Betrayal

Evan had killed them, I don't remember anyone stopping to examine the why of it too closely.' He drew on his smoke. 'I think there was more or less an assumption that it was something that had happened in Iraq that we would never find out about. Maybe it was something personal or maybe he just hated Iraqis in general for what they had done to him. And at the same time he could frame Nolan for the murders and eliminate his rival for Tara. It was a great opportunity to kill two birds with one stone if you happened to be a psychopath, which some people thought Evan was.'

'But nobody asked the hard questions?'

'Apparently not.'

'Even though the FBI was all over this thing?' It wasn't really a question. 'Does that strike you as the FBI we all know and love?'

Clearly, Washburn, too, had caught the bug. His eyes were alight with possibility. 'If Nolan did in fact kill the Khalils,' he said contemplatively, 'then certainly anyone in the Khalil family-Iraq being the tribal culture that it is- would have had not just a motive but an obligation to kill him.'

Hardy, low-watt electricity running through him, leaned forward, elbows on his knees. 'What do you think are the odds that the FBI never talked to any of the Khalils?'

'Zero. And yet now that you mention it, all the interviews we got were from the Redwood City police. And it was a pretty perfunctory job.'

'So you're telling me the FBI would have relied on the locals to talk to witnesses in a potential terrorism case? I don't think so.'

Washburn nodded and nodded. 'Son of a bitch,' he said, unmistakable glee in his voice. 'You're talking Brady.'

Hardy, his mouth set, tried to keep his elation low-key. 'You're damn right I am.'

The reference was to what was commonly called a Brady violation. In Brady v. Maryland, the Supreme Court held that a defendant had a right to any evidence that was in the possession of the prosecution that might cast doubt on his guilt, whether or not it was eventually to be used at trial. The prosecution was absolutely required to turn over any background, testimony, evidence, interviews-anything-that could exculpate a defendant. If the prosecution withheld any of this discovery, and the withheld material was reasonably likely to undermine confidence in a guilty verdict, then these were grounds to reverse a conviction. Of course, evidence of such a violation was never found in the court's records. The whole point was that the prosecution had withheld the evidence and the defense didn't find out about it until sometime after the trial.

This opened up an entirely new strategic element.

Hardy and Washburn both keenly understood the situation. If in fact the FBI had interviewed witnesses in the Khalil killings and did not supply either the witnesses or the testimony, or both, to the prosecution, which the prosecution was then mandated to turn over to Evan's defense, it was highly possible that they were looking at a Brady violation. The added beauty of the situation was that Mills didn't even have to know about the withheld evidence. The FBI was legally construed to be part of the prosecutor's team and Mills was responsible for turning over that evidence whether or not the FBI told her about it.

Of course, proving not only that the FBI had held back evidence but also that the withheld evidence was likely to undermine confidence in the guilty verdict against Evan Scholler was another problem.

But Hardy would face that when he came to it.

For the moment, the Brady possibility, if he could get it off the ground by finding an FBI witness or two that hadn't made it into the Scholler record, meant that he could file a writ of habeas corpus with declarations and get it in front of the court of appeals in relatively short order. The court of appeals could then remand it back down to Redwood City, probably back to Tollson's courtroom, where-if they were hearing new evidence-anything might happen.

Washburn tapped Hardy's knee, snapping him from his reverie. 'It's still going to be a long shot proving the evidence is exculpatory,' he said. 'Essentially you'll have to prove somebody else other than Evan might well have killed Nolan. Which, I must tell you from bitter experience, is a tough nut.' He lowered his voice. 'It might even be contrary to fact.'

'Maybe not,' Hardy said. 'It might be enough for the court if I prove that somebody else had a reason to.'

The old lawyer shook his head. 'That, I'm afraid, is wishful thinking.'

'Not at all. If there was another plausible suspect the jury didn't get to hear about…'

Washburn frowned. 'And the FBI, which withheld it last time, and which is immune to state process, is going to hand it over now? How are you going to make them do that?'

'I don't know,' Hardy said. 'It's a work in progress.'

33

Hardy drove back up to the city on the 280 Freeway, got off on the ocean side of town at Nineteenth Avenue, and, at a couple of minutes after the official beginning of the cocktail hour, walked into the front door of the bar he partly owned, the Little Shamrock. Moses McGuire, his brother-in-law, out of rehab now this past year or more, was behind the bar at the far end by the beer taps. To Hardy, he looked impossibly fit, although maybe it was simply the fact that he'd lost thirty pounds and cleaned up his appearance along with his bloodstream.

Perennially shaggy and long-haired, often bearded, McGuire had cultivated more or less the look of a biker or a mountain man since his twenties-which is to say for nearly forty years. Faded, often tattered blue jeans and some crummy T-shirt seemed as much a part of his personality as his justly fabled temper, his casual disdain for convention, his fondness for altered states of consciousness.

Down at the end of the bar today, passing the time with a pretty young woman, he might have been a mid- forties banker on his day off. The still-full head of salt-and-pepper hair was short and neatly parted, the mustache trimmed in an otherwise closely shaved face. He'd tucked the tails of his blue dress shirt into a pair of khakis. He'd had his nose broken often enough in bar fights that Hardy thought he'd always look a bit battered, but today his eyes were clear, his skin nearly devoid of the capillary etching that had been a regular feature of his face in the heavy drinking days that had comprised the majority of his adult life.

As a sometime bartender and part-owner, Hardy could have gone around the bar and helped himself to whatever he wanted, but occasionally you got back there and found you couldn't easily get yourself out, and tonight was supposed to be the first of his new Date Nights with Frannie, and he didn't want to start it off on the wrong foot. So he pulled up a stool and gave McGuire a casual nod, which brought him right on down.

'What's the word, Counselor?'

'Hendrick's, over. One onion.'

'That's four words, and I've got cucumber.'

Hardy nodded. 'Even better. And while you're pouring, I've got a question for you.'

'Hazel.' McGuire didn't miss a beat. 'Although some people think they're more green. But I'd call them hazel. Kind of a bedroom hazel.' McGuire grabbed a glass, threw in some ice, reached up behind him to the premium gin row, and brought down the round dark bottle of Hendrick's gin. After a quick free pour to an eighth of an inch below the rim, he cut a fresh slice of cucumber and dropped it on top. 'Sante,' he said, placing it on the cocktail napkin he'd laid down on the bar. 'Okay, what's your real question?'

'It's a long one.'

McGuire scanned the length of the bar and around the corners of the room, none of which were very far away. The Shamrock was a small, neighborhood place that had been in its same location at Lincoln and Ninth Avenue since 1893. The grandfather clock against the wall behind Hardy had stopped during the Great Earthquake of 1906 and nobody'd set it running again since. The pretty girl had gone back to her friends by the dartboards, and all of the other twenty patrons seemed comfortably settled at the bar or on the couches in back. 'That's all right,' McGuire said. 'The crowd's pretty much under control.'

On the drive up from Redwood City, after he'd wrestled with some of the problems raised by the Brady violation issues, Hardy had returned to the question that he still hadn't answered,