So in a true sense, the prelim was Hardy's best chance. Judge Hill was a crotchety old fart, sure enough, but he was careful and conservative. Perhaps the judge's brain was not one that ascended to the exalted heights of 'decent legal mind' as Hardy's own apparently did, but the Cadaver had a reputation for intelligence nevertheless. He was also an experienced jurist. He would be fair-minded, although after Hardy's intemperate outburst at the arraignment, there might be a hump to get over at the outset. Ironically, though, Hardy thought it even possible that the judge would cut him more slack in the courtroom precisely because he was angry with him – he wouldn't want it to seem that his personal pique affected his judgments.
In fact, he would have to give Hardy tremendous latitude. A preliminary judge would admit evidence that a trial judge would exclude as confusing or irrelevant or too time-consuming. In the name of making 'a complete record', Hardy could ask Judge Hill for almost anything and the court would at least hear it before, inevitably, holding his client over for trial. Indeed, Hardy was virtually compelled to advance every single fact and theory in support of his client, no matter how tenuous. He wasn't going to open himself up to an appeal based on incompetent counsel that the 9th Circuit would uphold in ten years.
The burden of proof was on the prosecution to show, affirmatively, that Cole Burgess had 'probably' committed the murder. Hardy's team had uncovered some alternatives with motives and perhaps means and opportunity that he might be able to argue with a straight face. The police hadn't investigated thoroughly enough. Too many questions remained unanswered. There were too many other possible suspects. The waters were too muddied by politics and self-interest.
Yet Hardy knew that, even so, the judge was going to hold Cole to answer. Using the 'reasonable man' standard, even if Hill might be persuaded that a trial jury might not in good conscience reach a verdict of guilty beyond a reasonable doubt, he would still order Cole to stand trial. These charges would never be dismissed.
Hardy more than halfway still believed that Cole had killed Elaine. If he himself were the judge in this hearing and knew everything he now knew, he would still have to say that Cole had 'probably' done it.
The conclusion was all but foregone, but in a death penalty case, Hardy had nothing to lose. And this was the moment for the battle to be joined.
One of the surprising and wonderful things about San Francisco is that summer is not a real season in the normal meaning of the word. In any given year, there were perhaps sixty days that would classify as belonging to summer by virtue of general balminess, but these would almost never occur consecutively. Four days doth not a season make.
But the necessary corollary to the lack of seasonal continuity was the fact that a random summer day or two could occur at almost any time, willy-nilly, during any month. This morning, as Hardy mounted the steps outside the Hall of Justice, it was such a day.
The smell of roasting coffee hung in the air and he stood a moment outside in the unnaturally warm sun. A small shift in the soft breeze brought an overlay of sweet, decay – the city's wholesale flower mart around the corner, he realized. A news truck pulled up and double-parked across the street. The cars behind it honked their displeasure, then pulled around in a near-unanimous flow of obscenities. Hardy lingered, knowing that once he passed inside these doors, all of this, the vibrant life of the city, would cease to exist.
He had given some last-minute instructions to David Freeman, then had driven on down alone before the rest of his 'team'. He wanted to have a few minutes with Cole before the circus began. To reassure him. To settle himself.
Then he was passing through the metal detectors and on his way across the lobby. At this time of the morning, there was no one else around. Here on the opposite wall were the names of policemen who'd given their lives in the line of duty and he stopped a moment, wondering if Ridley Banks was going to be there before long. He ascended to the second floor by the internal stairs rather than the elevator.
It wasn't usual, but Hardy had asked for and been given permission to 'dress out' his client for the hearing. To that end, Jody Burgess had gone shopping and bought Cole several pairs of slacks, some nice shirts, a couple of sports coats. In the holding cell behind Department 20, he was wearing one of the new outfits now, and Hardy was again – continually – surprised at how well the boy cleaned up. From a tactical standpoint, this was to the good, of course, although it would have meant even more if they were in front of a jury. Still, Hardy believed that there was value in a presentable appearance in the courtroom, even at a hearing. The orange inmate jumpsuits were all too familiar in the Hall of Justice, and all too associated with guilt. A bailiff admitted Hardy behind the bars of the holding cell and lawyer and client got through the amenities. Cole's eyes were clear now, his skin didn't exactly glow, but it looked healthy. And though he would never be mistaken for Demosthenes, his speech had continued to improve as well – the slur was all but gone, the rambling quality to his earlier answers a thing of the past.
To all outward appearances, Cole was an earnest young man of adequate means and a decent education. If anything, Hardy thought, he projected an ingenuous naivety, a sincere human innocence. He was sorry for everything that had happened. He was getting himself back on track. He'd do everything he could to help.
'I don't really know if there's anything more you can do right now, Cole,' Hardy told him. 'Just don't change your story from now on. That would be the best thing. Beyond that, try to react appropriately to what you hear in there, and some of it's going to be awful, I warn you. But don't overreact. And don't act.' Hardy put a hand on his shoulder. 'How are the push-ups coming along?'
'Twenty-five.' A trace of pride. 'Four times a day. Thirty sit-ups, too. Four sets.'
'And the pills?'
This wasn't as happy a topic, but Cole kept his head up. 'Getting there, slow but steady, though that's not exactly been my style.'
'Styles come and go,' Hardy said. 'Check out your clothes. A couple of weeks ago they weren't your style either. Now you look like you were born in them.'
'That's outside,' Cole said. 'Inside's another thing.'
'So what's inside?' Hardy asked.
A look of quiet desperation. 'The feeling that I'm not going to beat it. It's just got too good a grip. And that's not just a style.'
'You're right,' Hardy said. 'That's not a style. It's a choice.' He flashed him the hard grin and squeezed Cole's shoulder. 'You know what Patton said, don't you? "You're not beaten until you admit it. Hence, don't."'
Hardy saw it in Cole's eyes – the remark had hit home. He indicated the courtroom through the adjoining door. Noises had begun to leak through as the time for the session drew nearer. He gave the boy a last pat on the shoulder. 'Keep your chin up, Cole. See you out there.'
He had to walk around Torrey at the prosecution table, and this time there was no repartee. The Chief Assistant was talking to one of his own acolytes, a young woman, and pointedly ignored Hardy as he crossed the courtroom in front of him.
At the defense table, Freeman had arranged some folders and a couple of yellow legal pads in preparation for the first shots. On the other side of the bar rail, the gallery was filled to overflowing, and the crowd buzzed expectantly. Missing, though, was the almost palpable sense of anger and polarity that had marked the arraignment. Hardy attributed this partly to the passage of time, but mostly to David Freeman and Clarence Jackman, who between them had somehow gotten the word out to the various interested communities that this was not a racial crime, nor necessarily as clear a case as it had first appeared.