you want to impugn the system, you’re of course free to appeal, as I presume you will if you lose.’

Hardy could imagine Drysdale or Locke or both of them having had a chat with Chomorro the previous night or this morning, reminding him ‘a trial is supposed to weigh evidence.’ Right out of the textbook.

Here was the reason for Chomorro’s unorthodox call. He’d talked to somebody and been told that his ruling on the law regarding Hardy’s defense would — perhaps —provide grounds for a prosecutorial appeal. No, Chomorro wasn’t going to screw up his first murder trial. It was a straightforward procedure. Evidence was presented and the jury decided. That was how he was going to play it.

*     *     *     *     *

No way he felt he could ask Glitsky. It was a fishing expedition, and Hardy knew it, and Abe had his own work to do. He wouldn’t run off on what he’d consider a hunch of Hardy’s to double-check his own work. Hardy couldn’t blame him.

*     *     *     *     *

Frannie called at six-thirty, an half hour late. He hadn’t noticed and swore at himself. ‘How are you? he asked. ’How’s the Beck?‘

Her voice seemed small and far away. He told her he was still working and she said that she’d known that. Erin, Rebecca’s grandmother, had invited her to stay for dinner, maybe even overnight if the rain didn’t let up. He’d be at it until the wee hours anyway. She didn’t think he’d mind. Did he?

He didn’t mind, he said. How could he? This had been his doing and he was going to have to fix it.

He told her he loved her, would miss her but understood. He was getting to the end of it.

*     *     *     *     *