A Plague of Secrets (17 page)

Even with many murder trials under his belt Hardy expected that he would be struck by opening-day jitters-the familiar hollowness in his stomach, the deadness in his legs-when he first stood to address the jury. Especially with the large and captivated crowd in the courtroom, the sudden sense that something of major import was transpiring here. When he rose to come around his table and face the panel, though, he found himself possessed of an almost unnatural calm, even a confidence.

The easy camaraderie between Braun and Stier had just suffered a serious blow and while the prosecutor was probably still reeling from it, Hardy could use this small but real advantage to push the envelope a bit-maybe throw in a little argument, which was forbidden in opening statements-and, while Stier’s attention was focused elsewhere, perhaps escape without too much interruption in the form of objections from the prosecution table.

He began in an amiable fashion, wearing an easy smile and making eye contact with every juror he could before he started. “Good afternoon. This morning Mr. Stier related to you an extravagant scenario of motivation and coincidence that he hopes will convince you that Maya Townshend is guilty of two counts of first-degree murder.” Much in the same way that Stier always referred to Maya as “Defendant” to dehumanize her to the jury, Hardy would strive at every opportunity to refer to her by her given name, underscoring her humanity and personhood. “Unfortunately for the People’s case, but fortunately for Maya and for justice, what he left out of his story were the gaps and holes and inconsistencies in the so-called chain of evidence upon which the prosecution relies. The prosecution cannot and will not prove that Maya killed Dylan Vogler or that she killed Levon Preslee, because she didn’t.

“Did Maya know Dylan and Levon when she was in college? Absolutely she did. Did she do some things she’s ashamed of now, as Mr. Stier alleges? Yes. Will there be evidence, such as direct eyewitness testimony, to prove these things? Again, the answer is yes.”

Hardy, always conscious that he had a tendency to go too fast and gloss over elements of syllogisms that might be crucial to jury members, had trained himself to slow down, timing his restrained pacing from one end of the jury box to the other, getting back to his table ostensibly to consult notes or take a drink of water, sometimes just to touch it to keep him in his rhythm, center him for another lap.

Now he touched the wood of his table, gave a quick confident nod to his client, and turned back to the jury. “So the prosecution can prove that Maya Townshend”-he walked over to her, putting his hands on her shoulders-“small-business owner, wife, and mother of two young children, made mistakes when she was in college.

“We know that she was a student at the University of San Francisco because there are records supporting her attendance there. She appears four times in four years in the school’s yearbook, and several times in the university’s newspaper, the
Foghorn.
Similarly, we will learn from her classmates at the time that she associated regularly with both Dylan Vogler and with Levon Preslee, and we will hear from other eyewitnesses that these young students were not exactly members of the choir. These are facts supported by both documentary and eyewitness testimony.”

Hardy didn’t dare glance back at Stier. He was well into argument here and so far he was getting away with it. The prosecutor, still licking his wounds, hadn’t engaged yet. He was no doubt listening, but he wasn’t hearing.

“But that’s not what she’s accused of. She’s accused of murder. And for that accusation the prosecution has no evidence. The district attorney tells you that it has evidence to support the charges it has brought against her, evidence that directly ties her-and this is important-that ties her, and no one else, to these crimes. That is simply not so.

“The actual truth is that unlike the story about Maya’s earlier life, which the prosecution can back up with witnesses and documents, there is nothing to tie her to evidence of these murders except innuendo and speculation. And why is that?”

Hardy paused, taking a moment up by the witness chair, again meeting the gaze of juror after juror. “The answer, ladies and gentlemen, is quite simple. The prosecution won’t provide you with this evidence because none of it exists. There are no eyewitnesses who will claim they saw her in the presence of either of the two victims on the day of their respective deaths. There is no documentary evidence-say a time stamp or video recording-analogous to the USF yearbook or the issues of the
Foghorn
that places Maya in the company of either of these two victims at the time of their deaths. Nearby? Yes, by her own admission. But nearby, ladies and gentlemen, is not good enough to meet the legal standard that will take you beyond reasonable doubt.”

This time Hardy stopped at his table for a quick sip of water. He glanced out at the gallery, at Kathy West and Harlen and Joel in the front row right in front of him. Nodding to them soberly, he came back to the jury.

“Now, I can see some of you asking yourselves: Wait a minute. This is a young woman without a criminal record. If she didn’t do it, if there were no proof that she did it, why would she be on trial? Why would the state of California expend all this enormous time, energy, and expense if there is no physical evidence tying her to these crimes? These are excellent questions, and unfortunately they go begging for answers. Because the real truth of this prosecution is that there is no physical evidence proving that Maya ever fired the weapon that killed Mr. Vogler, or held the knife that killed Mr. Preslee. No eyewitnesses. No fingerprints. No physical evidence. No incriminating bloodstains on Maya or on her shoes or on her clothing. No nothing.

“She was in the vicinity of both deaths on the times they occurred, yes. But both times she was summoned to those places-as her phone records will attest-by the victims themselves, or by someone calling her on their telephones. That someone is, I submit, the person who should be sitting where Maya is now, charged with these murders. He or she is every bit as real-in fact, more real-than the so-called evidence you will hear connecting Maya to these murders. The police simply haven’t found or identified this person as a suspect.”

This-the theory of the case that Hardy would be arguing whether he believed it or not-brought a significant buzz to the packed courtroom, as he’d known it would. The pundits, the reporters, the Court TV and other television crews-and with Kathy West’s presence he knew there’d be vanloads of them now in the next few days-would dissect this strategy from every imaginable angle. Was Hardy wise to show his hand so early? Was this pure cynicism? Did he have any proof of his own to support what he was saying? Wasn’t the SODDIT-“some other dude did it”-defense one of the most hackneyed and noncredible strategies in criminal law?

Hardy didn’t care. Whether he could prove it or not-and he couldn’t-he still felt that he could make it sing to at least one of the jurors, and that was the name of the game.

And incredibly, he thought, Stier still hadn’t said a word.

Well, Hardy was going to give him another chance.

He took another sip of water, set the glass down carefully, turned slowly to face the jury panel again. “All this brings us back, of course, to the question of why Maya has been arrested and charged with these murders.

“Unfortunately, the answer is cynical at best, and despicable at worst: Maya Townshend owned the coffee shop Bay Beans West, out of which Mr. Vogler sold marijuana. Although there is, again, no evidence tying Maya to Mr. Vogler’s marijuana business-the documents to which Mr. Stier referred in his opening, purportedly proving some marijuana business connection between Mr. Vogler and Maya, are inconclusive and ambiguous at best-Maya proved an inviting target as a suspect for a number of reasons, none of them having to do with evidence. All of them having to do with political ambition and expediency.”

If Stier had been asleep to this point, he was all the way awake now, and seemingly in full fettle. “Objection, Your Honor! Argumentative. This is an outrageous accusation, offered without proof. It has no place in an opening statement or, indeed, anywhere in this trial.”

And again, Braun, revealing the depths of enmity one encountered if one got on her wrong side as Stier had obviously done, surprised Hardy. “I was wondering when you’d notice, Mr. Stier,” she said. “But you’re a few beats late. Mr. Hardy is simply presenting his theory of the case, as you did in your own opening. Objection overruled. You may proceed, Mr. Hardy.”

“Thank you, Your Honor.” Hardy wasted not a second before getting back to his tale. “From the outset of their investigation the two homicide detectives handling this case were hampered with-guess what?-lack of evidence. In an effort to shake up one or more of their potential suspects-and the testimony of those inspectors will reveal that there were more than a couple of them-one of the detectives, Debra Schiff, happened upon the strategy of contacting a gentleman named Jerry Glass, the United States federal attorney based in San Francisco.

“She persuaded Mr. Glass to use the very tenuous marijuana connection between Bay Beans West and Maya Townshend not only to impugn Maya’s character and reputation, but also to provide her with an apparent motive for these murders-one that has no basis in reality or in evidence. But almost worse, it also attempts to explain away this lack of evidence by the implication that Maya’s close relatives-who include a supervisor and the mayor of this city-somehow colluded with her to cover up her transgressions.”

“Your Honor, I must object again.” Stier rose at his table. “All of this high-flown rhetoric is just a smoke screen meant to confuse the jury.”

Braun, humorless, looked down over her eyeglasses. “Objections, as you know, Mr. Stier, must be on legal grounds.”

“Argumentative, then, Your Honor.”

She appeared to consider for a moment, then shook her head. “Overruled.”

Hardy nodded quickly to the bench, acknowledging the ruling. Stier might not have realized it, but he’d just insulted the jury and questioned its intelligence by implying that Hardy’s “smoke screen” would fool them into giving the wrong verdict. Now Hardy thought he’d play the other side of that coin, praising their sagacity and collective wisdom. “Finally, ladies and gentlemen,” he continued, “I need hardly point out to you that this trial has taken on a very high public profile. A glance at the size of the gallery here, the number of reporters, and even some of the spectators”-he paused for a ripple of appreciation to flow through the gallery-“all of these things make it clear that this trial has the potential to be a career-making moment-”

“Objection!”

Hardy heard the word behind him, but he was too energized to stop himself now, and not inclined to in any event. He was speaking what he believed to be the absolute truth and he wanted the jury to hear. In fact, he raised his voice and continued. “A career-making moment for people whose ambitions-”

“Your Honor!” Louder still. “Objection! Irrelevant and argumentative!”

“Mr. Hardy!”

“-whose ambitions exceed their sense of fairness and whose thirst for fame and recognition blinds them to the simple demands of justice.”

Bam! Bam!
“Mr. Hardy, that’s enough. Mr. Stier, objection sustained. Mr. Hardy-”

But he was a step ahead of her. “I apologize, Your Honor. I got a little carried away.”

“Apparently,” she said. “Please don’t let it happen again. Jurors will disregard that last outburst of Mr. Hardy’s.” Then, back at Hardy. “All right. You may proceed.”

Hardy took a small breath, having made it at last to what had become almost his boilerplate closing. “This trial is about determining who caused the deaths of two people-Dylan Vogler and Levon Preslee. One died by gunshot wound and the other by the stroke of a cleaver. The evidence is quite clear on these points. But where the evidence is not clear, and in fact where it altogether fails, is where it purports to connect Maya Townshend to either of these murders. It is neither clear nor clean. Where it needs to be unambiguous, it is open to interpretation. Where it needs to dispel reasonable doubt, it only adds to it. No real evidence inexorably connects Maya Townshend to these murders.”

Now, his own adrenaline storm having passed, Hardy thought he could maintain his less dramatic tone and lull Stier into failing to object on argumentative grounds one last time. “As you were seated on this jury, you all swore an oath that you would presume the innocence of Maya Townshend. She must remain innocent in your eyes until the prosecution presents you with enough hard, physical evidence to prove to you beyond a reasonable doubt that she in fact committed these crimes. That means you must be sure of the intimate details of these crimes. When Mr. Stier tells you that he can’t say exactly how Maya killed Mr. Vogler or Mr. Preslee, he is admitting that he doesn’t have that proof. And without that proof there is doubt. Where there is doubt, there is innocence. My client, Maya Townshend, is innocent-and she will rely on your sworn oath to presume that innocence and, after you have weighed all the facts in this case, to return a verdict of not guilty.”

Braun called a recess
as soon as Hardy sat down. While Maya was in the restroom, Hardy pushed his chair back to the bar rail and turned around, resting his elbow on it. “Well,” he said to what he hoped was his private little fan club of Kathy, Harlen, and Joel Townshend, “I think I got a few licks in, anyway. How’d it play out here?”

“Excellent,” Joel said.

Joel had become a rather more enthusiastic partner in Maya’s defense since the arrest. Of course, this had come at the expense of a seismic shift in his worldview. Before the weekend of Dylan Vogler’s death he’d never had occasion to think that the world wasn’t at base a fair and equitable place. He’d always had enough money and social standing to remain above the little mundane headaches that most people faced constantly-household bills, fights about money or time or chores. If he wanted to go out to dinner, they hired a babysitter and didn’t care what the meal cost. If he and Maya were tired or bored, they’d go spend a night or two in Napa or Carmel to rejuvenate themselves. Their friends were people more or less like them. And other people he met tended to be polite, at least to him personally. Perhaps even more fundamentally, he never really had to prove himself to get a loan or make a connection; he got the benefit of the doubt.

And now, not just suddenly but seemingly instantaneously, all of that had ended. The properties against which he’d taken out more loans to finance other properties and ventures were no longer rock-solid as collateral. His social life, with his wife incarcerated in the county jail, essentially vanished. He found himself amazed by how completely life changed when you got accused of wrongdoing. At first he’d held to the belief that this whole affair was just a mistake and if he could just find the right person to talk to and explain everything, it would all go away. He and Maya would go back to their real life.

But by now he had come to realize that this wasn’t going to happen. He and his wife were somehow “in the criminal justice system,” and this more than anything meant that the benefit of the doubt had evaporated. No one in the system was inclined to believe anything he said. The motivations for anything he did got skewed and twisted by people who started out by considering him, if not a criminal, then at least a shady character. And once they had that mind-set, nothing was going to change.

Now he was going on to Hardy: “I like the way you laid this conspiracy these people have cooked up right out there.”

“Me too,” Hardy said. “I couldn’t believe Braun let it in, but if she was going to let me, I sure as hell was going to run with it.”

“My concern,” Harlen Fisk said, “is it’s going to turn up the heat on Glass.”

“Let it,” Kathy West declared. “Harlen and I showing up here ought to be enough to do that. I welcome it. And, Diz, you just declared open war, which also suits me fine. Jerry Glass has got nothing on us. This will all get litigated away in civil court, but in the meanwhile this is where we fight it, where it can do Maya the most good.”

“It’s great you both came down for this,” Hardy said to Kathy and Harlen. “It was really a good idea, Kathy. Let them know we’re not cowering and hiding and plotting some backroom deal. I think it’s really shocked them.”

The mayor nodded. “That was my intention.”

“Are you planning on coming in every day?” Hardy asked.

This brought a smile. “When I can, maybe I will, if it will have some strategic value for you. But day-to-day, I’ve still got this city to run.”

“I should be here most days,” Fisk said. “Wave the flag for my sis.”

“So what’s the next step?” Joel asked.

“Witnesses,” Hardy replied. “We get down to it.”

If Paul Stier felt he’d taken a few hits from Hardy’s opening statement, or harbored any residual resentment at Judge Braun, he showed no sign of either as he stood in the center of the courtroom. “The People call Sergeant Lennard Faro.”

The head of Crime Scene Investigations stood up in the second row of the gallery and came through the door in the bar rail and up to the witness stand. Well-dressed as always in snug tan pants, a pink dress shirt, and a subtly shimmering light brown sports coat, he cut a dashing figure very much at odds with that of most other cops. With his spiky dark hair, gold stud earring, and well-trimmed goatee, he might have been a young graduate student or fashion designer; but even so, his experience and ease on the witness stand soon verified the credentials he outlined to Stier as they began-fourteen years on the force, the last eight with the CSI unit, the last six in charge of it.

“Now, Sergeant, what is your role at these crime scenes?”

“My team of three officers and I search the general area for physical evidence that might be related to the crime. We collect as evidence anything of interest. We also photograph the victim and the scene to try and create a record of everything at the scene as it was when we found it.”

Though a bit unusual, since murder trials often began with forensic and medical evidence, Hardy thought Stier’s decision to call Faro first was a good bit of strategy. This would put evidence at the crime scenes into the trial at the outset, potentially rebutting Hardy’s contention in his opening statement that there was little or no physical evidence tying Maya to the murders. It was also a prime opportunity to get pictures of the victims in front of the jury-real human beings who’d been murdered.

“Sergeant, were you present at the scene of Dylan Vogler’s murder?”

“Yes, sir.”

“And would you tell the jury how you proceeded?”

“Sure.” Faro, the consummate witness, nodded and came forward in the witness chair, turning slightly to be facing the jury. “I arrived at a few minutes before eight with three other crime-scene technicians.”

“Would you describe the scene as you found it?”

“It was a Saturday morning, nice day, and patrolmen from the local precinct had already cordoned off the site with police tape. Their lieutenant, Bill Banks, was also at the scene.”

“Did it appear that officers had appropriately preserved the scene so that you could begin your investigation?”

“Yes, it did.”

“Describe, please, the body of the victim.”

“Mr. Vogler’s body was lying on the ground in a paved alley by the back door of his business. He showed signs of a gunshot wound in the chest.”

“Showing you People’s One through Six, do these appear to be photographs accurately depicting Mr. Vogler’s body in the alley as you first saw it?”

“Yes, they do.”

“After the scene was photographed, did you conduct a search of the alley to determine what, if any, evidence might be present at the scene?”

“Yes, I did.”

Hardy knew that, in fact, all four crime techs had searched the alley. But if any of the other three located something, they would call Faro over without touching it, and he would photograph and collect the evidence. That way, Faro could testify to finding each piece of evidence without needing to have the other three come to court. “Among other debris, I found one.40-caliber brass bullet casing and a.40-caliber Glock semiautomatic handgun.”

Stier went through the same process of authenticating and introducing the photos of the items as they were found at the scene. Then he went to his counsel table and retrieved two evidence containers that held the items. He had them marked as People’s Exhibits and showed them to Faro. “Now, Sergeant, do you recognize these?”

“Yes, I do.”

“Please tell the jury what they are.”

This allowed Faro to repeat for the third time-in case one of the jury members was actually so dense that they’d missed it the first two times-his account of finding the gun and the casing in the alley. Whatever else Stier might be, he was professional and methodical. He went through the same process having Faro describe where and how he found the bullet in the stucco wall. Photos of the bullet hole and the projectile itself went into evidence.

For the next twenty minutes they went over all of the things Faro had not found in the alley, although he had looked for them. No other casings, no other weapons, no other bullet strikes on any of the walls or surfaces. No signs of blood, no footprints. Absolutely nothing out of the ordinary in that alley. He even described, though they did not physically produce, the bag of garbage they packaged up for later examination at the lab-the Coke cans, cigarette butts, and, not surprisingly, about a dozen coffee cups.

Having finished the crime scene, Stier moved on to work Faro had done at the lab. As well as working at crime scenes Faro wore a second hat as a firearms examiner in the lab. Stier went through his extensive training and experience and qualified him as an expert, and then led him through the process of comparing the bullet from the wall to the gun-test-firing the weapon and comparing the known bullet microscopically to the bullet in evidence.

As Hardy knew he would, he said that although the bullets appeared similar in class characteristics and likely came from the same sort of gun, there were insufficient details on the recovered slug to say with absolute certainty that it had come from the gun in the alley.

Stier knew that this was not his strongest point, and he moved to buttress it. “Tell the jury, please, what tests, if any, you ran on the spent casing, and what results you got.”

“The brass casing is part of a round of ammunition used in the.40-caliber Glock. The marks on the base of the casing-caused by the weapon’s firing mechanism-were consistent with other markings we could create on other bullet casings fired from the same weapon.”

“Does that mean the casing necessarily came from the weapon found in the alley?”

“No. Like the bullet, it came from a Glock.40, but I can’t say with certainty it was that same Glock.40.”

“But of course, Sergeant, you found no other bullets or casings in that alley, correct?”

“Right.”

Hardy knew that this was a repetitive and therefore objectionable question, but that objecting would only draw more attention to something he hoped the jury would not focus on. So he let it go.

Stier saved the best for last. “Sergeant, is there a database that firearms examiners can access to determine ownership of a handgun?”

Hardy knew that this was gilding the lily-any cop could access this database. Even a clerk could access the database. Stier’s question suggested that this was some sort of secret database and that you had to be a member of a club to look at it. But there was nothing Hardy could do about it. Once again, he had to tip his hat to Stier for knowing his business.

“Yes, there is a database. The gun had a registration number, and I ran that.”

With a brightness implying that this was all new to him, Stier glanced over the jury, sharing with them his enthusiasm for the hunt. “A registration number? You mean the gun was licensed to an individual?”

“Yes.”

“And who is that person, Sergeant?”

“The defendant, Maya Townshend.”

A wave of energy swept through the gallery. Stier paused just a moment for dramatic effect, until the room was dead silent again.

Hardy knew that this was a low point, and that it was just going to get worse when the fingerprint examiner told the jury that Maya’s fingerprints were on the magazine that held the ammunition on the weapon from the alley. The best Hardy could hope for from the fingerprint expert was going to be a discussion of an unidentified partial fingerprint on the spent casing.

But since Hardy knew that ultimately that print could have been left by anyone who ever handled the ammunition, who worked where it was manufactured, or clerked in the store where it was sold, that was precious little.

Stier took the opportunity by a sideways glance to include the jury in his acknowledgment of the witness. “Thank you, Sergeant.” Then, somewhat to Hardy’s surprise, Stier half turned to look at him. “Your witness, Mr. Hardy.”

Hardy’s surprise came from the fact that he’d expected Faro to remain on the stand to testify about the Preslee crime scene, but apparently Stier had an alternate strategy in mind for that portion of the People’s case. For now, Hardy had a job to do, and he squeezed his client’s arm and rose with a show of confidence from their table.

“Sergeant Faro,” he began, “in your testimony today, talking about the alleged murder weapon, the Glock.40 and the brass casing and bullet that you found at the scene of Mr. Vogler’s murder, you used the words
consistent with
several times, did you not?”

“Yes, I think so.”

“Tell the jury, please, what you mean by that phrase.”

After a moment’s hesitation Faro shrugged. “I’m not sure I know a better word. We fired a few rounds from the gun in the lab and compared the indent left by the firing pin on those casings to the gun from the alley and they were virtually indistinguishable from one another.”

“Virtually indistinguishable? Do you mean to say that they were exactly the same?”

“Yes.”

“But you can’t say that the casing came from the gun, can you, Sergeant?”

“No.”

“And that’s because your virtually indistinguishable markings were in fact so few in number that they don’t permit a comparison. Correct?”

“Yes.”

“To make a point, Sergeant, your name has an A. R. in it, doesn’t it?”

Stier spoke up from behind him. “Objection. Irrelevant.”

Braun let her curiosity overcome her distaste for Hardy. “Overruled.”

Faro spoke up. “Yes, it does. F-A-R-O.”

“Well, so does mine, Sergeant. H-A-R-D-Y. Does that mean we have the same name?”

“Objection. Argumentative.”

“Sustained. Move on, Mr. Hardy.”

Braun reminding him that she was aware that she’d been ruling in his favor more often than was her wont, but that his leash was very short now, and tightening.

“Sergeant, how many Glock.40s are there in the world?”

“Objection! Speculation.”

“Overruled, Mr. Stier. You qualified Sergeant Faro as a firearms expert.”

Hardy fenced with Faro in this vein for a moment before concluding. “In other words, Sergeant Faro,” he said, “you can’t tell this jury that this casing came from this gun, can you?”