As he came abreast of the judge’s chambers, he stopped. The door to Braun’s chamber was open about halfway and Paul Stier and Jerry Glass were coming out of it, still in amiable conversation with Braun. When they saw Hardy, both their progress and the discussion came to an abrupt and awkward halt.
“Gentlemen. Your Honor,” Hardy said, and held his ground, actually more shocked than angry, waiting for the explanation that would have to be forthcoming. One of the most sacrosanct rules in jurisprudence was that attorneys with active cases before a judge were not to have any ex parte interaction with that judge.
Any.
And it went both ways. A judge should not allow or entertain the possibility of such interaction.
What Hardy had just witnessed was an apparently flagrant violation of that rule-enough that he might on those grounds alone immediately move for a mistrial and, later, the judge’s recusal of herself from the case.
Glass came around Stier and stepped right into the breach with what Hardy considered a pathetically cavalier approach, an offhand wave, a light tone. “Counselor. This is not what you think it is.”
This was unworthy of a response, since obviously it was what it was. Hardy, in no way tempted to be forgiving or friendly, looked around the two men and into the room. “Your Honor?” he asked with a hint of demand in his voice.
Braun came forward, embarrassed but clearly determined to brass her way through. “Mr. Glass is right. Nothing untoward occurred here, Mr. Hardy. These gentlemen happened to pass my doorway and I heard them talking about the mayor’s appearance in the gallery and we exchanged a few casual words about it, that’s all. Much as you and I are doing right now.”
“With respect, Your Honor. You and I are talking right now in the presence of my opponent, and overtly or not, we are discussing the case before your court. As a matter of fact, before we go on, and if we are to go on, I’d like to request that the court recorder be present.”
“That’s ridiculous,” Glass blurted out.
Hardy ignored him, focused on Braun. “Your Honor?” he said again.
After an excruciating five seconds, the judge’s eyes having squinted down in concentration, she nodded and with a touch of ostentation checked her watch. “Court’s back in session in six minutes,” she said. “I’ll see you gentlemen out there.”
And with that she closed her door.
In the courtroom Maya had yet to be brought in. Hardy greeted Kathy and Harlen cordially through the press around them and thanked them for their show of support. He said hello to Joel. Then, excusing himself, he caught Gina Roake’s eye back a few rows and motioned both her and Farrell up to the bar rail.
When they got there, he said, “I’m going to believe you both came down here to take notes on how a master does an opening statement.”
“What else could it have been?” Roake asked with a straight face, then gave a little wave over at the mayor and Harlen. The bonds among all of them had of course become a bit strained over the years and all of these individuals evolved into new relationships, new jobs, even-it sometimes seemed-new selves. But seven or eight years before, when the city was in turmoil over the resignation of District Attorney Sharron Pratt and the grand jury indictment for murder of her chief assistant, the then-mayor had appointed a new district attorney. Clarence Jackman had come on board from the private sector to restore some semblance of order-getting the department back on budget, prosecuting crimes, litigating the city’s business problems. Jackman had gathered around him a kitchen cabinet that met most Tuesdays at Lou the Greek’s. That group had included, among a few others, Hardy, Roake, their now-deceased partner David Freeman, Kathy West, who was a city supervisor back then, Glitsky, the Chronicle columnist Jeff Elliot, and Jackman’s secretary, Glitsky’s future wife Treya.
“Although,” Gina continued, “it is always nice to see Kathy. She’s looking particularly perky today, don’t you think?”
“I do, but enough about Kathy,” Hardy said. “I need a little advice. I’ve got a question for you guys.”
Farrell was ready for him. “Berlin,” he said.
“Good answer,” Hardy replied. “Wrong question, though. The real question is what do you do if you see your judge schmoozing with your opposite number?”
“Yeah, Berlin would be wrong for that one,” Farrell conceded. “You’re talking ex parte? When did it happen?”
“Just now. Five minutes ago. Braun and Stier and Jerry Glass, back in her chambers.”
“What were they talking about?” Roake asked. “Not that it should matter too much.”
“That’s my point,” Hardy said. “I think at the least I’ve got to have her memorialize what went on.”
Farrell asked, “Doesn’t she already hate you?”
“I believe that’s accurate. So in that case, how could it hurt?”
“It could always hurt,” Roake said. “Your judge hates you, she can fuck you in myriad subtle and unreviewable ways, as I know you’re aware. You really don’t want her hating you more than she does.”
“Yeah, but this happened. If she doesn’t memorialize it, it goes away.”
“All I’m saying,” Roake went on, “is compare it to what happens if she does. Could be a lot worse, and you wouldn’t even know it. And more to the point, Diz, what do you get for pissing her off? They’re going to make up some kind of bullshit explanation no matter what they were doing, and no court of appeal will ever give you a reversal. You get nothing for your trouble, so anything you could lose is not worth it.”
“Maybe,” Farrell put in, “you could ask her if she wants to recuse herself.”
“That would just piss her off too.”
Farrell made a face. “Okay, then, how about going to Thomasino?” Oscar Thomasino was the presiding judge of the Superior Court and, more importantly for these purposes, a reasonably warm acquaintance of Hardy and both his partners.
“I thought of that,” Hardy said. “But I didn’t hear anything they said, and Braun will just say it was a casual conversation that had nothing to do with the case. And guess what? That, too, will piss her off. Knowing that I get out of bed every morning probably pisses her off, now that I think about it.”
“Maybe you should have challenged,” Farrell said.
“Thank you,” Hardy replied with heavy irony. “If only. Maybe I’ll whip into my time machine and go back and do it when I could.”
“Do you really want her out, Diz?” Roake asked.
Hardy turned to her, his voice barely a whisper. “Nothing would make me happier. But one ex parte communication seems a little thin, as grounds go, to get rid of her. Especially if they weren’t, in fact, talking about the case.”
“It might be smarter,” Gina said, “to let her keep on knowing that you’ve got something on her.”
“I like that,” Farrell said. “Better to have her think she owes you.”
“And I’m guessing,” Roake added, “that you want to decide right away.”
“Actually, I think I’ve decided. But the last thing is I don’t want her thinking I’m a wimp and she’s frightened me off.”
Farrell grinned at that. “I think she already knows you better than that.”
“So I just keep this in my pocket? That flies for both of you? No memorializing? No recusing?”
His partners silently conferred with each other, glances back and forth, consensus.
As soon as she ascended to the bench and got the courtroom under control, Braun called the attorneys up to her bench for a sidebar. “Mr. Hardy,” she began, “we’re on the record now. Is there anything you’d like to bring up before the court?”