The Hearing

And now the lawyer was trying to get around to doing something else he detested – talking about fees. Jody Burgess was sitting with him on his office couch. He didn't like to put his clients across his desk from him. It put a psychic distance between them that felt awkward.

But Jody was filled with optimism, fueled by good news. She wasn't ready to discuss the cost of the trial and Hardy's representation. Like Prannie, like so much of the rest of the lay world, Jody seemed obsessed with the fact of Cole's guilt or innocence. According to her, he'd recovered a repressed memory that morning, one that contained the absolute and final new version of the truth of the events of early Monday morning.

To Hardy, this simply meant that Cole was changing his story again. First he did it, then he didn't remember doing it, now he didn't do it at all. Who knows? he thought. Next he might remember that he'd actually been by her side trying to save Elaine's life.

Hardy thought he preferred Door Number Two, where Cole didn't remember either way whether or not he'd done it. That answer comported most closely with the facts of some kind of unconsciousness defense, which in turn seemed the most likely to succeed. Thinking this, he realized with something between pride and a pang that he must have been hanging around David Freeman too much. He was really beginning to think like a lawyer.

It was a cold afternoon outside, the fog having lifted to a low cloud cover, but his office was warm. Jody, though, still wore her heavy coat. She was drinking hot coffee. Hardy almost started sweating just looking at her.

Finally, he broached the fee issue, since he had an idea that really was reasonable, given what they had to work with. And it was certainly the least expensive way to proceed, since it would end things fairly quickly. 'Where I thought we'd go,' he was speaking carefully because, low cost notwithstanding, this was not going to bear even a slight resemblance to good news, 'was get the charge lessened in exchange for a guilty plea.' He pressed ahead quickly. 'That way the DA gets to count it as a conviction, we get out of the death penalty arena before we even have to argue the special circumstances.' He spread his palms. 'Everybody wins.'

For a second, he thought she might not have understood. 'A plea bargain?' she said. 'But he didn't kill her at all.'

'Well, he's really not too sure about that.'

'But this morning… he really remembered. I saw it in his eyes, this great relief.'

'I'm sure you did.'

She put down her coffee cup with a clatter. 'You don't believe me.'

Hardy told her he believed her completely. 'But I don't know whether a jury would, and that's the problem.'

Jody sat with it for a while. Eventually she went back to her coffee. 'Let's just say we don't make a deal, just for discussion's sake. What then?'

'Then we have a hearing next week, during which Mr Torrey will show the tape of the confession, and that should be enough to convince the judge that there's sufficient evidence to go forward with the trial.'

'But won't you argue that the confession-'

'Was coerced? Of course. Beyond that, I'll argue that Cole's words contradict the facts as we know them. But in the real world out there, in the courtroom, neither of those things will make any difference.'

'Why not?'

Jody didn't like to hear this, but if anything, Hardy was sugar-coating. He had to get her to understand the gravity of Cole's situation. 'Because a preliminary hearing isn't about whether Cole is guilty or not guilty. It's only to determine whether or not there's a case. Then it goes to trial.'

She was still having trouble accepting it. 'This is so unreal,' she said. After another minute, she shook her head in frustration and finally sat back on the couch with almost an air of collapse.

Hardy waited until her reaction had run its course, then decided it might be useful to agree with her. 'It does feel like that, I know.' He couldn't leave it at that, though. He had to instruct her. 'But it is real, believe me, and the decisions we make right now are going to matter later, so we ought to make sure they're the right ones.'

She rose up, challenging, her voice shaking. 'And you think the right one is saying he did it, when he didn't?'

'You know for sure that he didn't? You are a hundred per cent certain?'

She didn't even have to think about it. 'Absolutely. He's not a murderer.'

Hardy nodded, not at the validity of the point, but in acknowledgment of what had to come next if he was going to continue with his representation of her son. If he was going to get anywhere here with her today, he would have to break through her resistance, her blindness. It was time for hardball. 'Mrs Burgess, has Cole ever lied to you?'

The question surprised her. 'This is nothing like-'

He held up a finger, stopping her. 'It's a simple question. Has he ever told you a lie?'

She found herself unable to answer.

'Many lies? More lies than you can remember? Has he ever stolen anything from you? I know he lied to Jeff and Dorothy when they put him up. He stole from them. He stole from their children, Mrs Burgess. Did they tell you anything about this?'

She'd come forward to the first couple of inches of the couch. She crossed her arms low over her stomach. As though the questions were hitting her there. 'Well, OK, but-'

'Do you know anyone that your son hasn't lied to in the past several years? Or stolen from? Do you think he's trying to get off heroin right now?'

'Yes, yes at least that.' He could see she thought he was throwing her a rope. 'He said he thought he might get in a program-'

'Has he done that? Has he done anything in that direction other than talk about it? Do you think he was trying to kick the habit before all this happened?'

'I do. He'd been back to the halfway house, I know that was pretty recently. He was really trying. It's really hard, you know. It's not that easy.' She was leaning over into her arms now, as though her stomach was cramping.

'I appreciate that,' he said. 'It's hard enough when you're really, really trying, when you're in a program and working with counseling. Was Cole in one of those, I mean outside?'

'No, but he couldn't find the right mix somehow. You know, some of those counselors don't-'

'It's the counselors' fault he couldn't quit? Is that right? And when he came and stayed with you, and then stole your car, for example. You punished him for that, didn't you? You let him know he'd done something really wrong.'

'Yes. Yes I did.' She was almost pleading with him now, her eyes becoming glassy with unshed tears. 'I did tell him how disappointed I was, Mr Hardy. That I loved him and how much it hurt me. It did hurt me.'

Hardy hated to continue, but his only hope to work with her demanded that she recognize the reality they were facing. 'And he said he was sorry-'

She fired it back at him. 'He was sorry. He just… he was…'

'And so, because he was sorry, you let him come back and stay with you again, right?'

'What was I supposed to do, Mr Hardy? I'm his mother. Let him sleep on the streets?'

'Other parents have,' he said simply. 'It's been known to happen.'

'Well, I couldn't. He was trying.' She took a deep breath. 'He was trying.' The staggered breaths kept coming as though she'd been running.

He wanted to ask if she thought Cole had been trying Monday morning when he stole the other bum's whiskey and went off wandering downtown, trying to find his 'g'. But that would just be more talking, more arguing. He had a different idea, one that he suddenly knew would be far more effective.

His discovery documents were on the desk at his elbow, and he lifted a labeled manila folder, extracting from it what he needed – one of the coroner close-ups of Elaine Wager's ear. He crossed back to Jody and laid the perfectly-focused, full-color eight-by-ten on the table in front of her. 'Look at her ear, Mrs Burgess,' he ordered harshly. 'Where Cole ripped her earring out. He also broke her finger getting her ring off, Mrs Burgess. Was he trying then? Was that trying? Was that your good boy?'