The 13th Juror

by John Lescroart

  Hardy, sitting at the dining room table with his copy of the report that he’d photocopied in Freeman’s office the day before, yelled in to ask Frannie if she knew who had sung “Two Faces Have I” and she said it was before her time.

  It was still shy of seven o’clock.

  “I’m only twenty-seven, Dismas. Nobody my age knows that stuff.”

  “Fred Rivera does.” He told her about Lou Christie, about “Two Faces Have I,” one of the great classics of the pop era. He’d have to play it for her sometime if he could find it among his ancient 45s. She said she couldn’t wait. He asked her if she’d ever heard the long version and then, smiling, went back to the file.

  And discovered that none of Fred’s or Larry’s actions had been really necessary to pinpoint the time precisely—Federal Express uses computerized vans, and after each stop the driver entered the delivery information. Terrell had checked—he might have theories, but he was also thorough—and the log-in had been at 9:31, giving Fred a minute to finish up with Larry and get back to his van.

  Fred Rivera did not see Jennifer in her house at 9:30, but given his preoccupation with the Solid Gold Oldie, Hardy thought it was unlikely he would have paid much attention even if she had been parading around naked behind Larry. Well, maybe then. Hardy wondered where Matt had been.

  So Fred Rivera hadn’t seen anybody. Neither had he witnessed any suspicious persons walking up or down the street—again, not that he was looking.

  Mrs. Florence Barbieto called the police at 9:40, a “couple of minutes” after she heard the shots. The houses on Olympia, though large, were set almost on top of one another, no more than fifteen feet between structures. She had heard shots, then looked out her window to the house next door, thought about it for a while, walked over and rang the Witts’ doorbell. When there was no answer, she went back home and called the police.

  Hardy thought that sounded more like five minutes than a couple. Which meant that either the shots were fired at 9:38 or three or so minutes before then. Could such a small detail make any kind of difference? Maybe. Maybe not.

  The facts were beginning their slow accretion. So were the possible interpretations.

  9

  Jennifer soon realized that she and the people here weren’t so different. She had not expected that. They weren’t so tough or scary as they’d seemed when she’d first been brought in. And they were beaten down, caged, for the most part docile. Just like her.

  Not that it was a knitting bee. There was constant vulgarity, but she found that almost comforting—an acknowledgment of shared feeling, of being in this together. This was their language in their world and to hell with anybody who didn’t like it.

  Nobody seemed to care at all whether or not she was guilty of killing her husband. But when they heard about her son . . . well, it got real to them. She could tell, and she couldn’t blame them. Everything, though, still seemed unreal to her.

  The night before, after her older money-hungry lawyer had gone away with the nicer young one, she had cried on the top bunk of her cell for hours. At 3:00 P.M. they locked everybody back in the cells and had what they called a count to make sure no one was missing. That took the better part of the hour, and then they brought the food.

  By then Jennifer thought she was all cried out. Without really thinking about it, she took her tray and her plastic utensils and followed some of the other women out to the large common room, the tank. She sat herself down at one of the tables under the television set.

  She couldn’t eat any of it—meat loaf, gravy, fake mashed potatoes, peas, three slices of bread. Larry would have thrown the plate across the room, especially with the gravy slopping over into the peas and the bread. She found herself crying again.

  “You best eat up, honey. They’s worse shit than this.” It was a tall, almost stately black woman. “This your first time?”

  Jennifer hadn’t even been sure what she was talking about. First time she’d had meat loaf? First time she’d cried? She hung her head, shaking it from side to side. “I don’t know. I just don’t know . . . ”

  The woman, Clara, didn’t pursue it. Whatever Jennifer didn’t know, it was all right with her. She sat down next to her, even asked permission, and started to eat, saying she was in—again—for thieving. “What you in for?”

  Jennifer put a fork into the meat and brought it to her mouth. There was no taste, good or bad. “They think I killed my husband.”

  Clara nodded, unimpressed. “Shit prob’ly deserved it, am I right? How bad he beat you up?”

  “I didn’t say that. He was a good man, a doctor, and I didn’t kill him.”

  “ ’Course you didn’t.” Clara went back to her plate. “Don’t worry. Say he beat you, they let you go. You see. Get out of here, no problem. Things work out. Nothing to cry about.”

  Jennifer didn’t mean it, but it came out. “I miss my son.”

  Clara put down her fork. “I know, I miss my baby too—Rodney just two, but he be some beauty. They don’t give me more than a year, so I do five months and twenty days and Rodney stay with Else, my sister. She good to Rodney. Sometime he too much for me, so this be maybe some kind of vacation. For us both. Maybe that’s God’s plan.”

  Jennifer shook her head again. “My baby’s gone,” she said. “He’s dead.” She felt Clara stop eating next to her. She put a hand on Jennifer’s shoulders, her black eyes liquid and soft. “Oh, child.”

  “They think I killed him too. It’s crazy . . . They say he came in while Larry and I were fighting over the gun, or something like that. It’s so stupid, crazy . . . And there’s no bail.”

  Clara took her hand away. Her voice was hoarse and low. “I never heard of no bail.”

  Jennifer told her she’d heard of it now.

  “You sure? They done the hearing? Yeah, ’course they have. Oh, honey, I’m so sorry. How old your boy?”

  “Matt. He was seven. They tell me they’re going to ask for the death penalty.”

  “For you? Well, you lucky there.” The news seemed to pluck her up. Jennifer stared at her, uncomprehending, and Clara explained. “You the wrong color for that, girl. They don’t give no gas to no white woman look like you.”

  At breakfast there was Clara and the other new white woman, Rhea (grand theft). And Mercedes (murder) and Rosie (aggravated assault) and Jennifer. All of the men and women on the seventh floor were either awaiting trial or, convicted, waiting for their trip to state prison or another facility.

  Mercedes was going to trial in a couple of weeks and had been in jail for four months. She had finally stabbed her no-good husband because he’d been running around on her. Rosie, who had beaten her boyfriend with a rolling pin, didn’t have two thousand dollars for bail. Her trial was in six days and she was sure no jury would convict her.

  Rhea was about Jennifer’s age, size, hair color, but all the beauty had been used out of her. She was telling them how her husband had been pimping her out and they’d gotten lucky (or unlucky) with a john who’d lost his wallet with nearly a thousand dollars in it. “That’s why they went for the grand theft.”

  “They always lookin’,” Clara said.

  “What’s your bail?” Jennifer asked. She had been giving more thought to bail lately. If she had three hundred thousand dollars and could get out of jail for a third of that, she could take the other two hundred thousand and disappear for a long time. Forever. Why did she want to spend it on David Freeman, just give it to him? It didn’t seem right somehow.

  “Five thousand,” Rhea answered. “So it’s takin’ Jimmy a day or two to get it together. It’s cool. We talked about it.”

  “You mean your husband, he’ll bring in five thousand dollars and you’ll just go home tonight or tomorrow and that’s it?”

  “This girl got no bail.” Jennifer was Clara’s story and she wanted to tell it. “No bail at all.”

  Rhea, ignoring Clara, seemed to smell something. Something with Jennifer. “You got no bail? Is that t
rue? Don’t you want out of here?”

  “Amen to that,” Mercedes said. “Everybody want out of here.”

  “ ’Cept me.” Rosie, who had nearly killed her boyfriend, was the youngest of them, a diminutive, sweet-faced Hispanic. “I stay in here as long as they let me.”

  “You want that?”

  Rosie’s black eyes shone at Jennifer. “I want to be where I don’t get hit no more.”

  “Amen,” Mercedes said. “Amen amen.”

  “I get out of here,” Rosie continued, “next day somebody’s going to be hitting me. Next time he hit me I think I keel that son-of-a-bitch. So here”—and her face brightened—“I’m safe. Nobody hit me. I can’t hit nobody back. I stay a while here. I think.”

  One of the guards, with a tag on her chest that read “Jessup,” was moving their way. The talking stopped.

  She came over to them. “You ladies having a nice time? Sure sounds like it.” She tapped the table gently with her nightstick, her mouth becoming a thin line, nearly invisible. “Finish it up, now. Let’s eat up.”

  Jennifer heard her name called over the loudspeaker.

  Freeman was not sitting. Nor was Hardy. Jennifer looked defiantly up at them both. Freeman, who had obviously been through this sort of thing many times before, spoke matter-of-factly. “Typically, a full-scale murder trial will run to between half-a-million and a million in legal fees, so yes, I’d say your retainer will be spent.”

  “Then what?”

  “Then what what, Jennifer?”

  “After it’s gone.”

  “Then we go to the court and get paid by the state.”

  “Couldn’t they still just pick a public defender then?”

  Freeman nodded. “They could, but they won’t. They don’t want some new defense team coming in and spending a year getting up to speed. By that time we’ll know the case inside out and the court will stay with us.”

  “How about if we just don’t mention my . . . my secret account?”

  Freeman was shaking his head, pacing. “Jennifer. Without your secret account there isn’t any money to begin with, so the court then appoints whoever it wants, and you’ve already said you don’t want that. You know, I’m afraid I don’t really understand your problem here. You’re going on trial for your life, Jennifer. And you’re talking about money you’ll never be able to spend if you don’t have the best representation and, frankly, maybe even with it.”

  Thataway, David, Hardy thought, sugarcoat it. He did understand that Freeman felt he had to give Jennifer a dose of reality, but her response made Hardy feel that he was going too far. Her head was going back down in that cowed way she had; she was blinking back new tears.

  Freeman appeared unaffected by this display, but he did stop in front of her and speak more quietly. “Jennifer, look at me, okay. Look up. All right, now listen. We are going to do our best to get you off here. That’s what I do—it’s my specialty, you might say. And as soon as you’re found innocent you collect some five million dollars insurance money. But if you’re not found innocent . . . well, you don’t get any of your money, insurance or secret account. Plus you could face the extreme penalty. So what’s it going to be? You decide.”

  She swallowed hard and, for a moment, studied the table in front of her. “The only thing is, Mr. Freeman,” she whispered, “isn’t it true that if I retain you, I won’t have enough money for bail?”

  At first it didn’t even register. A minute earlier Jennifer Witt had been rocked. Or seemed to have been. Now her eyes were clear, her head was up.

  Freeman noticed, too. This lady was nobody’s fool. Now, suddenly, there was a sense of gamesmanship in the tiny room. Hardy was outside of it, but Freeman sat down and leaned toward her. “Good,” he said, “good.”

  “Good what?” She leaned away from him in her folding chair, an elbow going over the back of it.

  Freeman ignored the direct question. “If we can get bail, which you remember has been denied already. You’re thinking a hundred thousand pays the bondsman and you can get out and jump, isn’t that it?”

  Jennifer, still sitting back, silently met his gaze.

  “You think your house is worth a million dollars? I remind you that you didn’t think it was yesterday. The three hundred thousand in your secret account won’t do it. And neither will the insurance. You’ll need at least a million that’s relatively liquid. And no matter who represents you and what you pay them, this is reality. Bail is a waste of time. Even if you get it, you can’t pay it.”

  “Which means I’m here until my trial is over?”

  Freeman nodded. “I’m afraid that’s what it means.”

  Jennifer took that in, pulled herself up to the table, and crossed her hands in front of her. After a minute, surprisingly, she began to smile. It was the first smile Hardy had seen from her, and it was quite lovely. “I’m going to have to think more about this.”

  Hardy started to interject, but Freeman put up a restraining hand. “Fine, Jennifer, fine. Shall we just withdraw as your attorneys now?”

  “No! I don’t want that. Can’t I just have a little more time to be sure?”

  “Jennifer, a retainer is needed. The court will need to know that you’re represented at all times. If it’s not me, as I’ve told you, they’ll appoint somebody, and until your personal money’s gone you’ll have to pay them too.”

  “Could I pay some say twenty-five thousand now and the rest by Monday if I decided to go ahead—?”

  “As opposed to what? Not go ahead. Do you want to plead guilty? If, and it’s a big if, the DA will deal, it will probably mean life without parole.”

  Again, Hardy couldn’t read her. Her eyes were bright, alive. Scared, a brave front? Or . . .

  “I don’t know.”

  Now Hardy felt he had to say something. “Jennifer, pleading means you say you did it for a lesser penalty. You realize that?”

  She nodded slowly.

  “But you’ve been telling us—adamantly, as a matter of fact—that you didn’t. Now which is it?”

  “Diz, it doesn’t matter,” Freeman said. “Not now.”

  But Hardy had had enough of Freeman’s “professionalism.” He was starting to get involved in the facts, in belief or doubt, in his own motivations, and in Jennifer’s personal story. He slammed the tabletop with a flat hand, raising his voice. “Damn it, David, it matters to me!” He went back to the client. “Now which is it, Jennifer? And whatever it is, let’s stick with it.”

  Jennifer hung her head for a moment or two, then raised her eyes. “Maybe I don’t think I can win. Wouldn’t that be a good reason to plead?”

  Freeman said, “Yes,” at the same instant Hardy replied, “Not if you didn’t do it.”

  “Well, I didn’t do it.”

  Hardy straightened up. “All right, then.”

  As though they had decided it long ago, Freeman opened his briefcase and removed a piece of paper. “Okay, Jennifer, we’re in business.”

  10

  Hardy was at Lou the Greek’s, finishing his coffee and calling it lunch, having long since given up hope that what he had ordered would become edible. Lou’s wife was Chinese and she did the cooking—some of it delicious, all of it unique—but today’s special of Sweet & Sour Dolmas just flat didn’t sing.

  In nearly two hours of discussion with Freeman and himself, Jennifer had not budged—she was innocent. They were not going to plead guilty even if they could. Which, in its own way, was good. At least it eliminated any ambiguity. Jennifer was sticking her attorneys with the classic passive, negative defense—at every turn, demonstrate the weakness of the prosecution’s case; the burden of proof was on the prosecutor and Freeman’s position was going to be that they had not met that burden. Period.

  Except, of course, nothing was really that simple. As both Hardy and Freeman had tried to point out to Jennifer, the prosecution’s case, on the face of it, was not so thin. They had physical evidence, putative motive, even eyewitnesses.
This was not, they had argued, some high handed political vendetta come home to roost. Nobody had been out to get Jennifer Witt—the evidence had persuaded the grand jury to indict her, and it well might persuade a jury to convict.

  The charges involving her first husband Ned made it much worse. The evidence might be older, but the coincidence factor, if that’s what it was, to say nothing of the presence of significant insurance money in both instances, would be daunting to overcome.

  At the same time, though, Jennifer’s position gave Freeman a strategy and Hardy a concrete direction. Given their client’s demands, there was only one course, time honored and true, that they could take. Find the holes, if not in the facts, then in the arguments interpreting them.

  The fog had burned off but, lest San Francisco bask in sunny warmth, the wind had come up off the ocean. Hardy stood in the outside stairway four stories up the Hall of Justice, listening to it howl through the structure that one day would be the new jail just across the way.

  Abe Glitsky opened the door and stepped outside. Papers swirled and dust eddied. He took it all in. “I’ve got a nice office not a hundred feet away. Remember?”