Hardy 04 - 13th Juror, The

by John Lescroart

  Hardy was still chuckling about it when they called Jennifer's line — her computer number. Hardy and Freeman then came through the bar rail. Dean Powell and a fresh-faced young assistant moved over from the jury box, and Jennifer Witt was brought out to the podium that faced the judge. Hardy thought that Jennifer, beaten down and deflated, looked very much like a defendant, but the jumpsuit could do that to Cindy Crawford. He introduced her to Freeman.

  She took in her ragged attorney with something less than enthusiasm — a reaction he was accustomed to. She made a face at Hardy — this is my lawyer? — then faced the judge. As in all murder cases, the clerk read out the complete indictment.

  "Jennifer Lee Witt, you are charged by indictment with three felony counts filed herein, to wit, violations of Section 187 of the Penal Code in that you did, in the City and County of San Francisco, State of California, on or about the 31st day of August, 1993, willfully, unlawfully, and with malice aforethought murder Edward Teller Hollis." The clerk read the special circumstances, going on to add the charges regarding Larry and Matt Witt. When he had finished, Thomasino nodded toward the podium and said he assumed by the presence of Messrs. Freeman and Hardy that Jennifer was represented by counsel. He asked Jennifer how she was going to plead.

  "Not guilty, Your Honor."

  Making a note on his printout, Thomasino looked over his reading glasses, which were slightly tinted and half-moon shaped. "Mr. Powell. The people seek to deny bail?"

  Powell stood up. "We do, Your Honor. This is a special circumstances case. The allegations are multiple murders and murder for profit. The defendant has already killed—"

  "Your Honor!" Freeman was not having any of this. To date, it was not established that Jennifer had killed anybody. That was, after all, what this was about.

  The judge scowled down at the prosecutor. "Mr. Powell, please."

  Powell put on a show of contrition, but wasted no time getting the needle in.

  "I'm sorry, Your Honor. But this is a death penalty case. The law provides that this defendant should be held without bail. Further, the People believe there is substantial risk of flight."

  Freeman came back matter-of-fact. "Your Honor, Mrs. Witt will surrender her passport. She has never been accused, much less convicted, of any crime. There is no basis in Mrs. Witt's history or in fact for the prosecution's contention that there is a risk of flight. She has stayed in the City since December, and she must have had some inkling that she was under suspicion during that time. She did not resist arrest."

  "All right, all right." Thomasino peered over his glasses. "Nevertheless, Mr. Freeman, at that time she was not yet charged with any crime, let alone three counts of capital murder. We've got a different situation now, wouldn't you agree?"

  "Your Honor, Mrs. Witt did not commit these crimes and she is anxious to clear her name in court."

  Thomasino almost smiled. "Yes. Well, she will get that opportunity, but I'm inclined to agree with the People that, facing the possibility of the death penalty she might at least be tempted to forgo that opportunity. And without any remaining ties to the community and no immediate family—"

  "Your Honor!" Jennifer's voice was a surprise to everyone in the courtroom. Defendants were, after all, usually so intimidated by these proceedings, by being referred to in their own presence in the third person, that it rarely occurred to them that they could actually speak up themselves. Jennifer did. "I do have family here today."

  Hardy turned around. In the second row a graying man who might have been Thomasino's brother was halfway to his feet. Another younger man looked as though he was thinking about getting up, too. Between the two sat a middle-aged woman.

  Hardy also noticed something pass between Jennifer and a well-dressed bearded man a few rows farther back in the gallery. Who was he? And why didn't Jennifer make some kind of friendly gesture to her own father, brother, mother? She pointed them out to Thomasino in hopes that they might help her win bail, but she didn't so much as nod to any of them.

  Thomasino recovered quickly. "All right, thank you. You folks back there, please be seated."

  "If it please the court." Dean Powell was on his feet. "I'd like to ask Mrs. Witt about the last time she saw her family."

  "Your Honor, please!" Hardy was sure that, like himself, Freeman had no idea what Powell was talking about, but he wasn't going to let such a request go unchallenged. They were a long way from trial here, and questioning the defendant was out of line.

  "What are you getting at, Mr. Powell?"

  "Your Honor, in the course of our investigation it's become clear that Mrs. Witt is not at all close to her family. In fact, they have been estranged—"

  Freeman, from the hip, shot out. "And that's why they're here today, Dean?"

  The gavel slapped down. "Mr. Freeman, you will address all your remarks to the court. Clear?"

  "Of course, Your Honor, I'm sorry." Like most of Freeman's moves, this one was calculated. Get off a losing point, direct attention anywhere else, even if it got him a contempt warning. And taking Thomasino's reprimand gave him another few moments to think of something else. "But Mr. Powell should know better. Mrs. Witt's family is here today, obviously supporting her. What more do we need?"

  Thomasino waved him down, cradling his hands over his gavel. "Mrs. Witt, your family's presence here is noted, but it doesn't change the law. This is a no bail case."

  "Your Honor…" Freeman , one last time.

  But Thomasino had had enough. The gavel came up with a judicial glare. He tapped it gently, then intoned, "Bail is denied."

  5

  In the hallway outside of Department 22 the gypsies had disappeared but there was still the usual hum of voices echoing off the bare walls.

  "How can they not let her get bail?" Jennifer's father, Phil DiStephano, was saying. He was in Freeman's face, not exactly belligerent but certainly not cordial.

  "We could appeal," Freeman said, "but I warn you, we'll lose. And even if we won, the judge would set an outrageously high bail."

  The attractive Mrs. DiStephano spoke up quietly from behind her husband. "How much, Mr. Freeman?"

  Phil DiStephano turned on his wife. "It doesn't matter, Nancy. It's out of our league." From appearances, it seemed he was right. Regardless of what bail turned out to be, if in fact they won an appeal, the DiStephanos didn't look like they would be able to pay it.

  Phil wore a plain black suit that showed no sign of having been recently pressed, a white shirt, ironed but not new, a thin tie. The mother's clothes, though not the rest of her, reminded Hardy of Pat Nixon during the Checkers Speech. She was attractive enough — still, some might say, even beautiful, like her daughter — but something in her bearing, in the pinch of her lips, conveyed that her life hadn't been easy. The son, perhaps twenty-three, wore jeans, work boots, longish hair, a tucked-in Pendleton, and an attitude.

  A working-class family, and it surprised Hardy a little. Jennifer had never been portrayed in the media as anything less than upper class, and in Hardy's interviews yesterday she had come across — even in her prison garb and through her grief — as the comfortably off successful doctor's wife. Her family suggested different roots.

  When Freeman went on to tell them they could expect bail of a million dollars, or more, if they got it at all, the son exploded. "Where the fuck she supposed to get that?"

  "Tom!"

  Freeman held up a calming hand. "Exactly, son. The point is they don't want her to get out. They think she'll take a long walk and disappear."

  "I don't think she will. She has a very solid defense." The man who belonged to the new voice moved forward, hand out to Freeman. "Ken Lightner." As though the name explained something. He added, "I'm Jennifer's psychiatrist."

  It was the other man Hardy had noticed in the gallery. Reasonably good-looking, somewhat burly even in his tailored suit, Lightner sported a well-trimmed red beard under a head of dark brown hair. It was a striking combination that Hardy thought might come
out of a bottle.

  "What's Jenny need a shrink for?" Tom DiStephano said.

  Nancy DiStephano put a hand on her son's arm as Lightner stepped in. "You must be Tom."

  "No. I'm the Queen of England."

  She stepped between them. "Don't be rude, Tom."

  Hardy wondered if Tom DiStephano was in enough control of himself to be anything — even rude — on purpose. Whatever the source of his anger, it was pretty clearly eating him up. He looked about, around the hallway, as though searching for an exit, an escape. His mother still held onto his arm, but he shook it off and turned to Hardy. "Are you guys trying to get her off as crazy? Is that the deal? You think she's crazy?"

  "No, not at all." Lightner seemed to be striving for an understanding tone, trying to include everybody.

  But this was Freeman's show and he was not about to hand the lead away. "We haven't decided on a defense," he said. "Jennifer is innocent until she's proved guilty. I trust we're all in agreement here?"

  It was a multi-layered tableau — anger, positioning, concern, grief, power. Brother Tom was at the center of it, perhaps slightly defused, but Hardy hoped nobody picked that moment to push him further. He would lose it.

  Now, though, with no one to direct his anger toward, Tom stood there flexing his hands, feet flat on the floor, breathing hard. "Well," he paused, looking for an answer to something in the broad and echoing linoleum hallway, in the high ceilings. "Well, just shit."

  "We'll all need to handle this," Lightner said. "This is a very trying situation and it's certainly okay to get angry, we all get angry…"

  Hardy glanced at Freeman. All professions had their jargon. It probably passed for normal conversation in Lightner's set. But Nancy cared neither about anger or jargon. "They're not really going to ask for the…" she couldn't say death penalty… "for my daughter, are they?" She was close to tears, gripping her husband's hand.

  Hardy thought he would take some of the focus away from Freeman, spread the pressure around. "We're a long way from even getting to a trial, Mrs. DiStephano, much less a verdict and a penalty. We don't have to worry about that yet—"

  "We damn well better worry about it," Tom said. "We don't take care of it now, it's going to happen."

  "Tom, you know something I don't?" Hardy said.

  Now with a direction, Tom let it go. "Yeah, I know something. I know people like us don't get a fair trial, that's what I know. Not against them."

  "Not against who? What people like you?"

  "Poor people, working people, goddamn it. Against the people who have money."

  "Jennifer's got some money, Tom," Phil said.

  "It's not her money, Pop, and you know it. It's Larry's money. That's what this is all about, and the rest is all just bullshit! They want their money back."

  "Who does?" Hardy asked.

  "They're not letting her in. She just doesn't fit, does she? Just like we don't, like Larry cut us out. Except Jen tried to crash her way in, didn't she? Married her fancy doctor. Drove her fancy car. Tried to be one of them. And they don't forgive you for that, do they? They go get you for that…"

  "Nobody's trying to get her, Tom—"

  "Mom, you don't see. You buy their crap. That's what's kept us down—"

  "Tom, stop it!" Phil stepped between his son and his wife but Tom now turned it on him. "Oh yeah, sure. And you'll take anything, Pop, won't you?"

  It happened in an instant. Phil's hand flashed and rocked his son, hard, open-palmed, high on the cheek. The noise resounded in the hallway. "Don't dare use that tone with me!"

  The men were squared off, Nancy now between them. She had started crying. Tom backed up, glaring at his parents. "Aw, screw it," he said finally, turning, running off down the hallway.

  His mother turned to the two attorneys. "I'm sorry for my son. He thinks the world…" She let it hang, tears in her eyes.

  This was the moment. Defenses were down. Freeman figured he could use it. He went after Phil. "Did you see Jennifer often, Mr. DiStephano? I mean, do you visit each other?"

  "Well, sure. She's my daughter, isn't she? We're all close, even Tom… he's just got a hot head. Like you said in there, it's why we're here today."

  Freeman turned to Mrs. DiStephano.

  She shook her head. "We haven't seen them in years."

  Phil tried to put a face on it. "Hey, Larry was a busy man. It wasn't that he didn't—"

  Nancy cut him off. "Larry wouldn't let her. We never saw any of them. Never."

  * * * * *

  Hardy, Freeman and Lightner watched Jennifer's mother walk off stiffly, a step behind her husband. A young couple emerged from one of the doors behind them, hugging and laughing — maybe Thomasino had just given one of them a break.

  Freeman, Mr. Small Talk, turned to the psychiatrist Lightner: "So what's her defense, Doctor?"

  Relaxed, hands in his pockets, Lightner didn't have to think about it. He nodded up the hall after Jennifer's parents. "Slightly dysfunctional, wouldn't you say? I'd kind of expect it."

  "You'd kind of expect it," Hardy repeated. They started moving through the crowd, toward the elevators. Hardy and Freeman were going upstairs to see Jennifer, find out if they had a client.

  Lightner was nodding. "You just saw an object lesson. It's generational, you know. Father batters mother and children. Children go on to batter their own—"

  "Who's battering who?" Freeman asked.

  Lightner stopped. "No, no… I mean, Larry, of course."

  "Larry was battering Jennifer?" This was news to Hardy. Probably to Freeman. Perhaps not to Powell. In any event, Jennifer hadn't mentioned it.

  Freeman was a step ahead of them. "If you're talking burning bed, I think the boy is a problem there."

  The "burning bed" had been gaining a good deal of momentum in legal circles as a valid defense for killing. When a spouse had been battered long enough, juries in several cases had decided that killing the abusive spouse was justified as a form of self-defense, even if the actual event took place during a period of relative calm, as for example when the abuser was asleep. This was far beyond the usual legal standard for self-defense, when the person being attacked was in imminent danger of being killed.

  "Why is Matt a problem?" Lightner asked.

  "Because battered wives don't kill their children," Freeman said. "If she was a battered wife."

  "She was. And it might have been unintentional, if it happened while she was defending herself."

  "That would be a tough sell to a jury," Freeman said.

  "You think she did it?" Hardy asked abruptly.

  For the first time, Lightner appeared to think carefully about an answer. "She had reason to," he said.

  Hardy didn't like this. Another person, not even in the prosecution's loop, with the so-called informed opinion that his client "had reason" to kill her husband. "Because her husband abused her?"

  "Not, of course, that having a reason means she did it," Lightner was quick to add.

  Hardy squared around on the psychiatrist. "What exactly are you saying?"

  "I'm certainly not saying she did it, Mr. Hardy. I am saying you perhaps ought to read the literature. People become crazed in the situation Jennifer was in. Understandably so. I'm saying that if that happened to Jennifer, if she was as horribly abused as I suspect—"

  "I thought you just said—"

  "—then that should be a central part of her defense. And that's all I'm saying, Mr. Hardy."

  Covering her both ways, Hardy thought.

  The elevator arrived. "We're going up." Freeman dismissed him, then softened it. "Thanks for the input."

  "You're very welcome. Please call on me any time." And Lightner disappeared behind the closing doors.

  * * * * *

  They were waiting for Jennifer to be brought into the women's visiting room. Freeman was going over more of the file; Hardy sat across the small table taking in the view through the window — a female guard filing papers in an ancient metal cab
inet.

  "You know" — he didn't turn around — "a man of your sensitivity and experience ought to be able to do this alone." Hardy had had to be talked into returning to the seventh floor. It was not a pleasant place.

  "She hasn't met me yet." Freeman did not stop his reading.

  "She just met you downstairs, remember? Department 22. Big room, judge in the front." Freeman raised his rheumy eyes. Hardy came around the table, hovering over him. "You know, one of my beliefs is that everybody should try to get some sleep every night."

  "I get enough," Freeman growled.

  "Beauty rest, then, you could use more beauty rest."

  "Look." Changing tracks. "We may not be doing this at all. I want it, don't get me wrong, but if there's no fee… and then there's the fact that I wouldn't blame her at all if she dumped me right now on her own. Her reaction to me was something less than warm. To combat that eventuality I've asked you to accompany me — she seemed to relate to you for some unknown reason. Maybe you can at least buffer things at the beginning here. I explained this once."

  "I know. I even understood it."

  "What, then?"

  "Just trying to lighten you up, David. We've already lost one downstairs. We want this case, we might want to slap on a little of the suave."

  Freeman gave him a face. "I don't do suave." But he forced a weary grin. "That's why I need you."

  * * * * *

  They were getting through the first minutes. Jennifer, tight, said nothing while Freeman explained the bail situation — how there just wasn't much any attorney could do in a capital case such as hers. It was also a sales pitch of sorts — defense work might be Freeman's vocation, but it was also his livelihood, and he felt obliged to nail down the level of his involvement before he proceeded, but all she wanted now was for him to appeal the bail denial.

  "You can't want me to stay in here?"

  Hardy stood, back to the door, hands in his pockets. After a night in jail Jennifer's feelings about the relative importance of bail had only escalated, and understandably so.