The 13th Juror

by John Lescroart

  “Objection,” Powell said.

  “It wasn’t like that . . . ”

  Hardy’s voice was rising indignantly and it wasn’t an act. “ . . . and fired her at the same time, and she threw some things at you in anger. Is that the attack you’re telling us about?”

  Villars rapped her gavel.

  “Badgering the witness, Your Honor,” Powell said.

  “Sustained. Mr. Hardy, is there a question somewhere in there?”

  Hardy took a breath, turned to the jury and gave them a half-smile. “Doctor, can you tell us any instrument that Jennifer threw at you?”

  “Well, yes. I mean no. But it wasn’t just that. She trashed the office. She cut me.”

  “Let’s take those one at a time. She trashed your office?”

  “Completely.”

  “She did a lot of damage?”

  “Eight thousand dollars. I had to close for a week.”

  “Eight thousand dollars. You must have reported that kind of loss to the police.”

  Poole was silent.

  “Dr. Poole, did you report this incident to the police?”

  “I didn’t want to—”

  “I’m sorry, Doctor, but it’s a yes or no question. Did you report this to the police?”

  Poole swallowed again, and again. “No.”

  “So there’s no record that it happened as you say? Yes or no?”

  “No, there’s probably no record.”

  “All right, let’s go back to her cutting you. Did she cut you with one of your instruments, perhaps?”

  “No. It was scratches.”

  “Oh”—Hardy brought in the jury again—“now it wasn’t cuts, it was scratches.”

  “She tore at my arms and face with her nails. That’s the scratches I’m talking about.”

  “All right, that clarifies that. And you’ve testified that they were pretty bad? Did you see a doctor for them?”

  “No, I didn’t want—”

  “Thank you. Do you have any scars from this alleged attack?”

  His hands went to his face, as though there was a memory there. “It’s been almost ten years,” he said.

  “That would be a no?”

  “Yes, that’s a no.”

  “Thank you. One last question, Doctor. Let’s go on to this alleged threat. Do you remember the actual words Jennifer used?”

  “No, I don’t, not exactly.” He was breathing hard, and suddenly rose in the chair and actually pointed to Jennifer. “But she did say she was going to kill me.”

  Villars told him to control himself, to calm down.

  “Did she actually try to kill you? Did she follow you around, call you on the telephone, hound you after that?”

  “No. No, nothing like that. I never saw her again, at least not until I got here.”

  “You never saw her again. In other words, regardless of what she might have said in the heat and pain of the moment after being simultaneously jilted and fired by you, she disappeared from your life. Isn’t that true?”

  “Yes, that’s true.”

  “Thank you. No further questions.”

  Hardy might have won that round on points, but he was afraid the victory would turn out to be Pyrrhic. The jury had been reminded forcefully of Ned, and regardless of what they were legally instructed to do, he doubted that many people, if convinced of Jennifer’s guilt with Larry and Matt, would not come to the conclusion that she had also killed her first husband.

  Additionally, Hardy worried that he had probably alienated Villars once and for all, and no good could come of that. And though he had supplied a reasonable motive for Jennifer’s outburst, he had not been able to overcome the bare fact that she had gotten physically violent with Poole. Poole might have come across as a user, a wimp and a whiner, but Jennifer’s character kept slipping, too—a highly unstable person that you crossed at your serious peril. Wouldn’t such a person be likely to repeat her violence on others?

  Powell had not relied much on photographs during the guilt phase, but as a courtesy he assigned his young assistant, Justin Morehouse, to inform Hardy as they broke for lunch that the prosecution was going to bring out the pictures in the afternoon—a member of the forensics unit for the color shots from the Witt home, the coroner Dr. Strout with the morgue shots.

  It was gruesome but it made sense from the prosecutor’s point of view. Powell was out to prove that the killing must have been cold and deliberate. His thrust in this phase was to emphasize the horror of Matt’s death and Hardy, having seen the photos, knew that they would be tremendously effective to that end.

  Justin was a strapping athletic young man in a welltailored suit. He had been in Powell’s shadow throughout the trial, taking notes, saying nothing, doing the grunt work as most young lawyers did. He had a fresh open face. Giving his message to Hardy, he seemed to be leaning over backward to avoid the appearance of the prosecutorial posturing that some start-up Assistant DAs adopted as their shield.

  “This is going to be very rough on Jennifer,” Hardy said. “Maybe you could pass that along to Dean.”

  “What will?”

  “Looking at pictures of her dead son.”

  Justin shifted uncomfortably from foot to foot as though he had to go to the bathroom. “Maybe she shouldn’t have killed him, then,” he said. It seemed to come out reluctantly, as though he didn’t want to sound heartless but it happened to be his honest belief, no shadow of doubt in it. It was a good reminder for Hardy.

  To many people in the courtroom—perhaps most Hardy believed—Jennifer was an unredeemed multiple murderer who would likely do it again with the right provocation. Even Justin Morehouse—a seemingly nice guy—wasn’t losing any sleep about getting her a death sentence. In fact, though he probably wouldn’t admit it, he didn’t feel too badly about having her suffer a little, too, by the display of pictures.

  Hardy was afraid that Justin might be a pretty good litmus for how the jury was feeling, and if that were so, Jennifer was in serious trouble. Because for all the impression that his cross-examinations were having on Morehouse, Hardy figured he might as well not have come to court.

  As soon as court was called to order after lunch, Hardy rose and asked if the judge would allow counsel to approach the bench.

  “Your Honor,” he began, and told Villars about Powell’s plans for show-and-tell. “In view of the highly emotional response these photographs are likely to produce, I would like to request that you excuse Jennifer Witt from the courtroom during this testimony.”

  Villars pulled her half-moon reading glasses farther down her nose, looking over them at Hardy. “We don’t try murder cases in absentia in this country, Mr. Hardy. Your client stays.”

  This was the law, but strict adherence to it under these conditions smacked of gratuitous cruelty. However, he couldn’t very well argue that. “She may faint, Your Honor. This will be extremely difficult for her.”

  Villars rearranged her glasses, then took them off altogether. “If she faints, Mr. Hardy, we’ll adjourn until she’s feeling better.”

  As it turned out—and this seemed to be the trial’s trademark—it was worse than he had feared. An emotional outburst—even a negative one—might at least humanize Jennifer. But she had no reaction at all. Instead, she seemed to Hardy to go into shock, sitting through it all dry-eyed, unmoving, clutching Hardy’s arm with her right hand as the succession of photographs—blown up to fit on the easel next to the witness box—showed her and the jury how her boy had looked after he had been shot.

  Half the jury reacted with tears or apparent nausea. But Jennifer sat still, her hand on her attorney’s arm, looking straight ahead.

  Unfeeling.

  Dragging from fatigue, Hardy nevertheless forced himself back to Shriners’ Hospital after court adjourned. There was still that bleak sunshine at the Hall, but he hit the fog just across Van Ness as he was heading west and had to slow to twenty miles per hour. In San Francisco, the fog didn’t creep in on litt
le cat’s feet. It was a blitzkrieg that rolled in off the ocean at about a block every three minutes in a wide front that engulfed everything before it. The temperature dropped twenty degrees in half a mile. The wind whipped and wipers went on. People suddenly decided to jump off the Golden Gate Bridge.

  Hardy’s car crept out on Lincoln, the park on his right. He briefly considered stopping at the Shamrock again for a quick one, but last night he had done that and it hadn’t improved his life that he’d noticed.

  There was no guard outside the door to Nancy’s room. These were visiting hours, and Hardy was able to get right in.

  Jennifer’s mother was half-upright in her bed, her eyes closed. There was a wide bandage over the bridge of her nose and, above that, her eyes were swollen orbs of black and blue.

  Hardy cleared his throat and she stirred.

  “It’s the troublemaker,” she said.

  “Yeah,” he agreed.

  She pulled herself higher on her pillow and with some difficulty—grimacing—turned her head to face Hardy. “I told Phil I’d testify, that you’d been by.”

  Hardy nodded. “I figured that.”

  “How is he?”

  Hardy had asked and been told at the nurses’ station. “He’s critical.”

  Nancy exhaled—relief? disappointment?—but then quickly sucked in a breath. Some of her ribs might be broken. “I don’t know,” she said. “What did I do?”

  “It sounds to me like you defended yourself against someone who was hurting you very badly.”

  “I don’t know . . . I’m scared.”

  “Of him?”

  “Of what I did. Of what’s going to happen now.”

  “Have you talked to the police?”

  She nodded, though every slight move seemed to cost her. “They’ve been by. I told them what happened.” She sighed again. “But after that, what?”

  “What do you mean?”

  Half a dry laugh turned to a sharp cry of pain. “It does hurt when you laugh,” she said. “I mean stabbing your husband. I think it means it’s over, your marriage. Now I don’t know what I’m going to do. What will happen.”

  Hardy didn’t have an answer for her and beyond that, he thought her best bet was to figure it out on her own. In his opinion, she hadn’t done badly so far. “What do the police say?” he asked. “Are they charging you?”

  “They say not. Not yet, anyway.” She looked down at her body, covered now. “They say Phil might have killed me. I think he just didn’t realize . . . ” She stopped herself. “No. I’m not going to do that. Not anymore. He knew what he was doing, he just kept coming. I asked him to stop, I begged him . . . ”

  “And that’s what you told the police?”

  “That’s what happened,” she said. She met his eyes. “So when do you want me to testify?”

  “When do you get out of here?”

  She shook her head defiantly. Echoes of Jennifer. “After this . . . ” Beginning again. “You tell me when Jennifer needs me. I’ll be there if I’ve got to crawl.”

  46

  The prosecution rested on Wednesday afternoon. For the better part of three days Powell had called solid witnesses, remarkable for their lack of stridency, given that his goal in calling them was to persuade a jury to vote for the death penalty.

  The jury had seemed to listen raptly as the psychiatrist that Powell had retained related his professional opinion, after three interviews during which Jennifer had, he said, remained uncooperative, that Jennifer was irredeemably sociopathic, unresponsive, hostile, dangerous.

  Such a psychiatric opinion would not have been admissible until after Hardy had raised the subject by calling a psychiatrist of his own, but Jennifer had obliged the prosecution by assaulting their psychiatrist, thereby making his testimony admissible whether Hardy called a psychiatrist to testify or not. In their last interview she had burned him, stubbing out her cigarette on the back of his hand. (“I barely touched him. Besides, he asked me if maybe I’d killed Matt to shut him up about my sexually abusing him! Was that a possibility I was repressing? Was I afraid to consider that?”)

  Then there was Rhea Thompson, the woman from the jail who had exchanged identities with Jennifer back in the spring so that she could escape. Hardy suspected that Rhea was a career snitch who had volunteered her information to cut a better deal for herself, but when she told the jury that Jennifer had said she’d “just have to kill” anyone who tried to frustrate her escape, it came across as credible.

  “That was just a joke. Anybody could see that,” Jennifer had said.

  If Jennifer’s life at home with her husbands paralleled the way she was with Hardy—equal parts bad attitude and bad judgment—he thought he was getting some notion of how she might have provoked the men. Not, of course, that he forgave them, not that it was for a minute acceptable, but so much of what Jennifer did seemed to involve some sort of self-destruction. She seemed to need to lose, to put herself in a position where she could say, See, I told you I was no good. And proving that was what she seemed to do best.

  Hardy decided it was time for a heavy dose of reality talk.

  They were in the suite for a fifteen-minute recess after which Hardy was going to call Ali Singh and let the chips fall.

  “Jennifer, don’t you realize people out there are trying to get a handle on who you are? That’s really what this is about. So you call Powell an asshole in front of the whole world, you use the State’s shrink for an ashtray, you talk about killing other people if you have to. You’re killing yourself here, Jennifer, you know that?”

  “What am I supposed to do, put on an act?”

  There was a time when he thought that was what she was doing. Not now. “Yes! That would be a beautiful thing. I would love a little act right now. Let them see another Jennifer, some gentleness behind the front. Or rather, maybe drop the tough guy act.”

  “Why? Why show it to them?”

  Hardy put his face down in front of hers. “Please. We’ve only got a couple more days, Jennifer. Could you try . . . ? ” He turned around, away from her. “Goddamn,” he said.

  “You’re mad at me.”

  Pacing across to the windows, he looked across the short expanse to the freeway, the faded buildings beyond, the gray sky.

  “You are.”

  “Okay, so I’m mad at you. So what?”

  He was aware of her moving, coming up behind him. She pressed herself against his back. He felt her hand come around to his stomach, low, and start to descend.

  He whirled around, backing against the window. “What the hell are you doing?”

  She looked up at him, her eyes surprised. “Don’t be mad at me,” she said, whispering.

  Hardy tried to back away again but there was no place to go. She took a half step into him, against him.

  This wasn’t going to happen. For a second there was no room, no light. He gripped her shoulders, pushing her back as hard as he could, away from him. As quickly as it happened, somewhere in the middle of it, a vestige of control kicked in, made him hang on, kept him from throwing her backward across the room.

  He held her at arm’s length. As he came back to himself he realized how tightly he was holding her shoulders. She had her whipped look now. He let her go. “Don’t you ever, ever do that again.”

  She backed away.

  He had to turn again, to see something outside the room. The fog, the same freeway, the city beyond. He gulped air, trying to get a breath, to slow his blood down.

  Behind him, she whispered, “It’s just . . . ” she began. “I’m sorry. Forget it.”

  He stared for a long minute at the nothing out the window. He knew now she wouldn’t move. She was waiting. He sucked in another breath, then turned around. “Don’t be sorry,” he said. His legs still unsteady, weak under him, he walked across the room to the door. He was leaving her alone. The bailiff could watch her until they reconvened.

  “Don’t be sorry,” he repeated. “Change.”

>   Villars had them back in her chambers. Powell had let Hardy question Singh for about ten minutes before he had requested this private conference. Villars had—as usual—reluctantly agreed.

  “Your Honor”—Powell was standing next to Hardy in front of Villars’ desk—“the People have been patiently listening to Mr. Singh’s fascinating story, but I fail to see any relevance at all to these proceedings. We’ve argued this before and Mr. Hardy keeps saying he’s going to tie this in to the Witt killings. I don’t think he can.”

  Villars ruminated, then spoke: “Mr. Hardy, I have to agree. Can you tell us where this is going?”

  Hardy took a minute, giving them the short version as well as he could—that the victims in both scenarios were killed with their own guns, the amount of money involved, the suspicion in Los Angeles that there had been a paid assassin in the death of Simpson Crane and his wife. When he finished, Villars was still puzzled.

  “You’re saying this Simpson Crane was killed with Jennifer Witt’s gun?”

  Hardy said no, Witt was killed by his own gun and Crane had been killed by his.

  The judge turned to Powell. “Am I missing it?”

  Powell jumped in. “Even if there is—”

  Villars motioned him quiet. “Is there an evidentiary connection, Mr. Hardy?”

  “This is a plausible alternative theory to these murders that the jury at least ought to hear.”

  “Perhaps you didn’t hear me? I asked you if there was any evidentiary connection?”

  “Yes, of course.”

  After a beat Villars asked if Hardy would favor them by telling them what it was.

  “Witt was with the Yerba Buena Medical Group, Your Honor. He got wind of this stock scam and was going to go public with it. He was killed for that knowledge.”

  “By whom?”

  “By whoever killed Simpson Crane.”

  Villars drummed on her desk. “How do you know that?”