A Plague of Secrets

19

There were Superior Court judges Hardy liked a lot, and a very few that he’d prefer to avoid if at all possible, but only one he actively despised, and that was Marian Braun.

The history between the two of them was so extreme that it included a contempt violation and actual jail time for Hardy’s wife. He honestly believed that he might prevail on appeal, should it come to that, if he argued that Braun should have recused herself when she discovered that Hardy was going to be defending a murder suspect in her courtroom. Of course, the flip side of that was that if Hardy was worried about the impossibility of getting a fair trial from Braun, he could have exercised his 170.6.

That section of the California Code said that any lawyer assigned to trial could excuse one, but only one, judge, without giving any specific reason. The lawyer was sworn and simply declared under oath that he believed the judge to whom he’d been assigned was prejudiced against himself or the interests of his client to the point he thought he couldn’t get a fair trial.

That was it-no hearing, no evidence. The declaration itself caused the judge to be removed forever from the case. And challenges were reported to the judicial council. Obviously, a judge with too many challenges acquired the unfavorable attention of that supervisory body.

But the move had its price.

First, the courts hated challenges. They not only dinged one of their colleagues, however deservedly, but screwed up the scheduling for everyone else, because another judge had to take the case, and someone had to take their cases, and so on. And even if the judges personally despised the object of the challenge, they despised more the hubris of a mere lawyer who dared to suggest that one of their own tribe might not be fair.

So if Hardy exercised a challenge, he would likely immediately find himself in the courtroom of the most antidefense judge that the presiding judge could find available, and that judge would have an additional motive to make Hardy’s life as miserable as he or she possibly could. Hardy knew he challenged at his peril.

So Hardy elected to roll the dice with Braun. Call him superstitious or crazy-he’d also pulled Braun for his last murder trial, nearly four years before. She hadn’t liked him any better then, nor he her. And that trial had never been given over to the jury because a key prosecution witness had changed his testimony at the eleventh hour. Nevertheless, Hardy’s client had walked out a free woman, Braun or no Braun. He’d already proven that he could win in her courtroom, and if he could do it once, he could pull it off again.

Now, as he sat in Department 25 on the third floor of the Hall of Justice, waiting for his client’s appearance in the courtroom, Hardy found himself marveling anew at the thought that they were about to begin a full-blown murder trial. He felt vaguely responsible and not-so-vaguely incompetent that things had come to this point. Surely a better lawyer could have closed the case after the PX-the preliminary hearing-which they’d had a little over four months ago, within two weeks of Maya’s arrest.

At the end of that fiasco, Maya had been held to answer. In Superior Court he’d filed the pro forma 995, which called for the dismissal of the two first-degree murder charges against Maya on the grounds that the prosecution had failed to present even probable cause to suggest she’d committed these crimes.

Hardy had even permitted himself a flicker of optimism. There might have been technically enough evidence to justify a trial, but surely the court had to see the same weaknesses in the evidence that he himself saw. That was why Hardy had demanded, as Maya had a right to do, that the prelim take place within ten court days of her arrest. He had felt that on the evidence, he might win, and in any event, the case wasn’t going to get any better for the defense. But now, here he was in Braun’s court.

He’d been wrong.

The other, political, reason that he’d pressed for the speedy PX was that Maya’s arrest had set off a news frenzy in the city that Hardy thought could only get worse over time, and in this he was right. The secret grand jury investigation that Jerry Glass was conducting on the U.S.-attorney front, along with the public threats of forfeiture of the properties of one of the town’s major development and political families, had by now neatly dovetailed into a narrative that had captured the public’s imagination, as Hardy had suspected it would.

Knowing that the body politic of San Francisco in general, and probable members of jury pools specifically, tended to have little sympathy and lots of hostility and envy for the two aligned, and-in the public eye, generally malignant-classes of developers and politicians, Hardy had wanted to hurry up with a jury trial before every single person in San Francisco had been so exposed to innuendo, insinuation, and the venom of the press that they had all long since made up their minds. Juries didn’t always return verdicts based on the facts; sometimes they voted their prejudices. So, given the dearth of evidence for the actual murders, he’d believed back in October that a quick defense was his best chance to free his client and cut short the debate about the kinds of people the Townshends and other developers and power brokers must be.

And now, in late February, here they were, with Braun presiding, about to begin exactly what he’d strategized and labored to avoid and yet called down upon himself. He had demanded a speedy trial, and now he was going to get it.

Even moving as quickly as he could, he couldn’t avoid the collateral damage that continued to wreak its havoc on the extended Fisk/ Townshend/West families-Harlen’s, Maya’s, and the mayor, Kathy West’s. It appeared that the U.S. attorney’s power to subpoena-particularly financial records-in capable hands like those of Jerry Glass could be a blunt weapon indeed.

By the time the preliminary hearing had begun, Glass had barely had time to look into the Bay Beans West bookkeeping, much less Joel Townshend’s wider business affairs, and how, if at all, they might relate to one another. But since the marijuana connection with Dylan Vogler was intimately connected with BBW, and this was needed by the State to establish a purported motive for Maya to have killed him, Glass and his conduit Debra Schiff had obviously been supplying the prosecution with whatever they could in terms of questionable financial dealings between the coffee shop and the Townshend household.

This hadn’t hurt anyone too badly during the preliminary hearing-although the money laundering possibility had apparently been part of the court’s decision that a jury should weigh the evidence and reach its own conclusions in Maya’s case-but over the past months, and especially in the past couple of weeks, Glass’s investigators and accountants had finally unearthed what appeared to be a treasure trove of sophisticated financial relationships and arrangements that now appeared to implicate Townshend, Harlen, Kathy West, and some other large players in at the very least questionable, if not to say unethical or illegal, conduct.

Potential kickbacks, preferential treatment, undocumented meetings about matters of public interest in violation of the city’s Sunshine Ordinance.

Very little, if any, of this had been proven yet, except that Glass had succeeded in crippling BBW, and the government was preliminarily close to attaching the entire building as the probable proceeds from a drug operation, although the place itself was still open day to day. Because Maya had a Fifth Amendment right not to answer any questions in the forfeiture proceeding while her criminal case was pending, any final decision was on hold for now, but the questions alone raised a spectre of criminality over Maya and everything she touched.

The BBW accounts were incredibly sloppy. As just one example, Maya had cut Vogler a check from her own personal checking account for $6,000 for emergency repairs from water damage in July and another personal check for a half month’s pay, $3,750, last March. There was no record he had ever given her back the money. There was at least $30,000 worth of checks from Vogler to Maya over the past two years with no explanation at all in their records. The only question seemed to be what precise illegality was being funded by the operation.

Maya told Hardy she’d been busy with the kids’ school and on vacation and hadn’t been able to make it into the store to sign the business checks, but she’d also neglected to reimburse herself from the company account during the many visits when she’d had a chance to do so. She had no idea what the checks from Vogler to her represented. She had left it to Vogler to keep the books. In the current climate this explanation was widely discredited.

The victory for Glass and the accompanying widely perceived truth that the Townshends were in fact in the drug business had then in turn played a huge role in people’s perception of the Townshends, and public opinion shifted away from presumption of innocence. Suddenly, if you did business with Joel Townshend, or Harlen Fisk, or Kathy West-in fact, if you did business with the city-you were going to get cheated. That’s just the way “these people” did things.

Just this morning Hardy had read the Chronicle’s editorial and letters page, and it was fully one-third choked with vitriol-Supervisor Fisk and the mayor should quit or, failing that, they should be impeached. The drumbeat was picking up; even in Hardy’s office it was water-fountain talk.

And though none of this had anything to do with Maya’s guilt for the crimes of murder of which she was accused, Hardy knew that it was going to have a lot to do with Paul, aka Paulie, aka “The Big Ugly,” Stier-the assistant DA who’d pulled the case-and how he played the evidence. From an untutored perspective the entire courtroom drama could unfold as a large multi-tentacled conspiracy fueled by drugs and moral turpitude in high places.

Hardy glanced over at his opponent.

Despite his flamboyant nicknames Stier was in his mid-thirties, earnest, and, from Hardy’s dealings with him so far, possessed of little personality or sense of humor. The nicknames remained worrisome, though.

It was a truism in the courtroom that what you didn’t know would hurt you, and Hardy hadn’t been able to pick up much in the way of gossip or dirt on The Big Ugly, which probably meant he kept his personality-and his possible clever moves and dirty tricks-well hidden until he needed them, when they could inflict the most damage. Of course, it was also possible that the nicknames were sarcastic-that Stier was what he appeared to be, a hard-charging, fair-minded, good-looking working attorney. Certainly, he didn’t look dangerous now, leaning back over the bar rail chatting amicably with Jerry Glass. They were simply two clean-cut, hardworking, self-righteous, ambitious guys doing the people’s hard work-one for the country’s government, and one for the state’s.

Hardy felt a twist in his stomach.

There, also, in the front row, was Debra Schiff, who, Hardy knew, had started to see Glass socially, if not intimately. Leaning around further, Hardy briefly caught the eye of Darrel Bracco, who gave him a quick ambiguous look and then looked away-clearly all along Bracco had not been as gung-ho as Schiff about Maya’s guilt and the wisdom of her arrest, but in the maelstrom that had developed, his doubts, if any, had surely been laid to rest. Still, though, to Dismas the look somehow felt heartening.

Or maybe it was pity.

At a signal from the bailiff Hardy got up and walked through the door at the back of the courtroom leading to the corridor and the judge’s chambers. There, out of the sight of the jury, the bailiff took off Maya’s handcuffs, and Hardy entered with his client, followed by the bailiff, and they took their places at counsel’s table.

In what Hardy thought was a show of judicial nastiness if not downright personal affront to him, Braun had considered denying Maya the privilege of “dressing out,” or wearing normal street clothes when she appeared in the courtroom. For the duration of the trial, she opined, his client would sit next to Hardy at his table in her yellow jumpsuit.

Hardy, insane with rage, had had to file a fifteen-page brief before he could convince Braun that a variety of federal and state cases held squarely that his client had an absolute right to appear in front of the jury in civilian clothes. Dressed as a convict, she would present to the jury an image that was at odds with that of a citizen who was presumed innocent. She must be already guilty of something, went the not-so-subtle psychology of it. She wouldn’t be in jail, wearing that outfit, brought into the courtroom in handcuffs, if she hadn’t done anything at all, if she weren’t a danger to the community. Braun’s position was ridiculous and had been repudiated by courts for a good fifty years. Even so, she had conceded this absolutely undebatable point grudgingly and with bad grace.

The gallery noise behind them abated slightly. Maya gave Hardy a lost look and then scanned around behind her, nodding at her husband in the first row on “her” side of the gallery, or maybe it was that she was relieved not to see her children, who had been living with Fisk’s family all the while she’d been incarcerated.

The whole thing was awful, Hardy thought. Simply awful.

And what made it worse, all but intolerable from his perspective, was that in spite of the lack of evidence he’d finally come to lose almost all of his belief that she was not actually guilty of both murders.

Certainly, he knew, she had done something she was unwilling, under pain of life in prison, to reveal.

Also, while her family and her outside world appeared to be imploding around her, as the weeks had passed, she seemed to have grown more and more acquiescent, and less concerned with her defense, as though she deserved whatever happened to her. She still professed a desire to be found innocent, but mostly because she thought the children needed her. She didn’t want them to have to live with the fact that their mother was in jail, convicted of murder. For herself, though, it didn’t seem that critical an issue.

Hardy stood and pulled out her chair as all the parties rose while another bailiff brought in the jury from their room farther back along the same corridor Hardy and Maya had just used to enter the courtroom. When all the jurors were seated, she sat and Hardy pushed her forward until she was comfortably up at the table. As he’d coached her, she cast a look over to the newly empaneled jury and nodded a few times, making as much eye contact as seemed natural.

It was, from his perspective, a decent jury. Nine men and three women. Five whites, four African-Americans, three Asians. All between forty and seventy, and Hardy guessed from various nuances that seven or eight of them had at least tried marijuana. Nine of them held full-time jobs. Two of the men and one woman were retired and had been moderately successful in business. Hardy was surprised that Stier hadn’t peremptorily dismissed any of these, but maybe he hadn’t factored the antidevelopment prejudice adequately into his jury-selection strategy.

Although sometimes, Hardy knew, you just got lucky.

The way things had been going, though, Hardy didn’t think that was it in this case.

But before Hardy had a chance to sit again, behind them the gallery energy shifted, and both Hardy and Maya turned around to see what had caused it.

“Well, look at this,” Hardy said, a small grin toying with the sides of his mouth as Kathy West, the mayor of San Francisco herself, came walking down the center aisle toward them, accompanied by her nephew Harlen Fisk and a small procession of both of their staff members. Beyond them flowed a steady stream of reporters, courtroom groupies, and the simply curious, such that by the time Kathy and Harlen got up to the front row and began moving in beside Joel, the gallery was standing room only and the buzz in the room was constant and formidable.

The bailiff, obviously at a loss as to what he should do, especially after Kathy West shook his hand, allowed the mayor to further ignore the rules and reach across the bar rail to shake hands with both Hardy and her niece, while Harlen pulled Hardy a little closer and whispered, “This is Kathy’s spur of the moment inspiration. Maybe put our friend Stier over there a bit off his feed for his opening statement.”

“Couldn’t hurt,” Hardy said. The grandstanding, coming as it did after weeks of inactivity and silence from Maya’s extended family, was in fact far from unwelcome. A smile creased Hardy’s features and he glanced over in time to catch Stier, Glass, and Schiff in what were to him sweet expressions of disbelief and shock.

But the energy had no time to gather momentum as the door by the judge’s bench opened and the bailiff up there at the far end of the room intoned, “All rise. Department Twenty-five of the Superior Court of California is now in session, Judge Marian Braun presiding.”

And Braun swept in and up to her chair behind the bench, glanced out at the crowd, then glared as she became aware of her visitors. After a second’s hesitation she lifted and slammed her gavel and said, “Attorneys, my chambers, immediately!”

The judge, in her black robe, was standing waiting for both of them as they came in. She didn’t even ask the court recorder, Ann Baxter-sitting on the couch with her magic machine-if she was ready to take down every word that was said, as was required in a murder trial, before she started in. “Mr. Hardy. Because of our long history together, I thought I’d made clear that there wouldn’t be any show-boating in or around my courtroom. And now I come in here on the first actual day of trial and who do I see out in the first row but the mayor and one of our city supervisors, and if you think-”

“Your Honor,” Hardy said.

But she raised a hand. “I’m not finished talking yet, and I don’t want you interrupting me. Ever. Here or in the courtroom. Clear?”

It was unprofessional and might even be counterproductive in the short run for his client, but if Braun was going to insult him and act like a tyrant whose malice toward him might provide grounds for an eventual appeal, Hardy was going to be happy to help her along. So, knowing that decorum demanded that he respond aloud to her-otherwise the court recorder couldn’t put his answer in the record-he nodded with an exaggerated solemnity.

And waited.

It didn’t take Braun long. Her eyes went nearly shut as she squinted across at him. “I asked you a question, Mr. Hardy. I asked if it was clear that you were not to interrupt me.”

“Yes, Your Honor. Of course. I’m sorry. I wasn’t sure you’d finished and I didn’t want to interrupt.” Straight-faced.

She pointed a finger at him, schoolmarmish, her voice a hoarse and controlled rasp. “I’d like to know what you mean to accomplish by having the mayor and Supervisor Fisk sitting out there. This is exactly the kind of circus environment that I’ve cautioned you that I want to avoid, and here it is before we’ve even begun.”

Hardy stood at attention.

“Well? Are you going to answer me? Or not?”

Hardy canted his head slightly, leaning forward. “I’m sorry, Your Honor. I didn’t hear a question and didn’t know you required a response.”

“What are they doing out there?”

“I don’t know, Your Honor. Intending to take in the trial, or at least part of it?”

“Why?”

“I don’t know. I wouldn’t care to hazard a supposition.”

“I don’t believe you. I sense your hand in their presence here.”

“Your Honor, you flatter me to assign me such influence, but I assure you that I have no control over the movements of the mayor. Or Mr. Fisk. Their appearance here is as much a surprise to me as it is to you.”

“They are sitting on your client’s side. You don’t think this is going to influence the jury, seeing them sitting rooting for her?”

“I don’t know about that and I can’t help how the jury will react. Ms. West and Mr. Fisk are both related to the defendant.” He turned. “As Mr. Stier and, I believe, you, well know.”

Again the finger. “Don’t you presume to tell me what I know or don’t know.”

“Of course not, Your Honor. But regardless of your knowledge or lack of it, it’s only natural that as Ms. Townshend’s relatives, they should sit on the defense side of the gallery.”

Braun turned her angry eyes to the prosecutor. “Mr. Stier? Do you have anything to add to this conversation?”

The clean-cut and quite possibly cutthroat attorney, who had come in the door behind Hardy and remained slightly behind him until now, stepped up beside him, cleared his throat, but remained silent.

“Your Honor, with respect,” Hardy began, “first and primarily, this is a public courtroom. Anyone has a right to be here. We fought a revolution about this sort of thing. Further, there is an argument to be made that their presence might be calculated to combat the pre-trial prejudice that the prosecution has been abetting throughout the lead-up to this trial.”

“What are you talking about?” Stier snapped.

Hardy kept himself at attention, eyes forward.

After a satisfying five seconds Braun finally came at him. “Did you hear Mr. Stier’s question, Mr. Hardy?”

“Of course, Your Honor.”

“Well?”

“I’m sorry. Well what, Your Honor?”

“I asked you if you’d heard Mr. Stier’s question.”

“Yes, of course, but you’ve instructed me many times to address my remarks only to the court. I’m trying to hone to the court’s protocol, Your Honor. As to Mr. Stier’s question, I’m certain he knows full well what I was talking about.”

“Would you care to enlighten the court what that is?”

“Certainly, Your Honor. It’s no secret that for the past several months Mr. Glass, the U.S. attorney here in San Francisco, has been prosecuting a campaign in the civil courts, in the media, and with a federal grand jury, trying to link my client and her husband to her brother and to the mayor and trying to implicate all the families in a money-laundering, dope-dealing, and racketeering conspiracy. That’s why I submitted all the questions for your voir dire about which of our prospective jurors follow the news closely. I had assumed you were aware of this, Your Honor.”

For an answer Braun turned to the prosecutor. “Mr. Stier?”

“Nonsense, Your Honor. It’s true that Jerry Glass has been following his own trail of malfeasance that appears to lead through some of these same individuals, including Mr. Hardy’s client, but to imply that we’ve colluded to prejudice-”

“Excuse me, Your Honor. I didn’t mean to imply any such thing. I meant to state it as established fact.”

Stier wheeled on Hardy. “That’s absurd.”

“To the contrary,” Hardy replied evenly, facing Braun. “It’s demonstrable, Your Honor. Debra Schiff, the homicide inspector who arrested my client, has been designated a special agent for Mr. Glass’s federal grand jury. Some would call that collusion.”

Braun glowered.

“But more to the point, Your Honor, Ms. West’s and Mr. Fisk’s right to be here, and my client’s right to have them here, is absolute. Of course, if you or Mr. Stier would like me to pass along a message to the mayor and a member of the Board of Supervisors that you want them to leave, I’d be happy to oblige. I’d actually be kind of interested to hear what they had to say to that.”

A longish pause. Then, “All right”-Braun bit off her words-“that’s quite enough. I won’t condone this type of bickering, either here or in my courtroom.” Hanging her head for a second, she shook it in disgust, then came back to the attorneys standing before her. “This situation infuriates me, but I don’t see any help for it. You gentlemen are excused. I’ll be out there again in just a minute.”

Word had evidently spread quickly, and by the time Hardy was back next to Maya at his table in the bullpen, there wasn’t a seat to be had in the gallery. A line stretched out through the door that led from the hallway into the courtroom, and Hardy was more than a little surprised to see Abe Glitsky standing in it, just inside the door, having come down to check out the show. He gave Hardy an infinitesimal nod.

Because they were scheduled to appear as witnesses and could not remain in the courtroom, Schiff and Bracco had both abandoned their earlier front-row seats in favor of a couple of reporters, who were among the number of people questioning both Harlen Fisk and Kathy West in what appeared to be a virtual impromptu press conference. Indeed, the gallery was fairly humming on all sides, so much so that the bailiff’s ringing call to order as Braun reentered the room and ascended to the bench went largely unheeded.

Hardy, up front, heard it and turned, but the noise behind him continued and, if anything, increased. Until Braun, standing, used her gavel, at first once, gently. And getting no response, then with a more imperious and forceful Bam! Bam! Bam!

“Order!” she called out. “Order in this court!”

Until gradually, finally, the place grew silent.

Braun waited until the last whisper had died, then put her gavel down and, still standing, leaned forward onto her hands, scowling down at the crowd. “This is a court of law,” she began, her voice strained with emotion. “There is no place in it for bedlam. I would ask those of you who have seats now to please take them, and for those of you standing along the sides, find a seat or I will be obliged to ask you to leave.”

After giving the gallery time to comply Braun finally took her seat. “Thank you. The court,” she went on, “recognizes Her Honor, the mayor of San Francisco, Kathy West, as well as City Supervisor Harlen Fisk, and welcomes them both to these proceedings.” In a convincing display of graciousness the judge nodded through a tight smile, then turned immediately to the prosecution table.

“Mr. Stier, are the People ready to begin their case?”

“Yes, Your Honor.”

“Mr. Hardy, the defense?”

“Ready, Your Honor.”

“All right, then. Mr. Stier, you may begin.”