The Hearing

18

Hardy had no memory of his last meal. He was leaving the hospital when a stab of light-head hit him so hard he had to stop and sit quickly on a convenient low wall just outside the main doors. For an instant, it crossed his mind that he might be having his own heart attack, until he realized that there was no pain or pressure. Just a gaping hollowness somewhere in his center.

He tried to remember the last time he'd eaten – he thought it must have been breakfast yesterday morning, but he couldn't recall if he'd even been home. He just didn't remember anything except he drank some Scotch last night. Then, this morning, McNeil had woken him up with his urgent business, and Hardy had run out before coffee.

It was now nearly ten o'clock in the morning. The day loomed full before him. He knew he had to go see Cole at some point, though his inclination was to wait until after he'd had his business meeting with his mother. There was also McNeil's proposed settlement, and that meant another six or eight calls before Dash Logan, probably drunk at Jupiter, found it in his best interest to return one of them – the thought of it curdled his stomach.

It was growling at him now.

Which brought him back full circle. He had to get some food.

Frannie Hardy had majored in urban planning at USF, but work in her field was scarce. After she graduated, she had rent to pay, so her first jobs had been a couple of entry-level clerical positions. These did not bring her any great sense of personal fulfillment. Within two years, she was married and pregnant with Rebecca.

The direction her life had taken had determined her 'career' for the past decade or so. The kids were growing, and so was a void within her. But the concept of urban planning had lost whatever thrill it once had held for her. She saw things on a smaller scale now, a more personal one – individual relationships, marriages, parents and children. She wanted to work doing some kind of counseling. She was filling out applications for graduate school at the dining room table when she heard the front door opening. 'Hello?' She came up out of her chair.

'Yo.' Her husband's voice. 'It's only me, Maynard.' He came into view, shrugging out of his raincoat.

'Maynard?'

'Maynard G. Krebbs. Surely you remember Maynard G. Krebbs?'

'With all that junk in your brain, how do you ever remember anything important? But why are you home?' Then, remembering, her breath caught. 'Oh, God, Abe-'

'He's doing OK so far, they think.'

'So far? They think?'

'I know. Real strong.' He shrugged. 'More tests today and tomorrow. He's cranky as ever. I'm taking that as a good sign. His dad was there, the boys are coming in today.' Hardy was moving toward the kitchen. 'As for me, my wife hasn't been feeding me. I've been driven to forage on my own.'

Following him in, she clucked understandingly. 'She must be awful.'

He nodded. 'Pretty bad.'

He pulled his cast-iron pan off the marlin hook from which it hung on the wall behind the stove. He sprinkled salt into it, a grind of pepper.

In the refrigerator, he discovered vegetables – peppers, potatoes, green beans, an onion – and laid them on the cutting board along with three eggs. Cutting now, he asked her how the application process was going, and she said it wasn't too bad. She was doing one of her admission essays on Abe and Elaine.

Hardy stopped chopping. 'What?'

'Not using names, of course.'

'No, OK, but what about them?'

'Abe knowing he was her father, but not telling her for all this time. Why he'd want to do that.'

'I don't think he wanted to, Fran. Knowing Abe, he probably felt duty bound not to tell her.'

'And look at the toll it took.'

'It didn't make his heart stop, Fran.'

'Maybe not, but on top of everything else. I thought it was pretty interesting, just the idea.' She paused. 'That he never even told us, and we're his best friends.'

Hardy was back to cutting. 'People have secrets. Elaine had her own life. She didn't need him.'

'Don't kid yourself. Kids needs their fathers.' Frannie folded her arms and leaned back against the counter. 'I find it sad that he didn't ever get to know her, that he chose that. For whatever reason.'

Hardy dumped vegetables into the pan. 'I think he'd agree with you. I think that's half the reason he keeps looking for more evidence. So he'll have an excuse to get to know her.'

'In spite of the confession?'

Hardy cracked the eggs directly into the pan and stirred with a slotted spoon. 'The confession was bad, that's all. They've got enough evidence to convict Cole without it. Abe just needs to keep looking.'

She waited, then asked, 'So what do you need?'

'What do you mean?'

'I mean why are you defending him? If he killed Elaine…'

He stirred his omelette and considered for a moment. 'I guess because no matter what, this shouldn't be a death penalty case. I'm trying to keep that from happening, that's all.'

'Even if he did it?'

'Even if he did it. It won't make it harder to get him off. It won't make it easier. It doesn't matter.'

'It doesn't matter? God, I hate it when you sound so much like a lawyer.'

'I do, too,' Hardy admitted ruefully. 'But the sad truth is, that's what I am.'

And now the lawyer was trying to get around to doing something else he detested – talking about fees. Jody Burgess was sitting with him on his office couch. He didn't like to put his clients across his desk from him. It put a psychic distance between them that felt awkward.

But Jody was filled with optimism, fueled by good news. She wasn't ready to discuss the cost of the trial and Hardy's representation. Like Prannie, like so much of the rest of the lay world, Jody seemed obsessed with the fact of Cole's guilt or innocence. According to her, he'd recovered a repressed memory that morning, one that contained the absolute and final new version of the truth of the events of early Monday morning.

To Hardy, this simply meant that Cole was changing his story again. First he did it, then he didn't remember doing it, now he didn't do it at all. Who knows? he thought. Next he might remember that he'd actually been by her side trying to save Elaine's life.

Hardy thought he preferred Door Number Two, where Cole didn't remember either way whether or not he'd done it. That answer comported most closely with the facts of some kind of unconsciousness defense, which in turn seemed the most likely to succeed. Thinking this, he realized with something between pride and a pang that he must have been hanging around David Freeman too much. He was really beginning to think like a lawyer.

It was a cold afternoon outside, the fog having lifted to a low cloud cover, but his office was warm. Jody, though, still wore her heavy coat. She was drinking hot coffee. Hardy almost started sweating just looking at her.

Finally, he broached the fee issue, since he had an idea that really was reasonable, given what they had to work with. And it was certainly the least expensive way to proceed, since it would end things fairly quickly. 'Where I thought we'd go,' he was speaking carefully because, low cost notwithstanding, this was not going to bear even a slight resemblance to good news, 'was get the charge lessened in exchange for a guilty plea.' He pressed ahead quickly. 'That way the DA gets to count it as a conviction, we get out of the death penalty arena before we even have to argue the special circumstances.' He spread his palms. 'Everybody wins.'

For a second, he thought she might not have understood. 'A plea bargain?' she said. 'But he didn't kill her at all.'

'Well, he's really not too sure about that.'

'But this morning… he really remembered. I saw it in his eyes, this great relief.'

'I'm sure you did.'

She put down her coffee cup with a clatter. 'You don't believe me.'

Hardy told her he believed her completely. 'But I don't know whether a jury would, and that's the problem.'

Jody sat with it for a while. Eventually she went back to her coffee. 'Let's just say we don't make a deal, just for discussion's sake. What then?'

'Then we have a hearing next week, during which Mr Torrey will show the tape of the confession, and that should be enough to convince the judge that there's sufficient evidence to go forward with the trial.'

'But won't you argue that the confession-'

'Was coerced? Of course. Beyond that, I'll argue that Cole's words contradict the facts as we know them. But in the real world out there, in the courtroom, neither of those things will make any difference.'

'Why not?'

Jody didn't like to hear this, but if anything, Hardy was sugar-coating. He had to get her to understand the gravity of Cole's situation. 'Because a preliminary hearing isn't about whether Cole is guilty or not guilty. It's only to determine whether or not there's a case. Then it goes to trial.'

She was still having trouble accepting it. 'This is so unreal,' she said. After another minute, she shook her head in frustration and finally sat back on the couch with almost an air of collapse.

Hardy waited until her reaction had run its course, then decided it might be useful to agree with her. 'It does feel like that, I know.' He couldn't leave it at that, though. He had to instruct her. 'But it is real, believe me, and the decisions we make right now are going to matter later, so we ought to make sure they're the right ones.'

She rose up, challenging, her voice shaking. 'And you think the right one is saying he did it, when he didn't?'

'You know for sure that he didn't? You are a hundred per cent certain?'

She didn't even have to think about it. 'Absolutely. He's not a murderer.'

Hardy nodded, not at the validity of the point, but in acknowledgment of what had to come next if he was going to continue with his representation of her son. If he was going to get anywhere here with her today, he would have to break through her resistance, her blindness. It was time for hardball. 'Mrs Burgess, has Cole ever lied to you?'

The question surprised her. 'This is nothing like-'

He held up a finger, stopping her. 'It's a simple question. Has he ever told you a lie?'

She found herself unable to answer.

'Many lies? More lies than you can remember? Has he ever stolen anything from you? I know he lied to Jeff and Dorothy when they put him up. He stole from them. He stole from their children, Mrs Burgess. Did they tell you anything about this?'

She'd come forward to the first couple of inches of the couch. She crossed her arms low over her stomach. As though the questions were hitting her there. 'Well, OK, but-'

'Do you know anyone that your son hasn't lied to in the past several years? Or stolen from? Do you think he's trying to get off heroin right now?'

'Yes, yes at least that.' He could see she thought he was throwing her a rope. 'He said he thought he might get in a program-'

'Has he done that? Has he done anything in that direction other than talk about it? Do you think he was trying to kick the habit before all this happened?'

'I do. He'd been back to the halfway house, I know that was pretty recently. He was really trying. It's really hard, you know. It's not that easy.' She was leaning over into her arms now, as though her stomach was cramping.

'I appreciate that,' he said. 'It's hard enough when you're really, really trying, when you're in a program and working with counseling. Was Cole in one of those, I mean outside?'

'No, but he couldn't find the right mix somehow. You know, some of those counselors don't-'

'It's the counselors' fault he couldn't quit? Is that right? And when he came and stayed with you, and then stole your car, for example. You punished him for that, didn't you? You let him know he'd done something really wrong.'

'Yes. Yes I did.' She was almost pleading with him now, her eyes becoming glassy with unshed tears. 'I did tell him how disappointed I was, Mr Hardy. That I loved him and how much it hurt me. It did hurt me.'

Hardy hated to continue, but his only hope to work with her demanded that she recognize the reality they were facing. 'And he said he was sorry-'

She fired it back at him. 'He was sorry. He just… he was…'

'And so, because he was sorry, you let him come back and stay with you again, right?'

'What was I supposed to do, Mr Hardy? I'm his mother. Let him sleep on the streets?'

'Other parents have,' he said simply. 'It's been known to happen.'

'Well, I couldn't. He was trying.' She took a deep breath. 'He was trying.' The staggered breaths kept coming as though she'd been running.

He wanted to ask if she thought Cole had been trying Monday morning when he stole the other bum's whiskey and went off wandering downtown, trying to find his 'g'. But that would just be more talking, more arguing. He had a different idea, one that he suddenly knew would be far more effective.

His discovery documents were on the desk at his elbow, and he lifted a labeled manila folder, extracting from it what he needed – one of the coroner close-ups of Elaine Wager's ear. He crossed back to Jody and laid the perfectly-focused, full-color eight-by-ten on the table in front of her. 'Look at her ear, Mrs Burgess,' he ordered harshly. 'Where Cole ripped her earring out. He also broke her finger getting her ring off, Mrs Burgess. Was he trying then? Was that trying? Was that your good boy?'

'You're horrible!' she screamed. 'He didn't-'

'Yes he did, Mrs Burgess!' he snapped back, his own voice raised. 'He sure as hell did.' Hardy turned abruptly, calming himself, and when he felt he could speak, he did. 'It's horrible, all right,' he said softly, 'but it's not me.'

He was breathing hard himself now, half expecting that the next sound he heard would be the door opening and closing behind him. Instead, he heard nothing, and eventually he turned.

She was doubled over, her whole body shaking. He came around the table and sat closely next to her. He put an arm around her shoulder.

It didn't seem to help.

Afterwards, the office seemed a little constricted, and they went downstairs to the building's unique conference room. The residents had nicknamed it the Solarium because when there was afternoon sun, which happened frequently, though not today, this room miraculously caught some of it. Enormous potted plants thrived under its greenhouse windows and glass roof. It opened onto a small enclosed garden that in the summer bloomed with impatiens and pansies, vinca and lobelia, and that today featured dirt, a bench and a hundred square feet of brown lawn.

Hardy brought his discovery documents down with them. Jody had recovered somewhat after first breaking down completely. She'd wanted to see all of the photos, then to scan the police reports, so Hardy put his folders in front of her and sat on her right.

In the garden area outside, he watched some sparrows flit about, picking in the lawn.

After about ten minutes, she closed the last folder. Hardy waited another moment or two, then spoke conversationally. 'That's the person Torrey wants the jury to see. If he succeeds, Cole is in trouble. I need you to understand that.'

'These pictures, what these policemen wrote. It looks like…' She swallowed her own words, couldn't continue.

'Yes it does. And even if we argue that he just came upon her after she was dead, the theft of the jewelry doesn't exactly cast him in the most sympathetic light.'

'And you're pretty sure he took the jewelry? That he did that?'

He was loath to punish Jody any more, but this he couldn't deny. 'All of it was on his person when they brought him in. The best you could say is that he knew she was already dead while he was robbing her. He wasn't hurting her.'

She dabbed at her eyes. 'That's not much of a best.'

'No, it's not.' Whether he'd been excessively cruel or not, Hardy now at least had her where she might be receptive to what he had to say. 'This is why I'm talking about a guilty plea. Once we get to trial, if we do, this case will be hard to win on its merits in front of a jury. Do you understand what I'm saying?'

She nodded miserably.

'That's why I thought it would be worthwhile to explore some legal solutions short of trial.'

'Where you admit he did it?'

'Where he pleads guilty, yes, which is not exactly the same thing.'

'In return for what?'

'I would hope for no death penalty, to begin with. Then a possible parole someday.'

'Oh God, prison.' She looked at him sharply. 'What do you mean, you hope?'

'I mean it wouldn't stun me to have Torrey turn us down.' He explained that the DA's office was already taking a lot of flak for pleading out important cases. Sharron Pratt had already hand-picked this one, hitching her political fortunes to it. Getting her to agree to a plea wasn't going to be a slam dunk by any means. And the bad news wasn't over yet. 'Even if we go to trial and convince a jury that the murder was a lesser offence, which is about the best we can expect, we're going to wind up about where we are today – in jail, going to prison for a very long time.'

Jody's face told Hardy that this was the first day of her season in hell. Her eyes were shot with red, heavy-lidded and swollen. Her skin had taken on a mottled look. She barely dared phrase the question. 'But what if they do find him not guilty? What if you convince them?'

'Then he goes free.' He reached over and touched her hand. 'But Jody, so we have no misunderstanding, I have to tell you I'm not inclined to try to do that.'

Earlier in the afternoon, she might have regarded that announcement with horror. Now she closed her eyes for a moment, took in a deep breath, gathering her strength. 'Why not?'

'Because here's that story: Cole, a heroin addict, is walking around drunk and maybe stoned early on a Monday morning. He's carrying a gun-'

'But he isn't. He said that wasn't true.'

Hardy acknowledged that, but so what? 'The jury will have heard he was carrying the gun. He's looking for someone to rob so that he'll have money for his drug habit, and he happens upon Elaine Wager. When the police arrive like two minutes later, Elaine is dead and Cole is stripping her body of jewelry. He runs. He's fired the gun. A few hours later, he confesses to killing her.'

Hardy softened his voice nearly to a whisper. 'The jury is going to hear all that, Jody. There is physical evidence to back it all up. I'm not even saying here that I think he did it. This isn't me. This is the jury. If I go in front of them and just say, "No, all of that's true except it wasn't Cole who killed her," you know what's going to happen? They'll convict him of everything. And then when we argue that they should spare his life, our credibility will be shot.'

She looked at him, knowing he was right.

He had to go on. 'I can do that if that's what we all decide. We can try to get Cole straight and put him on the stand all dressed and cleaned up and he can deny it, deny Cullen gave him the gun, tell the whole truth. But if I let him do that, I'm not giving him his best defense.'

'Even if it's true? That he didn't kill her?'

'Yes, even if he didn't kill her. Even if he was just the unluckiest man alive on Monday morning. He has no alibi. There's precious little, if any, evidence in his favor.' Hardy knew it sounded hopeless. What was worse, the more he talked about it, the more he was coming to believe that it was hopeless. He tried to explain it a last time. 'Jody, I want to tell the truth to the jury, and I believe the truth is that whether or not Cole killed Elaine, he wasn't in his right mind as the law defines the term. He was unconscious. He shouldn't be executed.'

'And that's what I should be praying for? That my son won't be executed?'

Hardy nodded somberly. He looked out at the sparrows again, still pecking for crumbs in the dead winter lawn. 'It might be a good place to start.'