The 13th Juror

by John Lescroart

  Hardy wished he could try the old badge trick but he didn’t carry it as a matter of course. It was at home, there if he decided he might need to use it.

  “I’m going by,” the woman said. “You’d better leave me some room.” She was, in fact, holding what looked like a spray can in her hand and Hardy had no doubt she’d use it.

  He had to talk fast, find some lever. She was coming toward him cautiously. “You ever hear of Jennifer Witt? I’m her lawyer.”

  “Good for you. I’m a runner.”

  She turned it on, going by the other side of his car. There wasn’t so much as a glance back as she flew down the street, around a curve and out of his sight.

  Back in his car, Hardy consoled himself that it was probably nothing anyway. But then, three blocks later, he realized the truth of what he’d just done—he thought he might have stumbled on a nugget of truth in one of Jennifer’s explanations—so he hadn’t given up on her.

  Jennifer had said she always started out walking for a couple of blocks when she left her house to go jogging. She had insisted that was her routine, and she followed it on the morning of December 28. And somebody else, with a resemblance to her, came running by her house just as some shots were fired. That person stopped, saw nothing, and continued running, right from Jennifer’s gate. And was identified as Jennifer by the State’s star eyewitness, Anthony Alvarez.

  It almost gave him real hope.

  Glitsky called after dinner and told them they should turn on the news because David Freeman was on.

  Moses and his new wife Susan were over, and everyone was at the front of the house. While Hardy turned on the set, Moses plopped himself on the sofa. “That guy gets more air than a hot-air balloon,” he said. Turning around, Hardy said that David Freeman was a hot-air balloon. When it suited him.

  The man himself appeared on the screen. Unshaven, hangdog, his tie askew over his wrinkled shirt, with sleeves partially rolled up—here was a man who’d been working all night and all day on behalf of his client. He was sitting on the edge of the desk in his office, his law books visible behind him—and the sound came up. “ . . . victory but, to be quite candid, I expected it. I have fought from the original arraignment to have this case dismissed for lack of evidence, and, of course, the judge’s ruling here corroborates what I’ve maintained all along—Jennifer Witt is innocent. She did not do these things.”

  Hardy and Frannie, now sharing their own secret about Ned, exchanged a glance. “He is some piece of work,” Hardy whispered.

  The young female reporter spoke earnestly into the camera. “And, obviously buoyed by yesterday’s victory, Mr. Freeman had some even stronger charges to make.”

  This was edited tape, and again the sound bite picked up in mid-sentence. Freeman was answering another question. “ . . . there’s the political motive. I hate to bring this up, but it’s true—Dean Powell is running for Attorney General on a pro-death-penalty ticket. At the same time, you can’t have a death penalty just for black men. He needs a case like this, and he needs it right now. If Jennifer Witt hadn’t come along he would have had to invent her.” Freeman hung his head, genuinely saddened by the flawed nature of humankind. “Unfortunately,” he said, “that’s essentially what he did.”

  Suddenly they were back in the newsroom and the anchorman was saying to his partner, “Those are some pretty strong accusations, Shel, and we’ll be following that trial every day here on Channel 5.”

  “That’s right, Jack.” Shel beamed at the camera, filling the screen. “Want to know what happens when three sisters fight over the family dog?”

  “Slick segue, Shel,” Frannie intoned.

  Moses, leaning forward on the couch, shushed his sister, speaking to the TV: “Yeah, three sisters and the family dog. I want to know what happens, I do.”

  Shel was continuing. “Sounds like a case for Solomon, doesn’t it? And it’s developing right now down in Daly City. That’s up next. Don’t go away.”

  Hardy was up, also talking to the tube, turning it off. “Sorry, Shel, got to go.”

  Moses jumped up. “Come on, Diz. I’m dying to know about the sisters and their dog.”

  Susan hit him on the leg. “Pervert.”

  “How can you do that? Turn off Shel?”

  Hardy was moving back to his chair. “Years of training and therapy have helped me here. Why do I get the feeling that Jennifer’s trial is going to be getting nasty?”

  “It’s that amazing sixth sense you have.” Frannie rubbed a hand over his arm. “It must have been an awful slow news day.”

  Susan was smiling and relaxed, leaning against Moses on the couch. “He’s your partner, Dismas?”

  “Cute, isn’t he?”

  Moses, cut adrift, moaned that he wanted to know more about the girls and their dog.

  “They ate it,” Frannie said.

  Susan nodded. “Cut it up into little pieces. Fried the ears and served them with Roquefort dressing.”

  Hardy stood up. “I’d like to go on the record here by saying how nice it is to be among people who are so in tune with the big issues. I’m going to get dessert.”

  Because of the afternoon nap he’d taken, he wasn’t tired. Moses and Susan went home at a little after ten, and Frannie, who would have Vincent’s first feeding at one, said she thought she would turn in.

  Hardy added a log to the fire in the front room and sat in his chair with a copy of John McPhee’s Oranges. He’d barely begun when the telephone rang. He grabbed it halfway through the first ring.

  It was Glitsky saying his man Freeman was a star. “Trial by television. It’s what makes this country great.”

  “That and concentrated orange juice.” Hardy explained the McPhee connection, knowing that Glitsky, like himself, had a weakness for the obscure fact. “But I sense you didn’t call to talk about citrus.”

  “Normally I would,” Abe said, “except I thought you’d want to be the first to know about something else.”

  Hardy silently counted to five. A log popped on the fire. “I love this game,” he said.

  “I called the Detail on an unrelated matter about ten minutes ago. They were interviewing a guy down there named Marko something. Ring a bell?”

  “No. Should it?”

  “I don’t know. I thought you might have run across it in your travels. He’s saying he killed Larry Witt.”

  Marko Mellon had not begun watching the news report on Jennifer Witt during the Freeman section, as Hardy and company had. He had watched from the start, when they showed her picture—the one the stations and newspapers had used before she had been charged with the murders—smiling, vivacious.

  Marko, a twenty-five-year-old Syrian exchange student at San Francisco State who had been following the trial in a fairly dedicated fashion up to this point, was familiar with, Hardy thought, a surprising number of facts about the case, so much so that it took police inspectors—one of whom was Walter Terrell—nearly five hours to determine he could not possibly have killed Larry Witt.

  His motive for killing Larry, he said, was that he loved Jennifer. As it turned out, his motive for the confession was that he had decided he loved Jennifer from her picture. It was a spiritual connection he was sure they had, and if he confessed she would of course want to meet him, after which they would fall in love, get married, have more babies to make up for Matt. It was a no-lose plan, because eventually they would find out he, Marko, hadn’t really done it, and then he’d be free and they could live happily ever after together.

  “I don’t think he thought the whole thing through.” Hardy was talking to Freeman. The storm had passed and there were pink clouds in an early morning gray sky over the Oakland Hills across the Bay. They were by the door to Hardy’s car, standing in a deserted Bryant Street outside the Hall of Justice after the decision had been reached that they weren’t going to be charging Marko with Larry Witt’s murder.

  “It staggers me that it took them five hours to come to it,” Freeman
said. “The boy’s got the IQ of a turnip. Of course, then again, some of the inspectors . . . ”

  “He did know a lot of details, David. They had to let him cross himself up.”

  “Rats in mazes know details. That doesn’t make them smart. They should have just asked him when his visa runs out.”

  “Why would they ask him that?”

  “You check. Dollars to donuts his visa runs out in the next month or so. He figured he’d get arrested, get to stay longer over here.”

  “In jail? On a murder charge?”

  Freeman shrugged. “You ever been to Syria, Diz?”

  Hardy let it go. Freeman might be right. “I saw you tonight on the tube, by the way. I don’t think Dean’s going to be too pleased.”

  Freeman waved it off. “It’s good press. I’m doing him a favor.” There was a silence between them, a residual tension that banter wasn’t going to camouflage.

  Hardy pulled open the door to his car and, in the predawn light, asked if he could drop Freeman at his apartment. He’d taken a cab down. The old attorney said no, he’d walk.

  “This time of the day through this neighborhood? Come on, David, get in.”

  Freeman slammed his hand on the roof of the car. “Take off, Diz. I’ll see you tomorrow.”

  “David . . . ”

  Freeman spread his hands theatrically. “We’ve been working together long enough, you ought to know by now. I’m bulletproof.”

  At sunrise Hardy was still in his car, waiting on Olympia Way as though he were at a stakeout. If the jogger came by again he was going to get a few words with her if he had to sprint alongside her for six blocks breathing Mace.

  She did not appear.

  34

  Freeman was wrong. Powell did not take it as a favor.

  They were in Judge Villars’ chambers again. It was 9:40 on Monday morning and the jury was in the courtroom, waiting. Adrienne, the court reporter, was perched with her portable equipment next to one of the easy chairs, but she was the only one sitting. Her presence was necessary, as no meeting was ever off the record.

  Freeman, Hardy, Powell, his young assistant, Justin Morehouse, and Villars were taking up most of the rest of the space in the room. Or maybe it just felt that way. Everyone stood in a knot, too close, an invisible bubble surrounding them, the pressure building within it.

  “I’ve never been more serious, Your Honor.” Freeman looked especially wan in a ten-year-old brown suit. “I’ve given this a lot of thought over the weekend, since your generous granting of my 1118—”

  “There was nothing generous about that. Don’t put a personal spin on this . . . ”

  “The fact remains. I’m convinced this would not be a capital trial if Dean here weren’t running for AG.”

  “Your Honor.” Powell wore his substantial selfcontrol on his sleeve, but it was wearing thin. “Mr. Freeman knows full well that we’ve still got two sets of specials on both remaining counts. This is a death-penalty case.”

  “It’s politically tainted and you know it, Dean.”

  “There’s nothing political about it.”

  Freeman turned to Villars. “Let him prove that, Your Honor, if he can. Continue this trial until after the election. See how hot our dedicated prosecutor is to fry Jennifer Witt then.”

  “Your Honor, I resent defense counsel’s implication—”

  “I’m not implying anything, Your Honor. We’ve got grounds to appeal right now, and I think we’re skating mighty close to another due process violation. I might have to ask for a mistrial after all.”

  Freeman, though he said the magic word, did not win a hundred dollars. Instead, Villars raised herself up and pointed a finger at him. “On Friday you said you didn’t want a mistrial, Mr. Freeman. I am not going to let you take opposite sides of the same issue.”

  Powell, his temper beginning to show, cracked his knuckles and ran his fingers through his hair. “If he wanted to calendar the case after the election, he could have requested it anytime. Now we have a jury impaneled, we have witnesses who’ve rearranged their schedules to be here. To continue the trial at this point—”

  Villars moved a step toward them both, the color high on her normally gray cheeks. She spoke quietly but her voice had the crack of authority. “All right, now, both of you, listen up. Unless Mr. Freeman requests it right now we’re not having a mistrial, we’re not having a continuance. I’m going to give some instructions to the jury this morning and then we’re going to proceed in an orderly fashion until we get to a verdict.” She reached to button her robe, then stopped. “And one more thing—I don’t want to see this case on television, or read about it in the newspapers over the next few weeks. Consider this a gag order. My clerk will have a written order by the recess. I trust we’re clear on this.”

  “Ladies and gentlemen.”

  The judge was still angry—furious at Powell for what she considered the sloppiness of the first half of the case, and at Freeman for at least a half dozen reasons—blurring the mistrial issue, threatening to appeal, attacking Powell personally, going public with his accusations, dressing like a bag man in her courtroom. Hardy wondered if her anger was as obvious to the jury and to the standingroom crowd in the gallery, who had no doubt showed up in response to Freeman’s appearance on television followed by the front-page story in yesterday’s Chronicle.

  Jennifer Witt had become big news again.

  Though Villars had more reasons to want to flay Freeman, she appeared to be equally hostile to both sides, and this—Freeman felt—would ultimately help him. Of course, Freeman was of the opinion, Hardy reflected, that a mass murder in the courtroom would ultimately help the defense. His credo was that any disturbance in the steady accretion of incriminating evidence helped the defense. It was why he acted so disruptively.

  But in spite of the huge crowd, Villars might as well have been alone with the twelve jurors in a small room. She did not so much as glance in the direction of the gallery, of the attorneys’ tables. In a conversational, almost intimate tone, she was giving instructions intended to keep her trial from becoming a reversal—the nightmare of every judge and doubtless the root of her most immediate anger.

  “I won’t try to deny that this trial has taken an irregular turn. It is highly unusual to dismiss one charge in the middle of the People’s case and I won’t insult you by pretending it is not. Some of you may feel a little strange that we are going on at all, and I want to address that issue now.

  “Mrs. Witt had been charged with three separate counts of murder. On Friday, you will recall, I ruled that there was not sufficient evidence introduced, as a matter of law, to prove beyond a reasonable doubt that Jennifer Witt killed her first husband, Ned Hollis.

  “However, I want you to understand that this should not in any way prejudice your feelings about the People’s case on the remaining two charges on the one hand, or Mrs. Witt’s defense on the other.”

  She took a sip of water and cast another withering gaze at counsel—on both sides of the courtroom.

  “That said, let us now put Ned Hollis behind us. He has no integral connection to the remaining charges filed against Mrs. Witt. If any of you feel that you cannot in good conscience accept this instruction, please raise your hand now and I will excuse you from the jury.”

  No hands went up. Hardy would have preferred to see one or two because he knew, in fact, that this was an instruction that would be difficult if not impossible to internalize. Now all twelve jurors were sitting with the personal knowledge that Jennifer’s first husband had died, and afterward she had collected a lot of money. No hands meant that it was not going to be acknowledged in deliberation over the verdict—but it was going to be there, a snake in the weeds.

  Villars nodded. “Now, the remaining two counts still include multiple murder and murder for profit, and these are among the special circumstances defined in California for which the State can ask the death penalty. The deaths of Larry Witt and Matthew Witt should be your
only concerns during the remainder of this trial. The court appreciates your patience in sitting through this exercise and assures you that we will not have a repetition of it during the coming days or weeks.”

  Villars took a final drink from her glass, then abruptly turned to face the courtroom. “I trust, Mr. Powell, that you are ready with your next witness.”

  “I am, Your Honor.”

  “All right, then, let’s get this show on the road.”

  Not only was Dean Powell unhappy and angry, but the confrontation with Freeman in Villars’ chambers seemed to have galvanized him. Now he didn’t just want to win for another notch in his belt or a leg up on his campaign. Freeman, always angling for an edge, had raised the stakes and now—for Powell—it had become personal. He was not just going to win by getting the jury to convict Jennifer Witt. He was also going to whip David Freeman.

  Hardy flipped open his binder and found the tab for the Federal Express driver. He pushed it over in front of Jennifer so that Freeman could review it, too, but Freeman either did not need it—could it be he had the whole file memorized?—or was reluctant to show that he did.

  Mr. Fred Rivera, the Lou Christie fan—Hardy had had “The Gypsy Cried” going through the brainpan for weeks, it was driving him crazy—took the stand, slightly ill at ease to be the first witness but clearly pleased to be part of all this excitement, plus getting paid to take a day off. He wore his Federal Express uniform and sat forward in the witness chair, wanting to take it all in.

  “Mr. Rivera.” Powell stood on the balls of his feet, rocking forward and back, fifteen feet or so in front of the witness, in the center of the courtroom. “On the morning of December 28 of last year, the Monday after Christmas, did you deliver a Federal Express package to 128 Olympia Way?”

  “Yes, sir, I did.”

  So it began, Powell walking Rivera through the delivery at precisely 9:30 A.M., when Larry Witt and Matt were still alive. Fred identified a picture of Larry. It was stamped as an exhibit, as was the Federal Express invoice containing Larry’s signature for the package. Nailing the time down, Powell introduced the computer printout showing that Fred had punched in his verified delivery at 9:31.