The Hearing (40 page)

“She sleeps in the living room?”

Glitsky gestured simply. It was a small place, homey, crowded with furniture. “Only until we finish the guest wing.”

She grimaced. “I’m sorry, Abe. I didn’t mean . . .”

He touched her arm softly. “It’s okay. Anyway, the boys are out someplace. They made me swear on my mother’s honor that I wouldn’t budge. I was to sit and read my book, then go to bed, preferably early.”

“Which you haven’t done.”

“I know,” he said. “It’s bad of me. That authority thing again. It’s lucky I’m a boss. When I have a job, I mean.”

A long moment. “So how’s your book? The high seas. Good as Hornblower?”

“I think so. It’s amazing how deeply he makes you feel it all.”

He was staring at her. She looked back at him. The silence settled.

Glitsky cleared his throat. “Hardy says I should just ask.”

“What?”

“I should just say something, like I never did with Elaine.” He hesitated. “I can’t have anything like that happen with you.”

She waited.

“If you don’t want to hear . . .” He took a breath, nearly choked out the words. “I don’t know what to do with this, but I need to have you in my life.”

Closing her eyes, she nodded. A sigh of what might have been relief. Then she looked at him again, and a smile played at the corners of her mouth. “I was hoping that was it,” she said.

Then they were in each other’s arms. Under his sweater, beneath the burns where they had shocked him back alive, his ribs ached with the pressure.

A
t 8:00
A.M.
on Wednesday, February 17, Dismas Hardy stood at the head of the huge oval table in the Solarium and looked with satisfaction at his assembled team of investigators and associates. Three weeks ago, no one could have predicted this assemblage. Certainly, on the day of Cole’s arraignment only two weeks ago, several people in the room would have counted themselves among Hardy’s opponents. At that time, only he and David Freeman had been in Cole’s corner, and even they were reluctant at best.

Now he still had Freeman, who would continue on as Keenan counsel if the death penalty case did in fact get to full trial, which Hardy desperately hoped it would not. But there was also Treya and Abe, the Three Musketeers, Jeff Elliot in his wheelchair. The team had also acquired another defense attorney, who simply wanted to be part of it. This was David’s friend Gina Roake, who seemed to have her own slightly unarticulated bone to pick with Torrey and perhaps Dash Logan. The case had touched a lot of nerves in this room and around the city, and now they were within hours of the opening gavel.

The hearing was beginning with a high enough profile, and would have kept it because of Elaine’s notoriety alone. Pratt’s political posturing, which had led to Elliot’s much-criticized reprimand and highly applauded resignation, had raised the stakes. But the events of the last two days had brought things to a fever pitch.

On Monday morning, Inspector Sergeant Ridley Banks, the primary officer in the case, the man whose interrogation of Cole Burgess had led to his confession, was declared a missing person. Authorities suspected foul play, but no body had turned up—Ridley was still missing. As the last person known to have spoken to Banks, Hardy came forward with the information that the inspector had told him he was going on an interview related to both Cole Burgess and Cullen Alsop.

At this news, Gabe Torrey effectively withdrew the olive branch he’d extended to Hardy on the McNeil matter by calling a press conference covered by every print and television journalist in the city and publicly accusing him of lying. There was no proof of this alleged phone call. This was one of the sleaziest defense tricks he’d ever seen. Hardy was stooping to new depths, obviously trying to use a missing, perhaps dead, man’s voice to imply that the police had doubts about the man who’d confessed to the crime. There were no such doubts.

At the same time, Torrey chose to ratchet things up significantly by floating his own reason why the former chief of homicide had prematurely delivered prosecution evidence to the defense—and lost his job for his efforts. It wasn’t really because he had any doubts about the guilt of Cole Burgess. No, Glitsky’s defection and the subsequent betrayal of his fellow officers was merely a self-serving effort to avoid prosecution for police brutality himself. Torrey had several witnesses who would testify that the lieutenant had illegally manhandled the defendant on the night of his arrest.

In the meanwhile, the sidebars and other human interest stories kept up the heat. As promised, John Strout declared the death of Cullen Alsop an accident/suicide. An overdose on the day of an inmate’s release was nowhere near unknown in the city. The police crime scene investigation unit found no evidence that supported any other finding.

And all the while, the seriousness of the crime itself leant a gravity to the case. This was murder in the commission of a robbery, a capital case. The headlines had screamed it anew just yesterday morning; the anchors chimed it throughout the day. The D.A., as she’d promised, was going to ask for death.

Now, surveying the scene in front of him, Hardy felt that they had worked like galley slaves for the past week and done all they could. They were not unprepared, but he remained a long way from confident. The probable cause standard of proof in a preliminary hearing, after all, was nowhere near the reasonable doubt standard of a jury trial. All the prosecution had to do was demonstrate enough to bring a “strong suspicion to a reasonable mind” that a crime had been committed and that the defendant had committed it.

During all the time in the past week that he’d spent organizing the efforts of the rest of the people in this room, he’d been unable to completely shake the fear that his strategy—bringing out all his guns at the prelim rather than saving them for the trial—was misguided. What, he kept asking himself, was the hurry?

And indeed, one of the clichés lawyers spouted to their clients about why it was always better to delay—“look, if we put this off long enough, you never know, the cop who arrested you might die and won’t be able to testify against you”—had already come to pass. If Hardy waited longer, maybe Torrey would die, Pratt would be voted out of office, someone else with a guilty conscience or a slight case of schizophrenia could come forward and admit to the crime. Anything could happen.

But he was committed now, and finally satisfied that his decision was the right one. Jury trials brought with them their own insecurities, and they were of a subtly different nature. With a panel of citizens in front of you, the proceeding inevitably became slightly less intellectually rigorous. This was not to say that both sides didn’t need to cover their factual bases, but a human element always came into play, and thus there was an opportunity to play to emotion, to feelings.

A jury of twelve was going to hear a horrific litany of Cole’s uncontested actions that night—ripping off the earrings, breaking Elaine’s finger to get the ring, and so on. They would know that he’d fled from the police. He’d fired the gun—perhaps once, possibly twice. They would likely witness the videotape of the confession despite Hardy’s motion. After all that, try as he might, and no matter how brilliant a defense he was able to mount, Hardy could not believe that any jury would acquit. It could simply never happen in the real world.

So in a true sense, the prelim was Hardy’s best chance. Judge Hill was a crotchety old fart, sure enough, but he was careful and conservative. Perhaps the judge’s brain was not one that ascended to the exalted heights of “decent legal mind” as Hardy’s own apparently did, but the Cadaver had a reputation for intelligence nevertheless. He was also an experienced jurist. He would be fair-minded, although after Hardy’s intemperate outburst at the arraignment, there might be a hump to get over at the outset. Ironically, though, Hardy thought it even possible that the judge would cut him more slack in the courtroom precisely
because
he was angry with him—he wouldn’t want it to seem that his personal pique affected his judgments.

In fact, he would have to give Hardy tremendous latitude. A preliminary judge would admit evidence that a trial judge would exclude as confusing or irrelevant or too time-consuming. In the name of making “a complete record,” Hardy could ask Judge Hill for almost anything and the court would at least hear it before, inevitably, holding his client over for trial. Indeed, Hardy was virtually compelled to advance every single fact and theory in support of his client, no matter how tenuous. He wasn’t going to open himself up to an appeal based on incompetent counsel that the Ninth Circuit would uphold in ten years.

The burden of proof was on the prosecution to show, affirmatively, that Cole Burgess had “probably” committed the murder. Hardy’s team had uncovered some alternatives with motives and perhaps means and opportunity that he might be able to argue with a straight face. The police hadn’t investigated thoroughly enough. Too many questions remained unanswered. There were too many other possible suspects. The waters were too mud-died by politics and self-interest.

Yet Hardy knew that, even so, the judge was going to hold Cole to answer. Using the “reasonable man” standard, even if Hill might be persuaded that a trial jury might not in good conscience reach a verdict of guilty beyond a reasonable doubt, he would still order Cole to stand trial. These charges would never be dismissed.

Hardy more than halfway still believed that Cole had killed Elaine. If he himself were the judge in this hearing and knew everything he now knew, he would still have to say that Cole had “probably” done it.

The conclusion was all but foregone, but in a death penalty case, Hardy had nothing to lose. And this was the moment for the battle to be joined.

One of the surprising and wonderful things about San Francisco is that summer is not a real season in the normal meaning of the word. In any given year, there were perhaps sixty days that would classify as belonging to summer by virtue of general balminess, but these would almost never occur consecutively. Four days doth not a season make.

But the necessary corollary to the lack of seasonal continuity was the fact that a random summer day or two could occur at almost any time, willy-nilly, during any month. This morning, as Hardy mounted the steps outside the Hall of Justice, it was such a day.

The smell of roasting coffee hung in the air and he stood a moment outside in the unnaturally warm sun. A small shift in the soft breeze brought an overlay of sweet decay—the city’s wholesale flower mart around the corner, he realized. A news truck pulled up and double-parked across the street. The cars behind it honked their displeasure, then pulled around in a near unanimous flow of obscenities. Hardy lingered, knowing that once he passed inside these doors, all of this, the vibrant life of the city, would cease to exist.

He had given some last-minute instructions to David Freeman, then had driven on down alone before the rest of his “team.” He wanted to have a few minutes with Cole before the circus began. To reassure him. To settle himself.

Then he was passing through the metal detectors and on his way across the lobby. At this time of the morning, there was no one else around. Here on the opposite wall were the names of policemen who’d given their lives in the line of duty, and he stopped a moment, wondering if Ridley Banks was going to be there before long. He ascended to the second floor by the internal stairs rather than the elevator.

It wasn’t usual, but Hardy had asked for and been given permission to “dress out” his client for the hearing. To that end, Jody Burgess had gone shopping and bought Cole several pairs of slacks, some nice shirts, a couple of sports coats. In the holding cell behind Department 20, he was wearing one of the new outfits now, and Hardy was again—continually—surprised at how well the boy cleaned up. From a tactical standpoint, this was to the good, of course, although it would have meant even more if they were in front of a jury. Still, Hardy believed that there was value in a presentable appearance in the courtroom, even at a hearing. The orange inmate jumpsuits were all too familiar in the Hall of Justice, and all too associated with guilt.

A bailiff admitted Hardy behind the bars of the holding cell and lawyer and client got through the amenities. Cole’s eyes were clear now, his skin didn’t exactly glow, but it looked healthy. And though he would never be mistaken for Demosthenes, his speech had continued to improve as well—the slur was all but gone, the rambling quality to his earlier answers a thing of the past.

To all outward appearances, Cole was an earnest young man of adequate means and a decent education. If anything, Hardy thought, he projected an ingenuous naïveté, a sincere human innocence. He was sorry for everything that had happened. He was getting himself back on track. He’d do everything he could to help.

“I don’t really know if there’s anything more you can do right now, Cole,” Hardy told him. “Just don’t change your story from now on. That would be the best thing. Beyond that, try to react appropriately to what you hear in there, and some of it’s going to be awful, I warn you. But don’t overreact. And don’t act.” Hardy put a hand on his shoulder. “How are the push-ups coming along?”

“Twenty-five.” A trace of pride. “Four times a day. Thirty sit-ups, too. Four sets.”

“And the pills?”

This wasn’t as happy a topic, but Cole kept his head up. “Getting there, slow but steady, though that’s not exactly been my style.”

“Styles come and go,” Hardy said. “Check out your clothes. A couple of weeks ago they weren’t your style either. Now you look like you were born in them.”

“That’s outside,” Cole said. “Inside’s another thing.”

“So what’s inside?” Hardy asked.

A look of quiet desperation. “The feeling that I’m not going to beat it. It’s just got too good a grip. And that’s not just a style.”

“You’re right,” Hardy said. “That’s not a style. It’s a choice.” He flashed him the hard grin and squeezed Cole’s shoulder. “You know what Patton said, don’t you? ‘You’re not beaten until you admit it. Hence, don’t.’ ”

Hardy saw it in Cole’s eyes—the remark had hit home. He indicated the courtroom through the adjoining door. Noises had begun to leak through as the time for the session drew nearer. He gave the boy a last pat on the shoulder. “Keep your chin up, Cole. See you out there.”

He had to walk around Torrey at the prosecution table, and this time there was no repartee. The chief assistant was talking to one of his own acolytes, a young woman, and pointedly ignored Hardy as he crossed the courtroom in front of him.