The Hearing (43 page)

“Why didn’t Torrey bring it up, then?”

Hardy had wondered about this, too. Certainly, it was an important point. If Cole had only fired the gun once, and
not
when he fell during the pursuit in the alley, then the only handy explanation for the gunpowder residue on his hands was that he’d fired the gun before the police arrived. Presumably to kill Elaine. Petrie’s report of the incident never mentioned a shot, although Medrano’s did. So Hardy had put Medrano on his own witness list. He assumed that when Torrey had seen this, he chose Petrie for the prosecution version of the story. Then, in the flush of having demonstrated his special circumstance—robbery—he’d decided he had gotten enough out of him. He didn’t need what the officer didn’t hear. Hardy hoped this would prove to be a critical omission, but he downplayed it to his client. “I don’t know, Cole,” he said. “My honest feeling is that he just plain forgot.”

Freeman guessed right again on the next witness—the crime scene lab technician. Lennard Faro was a small man in his early thirties with a thin mustache and thick, pomaded black hair. He wore a blue blazer over a tangerine shirt. A tiny gold cross earring dangled from his left ear. He verified that ballistics confirmed that the bullet that had killed Elaine Wager had been fired from the weapon Cole had had in his possession. Faro had tested the defendant for gunshot residue, then analyzed the results. Now Torrey had come to the nub of it. “And therefore, based on the results of this test, it was your conclusion that the defendant had on his hands residue that could only have come from a discharged firearm.”

It was a no-brainer. Faro had no doubt at all. “Yes, sir.” And Hardy got the witness.

“Mr. Faro,” he began, “did you find any fingerprints on the gun?”

“No, sir.”

“Is this unusual?”

The lab tech shrugged. “It’s common enough, sir. The surfaces of the gun had been treated with Armor All, the car upholstery cleaner? So it didn’t hold fingerprints.”

“I see. And when you say this is common enough, roughly how frequently do you see it?”

This was an unexpected direction, and the young man paused to reflect before he answered. “Every few months, I’d say.”

“Every few months? So it’s not an everyday finding?”

“No, not at all. I didn’t mean common like everyday.”

“That’s all right. I’m just trying to get a sense of when you would see this Armor All used on a weapon to avoid fingerprints. It seems like an esoteric bit of knowledge.”

Faro had no reply. Hardy realized he hadn’t asked a question. Torrey was objecting behind him. “Relevance. What’s the point here, your honor?”

“That’s a good question, counselor. Mr. Hardy?”

It was not a pleasant moment. The Armor All was one of dozens of details that possibly meant something, but it didn’t prove a damn thing either way. Cole was more likely to be ignorant of its usefulness in avoiding fingerprints than, say, a member of law enforcement or a hardcore criminal, but it certainly was possible that he knew all about it, and had put it to good use.

Hardy apologized, took another tack. “Mr. Faro, how many bullets were in the gun when you examined it?”

“Well, it’s a five-shot revolver. There were three live rounds and two spent casings.”

“Two casings?”

“That’s right.”

Hardy looked at the judge, turned in a half circle, came back to the witness. “Now, Mr. Faro, did you take the GSR swabs from Mr. Burgess yourself?”

“Yes, I did.”

“And you’ve testified you found gunpowder residue on the swabs, is that so?”

“Yes.”

“Did you find a lot of it?”

“No. Very little.”

“Very little,” Hardy repeated. “If a person fires a gun more than once, Mr. Faro, does he leave increasing amounts of residue with each shot?”

“Yes, of course.”

“Of course. And yet Mr. Burgess had very little?”

“Yes.”

“Are you able to say that this residue came from one or more than one discharge?”

“No.”

“In fact, you can get GSR on your hands from picking up a recently discharged firearm, isn’t that true?”

“Yes.”

Hardy wasn’t going to get any more out of that well, so he decided to move on. “And when did you swab the defendant’s hands, Mr. Faro? Wasn’t it in the middle of the night?”

“Yes, sir. The defendant was handcuffed and brought to the homicide detail for questioning. I was at the crime scene, and came down when we were done there.”

“Do you know what time you administered the test?”

“Yes, sir. I noted the time when I started. It was four thirty-seven in the morning.”

“And during all that time that you were at the crime scene, was Mr. Burgess handcuffed in an interrogation room in the Hall of Justice?”

Faro nodded. “That’s what the officers told me, yes sir. They didn’t want to let him wash his hands. That’s pretty standard,” he offered helpfully.

“I’m just curious, Mr. Faro. Why didn’t you administer the test in the field?”

“I guess they wanted to get him downtown fast. I don’t really know.”

Hardy paced a little, in thought. “All right, Mr. Faro, so you got here to the Hall of Justice after Mr. Burgess had been in custody for at least three hours. Would you describe his condition at the time you took the swabs?”

“Your honor, objection. Calls for a conclusion.”

But Hardy was ready for this one. “Not at all, your honor. I’ll let you draw the conclusions. I’m only asking Mr. Faro what he saw.”

The Cadaver gave him one. “Very well. Overruled.”

“Mr. Faro?” This wasn’t the tech’s usual area of expertise or testimony, and he shifted in the chair with a degree of discomfort. “Let me be more specific,” Hardy offered. “Was Mr. Burgess asleep?”

“No, sir. He was in a chair.”

“Was he sitting up straight, or slumped down?”

Torrey again. “Your honor, defendant’s posture can hardly be relevant.”

But again Hill overruled him, adding harshly, “I’m allowing this line of questioning, Mr. Torrey.” The message was clear—object again at your peril.

Faro answered the question. “He was way down, slumped as you say.”

“Did you talk to Mr. Burgess at all?”

“Yes I did. I told him what I’d be doing with his hands.”

“And how did he respond?”

He considered a moment. “Incoherently. He was pretty out of it. I finally just pinned his arms down and took the swabs.”

“Was his speech clear, or slurred?”

“Slurred. It was more like mumbling.”

“Mr. Faro, did you smell alcohol on his breath?”

“Whew!” The witness finally showed some personality. “It was a brewery in there.”

“A brewery,” Hardy repeated, delighted with the phrase. “That would be ‘yes,’ wouldn’t it? You smelled alcohol, is that right?”

“Yes.”

“And was this a good three hours after he’d been brought downtown?”

“Yes, sir, at least.”

“One last question, Mr. Faro. Did you see any video equipment set up in the interrogation room when you were there administering your tests?”

“No, sir.” And another sentence slipping out. “When I passed the monitor next door, they hadn’t turned the camera on yet.”

“Thank you, Mr. Faro. Mr. Torrey, your witness.”

The prosecutor honed in on Hardy’s most salient point. “On the matter of the gunpowder residue, can it be wiped or washed off?”

“Washed, yes. Wiping, eventually, over time. Which is why we try to get to it pretty quickly.”

“But in this case, as you’ve testified, you didn’t get to it very quickly. In three hours, might someone lose a great deal of residue if they wipe their hands enough on their clothing, for example?”

“Yes.”

“But not all of it?”

“No. Not necessarily.”

“So is it entirely possible that the defendant could have fired the gun more than once and still had only little or trace amounts of gunpowder residue?”

“Yes. Completely.”

As soon as the witness stepped down, Hardy asked for a sidebar, and all the attorneys came forward to the bench. “Your honor,” he began, “I’d like to make my motion to exclude my client’s statement—his so-called confession—right now. It’s clear he was drunk when he was arrested and equally clear that Officer Petrie was coached to say otherwise. Let’s get this issue resolved right now.”

This tactic didn’t stand a chance and Hardy knew it. The prosecution could call their witnesses in any order and any coaching they were going to do was already done. But it might serve to disrupt the orchestration of the prosecution’s case. At least making the motion would annoy Torrey and Pratt. And if the judge made them change the witness order, who knew? As a bonus, he might even win his bet with Freeman.

“Give me a break.” Pratt, all scorn, addressed Hardy but was looking at the judge. “It was almost five o’clock in the morning, your honor. He was punch-drunk, maybe, with fatigue.”

But David Freeman wasn’t only there for his good looks. He took a half step toward the bench. “Your honor,” he said. “Three hours?” He took in the whole circle of them. “They come upon Mr. Burgess on the scene, apprehend him there with the victim’s jewelry and an apparent murder weapon, and
three hours later
they haven’t even asked him a question? On the face of it, the confession is fatally flawed. The police overstepped.” He was raising his voice. “They don’t give him his phone call—”

“He called his mother,” Torrey interrupted. “He waived an attorney. We’ve got that on the videotape.”

“Bullshit!”

Hill, shocked at the language, couldn’t find any response other than to point his finger. “Hey!”

“It’s on the tape, David,” the prosecutor shot back. “Deal with it.”

Freeman implored the judge. “Where are we, your honor? In Turkey? In Iraq?”

“Jesus.” Pratt did a little pirouette of disgust. “Your honor, no one has fought police misconduct more than I have. This was a murderer they needed to interrogate. He signed his Miranda notice. There was no overreaching here.”

Finally, Hill caught up with it all. He slammed his gavel for order, since by now the whole room in front of him had degenerated into chaos. When things had settled, the Cadaver turned a terrible face to both Hardy and Freeman. “I’ve said I will rule on these issues when the People seek to introduce the evidence. I’ve heard nothing to change my opinion,” he said in clipped tones. “Mr. Freeman,” he continued. “I don’t allow profanity in my courtroom. Now I’m calling a five-minute recess and I want everybody calmed down by the time we reconvene. This is a court of law and not a goddamned circus act.”

P
ratt herself took over for the next witness. “The People call Anthony Feeney.”

Hardy had known Feeney, a journeyman assistant district attorney, for over twenty years, and had always considered him a decent sort—honest, hardworking, cooperative. When Hardy had first interviewed him because he’d taken Cullen’s information on behalf of the D.A., he’d gone home particularly depressed. The details that had eluded both him and the public defender Saul Westbrook about the mechanism of Cullen’s snitching were not a secret. No one appeared to be trying to conceal anything. Hardy had hoped this would turn out to be a break in the case—against Torrey if nothing else—but his hopes had been pretty much dashed. Feeney wasn’t a liar. Hardy didn’t think he’d be lying now, and this was not good news.

He was Hardy’s age, although sometime in the past decade he’d gone from looking younger than him to much older. His hair had turned snow white. He’d developed a middle and his clothes, once flashy, had become conservative, dated. The almost oddly shaped, triangular face had crumbled on itself somehow—the once-distinctive beauty marks on either cheek now lost in liver spots and mild eczema. Feeney had turned into a bureaucrat, an office worker—flat affect, squashed personality, perfectly competent and nonconfrontational. He aimed to please.

After establishing his credentials, Pratt got down to her business—demonstrating that Cole Burgess had the murder weapon at least a day in advance of the shooting, and therefore that premeditation was possible if not likely. “Mr. Feeney, do you know a young man named Cullen Leon Alsop?”

“I do, or did. He’s dead now.”

The familiar hum in the courtroom began again, low and ominous. Pratt turned full around and waited until it had died out a bit, then continued. “How did you know Mr. Alsop?”

“I prosecuted him for several drug-related offenses. He was a dealer of crack cocaine, and had been convicted on that offense several times.”

“I see. When was the last time you saw him?”

“I had an interview with him on the afternoon of Tuesday, February ninth, at the jail.”

“Would you please explain to the court what this meeting was about?”

“Sure.” Feeney shifted in the witness chair. “I got a call from one of the guards at the jail that morning, saying that Mr. Alsop wanted to talk to me, that he had information that the district attorney would like to have regarding the Elaine Wager case. He wanted to trade that information for a reduced sentence, or even to get out of jail.”

“So what did you do?”

“First, ma’am, per our guidelines, I brought the information to the chief assistant D.A., Mr. Torrey. He directed me to talk to the snitch—to Mr. Alsop—get his demands, and we’d see where that led us. So I went down and talked to him. He hadn’t yet been arraigned and didn’t have a lawyer up to that point, so I was free to talk to him directly.”

Pratt looked good. There was no doubt about it. She held her head high, a tiny private smile playing with her features as she walked back to the prosecution table. There, she picked up a thin folder and turned gracefully, walking back up to the judge, handing it to him. The gallery, watching her, was silent. “Was your entire conversation with Mr. Alsop taped?”

“Yes.”

“If defense does not object”—here she turned again, charmingly—“rather than put in the whole tape, perhaps we can hear the essence of the discussion from this witness.”

Hardy was halfway to his feet to object in a big way. This was the rankest kind of hearsay, pure and simple. The witness wasn’t a police officer, so it couldn’t even come in at prelim. And even if it could, Alsop was dead. He couldn’t be cross-examined at trial, so his statement would never be admitted there. No jury would ever hear about this tape in a million years.

Pratt was just playing to the crowd, the judge, and not least the reporters—reminding them that, admissible or not, they had a statement tying Cole to the gun. There was no doubt, reasonable or otherwise, as to who had killed Elaine Wager. Pratt must have expected the objection to be made and sustained. She had all but invited Hardy to step up.

So he wouldn’t do it.

If he did the expected and put up a good, even brilliant technical defense, Cole would go down. His client would die in prison, sooner in the death chamber or later of old age. Better to change the rules. Suspend the rules of evidence. Everything would come in. Maybe Pratt and Torrey, sloppy lawyers both, would do something so gross that it would actually damage the case, or maybe—this just a glimmer—they’d let slip something Hardy might have missed.

He stood. “For the purposes of this prelim only, no objection, your honor.”

Clearly puzzled, the D.A. hesitated, then inclined her head graciously. “Thank you. Mr. Feeney?”

Hardy had heard the whole thing almost word for word a couple of days before, and there were no surprises. He’d read the transcript and listened to the tapes of Cullen’s talks with both Feeney and Ridley Banks. The story was simple and consistent enough. At the heart of it, though, lay Cullen Alsop’s credibility.

When Pratt gave him the witness, Hardy rose and approached the box. “Mr. Feeney, when you went over to the jail to meet Mr. Alsop, was it the first time you’d seen him in connection with this information he was offering to trade?”

Feeney thought for a minute, then nodded. “Yes.”

“And this was on Tuesday, February ninth, was it not?”

“Yes, it was.”

“Did Mr. Alsop tell you how he had learned of Elaine Wager’s murder?”

Behind him, Hardy heard Pratt’s objection. How was this relevant? And Hill asked him the same question.

“Obviously, your honor, if Mr. Alsop’s story is true, it strengthens the prosecution’s case immeasurably. On the other hand, Mr. Alsop was a desperate man, facing a long prison term. The mechanics of this negotiation—who approached who, who told who what, is critical to Mr. Alsop’s credibility. If the District Attorney approached him and fed him this story—”

“Your honor!” Pratt was up again behind him, moving forward. Hardy half turned to face her. “I’m outraged by this accusation. He’s implying that we have suborned perjury to strengthen an already airtight case.”

Hardy sprung the trap. “If it’s so airtight without the gun, your honor, why did Ms. Pratt bring it up? This evidence is clearly and totally inadmissible at trial. Unless counsel is prepared to admit she’s just pandering to the press, it must have relevance. And I’m entitled to explore Mr. Alsop’s credibility.”

“Your honor, it’s completely absurd.”

Hill drew himself up in his chair. His eyes had become slits. He raised a bony finger at the D.A. “Please return to your seat.” He stared her down until she obeyed, and then he continued. “Ms. Pratt, you wanted it in, you got it in. Now he can attack it.” He turned to Hardy. “You may continue.”

Hardy inclined his head. “Thank you, your honor. Let me withdraw the question about how Mr. Alsop learned of Elaine Wager’s murder for the moment and ask another.” He went back to his table. Freeman was ready for him, and handed him what he wanted, the transcript of the Ridley Banks interrogation of Cullen Alsop. Hardy had it marked as an exhibit, then returned to his witness. “Mr. Feeney, at the time of your visit to Mr. Alsop, had you read any part of Defense Exhibit A?”

“No.”

“And why was that?”

Feeney frowned. Hardy knew, of course, that the assistant D.A. hadn’t even received the transcript before his own interview took place, but if Hardy could somehow make him feel as though he’d done something wrong, he might get defensive, and that would be to the good. “Because Inspector Banks had only talked to Mr. Alsop the night before. It hadn’t even been typed yet.”

“So you hadn’t gotten around to reading it?”

Pratt objected, as Hardy knew she would. “Asked and answered.” Hill sustained her.

But Feeney wore a cloud on his brow. He was paying close attention now, on his guard. The gallery was producing a low-level hum. “Had you heard about Inspector Banks’ interrogation at all?”

Feeney threw a glance over at Pratt, then came back to Hardy. “Yes?” he answered.

“I’m asking you, Mr. Feeney. You said yes, but it sounded like a question.”

“I’m sorry. Yes. I had heard about it.”

“But you didn’t hear the tape itself?”

“No.”

“Or talked to Inspector Banks? Or read a transcript?”

Pratt slapped the table in anger. “How many times are we going to hear this question, your honor?”

Hardy made an apologetic gesture to the judge. “I want it to be clear, your honor, that Mr. Feeney didn’t know anything about the talk between Inspector Banks and Cullen Alsop, other than that it had occurred.”

“You’ve succeeded there, Mr. Hardy. Move along.”

“Mr. Feeney, didn’t you testify that you hadn’t spoken to Mr. Alsop in connection with this case until your meeting with him on Tuesday, February ninth?”

“Yes.”

“And you were the first and only D.A., to your knowledge, to have talked to him up to this time?”

“Yes.”

“And wasn’t it also your testimony that, after talking with him, you left him to discuss his information with Mr. Torrey?”

“Yes, that’s true.”

“During your discussion with Mr. Alsop on February ninth, did you offer him any deal in connection with the information he was providing?”

“No.”

“Did you suggest any deal might be in the works?”

“No.”

“No?” Hardy expressed surprise. He raised his voice over the background din. “Mr. Feeney, didn’t you in fact offer him release on his own recognizance in exchange for his testimony about this gun in the Elaine Wager case?”

Now he’d riled Feeney up good and proper, as had been his intention. “Absolutely not! I offered him nothing. We have procedures about this kind of thing and I followed them exactly. I took his information, that’s all! Then we analyzed and discussed it upstairs and came to a decision. We didn’t offer him any deal of any kind until the next day.”

“February tenth? The day he was released?”

“Absolutely.”

Hardy lifted the exhibit and handed it to the witness. “Mr. Feeney, would you be so kind as to read aloud the first few lines of this transcript after Inspector Banks’ introduction.”

It didn’t go very far. Feeney got to the words “I got a deal going here with the D.A.” and Hardy stopped him cold. “How do you explain that, Mr. Feeney? On the night before you saw Cullen Alsop, he told Inspector Banks that he already had a deal with the D.A.?” A pause. “What was that deal? Who did Mr. Alsop have it with?”

The witness tried to figure it out, then gave it up. “I can’t explain it. He must have been mistaken, or bluffing.”

Hardy knew he’d be rebuked for it, but he had to get it on the boards. “Or somebody else with the D.A. had already cut him a deal.”

Pratt exploded up again, and the gallery noise reached a level where Hill slapped his gavel and called for order. Sternly, he told Hardy that he should know better. He was to refrain from that type of editorial comment.

“I’m sorry, your honor,” he said. “But this does lead back to the question I asked earlier. I’d like now to revisit that issue if the reporter would read back the question.”

After only a small hesitation, the judge so directed, and the reporter found the spot. “Did Mr. Alsop tell you how he had learned of Elaine Wager’s murder?”

Hardy added, “Or my client’s arrest?”

Pratt’s voice behind him was firm. “Your honor, I still object. The question remains irrelevant.”

But something had sparked Hill’s curiosity. “Overruled,” he said simply, and directed the witness to answer.

Feeney, wrung out, shook his head. “I have no idea. He didn’t say.”

“Did you ask him?”

Another accusation of oversight. Feeney sighed at the burden of it. “Mr. Hardy, as you know, San Francisco has newspapers and the jail’s got a grapevine. Somebody like Elaine Wager dies, it gets around.”

“Perhaps it does. But you didn’t answer my question. Did you ask Cullen how he knew that Elaine Wager had been killed by Cole Burgess using his gun?”

“No.”