The Ophelia Cut (50 page)

Hardy got to his feet. “I hope I can answer them to your satisfaction, Your Honor.”

“We’ll take your witnesses separately, beginning with Mr. Goodman. Without going into details of the specific areas of your speculation, you argue in general terms that Mr. Goodman had a motive to kill Mr. Jessup. Assuming even that your speculation is true in every detail, Mr. Hardy, and that Mr. Goodman’s motive was strong and compelling, do you have
any direct or circumstantial evidence you’d now like to introduce that ties Mr. Goodman to the actual perpetration of the crime against Mr. Jessup?”

“Not in so many words, Your Honor, but—”

Gomez held up a hand. “Not that it would be sufficient, either, but do you have any evidence of Mr. Goodman’s opportunity to have killed Mr. Jessup?”

“No, Your Honor.”

Gomez nodded, looked down in what seemed to be true disappointment, then came back at Hardy. “I am assuming that you read Mr. Stier’s motion, is that correct?”

“Of course, Your Honor.”

“Did you not note the sixteen separate cases he cited that rejected mere speculation as admissible without direct or circumstantial evidence linking the third person to the actual perpetration of the crime?”

Hardy took as a bad sign the judge’s repetition of the exact phrasing of the decision in
People
v.
Hall,
the controlling Supreme Court case. “I did, Your Honor.”

“And in what way, barring the introduction of such new evidence, did you hope to circumvent this well-established precedent?”

“I thought by the time we got here, Your Honor, that my investigator would have uncovered some evidence more strongly linking Mr. Goodman to the crime.”

“But your investigator has not done that?”

“No. But I had hoped to question Mr. Goodman more about his opportunity to have committed the crime.”

“Although you know that opportunity alone, even in the presence of motive, does not rise to the level of admissibility?”

“Yes, Your Honor. As I say, I had hoped to discover direct or circumstantial evidence.”

“By questioning Mr. Goodman on the stand? Hoping for a Perry Mason moment, were you? Am I to assume the same general answers about your reasons for listing Mr. Lo as a witness?”

Hardy could choose to brazen it out and debate each separate part of the discussion, but Gomez was making crystal-clear her unhappiness, even disgust, and if he wanted to stay alive to fight another battle—at
least two more of which were coming—he could not risk incurring any more of her wrath.

“I have no direct or circumstantial evidence linking Mr. Lo to the murder of Mr. Jessup, if that’s what you mean, Your Honor. And none to introduce.”

“That is exactly what I mean, Mr. Hardy. And given that”—she tapped her gavel—“I’m granting Mr. Stier’s motion to exclude the testimony of these witnesses.” She turned to the bailiff. “Call in Mr. Lo and Mr. Goodman. They will both be excused.”

T
HE JUDGE CALLED
another recess, and Gina, sleep-deprived and anxious nearly to the point of distraction, made her way up to the bar rail within seconds. Bushwhacked by the speed and decisiveness of Gomez’s ruling, she needed a few minutes of postmortem to put this devastating defeat into some kind of context. And then, having pretty much failed at that for the first ten minutes, she moved on to their next possibility, their next strategy. “Do we have evidence on Tony?” she asked Hardy. “Anything remotely serviceable?”

After reading Stier’s motion the past Friday night, they had from the start been skeptical of their success. Because of that, Hardy, Gina, and Amy had decided not to include any mention of Tony in their response on third-party culpability, which would only exclude him out of hand, as Gomez had done with the first two. When, in fact, there were significant differences about Tony’s situation.

This meant if they ultimately decided to go there, they’d have to duke it out in court without a written motion to prepare the judge and opposing counsel for their argument. “We’ve got new information,” he told Gina, “or at least information the court hasn’t heard—”

“But here comes the judge,” Gina said. “Put on your dancing shoes, Diz. You’re going to need ’em.”

“M
R.
H
ARDY,
” G
OMEZ
began, “are you prepared to call your witnesses? Should I call the jury back in here?”

Hardy rose to his feet. “Not quite yet, Your Honor. There is another third party whose behavior and personal situation—of which the
defense only recently became aware—meets the standard of admissibility, we believe.”

Stier wasn’t inclined to let this pass. He pushed his chair back and stood up. “Your Honor, the People strongly object. Counsel has filed no motion with respect to this latest individual, so the People will have had no time to prepare a response. Meanwhile, we have no facts, no offers of proof, nothing upon which to base admissibility.”

“Your Honor,” Hardy countered, “as I mentioned, we’ve only recently become aware of some of these facts, which I now intend to present to the court and which I believe the court will find compelling.”

Gomez didn’t like it one bit, but she didn’t want to give Hardy grounds for appeal because she hadn’t allowed him to present all of his evidence. “All right, your objection is noted, Mr. Stier, but the court is inclined to let defense counsel make its case and then make a ruling. Mr. Hardy, who is this latest third party?”

“He has already appeared before the court as a prosecution witness, Your Honor, and I have reserved the right to recall him. Tony Solaia.”

Gomez frowned in concentrated memory. “The gravamen of whose testimony, if I recall, contradicted the defendant’s daughter’s statement that she hadn’t told the defendant about her rape until after Mr. Jessup was dead. Do I remember that correctly?”

“Yes, Your Honor.”

“And why should I not include Mr. Solaia in my earlier ruling about the admissibility of third-party culpability?”

“Several reasons, Your Honor. First, unlike Mr. Goodman and Mr. Lo, who both had alibis for the period while the crime was being committed—and therefore could not have been the perpetrators of the crime—Mr. Solaia had no alibi. Second, he was romantically involved with Brittany McGuire, and she told him about the rape right after it happened, so his motive is every bit as persuasive as the defendant’s purported motive. Third, as the bartender at the Little Shamrock, he had access to the shillelagh, which the prosecution proposes as the murder weapon.”

“All this is well and good, Mr. Hardy, but I think I’ve already made it clear that you’ve got to get beyond the mere possibility that some third
party might have been involved in Mr. Jessup’s murder. Without a show of actual evidence . . .” She picked up her gavel.

“We do have information rising to the level of evidence, Your Honor, which the jury needs to hear.”

“And what is that information?”

Hardy paused only an instant before he plunged in. “Tony Solaia is not his real name. His real name is unknown to the defense. He is in the federal witness protection program, where he will be testifying against his former colleagues in a human trafficking ring in exchange for pardon of his own crimes, which include murder for hire.”

“Oh, for the love of . . .” Stier couldn’t restrain himself, slapping his hand down on the table and almost knocking over the chair in his haste to get up. “Your Honor, just when you think you’ve heard it all, Mr. Hardy’s imagination seems to know no bounds. How does he expect the court to believe any of this nonsense?”

Hardy shot back immediately. “What I think the court should find unbelievable, Your Honor, is that the prosecution flagrantly violated its constitutional duty to turn over this obviously exculpatory evidence about one of its key witnesses. This is a clear violation of my client’s fundamental right to a fair trial, and if Mr. Stier didn’t know about this, he absolutely should have.”

“Both of you, stop it. We’ve done this. Mr. Hardy, I’ve already told you, I’m not giving you a dismissal. You and your client have said that you don’t want a mistrial. Do you have any proof to put before this jury directly connecting Mr. Solaia, or whatever his name is, to the murder of Mr. Jessup?”

“Flight is clearly established in the law as a sign of consciousness of guilt, and it rises to the level of circumstantial evidence. And unusual as these events may appear, they are all true, and I can and will call witnesses to testify to their truth.”

Gomez was shaking her head in either frustration or wonder. “I admire your pluck, Mr. Hardy. I really do. And leaving aside the question of whether you could in fact produce a witness to corroborate any or all of it, I have heard nothing that links Mr. Solaia, or whatever his name is, to the actual perpetration of the crime.”

“Your Honor, the man is a paid assassin with motive and opportunity to have killed Mr. Jessup. The jury needs to know this information.”

Gomez nodded a few times, perhaps internally phrasing her response. “Mr. Hardy,” she said at last, “I’m sorry, but case law doesn’t agree with you. And neither do I. Your motion to include this line of testimony is denied.”

A
FTER LUNCH, WHERE
he couldn’t force himself to swallow a bite of Lou’s Special, whatever it had been, Hardy was down to his last round of ammunition. He was fighting the unassailable feeling that it would turn out to be a blank.

He had San Francisco’s chief of police on the stand. Stern, formidable, humorless, and articulate, Vi Lapeer cut an imposing figure of authority and rectitude. She sat back in the witness chair, one leg crossed over another, arms on the chair rests, relaxed and comfortable.

Battered by the morning’s results, Hardy nonetheless had to summon some feeling of confidence that Lapeer’s involvement in the case had weakened it for the prosecution. But if it was weak, then why was he so worried? On the other hand, if the evidence convicted Moses, was it his intention to criticize Lapeer and her inspectors for gathering it as quickly, legally, and thoroughly as they could?

As he approached his place in front of the witness box, all of these doubts—legitimate questions about what he was trying to accomplish with this witness—came tumbling down around him. He thought it had been clear enough in the run-up to this moment, but now suddenly the clarity with which he’d viewed his entire strategy seemed to have become muddied.

Worse, any talk of a conspiracy to obstruct justice between Goodman and Lapeer might inadvertently lead to a similar accusation against him and Glitsky. It might lead to a discussion about their collaboration, their long-standing friendship, past cases in which they had both been involved. Hardy knew that certain rumors, even after all this time, had underground currency in some parts of the legal community. It was for this reason that Hardy, working on his interrogation of Lapeer, had decided not to call Abe as a witness after all.

Once people started pointing fingers, it could get ugly.

And now these were the waters he was about to wade into with Lapeer, right after his every idea had been shot down, just when he felt that the tide of his energy was at dead low.

But there was nothing for it. He was here. He had to begin.

“Chief Lapeer,” Hardy began, “are you directly involved in the running of the Homicide detail?”

“Not usually, no.”

“But in this case, you did take a hands-on role, is that correct?”

“Yes, it is.”

“Could you tell the court briefly how that came about?”

Lapeer, ostensibly only too happy to oblige, said, “Certainly. I got a telephone call one afternoon from Supervisor Goodman, who was the employer of the victim in this case, Rick Jessup. He was concerned that the investigation wasn’t producing any results, and he supplied me with the information that the defendant here, Mr. McGuire, had come to their offices a couple of months before and had beaten up Mr. Jessup. This seemed relevant to the investigation, so I brought it to the attention of the then head of Homicide, Lieutenant Glitsky, who brought in the two inspectors working the case, Sher and Brady, and passed it along to them.”

“Did Sher and Brady already have the information that you gave them?”

“Yes. Essentially. They had identified the defendant as a possible suspect.”

“They were actively working the case, is that right?”

“To all appearances, yes.”

“They had put together six-packs of photographs to use in eyewitness identification, had they not?”

“Yes.”

“With Mr. McGuire’s picture as one of the six?”

Lapeer nodded. “That’s how we do it.”

From behind him, Hardy heard Stier’s chair creak and the familiar “Objection. Relevance of this line of questioning?”

“What is your point, Mr. Hardy?” Gomez asked.

“The point, Your Honor, is that because of the actions of Chief Lapeer, all of the eyewitness identifications in this case are fatally tainted.”

“All right. The objection is overruled. You can try to make your point, but be careful.”

“Yes, Your Honor, thank you.”

Buying himself some time, Hardy walked back to his table and pretended
to read from his legal pad. He shot a quick look at his client’s face, at Amy Wu’s waiting for him expectantly, and in that instant he couldn’t shake the feeling that it was all falling apart. Coming back to his spot in front of the witness, he started again.

“Chief, you’ve testified that you got involved in this case because of a telephone call from Supervisor Goodman. Did he tell you why he was interested enough to call the chief of police?”

“I presumed it was because the victim worked for him and he wanted to make sure that the investigation was moving forward.”

“Could he have called Inspectors Brady and Sher with the same information?”

“Yes, I presume so.”

“And yet he chose to bypass them and come directly to you?”

“Apparently.”

“In the aftermath of that phone call, you went to Homicide to convey the information, did you not?”

“I did.”

“Did you specifically discuss the defendant, Moses McGuire?”

“Yes.”

“After Mr. Goodman put pressure on you to show some tangible results, didn’t you urge the inspectors to proceed by investigating Mr. McGuire as the prime suspect?”