Pullios popped back in. ‘Objection, Your Honor.’
‘No, I’ll overrule that, Counselor. That’s a fact.’
Hardy thanked the judge. ‘That man,’ Hardy repeated, still pointing, ‘will be the first to admit he made a grievous error of judgment. From that one mistake he was drawn to others, perhaps more serious, until at last he had sacrificed his good name, his standing in the community, the respect of his peers.’
He found himself standing very close to the rail separating the jurors from the courtroom.
‘Now who are Andy Fowler’s peers? They are the professional prosecutors, the policemen, the other judges in this building. They are the very people who have brought this murder indictment against him.’
‘Your Honor!’ Pullios was on her feet. ‘Mr Hardy is impugning the entire grand-jury process.’
Chomorro seemed to agree, but also seemed uncertain. ‘Is there relevance to some evidence here, Counselor?’
‘Your Honor, the defense will present direct and incontrovertible evidence – eyewitness testimony from members of the district attorney’s own staff and from the San Francisco police department – that there was nothing approaching an impartial investigation leading to the indictment of Mr Fowler. The district attorney’s office concocted a theory out of whole cloth and proceeded to fill in whatever blanks they needed to get an indictment.’
There – Hardy had gotten it out, and Chomorro could overrule him if he wanted to.
Pullios took over. ‘Do we call this the paranoid defense, Your Honor? Someone was out to get Mr Fowler, so we got together and accused him of murder?’
‘Mr Hardy?’
‘It speaks to the interpretation of evidence.’
‘Interpretation of evidence is in the hands of the jury.’
Hardy nodded. ‘My point exactly, Your Honor.’
But Pullios wasn’t ready to quit. ‘The evidence must speak for itself, Your Honor.’
Chomorro banged his gavel. ‘All right, all right. Hold on a minute here.’
The courtroom hung in silence. By its absence, Hardy for the first time noticed the ticking of the court reporter’s keys. Finally Chomorro spoke up. ‘I’ll overrule Ms Pullios’s objection. You may proceed, Mr Hardy.’
Hardy took a deep breath and let it out slowly. He didn’t want to betray that he was sighing in relief. He’d also blanked on where he was going. He walked to his table and checked his outline.
‘You’ve already heard the term “consciousness of guilt” in the people’s opening statement. And I don’t dispute that there are certain actions that would seem to admit guilt. These would include such behavior as flight to avoid prosecution, resisting arrest and so on. But we’re on very slippery ground here when we’re using consciousness of guilt – a very general legal area – as a catchall for a specific crime.’
Hardy went on to describe an example of a situation where someone had resisted arrest and fled from arresting officers. If there had been a murder on that block, would that person’s actions in any way prove he had been involved in the murder? Of course not. Perhaps the person had stolen a car. Maybe he had an outstanding arrest warrant for jaywalking. Maybe he was a member of a minority group in a neighborhood where minorities were routinely harassed. ‘The point,’ Hardy said, ‘is that our person here can be guilty of something, and can act in what we would recognize as a guilty manner. But his actions don’t automatically make him guilty of, or a suspect in, any specific crime.’
He thought he’d nailed that point. ‘Now we have already admitted that Andy Fowler felt guilty. We’ll go a step further – he acted in a guilty manner. The prosecution is telling you that they will prove beyond a reasonable doubt that Mr Fowler’s behavior allows for no other explanation for this behavior except that he committed murder. We don’t believe they can do this. We don’t believe that you will let them. Because it isn’t true.’
He took another three or four seconds to look up and down the jury box. Then he thanked them and sat down.
51
Fowler told his daughter that Chomorro had obviously talked to some of his lawyer friends at lunch. Which was why he had called the conference in his chambers before they began with the testimony of Coroner John Strout in the afternoon.
‘What’s it about?’ Jane asked her father.
She was beside him at the defense table, which was allowed when court wasn’t in session. Behind them in the gallery the crowd was gathering again after the lunch recess.
‘Chomorro’s going over some rules,’ he said. ‘This is his first murder trial, remember. He doesn’t want to foul it up and have it declared a mistrial.’
‘How could he do that?’
Fowler patted his daughter’s hand. ‘See? All these years I guess I’ve made it look easy. You’re not supposed to argue law during opening statements, for example. You can say what you’re going to be showing, but you’re not supposed to explain it, which – you may have noticed -Ms Pullios did. Also, all this objecting and interrupting. It’s already getting to be a little personal in what’s supposed to be an impartial process.’
‘Didn’t Dismas want that?’
Fowler nodded. ‘Yes, he did. And to that extent he’s doing fine, but Chomorro – I’d bet anything – has got some ringers back there.’ He motioned to the gallery. ‘A couple of clerks taking notes. A trial’s supposed to be about evidence, not personalities. If it gets too bitter it jeopardizes the trial.’
‘Do we want that?’
‘No, Jane. I don’t want a mistrial. I want a fair trial. Dismas wants one, too, although he also wants to fight, which is good up to a certain point. But if I’m going to have any life after this we’ve got to win fairly, so everybody knows I’m innocent. Even Diz.’
‘Daddy, he doesn’t think you did it. He wouldn’t be defending you.’
Fowler wasn’t so sure. Hardy’s own uncertainties hadn’t been lost on him. ‘I’ve known him a long time, Jane, longer than you have, remember. He’s willing enough to pretend to believe – even to himself – that I’m innocent. But I wonder if it isn’t more a case of his feeling the evidence doesn’t prove I did it and -’
‘Well, that’s the same thing.’
Fowler shook his head. ‘No, it isn’t, Jane. It’s not even close.’
Hardy had read Dr John Strout’s grand-jury testimony twenty times. He’d memorized the autopsy report. He’d paid another doctor, a friend of Pico’s named Walter Beckman, to spend a night talking about medical issues, and he’d come to the conclusion that Strout’s testimony couldn’t damage Andy Fowler. The coroner had to be called to establish the fact of the death, the means of death, but essentially his testimony would be neutral, a foundation for what followed.
Which, he soon discovered, was selling Pullios short, and he should have known better.
Strout, tall and lanky, pushed back the witness chair so he could fit his long legs into the space. He appeared to be the most relaxed person in the courtroom, which was to be expected. He had given testimony perhaps an average of once a week for the past twelve years. He sat straight, his elbows on the arms of the chair.
Pullios and Hardy had both been instructed not to come close to witnesses when they were interrogating them, so Pullios stood where she had delivered her opening statement, about in the center of a circle that encompassed Hardy, the jury, Strout and Chomorro.
After leading the doctor through his qualifications, which were not in dispute, she asked him to describe the wounds he had discovered in Owen Nash’s body.
‘Well,’ he drawled, ‘there were two wounds, both created by.25-ACP-caliber slugs. The lower wound, not in itself fatal, entered the body in the pubic area -’