Hard Evidence (34 page)

Except Hardy knew Pullios, and this nicety was, he believed, lost on her.

Which led him to his bold, unorthodox strategy —

‘How’s jail treating you?’

Fowler shrugged. ‘It’s like a good hotel, only bad. Why?’

‘I don’t want you mistreated. This bail situation is intolerable.’

‘I am a little surprised at Marian.’

Fowler was a little surprised at Marian! At Judge Marian Bruan. Hardy couldn’t get over Andy’s seemingly ingrained sangfroid. Like Marie Antoinette apologizing to her executioner for stepping on his toe; Fowler too was unfailingly polite, refined, even self-effacing. It wore well in the world, but here in jail, in his prison garb, it was somehow at once incongruous and pitiable.

It was going to be next to impossible to choose a jury resembling this man’s peers.

‘Well,
Marian
notwithstanding, Judge…’

‘Better get out of that habit, Diz. Not judge,
Mister
Fowler. Remember, Marian made the point.’

Hardy pressed on. ‘Marian notwithstanding, Andy. I think if you can live with your situation for a while we can use it to our advantage.’

Hardy’s theory involved doing away with many of the time-honored traditions of the Superior Court, but he didn’t think he or Fowler could make any new enemies if they tried — all the available ones were taken.

His primary defense, of course, would be that the prosecution had failed to prove their case beyond a reasonable doubt. The evidence did not prove that Andy Fowler had killed Owen Nash. There was probably motive, or purported motive, but motive alone should not be enough to convict. So he had a defense, a passive defense. He wasn’t sure it would be enough.

Pullios, he was certain, was going to use all of the physical evidence she had, but she would probably build her case around a ‘consciousness of guilt’ theory by which a defendant’s actions, such as flight, resisting arrest, lying to interrogators and so on, were admissible evidence showing the defendant to be ‘conscious of guilt’ — even with little other evidence, those actions could as a matter of law be sufficient to establish guilt beyond a reasonable doubt.

There might not be a smoking gun here, Hardy knew, but Fowler’s unethical behavior while on the bench rang, sang and went siss-boom-bang with consciousness of guilt.

So he needed something else if he wanted to get Andy out of jail, and the court had steered him in the right direction. Beginning with Pullios as she proceeded backward from suspect to investigation, on through Marian Braun’s decision to deny bail, this case, he could argue, had been riddled with demonstrable prejudice against Andy Fowler. Hardy, thinking it likely they couldn’t get a fair trial on account of prosecutorial and judicial prejudice in San Francisco, had at first considered trying for a change in venue but then the other thought — the strategy — occurred to him.

In San Francisco it was likely they would get a judge hostile to Andy, possibly even to himself. They would, in fact, further antagonize both the judge and Pullios by demanding a trial immediately, as was their right. (In the Shinn matter, Pullios had wanted to proceed to trial quickly and had gotten hurt by it — now that she was slowly building what she thought was a strong case she’d be opposed to rushing it through.)

Hardy would argue that so long as his innocent client was being held without bail, it was unreasonable to ask him to suffer any delay. He was innocent until proven guilty and he was rotting in jail.

Hardy figured this approach could prevail in more ways than one. First, the presiding judge might reconsider bail. If that didn’t happen, then scheduling an immediate trial would, he hoped, maybe disconcert Pullios — he’d seen how the swirling events with May Shinn had led even Pullios to slip on some details such as checking the phone records. She also could get testy, personal, which could hurt her credibility in front of a jury. He hoped. At least if he could keep her covering her fronts he figured he would cut down on her efficiency. Her effectiveness.

Finally, in the event they went to trial with Andy still in jail, with a hostile judge, and Pullios got the conviction, Hardy could make the argument on appeal that there had been a
de facto
conspiracy against Fowler to obstruct justice and due process, from investigation to incarceration to trial.

Fowler heard out Hardy’s argument. ‘I’m not too thrilled with the idea of setting a mistrial in motion to win on appeal.’

‘It’s a last resort, Andy, granted. But we’d be foolish not to think of it now. It would cut Pullios’s prep time by two-thirds.’

‘And ours.’

Hardy nodded. ‘True, but the evidence isn’t going to do it, Andy. It’s who slings it better and I believe she’ll feel rushed. I know her.’

‘How about you?’

Hardy let himself grin. ‘I thrive under pressure.’

‘It gives us less time to find out who really killed him.’

Hardy had been sitting on the hard wooden chair. His ribs, black and blue and yellow under his shirt, stabbed at him as he shifted now. Grimacing, he stared across the table.

‘Are you all right?’ Fowler asked him.

‘Yeah. You know what? That’s the first thing I’ve heard you say that really sounds like you’re not guilty.’

46

EX-JUDGE ANDREW FOWLER’S

POLYGRAPH RESULTS

‘INCONCLUSIVE’ IN OWEN NASH

MURDER CASE

By Jeffrey Elliot

Chronicle
Staff Writer

     Former Superior Court Judge Andrew B. Fowler yesterday was not cleared in a polygraph test. The results of so-called lie detector tests are not admissible as evidence in California courts, but Fowler’s failure to clear himself was characterized by the district attorney’s office yesterday as a blow to the defense.

     Fowler’s attorney, former prosecutor Dismas Hardy, put the results in a more positive light. ‘The test did
not
say that Judge Fowler was not telling the truth. The judge
volunteered
to take the test. Would he have done that if he were guilty?’

     Ron Reynolds, a University of San Francisco psychology professor trained in polygraphy, and the man who administered the test, agreed with Hardy. ‘The reason polygraphs are inadmissible in the first place is because they can have a wide degree of variability, of accuracy, according to the subject’s mood, his familiarity with the testing procedure, his understanding of the questions. Judge Fowler seemed to be extremely uncomfortable with the entire process — we could not even get a good calibration on him in four passes.’

     Hardy added: ‘There was no indication whatsoever that Judge Fowler was not telling the truth.’

     Mr Drysdale replied: ‘There was also no indication whatsoever that the judge was not lying.’

     In a related development, the
Chronicle
learned from a reliable courthouse source yesterday that Judge Fowler’s fingerprints have been found on the loading chamber of the murder weapon, a .25-caliber Beretta semi-automatic handgun registered to May Shinn, who had been the lover of both Owen Nash and former Judge Fowler.

     The case will be scheduled for trial on Monday morning.

*     *     *     *     *

Hardy had to learn to hold his comments in front of the jailhouse guards, even though they might be known to the prosecution. He knew who the ‘reliable courthouse source’ must have been about the fingerprints. His good statements to the press notwithstanding, the polygraph was a blow. It was all well and good to tell Jeff Elliot that there had been nothing that showed Andy was lying, but the test, from
Hardy’s
perspective, had brought up his old doubts about Andy’s innocence. On the other hand, he reminded himself, Andy’s nervousness could have been real — after all, everything about his predicament in jail was strange and scary. And what about Andy’s position that his best shot at proving he didn’t kill Nash was to find out who
did
? But outside of Glitsky and maybe Jeff, who owed him, where did he go for finding that out? And even with them, a few tenuous leads, some serendipitous snooping by Jeff… none of these were too hopeful.

He stood in front of his desk and threw darts, round after round. There were household noises — Frannie was doing some vacuuming, Rebecca got hungry and cried, Garth Brooks serenaded a CD’s worth from the living room. The sun got higher.

He was due in Master Calendar in two days. Based on the presumption that his client was innocent and being held without bail, he planned to push for an immediate trial. He would not waive time, and this would anger Pullios and whatever judge they got. They would not challenge the judge, whoever it might be. The newspapers were already leaning toward Fowler’s guilt, and Hardy thought it would be easier to find a heterosexual on Castro Street than to find a prospective jury member in this city who didn’t already have an opinion on Andy Fowler and Owen Nash.

Risks. Too many?

Leaving out the biggest — if Andy had in fact done it —Hardy’s doubts came and went. He just didn’t
know
. Not yet, anyway.

*     *     *     *     *

Personally Hardy’s own blackness had lifted — it was gone, vanished like a virulent flu that had done its damage and moved on.

He could think of no better place to be than where he was now — defending Andy Fowler. Since he had discovered Owen Nash’s hand last June, this case had been central to his life — his marriage, his career, his view of himself. He would, by God, see it through — if he had to wring it from some collective necks, he would get to the truth.

47

Superior Court Judge Marian Braun gavelled the room to order. Hardy had been sitting in the jury box to Braun’s right. Twenty minutes before, Elizabeth Pullios had come in with her entourage — the same assistant D.A. she’d had last time and what looked to be a law student/clerk. She sat at the prosecution table, busily conferring, ignoring Hardy completely.

They had called six of the earlier ‘lines,’ and the various defendants had been paraded before the bench. Two of them had been assigned to courtrooms, three were continued, and defense attorneys assigned, one was pled out then and there and ordered to pay a fine.

Hardy tried not to look at the gallery. Celine was there, dressed in black, sitting next to Ken Farris in the second row. He hadn’t seen her since the day at the steam room in Hardbodies! He noticed Jeff Elliot sitting among what Hardy assumed to be a group of other reporters. Jane, of course, was in the front row, opposite Celine. Art Drysdale came through the main doors and stood, arms folded, against the back wall.

He and Andy had discussed it yesterday — Sunday — and decided what he would wear in court. Andy didn’t own a suit that cost less than $700, so Hardy had asked Jane, the I. Magnin buyer, to hit a few lower-price racks and find something in Andy’s size with a little more of a common feel. He wanted Andy to look good — if a jury thought you looked like a criminal you were starting off on the wrong foot — but not too good. Andy Fowler, ex-judge, was going to have a problem with the jury empathizing with him in any event.

As the bailiff was reading in the charge again, Hardy got up from the jury box and met Andy at the podium, fifteen feet in front of where Marian Braun sat. He heard activity behind him. Turning, he saw that the door was open and a larger knot of reporters was pushing in.

Braun brought down her gavel. ‘Let’s get seated out there. While I’m at it, I want to tell you all that I will not allow pictures to be taken in this courtroom. I want order. This isn’t going to take long.’

‘Note that,’ Fowler whispered. ‘This is not going to take long.’

Hardy nodded to Fowler, then addressed the court. ‘Your Honor?’

‘Mr Hardy.’

‘On the matter of bail…’

‘Bail has been decided.’

‘Yes, your Honor, but I understood that you would reconsider your position.’

Braun glared down at him. ‘What made you understand that? What could I have said that brought you to that conclusion?’

Hardy had expected hostility, but on a
pro forma
request such as this one, Braun’s response still took him aback. ‘Your Honor, Mr Fowler is a respected jurist —’

‘Was, Mr Hardy. Presently he is a defendant in a murder trial. It is not unusual to deny bail in such cases. I thought I’d made that perfectly clear. Ms Pullios, was that clear to you?’

‘Yes, Your Honor.’

‘Mr Hardy somehow understood that I would reconsider.’

No answer was called for. The courtroom was quiet. Marian Braun stared at her former colleague. She looked at the computer sheet in front of her.

‘Bail will be set at one million dollars.’

Part Five

48

It was a cold and clear Monday morning, the fifty-first anniversary of Pearl Harbor. Out in the hallway in front of Department 27 Hardy turned from the group that had gathered around Ken Farris and Celine Nash. He pretended to lean down and tie his shoe, wanting to hear what she was saying. Her husky voice cut through the hubbub.

‘I’m here, and I’m going to be here every day to remind the jury that Owen Nash was a real person, not just a statistic, not a quote super-rich financier unquote but my
father
, a living and breathing person whom I loved and whom I mourn every day.’

Jane was next to him. ‘Chomorro,’ she said. ‘Isn’t that the worst?’

Hardy hadn’t spoken to his ex-wife since finding out she’d slept once — ‘only one night’ — with Owen Nash. ‘Hi, Jane.’ He stood up. He hadn’t seen any reason to burden her with his strategy of the antagonistic bench. In that light, he considered Chomorro was one of the best judges who could have come up.

‘Are we going to challenge him?’

Hardy thought he’d move along down the hallway away from Celine and Farris. He saw Jeff Elliot having a few words with Pullios over to his right. They had about fifteen minutes before Chomorro would call the court to order.

‘Chomorro? No.’

‘You’re kidding.’

Hardy thought he might as well practice for the newspapers. ‘Why would I want to challenge him, Jane? This is his first murder trial. Your dad wouldn’t go to him to recuse himself on the May Shinn matter because Andy thought Chomorro couldn’t keep it confidential. No, your dad and I have discussed it. Chomorro’s ideal because he’s got so much to prove — he’s going to lean over backward to give a fair trial to someone who had perceived him as an enemy. It’s a chance for him to make his good name — in that context he’s probably the best judge we could have drawn.’

Except for the last line, Hardy didn’t believe a word of it, but he was pleased to discover that it flowed smoothly off his tongue.

*     *     *     *     *

They were inside Department 27, Fowler’s old courtroom. Hardy turned around and checked the gallery —Jane, Farris, Jeff Elliot. Glitsky made it a point to come down. Hardy was glad to see him; he’d looked into one of the May Shinn phone calls with no results. Abe wasn’t to be pushed, but for the time being he was the only investigator Hardy had, and even if he was technically working for the prosecution, Hardy was glad something about the manner in which this case had been brought to trial gnawed at him. At the least, it was good to have him involved. He went to Celine. He couldn’t define exactly what he saw in her eyes, but they held his for a moment. He wondered what he could say to her when, inevitably, they spoke again. That he was sorry? That he’d been floundering and confused and hadn’t meant to lead her on, if that’s what he’d done?

In her expression he read nothing, and in that nothing saw anger, betrayal, disgust. He looked away as the bailiff announced that Department 27 of the Superior Court of the City and County of San Francisco was now in session, Judge Leo Chomorro presiding.

Chomorro looked young, fit and feisty. His wasn’t the physique of lean good health seen in advertisements. He gave more an impression of heavy solidity — a lack of fat on a heavy frame, like an old-fashioned fullback. His face had a light olive cast. His eyes were dark with brows that nearly met. The razor-styled hair was short without a trace of gray.

When he had gotten settled at the bench, the clerk of the court raised her voice: ‘Calling criminal case number 921072979, section 187, felony murder.
The State of California versus Andrew Bryan Fowler
.’

Because of the passage of Proposition 115, after June of 1991 lawyers in California for both the prosecution and the defense were no longer permitted to conduct
voir dire
on prospective jurors. Now the judge did it. This didn’t mean that lawyers had no say anymore in who eventually got on a jury — they still got their peremptory and other challenges — but the judge ran the show now. He or she asked the questions and gave instructions to prospective jurors, and people like Hardy and Pullios had to make do as best they could on some combination of information, instinct and luck.

Hardy had asked Chomorro if he could at least ask pertinent questions during the process, and the judge had denied the request. Hardy then submitted a list of questions that he hoped Chomorro would ask, but he entertained little to no hope that the judge would go along.

The jury-selection process could take hours or it could take weeks. Under the new and improved rules it tended to go faster than it had in the past — indeed, that had been the intention of Proposition 115. Andy Fowler’s jury would consist of twelve jurors and two alternates, and Chomorro had told both Hardy and Pullios that he would be very disappointed if they didn’t have a panel sworn in by the end of the first day.

The predicted mob materialized in the gallery. In the past two months, besides preparing his defense, Hardy had given no fewer than a dozen interviews on the case —television, magazines, newspapers. Now, with the impending trial coming up on center stage, the first four rows of the gallery behind Pullios filled with the media.

On the other side, he’d already seen Jane. He knew Celine would be in, and probably Farris.

Since there was no telling how long jury selection would take, Pullios had arranged to have a couple of her witnesses be on hand in the event it moved swiftly. Hardy thought he recognized the two guards from the Marina sitting together. John Strout could be summoned from the coroner’s office in a matter of minutes. The waiting was nearly over.

Fowler, after his million-dollar bail had finally been granted, had resumed a semblance of a normal life. He went into his office every day, maybe had lunch with some senior partners, maybe even played a little golf and tennis. Hardy would meet him either at the Embarcadero Center or at the Olympic Club and they would hash out their strategy, the affirmative defense that they were beginning to have some confidence in.

It shouldn’t have surprised Hardy, but somehow it did, that Fowler was turning into a real help in his own defense. He still acted removed from the process — as though it involved someone else entirely — but that was his personal style, and once he’d been released from jail, on his own refined turf, it wasn’t so grating. Andy had a copy of all of Hardy’s files — witnesses, interrogations, the evidence list, newspaper articles — and he took notes almost daily with ideas that might either weaken the prosecution’s case or help to locate ‘X.’ In fact, his insistence that there was an ‘X’ did a lot to keep Hardy’s confidence up about Andy’s innocence.

Nothing had panned out with Hardy’s other ‘investigators.’ Glitsky still professed an interest in helping him out, but he had other active cases and so far every road he’d followed on Owen Nash had led to a dead end. All of May’s other clients had had solid alibis and no particular motive, anyway. All had been cooperative, just so long as Abe wouldn’t disclose the liaison with May Shinn to their wives/friends/business associates.

Jeff Elliot had kept in touch, but there hadn’t been anything close to a scoop since Fowler’s polygraph, and even that hadn’t been much from Jeffs perspective. He was one of the people to whom Hardy had given his new telephone number, and last week he’d called with renewed interest now that the case was getting hot again, but he’d had nothing new to contribute.

So if it wasn’t Andy Fowler — and Hardy had to believe it wasn’t, except for the sweaty moments in the middle of the night when he still questioned — whoever
had
killed Owen Nash looked like they were going to get away with it.

*     *     *     *     *

Eighty people were called for the first jury pool.

There were as many theories of jury composition as there were attorneys. Hardy and Fowler had spent hours discussing the relative merits of various professions and ‘types’ of people, ever aware that they might, when the crunch came, wind up empaneling an individual who went against type and killed them.

For example, every once in a while a secretary, who for some reason tended to be pro-prosecution, would show herself to have a soft heart and come up for the defense. On the other hand a long-haired musician (a typical pro-defense juror) could turn out to have a heavy-metal, neo-Nazi edge and lean to convict.

In spite of these possibilities the two men had come up with a general idea of who they wanted on the jury and who they didn’t. Whether Chomorro would ask the questions to identify the traits or professions they were looking for remained a mystery.

As it transpired, Hardy’s original idea to provoke some judicial prejudice had borne, and continued to bear, some sour fruit — witness Chomorro’s denials about
voir dire
.

There was still, though, enough early prejudicial activity to use in an appeal if it came to that, but first, as Fowler had convinced him, there was a trial to be won. If you overconcentrated on your backup position you could find yourself needing it. In fact, after all the preparation and discussion, it might after all come down, as it so often did, to old gut instinct.

There was, however, one rather unique wrinkle involved in choosing this particular jury. In the mind of the public, judges were generally held in high esteem, and Andy Fowler had been a judge. Would people who might be opposed to authority figures — defense jurors usually —find in Fowler a rebel they admired? Would the law-and-order types, normally pro-prosecution, view him as one of their own who’d just made a mistake, or would he be vulnerable to the wrath of the betrayed?

In the end they decided that their ideal juror would be a sensitive blue-collar white male with a good background and education. Either that, Fowler said, or Mr Ed the talking horse.

They also thought they might have decent luck with an educated older black or Oriental woman. An Hispanic woman, they reasoned, might take too many cues from Chomorro, and most of those cues would favor Pullios. They agreed that an older Caucasian woman would be disastrous — how could Fowler throw away everything he had on
paid
sex with a Japanese prostitute? But a younger, liberated white woman, so long as she wasn’t a secretary, might be all right — there was romance and drama in what Fowler had done for love. Gay men and women would probably be good for the defense — outsiders siding with an authority figure now on the outside and looked down on by the ‘respectables.’ But, of course, Pullios would no doubt challenge any she presumed were gay, without giving that as the reason.

If they got the chance they would try to keep any scientists or engineers — men or women — should they appear in the pool. Hardy was certain by now that the thrust of Pullios’s offense would be consciousness of guilt, and therefore people who tended to believe in evidence as opposed to theory — scientists as opposed to philosophers — would better serve the defense needs. Of course, scientists as a rule tended to be conservative, and thus pro-prosecution, but what the hell, you couldn’t have everything. Nobody, no group, was altogether desirable or predictable.

Both Hardy and his client found this stereotyping odious. Especially in San Francisco, it went against the social and personal grain. It was a cliché to say so, but two of Hardy’s best friends were, in fact, the ‘mulatto’ Abe Glitsky and Pico Morales, who was not of northern European ancestry. But they also felt they had to develop
some
criteria. They were looking, they hoped, at professions, affiliations, attitudes — if they ignored race and gender they weren’t doing themselves any favors.

‘I hate this,’ Fowler whispered. ‘I hated it before from behind the bench. I still do.’

Each side had twenty peremptory challenges, where they could dismiss a prospective juror with no reason given. Hardy and Fowler had decided to use a diagram of the twelve jury seats in the pool, and to cross out those they wanted to challenge. With their legal pad in front of and between them this was a relatively subtle approach, chosen so they wouldn’t have to confer and risk antagonizing the jurors who remained. People didn’t like to feel they were being judged, even if they weren’t challenged personally.

The jurors were sworn in, and Chomorro started talking to them, or rather reading to them. ‘Andrew Bryan Fowler has been charged with murder in the first degree in an indictment returned by the grand jury for the State of California.’

Fowler, Hardy noticed, did not hang his head or show any outward signs of guilt or embarrassment while the indictment — again — was read in full.

Judges addressing juries, or prospective jurors, could be friendly and avuncular or tight and businesslike. Hardy thought Chomorro — relatively new to the process —struck a tone of studied affability. It was as though an effort to appear friendly to jurors had appeared on the job description. If he kept it up, it might be good for Andy, whose breezy geniality was, Hardy felt, genuine.

‘I’m going to ask a series of questions to all of you.’ He addressed himself both to the panel of twelve on the courtroom side of the rail and to the sixty or so other prospective jurors waiting in the gallery. ‘If you answer yes to any of them I ask those of you up here’ — he gestured to the jury box — ‘to raise your hand. Those of you in the gallery pool, please listen carefully, and if you are called up here and would have answered yes to any of these questions, inform us immediately.’

Among the questions Hardy had submitted for Chomorro to ask, the most important was the most obvious: based on anything they had read or seen in the media, had any of the prospective jurors already formed an opinion about the innocence or guilt of the defendant?

Chomorro did ask that question, a fairly routine one he would have asked anyway. There was a lot of looking around, but no one put his hand up. Chomorro didn’t let it go. ‘Let me rephrase that, or ask a related question. And you prospective jurors in the gallery, you may raise your hands directly here. How many of you have read about this case, or know about it from television or the radio?’