The 13th Juror

by John Lescroart

  “I think I can make a persuasive argument.”

  Powell stepped into the breach. “Your Honor, this is ridiculous. This is neither the time nor place for alternative theories. The jury has already found Jennifer Witt guilty. If Mr. Hardy had any evidence, he should have had Freeman bring it up during the guilt phase.”

  “I didn’t find out any of this until last weekend.”

  Powell threw up his hands. “Well, that’s either too damn bad or damn convenient, isn’t it?”

  Villars held up a finger. “Gentlemen, please. This is a woman’s life, and if justice is served, we ought to be able to find a place for it. If there is evidence, I want to hear about it anytime. Mr. Hardy, this Mr. Crane then was killed . . . ”

  “The investigating officer was a Floyd Restoffer. He’s with the LAPD. I could subpoena him to come up.”

  “And they have a suspect?”

  “No, but they’re certain it was a professional hit.”

  Villars paused, not liking that very much. “All right, so this Restoffer, what has he found about this Group?”

  “The Group was represented by Crane’s firm, as I’ve told you.”

  “By Crane himself?”

  Hardy hesitated, but there was no escaping it. “No, by another of the partners.”

  “Now wait a minute,” Powell exploded. “Your Honor, does Mr. Hardy mean to tell us Crane didn’t even represent this Group?”

  “I hope not,” Villars said. “That’s not your evidence, is it, Mr. Hardy?”

  This was not turning out pretty. “Well, no one’s been charged, if that’s what you mean, but—”

  Villars’ face had clouded, her volume increasing. “That’s exactly what I mean. Does Restoffer have a case that relates here, or what?”

  “It’s an open case down there.”

  “Ten months and it’s still open? What’s this man Restoffer doing with a ten-month-old case?”

  “Nothing, now, Your Honor. He’s been taken off it.”

  Hardy well knew that alleged linkage here came across as pretty far-fetched. Perhaps—no, certainly—he was damaging his professional credibility even bringing it up, but what else could he do? Jennifer was going to get sentenced to death if he couldn’t pull something out of his hat. Was there really a rabbit in there? He didn’t have any idea, but in his desperation he sure as hell would argue it. If the judge would let him.

  All Hardy felt he needed was another ten minutes at least to try to explain the latest news he’d received from Restoffer: how he’d been told to drop the case after questioning Bachman, fiancé of the wealthy woman in San Marino who was both a contributor to Frank Kelso, the LA supervisor, and a member of the YBMG Board. There had to be something there. He needed ten minutes alone with Villars—he had to get her ear.

  “Your Honor, I wonder if we might speak in camera.”

  Villars sat back in her chair. “No,” she said. “There is nothing off the record in a capital case. Nobody’s going to cut any private deals.”

  Her irritation with Hardy was palpable.

  “Your Honor, I must say something.” Powell stepped into the pause, polite but firm. Villars turned to him. “I’d like you to consider another possibility—as Mr. Hardy is having you do. And that is this: Regardless of what you ruled or what the jury might have found had matters progressed differently, let’s consider the possibility that Jennifer’s first husband, Ned, was in fact killed by this same assassin ten years ago. If we grant that, could it then become, in Mr. Hardy’s words, a plausible defense?” Powell squared around, right at Hardy. “It’s absurd. It’s insulting.”

  Villars had given every indication she’d reached her limit before, but Powell’s reductio ad absurdum hit its mark. The judge nodded, leaning forward. “I agree,” she said. “You know, I’ve been listening hard, Mr. Hardy. I’ve been paying attention. I’ve been leaning over backward because, as you point out, this is a capital case. But for the life of me I can’t see any reason this should be admitted.”

  “Your Honor, there’s got to be a connection.” Did he really believe that? Or was it his own desperation talking? “Give me a continuance for a couple of days. I’ll fly down to LA—”

  “Your Honor, please!”

  She held up a hand, not needing Powell’s input. “That’s not going to happen. We’ve already taken more than two months of this jury’s lives.” She sat, still in her robes, her face set. She lowered her voice, which gave it even more authority, not that she needed it; there was no mistaking who was the boss in Villars’ chambers. “You know, Mr. Hardy, I’ve been trying to figure you out. I hear you were a pretty good lawyer when you worked for the City. You seem like a sincere man. You appear to work hard. But time and again in this trial I’ve come up against your refusal to deal with the way we do things here in this state, or in any other state that I know of. In the last couple of weeks I’ve had to listen to how I was personally hostile to you and how that was affecting my decisions. Then we get this specter of the battered woman syndrome, which you raise once, don’t present any evidence of, and then drop. Today, your first real opportunity to bring up something to help your client, some witnesses that might want to argue for her character or her background or something . . . ”

  “Your Honor . . . ”

  Villars slammed her hand on her desk, but her voice remained low. “Mr. Powell is correct here. The guilt phase of this trial is over. We have played strictly by the rules. Your side lost. That’s how we do it. That’s why it’s fair.”

  Hardy waited a moment to make sure he wasn’t interrupting, that she was finished. “It may be fair, Your Honor, but they got it wrong. Jennifer did not kill her husband and son—”

  “Then prove it, when this is over. I guarantee you, if you find another murderer, Mrs. Witt will go free. But in the meantime, your job is to argue mitigation. I want to know if you are prepared to do that or not?”

  Hardy let out a breath. “One of the main thrusts of my argument was that somebody else killed them.”

  “With the evidence you’ve got, I’d say that was probably ill-advised strategy.” Adjusting her robes, Villars checked the clock on the wall and shifted gears. “All right, gentlemen, it’s four-fifteen. We’ll go outside and adjourn for today.” She pointed a finger. “Mr. Hardy, tomorrow I expect witnesses who have something to say to the jury. Evidence talks here, Mr. Hardy. It’s all that talks.”

  She rose and came around the desk, leading the way to the door, five steps ahead of the men. Powell hung back, letting Hardy come up abreast of him, then whispered, “Bullshit walks.”

  Hardy left the courtroom, head bowed, shoulders hunched, seeing nothing. It had fallen apart. Not only had he let down his client, he had sullied his reputation, such as it was, by misreading the fairest judge he was likely to appear before.

  Out of the corner of his eye he was aware of Powell in front of the television cameras. He’d get a few seconds of airtime looking good, but he wasn’t about to defy the gag order, not at this late date and with things going his way. Instead he was carrying on about how crime was a huge problem, all right, he had a lot of thoughts on the subject.

  Hardy had had his fill of Dean Powell. He wanted to slink back to his office, but Inspector Walter Terrell suddenly was standing in his way. Mr. Theoretical. But Hardy couldn’t very well condemn him for that—he himself had fallen into the same trap. Because something could have happened didn’t necessarily mean that it did. Or, in any case, that it could be proved. His job, the trust he’d taken on, was to prove, not speculate. He’d lost track of the obvious.

  “They sent me down to get you,” Terrell said enigmatically. “There’s somebody upstairs asking for you.”

  He stopped. It never ended. What did Jennifer want now? How did she get upstairs so soon? Then another question popped up: Why was Terrell giving him the message?

  “On seven?” he asked, meaning the jail.

  “No, four.” The fourth floor was homicide. “We’r
e talking to Mrs. Witt’s mother. Her dad died a couple of hours ago. She wants her lawyer. Abe Glitsky told her he thought he knew where you might be.”

  Nancy had volunteered to come down. Homicide lieutenant Frank Batiste as well as Glitsky and Sean Manion were on hand. Nancy was not being charged with anything yet in the death of her husband. No one argued that she had killed him, but they needed her statement, even if it was self-defense.

  Nancy was sitting in a yellow leatherette chair at the table in one of the interrogation rooms. Dressed up, with black eyes and a bandage across her nose, she could have passed for thirty-five, much as her daughter on a good day could pass for twenty.

  Barely nodding to the assemblage, telling everyone that, first thing, he needed five minutes alone with her, Hardy entered the room and closed the door behind him.

  She smiled weakly, greeting him. He saw immediately that her breathing was shallow, her color bad, too pale. “Are you all right? Should you be walking around?”

  She nodded. “They let me out this morning. I’m just a little weak. I thought this would help,” she said. “Anyway, if I came down here, maybe I could see Jennifer.”

  “We can probably arrange that. But what do these guys want?”

  She shook her head. “I don’t know. The inspector I saw in the hospital—Manion?—he said they weren’t going to charge me with anything, and then when . . . when Phil . . . ” She forced a breath. “Anyway, after Phil died the younger man came out and asked if I’d cooperate.”

  “If you’d cooperate? He said that?”

  This wasn’t adding up. Either they were going to charge her or they weren’t, and either way there was no point in getting her downtown in her condition to sit in an interrogation room at the homicide detail. He also wondered about the party outside—Batiste, Glitsky, Manion, Terrell. Everybody hanging around waiting on an interview with a woman they weren’t going to charge with anything?

  “Have you talked to them yet?” he asked.

  But before she could answer, there was a loud buzz outside, clearly audible even inside their room. They stood and Hardy opened the door. The District Attorney himself, Christopher Locke, had come in, trailed by Dean Powell and half the television cameras in America.

  It was all getting clearer.

  Hardy didn’t look at Locke. Their feelings about each other had been aired the year before. He walked out into the main room, around Locke and up to Powell. “You know, Dean, this is pretty outrageous. Not to mention insulting.”

  Terrell stepped forward, out of the pack, explaining to Powell: “She asked for her attorney.” Why should Terrell be explaining to Powell?

  “I don’t know what you’re talking about,” Powell said to Hardy.

  “I’ll tell you what I’m talking about.” The room continued to backfill with camera-wielding humanity. “I’m talking about this media circus. I’m talking about using this woman’s”—there was Nancy, standing by the door—“about using this woman’s personal tragedy so that the jury in her daughter’s trial can read about it with their coffee tomorrow morning, and not incidentally so you can be on television again just before election day.”

  “That’s ridiculous.”

  “I don’t think so, I think it’s on the money. I think you had Terrell sitting in the wings at Shriners’ in case Jennifer’s father died so you could drag his wife down here in front of the cameras . . . Like mother, like daughter. Right?” Hardy wished California sequestered its juries.

  Frank Batiste was a no-nonsense professional cop who was outgunned by the brass here, but he was in charge in this room, his domain. He moved forward toward the press of media. “Would all of you please step outside the door now?” He was herding them, prodding. “Just back up there. Thank you.” When the last camera had gone, he closed the door and turned back to the room, suppressing a smile. “I’m sure they’ll wait.”

  Locke thought he’d try to take charge. “It’s the District Attorney’s decision whether or not to charge a person with a crime, not the police department’s.”

  “Hey, I already wrote it up.” Manion, DA or no DA, had done his report and he wasn’t about to stand by while his professionalism was questioned. “If this wasn’t self-defense, you can have my badge.”

  “I’m not saying it wasn’t.” Locke as usual, in Hardy’s view, was temporizing until he saw which way the wind was blowing. “But it is my decision.”

  Hardy didn’t dispute that, but it wasn’t the issue. “Why is Dean here then, Chris? You want to explain that one?”

  This drew blood, but Locke recovered quickly. “Mr. Powell is a Senior Assistant District Attorney. He’s got every right to be here.”

  Batiste took another step forward. “No question, sir. So you’ve decided to charge this woman? You want us to take her upstairs and book her?” Hardy didn’t know Batiste well, but suddenly he decided he admired him. There was no irony in his tone; in fact, it was punctiliously correct. He was telling the District Attorney that if he had his facts right they should proceed with the next administrative step.

  He was also calling Locke’s bluff.

  The District Attorney stood there flat-footed. The room, even without the media, felt jammed and overheated—Locke, Batiste, Powell, Terrell, Manion, Nancy, Hardy, three other homicide guys who happened to be there when it began. Locke for the first time looked at Nancy DiStephano, who was leaning wearily against the doorjamb to the interrogation room, her arms crossed, protecting her broken ribs.

  “I haven’t read the arresting officer’s report,” Locke said. “I was under the impression . . . ” He stopped. “After I read it, I’ll make my decision.”

  Powell followed him out, “no commenting” all the way down the hall. In the homicide room there was a long silence. Finally Batiste spoke to Terrell. “The District Attorney’s office hires its own investigators, Walt. You want to be one, go apply. I’ll expedite the paperwork.” He walked into his office.

  Hardy walked back over to Nancy, who by now looked to be on the verge of fainting. Hardy got her to the chair, helped her down. She was panting from the exertion. Glitsky joined them. “She could have called Freeman or you. I told her you were probably closer.”

  Hardy put a hand on Glitsky’s shoulder, squeezing it, a thank-you. “How about I take you home, Nancy?”

  She was obviously in pain but she looked up at him, shaking her head. “Would you mind? I’d like to see Jennifer if that’s okay.”

  After a short rest she felt she could handle the walk to the elevators, the short ride to the seventh floor.

  When she got out of the elevator into the barred bullpen outside the heavy doors of the jail, Nancy put her hand to her mouth, a caricature of shock, except Hardy was certain it was genuine. There was the liniment and sweat smell—familiar to him. The way the sounds rang if they were close by—the elevator, the lock in the bullpen door, keys jangling. Far off, half-heard, haunting, voices were muffled yet the low hum was constant. They heard somebody scream, the crash of something being thrown. It was dinnertime.

  Nancy clutched at his arm. “I didn’t know it was . . . ” She didn’t finish. She didn’t have to. Nobody knew what it was like until they’d been there. “I should have come down, but Phil . . . ” Hardy knew that one too—Phil wouldn’t let her.

  He’d gotten permission for Nancy to enter the tiny attorneys’ room at the women’s jail. He was by the door as it opened when they led Jennifer in.

  Nancy was sitting across the small room. She bit her lip, her face tilted up. The door closed. “Did they tell you about your father?”

  Jennifer nodded, her hands flat against her sides. Nancy stood up, took a tentative step forward toward her daughter.

  “Jenn . . . ”

  She barely whispered it. “Oh, Mom . . . ”

  They stood there, unmoving. Nancy held her hands out and Jennifer moved to her uncertainly. They came together, embracing, Nancy’s arms around her daughter’s neck, her face twisted with the
agony of her broken ribs but not letting go, squeezing, from Hardy’s perspective, as tight as she could.

  “I have to find it.”

  “No,” Freeman said, “you’ve got to drop it.”

  “I don’t have anything else. The woman doesn’t have any friends. She’s got a mother, but that’s the only trace of her past. She’s legally as sane as you or me. This is the only chance. I’ve got to pursue it.”

  They were in Hardy’s office. It was closing on eleven. He had remained in the interview room, a fly on the wall, for the hour that mother and daughter had talked or, more precisely, tried to reestablish some connection. It had been strained a lot of the time, with long silences and frequent tears, but they had held hands throughout and everything was personal—they never mentioned Jennifer’s case.

  After leaving the jail and making sure Nancy was okay to get herself home in a cab, he had come directly here. Freeman, of course, was working late, already on a new murder as well as preparing Jennifer’s appeal.

  Now Freeman was listening to his tenant and sometime partner, who had swept half his files off his desk and was raving out of frustration and fatigue. “You know how many people I’ve talked to these six months? And what do I have to show for it? I’ve got Jennifer’s mother and Jennifer’s shrink, and the jury won’t believe her shrink. That’s it. That’s my case to save the woman’s life.”

  “You’ve got Jennifer herself.” Leave it to Freeman—he had an eye for detail.

  “Oh, there’s a good idea.” Hardy, pacing, stepped over a stack of folders. “Call Jennifer so she can look the jury in the eye and say, If you vote to execute me, then you can go fuck yourselves. That’ll soften ’em right up.”

  Freeman had gone around to sit behind Hardy’s desk, in his chair. “That’s really all you’ve got?”

  Hardy stopped. “That’s what I’ve been trying to tell you, David. She’s totally separated from the world. As if you didn’t know. She’s too pretty to have other women trust her, and she’s not the platonic type with men. Except for her son she didn’t seem to give kids the time of day. After Ned killed her cat, she never even had another pet. Juries love cat lovers. Why didn’t she get another one? The fact is I haven’t found a soul who’s got anything good to say about Jennifer Witt.” Hardy leaned over and started picking up the files he’d thrown. “I really think I’m right, David. I know Simpson Crane found someone there screwing up.”