The 13th Juror

by John Lescroart

  “I mean for the firm. To the firm.”

  “So there is another five million?”

  “How was everything? Are you gentlemen finished?” It was Klaus. “Perhaps a little dessert? Some cappuccino, espresso? We’ve got a marvelous tiramisu.”

  Bachman had pushed himself back from the table. “Nothing,” he said. It was a dismissal. Klaus did not even look at Hardy.

  The interruption had given Bachman enough time. He had not gotten to where he was by giving in to panic. This was another hurdle, an obstacle to overcome. “Yes, I made a bundle,” he said. “And the last time I looked, that was not a crime.”

  Hardy leaned forward, trying to regain his momentum. “Witt threatened to call all the other doctors, didn’t he? He would’ve blown the deal.”

  Bachman’s smile returned. “If you’re going to be making those kinds of accusations, Mr. Hardy, you’d better have some proof. There are libel and slander laws in this state that could make you a poor man in a heartbeat. You should know that.”

  “Who did you hire?”

  Bachman shook his head, not amused. “I didn’t, Mr. Hardy. But if I did, would I be so foolish as to leave a trail? Do you think I might have written the person a check? Now, if you’ll excuse me”—he pushed his chair back, standing—“I’ve got a one o’clock I’m running late for.” He nodded one last time, caught Klaus’ eye and told him to put lunch on his bill.

  53

  Whatever he found out or thought he had uncovered in Los Angeles, the unpalatable truth remained that he still couldn’t prove a goddamned word of it. In the plane he scribbled notes on courses of action he ought to take—he would call the FBI and try to have them pursue their RICO investigation into Simpson’s death. He thought it might be possible to trace a withdrawal of funds from one of Bachman’s accounts if he could get some federal agent interested in his theory.

  A big if.

  Another possible avenue was getting through to Todd Crane, Simpson’s son, now the managing partner. Maybe he’d be interested to learn that Jody Bachman had turned over to them only fifteen thousand or so of the fifty thousand shares he had earned.

  Or did Todd already know it? Maybe he was plain thrilled and delighted with two million against seventy-five thousand in billables. It was, Hardy realized, only his personal fantasy—unverifiable, as fantasies tended to be—that Bachman would have traded all of his fifty thousand shares against his time. Who said he would have to do that?

  If those two approaches failed, maybe Restoffer . . . ? No, not realistic—Restoffer was out of it.

  It was down to Judge Villars, sitting as the thirteenth juror—down to what he could make her believe.

  His own theories didn’t matter. He couldn’t prove them. They weren’t going to do Jennifer any good. He had to go another way. He had to be a lawyer and make an argument out of whole cloth if need be, even if he hated what he had to do.

  But—to be fair—it wasn’t whole cloth. At least he’d be starting with one truth, the one that had been denied throughout and yet had remained constant. Jennifer had been battered.

  Overriding Jennifer’s objections—he wouldn’t even ask her again—he was going to lay it out for Villars—Jennifer’s intractability, the Freeman affidavit, the defense decisions.

  The irony did not escape him. He could not use anything he knew about Jody Bachman and YBMG. And what he could introduce probably had no direct bearing on what had happened in the Witts’ bedroom on December 28.

  The plane nosed down over the bay. It was almost four o’clock and he was to face Villars tomorrow morning at nine-thirty.

  He was down to his last dart.

  “Of course, I’ll do anything.”

  Dr. Lightner sat framed by the glass in his office. His secretary had gone home. The eucalyptus grove behind him was dark, in shadow.

  “Good. I want you to tell the judge about Larry beating her.”

  Lightner sat forward, ramrod stiff at the proposal.

  Hardy leaned forward, almost pleading now. “I know what I’m asking, Doctor, but it’s really Jennifer’s only hope. You’ve stood by her so long in all this.”

  But standing by someone and revealing their privileged communications were very different matters.

  After a couple of seconds Lightner stood up. He turned his back to Hardy and looked out into the grove. “I can’t believe it’s come to this.”

  Hardy came up next to him. “After Larry died, when you were seeing her, she never . . . ?”

  Lightner was already shaking his head. “She wouldn’t talk about it.”

  He felt a sudden sinking in his gut, a vertigo. For an instant he thought it was the flu again. Unbidden, the awful thought reoccurred—had she done it, after all? Stop it.

  Lightner walked back to the window, put an arm against the doorjamb, looking out. “This is priest and confession, isn’t it?”

  Hardy couldn’t put a lighter face on it. “Yes, it is.”

  “Betray the privilege. Betray her trust.”

  “Save her life.”

  Lightner turned and faced Hardy, the ruddy face pale and drawn under the beard. “What about the doctors I gave you? Couldn’t they help?”

  “What are they going to say? Where is their proof?” At this stage statements about her bruises and abrasions weren’t enough. He needed her therapist’s confirmation.

  Lightner turned back toward the grove, opened the door and stepped outside. Hardy followed, and they walked a hundred feet over the duff.

  “What do you think happened that morning?”

  Lightner let out a long breath. There were muffled sounds of traffic on 19th Avenue. The doctor stared through the trees. “I think it was pretty much the way she told it, except she left out the physical part.”

  “The physical part?”

  “Larry hitting her.”

  “He hit her that morning?”

  Lightner turned to him. “Let’s say I saw the bruises the next time I saw her, which was two days later. I think he hit Matt too. I’m not saying he did, I’m saying it could have happened—”

  “Matt didn’t have any bruises.”

  Lightner shook his head, unable to get it out. “Matt’s head . . .” he began. And Hardy saw what he meant. If Larry had struck Matt in the head, the bullet would have destroyed any sign of it. It evoked his own delirious scenario of a few nights before.

  “I don’t know what happened,” Lightner repeated.

  “What do you think happened, Doctor? This is Jennifer’s life here. I’ve got to make Villars see it.”

  Lightner was trying to walk a line, trying to stay on the angel’s side of privilege. “All right, this is what I believe happened.”

  Lightner faced him, the last low rays of the sun striking the red in his beard. Worn down by the tension, by the moral and professional dilemma, at last he appeared to have made up his mind. “She was leaving him, taking Matt with her. That was the fight. He had beaten her, badly, on Christmas Eve. She called and told me.”

  “And what did you do?”

  “I told her to leave, to get out. She said she was afraid Larry would kill her. She told me about the gun. It was in the headboard. He would use it. I told her to take it and get out. Obviously, she didn’t.”

  “Then what?”

  “On Monday it started again.” And he began to develop a scenario with chilling plausibility. Hardy could scarcely breathe as he listened. “He hits her and she says she’s really going, leaving for good. She starts yelling for Matt, who is nowhere to be found. Maybe he’s hiding somewhere. In any event, suddenly Larry, who’s been after her, apparently decides he has had enough. He runs upstairs. Knowing what he’s doing—going for the gun—Jennifer starts running up after him to get him to stop, to plead—anything. By now she is screaming, hysterical, just like that woman from next door said.

  “But Larry isn’t in the bedroom. And the gun is. She grabs it, hears a noise behind her, turns. There is another gun! Coming out
of the bathroom door—he’s gone in there. She fires. It’s Matt. She has hit Matt, who has been hiding in the bathroom all this time with his new Christmas present. A toy gun from his grandparents.

  “And then suddenly Larry is out, rushing her, his hands raised to strike. She fires once, point-blank . . .” Blinking now, as though coming back to himself from a place removed, Lightner turned to Hardy. “It was over,” he said. “Later she tried to cover up. But she had no choice. Larry would have killed her . . .”

  Hardy stood a long moment. The sound of traffic was gone. The sun was down, a chill coming up off the leaves. It was a great defense, if it were true.

  “That’s how I believe it may have happened. Larry went upstairs for the gun. There was no premeditation. All Jennifer wanted to do was get out, get away from him. She should have done it long ago. It was self-defense, I’m convinced . . .”

  “Will you testify to that tomorrow? If I have an affidavit for you, will you sign it?”

  “To what? There’s no evidence there. Even I know that.”

  Hardy knew it, too. But he needed Lightner there, needed his story, a story but a highly educated one, for his own ends. “Let me worry about that. My question is, can I count on you? Will you at least tell the judge what you have just told me?”

  Slowly, sighing with the weight of it, Lightner nodded at last. “All right. If she’ll let me.”

  Rebecca had missed her daddy.

  He was lying on the rug in front of the fireplace snuggling with her. She hadn’t let him get up, wrestling him back down to the ground, both of them laughing and talking their own language. Rebecca had given Hardy ten minutes of unsullied joy with her repertoire of kisses—rabbit kisses, nose to nose; butterfly kisses, eyelashes against Hardy’s cheek; heart kisses, which Rebecca had invented herself, where she kissed her hand, held it to her heart, then pressed it to Hardy’s and held it there.

  It was past the children’s bedtime, dark out, lights off inside, but the family was together again. The fire crackled. Vincent fell asleep and Frannie laid him down on the couch. She came down to the floor and rested her head on Hardy’s stomach. Rebecca lay heavily across his chest—her breathing became regular.

  “Are you coming to bed? Isn’t tomorrow it?”

  “In a minute.”

  “Dismas.” Her eyes were soft, worried. She crossed over to him and put a hand on his shoulder. “Hon, it’s eleven o’clock.”

  Hardy sat behind the manual typewriter at the kitchen table, his forehead in his hands, sick with exhaustion, his brain a buzzsaw. He could not stop thinking. He had been writing for three hours. First, touching up Lightner’s carefully worded affidavit. Then he had reviewed his motion under California Penal Code Section 190.4(e) to modify the sentence down to life without parole, which was within the judge’s absolute discretion.

  The second brief was trickier because he knew he could not hope to prevail unless he had legitimate grounds to demand a new trial. To this end he had two arguments: The first one was that the packaging of the Ned Hollis murder count with those of Larry and Matt had fatally prejudiced the jury as a matter of law.

  True, both Freeman and Jennifer had personally waived this issue on the record, but that could be dealt with. Hardy argued that no competent lawyer could have ever declined a mistrial under those circumstances, and that Jennifer’s acquiescence was the result of incompetent advice.

  (He knew Freeman wouldn’t bat an eye at such a tactic, and in fact would have pointed it out to him if Hardy hadn’t thought of it himself. The idea was to keep your client alive, not to stroke egos.)

  This was a reasonable point, although—again—Villars had already ruled on it and was unlikely to change her mind.

  His second argument was his last best hope—evidence on Jennifer as a battered wife had been suppressed . . . and Hardy knew that here, legally, things got shaky because who, after all, suppressed the evidence but Jennifer herself? He would need to try to explain why.

  He was trying to bring up an argument for life in prison rather than death, under guidelines outlined in the penal code. The argument, technically, at this point could only be used in mitigation, not in overturning the guilty verdict. It was probably inadmissible under the other section as grounds for a new trial.

  If he dared hope for a new trial, then Villars would have to make the connection, and the leap. And she would have to go out on a judicial limb to do it. He had no idea if she would.

  But he had no choice—his eggs had to go into this basket—he had to rely on Villars being interested in justice, in the truth, as she thought she was. She had told him she agonized over the death penalty, that the responsibility staggered her. But even so, he would be asking her to reverse herself on rulings she had already made during the trials. If she wavered at all here, Powell would scream. And Powell was going to be the State’s Attorney General. He would not be a good enemy for Villars to acquire just now . . .

  Part of Hardy knew that he was kidding himself. He knew that, in practice, reversals at this stage didn’t happen. The final administrative motions might be dressed up as the defendant’s last stand, but their true intent was to give the judge a chance to save herself from the stigma of reversible error. Only on paper might this last hurdle have an effect on fairer application of the death penalty—in practice, historically, it rarely made any difference.

  After he had gone over his motions, he spent the rest of the night triple-checking the evidence folders and reviewing the interviews from the beginning. His notes on Tom DiStephano. What the physicians had told him about Jennifer’s “accidents,” her bruises. Freeman’s affidavit about Jennifer’s forbidding the battered-wife defense. The abortions. The dentist Harlan Poole’s first testimony.

  And thank God he had spoken up back then, insisted it go on the record.

  He thought that Villars would give him an opportunity—he would probably be allowed to start. But his leeway would be severely constrained—if it wasn’t on the record she wasn’t going to let him bring anything up for the first time tomorrow, that was for sure.

  Frannie kissed the top of his head and went to the bedroom. He noticed the light going off. She had wisely given up on him for tonight.

  He stood up and grabbed the telephone, pulling it around the corner into the work area off the kitchen. He closed the connecting door behind him.

  A phone rang five times before a weary voice answered.

  “Nancy, I’m sorry to wake you up, but there’s one last thing I need to know.”

  54

  He was at the Hall of Justice by seven-thirty. Even at that time reporters were beginning to swarm. This was judgment day, and it attracted them like clover drew bees. There were three Minicams parked outside on Bryant and a couple of knots of news professionals sipped coffee and ate Danish.

  As Hardy approached the Hall, one of the stringers recognized him and trotted over, asking for a statement. Hardy stopped, his insides churning. He wanted to avoid all of this. It might jinx him. “What do you want me to say? It hasn’t happened yet. The verdict isn’t verified.” Chew on that, he thought.

  Others followed:

  “Do you have new evidence?”

  “What do you think of Dean Powell as Attorney General?”

  Hardy had to laugh. “Let’s say I’d rather have him in Sacramento than in my courtroom.”

  “Do you think Jennifer Witt will be executed?”

  This sobered them all. This was reality. Hardy didn’t want to prejudice things at this point. Villars had warned them all about talking to the media, and it would be unconscionable if he made a convincing case this morning in court only to have Villars see him posturing on television, like Powell or Freeman, while she was considering her decision.

  He started moving again. He was sorry—he couldn’t comment. Through the press he spotted David Freeman as his colleague turned from 7th onto Bryant. It should have been a surprising relief—an ally to talk to—but he had lost his stomach for Freem
an, too. Still, it was good of the old man to come down, put on a show of solidarity, talk to the media if he got the chance, and Hardy would see to it that he did. “Here comes David Freeman,” he said, pointing.

  The swarm moved to the next field of clover and Hardy escaped up the wide and grimy steps into the lobby, past the metal detector, to an empty elevator, down to the evidence lockers, finally taking refuge in a deserted jury-selection room on the third floor.

  It was power-suit day. Both attorneys were dressed identically—dark charcoal suits, white shirts, red ties. Hardy’s tie featured a nearly invisible pattern of tiny blue diamonds. Wild flamboyance.

  They had gathered in the courtroom. Coming up the aisle, Hardy exchanged greetings with Freeman and Lightner, who were sitting next to one another. He handed Lightner the affidavit he had prepared for him and waited, making small talk with Freeman, until the psychiatrist had read it, scratched corrections in a few places and signed it.

  Hardy nodded at Powell, who was leaning over his table, alone this morning. His assistant, Morehouse, didn’t need to be here, he must have figured. This wasn’t going to take long.

  Now Jennifer came through the doors. She had dressed simply—dark flat shoes and a blue skirt, a white blouse with a small collar. No makeup. No jewelry. As the bailiff left her, she turned around and looked at the gallery, raising a hand. Hardy saw Lightner nod. Jennifer’s face brightened slightly. “My mom’s here,” she said. “And Tom.”

  It was true. Nancy had just come in. Her son held her arm. Last night she had told him they had the funeral for Phil over the weekend. She hadn’t been able to get back in to visit Jennifer, but Tom and she had reconnected. He was her good boy again. She was getting her children back. What a place to do it, Hardy thought.

  The bailiff announced that the Superior Court of the State of California, City and County of San Francisco, was now in session, Judge Joan Villars presiding.