Hardy: The Suspect Part 27

" 'Kym never said,' " Gina repeated. "You never asked." A long and disappointed sigh.

"I thought she was in Portland," Stuart said.

"Right. That's what you thought. What do you think now?"

"I think I'm a f.u.c.king idiot. It never occurred to me she might be down here. Where did she . . . ?" He ran his hand up through his hair. "Oh, never mind. G.o.d." With a hangdog look he said, "I'm killing us here today, aren't I? First the cabin pictures, now this."

Gina was frustrated and furious with her client's consistent failure to understand his own plight, but she wasn't about to beat him up again over it. He seemed to be doing a good job of that on himself. She simply shrugged. "You didn't know," she said. "How can you help that?"

"I could have thought about it. About all these things. I don't know what else there might be, but suddenly I'm afraid I haven't given it all to you. Which puts you in an awful place."

She wanted to say that wherever it put her, it was better than where he was. Instead, she forced a nonchalant smile. "I'll live. And tell you what," she said. "If anything new comes to you, don't worry about repeating yourself. I'll deal with the redundancies. How's that?"

Enough with the recriminations and the hand-holding, though, she thought. "Meanwhile," Gina went on, "it would be good to know what Kym talked to Caryn about. If she comes by to see you again maybe you could ask her? Or ... hey-"

With a little flourish, she handed Stuart her cell phone and after a slight hesitation, he punched in his daughter's number. She wasn't picking up, and he said, "Kym, it's me. Gina tells me you came by to see me this morning and they wouldn't let you in. Maybe you could be in court today-Department 12, nine thirty. And then we could have a visit after that. If you need to get a message to me, it's okay to go through Gina. I just want to know that you're all right." He closed the phone and handed it back. "I didn't want to mention the calls to Caryn until I'm with her."

"Probably a good idea."

For a brief second, there was eye contact between them, but both attorney and client looked away. The unspoken thought that hovered in the air was too dangerous to voice: there was every chance that last Sunday, Kymberly had finally told her controlling mother that she wasn't going to school. Perhaps she'd come to the house and told her in person. It would not have been pleasant. In any event, Kymberly would know considerably more about some of her mother's thoughts and actions on the last day of her life than anyone else.

It was, Gina knew, even possible that Kymberly was in some way involved in Caryn's death. She sensed that her client was wrestling with the same thought, or maybe he'd already decided how he was going to deal with it.

"Stuart," she said, "you remember how you took the heat for Kymberly on those domestic disturbance calls? You said you had done it when you knew it was really her."

He shook his head. "I'm not saying I did it in this case, though."

This was, of course, technically true. But the fact remained that while he was under suspicion, his daughter was not. To what length, she wondered, would Stuart go to protect Kym? Would he even hide something from Gina and sacrifice himself if that were the choice?

But before she could frame the question, the deputy knocked on the door and announced that they were out of time. They were shackling the jailed prisoners together for their short walk over to the Hall of Justice and its courtrooms.

27.

Peeking out from where she and Stuart were waiting in the cell that served as a holding tank behind Department 12, Gina could see that, as advertised, it was going to be a full house, even by the standards of the busy prelim courts. The courtroom itself was a utilitarian s.p.a.ce, completely windowless. With its old blond furnishings and high ceiling, it had the feel of Gina's old high school library. The gallery featured theater-style seating with about eighty chairs. Once the judge had gotten rid of the normal crush of business, fully three fourths of them would be cordoned off for the media. Every seat was already taken, and though there was very little standing room, the back wall accommodated those willing to deal with the discomfort.

Gina recognized several talking-head types from the networks, as well as some local print reporters, including Jeff Elliott in his wheelchair in the center aisle. She might have expected it, but didn't, and was therefore happily surprised to see both Dismas Hardy and Wes Farrell there on the defense side to lend their moral support. Jedd Conley sat a row in front of them, chatting amid the hum to Debra Dryden, who was there on Stuart's "side" of the gallery. As a witness- albeit a hostile one-for the prosecution, Debra along with all the other witnesses would have to leave the gallery as soon as the first witness was called, but at least Stuart would see her in the courtroom, showing her support, when he came in.

There was no sign of Kymberly.

Gina wondered at the rest of the crowd on "her" side of the gallery-people she'd never seen before. Trial groupies or lookie-loos, she thought, until she noticed that a couple of them in the front row were holding what appeared to be various copies of Stuart's books. Fans, she realized, and the sight of them for some reason cheered her slightly.

The other side was just as crowded, but Gina didn't recognize anyone except the medical examiner, John Strout; Len Faro from the forensics team; Devin Juhle; and Bethany Robley and her mother. Besides Faro, several uniformed policemen filled in the entire third row of spectators. In front of them, inside the bar rail, Gerry Abrams was officiously arranging folders while making easy small talk with one of the bailiffs.

She turned around to face her client, who hadn't much enjoyed being chained to twelve other inmates who had walked in their paper slippers, now wet, into the back door of the Hall and around to their cages behind the respective courtrooms. He sat slightly forward on the concrete bench that afforded the only seating in the cell, looking as though he didn't have a friend in the world. She looked down at him. "I think we've got some fans of yours out there," she said. "They're holding your books."

"My books." Stuart shook his head. "Talk about a different world." Then, suddenly, he seemed to perk up himself. "Did I tell you I got a message from my publisher yesterday? You'll never guess."

"Your sales are going through the roof."

"No fair," he said, "you guessed. Not exactly through the roof, but they're going back to press with all of them. Can you believe that?"

"Sure. From the one I've read, they should. It's a great book."

"Yeah, well, I'm afraid the sales don't have much to do with the literary quality of the books themselves. In fact, Gina, here's a great idea. Maybe we want to string this whole trial thing out even longer. Time we're done, I'll be rich."

"You're already rich, Stuart. And we've got to talk about money, by the way. I'm going to need a check from you soon. My partners are getting a little antsy."

He cracked a small grin. "Maybe we ought to wait and see how things go out there in the courtroom today."

"That," she said, "is a really bad idea."

"Hear ye, hear ye! The Superior Court, State of California, in and for the County of San Francisco, is now in session, Judge Cecil Toynbee presiding. All rise."

Toynbee was relatively new to the Superior Court bench, and completely unknown to Gina. When he came through the door at the back of the courtroom, she thought there must have been a mistake and some law student had run off with the real judge's robes. But no, the fresh-faced, clean-shaven young man ascended to his chair, peered out over the courtroom, and smiled at one and all with an unfeigned enthusiasm. Gina felt as though she could almost hear him thinking, This is so cool. He leaned over and greeted his court reporter, a decades-long veteran named Pat Crohn, and then sat down.

And clearly he wanted this prelim.

Instead of doing the expected, sending out this long prelim to another courtroom set aside for the purpose, he did the opposite. He quickly rea.s.signed the other fifteen matters on his calendar, dividing them up among the other half-dozen prelim courtrooms. He was going to keep this one for himself.

And Gina thought she knew why. This wasn't going to be a typical hearsay prelim with police officers reading the statements of witnesses into the record. True to his word, Jackman was giving her a real shot, a real look at the evidence in the case. The prosecution was going to call the actual witnesses to these events, and even more extraordinarily, Abrams had told her that she could call any defense witness that she wanted. This was going to be the real deal, and Toynbee wanted to watch it come down.

Now Gina, sitting down at the judge's cue, put a hand on Stuart's arm and gave it a little squeeze, trying to impart to him a confidence she didn't quite feel.

A preliminary hearing was different from a trial in many ways, not simply because of the standard of proof required. From a strategic standpoint, neither side gave an opening statement. The prosecution would simply begin by calling witnesses, whom the defense could cross-examine. Motions were rarely filed in advance. Judges would rule on the fly. Gina had no fewer than half a dozen objections to what she expected the prosecution to present, and a good ruling on any of them could help out considerably, even if it would not likely affect the outcome.

The judge, comfortably seated now, looked again with satisfaction at the gallery for a moment. Casting his eyes down in front of him, he appeared to be scanning over some pages. The hum in the gallery picked up for a minute and then gradually subsided on its own. When it was perfectly quiet, Toynbee raised his eyes and nodded to Ms. Crohn. "Let's call the case, Pat," he said with great amiability.

Amiable or not, though, Toynbee wasn't proving to be much of a friend to Gina and Stuart. In the next ten minutes, she asked formally to allow her client to dress out, at least from now on. She asked to have him unshackled. If he couldn't be unshackled, she asked at least that he shouldn't be chained to his chair. She asked that photographers, and particularly TV cameras, be barred from the courtroom. Since witnesses were not allowed in court except while testifying, but Juhle, as the investigating officer, would be permitted to remain throughout the prelim, she asked that he be required to testify first.

And so it went: "Denied."

"Denied."

"Denied."

By the fourth or fifth denial, Toynbee actually seemed to be straining to put a more-or-less friendly spin on the things: "I'm afraid that's another denial, Ms. Roake. Sorry."

The gallery behind her t.i.ttered with either sympathy or humor, or both. Gina leaned over and whispered to Stuart, "For the record, I didn't think we were going to get many of these, but I had to try." Stuart's response, as he stared straight ahead with his hands folded in front of him on the defense table, was a continual, tiny nod, as though he were humming a tune in his head.

At last that part of it was over. Gina closed her eyes and released a silent sigh of relief, trying to remind herself that she really hadn't expected any different result, although she'd harbored small hopes on a couple of the motions. But she consoled herself with the fact that at least Abrams hadn't simply brought his case before the grand jury, when no defense attorneys, and no judges even, were allowed to be present. It was a truism that by using the grand jury, a district attorney could "indict a ham sandwich."

Nor had Abrams simply called Juhle to recite the statements of the witnesses. At least at this preliminary hearing, Stuart wasn't automatically going to a murder trial. Gina would have a chance to cross-examine the prosecution's witnesses, raise doubt, even call witnesses of her own. Beyond that, she'd get a chance to see the kind of case that Abrams was going to present, as well as a preview of the witnesses and evidence he would use at trial, if it came to that.

Not that she had much doubt of the eventual result-given the probable-cause standard, a trial was virtually inevitable. But that was, as David Freeman used to say, one of the many beautiful things about the law: You just never knew exactly what was going to happen. You kept firing your best guns and-who knew?-you might hit something and do some real damage.

But now Gerry Abrams was on his feet, rearranging yet another folder, calling his first witness, Dr. John Strout. As her partner Dismas Hardy had reminded her just the night before, the prosecution only had to prove two things to succeed at this hearing: that a murder had been committed, and that the probable person who had committed that murder, at least enough to bring a "strong suspicion to a reasonable mind," was the accused. So Abrams' decision to call Strout was both expected and expedient. With one witness, the prosecution would get half of its job done-prove that there had been a murder. Except this case wasn't so cut and dried.

The cause of death had always been drowning, and the DA only could get to murder by comparing the wine bottle they'd taken from the garbage can in Stuart's kitchen to the fracture in Caryn's skull. She thought calling Strout was going to give her an early opening.

She came forward in her seat, her nerves and the failure of her motions forgotten.

Strout had been the medical examiner in San Francisco for so long that his very presence on the witness stand-especially for the professionals in the courtroom, the lawyers and the judge-met the gold standard of instant credibility. Tall, ascetic-looking, his white hair thinning but still slightly longer than conventional, Strout was every inch the picture of the country doctor in whom families would unhesitatingly place their trust. (In reality, of course, he was an urbane forensics wizard whose collection of torture instruments argued for a less benign characterization.) Over the course of his forty-year career he'd probably spent a total of a full year actually testifying while sitting on the hard wooden chair in the witness box.

The inherent drama of the situation-p.r.o.nouncing upon the exact cause of a violent death-had long since clearly lost its power over him to enthrall. Looking at him now as he took the oath, Gina thought that if he were any more relaxed, they'd have to wake him up.

Gerry Abrams wore a pale green suit, yellow shirt, brown tie, dumb clothes if there'd been a jury, Gina knew-way too flamboyant-but probably not an issue here. He came a few steps out in front of his desk to her left, greeted the good doctor, and started right in.

"Doctor Strout, could you please give your name and occupation for the record?"

They were under way.

"John Strout. Chief Medical Examiner for the City and County of San Francisco."

"And how long have you held that position?"

Normally, without great cause Gina would not intrude early and out of turn in any proceeding; it tended to annoy judges. But this time, she felt she could start making some friends in the courtroom. "Your Honor," she said, "defense will stipulate as to Doctor Strout's qualifications."

"Thank you, Ms. Roake. Mr. Abrams?"

Abrams turned to her and nodded his thanks. "Doctor Strout," he said. "You did the autopsy on Caryn Dryden, the victim in this case, did you not?"

"I did." With his accent, the phrase came out, "Ah dee-id."

"Would you please tell us your findings and the clinical observations that support them?"

Among his other attributes, Strout was thorough. He began with the delivery of the body to the morgue, still in the final stages of rigor, still warm due to its immersion in the hot tub. At Abrams' prompting, he talked about the blood tests he ran that indicated a blood alcohol level of point one one and also the presence of the narcotic pain reliever Vicodin. He described the depressed fracture behind Caryn's ear, to which Abrams said they'd return in a minute. Finally, Strout's unequivocal finding was that the cause of death was drowning.

"Now, Doctor," Abrams said, "could you talk for a minute about the time that death occurred?"

"I could," Strout replied, "but I'm not sure I could get it all done in a minute."

Strout was enjoying himself as best he could. Time on the witness stand could get stultifying if you didn't break it up. The gallery behind Gina showed its appreciation with this tiny joke. Toynbee smiled too, still obviously delighted to be where he found himself. Then, back to business, Strout ran down the various permutations surrounding death in a one-hundred-and-five-degree bath, its effect on both the onset and relaxation of rigor mortis, core body temperature, and how these issues affected the calculation of time elapsed since death.

"But you were, in fact, able to calculate the time of death, were you not?"

"Fairly precisely, I would say."

"More precisely than if she hadn't been immersed in hot water?" Clearly, Abrams and Strout had rehea.r.s.ed this moment.

"Yes, sir. Slightly more so. She died between about eleven forty-five and twelve forty-five the night before."

"Thank you, Doctor." Abrams then went over to what was usually the evidence table in the center of the courtroom, although today there was very little on it. He picked up the wine bottle that Strout had referred to earlier. It was distinctive enough to be recognizable: The label said it had held Edna Valley Chardonnay. Abrams had it entered as People's One, then handed it to Strout on the stand. "Do you recognize this bottle, People's One, Doctor?"

"I do."

"When did you first see it?"

"Inspector Juhle brought it to the morgue."

"At his request, did you compare it to the injury on the victim to determine if it could have caused that injury?" In this most clinical of settings, Caryn was "the victim," and would be until the prosecutor used her name in front of a jury to humanize her at trial.

"I did."

"What did you find?"

"It was a perfect fit."

"Could you explain that further?"

"Sure. Earlier, I had shaved the hair from the scalp to expose the fracture, which was p.r.o.nounced and clearly defined. I compared it to the shape of the bottle and concluded that the bottle could definitely have caused the fracture."

"But Doctor, couldn't any bottle of this size and shape have caused an identical injury?"

"Of course. Any object could have caused the injury. But it would have had to have been the size and shape of this bottle."

"Doctor, was the blow to the victim's head enough to render her unconscious?"

"Yes. Certainly enough to stun her for some period of time, perhaps enough to knock her out."

"So the blow itself didn't kill her?"

"No. As I said, the cause of death was drowning. There was water in her lungs. She was definitely breathing when she went underwater."

"Thank you." Abrams turned to Gina. "Your witness," he said.

28.

Gina took what she hoped was an invisible deep breath, pushed her chair back, and got to her feet. Her legs, much to her relief, felt strong. (Dismas Hardy had cautioned her to watch out about standing up too fast or moving too far away from her table before she felt her sea legs come in under her.) Wasting no time, she walked to the center of the courtroom. "Good morning, Doctor. Did you say that the blow from the bottle to the victim's head rendered her unconscious?"

"No. Not exactly. I said it could have."

"It could have. But not necessarily did?"

"No, not necessarily."

"Was the blow hard enough to fracture the skull, Doctor?" Yes.