Hardy 04 - 13th Juror, The

by John Lescroart

  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 arms 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 show 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 into 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 with 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 evidence?"

  "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?"

  "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 bee 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 farfetched. 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; 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 pos
sibility that Jennifer's first husband, Ned, was is 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, to 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 air time 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're 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 — Bariste, 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 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 Shriner's 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 out-gunned by the brass here, but he wa
s 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 was trying 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.