Hardy 04 - 13th Juror, The

by John Lescroart

  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.

  The judge sat at the bench, her familiar gray helmet of hair perfectly in place over the perennially stern visage. She wore her reading glasses. The court reporter, Adrienne, had her machine set up and was waiting.

  "All right," the judge began, adjusting her robes. "Good morning. Mr. Powell, do you have a statement?"

  "No, Your Honor. The jury has spoken loud and clear on this. Submitted by the prosecution." He looked at his watch. He obviously did not expect this to take long. He sat back in his chair.

  "Mr. Hardy?"

  Hardy stood and handed his papers to the judge. "Your Honor, I have two motions. Under Sections 1179-1181 of the Penal Code of the State of California I am presenting to the court a motion to grant a new trial. Concurrently, under Section 190.4(e) I have prepared a motion for the court to mitigate Mrs. Witt's sentence to life in prison without the possibility of parole."

  Villars nodded. This was expected. "Have you new evidence to present at this time in support of these motions?"

  "Yes, Your Honor, I do."

  Powell straightened up and looked across at him.

  He continued. "I have two affidavits, Your Honor. If I may." He approached the bench again and handed them to the judge, who took a long moment looking them over. Pulling her glasses forward and peering over them, she looked down at Hardy. Then: "Mr. Powell." Her little finger ordered him to approach. When he got next to Hardy she stood. "Chambers," she said. Then, to the room at large: "Court will recess for ten minutes."

  * * * * *

  Villars had moved ahead of them and seated herself behind her desk. Hardy and Powell had gone for their chairs and pulled them forward. She sat glaring into space while Powell read the affidavits. Finishing, he placed them on the desk in front of her. "I'm not going to accept either of your arguments on your motion for a new trial, Mr. Hardy," Villars said. "I've ruled on these issues repeatedly during this trial, and I'm certain the appeals court is going to uphold me."

  Slowly, Hardy let out a breath, preparing himself for the worst. Next to him, he could sense Powell's excitement, his elation. Villars held the papers open before her, her eyes scanning them again, frowning, perhaps, Hardy hoped, searching for something else she had overlooked. Finally, she asked, "Lightner is the psychiatrist she was sleeping with?"

  Was this an opening? Hardy jumped in. "That was never established, Your Honor."

  Powell came up halfway out of his chair. "What do you mean it was never established? Your Honor, these affidavits should have been presented days ago so we could look into these matters…"

  "Mr. Powell, please. I'm asking the questions here. Mr. Hardy?"

  "The affidavit speaks for itself, Your Honor. Dr. Lightner says he has previously undisclosed information regarding Jennifer's situation on the morning of the murders. Her husband was beating her. If she killed him, it was to save her own life, right then, that morning. There was no premeditation—"

  "Your Honor, please!" Powell wasn't having this, not at the eleventh hour.

  "Self-defense is a justification for homicide, Mr. Hardy. If that was your defense, you and Mr. Freeman had every opportunity to bring it up earlier."

  Hardy had known this was coming and was prepared. "That point is addressed in the other affidavit, Your Honor. David Freeman's. I did not have the opportunity. Mr. Freeman did. He chose not to do it. I was not Mrs. Witt's attorney in the guilt phase. My client shouldn't be penalized now because of Mr. Freeman's strategy." Hardy knew this was a reach… he and Freeman had been acting as a team, and Villars knew it as well as Powell. Still, technically at least, he wasn't wrong.

  Villars sat, her face a mask.

  "Your Honor," Powell said, "this battered woman question had never been introduced. It's not part of the record."

  Hardy started to answer but Villars stopped him. "I know, Mr. Hardy, you don't have to remind me." She gestured with her palm. "You'll recall, Mr. Powell, that it was explicitly included in the record by Mr. Hardy himself."

  "But that was during the Hollis phase of the trial. It has no bearing on what Jennifer Witt was convicted of."

  Villars did not see it that way. "It was your decision to combine the counts in this trial, Mr. Powell. It's your problem if something leaks over. But" — she turned back to Hardy — "this affidavit does not say what Lightner's evidence is."

  Hardy knew that. He had no immediate answer for it. "It will come out in his testimony."

  "Oh for the love of God…"

  Villars pointed at Powell. "Watch your language, Mr. Powell. This court will not tolerate blasphemy."

  "I'm sorry, Your Honor, but I fail to see what we're trying to get to here. You've already said you're not allowing Mr. Hardy's so-called evidence—"

  "On the motion for a new trial." Villars didn't like it but she understood her duty. If there was a reason that Jennifer should not be sentenced to death she had to consider it. "On the motion to mitigate, I think I should listen to what Dr. Lightner has to say. If it's a fact, if Mr. Hardy can prove by Dr. Lightner's testimony, that Mrs. Witt had been psychologically and physically abused, she deserves consideration of that fact before I sentence her."

  "If it's a fact at all, Your Honor. Mr. Hardy gives no indication that he's got any facts."

  Villars pondered that. "Mr. Hardy, can you tell us anything of the substance of Dr. Lightner's proposed testimony?"

  This was Hardy's hand and he had to play it. "I'm sorry, Your Honor. You can read Dr. Lightner's affidavit — I'm reluctant to try to paraphrase his testimony in any more detail… I might inadvertently misinform the court."

  This was something they all understood. Hardy wasn't sure how much he could get out of Lightner but he couldn't say that.

  Villars rubbed the papers between her fingers, the sound dull yet somehow insistent. "I'll let Dr. Lightner begin, Mr. Hardy," she said at last. "But I warn you…"

  Hardy knew.

  * * * * *

  "What is he going to say?" Jennifer whispered to Hardy, grabbing his arm. "He thinks I'm guilty."

  Hardy had to admire it — she wasn't budging on her story. There hadn't been the slightest slip or deviation from it in all these months. She flat did not do it. Of course, she would not be the first killer to deny it to the death.

  He leaned over, urgent. "Trust me here. Don't interrupt. I believe you." It was his turn to squeeze her arm. He pulled her toward him. "Do you hear me? I believe you."

  Villars was now looking down on Lightner. "Doctor," she began, "I want to be clear here. Your testimony today will not be admissible regarding the guilt or innocence of Mrs. Witt. That has already been decided. However, the court understands that you have information that might have some influence in mitigating the death penalty that the jury has recommended."

  Lightner swallowed.

  "Is that so?"

  The doctor shrugged, looking to Hardy for help. "Yes, Your Honor, I believe so."

  Villars nodded. "Okay, Mr. Hardy?"

  Hardy rose slowly. "Dr. Lightner, what is your relationship with the
defendant?"

  "I am her friend and her psychiatrist."

  "How long have you been her psychiatrist?"

  "About four years."

  "And her friend?"

  "I've considered her my friend all along."

  "And in your role as friend, doctor, have you seen Mrs. Witt other than in circumstances that might be described as professional? Lunches, dinners, that sort of thing?"

  He was fishing, but regardless of the answer he was also giving Lightner a big hole to skate through. He could tell from Lightner's posture, his eyes, that he understood what was being offered. "Yes."

  What Lightner did not realize was the price Hardy would have to exact.

  "Many times?"

  "Several. Yes."

  Then Hardy dropped his bomb. "Dr. Lightner, at the time of Larry and Matt Witt's death, were you Jennifer's lover?"

  Lightner, apparently stunned, sat back in the witness chair, then turned to the judge. "Your Honor…?"

  Villars shook her head no. "Answer the question, Doctor." Although he already had.

  Hardy reminded him that he was under oath. He cast a helpless glance across the room at the defense table, at Jennifer. "Yes," he whispered.

  Powell exploded. "Your Honor, this witness has already testified, under oath, that he and Mrs. Witt were not intimate."

  Villars leaned over. "You're admitting to perjury here, Doctor. Do you realize that?"

  Soberly, Lightner nodded, answered yes.

  There was a ripple of noise in the courtroom and Villars hit her gavel once. She motioned the lawyers to the front of the bench. "This is your friendly witness?" she asked, but it called for no answer.

  Hardy turned to check on his client. Jennifer was a statue, her teeth over her lower lip, biting. He had told her to trust him, that he believed her. He had to let her know.

  Stepping back in front of Lightner, Hardy asked, "Doctor, did you ever hypnotize the defendant?"

  "Yes."

  "Did you tell her, under hypnosis, that she should deny having this affair with you?"

  Lightner gulped some air, swallowed. "I thought it would hurt her defense. Compromise her somehow. She was having trouble enough handling what was happening to her."

  "You mean the deaths of Larry and Matt?"

  "Yes."

  Hardy took a moment, stepped toward the jury box, gathering his thoughts, then turned again. "Because you were, in fact, having an affair with Jennifer, some of your time with her, therefore, was not related to your practice? Or her psychiatric condition?"

  "That's right."

  This was the point, and Lightner understood it. If Jennifer was to have a chance at life, though it cast her and Lightner in a negative light, the affair had to come out, as he would try to demonstrate.

  "Did you see Jennifer, either professionally or personally, after December 28 of last year?"

  "Yes, of course. I've told you. Almost every day. She was devastated by the death of her son. She blamed herself." There was another buzz, short-lived, behind them. "But Jennifer blames herself for everything."

  "And yet she denies killing her husband and her son."

  "That's correct."

  This wasn't a question, but Powell didn't object and Villars said nothing, so Hardy took a deep breath and continued. "Doctor Lightner, did Jennifer tell you about any decisions she had reached before December 28?"

  "Yes. She was leaving her husband. She called me on the telephone on Christmas Eve."

  "As a friend, not as a psychiatrist."

  "Yes."

  Hardy began to lead him through it, slowly, with a rhythm. The fact that Larry had threatened to kill her if she left. The gun by the bed. The increasing tension in the household. He had to keep the story flowing, slipping back and forth from conjecture to fact, slowly working his way — details, details — until they got to Monday morning.

  "Now, Dr. Lightner, Jennifer has never admitted to you that she shot Larry or Matt. Correct?"

  "Yes. Correct."

  "Nevertheless, based on your training and experience, and sitting through this trial, have you formed an opinion as to Mrs. Witt's state of mind at the time of the killing?"

  "Yes, I have."

  "Incidentally, Doctor, all the information that you have received about this case has come from either Mrs. Witt or from this trial."

  "That is correct."

  "No one has provided you with any police reports, photographs or information out of court?"

  "That's true."

  "Tell us then, Doctor, your professional opinion as to Mrs. Witt's state of mind."

  "Basically, she was in a panicked state due to battered-wife syndrome. Her husband had beaten her repeatedly. They had just argued. He was running upstairs after her. She was in terror…"

  Hardy picked up the pace, keeping the rhythm, setting the stage, bringing Lightner along with him. Larry was running upstairs…

  "And what did she do then, Doctor?"

  Turning, Matt with the toy gun — the new Christmas present — in the bathroom door…

  "And then?"

  Matt. Larry's screaming rush toward her. The single shot at point-blank range…

  The courtroom was silent. Perhaps ten seconds elapsed without a sound.

  "Now, of course, Dr. Lightner, as you've told us, Mrs. Witt categorically and consistently denies any part in these killings. So this is your own reconstruction of events?"

  "Yes, sir, it is."

  "Entirely?"

  "Yes, of course."

  Hardy let it go until it had sunk in, then stepped closer to the witness box. "Dr. Lightner," he said, "how do you know about the toy gun Matt was holding?"

  The silence grew. Lightner, telling his story, had gotten caught up in the emotion of it. Now, drained, he slumped slightly. Finally, he spoke. "I beg your pardon?"

  Hardy repeated the question. How did he know about the toy gun?

  Lightner blinked. "I'm not sure."

  "But this situation you've just described to us. Jennifer didn't describe it that way to you, did she?"

  Powell stood up. "Your Honor…"

  Villars did not hesitate. "Overruled. I'd like the doctor to answer."

  "I must have seen it in the photographs, then. The ones at the trial here."

  "Jennifer didn't tell you about it? She told me Matt didn't have any guns. Wasn't allowed to have them."

  Powell stood again. Villars shook her head.

  "No, that's right. She must not have. It must have been the photographs."

  Hardy, nodding, walked back to his table and picked up the thick envelope containing all the forensic and murder-scene shots. "I'd like you to go through these photographs and point out this toy gun if you can find it."

  Lightner took the envelope and began slowly turning the pages. Standing over him, Hardy waited. Villars was a sphinx. Halfway through, Lightner suddenly looked up. "But that was just a story. There might not have been a gun. That's just what I thought had happened. It's informed conjecture."

  Hardy again walked to the desk. He reached down into his briefcase and removed a zip-loc plastic evidence bag. Back at the witness box, he opened it and removed Terrell's "mistake" — the realistic toy gun that had been found in the same dumpster as the murder weapon. "This is the gun, is it not, doctor? This is the gun Matt was holding, is it not? The gun that you thought was real. The gun that provoked you to shoot him—"

  "God !" Hardy heard Jennifer behind him. "Ken?"

  Hardy did not trust himself to move but he could still talk. "This was the FedEx package — a Christmas present from Nancy, Matt's grandmother. How did you know, in your story, that it was a Christmas present? It didn't get to the house until 9:30, after Jennifer had left to go running. You had removed it with the murder weapon by the time she got back. Jennifer never knew it had been there. Did she?"

  Lightner shifted on the seat, eyes on Hardy, then around the courtroom, as though looking for help. Finally turning to Villars. "I don't hav
e to answer this, do I? I can take the Fifth Amendment," he told Villars. "I'm not saying anything else without an attorney."

  * * * * *

  It was his only chance, his last chance.

  She had called as she increasingly did when they had been fighting. Larry was beating her.

  Why wouldn't she leave him? It wouldn't get any better. All the literature, and the facts, agreed on that. He had told her. And still she wouldn't leave him. She believed she had to keep trying.

  So he'd listened. And counseled her. And, yes, made love to her.

  He lied to Hardy and the court about that, but he'd told the truth to Hardy about his caring for her. Caring? That was putting it mildly. Yes, she loved him, more than transference, he told himself. But she had her family. She just wasn't leaving them. Which meant he could never really have her. The call on Christmas Eve wasn't that she had decided to leave. It was another fight, another beating, another call for help. He had responded, as he always did, and then she went back for more.

  And now, again, here Monday morning. Another call, more terrible damage. It had to stop. It was his only chance, her only chance. He could save her and… have her… he would do anything for her. Anything…

  * * * * *

  Olympia Way. Her beautiful house. The street empty, dead, silent under a cold brittle morning sun. It took him ten minutes, perhaps less. Jennifer was going jogging. There was enough time. She'd be gone…

  No one on the street.

  He had been here. Three times in the afternoons, Matt and Larry gone, Jennifer meeting him. He knew his way around there. He knew where the gun was. Not that he was really planning on using it. Was he? No. It would never come to that. He would talk to the husband, tell him what he had done, what he was doing, to Jennifer. Now that he was here, it seemed—

  "What is it?"

  "Dr. Witt? We've got to talk. May I come in, please? It's about your wife."