The Hearing

36

Jan Falk's testimony had only the most tenuous relationship to Cole Burgess, but by the time Hardy was done with him, after three o'clock in the afternoon, he felt certain that he'd forged another link in the chain that bound all these disparate elements to the murder of Elaine Wager.

Over a near-constant clamor of relevance objections from both Pratt and Torrey, Judge Hill let Hardy make his case. The Cadaver spouted a constant flow of overruling rationalizations, and all of them taken together assumed the force of a mantra.

'Mr Torrey, this is a capital case. I'm going to let it all in and sort it out at the end.'

'Mr Torrey, this will go a lot faster if you just let Mr Hardy do what he has to do.'

'Yes, I realize that defense counsel is arguing his evidence, but you're the one asking for the death penalty, and if you get it, Mr Torrey, every single layer of appellate court in this country is going to review it. They're going to want a complete record of all the issues and I intend to give it to them.'

'Ms Pratt, if as you say this line of questioning is irrelevant, how could it possibly hurt your case to hear it?'

'I know my job, Mr Torrey. I will throw out what doesn't belong here. You'll have to trust me on that. But I've told you I'm allowing extreme latitude here, especially after this morning's revelations in Ms Wager's letter to Lieutenant Glitsky.'

Hardy knew that no judge had ever been reversed for giving the defense what it wanted. He couldn't say whether it was Jeff Elliot's Examiner article, or the judge's time-tested views of the integrity of the DA's office, or Elaine's letter, but whatever had caused it, suddenly the Cadaver appeared compelled by the argument that events surrounding Cullen Alsop's overdose were somehow key to Cole's guilt or innocence.

Hardy had introduced no physical evidence – the judge had simply allowed hearsay and argument. Falk had put Gene Visser with Cullen Alsop at the Jupiter on the day of his release from jail and subsequent overdose. He'd disclosed information familiar to narcotics inspectors that substantial quantities of cocaine and heroin seized in arrests of dealers were finding their way back onto the street again. He opined that perhaps the evidence lock-up room under the Hall of Justice was not as secure as was generally imagined. A recent internal narcotics department audit had revealed, for example, that in the past twelve months, there was a discrepancy of nearly eighteen ounces between the amount of opiates and cocaine logged into evidence and stored downstairs, and the amount actually on-hand in the case lockers.

More specifically, though, Falk had testified that Banks was going to interview Visser on the day of his own disappearance. With the inspector still on the stand, Hardy argued that since two critical witnesses in this case had died or disappeared within the past week, more investigation was called for. The burden of proof, always on the prosecution, demanded some explanation for these unusual events.

In spite of all the objections, the prosecution didn't even bother to cross-examine Falk. What were they going to ask? If he'd made up any of this stuff? They knew he hadn't. He was Hardy's witness and they were evidently happy to see the end of him.

Hill stood up and announced that he would be leaving the bench for fifteen minutes, the last recess of the day. Cole went for a pit stop with the bailiff and Hardy and Freeman started talking about whether they had enough to make a motion to bifurcate the hearing – put it on hold until some of these outstanding issues had been investigated and/or resolved.

But Abe and Treya had come into the courtroom during the last half hour, and Glitsky, finally having pushed through the gallery and inside the bar rail, listened for a minute, caught their gist, and interrupted. 'I don't think we want to do that.'

As Hardy called lab technician Nikki Waller to the stand, suddenly he had the sense that the momentum had truly shifted – the lone fact that Freeman had so desired had finally appeared. The stocky, pretty young woman came confidently forward out of the gallery and took the stand with a kind of bright effervescence. Enthusiasm was rare enough in the courtroom, and Hardy found himself smiling at her, grateful for the attitude and also – mostly – for the information she possessed. He walked her through her introduction and credentials, then got directly to the point.

'Ms Waller, did you have occasion recently to examine for fingerprints some of the contents of the room where Cullen Alsop died?'

'Yes, I did, just today.'

'Hadn't you already done something like that?'

'Yes.' She briefly explained the computer problem, concluding, 'I didn't have a print good enough to compare to prints already in the system by computer, so not too surprisingly, I didn't find anything to match.'

'Although there were a lot of fingerprints in the room, isn't that so?'

'Oh yeah.' She almost giggled. 'There was no shortage there. They were everywhere.'

'And then what happened this morning to make you look again?'

'Well, Inspector Thieu from homicide came to the lab and asked that I check the fingerprints again against a specific individual, whose prints were on file.'

'And did you do that?'

'Yes, I did.'

'Ms Waller, what was the object on which you found the fingerprint?'

She wrinkled her face fetchingly. 'Actually, it was a piece of scotch tape – the inside sticky part – which was used to close the baggie that had held the heroin.'

'And was it usable?'

'It was blurry, but usable.'

'And did you get a match this time?'

'Yes, sir, I did.'

Hardy straightened up and inhaled deeply. 'Would you please tell the court the name of the person whose fingerprint was on the tape that enclosed the bag of heroin?'

Nikki Waller looked helpfully up at the Cadaver. 'Eugene Visser.'

On the stand, Visser was the picture of blue-collar cooperation. 'Of course I can explain it. This was the junkie in the bathroom, right?'

Hardy shrugged. 'You're telling the court, Mr Visser. Not me.'

'Well,' Visser sat back, no sign of tension anywhere. 'First you gotta understand that Jupiter is a party place. I mean, I heard what your last witness was talking about -Falk? – and you know, I've seen him in there too. In the bathroom.'

'We're not talking about Inspector Falk right now, Mr Visser. We're talking about how your thumbprint came to be on a bag of pure heroin that was a vehicle for a young man's death.'

'OK, sure,' Visser said. 'The short answer, then, is I picked it up.'

'You picked it up?'

'I'm in the bathroom, I'm standing at the urinal, it's the middle of the afternoon. I'm hearing some noise next to me in the stall, but you know how that is, you don't exactly go sticking your head over the top and asking how things are going.' A nervous titter rolled through the gallery. 'Anyway, next thing I know, I hear this person swear, like he dropped something, and a baggie of white powder shows up at my feet.'

'At your feet?'

'Yeah. I don't know. He must have kicked it grabbing for it or something. But like I was telling you, this isn't the first time I'd seen something like that at Jupiter. I mean, this is an adult place. There's a lot of law enforcement types, like myself. So I figure, the kid in the stall, maybe he's undercover – like your friend Falk, maybe, huh? -and he's trying to entrap me.' The gallery found this amusing too. 'So I leaned over, picked up the baggie, closed it back up with the tape. By this time, the kid's out of the stall, coming around, frantic. Going all like "Where's my stuff? Where's my stuff?" So I hand it back to him.'

'You handed it to him?'

Visser smiled. 'All taped up. Which, now, take my word for it, I wish I hadn't.'

Another ripple of laughter, and Visser acknowledged it almost as though he was doing stand-up. He began to rise out of the witness chair, but Hardy held up a hand and stopped him. 'Mr Visser, excuse me. We're not quite done here. Inspector Falk has testified that you went into the bathroom after Mr Alsop and both of you stayed in there for quite a while, perhaps as long as ten minutes. Would you care to explain that to the court?'

Shaking his head at all this silliness, Visser plopped back down and gave Hardy a long and serious look. 'You don't have to believe me, but I talked to him.'

'You talked to him? Cullen Alsop? What about?'

He threw a look to the judge, then back to Hardy. 'No, forget it. Never mind. You'd just laugh.'

'I'm not laughing, Mr Visser, I assure you. Please answer the question.'

The private eye fussed with his jacket. He took another moment, then shrugged. 'I told him he oughta go easy on that stuff. That it could kill him.'

Behind Hardy, the gallery hummed again, but this time there wasn't any laughter.

'So we talked like a minute, five minutes, I don't know. He seemed like a good kid. He told me he'd just got out of jail, and the first thing he did was get hooked up. He knew he should get straight, but couldn't seem to do it. So I told him just why didn't he take that bag and flush it right then. Start now. And you know, for a minute I thought he would. I think he really thought about it. But then he just said he couldn't do it, not yet.' The big man let out a convincing sigh. 'It was that close,' he said sadly.

To keep his temper in check, Hardy walked across the courtroom, then to his table for a sip of water. Freeman got his attention, mouthed, 'Let him go.' The old man sensed that Hardy was going to go after him some more, with no idea even of what questions he was going to ask, much less the answers to them. But Hardy ignored Freeman, and by the time he came back to the witness, he had himself under control. 'Mr Visser, did you talk with the police regarding this matter?'

'Yes I did.'

'When was that?'

Visser made a show of remembering. 'I don't know exactly, last Wednesday or Thursday, I think. I told the inspector the same thing I told you.'

'You talked to an inspector?'

'Yeah. Black guy, right? Banks? He had me at Jupiter with the kid, too. He came by there the next day after the boy died, asking questions then.' A nonchalant shrug. 'He was just following up.'

'Where did you see him?'

'He came by my office, which is down on Pier Thirty-eight. I was working late there and he caught me. He asked me the same questions, not so specific about the baggie maybe – I didn't know I had a print on it – but the same basic idea.'

'And then what happened?' Hardy was so angry, he couldn't stop himself.

'What happened when?'

'Next,' Hardy snapped. 'After you'd finished?'

Visser lifted his shoulders, let them down theatrically. 'I don't know. He left.'

Hardy raised his voice. 'Are you telling this court that you don't know that Inspector Banks has been missing from that night on?'

The witness sat back in dismay. 'Missing?'

Behind him, David Freeman exploded into a coughing fit. Evidently he'd choked on some water he was drinking, and now was hacking with a devastating and awful severity. He knocked his glass over on the table. There wasn't a person in the courtroom that didn't believe he could be choking to death. Cole was up, patting him on his back, the bailiff was moving over. Hardy remembered the judge, asked to be excused for a moment, then hustled over.

Freeman seemed to be recovering. He looked up, caught Hardy's eye, put a finger on his legal pad, upon which he'd written and underlined a question.

The dog! Hardy thought. The sneaky, brilliant dog. Slowing him to a stop, getting him back into focus. He couldn't blow it now because he had been baited into losing his temper.

Hardy stayed a moment longer to make sure that David was breathing again. Finally, Freeman stood and apologized, and Hardy returned to the witness.

'Mr Visser.' Hardy was speaking too loud now, standing too close to the witness. In desperation, Freeman had given him a question that probably broke his own cardinal rule, but phrased in such a general way that there could be no wrong answer, and maybe, just maybe, a very good one. 'Have you ever had occasion,' Hardy asked, 'to enter the evidence room in the basement of the Hall of Justice?'

The change of direction wiped the complacency from Visser's face. 'Yes.'

Hardy successfully kept the exultation out of his voice, although he thought he'd just hit the jackpot. 'And when was the last time you did this?'

Visser tried to keep up the show of nonchalance, but it wasn't as convincing as it had been. 'I don't know exactly.'

'You don't know?' Hardy pressed. 'We can find out in five minutes by calling downstairs, Mr Visser. Would you like us to do that, or do you think you can remember? You have to sign in upon entering down there, don't you?'

'Yeah. I don't know,' he repeated. 'A couple of weeks ago, maybe. Maybe less.'

'A couple of weeks ago,' Hardy repeated. 'Maybe less.'

He caught a glimpse of Hill out of one eye. The judge had straightened up in his chair and was now leaning in toward the witness. A keen intensity had galvanized him.

'Now, Mr Visser, it is my understanding that a private citizen cannot be admitted into the evidence locker unless they are accompanied by a lawyer or police officer. Isn't that correct?'

'I think so.'

'Were you so accompanied the last time you were there? In the last couple of weeks,' he couldn't help repeating.

'Yeah, I usually go with some lawyer I'm working with, something like that.'

'And two weeks ago, who was that?'

For the first time, the facade weakened. Visser looked to the floor, then drew a nervous hand over his jawline. 'I think… it probably must have been Dash Logan,' he said.

'You think? Are you sure?'

Another pause. 'Yeah. I'm sure. It was Dash Logan.'

'Mr Logan,' Hardy began. 'When you went to the evidence locker within the past couple of weeks with Mr Visser, what was your purpose?'

Logan spread his hands, turned in the witness chair and faced the Cadaver. 'This is ridiculous, your honor. What is this all about?'

'Just answer the question,' Hill shot back.

Hardy had a sense that he was on to something. The current had finally begun to flow in his direction, and he was going to ride it as far as it could take him. 'Mr Logan,' he said. 'Would you like me to repeat the question?'

'No.' Where Visser had used confidence to blunt Hardy's attack, Logan thought he'd go with arrogance. His eyes were shining with ill-concealed anger. His jaw was set. 'I was there, in the locker, to review evidence in one of my cases. That's why you go there, Mr Hardy, to review evidence.'

But Hardy didn't rise to the bait. A cool detachment had settled over him. He even allowed himself a cragged grin. 'Thank you for that information, Mr Logan. I'll keep it in mind. Now, the specific case you were working on, how would you classify it?' This was another question for which Hardy didn't know the answer – except that by now the answer had become all but a certainty.

'I don't classify my cases. I work for my clients. I don't understand your question.'

'Well, for example, was your client being charged with robbery? Murder? Rape?'

'No. None of those.'

'How about traffic in narcotics?'

That's privileged information,' Logan said. 'I don't have to discuss the nature of my cases with you or anybody else.'

Hardy turned to the judge. 'Your honor?'

Hovering almost over the edge of his podium, Hill had never looked more cadaver-like. 'Your cases are public record, Mr Logan. Tell the court what this one was.'

Logan cast his eyes from side to side. Seeing no escape, he sat back in the chair, crossed one leg over the other, adopted a wounded air. 'Yes. It was a narcotics case.'

'And you were there with Mr Visser?'

'Yes.'

'And afterwards, did you both go together to Jupiter?'

'All right, so what?'

Pratt, who'd been little more than a bystander for the past hour and a half, finally rose to her feet. A simmering anger scalded her voice slightly, but she managed to keep it under a lid. 'Your honor, if the court please, there can really be no relevance here between Mr Logan's and Mr Visser's visit to the evidence locker less than two weeks ago, and the death of Elaine Wager more than two weeks ago. She was already dead when these events that Mr Hardy is so interested in transpired. I understand the latitude that you've given defense in this case, but none of this can possibly matter. He's allowed to go there. So is Mr Visser. So what if he's got a drug dealer for a client? Almost every criminal defense attorney does. The whole thing is just a smokescreen, a desperate, unethical smokescreen.'

Sharron Pratt half turned now, aware that she was also playing to the gallery, which had come to life behind her. Perhaps she took the judge's silence for forbearance. Whatever drove her, she took another deep breath and forged ahead, her voice becoming louder and more shrill as the volume behind her in the courtroom increased.

'This hearing is about the actions of Cole Burgess, your honor. Not Dash Logan and Gene Visser. They are not the criminals here. Let's not lose sight of that fundamental truth in our zeal for fairness here.' And suddenly she was all but screaming, turning to the defense table, pointing her whole hand. 'That boy there is a cold-blooded killer. He killed Elaine Wager. There can be no doubt. Look at the facts, your honor. My God, this is insanity. Look at the facts.'

She stood at the prosecution table – firm, proud of herself for having spoken out, for having put the judge on notice. She, not Hill, was controlling the agenda at this moment. The judge might have the power of the bench, but she had the power of righteousness. The people had elected her to do what she was doing now – driving the appeal to higher ground, toward justice and away from these lawyers' tricks. Enough was enough.

The Cadaver sat back in what Hardy took to be a state of disbelief, even awe. He held his gavel in his right hand, inches from the top of the bench, and did not lower it, but instead let the noise in the room subside for what seemed an eternity, although it probably wasn't more than forty seconds. Finally, when the silence was complete, Hill placed the gavel carefully in front of him, and spoke in a moderate whisper.

'Because of your elected position, Ms Pratt, I'm going to do you the courtesy of not throwing you into jail. I do, however, find you in contempt of court for that outburst and order you to pay the sum of one thousand dollars to the clerk of the court before noon tomorrow. In accordance with the business and professions code, you will report this incident to the State Bar.'

The buzz began again, and this time Hill didn't hesitate a second, but slammed his gavel three times rapidly in succession, until once again he addressed a tomb. 'Let there be no mistake that this is a court of law. It's not a soapbox upon which to make election speeches. Now,' he continued to the courtroom at large, 'Mr Hardy will proceed with this witness until he is finished or for the next twenty-five minutes, whichever comes first. After which we'll adjourn for the day.' He stopped speaking for an instant, then raised his head and started again. 'And for the record, Ms Pratt and Mr Torrey, I am quite persuaded to this point that the testimony elicited from the past few witnesses, as well as the evidence presented to the court, will pass any relevance standard you'd like to propose. So I'd prefer to let this direct examination continue with a minimum of objection for a while. Am I making myself understood? Ms Pratt?'

Hardy had been facing her through all this. Now, her eyes glistening with anger, she stared at the judge, mute. Was she daring Hill to make her respond? If so, it wasn't her best idea. But Torrey, sensing the same thing and hoping to avert further crisis, put a hand on her arm and stood up. 'Of course the People reserve the right to object, your honor.'

An evil apparition, the Cadaver glared down at the prosecutors, held his expression, then at last nodded crisply. 'Of course,' he said. Left unsaid, but clearly stated nonetheless, were the words, 'Make my day.' The judge gave it a last beat, then handed the witness back to Hardy.

He turned back to Logan. If Sharron Pratt thought the last set of questions was irrelevant, she would go ballistic over what he intended to do next. But the judge had just given him free rein and if he was ever going to get it in, now was the time. 'Mr Logan, last year were you yourself involved in a traffic incident at the corner of Fifth and Market?'

The witness shifted in his seat, nervously cleared his throat. 'Yeah. Somebody cut the brakes in my car. I nearly got killed.'

'You also nearly hit two pedestrians running a red light, did you not?'

'I couldn't stop. What would you expect?'

Hardy didn't reply to that. Instead, he asked, 'When this incident occurred, were you under the influence of drugs or alcohol?'

Logan sat up self-righteously. 'Absolutely not. And nobody charged me with anything.'

But Hardy had an answer for that. 'Isn't it true that after you were arrested and booked by the police, all charges related to this accident were dismissed by the District Attorney?'

'Well, yes, that's-'

'And you're aware that Mr Torrey personally made that decision?'

'There weren't any-'

Hardy raised his voice. 'Yes or no, Mr Logan?' Notching it up again. 'Yes or no?'

'OK, but-'

Hardy jumped in again. 'That's a "yes", for the record, is that right?'

Logan hated it, but was afraid of what Hardy knew or might be able to prove. 'Yes.' He spat it out like a bitter seed.

'Thank you,' Hardy said. Having now tied Visser to Logan to Torrey on the record, Hardy was at last ready to bring it all back home. He glanced at Hill and thought he imagined an almost conspiratorial nod from the judge -surely, he thought, he must be getting tired. 'Mr Logan, did you know the victim in the case, Elaine Wager?'

'Yes I did. Professionally, not personally.'

'In other words, you knew her as another lawyer here in town?'

'Excuse me. Mr Hardy?' The judge, interrupting. 'I'm gratified to see the beginning of a line of questioning that relates to one of the principals in this case, and this might be a good time, if the people don't object,' he added pointedly, 'to call it a day and resume tomorrow. It's been a long session and I'm sure we could all use the time to reflect on the day's events. Are there any objections?' There were not. 'All right, then. Court's adjourned.'