The Hearing

19

Gene Visser was whistling the children's song 'It's a Small World' through a toothpick as he exited the elevator into the basement of the Hall of Justice. He was accompanied by his friend and employer Dash Logan and a sergeant of narcotics named Bills Keene, whose father had been a fanatic follower of football from Buffalo. As a child, Bills had been a tough enough kid to grow into the name. He still rooted for Buffalo's team, which last night had killed the 49ers on Monday Night Football.

'I'm telling you, Dash, it was the best night of my life. Here I am, giving ten points, and I had half the department lining up to give me their money.'

Visser stopped whistling. 'You were giving ten on the Bills? Next time, call me.'

Keene looked over happily. 'I'll put you on the list, or you can direct deposit into my account, either way.'

'So how'd you make out?' Dash asked.

They were moving into the reception area just off the records room/evidence locker. The time was a little after three o'clock in the afternoon, and they were the only people downstairs except for the officers assigned to evidence security.

'Eight hundred forty dollars.'

Logan whistled, impressed. 'I hope you're declaring it.'

'Every penny.' Keene was grinning broadly, having a fine old time on an otherwise slow workday. The cop behind the window came up and greeted them. 'Including the twenty of Officer McDougal here. Hey, Gary. How 'bout them Bills, huh?'

McDougal had his wallet out and handed Keene a twenty over the sign-in counter. 'Want to go double or nothing next week?'

'We're talking my own Buffalo Bills, right?'

McDougal was appalled. 'Get real. We're talking the Niners. Who cares about the Bills?'

Logan was enjoying the exchange as well. He appeared to have a bit of a runny nose and from time to time would sniff delicately. 'Am I mistaken,' Logan asked, 'or is gambling still frowned upon in this state?'

'Absolutely,' McDougal replied with a smile.

'It's a scourge,' Keene added. 'But you know, the mafia.'

Everybody enjoyed the moment of the manly camaraderie. 'So what brings you gentlemen down here today?'

Down to business, Logan gave a small sigh and put his briefcase up on the counter. 'I'm going to trial on People v. Lawson next Monday.' He gave McDougal the case number. 'It's Inspector Keene's case here. I thought I ought to look at what the DA had actually collected before I tried to save my client's poor ass.'

McDougal shook his head in mock disbelief. 'I don't know how you do it.'

Logan looked at him questioningly. 'What?'

'Keep your clients if you don't even look at the evidence until a week before trial. Don't they get a little pissed off?'

A blustery laugh, followed by a sniffle. 'What? I tell them? Come on, get a life.' But then he back-pedaled a bit. 'I generally know what's supposed to be there. It usually is. If it isn't, I make a motion to dismiss.' He shrugged. 'It's worked out.'

Visser added his two cents. 'His real talent is making it look like he's not working. The man works all the time.'

Logan made a gracious gesture toward his private eye. 'An unsolicited testimonial from an unbiased source. Thank you, Eugene.' Sniff.

He turned to Keene. 'So, Sergeant, shall we go?'

McDougal buzzed the door for them and Logan and Keene went inside to sign the book. Visser, at the reception window, leaned in and asked how long they would be.

Logan shrugged, looked a question at Keene who did the same. 'I don't know. Fifteen, twenty? Hey, Gary, you mind letting Gene in, sit his ample posterior on a chair? We might be a minute.'

McDougal frowned at the request. He wasn't supposed to let in anyone who wasn't accompanied by a police officer, and they had to sign in to a specific case. But he wasn't supposed to gamble either, especially here on police premises. And these were pretty good guys – he knew them all. Visser had even been a homicide cop when McDougal had first come up. There was a chair he could sit in right next to his own – it wasn't as though Visser was here in the evidence lock-up to rip something off. He'd never be out of McDougal's sight. He spoke up to Keene. 'You want to sign him in on your ticket?'

From out at the window, Visser said it wasn't any big deal, he could stand.

But Keene said sure, buzz him on in.

'So what'd you guys do to pull this assignment?'

Visser was seated next to Gary McDougal in the sign-in area, making conversation with him and another young cop – the name tag read 'Bellew' – from the gun room next door. He knew that being stuck down here in the basement as records and evidence room custodian was not exactly a sought-after position among the uniforms. It wasn't quite an official, on-the-books reprimand, but neither did anybody ever mistake it for a reward.

McDougal made a face, shook his head with disgust. 'We ate a couple of donuts we didn't pay for.' The men all exchanged glances. 'I know,' McDougal continued. 'You don't have to say it.'

But Bellew felt like he did. 'It was some bullshit OMC sting to fight police corruption in the big city.' The OMC was the Office of Management and Control – formerly called Internal Affairs, the department that policed the police.

'You being an ex-cop,' McDougal said, 'you'll be amazed to hear that sometimes it's hard for us street guys to pay for coffee, snacks, like that. Seems like people we're out guarding their stores, they feel grateful sometimes. They make us a sandwich, pour us a cup, forget to ring it up.'

'I'm shocked to hear it,' Visser said. 'That's almost as bad as gambling.'

The officers both chuckled. From over by the entrance to the gun room, Bellew took it up. 'Yeah. So anyway, OMC gets a bug up their ass that guys are abusing their public trust. Taking a goddamn sandwich. So they put a couple of their guys behind counters and one son of a bitch gives us both donuts…'

McDougal: 'Which – get this – I offer to pay for. And he says, "No, that's OK, don't worry about it.'"

'And they bust you guys for that?'

Bellew answered. 'They hit maybe twenty of us in one day, said we ought to take it as a wake-up call. Yada yada.'

'But they sent you down here?'

'Six weeks, no overtime.'

Visser took in the immediate surroundings – institutional clutter ruled here in the sign-in area. The walls were lined with green metal shelves to the ceiling. Stained and rusted metal tables sagged with the weight of cardboard boxes filled with junk that had lost its case number – confiscated cell phones, batteries, radios, bicycle tires, tools. From his time in the police department, he knew that the rest of the place was an enormous cavern, nearly a city block on a side, a home to the records and evidence in every crime committed in the city and county over the past ten years.

There were miles of case files. There was a freezer for blood, soiled clothes, the occasional body part. There was an entire room for bicycles, another for computers. A locked walk-in safe for narcotics. And the gun room, adjoining the sign-in.

'And how much time have you already put in?' he asked.

'Four weeks. Two to go, but who's counting?' McDougal stood as a homicide inspector – Marcel Lanier – appeared at the window with a yellow folder bulging with stuff. When the two men had been talking a minute, Visser leaned over the table and interrupted.

'Marcel, how you doin'?' Lanier stopped his paperwork, nodded with a question in his face, and Visser answered it. 'I'm just waiting for Dash Logan, doing some babysitting. How's the murder biz?'

'A little shaky at the moment. Glitsky had a heart attack. You hear that?'

Visser chatted about that for another minute or so, establishing still further with McDougal and Bellew that he was really in the club – buds with Keene, friendly with Lanier in homicide, familiar with Glitsky, a sympathetic guy about their beef with the OMC.

At the counter, they went back to logging in Lanier's evidence. Visser, already standing, turned to Bellew. 'That box full of pieces still here?' he asked.

'It never goes away,' Bellew answered.

'You mind if I look at it?' He turned back for a minute. 'Gary?' He pointed. 'Guns? OK?'

McDougal waved him in. 'Sure.'

Non-issue.

Like the sign-in area, the gun room was floor-to-ceiling shelves and files, packed with yellow storage envelopes identified by case numbers in black permanent marker, and each of which held a gun. Four or five hundred file drawers, with a minimum of, say, forty handguns in each one. Several of the file drawers gaped open, possibly – Visser thought – because they were too stuffed with hardware to allow closing.

On the wall behind Bellew's station, rifles and assault weapons threatened to flow over onto the floor. Another large box of rifles sat open on Bellew's table. Below the table, a wooden crate was open on the floor, half filled with assorted confiscated handguns – unloaded, of course, but fully operational, unassigned to any specific case. The police found them in the streets, in hedges, garbage cans, dumpsters and dope houses where all the occupants had fled out the back. They were destined to become manhole covers, and good riddance.

The 'piece box' had been in the same place under the table here in the evidence lock-up – albeit with a continuously changing assortment of guns – at least since Visser had started with the force twenty-some years before. And probably for a long time before that. When a gun came in, they put the serial number into 'the book', a set of records going back almost seventy-five years. And on the last day of the month, every gun was logged into the computer, dumped into a crusher and destroyed.

Now, on February 9, Visser estimated that the crate held about forty handguns – everything from little.22 or.25 caliber derringers to Uzi-style repeating pistols, from tape-handled Saturday Night Specials to shining new Glock.38s. Visser knew that by the end of this month, every month, the weapons would be spilling over the top of the crate, clattering onto the tiles. Guns guns guns.

Bellew was delighted with the company – anything to break up his enforced boredom. He and Visser were a couple of kids in a candy store. Picking up one piece, then another, clicking off a bunch of non-rounds, checking actions, dropping the cylinders out of the revolvers, the clips from the automatics. Telling the occasional story behind one of them.

Time was flying they were having so much fun. Then, suddenly, McDougal was at the table with them, delivering the message that Logan and Keene were signing out.

'Eugene!' Logan's voice, calling in. 'Let's roll it out of here.' McDougal, next to Visser, picked up a random revolver from the table, spun the cylinder, pointed it at the 'Safety First' poster on the wall and pulled the trigger, smiling as it clicked.

'Fun stuff, isn't it?' he said.

'I almost feel bad about it.' Visser was fastening the seat belt in Logan's Z3. 'I keep telling myself it just can't be this easy every time.'

The lawyer looked over at him. 'Hey, Eugene, please. The cops let you go. Remember that? You weren't good enough for them.'

'I know, but still. Metal detectors at the doors to the Hall so you can't get a gun in, except you can stroll right out, armed to the teeth. I mean, who's thinking here?'

Dash Logan nearly fish-tailed getting into traffic out of the parking lot. It wasn't convertible weather by a long shot, and he had the top on. His nasal attack appeared to have kicked in again, and he was in high spirits. 'Here's a little well-kept secret, Eugene. You can stroll right in, too.'

'How do you do that?'

No signal, and Dash changed lanes, accelerating to fifty. He passed two cars, ran a red light, swung back into his original lane. He pinched his nose with his thumb and forefinger, sniffed back. 'How do you think all those guns in the lock-up get inside the Hall?'

'They're evidence. I've brought a bunch in myself in my time.'

'Right. And what defines evidence?' Dash let him work it out.

It didn't take him long. 'An evidence tag.'

'Correct. A little piece of paper that says evidence on it. You want to bring a bazooka inside the Hall, you put a tag on it, walk right around the metal detector, tell the guard to have a nice day. If we weren't the good guys, I'd say it really wasn't fair. Whoa!' Suddenly, he braked hard and pulled into a spot at the curb. 'Jupiter already.' He flashed a grin at his passenger. 'No wonder they call me Dash.'

Gabe Torrey hung up and immediately started to punch in the numbers for Sharron's direct line, but decided this was important enough to warrant a visit. In half a minute, he was in the anteroom outside her office, where Madeleine, Pratt's secretary, waved him in as a matter of course.

The District Attorney of San Francisco was hard at work – even Pratt's enemies conceded that she was a tireless workaholic. The complaint, if there was one, was that often her work produced no tangible results. But she put in the hours, no one denied that.

She was sitting at the computer next to her desk, her fingers flying over the keys. Hearing the door, she looked over. Torrey saw the telltale ghost of displeasure and impatience playing on her features, but then it flitted away. She didn't like being interrupted, but since it was him.

He closed the door behind him. 'Interesting news,' he said.

'I hate that word, interesting.' With a sigh, Pratt pushed back from the computer. 'You might as well just say bad. Somebody tells you about a movie and says it was interesting, do you want to go out and see it? Never. And if you do, guess what? It sucks.'

Torrey heard out the tirade. 'Is this a bad time?' he asked mildly.

'Not particularly. I'm just trying to get this article written for American Lawyer.'

They had discussed this over the weekend – the magazine was getting input from DAs around the state on the question of how various communities were handling the problem of so-called 'victimless crimes', such as prostitution and drug abuse. Sharron's position was that, basically, you didn't prosecute them, and since the legal community in the state was aware of this, Torrey had been under the impression that he'd convinced her to farm the task out to one of her junior staff people.

'So you are writing it yourself.'

There was no defensiveness in her answer. She had made her decision and it was the right one and that was that. 'I told you I thought it would be better me-'

'Than somebody else who couldn't express it as well.'

'Exactly. I'd just wind up doing it over myself anyway. And if my name's going to be on it-'

'I know. We've been over this. You're wasting your time with this detail work. That's why you have a staff.'

'I'm wasting my time reading incompetent drafts, Gabe.'

'So hire a good writer.'

'I'm a good writer,' she snapped. 'I know what I want to say and I say it well.'

He was never going to win. He nodded with resignation. 'We agree to disagree, OK?'

'Fine.' She bit off the word.

This wasn't the best start for what might prove to be an important and controversial meeting. Torrey considered taking her dismissive tone to heart and making his exit. Leave her to her damned article.

He could come back to it tonight, when she'd be more receptive after a drink or two. But he didn't get a chance to move before she said, 'So what's the interesting news?'

Torrey had no choice. He willed all trace of the earlier tone out of his voice, and delivered it flat. 'Dismas Hardy called me ten minutes ago. He wants to deal.'

Pratt looked at him. 'Actually,' she said, 'that is interesting. What does he want?'

'Murder two.'

'Murder two?' Clearly, it surprised her. She barked a cold laugh. 'He wants to go from death to murder two? The man's got a tremendous imagination. What did you tell him?'

'I told him I had to talk to you.'

Pratt fixed him with a hard eye. 'That's a nice flattering answer, Gabe. But what did you really tell him?'

'That's really what I told him.' He pulled a chair around and sat. 'I said that since you'd made this particular case a campaign issue, it wasn't going to be that simple.'

She frowned. 'But it is that simple,' she said. 'There's no way.'

In fact, Torrey had told Hardy that they would have to work out the details, but in general he thought a reduced charge in return for a guilty plea was a workable idea. After the election, of course. Hardy could waive time for a few months and then, after the dust had settled on the results, they would do the deal. Pratt's administration had grown infamous for its willingness to plead out cases rather than take them to trial. In this regard, it had by far the most lenient record of any jurisdiction in the state. Torrey saw no reason to let the campaign change the basic policy.

So Pratt's refusal here hit him like a broadside. 'There's no way, what?'

'There's no way we cut a deal on this. I've gone on the record saying I want the death penalty in this case.' She came around in front of him and leaned back against her desk. 'I can't believe I have to explain this to you. There's no other option, I hope you see that.'

Her adamance here was what surprised him. Perhaps she just needed him to explain a little further. 'Well, I told Hardy it couldn't be till after the election, of course, but-'

'Even then!' She brought her face down, directly in front of his. 'Gabe, you of all people. You're the one who came up with the idea. I'm expecting our friends at the Democrat' - a small, alternative newspaper sympathetic to Pratt – 'to start beating the drums for it any day now. People hate the death penalty all right, but I'm confident they'll come to hate this kid more. And this crime.'

'Well, all that's fine, Sharron, but after the election it won't matter anymore.' He still had to try to bend her. If she would allow Cole Burgess to plead guilty on a lesser charge, then it would be over. And trials, even an apparent no-brainer like this one, were always uncertain. That was their nature. Anything could happen. He got up from his chair, took a half lap of the room. He came to rest and faced her. 'But we've still got Hardy. What if he'll take murder one with specials, LWOP?' This was life in prison without parole.

But the DA wasn't budging. 'We still ask for death.'

'Sharron,' he put his hands on her shoulders. 'Listen to me. You can't ask for death if he pleads guilty and says he's sorry. You'll come across as bloodthirsty. If it gets to there after a trial, it's different. The kid's unrepentant, shows no remorse, OK. Otherwise…' He let the word hang.

It was her turn to walk to the window, separate the blinds, look down onto the street. She stood there a long minute. 'I want to go to trial on this one, Gabe. The evidence is rock solid and it's all with us. The boy did it and people don't like him. When we send him down, they're with us. Even if we don't get the death penalty, and we probably won't, we still get LWOP and look tough. Your instincts were right.'

He stood in the at-ease position, his head bobbing as though he were in thought. 'All right,' he said.

She looked back out the window for an eternity. Setting her mouth, she directed a steely gaze once around the room, then finally over to her Chief Assistant. Her voice had a raspy quality, but it was firm. 'That bastard Hardy has impugned the integrity of this office and accused me personally of playing politics with a man's life. No deals.'

Torrey kept himself from showing any reaction. He knew the look. Argument would be futile. She had made up her mind. Her eyes went back out the window, to the dull gray afternoon. Torrey looked at her for a moment, then bowed slightly from the waist and turned on his heel.

'The attorney's room at the jail was a good deal more pleasant than the general visitor's room, where Cole would meet his mother behind a barrier with a dozen other inmates on either side. At ten by twelve feet, it wasn't exactly spacious, but there was room for a table and two chairs with some floor left over for pacing. The far wall was made of opaque glass block, and this seemed to brighten up the room, although Hardy realized that this was possibly an optical illusion -more likely it was the glaring fluorescents overhead.

Cole sat across from him in his orange jumpsuit. His face was troubled, his brow clouded, his eyes clear. 'But I didn't kill her.'

He went through it all, as he had with Jody – the difficulty of getting a not-guilty verdict, the seriousness of the special circumstances allegations, the strong physical evidence against him, his own confession.

His client listened until he'd finished. Then he shook his head. 'No,' he said, 'I didn't kill her. I won't plead guilty.'

Hardy started over quietly, hummed along in low for a while before he blew it out and got loud. He paced the room, slammed his fist on the table a few times, damn near threw a chair. He would have done cartwheels if he thought they might have had an effect.

'I'm sorry,' Cole said when he finished. 'I can get a public defender if you don't feel you can stay in. But I'm not pleading guilty. I didn't do it.'

For which, ultimately, there was no argument.

The events of the day had beaten Hardy down. He told himself that his biorhythms were low now in the early dusk. He'd perk up any minute. When Torrey got here, his adrenaline would kick in, as it had with Rich McNeil this morning, then with Glitsky at the hospital. As it had a couple of times in his grueling session with Jody Burgess, and then again with Cole, to say nothing of each of the three times he'd left increasingly curt messages for Dash Logan to please get back to him if his busy schedule allowed.

He brought a hand up to his eyes. Had all those disasters occurred during this one day? Did he have any adrenaline left?

And now he had to face Gabriel Torrey and tell him Cole wouldn't plead. He was sitting in front of the Chief Assistant's power desk in the same old room he used to love back in his own prosecuting days during the Civil War. He'd come in here just at this time of the evening and sit around with his boon colleagues, arguing the law and their strategies with his old mentor Art Drysdale.

The good old days.

This wasn't them anymore.

After Jody, he'd felt cocky. If he could convince her, he could convince anybody. He could just wriggle out of this entire dilemma. Cop a plea for Cole, get the boy in a rehab program in prison, collect a nice fee for his efforts and move on. It was an impossible case to try anyway. So he'd called Torrey and set up this meeting before discussing it with his client. A mistake.

And now he was on the DA's turf, in an entirely different mode than he'd intended.

A side door opened and here was the man himself, professional, even cordial. 'Diz,' he began, proffering a hand. 'I want to start out by apologizing for the other day in court.' A self-effacing smile. 'I've got a short fuse. I was protecting my boss. I'm sorry.'

Hardy was on his feet, shaking the man's hand. 'It happens. I got a little emotional myself.'

Sometimes – and this was one of those times – it bothered him when he went along with his natural inclination to be a pleasant person, to adhere to social conventions. When he'd been younger, he didn't remember this as one of his primary character traits. Now, he tended to be rude only when it served a purpose. He wasn't sure this was an improvement over the earlier model.

He took his seat while the Chief Assistant went around the Desk and got himself settled. 'So,' Torrey began without any more preamble, 'I was in with Sharron after our phone call.'

'Well, about that…' Hardy didn't want to waste any more time on this. Cole wasn't dealing. There was nothing to talk about. If Torrey hadn't appeared cooperative as he made the appointment, he'd have phoned it in. Now, though, he felt as if he at least owed him a personal explanation.

But before he could say anything else, Torrey kept on. 'I'm afraid she wasn't inclined to deal.'

This was a far cry from what he'd been led to believe. Torrey had told him he was sure they could work something out, and he had to wonder what had happened. He cocked his head. 'At all?'

Torrey shook his head.

'She won't even go to life without?'

No response.

'This from an administration that has never even asked for LWOP before, much less death?'

'Right.'

Hardy brought a finger to his jawline and scratched at it. That's pretty raw.' The offer didn't matter at all, of course – Cole wasn't going to take anything that involved a guilty plea – but Hardy felt his blood beginning to boil. He turned down the volume on his voice. 'So me coming here to see you tonight, this was in the line of a joke? I'm supposed to go back to my client with that?'

Torrey spread his hands. Hardy found himself thinking of the William H. Macy character, the slimy car salesman in Fargo. 'Sharron has strong feelings about this case. She said it was a matter of principle.'

Hardy's bile continued to rise. His pulse pounded in his ears. He knew that if he remained seated here across the desk from this liar, his commitment to la politesse was going to be tested. And found wanting.

He didn't believe he could endure any more conflict today.

He knew where they were coming from. It didn't matter anyway. He noticed that his knuckles were white on the sides of the chair as he stood up. 'Well,' he said, 'as long as it's a matter of principle…'