The purpose of a preliminary hearing is to see whether the prosecutor can establish probable cause to bring the defendant to trial — to “hold him to answer,” in the arcane language of the law. For the defense, however, the prelim is an opportunity to preview the prosecution’s evidence so as to prepare to refute it at trial. Consequently, the prosecutor puts on as little evidence as possible to show probable cause, holding what he can in reserve.
The transcripts of Jim’s prelim consisted of two slender volumes. The events leading up to Brian Fox’s death were narrated by two witnesses who had also worked at the restaurant. The first was a waiter named Josh Mandel. I set my cup down and began reading:
Frank Pisano, D.A.: At some point prior to Brian Fox’s death, did you have a conversation with Brian about Jim Pears?
Mrs. Sharon Hart, P.D.: Objection, calls for hearsay.
Pisano: This statement is admissible under section 1350 of the Evidence Code. We filed some papers -
The Court: I have them here.
Pisano: Yes, Your Honor. Uh, we expect Mr. Mandel will testify that he was told by Brian Fox that he — Brian — saw Jim Pears engaging in sex with a man. That’s relevant to the issues here and Brian Fox is certainly unavailable, thanks to Mr. Pears.
The Court: Mrs. Hart?
Hart: There’re a lot of conditions here that have to be satisfied before 1350 applies. Like — for example, the statement has to have been written down or tape-recorded.
The Court: Where is that? Oh, all right, I see it. What about that, Mr. Pisano?
Pisano: It also says it’s okay if the statement is made under circumstances that indicate its trustworthiness. That’s an alternative to a taped or written statement.
Hart: No it’s not. That’s in addition to.
The Court: Well, I tend to agree with the prosecutor on that. I’m going to let the statement in.
Hart: Defense objects.
The Court: Understood. The objection’s overruled.
Pisano: Do you remember the question, Josh?
Josh Mandeclass="underline" Yeah. Brian told me he had proof that Jim was gay.
Pisano: Do you mean homosexual?
Hart: Objection, leading.
The Court. We’re wasting time. Overruled. Answer.
Mandeclass="underline" Yes.
Pisano: Did he tell you what this proof was?
Mandeclass="underline" Yes.
Pisano: What was it?
Mandeclass="underline" He said he saw Jim having sex with some guy in a car out in the restaurant parking lot.
Pisano: How long before Brian was killed did you have this conversation with him?
Mandeclass="underline" A couple of weeks.
Pisano: Now, did you ever overhear a conversation between Brian and Jim Pears regarding this incident in the parking lot?
Mandeclass="underline" Well, I think. Yeah. They were talking about it.
Pisano: What was said?
Hart: Objection, hearsay.
Pisano: This is an admission, Your Honor.
The Court: Let’s hear it. Answer the question, Mr. Mandel.
Mandeclass="underline" Brian was asking Jim how would he like his mother to know that he was- (Inaudible.)
Pisano: You’ll have to speak up, Josh.
Mandeclass="underline" A cocksucker. I’m sorry, Your Honor, but that’s what he said.
The Court: I’ve heard worse things in this court, Mr. Mandel. Next question, counsel.
Pisano: Okay. Did Jim Pears say anything in response?
Mandeclass="underline" Yeah.
Pisano: What?
Mandeclass="underline" He said something like, ‘I’ll kill you before that happens.’
Pisano: And how soon before Brian’s murder did this conversation take place?
Mandeclass="underline" It was two days.
(Cross-examination by Mrs. Hart)
Hart: Now you say that Brian Fox told you he saw Jim having sex with a man that night, is that right?
Mandeclass="underline" Yes.
Hart: This was in a private car in the parking lot at night?
Mandeclass="underline" Yeah, I guess.
Hart: Did Brian explain how he happened to be there?
Mandeclass="underline" Not to me.
Hart: Well, isn’t it true that Brian Fox followed Jim and then snuck up on him?
Pisano: The People will stipulate that Brian was not asked to join in on the festivities.
The Court: Why don’t we let the witness answer, Mr. Pisano?
Mandeclass="underline" I don’t know.
Hart: Now, Mr. Mandel, what words did Brian use to describe what he had seen?
Mandeclass="underline" I don’t remember, exactly.
Hart: Well, did he say he’d seen Jim having sex or making love?
Mandeclass="underline" No. It was more like he saw him getting a blow job.
Hart: Okay. Did you ever hear Brian Fox call Jim a faggot?
Pisano: Objection, irrelevant.
The Court: Overruled. Answer the question.
Mandeclass="underline" Yes.
Hart: More than once?
Mandeclass="underline" Yes.
Hart: Did you ever hear Brian Fox call Jim a queer?
Mandeclass="underline" Yes.
Hart: More than once?
Mandeclass="underline" Yes.
Hart: How many times did you hear Brian Fox call Jim either a faggot or a queer?
Mandeclass="underline" I don’t remember.
Hart: Isn’t it true that you don’t remember because that was how Brian normally referred to Jim?
Mandeclass="underline" He called him that a lot.
Hart: Around other people?
Mandeclass="underline" Yes.
Hart: Now, Mr. Mandel, isn’t it true that, in addition to being a waiter at the Yellowtail, you are also a manager?
Mandeclass="underline" Manager-trainee.
Hart: And isn’t part of your job to supervise the busboys on the shifts that you manage?
Mandeclass="underline" Yes.
Hart: And did you ever manage a shift where Brian and Jim were working?
Mandeclass="underline" Yeah.
Hart: And during one of those shifts did you hear Brian call Jim a queer or a faggot?
Mandeclass="underline" I’m not sure. Maybe.
Hart: But you never stopped Brian, did you?
Mandeclass="underline" I don’t remember.
Hart: In fact, isn’t it true that you also called Jim a faggot once?
Mandeclass="underline" I don’t remember.
Hart: Isn’t it true that you told Jim to start acting like a man?
Mandeclass="underline" That was just because he was letting Brian get to him.
Hart: Then shouldn’t you have talked to Brian?
Mandeclass="underline" Yeah. (Inaudible) I’m sorry, Jim.
Hart: I have nothing further, Your Honor.
(Examination by Mr. Pisano of Andrea Lew, a cocktail waitress at the Yellowtail.)
Pisano: Who was working at the Yellowtail between eleven- thirty p.m. and midnight on the night Brian was killed?
Lew: It was just me and Frank — that’s the bartender — and Jim was the busboy.
Pisano: Besides the bar was any other part of the restaurant open?
Lew: No, the kitchen closes at ten.
Pisano: How many people were in the bar at that time?
Lew: Not many. It was Monday, you know. Slow night. Maybe a dozen.
Pisano: Between eleven-thirty and midnight did you see anyone enter the bar?
Lew: Just Brian.
Pisano: Now, would you have noticed if anyone else had come in?
Lew: Well, yeah, because you have to cross in front of the bar to get to the dining rooms or the kitchen.
Pisano: Was Jim Pears in the bar when Brian came in?
Lew: Yes.
Pisano: Did he see Brian?
Mrs. Hart: Objection, calls for speculation.
The Court: Sustained.
Pisano: Okay. Was Brian working that night?
Lew: No, just Jim.
Pisano: Do you know what he was doing there?
Lew: (Shakes head.)
Pisano: You’re going to have to answer yes or no for the reporter.
Lew: No.
Pisano: Did you see Brian leave the bar at some point? Lew: No, but he was gone.
Pisano: Did you see Jim Pears leave the bar?
Lew: Yes.
Pisano: When was this?
Lew: Maybe around midnight.