The Hearing

Cole sat on the concrete bench. Hardy had already done enough time on the damn thing this morning – he was standing now, leaning back against the door.

Because the morning's routine had been so violently interrupted, they weren't going to get much time to work out any kind of strategy – but Hardy wanted to get at least a few things straight if he was going to defend this boy. The plea. Bail. Money. Timing issues.

But again, it wasn't going to be that simple.

'What's waiving time mean?' Cole asked after Hardy had told him that he was going to have to do just that.

To Hardy, this was merely a logistical detail. Cole had an absolute right to a speedy trial. In practice, though, defendants very rarely wanted one. The conventional wisdom was that it was always to the defendant's advantage to delay. Delay put off an eventual verdict, and until a verdict was rendered, you were presumed innocent, a small detail but a critical one. Delay also provided the opportunity for key witnesses to get run over by a bus or disappear or forget what they had once clearly remembered, thereby strengthening your case. The victim or the family of the victim might lose emotional fire, the need for revenge or, if the delay was long enough, sometimes even closure. The cop who arrested you might get another job. DA priorities could change and you could get offered a better deal to cop a plea.

The possibilities varied, but the general rule held true: a continuance is half a dismissal. Delay was a good thing.

Hardy tried to explain this to Cole. 'The courts are so backed up that no judge wants to assign a preliminary hearing in ten days, so we just say we're OK with putting it off for a few months…'

'A few months?'

'Maybe. Longer if we can.'

Cole was shaking his head. 'And I stay in here? No way. I can't do that.'

'I hate to break it to you, Cole, but you have to do that. You've got a DA who's talking death penalty to help her get elected, so at the very least we want to put off the trial until after the election, which is next November, nine months. At least.'

But Cole was still shaking his head, frowning, struggling with it. 'I can't stay in here for nine months,' he said. 'I'd die.'

'You've got a lot better chance of dying shooting smack for nine months out on the street.'

But this fell on deaf ears. 'No.'

'Cole, listen-'

'I can't be here for nine months! Do you hear me?'

It was a violent outburst, and after the morning's earlier events, it got people's attention up and down the hall. A bailiff was outside the cell before Hardy had any time to react on his own. 'Everything all right here?'

After assuring him that it was, Hardy watched the man move uneasily off, then turned back to Cole. 'If you go to trial now, Cole, with the city still pretty inflamed over Elaine's death, some of the jurors will undoubtedly-'

'I can't,' Cole interrupted. 'I just can't. My mom says you can get me off.'

'I haven't even talked to your mother yet, Cole. And I can't get you off in ten days. If nothing else, I'll need more time just to decide how I'm going to approach the damn thing.'

'Just say I didn't do it.'

'Did you do it?'

He shrugged.

Hardy got a little short. 'Because you've already said you did on tape, in case you don't remember. That's going to take some undoing.'

'You can undo it as well now as you can in nine months, don't you think?'

'No, I don't.'

The back door to the holding cell gave into the courtroom, and now that door opened and a bailiff appeared. They had called Cole's case first. 'Let's roll it out, boys. Showtime.'

Hardy gave his client a last look. 'We'll continue this later.' He stepped back and let Cole pass in front of him, out into the courtroom.

At Cole's appearance through the door, there was an audible rise from the gallery. Hardy, frustrated nearly beyond endurance, nevertheless gave his client a friendly upper-arm squeeze and urged him forward.

As they passed the prosecution table, Gabe Torrey motioned for Hardy to stop, and he let Cole go on over to the other side with the bailiff. He looked again out into the courtroom. More than a decent crowd was on hand, and it seemed restless.

Hardy knew Torrey from half a dozen other dealings, and he didn't like him. He considered the Chief Assistant DA pompous, petty, and political, to say nothing of under-prepared and officious. Now he would be talking death penalty and other similar nonsense, and Hardy knew it was going to get ugly, probably sooner rather than later.

Still, they'd never before crossed the line into hostility, and he saw no reason to go there now.

Torrey put out his hand in greeting and Hardy took it. 'I just wanted to give you a little heads up, Diz. You probably heard we want to move this one along due to Elaine's standing in the community. There's a lot of outrage…'

Hardy listened with half an ear. He noticed the gallery again. It really was humming. Cole was turned around at the defense table. His mother was leaning over the rail, trying to talk to him, but he, too, kept his eyes mostly on the prosecution's side of the gallery, which projected a true sense of menace. This was unique in Hardy's experience – there were people in this room who hated Cole already, and he felt it.

Torrey had finished the self-serving part and was getting down to his point. '… with the confession on tape and all, you know I could get a grand jury indictment in five minutes, so if you're inclined to ask for a long delay, you should know I've scheduled the grand jury for next Tuesday. Unless, of course, you decide not to waive time. Then we'll do the hearing in two weeks as the law provides.'

With a sick feeling, Hardy realized that Torrey was right. There were two ways by which a case got scheduled for trial. There could be a preliminary hearing to determine if the evidence was sufficient to bring to trial. Or the grand jury could come to the same conclusion and issue an indictment.

Hardy wanted to delay, but his client didn't, wouldn't. Torrey was telling him that he would seek an indictment and potentially an even earlier trial date if Hardy tried to stall on the preliminary hearing. Actually, he realized, Torrey might not understand it completely – his strategic grasp of things lawyerly had always seemed weak – but he was doing him a favor by letting him go for a preliminary hearing at all. He could indict at will. If Hardy didn't waive time, he would get at least another ten days to prepare for the hearing, maybe even get his discovery – the evidence in the case – a little earlier.

But ten days! It was an impossible joke. Still, better than a grand jury indictment.

And maybe in that time he could at least convince Cole that it would be in his best interests to agree to a delay before they went to trial.

But either way, this thing had just jumped to the fast track, where any number of disasters were more likely to occur, and where the damage from high-speed impact was likely to be that much greater.

Hardy forced a casual smile. 'It never crossed my mind to waive time.'

'Cole Burgess.' From his bench, Judge Timothy Hill gave it the dramatic reading. The judge was an ancient patrician. Wispy white hair, combed back over his ears, clung close to a bony skull. His skin was parchment stretched over long bones and his robe hung off him like a shroud. The physical look, combined with an utter lack of personality, had earned him the nickname of the Cadaver. But today with the full house, he possessed if not a youthful exuberance, at least a detectable pulse. 'You are charged by a complaint filed herein with a felony, to wit, a violation of Section 187 of the Penal Code in that you did, in the City and County of San Francisco, State of California, on or about the first day of February, willfully, unlawfully, and with malice aforethought murder Elaine Wager, a human being.'