A Plague of Secrets (30 page)

“Yes.”

“But there is no industry standard that defines an acceptable margin for error for an analysis of coffee shops, is there? Not for this particular comparison?”

“Correct.”

“Would you care now to estimate for the jury, and after the questions I’ve just put to you, how high the margin for error could go on an analysis such as this, with different density beans, and differing strengths of various coffee drinks?”

“I don’t know if I could say.”

“Ten percent? Twenty percent?”

“Yes. Yes, I suppose.”

“In fact, since there is no industry standard on this margin for error for this particular test, it could even be higher, could it not?”

“In theory, I suppose it could.”

“How about fifty percent? Could it be as much as that?”

“Well, I really don’t think so.”

“You don’t think so?” Hardy repeated with just enough emphasis on
think
to make his point to the jury.

“That’s correct. I don’t think so.”

“Okay, then let’s go with the twenty percent that you admit is a possible margin of error. Now, if I could just ask you for a moment to revisit the actual income numbers you gave in your direct testimony.” Hardy went back to his desk quickly and this time brought back with him his yellow legal pad. “You said the amount of raw coffee bought should have produced income from coffee drinks sold of three hundred and seventy thousand dollars, and instead BBW’s books showed an income of four hundred sixty-two thousand dollars, isn’t that right?”

“Yes.”

“And would you agree, sir, that twenty percent of three hundred seventy thousand dollars-the margin for error we’ve been discussing-is seventy-four thousand dollars?”

“That sounds right.”

“It is right, sir. Which means that, according to your own calculations, BBW’s coffee drink income from raw coffee bought could have easily been as high as four hundred forty-four thousand dollars, or only sixteen thousand dollars short of the reported income, isn’t that right?”

Thoroughly dispirited by now, Schermer stared down at the floor in front of him. “It sounds like it.”

“Well, Mr. Schermer,” Hardy said, “given your direct testimony outlining sixty-seven simple accounting errors, does a sixteen-thousand-dollar discrepancy on a gross income of between three and four hundred thousand dollars strike you now as necessarily indicative of money laundering?”

Stier started to rise, but before he could object, the witness replied. “Not necessarily, no.”

The judge let the answer stand, and Hardy whirled, smiling. “No further questions.” Stier had no redirect.

“Mr. Schermer,” Braun said, “you may step down. Mr. Stier, your next witness.”

Stier threw a look over at Hardy, back up to the judge. “Your Honor, the People rest.”

Braun nodded once and looked up. “Very well. Mr. Hardy, I believe you’ll have a motion?”

“Yes, Your Honor.”

“All right. Ladies and gentlemen of the jury, I’m going to give you a longer recess than usual. Please remember my admonition not to form or express any opinion about the case or discuss it among yourselves or with anyone else until the matter is submitted to you. Come back in forty-five minutes.”

Ten minutes later, with Braun back on the bench, Hardy made his 1118.1-his motion to dismiss the charges on both Vogler and Preslee. Normally, this is a pro forma motion made at the end of the prosecution case in every criminal trial. But at least as to the Preslee count, Hardy actually thought he might have something to talk about.

“Your Honor,” he said, “no reasonable juror could possibly convict my client, particularly of the Levon Preslee murder.”

Stier defended the charges. “In spite of Inspector Schiff’s admission about the lack of physical evidence in the Preslee slaying, there is no net change in the prosecution case. Admittedly, it is light on physical evidence, but as you know there are other kinds of evidence, and they can be compelling. Eyewitness testimony, for example. Consciousness of guilt. This is circumstantial but compelling evidence.”

“Yes, Your Honor. But the burden of proof is on the prosecution to prove not just that Maya was in the hallway, but that she was inside the apartment, and more than that, that when she was in there she killed Levon Preslee. They have nothing remotely approaching that. You don’t just convict the person with a motive who happens to be closest to the scene of the crime, especially in a case like this where you have no idea who else might have had a motive. Or, for that matter, who else had been inside. I don’t have to prove that Maya wasn’t inside that apartment. Mr. Stier has to prove she was. And there simply is no such proof. Letting the jury consider this evidence in this count would not be only an error with respect to the Levon Preslee charge, it would inevitably taint any verdict on the Vogler count.”

Hardy was pushing it pretty hard here. Normally a judge could figure that if the evidence was really as weak as the defense claimed, the jury would simply acquit as to that count, and the defense would have nothing to appeal. But Hardy was taking that out away from Braun. By tying the charges together Hardy was arguing that the judge would be tainting any verdict on Vogler, even if the jury acquitted on Preslee.

So Braun was actually going to have to make this decision or expect to hear about it on appeal later. Hardy had her in a corner and she knew it. She took in the situation with a reptilian silence, her eyes closing to mere slits. Turning to her recorder, she said, “Ann, I’m hoping you got all that.”

“Yes, Your Honor.”

“Mr. Stier. Comment?”

“Your Honor, the prosecution rejects Mr. Hardy’s efforts to tie these counts together like that. Each count stands on its own, each count is supported by the evidence, and that’s how the court should rule.”

“Nobody has put Maya inside the place, Your Honor,” Hardy said. “You can’t ask the jury to decide she was there if there’s nothing putting her there.”

“I can do what I want in my courtroom, Mr. Hardy. I could get up on my desk and do a tap dance if I want to.”

“Yes, of course, Your Honor, I didn’t mean you couldn’t-”

“That’s what you said, Mr. Hardy.”

“I’m sorry, Your Honor. I misspoke.”

“Apology noted.” And now Braun surprised him. “All right. Mr. Hardy, you raise a colorable point. Give me a moment, please.” She came forward and put her elbows onto her desk, her fingers templed over her nose, her eyes closed. Finally, her shoulders heaved and she brought her head back up. “This issue is too complex to decide on the spur of the moment. Court is in recess for another half hour. I’ll have a decision for you before the jury is seated again.”

Hardy had a message
on his cell phone that Craig Chiurco was outside in the hall, having escorted Lori Bradford down on her subpoena as a courtesy-service with a smile from Freeman, Farrell, Hardy & Roake.

Now, with the court in recess, Hardy walked out through the gallery, accepting congratulations from Joel and Harlen and some of his associates who’d shown up as they usually did when one of the bosses was in a big trial, to see how it was done. All and sundry agreed that he had just kicked some serious ass with Schermer, and between that cross-examination, his lunch at Sam’s with Glitsky, and Braun’s unexpected consideration of his motion to dismiss, Hardy had to fight to keep himself from getting cocky.

It still and always was going to come down to the jury, and without another suspect for them to even consider, Maya remained in a precarious place. Hardy had to get Paco or someone like him into the testimony somehow, and now with Ruiz dead, that was going to be problematic. Maya’s purported knowledge of the man was hearsay anyway, and even if it weren’t, she certainly couldn’t put him at BBW or with either of the victims.

Outside, in the hallway, Chiurco sat on one of the wooden benches with a white-haired woman dressed in a light blue pantsuit. The two appeared to be in a somewhat animated discussion, enjoying each other’s company, as Hardy approached. Seeing him, Chiurco got up and gave him his signed statement from their conversation of the night before, then touched the woman’s arm and introduced her.

“Thank you for coming down on such short notice,” Hardy said.

“Thanks to this young man for bringing me.”

Hardy grinned. “I’ll see he gets a raise right away.”

“And did you say Dismas?” she asked. “Dismas? The good thief?”

“That’s him, though too few people seem to know it.”

“I don’t believe I’ve ever actually known a Dismas.”

“Well, you do now. I hope it’s good for you.”

“You’re cute,” she said.

“So are you.” Hardy sat down next to her. “Has Craig here explained what we’d like to talk to you about in the courtroom?”

“What I saw, or heard, that morning.”

“You remember the date, don’t you?”

“Of course. October twenty-seventh, two thousand seven, to be exact.”

“Exact is good. We like exact.”

Her eyes brightened with the adventure. “And two shots. One at six oh eight or nine and one at six ten.”

“Very good.” He leaned in toward her. “I was hoping to call you to be a witness pretty much right away, if that’s all right with you.”

“Of course it’s all right with me. That’s why I’m here.”

“Good. Now, I’ve already heard what you said in your talk with Mr. Hunt, and that will be the basis of your testimony, but if you don’t mind, maybe we could just take a minute here before we go inside and run over some details?”

“Sure, of course,” she said. “That would be fine.”

In spite of the glimmer of hope he’d begun to entertain about his motion to dismiss, Hardy wasn’t particularly shocked, nor even greatly disappointed, when Braun came back to the bench and ruled against him, denying his motion in its entirety.

Still, he was buoyed by his belief that Lori Bradford was going to be an important and powerful witness, offering a completely alternative version of the bare facts of the case. He had given some thought to the phraseology and tenor of his opening questions, wanting not only to get to this witness’s information but to alert the jury to the homicide inspectors’ wily and discreditable ways.

Now, already having established a solid rapport with her, one that he hoped the jury would recognize as between equals-as opposed to a young man condescending to a senile witness-he began his questioning. “Mrs. Bradford, where do you live?”

“I live in a second-story apartment on Ashbury Street here in the city, on the west side of the street, right up from Haight. It’s also,” she added, coached by Hardy, “right across the street from the alley that runs behind Bay Beans.”

“Can you see that alley from your apartment?”

“The first twenty or thirty feet of it, out the living room and dining room windows, yes.”

“Now, Mrs. Bradford, do you remember anything unusual and specific about the morning of Saturday, October twenty-seventh?”

“Yes.”

“And what was that?”

“At a few minutes after six o’clock I was in bed in the back of the apartment, but already awake for the day, when I heard a loud report, like a firecracker, although for some reason I remember thinking that it might be a gunshot. So I got up and was in the hallway going to the front windows and then-
bang!
-there was another one. About a minute later.”

“And what did you do then?”

“I got to the window and looked down into the street and across to the alley.”

“And did you see anything unusual down there?”

“No. Nothing. It was still pretty dark out.”

“Did you call nine one one?”

“Not then. No. There didn’t seem to be any emergency. It was just the two noises. Although, of course, when the police cars started getting there, I realized something must have happened. By then it was too late to call nine one one.”

“But you did eventually call the police, did you not?”

“Yes. A couple of days later.”

“And why was that? The delay, I mean?”

“Well, mostly because the news reports were all saying that there had only been one shot, and I thought they’d want to know that I’d heard two of them.”

“You heard two shots?”

“Yes.” Lori, God bless her, added the word Hardy had recommended. “Definitely.”

Raising his eyebrows for the jury’s benefit, he went on. “And so you called the police to tell them about this information?”

“Yes.”

“And did you speak to some inspectors?”

“Yes. Two of them came by the apartment and we talked about it.”

“You told them about the two shots, did you?”

“Yes, I did.”

“And what was their comment about that, if any?”

“They thanked me and said that the information might be enough to change the entire theory of the case.”

“I see. And then did you hear from them soon after that?”

“No.”

“No?” A pause for the effect. “Not even back in November after they’d arrested the defendant, and they were preparing for the preliminary hearing?”

“No.”)

“And not as this case went to trial?”

“No.”

“Hmm. When the inspectors did speak to you at your home, did they tell you that they didn’t believe your testimony, or your eyewitness account?”

“Objection. Irrelevant.”

“Goes to the witness’s state of mind, Your Honor.” This didn’t make a lot of sense, but Hardy had learned from the testimony of Jansey Ticknor that Braun didn’t have a real good grasp of what this hearsay exception meant. He figured if Stier could use it to get stuff in, he might be able to as well.

It worked. “Overruled.”

Hardy asked permission of the judge and then repeated his question. “Mrs. Bradford, did the inspectors tell you that they didn’t believe your testimony, or your eyewitness account?”

“No. To the contrary, as I’ve said, they talked about it changing the theory of the case.”

“And yet they never called you back, or served you with a subpoena, or asked you to come down here and testify in court, correct?”

“Objection. Asked and answered.”

“Sustained.”

“Thank you, Mrs. Bradford. I have no further questions.”

Stier was on his feet before Hardy was back at his counsel table. “Mrs. Bradford,” he began, “did the inspectors you spoke to ask you if you’d seen anything in the street on the morning of Mr. Vogler’s death?”

“Yes.”

“And did you in fact see anything down in the street, or in the alley?”

“No, as I’ve already said.”

“Now, as to the noises you heard. Are you familiar with the sound of gunfire?”

“No. Not particularly.”

“In your testimony with Mr. Hardy you said that while you were in bed, you heard a report, and this is a direct quote, ‘like a firecracker. ’ Unquote. Isn’t that true?”

“Yes, it is. I thought it might have been a firecracker. Or a backfire.”

“And yet you told Mr. Hardy that you definitely heard two gunshots, did you not?”

“I did.”

And here Stier, in his enthusiasm and lack of respect for this witness, made his big error. “So let me ask you this. How could you know they were gunshots?”

Hardy had asked Mrs. Bradford that very question in the hall and had fervently hoped Stier would be foolish enough to ask it in front of the jury.

“Well, they were identical sounds. And we know for sure that one of them was a gunshot from the alley across the street, don’t we? That’s when Mr. Vogler was killed, wasn’t it? Right when I heard the shots.”

Rule Number One, Hardy thought-you talk to every single witness yourself, every single time. Hardy saw Stier’s shoulders slump as some of the jurors came forward and the import of this testimony hit home. He turned hesitantly toward the panel, stopped, came back to the witness. He finally said, “But can you say for certain that the second sound was in fact a gunshot, and not a backfire, or even a firecracker?”

She thought about this for a second. “I can say for sure that the two sounds were exactly alike. If the first one was a gunshot, the second one was a gunshot. And vice versa.”

Stier decided to quit before he made it worse. “Thank you, ma’am.”

Lori Bradford got up from the witness chair. “And they really did sound like gunshots,” she added with a believability and sincerity that cemented her complete defeat of The Big Ugly.

The three partners-Hardy, Farrell, Roake-and Wyatt Hunt were at the Freeman Building after the close of business, gathered around the large round table in the Solarium considering options. The overhead lighting was on full against the encroachment of the misty darkness that gathered outside the glass panes. A bottle of red wine stood open on the table, although Gina’s choice was her Oban and Hunt, next to her, was having an Anchor Steam.

Hardy was running out of time if he wanted to get any sort of “other dude,” Paco or anyone else, into the consciousness of the jury. Before Ruiz had been killed, he’d half planned to call him as a witness both on the Paco question and to counter the allegations that there had ever had been anything romantic going on between Dylan and Maya. But now, of course, that option had been foreclosed by events.

Other witnesses for Maya’s defense were few, if any, and far between. This was why Hardy had grabbed so desperately at Lori Bradford. At least here was a real bone for the jury to gnaw at. Nothing in the prosecution’s case contemplated or explained a two-shot scenario, and that fact, if taken as fact, created a glaring hole if any jury member cared to look hard in that direction. But since there was no second bullet, nor casing, nor even gun for that matter, there was no guarantee, nor even a likelihood, that this would happen.

And as for Maya, her alibis were flimsy and unsupported. Nobody had seen her either kill anybody or not kill anybody. And there were still the huge and unresolved questions of why she had been at both murder scenes. The time, in Dylan’s case, and the location, in Levon’s, pretty well eliminated any consideration of the idea that she’d simply been in the respective neighborhoods. She’d gone to both places on purpose, apparently summoned-or setting up-the victims. And if she hadn’t gone by to kill them, then why?

“I’ve got to call her,” Hardy said. “Let the jury hear her story.”

“Maybe I’m missing something,” Gina said, “but what is her story? I mean, does she even have any explanation for why she was at these places?”

“Dylan called her, and then Levon called her.”

Gina sipped her drink. “And she just went? No reason? When was the last time she’d even seen Levon?”

“I know,” Hardy said. “It’s weak.”

“
Weak
’s one word for it.” Farrell leaned back in his chair. “You might just want to go to argument. I mean, the theory is that they’ve got to prove something and you don’t.”

Hardy reached for his glass. “I’d just like to give ’em something, anything at all.”

“Well,” Hunt said, “there was Lori.”

“And God love her,” Hardy replied. “But two shots kind of goes nowhere without another story to go with them. And that I don’t have.”

“How about Glitsky?” Hunt asked.

Hardy had informed them all of his lunchtime deal with Abe, but like everything else about this case, it was looking like anything Abe could bring to the party was going to be a day late and a dollar short. “We’re supposed to talk again tonight, but if he had anything live and pressing, I think I’d have heard.”

“Maybe you could call the homicide guys Abe put on Ruiz,” Gina offered. “Talk about another weed-related murder at BBW, this one while Maya’s in jail and couldn’t have had anything to do with it. There’s an element of doubt. Something else going on, at least.”

“That’s an actual thought,” Hardy said. “Although Abe would have me killed if I called his guys in the middle of this.”

“Yeah, but at least you’d be killed by professionals,” Farrell said, “so it wouldn’t hurt much.” He went on. “Braun wouldn’t let it in anyway. Ruiz is six months removed from our victims here. That’s a tough sell.” He took a healthy drink of red wine. “I’m back to closing argument. You’ve just got to argue that there’s no evidence. That’s all you can do.”

“Well, not to get picky,” Gina said, “but there is evidence. There’s Maya’s gun, her fingerprints on it, fingerprints on Levon’s doorknob.” She shrugged. “It’s not much, granted, but it’s hard to explain away. Any other jurisdiction in the state, given the motives, I think she goes down. Here, maybe you’ll get your one juror, but on argument alone, I wouldn’t get my hopes up.”

“Well, on that cheery note.” Hardy tipped his wineglass up and pushed himself back from the table. “I’m on all my phones all night if anybody gets any ideas.”

“The clerk, I’d bet,” Glitsky said, “was named Julio Gomez. Twenty-four years old when he died in ninety-five. The place was Ocean Liquors.”

Glitsky, going out of his way to stop by Hardy’s home, had interrupted his friend’s seemingly unending perusal of his trial binders, and now, just past nine o’clock, they stood in the kitchen waiting for the microwave to beep for Glitsky’s tea.