"That's not exactly what I'm saying, Your Honor. He wants a mistrial because he can't take the chance of a not guilty verdict in a case this big. Not if he wants to be DA someday."
"My God, Your Honor! I don't believe…"
Braun held up her hand, stopping Rosen without saying a word. "Mr. Hardy?"
"What I'm proposing," Hardy said, "is a hearing on the issue. The court needs to know who talked to whom and when. Particularly Mr. Rosen and Inspector Cuneo, but possibly other witnesses and maybe some reporters as well. At the end of that hearing, defense may ask for a mistrial, but I don't want to do that until I've heard the evidence on prosecutorial misconduct."
"And what would this misconduct be specifically?"
"Breaking the gag order, Your Honor, and perjury."
Rosen was beyond fury, Cuneo looked ready to take a swing at Hardy. Braun hated the whole thing.
Hardy kept talking. "There is no mention anywhere in the record going all the way back to Inspector Cu-neo's grand jury testimony-not in any of his reports, nowhere-that my client made any inappropriate advances to him. I think the court needs to see whether he mentioned these alleged advances to any of his colleagues, or anyone else, previous to the other day, or whether, perhaps after a discussion with Mr. Rosen, he just made up a new story. And then got encouraged to speak to the media to further discredit Deputy Chief Glitsky…"
"Your Honor," Rosen cut Hardy off. "This is an obscene accusation that will be impossible to prove one way or the other anyway. It's up to Mr. Hardy to ask for a mistrial. If he doesn't choose to do that, fine, perhaps we replace some jurors who might have read today's articles, but then we take our chances out in the courtroom. That's what trials are about."
But Braun was mulling, sullen. "I don't need you to remind me how to conduct this case, Mr. Rosen." Now she bit out her words. "It's your witness who's caused us this problem because you obviously failed to keep his enthusiasm in check. Meanwhile, on an issue of this magnitude, I won't be ready to make any kind of ruling on Mr. Hardy's question until tonight or tomorrow. I'd like to keep this ship afloat if I can, but I'll be damned if I'll let it go on and get reversed on appeal. And while we're talking about appeal, Mr. Hardy, perhaps you'd best tell us the tactical reasons why you will only accept a mistrial with a finding of deliberate misconduct. Seems to me that even without that, you've got ample grounds."
"That may be, Your Honor," Hardy said, "but it may also be that Inspector Cuneo's intemperate comments will work in my client's favor."
This was the crux, and for a second, Braun's fuse blew. "They shouldn't work at all, goddamn it." She whipped on Saunders like a snake. "Strike that last." Then back to Hardy. "Cuneo's comments to the press weren't made in the courtroom under oath. They should have no bearing on this case. None. That's the issue."
"Yes, Your Honor."
Braun sat back in her chair, stared into the middle distance for a beat, came back to Hardy. "I'm curious. How might these allegations help Mrs. Hanover?"
"She thinks the conspiracy idea is too far-fetched to believe on the face of it. The jury's going to think Cu-neo's a press-hungry hot dog." He brought both other men into his vision. "Which, by the way, he is."
Cuneo took a threatening step toward Hardy while Rosen snorted and said, "We'll see about that."
"Yes, we will."
But this small exchange riled Braun even further. She straightened her back and raised her voice to a crisp, schoolmarmish rebuke. "You gentlemen will not address each other on the record, but only the court. Is that clear?" Coming forward in her chair, she said, "Just so we're completely unambiguous here, Mr. Hardy, the defense isn't requesting a mistrial without a finding of misconduct?"
"That's correct, Your Honor."
"Meanwhile, you're both prepared to proceed today?"
Both counsels nodded. The judge nodded, drew in a deep breath and released it. "All right," she said, rising and walking to where her robes hung. "Time to go back to work."
Braun herself had a very tough morning, and it didn't measurably improve her already charming disposition. After reiterating her gag order to the participants on the record in front of the disgruntled media assembled in the gallery, she then nearly set off a riot among several members of the jury when she announced her decision that they would be sequestered for the remainder of the trial until they had reached a verdict or announced they were unable to do so. Hardy had to like the suggestion that a hung jury was a possibility. Every little bit helps. She wound up dismissing three of them-those who had admitted reading any part of the article, though she retained the juror who had only read the headline-and substituted them with two men and one woman, none of whom had read the article, thus exhausting all the alternate jurors.
Braun didn't want to inadvertently inform the remaining jurors who hadn't read the article what it was about, but she cautioned them again that the deliberations and conclusions they would eventually reach in this case must be based only on statements given under oath in the courtroom and evidence submitted to the court.
They must disregard anything they heard on the news or read in the newspaper before, and must not read or listen to anything new. And to that end, she would be allowing neither television access nor newspaper delivery to the jurors for the duration.
And this really nearly sparked a mutiny among the panel. Several days without a television! What would they do? How could they live? One panel member, DeWayne Podesta, even asked for and received permission to speak to the court as a representative of the whole jury, and he argued that the jurors were good citizens doing their civic duty, and didn't the Constitution forbid cruel and unusual punishment? And if so-Podesta really thought it did-certainly deprivation of television qualified.
Eventually, Braun restored order to the courtroom. But the machinations, cautions, pronouncements and simple business consumed the whole wretched morning. When they resumed in the afternoon, Braun announced, they would begin with Hardy's cross-examination of Sergeant Cuneo.
Until then-she slammed her gavel-court was adjourned.
Glitsky and Treya were having opposite reactions to the boulder that had settled on each of their respective hearts with the concern over their baby's life. In Treya's case, it might have had something to do with the physical exertions of the birth itself. She had been sleeping nearly around the clock since they'd brought Zachary home, only waking up to feed him and for a couple of hours last night when the Hardys and Nat had been by. Glitsky, on the other hand, hadn't slept for more than a few hours.
Now it was nearly ten o'clock on a Wednesday morning, and he'd been awake since first light, finally having dozed off sometime a little after two twenty, or at least that was the last time he remembered looking at the bedroom clock. Rita, their nanny/house-sitter, God bless her, had made herself available and was back with Rachel now, and the two of them were watching the television down the kids' hallway, the sound a barely audible drone. Their cardiology appointment with Zachary was in three hours, and sitting at the kitchen table, a cold mug of tea untouched in front of him, Glitsky stared at the clock and wondered how long he should let his wife sleep. If she needed another hour, maybe more, he was inclined to let her take it.
In the four or so hours since he'd gotten out of bed, Glitsky had of course read the morning paper and made calls to Jeff Elliot at the Chronicle, to the mayor, to Hardy at his office and to his own office. The first three had not yet called him back at his private home number. His voice mail at work was clogged with reporters and even a few colleagues-including, he was happy to see, Chief of Police Frank Batiste offering his encouragement and support. But for the most part, nothing that happened outside the walls of his home was having much of an impact on him. Nothing was as important, even remotely as important, as the immediate health of his son.