33

Glitsky wasn't on anybody's witness list. He wasn't part of the hearing. He wasn't a member of Hardy's immediate family. So Hill would not excuse Hardy for the afternoon.

Aside from that, the session picked up more or less where it left off. After a series of suitable disclaimers, most notably that he was not ruling on the claim of police coercion, and that he most specifically was not ruling the tape inadmissible if the case went to trial, Hill announced that they would not in fact be viewing the videotape. Freeman's argument had merit, he said, and he didn't want to get into an open-ended discussion on the form and content of the tape. And if he didn't admit the tape for lack of foundation, he wouldn't have to deal with the coercion/intoxication issue either. He had plenty of other evidence to hold Burgess over for trial.

Torrey and Pratt kept at it for ten minutes, and finally settled for the court's unspoken but unmistakably clear intention to hold the defendant to answer without the tape. All in all, Hardy wasn't sure that Freeman had done their client a service by getting the judge to leave out the tape. Now, from the hearing's point of view, nothing in the record contradicted or even mitigated the force of the circumstantial evidence. And they didn't have the tape issue for appeal. Hill had come to his decision to keep things moving along here. Up to now, the evidence presented was plenty to send Cole to trial.

But Hardy was finding it difficult to keep his mind on the hearing, and he had to trust Freeman's instincts. He knew nothing about Glitsky, not even where they'd taken him. He didn't know where he'd gone for lunch, whom he'd met. He didn't know where Treya was, although he assumed she had gone with him in the ambulance.

Jeff Elliot was going to find out about Abe. He'd know soon enough. He had to put it out of his mind.

There was no time. The prosecution had rested. Hill's latest mistreatment had him in high dudgeon, a whiteout of a rage. He didn't trust himself to speak. But right now he had to begin the presentation of his affirmative defense. Right now he had to call his first witness.

He was looking at the notes in front of him and heard himself croak out the first name he read: Sergeant Billie Oh, who'd supervised the crime scene unit in Maiden Lane. As she came up through the bar rail and took the oath, Hardy couldn't muster his thoughts to remember what he'd intended to ask her.

He was still seated at his table. Everyone was waiting. 'Mr Hardy?' The Cadaver appeared all out of patience himself – if he'd had any to begin with.

'Sorry, your honor.' He was on his feet, moving toward the bench, the witness. Words were coming out of his mouth. 'Sergeant Oh. Can you describe for the court, please, the position of Elaine Wager's body when you came upon the scene of her death.'

The prosecution immediately and vociferously objected. The defense could only present evidence that went to an affirmative defense or contradicted the prosecution case. This was not a deposition, they argued. How could this possibly show that the defendant was not guilty?

Hill had cut Hardy as deeply as he was going to, however. The confession was out, the defendant was going to trial, and Hill wasn't inclined to risk any assignment of error. Hardy could do his damnedest within any reasonable or unreasonable limits. It wouldn't matter. Hill overruled all the objections. Ms Oh was a precise and careful witness, and briefly recounted her facts and impressions without inflection or comment. This was what she saw; this was how it was. When she'd finished, Hardy had recovered enough of his bearings at least to be able to begin. 'Was Ms Wager wearing hosiery, Sergeant?'

'Yes, she was. Black nylons.'

'And what was the condition of these nylons?'

Oh thought for a moment. 'They were in good condition. Damp where they touched the pavement as the body lay there and of course in the crotch where she'd lost her urine.'

'Was there any damage to the fabric itself?'

'No.'

'No runs in the nylon? No threads coming loose?'

'No.'

'They were in very good condition?'

'Yes.'

'Sergeant Oh,' Hardy continued, 'did it occur to you that the victim fell heavily after she was shot?'

'As opposed to what?'

'To being, for example, let down easily by her assailant?'

'Objection. Calls for a conclusion.'

'Sustained. Another line, please, Mr Hardy.'

He was wracking his brain for anything else. He certainly hadn't gotten any rhythm established with Sergeant Oh, and now couldn't remember why, in fact, he'd wanted to call her at all. He believed that whoever had shot Elaine had laid her down, and that this once had seemed incompatible with the rough treatment she'd received when Cole had taken her jewelry. But now that distinction seemed tenuous at best, frivolous at worst.

He walked back to his table, consulted his notes, hoped David would come to his rescue with some suggestion, anything. But the old man simply shrugged. Win some lose some.

Hardy turned around. 'Thank you, Sergeant.' To Torrey's table. 'Your witness.'

The prosecutor stood up and walked to the witness box, taking his time, but Hardy didn't have the sense he was stalling. Certainly, as soon as he stopped walking, he asked his question. 'Sergeant Oh, from the position of Ms Wager's body, as well as the state of her hosiery, would you rule out the possibility that her assailant had forced her to kneel down before he executed her in cold blood?'

'No, sir, I couldn't.' Then she volunteered her first sentence. 'That was the impression I had from the beginning.'

He had to remain in court, but he wasn't doing his client any good with inept questioning of his own witnesses. With the myriad of details he'd been trying to absorb over the past week, to say nothing of his immediate concern over Glitsky, he'd overlooked at least one other very much more obvious and ominous interpretation of the facts.

At the beginning of it all, Glitsky had put the bug in his ear about Elaine's killer breaking her fall and he'd come to accept it as the truth. And Torrey had just killed him on it. He had to be more careful, but he wasn't sure that he had it in him.

Again he stood. Again he called a witness. 'Daniel Medrano.' This time he wondered if he should pass the questioning off to Freeman, but before he'd made any conscious decision, he was moving toward the witness box.

'Officer Medrano, you and your partner were the first unit on the scene, were you not?'

The policeman could have been Stalin's twin – the square and swarthy face, the heavy black mustache. He appeared nervous on the stand, possibly because of his inclusion as a defense witness. Hardy knew from his earlier interview with him that this was the most notorious crime he had worked in his years as a cop. But there was no help for that.

'Yes, we were.'

'Can you tell the court exactly what you saw?'

'Sure. My partner, Officer Petrie, and I were cruising downtown and we came upon a figure hunched over another one in Maiden Lane. We hit him with our searchlight, and a man turned and began to run. I was on the passenger side and got out, identified myself as a police officer, and took off in pursuit.'

'Go on.'

'He had maybe ten yards on me, but it was pretty dark, and he ran into a fire hydrant and went sprawling and I was able to apprehend him and put on handcuffs.'

'And do you recognize the man you caught that night in this courtroom?'

'Yes. The defendant Cole Burgess, over there.'

'All right. Now, Officer Medrano, in the course of this chase, did you hear anything unusual?'

'Yes, sir.'

'Would you please tell the court what that was?'

'Well…' This was the part Medrano hated. It disagreed with his partner's report (although not his testimony, since Torrey had neglected to ask him about it), but to his credit he delivered it straight. 'There was a gunshot about when the suspect went down. Then I heard the gun clatter on the street, and I eventually saw it and brought it back with me.'