John Lescroart - The Hearing

'Why didn't Torrey bring it up, then?'

Hardy had wondered about this too. Certainly, it was an important point. If Cole had only fired the gun once, and not when he fell during the pursuit in the alley, then the only handy explanation for the gunpowder residue on his hands was that he'd fired the gun before the police arrived. Presumably to kill Elaine. Petrie's report of the incident never mentioned a shot, although Medrano's did. So Hardy had put Medrano on his own witness list. He assumed that when Torrey had seen this, he chose Petrie for the prosecution version of the story. Then, in the flush of having demonstrated his special circumstance – robbery – he'd decided he had gotten enough out of him. He didn't need what the officer didn't hear. Hardy hoped this would prove to be a critical omission, but he downplayed it to his client. 'I don't know, Cole,' he said. 'My honest feeling is that he just plain forgot.'

Freeman guessed right again on the next witness – the crime scene lab technician. Lennard Faro was a small man in his early thirties with a thin mustache and thick, pomaded black hair. He wore a blue blazer over a tangerine shirt. A tiny gold cross earring dangled from his left ear. He verified that the slug ballistics confirmed that the bullet that had killed Elaine Wager had been fired from the weapon Cole had had in his possession. Faro had tested the defendant for gunshot residue, then analyzed the results. Now Torrey had come to the nub of it. 'And therefore, based on the results of this test, it was your conclusion that the defendant had on his hands residue that could only have come from a discharged firearm.'

It was a no-brainer. Faro had no doubt at all. 'Yes, sir.' And Hardy got the witness.

'Mr Faro,' he began, 'did you find any fingerprints on the gun?'

'No, sir.'

'Is this unusual?'

The lab tech shrugged. 'It's common enough, sir. The surface of the gun had been treated with Armor-All, the car upholstery cleaner? So it didn't hold fingerprints.'

'I see. And when you say this is common enough, roughly how frequently do you see it?'

This was an unexpected direction, and the young man paused to reflect before he answered. 'Every few months, I'd say.'

'Every few months? So it's not an everyday finding?'

'No, not at all. I didn't mean common like every day.'

'That's all right. I'm just trying to get a sense of when you would see this Armor-All used on a weapon to avoid fingerprints. It seems like an esoteric bit of knowledge.'

Faro had no reply. Hardy realized he hadn't asked a question. Torrey was objecting behind him. 'Relevance. What's the point here, your honor?'

'That's a good question, counselor. Mr Hardy?'

It was not a pleasant moment. The Armor-All was one of dozens of details that possibly meant something, but it didn't prove a damn thing either way. Cole was more likely to be ignorant of its usefulness in avoiding fingerprints than, say, a member of law enforcement or a hard-core criminal, but it certainly was possible that he knew all about it, and had put it to good use.

Hardy apologized, took another tack. 'Mr Faro, how many bullets were in the gun when you examined it?'

'Well, it's a five-shot revolver. There were three live rounds and two spent casings.'

'Two casings?'

That's right.'

Hardy looked at the judge, turned in a half circle, came back to the witness. 'Now, Mr Faro, did you take the GSR swabs from Mr Burgess yourself?'

'Yes I did.'

'And you've testified you found gunpowder residue on the swabs, is that so?'

'Yes.'

'Did you find a lot of it?'

'No. Very little.'

'Very little,' Hardy repeated. 'If a person fires a gun more than once, Mr Faro, does he leave increasing amounts of residue with each shot?'

'Yes, of course.'

'Of course. And yet Mr Burgess had very little?'

'Yes.'

'Are you able to say that this residue came from one or more than one discharge?'

'No.'

'In fact, you can get GSR on your hands from picking up a recently discharged firearm, isn't that true?'

'Yes.'

Hardy wasn't going to get any more out of that well, so he decided to move on. 'And when did you swab the defendant's hands, Mr Faro? Wasn't it in the middle of the night?'

'Yes, sir. The defendant was handcuffed and brought to the homicide detail for questioning. I was at the crime scene, and came down when we were done there.'

'Do you know what time you administered the test?'

'Yes, sir. I noted the time when I started. It was four thirty-seven in the morning.'

'And during all that time that you were at the crime scene, was Mr Burgess handcuffed in an interrogation room in the Hall of Justice?'

Faro nodded. 'That's what the officers told me, yes, sir. They didn't want to let him wash his hands. That's pretty standard,' he offered helpfully.

'I'm just curious, Mr Faro. Why didn't you administer the test in the field?'

'I guess they wanted to get him downtown fast. I don't really know.'

Hardy paced a little, in thought. 'All right, Mr Faro, so you got here to the Hall of Justice after Mr Burgess had been in custody for at least three hours. Would you describe his condition at the time you took the swabs?'

'Your honor, objection. Calls for a conclusion.'

But Hardy was ready for this one. 'Not at all, your honor. I'll let you draw the conclusions. I'm only asking Mr Faro what he saw.'

The Cadaver gave him one. 'Very well. Overruled.' 'Mr Faro?' This wasn't the tech's usual area of expertise or testimony, and he shifted in the chair with a degree of discomfort. 'Let me be more specific,' Hardy offered. 'Was Mr Burgess asleep?'

'No, sir. He was in a chair.'

'Was he sitting up straight, or slumped down?'

Torrey again. 'Your honor, defendant's posture can hardly be relevant.'

But again Hill overruled him, adding harshly, 'I'm allowing this line of questioning, Mr Torrey.' The message was clear – object again at your peril.

Faro answered the question. 'He was way down, slumped as you say.'

'Did you talk to Mr Burgess at all?'

'Yes I did. I told him what I'd be doing with his hands.'

'And how did he respond?'

He considered a moment. 'Incoherently. He was pretty out of it. I finally just pinned his arms down and took the swabs.'

'Was his speech clear, or slurred?'

'Slurred. It was more like mumbling.'

'Mr Faro, did you smell alcohol on his breath?'

'Whew!' The witness finally showed some personality. 'It was a brewery in there.'

'A brewery,' Hardy repeated, delighted with the phrase. That would be "yes", wouldn't it? You smelled alcohol, is that right?'

'Yes.'

'And was this a good three hours after he'd been brought downtown?'

'Yes, sir, at least.'

'One last question, Mr Faro. Did you see any video equipment set up in the interrogation room when you were there administering your tests?'

'No, sir.' And another sentence slipping out. 'When I passed the monitor next door, they hadn't turned the camera on yet.'

'Thank you, Mr Faro. Mr Torrey, your witness.'

The prosecutor honed in on Hardy's most salient point. 'On the matter of the gunpowder residue, can it be wiped or washed off?'

'Washed, yes. Wiping, eventually, over time. Which is why we try to get to it pretty quickly.'

'But in this case, as you've testified, you didn't get to it very quickly. In three hours, might someone lose a great deal of residue if they wipe their hands enough on their clothing, for example?'

'Yes.'

'But not all of it?'

'No. Not necessarily.'

'So is it entirely possible that the defendant could have fired the gun more than once and still had only little or trace amounts of gunpowder residue?'

'Yes. Completely.'

As soon as the witness stepped down, Hardy asked for a sidebar, and all the attorneys came forward to the bench. 'Your honor,' he began, 'I'd like to make my motion to exclude my client's statement – his so-called confession -right now. It's clear he was drunk when he was arrested and equally clear that Officer Petrie was coached to say otherwise. Let's get this issue resolved right now.'