The 13th Juror

by John Lescroart

  Powell started his next line of questioning: Rivera had seen no one walking up or down Olympia Way that morning. Then, without changing his rhythm, the prosecutor departed from what Freeman and Hardy had predicted would be the script. “Mr. Rivera, you had a talk with Inspector Terrell about the events of that morning and you described Dr. Witt’s behavior, did you not?”

  “You mean I said he was pretty uptight, like that?”

  Freeman raised his index finger and objected that this was speculation and called for a conclusion. Villars sustained him. Powell rephrased it. “Mr. Rivera, what did Dr. Witt do when he opened the door?”

  “Well, he only opened it a third, maybe halfway. I gave him the package and then tried to give him the clipboard so he could sign for it, but he was holding the package, no place to put it down. It seemed to make him mad.”

  Freeman, wondering where all this was going, raised a finger again. “Your Honor? Same objection.”

  Villars leaned over to the witness. “Mr. Rivera,” she said gently, “just say what you saw him do, not how you think he felt about it.”

  Rivera’s composure was slipping. Throughout all of his earlier conversations with lawyers and policemen, nobody had made him respond in this way before. Welcome to jury trials, Hardy thought.

  “What did Dr. Witt do then?” Powell was suddenly his good buddy, helping him, drawing him out.

  “Well, he turned half-around to give the package to the boy.”

  “Did you see the boy?”

  “No, I didn’t see him, not then. He was behind the door.”

  “Then how do you know it was the boy?”

  “I saw him go running off to show the package to his mother.”

  At the defense table, Freeman was flipping pages on Rivera’s interviews. “You ever hear this before?” he whispered to Hardy and then, without waiting for an answer, stood. “Your Honor, I object. The witness can’t possibly know the boy’s intentions going off with the package.”

  Freeman appeared agitated and he had reason to be. If the prosecution could show that Jennifer had been home at 9:30, and until now nothing in the record had indicated that they could, it would be a significant loss.

  Villars all but rolled her eyes. “I’m sure Mr. Powell will rephrase.”

  Powell, still not skipping a beat, smiled at Rivera and said, “Dr. Witt handed the package to the boy behind the door. Did the boy then say anything?”

  “He said, ‘I’m going to show this to Mom.’ ”

  Powell turned to Freeman, stopping to make sure the jury understood what Rivera had said. “Your witness.”

  It was a classic example, Hardy thought, of why trials were both so addictive and so nerve-racking. Freeman had interviewed Rivera twice and the man had never wavered in his story—he hadn’t seen Jennifer. He had wanted to get back and hear the Golden Oldie, win a trip to Hawaii. He’d been at the door with Dr. Witt for a minute at the most.

  So the entire thrust of Freeman’s interview had been to establish the time of delivery—not whether Matt had gone running upstairs calling for his mother.

  The old bear got up slowly, but by the time he had reached his spot in front of the bench there was no further sign that he had taken a blow. He smiled at the witness, nodded to the jury. “Mr. Rivera, we’ve had a few conversations over the past couple of months, have we not?”

  “Yes, sir.”

  “And during those conversations, did I ever ask you if you saw Jennifer Witt while you were delivering this package on December 28?”

  “Yes, sir.”

  “And how did you respond?”

  “I said I didn’t see her.”

  “Did you hear her? Was she, for example, singing in the shower or something like that? Moving furniture around?”

  Freeman was taking advantage of the rules that allowed defense in cross-examination to lead witnesses, and Freeman was also using this bantering tone to get back into a more relaxed mode with Fred, showing him what a regular Joe he could be.

  He got his small reward. Rivera grinned, loosening. “No, I didn’t hear nobody singing or moving things around.”

  “When the boy ran off, did he yell for his mother? Did he run up the stairs yelling ‘Mom!’ or anything like that?”

  A risky question—if the answer was yes it would hurt. But given the repressed nature of what they knew to be the tone in the Witt household, Hardy thought it would pay off.

  It took a moment of reflection. Hardy glanced over at the jury. They were following every nuance. Faces were on Rivera. “No, I don’t remember that.”

  Some of the damage perhaps repaired, Freeman allowed himself a breath. “Let’s go back, if we may, to what Matt said to his father. Can you tell us again what it was?”

  Seeing this new trap, Powell was on his feet. “It’s in the record, Your Honor. The reporter can read back what Mr. Rivera said.”

  Villars considered Powell’s point a little too long for Freeman’s comfort. Knowing that a trap could sometimes spring on the person who set it, Freeman withdrew the question. He did not want the jury to hear again how Matt had said “I’m going to show this to Mom.” He had been fishing, hoping that Fred would come up with another paraphrase of the same idea, something like “I’ll see if Mom will like this when she gets home.” But no such luck.

  Smiling, Freeman turned back to the witness. “So, to summarize, you did not see Jennifer Witt in the house at 9:30?”

  “That’s right.”

  “You did not hear her either?”

  “No, I didn’t.”

  Freeman paused and realized this was about as good as he was going to get, and it wasn’t all that good. Giving the jury a confident grin, he said to Rivera, “Thank you, sir. No further questions.”

  Powell, smelling blood, stood quickly and said he had a short question or two on redirect. “Mr. Rivera, when Matt went running off with this package, what was Dr. Witt doing?”

  “What was he doing? I guess he took the clipboard, looked at his watch, signed it and gave it to me.”

  “Did he speak to his son?”

  “No, I told you, the boy went running behind him.”

  “Yes, you did say that. He didn’t remind the boy, though, for example, that his mother wasn’t home?”

  “Objection!” Freeman was up, shot from a cannon.

  Villars pointed at Powell. “Sustained. Mr. Powell, you know better. Strike the last.” And she directed the jury to disregard the question, which they would try to do. But Powell had done more damage, and he knew it as he graciously dismissed the witness.

  Freeman was fuming. Over Jennifer’s objections he had insisted that he and Hardy return to the Sutter Street offices. He needed to vent and didn’t want to do it in front of his client. “He never, never mentioned Matt going to show anything to anybody!”

  Hardy was drinking cranberry soda out of a bottle, picking pretzels out of the bag on the center of the conference table. “Well, he did today, David. Did you ask him?”

  “Shit.”

  “Does that mean you didn’t?”

  Nothing, it seemed, dimmed Freeman’s appetite. He was having liverwurst and onions on a rye roll, drinking one of the popular nonalcoholic beers that were so politically correct in San Francisco but which Hardy thought were a blight on the earth. “I asked him ten times if he’d seen Jennifer. Was Jennifer there? You’re sure you didn’t see her?”

  “You think she was there?”

  Freeman swallowed what he was chewing. “The jury thinks she was there, Diz. We’ve got to convince them she wasn’t ’cause if she was, guess what.”

  Hardy knew too well the answer to that one. He sat a moment, part of him savoring the experience of Freeman choking on his arrogance, a victim of his own oversight.

  After lunch they breezed through the coroner, Dr. Strout, again, and this time he delivered his testimony without incident. It was no surprise that both Larry and Matt had been shot at close range with Larry’s gun and had died alm
ost instantly from the wounds. Freeman could have stipulated to most of what Strout had to say, but he held on to a small hope that once again the doctor would put some spin on his testimony that might cast doubt on the essential and undisputed facts. He did not.

  There was no point in boring the jury. Freeman had been willing to stipulate to the validity of the forensics report identifying Larry’s gun as the murder weapon. But on the matter of fingerprints, he had a few thoughts.

  The witness was the police department’s expert, Aja Farek, an attractive Pakistani woman of perhaps thirty-five. Powell had elicited from her the testimony that Jennifer’s fingerprints had been on both the brass bullet casings and clip that held them.

  Freeman shuffled to center stage. “Ms. Farek, did you find any fingerprints at all on the outside of the gun—the barrel, the grip, anyplace like that?”

  “No. Except the person who found the gun, of course.”

  “The person who found the gun? Who was that?”

  Ms. Farek consulted some notes. “His name is Sid Parmentier. He’s the man who found the gun in the Dumpster, I believe.”

  “The Dumpster? What Dumpster?” Freeman knew all about the Dumpster. Still, he raised his eyebrows, including the jury in his shock at this surprising new development.

  Powell stood up. “Your Honor, the People will be calling Mr. Parmentier about his discovery of the murder weapon. Ms. Farek is a fingerprint expert.”

  Villars nodded, her face a blank. “Stick to the point, Mr. Freeman.”

  “All right. Fingerprints.” Freeman again included the jury, this time in his disappointment. He guessed that they, too, would have to wait to find out what they all wanted to know about the Dumpster. Well, it wasn’t his fault. He was trying to help them but the judge and prosecutor weren’t cooperating. Back at the witness, he was gentleness itself. “How long do fingerprints last, Ms. Farek?”

  The witness frowned. “They can last a long time.”

  “A long time? A month? A year?”

  “Yes. Easily.”

  “And how old were the fingerprints of Jennifer Witt that you found on the casings and the clip?”

  “I don’t know. There’s no way to tell that.”

  “You can’t test them for residual dryness, anything like that?”

  “No. Fingerprints are oil-based. They don’t get dry in that sense.”

  “So she could have handled those bullets and the clip at almost any time?”

  “Yes.”

  “Not necessarily on the day of the shooting or anywhere near it?”

  Powell raised himself from his chair again. “She’s already answered that, Your Honor.”

  Freeman piped right up. “So she has.” Beaming all around, as if he’d made a point he’d been laboring over for weeks. “No further questions.”

  Despite the lead-in, Sid Parmentier, the man who had found the gun, had nothing either new or startling to say about the gun or the Dumpster. Nevertheless, it was not in Freeman’s nature to pass on even neutral testimony. He must have felt he had already used up his quota for the day by not cross-examining Strout, because he jumped up ready to go when Powell had finished.

  Mr. Parmentier was heavy-set, with a Neanderthal-like hairline. His black sportscoat was shiny. His overstarched white shirt was too tight, and, evidently, so was the black tie he constantly tugged at.

  Freeman, loving a man who shared his sartorial tastes, stood close to the witness box, hands in pockets, relaxed. “At any time, sir, did you see the defendant, Jennifer Witt”—he pointed for effect—“at or near this Dumpster?”

  “No.”

  “Did you see her throw anything into it?”

  Powell raised a hand. “Asked and answered, Your Honor.”

  Villars sustained him, but Freeman hadn’t had his say yet, or he had another card to play. Hardy suspected the latter. “Your Honor, it bears repeating.”

  “I’m sure the jury heard it the first time, Mr. Freeman. If Mr. Parmentier didn’t see Mrs. Witt at or near this Dumpster, then it follows, doesn’t it, that he didn’t see her throw anything into it?”

  Silently, apparently deep in thought, Freeman nodded. He half-turned around to the defense table, thought some more, then gave the jury a look.

  Villars wasn’t having it. “Mr. Freeman, do you want to excuse the witness? Let’s stop these histrionics.”

  Contrite, sincere, Freeman apologized—lost in thought, as though he’d forgotten where he was for the moment. “It just occurred to me, Your Honor, that this testimony here falls into the same category as that you ruled on during the earlier part of this trial.”

  No one in the courtroom—not Hardy, not Powell, not the jury or Villars—knew where he was going, and he took the opportunity he had created to push forward uninterrupted. “We’ve got a gun in a Dumpster, just like we had a hypodermic needle in a leg years earlier.” Freeman turned directly to the jury, suddenly raising his voice, suddenly furious. “You see what he’s doing, don’t you? Mr. Powell keeps leaving out any agent who delivers these objects to their destinations. He wants you to assume that it’s Jennifer Witt and he can’t do that.”

  Bam bam bam.

  Powell was on his feet. “Objection! Your Honor . . . ”

  Villars sounded angry: “Mr. Freeman, get hold of yourself. You don’t address the jury like that. The reporter will strike those last remarks.”

  But Freeman kept his voice up, indignant, outraged. “Your Honor, my client’s life is at stake here, and there’s no evidence whatsoever that Jennifer Witt even held this gun that somehow got into the Dumpster.”

  “Your Honor!” Powell had come around his table into the forum of the courtroom. “Her fingerprints were on the weapon.”

  Villars used her gavel again. “Sit down, Mr. Powell. We’re not arguing this right now.” She pointed a finger. “You, Mr. Freeman, are out of order. Are you finished with this witness or not?”

  “I am outraged—”

  Now Villars slammed the gavel, the sound echoing in the wide, high room. Next to Hardy, Jennifer jumped.

  “Anything but yes or no and you’ll go to jail, Mr. Freeman.”

  Suddenly Freeman got himself back under control. He nodded, swallowed hard. “Yes, Your Honor.”

  “Yes, what?”

  “Yes, I’m through with this witness.”

  The judge was still holding her gavel, ready to crack it down again. But the moment had passed, Powell was back in his seat, Freeman was returning to his.

  Villars perused the room from her bench. With no one else to talk to, she looked down on Mr. Parmentier. “The witness may be excused,” she said. “We’re going to take a short recess.”

  “They’re hating you,” Jennifer said.

  Freeman was walking around by the window, looking out, then back, pleased with himself. He, Hardy and Jennifer had retired for the recess to their semiprivate conference room behind the bailiffs’ area.

  “I don’t think the jury is hating him,” Hardy said.

  “They love me,” Freeman declared.

  “But Mr. Powell was right.” Jennifer was sitting on the desk, hands and feet crossed. “There was something connecting me and that gun—it was mine and Larry’s—even if I didn’t put it in that Dumpster. It wasn’t the same as the needle.”

  “It doesn’t matter,” Freeman said. “After what the judge did with Ned, every person on that jury is going to have it in their minds. They’re going to think it’s another Powell railroad because that’s what they’re going to be looking for. I think we just put ’em away—”

  Hardy was standing by the door, hands in his pockets, taking it in. “It’s a different set of facts, David. I think the jury’s going to go with the facts.”

  Freeman stalked back to the window, looking out and down. “Bunch of spoilsports.”

  There was a knock and the door opened. One of the courtroom bailiffs stuck his head in, gave Hardy a look and told Freeman that the judge would like a word with hi
m in her chambers.

  35

  Hardy decided that he should probably swing by Olympia Way and spend an early-morning hour going over notes and hoping his phantom jogger would reappear. If she ran by that way even semiregularly there was some chance that she might be useful. The defense would open its case in the next week and he wanted as many “other dudes” as he could for David to pull out of his hat.

  Not that, strictly speaking, Hardy’s jogger was another dude. Or even a dudette. He had different plans for her—Freeman wouldn’t attempt to implicate her in the killings as a possible suspect. But he might be able to use her to discredit the damaging testimony of Anthony Alvarez, the neighbor from across the street. What if he had seen this phantom jogger that morning—and not Jennifer—at the gate? And therefore not in the house. If a question about Alvarez’s identification of Jennifer could get planted in the jury’s mind, the jogger would be worth putting on the stand.

  Sipping some coffee out of a traveling mug, cramped behind the wheel of his Honda just after sunrise, he realized that during the past week, while the focus of the trial had been on the Ned Hollis murder, he should have been preparing overviews on Tom DiStephano and the Romans if Freeman was going to use them as defense witnesses.

  But in fact he hadn’t spoken to Tom DiStephano since he’d gotten threatened by him and his father a couple of months ago, and Glitsky hadn’t seemed particularly inclined to move on finding an alibi for the Romans on December 28. Glitsky might be his friend, but he was first a cop, and a busy cop with other priorities. When the directed verdict of acquittal came in so early on Ned, he realized that time was getting short and he had to have significantly more if Freeman was going to be able to use any of the information he’d gathered on these people.

  He’d have to put the needle in Abe—see if he could get him to move on the Romans—and he knew the answer might well be that he couldn’t. He also came across the name Jody Bachman and realized that the Los Angeles attorney had never gotten back to him on Crane & Crane and YBMG. These were all areas that would have to be shored up before the defense began its case in earnest.