The Hearing (41 page)

At the defense table, Freeman had arranged some folders and a couple of yellow legal pads in preparation for the first shots. On the other side of the bar rail, the gallery was filled to overflowing, and the crowd buzzed expectantly. Missing, though, was the almost palpable sense of anger and polarity that had marked the arraignment. Hardy attributed this partly to the passage of time, but mostly to David Freeman and Clarence Jackman, who between them had somehow gotten the word out to the various interested communities that this was not a racial crime, nor necessarily as clear a case as it had first appeared.

Hardy hadn’t even made it over to Freeman when a bailiff intercepted him. “Mr. Hardy, the judge would like a word with you.”

“Right now?”

“Yes, sir. This way, please.”

Hardy was truly stunned. This was a peremptory summons and couldn’t possibly bode well. In a capital case such as this one, every meeting between the judge and any of the attorneys had to be on the record, with a court reporter present. Hardy hesitated. Freeman, from the defense table, looked up with concern and started to come around, but Hardy held him back with a hand. “Will Mr. Torrey be joining us?”

“I don’t know, sir. The judge asked for you.”

There was nothing to do but follow him—back behind the bench, down the hallway in front of Cole’s holding cell, where his client sat dejectedly, elbows on his knees, head down. The bailiff knocked once and did not wait for an answer, but pushed open the door to Judge Hill’s chambers. A firm hand on Hardy’s back all but pushed him inside.

The Cadaver sat in an upholstered armchair reading the
Chronicle
. There was another chair next to him, but Hill rather pointedly did not ask Hardy to sit. Instead, the bailiff informed his honor that Mr. Hardy was here, and the judge nodded, finished his article in a leisurely fashion, then finally closed the newspaper. Out of his judicial robes, Hill appeared far more formidable than he did on the bench—any notion of caricature was displaced here. In his tailored suit, impeccably groomed, he could have been an ancient titan of business. The ascetic and angular face, which when perched over his robes suggested a disembodied skull on the bench, here was very much alive. The pale blue eyes seemed to float in little pools of malice. Tiny capillaries coursed the parchment skin of his cheeks. His mouth was a harsh line.

He took another minute before he spoke, and when he did, his voice had a rehearsed quality, although the delivery itself was dry, uninflected. He did not address Hardy by name but, looking up with a challenging dismissive-ness, simply began. “I’ve called you in here before this proceeding begins because I want to tell you something personally, outside of the context of this hearing.”

Hardy noticed that the court reporter was indeed taking this down.

“Yes, your honor.”

“Please don’t say another word. This is a one-way communication. I wanted to make it explicitly clear to you that any outburst such as your display at the arraignment on this matter won’t be tolerated in my courtroom. Any such outburst will get you fined, and if it’s serious enough I’ll put you in jail for contempt. If you think I’m kidding, we can find out real quick. I have not invited the prosecutor here since I did not think it necessary to admonish you in front of him. This is the very last latitude I will give you.”

“Yes, sir,” Hardy said.

Hill nodded, an expectation confirmed. “Here’s a word about precision, Mr. Hardy. I told you not to speak to me again and you just did. Further, I don’t know how long you’ve been practicing law, but a judge is ‘your honor,’ not ‘sir.’ I’ll see you in the courtroom.”

Hardy, his blood running hot, started to say “Yes, your honor” but caught himself in time. The bailiff nudged him out of his shock, and he turned and left the judge’s chambers.

“You look like you just saw a ghost,” Freeman said. Hardy’s legs would not hold him as he got to the

defense table, so he sank into his chair and reached for the beaded pitcher to pour himself a glass of water. His hands were shaking in a palsy of rage.

Freeman reached over and covered one of Hardy’s hands with his own gnarled one. “Diz?” With his other hand, he poured a glassful and slid it over. “Talk to me. What happened?”

Still unable to speak, Hardy’s breath was ragged and came in deep through his nose. A muscle worked in his jaw. His eyes rested on a fixed point somewhere in front of him. Eventually, he saw the glass of water and drew it nearer, but did not pick it up.

“Hear ye, hear ye! The Superior Court, state of California, in and for the county of San Francisco, is now in session, Judge Timothy Hill presiding. All rise.”

Pratt had come in and joined Torrey and his young assistant at the prosecution table. Hardy glanced across at her—an elegant, statuesque carriage in a dark blue business suit—and thought he detected an almost gloating confidence. For an instant he wondered if she’d fixed things with Hill somehow, put the bug in his ear to reprimand him so humiliatingly. No more than ten minutes had passed since he’d reentered the courtroom, and he still felt physically sick with spent adrenaline. And certainly he felt totally inadequate to muster any kind of rational argument.

In normal circumstances, he might have called for an immediate recess citing the call of nature, but here he knew he didn’t dare. His relationship with the judge was bad enough already. If Hardy did anything to antagonize Hill any further, he risked being charged with contempt, and any hope of making headway would be dashed before he’d begun.

Watching the Cadaver take the bench, he wondered anew about his benighted, misguided strategy, marveling at how badly he’d misjudged the situation: reasoning that Hill’s anger would be a “little hump” to get over in the first minutes. Now it loomed as an impenetrable, unscalable escarpment. And he had based all on this “reasonable man,” this fair-minded jurist. Now where would be all the judicial leeway he’d expected on so many critical issues? What were the odds of even getting past the videotape of the confession?

But there was nothing to be done at this point. They were here, committed.

At his side, Cole nudged him and whispered, “Patton.” His client was obviously reading his thoughts, which meant that he was telegraphing them. A bad sign to go with his bad feeling, but the advice was well taken. He forced himself to summon some of the general’s fortitude or control, to direct his anger and despair into something constructive.

Hill got himself settled, rearranging his robes. He greeted his clerk with a familiar if stilted geniality, then asked him to call the case. Hardy listened with half an ear as the Cadaver arranged some paper in front of him, swept his eyes around his courtroom. When they got to Hardy, there was not the slightest sign of animus—no momentary squint or pursing of his lips. It was as though their exchange had never taken place. And then the clerk had finished and the judge was talking. “Mr. Hardy, Mr. Freeman. Good morning. Ms. Pratt, Mr. Torrey. Are the People ready to proceed?”

Torrey stood up. “We are, your honor, but if it please the court, sidebar?”

Hill frowned deeply, shook his head in apparent disgust, and sighed. “All right,” he said at last. He motioned with one hand. “Counsel will approach.”

Hardy’s legs held him as he stood—a blessing. He and Torrey got to the bench at the same time and looked up at the judge, who was still scowling. “What is it, Mr. Torrey?”

“Your honor, with all respect, you just had a private meeting with Mr. Hardy.”

Hill’s face held a terrible blandness. He waited and waited a little more. “Was that a question?”

“Yes, your honor.”

“I’m afraid I didn’t hear one. Maybe you could try again.”

Torrey, aware that he’d already committed a tactical error, cleared his throat. “Well, your honor, as you know, in a capital case such as this one, all communication between the parties has to be on the record.”

“You don’t say, counselor.” Hill was breathing fire, a controlled burn. “As a matter of fact, I was aware of that.” Another wait. “I’m still waiting for a question.”

Hardy suddenly became aware of unrest in the gallery behind him. Hill looked out, then back down to Hardy and Torrey. As he’d shown at the arraignment, this judge seemed comfortable allowing some limited reaction among the spectators. In Hardy’s experience, this was unique. At very little volume, the low, white-noise hum added a kind of subliminal tension to the tone in the room. He wondered if Hill had some reason for allowing it.

Torrey finally found his question. “Very well, your honor. The People would like to inquire. What was the purpose of your meeting with defense counsel?”

“It was a personal issue, Mr. Torrey. This case had not yet been called. We did not discuss it in any manner.” Hill shifted his eyes. “Is that completely accurate, Mr. Hardy?”

“Yes, your honor.”

The judge wanted unassailable clarity on this point. “Mr. Hardy, did you say even one word about this case in my chambers?”

“No, your honor.”

“Did I?”

Again, Hardy said that he did not.

“Does this satisfy you, Mr. Torrey?”

The prosecutor swallowed, clearly feeling that if he could get out of this without any further damage, it would be a victory. “Perfectly, your honor.”

Hill nodded brusquely. “Then if you’d be so good as to call your first witness.”

Another of the many ways that a preliminary hearing differed from a trial was that there were no opening statements from either side. The prosecution simply began by calling witnesses (whom the defense could cross-examine) and introducing evidence, as they would at trial. When the D.A. was finished, the defense could then present its own witnesses and evidence.

Torrey took his chastised self back to the prosecution table. Hardy returned to his chair, thinking that at least the judge was equally intolerant of both sides. All things considered, this was terrific news.

Earlier in the week, Freeman had bet two hundred dollars that he could predict every witness in the order that Torrey would call them throughout the day, and—perhaps foolishly, given it was David—Hardy had taken the bet. Now the old man leaned across Cole and whispered, “Strout.”

Two seconds later, Torrey stood on the other side of the room. “The people call John Strout.”

The coroner rose from one of the wooden theater seats on the prosecution side of the room and made his long-boned way up the now frankly talkative center aisle, through the bar rail, to the witness chair. Strout appeared as a witness in a courtroom no less than once a fortnight, and as he took the oath, he projected his usual relaxed confidence.

As Torrey stood to begin his questioning, Hill lifted his gavel and touched it down lightly. The decibel level dropped a few points, Torrey greeted Strout, and the hearing had begun.

“Dr. Strout, for the benefit of the court, can you tell us briefly your occupation, as well as the training and experience that qualify you for that position?” Strout quickly qualified as an expert and gave the preliminary information about the case. In about ten questions, Torrey got to the point. “Doctor, what killed Elaine Wager?”

Strout leaned back in the witness chair and crossed his legs. “She was shot once in the back of the head at point-blank range with a .25 caliber bullet. Death was instantaneous.”

“And the manner of death?”

“Death at the hands of another—homicide.”

As Hardy listened to the uncontested testimony, his spirits continued in their downward spiral. The prosecution, after all, only had to prove two things and it was already halfway there in less than five minutes. But, he thought with relief, that’s over now. Homicide has been established. The second half, as Yogi Berra would say, was ninety percent of it. But if he thought that things couldn’t get more depressing from here, he was mistaken.

Torrey: “Now, you carefully examined the deceased body in your forensics laboratory, did you not?”

“I did a compete autopsy, yes sir.”

“And during this autopsy, did you discover any other injuries to the body?”

“I did.”

“Would you please describe them for the court?”

Strout, in his element, turned slightly and spoke directly to the judge, describing in homespun terms the gash on Elaine’s neck, the broken ring finger, the damage to her earlobes where the pierced earrings had been pulled out. By the time he’d finished the short recitation, the susurrus in the gallery had ceased. Torrey introduced the eight-by-ten color photographs of Elaine that documented all of this testimony and Judge Hill spent several minutes examining them minutely, leaving Strout on the stand while he did so.