Hardy 04 - 13th Juror, The

by John Lescroart

  "I didn't try to trap you into this, Frannie. Into being married. I thought you were happy…"

  "It wasn't you, Dismas. I can see now that it wasn't you. It was my life. All of a sudden, I don't know what it was, it all just came back at me. And then I felt so much like I'd failed — I mean, I wasn't happy and I should have been and whose fault is that?"

  "I generally blame a consortium of Arab investors."

  "So do I, usually, but this time it didn't work, and I couldn't tell you. It wouldn't be fair with your trial coming up and all, and then I began to resent that… that I couldn't tell you, and then I convinced myself that you wouldn't care anyway, that this was just all stupid female stuff that isn't very linear anyway and can't be—"

  "Whoa, whoa, whoa… what is that? Stupid female stuff? We didn’t invite any stupid females to this party."

  "You know what I mean."

  "I don't know what you mean. And linear?" He turned up on his elbow, looking down at her. "I don't know what you mean," he repeated. "Really."

  Frannie closed her eyes for a breath. "I saw Jennifer."

  "I know you did."

  "No." She shook her head. "More than once. I snuck out. I left the kids with Erin and went and saw her."

  "How many times?"

  "I don't know. Three or four."

  "At the jail?" He answered himself. "Of course at the jail." Hardy sat all the way up, pulling the sheet around him. Frannie put a hand on his leg.

  "The first time… I guess we connected. Then I didn’t think you'd approve, or I didn't want to ask for your okay…"

  "Frannie…"

  "But then I talked myself into being mad that I felt like I had to clear it with you every time. That didn't seem right, that I had to ask permission."

  "She's my client, Frannie." He was shaking his head, trying to fit this in somewhere.

  "I know, I know. I should have talked with you, but it… it all seemed to fit in with the other stuff, being so depressed, feeling like I was trapped. Jennifer… well, she listened to me."

  "Jennifer listened to you? Jesus." Hardy threw the sheet off and swung his legs off the bed. He walked to the window, not to see The View but because it was the only destination in the room. He stood stock still, then, without turning, whispered, "You talked to Jennifer about you and me? What's she got on us now?"

  He heard her voice, small behind him. "It wasn't like that. Don't be mad at me now. Please."

  He stood another minute, trying to piece it together. The images out the window — the lights on Union Street far below, the Golden Gate , the Presidio evergreens blurring the western horizon — they were piling up, falling over each other kaleidoscope fashion. Turning back, he sat again on the settee. "This was the secret?"

  Frannie was at the edge of the bed. She paused, framing an answer. "All of it was a secret. It was all connected."

  Hunched over, Hardy had his hands crossed in front of him, his head down.

  "Dismas?" She was off the bed now, on the floor, on her knees in front of him again. He felt her hands on his legs.

  "I'm not mad," he said. "Let's get that straight. I'm not mad at you and I'm glad we're talking about this. But did it occur to you that she might be using you?"

  "She wasn't. I just told you it wasn't like that. At least I didn't think it was like that—"

  He jumped at the difference. "You didn't think it was like that then, but you do now? You think it might have been?"

  Frannie got up, grabbed the blanket and drew it around her, then sat on the edge of the bed. "No, I didn't say that." She took a deep breath and reached out again, the space between the bed and the settee. "I wish you wouldn't interrogate me. I want to talk about this, Dismas, but when we get into it like this I feel intimidated. It doesn't work, it doesn't get us anywhere."

  "Where do you want us to get to, Frannie?"

  "I want us to be able to talk again. I'm trying to tell you how it was."

  In the candlelight her face was an amber cameo. He found he couldn't take his eyes off her. He nodded. Her arm was across the space between them, touching his leg, reaching out. He put his hand over hers.

  This was not the time to argue, to tell Frannie that Jennifer might have had an agenda far removed from the one she'd led Frannie to believe. He came over next to her, pulling the blanket around both of them. "You're right," he said, kissing her, holding her against him. "I'm sorry. Talk to me."

  * * * * *

  "She told you Larry beat her?"

  "Everybody has beaten her. She couldn't believe you never hit me, or Eddie never hit me. She didn't believe me, I could tell. Like the idea is completely outside her experience."

  "It probably is."

  They were still huddled together at the edge of the bed. "Let's not ever hit our kids, okay?" Hardy said.

  "We don't."

  "I know. Let's not start."

  Frannie leaned into him. Muffled night sounds came up through the closed window — a truck's brakes squealing as it inched down the north Divisadero escarpment, a girl's carefree laugh from outside one of the clubs on Union.

  "I still feel a little like I've abandoned her. Jennifer, I mean. I just… it got feeling wrong somehow."

  "Well, I haven't abandoned her, so I guess it's still in the family, right?"

  "I know, but—"

  "Shh. Look. Maybe just hearing your story — some woman who doesn't get hit — maybe that'll give her hope that it's possible."

  "If she believes it."

  "And if she doesn't, you seeing her more isn't going to make her, is it?" He held his wife against him, breathing in her scent. The candle sputtered briefly. Hardy looked over and saw a thin rope of wax snake its way down the crystal holder, pooling on the dresser's surface. "I'm not trying to talk you out of anything, you know. If you want to see her some more, just tell me, okay? Let me know."

  "I won't." She sighed. "There's some things… it's just too wrong."

  "You said that. But if you're not going behind me…"

  "No, that's not what's wrong. It's her, really, Jennifer. First I thought we… you know, we were two women… we could talk. But then she cut it off. She was about to tell me something important and then closed up, said I didn’t want to know. I began to wonder if maybe…"

  "If maybe she's guilty?"

  "Maybe. I couldn't handle that. Except I don't believe she killed Matt, even accidentally, or Larry. Maybe her first husband, I don't know. And if she did, I don't know whether I could handle it. If, I said. But she told me, why did I think she was fighting this thing so hard. The answer is she didn't kill them."

  "Although Larry beat and abused her?"

  "Please don't cross-examine me, Dismas. She told me Larry beat her. But she also said she didn't kill him, or Matt — not by accident or mistake or any other way or for any other reason."

  Hardy looked at her, wondering if she was trying to convince herself. He certainly knew how that felt.

  31

  No one seemed to know where the storm came from, but rain slashed almost horizontally in gusts around Bryant Street, the temperature was in the low fifties and the gray paint on the Hall of Justice seemed a bruised and burnished blue as Hardy ran, raincoat flapping, from his parking space to the courthouse steps.

  It was 12:42 when he entered the building. He knew they would be at recess, which was how he had planned it. He wasn't going directly to Villars' department anyway.

  Freeman and Jennifer were having lunch in an abandoned office back behind the courtrooms.

  Hardy nodded at the bailiff standing watch outside the door, then waited, getting his breathing under control from the run through the rain. He watched them through the wire-lined glass window in the door, talking, chatting really, at opposite sides of a pocked old green metal desk. He pushed open the door.

  Freeman, his mouth full, raised a hand. "Greetings. We're killing 'em, Diz. Their feet are up, I swear to God."

  Jennifer was pushing some three-bean sa
lad around her white Styrofoam tray with a white plastic fork. He was struck again by the figure she cut — demure yet sophisticated, innocent and unattainable. It was as if she were Freeman's creation now — clay-molded by an artist.

  Hardy had unbuttoned his dripping trenchcoat and now pulled a chair around backward and dropped himself over it. A gust delivered a fresh torrent of rain, slapping at the window in front of them hard enough to make everybody stop and look.

  "More good news. The drought's over again." Freeman shoveled some tubular pasta in a glutinous red sauce. He mopped his mouth with an already spotted napkin. "Hey, Diz, listen up. I'm kicking some serious tail in there. I'm thinking about what I'm going to say in there." He pointed back behind him to the courtroom. "That's where I live, you hear me? You want some advice? No? I don't care, I'll give it to you anyway. You want to give good trial, that's where you'll live, too." More milk, another swipe of napkin. "It doesn't get in there, Diz, it doesn't count. And that's the truth. The truth is also we're winning right now."

  A long moment went by while everyone looked at one another. More rain got flung against the window. Over downtown, lightning arced into a rod on a hotel rooftop, and seconds later the crash of thunder rolled through the room.

  Jennifer, kitty-corner to him, put her manicured hand over his. One part of him registered that it was cool and dry, so he thought it was odd that it seemed to burn where she touched him.

  "Jennifer never admitted to Harlan Poole that Ned was beating her. In fact, she always denied it. His opinion that she was being battered is totally speculative," Freeman said. "He can say he and Jennifer were having an affair. He can say he had atropine in his office. Period. I filed an early 1118 yestereday after we crucified Strout. And Poole is turning into a bigger disaster than Strout."

  The 1118 is a motion for a directed verdict of acquittal, by which the judge is asked to rule that no reasonable jury could convict the defendant, that as a matter of law there isn't sufficient evidence to prove guilt. If the motion was granted, the charge would be dismissed and could never be retried.

  "I'd bet Villars grants it after the recess." Freeman's eyes seemed to glow. He put a hand on Hardy's other sleeve. "He maybe can chew gum and walk, but I don't think Powell can run a campaign and a trial at the same time. This thing's gong south for him."

  The bailiff knocked and entered. Judge Villars was coming out of her chambers. Trial was going back into session.

  * * * * *

  Hardy sat listening as Powell tried to find some wedge to introduce Harlan Poole's testimony.

  The dentist was a wreck. It was hard to imagine that this portly, balding, bespectacled, sweating man had ever been Jennifer's lover. Also, the "low profile" that Terrell had promised him had turned out to be impossible to maintain. Like it or not, and he obviously hated it, Poole was a central figure in a capital murder trial. From his eyes, the role was playing havoc with his life.

  "Dr. Poole." Powell was recovering from another sustained objection. Freeman had jumped up as he liked to do, and Villars criticized Powell for again referring to the fact that Ned had beaten Jennifer, which they hadn't been able to establish because it was hearsay.

  In his frustration, Powell was walking in circles, facing the bench, then the jury, back to the defense table, then his own table, all the way back around to Poole. "Dr. Poole," he said, "you have testified that you were intimate with the defendant?"

  Poole studied the ceiling, avoiding his wife in the gallery. He wiped a handkerchief across his eyebrows. "Yes."

  "During you intimate moments did you have occasion to see the defendant naked?"

  "Your Honor! Objection!"

  But Powell had given this some thought. "Your Honor, at your insistence, we have to take this testimony out of the realm of hearsay. This is not a direction I would have chosen to go, but it is relevant and it is not hearsay."

  Villars had her mask on. Eyes straight ahead, unmoving, she could have been a mannequin. "Let's have counsel up here."

  Hardy rose along with Freeman. No one seemed to object, or even notice. They were before Villars, looking up.

  Villars spoke quietly. "I'm not sure I'm going along with the relevance, Mr. Powell. What does Mrs. Witt's nakedness have to do with the alleged killing of her husband?"

  Freeman, still feeling he was on a roll, incautiously spoke right up. "It doesn't."

  A mistake. Villars glared. "When I want your answer or argument, Mr. Freeman, I'll address you, is that clear?" Without waiting for his response, she went back to the prosecutor. "Mr. Powell?"

  "Your Honor, it speaks to motivation. We know that her husband was beating her and that—"

  "Wait a minute. Up to now all I've heard about is the insurance and an affair…"

  Hardy suddenly noticed that the court reporter wasn't there. He surprised himself by speaking up. "Excuse me, Your Honor, is this conference to go on the record?" The court reporter was supposed to take everything. Nothing in a capital case was off the record.

  The judge seemed to realize for the first time that Hardy was even there. The look of surprise gave way to her usual intimidating glare, but Hardy didn't back down. "Perhaps we could go to chambers?"

  "We just got out here." Extremely displeased, she frowned down at the three men who were waiting on her. "What's your point, Mr. Hardy?"

  "We don't have to go to chambers, Your Honor." Powell was Mr. Conciliatory. "I'm sure we can settle this right here."

  Villars straightened her back, drew in a quick breath. "I'm getting pretty damn tired of asking one person a question and getting an answer from another one. I ask Mr. Powell a question, Mr. Freeman answers me. I ask Mr. Hardy a question, Mr. Powell answers me. Now everybody listen up. I'm asking Mr. Hardy. You want this conference in chambers?"

  "Yes, ma'am."

  She leveled a finger at him. "Yes, Your Honor," she corrected him, "not 'yes, ma'am'."

  "Yes, Your Honor. I'm sorry."

  Villars was moving papers around in front of her on the bench. She lowered her head, shaking it back and forth. "This really pisses me off," she whispered to no one.

  She stood up. "The court reporter will accompany us to chambers. We're taking a short recess. Dr. Poole, you can stand down 'til we get back. It shouldn't take too long. Or you can stay where you are."

  She led the parade out.

  * * * * *

  Her chambers were not much more impressive than the cubicles used by the Assistant DAs. The room itself was bigger and had its private bathroom and a sitting area away from the oak flat-topped desk, but even with two nice throw rugs and some framed prints the place had that public-building feel.

  Hardy was now facing the wrath of Villars. "All right, Mr. Hardy, we're on the record in chambers. What are we in chambers for, if you don't mind?"

  "Mr. Powell was discussing the relevance of—"

  "I know what he was doing."

  Hardy stepped back. "Okay, then, Your Honor, if he'd like to continue his argument. It might come up in the penalty phase, if there is one."

  Villars reminded him of an angry bird, head tilted to one side, ready to peck his eyes out. She shifted her gaze to the prosector, who was sitting in one of the leather chairs. "All right, Mr. Powell, let's hear why Mrs. Witt's nakedness is relevant."

  "Your Honor, Dr. Poole's testimony will give direct evidence that Ned Hollis used to beat Jennifer regularly, which of course would have given her another reason to have killed him. Surely that's relevant."

  But also a point in mitigation, Hardy thought.

  "You're saying this is a burning-bed case?"

  "It may have those elements. It's a question of fact and we ought to let the jury decide."

  Villars shook her head. "You realize you are introducing BWS here?" Referring to the battered-woman syndrome. "Do you have any evidence that what's-his-name, the second husband…?"

  "Larry?"

  "… that Larry was beating her, too? Is that your argument?"

 
"Excuse me, Your Honor." Freeman wanted to get onto the boards. "We're not claiming BWS. She is not saying she had a reason — we're not saying she killed them because they beat her and they deserved it. We're saying she did not kill them at all."

  Villars pushed herself up until she was sitting on the edge of her desk.

  Hardy glanced at his partner. Freeman was leaning against one of the bookshelves, seemingly at ease arguing the position that Jennifer had not killed anybody for any reason.

  Villars, her arms straight down on either side, palms flat on the desk, stared through the one window at the driving rain outside. "So I assume, Mr. Powell, that we're going to hear that Mrs. Witt had bruises, black and blue marks and so on, all over her body?"

  "That's right, Your Honor."

  "And the fact that Dr. Poole personally saw them takes this out of the realm of hearsay?"

  Powell, seeing where she was going with this, began to squirm. The leather chair squeaked as he shifted. Still, he persisted. "The bruises themselves, Your Honor, are admissible. Dr. Poole saw them himself."

  "And you would then ask the jury to somehow connect these marks on Mrs. Witt's body to her husband?"

  "Your Honor, the truth is that her first husband, Ned, beat her. The implication can be drawn—"

  Freeman stepped away from the bookcase. "That's not true, Dean." He turned to the judge. "Pardon me, Your Honor, but my client has consistently denied that she has been a battered wife, or that this will be any part of her defense. The jury cannot draw any implication at all from bruises that may have been caused by anything."

  "Oh, get serious, David." Powell was halfway out of his chair. "You know as well as I do that—"

  "Gentlemen! Let me remind you that we are on the record here, and that any remarks are to be made to the court." She wasn't waiting for a response but moved off the edge of the desk, facing both men. "Mr. Powell, from what I've seen here so far, you've got an evidence problem of substantial proportions. Are you planning to call somebody who's going to give us any testimony about the day Mr. Hollis died, where Mrs. Witt was on that day, anyone who saw her take the alleged atropine out of Dr. Poole's alleged drawer, or the alleged syringe, or who saw her dump it afterward?"