Betrayal (34 page)

Hardy, his mouth set, tried to keep his elation low-key. “You’re damn right I am.”

The reference was to what was commonly called a
Brady
violation. In
Brady v. Maryland,
the Supreme Court held that a defendant had a right to any evidence that was in the possession of the prosecution that might cast doubt on his guilt, whether or not it was eventually to be used at trial. The prosecution was absolutely required to turn over any background, testimony, evidence, interviews—anything—that could exculpate a defendant. If the prosecution withheld any of this discovery,
and the withheld material was reasonably likely to undermine confidence in a guilty verdict,
then these were grounds to reverse a conviction. Of course, evidence of such a violation was never found in the court’s records. The whole point was that the prosecution had withheld the evidence and the defense didn’t find out about it until sometime after the trial.

This opened up an entirely new strategic element.

Hardy and Washburn both keenly understood the situation. If in fact the FBI had interviewed witnesses in the Khalil killings and did not supply either the witnesses or the testimony, or both, to the prosecution, which the prosecution was then mandated to turn over to Evan’s defense, it was highly possible that they were looking at a
Brady
violation. The added beauty of the situation was that Mills didn’t even have to know about the withheld evidence. The FBI was legally construed to be part of the prosecutor’s team and Mills was responsible for turning over that evidence whether or not the FBI told her about it.

Of course, proving not only that the FBI had held back evidence but also that the withheld evidence was likely to undermine confidence in the guilty verdict against Evan Scholler was another problem.

But Hardy would face that when he came to it.

For the moment, the
Brady
possibility, if he could get it off the ground by finding an FBI witness or two that hadn’t made it into the Scholler record, meant that he could file a writ of habeas corpus with declarations and get it in front of the court of appeals in relatively short order. The court of appeals could then remand it back down to Redwood City, probably back to Tollson’s courtroom, where—if they were hearing new evidence—anything might happen.

Washburn tapped Hardy’s knee, snapping him from his reverie. “It’s still going to be a long shot proving the evidence is exculpatory,” he said. “Essentially you’ll have to prove somebody else other than Evan might well have killed Nolan. Which, I must tell you from bitter experience, is a tough nut.” He lowered his voice. “It might even be contrary to fact.”

“Maybe not,” Hardy said. “It might be enough for the court if I prove that somebody else had a reason to.”

The old lawyer shook his head. “That, I’m afraid, is wishful thinking.”

“Not at all. If there was another plausible suspect the jury didn’t get to hear about…”

Washburn frowned. “And the FBI, which withheld it last time, and which is immune to state process, is going to hand it over now? How are you going to make them do that?”

“I don’t know,” Hardy said. “It’s a work in progress.”

H
ARDY DROVE BACK
up to the city on the 280 Freeway, got off on the ocean side of town at Nineteenth Avenue, and, at a couple of minutes after the official beginning of the cocktail hour, walked into the front door of the bar he partly owned, the Little Shamrock. Moses McGuire, his brother-in-law, out of rehab now this past year or more, was behind the bar at the far end by the beer taps. To Hardy, he looked impossibly fit, although maybe it was simply the fact that he’d lost thirty pounds and cleaned up his appearance along with his bloodstream.

Perennially shaggy and long-haired, often bearded, McGuire had cultivated more or less the look of a biker or a mountain man since his twenties—which is to say for nearly forty years. Faded, often tattered blue jeans and some crummy T-shirt seemed as much a part of his personality as his justly fabled temper, his casual disdain for convention, his fondness for altered states of consciousness.

Down at the end of the bar today, passing the time with a pretty young woman, he might have been a mid-forties banker on his day off. The still-full head of salt-and-pepper hair was short and neatly parted, the mustache trimmed in an otherwise closely shaved face. He’d tucked the tails of his blue dress shirt into a pair of khakis. He’d had his nose broken often enough in bar fights that Hardy thought he’d always look a bit battered, but today his eyes were clear, his skin nearly devoid of the capillary etching that had been a regular feature of his face in the heavy drinking days that had comprised the majority of his adult life.

As a sometime bartender and part-owner, Hardy could have gone around the bar and helped himself to whatever he wanted, but occasionally you got back there and found you couldn’t easily get yourself out, and tonight was supposed to be the first of his new Date Nights with Frannie, and he didn’t want to start it off on the wrong foot. So he pulled up a stool and gave McGuire a casual nod, which brought him right on down.

“What’s the word, Counselor?”

“Hendrick’s, over. One onion.”

“That’s four words, and I’ve got cucumber.”

Hardy nodded. “Even better. And while you’re pouring, I’ve got a question for you.”

“Hazel.” McGuire didn’t miss a beat. “Although some people think they’re more green. But I’d call them hazel. Kind of a bedroom hazel.” McGuire grabbed a glass, threw in some ice, reached up behind him to the premium gin row, and brought down the round dark bottle of Hendrick’s gin. After a quick free pour to an eighth of an inch below the rim, he cut a fresh slice of cucumber and dropped it on top.
“Santé,”
he said, placing it on the cocktail napkin he’d laid down on the bar. “Okay, what’s your real question?”

“It’s a long one.”

McGuire scanned the length of the bar and around the corners of the room, none of which were very far away. The Shamrock was a small, neighborhood place that had been in its same location at Lincoln and Ninth Avenue since 1893. The grandfather clock against the wall behind Hardy had stopped during the Great Earthquake of 1906 and nobody’d set it running again since. The pretty girl had gone back to her friends by the dartboards, and all of the other twenty patrons seemed comfortably settled at the bar or on the couches in back. “That’s all right,” McGuire said. “The crowd’s pretty much under control.”

On the drive up from Redwood City, after he’d wrestled with some of the problems raised by the
Brady
violation issues, Hardy had returned to the question that he still hadn’t answered, and that, in his and Washburn’s enthusiasm for
Brady,
they’d inadvertently let drop. So, after filling in his brother-in-law on some of the background—with a doctorate in philosophy from UC Berkeley, McGuire’s ability to grasp facts and concepts had always been impressive even when he was in the bag; now that he was sober, it was formidable—Hardy came out with it again. “So, the question is, why did Nolan kill the Khalils?”

“Piece of cake,” McGuire said. “It was his job.”

Hardy drank off some of the rose-scented gin—he’d come to love this stuff. “Just like that, his job?”

“Sure. He’s a SEAL, right? He’s a trained assassin. You remember the SEALs in ’Nam. Shit. Killers. And now he’s working for this security company in Iraq?”

“Allstrong.”

“Right, Allstrong.”

“But he was a recruiter over here, Mose, hiring people. No way was he doing wet work.”

“Right. I’m sure. With his background? No way he wasn’t, if it was needed.”

“And why would it have been needed with the Khalils?”

“I don’t know. Not enough information. But they were Iraqi,
n’est-ce pas
?”

“Yep.”

“Well, then, you check it out, I bet you find they have family or something over there and they were somehow getting in the way of Allstrong’s business.”

“So they kill the father over here?”

McGuire nodded. “Sending a message.”

“Pretty long distance, wouldn’t you say?”

“The father was probably running the business from over here. Cut off the head, the body dies. This isn’t brain surgery, Diz. All this didn’t come out at the trial?”

“None of it did.”

“Why not?”

“Well, the easy answer is that everybody on the prosecution team thought my guy had been the killer, and the motive was mostly personal, about him and Nolan.”

“But you think it was Nolan?”

“I’m beginning to.”

“And you’re thinking, then, that this stuff about him ought to have been in the trial?”

“Precisely.”

“Hmm. Let me think about it.” He walked down the bar and saw to a couple of drink orders. Shooting himself a club soda from the gun, he came back down to Hardy. “Okay,” he said, “I’ve got it all figured out.”

“Hit me.”

“Nolan killed these Khalil people, and then their family killed him in retaliation.”

“How’d they know he did it?”

“They put it together that it was Allstrong because of what was going on in Iraq, whatever that was. Once they knew that, they found out Nolan was Allstrong’s man over here. Even if he wasn’t the actual killer, they were striking back and getting revenge.”

“How’d they know where he lived?”

“Diz, please. It’s cake to find people nowadays. You got a computer? They probably knew where he’d be living before he moved in. Come on, this doesn’t sing for you?”

“No, it does, that’s the problem.”

“Why’s it a problem?”

“Because if it happened the way you say, my client’s innocent.”

“And this is bad news because…”

“Because he’s about three years into life in prison right now.”

Moses tipped up his club soda. “Could be worse.”

“True,” Hardy said, “but it also could damn sure be better.”

“B
UT WHY
didn’t the prosecution look into that?” Frannie asked between bites of her calamari. “I mean, I can see them finally deciding it was probably your guy Evan, but you’d think they’d at least question some of the victims’ family, too, wouldn’t they? If only to find out some background on them.”

“More than background, Frannie. These were two murders. Just thinking it was Evan shouldn’t have been nearly enough. They would have wanted to prove it and maybe send him to death row.”

They were at Pane E Vino, back on Union Street not far from Washburn’s office, and here it had finally chilled down enough to make them decide to eat inside. They were up right in the window. Dusk hadn’t yet progressed into dark. Frannie’s shoulder-length red hair brought out the contrasting green in her eyes, which were the same color as the silken blouse she wore—a visual that, even after all of their time together, still captivated Hardy.

Dipping some of the fresh warm bread into the restaurant’s little dish of olive oil, Hardy pinched some salt from the open bowl and sprinkled it over his upcoming bite. “But just because we have no record that anybody from the FBI talked to them doesn’t mean that it didn’t happen. Washburn and I have developed a theory about that.”

“Which is?”

“That the FBI interviewed these people and didn’t pass their information on to the police or the DA.”

“Why wouldn’t they do that?”

“Well, the simple answer is because they didn’t have to. But another answer is maybe they just didn’t want to. And finally, Washburn’s personal favorite and maybe my own, is perhaps they were ordered not to.”

“Why would that be?”

“Evidently, that is not a question for us mere mortals.”

Frannie chewed thoughtfully, sipped at her Chardonnay. “So what are you going to do?”

“Well, first thing, I’ve already done it. Driving up, I called Wyatt”—this was Wyatt Hunt, Hardy’s private investigator—“and asked him to try to find anybody in the extended Khalil family that the FBI actually talked to. And the beauty of it is that it doesn’t even really matter too much what they said. If the FBI talked to them at all about the Khalil murders and didn’t see fit to tell the DA, then we’ve got a real discovery issue.” Hardy put his wine down. “Moses, you know, thinks Evan might even be innocent.”

“And why does my brilliant brother think that?”

“Well, the great thing about Mose, as you know, is that he can build these complex theories without any reference to the facts. Or maybe with just one teensy little fact.”

“And which one was that?”

“In this case, that Nolan killed the Khalils.”

“You think that’s a fact?”

Hardy considered, nodded. “Close enough. I don’t think Evan did, that’s for sure. So based on that, according to Mose, Evan didn’t kill Nolan. The Khalils did.”

Frannie’s face grew dark. She placed her hands carefully apart on either side of her plate. “And these are the people you’re hoping to go talk to? These same people who killed Nolan?”

“We don’t know they killed Nolan. That’s just Mose’s theory.” But even as he said it, Hardy knew where his wife was coming from, and why she suddenly was so concerned. He couldn’t deny the sharp tickle of apprehension that washed over him as well.

And, he realized, it was not altogether ungrounded.

Frannie was already concerned, and she wasn’t even aware yet that there was any question about what had happened to Charlie Bowen, whether he’d in fact actually disappeared or whether he’d been the victim of foul play.

Perhaps following the same path upon which Hardy was thinking to embark.

He sucked in a quick breath—he didn’t want Frannie to worry about that—then picked up his wineglass and took a sip. “I know what you’re saying,” he told her, “but if these guys were a real problem on that level, I’ve got to believe the FBI, with all of its resources, would have gotten some inkling of it. Wouldn’t you think?”

“I would think that, yes. But then what?”

“Then I’d think they would have arrested somebody. That’s what they do, Frannie. They find bad guys and put them away.”

“Except if this one time they, in fact, didn’t.”

“Why wouldn’t they?”

“For the same reasons you just gave me why they didn’t tell the DA about these interviews you’re pretty sure they had.” She ticked them off on her fingers. “They didn’t have to, they didn’t want to, or they were ordered not to.”

Hardy acknowledged the point with a small nod. “Well,” he said, “I’ve got to believe there’s a quantum difference between not turning over interview notes and not arresting someone they knew was a killer.”

“Dismas.” She put her fork down and met his eyes. “I never actually thought I’d say this, but you don’t watch enough television. On
The
Sopranos,
the FBI turn mobsters all the time and leave them in place for years, hoping to scoop up the big fish. Meanwhile, all these other people are getting beat up and killed. This happens in real life too. Everybody knows this.”

He nodded again. “True. It just seems a ways off on this case. At least at this point when everything’s speculation.”

“Do me a favor, would you?”

“Anything, my love.”

“If it moves beyond speculation, take a little extra care. If these people killed Nolan, they could kill you.”

Hardy knew that she might be right, but so was he—this was a long way from being established. “I’m not a threat to the Khalils,” he said. “I don’t want to prove anything about what they did or didn’t do. I just want to know if the FBI talked to them and didn’t tell the Redwood City cops about it. So I don’t think we have to worry too much about anything happening to me.”

“Oh, okay,” she said with an edge, “then I’ll be sure not to.”

A
NOTHER OF THE CHANGES
in Frannie’s life after her own children had moved out was that she had turned into a baby junkie, so after dinner, since they would be driving right by the Glitskys’ flat on their way home anyway, she suggested that they should call their friends and see if they wanted company. Back a few years ago when Date Night had been truly sacred, especially during Rachel’s first year, this postprandial visit had become a weekly ritual.

Now, while Frannie and Treya and even Rachel passed the infant Zachary back and forth with suitable enthusiasm in the living room, the two men sat on the steps overlooking their swingset project in Glitsky’s small backyard and talked quietly, very quietly, about Charlie Bowen.

“You really think he’s a homicide?” Glitsky was nowhere near as defensive as he might have been if either Bowen or his wife had disappeared on his watch, rather than on Marcel Lanier’s. So Hardy’s theories were interesting and maybe even fun to talk about, but they weren’t—yet—Glitsky’s problems.

“Not exactly,” Hardy said. “It’s just suddenly I’m finding myself a little more curious about what happened to the guy.”

“You’re building the whole thing on a bunch of ifs. You see that, don’t you?”

“Well, not all of them are ifs. Scholler didn’t kill the Khalils, for example. That just didn’t happen.”

“That doesn’t mean Nolan did.”

“No. That’s true.” Hardy rubbed his palms together. “But let’s say that a homicide professional such as yourself had a hunch somebody had been killed, even if there was no body and no evidence. How would you go about finding out if you were right?”