“It’s a legal fiction,” she had told him finally. “Don’t worry about it. A Superior Court judge can’t conduct a preliminary hearing, because the appeal from the prelim is to a Superior Court judge, and an appeal always has to be to a higher court. So they just change the name of the judge when he’s doing a prelim, to magistrate. So technically a lower court has conducted the prelim, and the law is satisfied.”

“What about the defendant? Is he satisfied? What about reality?”

“Reality? Vat is dis ting you call reality? This is law we’re talking about.”

“Okay, why should the appeal be to a higher court?” Paul said persistently. Sometimes they did this now, instead of making love, lay close to each other and talked softly, endlessly, about very unromantic things. Sometimes Nina enjoyed this pillow talk so much that she kept Paul awake long after his silences lengthened as he fell into drowsiness.

“Several underlying policy reasons. So the judge’s close colleagues on the bench aren’t passing judgment on him or her by reviewing the decision-”

“Okay.”

“And, obviously, an appeal by its very nature is a request for some higher authority to review a decision made by a lower court-it’s a matter of constitutional due process-”

“So how does calling a Superior Court judge a magistrate satisfy these policy reasons? His Superior Court colleagues still review his decision, and the defendant still doesn’t get a higher-court review.”

“That’s true. But it satisfies the letter of the law. That’s why it’s called a legal fiction.”

“And that’s why I don’t trust lawyers,” Paul had said. “Twist, twist, twist.” She lifted her head off his arm and looked at him. His eyes had closed and he gave no sign of realizing how he had casually pushed into her territory and butted into her thinking. Once again, he was openly challenging her assumptions about her own work. She flushed, annoyed and surprised. Then she thought about it. He was right, but you have to pick your fights. You can’t take on the whole system. Other lawyers will consider you naive for wasting your energy on a hopeless cause.

Then again, life was a hopeless cause. Which didn’t mean you stopped fighting.

Nina said, “You talked me into it. I shouldn’t take this for granted. It’s a denial of due process. I haven’t protested because it seems like it’s too big an injustice to take on. I guess I get inured.”

“Is that like getting inert? Like we are now?” They were indeed flat on their backs in the bed, talking at the ceiling.

“I guess, now that you bring this up, I’m going to have to object to having this matter heard by any Superior Court judge, no matter what name they give him. Judge Salas is going to hate me. Oh, well, he doesn’t like me right now anyway, so…” Her eyes closed and she slept.

“People v. Whitefeather. State your appearances,” Salas said in his absurdly young voice.

“Jaime Sandoval, Monterey County District Attorney’s Office, appearing for the people of the State of California. Detective David Crockett of the State of California Special Arson Investigation Unit is my designated investigating officer.” This meant Crockett could sit in on all the proceedings even though he was a witness.

“Nina Reilly, law office of Nina Reilly, appearing for the defendant, Willis Whitefeather, Your Honor. Paul van Wagoner is my investigator in this case. The defendant is present.”

“Any new motions this morning before we begin?” Don’t you dare, Judge Salas’s jaundiced eye told Nina.

However, she had decided otherwise. Sometimes you have to do it, for your own self-respect and because of your respect for the law, even if you’re going to lose and know it. Salas wouldn’t like her any more, but he could hardly like her any less, so there was no strategic ground to be lost. She stood up and said, “One new motion, Your Honor.”

“Paperwork?”

“Right here, Your Honor. Filed just before court this morning.”

Jaime looked hypocritically regretful, as an Olympic skater might look watching a competitor execute a triple axel, only to land hard on her ass. He had read her motion and knew what she was in for. Salas was skimming the papers.

“Proceed,” he said.

“The basis of this motion is that this court has no jurisdiction to conduct this preliminary hearing.” Nina launched into her motion, which essentially said that Salas should step down until some real lower court could hear the case, on grounds that the defendant would otherwise be denied his right to appeal to a higher court. “A conspicuous and egregious denial of due process, I would respectfully submit,” she finished.

Salas knew she was right. So did Jaime. So did every criminal lawyer in the state of California.

The judge flipped through her points and authorities, which relied heavily on the United States Constitution, looked at Jaime, and said “Is she for real?”

“She is,” Jaime said, nodding.

“Counsel, do you know how many preliminary hearings are conducted in this state each year?”

“No, Your Honor,” Nina said.

“Thousands. Tens of thousands. Do you presume to know better than all the county courts, all the legislators, all the lawyers who have never raised this in any preliminary hearing to my knowledge since the act permitting consolidation of lower and superior courts was passed?”

“I don’t presume to be anything other than a lowly defense lawyer, Your Honor.”

“Then why do you raise this in my court, at this time? Is it to persecute me?”

“No, Your Honor.”

“Your motion is denied.”

“Very well, Your Honor. Thank you, Your Honor.”

“Feel free to appeal my ruling to the Superior Court,” Salas said, and gave Jaime a sideways glance. Jaime let out an obsequious chuckle.

With the Constitution out of the way, they moved along swiftly. Judge Salas asked about the witnesses and how long the hearing might last, and cast an incredulous look at Nina when told Wish would testify. The witnesses trooped out after being admonished to wait outside and not talk to one another.

Ten minutes later, all other legal detritus cleared away, Jaime called Deputy Clay Grace to the stand.

His complexion had, alas, not improved, but he was alert and responsive. Nina had no beef with him. She let Jaime get through the preliminaries efficiently.

“The Carmel Valley EMS advised they had a male subject who was DOA at Community Hospital. The subject had been found the day after the fire lying near some rocks about a quarter mile up from Hitchcock Canyon. Badly burned and no quick ID possible.”

“And what was your assignment with regard to this victim?”

“To determine who it was. We had what we considered to be significant information in this regard. The Carmel Valley police had been contacted by the defendant’s roommates the morning after the Robles Ridge fire and told that he was missing.”

“‘He’ meaning Willis Whitefeather, the defendant?”

“Correct.”

“What else did these roommates say in their report?” Deputy Grace was testifying as to hearsay, but Nina couldn’t object. In another sleight-of-hand, prosecutors had managed to get a law passed that allowed hearsay in preliminary hearings, as long as it came from a law-enforcement officer with five years of experience. She contented herself with rereading her copy of the handwritten report made by Dustin Quinn.

“They told the Carmel police that the defendant had gone up to Robles Ridge the night before-”

“The night of the fire?”

“Yes. Carrying a backpack with equipment, accompanied by another young man named Danny Cervantes. Based on that, we were working on the theory that the burn victim was either Willis Whitefeather or Danny Cervantes. Also that these two gentlemen had perpetrated the arson fire on the ridge.”