The Ophelia Cut (49 page)

“That’s a long five years,” Hardy said.

“That’s a long first two hours,” Amy replied. “Five times a week for five years. If I knew that guy was coming in every day—no, never mind.”

“I’m trying to remember one single thing we talked about.”

“I don’t think that’ll turn out to be a productive use of your time, Moses.” Amy was all business. “Who’s up next, you think?” she asked.

Moses asked, “Doesn’t recess mean we take a break from talking about the trial for a few minutes? I mean, we were almost having some fun there with Dave for a second or two.”

“Fun?” Hardy deadpanned to Amy. “He’s joking, right?”

N
EXT UP WAS
Inspector Sergeant Lee Sher.

Crisp and professional in her uniform, she took the stand and sat with an air of expectation as Stier introduced into evidence both an original tape recording and the transcript that Sher had vetted.

Hardy had read the transcript in his discovery papers, and it had led to his biggest fight with Moses of the entire ordeal. Because, contrary to
Hardy’s explicit orders, and more than a little drunk, the client had made the decision to basically spill his guts to his two arresting officers, who’d had the good sense to place a recording device under the backseat of the police car.

That disastrous decision, Hardy knew without a doubt, would be coming back to bite them.

“Inspector Sher,” Stier began, “please tell the court how you are connected to this case.”

“When Richard Jessup’s death got called in to the Homicide Department, my partner, Paul Brady, and I were assigned to investigate. Over the course of the next few days, we identified the suspect and eventually arrested him for Mr. Jessup’s murder.”

“Where did this arrest take place?”

“At the defendant’s bar, the Little Shamrock, on Lincoln Way near Ninth Avenue.”

“And what is your procedure when you arrest a suspect, Inspector?”

“The first thing we do is inform the suspect that he is under arrest, and then we read him his Miranda rights warning.”

“And what is that?”

“It basically informs the suspect that he is under arrest, he has the right to an attorney and the right to remain silent, although if he does choose to speak, anything he says can and will be used against him.”

“And did you read Defendant McGuire his Miranda rights upon his arrest?”

“We did, yes.”

“And what do you do next?”

“Well, if there is no resistance from the suspect or medical issues to deal with, we handcuff the suspect and put him in the back of a police car, after which we drive him downtown to the Hall of Justice for booking and processing.”

“And is that what you did with the defendant in this case?”

“Yes.”

“Thank you.” Stier walked over to the evidence table. “Sergeant, I’m going to play a tape recording for you, and at the end, I’m going to ask if that was a full and accurate recording of what the defendant had to say on the way to the station after he’d been arrested.”

Hardy spent an excruciating half hour trying to show no reaction while listening to an obviously drunk McGuire do exactly what Hardy had told him not to do.

When the tape was finished, Stier asked Sher, “Did you tell the defendant he was being taped?”

“No.”

“Were you or Inspector Brady asking any questions?”

“No. We just let him talk.”

“So, during the ride to the station, Mr. McGuire said, ‘He needed killing, and I’m glad he’s dead.’ ”

In his ongoing plan to stay on the good side of the judge, Hardy had been trying to limit his objections, but this was too much. He rose to his feet. “The tape speaks for itself, Your Honor, and is in evidence. It is inappropriate to ask the witness to repeat bits and pieces of it out of context.”

“Sustained, Mr. Stier. The jury has heard the tape, and they’ll have it in the evidence room if they need to hear it again.”

That was small comfort to Hardy. Gomez was exactly right. The jury had already heard, and would certainly hear again, his client’s drunken rave: “Either of you have kids? No? What do you think you’d do if you had a daughter and found out some little punk had first beat her and then raped her? You think you’d sit around wringing your hands? C’mon, you guys are cops. You’d go and handle things, wouldn’t you? Tell me you wouldn’t. Because sometimes the law doesn’t get it right.”

Hardy decided to let Sher go.

After she had left the courtroom, the judge said, “Mr. Stier, your next witness?”

Stier replied, “Your Honor, the People rest.”

H
ARDY SPENT A
great deal of the weekend at his office in the company of Amy Wu and Gina Roake. At issue was their SODDIT defense, upon which they were basing most of their hopes. They were there to draft a response to a motion that Stier had served on them and filed with the court late on Friday afternoon. It was entitled “People’s Motion to Exclude Speculative Evidence Regarding Possible Third-Party Culpability.”

Upon the first quick read-through, Hardy thought it sounded a death knell to their hopes. Stier, no fool at all, had seen where Hardy planned to go with his witnesses and had moved to head him off at the pass.

Both Goodman and Lo had been subpoenaed and were on the witness list and would be available to the court on Monday morning. Both had reason to dislike or even hate Rick Jessup and feel either a threat from him (Goodman) or a passionate urge to punish him (Lo), so both had an arguable motive to want him dead. Similarly, six of Lo’s women had been assaulted by Jessup and possibly subjected to who knew what other humiliations; either they or their protectors might be assumed to have a motive to kill the victim as well.

On an entirely different level, the disappearance of Tony Solaia might be played into a major issue. Viewed starkly, Tony was perhaps the best alternative suspect Hardy could present to the jury, assuming the judge allowed it. Tony had, after all, been the first person to hear about the rape. He was Brittany’s boyfriend, at least, if not lover. He’d had access to the shillelagh on Saturday night, and he had no alibi for any part of the next day. Add to that the stunning revelation that he was already in the witness protection program—someone who had turned against his former comrades in crime and would provide evidence against them in return for the government dropping charges against him, charges that apparently
included murder for hire—and Tony Solaia should certainly be a person of interest in the murder of Rick Jessup.

But there was huge disagreement among his team over how to play the card. Amy and Gina were convinced that they should ask for a dismissal but settle for a mistrial. Clearly, the prosecution had failed to turn over exculpatory evidence: one of their principal witnesses was a murderer being protected by, and getting money from, the feds. Even if Stier didn’t personally know this—and Hardy had no way to find out—they would argue that he should have. The bottom line was that even if Gomez wasn’t inclined to find it was anybody’s fault, a badly tainted witness had testified, and the defense hadn’t had the opportunity to confront him about all the dirt in his past. It was simply unfair.

As a second separate issue, Tony was still subject to recall by the defense, and they couldn’t call him because he’d gone away, probably with the assistance of the federal government. Again, direct governmental interference with the defendant’s right to a fair trial. Even if Gomez couldn’t blame Stier, Hardy had a powerful argument that they should get a do-over for this reason alone.

Gina had told Hardy bluntly that she didn’t think the trial was going well. Brilliant tactician though Hardy might be, the Big Ugly was eating his lunch on every major issue with every single witness. In Gina’s opinion, it couldn’t get worse. It was time for a legal Hail Mary, whatever that might be. They’d had a chuckle over the possibilities. In fact, Amy had added, the issues supporting a mistrial were so clear and their arguments so strong that the court of appeal might very well find Hardy and Amy ineffective if they didn’t ask for one. Amy didn’t know about Hardy, but she planned to continue in the practice of law for quite some time, and it didn’t help bring in clients for a court of appeal to publicly label you incompetent.

Hardy wasn’t sure a mistrial would be to their advantage. It wasn’t like Moses would get out on bail or the case would be dismissed; it just meant a do-over in sixty days, and as bad as the case was, he couldn’t think of anything likely to make it better.

In the end, it was a moot point. Moses flat-out vetoed the idea. He wasn’t going to start over and endure more time in jail and more expense
while his attorneys prepared for another trial. That wasn’t going to happen.

Their last problem was with what was formally called the “third-party culpability” defense. All along, Hardy, Gina, and Amy had known the problem was substantial if not insurmountable: for any evidence related to another suspect to be admissible, it wasn’t enough to produce a possible motive, even a great motive. It wasn’t good enough to produce a motive and show opportunity. No. The defense not only had to produce a
specific other person
with motive and opportunity, they also had to show direct or circumstantial evidence linking the third person to the actual perpetration of the crime.

This was a high hurdle, particularly in the cases of Goodman and Lo.

Goodman had informed Hardy first thing Saturday morning that he was bringing his own lawyer to court on Monday morning and, if it came to it, he would dispute the admissibility of his testimony with the judge. Liam Goodman was not about to get on the stand and admit to unproved allegations that showed he had hated Jessup and defrauded the U.S. government. Did Hardy think he was that naive? He could prove where he had been during every minute of the Sunday when Jessup was killed, beyond which there was no direct or circumstantial evidence linking him to the perpetration of the crime, words he actually used, which meant—no surprise, since he was a lawyer—that he was prepared.

Lo, for his part, was in Los Angeles over that weekend, so actual perpetration of the crime was an impossibility for him, too. Whether or not Lo knew that, Gomez would, and if Hardy could not convince her otherwise, she wouldn’t admit the questioning of Lo.

That again left Tony, whom Hardy had reserved the right to recall, if they found him. Hunt had done a fine job of tracing the U-Haul truck but had lost the trail in Salt Lake City, at which time Hardy called him off.

So of their three “other dudes,” two might be ruled inadmissible by Gomez, and the third, also possibly inadmissible, could not be found.

Hardy had argued third-party culpability before, and had prevailed, but this time out, he did not have a specific person to implicate in the actual crime, as he’d had with his previous successful arguments. Also,
he had the feeling that his scattershot approach—proposing three alternative suspects instead of a single most likely one—might work against him.

And if the jury wasn’t going to hear about other suspects, where did that leave his client? Had Hardy adequately refuted any of the prosecution’s claims?

Motive? No. Means? No. Opportunity? No.

By Sunday night, he was as close as he’d ever gotten to true panic. This was why you never wanted to let your client talk you into going to trial as soon as it could be calendared. Hardy, after finally discovering the motives of Goodman and Lo, had no time to connect motives to either of them or to any other specific person. He had no time to discover more details about the other case Tony was involved in. He had no time, period, for everything else that needed to be done.

Frannie came into the living room where he was sitting in his reading chair, binders piled around him, reading none of them. She moved his feet over and sat on the ottoman in front of him. “You ought to go to sleep.”

He shook his head. “I’m freaking out here. I think I’ve based my whole damn case on a bad premise.”

“You always feel that way.”

“That doesn’t mean I’m wrong this time.”

She rubbed a hand on his leg. “Come up to bed. It’ll look better in the morning.”

“If Gomez turns me down on third party,” he said, “then all I’ve got left is rush to judgment—the whole Lapeer situation—and the problem with that, notwithstanding O.J., is that it’s not a real legal defense. So the judge looks at me and says, ‘Fine, Mr. Hardy, but why should we care that the police acted as they did? They didn’t break any laws, they made a righteous arrest. The evidence accuses the defendant. What’s the problem?’ ”

“She won’t say that.”

“She will. She will say exactly that. Unless I can talk her out of it.”

“Which, history argues, you can. As you say, it worked with O.J.”

Hardy barked. “Hah. There’s a precedent you want to follow.” He sighed again. “This could be over quick, you realize that?” He hesitated,
then lowered his voice. “You should plan on going down and talking to Mose in the next day or two.”

“I will.”

“Before the verdict would be better.”

“Thank you. I’ll try to keep that in mind.”

“I’m sorry. I don’t mean to nag. I’m tired.”

“I think that’s why I came in here. Something about you coming to bed.”

A
S SOON AS
Gomez entered the courtroom on Monday morning, Hardy made his pitch for a dismissal, based on the new evidence about and the disappearance of Tony Solaia. As predicted, the judge refused the dismissal and offered a mistrial, which Moses, on the record, said he did not want and would not accept.

After a forty-five-minute recess to read Hardy’s response to Stier’s third-party-culpability motion, Gomez reentered the courtroom. It was clear that she was pumped up. The courtroom was packed. She took the bench much more briskly than was her custom, took notice of one and all, apologized for her tardiness, and then greeted the jury by dismissing them to the jurors’ waiting room while the court held a hearing about some matters that had come up over the weekend.

After the jury had left, Gomez wasted no time. “Mr. Hardy, earlier the court allowed you to add to your witness list the names of Mr. Goodman and Mr. Lo, both of whom are presumably outside the courtroom in response to your subpoenas today, and both of whom knew Mr. Jessup. The court has reviewed your response to ‘People’s Motion to Exclude Speculative Evidence Regarding Possible Third-Party Culpability’ and has a few questions for you regarding the testimony you hope to elicit from these witnesses.”