The Fifth Witness - Michael Connelly [40]
“Was she within the rules? Yes. Was it fair? No. And one reason you are all hot and bothered about it is that you know it wasn’t fair and that I made the right move. It was something you would have done yourself.”
“Never in a million years. I would never stoop so low.”
“Bullshit.”
I turned away from her. She stayed in the corner.
“What are you doing here, Maggie?”
“What do you mean? I just told you why I’m here.”
“Yeah, but you could’ve picked up a phone or sent me an e-mail. Why did you come here?”
“I wanted to see your face when you gave an explanation.”
I turned back to her. This whole thing was a sideshow. I moved in on her and put my hand on the wall right next to her head.
“It was bullshit arguments like this that wrecked our marriage,” I said.
“I know.”
“You know it’s been eight years? We’ve been divorced as long as we were married.”
Eight years and I still couldn’t shake her.
“Eight years and here we are.”
“Yes, here we are.”
“You know, you’re the trespasser, Haller. You jump over everybody’s fences. Come in and out of our lives whenever you want. And we just let you.”
I slowly leaned in closer until we were breathing the same air. I kissed her lightly and then harder when she tried to say something. I didn’t want to hear any more words. I was finished with words.
PART TWO
The Hypothesis of Innocence
Eleven
The office was closed and locked for the evening but I was still in place at my desk, prepping for the preliminary hearing. It was a Tuesday in early March and I wished I could have opened a window to let in the cool evening breeze. But the office was hermetically sealed with vertical windows that did not open. Lorna hadn’t noticed that when she’d inspected the place and signed the lease. It made me miss working out of the backseat of the Lincoln, where I could slide a window down and catch the breeze whenever I wanted.
The preliminary hearing was a week away. By prepping, I mean I was trying to anticipate what my opponent Andrea Freeman would be willing to part with when she put her case before the judge.
A preliminary hearing is a routine step on the way to a trial. It is one hundred percent the prosecution’s show. The state is charged with presenting its case to the court and the judge then rules on whether there is sufficient evidence to take it forward to a jury trial. This isn’t the reasonable doubt threshold. Not even close. The judge only has to decide if a preponderance of the evidence supports the charges. If so, then the next stop is a full-blown trial.
The trick for Freeman would be to parcel out just enough evidence to cross that preponderance line and get the judge’s nod of approval without giving away the whole store. Because she knew that I would be going to school on whatever she presented.
There is no doubt that the prosecution’s burden is no burden at all. Though the idea of a preliminary hearing is to provide a check on the system and to make sure the government does not run roughshod over the individual, it is still a fixed game. The California state assembly saw to that.
Frustrated by the seemingly interminable duration of criminal cases as they slowly wound through the justice system, the politicians in Sacramento took action. The prevailing view was that justice delayed was justice denied, never mind that this sentiment conflicted with a basic component of the adversarial system—a strong and vigorous defense. The assembly sidestepped that minor inconvenience and voted for change, installing measures that streamlined the process. The preliminary hearing went from a full airing of the prosecution’s evidence to what is essentially a game of hide-and-seek. Few witnesses had to be called besides the lead investigator, hearsay was approved rather than discouraged and the prosecution need not offer even half of its evidence. Just enough to get by.
The result was that it was beyond rare that a case did not measure up to the level of preponderance and the preliminary hearing became a routine rubber-stamping of the charges on the way to trial.