Witness for the Defense

by Jonnie Jacobs

  “Our biggest stumbling block,” I added, “will be the witness who saw a dark-colored Explorer with the partial license matching yours.”

  “There've got to be other cars matching that description.”

  “You'd think so. The trouble is, we haven't found one yet.”

  A flicker of worry crossed her face. “That's not good.” Terri twisted sideways in her chair, arms crossed over her chest. “You mentioned before about trying to hint at a different killer. Someone with a reason to want Bram out of the way.”

  I nodded. “I wish I could tell you we had a candidate for that role.”

  “You've dropped the idea of dumping on Melissa, then?”

  “For the moment.” It wasn't so much that I'd deliberately dropped it, as that it hadn't quite jelled. Neither had my thoughts about offering Mrs. Cole or Suzze Madden as substitute killers. But I hadn't ruled any of them out, either.

  “Is there any evidence against her?” Terri asked.

  “The white fleece found on Weaver's clothing.”

  “Those sheepskin seat covers are everywhere. I meant real evidence.”

  I shook my head. “No real evidence one way or the other.” And Melissa herself had been less than cooperative.

  “What about Weaver's son? He had plenty of reason to be angry at the guy.”

  “He was at school.” I'd had Nick look into that possibility.

  Terri brushed the air with impatience. “Didn't you ever sneak out a window at night?” Then she sighed. “I don't want to dump on him either. He's just a kid. A kid who had a hatemonger jerk for a dad.”

  I frowned. “I hope you haven't talked about Weaver like that to anyone else.”

  “I've kept my mouth shut, just like you said. It's been hard, though. If you're too standoffish, people don't like it. And everyone's got an opinion about the guy.”

  “They're entitled to one. So are you. Just remember to keep it to yourself.”

  Terri rested her elbows on the table and propped her head in her hands. She stared at me in silence for a moment. “Let me get this straight. You're going to tell the jury you have no idea who killed Weaver or why, but it wasn't me.” She sounded incredulous.

  “Basically.” Unless we got a last-minute lucky break.

  “That's lame. It's like I'm guilty and trying to get away with something.” She pressed a palm against the side of her face. “I don't see how you can say things look decent for us.”

  “They do, Terri. Trust me on this. There are no guarantees, of course, but the prosecution has to prove its case beyond a reasonable doubt. It'll be tough convincing a fair-minded jury that you're guilty.”

  The key was making sure we had a fair-minded jury.

  “And we have the neighbor's housekeeper who saw you at home through the upstairs window, don't forget. An alibi of sorts. You can't be two places at once.”

  Terri gave me an odd look. “How will the jury know whether to believe her or the prosecution's witnesses?”

  “Credibility. And how the testimony fits with other evidence in the case.”

  This was why trials were more art than science. Facts in dispute. Or unclear. Or both. Evidence that was contradictory. Loose ends that couldn't be explained. What you had to do was spin a web that drew the jurors to your side, and there was so much more to it than straight logic.

  Terri looked down at her hands. Her expression was silent and impenetrable.

  “If you're having second thoughts,” I reminded her, “it's not too late to talk a deal.”

  She shook her head, slowly and almost imperceptibly. Then she sighed and raised her eyes to mine. “No. I'm not going to deal.”

  “You've got the clothes we picked for tomorrow?”

  “Yes, my mother brought them by earlier today.” A fleeting smile. “It's going to feel so good to wear something other than this ugly monkey suit.”

  “Try to get a good night's rest, Terri.”

  “You too. And thanks. For everything.” She pushed back in her chair. “Steven says you're the best, and Steven is usually right.”

  <><><>

  It's common wisdom among trial attorneys that a case is won or lost with the selection of the jury.

  Some attorneys prepare for voir dire as thoroughly as they do the trial itself. They hire consultants, assemble focus groups, invest heavily in research hoping to pinpoint the ideal juror for their case. We'd rejected that approach. Not only is it expensive and cumbersome, particularly on a tight schedule, but it's also far from foolproof. Instead, we were relying on our collective experience and gut reactions.

  An approach that was equally far from foolproof.

  Stepping into the courtroom that morning, I could sense the anticipation in the air, at once both electrifying and stifling.

  I'd slept fitfully the night before, awaking hourly with a tight throat and a knot in my stomach. I didn't imagine Terri had slept well either, but she looked more rested than she had in months. She was dressed in a sage-green linen suit set off with a simple gold pin. We'd chosen the outfit because it was flattering and fashionable without being pretentious. Her hair fluffed softly around her face, and her complexion was highlighted with a dash of pink across the cheeks.

  Ted and Arlo sat in the gallery directly behind the defense table. Lenore, after much anguish about where she was needed most, had decided to remain at home with Hannah. Steven and I sat at the defense table with Terri between us.

  Terri eyed the pool of prospective jurors nervously. “They look bored already,” she whispered.

  “How many people do you know who are thrilled to be called to jury duty?”

  “Shouldn't they care, though?”

  “They will, Terri. Try to relax.”

  We'd drawn Judge Susan Tooley, who had a reputation for fairness and for keeping trials on course. I didn't know her personally, but I thought that the draw was a good one, especially in light of some of the other judges we might have found ourselves before.

  Tooley had been a public defender first, then a prosecutor. That was good, too, since I was wary of overzealous judges. She appeared to be in her early fifties. Salt-and-pepper hair cut short and brushed back from her face.

  Judge Tooley addressed the assembled jurors briefly, then asked the bailiff to pull the first name.

  Steven and I had reviewed the jury questionnaires, and now I pulled my notes from my briefcase. I could feel my heart pounding with anticipation.

  The first juror called was Manuel Ortiz, a slender man of twenty-six who spoke with the hint of a Spanish accent and worked as the manager at the local Burger Boy. He was married, with two young sons. He had a brother with the Highway Patrol.

  Judge Tooley questioned him first, followed by Don Pelle, who seemed inclined to accept Mr. Ortiz as a member of the jury. That didn't surprise me. Jurors with family ties to law enforcement were generally considered pro-prosecution. And if stereotypes held, a Latino male might find himself more naturally aligned with Weaver than a defendant who was white, rich, and female.

  But I'd been impressed with Ortiz. His answers were careful and direct. What we wanted were jurors who would keep an open mind and not assume that arrest and guilt went hand in hand.

  “Mr. Ortiz.” I took two steps in his direction. “Have you followed this case in the media?”

  “I heard about it from some people at work, but I don't get a chance to read the paper regular. The minute I come home, my little boys are all over me.”

  “Did you ever listen to Weaver's show or read his book?”

  A charming half-smile. “Afraid not. Like I said, my boys are a handful.”

  “Do you know anything about Bram Weaver?”

  “Just what people say about him.”

  “And what's that?”

  Mr. Ortiz looked uncomfortable. “Men should be men, that kind of thing. He thought women were getting too much power.”

  “And do you agree with those statements?”

  “Men should be stron
g, yes. Dependable. We need to take care of our families.”

  “And women?”

  There was a twinkle in his eye. “What can I say, I'm married. My wife is a wonderful woman.”

  Not heavily macho, which was good. “Mr. Ortiz, from your answers to the questionnaire, it sounds like you are a devoted father.”

  “I try. Boys need a father.”

  “And being a father is more than just biology, is it not?”

  He was nodding vigorously. “Much more.”

  I leaned down to confer with Steven. “I say we keep him.”

  “The family tie with law enforcement doesn't bother you?”

  “A little. But we're not going to get everything we want in every juror.”

  Steven nodded. “I like him too.”

  I looked at Terri for her reaction. By previous agreement we'd arranged for her to have a say in the selection of jurors. But Terri appeared numb. It was a phase all defendants experienced—the punch to your gut when you recognized your future rests in the hands of twelve strangers.

  “I can't do this,” she whispered. “You two decide.”

  I turned to Judge Tooley. “The defense accepts Mr. Ortiz.”

  The next juror called, an active feminist, was dismissed by the prosecution for cause. We burned a peremptory challenge on the third juror, a man still licking his wounds from a bitter divorce in which he'd sought custody of his three children and lost.

  Nancy Huntington was up next. Married without children, Ms. Huntington worked as a commercial loan officer at Bank of America. Her husband was a CPA with a large accounting firm. On the jury questionnaire she'd indicated interests in golf, travel, and opera.

  Pelle questioned her at some length. He pressed her about Weaver, but she'd hardly heard of him or his book, making it clear in the process that her time was spent on more important matters than radio talk shows. Nor had she heard of Ted Harper before his wife was arrested. Football was not one of her interests either. Nor, apparently, was television or she'd have run across his TelAm commercials.

  On first impression, Nancy Huntington seemed a good choice for the defense. A woman about Terri's age, college educated and in the same general social strata. But she made me uneasy.

  It's believed among those who study such things that female jurors are hard on other women. While I wasn't sure I bought the generalization, I had a feeling that Ms. Huntington might fit the pattern. There was a harshness about her, an aura of self-righteousness that suggested she made up her mind quickly, and rarely changed it. I was reluctant, however, to use another peremptory so early on.

  I questioned her about her schooling—Wellesley; her family—a sister in Boston and parents in Arizona; her reading habits—she took my question about reading mysteries as an insult; and the extent of her political activism—she gave money to worthy causes and served on the boards of several local committees, including the Opera Board and the Council for a Better San Francisco.

  “Sounds like a busy life,” I said.

  She allowed a smile. “I like it that way.”

  “Would you feel jury duty to be a burden?”

  “On the contrary, I look forward to serving.”

  Sounded like someone in a job interview. Not the norm for jurors, especially those with demanding professional careers. It was a sure red flag. “Have you served on a jury before?”

  “No. I was called to jury duty once, a simple insurance claim. A fender bender in a grocery parking lot. One of the attorneys asked to have me excused.”

  “A disappointment for someone who was looking forward to serving.”

  She managed to look disdainful. “It was only a civil case and not a very interesting one from the sounds of it.”

  “And you think this one might be interesting?”

  “It's an important case.”

  “Important how?”

  “It's been in the news a lot.” Realizing she may have said more than she wanted to, she hastened to explain. “I mean, it's a big case. A serious matter.”

  With big names and star attraction. A case she could talk about over sips of champagne at the opera opening.

  “Tell me about this council you serve on,” I said.

  “It's comprised of representatives from city government and local business. We're trying to work together instead of fighting each other.”

  I was under the impression that city government and businesses were already on the same team. One had only to look at the skyline to see how pro-growth interests had changed the character of the city.

  “What specific areas of city government?” I asked.

  “It's pretty broad. There's someone from the mayor's office, from Muni, that sort of thing.”

  “From the police department also?”

  “Yes. Like I said, it's a broad-based coalition.”

  “How about the DA's office?”

  “I don't believe so.”

  I looked at Steven, whose hands were folded, thumbs crossed. Our agreed-upon signal for a juror we didn't want. His assessment mirrored my own.

  “Sidebar, Your Honor?” I found Ms. Huntington's responses troublesome enough to support a dismissal for cause, but I expected Pelle to disagree.

  He did. “That's absurd,” he argued to the judge when I'd finished explaining my reasons. “Counsel is trying to pick and choose jurors without having to waste a peremptory challenge.”

  Judge Tooley removed her glasses and wiped them on the sleeve of her robe. Then she put them back on and looked at me. “Ms. O'Brien, it's your contention that Ms. Huntington's willingness to serve on this jury is evidence that she ought not serve?”

  “I think eagerness is a more apt term, and yes, I find that suspect. Moreover, she's got ties to the mayor and the police department, which indicates the potential for bias toward the prosecution.”

  “Ties?” Pelle rolled his eyes. “It's an advisory committee, for God's sake. One of those puff-and-fluff delegations that provides a photo op and not much else.”

  Judge Tooley pressed her lips together and nodded. “I agree, Ms. O'Brien. I don't find sufficient bias to excuse her for cause.”

  I returned to the defense table and leaned over to look at Steven's juror list. Based on the questionnaires the jurors had filled out, we'd drawn lines through a number of the names—jurors we didn't want. If we used a peremptory on Ms. Huntington, we might be stuck with one of these others down the road.

  “On the positive side,” Steven said, “loan officers don't, as a rule, jump to conclusions.”

  Terri had been sitting silently, eyes straight ahead. But apparently she'd been listening because she turned and said, “Let her stay. At least I recognize the type.”

  The smile on Ms. Huntington's face when she was seated as a member of the jury left me feeling less than confident, however.

  By the end of the day we'd impaneled eight jurors—five women and three men. I felt really good about two of them, had minor misgivings about four, and serious reservations about Ms. Huntington and a young woman by the name of Judy Johnson, who reminded me of one of those wind-up dolls that spewed forth recorded phrases—in Judy's case, I guess, I don't know, and I think so. I could only hope that her brain marched to a different drummer than her mouth.

  <><><>

  I'd hoped Steven and I might have a chance to talk after court adjourned, maybe even head out for a drink or an early dinner. The notion of unwinding with someone whose company I enjoyed seemed enormously appealing. I'd been too long alone and I was getting tired of it.

  But Steven had dashed off with only a quick, “Good job, see you tomorrow.” I was exhausted by the tensions of the day, and too keyed up to concentrate on the next stage. I pulled out my cell phone and tried three friends who worked in the city. I struck out three times.

  Although it was five o'clock, the day was warm still. A rare event in San Francisco, where the fog rolled in most evenings, if not before. An evening for strolling. So that's what I did. I headed out
toward Union Street for some serious window shopping.

  I even meandered into a few stores, bought a pair of hammered copper earrings, checked the sales racks at the expensive clothing boutiques, and was admiring a hand-painted silk scarf when the woman standing next to me pulled the cell phone from her purse and looked at it blankly.

  “Not mine,” she said, turning her gaze in my direction. “Must be yours.”

  It was only then that I became aware of “Ode to Joy” playing softly in my purse. There aren't many people who have the number to my cell phone.

  I pulled the phone from my purse and took a minute to remember which button I pushed to answer it. Once I got the thing working, however, I recognized Bea's voice at once. She sounded frantic.

  “Kali, I've been trying to reach you. Then I remembered your cell phone.”

  “What is it?” I had visions of my house aflame. Loretta missing.

  “It's Sophia Rudd,” Bea said. “She was beaten up this afternoon. Badly.”

  CHAPTER 28

  “Who would do such a thing?” Bea asked for maybe the fifth time since I'd arrived at the hospital twenty minutes ago. She'd been talking with a young police officer at the time, but we'd moved to the cafeteria when he left.

  She headed for a table in the comer. “What kind of animal attacks a defenseless old woman? And for what possible purpose?”

  Bea wasn't looking for answers, which was a good thing because I had none. “What did the police say?”

  “Didn't say much of anything,” Bea grumbled. She was agitated, and clearly exhausted by the afternoon's events. “Didn't even ask many questions. Not that I'd have been able to tell him much.”

  I'd managed to piece together enough of the story to know that Bea had discovered Sophia Rudd sprawled on the floor, bludgeoned and bloodied, when she'd dropped by there that afternoon. But I didn't know much more than that.

  “How are you doing?” I asked, touching her arm. “You must be pretty shaken.”

  “I'm doing better than Sophia,” Bea said, blinking back tears. She pulled the tea bag from her Styrofoam cup and set it on a napkin. “I can't imagine they thought the poor dear had anything worth stealing. It's a small apartment, very modestly furnished.”