The 13th Juror

by John Lescroart

  The drawback to this way of proceeding was that it did seem, at the outset, to give the prosecution a lot of time in possession. Powell had barely sat down when Freeman announced he would be waiting—giving his opening statement at the beginning of the defense’s case.

  The prosecutor was quickly back up, calling Inspector Sergeant Walter Terrell as his first witness.

  Freeman and Hardy had speculated on the order of witnesses, and neither of them had picked Terrell as leadoff. Looking younger than usual in slacks and an aviator jacket, Terrell aggressively pushed his way through the railing separating the gallery from the courtroom. Taking the oath, his eyes were everywhere.

  “Why is he so nervous?” Jennifer asked.

  “First murder trial.” Freeman did not take his eyes off the inspector. “Mistake,” he whispered half to himself.

  “For us?” Jennifer turned to Hardy, who shook his head no. At least, he didn’t think so. Freeman didn’t answer, and Powell was moving forward, talking to the judge.

  “Your Honor, for the record, we are going to be conducting this trial by first concentrating on the murder of Edward Teller Hollis. We will be calling witnesses again to testify when we get to the Larry and Matthew Witt phase of the trial, and Officer Terrell will be one such witness. I just wanted to make that clear.”

  Since this had been covered in pretrial conferences with Villars, there was no objection from Freeman.

  Powell turned to Terrell. “Officer Terrell, could you please tell the jury how you came to be involved in the investigation of the murder of Edward Hollis?”

  Terrell nodded, swallowing, trying to smile. “That’s Ned, is that right? The first husband?”

  There was a brief chorus of nervous laughter, some even from the jury box. Terrell reacted to it, offended. He didn’t mean to make anyone laugh. Powell remained calm. “If it please the court, we’ll refer to Edward Teller Hollis as Ned Hollis.” Back to Terrell, he repeated his question.

  “I am an inspector with the homicide department. Last December I was the investigating officer in the homicide of Larry and Matthew Witt. In the course of doing background on the suspect, the defendant, Mrs. Witt, I asked about her first husband. She told me he had died of a drug overdose and that she’d collected on an insurance policy. I thought that was a coincidence worth looking into.”

  All this was true, and Hardy realized that calling Terrell maybe wasn’t such a mistake at all. Terrell’s testimony would establish the similarities between the alleged motives behind the two homicides, and would do it before introducing any of the evidence that linked the murders to Jennifer. Actually it seemed a pretty slick opening and Hardy wondered what Freeman was going to do about it. Come right at it and try to knock it down, was the only answer.

  “Your Honor.”

  In the courtroom, Freeman’s voice took on a more sonorous tone, which couldn’t be anything but purposeful. Everything Freeman did on this stage was, if possible, rehearsed, although nothing appeared to be. Freeman’s voice in other situations tended to the gruff—with a coarse edge, low and guttural. Here, rising, the personification of gentle reason, there was authority, but the tone was that of a kindly grandfather.

  Villars waited while Freeman got all the way up. It took longer than it had to, but the trial had just begun and the judge could be expected to incline toward patience.

  “Your Honor,” he repeated, “it’s a little early for coincidences. No evidentiary link has been established.”

  As Hardy knew, motives were Terrell’s weakness. The young inspector, red-faced now, veins visible on his neck, half-stood, leaning forward in the witness box. “The man was killed and she collected the insurance, what do you want?”

  Bam bam bam.

  Villars’ eyes were on fire, although she controlled her voice. “Inspector Terrell, that’s enough. Mr. Freeman is addressing the court, not you. Is that clear?”

  Terrell got himself back down. He straightened his jacket, still angry.

  “I asked you a question, Inspector. Is that clear?”

  “Yes, Your Honor. Sorry.”

  Villars nodded once, apparently holding no grudge, satisfied. Even the glaring eye was gone. Nothing personal but make no mistake—there was going to be order in her court.

  For two seconds Villars looked at the ceiling, then back down to Freeman. “The objection is sustained. Mr. Powell, you’ll have to be a little more specific.” She turned to the jury box, from firebrand to functionary in a few seconds. “Ladies and gentlemen, please disregard the inspector’s comments about coincidence. It’s up to you to make the connections between facts, remember that.” Back to the prosecutor. “Mr. Powell?”

  Powell, who had had the control of the courtroom taken from him in less than the time it took to tie his shoes, was suddenly hyperaware. His first witness was now a demonstrable hothead with a fraction of his original credibility and they had a long way to go. He smiled his unruffled smile.

  “Officer Terrell, let’s take a new line, shall we?”

  He walked Terrell—carefully, a step at a time—through the interview with Jennifer, leaving out reference to the reasons they had finally gone back and exhumed. The jury, as Villars had said, would have to make that leap. The fact was that they had exhumed, and that they had found a concentration of atropine in the left thigh. Powell did not go near any question of how it might have gotten there.

  Ned did have an insurance policy for seventy-five thousand dollars. Jennifer had provided a copy of the policy and the check from her tax records. Here it is, ladies and gentlemen of the jury, People’s Exhibit 1. Jennifer was the beneficiary. Here’s her canceled check, People’s 2. That’s all for the prosecution, Inspector Terrell, thanks very much. Here comes your cross-examination.

  Hardy was sure he wasn’t alone in the impression that Terrell had gone up there intending to say a lot more, stay a while longer, make more of a splash.

  He was still, obviously, pumped up both from nerves and adrenaline. Freeman was playing that against him, shuffling some papers, fumbling up out of his chair, straightening his wrinkled tie. It wasn’t quite slow enough to prompt Villars into moving him along, but it clearly was playing all hell with Terrell.

  Finally, finally, Freeman got to the center of the courtroom. “Good morning,” he said genially, and waited some more. The gambit threw Terrell further off-stride, until at last he nodded and mumbled something like a greeting back.

  “Now, Inspector Terrell, you have testified that Ned Hollis had a seventy-five-thousand-dollar insurance policy and that Jennifer Witt was the beneficiary. That’s correct, isn’t it?”

  The witness looked up at the judge for an instant, then to Powell, finally back to Freeman. “That’s right.”

  “What did Mrs. Witt tell you would happen if she died instead of Ned, then what?”

  Another pause, thinking about it. “Then Ned would have gotten the money.”

  “In other words, it was a joint policy—a husband-and-wife, if-one-of-us-dies-the-house-is-paid-for kind of policy.”

  “Yes, that’s right.”

  “And, in fact, did Jennifer tell you that she and Ned owned a house together at this time?”

  “Yes, they did.”

  “And you checked it out, and that was the truth, wasn’t it?”

  “Yes, it was.”

  “In your investigation, did you come upon any records on the value of that house?”

  Terrell cast a what’s-all-this-about look at Powell. Freeman knew that if Powell objected to hearsay—what someone had told Terrell out of court—that the objection would be sustained. But Freeman could prove the value of the house anyway, with other records and witnesses if he had to. And the jury would remember that the prosecutor had tried to keep it from them.

  Powell said nothing. Terrell answered that yes, Jennifer and Ned had bought a shoebox down near Daly City, putting down twenty thousand dollars.

  “So their loan was eighty thousand dollars?”

/>   “I don’t know. I’d assume so.”

  “You know they put down twenty thousand dollars, but you don’t know what their loan was?”

  Powell stood up, trying to save Terrell, at least for later. “Your Honor. Relevance?”

  Villars was curt. “I think so. Go on, Mr. Freeman. Inspector?”

  “Their loan was around eighty thousand dollars, yes.”

  Freeman did a little awkward half-turn, almost a pirouette toward the jury. “And, again in your investigations, did you discover whatever became of that loan?”

  Terrell pulled at his suddenly tight collar. “I believe Mrs. Witt paid it off.”

  “With the insurance money?”

  “Yes, I believe so.”

  “You believe so or you know so, Inspector?”

  “I know so. She paid off the loan.”

  “Indeed she did.” Freeman went back to his table and took out a fat photocopied document. He had it marked as Defense Exhibit 1 and passed it up to Terrell. “You’ve seen this before?” As Terrell was looking at it Freeman turned to the jury. “In other words, Inspector Terrell, from this document you knew that Jennifer Witt did not take a yearlong vacation to Las Vegas, for example.”

  Powell was on his feet. “Objection.”

  “I’ll withdraw the comment, Your Honor.” Freeman had made his point—if Jennifer had killed Ned to take some money and live the high life, she might have been expected to have kept at least some of it to party with. “There’s just one other thing I’d like to ask you about, Inspector. You said Jennifer—Mrs. Witt—told you that Ned Hollis used drugs.”

  “Yes.”

  “She said he experimented with drugs—isn’t that right?”

  “That’s right.”

  “You interviewed people who corroborated that?”

  Powell got up again. “Your Honor. Hearsay. Mr. Freeman is badgering the witness.”

  “Not quite, but I take your point.”

  Freeman waited, silent.

  “Mr. Freeman?”

  “I was waiting for your ruling, Your Honor.”

  Villars was not amused. She had the reporter read back the previous dialogue, then said that, for the record, the objection was sustained.

  Freeman nodded, then continued with Terrell. “How many of Mr. Hollis’ friends did you interview?”

  “All that I could find.”

  “And every single one of them confirmed that Ned experimented with drugs—isn’t that true?”

  “Objection. Hearsay.”

  “Sustained.”

  Freeman: “Did any of them deny that Ned experimented with drugs?”

  “Objection. Hearsay.”

  “Sustained.”

  The old defense attorney stood for a beat. Then: “During your exhaustive investigation into the death of Ned Hollis, did anyone ever describe Mr. Hollis’ drug use as other than experimental?”

  Like a weary jack-in-the-box, Powell again rose. “Objection. Hearsay.”

  Villars had had enough. “Mr. Freeman, no matter how many different ways you ask the question, I’m going to sustain this objection every time. Please move on.”

  Freeman was contrite. “I apologize, Your Honor.” Back to Terrell with a kindly smile. “I have no further questions.”

  29

  “They’re shooting themselves in the foot on Ned. You notice Powell said little about it in his opening, especially, didn’t even put Jennifer in the county when he died, much less the room.”

  Freeman chewed on his sandwich—a thick fistful of dry Italian salami on a sourdough roll. “Villars should have bought my 995.” This was the motion he had filed before the trial, asserting that there was not sufficient evidence in the Ned situation to convict, which Villars had denied. “Unless they’ve got some big surprise, this one can’t fly.”

  It was the lunch recess. They had cabbed up to the office on Sutter and were sitting on benches in the small brick-and-glass enclosed garden just outside the conference room. Above them, in the aperture formed by the surrounding buildings, the sky burned a deep blue. Indian summer, San Francisco’s finest season.

  Hardy picked at the bread of his sandwich, threw it in the direction of some sparrows foraging in the low shrubbery.

  “You with us?” Freeman asked.

  “Sure.” Hardy flicked another crumb. “Just thinking.”

  “About the case?”

  Hardy shrugged.

  “You don’t have to tell me, but are things all right with you? You doing okay? Getting enough sleep? The first days of these trials can be tough.”

  Leaning forward, Hardy let out a long breath. “I don’t know what’s going on at home, David. It feels like I’m losing my wife.”

  “Literally?”

  “I don’t know. Maybe not.”

  “But maybe so?”

  Hardy stood up, crossed the small opening, stared at blank brick. Without turning around he said, “Something’s happened the last couple of months. I don’t think it’s the trial, all this preparation. I don’t know what it is, but it scares me to death.”

  “You ask her?”

  “Couple of hundred times, one way or the other.”

  “And nothing?”

  Hardy shrugged, finally turned. “Not much. Not enough. We’ve got this tradition where we go out on Wednesday nights. Date night. Or we had it ’til a month ago.”

  The birds were chirping over the crumbs and Freeman broke off a bit of his bread and tossed it across the patio. “Something happen a month ago?”

  “I wish it had. I came home one night, thinking we were going out, and she’s in a nightgown reading. She tells me I ought to go out by myself, shoot some darts. She’s just tired.”

  “Maybe she was tired?”

  “Time was she’d be tired on a Wednesday night, we’d grab a blanket, go out to the beach, take a nap. This date night idea was something we’d decided to do, tired or not, kids or not. The marriage needed it. We need it for ourselves.”

  Freeman contemplated his sandwich. “How old are your kids?”

  “Two and almost one, but it’s not that.” At the skeptical look, Hardy said, “I don’t think it’s that. You think it is?”

  “I barely know Frannie, Diz. But she wouldn’t be the first woman to decide her kids needed her more than her husband. Priorities change.”

  “Well, they haven’t changed with me.”

  Freeman allowed himself a smile. “Life’s unfair, like JFK said. If only we could find somebody to sue.” He shifted on the bench, popped the last of his sandwich. “Does she think you need her?”

  “Come on, David. Need? Who knows need? I love her and I think she knows that.”

  “I don’t mean to sound presumptuous, but your kids know need. Frannie knows need.”

  “Well, hell, I need her, too. I mean, we’re adults, though. We’ve both got things we’ve got to do. I’ve got this trial. She’s got the kids. What are we supposed to do? That’s what date night was supposed to be for—to keep us connected.”

  “It doesn’t sound like you’re too connected. You just said it—you’ve got this trial, she’s got the kids.”

  Hands in his pockets, Hardy found himself pacing. Arguing with David Freeman, proving his point that Frannie—perhaps—shouldn’t feel what she was feeling, whatever it was, didn’t alter the fact that something pretty fundamental seemed to have changed between them, some balance had shifted.

  Maybe what Freeman had implied was true—that she didn’t feel as though he needed her so much anymore. He had to admit he wasn’t giving her much sign of it—leaving for work early, getting home late, drafting motions, doing research, following up his investigations, reviewing files on weekends.

  As far as that went, he didn’t feel like she was needing him much either. She was doing her jobs, caring for the children, taking care of the home. They were, he believed, committed to each other, and that had to be one of the main ingredients of what they both called adult love.


  “I’d surprise her.” Freeman had come up next to him and put a hand on his shoulder. “Break up the routine. Maybe she’s just burned out. Maybe she sees you’re not there for her and she’s afraid you won’t be and she’s pulling away.”

  “But I am there. This trial’s just starting. What does she expect?”

  “Maybe the question is what does she need?” Freeman patted his shoulder, opening the glass door back into the conference room. “Let’s get back to court. Her Honor frowns on tardiness.”

  John Strout, the coroner for the City and County of San Francisco, was already a familiar figure to Hardy and every other professional in the courtroom. An authority with a national reputation, the drawling, well-respected medical examiner had appeared at almost every trial, grand jury and preliminary hearing that involved a murder in San Francisco—perhaps once a week for the past thirteen years—and now he sat his lanky frame down in the witness box, comfortable and relaxed.

  Powell, showing no sign of a post-lunch slump, combed his white mane with his fingers and greeted Strout genially, old friends, for the jury’s benefit. Then he got right to it, preempting what Hardy thought would be Freeman’s tack on cross.

  “Dr. Strout, did you do the initial autopsy on Ned Hollis back in 1984?”

  “Yes, I did.”

  “And what were your findings at that time?”

  Strout backed his chair up in the witness box and crossed his legs, his broad and open face creased in a smile. “We ran an A scan and returned with a finding of accidental death due to an overdose of cocaine mixed with alcohol.”

  “An A scan? Would you explain to the jury what that is?”

  Strout leaned forward and gave a two-minute explanation—most poisons and/or volatile compounds were found in the A scan, and it was cheapest and quickest. If a cause-of-death could be found at the A level—without a police report indicating a suspicion of foul play—the scanning tended to stop there.