It seemed to be a reasonable discussion—no one, yet, was raising any voices. But neither had the flame gone out under the coffeepot. While one woman tended to the argument, another was pouring liquid into small porcelain cups and passing it to some men, who put lumps of sugar into their mouths before they began sipping.
“They should just set up a TV camera and run this hall live.” It was David Freeman, rumpled as usual in a cheap rack suit, looking like he hadn’t slept in a week. “Probably pull a thirty share.”
Hardy gestured around them. “You’d need a commentator to explain what’s happening. Like here”—he pointed—“it’s a little ambiguous.”
Freeman considered it. “The host is a good idea. Maybe we could have the judges rotate, like they do the calendar. ‘This week on calendar we’ve got Marian Braun, and here in the hallway, LADIES AND GENTLEMEN, LIVE, IT’S JUDGE OSCAR THOMASINO!’ ”
They started toward Department 22, the courtroom where Jennifer Witt was to be arraigned in an hour, which was all the time Freeman was going to take getting filled in on the case. No sense wasting it. “How’s it look?” he asked.
“They’re talking capital.”
“Capital. Powell ought to go and stand in the witness row outside the gas chamber a few times, mellow him out a little.”
“I think Powell might like it.”
Freeman thought that was debatable. He had witnessed six executions in several states—no sane person could like it and he did not think Powell was insane. Not even close.
“Well, they’ve got special circumstances two ways—multiple murders and killing for profit. You know they’re alleging three counts?”
“Three?”
Like Hardy, Freeman was surprised to learn of the last count against Jennifer, murdering her first husband Ned Hollis nine years earlier. “That’s digging pretty deep, wouldn’t you say?”
“You better read the file.”
They got to the twelve-foot solid wood double doors that led into Judge Oscar Thomasino’s courtroom, Department 22.
“That bad?”
“At least they’ve got a case. It’s not frivolous. But she says she didn’t do it.”
Freeman pushed his way through the doors. “Well, there’s a first.”
“Maybe she didn’t.”
“Maybe,” Freeman agreed. “On the other hand, maybe not.” In the high-ceilinged empty courtroom, even whispers echoed. Dismas Hardy and David Freeman sat in the last pew, a long, hard, cold bench of light-colored wood. Freeman, legs crossed, unlit cigar in his mouth, was starting to peruse the file, pulling papers and folders from Hardy’s extra-wide briefcase.
“You’re heartening to talk to. Anybody ever told you that?”
Freeman shrugged, scanning pages. “My clients love me. Why? I get them off. Do I think they’re guilty? Do I care? Probably—to both questions. Most of the time.”
“Most of the time you think they’re guilty?”
Now Freeman looked up. “Most of the time they are guilty, Diz. Our job’s to get them off, so that’s what I try to do.”
“Well,” Hardy said, “I found myself very much wanting to believe her. She was torn up, crying, really a wreck.”
“Over the loss, or over being caught?” Freeman marked his reading place with a finger. “I know, I know, I’m cruel and cynical. But tears fall for all kinds of reasons, not the least of which is self-pity, and when someone’s sitting in jail, believe me, they get to feeling very sorry for themselves. It can seriously tear a person up, I’ve seen it happen.” He went back to reading, turned a few pages, stopped.
“She’s attractive, right?”
Hardy nodded.
“Young?”
“The file says twenty-eight.”
“Twenty-eight’s young, okay. Humor me on this one.” Freeman himself was perhaps fifty-five. Hardy thought he didn’t look a day over eighty. “Okay, so she’s young and attractive and crying—of course, you want to believe her. And guess what? She knows you want to believe her. Whether or not she did these horrible things to her husbands, she’s aware of the effect crying has on a normal red-blooded male such as yourself. And that effect is . . . you want to believe her, want to make her feel better. You want more than anything to get her to stop her crying, don’t you?”
Freeman took the cigar from his mouth, spit out some leaf, reinserted it. “And while we’re at it,” he said, “tell me honestly. This is my personal public-opinion poll. She do it, or not?”
“I don’t know. I’m leaning to not.”
“None of it?”
“I don’t know.”
“What part of it don’t you know?”
“The boy . . . Matt. And if she didn’t kill him, the rest of it falls apart, doesn’t it?”
“You don’t think she killed her kid?”
“I don’t see it.”
“Why? And don’t tell me you don’t think she’s the type.”
“Well, two reasons,” Hardy said. “One, she didn’t just deny it; I thought she seemed genuinely stunned that anybody could think she’d done it. She didn’t even want to talk about it, David. I mean, she acted like it was all a weird mistake that would get cleared up. As for killing her own son, how could anybody believe that?”
“Diz, Diz. Let’s just, for argument’s sake, say she did it. And if she did it, it was for the insurance money. We agree here? Good. Okay. This is a high-risk position, deciding to kill somebody. People do it all the time, but people who do it for money, they’re a different breed. Jennifer Witt decides in cold blood to do this deed, she’s sure as hell not going to admit it. She’s taken a risk—already taken it—and she’s going to get the whole banana or go down in flames. Believe it. Now, what’s the other reason?”
Hardy had said there were two reasons he thought Jennifer might not have done it—Freeman had given an argument refuting the first and now wanted the second. “I just don’t think she’s the type?”
Freeman went back to reading. “I charge by the hour,” he said, “and I don’t charge enough.”
Hardy accepted the reprimand in good humor. “Take out the son Matt and the case doesn’t look very strong against her.”
“We can’t take out Matt. Matt was there, Diz. I wish to hell he hadn’t been, but that’s what we got. Powell’s not going to let it go—it’s what’s putting our girl face-to-face with the gas chamber. It will influence a judge.”
Hardy had had this discussion before. Even if Jennifer did kill her husband, Larry, and Hardy was not convinced of that, he was at least certain that Matt’s death had somehow been an accident, a random, tragic wild card. But now that card, like it or not, had been dealt to them. It was their hand and they had to play it. “I still think the right jury could walk her,” he said.
“The right jury could walk Attila the Hun. But don’t count on it in this case.”
Freeman leaned forward, put an avuncular hand on Hardy’s shoulder. For not the first time, Hardy marveled that Freeman was so successful and even downright likable. As always, he needed a shave. His lips were thick and purplish. His rheumy eyes had yellowish whites, the skin around them flecked with liver spots. He was handsome as a leprous warthog, if warthogs got leprosy. “The smart money doesn’t put too much on the jury. If I go along with believing she’s innocent, you know, I actually hurt her chances. You realize that?”
“How do you do that?”
Freeman looked around the empty room, making sure no one was eavesdropping. “It’s a tightrope walk. You want to convince yourself that you’re defending an innocent person—that much is all right, it’s part of it. But if you actually start to believe that your client is innocent, you’re going to assume that the jury’s going to see what you see. You’ll convince yourself that they want to believe you, your interpretations of the facts.”
Hardy picked it up. “And those arguments, because you didn’t have to make them to yourself, just aren’t going to be as strong.”
“See? Diz,
I do believe you’ve got a knack for this business.” Freeman moved his cigar around. “If the matter gets to a jury, your client’s already in big trouble and it behooves you to take it as seriously as you can.”
“I do take it seriously, David. You asked me if I think, gut level, that she did it. At the least, I’m saying I’m not sure the case is that strong—”
“That why they’re going capital? That why Powell’s got it, with his political ambitions? He maybe needs the practice in court? I doubt it.”
Hardy couldn’t help smiling. “You’ve got to learn how to express your feelings, David. It’s going to eat you up someday, holding it all in.”
Freeman nodded. “I know. I’m trying. They’d mind if I lit up in here, wouldn’t they?”
Freeman was sitting under the international nosmoking symbol.
“I’d bet on it,” Hardy said.
“I was assuming all along you’d be part of it, to tell you the truth.”
Hardy had not decided on a precise strategy to introduce the subject of his continued involvement in Jennifer Witt’s defense, but as was so often the case with David Freeman, the question got preempted.
In California, all death penalty trials had two phases before the same jury—guilt and penalty. In practice, the lawyer in the guilt phase never stays on to do the penalty phase. Juries got cynical about a person when first they argued passionately that their client didn’t do it and—once it was established that yes, they did, too—then turn around and say, in effect, Okay, so my client did it. I know I said it wasn’t so, but I lied. But at least now let’s talk about what a nice person my client is and why execution would be really too strong . . .
So, to avoid this appearance of inconsistency, there was also always a penalty-phase attorney, commonly called the “Keenan counsel,” and it was this role Freeman had now asked Hardy to take should Jennifer be found guilty and it came to that. “Assuming, of course, that she can pay.” He seemed serious when he said it.
Jennifer Witt had the right to counsel, but if she did not have the personal funds to cover the costs—and in a capital case they would be enormous—the court would appoint a public defender. And even if the public defender claimed some kind of conflict of interest, there was no guarantee that Freeman and Hardy would be appointed.
Freeman, of course, was a long-standing court approved defense lawyer, but Hardy had not yet even applied for the list, and in any event, with this kind of case at stake, the other vultures would be circling. This looked like it was going to become a high-profile case—the very best advertisement in the business. But if Freeman and Hardy were going to defend Jennifer, she, personally, was going to have to pay them. No getting around it.
“And I’ll tell you something else,” Freeman said. “This is Private Practice 101. I don’t care if your client is Mother Teresa, you get your money up front.” He seemed very serious. And it bothered Hardy.
The clerk entered from the front of the courtroom talking with the court reporter. They started setting up their work areas, organizing, talking in low voices. In the gallery, what looked to be some of the other attorneys had arrived—Freeman nodded to a few of them. Non lawyers, perhaps relatives of defendants or victims, were beginning to straggle in.
This was Superior Court. People coming before the judge in this courtroom were not here for traffic tickets. Hardy left Freeman reading the file and stood, wandering up to the rail that separated the gallery from the principals.
The prosecutor Dean Powell tapped him on the shoulder. “I kind of expected you this morning.”
“I thought I mentioned that David Freeman’s got this one, Dean. There he is back there, doing calisthenics.” Freeman was pulling on an ear, studying, oblivious to the world. “I’m mostly along for the ride.”
“Freeman decide on a defense?”
“No, but Jennifer has. It’s your favorite.”
“Not guilty? No insanity? Justifiable, even?”
“Mrs. Witt says she did not do any of it.”
Powell nodded, poker-faced. But Hardy had the sense that he was delighted. “Yes she did,” he said.
Judge Oscar Thomasino, short brush-cut hair and swarthy complexion, had a no-nonsense demeanor in the courtroom over which he had presided for ten years. He had come in this morning with another of the surprises that marked life behind the rail.
“Before we begin today,” he said, “is there someone in this courtroom driving a green Chevy Lumina license number 1NCV722?”
A Hispanic male in his midtwenties raised his hand and stood up in the third row of the gallery. Thomasino motioned him up through the bar rail. Reluctantly, the man complied, and the judge frowned down at him. “Did you happen to notice, sir, the large sign in the space you took outside that read Reserved for Presiding Judge?”
The young man bobbed and half-turned around, looking to the gallery for support. “Aw, come on, I’m in trouble now because I took your parking space?”
“Not precisely,” Thomasino said, “although that’s part of it. Your big problem is that the car is stolen.” Thomasino directed the bailiff to take the man into custody. They would figure out what to do with him upstairs. The car had been towed to the city lot.
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 17th day of September, 1984, 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 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, wo
uldn’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.
The 13th Juror Page 5
