John Lescroart - The Motive

Cuneo had both hands in his pockets, patting his legs inside them. "Judge," he said, "I'm sorry if it's caused a problem, but nobody ever told me not to talk to reporters."

"No, but I'll wager that no one ever told you to wear your trousers here to court today either, and yet you did. How long have you been a cop? Two weeks? You were sitting there when I imposed the gag order. Did you figure I was talking to myself? The gag order told you not to talk to reporters about this trial while it was going on."

"But, Judge…"

"How about 'Your Honor'?"

"Okay, Your Honor. But in this case, there's reporters all over this trial."

"Thank you," Braun said, "I've noticed. Which was the point of the order." She shifted her gaze to the prosecutor, came back to Cuneo, shook her head.

Into the pause, Rosen ventured an excuse. "You didn't formally call it a gag order at the time, Your Honor, if you recall, and I'm sure Mr. Hardy would agree with me. You said in the interests of fairness, you'd like to see us refrain from discussing the case with the media."

Braun stared for a second in frank disbelief. "That's what a gag order is, Mr. Rosen. And in any case, as soon as we go back outside, assuming we proceed with this trial at all, which is not at all certain, I'm issuing a formal gag order and sequestering the jury, which I'd very much hoped to avoid."

Shifting at her desk, she brought her steely gaze to Hardy. "If we hear what I expect we will hear, Mr. Hardy, I'm assuming you're going to request a mistrial. Perhaps review your change-of-venue motion."

Like Rosen, Hardy came to attention when the judge addressed him. "That was my intention, yes, Your Honor. Originally."

Braun narrowed her eyes, a question.

"But my client is opposed to simply beginning again. She doesn't want to spend more time in jail."

Cocking her head, Braun frowned. "Is that some kind of a joke?"

"No, Your Honor."

"Did you explain to her the prejudicial nature of Inspector Cuneo's remarks? How they could affect the jury, even if I query each of them individually, which I will do, and they deny they read the papers?"

"I think I did. Yes, Your Honor."

The judge couldn't seem to get her mind wrapped around Catherine's objection. "Does she know what prejudicial means? That, to some perhaps quantifiable degree, these comments make it more likely that she'll spend the rest of her life, and not just a few more months, in jail?"

"Yes, Your Honor."

"And yet she still might want to proceed?" "It depends, Your Honor."

Before things went much further, Braun wanted to poll the jury, see where they stood. Out in the courtroom, Hardy learned that he was one off on his estimate of the jury's literacy-not three, but four of them had read the article. One claimed to have read only the headline. A second said he'd only read a couple of lines. Incredibly, two others admitted that they'd read half of the article before realizing that it was about this case. No one admitted talking to anyone else about it. There were four potentially excludable jurors. And only three alternates.

Now they were back in chambers, Braun talking. "So it's down to you, Mr. Hardy. What are you asking the court to do?"

"We're asking for a mistrial, Your Honor, with a finding of deliberate prosecutorial misconduct that will bar any further trial because of double jeopardy."

Rosen exploded in true wrath. "Get out of here!" Turning to Hardy, "That's the most outrageous…"

"Mr. Rosen!" The judge's voice cracked in the room. "You will address the court only! Any more of this arguing with opposing counsel and I'll hold you in contempt." She pointed a shaking index finger at him. "And don't think I won't." Without waiting for any response from Rosen, she whipsawed back to Hardy. "If memory serves, that provision only applies if the prosecution did this on purpose to cause a mistrial. Is that your contention?"

"Yes, Your Honor." Hardy knew what she was going to ask next-why would Rosen deliberately screw up the case at this point so he could get a mistrial?-and he rushed ahead to tell her. "Mr. Rosen obviously wasn't sufficiently prepared. The real story of Inspector Cuneo's sexual advances to my client, which is going to have a huge impact on the jury, comes out in my cross-examination today. And suddenly his case, weak to begin with… "

But Rosen interrupted. "Your Honor, this is absurd. I've got eyewitnesses."

Braun nodded with some impatience. "Which is the main reason why I denied Mr. Hardy's nine-nine-five. Don't get me started." But she wanted to see where Hardy was going with this, and turned back to him. "And so because Mr. Rosen's case may become potentially more difficult, you contend he's trying to…?"

"To get me to ask for a mistrial. Yes, Your Honor."

"And why would he want to do that? So he can start again fresh, more aware of your strategy? That's a reach, Counselor."

"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."