The 13th Juror

by John Lescroart

  Everyone in the courtroom was watching. It was almost a straight line from the Midtown Terrace Playground at the end of Olympia down to Parnassus Street.

  “And is this a level area, Ms. Reed?”

  “Objection.”

  “I don’t think so,” Villars said again.

  “No, sir, it’s all uphill.”

  “Or downhill from Olympia Way?”

  “Yes.”

  “So,” Powell concluded, “if you ran through the medical center, you had only to cover a half-mile of ground as the crow flies, and all of it downhill. Even if the defendant had left her house at 9:40, she could almost have walked it . . . ”

  By Friday, Hardy was going crazy sitting in his office, or strolling down to Freeman’s, or going by the jail to talk to Jennifer, or looking into store windows. Waiting for the verdict was its own special hell.

  And if they lost, the case would become his and his alone. It had begun really to sink in that Freeman wouldn’t even be there in the courtroom with him anymore—there was no reason for him to be. Freeman had been the guilt-phase attorney and—win or lose—his job was now over. He would write his appeal, if necessary, try for a new trial or a reversal, but as far as the courtroom was concerned, Freeman would play no more active role.

  When Freeman had first asked him to be Keenan counsel—the attorney for the penalty phase of the trial—Hardy had not fully realized its implications. He should have, he told himself.

  Now he alone would have the responsibility of convincing the same jury that convicted her, if it did, that Jennifer should not go to the gas chamber, that there were factors in mitigation. It would be his job to tell the jury what those factors might be.

  But of course all this led back to his belief, now, that the jury might find her guilty. It wasn’t, he felt, that the prosecution had done such a bang-up job proving that she’d killed her husband, and accidentally, in some undocumented fashion, her son. Nor, he was convinced, had Freeman been inept, in spite of what Hardy considered to be his occasional lapses of judgment.

  No, if the jury convicted Jennifer it would be because they had become convinced that she was selfish, cold, a liar who stole from and cheated on her husband, a woman who mostly had shown anger rather than contrition—exactly the sort of human being who would do what Jennifer had been accused of.

  And—the source of much of Hardy’s angst now—if the jury believed Jennifer was such a cold-blooded person, they could also not implausibly believe that she deserved the ultimate penalty . . .

  Hardy had asked Frannie if she could leave the kids with Erin for a couple of hours and have lunch with him, and now they were standing at Phyllis’ station outside Freeman’s office, making small talk, waiting on Freeman, who had invited himself along, when the telephone rang at Phyllis’ desk.

  “David Freeman,” she said formally—her standard response to incoming calls—then listened, lips pursed, nodding once or twice. “Thank you.” Hanging up, apparently forgetting the presence of Hardy and Frannie, she pushed the button on her intercom. “Mr. Freeman, the jury’s coming in.”

  The gallery had filled up with media representatives in a remarkably short time. Hardy finagled a space for Frannie next to a reporter he knew on the aisle in the second row.

  Jennifer was escorted in and brought to the defense table. She was wearing a white blouse and tan wraparound skirt with low heels. Freeman patted her hand, though she seemed not to notice, sitting without expression, showing no emotion.

  When Villars directed her to, she stood at attention, staring straight ahead, flanked by Freeman on her right and Hardy on her left. The judge took the paper from the clerk, read it carefully, handed it to the clerk.

  “As to the first count, we the members of the jury find the defendant, Jennifer Lee Witt, guilty of the murder of Larry Witt, in the first degree, with special circumstances.”

  Hardy felt his stomach churn. Half-turning, he noticed that Jennifer’s reaction was the one he would have predicted—none. No, not quite. A muscle on the side of her jaw was moving, but otherwise she might have been waiting for a stoplight to change. He glanced at the jury box—they were seeing it, too. A cold woman, they must be thinking.

  Behind them, in the gallery, there was an insistent buzz, but Villars, after a perfunctory tap with her gavel, was bent on the job at hand. “As to the second count,” the clerk read, “we the members of the jury find the defendant guilty of the murder of Matthew Witt, in the first degree, with special circumstances.”

  Freeman was holding her elbow. She did not appear to need the assistance.

  I’m not going to break. I’m not going to let them break me.

  They beat on you every way, every day, and their satisfaction is watching you fall apart. Then you break down. You beg them to give you another chance, promise you’ll do better, anything they want. You’ll change and be different and you won’t even be yourself anymore if they would only stop making you hurt.

  Which is all the time, now. Especially since Matt.

  But I’m not going to let them anymore. Crying doesn’t help. It never helped with Larry, with Ned, with Ken, even with these lawyers. They think it’s an act, anyway, if I show how I feel. They don’t know and even if they did, they wouldn’t care.

  Why do I want to convince everybody? Of what? That I’m not a monster? Why should I bother? Of course they found me guilty. They always have . . .

  I am guilty in a way. I am to blame for getting myself to here, for becoming who I am—empty, used up. You let them beat on you long enough, eventually who you really are, that person goes away. Hides.

  Well, I won’t give them that satisfaction anymore. That’s something. Maybe a start . . .

  “I honestly didn’t think they’d convict.” Freeman’s hair was all over the place in the late-afternoon wind. The sky was a thick gray blanket over the steps in front of the Hall.

  Hardy had his arm around his wife, who was feeling sick, her hand clutched to her stomach. She had waited in the courtroom until it had cleared, until Hardy had come out after going into the private suite with Freeman and Jennifer. Where Jennifer hadn’t wanted to talk about anything.

  At least not with Freeman.

  She told Freeman, a smile of fury on her face, that he was lucky he had made her pay up front. If she had known he was going to lose . . . wasn’t he supposed to be the best?

  He told her it wasn’t over yet, of course that was her understandable reaction. But he’d be working on the appeal. There were grounds . . .

  Hardy had listened to part of it, then excused himself—he would talk to Jennifer later, without Freeman—and came out to Frannie. She wanted to go home.

  But Freeman caught them on the steps, wanting more postmortem. He was still fighting the case. He was going to appeal. “It came down to the three minutes . . . ”

  Hardy felt he had to say something. “That was my fault. I thought it was a big deal.”

  Freeman hit him on the arm. “That’s bullshit,” he said. “The whole thing was my show, don’t kid yourself. I mean, I should have walked the route myself. If there was any way in the world she could have got to that bank in five minutes instead of eleven it was my responsibility to have found out how. Too many eggs in that basket.” He pulled his jacket more tightly around him. “Anyway, I can probably get a new trial. Villars should have stopped this one after she granted my 1118.”

  Whistling in the dark? Hardy had a hard time imagining that Freeman wanted to go through this exercise again. He also doubted whether as a matter of law Freeman was right. But he really preferred not to get into that. Instead he said, “Maybe you should have crossed Lightner. That’s when it went south. If they were having an affair we could have made the case that he had as good a motive as she did.”

  Freeman shook his head. “If,” he said. “And if we could prove it, and if he hadn’t had an alibi, which he did. Not to mention he pretty much convinced me he just wouldn’t do that. No, I’m afraid Light
ner just gave Jennifer a better motive, Diz. The less the jury saw of him the better.”

  Frannie finally spoke up. “Guys, please. I’m really not feeling good, Dismas.” She looked at Freeman. “Sorry, David, I can’t handle this very well. Jennifer did not do this. How could they have found her guilty?”

  A gust whipped between them, stopping what Freeman was starting to say. Reconsidering, forced to really see her expression at last, he moved closer and put an arm out, encircling them both. “Go on home, Frannie. Get some rest. Diz, go on, you two go on home.”

  In the car, Frannie was crying quietly. Hardy had the windshield wipers going in the drizzle. She held his hand in both of hers on her lap.

  “You’re more upset than she was.”

  Frannie shook her head. “No. She was just holding up, trying to hold herself together.”

  Hardy glanced across. “Well, she’s some kind of superhuman holder-upper then.”

  Nodding, Frannie said that she had to be. “She did not kill Matt, Dismas. She didn’t kill Larry, either. I still believe that.”

  Hardy looked over at his wife. He squeezed her hands, not knowing what to say.

  PART FOUR

  40

  Before she had known that the jury would be coming in that day, Frannie had made plans for the weekend. She knew that her husband would probably want to stick around, hang out with Freeman, discuss and analyze and worry. She didn’t think that would be wise.

  So when they got home from picking up Rebecca and Vincent at Grandma’s, although she still felt sick to her stomach, she helped Dismas pack the car and then got him in the passenger seat and drove north for ninety minutes, up to the small town of Occidental, near the Russian River.

  She had rented adjoining rooms in the old Union Hotel where there was nothing to do except eat huge plates of home-style Italian food and drink in the bar and dance to country music and, in the soggy daytime, drive around some more looking at redwoods and water and playing with your children.

  In spite of her own feelings, she gave Dismas until they got to San Rafael—about thirty-five minutes—to get out all of his frustrations and impressions about the trial and verdict and plans for the upcoming penalty phase.

  Right now they were having a family weekend. The penalty phase would take over their lives soon enough. This was an opportunity for some quality in their lives. She had gone to some lengths to arrange it. And she was going to demand it for herself, for her children, for her man.

  The rest of the world could wait until Monday.

  Hardy knew it was one of the reasons he loved her. She did things like that.

  His own inclination was to keep pushing and pushing until something gave, but she had taught him on a couple of occasions that sometimes it didn’t hurt to back up a step and look at the direction you were pushing. A different angle of perspective might get more accomplished.

  He had originally planned to go right on up and talk with Jennifer, but on Monday morning, marginally refreshed from the food and simple beauty of the north coast—although he hadn’t slept much—he found that sometime over the weekend he had decided to call on Ken Lightner.

  Lightner had been, not exactly a thorn, but a presence since the beginning—in any event his involvement was greater than Hardy had originally suspected and he wanted to get to the bottom of it if he could. Not only that, he was considering the battered wife issue again—he felt he had to. The jury had decided that Jennifer had killed Larry and Matt, but he thought they might be persuaded that she wasn’t a cold-blooded killer deserving execution if they knew how often and/or how badly she had been beaten.

  It was worth a try. He didn’t have much else.

  Lightner had sounded pleased, perhaps relieved, to hear from him. Maybe he’d felt ostracized since the allegation of the affair had come out and they hadn’t wanted to bring him to the fore because his relationship with Jennifer could appear to give her one more reason to get rid of her husband.

  The office was across from Stern Grove in a large mixeduse apartment complex called—cleverly—The Grove. It was a glass and brown-shingle contemporary building surrounded by trees, the parking lot on this morning half-filled with a disproportionate sprinkling of high-end German automobiles. Rent here wouldn’t be cheap.

  In spite of a morning sun, autumn was in the air. After he had parked, Hardy stood a minute by his car, arrested by the scents of eucalyptus and wood smoke, although where the smoke came from was a mystery. No one was supposed to burn anything outdoors anymore—it was illegal.

  Lightner’s office seemed to take up most of one of the back-corner modules. Hardy rang, waited, was buzzed in. He walked down a long hallway of muted color. There were six or eight nonrepresentational framed things—works of art?—on the walls.

  Lightner’s bulky frame appeared in the light at the end of the hall. “Mr. Hardy,” he said. “Welcome.”

  Hardy shook hands and was introduced to Helga, Lightner’s secretary. The reception area was bigger than it had to be but still, somehow, cozy. The two couches were overstuffed. There was an easy chair and ottoman in hot orange, yellow, blue and black, the only brightness in the office. Helga herself—she preferred, she said, Helga to Ms. or Miss Brun—was about forty and wore no rings. She had a low black desk, the surface of which was clean except for a green felt blotter. A low shelf held a typewriter—no computer here—with what Hardy took to be a six-line business phone and intercom set up next to it. Helga asked if they would like coffee and both said they would.

  Lightner led the way to his consulting office, a room that was small but warmer than the reception area. It wasn’t pastel, for one thing. Done in greens, leathers, carved woods and glass, it was restful, its windows looking out onto one of the older groves, sunlight coming through the trees. Hardy avoided the couch and took one of the two leather armchairs. Lightner left the door to Helga’s area open and sat in a chair by the door.

  “I’ll come right to it,” Hardy began. “You went to Costa Rica for a week and stayed with Jennifer.” He figured he didn’t have to say any more.

  Lightner frowned. “Are we going through this again? I thought I’d covered this with Mr. Freeman.”

  “Freeman?” Somewhere in the back of his mind, Hardy figured he must have known this, though he’d never made the overt connection. Yes, Freeman must have talked to Lightner. He had said right after the trial that Lightner had convinced him he hadn’t done anything wrong with Jennifer, been intimate with her. At the time, right after the trial and the verdict, it had gone right by him. And, just like Freeman not telling him about Jennifer being guilty of killing Ned, he hadn’t reported to him about this interview with Lightner either. Typical David.

  The psychiatrist nodded. “So now what, Mr. Hardy? Now you too want some assurance I was not violating every code in the book and having sex with my patient?”

  The burden of saving Jennifer had been building steadily on Hardy, or probably he wouldn’t have resorted to the extreme ploy he was now about to try. “Dr. Lightner, your patient and, I gather, friend, Jennifer, told me otherwise.” Of course, she hadn’t, but if it would smoke out some mitigation for her, some alternative . . .

  Lightner looked shocked, then saddened. “Mr. Hardy, I find it hard to believe that, I really do, I’m sorry. But if, indeed, Jennifer did say this, well, there are psychological reasons, but you would only say they were self-serving. I tell you that I did not have intimate relations with my patient. I testified to that. I believe, I thought, Mr. Freeman believed me.”

  Hardy shrugged, feeling increasingly uneasy about what he was doing. “So where does that leave us, Dr. Lightner? You’ve wanted to help Jennifer, and, believe me, I’d love it if you could. So . . . ?”

  Lightner stood and crossed the room. He opened a door that led out to a patio, motioning to Hardy, who got up and followed. Outside, Lightner walked a few steps into the grove, then turned. “I’ll take a polygraph if you’d like. You know how much I care about Jennifer,
but I can’t have it said I’ve been intimate with a patient, taking advantage of the relationship. I’m sorry, but Jennifer is just not telling the truth.”

  Finally, Hardy relented. “Sorry. It’s me who isn’t telling the truth. It was a bad try.”

  “Okay, here’s what happened, just as I told Mr. Freeman . . . ”

  He and Jennifer had stayed in the same hotel room in Costa Rica because when Lightner had arrived she had become scared all over again, realizing that she hadn’t run that far if he could be there on such short notice. She had felt vulnerable, alone, checking out of her own room, thinking she would be leaving no paper trail.

  It stretched Hardy’s belief to the breaking point, but the explanation was plausible, if foolish, from Lightner’s point of view. Still, people did foolish things—it could have happened the way Lightner told it. And now Hardy felt he needed Lightner if he was going to have any real chance to save his client’s life. And he had to think of it that way . . . Freeman’s appeal working out was not to be counted on.

  Between answering the phone Helga had managed to bring the coffee. They were back in their chairs, more relaxed now, though not totally allies. Lightner had not been impressed or pleased with Hardy lying to him, he said. Still, they were on middle ground, working for the same result. They didn’t, after all, have to be pals.

  Hardy sat with his coffee perched on his knee. “What do you personally think is the situation here, Doctor?”

  “What do you mean?”

  “I mean, what in your gut do you believe?”

  “I believe her, Mr. Hardy. But as I’ve said, if she did it, she was driven to it. It’s not a frivolous defense, you know.” Placing his cup and saucer on the low table next to him, Lightner turned toward Hardy and leaned forward in the chair, hands folded. “I’ve said this all along—I’ve never understood Mr. Freeman’s concept—”