When Hardy got home at eleven the house was asleep.
There was a Redi Delivery Service box on his front porch when he walked up and he opened it in his office – the dailies. Only death-penalty defendants, who got them free, and people as rich as Andy Fowler, who could afford them, got daily transcripts. One hundred eighty-eight typed pages of today’s transcripts that he ought to review before tomorrow. Maybe someone had said something at the trial today he hadn’t heard, or listened to carefully enough.
He saw Frannie’s note by the telephone. Elizabeth Pullios had called with the message that the prosecution was adding May Shinn to their witness list ‘re Fowler knowledge gun on boat.’
Shinn again. What did that woman really know?
Was this only the second day? He couldn’t imagine ever getting to sleep. He’d already tried twice, once a little after midnight, then again around two. Now the clock by his bed read 3:15 and he’d just had a rush of adrenaline, remembering how he’d been so unsuspecting of Strout’s testimony and then there had been a snake in it.
He recognized in a flash what had awakened him -Tom and José. He’d noted their presence both in the courtroom and on the witness list and, as he’d done with Strout, had reviewed and reviewed and finally reached the conclusion that neither of the Marina guards had anything damaging to say about Andy Fowler.
What had jolted him awake was the realization that he was wrong again – he had to be wrong. Pullios wouldn’t call them to pass the time of day. There must be something there and he hadn’t seen it.
Wearily, he threw back the covers and padded barefoot to his office.
52
‘We talked to her last night,’ Pullios said. ‘I think she’s tired of all this.’
‘It does get that way.’
It was nine o’clock, and Hardy was leaning over the prosecution table, talking with his opposing counsel about May Shinn. ‘You want to tell me about her testimony?’
There had been an element of courtesy in Pullios’s phoning him to let him know they were calling Shinn as a witness. It made him nervous.
‘You know Peter Struler? He’s been handling this. He’s interviewing her today. Of course you can review the transcript.’
Hardy said he planned to. ‘But you saw May last night? How’d you get her to agree to talk to you?’
‘You know, she’s very bitter about all this – all the litigation, the way she’s been treated. I thought we might make some gesture. Well, Sergeant Struler did.’
Hardy waited.
‘You know we’ve been holding all of her clothes, personal items, knickknacks, things like that, from the Eloise. The sergeant thought we could cut through the red tape and at least get that stuff back to her. None of it is evidence here, strictly speaking.’
‘What is evidence here?’ Hardy said.
‘Well, her testimony will be.’ Pullios smiled sweetly. ‘Did your client tell you how he found out that the gun was on board, exactly where she kept it?’
Andy Fowler still appeared as exhausted as he had in the office the previous night. ‘Well, there’s the missing link if she does it,’ he said.
Hardy kicked the wastebasket; it crashed against the wall, then fell on its side. ‘You knew she knew this! All along you knew it!’
Jane had come to the courthouse with her father and had accompanied them into their conference room. ‘Dismas, for God’s sake…’
A guard opened the door and asked if everything was all right in there. Hardy told him it was and good-bye.
Fowler, seemingly unmoved, shook his head. ‘She wasn’t testifying, remember? Why do you think I didn’t want to call her ourselves?’
‘Well, now she is. How could you not tell me this?’
Fowler said nothing, then, ‘Maybe I can talk to her now.’
‘Last night you couldn’t, though, right? Nice timing on the change of heart. Goddamn it, I’ve at least got to have the facts, Andy. I can’t defend you without them. Jesus, you know that.’
‘I honestly didn’t think it would come up, Diz.’
Hardy put both hands on the table and leaned over. ‘Well, it’s come up. How about that? Is there anything else you want to tell me that you don’t think is going to come up?’
Jane cut in. ‘Dismas, come on.’
He turned on her, trying to keep his voice under control. ‘You know what this is, Jane? Your dad’s right -it’s the missing link. There was no way they had first-degree murder unless he knew the gun was on board. Without that there’s no way they could prove he’d premeditated it.’
He’d only had two hours of sleep. His stomach was churning and his head buzzing with four cups of espresso. He had planned this argument as his ace in the hole, ready to unleash it during his closing argument. It was, in fact, a crucial point in his finally coming around to a belief in Andy’s innocence.
He had even asked Andy directly, early on,‘Did you know the gun was on the boat?’ Just like that. Couldn’t have been clearer. And he had looked right at him, figuring it wouldn’t come out, and lied just like he had lied about not ‘knowing’ Owen Nash. No wonder he hadn’t wanted May on the stand.
‘I’ll tell you something, Andy,’ he said, ‘I’m tempted to withdraw.’
‘Dismas, you can’t!’
‘Yes, I can, Jane. You’d be surprised.’
Fowler wagged his head back and forth. ‘Nothing’s changed, Diz. I still didn’t do it, if it helps you to hear it again. I never claimed my behavior with or about May was entirely rational, let alone sensible. But -’
‘Jane,’ Hardy said, ‘could you leave us alone a minute?’
‘It’s okay, honey, go ahead,’ Fowler told her.
The door slammed after her but it barely registered.
‘Listen up, here, Andy,’ Hardy said. ‘I’m not stupid. Yes, May has had you off-center and that may explain a lot. But you’re also acting like nothing’s changed, above it all, still the judge, even though you happen to be on trial for your life. You’re still trying to save face, as though nothing you did or didn’t do could matter because you’re the Judge and a fine fellow and you want people to still see you that way. Forget it, Andy. That’s all over. You’re on trial for murder here. Trying to save some image so you won’t look foolish or bad or whatever to me or anyone else is a total waste and dangerous. If there’s anything else you want to tell me, tell me now. It doesn’t matter a damn what I think of you, what anybody thinks of you. I know that goes cross-grain to the way you’ve lived your life, but it’s true. The only thing that matters about you now is that you didn’t kill Owen Nash.’
Fowler’s eyes were bloodshot. ‘I didn’t,’ he whispered.
‘I don’t think you did,’ Hardy said. ‘That’s the only reason I’m still here.’
Hardy had been ready to stipulate that Owen Nash had been shot on the Eloise sometime during the afternoon of Saturday, June 20, as well as to several other timing and forensic issues. Pullios wanted to talk to everybody on the witness stand and would stipulate to nothing. Fowler thought it was because she had few enough facts to work with, and without a parade of prosecution witnesses her case would appear to have less factual support.
So they had to sit and listen to José relate how the Eloise had already been out when he’d come on around seven o’clock or so on Saturday morning, and had been back in at its slip the following morning. Hardy had a point or two on cross. He wanted to make sure that when José and Tom had boarded the boat on Wednesday, neither of them had tampered with it. José told him he hadn’t boarded the Eloise or seen anyone else near it. Tom then testified that the Marina had been nearly empty all that day – the weather had been terrible, and he hadn’t seen anything of Nash’s boat. It hadn’t yet gotten back in by the time he got off for the night.