Hard Evidence (31 page)

‘I can handle a while — even a long time. Just keep me included, will you? We’re on the same side.’

‘Promise,’ he said.

‘And while you’re making promises, I need one more.’

He nodded.

‘This baby is getting itself born in four months, and trial or no trial, I want you there with me, just like with Rebecca.’

‘Hopefully not just like Rebecca.’ Rebecca had been thirty hours of grueling labor.

‘You know what I mean.’ His wife was leaning into him. She looked up. God, she was beautiful. Hardy and Frannie had come together when she’d been about five months pregnant with Rebecca — five months like now. Hardy thought it had to be the most attractive time in a woman’s life.

After this morning, the agonies had been put aside for both of them. They were moving forward. They’d gotten through a bad time. That’s what ‘for better or worse’ meant, didn’t it — that you had some worse?

He kissed her. ‘I know what you mean,’ he said.

‘So you promise?’

‘Promise.’

43

They were back home by nine-thirty and Hardy began working on his conflict-of-interest brief in his office, typing it himself. Without a law library at hand, he had to make do in a couple of places, but he had several rows of lawbooks and periodicals on his shelves, and anyway, the gist of his argument was the one he had presented orally in court.

The closest thing to a precedent against him had been in a case where an assistant district attorney had been in the midst of trying a case against a Hell’s Angel when he’d been hired away from the district attorney’s office by the firm representing the defendant. There, the judge had prohibited the representation.

And Hardy agreed that there, clearly, a conflict existed. He was sure that Pullios would try to draw a parallel to this case, but Hardy was certain that the differences here far outweighed the similarities: he had not been the counsel of record for May Shinn. Andy Fowler hadn’t been the defendant. All they had was the same victim, and the evidence against May Shinn in that earlier case was part of the public record. Hardy believed he knew nothing — officially — that a concerned layman couldn’t have discovered.

Of course, he knew about the phone records, but that wasn’t official. Also, he didn’t know whether anyone in the D.A.‘s office knew about the phone records.

He finished at one A.M. and called an all-night messenger service. The brief would be at Judge Braun’s office when she arrived at her office in the morning.

*     *     *     *     *

There was nothing to do but wait for Braun to read both briefs and make her decision.

He slept in until nine-thirty and went for his first run in weeks, the four-mile circle. His ribs were unhappy with that decision but he ran through the stitch in both sides. If he was going to do this, he would be in shape for it.

Frannie went to visit her mother-in-law down in the Sunset, and Hardy got out his black cast-iron pan and turned the heat up to high under it.

Now he cut up half an onion, threw in a couple of cloves of garlic, diced a small potato, opened the refrigerator and found two leftover porkchops and cut them up. He was humming some Dire Straits and stirring when the telephone rang.

It was Marian Braun’s clerk saying the judge had ruled in his favor.

*     *     *     *     *

He would have to play it very close. He surely didn’t want Abe to think that he’d been obstructing justice himself. Abe’s fuse was getting justifiably short around that issue.

Hardy leaned across Glitsky’s desk. ‘You’ve still got them,’ he said, ‘and by “you” I mean the prosecution. They’re still in the file.’

‘What do you know about them?’ The phone records.

‘Almost nothing.’ Not true. ‘I checked Fowler’s calls to Shinn, but I just wonder if there might have been others, if she had other clients who might have had a motive.’

Glitsky took a minute. ‘Diz, the state’s got a defendant. It’s not like I’m bored in my job. This city’s got more murders than Cabot Cove, and I’m on five of them right now. The Nash homicide, from our perspective, is a closed case.’

Hardy shuffled through some papers on Glitsky’s desk. ‘Well, you do what you want, but I’m going to clear Fowler, and this case is going back to open status. And if Fowler’s not guilty, then someone else is, right? If you found something, it might be interesting to let Pullios know where it came from. We’re talking justice here, Abe.’

‘Also lots of “ifs,” Diz. Plus lots of legwork.’

‘Isn’t that what you do, Abe? Legwork?’

‘It’d have to be on my spare time.’

‘Whatever,’ Hardy said. ‘I’ve just got a feeling I’m going to find a few stones unturned here. Locke wants to get Fowler. That message comes down, people might start thinking they see things that aren’t there.’

‘There aren’t any trails, Diz. I’ve looked.’

‘What if I find you some? What if these phone calls turn into something?’

‘What if, what if.’

‘It’s up to you,’ Hardy said.

*     *     *     *     *

It was one-thirty, and Hardy had read most of the file. He was in Visitor’s Room B, the mirror image of A. Fowler entered, upbeat. As soon as the guard had gone back outside, he stuck out his hand. ‘Congratulations,’ he said. ‘Welcome, Counselor.’

Hardy ignored the hand and cut to it. ‘Andy, I can’t represent you if you lie to me.’

‘What are you talking about?’

‘I’m talking about this file, which I’m about two-thirds of the way through.’

The euphoria of his first win faded almost as soon as he’d picked up his copy of the file from reception in the D.A.‘s office. He had taken it downstairs. Sitting on a bench in the hallway, he was immediately caught up in the grand-jury testimony of a prosecution witness named Emmet Turkel, whose name jumped out at him because he’d never heard it before.

*     *     *     *     *

This is Peter Struler, Badge Number 1134, Investigator for the District Attorney of San Francisco. The date is July 13, 1992 at 2:40 in the P.M. No case number is assigned. I am interviewing a gentleman who identifies himself as Emmet Turkel, a resident of the state of New York, with a business address at 340 W. 28th Street in Manhattan.

Q: Mr Turkel, what is your occupation?

A: I am a private investigator.

Q: In your capacity as a private investigator, have you had occasion to work for a man named Andrew Bryan Fowler?

A: Yes. Mr Fowler is a judge in San Francisco.

Q: And he retained you?

A: Correct.

Q: To do what?

A: Well, the judge was upset because a woman he knew, May Shinn, had stopped seeing him. He wanted to know why.

Q: Hadn’t she told him why?

A: Well, yes, I suppose what I mean to say is that she’d told him why, that she was seeing someone else. The judge wanted to know who it was.

Q: The person she was seeing now?

A: Yes.

Q: She didn’t tell him who it was?

A: No. She said she was seeing someone else and that they — she and Fowler — had to break up. That was his word, break up. I make that point because the relationship wasn’t exactly typical.

Q: In what way?

A: I mean, you don’t say you’re breaking up with someone if you’re being paid by them.

Q: And the judge was paying Ms Shinn?

A: That’s my understanding, yes.

Q: For sex?

A: Sex, companionship, whatever. She was his mistress.

Q: And what did you discover?

A: I discovered the man was Owen Nash.

Q: And what did you do with that discovery?

A: I reported it to my client, Judge Fowler.

Q: And when was this?

A: Oh, middle of March, thereabouts. I could give you the exact date.

Q: That’s all right. Maybe later. I have one more question. Did you find it unusual that someone from California would come to you here in New York and offer you a job out there?

A: Not really. It happens when you want to keep things closed up. I knew the judge from work I’d done for other clients over the years. I’d testified in his courtroom a couple of times, like that. So he knew to look me up. And then he didn’t want anybody in town — in San Francisco — even a P.I., to know about his relationship with Shinn. I guess he figured it would look bad. So he came to me.

Fowler crossed his hands in front of him on the table. His face was serious. ‘How did they find Turkel?’

‘I don’t know, Andy, but that’s not the issue. If I’m representing you, you’ve got to tell me everything. How do you explain this?’

Behind Turkel’s deposition testimony in the notebook were a couple of xeroxed pages from Fowler’s desk calendar. On the page for March 2, the name Owen Nash was written, circled, underlined. On May 16, a note read: O.N. — tonight. The
Eloise
.

‘I thought you didn’t know Owen Nash.’ Hardy’s tone was more a prosecutor’s. So be it. If Fowler was guilty and lying on top of it, he wanted nothing to do with it.

‘I said I’d never met him, Diz. I knew who he was.’

Hardy stood up, walked to the window, looked out at the high clouds and shook his head. ‘Not true, Andy. You said you only found out it had been Owen seeing May after he turned up dead.’

The judge didn’t seem too shaken. ‘Did I? I don’t remember.’

Hardy sat back down across the table. ‘Andy, look. You’ve got to remember. Did you tell anyone else you didn’t know Nash, hadn’t met Nash, whatever it was?’

‘I don’t know. Probably while they were questioning me about the bond. I’d have to say yes.’

‘Jesus,’ Hardy said. He was flipping through the binder. There were tabbed sections with other names he hadn’t looked at yet. He was starting to get the feeling most of them would be impugning the judge’s character. They were going to sling mud, and Andy had given them the shovel.

‘I never thought they’d dig up Turkel, Diz. And when you tell a lie, you’d better stick with it. It doesn’t look good, I know, but it doesn’t mean —’

Hardy waved him off. ‘So why’d you tell the lie in the first place?’

Fowler held up his palms. ‘For the same reason I went to New York for Turkel, Diz. It looked terrible. Embarrassing. I knew damn well how it would look if it came out.’

‘And that’s so important, isn’t it? How it looks?’

But Andy Fowler hadn’t been a judge most of his life for nothing. His jaw hardened. ‘You don’t give it all up at once, Diz. You conserve what you’ve still got.’

‘So what do you still have, Andy? You tell me.’

‘I’ve got nothing putting me on the boat. Why would I volunteer something that would tie me to Owen Nash?’

‘How about because you had to lie to evade it? Innocent people don’t lie —’

‘Don’t give me that, Diz. Of course they do. Innocent people lie all the time, and you know it.’

Hardy knew he was right. ‘All right, Andy, but you’ll agree it gives the appearance of guilt, and appearance is going to matter to the jury.’

Fowler nodded. ‘It was one consistent lie. The fact that I told it several times is explainable. I wanted to hide an embarrassing truth, but, as I tried to say, it doesn’t mean I killed anybody.’

‘Andy, we’re not talking embarrassment here anymore.’

‘I
know
, I’ve accepted that.’ The judge stared out the window, looked back to the closed door. ‘They do like to bring down the mighty, don’t they?’

‘That’s not the issue either, Andy.’

Fowler pointed a finger. ‘Don’t kid yourself, Diz. That’s the issue.’

‘Let’s get back to the facts, Andy. So where did these notes come from?’

Fowler pulled the binder over in front of him. ‘That’s my calendar, my desk at the office here.’ He thought a moment. ‘The day I retired, when the story about May’s bail came out. I stayed away from the office to let things blow over. Remember?’

Hardy remembered.

‘They must have moved awfully fast. I went in and cleaned out my stuff the next week. Somebody must have had an idea back then I’d killed Nash.’

‘Pullios,’ Hardy said. ‘Sounds like her. Get a theory and find the evidence to back it up. Somebody ought to tell her she’s doing it backward.’ Hardy pulled the binder back in front of him, getting an idea. ‘This means they went into your office without your permission, maybe without a warrant?’

Fowler shook his head. This was familiar ground for him. ‘Don’t get your hopes up, Diz. It’s probably admissible. In California employers own their offices. In my case, the City and County had a right to enter my room in the Hall of Justice at any time. That’s why I had my own desk brought in. It’s my personal property. If I lock it, they need a warrant to get inside. But anything on top of it is fair game.’ He brightened up. ‘It’s not a disaster, Diz. We can make the point I didn’t take anything with me, I had nothing to hide.’

Hardy knew the prosecution could counter that the judge was so arrogant he thought no one would dare look in his office, though it was technically public property. But he didn’t say that. ‘So, assuming it’s admitted what does it mean, Andy? “ O.N. — tonight. The
Eloise”?’

‘A guy at the club,’ he began.

‘What club?’

‘The Olympic. One of the guys said he was invited to this fundraiser on Nash’s
Eloise
, this was back around March or April sometime, I think.’

Hardy checked. ‘
May
sixteenth.’ Just about a month before the murder.

The proximity didn’t faze Fowler. ‘Okay, May. Anyway, I thought I might go along, see the famous son of a bitch.’ He shook his head. ‘I decided against it.’

‘Why?’

‘I’m not sure. A mix of things, I suppose. I thought May might be there and I didn’t think I could handle seeing her with him.’

Hardy went back to the window. Under the fluorescent glare at the table his head had started to throb again. He stood there a minute, then turned back. ‘Andy, this might offend you, but I want you to take a polygraph.’

The judge pursed his lips. The request clearly annoyed him. ‘Polygraphs don’t work, Diz. They’re inadmissible.’

‘I know that.’

The silence built. Hardy stood by the window. Fowler leaned back in his chair. ‘I told you I didn’t kill him.’

‘I know you did.’

‘And you don’t believe me?’

Hardy let his silence talk.

The judge pushed. ‘It’s that one lie, isn’t it, not knowing Nash? I told you about that. I didn’t think you or anyone else needed to know. I didn’t think it would come out.’

‘Well, it’s out now, and it’s not need-to-know anymore. I’ve got to know everything, and I’ll decide what to hold back. You want me to defend you — I do that or I do nothing.’

‘And you need a polygraph for that?’

‘To tear a page from the Pullios notebook, “One lie speaks to the defendant’s character, Your Honor.” ’

‘You think I’ll agree to take a polygraph?’

Hardy drummed his fingers a moment, looked around at the walls, the barred window. ‘You know, Andy, I’m afraid this isn’t a request.’

‘Diz, they’re inadmissible!’ Fowler repeated. He took a beat, slowing down. ‘You know
why
they’re inadmissible? Because they don’t work. They don’t prove a damn thing.’