Unlike defense attorneys who only had a duty to their clients, the job of prosecutor included not just presenting state’s evidence, but ensuring that the defendant got a fair trial. The defendant was a citizen of the state, one of the people the prosecutor was sworn to help protect.
Except Hardy knew Pullios, and this nicety was, he believed, lost on her.
Which led him to his bold, unorthodox strategy -
‘How’s jail treating you?’
Fowler shrugged. ‘It’s like a good hotel, only bad. Why?’
‘I don’t want you mistreated. This bail situation is intolerable.’
‘I am a little surprised at Marian.’
Fowler was a little surprised at Marian! At Judge Marian Bruan. Hardy couldn’t get over Andy’s seemingly ingrained sangfroid. Like Marie Antoinette apologizing to her executioner for stepping on his toe; Fowler too was unfailingly polite, refined, even self-effacing. It wore well in the world, but here in jail, in his prison garb, it was somehow at once incongruous and pitiable.
It was going to be next to impossible to choose a jury resembling this man’s peers.
‘Well, Marian notwithstanding, Judge…’
‘Better get out of that habit, Diz. Not judge, Mister Fowler. Remember, Marian made the point.’
Hardy pressed on. ‘Marian notwithstanding, Andy. I think if you can live with your situation for a while we can use it to our advantage.’
Hardy’s theory involved doing away with many of the time-honored traditions of the Superior Court, but he didn’t think he or Fowler could make any new enemies if they tried – all the available ones were taken.
His primary defense, of course, would be that the prosecution had failed to prove their case beyond a reasonable doubt. The evidence did not prove that Andy Fowler had killed Owen Nash. There was probably motive, or purported motive, but motive alone should not be enough to convict. So he had a defense, a passive defense. He wasn’t sure it would be enough.
Pullios, he was certain, was going to use all of the physical evidence she had, but she would probably build her case around a ‘consciousness of guilt’ theory by which a defendant’s actions, such as flight, resisting arrest, lying to interrogators and so on, were admissible evidence showing the defendant to be ‘conscious of guilt’ – even with little other evidence, those actions could as a matter of law be sufficient to establish guilt beyond a reasonable doubt.
There might not be a smoking gun here, Hardy knew, but Fowler’s unethical behavior while on the bench rang, sang and went siss-boom-bang with consciousness of guilt.
So he needed something else if he wanted to get Andy out of jail, and the court had steered him in the right direction. Beginning with Pullios as she proceeded backward from suspect to investigation, on through Marian Braun’s decision to deny bail, this case, he could argue, had been riddled with demonstrable prejudice against Andy Fowler. Hardy, thinking it likely they couldn’t get a fair trial on account of prosecutorial and judicial prejudice in San Francisco, had at first considered trying for a change in venue but then the other thought – the strategy – occurred to him.
In San Francisco it was likely they would get a judge hostile to Andy, possibly even to himself. They would, in fact, further antagonize both the judge and Pullios by demanding a trial immediately, as was their right. (In the Shinn matter, Pullios had wanted to proceed to trial quickly and had gotten hurt by it – now that she was slowly building what she thought was a strong case she’d be opposed to rushing it through.)
Hardy would argue that so long as his innocent client was being held without bail, it was unreasonable to ask him to suffer any delay. He was innocent until proven guilty and he was rotting in jail.
Hardy figured this approach could prevail in more ways than one. First, the presiding judge might reconsider bail. If that didn’t happen, then scheduling an immediate trial would, he hoped, maybe disconcert Pullios – he’d seen how the swirling events with May Shinn had led even Pullios to slip on some details such as checking the phone records. She also could get testy, personal, which could hurt her credibility in front of a jury. He hoped. At least if he could keep her covering her fronts he figured he would cut down on her efficiency. Her effectiveness.
Finally, in the event they went to trial with Andy still in jail, with a hostile judge, and Pullios got the conviction, Hardy could make the argument on appeal that there had been a de facto conspiracy against Fowler to obstruct justice and due process, from investigation to incarceration to trial.
Fowler heard out Hardy’s argument. ‘I’m not too thrilled with the idea of setting a mistrial in motion to win on appeal.’
‘It’s a last resort, Andy, granted. But we’d be foolish not to think of it now. It would cut Pullios’s prep time by two-thirds.’
‘And ours.’
Hardy nodded. ‘True, but the evidence isn’t going to do it, Andy. It’s who slings it better and I believe she’ll feel rushed. I know her.’
‘How about you?’
Hardy let himself grin. ‘I thrive under pressure.’
‘It gives us less time to find out who really killed him.’
Hardy had been sitting on the hard wooden chair. His ribs, black and blue and yellow under his shirt, stabbed at him as he shifted now. Grimacing, he stared across the table.
‘Are you all right?’ Fowler asked him.
‘Yeah. You know what? That’s the first thing I’ve heard you say that really sounds like you’re not guilty.’
46
EX-JUDGE ANDREW FOWLER’S
POLYGRAPH RESULTS
‘INCONCLUSIVE’ IN OWEN NASH
MURDER CASE
By Jeffrey Elliot
Chronicle Staff Writer
Former Superior Court Judge Andrew B. Fowler yesterday was not cleared in a polygraph test. The results of so-called lie detector tests are not admissible as evidence in California courts, but Fowler’s failure to clear himself was characterized by the district attorney’s office yesterday as a blow to the defense.
Fowler’s attorney, former prosecutor Dismas Hardy, put the results in a more positive light. ‘The test did not say that Judge Fowler was not telling the truth. The judge volunteered to take the test. Would he have done that if he were guilty?’
Ron Reynolds, a University of San Francisco psychology professor trained in polygraphy, and the man who administered the test, agreed with Hardy. ‘The reason polygraphs are inadmissible in the first place is because they can have a wide degree of variability, of accuracy, according to the subject’s mood, his familiarity with the testing procedure, his understanding of the questions. Judge Fowler seemed to be extremely uncomfortable with the entire process – we could not even get a good calibration on him in four passes.’
Hardy added: ‘There was no indication whatsoever that Judge Fowler was not telling the truth.’
Mr Drysdale replied: ‘There was also no indication whatsoever that the judge was not lying.’
In a related development, the Chronicle learned from a reliable courthouse source yesterday that Judge Fowler’s fingerprints have been found on the loading chamber of the murder weapon, a.25-caliber Beretta semi-automatic handgun registered to May Shinn, who had been the lover of both Owen Nash and former Judge Fowler.
The case will be scheduled for trial on Monday morning.
Hardy had to learn to hold his comments in front of the jailhouse guards, even though they might be known to the prosecution. He knew who the ‘reliable courthouse source’ must have been about the fingerprints. His good statements to the press notwithstanding, the polygraph was a blow. It was all well and good to tell Jeff Elliot that there had been nothing that showed Andy was lying, but the test, from Hardy’s perspective, had brought up his old doubts about Andy’s innocence. On the other hand, he reminded himself, Andy’s nervousness could have been real – after all, everything about his predicament in jail was strange and scary. And what about Andy’s position that his best shot at proving he didn’t kill Nash was to find out who did? But outside of Glitsky and maybe Jeff, who owed him, where did he go for finding that out? And even with them, a few tenuous leads, some serendipitous snooping by Jeff… none of these were too hopeful.