‘The coroner has issued an unequivocal verdict of death by suicide for Ms Shinn. The police department has already determined from their investigations that there is no evidence linking Mr Fowler to Ms Shinn’s death. In light of that I instruct you to disregard any rumors or opinions you might come across that purport to establish that link – there is no factual basis for it.’
Chomorro stopped again. Hardy patted the back of Fowler’s hand and got a wan smile in return.
The judge took another sip of water. ‘Now, moving along, counsel for both parties here have stipulated to the facts Ms Shinn was to present in her testimony.’ Chomorro stopped reading and made eye contact with the jury. ‘You may want to take notes, as the facts you are about to hear may possibly not make the impression they would if you heard them recited by a witness on the stand.’ He adjusted his glasses and again looked down at the desk in front of him. ‘One, you are to take as an established fact that Ms Shinn spoke to Mr Fowler in March and told him that she had removed the murder weapon, People’s Exhibit One, from her apartment and kept it stored in the desk next to Mr Nash’s bed aboard the Eloise.’
From the reaction, the jury understood the significance of this fact. Even without ornamentation, it was a compelling point, but Hardy had decided there was nothing he could do about it. Those points were on the board; Hardy put them behind him. He had fought for the phrasing of the rest of the stipulation and sat forward in his chair waiting for it.
‘Two,’ Chomorro continued, ‘it is also a fact that, during that same conversation, Mr Fowler asked Ms Shinn if she would consider reestablishing their relationship – Fowler’s and Shinn’s – if she stopped seeing Mr Nash.’
Hardy let out the breath he’d been holding. That was better than ‘if something happened to Mr Nash.’
Chomorro kept reading. ‘Ms Shinn answered that she did not know and could not say. She did say she loved Owen Nash and that Mr Fowler had been someone she felt very close to.’
Hardy winced inwardly at the emphasis.
Pullios, speaking in a relaxed tone, was nonetheless teeing off on Gary Smythe. Fowler’s broker and sometimes golf partner was clearly reluctant to give what he thought was testimony damaging to his friend. Ironically, this worked in Pullios’s favor. If he were openly excoriating Fowler the jury might have reason to think there was a grudge against Andy, something personal he was paying back and enjoying. But to the contrary, every word was wrung out of him, which provided strong credibility to what he said.
Pullios was enjoying herself, as well she might, Hardy thought, after the events that had begun with Andy showing up late in the courtroom, May’s death, the sequestering of the jury, Chomorro’s admonition to the jury this morning and finally the stipulations about May’s testimony.
Freeman may have told him the previous night that he thought he still could win it, and with the new questions he had for Farris and the Marina guards Hardy was the most convinced he’d been of Fowler’s innocence, but right now he knew he was losing the jury while Pullios had the floor.
‘Mr Smythe, I show you here the May sixteenth page from the desk calendar of the defendant, showing the initials “O.N.” and the word “Eloise.” She entered the page into evidence as People’s Exhibit 18, then went back to the witness. ’On or about May sixteenth, did you have a discussion with Mr Fowler about Mr Nash?‘
‘Yes.’ Smythe didn’t like it.
‘Tell us the substance of that discussion.’
‘Well, it wasn’t much…’
Chomorro leaned over from the bench. ‘Try not to characterize what it was, Mr Smythe. Just tell us what was said.’
Smythe nodded, was silent for a minute, then tried again. ‘Judge Fowler and I have been active in fund-raising for a long time. I mentioned to him I had received an invitation to a charity event that Owen Nash was sponsoring aboard his boat and he asked me if I could get him an invitation. We could double-team him.’
‘And how did you respond?’
‘I thought it was a good idea.’
‘And you got him an invitation?’
‘Yes.’
‘So did both of you go?’
‘No. As it turned out, neither of us did. I became sick and Andy decided not to.’
‘Did he say why he so decided, after going out of his way to get the invitation?’
Smythe looked at Fowler, then down at his lap. ‘He was having a hard time back then, he didn’t feel like going out.’
‘A hard time? Personally?’
Hardy got up, objecting, and was sustained.
‘So what happened to your fund-raising plans with Mr Nash?’
‘You have to understand, these things go on continuously. They’re fluid in their timing. But I was a little disappointed that neither Andy – Judge Fowler – that neither of us had taken advantage of such an opportunity, and I said as much to Andy.’ He paused, looking again at his friend at the defense table. ‘Andy said he had other reasons to talk with Owen Nash anyway and he promised he’d get to him within a month.’
Pullios hung on him for a beat, then turned to the jury. ‘He promised he’d get to him within a month,’ she repeated. Then, to Hardy, ‘Your witness.’
‘Mr Smythe,’ Hardy said. ‘To your knowledge, did Mr Fowler ever meet Mr Nash face to face?’
‘No.’
‘Did Mr Fowler ever tell you he had made an appointment with Mr Nash to discuss anything, aboard the Eloise or anywhere else?’
‘No, he did not.’
‘Did you have occasion to talk to Mr Fowler between May sixteenth and June twentieth, the day Owen Nash died?’
‘Oh, yes. We talked almost every day.’
‘You talked almost every day. Do you recall if Mr Nash’s name came up between May sixteenth and June twentieth?’
‘Well, the one discussion I told Ms Pullios about.’
‘And after that?’
‘No.’
‘No, you don’t recall, or no, it didn’t come up?’
‘I don’t recall it coming up.’
‘If he had made an appointment with Mr Nash, don’t you think he would have told you -?’
‘Objection!’ Pullios said. ‘Speculation.’
It was sustained as Hardy had known it would be, but that was okay with him.
He continued. ‘I’d like to clarify this. On May sixteenth Mr Fowler – despite having an invitation – did not go to the Eloise?’
‘That’s true.’
‘At no time during the following month did he mention either making an appointment with Owen Nash or going to the Eloise?’
‘Right.’
‘So if I may summarize the facts elicited in your testimony, Mr Smythe, to your personal knowledge, Mr Fowler never met Mr Nash and never boarded the Eloise.’
‘That’s correct. Not to my knowledge.’
‘Is it a fact, Mr Smythe, that Mr Fowler promised, as you said, that he would “get to” Owen Nash within a month of May sixteenth?’
Smythe frowned. ‘Yes, he did say that.’
‘So the fact is that he told you he was going to do it. It is not a fact that he actually did it? In fact, you are aware of no evidence at all that he did do it. Isn’t that true?’
‘Yes, that’s correct.’
Pullios had narrowed down her witness list to David Freeman and Maury Carter, the bail bondsman. After lunch she was obviously going to close things up for the prosecution with the character issue, leaving the jury with the impression that Andy’s consciousness of his guilt over the murder was the only possible explanation for his actions. Chomorro had made it clear he was going to allow all the testimony in this vein.
Hardy looked forward to having Freeman on the stand. Although his testimony would get into evidence the bare facts of Andy’s unethical behavior, as a lifetime defense lawyer he would be instinctively opposed to Pullios. Hardy had, of course, talked with him several times during the two months he had been preparing for the trial and in those discussions Freeman had seemed genuinely distressed by his upcoming role as a prosecution witness.