The Motive (43 page)

It was unconscionable—he ought to go in to Braun and get a mistrial declared today and then bow out entirely. In
waves of self-loathing, he realized that he’d failed Catherine and even failed himself. He was unprepared. She would go down.

But Catherine was still on the nomination. “That’s what they were fighting about, you know. The nomination.”

“I’m sorry,” Hardy said. “Who was fighting?”

“Missy and Paul.”

“When?” Hardy, all but babbling.

“Dismas. That day. Don’t you remember I said they’d been arguing?” Though it didn’t eradicate the disgust Hardy was feeling with himself, he did realize that he’d reread this bit of information, the arguing, while reviewing his binders last night. Though he hadn’t recognized its relevance, if any. And didn’t even now.

But Catherine was going on. “That’s why Missy wasn’t there when I was. She’d left all upset that morning.”

“Why was she upset?”

“Because she didn’t want Paul to go for the nomination.”

“Why not?”

“I think mostly it was the house. She’d just spent over a year redecorating the place. The thought of moving to Washington, D.C.? I don’t really blame her.”

“Is that what Paul told you?”

“What? That she didn’t want to move? No. He said she was paranoid about the government and their background check, which he thought was ridiculous. She didn’t even want them to start. She thought they’d be prejudiced somehow because she was foreign. She just didn’t want to be involved. It scared her, he said.”

“But Paul wanted it? The nomination.”

“Did he want it? Did Paul Hanover want national recognition for a lifetime of public and private service? Does the pope shit in the woods? Of course he wanted it. Missy would come around, he said. They weren’t going to break up over it. They loved each other. She’d see there wouldn’t be anything to worry about. He told her that morning that he was going ahead anyway, and that’s when they’d fought and she’d walked out.”

“And then come back,” Hardy said, “in time to get shot.”

This sobered Catherine right up. “I know. Great timing, huh?”

In the end, though, Hardy thought with some relief, this at least was an example of a fact to be filed under interesting, even fascinating, but irrelevant. Paul and Missy’s argument on the day of their deaths didn’t lead either one of them to kill the other. Someone else had killed them both. Which left Hardy only with the ring, and the question of Theresa Hanover’s alibi for the night of the fire.

But the bailiff now knocked at the door and announced that it was time to go over to the Hall. Hardy, in a dangerous emotional state in any event, had to bite his tongue to keep from telling the bailiff not to cuff his client, that she didn’t need that indignity.

But he knew that this would have been wasted breath.

The cuffs clicked into place.

M
arian Braun was a Superior Court judge when Barry Bonds was still playing baseball for Serra High School down in San Mateo. Her chambers reflected that longevity with an unusual sense of homeyness. She’d had built-in wooden bookshelves installed all across the back wall, put down a couple of nice large rugs to cover the institutional linoleum floor, hung several pleasant California landscapes here and there. Drapes under sconces softened the two window areas, and the upholstered furniture for her visitors marked a significant departure from the typical judge’s chamber setting of a few metal chairs in front of an often imposing and distancing desk.

But the comfortable physical setting wasn’t making anybody in the room more relaxed at the moment. To no one’s surprise, Braun had summoned Cuneo and counsel for both sides here as soon as her bailiff told her they were all in the courtroom. At the same time, she’d had the bailiffs bring in a copy of the morning’s
Chronicle
and told them to instruct the jurors not to speak with each other, even casually, until she came out into open court.

Now Hardy leaned against the bookshelf, hands in his pockets, and Chris Rosen held up the wall next to him. Jan Saunders had pulled in her portable chair from the courtroom and was setting up her machine on the coffee table in front of the couch. Braun, silent as a stone Buddha, sat at her desk sipping coffee and pointedly ignoring everyone’s entrance as she turned the pages of the morning’s paper. She was waiting for Saunders to be ready to record the discussion, and didn’t seem inclined to make small talk to cut the tension until that moment arrived. In fact, to Hardy, the gathering tension seemed to be her point.

Saunders hit a few keys, then cleared her throat—a pre-arranged signal—and Braun glanced at her, took a sip of coffee, put down her newspaper. She looked first at Rosen, then over to Hardy, then over to Cuneo and finally back to the prosecutor. “Mr. Rosen, do you remember a couple of weeks ago when we were starting with jury selection and I said I didn’t want anybody talking to the press about this case?”

Rosen pried himself off the wall into a respectful stance. “Yes, Your Honor. Of course.”

“Here in the legal world, we call that a gag order. Does that phrase ring a bell?”

“Yes, Your Honor.”

“And since Inspector Cuneo has been in the courtroom, sitting next to you at the prosecution table since the formal start of these proceedings, do you think it’s unreasonable of me to assume that he is part of the prosecutorial team? And that therefore the gag order would apply to him as well?”

“Yes, Your Honor, but…”

Braun held up a hand, stopping his reply, and turned to Cuneo. “Inspector,” she began, “what do you have to say for yourself?”

But Rosen rushed to his inspector’s protection before Cuneo could say a word. “I don’t think Inspector Cuneo quite recognized the sensational nature of his comments, Your Honor. Or how they would be taken.”

“Oh? Since when does a gag order mean say whatever you want as long as it’s not sensational? And just by the way…” She turned to Cuneo. “Inspector, you didn’t realize that naming the mayor as a co-conspirator to obstruct justice in the case before this court would hit the news cycle?”

Cuneo had both hands in his pockets, patting his legs inside them. “Judge,” he said, “I’m sorry if it’s caused a problem, but nobody ever told me not to talk to reporters.”

“No, but I’ll wager that no one ever told you to wear your trousers here to court today either, and yet you did. How long have you been a cop? Two weeks? You were sitting there when I imposed the gag order. Did you figure I was talking to myself? The gag order told you not to talk to reporters about this trial while it was going on.”

“But Judge…”

“How about ‘Your Honor’?”

“Okay, Your Honor. But in this case, there’s reporters all over this trial.”

“Thank you,” Braun said, “I’ve noticed. Which was the point of the order.” She shifted her gaze to the prosecutor, came back to Cuneo, shook her head.

Into the pause, Rosen ventured an excuse. “You didn’t formally call it a gag order at the time, Your Honor, if you recall, and I’m sure Mr. Hardy would agree with me. You said in the interests of fairness, you’d like to see us refrain from discussing the case with the media.”

Braun stared for a second in frank disbelief. “That’s what a gag order
is
, Mr. Rosen. And in any case, as soon as we go back outside, assuming we proceed with this trial at all, which is not at all certain, I’m issuing a formal gag order and sequestering the jury, which I’d very much hoped to avoid.”

Shifting at her desk, she brought her steely gaze to Hardy. “If we hear what I expect we will hear, Mr. Hardy, I’m assuming you’re going to request a mistrial. Perhaps review your change-of-venue motion.”

Like Rosen, Hardy came to attention when the judge addressed him. “That was my intention, yes, Your Honor. Originally.”

Braun narrowed her eyes, a question.

“But my client is opposed to simply beginning again. She doesn’t want to spend more time in jail.”

Cocking her head, Braun frowned. “Is that some kind of a joke?”

“No, Your Honor.”

“Did you explain to her the prejudicial nature of Inspector Cuneo’s remarks? How they could affect the jury, even if I query each of them individually, which I will do, and they deny they read the papers?”

“I think I did. Yes, Your Honor.”

The judge couldn’t seem to get her mind wrapped around Catherine’s objection. “Does she know what prejudicial means? That, to some perhaps quantifiable degree, these comments make it
more
likely that she’ll spend the rest of her life, and not just a few more months, in jail?”

“Yes, Your Honor.”

“And yet she still might want to proceed?”

“It depends, Your Honor.”

Before things went much further, Braun wanted to poll the jury, see where they stood. Out in the courtroom, Hardy learned that he was one off on his estimate of the jury’s literacy—not three, but four of them had read the article. One claimed to have read only the headline. A second said he’d only read a couple of lines. Incredibly, two others admitted that they’d read half of the article before realizing that it was about this case. No one admitted talking to anyone else about it. There were four potentially excludable jurors. And only three alternates.

Now they were back in chambers, Braun talking. “So it’s down to you, Mr. Hardy. What are you asking the court to do?”

“We’re asking for a mistrial, Your Honor, with a finding of deliberate prosecutorial misconduct that will bar any further trial because of double jeopardy.”

Rosen exploded in true wrath. “
Get out of here!
” Turning to Hardy, “That’s the most outrageous…”

“
Mr. Rosen!
” The judge’s voice cracked in the room. “
You will address the court only! Any more of this arguing with opposing counsel and I’ll hold you in contempt.
” She pointed a shaking index finger at him. “And don’t think I won’t.” Without waiting for any response from Rosen, she whip-sawed back to Hardy. “If memory serves, that provision only applies if the prosecution did this on purpose to cause a mistrial. Is that your contention?”

“Yes, Your Honor.” Hardy knew what she was going to ask next—why would
Rosen
deliberately screw up the case at this point so he could get a mistrial?—and he rushed ahead to tell her. “Mr. Rosen obviously wasn’t sufficiently prepared. The real story of Inspector Cuneo’s sexual advances to my client, which is going to have a huge impact on the jury, comes out in my cross-examination today. And suddenly his case, weak to begin with…”

But Rosen interrupted. “Your Honor, this is absurd. I’ve got eyewitnesses.”

Braun nodded with some impatience. “Which is the main reason why I denied Mr. Hardy’s nine-nine-five. Don’t get me started.” But she wanted to see where Hardy was going with this, and turned back to him. “And so because Mr. Rosen’s case may become potentially more difficult, you contend he’s trying to…?”

“To get
me
to ask for a mistrial. Yes, Your Honor.”

“And why would he want to do that? So he can start again fresh, more aware of your strategy? That’s a reach, Counselor.”

“That’s not exactly what I’m saying, Your Honor. He wants a mistrial because he can’t take the chance of a not guilty verdict in a case this big. Not if he wants to be DA someday.”

“
My God, Your Honor! I don’t believe…
”

Braun held up her hand, stopping Rosen without saying a word. “Mr. Hardy?”

“What I’m proposing,” Hardy said, “is a hearing on the issue. The court needs to know who talked to whom and when. Particularly Mr. Rosen and Inspector Cuneo, but possibly other witnesses and maybe some reporters as well. At the end of that hearing, defense may ask for a mistrial, but I don’t want to do that until I’ve heard the evidence on prosecutorial misconduct.”

“And what would this misconduct be specifically?”

“Breaking the gag order, Your Honor, and perjury.”

Rosen was beyond fury, Cuneo looked ready to take a swing at Hardy. Braun hated the whole thing.

Hardy kept talking. “There is no mention anywhere in the record going all the way back to Inspector Cuneo’s grand jury testimony—not in any of his reports, nowhere—that my client made any inappropriate advances to him. I think the court needs to see whether he mentioned these alleged advances to any of his colleagues, or anyone else, previous to the other day, or whether, perhaps after a discussion with Mr. Rosen, he just made up a new story. And then got encouraged to speak to the media to further dis-credit Deputy Chief Glitsky…”